European Union (Withdrawal) Bill

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

Committee (9th Day) (Continued)

15:31

Amendment 266

Moved by

[Lord Hope of Craighead]

266: Schedule 2, page 17, line 32, at end insert—
“( ) Sub-paragraph (4)(b) does not apply to regulations made under this Part by the Scottish Ministers or by the Welsh Ministers with regard to matters that are within their devolved competence.”

[Lord Hope of Craighead (CB)]

My Lords, Amendment 266, which is in my name, is in a series of groups dealing with devolution. It is in the first of five groups dealing with rather technical points arising out of Schedules 2 and 8. They precede a lot of government amendments which are in the group following my groups. I suggest that the main discussion about devolution and its consequences is best reserved for the government amendments which are focused on Clause 11 and other clauses. I am afraid my groups are rather boring, because I am dealing with a whole series of little technical points which need adjustment to some extent in the light of progress that is being made in discussions with the devolved authorities, among other points.

The theme that runs through all my amendments is the need to respect the devolution settlements in Scotland and Wales. I am confident that the Government share that sentiment. It is all a question of how the matter is worked out in points of detail. The basic rule following our withdrawal from the EU, I suggest, is that returned EU competencies in the devolved areas should be distributed among the devolved authorities in accordance with the devolution statutes. That means that what falls within devolved competence should be treated as devolved, with all that that means, and what falls within reserved matters should be treated as reserved, with all that that means.

The statutes that form the foundation for the devolution settlements—the Scotland Act 1998 and Government of Wales Acts, the latest of which was in 2017—were all built on the foundation of our membership of the EU. In each of these statutes, it was taken as accepted that it would not be within the competence of the devolved Administrations to legislate on matters relating to EU law or indeed to take executive action in relation to these matters either.

What we have in the Bill, in place of EU law, is a new creature called “retained” EU law, which is the law that comes back to us either because it is already present in the United Kingdom or is direct EU law that is coming back to us and is not yet built into our laws but requires being built in using the mechanisms described in the Bill. In the original drafting of the Bill, retained EU law is treated as simply a mirror image of EU law, so that in that original drafting—which can be seen in Clauses 11(1) and (2)—the same restriction on competence which applied in relation to EU law is applied to retained EU law. I am delighted to see that, in developing their thinking on this matter, the Government recognise that this really is not acceptable within the devolved arrangements. A much more nuanced approach to that topic can be seen in the government amendments that we will come to later this afternoon.

What I seek to do in the preliminary groups is to draw attention to various other passages in the Bill that need to be corrected in order to be compatible with the devolution settlements. In some of the groups—but not in the first—it is already clear from the government amendments that they are in almost the same position as I am as to what needs to be done.

I turn to Amendment 266, in the first of these groups, and also mention amendments 278 and 292, which raise exactly the same point in relation to different parts of the Bill. Amendment 266 deals with the power to deal by regulation with deficiencies arising from the withdrawal from the EU, which is the subject of Clause 7. It appears in Part 1 of Schedule 2 in the form that is appropriate for the activities of the devolved institutions in carrying out the exercise to which Clause 7 refers.

Amendment 278 deals with the power by regulation to prevent breaches of international obligations, which is the subject of Clause 8. The devolution mechanism for this is dealt with in paragraph 13 of Schedule 2. Amendment 292 relates to the power by regulation to implement the withdrawal agreement and the mechanism for the devolved Administrations is set out in paragraph 21 of Schedule 2.

The point to which these three amendments draw attention is a qualification that is to be found in each of these contexts on the power of the devolved authority to make provision by regulations regarding these three matters. The particular provision that I am concerned about is found in paragraph 1(4) of Schedule 2:

“Regulations under this Part, so far as made by a devolved authority … (b) may not confer a power to legislate (other than a power to make rules of procedure for a court or tribunal)”.


At first sight that qualification cuts across the concept of devolution, the effect of which is that if a matter is within devolved competence, it is for the devolved authority to take its own decisions as to how to deal with that matter, in whatever way it regards as appropriate. Under the devolution statutes, the qualification that we find in this provision and its equivalents in paragraphs 13 and 21 is new: in my experience it has not been encountered before. To an extent, therefore, these three amendments are probing, to enable the Minister to explain why this qualification has been inserted in these paragraphs and, if no reasonable explanation is given, to suggest to her that maybe the qualification should be removed, on the ground that when it comes to exercising powers within the devolved area, it should not be there.

It is right to add that Part 1 of Schedule 2, for perfectly understandable reasons, contains qualifications. For example, paragraph 2 states that:

“No regulations may be made under this Part by a devolved authority unless every provision of them is within the devolved competence of the devolved authority”.


That is a perfectly sensible provision, and consistent with the devolution scheme. What troubles me is why the qualification that I have mentioned should be there. My question is: should it be there at all? And if it should not be there, should it not be taken out? I beg to move.

[Lord Wallace of Tankerness (LD)]

My Lords, the Committee is indebted to the noble and learned Lord, Lord Hope of Craighead, for his detailed analysis of the Bill as it originally stood, and the points arising. My name is on the amendment, but I would be happy to deal with the important issues of principle that prompted me to sign some of these amendments, in an attempt to honour the spirit of the original devolution settlement, when we deal with the group containing the government amendments. Obviously, however, I support the amendment that the noble and learned Lord has moved.

[Lord Wigley (PC)]

My Lords, I too support the noble and learned Lord’s amendment, and I entirely agree with his approach—that it is best to focus on a couple of larger debates rather than going through all the minutiae at this point. However, it is important to underline the principle—that matters coming back from Brussels that deal with devolved subjects should go to the devolved authorities. It is on that principle that I hope we shall concentrate as we move forward.

[Baroness Finlay of Llandaff (CB)]

My Lords, I too thank my noble and learned friend Lord Hope of Craighead for introducing this set of amendments, to which I have added my name, so concisely and well. I start the afternoon by placing on record my thanks to Ministers, especially the noble Lord, Lord Bourne of Aberystwyth, and the Secretary of State for Wales, who have been trying to keep us—certainly me—up to date in relation to Wales. I have had correspondence during the morning. I hope that the spirit of the debate today will recognise the importance of the devolved competences, and the need to respect them and find a way forwards. Like others, I will reserve my main remarks for later, in the larger debates.

[Lord Morris of Aberavon (Lab)]

My Lords, I too support the noble and learned Lord, Lord Hope, and I too will reserve my remarks until we come to the government amendments. This is new ground; it needs an explanation, and unless the explanation is reasonable I will certainly oppose the provision.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this debate will be an easy one for the Minister to respond to. I entirely agree with what has been said, and all I want to add is that although these are technical changes, they need to be dealt with in the spirit that we shall move on to later. Our worry, particularly at the beginning, was that it took some time for the Government to recognise that the expectation that not everything retained was devolved was a legitimate one from the devolved Administrations. Perhaps now there is that willingness to engage. We may regret that it took a little time but we seem to have got there. Perhaps one of the issues was that the Joint Ministerial Committee has not worked in the way we might have expected in the past. Brexit showed that up in a sense, but this is bigger than a Brexit issue. Therefore, any changes to the status of that body are probably not for this Bill to deal with. However, I hope that at some point the Government can revisit whether it needs to be given either statutory authority or some greater authority in the future. Although these amendments may be technical in the words of the noble and learned Lord, Lord Hope, with his, as ever, diplomatic use of the phrase, “They need adjustments”, I think he means that we want the Government to move on them. I hope the spirit that I think is now abroad will enable us to do that.

15:45

[Lord Thomas of Gresford (LD)]

My Lords, I do not agree that these are simply technical amendments. The issues arise from Clause 7, headed, “Dealing with deficiencies arising from withdrawal”, which gives a Minister of the Crown power to,

“make such provision as the Minister considers appropriate to prevent, remedy or mitigate”,

deficiencies. Clause 8 of the Bill that we have discussed at such length deals with a Minister of the Crown making regulations as he considers appropriate,

“to prevent or remedy any breach, arising from the withdrawal of the United Kingdom … of the international obligations of the United Kingdom”.

Clause 9 is headed, “Implementing the withdrawal agreement”, and similar powers are given to a Minister of the Crown. Schedule 2 is headed, “Corresponding powers involving devolved authorities”. Part 1 of that schedule deals with deficiencies and Part 2 with international obligations. Part 3 is headed, “Implementing the withdrawal agreement”. One would have expected corresponding powers for Welsh Ministers and Scottish Ministers in those areas within their own competences, but each of those parts of Schedule 2 says that regulations may not,

“confer a power to legislate”.

Therefore, unlike the powers granted to a Minister of the Crown in the UK Parliament, the powers to legislate are withheld from Ministers in the devolved Assemblies. That is the critical issue, which is a matter of principle and not at all technical.

[Lord Hennessy of Nympsfield (CB)]

My Lords, I regret that I was unable to speak at Second Reading. I promise that I shall not make up for it this afternoon; I shall be very brief.

With the clauses before us this afternoon and evening, we have reached a truly load-bearing piece of the Bill. In my more anxious moments I sometimes think that the very weight of the kingdom is resting upon it, and that, if it is misjudged, the chances of the union eventually crumbling would be worryingly greater.

I do not doubt the Government’s good faith in the negotiations within the Joint Ministerial Committees but, as other noble Lords have already mentioned, the devolutionary spirit of 1998 needs to suffuse the discussions in those committees’ deliberations, and, indeed, ours in both Houses of Parliament.

If the European question infects and envenoms the union question, the country will suffer a self-inflicted blow of immense proportions. Of course, there is a need to retain an effective internal market within the UK. That is absolutely crucial, but the sustenance of the union—the essential quiddity of our nation—is paramount, which is why I express my wholehearted support for the thrust of the amendments in the name of my noble and learned friend Lord Hope of Craighead.

[Baroness Goldie (Con)]

My Lords, first, I both echo and reaffirm what the noble and learned Lord, Lord Hope, said: there must be respect for the devolved Administrations. I emphasise that as emphatically and cogently as I can at this Dispatch Box, and I confirm that the Government are wholly committed to demonstrating that respect.

As a number of your Lordships observed, the Government have tabled amendments to Clause 11, and we will give them our full consideration shortly. We have to acknowledge that the position we ultimately reach on Clause 11 will have implications for related policy on devolution in the Bill. Indeed, the noble and learned Lord, Lord Hope, acknowledged that. I can reassure your Lordships that we are mindful of the need to revisit the approach we have taken for the Schedule 2 powers in the light of that forthcoming debate on Clause 11. I therefore thank the noble and learned Lord Hope for instigating this debate on whether the devolved Ministers should be permitted to sub-delegate their Schedule 2 powers.

Amendments 266 and 278 would remove this restriction from the correcting power and the international obligations power for Scottish and Welsh Ministers and for Northern Ireland departments. Amendment 292 relates to the withdrawal agreement power and would have a wider effect, but I understand that the intention is the same. I should be clear that we do not oppose in principle the idea that these powers should be able to be sub-delegated to and by devolved authorities where appropriate cause is shown. This is already evident in the Bill. Noble Lords will see that this restriction—for instance, in paragraph 1(4)(b) of Schedule 2—is already qualified to allow for the sub-delegation of a power to make rules of procedure for a court or a tribunal. This ensures that the power can be sub-delegated where appropriate to ensure judicial independence. We have invited the devolved Administrations to offer any examples of where sub-delegation would be needed, and we have made clear that where they identify such examples we shall consider drawing further exceptions to the restriction. So far, no examples have been given.

It has been our intention—this may surprise the Chamber—not to make the powers in this Bill any wider than is appropriate. Opening up the possibility of sub-delegation by devolved Ministers in all cases where no prior need has been demonstrated does not align with this intention. However, I have listened to the contributions made this afternoon and have heard the concerns that your Lordships have expressed today. I have taken particular note of the question of respect as it relates to the perceived unfairness of a possible disparity between the devolved ministerial powers and the corresponding powers for UK Ministers.

[Lord Thomas of Gresford]

I do not understand the expression “sub-delegation” that the Minister uses. Does she suggest that when powers are given to Ministers in the devolved Administrations, that is “sub-delegating”? I do not think that is the appropriate term.

[Baroness Goldie]

It is merely a generic description of the power to exercise delegated power-making by regulation, as encompassed by these provisions in the Bill.

I reiterate that I accept that these are serious points. They deserve serious consideration, and I can confirm that the Government are prepared to look again at where such a change may be merited for the use of the powers by the devolved Administrations in this way.

[Lord Morris of Aberavon]

May I pursue the intervention made by the noble Lord, Lord Thomas? “Delegated” is not an appropriate term here; they are devolved powers, not delegated powers.

[Baroness Goldie]

I accept the distinction drawn by the noble and learned Lord. I am trying to address the amendments of the noble and learned Lord, Lord Hope, in the context of what the provisions do and his concern that they appear to cut off what he considers an entitlement of the devolved Administrations. I have tried to explain why, inevitably, these aspects are interlinked with the wider debate we will have on Clause 11.

The Government are prepared to listen to what has been said. I have indicated that we are prepared to look again at these provisions. I thank the noble and learned Lord for bringing forward his amendment, but in the circumstances I urge him to withdraw it.

[Lord Hope of Craighead]

My Lords, I am grateful to the Minister for her remarks. The use of the expression “sub-delegation” gives some insight into the thinking of the Government. As was pointed out, “delegation” is not an appropriate word to use where matters have already been devolved—by the statutes to which I referred earlier—to both Wales and Scotland. “Sub-delegation” is a very odd word to use. We are talking about a power within the devolved competencies for the devolved authorities to legislate, or confer a power to legislate, by whatever means they think appropriate. So I am encouraged by the fact that the Minister is prepared to look at this again. I think that she will agree with me that much of what we will be discussing in this little group of amendments is work in progress, as we try to work through the detail of the scheme that the Bill sets out. I am encouraged by her reply.

I also thank all those who have contributed to this brief debate. On the word “adjustment”, I refer to what the noble Baroness, Lady Hayter, was saying. The Minister will remember, from her early days in the law in Scotland, that the word “adjustment” is sometimes used to take things out as well as to put things in. It is a word that came naturally to me as a means of dealing with bits in the statute that require to be trimmed, perhaps by removal, as well as by refining the language. I am grateful to the noble Lords, Lord Thomas of Gresford and Lord Hennessy of Nympsfield, for their emphasis that we are dealing with matters of great significance and importance. When I said that these were just technical points, I did not mean to suggest otherwise; rather, I was suggesting that the main thrust of our argument will be reserved for when we come to look at the Government’s amendments.

Lastly, on the contribution of the noble Baroness, Lady Finlay of Llandaff, I join in her tribute to the efforts that the noble Lord, Lord Bourne, is making to discuss matters with us and to reach as much common ground as possible. I, too, have had useful meetings with him and I am grateful to him and to his team for the attention they have given to the points I have been raising. As I have said, this is work in progress; I am encouraged by what the Minister said and, in the light of that, I beg leave to withdraw my amendment.

Amendment 266 withdrawn.

Amendment 267 had been withdrawn from the Marshalled List.

Amendment 268

Moved by

[Lord Hope of Craighead]

268: Schedule 2, page 18, line 39, at end insert—
“( ) This paragraph does not apply to regulations made under this Part by the Scottish Ministers or by the Welsh Ministers with regard to matters that are within their devolved competence.”

[Lord Hope of Craighead]

My Lords, this is the first of another group of amendments, all of which are in my name. Amendment 268 refers to a provision in paragraph 4 of Part 1 of the schedule, which states that no regulations made under that part by a devolved authority prevent it from conferring functions that correspond to functions under EU tertiary legislation. Amendment 296 relates to the same restriction which we find in paragraph 24. Amendments 280 and 294 deal with another restriction—that no regulations may be made under that part by a devolved authority which modify any retained direct EU legislation or anything which is retained law by virtue of Clause 4.

These are rather complicated matters to explain, but they are all examples of restrictions on the power of the devolved authorities to do what they are supposed to do under Part 1 of the schedule in the two respects mentioned in these passages. The whole point is the same one I mentioned before in regard to the previous group—that these are restrictions on actions which otherwise would be taken within devolved competence. The fact that there are restrictions at all is contrary to the philosophy on which the devolution system has been based. It is a given—as we have seen already in the passage I read out earlier—that, if the powers are exercised, they can be exercised only within the devolved area. There is no question of their moving into the reserved areas as that is not within their competence; if the matter is within their competence, the argument is that they should not be inhibited from doing what they consider to be right.

Tertiary legislation is an animal that has not been referred to much in our debates in this Committee. A fairly lengthy definition of it is to be found on page 10 of the Bill, but it is not obvious to me why the devolved authorities should not be able to deal with tertiary EU legislation in the same way as any other EU retained legislation. So, with that rather brief introduction, directed particularly to Amendment 268, I beg to move.

16:00

[Baroness Finlay of Llandaff]

My Lords, again I am grateful to my noble and learned friend for the way in which he has introduced this group of amendments. It is absolutely essential that we remember the principles of legislative competence and what has been devolved, and that we try to cut across the technicalities. It is also important to remember that the devolved Governments of Scotland and Wales should not be faced with any implementation framework in which they will have no decision-making power in negotiations and which intrudes on their area of competence.

Our withdrawal from the EU seems to be quite a tangled web. The job of those sitting in Cardiff and Edinburgh is to serve their constituents and defend the rights that they fought so hard to earn in the first place; it is not to return such rights in legislation to Westminster without being sure that it serves their populations well. That is why it becomes so important to make sure that there is an equality of voice in working out these different aspects of legislation.

When it comes to tertiary legislation, it is even more difficult to understand why there would not be such an equality of voice—I find that quite bizarre. I am afraid that, as the noble Baroness, Lady Hayter, said, the way that the Joint Ministerial Committee has worked to date has not been as good as it might have been, and I hope that today will mark a watershed and a complete change in those relationships.

It is important to remember that EU law was in place when we went to devolution. Therefore, as things come down from Europe, they should drop equally into the three Governments of Wales, Scotland and England, and, where they affect the whole of the UK, they should be looked at on a UK-wide basis. However, that does not mean that all of a sudden Parliament has a complete say over what goes on in the devolved Administrations. There is an equality of voice that must not be eroded by the process.

Therefore, these amendments are really important and I am glad that the Minister said that she will look at them carefully. It is very difficult to know which bit we should look at in great detail and tweak—although it will be more than tweaking; it will probably need a massive rewrite. It is not for the Committee to do that; it should simply raise the concerns, with the rewriting to be done afterwards. We will come to the main debate soon.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I want to reinforce the important points made by the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Finlay. I have spoken before in your Lordships’ Chamber about the importance of clarity in the devolution settlement and the difference that it has made to the relationships between the Scottish Government, the Scottish Parliament, the UK Government and the UK Parliament over these last 19 years. The lack of serious or unresolvable dispute about where the legal powers lie has been the result of that initial clarity in 1998.

The one area where there were problems, particularly in the early years, related to the fact that the Scottish Parliament and the Scottish Government had responsibility under the Scotland Act in relation to EU law. The difficulties and legal challenges, both inside Scotland and to the European Court in relation to the actions of the Scottish Executive, the Scottish Government and the Scottish Parliament, were in relation to that relationship.

Therefore, clarity is required as part of the debate and discussion on the Bill—perhaps not today, given the assurances from the noble Baroness, Lady Goldie, on the Government’s behalf, but certainly following the debate on Clause 11. It is vital that we have greater clarity and the right principles behind whatever replaces the current wording in the Bill on the matters raised by the noble and learned Lord, Lord Hope.

[Lord Thomas of Gresford]

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. Previously, there had been no constraint on their making law within their competencies from Westminster, only from Brussels. Taking away Brussels suddenly imposes Westminster constraints on the devolved Administrations in areas such as agriculture, which have been devolved to them, but it also means that the devolved Administrations cannot make any changes to the law at all—even when it is, for example, an agricultural matter. It is not simply taking away the constraint of Brussels, but imposing something entirely new. Westminster politics comes into it then; considerations that have not emerged into the arena before suddenly become important. That is why these are matters of principle and deeply difficult to resolve.

I was so pleased to hear the noble Lord, Lord Hennessey, say that this was such a difficult area because I suggested in my Second Reading speech that we should have taken devolution completely out of the Bill. At that point, the Government would have had no problem in getting legislative consent from Scotland and Wales and could have sorted out devolution issues as a completely separate matter. Now, your Lordships are listening—in the context of the EU withdrawal Bill—to a very difficult issue.

[Baroness Randerson (LD)]

My Lords, I want to add to what my noble friend just said by making reference to the politics of all this. The reality is that powers that came from Europe were seen as politically very neutral, in a party-political sense; but once those powers and restraints are placed with Westminster, raw party politics immediately become a key issue. The tension therefore increases. The Minister will be aware of this from her own experience. Whereas a power that was passed from or constrained by Europe is seen on a pan-European basis—where party politics could not possibly be applied in a local sense—when it becomes a decision by Westminster, party politics are inevitably written into it, whether in favour or against. I am sure the Minister will understand the point I am making from the Scottish experience; it certainly applies to my Welsh experience.

[Baroness Goldie]

My Lords, I thank the noble and learned Lord, Lord Hope, for tabling these amendments. They would have a significant effect because they seek to remove the restrictions on the ability of these powers to modify direct retained EU legislation and to confer functions that correspond to the making of what is termed EU tertiary legislation. I am grateful for the thoughtful and considered contributions that have emanated from a wide range of experience, not least of the devolved Administrations. As noble Lords have noted in their speeches, this issue is again closely tied to the final policy position on Clause 11.

These amendments concern the question of parity, as the noble Baroness, Lady Randerson, has just pointed out, between Ministers in the devolved Administrations and UK Ministers. They also address the matter of who should be responsible for fixing EU legislation in areas that intersect with areas of devolved competence which currently have uniform application across the UK. I apologise again for emphasising the point, but we need to consider how all of this will work in relation to the wider changes we have tabled in Clause 11. It is important to recognise that the answer we reach on that question in the subsequent debate will necessarily inform the answer to the questions posed in this one.

The Government have been clear that the powers are conferred on the devolved Administrations so as to ensure that we do not disrupt the common frameworks currently provided for by EU law in areas where a framework will need to be retained. That might be to protect our internal UK market, our common resources or any of the other criteria that we have agreed with the devolved Administrations and published in the Joint Ministerial Committee communiqué in October last year. These are laws that apply directly, exactly as written, across every part of the UK, and indeed at the moment across every part of every member state. As such, these are by their nature laws that the devolved institutions currently have no power to modify or to diverge from. As we consider where we shall and shall not need frameworks, it is clear that in many of these areas, competence will pass to the devolved Administrations on exit day.

However, I would suggest to noble Lords that before we get to that point, we have to ensure that these laws function properly. We owe that to our communities and businesses and to individuals—that there can be certainty as to the laws that will apply to all those groups on the day we leave the EU. Carving up the effect of these laws in different parts of the UK or expecting to have different laws to achieve the same effect for different parts of the UK might undermine that certainty. It is the Government’s view that where in the first instance these laws apply at the UK level, we should also consider the corrections to those laws at the UK level. But let there be no doubt that the devolved Administrations will be an integral part of this process. We shall consult them on any and every change to retained direct EU legislation in an otherwise devolved area made under the powers in this Bill. We shall need to reflect on this alongside the debate on Clause 11.

Whatever the outcome in relation to devolved competence more widely after exit day, at a minimum we must retain this limit in those areas where, working with the devolved Administrations, we have identified that we need to retain a framework. Otherwise, we put at risk some of the issues to which I have referred, such as the internal market, the management of our common resources and even our ability to strike the best possible trade deals.

I hope that this provides some reassurance to the noble and learned Lord, Lord Hope, that we are alive to the interaction of this policy with Clause 11. We are considering it in parallel as our discussions continue with the devolved Administrations. The end result must be that both Clauses 10 and 11 dovetail and that they are not in conflict. On that basis, I commit to continuing to keep the noble and learned Lord and this House up to speed on how our policy thinking is developing in these areas. In those circumstances, I would ask him to withdraw his amendment.

16:15

[Lord Hope of Craighead]

My Lords, I am grateful to the Minister for her very helpful reply. Perhaps this is an example of another kind of adjustment—to return to the noble Baroness, Lady Hayter, picking up my use of that word. Rather than taking out or adding in, it is a case of refinement. I appreciate exactly what the noble Baroness meant in her reference to frameworks. In regard to tertiary legislation, it might be that a slightly less blanket provision could be used; that is, replacing the blanket restriction on competence with something more targeted to the particular needs to create and preserve the internal market that we are all looking forward to within the UK. What I take from what the Minister has said is that she will look carefully at this and consider to what extent she can come back on Report with something which meets the points that I have been making.

The noble Lords, Lord Thomas and Lord McConnell, referred to the reasoning behind the reference to EU law in the original statutes. EU law shared something in common with rights under the European Convention on Human Rights. In both cases, when the Scotland Act was being designed, it was appreciated that the obligations which gave rise to convention rights and rights and obligations under EU law were based on treaties. So far as those treaties were concerned, in the framing of the Scotland Act and the Wales Act it was thought necessary to preserve the obligations that the United Kingdom had under the treaties and make sure that they were protected in the way that we found in the statute as originally framed; in other words, there was no competence to deal with matters which were the subject of those important treaties. The point made by the noble Lord, Lord Thomas, was that once we leave the EU, that treaty fetter disappears completely; what we have is retained EU law, which is a completely different creature from EU law as we know it today. That is why it is important to appreciate that retained EU law is not a mirror image of EU law, although the subject matter and the detail are no doubt exactly the same.

I shall come back to that in the next group of amendments, to which I shall speak in a moment, because they raise the same issue. For the time being, I beg leave to withdraw the amendment.

Amendment 268 withdrawn.

Amendment 269 had been withdrawn from the Marshalled List.

Amendment 270 not moved.

Amendment 271 had been withdrawn from the Marshalled List.

Amendment 272 not moved.

Amendment 273 had been withdrawn from the Marshalled List.

Amendment 274

Moved by

[Lord Hope of Craighead]

274: Schedule 2, page 21, line 29, leave out “and retained EU law”

[Lord Hope of Craighead]

My Lords, this is the first amendment in a very much larger group, not all of which is composed of amendments in my name. Although the matter is lengthy and rather complicated, I can deal with it comparatively briefly and, I hope, in a way that is intelligible to your Lordships and in particular to the Minister.

Amendments 274 and 275 are related to paragraphs 9 and 10 in part 1 of Schedule 2, the former dealing with Scotland and the latter with Wales. I am concerned about the provision which states:

“A provision is within the devolved competence of the Scottish Ministers for the purposes of this Part if … (a) it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament (ignoring section 29(2)(d) of the Scotland Act 1998 so far as relating to EU law and retained EU law)”.


As I understand that provision, it excludes from competence provisions relating to retained EU law. That is a theme that runs through most of the amendments in this group. It is exactly the same point as we have been discussing in the earlier groups, the question being whether it can possibly be right that the devolved institutions should be prohibited from dealing with retained EU law when they work through the exercises with which part 1 of Schedule 2 is concerned. All the amendments in this group that are in my name raise that issue, except Amendment 363, which I will come back to in a moment. Some of them will require to be superseded in light of the Government’s amended version of Clause 11. I would have thought it was a fairly simple exercise for the Minister and her team to go through these various amendments, which I need not enumerate, just to be sure that the various passages to which I have drawn attention are corrected in light of the revised version of Clause 11.

Amendment 363 relates to the right of the Advocate-General to take part as a party in criminal proceedings so far as they relate to an issue as to whether legislation or an act of a Scottish Minister is incompatible with convention rights or EU law. Of course, the interest of the Advocate-General, if he wishes to enter the proceedings, is to ensure that the devolved institutions act within their competence in relation to these matters. What we have in paragraph 18 is a simple substitution of a reference to “retained EU law” for the reference that is in the statute at the moment to “EU law”. The competence restriction on EU law will of course be removed when we leave the EU, but once again I make the point that simply to substitute a reference to “retained EU law” is not the right thing to do: it is not a mirror image of EU law. Indeed, the fetter that applied to EU law should not apply to retained EU law. The amendment is simply designed to delete from the relevant section of the Criminal Procedure (Scotland) Act 1995, which would no longer have any relevance. I leave that point with the Minister to look at along with all the others.

[Lord Foulkes of Cumnock (Lab)]

I have been listening very carefully. Can the noble and learned Lord explain again, in simple terms, why retained EU law on a particular area, such as agricultural support, is different from current EU law? I do not understand why he says it is different.

[Lord Hope of Craighead]

In a sense, retained EU law is simply repeating what is to be found in EU law. The point is that the treatment of it, from the point of view of the competence of the Parliament and the Ministers, is different. Under the Scotland Act as it is, Ministers have no power to legislate or deal with EU law, because that is subject to the restriction in Section 29 of the Scotland Act, and also in Section 53, so far as Ministers are concerned. My point is that that restriction disappears because we are no longer bound by the treaty arrangements that gave rise to the restriction in the first place. I think the noble Lord is pointing out that much of retained EU law is already part of our law because it has already been built in to our legal system. The point is that I am suggesting that the Parliament and the Ministers should be able to deal with retained EU law in the same way as they can deal with any other domestic law, as long as it is not reserved.

[Lord Foulkes of Cumnock]

I understand that—these debates are very useful. However, I am getting worried: as the noble and learned Lord knows, I am a strong devolutionist and a former Member of the Scottish Parliament, but in the last hour I have come to understand and sympathise with what the UK Government are arguing, which is a bit worrying.

[Noble Lords]

Oh!

[Lord Foulkes of Cumnock]

No, it is a serious matter. Surely there are areas that are dealt with now by the European Union because we have all thought that it was right to have standards for the European Union Common Market. Are the UK Government not arguing that if we have a UK common market—which we will in certain areas—it is sensible to have the same standards throughout the United Kingdom? Is that not a valid argument?

[Lord Hope of Craighead]

If the noble Lord will forgive me, I was suggesting that we deal with that issue when we look at Clause 11 and the government amendments. The noble Lord raises a very important point, but it does not really relate to my amendments. I think it is much more fundamental and we will need to discuss it in light of the discussion of the reform of Clause 11. I hope I have answered the noble Lord’s question. There is a basic difference between the competence arrangements relating to EU law, which does not apply once we leave the Union, and retained EU law, either domestic or direct, as it comes in under Clauses 2 or 3.

Having digressed somewhat in my reply, I again thank the Minister for her helpful reply. I will be happy to withdraw the amendment in due course; however, there are others in the group that others may wish to speak to.

[Lord Wigley]

My Lords, I will strike a different note as I put forward what are perhaps the substantive arguments—as we see them—in relation to these issues.

Amendment 304 has for some reason been grouped with these amendments, which does not make an awful lot of sense. It stands in my name and that of my noble friend Lord Hain, and is based on one of the key amendments drafted by the Welsh and Scottish Governments ahead of the Bill’s passage through the other place. That amendment is also covered by part of Amendment 303, which surprisingly will not arise until very late tonight. None the less, Amendment 304 goes to the heart of the widespread criticism of Clause 11 as it currently stands—I am aware that amendments may come forward later—and lifts the restriction it places on the devolved parliaments in relation to EU retained law.

My fear—and that of all parties in the National Assembly—is that giving UK Ministers control in the EU withdrawal Bill over areas of retained EU law relating to matters which fall under devolved competences will, in effect, tend to normalise direct rule from Westminster in these areas. Given the powers under this and other recent legislation which enable Ministers at Westminster to amend devolved legislation by order, this will, in effect, undermine Welsh sovereignty in areas which are devolved to Wales and blur the responsibility of the National Assembly. Furthermore, there is a fear that this will set a precedent for this and future UK Governments, who may well be tempted when a devolved Government act in a way with which they disagree, to find a justification to intervene. This would be particularly galling if it were on issues where Welsh interests were seen to be in conflict with England’s perceived interests—perhaps validly so. The Prime Minister has, of course, pledged never again to “devolve and forget”. That can be interpreted in more than one way, and in this context it has generated quite a few ripples of unease.

In order to persuade the devolved parliaments to agree to legislative consent orders—which are currently not forthcoming from either the Scottish Parliament or Welsh Assembly—the UK Government have tabled a set of amendments to Clause 11 which we will consider later. The Government’s proposals would provide a power to make regulations in certain devolved areas currently subject to EU law, and would prevent the devolved legislatures from taking action in the areas covered by those regulations. Whether noble Lords in this Chamber like it or not, this is regarded by members of all parties in the National Assembly as reflecting a growing approach by the UK Government—namely, in areas where devolution may be a nuisance or a hindrance to the UK Government’s agenda—to roll back devolution, or at the very least to attenuate it, and to centralise certain powers in London. The Welsh and Scottish Governments share this fear. That is why, in the Senedd—thanks largely to the lead of my inspirational colleague Steffan Lewis AM—the Welsh Government have introduced a continuity Bill to safeguard Welsh devolution. That Bill is currently progressing through its legislative steps with all-party support. Assembly Members are taking such a step not as a threat but as a safeguard: they still hope that there may be a meeting of minds between them and Westminster, and I understand they have even drafted a sunset clause which could be triggered if such an agreement were achieved. They look to this Chamber today to take a stand in facilitating that meeting of minds and to ensure that the centralist direction to which they feel they are being subject is brought to an end.

Alongside the amendments which the UK Government have tabled, they have published a list of 158 areas of intersection of devolved competences with EU law, noting that they envisage regulations temporarily restricting devolved legislatures’ competence—in advance of more substantive arrangements in primary legislation —in up to 24 of those areas. Taking such steps is, rightly or wrongly, widely perceived as a power grab. These 24 areas, all of which apply to both Wales and Scotland, cover a significant part of devolved responsibilities, including agricultural support, fisheries management, environmental policy, public procurement and food standards. These areas are vital for industries and businesses in Wales, and for the Welsh economy. The amendments would allow the UK Government to make regulations in any or all of these devolved areas.

16:30

I wholeheartedly agree that common frameworks are appropriate in some cases, given the current role of EU law in regulating action in all parts of the UK—

[Lord Foulkes of Cumnock]

Hear, hear.

[Lord Wigley]

Indeed—the very point that the noble Lord, Lord Foulkes, was making earlier; I agree. Given the current role of EU law regulating action in all parts of the UK in such subjects, partly to facilitate a single market with a level playing field—the point that the noble Lord was making—and partly to ensure that in matters which by their nature cannot be constrained by political borders, there is a coherent common approach. I accept this. Indeed, last week I proposed an amendment to provide a framework agreement for environmental policy—which, quite amazingly, the Government rejected. However, if there are to be such frameworks, the devolved Administrations and the devolved legislatures, whose legislative competence is being constrained by such frameworks, must surely agree the proposed steps jointly with the UK Government. I have tabled an amendment to an amendment in the name of the noble and learned Lord, Lord Mackay, providing a mechanism to this end. That will be debated later so I will not anticipate that debate now.

Let us be clear: unless there is agreement between Westminster and the devolved Governments on these matters, the continuity Bill will be enacted by the Assembly and will take precedence in Wales. Surely it is time for the UK Government to reconsider what is seen as an obdurate stance and agree a sensible, balanced and respectful way forward.

[Lord Wallace of Tankerness]

My Lords, I had not intended to speak in this debate because in many respects government Amendment 302A answers the initial point of concern—that the current limitation on competence in the Scotland Act under European Union law would be replaced by a restriction on retained EU law. Of course, under the new amendment that has gone, but there is a wider point on which the Minister could perhaps assist the Committee, which arises from the draft agreement on the transitional period.

As I understand it, during the transitional period basically the acquis will still apply. I have looked at Articles 4 and 82 of the draft agreement. Article 4 says:

“Where this Agreement provides for the application of Union law in the United Kingdom, it shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States”.


Article 82 says:

“The Court of Justice of the European Union shall continue to have jurisdiction for any proceedings brought before it by the United Kingdom or against the United Kingdom before the end of the transition period”.


We will have a lot of debates this afternoon about whether UK Ministers, Scottish Ministers or Welsh Ministers will be exercising powers after exit day, but can the Minister indicate how the United Kingdom Government see the position? If we are going to have to abide by European Union law having the same legal effect as it produces in the Union, is there any room for movement at all? How is effect going to be given to that if, under Clause 1 of the Bill, the European Communities Act 1972 has been repealed?

[Lord Thomas of Gresford]

My Lords, I cannot allow the noble Lord, Lord Foulkes, to continue with his heresy that the Government are right in what they are doing. I noticed the shock that passed over the face of the noble Lord, Lord Forsyth. What I think the noble Lord, Lord Foulkes, does not appreciate is that the proposal of the Government is to introduce frame- works into this country to save the internal market of the UK, whether or not the devolved Administrations consent. All they are prepared to do, as the noble Baroness the Minister said in response to something earlier, is to consult—they are not necessarily seeking agreement. That is where he has it wrong.

[Lord Foulkes of Cumnock]

No, I have it absolutely right. I know that that is precisely what it is. I have said that on previous occasions. But, with respect, it was the couple of speeches that the noble Lord, Lord Thomas, made earlier on that moved me in the Government’s direction.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged for all the contributions at this stage of the debate. I appreciate, as do other Members of the House, that when I move the government amendment to Clause 11, we will embrace a debate about the consequences of that amended clause and the significant change it makes to the way in which we are going to deal with, among other things, devolved competences. But as the noble and learned Lord, Lord Hope, observed, his amendments are consequential in a sense on what is going to happen with regard to Clause 11. In that context, I point out that we had already indicated our intention to move the amendment to Clause 11 and then withdraw it, in order that the consequences for the schedules to the Bill can be addressed more properly when we reach Report. However, there is a more fundamental issue underlying this, which has been highlighted by the use of the terms “consult” and “consent”. It is really rather fundamental. Because these are probing amendments, I will just outline the Government’s thinking with regard to this area of the Bill and how it will work. I am sorry if I am going to appear somewhat repetitive about some matters of history that have been touched upon already, but perhaps your Lordships could bear with me, if but for a moment.

In 1972, the UK Parliament of course transferred certain competences to the EU. Having done so, it limited its competence to legislate for the United Kingdom. When it came to the Scotland Act 1998 and the Government of Wales Act 2006, that Brussels competence, as I will term it, had already gone. When it came to considering the scope of the divorce settlement, the matter of the powers held by the European Union in Brussels was not in scope for consideration as part of devolution. They had gone, by virtue of an international treaty implemented in domestic law pursuant to the ECA 1972. The devolved settlement was determined by reference to the competence that remained in Westminster in 1998 and in 2006.

[Baroness Hayter of Kentish Town]

My Lords—

[Lord Keen of Elie]

I am going to elaborate on what happens to the competences in Europe. I wonder whether the noble Baroness will bear with me just for a moment.

[Baroness Hayter of Kentish Town]

But I wanted to challenge what the Minister just said. The competences were not actually removed from us. We agreed to operate within the framework, but the idea that we actually gave up those competences in the way described would perhaps not be accepted, as such. We agreed that the EU had rights to make laws in certain areas, but that is not the same as saying, “This is no longer our responsibility”.

[Lord Keen of Elie]

With respect, pursuant to our international treaty obligations, we bound ourselves at the level of international law to allow the EU to exercise competence in areas where previously the UK Parliament would have exercised it. That was then implemented in domestic law by virtue of the 1972 Act. Of course a sovereign Parliament is always able to repeal the 1972 Act, as it is now doing, but so long as it remained in place, and so long as we remained party to the relevant treaty—which became treaties—we were bound in that context. I do not entirely agree with the analysis, but I do not believe it is material for the present purposes, if I may respectfully say so.

Once Brussels had certain competences, it then exercised them. It was important that Brussels should exercise them in one area in particular, which was the development of the EU single market, as no one else could have exercised jurisdiction over a single market in the EU. The idea that 12—now 28—individual jurisdictions could have maintained the single market is self-evidently untenable, so Brussels exercised that jurisdiction, for very good reason. When we leave the EU, we will find ourselves in the position where we want to maintain an internal single market in the United Kingdom; the noble Lord, Lord Foulkes, referred to that, while the noble and learned Lord, Lord Hope, said we are looking forward to the internal market in the United Kingdom. We have to bear that in mind. What Parliament is in a position to legislate for a UK single market? The answer to that is the Parliament that has jurisdiction for the whole United Kingdom. I will come on to the issue of devolved competence in a moment, but generally speaking if you are going to maintain a single market you need a legislative power that is able to do that for the single market.

Lest anyone interrupt just yet, I add that of course by their very nature the devolved Administrations, parliaments and assemblies have responsibility for devolved powers in their respective nations. We respect that, of course, but there is an issue here that has not yet been mentioned. We identified, on the basis of analysis that was carried out with the devolved Administrations, that there were some 153 areas of competence where—

[Lord McConnell of Glenscorrodale]

Before the Minister moves on to the detail of those competences, I want to challenge the analysis that he has given about the comparison between the UK single market and the EU single market. No one would have suggested at any time in the last 26 years that the relationship between the United Kingdom and the EU single market, and the decision-making around the EU single market, would have been such that the decision-making on the EU single market would have been left solely to the European Parliament and the European Commission. It was not. The decision-making around the EU single market was done primarily by the Council of Ministers, and in the Council of Ministers some aspects of that single market were determined by absolute consent, where the UK had a veto, while some areas were determined by qualified majority voting. We cannot replicate that arrangement with one that leaves the sole decision-making power after consultation, without consent, with the UK Parliament and the UK Government in relation to areas where currently the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly would have legislative competence.

[Lord Keen of Elie]

I do not entirely agree with the noble Lord’s analysis but for the present purposes I am not sure that it is particularly relevant. What is relevant is this, if I can continue: we have identified about 153 areas in which, upon our leaving the EU, competences will return and touch upon areas of devolved competence. These are areas that the devolved parliaments and assemblies previously had no engagement with because they lay in Brussels, but they are coming back and touching upon these areas of devolved competence and we recognise that.

However, some of these areas of competence are critical to the maintenance of a single market in the United Kingdom, as I will illustrate in a moment. Those therefore had to be addressed. We did that by engaging with the devolved Administrations and assemblies in the context of the Joint Ministerial Committee negotiations. I take the point made by the noble Baroness, Lady Hayter: there may be criticisms of that process but I respectfully suggest that that is not for this Bill. It is important to notice the achievements made by that committee in this context. In particular, noble Lords may have received a copy of the communiqué of 16 October 2017 from the Joint Ministerial Committee, which was attended by Mark Drakeford, a Cabinet Secretary in Wales, and Mr Russell, a Minister from the Scottish Government, among others, including senior civil servants from Northern Ireland in the absence of their Executive. I shall quote briefly from it, although some aspects are referred to in some of the proposed amendments:

“Ministers noted the positive progress being made on consideration of common frameworks and agreed the principles that will underpin that work”.


The definition of those principles includes the line:

“A framework will set out a common UK, or GB, approach and how it will be operated and governed”.


Then there is a list of principles:

“Common frameworks will be established where they are necessary in order to … enable the functioning of the UK internal market”—


for example, to,

“ensure compliance with international obligations; ensure the UK can negotiate, enter into and implement new trade agreements and international treaties; enable the management of common resources; administer and provide access to justice in cases with a cross-border element; safeguard the security of the”,

United Kingdom.

16:45

One can readily understand why we want to maintain these as essentially UK-based frameworks—why we need to ensure that there is a means of maintaining commonality in these areas for the United Kingdom. The document continues:

“Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore: be based on established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent”.

Your Lordships will notice an echo of what is sometimes referred to as the Sewel convention. It is not an absolute: we must consent. It is not a case of “We will just consult”, or anything of that kind. It is simply saying that there will not normally be adjustments without consent.

A great deal of work has been done since October 2017 by officials in Whitehall, Edinburgh, Cardiff and Belfast. As a consequence, on 9 March, we were able to publish the provisional frameworks analysis on returning EU powers, which indicated that in only 24 areas of the 153 was it anticipated that we will need to keep having legislation that works across the whole United Kingdom. There is some difference of opinion on one or two additional areas—as referred to by Mr Russell before one of the Scottish parliamentary committees. State aid is one. There are a number of areas where we consider that the issue is reserved but others consider that it touches on devolved competence. That is not of any immediate moment in the present context, if I may say so, because generally speaking we are agreed what those 24 areas will be.

If we are to maintain commonality for the United Kingdom in these areas, we must be able to legislate uniformly in them. That includes, let us say, pesticides in the context of agriculture—not the whole of agriculture but sub-areas where Brussels and the devolved Administrations would have exercised competence in which we realise that it is necessary to maintain commonality in the United Kingdom. Let me give a very simple example. If the Scottish Government legislated in respect of agricultural pesticides for Scotland—not extending beyond Scotland’s own borders, of course, and only within the area of their devolved competence—and other parts of the United Kingdom did not replicate those regulations, we could find that a Welsh farmer could not sell his corn to an Edinburgh baker simply because he had used pesticides that he was quite lawfully entitled to employ in Wales, and which were quite lawfully used in England and Northern Ireland, but had been banned in Scotland by the Scottish Government. As a consequence, there would be a breakdown in the internal market that is so critical to us.

I give another simple example: food labelling. If the Scottish Government decided to make regulations as soon as they had the power, when these 153 competencies returned, to change the provisions on food labelling only for Scotland, within their devolved competence, a manufacturer of jam in York would find it very difficult to sell his product north of the border, or he would have to label it in two different ways.

[Lord Wigley]

Will the noble and learned Lord give way?

[Lord Keen of Elie]

No, perhaps I can finish this point. I am just trying to explain why in these 24 areas it has been identified as very material that we should retain and then develop frameworks.

[Lord Wigley]

I just wanted to intervene on this very point about pesticides. The Minister will be aware that the Welsh Government did in fact legislate on the question of genetically modified crops, and it was forecast that the roof would fall in. It did not; it was quite possible to have a different regime in Wales from that in England. As he addresses the rest of the points that have been raised, will he tell us how the regime will be allowed or not allowed to work in the context of agricultural support? Sheep farmers may well want and be entitled to get support from the Welsh Government. The Welsh Government may want to give them that support but, if it is argued that that distorts the UK market, they would not be able to do so. That is the sort of issue that causes concern.

[Lord Keen of Elie]

As regards agricultural support, that is another subspecies of agriculture. I am dealing with those matters that fall within the 24 identified areas where we find it necessary to retain and operate the single internal market. Not all areas within those 24 competencies are going to have to be retained for the purposes of that market. There are areas which we will devolve.

[Lord Purvis of Tweed]

The Minister is making a very strong case for how a single market can operate effectively. Does he not believe that the United Kingdom could operate under a frictionless trading or regulatory arrangement with managed divergence across the four nations?

[Lord Keen of Elie]

That is not what is in contemplation, and that is why I am trying to explain the Government’s thinking with regard to maintaining effectively a single market, not frictionless borders between nations within the United Kingdom, which is a different issue altogether and one that does arise in a different context.

[Lord McConnell of Glenscorrodale]

I will not take this opportunity to contest some of the points that have been made about, for example, fertilisers, although I think there is a debate to be had about the way in which the Government describe that issue. It is not helpful to the heat generated around this debate when the examples the Government give for the need to retain the power imply that decisions that would be made in Scotland or Wales would be stupid. The Government need to think hard about the fact that when they describe the need for these single market frameworks in the UK, they should do so in a positive way in terms of the UK having regulations that work together.

On the substantive point about the frameworks, the issue is not the list of 24, but how they will be agreed and who will have the ultimate decision-making power. It is not about what is or is not on the list. That is a matter for negotiation and determination within the existing settlements. The issue here is who agrees the frameworks, how they are agreed and who ultimately has the power to veto them or otherwise. That is the substantive issue I would ask the Minister to address.

[Lord Keen of Elie]

I wholly reject the implication that we are suggesting that any of the devolved Administrations are going to proceed to legislate, with any of the competencies returned to them, in a way that would be regarded as stupid or unacceptable. That is a most unfortunate gloss to put on the matter. It is, however, very helpful that the noble Lord, Lord McConnell of Glenscorrodale, has raised the question of how we are going to deal with the issue in this context. The framework agreements have been the subject of ongoing negotiation among all of the Administrations, but in order to achieve that it is necessary to retain competencies in those areas so that there is not the prospect of legislation within the devolved areas which impacts upon areas outwith their competence. To give a simple example in that context, the Scottish Government are entitled to exercise devolved competence and powers within Scotland for the Scottish people, but if we allow all of the additional competencies to go back to the Scottish Government and they legislate in an area such as food labelling, that impacts on the people not only of Scotland but of England, Wales and Northern Ireland. There is therefore, in a sense, a veto over proposals for the internal market, with one devolved Administration saying, “No, we don’t like your proposals on food labelling. We know everybody else likes them but we’ve decided we don’t like them, we’re not going to consent to them, so you can’t have them.” That is the problem that we want to ensure does not arise.

Coming more particularly to the point that was made about how this is decided, we do ring-fence, as it were, the 24 competencies—or elements of them—that have been identified following the consultation process with the devolved Administrations and which are reflected in the principles that I quoted from the Joint Ministerial Committee on 16 October last year. Then, we have to formulate framework agreements, essentially, in each of these areas for the United Kingdom.

Taking up the noble Lord’s point on how we are going to implement those, we will do so by way of primary legislation. And where do we find ourselves? Back in the relevant devolved legislation, which says that we will not normally legislate in respect of these devolved areas except with the agreement of the relevant devolved Government. So the relevant safeguard is exactly the same as the one that exists at the present time. What we propose will not intrude on the devolved competence in Scotland, Wales or indeed Northern Ireland. It retains 24 areas that are coming back from the European Union in order that we can work out what is required for the purposes of maintaining a single UK market. However, what would alter the devolved competencies quite fundamentally would be a provision that said that we could retain those areas of competence only with the consent of each of the devolved Administrations. That would give them a veto over matters that went beyond their present devolved competence and a veto over matters that impacted on England, Wales, Northern Ireland or Scotland, depending upon who was doing it. That is why we have set out matters in the way that we have. When we come on to the amendment to Clause 11 in due course, I hope that, having essentially flipped Clause 11, we can reflect on the great progress that we have made to date in these areas. It is in that context that I simply invite the noble and learned Lord to withdraw his amendment.

We will return to these matters under reference to the government amendments but I wanted to set out, I hope with a reasonable degree of clarity, the Government’s thinking in this area. This is not, with respect, a power grab—on the contrary: if we consult, if we agree and if we achieve this, there is no question of a power grab. It is certainly not a derogation from devolved competence. A great deal of competence will be laid on the devolved Administrations, because so many of these competencies coming back from the EU, and under the amended Clause 11, are going straight to the devolved Parliaments and Assemblies.

[Lord Forsyth of Drumlean (Con)]

Before the noble and learned Lord sits down, may I just tempt him? He has given a very clear exposition of the Government’s position and why it is in the interests of the devolved Administrations and the United Kingdom as a whole to proceed in the manner that the Government describe. He has also talked about the great efforts that have been made by the officials and the work that has been done. Why, then, do we have such opposition, in particular from the Scottish Administration?

[Lord Keen of Elie]

I am not going to rehearse the rhetoric that has been used by some members of the Scottish Government to feed populism. Terms such as “power grab” may have their place, but they do not have a place in the context of our looking at this legislation. Of course, it has been asserted that consultation is not enough—even though it may lead to agreement—and that there has to be consent and only consent. But if it is consent, that is, let us remember, a very material change to the devolved settlements. That will result in the devolved Parliaments and Governments being able effectively to veto matters that impact upon those outwith their area of devolved competence.

[Baroness Hayter of Kentish Town]

The Minister used a phrase—which is used also either in the Explanatory Note or in a letter, I cannot remember which—about the retention of this for the purpose of the internal market. It might be helpful if that wording appeared on the face of the Bill.

[Lord Keen of Elie]

I note that comment. The noble Baroness will appreciate that the amendment to Clause 11, which I will move in due course, seeks to ring-fence these powers to ensure that they are limited. Indeed, the noble and learned Lord, Lord Wallace, has also tabled an amendment regarding a sunset clause in that context. It is perfectly clear from the proposed amendment to Clause 11 that they are meant to have a very limited function—but I note what the noble Baroness said and I will take it forward.

17:00

[Lord Wigley]

Does the Minister not realise that the Labour Government in Cardiff feel as strongly as the SNP Government in Scotland about this matter? This is not a matter of party politics; it is a question of where power lies. That is why the term “power grab” has arisen. When he says how outrageous it would be if Scotland, Wales or Northern Ireland had a veto, does he not realise that the structure that he is advocating gives England a veto? It gives Westminster a veto; that is what is causing so much trouble.

[Lord Keen of Elie]

No. With great respect—

[The Archbishop of York]

My Lords—

[Lord Keen of Elie]

One moment. I am terribly sorry, Archbishop, but I must reply to that. This does not give England a veto. Essentially, England has no voice. This is the United Kingdom Parliament: it legislates for the United Kingdom.

[The Archbishop of York]

The point I was going to make is exactly the same. As I have listened to the debate, it seems to me that the issue is probably what the noble Lord, Lord Hennessy, tried to address. When we leave the EU, the state of the United Kingdom and Northern Ireland will still be the United Kingdom and Northern Ireland. Therefore, there are areas that are for all four nations and others that are just for one nation. Devolution was a good thing, but it does not mean that powers that affect other nations can simply be devolved. I have listened again and again, and I think the point is that, of all the powers that are coming back, 23 have been identified which, if they were simply handed over without clear legislation, would leave us in a real mess. There would be no coherence, no sense that this would be the United Kingdom; it would be something else. So may I plead with those who come from nations with devolved Governments to realise that, for the benefit of the whole of the United Kingdom and Northern Ireland, there are some areas that affect all of us together, not separately, and that those need to be retained? Of course there could be negotiations and conversations—but I get a little concerned that the message is not getting through. This is not grabbing power: some areas are returning to the United Kingdom and we must sort out which bits really need to go straight to the devolved Administrations. The 23 areas that we have heard about require very careful consideration; otherwise some might think that leaving the EU equals independence for them.

[Lord Keen of Elie]

I am not going to indulge in party politics at this stage; I do not think that that is necessary. We all know the ultimate objective of the Scottish National Party. It is not to have a United Kingdom; it is to break up the United Kingdom and have an independent Scotland. Although Scottish nationalists talk about all these powers coming back from the EU, let us remember that they do not want them. If they get them, they want to give them back to Brussels, because they want Scotland, as an independent country, to remain in the EU—and, if it leaves, they want it to join EFTA and the single market. Therefore they will return all the powers they are talking about if they get their ultimate aim.

[Lord Morris of Aberavon]

The noble and learned Lord has distinguished between “consult” and “consent”, and has described consent as a veto. Does he not accept that over the years the normal use of “consent” by both the Scottish Parliament and the National Assembly has been exercised responsibly, and that there is no basis for that fear? How would he define the word “consult”? What does it mean?

[Lord Keen of Elie]

Consultation has been going on in the Joint Ministerial Committees on a regular basis since October of last year. As regards respecting the constitutional settlement on devolution, I entirely agree with the noble and learned Lord—with one qualification. A convention has arisen out of the memorandum of understanding between the Scottish Government and the UK Government about how we ensure that legislation put before the Scottish Parliament is competent. That convention has operated since 1999 and involves an exchange of a note of competence. Prior to a Bill being introduced to the Scottish Parliament, a copy is passed to my office—the Office of the Advocate-General for Scotland. That is always done.

I then confer with the Lord Advocate and his officials—the noble and learned Lord, Lord Wallace, will be familiar with this—and we iron out any differences and come to a view on what is competent and what is not, and consequently these matters are resolved. For the first time in nearly 20 years, that convention was departed from by the Scottish Government in respect of their EU Continuity Bill, which I first heard about after it was introduced to the Scottish Parliament. They did, however, give it to the Presiding Officer of the Scottish Parliament in time for him to take legal advice. Therefore, while I accept the generality of the point the noble and learned Lord made, particular exceptions have arisen very recently.

[Lord McConnell of Glenscorrodale]

I was the Minister who negotiated the memorandum of understanding. I think I am the only Minister involved in the negotiation at the time who serves in your Lordships’ House. I agree that the Sewel convention and the arrangements for considering the competence of legislation have worked very well. That concerns the point I made earlier—two debates ago, I think—about the clarity of the legislation and of the memorandum of understanding, which have worked well over many years. I am encouraged by the Minister’s comment that these frameworks would all be subject to the Sewel convention. It would certainly be very helpful for the debate that we are about to have on Clause 11 for the Minister to say that, if these 24 areas are indeed the final 24 areas that are agreed for common frameworks, in each of the 24 areas the establishment of the common frameworks would be subject to the Sewel convention, as I think he hinted at a few minutes ago.

[Lord Keen of Elie]

In so far as they are carried forward by primary legislation—and I rather anticipate that that will be the case—they would engage not only the Sewel convention but the provisions of DGN 10, the devolved guidance note, because there may be areas where these matters impact on the competence of Scottish Ministers. That is what is anticipated and I have no difficulty with that.

I keep trying to answer a question raised by the noble and learned Lord, Lord Wallace, about what happens with regard to the transition period. Clearly, that will have to be addressed in the context of the withdrawal agreement Bill—and that, as has been indicated before, may result in some amendment to the existing provisions of this exit Bill.

[Lord Thomas of Gresford]

As I understand what the Minister is saying, ultimately everything has to be settled by primary legislation, so there will be a single market in the United Kingdom that is settled by primary legislation—for which legislative consent will be sought and no doubt given. What we are talking about is an interim period when Ministers take powers to themselves. Over a temporary period they will in effect dictate what the framework agreement will be until there is a final agreement in a number of years—that is what I understand the Minister to say.

[Lord Keen of Elie]

With great respect, I do not think the noble Lord, Lord Thomas, has understood what I said. It is not a case of us dictating anything to the devolved Administrations; it is a case of ring-fencing these limited competences until we have reached agreement with the devolved Administrations as to what the framework agreements will be. They will then be put forward for the purpose of legislative consideration in the usual way. But it is not suggested that we are going to start regulating agriculture in Scotland in the meantime—that is not what is comprehended by this at all. I do not know whether I asked this earlier, but will the noble and learned Lord withdraw his amendment so that I can sit down again?

[Lord Thomas of Gresford]

Before the Minister does, how long will this ring-fence last? I believe the Barnett formula was temporary; how long does the Minister envisage the ring-fence will last before there is a proper legislative framework?

[Lord Keen of Elie]

It will last until we have managed to implement all of the framework agreement. That will be a finite period—there is no question about that. Indeed, if the noble Lord looks at the proposed amendment to Clause 11, he will see that there are various checks and balances, including the requirement that Ministers report to Parliament if they retain the powers for any longer. So that is already addressed.

[Lord Hope of Craighead]

My Lords, this debate has ranged a good deal wider than was necessary for the Minister to deal with my points on this group of amendments. With respect to him, he has not given me the kind of reassurance that the noble Baroness, Lady Goldie, gave me on earlier groups. My point is that this very disparate group contains a number of points that I raised with regard to Schedules 2 and 8, which need to be reconsidered in the light of the reformed Clause 11. A simple example is on page 56, where there is a reference to a fetter on the power to,

“make, confirm or approve subordinate legislation”,

which extends to the wording of Section 57(4) of the Scotland Act as in the Bill. However, that section is reworded by the proposed new Clause 11.

[Lord Keen of Elie]

I just remind the noble and learned Lord that I said that when we come to Clause 11, we will move and withdraw the amendment. We appreciate that although we want Clause 11 in its present form, to put it forward in a form that covers all these matters we will have to address the impact it has on Schedule 2 in these contexts.

[Lord Hope of Craighead]

I am grateful for that. Not every one of my amendments is a Clause 11 point—there are other points of detail which need to be looked at. If the Minister would be kind enough just to say that these will be looked at, I will be happy to withdraw my amendment. Can he give me that assurance?

[Lord Keen of Elie]

I am content to indicate that we will look at these points.

[Lord Hope of Craighead]

On that basis, I am happy to beg leave to withdraw Amendment 274.

Amendment 274 withdrawn.

Amendments 275 to 278 not moved.

Amendment 279 had been withdrawn from the Marshalled List.

Amendment 280 not moved.

Amendment 281 had been withdrawn from the Marshalled List.

Amendment 282

Moved by

[Lord Hope of Craighead]

282: Schedule 2, page 25, line 15, at end insert—
“( ) This paragraph does not apply to regulations made under this Part by the Scottish Ministers or by the Welsh Ministers with regard to matters that are within their devolved competence.”

[Lord Hope of Craighead]

My Lords, this is the last of my little groups of amendments. I will also speak to Amendments 284, 298 and 300 in this group, which all relate to what one finds in Schedule 2. This point goes back to what we discussed a little earlier about the difference between “consent” and “consult”. In the existing provisions in paragraph 16 in Part 2 and paragraph 25 in Part 3, which deal with the power of devolved authorities to make provision,

“for the purpose of preventing or remedying any breach of the WTO Agreement”,

that power may be exercised only with the consent of a Minister. The simple point I make in my amendment is—I am sorry: it is rather important that the Minister hears what I am going to say. I will be happy to wait for a moment, if the noble Lords would like to confer. Would it help? I can wait for a second.

[Lord Taylor of Holbeach (Con)]

Please continue. We have said all that we need to say.

[Lord Hope of Craighead]

Thank you very much.

I want to explain to the Minister that the point is a very simple one about the difference between “consent” and “consult”, which we have already been discussing. I do not need to elaborate on the point that each of these amendments seeks to substitute in a revised formula a consent mechanism in place of the provision in the Bill, which is all about consultation. In a sense it is a probing amendment because I do not see why, for the moment, the existing situation where these things are done with consent should not operate in these contexts too. I moved the amendment so that the Minister can explain the position—I hope quite briefly—so that we can move on to what we are all looking forward to: his amendments on Clause 11. I beg to move.

17:15

[Lord Keen of Elie]

My Lords, I will respond briefly, without repeating what I said on the immediately preceding group, but this raises essentially the same issue. On these provisions, the circumstances in which consent applies to the powers—which are the obverse of some of the others—are those where the devolved Ministers could use powers in ways that have implications outside of their devolved jurisdiction, for example when making provision regarding the World Trade Organization obligations. That is why we have framed it in this way, but it raises the wider point made by the noble and learned Lord and I appreciate that that might be addressed in more detail when we come to Clause 11 and the government amendments. I wonder if, in these circumstances, the noble and learned Lord will, at this stage, withdraw his amendments.

[Lord Hope of Craighead]

I am glad we have not provoked a longer debate on this group of amendments. There is a reason for being concerned about this; the provision I am concerned about deals specifically with something within competence—in other words, it deals with regulations made for the purpose of preventing or remedying any breach of the WTO agreement. It does not deal with the WTO agreement itself; it simply exercises the power given under paragraph 7(2)(b) of Schedule 5 to the Scotland Act 1998 to deal with these matters domestically. Since it is within competence under the Scotland Act, it is hard to see why the position should be regulated in the way proposed. However, I have listened to what the Minister has said and—on the understanding that we can look at all this again when we get to the revised formula for Clause 11—I am happy to withdraw this amendment.

Amendment 282 withdrawn.

Amendment 283 had been withdrawn from the Marshalled List.

Amendment 284 not moved.

Amendment 285 had been withdrawn from the Marshalled List.

Amendments 286 to 292 not moved.

Amendment 293 had been withdrawn from the Marshalled List.

Amendment 294 not moved.

Amendment 295 had been withdrawn from the Marshalled List.

Amendment 296 not moved.

Amendment 297 had been withdrawn from the Marshalled List.

Amendment 298 not moved.

Amendment 299 had been withdrawn from the Marshalled List.

Amendment 300 not moved.

Amendment 301 had been withdrawn from the Marshalled List.

Schedule 2 agreed.

[Baroness Goldie]

My Lords, I beg to move that the House be now resumed.

[The Deputy Chairman of Committees (Viscount Ullswater) (Con)]

The Question is that the House be now resumed. As many as are of that opinion will say Content.

[Noble Lords]

Content.

[The Deputy Chairman of Committees]

To the contrary, Not Content.

[Lord Foulkes of Cumnock]

Not Content. As we are all here, we might as well get on with it.

[The Deputy Chairman of Committees]

I think I will put the Question again. The Question is that the House be resumed. As many as are of that opinion will say Content.

[Noble Lords]

Content.

[The Deputy Chairman of Committees]

To the contrary, Not Content.

[Lord Foulkes of Cumnock]

Not Content.

[The Deputy Chairman of Committees]

I think the Contents have it.

[Lord Taylor of Holbeach]

My Lords, perhaps I may explain. An Urgent Question has to be repeated at about 6 pm. Rather than have that at a ridiculously late hour, we will adjourn the House until 6 pm. That will provide an opportunity for noble Lords to get refreshment and then we will be able to deal with the next group in toto and without interruption. I think that is the right way to go about it. I have discussed it around the Chamber, as the noble Lord will know.

[Lord Foulkes of Cumnock]

My point is that we are all here. We have been taking part in a debate. Everyone who wants to take part in the next group is here and it seems sensible to continue. I do not understand.

[Lord Hope of Craighead]

The Chief Whip did not discuss the matter with me but I support the position he is taking because it is very obvious that, once we get into Clause 11, we will be discussing it for some considerable time. I would have thought that the sensible thing would be to break now and to come back and deal with it in one go, rather than break up the debate, which we will be forced to do otherwise.

[Lord Wigley]

My Lords, as a party of one, I do not expect to be consulted on these matters—I realise that there are limitations. However, on Monday night we sat here until after 1 am, and I spoke after 1 am. Earlier we had a break of 20 minutes for food. Why on earth, when there is time available now, can we not carry on with the Bill, certainly if the implications are that we might go on until late again tonight?

[Baroness Goldie]

My Lords, I beg to move that the House do adjourn during pleasure until 6 pm.

House resumed.

17:21

Sitting suspended.