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12 December 2017

30: Great Repeal Bill – Take five

Day 5 of Committee Stage on the Bill took place on 6 December. MPs considered Clause 10 and Schedule 2, and Clause 12 and Schedule 4.

Clause 10 and Schedule 2

Clause 10 of and Schedule 2 to the Bill would confer powers on devolved legislatures and administrations to ‘correct deficiencies’ in retained EU law and to implement the Withdrawal Agreement. As explained in more detail here and here, these powers are similar to those granted to UK Government Ministers under clause 7 to 9, but they differ in two important respects: first, the devolved authorities’ power to deal with deficiencies cannot be used outside of their devolved competence; and, second, no power is given to the devolved authorities to create rules inconsistent with the retained EU law. The second restriction is considered by the SNP and Plaid Cymru to be an attack on the devolution settlement.

Numerous technical amendments were tabled in respect of Schedule 2, ie amendments 135 to 136 and 287 to 290 (the Liberal Democrats), 166 to 182 and 209 to 215 (the SNP), 307 to 317 and 322 to 327 (Plaid Cymru). In general terms, these were intended to either remove or modify the second restriction identified above; or they were intended to ‘rein in’ the use of those powers, in line with the amendments tabled in respect of ‘correcting’ powers granted to UK Government Ministers (eg to only when ‘essential’ or ‘necessary’ to correct deficiencies, rather than merely when ‘appropriate’, or to preserve particular ‘constitutional statutes’ from amendment under such powers, eg the Northern Ireland Act 1998, the Scotland Act 1998, the Government of Wales Act 2006).

The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Robin Walker), explained that the Government could not accept the amendments proposed for the following reason:

‘Direct EU law is part of the structure of our common frameworks. Corrections to those laws, which apply consistently throughout the UK, need to be co-ordinated [ie by the UK government] in the immediate term to preserve those common frameworks so that we can provide continuity and maximise certainty for individuals and businesses across the UK. It is wrong to suggest that that would in any way roll back the powers of the devolved Administrations because while the UK has been a member of the EU, they have never had the discretion to amend, repeal or in any way act incompatibly with those directly applicable EU laws. Removing the current restrictions would create a new discretion, allowing for problematic divergence immediately after exit in matters where uniform law is currently in place. We cannot accept that. However, let me be clear: the devolved Administrations will have a role in determining how the laws should be amended because we will consult them when using the powers to amend direct, retained EU law in matters that are otherwise devolved.’

However, the Under-Secretary did refer to ‘the agreement that I believe can and will be reached in the not-too-distant future through the [Joint Ministerial Council] process’ (a reference to the ongoing discussions between the UK Government and the devolved administrations on the matter), and he stated (repeatedly) that the Government ‘stood ready to listen to those who have sincere suggestions for how we might improve the Bill’. So we may see changes to the Bill at Report stage, or in the Lords. No amendments were put to a vote, and so Clause 10 and Schedule 2 were carried unamended.

New Clause 70

There was significant debate, and cross-party support, for New Clause 70 proposed by Lady Hermon, Independent, which would have required any Minister or devolved authority, exercising powers under the Bill, to have regard to the requirement to preserve and abide by the principles of the Belfast/Good Friday Agreement which underpin the Northern Ireland Act 1998 (this was considered with other amendments with similar aims, such as New Clause 39 and amendments 144 to 146, 338, 346 and 347). MPs from across the House acknowledged the importance of that Agreement in creating and maintaining the Northern Irish peace process.

However, the Parliamentary Under-Secretary of State for Exiting the European Union (Mr Robin Walker), explained that the Government could not accept the new clause because it was unnecessary:

‘The Government have absolutely accepted their commitments to the Belfast agreement. It is already a matter of international law. We are committed to that agreement. It is annexed to the British-Irish treaty, and we will continue to respect it in the way in which we approach this whole issue.’

When the new clause was put to a vote, the Government defeated the proposed new clause with the support of the DUP.

Clause 12 and Schedule 4

Clause 12 authorises Government spending in preparation for and consequent on the Bill, including under delegated powers and increased spending authorised under other legislation. Schedule 4 enables functions to be given to the Government, UK bodies or devolved bodies, including those previously performed by the EU or the creation of new functions to deal with deficiencies or breaches of international obligations, or to implement the withdrawal agreement. It also provides powers to Ministers and devolved authorities to introduce fees and charges for new functions post-exit through secondary legislation.

The amendments tabled sought either to restrict the operation of this clause in respect of the ‘divorce bill’ by requiring Parliamentary approval or scrutiny of that settlement (eg New Clause 17 and amendment 54, Chris Leslie, Labour; New Clause 80, Jeremy Corbyn, Labour) or sought to restrict the creation or size of new levies or taxes by new regulatory bodies under Schedule 4 (eg Amendment 339, Jeremy Corbyn, Labour).

However, the Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker), explained that the Government could not accept the amendments proposed:

‘New clause 17 and amendment 54 show an understandable desire to protect the role of this House, but they are not necessary. The Government have always been clear that the negotiated financial settlement will be part of our withdrawal agreement and that the House will be given a vote on that agreement. My right hon. Friend the Secretary of State for Exiting the European Union was very clear on 13 November when he announced the withdrawal agreement and implementation Bill. He said that, as one of the principal elements of our agreement with the EU, we expect that legislation to include authorisation to pay any financial settlement that is negotiated with the EU. The Bill we are debating today is about ensuring that the statute book is operational on exit day, not about paying any settlement. The same argument applies to new clause 80.’

When New Clauses 17 and 80 and Amendment 339 were put to a vote, the Government won with the support of the DUP. The Government also carried the vote on Clause 12 and Schedule 4.

Consideration of the Bill continues on 12 December, with clause 7 of the Bill, described by the SSExEU as the ‘so-called correcting power’.

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