European Union (Withdrawal) Bill — Schedule 2 — Powers for Ministers in Devolved Administrations — 16 Jan 2018 at 19:00

The majority of MPs voted to allow ministers in devolved administrations to make regulations to correct deficiencies in European Union law retained as United Kingdom law following the United Kingdom's withdrawal from the union without the consent of United Kingdom Government ministers.

The majority of MPs also voted for a grammatical amendment related to proposals to introduce a slight check on the powers for United Kingdom Government ministers to make such regulations, requiring them to explicitly set out the scope of their powers before using them.

MPs were considering the European Union (Withdrawal) Bill^[1].

The motion supported by the majority of MPs in this vote was:

• That amendments 21 to 29 be made.

It is quite unusual to have a single vote on such a large series of amendments.

== AMENDMENT 21 ==

Amendment 21 states:

• page 17, line 24, leave out “reference” and insert “references”.

This amendment impacts paragraph 1(3) of Schedule 2 titled: "Power to deal with deficiencies" and relates to powers for devolved administrations, alone, and working with central government, to correct deficiencies in EU law retained as UK law following the UK's withdrawal from the EU. The wording change pluralises a pointer to Clause 7(2) of the Bill.

An explanatory statement accompanying the amendment stated:

• This amendment is consequential on amendment 15.

Amendment 15^[2] stated:

• Clause 7, page 5, line 41, at end insert—
• “(2A) There is also a deficiency in retained EU law where the Minister considers that there is—
• (a) anything in retained EU law which is of a similar kind to any deficiency which falls within subsection (2), or
• (b) a deficiency in retained EU law of a kind described, or provided for, in regulations made by a Minister of the Crown.”

Amendment 15 was accompanied by a "Member’s explanatory statement" saying:

• This amendment provides that anything which is of a similar kind to any deficiency falling within paragraphs (a) to (g) of Clause 7(2) is also a deficiency for the purposes of Clause 7. It also provides for a Minister of the Crown to describe, or provide for, other deficiencies in regulations. Both changes are to be read in the light of amendment 14 which restricts the type of things that can be deficiencies for the purposes of Clause 7.

Amendment 14 stated:

• Clause 7, page 5, line 11, leave out “include (but are not limited to)” and insert “are”

Amendment 14 was accompanied by a "Member’s explanatory statement" stating:

• This amendment ensures that the deficiencies identified in Clause 7(2) form an exhaustive list rather than an illustrative list. Therefore nothing can be a deficiency for the purposes of Clause 7 unless it is identified in Clause 7(2) or provided for by Clause 7(2A) (for which see amendment 15).

Overall amendments 14,15 and 21 restrict the powers of ministers to correct deficiencies in retained EU law via regulations to circumstances of the sort set out in the Act, but empower ministers to add circumstances to the list. Overall these three amendments amount to a slight check on ministers' powers, adding the additional step of adding circumstances to the list before making regulations in relation to them. Only amendment 21 was actually subject to this vote.

== AMENDMENT 22 ==

Amendment 22 stated:

• page 17, line 24, after “7(2)” insert
• “and (2A) (but not the reference to a Minister of the Crown in section 7(2A)(b))”.

Amendment 22 was accompanied by a "Member’s explanatory statement" stating:

• This amendment is consequential on amendment 15.

This amendment would impact paragraph 1 of Schedule 2 of the Bill, titled Power to deal with deficiencies which empowered UK ministers and devolved administrations to make regulations to correct deficiencies in European Union law retained as United Kingdom law following withdrawal from the union.

This amendment would have changed sub-paragraph (3) to read:

• Section 7(2) to (8) apply for the purposes of this Part as they apply for the purposes of section 7 (including the reference to the Minister in section 7(2) and (2A) (but not the reference to a Minister of the Crown in section 7(2A)(b)) being read as a reference to the devolved authority or (as the case may be) the Minister acting jointly with the devolved authority).

The new section 7 (2A) referred to was proposed in amendment 15, subsection (b) provided for ministers to, add to the definitions of deficiencies in European Union law which ministers are to be empowered to correct. This amendment would have prevented devolved administrations from adding to the list of types of deficiency which could be corrected by ministers and devolved administrations which would otherwise have been introduced by the related amendments.

== AMENDMENT 23 ==

Amendment 23 stated:

• page 17, line 25, leave out “a reference” and insert “references”.

Amendment 23 was accompanied by a "Member’s explanatory statement" stating:

• This amendment is consequential on amendment 15.

This is a grammatical change which would be required as a result of the additional text discussed under "Amendment 22" above.

== AMENDMENT 24 ==

Amendment 24 stated:

• page 17, line 26, after “authority” insert:
• “and the references to section 7(1) being reapd as references to sub-paragraph (1) or (2) above”.

Amendment 24 was accompanied by a "Member’s explanatory statement" stating:

• This amendment is consequential on amendment 15.

"reapd" is presumably intended to be "read". This amendment would have impacted Schedule 2 of the Bill which provides for powers for devolved administrations to, via regulations, correct deficiencies in European Union law retained as United Kingdom law following withdrawal from the union.

== AMENDMENT 25 ==

Amendment 25 stated:

• page 18, line 9, at end insert—
• “‘( ) This paragraph does not prevent the Scottish Ministers from making provision in regulations under this Part if—
• (a) the provision is made when there is an Order in Council under section 29(4C) of the Scotland Act 1998, and
• (b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (4A) of section 29 of that Act if the provision were made in an Act of the Scottish Parliament when that subsection and the Order are in force.
• ( ) This paragraph does not prevent the Welsh Ministers from making provision in regulations under this Part if—
• (a) the provision is made when there is an Order in Council under section 108A(10) of the Government of Wales Act 2006, and
• (b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (8) of section 108A of that Act if the provision were made in an Act of the National Assembly for Wales when that subsection and the Order are in force.
• ( ) This paragraph does not prevent a Northern Ireland department from making provision in regulations under this Part if—
• (a) the provision is made when there is an Order in Council under section 6(8) of the Northern Ireland Act 1998, and
• (b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (6) of section 6 of that Act if the provision were made in an Act of the Northern Ireland Assembly when that subsection and the Order are in force.”.

This amendment was accompanied by the following explanatory statement:

• This amendment allows a devolved authority to make provision by regulations to prevent, remedy or mitigate deficiencies in retained EU law, under Part 1 of Schedule 2, so as to modify retained direct EU legislation or anything that is retained EU law under Clause 4. In relation to each devolved authority, a modification would be allowed where the relevant devolved legislature would not, by making the modification in an Act, breach the restriction inserted by Clause 11 relating to retained EU law, because of an Order in Council made under the power conferred by that Clause. The amendment would also allow regulations to be made, in equivalent circumstances, that are inconsistent with modifications of retained direct EU legislation etc made by a Minister of the Crown or the Bill.

The amendment provided for adding further subclauses to paragraph 3 of Schedule 2 of the Bill titled: No power to modify retained direct EU legislation etc. which prevented devolved administrations from modifying any direct EU legislation or EU law retained as United Kingdom law following withdrawal, and preventing devolved administrations creating any inconsistencies with retained EU law as modified by central government ministers. The amendment permitted such changes to be made by regulations, in accordance with an Order in Council and within the scope of the legislative competence of the administration.

The amendment seeks to extend the powers for the Scottish Parliament, Welsh Assembly, and Northern Ireland Assembly, provided for within Clause 11 of the Bill to ministers in the devolved administrations acting via regulations.

== AMENDMENT 26 ==

Amendment 26 stated:

• page 18, line 15, leave out
• “without the consent of a Minister of the Crown”.

This amendment was accompanied by the following explanatory statement:

• As the Bill stands, a devolved authority cannot exercise its powers to prevent, remedy or mitigate deficiencies in retained EU law, under Part 1 of Schedule 2, to make regulations that come into force before exit day and remove certain reciprocal arrangements, without the consent of a Minister of the Crown. This amendment and amendment 27 would replace that consent requirement with a requirement that the devolved authority consults the Secretary of State.

The amendment sought to remove the requirement for the consent of a central government minister before devolved administrations could make regulations to correct deficiencies in European Union law retained as United Kingdom law on withdrawal from the union which come into effect before exit day, or which remove certain reciprocal arrangements. 

== AMENDMENT 27 ==

Amendment 27 stated:

• page 18, line 20, at end insert “, unless the regulations are, to that extent, made after consulting with the Secretary of State.”

This amendment was accompanied by a reference to the explanatory statement accompanying amendment 26 (above).

Amendment 26 removed the requirement for the consent of a central government minister before devolved administrations could make regulations to correct deficiencies in European Union law retained as United Kingdom law on withdrawal from the union which come into effect before exit day, or which remove certain reciprocal arrangements; amendment 27 replaces the requirement for consent with a requirement to consult.

== AMENDMENT 28 ==

Amendment 28 stated:

• page 23, line 32, at end insert—
• “‘( ) This paragraph does not prevent the Scottish Ministers from making provision in regulations under this Part if—
• (a) the provision is made when there is an Order in Council under section 29(4C) of the Scotland Act 1998, and
• (b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (4A) of section 29 of that Act if the provision were made in an Act of the Scottish Parliament when that subsection and the Order are in force.
• ( ) This paragraph does not prevent the Welsh Ministers from making provision in regulations under this Part if—
• (a) the provision is made when there is an Order in Council under section 108A(10) of the Government of Wales Act 2006, and
• (b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (8) of section 108A of that Act if the provision were made in an Act of the National Assembly for Wales when that subsection and the Order are in force.
• ( ) This paragraph does not prevent a Northern Ireland department from making provision in regulations under this Part if—
• (a) the provision is made when there is an Order in Council under section 6(8) of the Northern Ireland Act 1998, and
• (b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (6) of section 6 of that Act if the provision were made in an Act of the Northern Ireland Assembly when that subsection and the Order are in force.””

This amendment was accompanied by the following explanatory statement:

• This amendment allows a devolved authority to make provision by regulations to prevent or remedy a breach of international law arising from withdrawal, under Part 2 of Schedule 2, so as to modify retained direct EU legislation or anything that is retained EU law under Clause 4. In relation to each devolved authority, a modification would be allowed where the relevant devolved legislature would not, by making the modification in an Act, breach the restriction inserted by Clause 11 relating to retained EU law, because of an Order in Council made under the power conferred by that Clause. The amendment would also allow regulations to be made, in equivalent circumstances, that are inconsistent with modifications of retained direct EU legislation etc made by a Minister of the Crown or the Bill.

The amendment, which relates to Part 2 of Schedule 2 of the Bill, titled: Complying with International Obligations, enables ministers of devolved administrations, acting in line with an "Order in Council" to make regulations to ensure international obligations are met following the United Kingdom's withdrawal from the European Union.

== AMENDMENT 29 ==

Amendment 29 stated:

• page 26, line 11, at end insert—
• ‘( ) This paragraph does not prevent the Scottish Ministers from making provision in regulations under this Part if—
• (a) the provision is made when there is an Order in Council under section 29(4C) of the Scotland Act 1998, and
• (b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (4A) of section 29 of that Act if the provision were made in an Act of the Scottish Parliament when that subsection and the Order are in force.
• ( ) This paragraph does not prevent the Welsh Ministers from making provision in regulations under this Part if—
• (a) the provision is made when there is an Order in Council under section 108A(10) of the Government of Wales Act 2006, and
• (b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (8) of section 108A of that Act if the provision were made in an Act of the National Assembly for Wales when that subsection and the Order are in force.
• ( ) This paragraph does not prevent a Northern Ireland department from making provision in regulations under this Part if—
• (a) the provision is made when there is an Order in Council under section 6(8) of the Northern Ireland Act 1998, and
• (b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (6) of section 6 of that Act if the provision were made in an Act of the Northern Ireland Assembly when that subsection and the Order are in force.”

This amendment was accompanied by the following explanatory statement:

• This amendment allows a devolved authority to make provision by regulations to implement the withdrawal agreement, under Part 3 of Schedule 2, so as to modify retained direct EU legislation or anything that is retained EU law under Clause 4. In relation to each devolved authority, a modification would be allowed where the relevant devolved legislature would not, by making the modification in an Act, breach the restriction inserted by Clause 11 relating to retained EU law, because of an Order in Council made under the power conferred by that Clause. The amendment would also allow regulations to be made, in equivalent circumstances, that are inconsistent with modifications of retained direct EU legislation etc made by a Minister of the Crown or the Bill.

The amendment, which relates to Part 3 of Schedule 2 of the Bill, titled: Implementing the Withdrawal Agreement, enables ministers of devolved administrations, acting in line with an "Order in Council" to make regulations to ensure international obligations are met following the United Kingdom's withdrawal from the European Union.

• [1] Parliament's webpage on the European Union (Withdrawal) Bill
• [2] House of Commons amendment sheet for the consideration of the European Union (Withdrawal) Bill on the 16th of January 2018

Debate in Parliament |