European Union (Withdrawal) Bill

Debate between Lord Dykes and Lord Wallace of Tankerness

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

[Lord Wallace of Tankerness]

My Lords, I shall speak to Amendments 302BA, 312 and 318 in my name, but I shall start by speaking more to the generality by responding to the government amendments moved by the Minister. It is fair to acknowledge that much has happened since Second Reading when I and many others criticised the architecture of the original Clause 11, not least because it showed scant regard for the spirit and structure of the original devolution settlement. It had a system of conferred powers that was totally alien to how devolution had performed and been structured until this point.

However, I give credit to the Government for tabling these amendments. They have thought to recast Clause 11 and the related schedules, and I think it was acknowledged earlier that there is more work to be done. When you get legislation like this and new situations arise, it is amazing how new words come into the vocabulary. The Government have claimed that most of the powers at the so-called intersects will go directly to Cardiff, Edinburgh and Belfast on exit day, subject only to relatively few remaining—they emphasise that this will be temporary, though I shall return to that—to secure the UK single market until such time as that framework is put in place.

As has been acknowledged, that is a welcome step. It shows a lot of progress and, I think, a lot of good will towards seeking an agreement. However, it has clearly not yet been sufficient to allow the Scottish and Welsh Governments to recommend the Legislative Consent Motions to their respective Parliament and Assembly. Indeed, the letter from the First Ministers of Scotland and Wales to the Lord Speaker that was circulated to all Members of your Lordships’ House says:

“In being asked to give legislative consent to the EU (Withdrawal) Bill on this basis”—


that is, on the basis of the new amendments—

“the devolved legislatures would be being asked to agree to the creation of this power with no certainty about where frameworks will be established, how these will work, how they will be governed and how we will go from temporary restrictions to longer term solutions”.

It is also arguable that the amendments do not do precisely what the Government claim they are seeking to do. The Government have said—indeed, the Minister has said today—that the intention is that the vast majority of powers identified at the intersects will go directly to the devolved institutions. The noble and learned Lord, Lord Mackay of Clashfern, rightly said that that is the proper thing to do. However, if one looks at the amendments before us, while much has been said about a figure of 24, one sees that there is nothing in the Bill that restricts it to 24. Technically, and I think this was a point made by the noble Lord, Lord Griffiths of Burry Port, all 158 could be subject to this freeze and this restriction. They could all be subject to regulations made under the powers in the revised Clause 11 and there would be no provision for consent from the Scottish or Welsh Ministers, let alone from the Scottish Parliament or the Welsh Assembly.

It would help considerably if, in the body of legislation, it was made clear in some way which powers would go directly, or if there was a schedule concerning which powers would be the subject of framework agreements. I do not doubt for one minute that there will be some negotiation about what should be in frameworks and what should or should not be a UK framework. That is perfectly proper for negotiation. I welcome what the Minister said earlier: agriculture is set out as a broad heading but he accepts that agriculture has to be subdivided and not all aspects of it would be the subject of frameworks. Indeed, it is worth noting that NFU Scotland identifies in a briefing paper animal welfare and traceability, public health, pesticides, regulation and food labelling as examples of overarching areas of regulation that would be best suited to being managed on a commonly agreed framework basis. There is lots of scope for talking to stakeholders about what the framework should be, but it would be very helpful if that could be in the Bill.

I do not underestimate for one moment that there will be work to do, but we should perhaps reflect that it will be at least four weeks until we come to deal with these issues on Report. It is worth reminding ourselves that the House of Commons Select Committee on Scottish Affairs recommended back in November that there should be clarity on this before the Bill reached Third Reading in the House of Commons. I do not take away from the work that has been done by officials, but if there is a will to get there, I am sure it could be done.

One other reflection on this point is that earlier today, in response to an intervention from me, the noble and learned Lord said that, given that we are now to have a transition period, we will have to accommodate that transition period in future legislation, a withdrawal and implementation Bill, so we may not need these frameworks until 31 December 2020 or 1 January 2021, which provides further time to sort out what should be in later legislation. But I would rather strike while the iron is hot and seek what can be done in this Bill.

It has also been said that these measures are temporary. The Chancellor of the Duchy of Lancaster went out of his way to emphasise that in the letter that he sent to all Peers. The Government have, to their credit, included several extra provisions to buttress their position that they should be temporary by reporting requirements, and these are all welcome, but, unlike some other parts of the Bill, there is no sunset clause. That is why, in Amendment 312, which was tabled before the new amendments, my noble friend Lord Thomas of Gresford and I recommended that there should be a sunset on the whole power after two years and, in Amendment 302BA, I suggest that any regulations brought forward under the new powers should themselves lapse after two years. The noble Lord, Lord Foulkes of Cumnock, said that it should be five years. We could have a debate about that but, again, the principle is trying to build confidence to get an agreement between the Scottish and Welsh Governments and the UK Government, and to have a sunset clause would go a considerable way to help that.

As we have heard in the previous three contributions, there could be dispute about the frameworks. Our Amendment 318 would put the Joint Ministerial Committee on European negotiations on a statutory footing. In October 2016, to much fanfare, we were told that this new committee had been set up,

“to ensure that the interests of all parts of the United Kingdom are protected and advanced, and to develop a UK approach and objectives for the forthcoming negotiations”.

That has probably been more honoured in the breach than it has in practice. We know that in recent weeks there have been more concerted efforts in the committee to try to gain agreement on what we are discussing tonight, but there might be a lot of advantage in putting it on a statutory basis so that there could not be any backsliding on when it meets, as has happened before.

I welcome the initiative taken by the noble and learned Lord, Lord Mackay of Clashfern, and the amendments proposed by the noble Lords, Lord Wigley and Lord Foulkes of Cumnock, because they constructively try to address how we resolve some of the difficulties. There clearly are difficulties and differences, and we must try to start thinking outside the box and creatively. The noble and learned Lord, Lord Mackay of Clashfern, picks up very well one difficulty: the United Kingdom Parliament is also the Parliament for England—England does not have a separate legislature, as Scotland, Wales and Northern Ireland do.

I was reminded of my colleague Mr Ross Finnie, Minister for the Environment and Rural Development in the first Scottish Administration. His experience of meeting counterparts from Wales, Northern Ireland and Defra was that some Secretaries of State saw their role as to be the UK chair of the meetings, with the English Minister of State arguing England’s case, whereas other Secretaries of State could not see the difference between an English position and a UK position. He said that, clearly, they made far more progress when they had a Secretary of State who saw him or herself as holding the ring as the UK Minister with an English Minister of State arguing the English position.

We must recognise that, as the noble Lord, Lord Foulkes, said, it is asymmetrical.

[Lord Dykes (CB)]

I am most grateful to the noble and learned Lord for giving way. He referred to the noble Lord, Lord Foulkes, who said in his speech that he hoped that one day there would be a federal constitution and, I think, implied that the noble and learned Lord supports the same idea. There are other Members, including Cross-Benchers, who feel that that is a very good idea.

The tragedy is that with the constant muddle we have, with our inability to have other than fairly chaotic governance for various reasons, including the lack of a written constitution—which most people would not agree with, of course, but I think is a growing field of thought—how does one get that without first having a constitutional convention to launch it, and how on earth would you get agreement on a constitutional convention in Britain?

[Lord Wallace of Tankerness]

There are lots of questions there from the noble Lord, Lord Dykes. First, as a member of a party that has supported some form of federal United Kingdom since the days of Asquith, I have no difficulty in saying that I believe in federalism. Equally, I do not diminish the difficulties and challenges in getting there. I rather suspect that, with what we have at the moment, we do not have time for a constitutional convention. That is why, as with so many other aspects of our constitution, we must move incrementally.

A lot of this has hinged on consent. Interestingly, the report from your Lordships’ European Union Committee on Brexit and devolution states:

“Any durable solution will need the consent of all the nations of the United Kingdom, and of their elected representatives … A successful settlement cannot be imposed by the UK Government: it must be developed in partnership with the devolved Governments”.


The Scottish Affairs Committee also referred to the fact that it would require the consent of the devolved Administrations.

On the issue of legislative consent Motions, as the noble and learned Lord the Advocate-General for Scotland knows, there is concern that frozen areas of EU retained law might well be seen to be beyond the legislative or executive competence of the devolved institutions, and therefore no legislative consent Motion would be required, at least under the enunciation formulated by Lord Sewel in the Scotland Act. I accept that devolution guidance note 10 could kick in. I think that the Minister said something to the noble Lord, Lord McConnell, in a previous debate, but it would be very helpful if he could clarify that, in the event of subsequent primary legislation in pursuance of the common UK framework, legislative consent Motions would indeed be expected.

Finally, we are moving into uncharted waters. Arguably, if we had not been in the European Union in 1998, the Scotland Act would have been constructed differently. The single market of the United Kingdom, which I certainly value and numerous other Members of your Lordships’ House have said they value, has been maintained since 1999 by the single market of the European Union. We are now into new territory with, for example, trade agreements. Negotiating international agreements is a function of the United Kingdom Government, but the detail of these trade agreements could well impact on devolved competences. How will that be accommodated? Canada, for example, when it negotiated its agreement with the European Union, had representatives of the provinces and territories in the room at the table during those negotiations. It would be very welcome if the Government were to make a similar commitment. That, again, would be a confidence-building measure.

At a later date, we will no doubt have to consider how frameworks operate when we have them. I welcome the suggestion of the Welsh Government of a council of UK Ministers with qualified majority voting to operate the frameworks. That would take us much further down the road towards federalism. In the meantime, the challenge is to find workable arrangements in the interim.

We do not really have a concept of shared competence. Perhaps that is something that we should work up. It was something which we discussed in the Calman commission back in 2008-09. It did not have much traction then, but we are in a new situation.

There is also the question of consent and trust. It has been said that constitutional propriety does not really allow for anything like consent. Those of us who argue for a written constitution are often told of the benefits of having a flexible, unwritten constitution. We are in a new situation. The Government responded to the campaign for English votes for English laws by bringing out a new device which, arguably, undermined the sovereignty of Parliament, because the House of Commons and the House of Lords can vote for an amendment, but if English MPs, a subset of one House of Parliament, say no, it does not become law. That is a move away from the sovereignty of Parliament.

Those who were in the Chamber earlier today heard my noble friend Lord Alderdice talk about the Good Friday agreement. He talked about the need to be adventurous and creative and suggested that if that process had involved some of what we have been hearing in the EU debate—people not willing even to entertain the idea of any differences or of how you work with sovereignty—we would never have had the Good Friday agreement. I would encourage the Government to be adventurous and creative; to be willing to think outside the box; to be willing to compromise; and to be willing to seek pragmatic solutions, even at the expense of 100% constitutional purity. What we are discussing, at the end of the day, is not about institutions. It is about people, businesses and the certainty they want in the law and their rights when we move out of the European Union. We should keep that firmly in our minds. In that spirit, I hope that the Government can come to successful negotiation with the devolved Administrations and that, by the time we come to Report, we can have amendments that we can all support.