European Union (Withdrawal) Bill

Lord Elystan-Morgan Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Wigley (PC)]

My Lords, I apologise for taking my seat after the noble Lord, Lord Tyler, started but I heard most of what he said from outside the Chamber. I add my voice in support of the comments that have been made. There is an old saying in Wales: you can lead a Welsh workforce through hell and high water but once you start driving them, woe betide. I think we should bear in mind the psychology of this situation. If these amendments are made to the Bill, I do not think that they will undermine the main purpose in any way. I hope the Government can look again at the Bill between now and Report.

[Lord Elystan-Morgan (CB)]

My Lords, I respectfully agree with the sentiments articulated by the noble Lord. In relation to Wales, a totally new attitude has been taken toward reservations. The noble Lord, Lord Tyler, suggested that reservations were somewhat limited on the whole in devolution legislation. That is not so; in the Wales Act there are 197 separate reservations, believe it or not. Some are massive; some apply to sovereign powers that should belong to the mother Parliament; others are very trivial. For example, dangerous dogs, sharp knives and axes, prostitution and half a dozen similar situations are included. Why they were ever included in that context I know not, but there they are. Therefore, the area that has been reserved regarding Wales is massive and comprehensive.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I rise only to make it clear that the unanimity comes also from the Front Bench. My noble friend Lord Morgan may not be on the Front Bench but on this occasion we are absolutely as one with him.

It would perhaps be helpful if the Minister feeds back what he has heard from the devolved Administrations in his discussions with them on these amendments.

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[Lord Elystan-Morgan]

I support and agree with everything that has been said. After all, devolution is not a dainty little sympathy; it is a fundamental right accepted as part of the constitutional inheritance of all the people of the United Kingdom. On that basis, the words spoken are the very heart of truth and common sense.

[Baroness Goldie (Con)]

I thank noble Lords for their contributions to the debate. I also thank the noble and learned Lord, Lord Wallace of Tankerness, for speaking to the amendments tabled by the noble Lord, Lord Foulkes. I appreciate the intention behind the noble Lord’s Amendment 311 in seeking to apply a “sunset” to the Clause 11 arrangements. I recognise the aim to provide a clear guarantee that those areas in which frameworks are not needed will pass into devolved competence. In fact, the effect of Amendment 311 would no longer be required if we take the kind of approach adopted in the amendments to Clause 11 that we debated last week. The noble and learned Lord, Lord Wallace, was good enough to acknowledge that.

As we indicated on our amendments, we think it preferable that those areas where we know that frameworks are not required will never be subject to the constraint at all. I hope your Lordships will also be reassured by the proposal of a power to repeal the effects of Clause 11 to make clear that it is a temporary means to limit competence where we are considering the need for a framework, not an ongoing mechanism for altering that devolved competence. We have proposed an obligation to report to Parliament every three months on the progress we had made towards repealing the restrictions and implementing the new arrangements where needed. As has been acknowledged, this will increase the impetus behind the frameworks processes. Following last week’s debate on Clause 11 and the extent to which this interconnects and relates, I urge the noble and learned Lord not to press Amendment 311.

I will briefly address the amendment in the name of the noble Lord, Lord Wigley, which would enshrine in law a requirement for the Government to seek legislative consent Motions from the devolved legislatures. We have said, and I shall say again, that we want to make a positive case for legislative consent for this vital piece of legislation and to work closely with the devolved Administrations and legislatures to achieve that. We have put very considerable effort into securing agreement on the changes to Clause 11. I hope that the amendments we tabled for debate last week show the extent to which we have moved to address the concerns raised by the clause. I want to reassure the noble Lords, Lord Wigley and Lord Morgan, about that.

I regret that we have not yet been able to secure that agreement. It is important to remember that we have sought legislative consent for the Bill. The amendments that we have tabled and the ongoing dialogue are reflections of the Government’s sincere intention to secure that consent. I hope that, with good sense around the table, agreement can be reached. The noble Lord, Lord Morgan, said eloquently that we do not want to turn our backs of 19 years of devolution history. Having been part of that history in Scotland, I could not agree with the noble Lord more.

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[Lord Callanan]

I will give the noble Lord the answer that I have given when he has asked similar questions previously. This is a matter for the immigration Bill. Of course, we will need to discuss the matter of the frontier between Gibraltar and Spain with the Spanish authorities, which we will do in full consultation with the people of Gibraltar. We will be sure to let the noble Lord know when we have an outcome to those negotiations. I hope that the noble Baroness will feel free to withdraw her amendment.

[Lord Elystan-Morgan]

Have Her Majesty’s Government given any consideration to a matter that I understand was raised about 15 years ago—granting dominion status to Gibraltar? Dominion status is so supple, varied and wide that it could legitimately and properly encompass the constitutional aspirations of Spain, the United Kingdom and the Gibraltarians themselves.

[Lord Callanan]

I am not an expert on the legal ramifications of dominion status, so if the noble Lord will forgive me, perhaps I may write to him on that.

European Union (Withdrawal) Bill

Lord Elystan-Morgan Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Cormack]

Will my noble friend remind my other noble friend that the Bill has gone through all its stages in another place? It is now before us. We have to amend it as and when we think, and the other place has to pronounce on our amendments. It is our duty to say to it, “Please think again”, if we feel that is necessary. At the end of the day, the other place will have the final word.

[Lord Elystan-Morgan (CB)]

My Lords, a point was made by several noble Lords as to a delay in the operation of Article 50. If I remember rightly, under Clause 2, there is a period of two years. Can that be invoked unilaterally or does it need the consent of all 27 other members? I would be most grateful if the Minister could reply. If not, I have no doubt that the noble Lord, Lord Kerr, will correct us.

[Lord Spicer]

My Lords, I was not intending to speak until the noble Lord, Lord Adonis, spoke. As I understand it, the position of the anti-Brexiteers until recently has been that they accept the verdict of the referendum—we should come out—but that the referendum did not pose the difficult question of how to do so and the whole debate was to make sure that the electorate understood how we will do this very complex thing. The noble Lord, Lord Adonis, put the proposition that the referendum was of no account at all and we had to go back to the question as to whether we stayed in the European Union. I have not heard him say that before, I must say.

European Union (Withdrawal) Bill

Lord Elystan-Morgan Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, the amendments introduced by the noble and learned Lord, Lord Hope, might be perfectly okay from the point of view of the UK Government. The only change likely under Clause 7 is to something where it says “EU law”; it would have to be changed to something else. The powers in Clause 7 are intended to enable the knitting together of existing UK law and existing EU law which is not already part of it. That is a difficult job. These descriptions are meant to cater for that. I do not see it as likely that much will be required in relation to Scotland in that respect.

The main question is what happens under Clause 11. The Government promised that it would be brought before the House of Commons and hoped that it would be agreed. Your Lordships may or may not remember that I was keen at Second Reading to stress the need for agreement, because it is the only answer. Intense negotiations have gone on at official level over the last while. It now appears sadly possible—I do not make it any stronger than that—that the Governments may not be able to reach agreement. Therefore, it is important before anything further happens that your Lordships get a chance to apply your great experience to the problems separating the two parties. I greatly regret that there is no proper representation for Northern Ireland. I had the responsibility of being a Minister in Northern Ireland for 10 years; I feel very sad that the present situation has been reached and only wish that it could be resolved. From what I hear, I fear that it may not be very easy until after Brexit. In any case, agreement is essential if it is possible. I do not want to say or do anything that would impede the reaching of such agreement.

As for Clause 7, to retain a power to amend the Scotland Act seems unimportant in this situation, although I think the number of amendments generated by a proposal of this kind would be very small and the Government may feel it worth while to forgo such a power in the interest of making peace and progress.

The Clause 11 procedure is much more difficult. It is important to bear in mind that the Scotland Act—this goes for the Wales Act as well—was set up and legislated within the European Union. Therefore, the only powers that were dealt with were the powers that existed in the Parliament of the United Kingdom when these Bills became law. That did not involve the powers that the EU had and therefore I think it is not determinative of how these powers should be distributed on return to look at what was decided in the original Acts setting up the devolved Administrations, because the powers are now wider. It is therefore very much a matter of trying to resolve the issues between the parties by agreement. If we can help in that respect, so be it: I very much hope that we can. Certainly, I hope we do not do anything to hinder it. So far as I am concerned, I am prepared to trust all the parties to do their best to reach an amicable solution.

[Lord Elystan-Morgan (CB)]

The contributions already made make it perfectly clear how fragile and in many respects how insubstantial is the basis of devolution as we know it. The sovereign Parliament of Westminster has created a sub-Parliament in respect of Scotland and Wales. The sovereign authority that created that Parliament can undo that Parliament any day that it wishes to do so. If it did so I have no doubt that the noble Lord, Lord Wigley, would agree with me that it would be the best recruiting sergeant that Plaid Cymru ever had. Be that as it may, the power is there to do exactly that. It is, of course, utterly understandable that nobody expects that power to be used. In fact, in Clause 1 of both the Scotland Act and the Wales Act of last year there is written in what is intended to guarantee the permanence of the Scottish Parliament and the Welsh Assembly. In terms of law, it has no restriction whatever; it is purely cosmetic but well intentioned. I do not think that, in so far as any legal interpretation is concerned, there is a different view held, but I will be corrected on that point.

Nevertheless, those two Parliaments exist at the mercy, as it were, of this sovereign Parliament. I do not know whether one can change the situation, because the concept of sovereignty means that it can be withdrawn at any time. Unless, of course, one has some self-abnegative discipline—for example, to say that there is a convention. In the Miller case that came before the Supreme Court some time ago, the argument was raised that there was a basic authority that related to each of the Parliaments. No, said the Supreme Court, it is a convention. However, nobody had defined a convention. If Parliament went out of its way to define a convention and said, “In this context a convention means a, b, c and d”, that might get us somewhere. It is a suggestion.

[Lord Forsyth of Drumlean]

The noble Lord may recall that during the passage of the last Scotland Act there was great debate on Clause 2 about whether the convention of seeking legislative consent could be enshrined in law. We ended up with a rather unsatisfactory clause that said that this Parliament,

“will not normally legislate with regard to devolved matters”.

As some of us argued at the time, what on earth does “normally” mean? It came from trying to enshrine the convention in statute. On the subject of people respecting conventions, the noble Lord may not be aware that the Scottish Parliament wishes to charge on with its own legislation on the basis that there is no legislative consent Motion agreed to this legislation, despite the fact that the Presiding Officer has declared that legislation illegal. If we are to have a Parliament acting illegally, led by nationalists who wish to break up the United Kingdom, I think that, as the noble Lord, Lord Empey, has suggested, we should go cannily.

[Lord Elystan-Morgan]

One is greatly tempted to look at this situation beyond the Tweed, as it were—but I will abjure that temptation now and, I hope, for ever. I have scars on my back already in relation to what has happened in Wales over the last few decades.

I believe that in relation to these situations, one can draw a distinction between a convention and something else. A convention can be defined by Parliament in such a way as to have a semi-sovereign authority. That is my point. It is not the same thing as saying that it is regarded as the ordinary way of doing things—that is a totally different argument. In that way, it seems that one might achieve a reasonable and honourable settlement.

[Lord Griffiths of Burry Port (Lab)]

My Lords, I am at a loss to know quite how we have got where we have. The labyrinthine discussions we have been involved in have not helped me to clarify any sense of where I am, either.

The noble Lord, Lord Forsyth, has just talked about a Bill proposed in Scotland that has been judged by the Presiding Officer to be illegal; I think he said it was beyond competence. The law will no doubt run its course and somebody will make a judgment as to whether it is legal or illegal at that stage. For all that, in Wales it has been judged to be competent and it is well under way. So the concern in both cases, however we define the words, is that when all is said and done we will be left with a mess—and continuity has to be guaranteed because that is the basis on which this debate and the Bill are posited. We simply must have a snapshot moment on that date so that continuity in law can continue.

If we are not to reach the agreements that the noble and learned Lord, Lord Mackay, is so desirous of—indeed, who can be for anything else?— there has to be some modus agendi to take us through the impasse, because it will be an impasse. Why could we not have thought of adding the words of the amendment about exempting the need to modify the Scotland and Wales Acts? Why could we not have put in, understood, assumed or intuited that consulting the devolved Governments was a natural, normal, everyday breathing kind of thing to do? I cannot really understand why we are in this mess. You cannot judge for two devolved Governments without having agreements or consents from them.

I have made the case already in debate, and the last thing I am going to do is add to the time taken to resolve this matter this evening, but what worries me are the parallel narratives coming out of the discussions that have taken place so far. The press has been full of articles suggesting that the Chancellor of the Duchy of Lancaster has pulled off some kind of a coup—that there have been magnificent and radical developments. But just this morning I got an email from Wales, from people who have been discussing the amendments. It says quite clearly that the basis on which such amendments have been prepared, “while representing a move in the right direction”—we rejoice at that—“was not sufficient to secure our support”. They made suggestions as to alternative ways that their outstanding concerns could be addressed. The conclusion of the communication I am looking at is: “We must keep on talking”. They say that the Government gave a promise that they would not press to a vote the amendments that are to be put before them—in other words, the amendments will be available for discussion. I hope that the Minister will be prepared this evening to repeat the assertion contained here, which was given to the parties in the discussions with the devolved Governments.

European Union (Withdrawal) Bill

Lord Elystan-Morgan Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

As always, these amendments tabled in Committee are probing amendments which seek to clarify the Government’s thinking on these key matters. In the event that the Government do not provide us with satisfactory answers, I shall certainly return to these matters on Report with amendments along these or similar lines which can be voted into the Bill to enable MPs to give further consideration to these vital issues—which are matters of life and death for so many companies, businesses and families in these islands. I beg to move.

[Lord Elystan-Morgan (CB)]

My Lords, I support these amendments, and in particular Amendment 5. The amendment proposed by the noble Lord, Lord Wigley, is a buttressing and an endorsement of the Sewel convention. As the House will recollect, the convention refers to the devolved authorities in this context: that the mother Parliament will not legislate in any way that is contrary to the will of the devolved authorities save in the most exceptional circumstances. The Westminster Parliament could not have gone any further at all without abrogating—

[Lord Thomas of Gresford (LD)]

I think that the noble Lord is addressing Amendment 5, which is not in this group—and I shall no doubt be following in his footsteps when we do get to that amendment.

[Lord Elystan-Morgan]

I am pleased to stand corrected and apologise.

[Baroness McIntosh of Pickering (Con)]

My Lords, I will speak to Amendment 136, which is in my name alone. Clause 1 is the crux of the Bill. It calls for the repeal of the European Communities Act 1972 but is silent on the question of our membership of the European Economic Area and what the status of our membership of the EEA will be on leaving the European Union—or indeed what the status of instruments or amendments agreed under the European Economic Area will be, either as we leave at 11 pm on 29 March 2019 or in the future if we are in a position to negotiate remaining in the European Economic Area.

I will speak to a number of issues that flow from the comments of the noble Lord, Lord Wigley, about leaving the customs union. The Prime Minister has been quite clear about wishing to leave the single market and the customs union. However, at no stage has anyone in the Government explained to the great British public or indeed to Parliament what leaving the customs union will mean or what the consequences will be of negotiating a free trade area either with our existing European Union partners or with third countries. The first point to make is that we immediately become a third country at 11.01 pm on 29 March 2019.

I forgot to mention my interests as listed in the register. I am a non-practising Scottish advocate; I practised for a short time—for two and a half or three years—as a European lawyer in Brussels; and I was a Member of the European Parliament for 10 years and a Member of the other place for 18 years, so I will indeed be in receipt of a European pension.

I should like to consider the position of perishable goods. An example that is very much in the news at the moment is medical isotopes, but I am more familiar with the free movement of perishable foodstuffs from the time that I was a Member of the European Parliament, particularly between 1989, when I was elected, and 1992, when the United Kingdom joined the European Union single market. In leaving the customs union, we face the consequences of leaving the customs union. At Prime Minister’s Questions today, the Prime Minister repeated that we want to take back control of our own borders.

There is a conundrum here. I support enthusiastically what the Government and the Environment Secretary, Michael Gove, are trying to do—we are trying to increase the high standards of animal welfare that we already enjoy and to raise the standards of animal health, the safety of animal production and animal hygiene. However, particularly on the border between Northern Ireland the Republic of Ireland, there will have to be physical checks of animals and presumably of foodstuffs. I remember that as a newly elected MEP I got panic phone calls from companies in Essex, where I had been elected. People phoned or emailed and asked what I, as the local MEP, was going to do to move these goods along as they were time-barred. At the moment we seem to be going along on a wing and a prayer, hoping that everything will be all right on the night. I would like to hear from the Minister, when he responds on this group of amendments, what thought has been given to exactly what controls will be expected, particularly on the movement of perishable goods and the movement of animals, at borders such as the one between Northern Ireland and the Republic of Ireland.

I am also looking particularly at the fact that we are seeking to arrange new free trade agreements with countries such as Brazil and Argentina. It is no secret that they raise and rear their animals, and produce other products, to a standard that is considerably inferior to those in this country. I know that there is great concern in the Food Standards Agency about whether we will have time to put all the provisions in place governing how these imports will be considered.

European Union (Withdrawal) Bill

Lord Elystan-Morgan Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Thomas of Gresford]

I am not suggesting an amendment; I am suggesting that we take out Clause 11. The amendment being moved by the noble Lord, Lord Foulkes, today is born of frustration; you can see the frustration that is coming from him. Obviously the opposition to his amendment will say, “We can’t have this. We can’t give Nicola Sturgeon or Carwyn Jones a veto on legislation of the UK Parliament”. I understand that. The frustration behind the amendment should put pressure on the Government to get to grips with this issue. Earlier. my noble friend Lady Humphreys was quoting Mrs Thatcher on the single market. Noble Lords will recall that Mrs Thatcher said that there must be action on this and action on that, but with this Government there is no action. Nothing is happening and no decisions are being made with which we can get a grip.

This is one very important decision and it requires agreement from the devolved Administrations. Why is that? It is because if all the powers come from Brussels to Westminster and are then parcelled out as Westminster thinks fit, it gives incredible power to Ministers, particularly if it is done by means of secondary legislation. That gives them enormous power drastically to alter the devolution settlement. I mentioned at Second Reading that the grants which come to Wales—a lot of money comes to Wales—are sent because of need. That is the criterion that governs the distribution of funds for agriculture and for deprived areas. We are used to operating a Barnett formula in devolution terms and there would be nothing to prevent a Westminster Government with all these powers from Brussels from saying, “I think we will go back to the dear old Barnett formula. We will not look at the needs of the nations of this country; we will look simply at the population and distribute money in accordance with the way we have done it up to now”. That is the sort of thing that could happen. I am not saying it will, but it could, and it would create resentment and concern for the people of Scotland, of Wales and no doubt of Northern Ireland as well. That is the issue which has to be tackled.

[Lord Elystan-Morgan (CB)]

My Lords, my understanding is that about a fortnight ago an undertaking was given in the House of Commons to the effect that this matter would be visited and that a suitable amendment would be made to enable consent Motions to be passed by both devolved Parliaments in this matter. It seems to me a matter of a strict undertaking. I do not know whether the Government are in a position to say how soon that undertaking will be brought into force.

[Lord Wigley (PC)]

My Lords, I am grateful to the noble Lord, Lord Foulkes, for moving Amendment 5. I had intended to add my name to it, but then I started to look at the Northern Ireland dimension and how that could be covered. I therefore want particularly to speak to my Amendment 356, which is linked with Amendment 5 and which tries to deal with the unfortunate situation in Northern Ireland. I shall be brief because noble Lords have probably heard enough of my voice today.

At a time when the devolved Governments feel that they are facing what they call, rightly or wrongly, a power grab, surely it is important that the UK Government should carry those Administrations with them in such a major project as this. I listened very carefully to what the noble Lord, Lord Forsyth, said. As always, he was totally consistent, but he must accept that there is a conflict between the perception of a legislative consent mechanism at Westminster—which tends to regard it as a convention, as I said—and the understanding that has developed among the devolved bodies, which see it more as the norm and a mechanism required as part of the legislative process. I understand the noble Lord when he says that there may be parts of the legislative process without it, because of their international connotations et cetera, but when there is an impact, as has been mentioned in certain cases, on the powers coming back from Brussels and going to wherever they go to—Edinburgh, Cardiff and Belfast—then there clearly needs to be a mechanism to sort that out. That is not just at this point in time; that mechanism needs to be ongoing for the future, because I entirely accept that there is a UK single market and that there must be some rules for it.

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[Lord Callanan]

As I said, we will be bringing forward the amendment at the same time that Members of this House have an opportunity to view it. The public at large will be able to comment on it and discuss it, and I am sure there will be extensive comment on it in the media at that time. The reason we have not published so far is that we want to preserve space for discussion and to try to have the discussions with our colleagues in Scotland and Wales and with officials in Northern Ireland in as confidential an atmosphere as possible. The discussions are positive and are proceeding apace. I cannot guarantee that there will be agreement, but we want that agreement and are working to it. We have compromised on many aspects. As soon as we are able to, we will share it with this House. We will definitely be producing an amendment before Committee. I totally understand noble Lords’ frustrations, but we are endeavouring to produce a solution to this difficult issue as quickly as possible.

[Lord Elystan-Morgan]

In order that the Joint Ministerial Committee should enjoy its full status, does the Minister accept that it would be desirable if minutes were kept of its meetings, if an agenda were to be published and if it were indeed to agree to meet at least monthly?

[Lord Callanan]

I understand the noble Lord’s question. I am not a member of the committee; it is handled not by my department but by the Cabinet Office. I will write to the noble Lord giving him details of what agendas are published and whether they are shared with other departments. I do not know the exact format, but I will contact him with it.

With those assurances in mind—limited assurances, I fully accept—I would be grateful if the noble Lord, Lord Foulkes, agreed to withdraw his amendment.

Brexit Negotiations

Lord Elystan-Morgan Excerpts

Tuesday 5th December 2017 Lords Chamber

[Lord Pearson of Rannoch (UKIP)]

My Lords—

[Lord Elystan-Morgan (CB)]

My Lords—

[Lord Taverne (LD)]

My Lords—

EU Exit Negotiations

Lord Elystan-Morgan Excerpts

Monday 13th November 2017 Lords Chamber

[Lord Callanan]

I can confirm that. It is also stated by the European Commission that Article 50, once invoked, is irrevocable unless there is political agreement on it.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister agree that the notice given in March this year in relation to Article 50 was not a notice of withdrawal but a notice of intention to withdraw? Does he appreciate that our distinguished colleague, the noble Lord, Lord Kerr, and the vast mass of distinguished legal authority are of the opinion, therefore, that such a notice can be withdrawn unilaterally? Will the Government, especially in the light of today’s Statement, no longer hide behind any artifice to try to delude the public into believing that they have no view on that matter? Will they come clean and state that they accept totally that that is the situation?

[Lord Callanan]

My Lords, no, I will not confirm that, because it has been stated by legal opinion on this side of the water and in the EU that Article 50 is not revocable. It all flies in the face of the results of the referendum. It is fine for Members of this House to say that we should just ignore the result, but 17.4 million people voted to leave the European Union in one of the largest democratic exercises that we have ever held. If we think that democracy is at a low ebb in this country, let us imagine what would happen if we ignored what happened in that referendum.

Brexit: Sectoral Impact Assessments

Lord Elystan-Morgan Excerpts

Thursday 2nd November 2017 Lords Chamber

[Lord Callanan]

My Lords, there is a huge amount of work going on across government on all these matters to inform our negotiating position. As I said earlier, it is interesting that the EU negotiators have decided not to publish similar documents on their side. I assume that they have done similar work to inform their negotiating position.

[Lord Elystan-Morgan (CB)]

The Minister is no doubt aware that over the past weeks Members of both Houses have felt frustrated that they have been unable to discover what advice the Government have received as to whether or not they would be entitled to withdraw the notice under Article 50. I will ask a question which I think is within the bounds of correctitude: do the Government consider that they have an option to withdraw lawfully should they wish to take that course?

[Lord Callanan]

I am not going to comment on any legal advice we may have received. We had a referendum on this subject. People voted to leave the European Union. We are going to leave and we are not going to withdraw the notification issued under Article 50, which was approved by both Houses.

Update on the Progress of EU Exit Negotiations

Lord Elystan-Morgan Excerpts

Tuesday 5th September 2017 Lords Chamber

[Baroness Anelay of St Johns]

My Lords, the EU has not put forward any numbers. This is a negotiation and, I would like to say, a good-natured one. Clearly there are occasions when people like to take certain positions in the press, but those who are negotiating know each other, work well with each other and want to come to a result that is good for all of us.

With regard to the devolved Administrations, there has been continuous conversation not only between Ministers but between officials, where so much of the detailed technical work can be done. That will continue. As soon as I was appointed, I attended one of the parallel meetings that happen with the devolved Administrations, the general committee that meets about Europe, not about the negotiations. It was a privilege to be able to talk to representatives of Scotland and Wales. It is of course a disappointment that we are not yet able to talk to representatives of Northern Ireland until the Executive issue is resolved.

[Lord Elystan-Morgan (CB)]

My Lords, the Minister has given the impression that there is complete amity between Her Majesty’s Government and the Welsh Assembly in relation to all aspects of Brexit. The reports emanating from Cardiff seem to differ. Indeed, the impression given by Mr Carwyn Jones, the First Minister for Wales, is that indeed Wales is treated with a lofty disdain in the matter. Those are my words, not his, but I think that is the description that he has clearly given. Who is right in this matter?

[Baroness Anelay of St Johns]

My Lords, no one in this Government would treat any member of the Welsh Government with lofty disdain, and no one has; indeed, the leader of the Welsh Government has not made such an accusation. The devolved Administrations may have a short history in the history of this country but it is a very honourable one. There are matters that are devolved to them that they carry out punctiliously. Sometimes of course the process can be bumpy, as in all political life, and they get taken to task by their voters. We recognise fully the importance of engaging with them, and we will continue to do so.

European Union (Notification of Withdrawal) Bill

Lord Elystan-Morgan Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Wigley]

My Lords, as the noble Baroness mentioned, it is still St David’s Day—just. I have my name on Amendment 21 and support what was said about the absolute need to ensure that the devolved Administrations in Wales, Scotland and Northern Ireland are at the centre of reaching a consensus—meaning, of course, some give and take—across the UK on what will be the proposed terms of withdrawal from the European Union and the future frameworks for our relationships with the EU.

As the noble Baroness mentioned a moment ago, the National Assembly for Wales already indicated its good will in this matter by publishing the White Paper, Securing Wales’ Future. It is an excellent and very constructive White Paper and I invite the Minister to endorse the positive approaches taken in it as a basis for the co-operation and consensus the Government pledged to seek. I hope that they can do that either by accepting Amendment 21 or in other ways.

If the Minister cannot or will not do so, that will undoubtedly be seen as an indication that, although warm words may be said about securing a UK consensus, it will not be underpinned by a legislative guarantee. In those circumstances, the provisions of Amendment 36 would be needed, preventing the Government from exercising the powers of this Bill until all devolved Administrations have agreed. However, if the Government can move along the lines of Amendment 21, I would see that as a positive way forward.

The noble Baroness also referred to the powers that, post Brexit, should be transferred to the devolved Administrations. Clearly, if Brexit goes ahead and powers are repatriated from Brussels, some will deal with matters that are totally devolved, such as agriculture. To my mind, these functions should immediately be directed to Cardiff, Edinburgh and Belfast as appropriate. Clearly, there needs to be some mechanism to resolve any disagreements about what should be passed on to the devolved Administrations. In that context, I await the words of my noble friend Lord Elystan-Morgan, whose Amendment 43 possibly addresses that.

In conclusion—these will probably be my last words in Committee—what matters so much is that, in Edinburgh as in Belfast and Cardiff, there is a feeling that the Government are working with them as partners in this project. Clearly, the power rests in London, but if it is a question of “London knows everything better” and if it does not take on board the objectives and tactics put forward by any of those devolved regimes, and does not give them serious thought, then it creates problems for itself in its relationship with these organisations.

I seriously suggest to the Minister that he please consider this White Paper as a basis. It has cross-party agreement in Cardiff and it is not impossible also to form a cross-party basis here.

[Lord Elystan-Morgan (CB)]

My Lords, in proposing Amendment 43, I accept totally everything that has been said by the noble Baroness, Lady Hayter, and my noble friend Lord Wigley in respect of their amendments. Those amendments are social and political in their nature. They constitute an overwhelming case for why, in order to preserve the unity of the United Kingdom, the reality of devolution and the harmony between the various constituent parts of the United Kingdom, respect should be shown by the mother parliament to the parliaments of Wales, Scotland and Northern Ireland.

Those are political and social considerations; the matter that I wish to propose is in no way contrary to that but runs parallel. It is a constitutional point. It is a marvellously simple constitutional point, and I think I can deal with it in very short compass. It concerns the reserved powers constitution that Wales achieved under the Wales Act which became law a few weeks ago. The purpose of that Act was to change the whole pattern of devolution for Wales from a conferred pattern of devolution—bit by bit over the years, a confetti type of development—to a reserved powers constitution.

It is axiomatic as far as a reserved powers constitution is concerned that two matters should be dominant. The essence of a reserved powers constitution, as we appreciate, is that there is a transfer in the first instance of the totality of power from the mother parliament to the subsidiary parliament, but that at the same time there should be a reservation of a strict number of exceptions and reservations. It is axiomatic, therefore, that two conditions must prevail. First, the mother parliament must be seized of all the legislative power and authority that is relevant to the situation. That is obvious. Secondly, the mother parliament must be cognisant of the powers that it has and must be in a position to know exactly where to draw the line between that which is transferred and that which is reserved. Neither of those conditions exists in this case.

Why is that so? I remember a piece of dog Latin that I learned many years ago when I was a law student in relation to the sale of goods: “nemo dat quod non habet”—no man can give that which he does not have. Nobody can transfer that which they do not have. When it came to the question of deciding what powers Wales should have, the mother parliament did not have a mass of those powers that are relevant to the situation. There is a huge area that is missing. It may be 25%; it may be 30% or 40%. It is massive in relation to the totality of legal authority. That authority was missing from 1 January 1973, ever since the European Communities Act 1972 came into force. It never was with the mother parliament to dispose of. It could not possibly give it to Wales, or to Scotland for that matter—in Northern Ireland, the situation was entirely different, because its constitution goes back to 1922.

What, therefore, is to be done? The following matters have some relevance, broadly. Of course, there is the question of the Sewel convention, which has been written into both the Scotland Act and the Wales Act. That will have its effect gradually over the years. There is also the question of the joint ministerial committee, which meets in confidence and is able to discuss in a situation of total secrecy matters which are of the utmost importance to the mother parliament and the devolved parliaments. There is also the question of protocols, which was greatly promised in the late 1990s when legislation in relation to Scottish and Welsh devolution went through but has been as dead as the dodo, I am afraid, and should be revived.

I think—this is where we have the amendment—there is the necessity for something that is much more focused. That is why I have proposed that the Prime Minister and the First Minister for Wales should be responsible within a period of two months for forming a body that will look carefully at the situation to determine: first, what is the scope of legislative authority that is missing here; secondly, what is the nature of that authority; thirdly, what entrenched rights—what established rights—have come into being in relation to that since 1 January 1973; and, lastly, what situations are there where there has been legislation under the 1972 Act which has been deemed to be incompatible with the European instruments. That is a very substantial job, and I suggest that the period that I have nominated of 12 months is not unreasonable in the circumstances.

Many people will say that this is not necessary and that Wales from Cardiff and the Westminster Parliament from here can negotiate at arm’s length. I do not believe for a moment that that is possible. We have seen exactly over the last few months when we were dealing with the Wales Bill how almost impossible it was to persuade Parliament that much of what had been reserved was utterly trivial and was an insult to the Welsh nation. Things such as sharp knives, axes, dogs, licensing, prostitution, hovercrafts—all those matters which scream for domestic consideration—had been reserved.

Years ago, a very famous Welsh statesman said, “Why look into a crystal ball when you can read the book?”. We know exactly what happens when Wales and England deal with each other in that way. It is not the basis of partnership and equality at all. The cobwebs of colonialism still exist in the relationship between Wales and England, I am afraid. Something better has to be done, and I believe that my amendment can bring that about.

[Baroness Randerson (LD)]

My Lords, the first point in my notes is to remind your Lordships that today is St David’s Day. There have been moments in the last couple of hours when I wondered if I would have to scrub that bit, because it would no longer be St David’s Day. However, I maintain that discussing these things here on St David’s Day is the best possible way of celebrating it.

St David’s Day and its celebration emphasise the point that the UK is a voluntary association of four nations bound together by tacit consent. With that comes the obligation to mutual respect. I acknowledge that the Government are grappling with a very complex picture. Scotland voted to remain but has a Government who wished to remain. Wales voted to leave, but has a Government who wished to remain. Northern Ireland voted to remain, but has a pro-Brexit First Minister and faces elections this week. England voted to leave and that vote has dominated and outweighed the size of the votes in all the other nations. The UK Government’s determination to take a strict and harsh interpretation of the Brexit vote has made that more obviously difficult for the other nations to accept.

I added my name to these amendments because they express, in very clear terms, the need for formal structures for consultation with the devolved Administrations. Mere informal assurances of consultation will be totally inadequate; there must be formal structures.