Brexit: Withdrawal Agreement and Political Declaration

Lord Forsyth of Drumlean Excerpts

Monday 14th January 2019 Lords Chamber

[Lord Keen of Elie]

I hear the noble Baroness, Lady Chakrabarti, saying that that is a good idea, but of course it has no comparison with the present situation, if we want to reverse the decision made in a referendum when it has never even been implemented. That is why people would regard it as something of an outrage.

As my noble friend Lord O’Shaughnessy observed, there are issues with the call for a second referendum. Indeed, many people would regard it as a charade, because those calling for it, or at least many of those calling for it, do not want the people to decide. They want the people to give them what they regard as the correct answer, because they did not give it last time. And there is no reason they would not ignore a second leave vote just as readily as they ignored the first leave vote. Of course, they seek to dress it up as the “people’s vote”. Who do they believe voted in the first referendum—sheep? It was the people’s vote.

I come back to the issue of trust. We have the withdrawal agreement and the backstop, which are and are intended to be temporary means for us to actually exit the European Union and do not, by themselves, determine our future relationship. That is outlined in the political declaration. If we do not trust the party with whom we are engaging, then all forms of agreement and negotiation are simply worthless. At the level of international law you cannot—short of war or gunboat diplomacy—force a nation or an international body to implement a promise or obligation if it decides not to do so. Whether it is an oral promise, a written assurance, a solemn undertaking, an international treaty or something written in blood on vellum, if they are determined to lie to you, to mislead you, to change their minds, you are simply going nowhere.

We hear references to the EU wishing to punish us, wishing to put us into a triple lock, wishing to hold the backstop in perpetuity. Yet the European Union says, entirely candidly, that it wants a fruitful future economic, security and social relationship with the United Kingdom, so why would it want to punish us? It does not want to enter a backstop and if it does, it wishes to do so for the shortest time possible. Nobody appears to have acknowledged that, in fact, great advances were made over the backstop in the negotiations. It was proposed originally for Northern Ireland only, which would have had the most profound consequences for our constitutional situation in the United Kingdom, but that is no longer the case. It embraces the entirety of the United Kingdom and by doing so it breaks the four freedoms that the European Union said would never be broken and produces the very cherry picking that it said it would never contemplate.

In addition, the European Union has made it clear that it wants to implement the terms of the political declaration as soon as possible. If we do not believe it, we should stop now, but if we trust it, then we can place faith in these expressions, whether in a formal treaty, a written declaration or correspondence from the President of the Commission and the President of the Council. If we trust the integrity of our interlocutors, we may better understand the motives of those with whom we negotiate and the extent to which they are truly willing to compromise. We often see the European Union as concerned with economics, social policy and politics, but in reality I suspect that it considers its priorities to be political, social and economic. That is one reason so many people in the United Kingdom chose to leave: they were against the notion, that underpins even the original treaty of Rome, of ever-closer political union.

The withdrawal agreement and political declaration have to be read together and in good faith. We have to trust the promises that are made in good faith and understand the need for compromise on both sides.

Looking to ourselves, we perhaps need to remind ourselves that the referendum was not a choice between good and evil or between ruin and redemption. My noble friend Lord Forsyth of Drumlean suggested at one point that the most reverend Primate the Archbishop of Canterbury had implied that all those who voted leave would go to hell. I do not believe that he suggested any such thing.

[Lord Forsyth of Drumlean (Con)]

I suggested no such thing.

[Lord Keen of Elie]

I apologise, but that was my understanding.

Scotland: Transport Policing

Lord Forsyth of Drumlean Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, does my noble friend agree that British Transport Police does a magnificent job in maintaining security on our trains, in particular between Scotland and England, and that for the Scottish Government the root of this problem has been the name? Had it not been called British Transport Police, we would not have seen so much objection and such a waste of resources as the result of nothing less than political prejudice on the part of the Scottish Government.

[Lord Duncan of Springbank]

My noble friend makes a very valid contribution. The success rate of British Transport Police is considerably higher than that of the other police forces. On the reasoning behind the Scottish Government’s move, it is not for me to seek to define the indescribable workings of the Scottish Government. None the less, I suspect there might be something in what he says.

Brexit: Negotiations

Lord Forsyth of Drumlean Excerpts

Tuesday 20th November 2018 Lords Chamber

[Lord Callanan]

There are mechanisms to bring the backstop to an end but my noble friend is right that they would need to be mutually agreed. A joint committee has been set up and independent arbitration is foreseen within that, to which we can apply the solutions. They are set out in the agreement. I would be happy to write to my noble friend with further details but I understand the point he is making.

The Brexit discussions have been about acting in the national interest and that has necessarily involved making what we believe to be the right choices, not the easy ones. By resolving this issue, we are now able to move on to finalising the details of an ambitious future partnership. The outline political declaration we have agreed sets out the basis for these negotiations, and we will negotiate intensively ahead of the European Council this weekend to turn this into a full future framework.

Under the future relationship we will see an end to free movement. As the Prime Minister stated yesterday at the CBI conference, we will have our own new skills-based immigration system, based not on the country people come from but on what they can contribute to our United Kingdom. We have worked hard to deliver for the economy—to deliver a deal that puts jobs, livelihoods, prosperity and opportunity first. This is what Brexit should be about: getting a good deal that unlocks the opportunity of a brighter future for this country and all our people.

[Lord Forsyth of Drumlean (Con)]

I am most grateful to my noble friend. Just going back to the point about the position of Northern Ireland, given that the backstop in the agreement provides for a different regulatory regime in Northern Ireland, why is this not creating a border down the Irish Sea?

[Lord Callanan]

This is only within the backstop itself. As I said, we hope that the backstop will not be required and that we will be able to put in place future arrangements that will render the backstop unnecessary. There are some regulatory differences now between Great Britain and Northern Ireland. But it is true that under the backstop, if it comes into operation, Northern Ireland will align with many parts of the single market acquis that are necessary for the creation of a borderless Ireland.

The declaration reached common ground on services and investment, including financial services. It also ensures that we will be leaving the common agricultural policy and the common fisheries policy. The UK will become an independent coastal state once again.

We have been able to agree on key elements which will help keep our people safe. These include effective extradition arrangements, as well as mechanisms for data exchange on passenger name records, DNA, fingerprints and vehicle registration data. We have also agreed a close and flexible partnership on foreign, security and defence policy.

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[Lord Forsyth of Drumlean]

My Lords, this withdrawal agreement or proposal does not deliver what 17.4 million people voted for. It is a Trojan horse, as the noble Lord, Lord Morrow, said, at the centre of our constitution and threatens our very existence as a self-governing and independent United Kingdom. We are told by the Prime Minister and, indeed, the noble Duke, the Duke of Wellington, that we should support it in the national interest.

[Lord Cormack]

Yes.

[Lord Forsyth of Drumlean]

The noble Lord, Lord Cormack, assents. Is it in the national interest to abandon any say in making our laws in vital areas during the transition period and to pay a staggering £39 billion as the price of our emasculation? That is more than £2,200 for every person who voted leave in the referendum. Every penny of it will have to be borrowed and paid back by the young people who have featured in so many of the speeches this evening. Just think how a fraction of this sum could be used for huge benefit in our schools, or to repair the damage caused by the cuts to welfare and universal credit.

Is it in the national interest to enter into a legally binding agreement from which we will have no unilateral right to withdraw, to bind the hands of future Parliaments and to make us reliant on the permission of a foreign power or court to fulfil our manifesto promises? Is it in the national interest to risk fracturing our United Kingdom by making Northern Ireland a rule-taker in further areas, including goods, agricultural products and VAT? The backstop provides for an all-UK customs union and regulatory alignment in Northern Ireland—a gift to the Scottish separatists and, along with the backsliding on fishing rights, a slap in the face for the 13 Scottish Tory MPs elected to preserve our union and save us from a Corbyn coalition Government. It is not just for the Scottish separatists. As we heard, the noble Lord, Lord Wigley, is already on to the opportunities to argue the case for Welsh nationalists on the back of these proposals. It is a total betrayal of the Democratic Unionist Party, which was assured that no unionist—indeed, no Prime Minister—could ever countenance a border in the Irish Sea, so eloquently explained by the noble Lords, Lord Browne of Belmont and Lord McCrea, in an outstanding maiden speech.

This is a hokey-cokey agreement, leaving our country half in and half out of a failing organisation in defiance of a promise given by a Conservative Government—indeed, by all political parties—that they would implement whatever the people decided in the referendum. We spent nearly £10 million of taxpayers’ money putting leaflets through every door giving that promise. Now people are prepared to cast it aside. We were told that no deal is better than a bad deal. Now, apparently, the national interest requires us to accept that a bad deal is better than no deal. We were told that nothing is agreed until everything is agreed. Now it seems that everything is agreed for nothing. It seems we have stumbled into an episode of “Yes Minister”, where it is being argued that it is necessary for us to leave in order to remain. There is still time for the Prime Minister and the Cabinet to change course and keep faith with those 17.4 million people who were promised that, if they followed us, we would give them their country back.

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[Lord Keen of Elie]

No, I am not taking interventions because of the time available. I am sorry.

All this puts us close to a Brexit deal—a deal that takes back control of our borders, our laws and our money, while at the same time seeking to protect jobs, security and, indeed, the integrity of the United Kingdom. It is a deal that brings the country together—a deal that realises the benefits of Brexit and then lets us focus on other issues.

Let me touch upon several points that have been raised during the debate. There was the question of citizens’ rights. What we intend to do there is to protect the rights of the more than 3 million EU citizens living in the United Kingdom and about 1 million UK nationals living in the EU. In respect of that we intend to bring forward an immigration Bill, which will be the subject of consideration.

The question of students was raised by the noble Baroness, Lady Smith of Newnham. We have clearly taken a position with regard to EU students in this country, and it is our belief that in due course, in the course of negotiation, we will achieve a reciprocal undertaking from the EU 27 but that has not yet been achieved.

There is the implementation period, which provides a bridge to the future relationship and will allow businesses to continue trading as now until the end of 2020. There is also the financial settlement—a fair financial settlement for UK taxpayers, which is estimated at between £35 billion and £39 billion. Let me be clear in response to my noble friends Lord Forsyth and Lord True: that is not a price. As was pointed out by the noble Lord, Lord Butler, it is an estimate of a determination of our outstanding obligations on a net basis. There are sums that will fall due during the implementation period; there are sums that we have committed to meet in respect of obligations of the EU; indeed, there will be sums coming back from the EU over time, including from the European Investment Bank and the European Central Bank.

[Lord Forsyth of Drumlean]

Will my noble and learned friend—

[Lord Keen of Elie]

No, I am not going to take interventions.

[Lord Forsyth of Drumlean]

You have 25 minutes. The point I made in my speech about the price was that we would be in a transition period or implementation period, although there seems little to implement, and in that period we would have no say in our affairs yet were still expected to pay the £10 billion per year. If we did not have that period, then we would not pay the £20 billion.

Scotland: European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

Thursday 14th June 2018 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, might I begin by saying to my noble friend the Minister, “I told you so” that, when the then Scotland Bill said that the Government would “not normally legislate”, it would become a future source of dispute? We should not be surprised that it is being used in this way by nationalists who wish to break up the United Kingdom. Having said that, I congratulate my noble friend on the efforts that were made—which satisfied the Welsh Government but not the Scottish nationalists—in order to deal with this difficult issue. But how can we take seriously Scottish nationalists whose position is that the powers should remain in Brussels, when they say that it will be a power grab when those powers come back to the United Kingdom and in turn will be devolved to the Scottish Parliament? Indeed, when all the SNP MPs walked out of the Chamber of the House of Commons yesterday, it was symbolic. Their position is that their Members in the House of Commons should have no say on agriculture, environment, fishing and other matters, while the Government, by leaving the European Union, are creating that opportunity for Scotland to have its proper say and to maintain the United Kingdom single market.

Will my noble friend therefore perhaps get a bit on the front foot, and instead of apologising for the difficulties that have been created, make it clear to the country that what is going on here is a stunt by people who wish to break up the United Kingdom and turn everything into a constitutional crisis? In their desire to have more legislation, it might be pointed out how little legislation has gone through the Scottish Parliament. Indeed, the most recent legislation has been illegal, or certainly ultra vires, as determined by their own Presiding Officer.

What happened in the House of Commons yesterday was a stunt which was not in Britain’s or Scotland’s interest, and it was certainly not in the interests of those farmers and fishermen in Scotland who wish to have a say in how their own affairs are treated in the future through their Scottish Parliament in this United Kingdom Parliament.

[Lord Duncan of Springbank]

I thank my noble friend Lord Forsyth. It is fair to say that he can to a certain extent legitimately say, “I told you so”, and he forewarned that this would be an outcome. None the less, the Government did all they could, trying in every possible way to secure agreement with the Scottish and Welsh Governments.

The walkout yesterday was—daft. That is the word. It was a situation in which four SNP MPs had questions to the Prime Minister and they decided that they would walk out and not ask them. One of the poor souls had been trying since 2015 to put a question to the Prime Minister, and he walked out. It may take another three years or he may never put another question to the Prime Minister, and if you are to try to hold a Government to account, that is your opportunity to do it. At the selfsame time, it looks as if the Speaker of the other place was ready to have a debate on the very issues which the Scottish National Party was so aggrieved by, but of course that did not happen, because the members of the SNP were hotfooting it out to the television cameras to say how disgraceful it was that they were in that situation. It is regrettable and it was unhelpful to their own cause. I believe that we should have as much discussion as is required on the issues to ensure that nobody feels that they are being silenced, quietened or ignored. However, there are conventions in the other place which would have allowed for that discussion to take place, but they were squandered by individuals who perhaps did not believe that those opportunities were adequate for them and their purposes.

I accept the points raised by my noble friend about the powers themselves. It is difficult to reconcile the views of the Scottish National Party; it believes that Brussels can retain all the powers, but even if there is the slightest hint that the United Kingdom could in any way have any touch of these powers, that is somehow bonkers. The sanity of that is questionable—but perhaps that is not for me to question.

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[Lord Duncan of Springbank]

I thank the noble and learned Lord for that point. I can confirm that the Government could have adjusted it, had they been minded to do so. However, the problem was that they did not anticipate what happened as the votes began to dominate and consume the speaking time. Part of the dilemma that was faced was therefore that by the time this was recognised, the time itself had elapsed. I do not doubt that yesterday, had the Scottish National Party not left the building and had lodged their request for a debate, there would have been a debate on that very point to allow each of these issues to be aired adequately.

[Lord Forsyth of Drumlean]

My Lords, as Front-Benchers are apparently allowed to use Back-Bench time, and as there does not seem to be anyone else who wants to speak, perhaps I may ask my noble friend to elaborate on the efforts made by the Government to get the Scottish nationalists on side. Would he like to comment on the press reports which suggested that the negotiators on behalf of the SNP had pretty well crossed the line but when they went back to Scotland they were told by the First Minister in no uncertain terms that this was not acceptable? Does that not underline what is going on here, which is that the First Minister of Scotland, Nicola Sturgeon, faced with declining popularity in the opinion polls and declining support for an independence referendum, and faced with a party that thinks there should be another referendum next week, is basically trying to create a grievance and a row to stir up support? Does my noble friend agree that the Scots people are wise enough to realise how much of their economy depends on the single market of the United Kingdom and that they will have no truck with this kind of divisive behaviour on the part of the Scottish nationalists?

The noble Lord, Lord Thomas, suggested that we should use moderate language. If you are faced with people who wish to destroy your country and the economy in Scotland, which is where I live, you do not moderate your language; you speak up for the majority, whose livelihood depends on that economy. In short, will my noble friend tell the House just how unreasonable the SNP has been? Does he agree that it was never going to agree because it wanted this as a source of grievance for its wider agenda?

[Lord Duncan of Springbank]

I was told before I arrived in this House that we did not really do politics, but perhaps we do in this instance. I shall try to find the right way to address those very trenchant points. A number of hours were spent trying to bring about a quite challenging change—taking the devolution clause as constructed and literally inverting it. I do not think that the United Kingdom Government have had enough credit for doing something unusual, which was to take their own proposal and, before it was too old, turn it around to try to find that compromise. They did a great deal of work. The officials of all the Administrations worked tirelessly to produce what ultimately was enough to satisfy the Welsh Government. Indeed, when the Welsh Minister responsible left London at that moment, he believed he was taking back views which he could get signed off by the First Minister of Wales. It was anticipated that the Scottish Minister was doing exactly the same thing, but that was not to be.

The term “grand masters of grievance” used by the noble and learned Lord, Lord Wallace, perhaps has a certain currency. It is important here that during these difficult times we do everything we can to ensure that there is safety first—making sure that our laws work and that the laws that keep Scots within a union that functions well for them work immediately after Brexit. That is what we are trying to deliver. However, it is not wholly clear right now what the Scottish Government are trying to achieve. They are content to have the EU administer in all these areas but they are in no way content to allow even a temporary freeze to determine how a UK framework can be created to allow the same responsibilities and roles to be undertaken by the United Kingdom Government. They seem to be slightly unwilling to accept that the UK Government have any role at all in the governance of the United Kingdom, and that is an unusual position to be in.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

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

[Lord Keen of Elie]

I wholly reject the implication that we are suggesting that any of the devolved Administrations are going to proceed to legislate, with any of the competencies returned to them, in a way that would be regarded as stupid or unacceptable. That is a most unfortunate gloss to put on the matter. It is, however, very helpful that the noble Lord, Lord McConnell of Glenscorrodale, has raised the question of how we are going to deal with the issue in this context. The framework agreements have been the subject of ongoing negotiation among all of the Administrations, but in order to achieve that it is necessary to retain competencies in those areas so that there is not the prospect of legislation within the devolved areas which impacts upon areas outwith their competence. To give a simple example in that context, the Scottish Government are entitled to exercise devolved competence and powers within Scotland for the Scottish people, but if we allow all of the additional competencies to go back to the Scottish Government and they legislate in an area such as food labelling, that impacts on the people not only of Scotland but of England, Wales and Northern Ireland. There is therefore, in a sense, a veto over proposals for the internal market, with one devolved Administration saying, “No, we don’t like your proposals on food labelling. We know everybody else likes them but we’ve decided we don’t like them, we’re not going to consent to them, so you can’t have them.” That is the problem that we want to ensure does not arise.

Coming more particularly to the point that was made about how this is decided, we do ring-fence, as it were, the 24 competencies—or elements of them—that have been identified following the consultation process with the devolved Administrations and which are reflected in the principles that I quoted from the Joint Ministerial Committee on 16 October last year. Then, we have to formulate framework agreements, essentially, in each of these areas for the United Kingdom.

Taking up the noble Lord’s point on how we are going to implement those, we will do so by way of primary legislation. And where do we find ourselves? Back in the relevant devolved legislation, which says that we will not normally legislate in respect of these devolved areas except with the agreement of the relevant devolved Government. So the relevant safeguard is exactly the same as the one that exists at the present time. What we propose will not intrude on the devolved competence in Scotland, Wales or indeed Northern Ireland. It retains 24 areas that are coming back from the European Union in order that we can work out what is required for the purposes of maintaining a single UK market. However, what would alter the devolved competencies quite fundamentally would be a provision that said that we could retain those areas of competence only with the consent of each of the devolved Administrations. That would give them a veto over matters that went beyond their present devolved competence and a veto over matters that impacted on England, Wales, Northern Ireland or Scotland, depending upon who was doing it. That is why we have set out matters in the way that we have. When we come on to the amendment to Clause 11 in due course, I hope that, having essentially flipped Clause 11, we can reflect on the great progress that we have made to date in these areas. It is in that context that I simply invite the noble and learned Lord to withdraw his amendment.

We will return to these matters under reference to the government amendments but I wanted to set out, I hope with a reasonable degree of clarity, the Government’s thinking in this area. This is not, with respect, a power grab—on the contrary: if we consult, if we agree and if we achieve this, there is no question of a power grab. It is certainly not a derogation from devolved competence. A great deal of competence will be laid on the devolved Administrations, because so many of these competencies coming back from the EU, and under the amended Clause 11, are going straight to the devolved Parliaments and Assemblies.

[Lord Forsyth of Drumlean (Con)]

Before the noble and learned Lord sits down, may I just tempt him? He has given a very clear exposition of the Government’s position and why it is in the interests of the devolved Administrations and the United Kingdom as a whole to proceed in the manner that the Government describe. He has also talked about the great efforts that have been made by the officials and the work that has been done. Why, then, do we have such opposition, in particular from the Scottish Administration?

[Lord Keen of Elie]

I am not going to rehearse the rhetoric that has been used by some members of the Scottish Government to feed populism. Terms such as “power grab” may have their place, but they do not have a place in the context of our looking at this legislation. Of course, it has been asserted that consultation is not enough—even though it may lead to agreement—and that there has to be consent and only consent. But if it is consent, that is, let us remember, a very material change to the devolved settlements. That will result in the devolved Parliaments and Governments being able effectively to veto matters that impact upon those outwith their area of devolved competence.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

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

[Lord Griffiths of Burry Port (Lab)]

My Lords, in moving Amendment 302B I shall speak also to Amendments 302C and 302G, which seek to amend the government amendments to Clause 11 and Schedule 3.

I recognise and appreciate the tone of the Minister’s speech, as well as the letter that I received this morning from the noble Lord, Lord Bourne of Aberystwyth. Clearly a great effort is being made, and we acknowledge that. Perhaps it will not be a surprise that it is my task—and I consider it my task—to look at those areas where we have perhaps not yet reached agreement, but it is significant that efforts are being made. Yet I must make the point, in sorrow rather than in anger, that the way in which the Government have handled the whole issue over months of inactivity from the autumn onwards leaves much to be desired. Indeed it would not be wholly inappropriate to describe it as lamentable. There was a lot of time lost there.

There is no doubt that we agree on the two main points—indeed, my own interventions earlier in these debates said so very explicitly. We know that a Bill must be enacted and that we must avoid chaos in our legal system. On day one, things must work. As the leader of my party has said more than once, we are totally committed to achieving that. The Welsh and Scottish Governments made it clear as long ago as the White Paper on what was then known as the great repeal Bill that they could not and would not give consent to the approach embodied in the original Clause 11: an emasculation of the devolution settlements by upsetting the balance of the distribution of powers between the UK and the devolved institutions.

There are some in this Committee who will attribute any criticism of the way things have proceeded to a narrow, political sectarianism on the part of an SNP Government in Scotland and a Labour Government in Wales. In my view, such opinions will be more likely to emanate from the narrow, political sectarianism of those who give voice to them, for the repeated expressions of good will from the First Ministers of Scotland and Wales, working together for a satisfactory outcome to these questions, are entirely in line with a whole host of opinions coming from highly respected sources of a totally objective nature. I handpicked just a few for illustrative purposes in an earlier contribution, but I list them again now: our own Select Committee on the Constitution, the Bar Council, the Delegated Powers Committee, the Bingham Centre for the Rule of Law, and the list could go on. Add to that the eloquent contributions from, among others in an earlier debate, the noble and learned Lords, Lord Morris of Aberavon, Lord Wallace of Tankerness and Lord Hope of Craighead, and it should be clear that we can state with confidence that the case being made has widespread and expert backing. But the Government for months stuck their head in the sand and just ignored the growing chorus of voices that has echoed this concern. Indeed, as we have noted insistently and repeatedly, despite the Secretary of State for Scotland giving an assurance in Committee in the other place that an agreed amendment to Clause 11 would be put forward on Report there, far from realising that modest objective, discussions on the matter with the devolved Administrations did not begin until the new year. Now, after all this time, we are presented with an amendment, or set of amendments, that has still not been agreed by the devolved Administrations.

The Chancellor of the Duchy of Lancaster, a nice, approachable man who serves a decent cup of coffee, has proved himself a master of spin. He has told the whole world about the great success he has had in bringing the peoples of Wales, Scotland and Northern Ireland out of their wandering times in the desert to the very edge of the Promised Land. Perhaps I should remind him that the leader in those wandering days died before he could enter the land flowing with milk and honey. There is still a distance to travel, for Mr Lidington’s skilful PR onslaught fails to address the fundamental issue at stake—the issue of consent, which was referred to in the speech we have just heard from the Minister, and which our amendments seek to underline.

Even if amended as now proposed by the Government, Clause 11 would give Ministers of the Crown very wide, unilateral powers to use regulations to place new constraints on the legislative competence of the devolved legislatures. The claims of the Government that this would entail no restrictions on the scope of the legislatures to act that are not now in place ignore the fact that the current EU law restriction falls away on exit day, as does the constraint on our own freedom to pass laws in contradiction of EU law. Let there be no doubt: Clause 11 allows for the imposition of new restrictions, ones that will, if the Government have their way, be controlled and policed by Whitehall. We have heard plenty of discussion of the possibility of this in earlier debates. This is a very different constraint to the one that currently applies to the whole of the UK to respect EU legal frameworks painfully negotiated by 28 member states, with a clear role for the devolved Administrations in developing the UK negotiating position.

The amendments as drafted do not even contain the safeguards that the Government would have us believe. While they say that the restriction will apply to areas where future UK frameworks would apply, and have tried to throw sand in our eyes by simultaneously publishing a list of such potential framework areas, the regulation-making power they seek is not circumscribed in this way. In theory at least, Ministers could simply specify all of those areas of retained EU law that would otherwise be in devolved competence. Of course, I would hope that our House, presented with the requirement for an affirmative resolution to support such regulations, would refuse. But can it possibly be right that it is only Parliament that would have any input into this decision, not the legislatures whose rights would be circumscribed? I mean, it is only the Executive that would have Ministers, not the legislatures. The only requirement in respect of the devolved institutions is one to consult the devolved Administrations.

What the Government have brought forward at this late stage is far too weak.

[Lord Forsyth of Drumlean (Con)]

I am following the noble Lord’s argument very carefully. Will he explain why he is content with the position under the current arrangements by which these matters are determined at European level? The Welsh Assembly or the Scottish Parliament do not have a veto and their consent is not required for Ministers’ negotiating positions in the Council of Ministers, which, after all, can respond only to regulations or proposals brought forward by an unelected Commission.

[Lord Griffiths of Burry Port]

While I will have a word to say in a moment about the use of the word veto, I will not claim to know the detail relating to the Council of Europe, to which reference has been made.

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[Lord Griffiths of Burry Port]

I am delighted to receive that help from behind me, and also to hear from alongside me that, when my noble friend used to attend such meetings, he did not feel part of the furniture or not very welcome. Perhaps that in some way goes towards an answer.

[Lord Forsyth of Drumlean]

What the noble Lord, Lord Hain, is saying is perfectly correct. My question to him was why they were content with a system where people were consulted and involved but which did not require their consent as to the United Kingdom’s position, which is exactly what is being proposed here.

[Lord Griffiths of Burry Port]

I thank the noble Lord. I have long since learned that perfection is not my strongest suit. I remember once asking everybody in a congregation of mine if anybody was perfect and a man at the back put his hand up. I did not believe him, and he said, “No, it’s not me; I am speaking proxy for my wife’s first husband”.

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[Lord Mackay of Clashfern (Con)]

My Lords, my Amendment 318A is in this group. As your Lordships know, I am a lawyer, but I have already got limited support from the noble Lord, Lord Wigley, who has repeatedly explained that he does not suffer from this disadvantage—I will do my best to take him along with me.

As I have indicated, I was first introduced to this matter in a discussion with a very distinguished SNP Member in the other place, when we were travelling together from the north. I mentioned to him that I had had no briefing of any sort from the Scottish Government. The next day I got a message from the Scottish Government to say that the Lord Advocate and Mr Russell, the Minister, were very willing to speak to me. I was able to speak to the Lord Advocate that afternoon and to Mr Russell in the early afternoon that Wednesday. I was very emphatically assured by Mr Russell that the Scottish Government were keen to reach an agreement. I am quite satisfied that there is no indication in the attitude of the Scottish Government that this is an attempt to further their ultimate political aim, and that they are seeking to solve this matter in a way that accords with the dignity of the Scottish Government. I said that I did not want to do or say anything that would impede agreement, and I now hope to show how agreement can be reached.

Before I explain the amendment, I will say a word or two about the law that lies behind it—I will take Scotland as an example, as the other Administrations have similar provisions. The devolution settlement in the Scotland Act is subject to EU law. That considerably restricts what the Scottish Administration can do at present, but when Brexit comes along that limitation will disappear. Included in those limitations are the legislative powers of Brussels to legislate in the United Kingdom. From one point of view, it is wise to analyse these powers in this way: a power that can be made effective within a single area of legislative competence in the United Kingdom should go straight to that level—in other words, to the devolved Administration. That is, if the power does not require more than one of our legislative areas in order to be effective, it should go straight to the devolved Administration.

But there are EU powers which can be effective only when they cover more than one of our legislative areas. The one that is of most relevance in this connection is that which provides for the single market. As your Lordships know, and as the Scottish Government certainly know, the single market is quite an important feature of the present negotiations. Part of that single market is the single market in the United Kingdom. It is 100% obvious that, if you are going to legislate for the single market in the United Kingdom, it is legislation that affects all of the countries within the United Kingdom and the legislatures that support them. Therefore, it is absolutely plain that the ultimate power to settle the single market provisions lies with the United Kingdom Parliament.

But—and this is an important consideration—it is extremely wise to proceed by agreement where it is at all possible. A good deal of agreement has already been reached. As I said, I was assured by Mr Russell when I first spoke to him—and again when he later saw my amendment, which he welcomed subject to qualifications such as the noble Lord, Lord Wigley, will propose—that the Scottish Government are very anxious to reach agreement.

[Lord Forsyth of Drumlean]

I am very interested in this concept, which my noble and learned friend is putting forward, that powers which affect the single market that is the United Kingdom should be taken at a United Kingdom level. Does he see that operating both ways? For example, the Scottish Parliament has the power to set unit pricing for alcohol, which of course affects the single market that is the United Kingdom. Does the proposition that powers which affect the single market should be taken at the UK level mean that, as well as the powers which will come from the European Union when we leave it, powers might also be returned to Westminster from the Scottish Parliament? He might find that Mr Russell is less enthusiastic about that.

[Lord Mackay of Clashfern]

I am not suggesting that for a minute. I am suggesting that what is required is a single market which is the necessary concomitant of having cross-border trade. I do not think that the price of alcohol in Scotland would necessarily affect that. It might be wise for me, if I wanted to buy alcohol, to do it when I was here rather than in Scotland. I may say at once that I am not particularly keen to do that either. That is not an example of the need for there to be no obstacle at the border, because if I have to pay for the whisky in Scotland, I can take it with me, subject to not coming on an aeroplane, I suppose. It is a matter of what is required.

It is realised by various people who were at the meeting of the Joint Ministerial Committee that framework agreements will be required in certain areas. That is because, for the single market in the UK to be effective, there must be agreement across the legislative areas. It follows, as night follows day, that the legislative vehicle for dealing with a market which is across the whole of the UK is a vehicle which has jurisdiction over the whole of the UK. It cannot be otherwise. That seems to be common sense and you do not need to be a lawyer to think that.

My next point is the “but” I was coming to before I was helped by my noble friend. I stress that it is highly desirable, when you are seeking to get a single market, to get the agreement of the components. They have different interests, but there is a very strong pressure to secure a single market. I am sure the Scottish traders do not wish to have something at Berwick-upon-Tweed which requires them to pay out money to English customs. It is absolutely clear that there is a very good pressure to reach agreement. As I say, I am assured by the White Paper that the Welsh Government put forward some considerable time ago, which was referred to earlier. I say in passing that that paper addresses itself to wider constitutional issues about future government in the United Kingdom and how it is not working very well and what-not. But I need something that will work now for the very limited purpose of getting the single market arrangements secure before Brexit comes into effect.

I have suggested in my amendment that there should be set up a group which consists of representatives of all four countries. I think it is wise to specify who they are. I have also specified, to try to reach agreement, that the chairman of the group should be decided on by the group. The Lord Advocate mentioned to me that one of the features of the present committee is that it is always a UK Minister who presides. There will be a certain amount of interest in the skill of the chairman in reaching agreement. It is often quite an important position—I have not been chairman of many committees that have not reached agreement—and it is an important aspect of the matter. I have therefore suggested that.

Of course, the details of this are very much matters for your Lordships to consider, but that is the ultimate thing: that the group should look at all these questions. If, as I am assured, they are very keen to reach agreement, I have no doubt whatever that there is a very high prospect that they will reach agreement—I emphasise that—when you consider that new rules must come into operation at the point of Brexit or the end of the implementation period, whichever is the later, and that if there was failure to reach agreement it would require the action of the United Kingdom Parliament. I am prepared to limit the amount of time for that to three months to emphasise my confidence that agreement will be reached and that therefore a formal legislative enactment in the United Kingdom with full consent from all four members of the committee would be the result.

This is a simple way of dealing with the matter, which is dealt with in a rather complicated way by the government amendment. The government amendment appears to inject powers into areas which may be devolved in fact. Mine makes it absolutely clear that the devolved powers are to be immediately made available to the Governments of the devolved legislatures; it is only the single market power that I consider needs to be reserved.

My very good supporter, the noble Lord, Lord Wigley, has suggested in his amendment that there should be some extraordinary—I do not mean that in a pejorative sense—tribunal to decide when there is disagreement. I certainly hope that there will not be disagreement, but I have provided that if there is disagreement the group itself must specify what that disagreement is, to make the issue for the United Kingdom Parliament as small and definite as possible. In my analysis, the single market is within the legislative competence of the UK Parliament. All the four countries are represented there. I remember that the Scottish party that got many seats in the 2015 election said that one of the purposes was to provide a strong voice for Scotland in the Parliament of the United Kingdom. I have no doubt there is a pretty strong voice for that purpose. Having all four countries represented is as good as any kind of remarkable thing with Speakers. I am not sure if my noble supporter has asked the Speakers whether they want to take this on, but I think that is not in their competence. That is a job for the legislative assembly of the United Kingdom which is set up under our constitution and which I believe would reach a very good agreement on this point, if it had to. In the meantime, I sincerely hope it will not be necessary for it to do anything except legislate with a form agreed by the four constituents.

--- Later in debate ---

Incidentally, in response to the intervention by the noble Lord, Lord Forsyth, as I understand it, Scottish whisky now sells very effectively throughout the whole of the European single market—but that does not imply that there is a single tax regime in all the countries of the European single market.

[Lord Forsyth of Drumlean]

Will the noble Lord allow me to remind him that the Scottish Parliament had great difficulty in passing that legislation, because it was contrary to the European Commission’s views on the single market?

[Lord Wigley]

I have no doubt it had difficulty in passing it. None the less, the objective was a very valid one—to address the problems perceived in Scotland with regard to the level of alcohol consumption et cetera. The proposal was supported by many people in the social sector who wanted to see that sort of change. This is arguable, but the point is that you can have different tax regimes within a single market, as you have within the European single market. You can within the UK single market.

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[Lord Foulkes of Cumnock]

In spite of being a Tory; that is right. He has been constrained by Whitehall in getting decisions. I remember well sending notes around every Whitehall department to try to get some agreement. It is very difficult. However, I would have hoped he would have flexed his muscles a little earlier.

[Lord Forsyth of Drumlean]

My Lords, the noble Lord is clearly very expert on this process and when these meetings were held. Could he tell us how many of those meetings were cancelled by the Scottish Government?

[Lord Foulkes of Cumnock]

I have no idea; maybe the Government can help. What I can tell the noble Lord is that when I was Minister of State for Scotland we had a number of meetings. As my noble friend Lord McConnell can confirm, there were a lot of bilateral meetings between the Scotland Office and Ministers in the Scottish Government. That is the kind of thing that should have been happening but has not been.

I am not known for praising the Government, as Members who have heard me from time to time, particularly the noble Lord, Lord Callanan, know only too well. However, we should acknowledge— I say this as a strong devolutionist and a former MSP who really believes in devolution and argued for it for years, long before other people in Scotland were arguing the case—that the UK Government have moved on this. We have to concede that, under pressure and looking at the argument, they have moved.

We also have to be realistic. I say this to some of my Labour colleagues from England and, with respect, from Wales: the SNP has a clear agenda. It is concerned with only one thing, and we have to remember that. If it sees that it is to its advantage to concede then it will, and it may be able to make it to its advantage, but let us not be naive about what the SNP is up to—and let us hope that Welsh Labour is not naive about that either.

There is an advantage in the UK single market having the same kind of regulations on some of these issues, some of which the Minister has mentioned, and we ought to recognise that. We have an institutional and constitutional problem in the UK in that our devolution is asymmetrical. I have said on a number of occasions that this creates problems in a range of areas, and we can see that it does here. This Parliament has to speak for England as well as the UK and that creates structural, philosophical and other problems. Some of us believe in a federal UK—the Liberal Democrats certainly do, as do a number of Labour people such as myself—and in the longer term I hope we will deal with that. In the meantime, though, we have to recognise that it is a dilemma for the Government to be able to look after the interests of England. The Minister pointed out, and this is something that we have to take account of, that decisions made by the Scottish Parliament or the Welsh Assembly can have an impact on England. We have to accept that and look after the interests of England as well as the whole of the UK. The Minister has said there is an advantage in a number of aspects being uniform throughout the whole of the UK, and I concede that. I was going to mention some more examples but I am conscious of the time.

I turn to the amendments. Serious thought needs to be given to the amendments that the noble Lord, Lord Wigley, the noble and learned Lord, Lord Mackay, and I have tabled. We need some form of mediation and that is what we are suggesting in these amendments—certainly in my first three. I am suggesting something similar to what is suggested by the noble and learned Lord, Lord Mackay: a ministerial council that would deal with that. Then, as a fallback if it could not come to an agreement, I have suggested an advisory panel, and have suggested that it should be the Speakers and the Presiding Officers who would set it up so we would get to a very similar conclusion. Some Members opposite will be pleased to hear that I do not refer to the Supreme Court.

For once, I am in agreement with the noble Lord, Lord Thomas of Gresford. I suggest in Amendment 318E that there should be a sunset clause. He and the noble and learned Lord, Lord Wallace, have suggested two years and I have suggested five, and that is open for debate, but it would be very good to have such a clause so that all sides would know that it had to be resolved by a particular time.

I hope, and I think the Minister indicated this at the start, that the Government consider these to be positive suggestions. If I can recognise that the Government have moved after all the awful things I have said about them over the last few days, months and years, I hope others will recognise that as well and give them at least just a little credit.

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[Baroness Finlay of Llandaff (CB)]

My Lords, I feel a bit like somebody from Relate. I am a Cross-Bencher, I am not a lawyer, and I do not now have an interest in Scotland—although I do have an interest in Wales. I just want to make a few brief comments, to assure the noble and learned Lord, Lord Wallace of Tankerness, that I tried to write a schedule for the Bill to set out the frameworks—but for all kinds of reasons I did not, and felt it would be a waste of massive effort to try to achieve something that I could not. However, I think the idea is commendable that we should put on the face of the Bill the matters that will go to the devolved Administrations, which would then not be for dispute. That may go a long way to assuaging some of the concerns.

I remind the Committee that the noble Lord, Lord Wigley, spoke about the need to be even handed, based on what has gone on before. The amendment tabled by the noble and learned Lord, Lord Mackay, is an enormous step forward. The fact that the Government have agreed to invert Clause 11 is also a major step forward, but there is still more to be done. We need to look at what will happen in the event of deadlock. Having a rotating chair, which has been suggested, would certainly help to establish some sense of equality. The frameworks need to include some sort of equal partners in resolution. I hope that some of the negativism of what has gone before may be laid to rest, because we have to move forwards into the new world. At least we have had some positive suggestions tonight. I repeat my thanks to those who have been communicating with us to try to achieve that—but we cannot just say, “Right, we’re there”. There is more work to be done.

The suggestion of a sunset clause could be helpful too, because that would concentrate the mind, and would provide some reassurance. I had put my name to Clause 11 stand part, but it is now to be replaced anyway, which is a great relief. I hope that we shall recognise, and not forget, the need for equality of voice and equality of representation. The failure to do that in the past should be a lesson to us as we go forwards.

[Lord Forsyth of Drumlean]

My Lords, I have never known a Government make such efforts to meet the arguments that have been put against their first intentions. If it had been up to me I would not have tabled an amendment at all; I thought the Bill as it originally stood was perfectly able to provide for what was required. Instead the Government have listened to the representations from Scotland and Wales. I think the representations from Wales have been a little more constructive than those from Scotland, for the reasons that my noble friend Lord Lang spelled out. I agreed with every word in his excellent speech, although it unsettled one or two people.

I have enormous respect for my noble and learned friend Lord Mackay, and I usually agree with him. I do not know whether he, like me, is a fisherman—but if he were, I would say that the fly he cast should be called the federalist option. What he is proposing is to change our constitution. This is a Bill to put in place the powers that have been lost to the European Union; it is not a Bill in which we should be remodelling our constitution, or reassessing the devolution settlement that was agreed, in the case of Scotland, in the latest Scotland Bill. Therefore, I do not support the amendment of my noble and learned friend Lord Mackay of Clashfern. I have noticed that those people who would like to see a federal arrangement and would like us to remain in the European Union have endorsed it with great enthusiasm, and I can see why.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

That is an open admission of it. As I look at the amendment, I think, “Who will speak for England?”.

[Lord Mackay of Clashfern]

It tells you.

[Lord Forsyth of Drumlean]

My noble and learned friend says that it tells me. Yes, it tells me that it is the Secretary of State. The Secretary of State’s responsibilities are for the whole of the United Kingdom, not for England. To suggest that there should be a rotating chair, as the noble Baroness, Lady Finlay, did, is a nonsense in terms of our constitution. Ministers in the Government have a responsibility to act for the whole of the United Kingdom.

I have to say that I thought that the speech of the noble Lord, Lord Wigley, was absolutely hilarious. Here he was making an impassioned plea for democracy in Wales while at the same time arguing that all the powers that he was concerned about should remain in Brussels, where the ability to bring forward legislation rests with an unelected Commission and where our ability to influence it is one of 28 in the Council of Ministers. It is a complete distortion of the word “democracy”. What is being offered here to the Welsh Parliament and the Scottish Parliament by the Government is the ability to take back control of a whole range of issues and policies over which they have hitherto had no influence at all.

[Lord McConnell of Glenscorrodale]

I have heard the noble Lord, Lord Forsyth, say on several occasions in these debates on Brexit in your Lordships’ House that other noble Lords around this House have tried to revisit the arguments around the referendum, that that is wrong, that time has moved on and that it is time to debate the process of withdrawal and not revisit those debates of two years ago. However, it seems to me that he does exactly the same thing on devolution. To take fishing as an example, the reality is that the Secretary of State for the United Kingdom Government is responsible for fishing in England and the relevant Minister and the First Minister in Scotland are responsible for fishing in Scotland. We have an equality of representation, duty and competence. That is what should be reflected in any common framework for decision-making. It is not the case that the United Kingdom retains an overarching power over these. There may be a constitutional hold over sovereignty at the end of the day, but the reality for 19 years has been that, once these powers were devolved, the Ministers in the UK Government became the Ministers responsible for the way in which those responsibilities were exercised in England, not in Scotland, or, on many occasions, in either Wales or Northern Ireland.

[Lord Forsyth of Drumlean]

The noble Lord is talking nonsense—codswallop in fact—in the context of fishing because the position has been that the Secretary of State with responsibility for fisheries, agriculture and everything else had no authority whatever to determine these matters; that rested in Brussels. I have been to Fisheries Councils, which are always held near Christmas and always go into the middle of the night, where we struggled to get a deal, and where we were invariably overruled by other member states. Then clever people such as the noble Lord, Lord Kerr, who I am not sure is in his place, would write press releases explaining how the talks had been a triumph and we had secured a brilliant deal for the United Kingdom. But we did not have the power to determine that.

As to the point about the position of the Secretary of State in the United Kingdom Government and the Scottish Ministers with responsibilities in respect of fisheries, the noble Lord makes my argument for me. The position is pretty clear: once we have regained control of our waters and our fishing policy, we will make international agreements with other parties. That has to be done on a United Kingdom basis. Despite the noble Lord’s efforts to advance the cause of the nationalists in Scotland, with disastrous results for his own party, his former leader now says that he regrets having done devolution at all. The noble Lord shakes his head. If he reads Mr Blair’s own autobiography, he will find that he lists two things that he regrets doing, and devolution is one of them. Devolution has had a disastrous effect on Labour in Scotland, as he well knows, because Labour has sought to appease nationalism and refused to stand up for the role of the United Kingdom in the way that my noble friend Lord Lang argued so brilliantly. When we regain power over fishing and so on, the Secretary of State will be responsible for organising and arranging access to our waters for fishermen throughout the United Kingdom on the basis of international treaties which can be made only by a sovereign state, and that is the United Kingdom. It is not Scotland, it is not Wales and it is not Northern Ireland.

[Lord McConnell of Glenscorrodale]

Plenty of countries around the world that enter into international treaties have internal mechanisms which allow different parts of those countries to come together to make a decision by either consensus or a formal agreement, so there are plenty of examples around the world of where that works in practice. It should be able to work in this country as well. I correct the noble Lord, Lord Forsyth: there is no evidence that the former Prime Minister Tony Blair regrets bringing in devolution in this country. In fact, it is one of the things he is proud of having done for this country and is a major constitutional change that made a real difference. If the noble Lord reads the book properly, he will understand that.

[Lord Forsyth of Drumlean]

I will return to my copy of this important text and will be in touch with the noble Lord in that respect. I completely agree with his point that there are plenty of countries where people are able to consult on these matters. However, there is a difference between seeking to consult people and seeking their consent. This is where this debate has gone off the rails in that people have confused consultation with consent. Consent, in effect, gives a veto, as has been explained by my noble and learned friend Lord Keen and by my noble friend Lord Lang. It has been explained that, if we have a situation where one devolved legislature is able to have a requirement for consent, as opposed to being consulted, we have one part of the United Kingdom able to use its veto to subvert the wider interests of the rest of the United Kingdom, and that was never ever part of the devolution settlement.

[Lord Wigley]

Does the noble Lord accept that some of the frustration that has built up, certainly in Cardiff, and, I can well imagine, in Edinburgh, arises where there was supposed to be consultation but often that was no more than a letter and the reply was ignored? Unless there is meaningful consultation that leads to a coming together of minds, it can be just a façade for there to be continued rule from London ignoring the needs of Scotland, Wales and Northern Ireland.

[Lord Forsyth of Drumlean]

I do not know the detail. I do know that a number of the joint ministerial meetings were cancelled, but not by the Secretary of State or the UK Government. I am entirely prepared to accept that the process could be improved. Certainly, when I was a Secretary of State and we had differences of view on policy in respect of Scotland compared with other parts of the United Kingdom, we had a joint ministerial committee, sorted out the issues and reached agreement, not always to our advantage but sometimes to our advantage and to the disadvantage of others. I had an amendment down, which I have withdrawn in the interests of making progress, which suggested that there should be some kind of statutory arrangement for consultation. I can see that. But I am seeking to argue against the noble Lord, who wishes to elide consult with consent.

[Lord Thomas of Gresford]

My Lords—

[Lord Forsyth of Drumlean]

May I just answer the noble Lord before I deal with the noble Lord, Lord Thomas?

I understand that. If I were a Welsh nationalist, or someone who did not accept the result of the referendum, I can see why I might table amendments of this kind and cause maximum disruption to the Government’s programme.

[Lord Thomas of Gresford]

The noble Lord has just outlined a dispute resolution system of which he was part. He said that the council would get together and it would thrash out an agreement. Is that not precisely what the noble and learned Lord, Lord Mackay, is suggesting?

[Lord Forsyth of Drumlean]

If the noble Lord had listened to the first part of my speech, I explained who would speak for England, and that this is a matter for the United Kingdom. The difference, of course, when I was Secretary of State was that there was one Government and one party in power. I do not speak for Wales but the difficulty we have in Scotland is that the party in power is determined to destroy and break up the United Kingdom. That is its agenda. As my noble friend Lord Lang said, every single issue is turned into a constitutional crisis and is a source of dispute.

If I may, I will turn to the substance of the government amendment. I started by saying that I have never seen a Government work so hard to try to achieve consensus and agreement. They have tabled an amendment which turns on its head the original proposals in the Bill to reflect the architecture of the Scotland Act. They should be given great credit for that. I welcome the conversion of the noble Lord, Lord Foulkes, who is not in his place; I do not know which road to Damascus he has been on, but it is good to see his conversion and that he now sees that what the Government are trying to do is sensible. The noble and learned Lord, Lord Wallace, also responded positively to this, and made some quite interesting suggestions as to how the amendment might be improved. It is to the Government’s credit that they have brought forward this amendment—and not just brought it forward; as everyone around this House knows, the Secretary of State, David Lidington, has gone to great lengths to meet people, despite all the other things on his agenda, to take this forward. Nobody can say that the Government have not tried to move forward in the interests of getting an agreement.

My noble and learned friend Lord Mackay says that he has had a generous conversation with the Scottish nationalist Minister, and that he thinks he will take a positive and constructive view. Anyone who had that attitude of mind would see that this was a huge leap forward and would embrace it. The Government have not only tabled an amendment which meets any reasonable person’s aspirations but have even said, “We’re not actually going to move the amendment; we going to withdraw it in order for people to have a further opportunity to consult on it”. I cannot think of another occasion when that has happened on a matter of such substance.

[A noble Lord]

Oh!

[Lord Forsyth of Drumlean]

I hear tittering in the background. Does the noble Lord wish to intervene?

It is a huge step forward, and we should all support the way in which my noble and learned friend Lord Keen—there are so many lawyers in this debate—has explained the thinking behind that and the Government’s ability to try to meet the anxieties, which have been stirred up unnecessarily, in a constructive and forward-looking manner while maintaining the integrity of our United Kingdom constitution.

It is a matter of regret that agreement has not been reached with the Scottish nationalists and the Welsh. I hope that the Welsh Government will take a different view. I doubt very much that the Scottish Government will want to do anything other than continue this dispute, and if that happens, my advice to my noble friends on the Front Bench is to get on with it, because they have gone as far as any reasonable person could expect them to go. I very much welcome this government amendment.

[Lord Morris of Aberavon (Lab)]

My Lords, I will make a few comments in this somewhat bizarre debate on the government amendments that the Government propose to withdraw. I have no experience of this situation; it must have happened before, but it is rather unusual, to say the least. I have emphasised before, and will not repeat, the need for “consent” as opposed to “consult”. That is what the Welsh Government want and what all the other parties in Wales want. I already dealt with the history of the Government’s excessive slowness to agree to legislative consent at all in my speech on Clause 5, and I do not wish to repeat that. But I ask the Government: what does “consult” mean? What is the definition? Is it a chat on the telephone or a face-to-face meeting between the First Minister and the Prime Minister? I think that we would like to know before the end of this debate so that we can consider where we go from here and what the Government’s intentions are regarding “consult”.

On Wales, Carwyn Jones has been trying diligently—he is a good advocate—to reach an agreement with the Government. I welcome very much the fact that, in addition to the meetings with the Chancellor of the Duchy of Lancaster, he has had a face-to-face meeting with the Prime Minister. That is how it should be. These are now grown-up Governments in Cardiff and Scotland, and it shows how redundant the role of the Secretary of State now is, because Prime Ministers deal with First Ministers—and likewise, on Treasury matters, it is Treasury Ministers who should seek an agreement.

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[Lord Forsyth of Drumlean]

I am grateful. I think the noble Baroness might have misunderstood me. The point I was making was that, in the case of Wales, Welsh Ministers have been consulted and involved, but United Kingdom Ministers did not need to seek their consent. They were consulted, but the responsibility in the European Union rested with UK Ministers. She is quite right that sometimes Ministers from devolved areas would go to European Council meetings, but the difference is that whereas then we were one of 28 Members, now we will have all of that power, which will be transferred to Welsh and Scottish Ministers, as the Government have made clear. So it is a huge opportunity. It is not a power grab; it is a huge power injection into the devolved Administrations. The point I was making is that people who are opposed to us leaving the European Union are deliberately misrepresenting this and, characteristically and unfortunately, arguing that they want more power for the devolved Administrations while at the same time saying they wish that power to remain in Brussels. That is the point I was trying to make.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

My Lords, in moving Amendment 49 I shall speak also to Amendment 52. I read the other day that the two most disbelieved statements are, “The cheque is in the post” and, “I am from the Government and I am here to help you”. Here is another one: this amendment is designed to be helpful to the Government, and I hope they will genuinely believe that. It seeks to formalise the agreement reached in December 2017 in the UK/EU joint report in relation to EU citizens and their ability to refer cases to the CJEU.

Clause 6(1)(b) states that, “A court or tribunal”,

“cannot refer any matter to the European Court on or after exit day”.

However, paragraph 38 of the joint report agreed by the UK Government last December states:

“This Part of the Agreement establishes rights for citizens following on from those established in Union law during the UK’s membership of the European Union; the CJEU is the ultimate arbiter of the interpretation of Union law. In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date. The Agreement should also establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it. This mechanism should be available for UK courts or tribunals for litigation brought within 8 years from the date of application of the citizens’ rights Part”.


We are not taking away any powers from the courts or tribunals. They decide whether to seek advice, and when they get it they then decide whether to take account of it. It does not in any way undermine the principles the Government have adduced for withdrawal. I hope, therefore, that this is helpful. All I am suggesting is that the joint agreement the UK Government have put their name to should be incorporated into the Bill, and I have helpfully provided an amendment to enable them to do that.

I also draw the Minister’s attention to the draft withdrawal agreement presented on 28 February by Michel Barnier to the Brexit Steering Group. I refer specifically to Article 83, which states:

“Where in a case before a court or tribunal in the United Kingdom a question is raised concerning the interpretation of the Treaties or the validity or interpretation of acts of the institutions, bodies, offices or agencies of the Union relating to facts that occurred before the end of the transition period and where that court or tribunal considers that a decision on that question is necessary to enable it to give judgment in that case, it may request the Court of Justice of the European Union to give a preliminary ruling on that question in accordance with the procedural requirements laid down in Article 267 TFEU. The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings on such requests”.


Do Her Majesty’s Government agree to that proposal by Monsieur Barnier in the draft withdrawal agreement and do they plan to amend the Bill accordingly?

[Lord Forsyth of Drumlean (Con)]

How would the noble Lord’s proposed new provision work in the event of there being no agreement and is he not anticipating the terms of an agreement?

[Lord Foulkes of Cumnock]

As I understand it, all that we include depends on there being an agreement. It is not just my amendment; it is the whole legislation. I beg to move.

[Lord Liddle (Lab)]

My Lords, I fully support my noble friend’s decision to raise these questions, which are very important. I suspect the Minister will say that the Government have given a commitment that, when the withdrawal agreement is concluded, it will become before this House an Act of Parliament and we will therefore have the opportunity to debate it then. However, there are two powerful reasons why citizens’ rights should be incorporated in this Bill now.

The first is the high level of anxiety that EU citizens have about their position. I am sure there is relief that, in principle, an agreement was reached in December, but there could still be many a slip between cup and lip in its ratification. Those citizens’ rights should be guaranteed now to provide reassurance.

Secondly, I listened hard to an earlier contribution from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in which he said that the main utility of this Bill is to make sure there is legal certainty if we crash out of the EU—because, assuming that negotiations work, there will be a transition period during which EU citizens’ rights will not be affected. The problem we are dealing with particularly in this Bill is the risk of a crash-out. Of course, the Government will say to us, “Well, we’re very determined there won’t be a crash-out”, but they will not exclude that possibility. It was clear from the intervention at the end of my noble friend Lord Foulkes’ speech that the noble Lord, Lord Forsyth, actually relishes the possibility of a crash-out because he thinks, wrongly, that this is some bargaining leverage we have over the EU.

[Lord Forsyth of Drumlean]

My Lords—

--- Later in debate ---

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord, but he must not put words into my mouth. I simply asked a straightforward question as to what the position would be if this amendment were carried in the event of no deal. Clearly, it would create enormous confusion. There is the separate issue of why we should allow extraterritorial jurisdiction on the part of a foreign court, but I was not embarking on that particular argument. If this is the best the noble Lord can do to support the amendment, I am sure he will support the noble Lord, Lord Foulkes, in withdrawing it in due course.

[Lord Liddle]

The noble Lord, Lord Forsyth, is clearly saying that he thinks there is a real possibility we are going to crash out of the EU. We have heard that from him on other occasions and from people who agree with him. David Davis wrote to Conservative MPs to say that it was a possibility that we would not pay up the money unless we got a good free trade agreement. The fact is that any deal is better than no deal: no deal would be an absolute disaster for this country. But if there is a serious risk of no deal from Members of the governing party—I am sure the Government do not want that but there is pressure in that quarter—I believe we would be right in this Bill to guarantee the rights of EU citizens living in this country.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord and I understand the point he is making about international standards and international bodies. However, the effect of his amendment is, surely, that the British Parliament would be tied, in future, to decisions made by the European Union and the European court. Why does he not trust this Parliament to set regulations that are appropriate for the standards for our own people?

[Lord Haskel]

I do trust Britain to set its own standards, I just do not want to see them lowered. I am concerned that they will be lowered because of trade negotiations and the give and take that will go on in negotiating withdrawal.

[Lord Forsyth of Drumlean]

On that point, why does the noble Lord not think it possible that we might set higher standards, as for example we have done in respect of paternity rights and other matters?

[Lord Haskel]

I would very much welcome setting higher standards and am sure that all noble Lords would do so. My concern is that we should not lower them, because that is one of the rights we should not be giving away.

--- Later in debate ---

[Lord Hope of Craighead]

I have listened with great care to what the noble and learned Lord has said but I cannot look into the future. I do not know what is going to happen as a result. We just have to look at the present situation. There are two factors to bear in mind. As far as the UK is concerned, for people looking to come here, an immense amount of citizens’ rights are guaranteed already under the regulations which implement directives. We ought not to lose sight of that. Secondly, problems of interpretation because of conflicts between the wording of the directive and our transposition of it, give rise to some doubt. Under the existing position, there is an obligation to refer which will not be present after exit day. This is a different situation with which I believe our courts will be able to cope perfectly well.

[Lord Forsyth of Drumlean]

Before the noble and learned Lord sits down, in summary, was he saying that the amendment of the noble Lord, Lord Foulkes, is completely unnecessary?

[Lord Hope of Craighead]

With great respect, I would not put it in that way. It has given me an opportunity to bring forward an example which I am hoping the Minister will be able to comment on. The noble Lord has raised an important point. We all care about citizens’ rights. I hope I have drawn attention to the context in which one looks at the amendment. It is a well-crafted amendment to which the Minister may have an answer along the lines I have suggested.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

Now the noble Lord, Lord Pannick, has brought to our notice the wide powers tucked away in Schedule 8 and the repealing by secondary legislation of these—

[Lord Forsyth of Drumlean (Con)]

I am grateful to the noble Lord for giving way, but does not he see how absurd the argument is that he is putting when these European regulations are matters over which the House of Commons has no choice but to implement? The whole point of this Bill is that it is restoring it to the primacy of Parliament to decide on these regulations.

[Lord Bilimoria]

The noble Lord, Lord Forsyth has great foresight, because I am about to cover that in my speech.

--- Later in debate ---

[Lord Bilimoria]

I remind the noble Lord that this House, in that Article 50 Bill, had two of the largest votes in the history of the House of Lords; 614 of us voted in one instance and 634 in the other instance. In both instances, we defeated the Government by almost 100 votes. The fact that the House of Commons did not accept that is a different matter—and the point that I am making is that the Government tried to bypass Parliament. There is the worry that statutory instruments bypass Parliament.

Do Henry VIII clauses give Governments the power of royal despots? Well, secondary legislation is used all the time to amend the text of primary legislation in non-despotic ways, as the noble Lord, Lord Faulks, said—they do not have to be. In fact, the biggest Henry VIII section of them all can be found in the European Communities Act 1972—the very piece of legislation that we are repealing.

[Lord Forsyth of Drumlean]

My Lords—

[Lord Bilimoria]

I am coming to the noble Lord, Lord Forsyth—will he please have some patience? Specifically, Section 2(2) of that Act deals with the type of EU legislation and rulings that need to be transposed into UK law. Typically, these involve EU directives where the intended outcome of the law is made clear, but it is up to the individual member states how to implement them. After Brexit, if Brexit happens, the Government want to use a Henry VIII clause in reverse—to adapt EU laws to make them British. For example, disputes that are currently referred to EU regulators or courts will be amended to refer to their British equivalents. The logic of the noble Lord, Lord Forsyth, is that, if you are going to have a swathe of amendments to undo primary legislation that has already been made using secondary legislation, you should make those replacements in the same way. It is not as simple as that; because of the “deficiencies arising from withdrawal”, the references to the EU regulators, the European Court of Justice and other entities will no longer have any sway if there is Brexit. It is not as simple as saying, “Because they are simple things, we just can’t do this”, and the Government saying, “We will just use these Henry VIII powers to tidy up things”. The problem is that it might alter not just technical details but also the substantive effect of the law. These amendments are trying to protect really important issues.

The Supreme Court has also said that it is well established that, unlike statutes, the lawfulness of statutory instruments can be challenged in court. Even if a statutory instrument gives Ministers broad powers, the courts have established that they will apply limitations. The broader the power, the more likely the courts are to intervene to ensure that the intention of the law in question is not being altered or undermined. Does the Minister accept that?

I conclude that the power to amend all EU-derived primary and secondary legislation by the Government without sufficient scrutiny, checks and control, bypassing Parliament, goes against the ultimate supremacy of Parliament itself.

Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017

Lord Forsyth of Drumlean Excerpts

Wednesday 10th January 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, with characteristic vigour, the noble Lord, Lord Foulkes of Cumnock, has laid out the many misgivings that have been expressed about the proposed merger—it is not even a merger but a dismemberment of the British Transport Police, with the Scottish part of it being put into Police Scotland. Many of the arguments were rehearsed when your Lordships’ House debated the devolution of legislative competence for dealing with the policing of railways and railway premises during the passage of the Scotland Act back in 2016.

Before coming back to that, perhaps I may do the unforgivable and talk about what the order and the amendment say. As the noble Lord, Lord Duncan, indicated, the order takes forward the response by the Scottish Parliament to a decision of the Supreme Court on which the noble and learned Lord, Lord Hope of Craighead, sat in the Cadder case. I have a vivid memory of the time, because the Scottish Parliament had to pass emergency legislation immediately to address the breach of the European Convention on Human Rights that had been identified by the Supreme Court. At the time, as Advocate-General for Scotland, I had to take careful note of what was going on in the Scottish Parliament. We had a TV monitor of the parliamentary proceedings in my office because we had to decide very quickly whether we wished to make reference to the Supreme Court if we thought that any Bill had gone beyond the legislative competence of the Scottish Parliament and whether any amendments being passed right up to the last minute would change that. It was open to me under Section 33(3) of the Scotland Act 1998 to indicate to the Presiding Officer that I would not use the four weeks available to consider whether there should be a reference to the Supreme Court and to indicate that I would not refer it. At that point, with concurrence from the Attorney-General and the Lord Advocate, the Bill could go immediately for Royal Assent, and that is what happened.

It was always anticipated that there would have to be further legislation, which came along six years later, but with the benefit of a review undertaken by the then Lord Justice Clerk, now Lord Justice General Carloway. It is the provisions of that 2016 Act—which, I should point out, received Royal Assent two months before the Scotland Act 2016, to put into perspective what we are debating today—that give rise to the order. As the Minister said in his opening remarks, many of the provisions are to increase the rights of suspects held in detention and deal with the powers of police. Because the Scottish Parliament cannot legislate for police outside Scotland in relation to an arrest made in respect of a crime committed in Scotland, or make legislative provision for the British Transport Police—at least, it could not in 2016—the order is necessary to ensure that if the British Transport Police, for example, arrest someone, that person should have the same rights as if they were arrested by a constable of Police Scotland.

That is perfectly proper. These are the provisions of the order that relate to the British Transport Police, along with a further provision relating to stop-and- search powers, which are important and which we do not regret—far from it. I rather suspect that if Her Majesty’s Government reviewed the operation of the provisions in the light of incorporating the British Transport Police into Police Scotland, they might well find that it makes things simpler, because it would not need to be included in the order.

That is why I have misgivings about supporting the amendment, but it is important to reflect on some of the points made by the noble Lord, Lord Foulkes. It is important to say at the outset that the integration of the Scottish part of the British Transport Police into Police Scotland was not a recommendation of the commission under the chairmanship of the noble Lord, Lord Smith of Kelvin. It recommended devolution of legislative competence in relation to the policing of railways and railway premises and that the British Transport Police should become a cross-border authority. It is the SNP’s interpretation that it has to be integrated into Police Scotland. Integration was only one of three options that the British Transport Police working group identified. Significantly, it was the option with the highest degree of risk and was opposed by most stakeholders.

The noble Lord mentioned the recent report of Her Majesty’s Chief Inspector of Constabulary in Scotland. He found in paragraph 47:

“As the decision to transfer BTP’s functions in Scotland to Police Scotland was a Ministerial decision, no single, detailed and authoritative business case which articulates the benefits, disadvantages or costs of the transfer to Police Scotland was developed”.


In many respects, the Scottish Parliament has been asked to do this blind but, as we have heard, there is a majority. There was a failure to consult in any meaningful way, a failure to work out how we maintain the detailed expertise of the British Transport Police on the railways postmerger, how costs would be assigned and how potential disputes would be resolved. That is being done at a time when it is fair to say that considerable challenges face Police Scotland as a result of what I and my party believe was a botched centralisation. Indeed, my Liberal Democrat colleagues in the Scottish Parliament were lonely voices when they made the case against the centralisation of Police Scotland. We have seen a succession of resignations, suspensions of senior officers and early retirements, both in Police Scotland and the Scottish Police Authority. We welcome Susan Deacon’s appointment and hope she can get a grip on things, as she has recently taken the reins. There has been a failed IT project and a report from the Auditor-General in Scotland referring to a number of instances of poor governance and poor use of public money. If that had happened in the second biggest police force in England, let alone the second biggest in the United Kingdom, we would probably have had a “Panorama” special by now. I am not sure why the media have not latched on to what has been going on.

I do not think the time is right at all for this merger. There are other issues which the Chief Inspector of Constabulary has identified in his findings. Among them are the facts that full costs have not been assessed, and the financial impact on railway policy in England and Wales of transfer of railway policing in Scotland has not yet been fully assessed. In that respect, will the Minister tell us, if it transpires that there are costs to transport policing in England and Wales, under the various memorandums of understanding with regard to allocation of costs, where will that cost fall? Will it fall to the Scottish Government to bear? That will undoubtedly be important as things go forward.

The noble Lord, Lord Foulkes, raised the potential issue of transfer of property. Are there any consequential orders or steps that have to be taken under the Railway Policing (Scotland) Act 2017 that would involve the United Kingdom Government in giving full effect to that? What would be the UK Government’s policy in relation to it? As the noble Lord said, there is some leverage here, and I hope it is used sensitively.

It is also fair, however, to acknowledge that this Parliament, including this House, agreed to the devolution of railway policing in Scotland. I was going to say that the ship has sailed but it is probably better to say that the train has left the station. It is a matter for the Scottish Parliament. My Liberal Democrat colleagues in the Scottish Parliament, supported by Labour and Conservative MSPs, sought to delay the merger until 2027 at the very earliest, failing which to oppose it outright—but it was a decision of the Scottish Parliament to reject that delay and, indeed, to support what happened. It would be remiss of this House to gainsay what has been done by the elected Scottish Parliament, but there are issues still to be determined and some indication of the Government’s stance on those would be very welcome.

[Lord Forsyth of Drumlean (Con)]

My Lords, the noble and learned Lord may be correct about the train having left the station, but I remind him that during the passage of the Scotland Act as it now is many of us warned about this problem—and he himself made a speech exactly saying that. But such was the political imperative from some people not to be seen doing anything that would cause an upset with the Scottish nationalists that we allowed this to go ahead. The result is that we are looking at the prospect of the destruction of an organisation that has served this United Kingdom well for more than two centuries. Is it two centuries, or over two centuries?

[Lord Faulkner of Worcester (Lab)]

Since 1826.

[Lord Forsyth of Drumlean]

Since 1826. Okay, so it is almost two centuries—certainly since there were first proper means of crossing the border at speed.

I just find it extraordinary. What can possibly be driving this? What can be the motivation? At a time when we are threatened by lone-wolf terrorists, travelling around the country, when we have seen attacks in Glasgow, Manchester and Birmingham, what on earth could be driving this? Why would someone want to break up an organisation which has a proven track record of success, which has shown great expertise, and which is specialist in its nature? How will the practical problems be resolved? Does the policeman have to get off at the station as soon as the train reaches the border and someone else come on board? What is driving this? I have come to the conclusion that the answer lies in the name—the British Transport Police. This is the sort of ideological battle that we thought we had put behind us in Scotland being translated into something that threatens the security of people in Scotland and the rest of the United Kingdom.

[Lord Maxton (Lab)]

There is no station at the border at all, whatever, in Scotland, between Scotland and England. The first station is Carlisle, which is in England.

[Lord Forsyth of Drumlean]

There is also Berwick. Of course, the noble Lord is right about that, but the people who are responsible for this act of vandalism—because that is what it is—would want to have a station there because they want to have a border there. That is the point that I want to make.

The noble and learned Lord, Lord Wallace of Tankerness, made the kind of speech that we expected from him—a very careful, legalistic speech that points out, quite correctly, that what the noble Lord, Lord Foulkes, is proposing is not really relevant to what we are all talking about. I hope that he will not press the amendment to a vote, because I would find it very difficult to vote against this measure, for the reasons that the noble and learned Lord gave. I would find it difficult to vote in favour of his regret amendment, but I absolutely agree with him in his analysis of what needs to happen and on the levers that are available to Ministers to prevent it happening.

One point that the noble and learned Lord, Lord Wallace, made that I thought was very interesting is about who will bear the costs of this, if it happens. I remind the House of the famous no-detriment principle, under which the costs of having to put this right for the rest of the United Kingdom should be borne by the Scottish Parliament. So not only will the taxpayer lose out in Scotland but also the citizen from the point of view of security.

I make one final point. I do not want to repeat all the arguments put forward at the time of the Scotland Act, as it now is, in 2016. The conduct of the Scottish Government in respect of Scottish policing is extremely worrying for everyone in the United Kingdom. We have a situation whereby a police chief constable has been on leave for some time while accusations were investigated. The Scottish Police Authority on 8 November wrote to the chief constable asking him to come back to work on 10 November, and the Scottish Police Minister, Mr Matheson, overruled the independent authority and told it to withdraw the letter asking the chief constable to come back to work. The independence of the police from political action is a fundamental part of our constitution; so is the rest of the United Kingdom really happy for the British Transport Police to be put in the hands of a Government who show little respect for the independence of police authorities or the constitutional principles involved?

I was very much opposed to creating a single police authority in Scotland for the very reason that it creates a risk of political interference in the operations of the police. That single authority has been created; it has not produced any of the savings that were considered likely to arise, and it has created a huge problem of morale. There have been several examples whereby Police Scotland has fallen below the very high standards that we have been used to in a generation. I say to the Scottish Nationalist Government in Edinburgh, first put your house in order before you wish to destroy an organisation such as the British Transport Police. There is a duty on Ministers to do everything that they can to prevent this happening, albeit that the powers lie. I commend the noble Lord, Lord Foulkes, and agree with him in his objectives, but not—

[Lord Clark of Windermere (Lab)]

In his contribution, the noble Lord mentioned terrorism, which is a critical issue. I speak from the other side of the border—Cumbria—where we of course have the experience of two other police constabularies: the Civil Nuclear Constabulary and the Ministry of Defence Police. These are absolutely critical in the way that we monitor possible terrorism. Have these two forces played any part in the debate in Scotland?

[Lord Forsyth of Drumlean]

I do not know the answer to that question but I am sure my noble friend the Minister will be happy to deal with that when he comes to reply. I know others want to contribute so I ought to sit down, but I hope that, in his response, the Minister can offer some comfort. This matter is about not just Scotland but the security of the whole of the United Kingdom and a Government putting politics before the safety of the people.

[Baroness Ramsay of Cartvale (Lab)]

My Lords, I come in just after the noble Lord, Lord Forsyth, because I agree with a great deal of what he said. Unlike him, however, I was a great advocate for a national police force in Scotland. I have spent a lot of my professional life in the Nordic countries and they all, without exception, have a national police service. I saw no reason why Scotland could not exactly fit the same mould of an excellent national police force.

However, like a lot of other people, I have been underwhelmed by the way that the concept—I still believe in the principle—has been implemented in Scotland, but I do not believe that this is the right place or time to talk about the ills and misfortunes of Police Scotland. What I would say—and I will try to be very brief and not repeat what has been said already—is that it seems absolute folly to think of going for an amalgamation of a very professional, exceptionally efficient force like the British Transport Police, with its special expertise in anti-terrorism, which is of very great relevance right now. To try to amalgamate that with Police Scotland—even if Police Scotland was not in such a dire situation in many directions—would, at the best of times, lead to a situation of uncertainty and change. We really should not inflict this on the country. Apart from efficiencies and principles, there is also the question of the effect on the security of the country, and I really think it should be avoided at all costs.

--- Later in debate ---

[Lord Faulkner of Worcester]

My Lords, in opening the debate, the Minister referred to the degree of opposition to this proposal in this House. He was not wrong in that. He could also have mentioned the degree of opposition in the Scottish Parliament, most particularly among his colleagues in the Conservative Party, who are on record as opposing this proposal most vigorously, particularly Ruth Davidson. He could have included the Liberal Democrats and the Labour opposition in the Scottish Parliament as well. But above all, he should have mentioned the opposition of the British Transport Police and the British Transport Police Authority. When it gave evidence to the Scottish Parliament in March, it said that dealing with fatalities, for example, could take 50% longer under the new plans, and that,

“there is well-defined evidence that a non-specialist force is less able to provide the consistent levels of service that a dedicated policing commitment can offer”.

Decades of experience of dealing with IRA threats would be lost, and the work that the BTP undertakes as the lead authority on scrap metal theft across the whole of Great Britain would also be lost if this proposal went through.

Fortunately, there is an opportunity for the Scottish Parliament to think again about the model of devolution which it is putting forward. Indeed, it would have been helpful if this House had passed the amendment which a number of us tabled almost exactly two years ago, which made it clear that, while we were not opposed to devolution of transport policing in Scotland, that devolution should be on the basis that a force linked to the British Transport Police should be the agency that carries it out. I spoke to the chief constable of the British Transport Police, and he is entirely happy with that. Indeed, in its evidence to the Scottish Parliament the BTP said that it is happy to have a direct relationship with Scottish Ministers and with Holyrood. If it is necessary to change the name of the force in Scotland, for the reasons that the noble Lord, Lord Forsyth, referred to, that is possible—there is no reason why it should not be called “Transport Police Scotland” or “Scotland Transport Police”. Nobody is hung up on the name of the British Transport Police. What matters is that the job is done properly and in the most effective way.

[Lord Forsyth of Drumlean]

The noble Lord says that nobody is hung up on the name of the British Transport Police, but the Scottish National Party is.

[Lord Faulkner of Worcester]

The noble Lord is of course absolutely right.

I will finish by picking up one of the points that the noble Lord made and adding to it. He referred to the no-detriment principle in the Smith commission report. Principle 5 of that report says that the package of powers agreed through the Smith commission process should,

“not cause detriment to the UK as a whole nor to any of its constituent parts”.

It is evident that there is a financial implication. There is also an implication for travellers travelling between England and Scotland, who will suffer a detriment, as a number of speakers in this debate have indicated. Therefore, when the Minister goes back to talk to the Scottish Government, he must take seriously the need for that no-detriment principle to be applied and impress on them that it certainly applies in this case.

--- Later in debate ---

[Lord Duncan of Springbank]

I thank the noble Lord for his intervention. The orders, when they arrive, will be constructed through the collaborative process between the two Governments, which I touched on a moment ago. In any order, they will bring forward proposals that comply with both Scots law and the broader law of England and Wales. We should be able to have that before us.

It is important to stress, as several noble Lords have, that the Smith commission and the legislation by which its conclusions were enacted are important elements of the continuing Scottish devolution process.

[Lord Forsyth of Drumlean]

I apologise to my noble friend but am I being stupid? When he said that there will be further orders in connection with the British Transport Police, is he saying that the Government intend to support the break-up of the British Transport Police?

[Lord Duncan of Springbank]

To be clear, in this instance, the Smith commission and the rules that it contained devolved to the Scottish Parliament the right to take this matter forward. The Scottish Parliament has determined how it shall do so. Today’s discussion is about how it has interpreted the clauses. At present, it is anticipated that we must make sure that the ongoing British Transport Police continues to function. I will come to the points raised in a manner that will, I hope, satisfy noble Lords—

--- Later in debate ---

[Lord Duncan of Springbank]

The noble Lord has again pre-empted what I am about to say. To be very clear, the purpose of the order is to ensure that criminals can be pursued in either direction. It seeks to equalise the ability of the transport police to function in both jurisdictions, and it delivers that.

I come back to the remarks made by the noble and learned Lord, Lord Wallace of Tankerness. The functions of the British Transport Police in Scotland will be a devolved matter. However, in the previous debate, the noble and learned Lord went on to say that that is slightly different from saying that British Transport Police itself will be devolved. It is, therefore, a matter of some interpretation. We have heard a number of points thus far from noble Lords on why that interpretation does not meet the test of good policing within the wider infrastructure of the United Kingdom.

Recent press reports of morale in the Scottish division of the British Transport Police show that up to two-thirds of officers are unsure whether they will transfer to Police Scotland following the merger, and only one-third of officers have declared that they definitely intend to do so. That should give pause for thought and concern. It is also worth stressing that, importantly, British Transport Police has, throughout its history, been a success. Since 2005, it has reduced crime on Scotland’s rail network by 56%, an achievement that compares favourably with an overall reduction of crime in Scotland of 38%. That is no mean feat and certainly worthy of praise. We should recognise that here.

The ultimate test of the merger under discussion is whether it makes the policing of Scotland’s railways better. As a former Member of the European Parliament, I recall how important it was that, before substantive changes were made to legislation, serious impact assessments were undertaken to ensure that the outcome would be delivered by the means chosen. That important element is missing from some of the discussions being put forward. I say that as a member of the travelling public and in recognition of the concerns that have been expressed by a number of the agencies and bodies cited this evening.

Before I conclude, I will touch on some of the substantive points made. I begin with the confusion that may have arisen around what will happen next. We need to put at the fore of our minds that this involves police officers who have delivered for the betterment of our country. The merger is not due to any failing of theirs and at no point should it be recognised as such. Nor is it a failing of British Transport Police in any element of its operation.

Some of the issues raised tonight need to be dealt with in great detail, but I will touch on what the noble Lord, Lord Clark of Windermere, said. He talked about the inclusion of the Civil Nuclear Constabulary and the Ministry of Defence Police. It is important to stress that the Smith commission did not at any point intend to devolve these aspects. Therefore, although they are touched on in the order, at no point will these functions be onward devolved to the Police Scotland operation. That is particularly important.

To make this move work, a joint programme board has been created. That board is particularly focused upon where the points of friction rest and how they can be addressed going forward. I will come back to its role in delivering the outcomes that noble Lords here today would like to see.

The noble Baroness, Lady Liddell, touched upon one of the most fundamental questions—terrorism—and how we can assure there is no diminution in our preparedness, our scope, our ability to operate and our attention to the issues before us. There are pre-existing protocols between Police Scotland and the various agencies and constabularies south of the border. These will continue to deliver against that outcome. It is important, however, that they are tested to make sure that they are fit for purpose in that regard.

This is not only about Scotland—it is important to stress that. The British Transport Police covers the whole of our country, not only one part of it. Further, we have to recognise that the threats to our country are not specific to one nation or region but, rather, in many instances are a threat to us all. We must recognise, therefore, that there will be responsible agencies which will take these matters forward.

Let me touch on where we can make serious progress. To address the challenges of the onward devolution of the policing of the railways in Scotland, the two Governments have established a joint programme board. The board is currently working to achieve an orderly transfer and to provide affected officers and staff with clarity at the earliest opportunity. The board has sought to address the findings of the recent report on devolution conducted by Her Majesty’s Inspectorate of Constabulary in Scotland, which has been cited by a number of noble Lords today. Its principal purpose is to ensure that each of those issues is addressed head on.

Therefore, minded as I am of the remarks of the noble Lord, Lord Foulkes, and other noble Lords, following this debate I will secure a meeting with the UK Government co-chair of the joint programme board. At that meeting I will take the salient points from this debate and put them before it. I will ask the board to produce a report, which I anticipate will form the basis of a formal discussion between the Government of the United Kingdom and the Government of Scotland. Thereafter I will write to the noble Lord with the result of that discussion and place a copy of that in the House. The next meeting takes place on 30 January 2018.

I stress again that there are two further Scotland Act orders pertaining to the British Transport Police. I will report back before these orders are laid.

[Lord Forsyth of Drumlean]

When the British Government’s representative—the Minister responsible for this—attends that board, what will his policy be? Will it be to maintain the British Transport Police or to allow it to be broken up?

[Lord Duncan of Springbank]

The noble Lord, once again, puts his finger on the issue. Our purpose will be to ensure that the answers which come from the board are satisfactory. If they are not satisfactory, then opportunities will be provided for this House and others to move forward in a different way. Oh, I heard someone say, “What does that mean?”, which is a helpful remark. I was trying to be cryptic in one sense. I am basically saying that this is not the end of the story. I hope that we will receive satisfactory answers at the programme board which will allow us the clarity to establish that we are satisfied that policing on our railways is not affected to the point of detriment.

Queen’s Speech

Lord Forsyth of Drumlean Excerpts

Wednesday 28th June 2017 Lords Chamber

Moved on Wednesday 21 June by

[Lord Forsyth of Drumlean]

That an humble Address be presented to Her Majesty as follows:

“Most Gracious Sovereign—We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament”.

[The Minister of State, Department for Exiting the European Union (Baroness Anelay of St Johns) (Con)]

My Lords, it is a privilege to open this debate on Her Majesty’s gracious Speech. It is also a privilege to be addressing the House for the first time since I was appointed as Minister of State at the Department for Exiting the EU. I follow in the footsteps of my noble friend Lord Bridges, to whom I pay tribute for his unstinting work not only in the department but here in this House. I also pay tribute to officials in the FCO and in my new department of DExEU for the support they provide, because a Minister can only be as good as the team behind them. I have certainly been helped by people who could play in the premier division in any country in the world.

Today we are debating a programme of legislation put forward by the Government for the United Kingdom’s exit from the European Union. Before I start, I will put on the record how much I value the diversity of views that noble Lords bring to such debates. Clearly, we shall witness some of that diversity today. It strengthens the whole process of our legislative scrutiny.

It was just over one year ago when the British people voted to leave the EU. At the general election, 11 months after that instruction was received, the two main parties, both of which are committed to leaving the EU, received more than four-fifths of the popular vote. This shows the support among the great majority of British people that we should accept the referendum result and leave the EU. The Government are respecting the instruction of the electorate and delivering in the national interest. I shall listen with interest to the noble Lord, Lord Armstrong, when presents his views, because clearly they do not quite fit, I would say, with ours.

We are now building a future relationship with the EU that works in the national interest. This process is one of the biggest issues facing the Government in a generation. Her Majesty’s gracious Speech has outlined vital legislation to deliver a smooth and orderly exit from the EU, and we are debating that today. This will enable the UK to have more say over how we manage our affairs and forge new trading relationships with European partners and others across the world.

Last week, the Secretary of State for Exiting the European Union started the negotiations on the withdrawal of the UK from the European Union under the Article 50 process. The noble Baroness, Lady Hayter, has tabled an amendment to today’s Motion that focuses on the negotiations. She will see from what I say today that we have much in common on the economy, security, securing tariff-free and barrier-free trade and protecting rights.

Where we diverge from the Labour Party is that we have been clear about the mechanisms through which we want to secure our current markets and open up to new ones. We want a deep and special partnership that should be underpinned by ambitious agreements on free trade and customs, covering goods and services and seeking the greatest possible tariff-free and barrier-free trade. So far the Labour Party has not been quite as clear about whether it wishes to leave the customs union or the single market, which are the basic questions in this debate. I look forward to listening to her shortly.

We have also been clear that we cannot accept a deal that punishes the UK. Any good negotiator knows that you cannot go into a negotiation saying that you will accept any deal at all. There will be a long road ahead, but the destination we are seeking is clear: a new deep and special partnership with the EU, one that enables prosperity for both the UK and the EU while protecting the rights of citizens and giving certainty to businesses as early as possible. That new partnership will of course look, feel and be different from membership of the EU. We understand and respect the EU’s position that the four freedoms of the single market are indivisible.

However, we intend that through our future relationship with Europe our close co-operation on economic and security matters will continue. That is why we are seeking ambitious agreements on free trade and customs covering goods and services, and seeking the greatest possible tariff-free and barrier-free trade. It is why we will continue to work with our European partners to fight terrorism and uphold justice across Europe. Recent terrorist attacks across Europe are attacks against every one of us and have highlighted why we must work together, continuing to co-operate to fight the threat from terrorism and extremist ideology.

The Government have been clear, however, that taking back control of our own affairs includes regaining control of our borders and setting our own immigration policies. We are also clear that to respect the referendum outcome we cannot end up being half in and half out of the EU. So we will be leaving the single market and customs union. I know that is a matter to which the noble Lord, Lord Adonis, will address himself in more detail shortly in presenting his amendment. Clearly we differ on these matters.

Continued membership of the single market would require maintaining all four freedoms of movement—for goods, capital, services and people—so it would mean no control over immigration, and being out of the EU but a member of the single market would mean complying with the EU’s rules and regulations that implement those freedoms but without having a vote on what those rules and regulations were. Remaining in the customs union would restrict our ability to seize on our new freedoms in trade to create jobs and lift living standards. Britain must get out into the world, forge its own path, and be a true beacon for free trade. In leaving the customs union, Britain for the first time in over 40 years will be able to take full advantage of growing markets across the world, including those outside the EU, where the European Commission says that 90% of future growth in world trade will come from.

At the outset of these negotiations, we are prioritising some of the biggest challenges facing us. We are putting citizens first. We want to reach a reciprocal agreement for EU citizens in Britain and UK nationals in Europe as quickly as possible. That is why on Monday we published our policy paper: to outline our fair and serious offer for EU citizens.

Another early priority for the negotiations is our determination to ensure that we protect the common travel area and that nothing is done to jeopardise the peace process in Northern Ireland—a matter on which this House has taken great interest.

These negotiations will be complex and at times difficult, but we have made a positive start and we want to maintain that momentum. However, while we are confident that we will reach the right agreement, we must also be prepared for any outcome. That is why we are also seeking to put in place, as announced in Her Majesty’s gracious Speech, a legislative programme that will provide for continuity of our national systems and legislation as we leave the European Union.

Following the 30 March White Paper, Her Majesty’s gracious Speech confirmed that the Government will introduce a repeal Bill. The Bill aims to maximise certainty for individuals and businesses as we leave the EU. It is in no one’s interest for there to be a cliff edge, so the laws and rules that we have now will, wherever practicable, continue to apply. This gives the maximum possible certainty to individuals and businesses about their legal rights and obligations as we leave the EU, and provides the basis for a smooth and orderly exit.

The Bill, which will be guided through Parliament by my department, has three main aims. First, it will repeal the European Communities Act 1972. It ends the authority of EU law in the UK and transfers the powers to the UK from Brussels. It will convert EU law into domestic law. This maximises certainty, not only for individuals but for businesses and consumers, by ensuring that the rules do not simply disappear or change overnight on exit.

Secondly, it will give Ministers here and in the devolved Administrations the power to amend EU law as appropriate. This will mean that we have a functioning statute book on day one after exit. The Government expect that the return of powers from the EU will lead to a significant increase in decision-making powers for the devolved Administrations. Thirdly, the Bill will support our exit negotiations and future trade deal by ensuring that we have a continued level playing field between us and the EU based on the same rules.

I know that when the Bill comes before this House it will undergo rigorous scrutiny, as it should, but I believe that noble Lords will recognise its essential nature in preparing our statute book for exit. We must be able to deliver a functioning UK statute book by the day we leave the EU. It is vital for all across the United Kingdom that we provide certainty at that time.

The repeal Bill will be complemented by seven further main Bills that will support a smooth and orderly exit from the EU across a range of issues that affect the public, business and government. These will be led by the relevant department as they are presented to Parliament. Some of my colleagues on the Front Bench in this House have already spoken in some detail to these, so I shall simply mention them briefly today, just for completeness and to round out the debate.

A customs Bill will ensure that the UK has a standalone customs regime on exit. As it stands, the EU customs code applies directly in the UK. This Bill will provide flexibility to accommodate future trade agreements with the EU and others and ensure that changes can be made to the UK’s VAT and excise regimes.

A trade Bill will cement the United Kingdom’s status as a leading trading nation, driving positive global change through trade, while ensuring that UK businesses are protected from unfair trading practices. It will put in place the essential legislative framework to allow the UK to operate its own independent trade policy upon exit from the European Union.

An immigration Bill will underpin the new immigration system for EEA nationals. It will allow for the repeal of EU law on immigration—primarily free movement—that will otherwise be saved and converted into UK law by the repeal Bill, and will make the migration of EU nationals and their family members subject to relevant UK law once the UK has left the EU. The Bill will allow the Government to control the number of people coming here from Europe while still allowing us to attract the very brightest and the best, as we have enjoyed in recent years.

A fisheries Bill will enable the UK to exercise responsibility for access to fisheries and management of its waters. The agriculture Bill will ensure that after we leave the EU we have an effective system in place to support UK farmers and protect our natural environment. It will provide stability to farmers and protect our precious natural environment for many generations to come.

The nuclear safeguards Bill will establish a UK nuclear safeguards regime as we leave both the EU and Euratom.

The international sanctions Bill will support our role as a permanent member of the UN Security Council and a leading player on the world stage by establishing a new sovereign UK framework to implement international sanctions on a multilateral or unilateral basis. The Bill will return decision-making powers on non-UN sanctions to the UK and enable the UK’s continued compliance with international law after the UK’s exit from the EU.

Before concluding, I would like to say a few more words about Parliament’s role over the coming period. The Government have engaged extensively with Parliament and will continue to do so throughout the negotiations. We intend the negotiations to be as transparent as possible. On Monday, the Secretary of State for Exiting the European Union gave a clear commitment to update Parliament after each round of formal negotiations. I can confirm today that it is my firm intention to provide similar updates to this House.

There will be times when we need to preserve our negotiating position, as indeed the EU Committee of this House has acknowledged. There should be an appropriate balance between transparency and confidentiality. The Committee noted that,

“certain elements of the forthcoming negotiations, particularly those relating to trade, may have to be conducted confidentially”.

However, we are certainly clear that a transparent and open approach will best provide the certainty that the public, businesses, trade unions and civil society are seeking.

Throughout the process of withdrawal the Government will ensure that Parliament is able to fulfil its proper constitutional role to scrutinise the negotiations and our programme of domestic legislation. At the end of the negotiation process we are clear that both Houses will have vote on the final agreement before it is concluded. We expect and intend that this will happen before the European Parliament debates and votes on the final agreement.

As noble Lords are aware, the parliamentary Session will run for two years, reflecting not just the importance and urgency of getting Brexit right but allowing proper and full democratic scrutiny in both Houses.

Today, I have set out the Government’s approach to delivering on our commitments to the British people. The noble Baroness, Lady Hayter, and noble Lords, Lord Adonis and Lord Armstrong, will shortly set out alternative views that do not accord with the Government’s approach. Some are closer to ours than others. My noble and learned friend Lord Keen will respond to their Motions more directly at the end of this debate when we have clearly listened to what has been said.

We have started negotiations to secure an exit deal in the national interest that works for the whole of the UK. We want to get the details of our exit right and to establish a deep and special future partnership with the EU. We want to underpin all of it through legislation that enables a smooth and orderly exit from the EU. One thing is clear: it is only by doing so that we can deliver what is in the best interests of all the people of this great country—this union of countries. It is for everybody, wherever they are, whoever they are, whatever their background. We must serve in the best interests of each and every one of them.