Wednesday 2nd May 2018
(5 years, 12 months ago)
Lords ChamberEuropean Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Amendment Paper: HL Bill 79-R-V(b) Amendment for Report, supplementary to the fifth marshalled list (PDF, 49KB) - (2 May 2018)
18:35 - Division on Amendment 88 - Ayes: 309 / Noes: 242 - Amendment 88 agreed.
Lord Murphy of Torfaen
No, no; I do not think for one second that this amendment refers to or is about joint authority. What it is about is the recognition that both the British Government and the Irish Government are joint guarantors in international law of the Good Friday agreement. That is what it is about. Also, the agreement itself set up the British-Irish Intergovernmental Conference, which meets from time to time in order to deal with matters of common concern.
To return to the amendment, it rejects a hard border. The word “hard” has been debated by a number of speakers. The Government themselves have attached the description to what they do not want. The Government do not want a hard border, the Opposition do not want a hard border, the European Union does not want one, the Government of Ireland do not and nor do any of the parties in Northern Ireland. None of them wants a hard border, and all this is doing is putting into the Bill what everybody actually wants.
The amendment protects the Northern Ireland Act 1998, which as it happens I steered through the Commons 20 years ago. That set up the Assembly and the Executive and dealt with rights and equality. The noble Lord, Lord Trimble, asked: should we not have the Good Friday agreement in the amendment rather than the 1998 Act? Of course, the 1998 Act incorporated a great deal of the agreement and was based on the principle of the consent of the people of Northern Ireland.
The other issue is that of the north/south arrangements. There is no question, in my view, that those are extremely important and need to be protected as a vital part of the agreement, and they actually deal with millions of pounds of European funding for cross-border projects. All the amendment is about is a guarantee that the integrity of the Good Friday agreement is enshrined in law and put into the Bill.
The actual, real threat to the agreement in Northern Ireland is the fact that there is no Assembly or Executive there. The institutions should be restored. Their absence is the real threat to the Good Friday agreement and one that I hope the Government will work intensely over the next weeks and months to resolve. As parliamentarians in both Houses, we need to protect one of the most successful peace processes of modern times, and I believe that the amendment goes a long way towards doing that.
The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)
My Lords, I had a five-page speaking note when I arrived here. I have now written more than 10 pages myself. I am not sure my speaking note will do the debate justice so I will set it aside.
I will try to capture the key elements of this discussion. I will turn, as I often do in matters concerning Ireland and Northern Ireland, to the noble and right reverend Lord, Lord Eames, who reminded us that we have heard the same words used many times about the Good Friday agreement, to the extent that earlier today we almost had to use a thesaurus to find a replacement for “steadfast” because we have said it so many times. As it happens, the word in the note is “unwavering”, if you are looking for a description of our support for the Good Friday agreement. But the noble and right reverend Lord is correct: we must give comfort and certainty to the people of Northern Ireland that they will not be abandoned, sacrificed, left behind, have their rights trimmed to suit a separate agenda or find themselves in a situation where what they thought they had they do not have at all. I had the pleasure of having a cup of tea yesterday with the noble and right reverend Lord and he spoke about what he called the Ballymena spade—where they call a spade a spade. We need to be clear that there can be no border down the middle of the Irish Sea. We simply cannot create a division between one part of our country and another.
Michel Barnier, the chief negotiator for the EU, has said that there needs to be some adjustment to particular rights and proprieties, that there needs to be some acceptance that we cannot have these things, and that some of the red lines themselves, as the Foreign Minister of Ireland has said, may need to be adjusted in the light of peace and prosperity. But they cannot be, that is the point. So if I was to give a message to Michel Barnier, it would be: “Ecoutez les deux communautés”—you must listen to the two communities in Northern Ireland. You cannot listen to only one of them. Both are integral to what we will be able to achieve on the island of Ireland, and any suggestion otherwise is fallacious and unhelpful. In truth, it risks creating greater uncertainty for this particular negotiation. I would advocate great caution on behalf of Michel Barnier in this regard.
Lord Reid of Cardowan (Lab)
The Minister knows the respect in which I hold him and the job he is doing. I have no wish to have a border which differentiates Northern Ireland from the rest of the United Kingdom. But will he accept that the problem was not created by Michel Barnier? The promise to have complete alignment between Northern Ireland and southern Ireland was not made by Michel Barnier, it was made by the British Government. Michel Barnier is doing no more than holding the Government to the promise they made to Europe in the initial agreement, and it is not his responsibility that outside that the Government also promised the DUP—correctly, in my view—that there would be complete alignment between Britain and Northern Ireland. That is the essential problem, because if you have alignment between Britain and Northern Ireland, between Northern Ireland and southern Ireland, and between southern Ireland and Europe, you automatically have alignment between Britain and the European Union; in other words, staying inside the customs union.
Lord Duncan of Springbank
I hear the noble Lord, Lord Reid. With the greatest respect, I recognise what he is saying, but the joint report did not have just one element in this regard, it had three elements. The important thing about the three elements is that each must be afforded the ultimate engagement to try to deliver a solution. If Michel Barnier has decided that the first and second are sacrificial elements and he must now focus only on the third, frankly, he is becoming part of a bigger problem.
Lord Wallace of Saltaire (LD)
Michel Barnier is negotiating for the other 27 member Governments. It is not a question of listening to the Northern Irish Catholic community but it is part of his job as negotiator to listen to the Irish Government, who are, after all, one of the 27 member Governments with whom we are negotiating. It is the Irish Government who—perhaps to the Minister—present the problem. We have to deal with the Irish Government, not just the two communities.
Lord Duncan of Springbank
If the negotiator Michel Barnier does not hear the people of Northern Ireland, he will be derelict in his responsibilities. He must hear both communities. He cannot listen only to one. It is for that reason that I say again to Michel Barnier: listen to both communities.
It is important to recognise where this journey began. I hope the noble Lord, Lord Patten, will forgive me for not beginning by thanking him for bringing this issue before us today. This is what the Government intend to do, as I am sure he will agree. Many of the elements of the amendment are exact statements of government policy, but the issue is very unusual and it needs to be iterated here. When we look at the lower elements of the amendment, the language is that of political statements, not legislative statements; they are not in the language of legislation. It is on those points that a number of noble Lords have been very clear that they leave a conspicuous ambiguity. It is important to recognise that it is the intention of the Government to return not with ambiguous statements which may or may not be subject to misinterpretation but to return in the appropriate Bill with the exact, detailed language which will give the absolute confidence that we must have in this law. That is why we are unable to support the amendment that the noble Lord, Lord Patten, moved so eloquently and passionately. Indeed, all the speakers today have spoken with that passion. Of that I have no doubt.
I was drawn in particular to the words of the noble Lord, Lord Alderdice. He was very clear in his assessment of those parts of the amendment I have spoken of. I know that a number of noble Lords have sought to correct him, but I do not believe that he needs correcting. Indeed, the noble Lord, Lord Bew, said simply that it has a flavour of a joint approach. However you want to look at it, if individuals who live in Northern Ireland are looking at the amendment and expressing their deep unease with it, I would hope that noble Lords would recognise what message that is sending. That is why we must be cautious in the messaging that we send.
In truth, there are two elements to the Bill: the optics and the mechanics. The mechanics of the Bill mean that the Bill must function and give absolute legal certainty. That is its job. The optics of the amendment are wholly commendable in many respects. They are an affirmation and a recitation of the Government’s intention, proposals and policy. But, again, this is not the place for them to sit sensibly and with legal certainty. That is one reason why we have a great problem with the amendment. As a number of noble Lords have asserted, as they begin to look in detail at those elements they are uneasy.
Talking once again of the optics, if the noble Lords in here who have looked at those self-same provisions feel uneasy, imagine then what the message will be on the front page of the Belfast Telegraph when these particular elements are looked at if they are presented in such a fashion that they could be misunderstood or misinterpreted. That is why we are seeking, as we have always sought, absolute and utter legal certainty. My right honourable friend the Prime Minister has been clear in all her utterances that we will deliver a borderless aspect on the island of Ireland but the point about this, and the reason why I emphasise it, is that this Bill is not where that will or can be delivered. I am almost channelling my inner Callanan when I say this but, in truth, this is not the right place to be doing that. There will be an opportunity to pick that up.
I shall return to some of the specific points raised. Once again the noble Baroness, Lady Lister, has raised a point which I will be happy to respond to in writing. I will make sure that that is absolutely delivered. I hope that I have been able to give words of respect and comfort to the noble and right reverend Lord, Lord Eames, so that he can take them away and be able to say to people that this is not a place where we can trim—where we can simply take out, manoeuvre or dispense with it.
I listened again to the noble Lord, Lord Hain, whose wisdom is welcome in this debate. He rightly described the fragility of the peace process, echoing the words of the noble and right reverend Lord, Lord Eames. It is in its infancy and we need to make sure that nothing whatever can interfere with that. However, I do not wish to see the two aspects here become entangled. That is why many noble Lords have spoken today about the impact these words can have when they are misunderstood—indeed, when they become weaponised in one fashion or another, so that where they land they cause destruction upon receipt. We cannot have that, for that in itself is ultimately destructive.
As I listen to the noble Lord, Lord Trimble, I am aware that there speaks an individual who helped to craft the Belfast agreement itself, as did a number of noble Lords who have spoken this afternoon. Each of them who spoke has echoed the same sentiment. That is worthy of pause and reflection because there is an element, in truth, in what all the Peers from Northern Ireland who have spoken today said: they are uneasy with this amendment. Whatever its optics or its intention, they are uneasy with its component parts.
Baroness Altmann (Con)
Can my noble friend reassure the House, then, that “no deal” is now off the table? In a no-deal scenario, WTO rules require a hard border. It is impossible to fulfil the Good Friday agreement if we crash out with no deal.
Lord Duncan of Springbank
I thank the noble Baroness, Lady Altmann, for her intervention. The clear thing here is, as I believe all sides in this discussion recognise, that if there is no resolution of the joint report’s component parts—A, B and C—then all will be the poorer and the weaker. All will suffer because of that, which is why the important thing here is to ensure that agreement is reached on those elements in the negotiation. It is absolutely essential that those parts are then returned to the other place and to this House for clear discussion and debate at that time. That will ultimately be the key to it.
As I listened to the noble and learned Lord, Lord Carswell, I was aware of him iterating the same issues once again. He brings his own experience to them, saying that particular elements of this amendment cause him unease. They cause him to see difficulties which might emerge. The last thing we need right now is for that to percolate through the situation in Northern Ireland, with all its incumbent troubles and all the difficulties which will be in play.
As I speak today, I am very conscious that we need to find the outcome that delivers for Northern Ireland and one that delivers for the Republic of Ireland. I listened to the noble Lord, Lord Howarth, expressing clearly the danger we have, however, in taking these important elements of where we need to seek agreement and somehow or other turning them into a threat—a method whereby we can seemingly upend or turn over the very things that we are all trying to achieve.
I think it is true to say that anyone who seeks to prognosticate on or forecast Irish politics will almost certainly always be disappointed. There are, no doubt, many greater minds in this Chamber than elsewhere who could do that but the point remains that irrespective of which Government are in power in Dublin, they have to be able to work to deliver an outcome which is good for the Republic of Ireland, just as we are able to deliver that self-same outcome for Northern Ireland, and indeed for ourselves. Listening to the noble Lord, Lord Bew, it was imperative that, as he put it forward, there are elements that need to be addressed now.
I also note the remarks of the noble Baroness, Lady Suttie, who asked whether I can explain how the technology will work on the borders. The truth is that I am a geologist, I am afraid, and I really cannot explain that. I am not knocking geologists; I am fully aware that they know many things. What I am clear about is that this must be returned to the other place, and to this House, to deliver the very things which noble Lords seek. If they are not delivered, I do not doubt that the House will vote it down. That is a clear thing which your Lordships do and it is a prerogative which you will have in this House. That is how it will ultimately work.
It will be important to ensure that the methods which we put forward are understood by all. I listened to the noble Baroness, Lady O’Neill, touch upon the issue of passports and I would like to write to her on those elements, because I believe that they are appropriate to be discussed. There are costs inherent in biometric passports and so forth. If noble Lords will forgive me, I will have an offline discussion to take through some of those elements. In some respects I am conscious, as the noble Lord, Lord Hay of Ballyore, said at the beginning, that this is indeed no laughing matter. I understand that but, in truth, we need to recognise that in each of these elements we must be able to deliver for the people of Northern Ireland and for the rest of the island of Ireland.
I also listened to the noble Lord, Lord Patten, when he spoke of Louis MacNeice’s father, Bishop MacNeice. I am a passionate supporter of Louis MacNeice and a great lover of his poetry. I am aware of the line where he said:
“My father made the walls resound,
He wore his collar the wrong way round”.
He was an extraordinary poet but if your Lordships will forgive me, I will bring to you the words which I believe in this instance might be slightly appropriate, although very cryptic. They are from the poem by Louis MacNeice called “Snow”, in which he was confronting two seemingly difficult and different things coming together: broadly, large flowers in a window and snow outside. He simply said:
“The room was suddenly rich and the great bay-window was
Spawning snow and pink roses against it
Soundlessly collateral and incompatible:
World is suddener than we fancy it.
World is crazier and more of it than we think,
Incorrigibly plural”.
In many respects, as we look at the island of Ireland we need to recognise its plurality. We need to recognise how that island will continue but also, none the less, that this Bill is not the place for that amendment. We remain passionate and unwavering in our support of the Belfast/Good Friday agreement. It is enshrined in more than nine pieces of primary legislation and there it will remain.
There will be a negotiation on the joint report—on those three elements—and, in that, I hope that Michel Barnier will be able to respect the views not just of the Irish Government but of the communities of Northern Ireland, whose voices must be and need to be heard. In many respects, I hope that it will be appreciated—
Baroness Smith of Newnham (LD)
The Minister keeps talking about Monsieur Barnier. Surely his job is to represent the views of the 27; it is the job of Her Majesty’s Government to represent the views of all communities across the United Kingdom, including the communities of Northern Ireland.
Lord Duncan of Springbank
The noble Baroness raises her point but I will be clear in my statement in response: it would be daft if he did not speak to both communities. Irrespective of whether he felt that he must speak to only one Government, the resolution in Northern Ireland will depend upon the two communities, not upon the will of two Governments ignoring those self-same communities. It cannot be done on that basis.
I return briefly to the point that we wholeheartedly agree on the sentiments underpinning my noble friend Lord Patten’s amendment. We recognise, however, that those elements towards its latter half are not workable in that form. They are political statements, which are not legally binding texts, but I must say one final thing. If the noble Lord decides to divide the House, I hope he will recognise that it must not and cannot be interpreted in any way such that either side is not willing to give its wholehearted support to the Belfast/Good Friday agreement, but rather only to this amendment as it has been defined. Let there be no doubt whatever that the Good Friday/Belfast agreement has our unwavering and steadfast support.
Lord Keen of Elie
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, we are dealing here with truly technical amendments to ensure that the provisions of the Bill deliver the intended policy. They achieve two things. The first is to clarify how the requirement for regulations made by devolved Ministers under Schedule 2 to be within devolved competence interacts with the principle of severance applied by the courts.
The normal practice would be that when a Minister makes regulations that include, for instance, 10 different provisions, should one of those provisions be outwith the scope of the power, the courts would not strike down the regulations as a whole, they would simply sever the offending provision and allow the remaining nine provisions to stand as law. Some concerns were raised that the requirements in the Bill might imply that this standard practice should not occur. The amendments therefore make it clear that when a provision is outside devolved competence, only that provision would be ultra vires and not the whole instrument in which the provision is included.
The second purpose of the amendments is to allow for a devolved Minister and a UK Minister acting jointly to make provision that would not be in the competence of the devolved Minister acting alone. It has always been the Government’s intention that the Schedule 2 powers can be exercised jointly to allow us to work together in areas where we may need to make the same or related changes to retained EU law and so that, where appropriate, those changes can be subject to formal scrutiny and approval in both this Parliament and the relevant devolved legislature.
We believe it is right that, for instance, where a UK Minister and a Welsh Minister jointly make regulations in relation to a matter that concerns the England/Wales border, those regulations can include both the provision for England and the provision for Wales, even though it would not be within the Welsh Minister’s competence to make the provision in relation to England if they were acting alone.
We will also be bringing forward at Third Reading a number of further drafting changes to permit combinations of instruments beyond what is normally possible, reflecting the level of joint working that will be needed in relation to these powers. I will be speaking to the Government’s Clause 11 amendments shortly, when we reach the group beginning Amendment 89DA. I am sure noble Lords will appreciate that we have a number of further groups to get through on other parts of the devolution provisions before we reach that debate. The amendments provide what I hope to be welcome legal clarity. They reflect standard practice and the mechanisms for good, collaborative joint working between the Administrations. I beg to move.
Lord Wallace of Tankerness (LD)
My Lords, I am grateful to the noble and learned Lord for his explanation of these technical amendments. Can he say whether there is agreement among the devolved Administrations and the UK Government on these amendments?
Lord Griffiths of Burry Port (Lab)
My Lords, at last we have reached this stage, although I find it a little off-putting that we are coming to consequential, technical matters before we look at the meaty issue; but that will come, as was said.
I would like to pay the respects of those on our Benches to the serious way in which the Government have contributed through the joint ministerial group to the success of the proposals, and thank them for bringing them to us now. I would also like to thank Mark Drakeford from the Welsh Government and Mike Russell from the Scottish Government for the part they played, even if the latter has thus far been unable formally to sign up to the inter-governmental process. As the Minister said, we are going to discuss Clause 11 and neither of us can wait for that. It is coming in more detail later this evening. However, we on these Benches recognise and appreciate the progress that has been made. We have come a long way since the Bill was published and it is against that backdrop that this and subsequent groups of amendments should be considered.
The Labour Party has always been the party of devolution. While we will be watching the Government’s treatment of the devolved Administrations very closely throughout the Brexit process—that is our job—we recognise the genuine progress that has been made and welcome the amendments in this group. They allow United Kingdom and devolved Ministers jointly to exercise powers in Schedule 2 in order to make provisions that could not be made by a devolved Minister acting alone. This clarifies the use of so-called composite instruments, as the Minister said, and we hope paves the way for collaborative working between the devolved Administrations and the UK Government.
Other amendments in the group improve the position regarding ultra vires provision within instruments made under Schedule 2. I believe that the devolved Administrations previously raised concerns with the Government as to whether the courts would permit those parts of an instrument that were within competence to remain law. We are glad that Ministers and officials have responded positively to the appeals from the devolved bodies and that the amendments provide greater clarity for all involved. The group amounts to just one piece in the jigsaw puzzle. I usually start my jigsaws with the edge pieces. This looks like putting a piece in the middle and working around it in due course. It is a piece that these Benches are happy to support.
Lord Keen of Elie
My Lords, I am obliged to the noble Lord, Lord Griffiths, and note his comments. The amendments will provide not only clarity but a much needed flexibility when it comes to the application of the schedules.
With respect to the point raised by the noble and learned Lord, Lord Wallace of Tankerness, my understanding is that both devolved Administrations were content with the proposals. Indeed, much of the force for the first group of amendments came from them. I hope that satisfies noble Lords.
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for the Scottish Parliament to legislate incompatibly with EU law) for “with EU law” substitute “in breach of the restriction in section 30A(1)”.(2) After section 30 of that Act (legislative competence: supplementary) insert—“30A Legislative competence: restriction relating to retained EU law(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown.(2) But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the legislative competence of the Parliament.(3) A Minister of the Crown must not lay for approval before each House of the Parliament of the United Kingdom a draft of a statutory instrument containing regulations under this section unless— (a) the Scottish Parliament has made a consent decision in relation to the laying of the draft, or(b) the 40 day period has ended without the Parliament having made such a decision.(4) For the purposes of subsection (3) a consent decision is—(a) a decision to agree a motion consenting to the laying of the draft,(b) a decision not to agree a motion consenting to the laying of the draft, or(c) a decision to agree a motion refusing to consent to the laying of the draft;and a consent decision is made when the Parliament first makes a decision falling within any of paragraphs (a) to (c) (whether or not it subsequently makes another such decision).(5) A Minister of the Crown who is proposing to lay a draft as mentioned in subsection (3) must—(a) provide a copy of the draft to the Scottish Ministers, and(b) inform the Presiding Officer that a copy has been so provided.(6) See also paragraph 6 of Schedule 7 (duty to make explanatory statement about regulations under this section including a duty to explain any decision to lay a draft without the consent of the Parliament).(7) No regulations may be made under this section after the end of the period of two years beginning with exit day.(8) Subsection (7) does not affect the continuation in force of regulations made under this section at or before the end of the period mentioned in that subsection.(9) Any regulations under this section which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to any Act of the Scottish Parliament which receives Royal Assent after the end of that period.(10) Subsections (3) to (8) do not apply in relation to regulations which only relate to a revocation of a specification.(11) In this section—“the 40 day period” means the period of 40 days beginning with the day on which a copy of the draft instrument is provided to the Scottish Ministers,and, in calculating that period, no account is to be taken of any time during which the Parliament is dissolved or during which it is in recess for more than four days.”(3) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for the National Assembly for Wales to legislate incompatibly with EU law) for “with EU law” substitute “in breach of the restriction in section 109A(1)”.(3A) After section 109 of that Act (legislative competence: supplementary) insert—“109A Legislative competence: restriction relating to retained EU law(1) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown.(2) But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the Assembly’s legislative competence. (3) No regulations are to be made under this section unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.(4) A Minister of the Crown must not lay a draft as mentioned in subsection (3) unless—(a) the Assembly has made a consent decision in relation to the laying of the draft, or(b) the 40 day period has ended without the Assembly having made such a decision.(5) For the purposes of subsection (4) a consent decision is—(a) a decision to agree a motion consenting to the laying of the draft,(b) a decision not to agree a motion consenting to the laying of the draft, or(c) a decision to agree a motion refusing to consent to the laying of the draft;and a consent decision is made when the Assembly first makes a decision falling within any of paragraphs (a) to (c)(whether or not it subsequently makes another such decision).(6) A Minister of the Crown who is proposing to lay a draft as mentioned in subsection (3) must—(a) provide a copy of the draft to the Welsh Ministers, and(b) inform the Presiding Officer that a copy has been so provided.(7) See also section 157ZA (duty to make explanatory statement about regulations under this section including a duty to explain any decision to lay a draft without the consent of the Assembly).(8) No regulations may be made under this section after the end of the period of two years beginning with exit day.(9) Subsection (8) does not affect the continuation in force of regulations made under this section at or before the end of the period mentioned in that subsection.(10) Any regulations under this section which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to any Act of the Assembly which receives Royal Assent after the end of that period.(11) Subsections (4) to (9) do not apply in relation to regulations which only relate to a revocation of a specification.(12) In this section—“the 40 day period” means the period of 40 days beginning with the day on which a copy of the draft instrument is provided to the Welsh Ministers,and, in calculating that period, no account is to be taken of any time during which the Assembly is dissolved or during which it is in recess for more than four days.”(3B) In section 6(2)(d) of the Northern Ireland Act 1998 (no competence for the Northern Ireland Assembly to legislate incompatibly with EU law) for “incompatible with EU law” substitute “in breach of the restriction in section 6A(1)”.(3C) After section 6 of that Act (legislative competence) insert—“6A Restriction relating to retained EU law(1) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown. (2) But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the legislative competence of the Assembly.(3) A Minister of the Crown must not lay for approval before each House of Parliament a draft of a statutory instrument containing regulations under this section unless—(a) the Assembly has made a consent decision in relation to the laying of the draft, or(b) the 40 day period has ended without the Assembly having made such a decision.(4) For the purposes of subsection (3) a consent decision is—(a) a decision to agree a motion consenting to the laying of the draft,(b) a decision not to agree a motion consenting to the laying of the draft, or(c) a decision to agree a motion refusing to consent to the laying of the draft;and a consent decision is made when the Assembly first makes a decision falling within any of paragraphs (a) to (c)(whether or not it subsequently makes another such decision).(5) A Minister of the Crown who is proposing to lay a draft as mentioned in subsection (3) must—(a) provide a copy of the draft to the relevant Northern Ireland department, and(b) inform the Presiding Officer that a copy has been so provided.(6) See also section 96A (duty to make explanatory statement about regulations under this section including a duty to explain any decision to lay a draft without the consent of the Assembly).(7) No regulations may be made under this section after the end of the period of two years beginning with exit day.(8) Subsection (7) does not affect the continuation in force of regulations made under this section at or before the end of the period mentioned in that subsection.(9) Any regulations under this section which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to any Act of the Assembly which receives Royal Assent after the end of that period.(10) Subsections (3) to (8) do not apply in relation to regulations which only relate to a revocation of a specification.(11) Regulations under this section may include such supplementary, incidental, consequential, transitional, transitory or saving provision as the Minister of the Crown making them considers appropriate.(12) In this section—“the relevant Northern Ireland department” means such Northern Ireland department as the Minister of the Crown concerned considers appropriate;“the 40 day period” means the period of 40 days beginning with the day on which a copy of the draft instrument is provided to the relevant Northern Ireland department,and, in calculating that period, no account is to be taken of any time during which the Assembly is dissolved or during which it is in recess for more than four days.””
Lord Keen of Elie
My Lords, to be clear, the noble and learned Lord, Lord Wallace, indicated that he was not going to move Amendment 89, but government amendment 89AA was to follow from that amendment so I would just like to address our amendment in order to avoid confusion. I am afraid that this is like one of those smart restaurants where you get a series of amuse-bouches before you get to the main course.
Amendment 89AA replicates the restriction that we have already applied to Clause 9 on the withdrawal agreement power in relation to imposing fees and charges for the corresponding power for devolved Ministers. This follows exactly the same rationale as the Clause 9 power. It has never been our intention for these powers to be used to impose fees; that is the preserve of the bespoke Schedule 4 powers, which are exercisable by devolved Ministers and should be subject to the limits that apply to those powers. This same restriction has already been applied to both the correcting power in Clause 7 and its Schedule 2 equivalent. The devolved Administrations were informed in advance of our intention to apply this restriction to that power and have agreed to its effect, so I hope noble Lords will support the amendment.
I turn to Amendment 89DA and the group that follows it. I thank noble Lords for their constructive engagement on this important issue during the passage of the Bill. The Government have now tabled a comprehensive set of amendments to Clause 11. We have worked with the Scottish and Welsh Governments to develop them, and noble Lords will recognise that we have drawn heavily on their consideration of our initial amendments in Committee. I put on record our thanks to this House, and to the Scottish and Welsh Governments for their endeavours in crafting these amendments. We are immensely pleased that the Welsh Government have agreed this approach and I am of course disappointed that the Scottish Government have not. I hope they will sign up in due course.
The intention behind Clause 11 as originally drafted was to provide maximum legal certainty across the UK to our communities and businesses after EU exit in areas that are subject to a common EU framework. As the Welsh Government aptly put it,
“it is essential to provide legislative continuity at the point at which the UK leaves the EU”.
We know, of course, that the EU has common legislative arrangements across a vast range of areas, but we must now decide in which policy areas we may need to continue those common arrangements legislatively, informally or not at all. To provide the time to do that work and provide assurances that there would not be immediate divergence across the UK, the original Clause 11 sought to freeze the law in all those areas.
We are all familiar with the views of the devolved institutions on this clause, and of course the Government have accepted the case for a more targeted and proportionate approach. This has been supported by the work that we have been doing with the devolved Administrations on assessing these current frameworks. Since we agreed the framework principles, which set out why common approaches may be needed across more than one part of the UK, our Governments have worked closely to analyse those policy areas that sit across devolved competence and EU law.
Noble Lords will recall that in March we published our initial analysis. It demonstrated that our work with the devolved Administrations indicated that legislative frameworks may be needed, in whole or in part, in only 24 of the 153 areas that had been identified, and 82 areas could be managed through more informal, non-legislative arrangements. The remaining 49 areas would likely require no further arrangements at all. We also agree that where common approaches are needed, they cannot all be designed and implemented by exit day. So it continues to make sense to maintain existing frameworks and provide certainty over which areas may be subject to change in the future, but we can and should do this in a more measured way.
Our amendments in Committee set out targeted mechanisms for doing so, following discussions with the Scottish and Welsh Governments. We have carried forward the basic proposition from Committee and have built on that in the amendments that we have put forward today. Our amendments would see powers returning from the EU in otherwise devolved areas pass directly to the devolved institutions. Where a common legislative framework may be required, we propose to freeze the current arrangements to provide the time to establish our own framework for the UK. This would apply only to those policy areas that have been explicitly frozen through regulations, rather than across all policy areas where EU law currently creates common frameworks. That was the proposal that we put forward in Committee and that we had been discussing with the Welsh and Scottish Governments. We withdrew our amendments because discussions with those Governments were ongoing and we were committed to continuing them. Our Committee proposal was a substantial, but not a final, offer. It meant that noble Lords were able to debate the very latest proposition and inform those discussions.
One theme raised here and by the devolved Administrations was consent. The devolved Administrations thought it right that there was a role for the devolved legislatures in deciding whether specific areas should be the subject of a freeze. We also heard that in the debate in this House. This House agreed that a role for the devolved legislatures was important in this process, but that it must be balanced against preserving the right—indeed, I would say, the responsibility —of the United Kingdom Parliament to act, where there may be a cross-United Kingdom impact. Only the UK Parliament can do that.
The Government listened carefully to the submissions on this matter and reflected them in discussion with the devolved Administrations over Easter. We have amended the Committee proposal. We shall seek to agree which areas should be subject to a freeze. This is part of the bigger frameworks question that we continue to progress.
We should also have the view of the devolved legislatures, not just the Administrations. Our amendments ensure that, before the UK Government may lay regulations in draft in this House, they must have sent them to the devolved Administrations and sought the consent of the legislatures. The devolved legislatures will have 40 days in which to decide whether to give or withhold consent for the regulations. Only after that decision is given or the 40 days have passed can the United Kingdom Government lay the regulations before Parliament. This process is built on collaborative working. It favours agreement for freezing areas, but also recognises that if agreement cannot be reached, it must be for the UK Parliament to decide what is in the interests of the UK as a whole.
We believe that this approach should minimise areas of disagreement, as we have also developed a comprehensive intergovernmental agreement that supports and complements the legislative amendments we are considering today. It emphasises that we will work on these regulations together and in advance of sending them to the devolved Administrations formally.
Where there is unavoidable disagreement and the United Kingdom Government consider that they must proceed in the absence of consent from a devolved legislature, UK Ministers would be under an express legal duty to provide this Parliament with a Statement, and, if provided, a statement from the devolved Administration on why consent was not being granted. The UK Minister will be under a duty to explain to Parliament why the Government consider that they must proceed without that consent. Parliament will decide on the case presented: whether it is indeed in the best interests of the United Kingdom to freeze a specific policy while we implement new arrangements.
I should also remind noble Lords of the additional reporting duties on UK Ministers. I do not wish to repeat the detail that I provided to the House on them in Committee. Needless to say, they ensure heightened accountability by providing transparency to the process of developing frameworks, the use of the regulation-making powers and where frameworks are maintained in the short term. They will also require us to report on those principles that underpin this work, the principles agreed between the United Kingdom, Scottish and Welsh Governments at the Joint Ministerial Committee in October last year. Through this, our work on future frameworks is open to the scrutiny of this Parliament and of the devolved legislatures.
The other key change to the amendments that I should mention, as compared to the proposals that noble Lords considered in Committee, is the addition of sunset provisions for both the new powers and the regulations made under them. This was raised explicitly by noble Lords in Committee. We have always said that any freeze under Clause 11 would be temporary. The amendments place that beyond doubt by making it explicit in law.
I am grateful to noble Lords for the constructive manner in which they have engaged with the question of sunsets. In particular, I must give due credit to the noble and learned Lord, Lord Wallace, for the tenacity with which he has pursued this, including by tabling his amendments. I hope that he will be satisfied that his concerns in this respect have been addressed and will feel able not to press those amendments.
The powers last for only two years from exit day. This aligns them with the other powers in the Bill and makes certain that they will not be an ongoing mechanism for limiting competence. The regulations will also be time-limited. We have had in-depth discussions with the devolved Administrations on how long is needed to determine and implement our future frameworks. We have settled on a period of five years from when regulations come into force.
Lord Keen of Elie
I am most obliged to noble Lords for their contributions to this debate. I am essentially moving a series of very complex and extensive amendments to the Bill, from Amendment 89DA through to Amendment 92AD, with consequential amendments from Amendment 89DB through to Amendment 117C. The noble and learned Lord, Lord Wallace, has moved his own amendments on sunsetting constraints, which I shall address; and the noble and learned Lord, Lord Hope, has moved extensive amendments from Amendment 89DAA through to Amendment 92BBA—and, indeed, could have extended his Motion for amendment further than that, I suspect.
At the heart of this lies a simple principle. The EU has developed and maintained a single market for the benefit of the members of the Union. As we exit the EU, we are anxious to maintain a single market for the benefit of the union of the United Kingdom. That is what it comes to. In doing that, we must of course respect the devolution settlement and the position of the devolved entities and parliaments, whether in Scotland, Wales or Northern Ireland—even though at present it is not sitting as an Executive, which we acknowledge.
I am not going to address the original Clause 11. Noble Lords have expressed their views on that and I do not need to either add to them or necessarily rebut them; we are anxious to move on, and to move this amendment. What are we intent on doing? Well, I would counter the suggestion from the noble Lord, Lord Wigley, that this is a power grab. Such rhetoric has been thrown about before, of course, and I do not feel that it would advance matters to engage with that sort of rhetoric. I just remind noble Lords of the terms of the amendment itself. If your Lordships have the Marshalled List of amendments, at page 7—or, for the noble Lord, Lord Wigley, page 8, where it refers to Wales—I simply read out proposed new Clause 30A(1):
“An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown”.
We know that there is then an elaborate process for the making of those regulations; the noble Lord, Lord Thomas of Gresford, referred to the stages that would be gone through in the making of those regulations. Let us then look at subsection (2):
“But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the legislative competence of the Parliament”.
There is no intention here to intrude upon the existing legislative competence of the parliaments. But of course, as powers come back, it is necessary to consider which of those powers have to be maintained in order that we can have a functioning internal market in the United Kingdom. That is the objective and what we seek to do. All powers pass to the devolved Administrations on exit day where no regulations have been made under the proposed amendment. That is the right policy outcome that we have agreed with the Welsh Government and which we still seek to agree— I emphasise still—with the Scottish Government.
That takes us on to the question of how the frameworks have been arrived at. Noble Lords will recollect that, at the Joint Ministerial Committee in October last year, the principles to be applied were agreed by all those attending: the Welsh Government, the Scottish Government and the United Kingdom Government. I just add in response to a point raised by the noble and learned Lord, Lord Wallace, that where he finds reference in the amendments to “principles”, that refers to the principles that were agreed at that stage and are carried over in the agreements. At the present time, we have identified 24 areas of retained EU law—or what will be retained EU law—where we require frameworks to maintain an internal United Kingdom market. There is debate about some additional areas, which will have to be addressed in due course. We have focused our attention now on 24; it may be fewer at the end of the day, as we talk our way through them, because they apply only to particular areas of policy, not to one general area. We are not talking about agriculture or fisheries, we are talking about discrete aspects of these policy areas that are perceived to be necessary in order to maintain the UK internal market.
Perhaps before I move on, because a number of noble Lords have raised the point, I should address the question of how the regulations will operate. That can be seen from the proposed amendment, and there are two elements to it. Proposed subsection (7) says:
“No regulations may be made under this section after the end of the period of two years beginning with exit day”.
That is the first period of two years. If no regulations have been made in respect of what is perceived to be a necessary framework, no regulations will be made. Proposed subsection (9) says:
“Any regulations under this section which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to any Act of the Scottish Parliament which receives Royal Assent after the end of that period”.
Therefore, in so far as we have not taken that forward, these powers will then revert to the appropriate authority.
Lord Wallace of Tankerness
It seems that we have an explanation. Were officials of the Scottish Government involved in that and, if in-depth work has been done, would the Minister help the House by publishing it?
Lord Keen of Elie
I am not in a position to say that such work would be published, because of course it has been on the basis of engagement between officials dealing with this. I do not believe that there is any official report to that effect; it is just a matter of the product of engagement between officials negotiating these matters. Therefore I cannot indicate that we will publish anything in that regard. That is to try to explain the position with regard to the sunset clauses in the regulations. I turn to the question—
Lord Thomas of Gresford
The Minister was about to tell us about the gap my noble friend introduced between exit day and the making of the regulations.
Lord Keen of Elie
I am obliged to the noble Lord. There may be a situation in which powers go to the devolved Administrations and yet they do not deal with those powers, and it may be considered that upon further consideration there are additional areas where frameworks ought to be based on a UK-wide determination and where regulations would be made. But as the noble Lord himself observed, that regulation-making process would involve us consulting the Scottish and Welsh Governments—and, I hope at that stage, a Northern Ireland Executive—so that we could secure their consent. Only if there was a failure to secure the consent would the matter go forward to this Parliament, with two clear safeguards. First, the Minister of the Crown would have to explain to Parliament why he was seeking to make those regulations without the consent of a devolved Administration, and secondly, there would be an opportunity for the devolved Administration to make their representations to this Parliament as to why they felt it appropriate to withhold their consent. But, as I said, there may be a period after exit when it occurs to parties that it might be appropriate to proceed in that way.
Turning to the question of where we are with the Scottish Government, I begin by saying that the door—
Lord Kerr of Kinlochard (CB)
Before the noble and learned Lord moves on, did I miss it or has he answered the point made by the noble and learned Lord, Lord Mackay, on when the sun will rise before it spins across the sky for five years? When does it start? Is it with the particular regulation?
Lord Keen of Elie
I am obliged to the noble Lord, Lord Kerr. My understanding is that the five-year period will commence from the point at which the regulation is made.
Lord Kerr of Kinlochard
So in practice we could be looking quite a long way ahead—it is five plus X.
Lord Keen of Elie
I am tempted to mention here the noble Countess, Lady Mar.
Lord Keen of Elie
But I will not. If the noble Lord wishes me to elaborate on the operation of the sunset clauses, I would be quite content to write to him. At this stage, perhaps I can continue—with the encouragement of the noble Lord, Lord Griffiths—to address the question of the Scottish Government.
We are extremely grateful that we have achieved consensus with the Welsh Government and will be able to take this forward with their wholehearted agreement. I will come on to one or two points raised by the noble and learned Lord, Lord Morris, in a moment. As far as we are concerned, the door is still open for the Scottish Government, and we would be anxious to see them come through it so that we can take this forward with the agreement of all the Administrations in the United Kingdom. However, we are where we are at the present time. As regards their proposed amendments, they would, by different routes, result in a situation in which one of the devolved Administrations would effectively hold a veto over the implementation of UK-wide legislation for the maintenance of the UK internal market. That, I respectfully suggest, could not and would not be appropriate.
The exit from the EU raises complex questions with regard to the construction and application of the Scotland Act 1998 because, in 1998, such an exit was never contemplated. Reference has been made to Schedules 4 and 5 to the Scotland Act 1998 and the mechanisms for their amendment, but, as we were reminded by the noble and learned Lord, Lord Wallace, those are not the only mechanisms that impact upon the competence of the Scottish Parliament. We have to look at the terms of Section 29 of the 1998 Act, which as the noble and learned Lords, Lord Wallace and Lord Mackay, observed raises issues with regard to territoriality in respect of the competence of the Scottish Parliament. I do not want to go into the detail of that at present, but one notices that its competence is limited in that respect, and by reference to EU law as well. Therefore, we do not consider that, at the end of the day, we can appropriately accept a situation in which the devolved Administration can exercise a veto over the exercise of power by the United Kingdom Parliament in situations where it is being exercised for the benefit of the UK as a whole. I hope that that goes some way to explaining, without looking at the complexities of the 1998 Act, why we do not feel we are in a position to accept the position expressed by the Scottish Government on this point.
We simply regret the fact that, despite the very significant efforts—I underline “significant”—of the representatives of the Welsh Government and the Scottish Government in producing an outline agreement, it has not been possible to persuade the Scottish Government to join us on that point.
The noble Lord, Lord Wigley, suggested that this might reflect a lack of trust. As I have observed on previous occasions, this is not an issue of trust. This is an issue of constitutional propriety. Whatever view one takes of the devolved settlement and of where we are with regard to the legislation on that, at the end of the day it is not appropriate to accept that one of the devolved Administrations could effectively exercise a veto over legislation for the benefit of the other members of the Union—namely England, Wales and Northern Ireland.
Lord Wigley
I thank the Minister for the detail in which he is responding to this debate and the work that he has undertaken. None the less, there may be issues such as the sheep meat regime, which we have used in a number of circumstances as an example where the differential impact of policies in one area such as Wales may be much greater than the impact in other areas. To that extent, the wishes of the Welsh Government in that context should have a greater weight, in the same way as when Welsh Ministers represent the UK in the Council of Ministers to discuss the sheep meat regime. Is it not possible to fine-tune the Government’s proposals to enable that happen?
Lord Keen of Elie
With respect, I must say that it is our clear intention, which is reflected in the memorandum of understanding in the agreement, that we will engage with the devolved Administrations in the consideration of these framework agreements and their application. Of course, these matters will be taken into account at that stage. But I do not consider it appropriate to bring that sort of granular detail into this Bill, which is designed for a very specific purpose. I hear what the noble Lord says and, clearly, we wish to proceed on the basis of mutual respect and understanding with the other devolved Administrations.
In that context, I underline the point in response to a query raised by the noble and learned Lord, Lord Hope, speaking, I understand, on behalf of the Scottish Government who are not otherwise represented in this House. There is no question of this process under Clause 11 being somehow the thin end of the wedge so far as the devolution settlement is concerned. The devolution settlement is a reality of our constitutional situation and one that we extended under the 2016 Act, really quite recently, in light of the Smith review. We continue to respect, understand and wish to apply the devolution settlement. But it is a devolution settlement that has to work for everyone in the United Kingdom. I return to the point that it cannot work for everyone in the United Kingdom if one devolved Assembly or Government assume that they have the ability to exercise what amounts to a veto over legislation that is relevant, pertinent and important to the entirety of the United Kingdom.
I move on to address one or two additional points raised by noble Lords in respect of these matters. The noble and learned Lord, Lord Morris of Aberavon, referred to finance and whether the Welsh Government had missed a trick. I do not believe that they did for a moment. Indeed, they put themselves one step ahead by embracing this agreement and the amendment. But the noble and learned Lord raised a point about funding. He is right to point out that our agreement for the Welsh Government does not speak to funding but that is not to say that funding has been forgotten or put to one side. Clearly, it is a matter that will be addressed. We recognise the importance, for example, of the Barnett formula. We understand why there is concern, particularly about agricultural funding under CAP Pillar 1 under the current EU budget that runs to 2020. We have provided a degree of certainty by promising to continue to commit the same total cash funds for farm support across the UK until 2022. At present, the Secretary of State for the Environment is in close discussion with his counterparts in the Welsh and Scottish Governments on exactly how our agricultural systems should work outside of the EU. I stress that that is not a matter for this Bill. This is the Bill that provides for our exit and our exit alone, so I hope that the noble and learned Lord will accept that. He raised the question of public procurement—again, these issues are not for this Bill but we are clearly conscious of them and they will have to be addressed.
The noble Lord, Lord Griffiths, also raised the question of whether further areas might be the subject of reservation under the freezing provisions of the amendment. We have identified 24 areas for frameworks but a number of other areas that could be the subject of regulations going forward are still subject to discussion. I acknowledge that. Noble Lords may recollect that we published the list of frameworks and included not only the 24 areas I have referred to, but a further 12 where there is ongoing discussion about how they will be addressed and resolved.
I am conscious that I have not answered every question that has been posed. If noble Lords are concerned that I have not addressed a point that still concerns them about Clause 11, as amended, I would be content to receive their queries and write to them. In the event that I write to any noble Lords on this issue or any issue relating to this clause, I will place a copy in the Library. I seek to reassure noble Lords on that point. With that, I will formally move each amendment. I am sorry—the noble and learned Lord, Lord Hope, has to reply.
Lord Hope of Craighead
My Lords, it is for me to say what will happen to my Amendment 89DAA, which is an amendment to Amendment 89DA, moved by the noble and learned Lord the Minister.
I want to make a few short points. First, I want to pick up on a remark made by the noble Lord, Lord Thomas of Gresford, that he will not accept the opprobrium that was visited on the Scottish Ministers for the way they conducted themselves in these negotiations. Having had discussions with Michael Russell and the Lord Advocate—like the noble and learned Lord, Lord Mackay of Clashfern—the points I put forward in my introduction to my amendment were sincerely held. Those points were not made to cause trouble. The Lord Advocate in particular gave advice on his reading of the Scotland Act; Michael Russell, for his part, was entirely genuine in his points about principle as well. That should be clearly understood.
When I was in practice at the Scottish Bar, I was junior to the noble and learned Lord, Lord Mackay of Clashfern. As he pointed out, if I appeared with him, I would speak first; it would then be his function, as my senior, to speak second. Quite frequently, I found that when he spoke, he refined the kind of argument that I was attempting to put forward. It took on a slightly different—rather more attractive, perhaps—appearance after he had refined it. As he pointed out in his speech, the points that I made about the construction of Section 30 and the other sections do not really apply in the situation with which we are dealing here. I was grateful for his remark that the situation is unique and not seeking in any way to undermine the devolution settlement. I am extremely grateful to the Minister for making the same point that there is no question of this being the thin end of the wedge or in any way seeking to undermine the devolution settlement, to which he wishes to adhere. These remarks should help a lot in reassuring those in Scotland on how they should approach the continuing discussions. I was glad to hear from the Minister that the door is still open; I think that the Scottish point of view still regards the door as open too.
Perhaps this debate has refined things and shown that the purist argument—that of principle—does not really apply here. This is not about trying to construct the market that we were trying to construct in 1998, which was done by separating out the bits that mattered for that market into Schedule 5 so that they were clearly identified. We are dealing with a different, rather more subtle, situation in trying, as the Minister said, to create a functioning internal market with what has come back to us from Europe. That requires a rather more subtle approach that is not really dealt with in the Scotland Act, for understandable reasons. That being so, I hope very much that the way forward will be pointed by our discussion this evening. Without any further ado, I beg leave to withdraw my amendment.
Lord Keen of Elie
My Lords, I intervene to raise a point that I have spoken to the clerk about. Noble Lords might recollect that earlier in the evening I gave a passing imitation of a rabbit in headlights. The reason for that was that it appeared to me that the amendments in group three had been moved and agreed without me speaking to them—which is absolutely ideal, as far as I am concerned. They are highly technical amendments, but I felt I should mention that to the House, lest any noble Lord wishes me to speak to them. As I said, they have been agreed, but noble Lords did not have an opportunity to hear my dulcet tones on the subject.
Lord Callanan
Lord Callanan
Lord Hope of Craighead
My Lords, I have put my name down in support of the amendment. The arguments which led me to do that are those which I set out when I was moving my amendment earlier this evening, so I need not take up the time of the House in repeating them. What I said earlier is the full explanation as to why I put my name down.
Lord Keen of Elie
My Lords, I thank the noble Lord for his amendments, which are pertinent given the different positions of the Scottish and Welsh Governments and the imminent timing of votes in their legislatures that will address consent.
The Government have been clear that they wish to make the positive case for consent for this Bill. We have not just talked about our commitment to making that case but have shown it. We have engaged in extensive discussions with the devolved Administrations and have now introduced the amendment to Clause 11 that we have just discussed at some length to try to meet the expectations of the devolved legislatures. I hope that the noble Lord, Lord Wigley, will accept that our commitment to the legislative consent process is reflected in the agreement that we struck with the Welsh Government last week.
This is the legislative consent process in action. We have put forward policy objectives; we have worked through the differences, and we have found an appropriate compromise. As a result, the Welsh Government have recommended that the National Assembly for Wales grant legislative consent to the Bill when it votes on this matter, I believe, on 15 May. The Welsh Government agree that our amendments now strike the right balance between providing legal certainty and maximising assurances to the devolved legislatures on how we will jointly manage the process of powers returning from the EU in otherwise devolved areas. Of course we are disappointed that we have not been able to reach the same agreement with the Scottish Government, but this, I suggest, is not for want of trying. I stress again that time remains for the Scottish Government to join this agreement, so that we can all demonstrate that we have done what we consider to be the responsible thing in this context.
Lord Wigley
I ask for one point of clarification from the Minister. Does he not accept that there is a real danger of confusion in the public mind between allowing a consent order and actually getting consent? In other words, the process can be one where consent is given, is not given or is refused, but whichever of those three outcomes it is, the process can still go on for a parliamentary resolution here by order; and we know that orders, in the House of Commons and here, go through on the nod most of the time. Is that not a deception, giving the impression that there is a consent mechanism when, in fact, it is a pretty meaningless one?
Lord Keen of Elie
I simply do not accept the noble Lord’s characterisation of the matter. It is clearly the case that where consent, for example, was sought and not obtained, it would be necessary for the Minister of the Crown to address that, very clearly and specifically. There would be the opportunity, as there always is, for the devolved Administration to make their own views clear as to why they had declined consent. I do not believe that this is in any sense deceptive, misleading or a mirage. These are constitutional requirements that are adhered to and that will be adhered to. It would not be appropriate to introduce the sort of amendment moved by the noble Lord that would, in effect, tie the hands of this sovereign Parliament, so far as this exit process is concerned. Whatever view one might take about the merits of exit, that is neither here nor there. This is a constitutional principle with regard to the sovereign Parliament of the United Kingdom when it comes to legislate for the benefit of the entirety of the United Kingdom. I therefore urge the noble Lord to withdraw his amendment, and indicate that I would not expect to return to this matter at Third Reading.
Lord Wigley
I am very grateful to the Minister. I have heard that form of words from his colleagues in the past. Clearly, this is a matter on which there may be a difference of opinion. I realise the need for there to be coherence on a UK scale but there are matters which have a specific effect in Wales, Scotland or Northern Ireland where their interests need to be taken into account. Clearly, we are not going to make progress on this tonight. Therefore, on the basis of the discussion we have had, I beg leave to withdraw the amendment.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
I thank noble Lords who have participated in the debate; we all agree it is very late in the evening for such an important issue. I thank the noble Lord, Lord Wigley, for bringing this to the attention of the House and putting his case very crisply. We have already debated possible structures for the UK Government and devolved Administrations to come together in consideration of common frameworks. I do not want to simply repeat those arguments, particularly at this time of the evening, so I will not.
It is important to note that the Government are currently reviewing the existing intergovernmental structures with the devolved Administrations, as agreed by the Prime Minister and First Ministers at the meeting of the JMC plenary on 14 March. It is important that the review closely aligns with our work on future common frameworks. That undertaking was given then, and it is something that we are looking at.
I note a certain irony in the proposal from the noble Lord, Lord Wigley, that, had this been on the statute book, I presume he would have been championing our agreement with the Welsh Government and saying that it was effective because two Administrations out of the three had agreed to it. Nevertheless, despite that very handy point, I must say that I cannot accept what he is arguing for—not for that reason, obviously, but for others.
We have shown that we are flexible in responding to the devolved Administrations’ requests or concerns regarding the operation of the current structures, including on the management of meetings and the content of discussions. We have all benefited from that process. Why would we not want that to be the case? I believe the pragmatism and flexible approach that we have seen, particularly from the Welsh Government—but, yes, extending certainly to Mike Russell’s approach—is something that has benefited us all. However, we do not agree that the solution would be for intergovernmental relations to be placed on a statutory footing, as suggested by the noble Lord, particularly in this amendment. In all fairness, I think he anticipated this point in saying that he realised that it would not perhaps find total favour with the Government, a point on which he is correct.
That said, we hear much of the failures of our intergovernmental structure and no doubt it could be improved, but we do ourselves a disservice if we do not also recognise its successes. I thank the noble Baroness, Lady Finlay, very much for her kind comments about the Government’s approach and about me particularly; I am very grateful for that. She noted that the JMC (EN) has been very effective. It now meets frequently under the chairmanship of my right honourable friend the Chancellor of the Duchy of Lancaster, who has also continued to meet his counterparts frequently between meetings. Indeed, the committee has met today and has made some progress.
We should note that it is through the effective working of the committee that we have been able to make the progress that we have on Clause 11, and it is through this that we have reached agreement with the Welsh Government on the proposals before noble Lords today. Like other noble Lords, I place on record our thanks and our respect for Mark Drakeford, a competent Minister in the Welsh Assembly—not someone with whom I would agree politically on many occasions but he has shown a flexible, pragmatic and collaborative approach. This is grown-up politics in devolution days, and that is the way to move things forward. There was evidence of some of that approach in Scotland as well, to be fair, but ultimately, as we have noted, the JMC is not a decision-making forum. Its role is just to make an agreement that then goes elsewhere—for understandable reasons. That is something else on which I disagree with the noble Lord; I do not think it can be a decision-making body. I can see the use of bringing people together, which we are doing. It is flexible, and that is the way our constitution operates.
I note the points made by the noble Lord, Lord Thomas of Gresford. Some I would agree with, but I cannot really think of anything more chilling than putting it on an inflexible statutory basis, other than the earlier prospect when the noble Lord talked about his appearance in Aberdeenshire in a kilt. That was probably somewhere along the same lines—somewhat chilling. On a serious note, though, I have to say that although I agree it is good to have bodies where we can discuss these issues, flexibility, as this has demonstrated, is of great use.
We must, as we are doing, foster a culture of collaboration, close working and, yes, compromise, which we have seen in the discussions. That is the way to move things forward in the sort of structure we have in our country, in the make-up of the four nations.
I agree with the noble Lord, Lord Adonis, that England is the dog that does not bark—or has not so far. I agree with him on the absence of the word “England” in the amendment of the noble Lord, Lord Wigley. Obviously, the Prime Minister of the United Kingdom, who, as we know with Gordon Brown, does not need to represent an English constituency, is Prime Minister of the whole of the United Kingdom. That perhaps exhibits the difference between me and the noble Lord, Lord Wigley, for whom I have the greatest respect. He perhaps let the cat out of the bag on that point: he or she is not Prime Minister of England but of the whole state.
That said, some important points that we will want to consider have been made this evening. I noted with seriousness the points made by the noble Baroness, Lady Hayter, and have sympathy with the need for some structure that underpins the union. As unionists, we would applaud that. I have always said that the noble Lord, Lord Wigley, is at the acceptable end of Plaid Cymru—he sees the sense of the workings of the union—and I thank him for his input, which I know is well made.
I turn to some points made by the noble Lord, Lord Adonis—off piste but I will happily pick them up—about the Committee of the Regions. Perhaps other noble Lords will confirm this, but I believe that I have written to noble Lords about a meeting that not I but my honourable friend in the other place, Rishi Sunak, had with leaders of local government. That meeting has taken place. If noble Lords have not received the letter yet, it means that it has not yet gone out, but it is certainly in the system. It indicates that it was a positive meeting and that there would be more.
Here we go into the devolved structures that are now very much part of our system. The noble Lord will appreciate that on devolved matters, the Welsh, Scottish and—when that part of the country is up and running with power-sharing—Northern Ireland local government leaders will be in discussion with the devolved Administrations. That is of course a matter for them to take forward. We are taking it forward with all local government leaders, but, in relation to Scotland, Wales and Northern Ireland, only on those matters that are reserved to us. It was a positive meeting—the letter will outline the progress made—but there are to be more meetings. I cannot remember saying anything other than that, and that is all I am able to convey at this stage.
With that, at this very late hour, I thank noble Lords for their contributions on serious issues. I will ensure that the noble Lord, Lord Thomas of Gresford, who made some very technical but, I am sure, valid points, gets a full response. I respectfully ask the noble Lord, who is my noble friend in personal terms, to withdraw the amendment.
Lord Wigley
I am very grateful to the noble Lord, Lord Bourne. I take the opportunity to thank him for—
Lord Bourne of Aberystwyth
I am very grateful to the noble Lord, Lord Wigley, for giving way. One thing I forgot to say, which I know he will be anticipating, is that we will not be coming back to this issue. I know that he was probably coming on to the fact that I had not said that, so let me say now that we will not be coming back to this at Third Reading, so if he wishes to press the issue, he should do so now.
Lord Wigley
My Lords, seeing the noble Lord, Lord Callanan, sitting next to the noble Lord, I took that as read at this stage of the debate.
I wanted to put on record my appreciation and thanks to the noble Lord, Lord Bourne, for the consultation and the opportunity to discuss various aspects of the Bill. I hope that we can take advantage of that in future. I also thank everyone who has taken part in the debate—the noble Baroness, Lady Finlay, the noble Lord, Lord Thomas of Gresford, the noble Lord, Lord Adonis, who has stood up so effectively for England, and the noble Baroness, Lady Hayter—for their contributions.
I have just a couple of quick points. Of course, there needs to be thought about how England comes into any such structure, but the same argument exists now as it probably did 100 years ago: whether it is England as a whole or England on a regional basis, and how that interplays when you have national units elsewhere. That needs to be thought through.
I will obviously withdraw the amendment in a moment, but I hope that out of this debate, two avenues of thought can proceed on the post-Brexit situation. One is, what will become the equivalent of the Council of Ministers when we have a multinational United Kingdom as a single market? Thought needs to be given to that, and it may be something that can be pursued outside.
Secondly, if we cannot put the JMC on a legislative basis, how can we at least make it much more formal and therefore more effective, so that it plays the role it has the potential to play? As the noble Lord, Lord Thomas, outlined, it has not always done so as effectively as it should. I hope that the noble Lord, Lord Bourne, might be able to sow the seeds of thinking on that in other parts of government, and that we do not allow the water just to run into the sand from this short debate tonight. On that basis, I beg leave to withdraw the amendment.
Lord Callanan
(5) But subsection (4) does not apply—(a) so far as the modification would be within the legislative competence of the Parliament if it were included in an Act of the Scottish Parliament, or(b) to the making of regulations under Schedule 2 or 4 to the European Union (Withdrawal) Act 2018.(6) A Minister of the Crown must not lay for approval before each House of the Parliament of the United Kingdom a draft of a statutory instrument containing regulations under subsection (4) unless— (a) the Scottish Parliament has made a consent decision in relation to the laying of the draft, or(b) the 40 day period has ended without the Parliament having made such a decision.(7) For the purposes of subsection (6) a consent decision is—(a) a decision to agree a motion consenting to the laying of the draft,(b) a decision not to agree a motion consenting to the laying of the draft, or (c) a decision to agree a motion refusing to consent to the laying of the draft;and a consent decision is made when the Parliament first makes a decision falling within any of paragraphs (a) to (c) (whether or not it subsequently makes another such decision).(8) A Minister of the Crown who is proposing to lay a draft as mentioned in subsection (6) must—(a) provide a copy of the draft to the Scottish Ministers, and(b) inform the Presiding Officer that a copy has been so provided.(9) See also paragraph 6 of Schedule 7 (duty to make explanatory statement about regulations under subsection (4) including a duty to explain any decision to lay a draft without the consent of the Parliament).(10) No regulations may be made under subsection (4) after the end of the period of two years beginning with exit day. (11) Subsection (10) does not affect the continuation in force of regulations made under subsection (4) at or before the end of the period mentioned in subsection (10).(12) Any regulations under subsection (4) which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to the making, confirming or approving of subordinate legislation after the end of that period.(13) Subsections (6) to (11) do not apply in relation to regulations which only relate to a revocation of a specification.(14) The restriction in subsection (4) is in addition to any restriction in section (Status of retained EU law) of the European Union (Withdrawal) Act 2018 or elsewhere on the power of a member of the Scottish Government to make, confirm or approve any subordinate legislation so far as the legislation modifies retained EU law.(15) In this section—“the 40 day period” means the period of 40 days beginning with the day on which a copy of the draft instrument is provided to the Scottish Ministers,and, in calculating that period, no account is to be taken of any time during which the Parliament is dissolved or during which it is in recess for more than four days.””
Lord Callanan
(8A) But subsection (8) does not apply— (a) so far as the modification would be within the Assembly’s legislative competence if it were included in an Act of the Assembly, or(b) to the making of regulations under Schedule 2 or 4 to the European Union (Withdrawal) Act 2018.(8B) No regulations are to be made under subsection (8) unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.(8C) A Minister of the Crown must not lay a draft as mentioned in subsection (8B) unless—(a) the Assembly has made a consent decision in relation to the laying of the draft, or(b) the 40 day period has ended without the Assembly having made such a decision.(8D) For the purposes of subsection (8C) a consent decision is—(a) a decision to agree a motion consenting to the laying of the draft,(b) a decision not to agree a motion consenting to the laying of the draft, or(c) a decision to agree a motion refusing to consent to the laying of the draft;and a consent decision is made when the Assembly first makes a decision falling within any of paragraphs (a) to (c) (whether or not it subsequently makes another such decision).(8E) In subsection (8C)— “the 40 day period” means the period of 40 days beginning with the day on which a copy of the draft instrument is provided to the Welsh Ministers,and, in calculating that period, no account is to be taken of any time during which the Assembly is dissolved or during which it is in recess for more than four days.(8F) A Minister of the Crown who is proposing to lay a draft as mentioned in subsection (8B) must—(a) provide a copy of the draft to the Welsh Ministers, and(b) inform the Presiding Officer that a copy has been so provided.(8G) See also section 157ZA (duty to make explanatory statement about regulations under subsection (8) including a duty to explain any decision to lay a draft without the consent of the Assembly).(8H) No regulations may be made under subsection (8) after the end of the period of two years beginning with exit day.(8I) Subsection (8H) does not affect the continuation in force of regulations made under subsection (8) at or before the end of the period mentioned in subsection (8H).(8J) Any regulations under subsection (8) which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to the making, confirming or approving of subordinate legislation after the end of that period.(8K) Subsections (8C) to (8I) do not apply in relation to regulations which only relate to a revocation of a specification.(8L) The restriction in subsection (8) is in addition to any restriction in section (Status of retained EU law) of the European Union (Withdrawal) Act 2018 or elsewhere on the power of the Welsh Ministers to make, confirm or approve any subordinate legislation so far as the legislation modifies retained EU law.””
Lord Callanan
“Section 30A | Type C”.” |
Lord Callanan
““Section 57(4) | Type C”.” |
Lord Callanan
“21A_ After paragraph 5 of Schedule 7 (procedure for subordinate legislation: special cases) insert— “6_(1) This paragraph applies where a draft of an instrument containing regulations under section 30A or 57(4) is to be laid before each House of Parliament. (2) Before the draft is laid, the Minister of the Crown who is to make the instrument—(a) must make a statement explaining the effect of the instrument, and(b) in any case where the Parliament has not made a decision to agree a motion consenting to the laying of the draft—(i) must make a statement explaining why the Minister has decided to lay the draft despite this, and(ii) must lay before each House of Parliament any statement provided for the purpose of this sub- paragraph to a Minister of the Crown by the Scottish Ministers giving the opinion of the Scottish Ministers as to why the Parliament has not made that decision.(3) A statement of a Minister of the Crown under sub-paragraph (2) must be made in writing and be published in such manner as the Minister making it considers appropriate.(4) For the purposes of this paragraph, where a draft is laid before each House of Parliament on different days, the earlier day is to be taken as the day on which it is laid before both Houses.(5) This paragraph does not apply to a draft of an instrument which only contains regulations under section 30A or 57(4) which only relate to a revocation of a specification.””