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Clause 11 and all that

11 April 2018 Author: Richard Blyth

The EU Withdrawal Bill ends its passage through the House of Lords this week with the Report stage. There’s lots of talk about constitutional stuff at the moment – not just separating the UK constitution from that of the EU, but also about the nature of democracy itself – and (as I show below) about the nature of the United Kingdom.  As such, the role of an unelected chamber may come in for even more scrutiny than ever.

For this reason the House of Lords has been generally keen to avoid any chargethat it was trying to “stop Brexit” in its consideration of the Withdrawal Bill. No, to employ a phrasing style which seems to have become increasingly popular of late, the Lords’ scrutiny role is the Lords’ scrutiny role: to look carefully at legislation passed to it from the Commons and to return it usually with amendments.

We don’t yet know how the Lords will conclude their examination of the Bill, before the Bill is return to the Commons. However, we can check out some of the issues which have been the focus of debate in Committee stage in the Lords.

The RTPI covers the four UK Nations, each of which has its own planning system operating in the context of some pretty firm environmental directives from the EU, and is naturally concerned about aspects of the Bill which concern relations between the different parts of the UK.

The challenge for planning and environment is that the devolution arrangements of 1999 (including setting up four planning systems in the UK) were made on the assumption that the EU would permanently provide a common framework for environmental legislation. Now that is all up for grabs.

All participants consider that the UK should replicate common frameworks, as otherwise the operation of a “UK single market” could be quite compromised.  This is because in extreme terms you might have a factory being allowed to produce goods cheaply in one part of the UK as a result of poor environmental practice, undercutting a factory in another part of the UK working within a strong regime of environmental protection.

However, there are divergences of view regarding how such framework should be derived and about how deep it should go: “Your Lordships should appreciate that the devolved Administrations can make law but have been constrained by EU law in the areas of their competencies.

If EU law is taken away, we would expect the devolved Administrations to carry on without that constraint.” (Lord Gresford 21.3.18) (This was also  the view of the Supreme Court in the Miller case.)

The UK Government takes the line that UK ministers will replace the EU in providing common frameworks (at least to start with) partly because they maintain “the devolved settlement was [only] determined by reference to the competence that remained in Westminster in 1998 and in 2006.” (Lord Keen 21.3.18)

By contrast, the governments of Scotland and Wales consider that common frameworks should be determined by agreement between the governments of the UK ( a view shared by the RTPI ). (There is currently no government in Northern Ireland.)

Clause 11 is the part of the Bill which covers the four UK Nations. The debates around the Clause have reflected the divergence of views at Ministerial level. It left the Commons with the UK Government recognising that more work needed doing.  Lord Keen (UK Govt) said their most recent amendments would now “take the existing Clause 11 and effectively turn it on its head” and introduce a “presumption of devolution”.

But Lord Griffiths (Lab) criticised the UK Government for failing to take action on this matter for several months and argued that “even if amended as now proposed by the Government, Clause 11 would give Ministers of the Crown very wide, unilateral powers to use regulations to place new constraints on the legislative competence of the devolved legislatures”.

One of the areas where there is still distance between the parties is timing. The UK government considers that its powers (what Scottish and Welsh First Ministers have called a “power grab”) would only be temporary, but nevertheless will not put a time limit on them as this.

Lord Keen justified this by saying “would change the purpose of our discussions from designing and implementing frameworks that are fit for purpose to ones that can be achieved in the time allowed”. (This is a somewhat strange view to take in the wider context of Article 50.)

So despite the UK government’s amendments in through Lords Committee, the other governments now feel that the changes proposed by the UK government so far are insufficient and have passed their own legislation to safeguard their positions. The Scottish Parliament and the National Assembly for Wales have said such laws would be withdrawn if the UK Parliament’s Bill was improved. It would appear that the ball is now in Westminster’s  court.

The Bill is expected to complete Report stage in the Lords on 8 May and return to the Commons thereafter for consideration of Lords amendments.


Richard Blyth

Richard Blyth

Head of Policy, Practice and Research, RTPI - @RichardBlyth7