European Union (Notification of Withdrawal) Bill

Lord Elystan-Morgan Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 21st February 2017 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, I will confine my remarks to the effect that leaving the European Union will have on Welsh devolution, in particular on the Welsh devolution settlement contained in the Wales Act 2017.

Wales achieved a reserved-powers constitution in that Act. As the House will appreciate, there are two main patterns of devolution. One is a reserved-powers constitution where there is notionally a transfer of the totality of powers and then a reservation of certain specific exceptions. The other is a piecemeal system—what is called conferred devolution—and that is what Wales had from 1964 onwards, when it achieved its Secretary of State, and indeed there have been hundreds if not thousands of what one might call confetti-like situations of conferring individual powers.

Central to the concept of a reserved constitution is the idea that the mother parliament has on the table, as it were, the totality of powers that are available and relevant in the situation, and that the mother parliament looks upon those powers and says, “This is all that we have. This is where we draw the dividing line between the totality that is transferred and that small remnant that is retained and reserved”. If indeed for some reason the mother parliament did not have the totality of powers at the time, it goes to the very heart, kernel and essence of a reserved constitution. I make the case that that is exactly what happened.

From 1972 onwards—indeed, from 1 January 1973 when we entered the Common Market—it meant that the European Communities Act ruled with regard to a very considerable swathe of legal authority. Exactly what percentage that represents of the laws affecting us I would not like to calculate but it is very substantial. It may be 25%, it may be 30% or 35%, or even higher. What it means for Wales, and it affects Scotland in exactly the same way, is that some 5,000 elements of law affect those devolved countries and yet the authority was not on the table of the mother parliament. That seems to me to go to the very heart, core and kernel of the idea of a reserved settlement.

What can one do? We can look at three situations: one is the Sewel convention, a convention that is now contained in the Scotland Act and the Wales Act of last year. That convention says that it is accepted that the mother parliament, being the supreme authority, can do what it wishes in relation to a devolved Administration. It can change the situation overnight if it wishes, but it will not do so, and would not think of doing so, unless asked by that sub-parliament or unless there were some very exceptional circumstances. That, as I said, has been written into the law by way of the Scotland Act and the Wales Act.

It is a convention. The Supreme Court said it was a convention and nothing more. It does not have the power of law. That obviously must be the situation technically. However, the Supreme Court went on in its judgment, in paragraph 151, to say that, nevertheless, a convention is important. It is binding morally and politically. It goes on to say that such conventions are of immense significance and have to be respected to bring about the harmonious situation and amity between the mother parliament and the devolved parliaments.

Although you might say that Europe was a reserved matter altogether, that is not so. Paragraph 8 of the schedule says that, although European relations are reserved, the question of the administration and oversight of the operation of European relations is not reserved. Clearly, that is covered by the convention.

Secondly, there is the question of the Joint Ministerial Committee, where, in utter confidence, matters are disclosed between one party and another. It has a very considerable future: it is possible to build a mutuality of trust that can be more important for the future of the United Kingdom than anything else.

Thirdly, there is the question of protocols. When the legislation was going through in relation to Scotland and Wales in late 1990s, it was said that on matters that were not devolved, there would have to be protocols. In fact, however, it was a dead letter. I would like to see the breath of life breathed into the cold clay and dry bones of such institutions, which I think have a very considerable future.

As for the situation now, when these powers are repatriated, they will be repatriated, of course, not to Wales, nor to Scotland nor, indeed, to Westminster. A joint body should be set up between Westminster and Scotland and between Westminster and Wales to see exactly how one can bring about a settlement that is fair, just and lasting.

Brexit: Article 50

Lord Elystan-Morgan Excerpts

Monday 7th November 2016 Lords Chamber

[Lord Bridges of Headley]

My Lords, we have taken the position we do on the court case—if I understand the noble Lord correctly—because we believe that starting the process of triggering Article 50 is a matter for the Government. As regards the negotiation process, I have nothing further to add to my response to the noble Lord, Lord Butler.

[Lord Elystan-Morgan (CB)]

My Lords, why is the Minister so reluctant to condemn the scurrilous attacks made in the press on Her Majesty’s judges? Does he not accept that what they were asked to do was to look very carefully, historically and analytically, at the prerogative powers? Those powers started as a monarchical dictatorship and were gallantly challenged in the 17th century in the civil war. Today, the remnant is not sufficient to allow the Government to do anything that would further the process of Article 50. Had the judges done anything different they would have been betraying their oath and would have indeed been unworthy of their position. They have acted in the very best traditions of the British judiciary.

[Lord Bridges of Headley]

As I said, I am not going to go much beyond what I said before. I totally respect and wish to protect the independence of the judiciary, and I am absolutely sure that those judges acted in good faith.

Next Steps in Leaving the European Union

Lord Elystan-Morgan Excerpts

Monday 10th October 2016 Lords Chamber

[Lord Bridges of Headley]

I am very sorry to say that I disagree with the noble Lord on this. This Government have been given an instruction to deliver on Brexit and that is what we intend to do. I am loath to use the phrase “Don’t bind my hands” in relation to Europe but that would be the consequence of what he is attempting to do. We need to be able to negotiate in the nation’s interests: that means having the ability to negotiate the best deal for Britain.

[Lord Elystan-Morgan (CB)]

My Lords, I invite the Minister to assist the House with regard to one particular aspect of Article 50. That aspect is paragraph 2, which the Minister will recollect says something of this order: that once notice has been given under Article 50, triggering the whole process, it is incumbent upon the European Commission and the leaving state to discuss matters with a view to coming to various agreements. It does not define the parameter of those agreements, which can be illimitable with regard to timing and to any other content. This is not a question of spelling out our specific position but, with regard to the choice or headings of matters to be negotiated, will the voice be heard at any stage of this mother of Parliaments, as enunciated through both Houses of Parliament?

Brexit: Single Market

Lord Elystan-Morgan Excerpts

Wednesday 14th September 2016 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister accept that the issue of whether Article 50 can be triggered by royal prerogative or by a vote in Parliament is wholly arid? Indeed, for Brexit to be brought into execution it will be necessary for us to cancel and undo completely the European Communities Act 1972. That, of course, will involve legislation.

[Lord Bridges of Headley]

Indeed. The noble Lord makes a point about the role of the ECA. We are currently reviewing what action will be required regarding the review, amendment or otherwise of that Act.

Exiting the European Union

Lord Elystan-Morgan Excerpts

Monday 5th September 2016 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister agree that there are three technical realities that we should very much bear in mind in connection with this? First, although it is not mentioned in Article 50, we cannot be rushed at all into giving notice. It is a matter for us to select the timing and nobody can accelerate that process.

Secondly, in paragraph 2 of Article 50 there is a provision for negotiating an agreement for leaving and that agreement should be concluded by the Council on behalf of the European Union. There is nothing at all in the article which sets out what those conditions should be—nor, specifically, what the timing should be.

The third paragraph of Article 50 ordains that the final leaving should be either the date set in the negotiations or two years. It does not say whether it should be the longer period. But it goes on to say that that period can be extended by the unanimous decision of the Council and the agreement of the leaving state. I am sorry to have taken such a long time, but I am sure that the Minister will agree that these are matters of the utmost, supreme importance.

[Lord Bridges of Headley]

My Lords, the noble Lord speaks with a lot of experience on this. On his first point, he is absolutely right: the decision on timing the invocation of Article 50 is obviously within our power. That is why we must use this period, mindful of the calls to bring greater certainty and clarity to the situation, to ensure that when we invoke Article 50 we are in possession of all the facts and have a clear idea of the strategy and outcomes we wish to achieve. That seems eminently sensible; to do otherwise would be a complete abrogation of what I believe to be in the national interest, and we should not do so.

As regards unanimity on the decision to extend Article 50 and the deliberations on that, the noble Lord is absolutely right.

--- Later in debate ---

[Lord Stoddart of Swindon]

My Lords, I am very pleased that the Prime Minister has made it very clear that Brexit means Brexit and that there will not be another referendum. The people have spoken and, if I may quote somebody else, long live the people. Perhaps I may ask the noble Lord two questions. First, in the vote in 1971, did Parliament give all the treaty powers to the Government, and does any other treaty abrogate what was then done?

[Lord Elystan-Morgan (CB)]

1972.

[Lord Stoddart of Swindon]

No, it was 1971. There was another vote in 1972 on a different matter, but the 1971 decision was to hand over the power of Parliament to the Government of the day. I am asking whether that has been abrogated since. Secondly, once Article 50 is brought into operation, surely we do not have to take two years to negotiate a settlement. Can we not make the negotiation shorter than that? Perhaps the noble Lord can answer that.