Recap of devolution debates & preparing for the crucial weeks ahead

When the EU Withdrawal Bill was first introduced, it looked as if it was the sweeping powers handed to ministers which would be the most contentious issue among MPs. However, what Committee Stage day 4 and 5 for the has shown is that the question of how the devolution settlements are protected and upheld in the bill is absolutely crucial among MPs, across party lines. Against the backdrop of the Irish border question in the Brexit negotiations, the debates proved even more important and constitutionally challenging than initially expected.

The Government has had 18 months to work out issues around the Irish border. The Alliance was predicting just how precarious this would be as early as September. But it is civil society groups and Alliance members such as the Human Rights Consortium andNICVA that have played a leading role behind the scenes in bringing together key concerns and priorities around the Withdrawal Bill’s impact on Northern Ireland. 

 

This week’s debates: the future of devolution settlements & the Good Friday Agreement

While the Government made no concrete concessions on Monday to amend clause 11, Paul Masterton, one of the newly elected Scottish Conservative MPs, said he would not support the bill unless Clause 11 is amended - but he did not consider Monday’s debate an appropriate time to demand amendments to the bill. It should be noted however that the chamber was far from full during the debates, which is rather disappointing given the significance of the bill, and the issues around devolution, particularly in light of developments outside of the Chamber. 

As expected, Lady Hermon (Independent, North Down) was a key figure in yesterday’s debate. She pointed out that the sweeping powers given to ministers over devolved authorities could be used to change arrangements agreed under the Belfast Good Friday Agreement (BGFA). Her new clause (NC70) set out to incorporate the BGFA principles on the face of the bill. Lady Hermon withdrew her amendment after Brexit Minister Robin Walker made a concession to deliver the principles of the BGFA by stating that  “we want to enshrine the principles in the withdrawal agreement and that Bill will legislate for that”. 

 

Taking stock: why are amendments falling?  

Many will be disappointed by the fact that the amendments voted on so far have been rejected. It is becoming increasingly clear that amending the bill is going to be a marathon not a sprint. The way things have shaped up so far, we may not arrive at a grand moment when all amendments come to pass; rather, we may see changes play out more behind the scenes than on the floor of the Chambers of the House of Commons and Lords. 

Part of the tactics on both sides seems now to be to withdraw contentious but popular amendments (such as NC70 on Good Friday Agreement and amendments 8 and 10 on the Charter of Fundamental Rights), on agreement with the government that further discussions - and even concessions - will be made behind closed doors, or possible brought forward by the government at a later date (either in Report Stage of the House of Lords). Pressure is growing that Dominic Grieve's Amendment 7 on a final vote is not withdrawn. This could lead to the robust scrutiny model for delegated legislation being diluted by the government. 

The latest breaking news yesterday was that the Chair of the Procedure Committee, Charles Walker (Conservative), has tabled amendments - with the unanimous backing of the committee - that would create a new ‘sifting committee’ in the House of Commons.Walker is also writing to Leader of the House of Commons Andrea Leadsom with draft standing orders for a new European Statutory Instruments Committee. Changing standard orders is an often overlooked but essential part of the process required to implement a new system for scrutinising delegated legislation. You can read more about the amendments and full comments from Charles Walker here.

It’s important to remember we are only at Committee Stage. It is clear that those who genuinely want to make this a better bill - and secure a better outcome for Brexit - now see Report Stage/ Third Reading in the Commons as the battleground and then after that, the Lords. 

Another thing to keep in mind is that the Government has made concessions on several issues (we are keeping a spreadsheet), the important thing now is to make sure that they make good on those promises.

Coming up the next two weeks: Debating clauses 7-9

The next two weeks are massive - and not just for the Withdrawal Bill. There are also real implications AND consequences for Northern Ireland, for the devolution settlements, for the government, and for the likelihood of a 'successful' Brexit.

Less clear is the fate of amendments on Henry VIII and the scrutiny of delegated legislation (for example the Hansard Society/Dominic Grieve's Scrutiny Amendment 3 and Chris Leslie's New Clause 6).

One thing that is certain is uncertainty.

Next week, on 12th and 13th December respectively, will be the crucial debates on clauses 7-9 which include the highly contentious issue of the Henry VIII powers given to ministers (Henry VIII powers allow ministers to make changes to an Act of Parliament, including the power to repeal an Act). 

  • Clause 7 allows UK ministers to make regulations to prevent, remedy or mitigate “deficiencies” in retained EU law, as a minister “considers appropriate” (to be debated Tuesday 12 Dec). 
  • Clause 8 gives UK ministers powers to introduce regulations to prevent the UK breaching of any of international obligations as a result of the UK’s withdrawal from the EU. 
  • Clause 9 gives UK ministers the power to make regulations as he or she “considers appropriate for the purposes of implementing the withdrawal agreement” (clause 8-9 will be debated 13th Dec). 

The vague definition of what these powers can be used for means they are open to wide interpretation by ministers. This creates the risk that the powers are used to make policy changes rather than merely technical changes.  

The Alliance recognises the impracticality of banning statutory instruments altogether. However, the lack of opportunities there will be for MPs to scrutinise what ministers will actually do with these powers in practice is highly concerning. 

The Alliance is calling on MPs to amend the bill to ensure clear limits and safeguards on the powers given to ministers in the bill.

And finally…

As ever, keep the pressure up on social media. Tweet at MPs (we've even sent them direct Twitter messages during the debates), and retweet and share info on the implications of the broad delegated legislation and the Henry VIII powers. 

Here is some useful reading and videos on the implications of delegated legislation and Henry VIII powers: 

Malene Bratlie