European Union (Withdrawal) Bill

Baroness Finlay of Llandaff Excerpts

Tuesday 30th January 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, 10.17 million people live under devolved Administrations in the UK. They want the best deal for Britain, whichever way they voted. They expect their devolved Governments to argue on their behalf. They did not vote to lose powers. The concern in Welsh and Scottish government is so great that both bodies have unanimously voted not to sign the legislative consent order for the Bill. Why? Because they both want to see a withdrawal Bill that works effectively while respecting devolution.

The devolution settlements are all based on a binary model, with some differences. Scotland’s model of reserved powers will also become the model in April under the new Wales Act 2017. The Sewel convention means that Parliament will not normally legislate in areas of devolved competence without the consent of the devolved legislatures. The word “normally” is important. The situation does not warrant that Parliament should legislate without the consent of the devolved Administrations. We are not in a crisis at war. Ignoring the refusal of devolved consent has never risen before; it is not needed now. The Bill requires careful, considered amendment.

The intersection of EU powers and those of the devolved Administrations has meant the latter’s legislation cannot be incompatible with EU law—a restriction on freedom or competence of legislation and policy-making that currently also applies to Westminster, and which will be lifted by the repeal of the European Communities Act 1972. It is not a question of powers coming back from Brussels, but a decision about where they will go as those restrictions are lifted. Wales and Scotland feel that as far as the effect of the Bill on the devolution settlement is concerned, restrictions on legislative competence in policy areas should be removed, as the Supreme Court said in the Miller case.

This Bill reads differently, however. It proposes changes that put new restrictions—a new set of shackles—on the legislative and executive competence of the devolved institutions, allowing the UK Government unilaterally to lock down opportunities to shape their own policies. There are many examples of policy areas where Scotland and Wales have diverged from Westminster. Take, for example, the charge on plastic bags, minimum unit pricing of alcohol, tobacco control measures at their outset, organ donation now and the different ways in which their health services are organised. The Bill, however, would give Ministers of the Crown powers to make corrections of retained EU law in areas of devolved competence without consultation with the devolved institutions. Such an ability to change an Act of the Scottish Parliament or of the National Assembly for Wales without any input from the legislature or Ministers answerable to it is clearly unacceptable.

The Joint Ministerial Committee with the devolved Governments must become statutory; it is currently not working well. There must be governance arrangements for a group that meets regularly, agrees its agenda well in advance and allows the devolved Administrations to initiate policy proposals. It must also contain a mechanism for the resolution of potential areas of legislative conflict early, without the need to go to the courts for interpretation of the law. Frameworks are also essential to ensure a common UK approach when needed, that respects the principles of the territorial constitution.

Clause 11, as drafted, does the exact opposite. Last September, Wales and Scotland suggested amendments—I have a copy of the letter written by their First Ministers to the Prime Minister. When this Bill went through the other place there were promises of government amendments but none materialised. In her helpful and warm opening speech, the noble Baroness the Leader of the House implied that the development of these amendments is proceeding well. Unfortunately, as of last night, neither the Cabinet Secretary for Finance in Wales, nor the Minister for UK Negotiations on Scotland’s Place in Europe from the Scottish Parliament could reflect such a positive view.

The constitutional implications are great. If the devolved Governments are forced—and I use the term advisedly—to push through the continuity bills that they have drafted in order to allow them to function effectively on behalf of their population, then we really will be faced with a constitutional crisis. Therefore, I ask the Minister for reassurance that amendments will not be sprung on us at the last minute and without adequate consultation with the devolved Administrations. We in this House must not be put in the invidious position of making decisions that run counter to good government arrangements between the Governments of the UK, and which concern over 10 million people. To borrow a phrase, “nation must speak unto its nations”.