I agree with my hon. Friend.
Let me turn to the amendments from the hon. and learned Member for Edinburgh South West (Joanna Cherry), who again raised the important debate between “necessary” and “appropriate” provisions made under the Bill. Members will not be surprised to know that “necessary” is a very strict legal test. It could be interpreted by a court as “logically essential”, and where two or more choices of law to correct EU law are available to Ministers, arguably neither one is strictly necessary because there is an alternative. So Ministers need to be able to exercise discretion to choose the most appropriate course.
For example, if two agencies could arguably carry out a particular function, the UK Government—or in this case the devolved Administration—must propose that which would be the most appropriate choice. That is why we have chosen the word “appropriate” and would wish to stick to that.
The Government remain of the view that the power in clause 7(1) is crucial. We do not take delegated powers lightly, and we want them to be tailored as tightly to their purpose as possible. We have therefore listened to hon. Members’ concerns about the scope of the power in clause 7(1), and in bringing forward Government amendments 14 and 15, we have built on the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who was supported by my hon. Friend the Member for Weston-super-Mare (John Penrose).
We must ensure that we can correct all deficiencies that may arise from our withdrawal, but our amendments put beyond doubt that some of the wilder speculation on how powers in the Bill would be used will not be possible, by providing an exhaustive list of the types of deficiency and taking up the constructive suggestion of my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox). That is the act of a responsible Government responding to the debate we have listened to in the House. I hope that—
7 pm
Debate interrupted (Programme Order, this day).
The Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the amendment be made.
Question negatived.
The Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
Amendments proposed: 21, page 17, line 24, leave out “reference” and insert “references”.
This amendment is consequential on amendment 15.
Amendment 22, 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))”.
This amendment is consequential on amendment 15.
Amendment 23, page 17, line 25, leave out “a reference” and insert “references”.
This amendment is consequential on amendment 15.
Amendment 24, 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”.
This amendment is consequential on amendment 15.
Amendments 25, 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 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.
Amendment 26, page 18, line 15, leave out
“without the consent of a Minister of the Crown”.
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.
Amendment 27, page 18, line 20, at end insert “,
unless the regulations are, to that extent, made after consulting with the Secretary of State.”
See amendment 26.
Amendment 28, 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 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.
Amendment 29, 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 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.
Question put (single Question on amendments moved by a Minister of the Crown), That amendments 21 to 29 be made.—(Mr Lidington.)