European Union (Withdrawal Agreement) Bill

Debate between Baroness Finlay of Llandaff and Lord Howarth of Newport

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, the noble and learned Lord has made an obviously reasonable and appropriate case for the propriety of the Government consulting with Ministers in the devolved Assemblies. That is not only good politics, it is good manners, and I hope that the noble and learned Lord who will be replying on behalf of the Government will readily accept that that is appropriate. I hope, therefore, that he will be willing to accept Amendment 23.

Amendment 45 is an amendment to a clause that is in any case otiose, so I do not think it is necessary for the Government to accept it, but again I hope that the Minister will affirm that of course the Government will want to follow the usual conventions and established procedures for legislative consent.

[Baroness Finlay of Llandaff (CB)]

My Lords, I wish to speak to three of the amendments in this group. Yesterday I spoke in support of Amendment 15, and those remarks are relevant to Amendment 18 so I will not repeat them. It is important to ensure that our concerns about the Bill are recognised. One is that, as currently written, the Bill can be interpreted as not respecting the union, which becomes extremely important constitutionally.

Amendment 23 relates to Clause 26 and the potential role of the courts, other than the Supreme Court, in the future. The difficulty arises in having due regard to the devolved Administrations, as my noble and learned friend Lord Thomas of Cwmgiedd has outlined. Legislation that has already been passed by the Senedd, the Welsh Assembly Government, reflects European rulings. If those rulings are changed in the future, the Assembly will have to address the changes. The difficulty, of course, is that if it has not been consulted on all the changes to the way appeals can be made, it could find itself in an extremely difficult position.

This amendment, like the others that we have tabled, is therefore designed to prevent avoidable problems emerging in the future. I cannot see that anything in our amendments would undermine the Government’s ability to move forward with their withdrawal Bill, but they would make sure that the legislative powers already held by the Senedd and the Welsh Government are respected.

Our amendment to Clause 38 is necessary because, as written, it fails to refer to the Sewel convention and therefore risks undermining the devolution settlements. If the Government do not wish to accept the amendment, one could suggest another way forward by deleting the entire clause, although I suspect that they are less minded to do that than to insert something short to respect the devolved settlements.

I also signal my support for Amendment 29 in the group, because again it aims to safeguard the devolution settlements from unilateral amendment by Ministers of the Crown. Although the conduct of international negotiations is a reserved matter, which everyone respects, the amendment would ensure that the impact on the devolution settlements are recognised and would give the devolved institutions the responsibility to make arrangements to implement international agreements as they go forward.

Essentially, we are asking to be consulted and to be kept in the loop. We are not asking for a veto, but our amendments ask for the devolution settlement to be respected, as it works at the moment with an intact union.

European Union (Withdrawal Agreement) Bill

Debate between Baroness Finlay of Llandaff and Lord Howarth of Newport

Committee: 1st sitting (Hansard continued) & Committee stage & Committee: 1st sitting (Hansard continued): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I suppose I should declare an interest as regards Clauses 21 and 22 because I live and work in Wales, so the stability of the devolution settlement is therefore important to me personally, especially as my work is in areas of the devolved competences.

I should point out that, along with a clear majority, I was alarmed at the prospect of a no-deal Brexit and therefore relieved when the Prime Minister and the EU negotiators managed to agree a process for an orderly EU withdrawal. Clearly, the Northern Ireland protocol is critical to that, and I am sure that no one wishes to imperil the withdrawal agreement by wilfully obstructing the implementation of that protocol.

Nevertheless, the Henry VIII powers in respect of doing so are wholly unrestricted—something which other Members have quite understandably expressed disquiet over. The concern is that such powers would enable Ministers of the Crown unilaterally to amend the devolution settlement as laid down in the Government of Wales Act—and the equivalent legislation for Scotland and, indeed, Northern Ireland itself—or to enable Ministers to make such changes without any scrutiny by the legislature.

I understand that Ministers may conclude that it is necessary to adapt devolved competences; for example, to underpin the unfettered access of Northern Ireland agricultural produce to the market in Wales, even if it fails to meet the standards which have been adopted in Wales itself or across Great Britain as a whole. I also understand why they might not want to follow the cumbersome route of primary legislation to achieve this.

But where the National Assembly—or Senedd, as it will be known—agrees with changes to its own competence, there is a perfectly acceptable route, as the noble Baroness, Lady Hayter, has said, via a Section 109 Order in Council to achieve this without primary legislation. I would argue that any attempt to proceed in a matter of this kind without securing the agreement of the devolved Government and legislature in question would be likely to ignite a major constitutional conflict. No one should underestimate the tensions there are at the moment around the devolution settlements.

The aim of the amendment is therefore to promote an exception to this power in respect of the Government of Wales Act and, for the sake of logical consistency, the equivalent legislation in respect of Scotland and Northern Ireland. If the Minister does not concede, or at least provide reassurance, that these powers will not be used to change the devolution settlements without consultation and agreement by the institutions affected, it will inevitably fuel suspicions, as has already been said, that the UK Government want the power to make changes to the devolution settlements even when the National Assembly and Welsh Government are opposed to such changes.

As I said at Second Reading, it is about ensuring consultation, not veto. In many areas the item of negotiation is very likely to straddle devolved and reserved competences. The use of an overriding Henry VIII power—rather than a Henry VIII power in conjunction with a Section 109 Order in Council, or simply the Order in Council—would be completely inappropriate. It would ride roughshod over the settlement we currently have. It would appear to be a potential abuse of power. I am not saying that this Government intend to abuse their power, but we have to be concerned that whatever we put in legislation now could produce unintended consequences in the future.

[Lord Howarth of Newport (Lab)]

My Lords, earlier in our deliberations we debated some relatively small-scale Henry VIII powers that the Government were seeking to arrogate to themselves. We listened to entirely unsatisfactory explanations from the Front Bench attempting to justify them. But here we have a really egregious set of Henry VIII powers—the most whopping great Henry VIII powers.

If you look at Clauses 21 and 41 together, you see that the Government are proposing to take to themselves a power not only to amend primary legislation but even to abolish any statute that may have been enacted in centuries past to right up until the end of this year. I do not for a moment think that is what the Government specifically intend to do but it is offensive in principle that they should draft legislation of this character.

Let us bear in mind that the purpose of Brexit is to restore parliamentary government. It is not a decent thing for the Government to do to take this opportunity to make a large power grab on the part of the Executive. The Government should be respectful of Parliament. They should be prepared to work with Parliament. If they have significant changes of policy and legislation that they wish to propose, I do not doubt that Parliament will engage very constructively with the Government in their purposes.

Henry VIII powers are objectionable in principle and it is essential that the Minister gives us a full explanation and, if he can devise one, a justification for the taking of these extraordinary powers, which are constitutionally improper. It will not do if he seeks to argue that circumstances in Northern Ireland are peculiarly sensitive and complex. They always are, but there are certain abiding constitutional principles that the Government should respect, and that should be the spirit of this new Government’s approach in their dealings with Parliament.

Wales Bill

Debate between Baroness Finlay of Llandaff and Lord Howarth of Newport

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 7th November 2016 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I know that the hour is late. I want to endorse the sentiment expressed so clearly just now by the noble Baroness, Lady Randerson. Although it is late, we have to cover these topics because there is no other opportunity to do so and I am concerned. I have already heard that the Minister is not going to accept the amendment looking at alcohol licensing but I hope that he will at least listen to what I say and agree to meet me after this, because it is terribly important. The noble Lord, Lord Elystan-Morgan, eloquently described the moral geometry and the problem of an utterly local issue being held in a reserved power. I suggest that that applies exactly in terms of alcohol licensing because the health and well-being of the Welsh population require some control over the way that alcohol is sold and supplied. It is widely acknowledged that that is one of the most effective ways of tackling alcohol harms.

The wording of the Bill would appear to be even more restrictive than the current exemption, which would mean that the proposals in the draft Public Health (Minimum Pricing for Alcohol) (Wales) Bill would be a reserved matter, and therefore outside the legislative competence of the Assembly itself. It would seem only sensible to add the protection of health and well-being to the four points listed by the Minister in relation to licensing.

Alcohol remains a major cause of preventable death: the Public Health Wales Observatory has reported that:

“Every week in Wales alcohol results in 29 deaths; around 1 in 20 of all deaths”.

This impact of alcohol puts enormous pressures on health systems. Every week, hospitals handle as many as 1,000 admissions related to alcohol. Emergency departments are straining. When people in Wales go into those emergency departments and see them full of alcohol-fuelled harm and its effects, they ask: “Why isn’t the Assembly doing something about it?”. The answer is that it cannot because the thing that it wants to do—to look at the sale and supply of alcohol—comes outside its powers.

We know, sadly, that alcohol consumption in Wales remains a problem. In the latest Welsh Health Survey, 40% of adults still reported drinking more than guideline amounts in the previous week. There is a pressing need to tackle alcohol misuse, using every tool available to government. That means policies that control the licensing and supply, which are the only way that we can promote sensible drinking. It would also require licence holders to offer a ratio of non-alcoholic drinks to alcoholic drinks on their premises to give people a wider choice—to be social but not to get completely destroyed by the adverse effects of alcohol.

The Bill should provide an opportunity to address health and well-being. The sad thing is that Wales bears the costs of the alcohol abuse, particularly in expenditure on health and social care, yet it is not being allowed to have control over licensing and supply as part of its national strategy. When tackling alcohol harms in Wales, the Assembly is operating with more than one hand tied behind its back. It just seems a completely inexplicable state of affairs.

[Lord Howarth of Newport]

My Lords, it is simply demeaning for Wales that public order and policing should not be devolved. Why should Wales, which has a mature Assembly and is a nation anxious to take more responsibility for its own affairs, not be allowed the same level of responsibility as Northern Ireland and Scotland? I have not heard a good reason. I do not believe that there is any greater necessity to have a single system embracing England and Wales than there is for other parts of the United Kingdom.

If the Government would be a little bolder and allow devolution of responsibility in such matters as drugs and alcohol, everybody might benefit because Wales would have the opportunity to experiment with policy. In the field of drugs and alcohol, for example, we know very well that the existing orthodoxies, practices and policy are not working particularly well. Often they are working downright badly. We have huge problems with regard to drugs and alcohol. Surely it would be better to allow Wales to pioneer and develop policies of its own. Wales would obviously have to take responsibility and a degree of risk, but it is surely better that it should be able to take responsibility and to experiment than that we should simply carry on in Wales with orthodoxies that have failed in the United Kingdom as a whole. No harm has been done by Wales having a degree of independence in education policy—in schooling, for example—so surely that is the right principle.

There will, of course, be questions of resources if more responsibilities, particularly the major responsibility for public order and policing, are to be devolved. In consideration of that we have again to go back to the question of the devolution of income tax-varying powers. We debated that issue earlier this afternoon. I shall very gently make a point to the noble Lord, Lord Crickhowell, who disputed whether a manifesto commitment was being broken by the Government. If he looks at the Second Reading debate in the House of Commons on 14 June, at col. 1653 he will see his Conservative colleagues Mr David Jones, the former Secretary of State, and Mr Chris Davies, the Member of Parliament for Brecon and Radnorshire, bemoaning the fact that the Government have, in fact, broken a manifesto commitment in that regard. I do not want to labour the point, but it ought to be corrected for the record. Certainly we have to consider, in conjunction with the question of what reservations are appropriate and what reservations the Government may decide after all to abandon, the associated question of resources—because it is no good willing the end without enabling the Government of Wales to have the means.