European Union (Withdrawal Agreement) Bill

Baroness Randerson Excerpts

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

[Lord Wigley (PC)]

My Lords, my name is also attached to Amendments 18, 23 and 45. I am very pleased to support the points made by the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Finlay.

The issues at question are issues of trust between the devolved Governments and the Government of the United Kingdom. Nobody is arguing that the devolved Governments have power over international treaties—of course they do not; they are reserved powers. None the less, what will be undertaken in those treaties will almost certainly have a very direct effect on matters that are devolved, some of them fully, to the National Assembly for Wales, and likewise to Scotland and Northern Ireland in slightly different ways.

To that extent, there have been occasions when the UK Government has been well represented in negotiations in Brussels by Ministers from the Government of Wales. It is perfectly right that they should be there on matters such as the sheepmeat regime or when questions of smaller languages are debated. When such matters arise, as is likely, in the context of any ongoing treaties or new treaties that will emerge, it is vital that the confidence of the Welsh Government and the National Assembly, and likewise that of Scotland and Northern Ireland, is taken fully into account.

The real danger is that things happen by default. The UK Government, with all the good will in the world, might think that issues do not arise without having talked about them. There needs to be some system to avoid unnecessary tension and rows between the various Governments within the United Kingdom.

I did not participate in the debate last night, but I read with considerable interest the comments made by the noble Lord, Lord Duncan of Springbank. He said:

“This debate has taken a turn that I had not anticipated—the notion that a power is now being granted to the Government to undo that which has been set before: if you like, the magisterium of the law which sets up the elements of Northern Ireland, Scotland and Wales. That is not the purpose of this rule.”


He goes on to say that he would be happy to make a note available

“to all noble Lords who are interested in this, so they can see where we believe this power will be required”.—[Official Report, 14/1/20; col. 639.]

The point is that if the noble Lord, Lord Duncan, has recognised that there is a need for greater clarification than is provided in the Bill, surely with the Bill still going to Parliament there is an opportunity to table amendments, such as the ones proposed in this group, to safeguard the position. It is not enough to have a sentence in Hansard. That obviously helps to clarify the position, but there needs to be something more cast-iron than that.

This is not a party-political issue, it is a matter of getting means of sensible co-operation into the Bill. If the Government cannot accept the amendments now, I very much hope that between now and Report they will consider these issues and try to bring in some form of wording that gives an assurance in the Bill along the lines that the noble Lord, Lord Duncan, suggested last night.

[Baroness Randerson (LD)]

My Lords, these amendments are designed to cement the established position of the devolved Administrations in the new situation in which we will find ourselves.

Amendment 18 to Clause 22 relates to any amendment to the statutes establishing devolution. They can be amended by a Section 109 Order in Council as long as the devolved Administrations agree but, as the clause stands, it leads to a suspicion that the Government could take the power to change devolution settlements without the agreement of, for instance, the National Assembly of Wales. We need the Government to make it clear one way or the other that they do not intend to do this.

Amendment 23 to Clause 26 simply adds devolved Ministers to the list of those to be consulted before the Government bring forward regulations referred to in that clause. Amendment 45 to Clause 38 relates to the Sewel convention. It simply inserts the well-established principle that Parliament will not normally legislate on devolved matters without legislative consent from the National Assembly for Wales.

I want to spend a little longer on Amendment 29, which puts the Joint Ministerial Committee on EU Negotiations on a statutory footing and requires representatives of devolved Administrations to be briefed regularly on future relationship negotiations. The history of the JMC as a whole has been chequered, to say the least. I have been privileged to see it from both sides: from the Welsh perspective as a Minister between 2000 and 2003 in a coalition in the National Assembly, and from 2011 to 2015 when I was a Minister in the Wales Office here.

In the early years, 2000 to 2003, I would describe the JMC as having been part of an old boys’ network. Labour was in power, in government, both here and in Cardiff, where it led the coalition. There was a dangerous lack of formality about the business we did. It was very good humoured but it did not have structure and was slightly erratic. It at least met regularly, if not frequently, but its behaviour was erratic. From 2010, I would characterise relationships as at the other end of the spectrum, with the coalition Government— the Liberal Democrats and Conservatives—here, the SNP in Scotland and Labour in Wales, as well as the complexity of Northern Ireland. I would say it was more of an armed standoff in those years. It provided an opportunity to have a well-scripted, very formal row with each other, with people coming out on to the steps of Downing Street to tell the world what they had said on their side of the argument. As a result, not surprisingly, it did not meet that frequently. Having observed the JMC in recent times, it does not seem to have got much better.

The devolved Administrations have drawn a lot of their strength and confidence from their vital EU links, which affect so much of the devolved work that is taken in those countries. Those links are now to be severed. As a Welsh Minister in the early years of this century, for instance, I represented the combined Governments of the UK at a European Council of Ministers; the noble Lord, Lord Wigley, referred to that kind of situation in his speech. I presented the agreed joint position of those Governments. It has given the devolved Administrations status and strength and is a very important part of their overall situation.

Devolved Administrations: 20th Anniversary

Baroness Randerson Excerpts

Wednesday 22nd May 2019 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I am delighted to see several old friends—I use that word deliberately—from across the parties who were there on that first day in May 1999 at the start of the Welsh Assembly. The fact that a significant number of us have been in the devolved institutions and are now here—and in one or two cases the reverse—strengthens both sets of institutions. It certainly means that our debates are enriched and informed in comparison with what would otherwise be the case.

I am sure that my colleagues from that time in Wales remember the sense of anticipation, challenge and excitement of being Members of the new Assembly that we worked together to create. It is important to remember what a challenge that was. Most of us did not know how it ought to work; we did not know how it would operate. In fact, we benefited from the experience of people such as the noble Lord, Lord Wigley, who had been in the other place and carried some of its basic rules with them. We also benefited from a lot of people who had been councillors and brought that experience with them.

The referendum was held very quickly in 1997. It is important to remember nowadays, as we talk about the practicality of a people’s vote, how quickly that referendum was held after the Blair victory. There was a wafer-thin victory in Wales for the concept of an Assembly. The moment it was created, there was an active campaign to get it abolished. I congratulate the noble Lord, Lord Bourne, for his wholehearted conversion to the cause of devolution, which I know is totally genuine. It is a tribute to all Assembly Members that the extent of the success of devolution can be measured by the fact that, when we held a second referendum in 2011, there was an overwhelming majority in favour of the Assembly having more powers.

I will say a little about the history of liberalism in Wales, and support for devolution. My party is a firm and passionate supporter of devolution, believing that decisions are best made as close as possible to the people they affect. That has been the case ever since Lloyd George formed the Welsh Liberal Council in 1897. In 1967, on St David’s Day, Emlyn Hooson MP, who later became a distinguished Member of this House, introduced a Government of Wales Bill in the other place which advocated a Welsh Parliament. It was roundly defeated by the combined votes of Conservative and Labour MPs. So it is no surprise that we as a party continued to campaign for a Welsh Assembly and were active participants from the start. I wanted to take part in this debate today because I have the privilege of being the only person from Wales to have been in government in both the Welsh Government and the UK Government—and my noble and learned friend Lord Wallace has the accompanying position and experience in relation to Scotland. If I may put it this way, I have seen it from both sides of the fence.

In 2000, the Liberal Democrats formed a partnership Government with the Labour Party in Cardiff Bay, and we had an ambitious programme for government that included a firm commitment to further devolution. That was tricky because there was still quite a lot of opposition from the Labour Party. But Rhodri Morgan, the First Minister, was in tune with further devolution. It is important to remember, as the noble Lord, Lord Bourne, pointed out, that the Assembly had very limited powers. We used to say that Cardiff City Council had much greater powers because it could raise taxes and borrow money. There were no lawmaking powers for the Assembly and, as I say, no tax-raising or borrowing powers. Combined with having only 60 Assembly Members, that meant that the Assembly was dramatically underpowered. In addition, there was the funding problem of the Barnett formula, an enduring cause of anger in Wales that was understood way beyond the inner circles of politics. But we made the most of the powers we had. For example, as a Minister, I was able to introduce Cymru Creadigol, Creative Wales, and Iaith Pawb, Everyone’s Language, which were the first strategies ever on the language and the arts in Wales.

Just as we discuss Brexit here, day after day, we had our own set of dominant popular topics in Cardiff in the Assembly: legislative powers, tax-raising powers, borrowing powers, enlarging the Assembly and abolishing the Barnett formula. I am pleased to say that, to a considerable extent, these issues have now been tackled, or the power to deal with them and tackle them now lies where it should—with Assembly Members. In 2006, a new Wales Act allowed the Assembly to pass legislation. I do not know whether any noble Lords remember a wonderful thing called Measures. We could pass legislation as long as Parliament gave its official seal of approval for what we agreed to do. That was done through legislative competence orders, and it was rather like Parliament marking our homework. We did not like it at all.

So, when the Conservative-Liberal Democrat coalition agreement was signed in 2010, it unlocked the door to much greater powers. As I mentioned, the 2011 referendum meant that the Assembly could pass its own Acts. It has used this power well; the Minister has illustrated that. It has been imaginative and bold. I was particularly involved in the very early days of the campaign for the change to presumed consent on organ donation. The Assembly has not been frightened to tackle new issues.

The coalition agreement also led to the Silk commission, with its recommendations for tax-raising and borrowing powers, and the move to a reserved powers model for the Assembly to tackle the ongoing confusion over exactly what powers it held. The Wales Act 2014, which I took through this House, came as a result of that. In due course, the second Silk report led to Powers For A Purpose, published in 2015 by the Secretary of State for Wales. That led to the Wales Act 2017, which included powers for the Assembly to change its name, its size, its voting system and the voting age. Looking back, it is ridiculous that the Assembly did not have those powers from the start.

Also during the coalition years, we took steps to deal with the problem of the Barnett formula. Some Members may remember the funding agreement signed by Danny Alexander, as Financial Secretary to the Treasury, and Jane Hutt, as the Welsh Finance Minister.

Finally, I want to comment on the EU’s role in the devolved Administrations, particularly in relation to Wales. Today is the day before the EU elections, so it is appropriate to think about that. We still have uneven and, in my view, unsatisfactory devolution settlements across the UK. We still have a highly centralised form of government. When I was in the Wales Office, a major part of our work was reminding other Ministers and Whitehall civil servants to remember Wales. My job was to explain to them how devolution works. I hope that that strikes a chord with the Minister.

Over the past 20 years, the EU’s powers have served to lessen tension between the two levels of government. The EU sets out high-level rules about how funds to deal with poverty, agriculture and environmental issues are to be disbursed. No one argues with those rules from a party-political perspective, because they are made on the basis of 28 countries far beyond the realm of narrow party politics. Although some of those EU powers will come down to the devolved Administrations, some of them will lie in the hands of the UK Government. The moment that happens, there will be arguments about the basic rules to be applied and which areas will be eligible for funding. I would predict that we will see a return to a lot of party-political wrangling. The Joint Ministerial Council was set up to try to deal with that wrangling. I do not think that it has ever been up to the job and I certainly agree with the Minister that it needs to be refreshed and modernised. It needs root and branch reform because we need to move to a proper federal system of devolution throughout the UK.

European Union (Withdrawal) Bill

Baroness Randerson Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

I think these negotiations have gone well. The Ministers in the UK, Wales and Scotland deserve every credit for having achieved what they have so far. I know we are not supposed to discuss Amendment 91 but I hope that, when we come to that, the Government might have something to say on that issue as well. I attach great importance to what the Minister said right at the beginning, which is that we are not near the end: we still have Third Reading to come and there is still the possibility of further discussions. I hope that the Government will be flexible and that the Scottish Government will be flexible and come round to the view that this is really quite a good deal.

[Baroness Randerson (LD)]

My Lords, with so many lawyers speaking this evening, it is with some temerity that I stand to add a few comments. I emphasise that there will not be many.

We have an inelegant, lop-sided form of devolution. I will not spend my time analysing the amendments in detail because the lawyers have done that much better than I possibly could, but I will talk about the process. We would not design devolution like this now and I believe these amendments show how poorly designed our devolution is. Until now it has relied on the overarching EU presence to smooth things over—to take the politics out of the politics—and I think it will be difficult in the future.

The amendments are not ideal. Like my noble friend Lord Steel, I would prefer that Clause 11 had not been there but this is an acceptable compromise. The important thing from my perspective is that it is acceptable to the Welsh Government and the Welsh Assembly. As my noble friend Lord Thomas said, the amendments are complex and tortuous. I was relieved to find that he did not understand one particular phrase. I had been too timid to ask what it meant. My concern is that the Government’s attitude towards this has hampered progress. It has taken far longer to reach agreement than it should have done and I believe the grudging attitude of the Government has meant that they have backed themselves into a corner. I recognise the tremendous efforts that have been made in recent days and weeks to deal with this. Nevertheless, while I might be a passionate devolutionist I do not believe that it is honest or straightforward to try to shoe-horn into this Bill an expansion of devolution. I believe that that is the Scottish Government’s current position and I feel that it is necessary to accept these amendments, in the current situation, in order to be straightforward with the people of Wales and Scotland. This is about trying to represent devolution in the situation as it is at the moment. If we are to expand devolution, we need a full debate about it in the future.

I believe that it will be politically tricky in the future to manage devolution. Some very sharp edges are revealed in these amendments between the powers of the UK Government and the devolved Governments. For that reason, my final point is that I would very much like to see the position of the JMC properly and fully established. It should not be the occasional add-on at the Government’s convenience which it currently is.

[The Duke of Montrose]

My Lords, perhaps I may come in here to congratulate the Minister on how far the Government have got in solving this rather knotty problem. As I go with this, I feel that I should re-emphasise my authority for speaking as a Scot and as a nationalist, rather as my noble and learned friend Lord Mackay of Clashfern did. Mine is founded rather more in history than in current experience, in that members of my family have fought and died for Scottish independence on a number of occasions. They were also responsible for sitting on the whole negotiation for the Acts of Union.

I am not sure whether I can fully accept what the noble Lord, Lord Steel of Aikwood, said about all measures going immediately to Scotland. The provision that I tried to raise when the noble and learned Lord, Lord Wallace, was speaking is that what is devolved was devolved under Schedule 5, but Schedule 5 was subject to the earlier parts of the Act. In attempting to modify Section 29, we are in really novel territory because that provision has remained as it was put in the Act in 1998. This is the first time that we have had to take a hatchet to it but the remaining subsection says that the Scottish Parliament will exceed its powers if it tries to legislate for any provision which,

“would form part of the law of a country or territory other than Scotland”.

A great many of the powers that are coming back affect all parts of the United Kingdom and that element has to be sorted out.

It is very good to hear from the Minister how the agreement on dealing with the powers from Brussels has been achieved. However, it sounds—or rather, it sounded at the start—as if the Scottish Government had the same view as the noble Lord, Lord Steel of Aikwood: that all law should immediately be devolved to them. This is clearly not going to do. Accompanying a letter from the Chancellor of the Duchy of Lancaster was a table, which explained the Government’s view at that point on sorting out what was, I think, a total of 167 measures that they had identified in EU legislation as needing to be addressed. Of these, at that point they had no problem with 12 that needed to be reserved and 49 that could be immediately handed over. Can the Minister give us an update on the Government’s view on how many of these laws could immediately be handed over now, as I am sure that they and such things have been subject to negotiation over the Easter period? At the same time, however, we would like to know what legislative process will be put in place to achieve the handing over to the devolved Parliament and Assemblies and how long it is likely to take for those measures.

One or two noble Lords have quoted from the letter of 26 April from the First Minister of Scotland. The noble and learned Lord, Lord Hope of Craighead, has provided a very good outline of how Section 30 will work. I have no doubt that many of us have much to learn about that. I was slightly worried about the First Minister’s second suggestion in her letter, when she talks about,

“the existing constitutional arrangement where changes to devolved competence are to be made under Section 30 … by Order in Council subject to the approval of both the Scottish Parliament and the UK Parliament”.

I was led to wonder whether an Order in Council, if passed by Her Majesty, was actually subject to approval by the Scottish Parliament at that stage, whereas I think that the amendments that are now in place are suggesting that approval would be sought and, with any luck, granted before the application was made for the order. If the Scottish Parliament were being offered the chance to turn down such a thing as an Order in Council that had already been made, a constitutional change in this order would need more than a memorandum of understanding, which is how the present system works.

European Union (Withdrawal) Bill

Baroness Randerson Excerpts

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

[Baroness Randerson (LD)]

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

[Baroness Goldie]

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

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

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

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

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

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

European Union (Withdrawal) Bill

Baroness Randerson Excerpts

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

[Lord Hope of Craighead]

I do not want to detain the Committee for very long; I will make just one or two points. First, I congratulate the Government on the steps they have taken to amend the original structure of the Bill so that it fits better with the architecture of the devolved statutes. If you look at the list of amendments, there are not just one but 22. That gives an idea of the scale of the exercise that has gone into preparing what we are discussing this evening. I congratulate the team that has been working behind the scenes to put this together. There are one or two loose ends, as I mentioned earlier this afternoon, but this has gone a very long way and—apart from on the one issue of consent, about which perhaps enough has been said—I support entirely the structure and wording of these amendments.

As far as the solution put forward by the noble and learned Lord, Lord Mackay, is concerned, one feature that is worth noting is paragraph 11, which is the requirement that, if there is disagreement—a failure to reach unanimous agreement—reasons must be given. I have sat for a long time in court where, if you want to dissent, you have to explain yourself, and it is quite extraordinary; once you start writing these things out, you begin to wonder whether the dissent was justified. It is an extremely good discipline, when somebody is in disagreement, to force them to sit round a table and express themselves in writing as to what the nature of the disagreement is. The disagreement may remain, but at least it focuses the mind and makes it easier for the dispute to be resolved by the final body that has the responsibility of resolving the issue.

Regarding the three solutions offered as to how we might deal with this, there are three different solutions for resolving the issue. I have already suggested that the solution put forward by the noble Lord, Lord Wigley, would not work because the Supreme Court could not deal with that kind of issue. As for the suggestion of the noble Lord, Lord Foulkes, I believe that the panel he is talking about has four members, three of whom are from the devolved institutions and one from the United Kingdom. It is a simple majority decision and the United Kingdom would be in the minority—and I am not sure that that is an entirely satisfactory solution to have arrived at. So I am brought back to the solution offered by the noble and learned Lord, Lord Mackay, which, at the end of the day, is to refer to the United Kingdom Parliament. I am not quite sure what procedure would be adopted, but it seems to offer a fairer and better solution than the other two. Broadly speaking, I endorse the thinking behind what the noble and learned Lord suggested.

We have made a great deal of progress. My final point is to comment on the fact that the Government have undertaken to withdraw the amendments. I was arguing for that some days ago, because it seemed to me that if we had to vote on it tonight that would give a rather different flavour to the debate. It is a way of enabling us to talk around the subject and the way in which we on the Back Benches have to operate all the time. It may be unusual but it is part of the constructive way in which the Government are approaching this issue and I commend it.

[Baroness Randerson (LD)]

My Lords, we sit here week after week and, wherever we started our careers, we cannot help but look at them now from the Westminster and London perspective—the UK perspective. As I have been sitting here this evening, I have done a head count. More than 10 of us in the Chamber during this debate have been Members of the devolved legislatures as well as here. We have First Ministers, Deputy First Ministers—a huge band of people here who have experience of seeing these things from the devolved perspective. It is important to bear in mind—and I say this to the noble Lord, Lord Lang, who said that there had been much too much emphasis on the importance of legislative consent in these debates—that legislative consent is the firm foundation on which confidence in the devolved system lies, in the absence of a full federal system, which of course we do not have in this country. I am a fierce unionist, but demonising the SNP does not help to bind the UK together. I assure noble Lords that there is a firm cross-party determination in Wales to insist on significant improvements to this Bill. The Government’s amendment is extremely welcome—but, so far, it is too little. It is a great pity that it is so late, because it means that people have not been able to give the full attention to it that it deserves. But I am sure that it is a good foundation upon which to build.

As noble Lords may remember, nearly two hours ago the noble Lord, Lord Forsyth, intervened to ask the noble Lord, Lord Wigley, why the devolved legislatures and Administrations had been content to accept EU power but were not content to accept the UK Government’s power on these issues. I can assure the noble Lord that I went to a number of JMCs and, sitting as a Minister in the UK Government, there was never a time when I felt for one minute that the devolved Administrations did not question the need for more power to go to them. They have persistently and determinedly asked for greater powers and a greater say in negotiations with the EU. This is not something that has come out of nowhere; it is a persistent requirement from the devolved Administrations and legislatures that they should have a stronger voice. As the noble Lord, Lord Hain, said, devolved Ministers could go to those meetings—and, indeed, often go to meetings of the European Council. I give way.

--- Later in debate ---

[Baroness Randerson]

I resist the idea that I ever deliberately misrepresent anything. However, I am very aware that, although the numbers are different, the principle has always been that the devolved Ministers press the UK Government to require their agreement to a stance that the UK Government take in the Council of Ministers rather than simply consult them. That is not new.

I want to move on to the Minister’s statement in support of his amendments and shall speak, first, about the principle of consent. I believe that consultation is inadequate and that what is needed is consent from the legislatures, not from the Administrations. It is important that the power should lie with the legislatures and not just with the Governments in the devolved Administrations. It is also essential that the list of powers where legislative competence is to be constrained is defined in the Bill. Those powers are not specified in these amendments. The Government must know what powers they have in mind. I accept that there is perhaps some work to do in turning them into a tidy list but they need to be specified.

I I support the calls that have been made for a sunset clause. The Minister said that this is a temporary situation but he also said that he could not be specific about the timescale. A sunset clause would certainly be realistic in that context. Such clauses appear elsewhere in the Bill and there is no reason why the Government should not specify what they regard as a reasonable period in which to deal with this issue. We need the effective powers specified in the Bill as a schedule, as the noble Baroness, Lady Finlay, said.

I I have a question for the Minister—and here I agree with the noble Lord, Lord Forsyth. Where does England fit into all this? We are speaking at great length about introducing a pause on most of the devolved powers of the devolved Administrations, but will there be a parallel pause in relation to England or will things go ahead there on a different timescale?

Finally, I turn to putting frameworks into law. In principle, in the absence of agreement on the future framework for, let us say, agricultural support, the UK Government could seek to enact a framework and argue that, because agricultural support has been specified by regulations as being outside devolved competence, the devolved legislatures’ consent is not required. I believe it should be made clear in the Bill that the specification of areas of retained law as being temporarily beyond devolved competence does not remove the application of the Sewel convention to new primary legislation. Is that interpretation the same as the Minister’s?

I ask the Government to discuss this issue again with the devolved Administrations. I believe that real progress has been made and I am very pleased to see the amendments, but I believe that a further step is needed.

[Lord Dunlop (Con)]

My Lords, the hazard of speaking late in a debate is that, in the interests of brevity, you have to shred your speech; none the less, I hope that what I am about to say is still coherent.

It would be hard to deny that since 2010 significant powers have been devolved to Scotland, Wales and Northern Ireland. As more powers are devolved from Westminster, it becomes ever more important to attend to the glue—the institutions and arrangements that hold together the United Kingdom—and Brexit brings that imperative into sharper relief.

At the heart of the Clause 11 debate is an apparent tension: on the one hand, the powers of the devolved legislatures should not be changed without their consent and, on the other, one part of the UK should not have a veto over legislation to protect the interests of the UK as a whole. I accept that resolving that tension is not an easy matter. Therefore, Clause 11 addresses a very real issue that needs to be recognised and dealt with. The status quo ante cannot simply be asserted because there is no status quo ante. Our exit from the EU creates what the noble and learned Lord, Lord Hope, recently described in a devolution debate in your Lordships’ House as a “void”, and he spoke of the need to create something new. If that is the case, it seems entirely sensible to pause and put in place a temporary mechanism for avoiding legal and regulatory divergence while the void is filled and new frameworks are discussed and agreed. Indeed, if I read it correctly, our own EU Committee recommended something similar in its Brexit devolution report. That is what Clause 11 is intended to achieve.

Of course, the clause could have been handled differently, and I think the Government have tacitly accepted that by agreeing to amend it. As has been recognised on all sides of the Committee this evening, real progress has been made. It has already been mentioned that the Joint Ministerial Committee has agreed six principles for establishing where common frameworks are necessary. Last Wednesday’s Joint Ministerial Committee agreed that intergovernmental structure and the devolution memorandum of understanding should be reviewed to ensure that they are fit for purpose as we leave the EU. I think that everyone accepts that revision is overdue. The MoU was last updated in 2013 and has been under review since 2014, and some firm conclusions are now urgently required. I hope, therefore, that the Government and the Minister can help build confidence that this latest review will lead quickly to concrete results by going as far as they can to spell out the process and timetable for completing this work.

The other welcome development is the publication of the Government’s own analysis of where common legislative frameworks may be required. To date, this has been a theoretical political debate, and greater transparency can only help to stimulate a practical debate in Scotland, Wales and Northern Ireland, informed by real businesses and individuals whose livelihoods depend on trade across the UK.

The Government have now tabled their own amendments to Clause 11 and Schedule 3. Again, I welcome their willingness to go the extra mile to find a resolution. Those amendments are not just tweaks; they represent a significant rewriting of Clause 11. Yet the First Ministers of Scotland and Wales say that they still cannot give their consent to the Bill on the basis of the Government’s current amendments to Clause 11. They seek further amendments and reassurances. It is surely within the realm of possibility to bridge the remaining gap.

In the interests of striking a deal, what further reassurance can the Government provide to the devolved Administrations in the following areas? My noble and learned friend helpfully confirmed earlier that the Government anticipate that the existing consent conventions will apply for any subsequent legislation brought forward to implement common UK legislative frameworks where they engage devolved competence. Can he also confirm that the Government will observe what I might describe as a “self-denying ordinance” not to legislate pre-emptively for England in those areas where it is agreed that common UK legislative frameworks are necessary? To do otherwise would seem to defeat the objective of avoiding regulatory divergence and the very purpose of the Government’s “holding pattern”.

I ask the Government to look closely at the case that has already been made for applying a sunset clause of suitable length to Ministers’ regulation-making powers in Clause 11. This would allow sufficient time for the frameworks to be agreed while providing the devolved Administrations with the backstop safeguard against the risk of powers becoming stuck indefinitely in the holding pattern.

I conclude by saying that there are two sides to every agreement and I hope the devolved Administrations will play their part by showing a willingness to compromise as well. A number of noble Lords have tabled amendments requiring Ministers to obtain the consent or secure the agreement of the devolved Administrations before exercising their regulation-making powers under Clause 11. This seems a step too far and, as the Minister set out so clearly earlier, to go beyond the current devolution settlements. It risks turning the Sewel convention from a political commitment into a legal obligation. Let us not forget that the Sewel convention has been faithfully observed for 20 years. This would represent a significant constitutional change and would surely have implications for the sovereignty of this Parliament. It would also seemingly cross another important constitutional line, namely, as the Minister said, that one devolved institution could exercise a veto over the development of legislation affecting other parts of the United Kingdom.

I welcome the efforts the Government are making to secure a deal. Clearly, there is a balance to be struck here. All parties to the framework negotiations need similar incentives to reach agreement. Of course the devolution settlements need to be respected, but the unique responsibility of the UK Government and the UK Parliament is to guard the interests of Scotland, England, Wales and Northern Ireland—not just individually, but taken as a whole. That needs to be respected too.

--- Later in debate ---

[Lord Hain]

At this late hour, that is probably a debate for another occasion, but I welcome at least the first part of what the noble Lord said. As a passionate devolutionist and federalist, I believe that the unfinished business of devolution is the failure to give England a proper voice of its own at the regional level, with the exception, of course, of London. However, that is another matter.

I give a cautious welcome to the letter that I received just before coming in to the Chamber for this debate from the Secretary of State for Wales, Alun Cairns, which has been sent to me and, I would guess, to other Welsh Peers. I shall quote part of it, because it is interesting:

“A small number of returning powers in devolved areas will need legislative frameworks in order to safeguard the UK internal market and enable the UK to strike international trade deals. These areas will be placed into a ‘temporary hold’ until the UK Government and devolved Administrations agree the detail of the framework and legislation is enacted to implement the framework”.


He goes on to make an important point:

“The consent of the devolved legislatures will of course be sought for any provisions in parliamentary Bills creating frameworks that are within devolved competence”.


In welcoming that, I stress, at the risk of repeating myself—I will not take too long about it—that until now the Welsh Government have themselves been passionately opposed to the approach of the UK Government in this area. It is not the case that this is only the Scottish Government position. The Welsh Government want to achieve an agreement and the Scottish Government have said the same. We will see in the future, but certainly the Welsh Government want agreement and they have the support of Plaid Cymru, the Liberal Democrats and, I think, some Conservatives in the Welsh Assembly. That is a serious development. In the last few days, the Welsh Assembly have been taking through its continuity Bill, but I am not sure whether it has received assent at this point. However, it has certainly taken the Bill through, which is proof of the deep concern.

[Baroness Randerson]

My Lords, the Bill received assent today.

[Lord Hain]

With the help of the noble Baroness, Lady Randerson, we can put on the record the fact that the Bill has received assent. That is a serious situation. There is the potential for direct confrontation, which I hope we can avoid. I also welcome the proposal of the noble and learned Lord, Lord Mackay of Clashfern, which deserves serious attention.

In supporting the amendments tabled by my noble friends Lord Griffiths and Lord Stevenson, which again stress the need for consent, I want to highlight an alternative and perhaps more constitutionally appropriate way forward, which reflects a point touched on by the noble and learned Lord, Lord Wallace of Tankerness, and the noble Baroness, Lady Finlay. It is a way forward that would not give the Government yet another wide-ranging regulation-making power. We should ensure that a schedule is appended to this Bill containing a list of areas where the Government and the devolved Administrations agree that frameworks are needed, as they are, and hence where devolved competence needs to be constrained while such frameworks are negotiated. By doing this, the Government would be able to gain the legislative consent to this Bill of the Scottish Parliament and the National Assembly for Wales, and in future I hope the Northern Ireland Assembly, which they rightly regard as essential to avoiding a major constitutional crisis.

Northern Ireland Update

Baroness Randerson Excerpts

Tuesday 20th February 2018 Lords Chamber

[Lord Duncan of Springbank]

I thank the noble Baroness, Lady O’Loan, for her comments. The discussions inside the room remain inside that room. I suspect that we are quite familiar with the points at issue; they stem from the questions of sustainability, culture, language and respect. But when you talk to the people of Northern Ireland, I suspect that other issues dominate their concerns, not the least of which are health, education, wider economic growth and the questions of Brexit. This is a time when the voice of an Executive is required—in fact, it is overdue—in those discussions and, again, the people of Northern Ireland are the ones who are losing out because of that situation. There is no doubt that all options are to be considered—but, at heart, we must recognise now that the people of Northern Ireland deserve a functioning Executive and that it is beholden on all the parties to deliver it. The United Kingdom Government remain committed to facilitating that dialogue in any way that they can, but we need to get off the spot and make progress.

[Baroness Randerson (LD)]

My Lords, with the background of Brexit, does the Minister recognise that the potential long-term damage to the peace of Northern Ireland is particularly acute at this time? I want to state my concern at the suggestion of a return to direct rule. I share the concern expressed around the Chamber. Does the Minister agree that it is imperative in the short term that the Prime Minister takes a more positive and visible lead in these events, as John Major, Tony Blair and David Cameron each did in their time? Does he share my concern at the comment of Arlene Foster that the Prime Minister’s involvement last week was a distraction?

[Lord Duncan of Springbank]

I thank the noble Baroness, Lady Randerson, for her remarks. Direct rule is not a panacea or a solution—and, as she has already said, once the toothpaste is out of the tube it is very hard to get it back in. I can assure the House that the Prime Minister has been intimately involved in these ongoing discussions. Her commitment is without question and her actions of late have always been mindful of trying to deliver a sustainable Executive who will deliver for the individuals who live in Northern Ireland. Going forward from here, I do not doubt my right honourable friend the Prime Minister’s continued commitment and that she will continue to act in the best interests of the people of Northern Ireland to try to bring about a dialogue that delivers an outcome that works for them. I believe that is in the interests of all the parties there.

Devolution: Wales and Scotland

Baroness Randerson Excerpts

Thursday 18th June 2015 Grand Committee

[Baroness Randerson (LD)]

My Lords, I thank the noble Lord for providing us with the opportunity to debate this important topic. I find myself in agreement with a number of the points that he made, although our political philosophies are very different.

Those of us who are campaigners for constitutional reform have experienced a lifetime of frustration at the glacial pace of change and the fact that it seems to come only grudgingly, with the offer of only the minimum of what is acceptable, and that all too often it is a response to a crisis rather than a logical, well-thought-out programme of reform. This principle has applied to our devolution efforts as well as to cross-constitutional reform in general.

The Labour Party—not the most devolutionary of parties—was brought back to devolution in 1997 by the determination not to be shut out of government again throughout the whole of the UK for another 18 years. Even if the Tories won at Westminster—so the thinking went—the Labour Party was at least assured of Labour Governments in Scotland and Wales. That did not quite work to plan, but the rise of the SNP is one of a series of political changes that was not then foreseen. However, the model of devolution designed for Wales was at that time underpowered and unworkable. It was quite literally the minimum—a minnow—and was designed to leave as much power as possible with Westminster and Whitehall. Of course, as soon as AMs got their feet under the table in Cardiff Bay, they realised this and started asking for more and, grudgingly, more was given. Some noble Lords may remember legislative competence orders, where MPs sort of double-checked the homework of Assembly Members and decided whether it was good enough to go forward as legislation.

We are in a very different world now. The pace of change has quickened considerably. Thanks to the coalition Government, who enabled the referendum in 2011, the Assembly now has primary legislative powers. It has more and wider powers. In fact, the pace of change has become so brisk that Wales Bills have been effectively queueing up on the runway. The Silk 1 report was not finally embedded in legislation before the Silk 2 recommendations were drafted into a new Bill, which, crucially, will deal with the uncertainties of the conferred powers model as well as giving the Assembly more powers, some of which were not even within the remit of the Silk commission to consider when it was established. I was delighted to see that the Wales Bill was mentioned in the gracious Speech. Will the Minister confirm that the scope of the Bill remains much as was envisaged in the St David’s Day agreement, in which I know he was very much involved?

The coalition Government were admirably responsive to pressure for more devolution in both Wales and Scotland, but—this is where I differ from the noble Lord, Lord Wigley—sometimes responsiveness is not enough and rapid responses can be contradictory and inconsistent. There were many differences between the devolution settlements of Wales, Scotland and Northern Ireland, and many of these exist for good reasons of history and geography, although there needs to be consistency. However, other differences were included by chance or for reasons of political pragmatism, neither of which is a good basis for constitutional development.

My party has long argued that we need a constitutional convention to take a comprehensive look at the constitution throughout the UK. That does not mean that in the mean time all change must stop and that we should be frozen in time until the constitutional convention reports. However, it does mean that the constitutional convention should look thoroughly at the situation from all angles. The title of the noble Lord’s debate suggests that there needs to be balance in this area, not slavish duplication. One devolved body should not simply be the clone of others. I and my party believe that the sensible answer lies in federalism, which would allow for balanced differences between the constitutional settlements in each country. The noble Lord quoted from a speech made in May by the leader of Plaid Cymru. I will forbear to quote from a speech made by Lloyd George on much the same lines.

Any convention must reflect well beyond the narrow interests of the political classes. It must be a people’s convention, not a politician’s convention. It was suggested in the news today that the Welsh First Minister would be an ideal chair of that convention. That suggestion illustrates that the Labour Party has failed to grasp even the shadow of the dangerous and unstable constitutional position that we are in as a United Kingdom. Any leader of a convention must command confidence across Britain and across political parties.

Our dangerous position is made worse by the highly divisive EU referendum now appearing over the horizon and by the distortions of our electoral system, which have magnified the political differences between the four nations to the point where the political balance is dramatically different from one nation to another. The noble Lord cited the SNP’s success in the election. It is important to remember that the SNP got 95% of the seats on just over 50% of the vote. That is one of the problems with our electoral system.

I now want to return to the title of the noble Lord’s debate and the issue of balance. A crucial factor in that balance is the funding formula—the Barnett formula. Of course, it is not a proper formula; it simply takes what Ministers decide to spend in England and applies it to the other three nations in percentage terms, based on historical spending decisions made way back in the 1970s. I recognise the pledge made to Scotland in the referendum campaign, which means that whatever its limitations the Barnett formula will stay for some time. However, the situation in relation to Wales is quite simply unsustainable. In the early years of devolution—Labour’s high spending years—the formula led to a massive gap developing between funding for Wales and funding for Scotland. The Holtham commission calculated that Wales was underfunded by £300 million a year. Wales was, and remains, the poorest part of the UK. Indeed, figures out today show that 15 years of devolution have not made even a dent on poverty levels in Wales.

One of the foibles of the Barnett formula has been that, as the coalition Government cut back on public spending, the relative underfunding in Wales became much smaller. Indeed, it seems likely that Wales is not actually underfunded relative to the rest of the UK at this time. However, when and if public spending rises again, the problem will return and we need to prepare for it now. I am pleased that the Government have agreed to introduce a funding floor, but we need more than that and we need it very soon. I am disappointed that the Government do not agree to an update to Holtham’s calculations. I refer here to an Answer given by the Secretary of State for Wales yesterday in Welsh Questions, in which he said in relation to the Holtham calculations:

“The work has been done and we need to crack on with introducing the fair funding floor”.—[Official Report, Commons, 17/6/15; col. 303.]

I should like some clarity on what the Secretary of State was referring to. Has Holtham updated his work? If not, how can the funding floor be embedded at a fair level without further calculations? Does the Minister accept that the perceived funding unfairness, which may or may not exist, simply magnifies a sense of grievance? Does he agree that the issue should be prioritised? He will be aware of Plaid Cymru’s call for Wales to be funded at the same level as Scotland. We all know why Scotland’s funding will remain; we are also aware that it is extremely generous. Maybe the Minister would like to comment on the realities of this situation. Is this fantasy economics? If so, I suggest to him that the Government need to get a grip on the funding issue before the sense of grievance in Wales escalates further.

Finally, I recommend to noble Lords an excellent book written about a decade ago by a Conservative Assembly Member, David Melding, now the Deputy Presiding Officer of the Assembly. It posed the question: will Britain survive beyond 2020? It seemed an astonishing question then. Now, it is not astonishing at all. Funding powers, voting patterns and political power—all these are pulling our union apart. England has at last found its voice in this debate and the fear is that it will simply be the loudest. I am sorry to use another metaphor—the noble Lord talked about the last chance saloon, whereas mine concerns a ship. The ship is being steered by a motley crew and if the Government are sensible they will take the helm before it hits the rocks. The Government should establish a convention that will bring order, restore confidence and, I hope, encourage further change.