European Union (Withdrawal Agreement) Bill

Joanna Cherry Excerpts

Committee stage & Committee: 1st sitting: House of Commons & Committee: 1st sitting
Tuesday 7th January 2020 Commons Chamber

[Steve Barclay]

We will debate at length tomorrow the provisions relating specifically to Northern Ireland, but there is a further sovereignty within the Bill in respect of Northern Ireland. I do not want to stray too far into that debate now, but there is a consent mechanism that pertains specifically to the Northern Ireland protocol, so there is a further sovereignty lock in that regard. However, that is a matter for the groupings that we will address tomorrow.

Turning to clause 3, we are confident that the list of so-called glosses set out in clause 2 works in all the cases that we have examined, and I pay tribute to the officials who have trawled the statute book in that regard. However, it is right that we, as a responsible Government, reserve the ability to nuance the impact of those technical changes should unforeseen issues arise during the implementation period. The power set out in clause 3 provides for that. The Bill gives five different applications for that power. Three relate to the glosses. The power can add to the glosses; it can make exceptions; and it can be used to make different provisions from the list, if for any reason we need to change a gloss in a specific case or set of cases. The power has two further applications: it can be used to tidy up the European Union (Withdrawal) Act 2018 and to cover any specific technical inoperabilities that may occur that have not been foreseen. It is appropriate, prudent and sensible that the Government are prepared in this regard, which is why those five elements are in the Bill.

[Joanna Cherry (Edinburgh South West) (SNP)]

Analysis by the Scottish Parliament Information Centre, which is the equivalent of the House of Commons Library and is therefore independent, notes that clause 3 empowers UK Ministers acting alone to make provision in devolved policy areas. The Government’s delegated powers memorandum states that they will not normally do so without the agreement of the relevant devolved Administration, but as the Secretary of State will be aware, the Sewel convention does not apply to delegated legislation. Does he therefore agree that this power shows that the Bill is indeed the power grab that the Scottish National party has always said it is? If it is not, why is it there at all?

[Steve Barclay]

The hon. and learned Lady is incorrect in saying that. First, this is an international agreement, which is a reserved matter—a matter for the United Kingdom. Secondly, these are glosses—technical issues—in terms of the tidying up that I set out, and they are tightly defined. Thirdly, the devolved elements are addressed by giving the devolved Assemblies the power, through clause 4, to do further glosses themselves.

[Joanna Cherry]

I am sorry, but the Secretary of State is simply wrong about that. On any legal analysis, it is quite clear that clause 3 gives UK Ministers acting alone the power to make regulations in relation to areas of devolved competence. I reiterate my question: why is that power there at all if the Government are not intending to use it to take powers away from the Scottish Parliament and other devolved Administrations?

[Steve Barclay]

Again, with great respect to the hon. and learned Lady, she is over-reaching in the interpretation that she is applying to clause 3. It is a technical provision that allows for technical changes—glosses to terminology —such as the example that I gave the Committee a moment ago of how EU citizens may be defined. The clause is for technical changes in unforeseen areas, rather than fundamental changes of powers. Indeed, we have given an equivalent power through clause 4, in respect of the ability of the devolved authorities to do exactly the same thing or very similar.

Clause 3 must stand part of the Bill to ensure that the statute book is maintained and that any unforeseen technical issues that arise in future are addressed. That is why clause 3 is required. It is not as the hon. and learned Lady characterises it; it is a technical provision for glosses for any issues that were unforeseen at the time of the Bill’s passage.

[Joanna Cherry]

Could I probe that a bit further? In clause 4, proposed new paragraph 11B specifically provides that Scottish Government—and indeed Welsh Government —Ministers cannot make any provision outwith devolved competence. However, there is no equivalent provision in clause 3 saying that the British Government cannot not use the powers to make regulations about devolved matters. If this is just technical, as the Secretary of State says, why will he not agree to include a similar qualification in relation to the British Government’s powers? If he will do so, could that perhaps be addressed in the House of Lords?

[Steve Barclay]

That is not something that I would urge the other place to address, because this is a provision to address unforeseen areas in which technical changes may be required in the tightly constrained areas set out in clause 3. The hon. and learned Lady turns to clause 4, which confers on the devolved authorities a broadly equivalent power to that set out in clause 3. Where legislating for the implementation period falls within devolved competences, it is right that legislative changes can be made by the devolved authorities, with which I am sure she would agree. Therefore, the change in clause 4 provides the devolved authorities with corresponding powers to those set out under proposed new section 8A(1) of the European Union (Withdrawal) Act 2018, as outlined in clause 3, so far as they are exercised within the devolved authorities’ competences.