Written statement on European Union (Withdrawal) Bill and Devolution: Update on Clause 11

Mr David Lidington (Cabinet Office): The UK Government has tabled today amendments to the devolution provisions in the EU (Withdrawal) Bill. In parallel, a supporting intergovernmental agreement has been published on gov.uk that sets out a number of additional commitments on how the amendments, if agreed, will work in practice.

My priority has been to reach agreement with the Scottish and Welsh governments on the EU (Withdrawal) Bill. Over recent months, we have been in intensive discussions in order to find a mutually acceptable way forward. This needed to provide greater reassurance to the devolved administrations that the distribution of returning powers in otherwise devolved areas would honour the devolution settlements, whilst maximising legal certainty on how current UK frameworks will function as we work together to implement new arrangements where they are necessary.

The Government tabled amendments at Lords Committee stage that reflected the progress made on frameworks since the autumn when we started working with the devolved administrations on our analysis. Those amendments debated by Peers established a presumption that returning powers in otherwise devolved areas would flow to the devolved legislatures. The UK Government withdrew the amendments in order to continue our discussions with the Scottish and Welsh governments and consider the suggestions made by Peers during the debate and others in their consideration of the proposal.

Following Lords Committee stage of the EU (Withdrawal) Bill, officials from the UK, Scottish and Welsh governments jointly explored options put forward by all three administrations. I discussed the proposals with Mark Drakeford AM, Cabinet Secretary for Finance in the Welsh Government and Mike Russell MSP, Minister for the UK Negotiations on Scotland’s Place in Europe a number of times in order to agree a way forward.

The new proposal, which is given effect through the amendments to the Bill tabled today and the supporting intergovernmental agreement, will see decision-making powers returning from Brussels transfer to the devolved legislatures. For a small number of areas, set out in the intergovernmental agreement, we expect that common legislative frameworks may be needed in whole or in part across the UK after the UK has left the EU. Whilst these are being designed and implemented, we have proposed maintaining the existing common arrangements through the exercise of regulations in specific areas.The proposal emphasises the importance of joint working - the UK Government is under a legal duty to share any such regulations in draft so that the approval of the devolved legislatures can be sought before proceeding to the UK Parliament. It also recognises though the importance of providing legal certainty where agreement cannot be reached between the governments and where, despite this, the UK Government and Parliament consider it necessary to act; for instance, to protect the UK internal market, ensure our international obligations are met or manage our common resources. It is right that these amendments recognise that it is only the UK Government, with approval of the UK Parliament, that can act for the UK as a whole. This is built on, and now delivers in legislation, the suggestion put forward during the Lords Committee debate that there should be a presumption of acting with consent, with a means for the UK Parliament to act where agreement is not possible.

Responding to specific proposals put forward in the UK Parliament and the devolved institutions, the maintenance of existing frameworks is strictly time limited. The amendments now ensure that the regulations maintaining specific frameworks will expire five years after they come into force, if not revoked earlier, and the power to create those regulations will expire two years after exit day at the latest.

In line with the amendments tabled at Lords Committee stage, the UK Government will also be under a legal duty to report to the UK Parliament periodically on the progress made towards establishing new frameworks and therefore removing any temporary arrangements. Our preference however is to design and implement new common arrangements that are better suited to the UK as quickly as possible in the coming months and years.

The intergovernmental agreement covers a number of non-legislative commitments, which support the tabled amendments. It confirms, for instance, that the UK Government will not bring forward legislation for England where the devolved administrations are prevented from doing so by virtue existing EU frameworks being maintained. In response to the points raised in the debate at Lords Committee stage, the UK Government has committed to ensure that clause 11 regulations will not affect the operation of the Sewel convention and that related practices and conventions in relation to future primary legislation, including legislation giving effect to common frameworks, will continue to apply. In exchange, the agreement sets out that the devolved administrations will not unreasonably withhold recommendations of consent, recognising that this is ultimately a decision for the devolved legislatures.

I welcome the letter from Mark Drakeford which confirmed yesterday that on the basis of these amendments the Welsh Government will recommend legislative consent to the National Assembly of Wales for the EU (Withdrawal) Bill. This demonstrates the significant progress made on both sides to ensure we deliver maximum legal certainty with a functioning statute book on exit day. As part of this, the UK Government and the Welsh Government has agreed that the UK Government will seek to withdraw the reference to the Supreme Court of the ‘Law Derived from European Union (Wales) Bill’, known as the Continuity Bill and that steps will be taken to repeal it from the statute book.

The Scottish Government has at this stage declined to join the agreement between the Welsh and UK Government, but the UK Government remains hopeful that the Scottish Government will become party to the agreement, which builds on extensive work between the UK, Scottish, and Welsh governments over recent months and reflects the considerable and constructive policy development. Irrespective of our ongoing discussions, the UK Government will honour the commitments it has made towards the Scottish Government in these documents, including seeking their agreement before maintaining a temporary framework.

The Northern Ireland Civil Service has been kept informed of developments. Our priority is to see a restored Northern Ireland Executive. The intergovernmental agreement remains open to incoming Ministers in a future Northern Ireland Executive. I am writing to Northern Ireland parties to update them on the latest position in relation to the EU (Withdrawal) Bill.

As a result of these changes, the devolved legislatures will see a significant increase in their decision-making powers as a result of EU exit. I look forward to continuing to work with them on designing new arrangements and will continue to keep the UK Parliament updated on that progress.