Brexit: Dispute Resolution and Enforcement (European Union Committee Report)

Lord Hope of Craighead Excerpts

Wednesday 17th October 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a pleasure, as always, to follow the noble Lord, Lord Thomas of Gresford. Like him, I want to pay to tribute to the work of the sub-committee and to its thoughtful and well-researched report. I think it right to say that, when it was preparing its report, the situation it was contemplating was very troublesome; it is certainly no less troublesome now, as the noble Lord, Lord Thomas, pointed out. As the noble Baroness said, the report was published on 3 May. Here we are, some five months later, seemingly no nearer than we were then to finding solutions to the many problems that it raises. If solutions are being found, we are not being told about them. This lack of information is unsettling. It makes one doubt whether anything that will measure up to what we really need is being achieved.

The Prime Minister has made it clear from time to time that she understands very well that we must have a means of resolving disputes if our future relationship with the EU is to work. In her Florence speech in September 2017, she said that to make the principle of co-operation work we will need a strong and appropriate dispute resolution mechanism. Reporting to Parliament a few days later, in October, she said that the Government were preparing a bold, new strategic agreement to provide a comprehensive framework for future security and law enforcement. She referred to the idea of a treaty, which would exist between the UK and the EU. However, whatever was in her mind at that time does not appear to have surfaced in the form that she was describing. She came back to the subject in Munich in February 2018 and again at the Mansion House on 2 March, talking then about the arbitration mechanism that we would need to ensure that disagreements about the purpose or scope of the agreement could be resolved fairly and promptly.

I think we can all agree with these aspirations, but the real question is: how near are we to achieving them? Are they capable of being achieved at all given the red lines set at the outset of these discussions? A framework for EU-UK partnership in civil judicial co-operation was published in June, but I come immediately to the White Paper from July on legislating for the withdrawal agreement to which the noble Baroness referred. It is 38 pages long and contains 157 paragraphs, but of these only one page and only four paragraphs deal with justice, home affairs, security and defence during the implementation period. It is said that the UK and the EU have agreed distinct provisions in the withdrawal agreement, but it does not say anything about what has not yet been agreed. Surely, now that we are so close to Brexit, we need to be told where the discussions are going, where the areas of agreement are and what is yet to be agreed.

It seems inevitable that some aspects of our future relationship in these areas will have to be left over for discussion during the implementation period. But, as paragraph 122 of the report points out, if we do not “bring forward pragmatic proposals” soon,

“it will be too late”.

That is certainly the case in the sphere of judicial and security co-operation. Furthermore, as Judge Ian Forrester, our judge on the General Court of the European Court of Justice, warned us last week, there needs to be a legal framework when you talk about criminal enforcement and criminal investigation. It simply cannot be done on the basis of a cordial, friendly understanding. That is the way the EU works, and it is not alone. That is the way that any agreement between states in this area has to be. To bind them together, they require a legal framework.

The Lord Chancellor said in a Written Statement published last week that the UK values the EU’s tools for judicial co-operation in criminal justice. He highlighted,

“the importance of close operational working between member states to ensure that they function efficiently”.—[Official Report, Commons, 10/10/18; col. 17WS.]

But, unless we do something about this before exit day, these tools will not be available to us. We will fall over the cliff edge. Yet this is the position into which we seem to be drifting, with no solution in sight, and time is running out.

There is much in this report to discuss, but the future of the European arrest warrant really needs to be sorted out now, and I will say a little bit about that. The way it works illustrates Judge Forrester’s point. It was the product of an agreement reached at the Tampere European Council in 1999 that an area of freedom, security and justice should be created in the EU. Extradition between member states was to be abolished and replaced by the mechanism, established by a 2002 Council framework decision, of a system of surrender between judicial authorities. The aim was to remove the complexity and delay that extradition involves. Everything that binds the member states together has to have a treaty base, and the treaty base for the Council decision is to be found in Article 34 of the Treaty on European Union. It says that the Council’s framework decisions shall be binding on member states as to the result to be achieved, but it leaves to the national authorities the choice of form and methods. That is the system to which we are a party in our capacity as a member state.

Our choice of form and method is set out in Part 1 of the Extradition Act 2003. The result, as regards the relationship with other member states, is achieved through the legal framework which the Council decision has set out. I use the word “achieved” because we need to appreciate that to get all the member states to agree to this system was a real achievement, as several of them object to the surrender of their own citizens to other states. This is particularly so in the case of Germany, which has a firm constitutional bar on the extradition of German citizens to a foreign country. Nevertheless, Germany was willing to agree to their surrender to another member state. That system has been working to our great advantage for the past 15 years.

The potential loss of the EAW will be very damaging. It is difficult to see how we can get round constitutional objections to extradition, such as that of Germany, without it. It is one of the most serious security-related issues for Northern Ireland, as the EU Committee pointed out in paragraph 165 of its report Brexit: The Proposed UK-EU Security Treaty, which was issued in July. It has been described as a vital tool for the Police Service of Northern Ireland for the extradition of suspects from the Republic of Ireland—because it gets round the political objections which used to be voiced before the system came into place—and its loss as the “biggest practical vulnerability” in Northern Ireland arising from Brexit. So more time to work out a permanent solution is a high priority, and in the meantime we need to ensure that it or something very similar is available during the transitional period.

There is a very simple solution, if only the Government would accept it. The framework decision of 2002—the document the noble Lord, Lord Thomas, described, with its colourings of green and yellow and no colouring at all—will of course remain in place in the EU. So we should seek to participate in it for all of its purposes in the same way, during the implementation period, as if we were still a member state. You can find the precise formula needed to address this problem in paragraph 1(b) of Article 58 of the draft withdrawal agreement. It provides that the 2002 framework decision shall continue to apply between the UK and the EU,

“where the requested person was arrested before the end of the transition period”.

One could regard this as rather a generous offer, particularly as it binds other member states, including Germany, if we agree to it. But the website shows that this has still not been agreed. I wonder why. The reason, I suspect—and as the noble Lord, Lord Thomas, indicated—is that there is an elephant in the room: the European Court of Justice, which is there to resolve disputes about the meaning of the Council decision and how the result is to be achieved. So it is an essential part of the mechanism. We seem to have determined that, as we can have nothing to do with it, we cannot make use of the framework decision after exit day. But it is a very small elephant. Decisions of the CJEU in this field have been very few, and none has challenged the way we do things under Part 1 of our own Extradition Act. As the system is well settled, disputes of that kind are likely to be very few. It is not really much of an obstacle to the agreement if we are prepared to face up to it.

As the report notes and the response accepts, it has been agreed that:

“During the transition, the UK will continue to be bound by the jurisdiction of the CJEU”.


At the very least, we should be seeking to be a party to the framework decision while that period lasts. That is what we should be aiming at as a matter of urgency, if no other solution can be found in the meantime. It surely is plain that if we are to secure agreement we will have to compromise, and this ought to be within our grasp given the position we are now in concerning the role of the CJEU during the implementation period.

The Prime Minister said on Monday that “real progress” has been made in recent weeks on the withdrawal agreement. I hope that the Minister can give us an assurance that progress is being made on this issue. As for the future, overcoming Germany’s constitutional objection will be far more difficult unless we continue to be part of that system. But if we can find a way past that, I very much hope that the Government will recognise that the continued jurisdiction of the CJEU in this limited area would be a very small price to pay for all the benefits that continued participation in the framework decision will bring. There would be a bump in the arbitrary red line which totally rejects its jurisdiction, but it would be a tiny bump in comparison with the huge risks to national security if we do not take that step.

In closing, I mention one further point, on the opening paragraphs of the Government’s response. What are we to do if disputes about the withdrawal agreement cannot be sorted out by the proposed Joint Committee for its implementation and application? Various possible solutions are examined in chapter 3 of the report, none of which—including the arbitration panel—provides a complete answer to this problem. There is, therefore, more work to be done here. Can we not accept that, if disputes of this kind arise during the implementation period, they should be settled by the CJEU, as the Commission proposes? That would at least give us more time to find a solution for the future. Is that, too, not a sensible compromise?

Brexit: Preparations and Negotiations

Lord Hope of Craighead Excerpts

Monday 23rd July 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I think that the noble Lord has sat down, so perhaps I can move on to something different.

To be frank, I cannot help thinking, in view of what has happened since the White Paper was published and what has been said and what is yet to come, that it has something of the Cheshire Cat about it. As Lewis Carroll reminded us in Alice’s Adventures in Wonderland, one of the cat’s characteristics is that, from time to time, its body disappears and the last thing visible is a mischievous grin. It is not the grin that worries me so much, it is the body. I find it very difficult, from my position on the fringes of what is going on, to be sure how close what we read in the White Paper is to reality—to what our position really will be when the negotiations begin, let alone what can be achieved. That makes constructive comments on the sum parts of the paper, at least at this stage, rather difficult. That being so, I wish to concentrate on a narrow but important issue that I think will not go away so long as we continue to seek a deal along the lines that the paper sets out: dispute resolution and, in particular, our relationship with the European Court of Justice after Brexit.

On 12 July, the noble Lord, Lord Callanan, repeated a Statement about the White Paper, and the noble Lord, Lord Bridges—who I am glad to see in his place—congratulated the Minister and his colleagues on grasping the need for compromise and on their honesty about the challenges we face regarding the role of the ECJ. He referred to a passage in the paper—the same passage, I think, that the noble Lord, Lord Campbell of Pittenweem, had in mind—about the common rule book. It shows that the Government do accept that the European Court will continue to have a role in the interpretation of the laws and regulations of this country. The noble Lord seemed rather reluctant to accept that, but he did on that occasion, and I think he does again today. He said in his reply that the court’s role will be to give a,

“binding interpretation of a common rule”,—[Official Report, 12/7/18; col. 1007.]

if there is dispute about it. Importantly, he went on to say that this remit will have far from the “overreaching impact” on our laws that the ECJ has at the moment. I agree with both the noble Lord, Lord Bridges, and the Minister.

Only the ECJ can determine the meaning of a rule for the purposes of EU law. A rule book cannot be common if our interpretation of it diverges from that which has to be given to it by member states in the EU. They are all bound by treaty to give effect to what the ECJ says it means. Therefore, the role of the ECJ is inescapable and is a valuable part of the system with which the aim is to remain in contact. The Minister was right to recognise that fact. However, he was also right to indicate that the effect of this on taking back control of our own laws—the great aim of the Brexit process—will be very small. It will be so small that, in this very limited area, we are surely right to agree to what is in truth unavoidable if the system contemplated is to work. I echo here the remark of my noble friend Lord Hannay, that when one thinks of the European arrest warrant—a tiny area too—one might well adopt the same approach to our advantage.

At present, the decisions of the ECJ that affect us are many and very wide ranging. They extend to citizenship, employment law, the environment, competition, freedom of movement, immigration, public access to information, intellectual property, justice and home affairs, public health, public procurement, revenue and telecommunications. Almost all of that will end when we leave the EU and take control of retained EU law. The aim of the common rule book, however, will be to harmonise the standards, rights and obligations to be applied by each side of a trading relationship. At present, very few disputes of that kind find their way to the ECJ and from there into our law reports. That may change, but let us have a sense of perspective. The Minister was right: the option to refer would only be in that narrow area where a rule is in issue to which we had agreed to adhere as part of the common rule book. I hope, therefore, that the Government will stand firm on this matter. The White Paper is surely right to say, on page 91, that consistent interpretation is needed to ensure that everyone has confidence in the rules that affect them.

I suggest, however, that the proposed routes by which a lack of agreement as to issues of that kind can be referred to the ECJ are less than satisfactory. At page 93 we are told that this must be either through an independent arbitration panel, including members from both the UK and the EU, or by mutual consent through a Joint Committee. The exact composition of these bodies is unexplained, especially how they are to be chaired and how decisions are to be taken if there is no agreement. However, leaving that aside, it is surely in the courts that disputes about the meaning of rules will be focused and argued through. At page 91 it is accepted that the courts of the UK and the EU could take account of the relevant case law of the other party, which in the case of the EU will presumably include the case law of the ECJ.

So why not give power to the Supreme Court to refer the issue to the ECJ and these other bodies if the court has not been able to resolve the issue in the usual way, through argument, because the meaning of the rule is unclear and a decision is needed from that court to achieve consistency? The reference, after all, would be accompanied by a fully reasoned judgment according to our current practice, in which the arguments for either side would be fully set out and the point that the ECJ has to decide precisely defined. It seems likely that we may be pressed to agree to a change along those lines and I hope that, if we are, we will agree to that.

However, I must add a note of warning on one point. It seems to be thought, according to the White Paper, that it is the practice of the ECJ to take account of the case law of other member states. My understanding is that that is simply not true. I have heard someone say that if it has regard to our decisions it will have to have regard to, let us say, the decisions of Latvia, Romania, Bulgaria and so on. It is not prepared to go down that route and so it does not refer to other decisions. That is the fact and so can it be assumed that it would be willing to do this in our case after Brexit? All the more reason, therefore, for thinking that our Supreme Court is best placed to make the reference by means of a fully reasoned judgment. The fact that we no longer have a right of audience in the ECJ makes this even more important because we can express our views and refer to our own case law in the judgment.

I hope that the same spirit of pragmatism that the noble Lord, Lord Bridges, congratulated and drew attention to will apply in this area too when the issue is debated.

European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I will speak to Amendment 9 in my name. The Bill was substantially amended on Report with regard to the devolution dimension. Among other things, what one might describe as confidence-building measures were put in to ensure that Ministers, having given certain undertakings with regard to how they would exercise their powers to make regulations, would do that and would regularly report to Parliament to ensure that it was being done in good faith.

The reports have to be done on a three-monthly basis: the first report certainly has to be done three months after the date when the Act is passed and:

“Each successive period of three months after the first reporting period is a reporting period”.


That report must explain how,

“principles …agreed between Her Majesty’s Government and any of the appropriate authorities, and … relating to implementing any arrangements which are to replace any relevant powers or retained EU law restrictions, have been taken into account during the reporting period”.

That is fair enough as far as it goes, but it does not give much colour or substance as to what these principles are.

My concern, which I raised on Report, was that there was insufficient detail as to the principles. However, I asked whether the principles referred to were those agreed at the Joint Ministerial Committee,

“back in October or November, which have certainly been discussed before. However, it is slightly odd to have reference to ‘principles’ which, as far as I can see, will not actually appear in the Bill. Because we have debated this often enough, we perhaps know what the principles are, or at least know where they can be found, but to anyone coming to this fresh it would not necessarily indicate where these principles are”.—[Official Report, 2/5/18; col. 2141.]

I asked the Minister if he would confirm that the principles were indeed those agreed in the communique of the Joint Ministerial Committee.

The noble and learned Lord the Advocate-General for Scotland said in his response:

“Noble Lords will recollect that, at the Joint Ministerial Committee in October last year, the principles to be applied were agreed by all those attending: the Welsh Government, the Scottish Government and the United Kingdom Government. I just add in response to a point raised by the noble and learned Lord, Lord Wallace, that where he finds reference in the amendments to ‘principles’, that refers to the principles that were agreed at that stage and are carried over in the agreements”.—[Official Report, 2/5/18; col. 2164.]


I hope we have established common ground that the principles referred to are indeed those agreed and set out in the communique of 16 October 2017 from the Joint Ministerial Committee on European Negotiations. I am very grateful that the Printed Paper Office has made available copies of that communique for noble Lords to read.

I will not read it all out ad longum but it is worth noting that they are principles that relate to where common frameworks need to be established. They have to do so to,

“enable the functioning of the UK internal market, while acknowledging policy divergence … ensure compliance with international obligations … ensure the UK can negotiate, enter into and implement new trade agreements and international treaties … enable the management of common resources … administer and provide access to justice in cases with a cross-border element”,

and

“safeguard the security of the UK”.

It also says that when frameworks are to be established they,

“will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore … be based on established conventions and practices … maintain as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules … lead to a significant increase in decision-making powers for the devolved administrations”.

In addition, and this has occupied many hours of debate in your Lordships’ House as this Bill has gone through:

“Frameworks will ensure recognition of the economic and social linkages between Northern Ireland and Ireland and that Northern Ireland will be the only part of the UK that shares a land frontier with the EU. They will also adhere to the Belfast Agreement”.


These are not insignificant principles. In fact, I think they are very important. If the Bill is going to be complete —people coming to the Bill should not necessarily have to try to work out where these principles are to be found—in the interests of having a tidy statute book these principles should at least be there by reference. I cannot readily see an objection to that, given that there is an understanding what these principles are. They are not to the exclusion of other things that might be agreed by the UK Government and the devolved Governments but at least they are a starting point. I hope the amendment will commend itself to the Government because it is entirely consistent with their policy.

In passing, I refer to the amendment moved by my noble friend Lord Thomas of Gresford and wonder if that were accepted for Wales, it would help find an agreement in Scotland, if it was also applied to Scotland. I suspect it might not go as far as the Scottish Government want because it does not give them the requirement for consent. It says:

“A Minister of the Crown will not normally lay a draft,”


unless such consent had been given. Perhaps the noble and learned Lord will respond to this. Unlike Section 28(8) of the Scotland Act 1998 and the equivalent provision in the Government of Wales Act which says that Parliament will not normally legislate in primary legislation, here we are dealing with Ministers. I assume that if Ministers are laying regulations, they could be subject to judicial review in a way in which a decision of Parliament would not be. That might give further encouragement to the Scottish Parliament that its concerns have been listened to. In responding, the Minister might also just take the opportunity to indicate the Government’s position in relation to the vote of the Scottish Parliament yesterday.

[Lord Hope of Craighead (CB)]

My Lords, to follow what the noble and learned Lord, Lord Wallace of Tankerness, has just said, the Minister may remember that I raised how to deal with the Sewel convention in relation to delegated legislation on several occasions in Committee, in dealing with what is now to be found in Clauses 9 and 11 of the Bill as it is printed for this stage of the proceedings. My recollection is that my points were dealt with by assurances from Ministers that the Sewel convention principles would apply to the making of delegated legislation in the context of both Clauses 9 and 11.

I do not have down an amendment in the same terms as that proposed by the noble Lord, Lord Thomas of Gresford, in relation to Wales because I can assume, I think, that the same principle would apply to the corresponding provision for Scotland earlier in the same clause, and no doubt to Northern Ireland as well. For my part, I would be content if an assurance could be given specifically in relation to the mechanism in this clause that means the Sewel convention would be respected in the way the amendment describes. That would be consistent with the assurances I have had in relation to the earlier provisions and would avoid writing the Sewel convention into the Bill, which I understand Ministers are anxious not to do because, in the case of Miller, it was described as merely a convention—important though it may be. I would be grateful if the Minister, when he comes to reply, would give an assurance in relation to both Wales—which has been sought—and Scotland, and no doubt to Northern Ireland as well, although it is not represented here today.

European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I shall speak in support of Amendment 40, to which I have attached my name, and will also be speaking to my Amendment 41A.

The two amendments are complementary. Amendment 40 addresses some of the objections raised by the Minister in Committee and helps to bridge a gap in the current law and in the law that the Government may wish to see in their future Bill—a Bill that seems to be receding further and further into the future. Amendment 40 helps us to move towards the ideal but Amendment 41A follows up as a backstop to ensure that at least we do not lose what is already there. The Government cannot say that Amendment 40 goes too far and that Amendment 41A does not go far enough. In the absence of their own Goldilocks amendment which sits happily in the middle, we believe that it is incumbent on them to introduce an animal welfare Bill as soon as possible, and definitely before Brexit day.

In Committee, the Minister responded to my amendment by saying that,

“the purpose of this Bill is to provide continuity by addressing any deficiencies in law as we leave the EU. It is not about improving EU laws that the Government think could be better”.—[Official Report, 5/3/18; col. 880.]

I completely agree, and that is entirely the purpose of my amendment. It is specific and limited: it does no more and no less than is required to achieve the continuity of this Bill.

I was surprised in Committee to see that the only Member of this House to speak against the amendment was the Minister. He said that the Government want to bring forward an animal sentience Bill which goes further than Article 13, which is what we are trying to retain. I am very glad that the Government want to do better. I too want them to do better—much, much better—but I am afraid that at the moment they are absolutely failing. They are failing to hear what is being said in this House and they are failing to hear what people outside this House want. People do not want a lessening of animal welfare. That would be totally against any British feeling about animals and how they are handled.

I ask the Minister whether the next steps for the animal sentience Bill have been published. I do not believe that they have. If not, what does the Minister think can be done in place of that Bill? I believe that the only thing that can be done is to agree to this amendment.

[Lord Hope of Craighead (CB)]

My Lords, I am very much in favour of the idea that lies behind the amendment of the noble Lord, Lord Trees, and Amendment 41A, which the noble Baroness has just addressed us to. However, I have a technical problem with the amendment. In making this point, I wish to make it absolutely clear that I am not in any way criticising subsection (1) of the proposed new clause in Amendment 40 or the idea that lies behind it. My point is directed at proposed new subsections (4), (5) and (6), which, as I think the noble Lord hinted at, are designed to exclude judicial review as a means of holding Ministers to account. As the amendment is worded, it is for the Parliament,

“exclusively in the exercise of absolute discretion, to hold”,

Ministers to account. I think that the word “exclusively” is there to make it clear that there is to be no other remedy except to raise the matter before Parliament.

I recall arguments about 15 or 20 years ago when there was a real risk that the Government of the day would put provisions into Bills excluding the possibility of judicial review. There were occasions when the judges made their position clear and they were very unpopular as a result. There was a real risk of the Government taking that measure, and I think that that risk was diminished through various representations made through the Lord Chancellor and others. Eventually it was established as a convention that the Government would not seek to exclude judicial review. They might limit it in some respects, as they have done, by the length of time that can elapse before a petition is brought, and there have been other ways in which the opportunity for judicial review has been narrowed, but they have never excluded judicial review, because it is one of the essential protections of individuals against the state.

We are talking here not about people but about animals, and I can quite see that there is room for some difference, but I respectfully suggest that it would set an unfortunate precedent for us to pass a measure that excluded judicial review. If that were to be picked up later by a Government in areas where individual rights were involved, I think that we would greatly regret it.

I am sorry to raise that technical objection. I wish that we were not on Report but in Committee, where this matter could be sorted out. However, I feel it necessary to make that point clear at this stage.

[Lord Wigley (PC)]

My Lords, I intervene briefly in support of the amendment moved by the noble Lord on the question of animal sentience. I should declare an interest. I am an honorary associate of the BVA and I want to underline the representations that it has made—I think that a number of noble Lords will have received them at various times. It feels very strongly that steps need to be taken prior to Brexit to include provisions for animal sentience in UK law. When representations of this sort come from such a respected body as the BVA, I think that we are duty-bound to take good notice of it, and I hope that noble Lords on all sides of the House will act accordingly tonight.

European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make one or two observations, having raised this matter at Second Reading. I am very grateful to the Minister for his amendment, which certainly brings about clarity and certainty. But, having discussed the matter with others, I want to make sure that the certainty and consequences are clearly understood.

The draftsmanship is elegant, because although under subsection (2) a court may have regard to decisions made by the European Court of Justice after exit so far as they are relevant to any matter before the court, making that provision subject to subsections (3) to (6) means that a court could do so only to clarify the meaning or effect of retained EU law as at the date of exit. It therefore has the effect of confirming what I describe as the ossification of retained EU law as at the date of exit. Only the Supreme Court is permitted to depart from any retained EU case law under the test set out in subsection (5).

Although certainty is therefore brought about, it is at the price of ossification, other than by appeal to the Supreme Court. Ossification is a principle alien to the common law, which, while it has always sought certainty, has also always allowed a significant degree of flexibility to enable the law to develop and adapt to changing times. The principles of common law development are thus denied in the application of retained EU law to any court other than the Supreme Court.

A further feature of the clause is that the Supreme Court is given no guidance as to how it may exercise its right to depart from decisions of the European Court of Justice, save by reference to the 1966 practice statement and the subsequent case law. I think it right therefore to remind the House that it is giving the Supreme Court a very considerable degree of untrammelled power, subject, of course, to the right to reverse any such decision. I am very grateful to the Minister for the assurance he has given that if, in the exercise of that power, decisions are made they will be fully defended, but it is a considerable power.

I will make two further observations. First, a consequence of confining the power to depart from European Court decisions to the Supreme Court may well mean a significant increase in the case load of the Supreme Court. As we know, it has much else to do. I therefore ask the Minister if he would reconsider amending subsection (5) to permit the Courts of Appeal of England and Wales and of Northern Ireland, and the Inner House in Scotland, to be given a similar power. Not only would that alleviate the burden on the Supreme Court, but the experience of many sitting in the Supreme Court has shown that it is generally greatly assisted if it has a prior judgment of the Court of Appeal or Inner House on the question before it.

The final observation I will make echoes what the Minister said. As was often said in Committee, the Bill seeks to provide for a functioning statute book on exit in the event that there is no agreement with the EU. It has also been said there will have to be significant amendment by at least one further Bill in the event of agreement. If, for example, it is agreed that certain fields of our law or regulation must remain aligned for the purposes of non-tariff barriers, it will be necessary to ensure that the courts can take this into account in interpreting retained EU law and therefore have regard to subsequent European Court decisions to ensure that the law or regulations remain completely aligned. It is therefore, I regret to say, a matter that, in the event of an agreement, we shall have to return to at a subsequent stage. Again, I emphasise my thanks to the Minister for the discussions he has had and the certainty and clarity he has brought about.

[Lord Hope of Craighead (CB)]

My Lords, we have the luxury of having three different formulations for a possible amendment to Clause 6(2) thanks to the ingenuity of the noble Lords, Lord Pannick and Lord Faulks, and the Minister. For my part, I prefer the Minister’s version, which seems to be, in a subtle way, a little more generous than the formulation of the noble Lord, Lord Pannick, which is:

“A court … may have regard to anything done … after exit day … where it considers it relevant to the proper interpretation of retained EU law”.


The government amendment says,

“relevant to any matter before the court or tribunal”.

I suspect that most of these issues will be issues of interpretation, but it is perhaps wiser to have the broader formulation just in case the formula in the amendment from the noble Lord, Lord Pannick, is too tight to include something else.

As for “relevant and helpful” from the noble Lord, Lord Faulks, one can regard something as relevant and unhelpful as well as helpful. Therefore, I am not sure that it really adds very much. Obviously, a court would not do anything with it if it is unhelpful. I suspect that those words are surplus to what one is really talking about.

I have two other points. So far as Amendment 23 is concerned, the additional words:

“Subject to this and subsections (3) to (6)”,


are necessary because of the change from the prohibition in the original formula—that is,

“need not have regard to”—

to the new formula, “may”. When you use “may” it is as well to have the cautionary words just to make it clear. There is another view: that the amendment is unnecessary because the court will, of course, look at the entire section in understanding what it is supposed to do, but it does no harm to put those words in. In the interests of clarification, it is helpful to have them there.

Finally, I add a word of support to the point the noble and learned Lord, Lord Thomas, made about allowing the Court of Appeal and the Inner House, as well as the Supreme Court, to consider themselves not bound by retained EU case law. One has to bear in mind that the only way these issues will reach the Supreme Court under the formula in the Bill is by means of an appeal. It is not suggested that there would be a direct reference to the court. I am sure the court would not want that, because it would wish to have the issues properly focused by proceedings in the lower court.

I may be corrected if I am wrong, but I suppose that use can be made of the “leapfrog” procedure: if something comes up at first instance, it is possible to leap over the Court of Appeal direct to the Supreme Court. That may be a useful avenue in urgent cases. Usually, the Supreme Court is helped by the decision of the lower court. If the argument is focused at the lower court, it may not agree with it but it will at least have flushed out points that need not trouble the Supreme Court when dealing with the issue at the later stage. There is therefore something to be said for allowing the appeal courts to take up the same position as the Supreme Court in this field.

I simply endorse what the noble and learned Lord, Lord Thomas, said as something that the Government might like to consider. I do not know whether they are considering discussing the matter with the President of the Supreme Court to get her view, but there might be something to be said for that as well.

European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

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

Moved by

[Lord Hope of Craighead]

314: After Clause 11, insert the following new Clause—
“UK-wide frameworks
(1) A Minister of the Crown must lay before each House of Parliament proposals for replacing European frameworks with UK ones.(2) UK frameworks may be proposed only if they are necessary to—(a) enable the functioning of the UK internal market,(b) ensure compliance with international obligations,(c) ensure that the UK can negotiate, enter into and implement new trade agreements and international treaties,(d) enable the management of common resources,(e) administer and provide access to justice in cases with a cross-border element, or(f) safeguard the security of the UK.(3) Ministers of the Crown may create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations.”

[Lord Hope of Craighead (CB)]

My Lords, although we have left Clause 11, this amendment is closely related to the topics we discussed in the two previous groups. It seeks, first, to require a Minister of the Crown to lay before each House of Parliament proposals for replacing the European frameworks with UK frameworks, and it lists the particular items which are thought to be the subject matter of the frameworks that are needed. More importantly, proposed subsection (3) in the amendment seeks to provide that:

“Ministers of the Crown may create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations”.


So the issue of consent, perhaps more narrowly focused than in the previous discussion, is raised by this amendment as well.

The amendment was drafted some considerable time ago, when what was on offer in Clause 11 referred to the creation of these measures by Order in Council and made no mention of either consent or consultation. What we had before us, until it was withdrawn, was an amendment which reformed the machinery that Clause 11 is to provide by referring to the need to lay a draft of a statutory instrument containing the regulations under the section after consultation with the Scottish and Welsh Ministers. That is certainly a step forward, but what is sought by the amendment is one step further, which is the need for consultation.

In the discussion on Amendment 305, moved by the noble Lord, Lord Tyler, the noble and learned Lord, Lord Mackay of Clashfern, made the point that the safest way to deal with UK-wide frameworks is by primary legislation. I find it quite hard to understand how a UK-wide framework can be created by using the Section 30 power in the Scotland Act or the Section 109 power in the Government of Wales Act. Those are powers that are designed for dealing with the devolved Administrations separately, whereas the UK-wide framework of course involves the entirety of the United Kingdom, and I entirely agree with the noble and learned Lord that primary legislation would seem to be the proper way to go about it. Of course, if we are presented with primary legislation, the Sewel convention will apply and my point about consent will be satisfied simply by the machinery that has been used to create these frameworks.

We are of course dealing with something that is work in progress and we do not know quite what further discussions are going on in darkened rooms up and down the country where these matters are being debated. However, if by any chance the decision is that that has to be done by statutory instrument—I take it that this is not by Section 30 powers or Section 109 powers but by a UK statutory instrument—then the issue of consent is again raised, because the Sewel convention does not apply. I would like an assurance from the Minister that the principle behind Sewel will apply whichever mechanism is created. Of course, as I said a moment ago, the primary legislation will bring Sewel with it, but it would seem very odd if, by resorting to delegated legislation, the Government can bypass the Sewel convention. I do not believe that that is really what the Government want to do. I hope they will be prepared to say that they will be looking for consent as the mechanism which would precede the framing of any delegated legislation if it is decided to go down that road. But I stress that I agree entirely with the noble and learned Lord, Lord Mackay of Clashfern, that the proper way to create a UK-wide framework, which is what my amendment is talking about, is by primary legislation, in which case the issue of consent does not arise. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am a cosignatory to Amendment 314 and I associate myself with the eloquent comments made by the noble and learned Lord, Lord Hope, in moving it, and, in turn, the comments made by the noble and learned Lord, Lord Mackay. In the debate at the conclusion of business last Wednesday, a number of us put this specific point to the Minister, the noble and learned Lord, Lord Keen, which could have ended the concern that certainly I still have that we should proceed, for the reasons given, by primary legislation and that it would be inappropriate to proceed by delegated legislation.

I would also like to raise the timing of the framework agreements. In summing up the debate on Wednesday, the noble and learned Lord, Lord Keen, said:

“It is the table that identifies 24 areas where it is considered there will have to be some temporary ring-fencing so that we can establish the next stage of the process for the single market—the framework agreements that will then form the basis for that single market”.—[Official Report, 21/3/18; col. 403.]


It has been very firmly expressed by the Law Society of Scotland and others that there should be a timeframe for how long this arrangement will last. I pray in aid farm policy, which I understand is one of the 24 areas that have yet to be agreed, and point out that 85% of Scottish land currently has “less favoured area” status and attracts specific European grants accordingly. I also understand that Wales receives 10% of the farm funds. There is a concern that once we come back to having only a UK single market, both Scotland and Wales will receive less in farm support. My understanding is that Scotland would like to see a framework created and the powers devolved immediately, whereas the Government wish to take control to create the framework and then devolve it subsequently. So there are very real issues in specific policy areas over the timing and content of these framework agreements.

That brings me to this question of consent that keeps coming up. The noble and learned Lord, Lord Keen, said:

“Can we just remove that dichotomy of consultation or consent?”.—[Official Report, 21/3/18; col. 404.]


The problem we face is that the devolved Administrations clearly feel that currently they have consent at three levels. One is through the Sewel convention. The second is that when EU policy is agreed at the level of the Council of Ministers normally it is the Farming Minister who attends, accompanied by the Ministers of the devolved Administrations. The third level is when the devolved Administrations, in their own devolved legislation, implement the directives in the form they think most suitable.

We are very grateful to the noble and learned Lord, Lord Mackay, for setting this out so clearly. It appears so straightforward that our starting point is that in future the UK Parliament legislates for all matters relating to the single market of the United Kingdom. As the noble and learned Lord, Lord Mackay, said on Wednesday, it would be best for this to be implemented by agreement wherever possible. We seem to be edging towards that. In response to the earlier debate, the noble Baroness responded that there is not yet agreement but we are getting close to one.

When we take our oath and are introduced here, we swear allegiance and we are told that we have a voice. My concern regarding this amendment and Amendment 318, which was debated earlier, is that the voice of the devolved legislatures will simply not be heard in that interim between the framework agreements being agreed and subsequently devolved. That is why I support this little amendment and would like to hear more about why we could not proceed along the lines that the noble and learned Lord, Lord Hope, has set out in Amendment 314.

--- Later in debate ---

[Lord Duncan of Springbank]

Yes, that is the intention. We will move forward with this through primary legislation in each of the common framework areas. On that basis, I hope that the noble and learned Lord, Lord Hope, will feel able to withdraw his amendment.

[Lord Hope of Craighead]

My Lords, I am extremely grateful to all noble Lords who have contributed to the debate and to the Minister for his few words in his response. Of course, legislation may contain enabling powers but we do not know yet what the legislation he is promising will look like. If it is simply a Bill with a lot of Henry VIII powers in the area concerned, it will not advance the argument at all.

I am grateful to the noble and learned Lord, Lord Mackay of Clashfern, for enlarging on the points he made last week. I am glad that my amendment has given him the opportunity to emphasise again the points he has made and his valuable contribution to our debate. He said that if his approach is correct then my amendment ceases to have any purpose. Of course, he is right, because my amendment does not look at primary legislation; it looks at the procedure that would be followed if the mechanism to be used is to be by delegated legislation, in which case we are talking about the consent not of the legislatures but of the Administrations—that is, of Ministers. At the moment, we have in the amendment that was before us last week—the amended form of Clause 11—a promise of consultation. Many noble Lords who have spoken in support of my amendment have emphasised the importance of consent, which is the crucial matter. As the noble Lord, Lord Liddle, said after his careful analysis of what we are really talking about: consent is fundamental. That is the background to what I am submitting.

There are one or two scattered points which I might mention. On the contribution of the noble Lord, Lord Kerr of Kinlochard, the noble and learned Lord, Lord Wallace of Tankerness, was absolutely right. Proposed subsection (2) of my amendment is based on an agreement reached in October last year at the Joint Ministerial Committee on EU Negotiations. The wording is exactly as it was framed in the agreements, and that is the point from which we are moving forward. One could debate the language, but I think that the time for doing so has passed.

I thought that the contribution of the noble Lord, Lord Wigley, about the attitude of the sheep farmers was very helpful, and we have heard similar remarks about the position as regards fishing. I do not think that the position of the hill farmer in Scotland is very different from that which was described by the noble Lord. However, there could well be differences in the way that sheep are managed in England and the way that they are bred and moved south in Scotland and east in Wales—they are moved across the United Kingdom before being exported somewhere else. I can see, therefore, that there could be detailed disputes about what the Welsh, Scots and English would want in framing a UK-wide market for the handling of sheep stock. To attempt to create uniformity in areas as sensitive as this may be a mistake, and it may be that that is where the sticking points are in the discussions. I hope very much that one can get to the point where these matters can be agreed without resorting to dispute resolution.

As the noble Lord, Lord Wigley, also pointed out, in a few years’ time, when we move beyond the Clause 11 procedure and the time limit has disappeared, we do not want to have to start these arguments all over again. We want to resolve this at the beginning in the creation of the market.

It is difficult to take the point further because we do not really know the detail of the disagreements before us. However, I suggest to the Minister that it would be a great help if, before Report, a letter could be passed to those who have taken part in the debate explaining the procedure that the Government intend to use in the creation of these frameworks. I would be very pleased if they were to adopt what the noble and learned Lord, Lord Mackay, has suggested, and it would be very helpful to know that that is what they propose before we start looking at this again on Report. If they do not propose to do that, we need to know what the alternative is and how consent is to be built into it. In the light of the very helpful response from the Minister, and of what I have said so far, I will leave the matter there for the time being. I beg leave to withdraw the amendment.

Amendment 314 withdrawn.

European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

Committee: 7th sitting (Hansard - continued): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Sharkey]

My Lords, I declare an interest as chair of the Hansard Society, whose work on delegated legislation will be known to many noble Lords. I will be brief in dealing with what is essentially a simple procedural proposal.

The issue is delegated legislation. This has already been the focus of a lot of debate, much of which has consisted of expressions of anxiety about the likely number of instruments; about the range of the powers that they confer; about timing; and about Parliament’s ability to conduct proper scrutiny. There are varying estimates of the number of SIs that the Bill will produce. The noble Lord, Lord Callanan, said in his letter of 20 February that it will be between 800 and 1,000. Our own EU Justice Sub-Committee thinks it may be 5,000, as the noble Earl, Lord Kinnoull, noted on Monday. What is clear is that the number will be very large. The noble Lord, Lord Callanan, estimates that 20% to 30% of those SIs will trigger the affirmative procedure. That estimate is no doubt based on the rules for categorisation set out in the Bill, and will certainly prove to be an underestimate once the sifting committees get to work.

As has been noted, the SIs will give the Government an extraordinary and quite unprecedented range of powers. They will enable the creation of criminal offences without primary legislation, as the noble and learned Lord, Lord Judge, has explained to us; they will allow law-making by tertiary legislation; and they will allow Ministers and, apparently, 109 others largely unfettered discretion to range across the statute book. All this presents a formidable challenge to Parliament when it comes to effective scrutiny. The Government seem to recognise—a bit—that the situation is unprecedented and requires special care. They have written some constraints into the SI-generating clauses, but not enough and not wide enough. These constraints do not, in any case, address the problem of sufficient and effective scrutiny.

We will come to proposals for dealing with the scrutiny problem when we reach the group beginning with Amendment 237 on Monday. These amendments will enable the House to debate how it might adapt our current SI scrutiny system so that we may deal effectively with the avalanche of SIs coming our way. There are at least three schemes for us to consider. But whatever system of scrutiny the House finally settles on, it should apply to all SIs generated by this Bill. The same system, whatever it turns out to be, should also apply to all other SIs, whatever their parent Act, if they are to be used for the purposes of maintaining a coherent and functioning statute book on withdrawal from the EU. It would be quite wrong, for example, to have a rigorous system of scrutiny of SIs generated by this Bill and a less rigorous system for SIs used for withdrawal purposes generated by existing Acts.

This is not a theoretical concern. We know that the Government intend to use SIs generated by existing Acts when they consider that to be appropriate, or perhaps even necessary. The Solicitor-General made it clear in his speech on day 2 of Committee in the House of Commons that that is what the Government would do. In response to that, Amendment 200 sets out to create a common minimum standard of scrutiny. It simply requires that, no matter their provenance, all SIs with the same withdrawal purposes should be subject to the scrutiny procedures we finally agree on SIs generated by this Bill. It does this by making the appropriate amendment to the Statutory Instruments Act 1946, and by specifying in language taken directly from this Bill what “withdrawal purposes” means.

In a brief conversation about this amendment with the noble Lord, Lord Callanan, and his officials, they reminded me that this amendment could not bind future Acts. That had occurred to us. Any future Act could, of course, write its own rules for withdrawal SI scrutiny, or indeed for anything else. But, if that happened, the Government would have to explain to Parliament why one type of scrutiny was appropriate for SIs generated by the withdrawal Bill, with another for SIs with the same purpose generated by subsequent Bills. We should have one minimum standard of scrutiny for any withdrawal-purposed SI, and this amendment is aimed at doing exactly that. Whatever scrutiny standards we eventually adopt for SIs arising out of this Bill, they should be the minimum standard applying across all similarly purposed SIs, wherever they come from, and whatever their parent Act. I beg to move.

[Lord Hope of Craighead (CB)]

There is a good deal to be said for the amendment moved by the noble Lord, Lord Sharkey, when one bears in mind the power given in each of Clauses 7, 8 and 9 to make any provision that could be made by an Act of Parliament under regulations made under these clauses. Of course, one can look back to an existing Act, which could be amended by the exercise of this power, for a purpose related to the Brexit arrangements. If one takes an existing Act—one can visualise all sorts of situations when that might arise—it would seem right that the same procedure should apply if the amendment is made for the purposes which one sees in Clauses 7, 8 and 9.

For future Acts I can see there is a problem, because one cannot control a future Parliament, but as far as the past is concerned I respectfully suggest that there is a lot to be said for the amendment.

[Lord Beith (LD)]

My Lords, I am sorry I missed the beginning of the speech of my noble friend Lord Sharkey as a result of unaccustomed speed breaking out on the Bill’s proceedings while I was having a cup of tea. Whether this will be repeated, I do not know.

I had discussions before with my noble friend to properly understand his amendment and its main aim, which is to embrace, within scrutiny procedures used for withdrawal Bill statutory instruments, all those statutory instruments for the same purpose that derive from other previous statutes. That is an interesting idea. When it comes to referring back to the Statutory Instruments Act 1946, it is worth recalling that the Act was surrounded by generous commitments, promises that prayers against negative instruments would always have time for debate on the Floor of the House and all sorts of undertakings that were completely unfulfilled in practice.

Whether the amendment can be made to work in precisely this form I am not quite sure, but I think that the purpose of ensuring that nothing is slipped through by anything less than at least the procedure of triage and scrutiny that we seek for statutory instruments under this Bill—if it becomes an Act—is extended to anything that does the same thing. We certainly would not want to create a perverse incentive for a Government to use the wrong legislation, or a different piece of legislation, for the statutory instrument simply because they could evade a form of scrutiny by doing so.

--- Later in debate ---

[Baroness Humphreys]

I do not think so, because this new group has just been formed in the last couple of months or perhaps a little longer.

This group bypasses traditional media outlets because they know that these are increasingly irrelevant to young people, who only access the news items that interest them via social media. Their media posting today uses cartoons to combine a serious message with humour and it is aimed at the Labour leader this time. Entitled “Dear Jeremy Corbyn”, it reminds him that “the young people have supported you, they need you to support them”. This non-politically aligned group has realised that the co-operation of all people who hold the same opinions as they do is essential.

As ever, matters to do with the European Union come down to the personal and emotional. For the last 25 years, I and my compatriots have been proud to call ourselves Welsh, British and European. Our EU citizenship has given us the right to travel unhindered throughout Europe and has seen us accepted in every European country we visited. In Europe, we are citizens of everywhere, and we resent the fact that this right is being taken away from us and that future generations will not have the benefits of EU citizenship that we have enjoyed.

[Lord Hope of Craighead]

My Lords, the noble Lord should be rather careful about drawing comparisons between the EU as a place to travel and to work in, and Australia and Canada. My son studied in Canada, where there is a strict visa system for students: you have to leave as soon as you have finished your course, and he had to be very careful to get himself out of the country before his permission ran out. You need a visa even to visit Australia, and I suspect that it also has rules for visas if you have to work there. Of course people go there, and that visa system is comparatively relaxed, but it is not the same as the freedom we have in the EU.

[Lord Adonis]

My Lords, if I may take over from where the noble and learned Lord, Lord Hope, left off, of course even the access we have to Australia is hugely facilitated by the fact that it is a former colony which has the same language and so many practices which are familiar to Brits, and is therefore a comparatively easy and familiar place to travel. It does not at all make the argument that somehow divorcing ourselves from the continent will enlarge opportunities for young people. However, I am a natural optimist—indeed, one could hardly be otherwise in the hours we are all investing in seeking to improve the Bill. Some good things are coming out of the Brexit process; actually, the whole thing might stop as a result of them.

The noble Baroness is completely right that one thing that is happening is the massive engagement by young people in politics and the political process. That did not take place before. We had all bought into the idea that the young were not voting or taking an interest in the future, and that politics was decided by the elderly. We had the triple lock on pensions at the same time as we were trebling tuition fees. Those two policies, more than anything else, symbolise the political centre of gravity in the last 10 years—students were expected to pay more and more of the burden of university education while the retired got a better and better deal. That is all changing now. The young are voting and are engaged as never before. They voted in the last general election in numbers which we have not seen for a generation. It is very clear to me that if we move, as I think is increasingly likely, towards a referendum on the Prime Minister’s Brexit deal, then either in that referendum or whenever a general election comes we will see very high levels of engagement by the young. I think it is now very likely that that will include votes for 16 and 17 year-olds—there is probably a majority in the House of Commons for that now. I know that the noble Lord, Lord Robathan, who is a natural conservative, will be fiercely opposed to that.

--- Later in debate ---

[Lord Judd]

My Lords, I would like to thank the noble Baroness, Lady Stroud, for that speech—not just for the speech but because it was the voice of compassionate, socially engaged conservatism, which I have always respected. May that tradition in the Conservative Party reassert itself. It is desperately needed at this juncture in our history. What the noble and learned Baroness, Lady Butler-Sloss, said about the legal situation was also a powerful argument, which the Government must answer. Are we going to strip what have been legal rights away?

In the context of this Bill, we debate from time to time what sort of Britain we want to be, and the noble Baroness, Lady Stroud, was absolutely right. I share completely her view about the sort of Britain we should be. I want us to be a Britain in which the world sees “Compassion” in capital letters in all our approach to public affairs. We seem to have lost that and I want to see it reasserted. I thank my noble friend Lord Dubs for having moved this amendment. His consistent and tireless work on this issue challenges us all. If we talk about family and its importance in society, this is an issue which we can no longer prevaricate about.

[Lord Hope of Craighead]

My Lords, I believe that the noble Baroness, Lady Stroud, was absolutely right to say that respect for family life lies at the heart of this matter. That in particular was the basis for the regulation we are looking at, Dublin III, and this provision, which is talking about those unaccompanied adults and children from outside who wish to join a family member who is already here in order to make the application. It is about respect for family life as well as seeking to give the benefit of the asylum application under the convention, to which we are, after all, already parties. So without elaborating and with great respect to what has been said by everyone who has spoken so far, I too support the amendment.

[Lord Tunnicliffe]

My Lords, it is a great shame that there is not more of a consensus between the two—or three—parties on the issue of refugees. We have debated it much over the years. Recently, we have got to what I would loosely call an uneasy peace, which is essentially based on my noble friend Lord Dubs’s Section 67 and Dublin III. That has produced modest numbers, but there are very real numbers of people meeting very real problems.

The noble and learned Baroness, Lady Butler-Sloss, put her finger on it. The rights individuals have as a result of Dublin III must be maintained. I hope the Minister will be able to assure us that the Government will either accept these amendments or make a very firm commitment to assure us that, one way or another, the effect of Dublin III will be maintained after Brexit.

European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Mackay of Clashfern]

I can see that. On the other hand, it is sometimes wise to be prepared if you can foresee a thing that is required and have it ready. We also have the scope to discuss it in this Bill, whereas I imagine the discussions on the withdrawal agreement Bill will be pretty complicated—I assume the latter will be a good deal more complicated than this Bill, and if it is going to require the sort of consideration that this Bill has had it will take some time. There is something to be said for trying to prepare, but of course it is necessary to ensure that the preparations are adequate—that is what the amendment of the noble Lord, Lord Lisvane, deals with.

I am conscious that we may be trying to regulate the House of Commons a bit. I have never had the honour of being a Member of the House of Commons, as so many of your Lordships have, but my impression is that the House of Commons has plenty of powers to control what the Government do. Of course, if necessary, it has a very extreme power in that connection.

[Lord Hope of Craighead (CB)]

My Lords, I mentioned on Monday that an aspect of Clause 9(2) is of concern to the devolved Administrations. How does the Sewel convention fit into the scheme which Clause 9(2) sets out? If one were making the amendments which are being contemplated by an Act of Parliament it would be plain that the Sewel convention, with its effects, would apply to that statute—and the Government have always shown their willingness to follow the convention according to its terms. But if a Minister makes a provision by delegated legislation then, as I understand it, the Sewel convention does not apply, because Sewel was talking about primary legislation. Is the Minister prepared to undertake that the principle of the Sewel convention will apply to an order made with reference to Clause 9(2), which makes a provision that would otherwise be made by an Act of Parliament?

The importance of this question has been highlighted, if I may say so, by the point made by the noble and learned Lord, Lord Mackay of Clashfern, because by necessity this would have to deal with legislation which affects the devolved Administrations in areas devolved to them. The ordinary rule is that that would not be done without their consent. Clarification is needed. The Minister may feel that she cannot give me a clear answer today. If she cannot give the undertaking that I am looking for, I would be very grateful if she would write, because this affects the way I would view any vote on this issue. It may also affect what we talk about on Report.

This is a very important matter. The issue has really been thrown up by the way in which the clause has been drafted—and it has no doubt been drafted in this way for good reasons, as the noble and learned Lord, Lord Mackay of Clashfern, has explained. If one is to have this clause, clarification is required.

[Lord Bilimoria]

My Lords, I support both these amendments. I appreciate what the noble and learned Lord, Lord Mackay, with all his experience, has said to us to try to explain why these particular clauses exist and the intention behind them. But from my experience in business, whenever I have had any problems with a contract it is because there have been grey areas or clauses have not been clearly drafted, leaving scope for different interpretations. Here we are beyond grey areas or a badly drafted clause in a contract—this Bill gives unfettered powers to the Government. We have to realise that the Prime Minister using these powers may not be Theresa May—it could be Boris Johnson or Jacob Rees-Mogg.

How many thousands of statutory instruments are the Government expecting to implement as a result of this Bill? It is important to note that it is very difficult for the House of Lords to challenge statutory instruments. With primary legislation, we have the role of challenging what the Commons has done—as we are doing now. Quite often what the Commons does is nowhere near good enough. That is why this House has hundreds of amendments to this Bill and had over 500 amendments to the higher education Bill. That is our job. But when it comes to statutory instruments, we were warned very clearly in 2015, “Don’t go too far. It’s not your job to challenge them too much”. The noble Lord, Lord Lisvane, in his excellent introduction to his amendment, spoke of the three “S”s, one of which is scrutiny, but we will be deprived of that scrutiny by these unlimited powers.

Going one step further, this issue goes back to the constitution and the delicate balance between not only the Executive and the legislature but the Executive and the judiciary. Will the Minister acknowledge that statutory instruments can be challenged by the judiciary? Do we want to have non-stop challenge by the judiciary, overriding Parliament, when we should have the power and take back control? Do we want that to happen? It is much better that things are absolutely clear. Therefore, these amendments are crucial, because it is too dangerous and, quite frankly, irresponsible to give any Government such unfettered powers.

--- Later in debate ---

[Baroness Goldie]

I accept the noble and learned Lord’s argument, but I respond by saying that in a sense we are trying to ensure that we have the maximum flexibility and the ability to respond rapidly. Just because something may be competent to be done elsewhere does not mean that there may not be merit in retaining the power here—a power that, as noble Lords have quite rightly identified, will disappear on exit day.

A number of noble Lords raised the question of scrutiny. I emphasise that the procedure set out in Schedule 7 to the Bill makes clear that such legislation would be under the affirmative procedure; in other words, no regulations to amend the Act itself can be made before Parliament has had the chance to debate and vote on them. The noble Lord, Lord Beith, envisaged a very radical situation. I have to say in response that if that were ever enacted, Parliament would have a very strong view about the proposal he described. That is, indeed, the role, the function and the democratic responsibility of Parliament.

I understand the legitimate concerns that some noble Lords have raised about the seemingly broad scope of the Clause 9 power. It is also worth remembering that after changes made in Committee in the Commons the use of the power is subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the UK from the EU. This power is therefore already subject to exceptional constraints, a point helpfully reaffirmed by my noble and learned friend Lord Mackay of Clashfern.

The noble and learned Lord, Lord Hope, raised a significant matter: how regulations under Clause 9 affect the Sewel convention. I am informed that the Sewel convention applies to primary legislation only and that the Government will not make provision in devolved areas under the Bill without consulting the devolved Administrations and would not normally do so without their agreement. I hope that to some extent that meets the point that the noble and learned Lord was raising.

[Lord Hope of Craighead]

I am very grateful to the Minister for that answer but my point really is: what happens if the Minister of State decides to exercise the power? Obviously, the question in the first instance is whether the devolved legislatures would give consent to what is in the Bill, but my question is directed to the next stage, which is the exercise of the power, which the Minister has quite rightly said is not covered expressly by the Sewel convention. The question is whether the principle that underlies it would apply to the exercise of the power when it is exercised by a Minister of State. It may be that Ministers would like to think about that before giving a definitive answer, because it is a very important question and relates to something we may have to come back to on Report.

[Baroness Goldie]

I am grateful to the noble and learned Lord for teasing that out. I shall undertake to investigate and to write to him on the point.

I have presented my case. I realise from the responses to my presentation that this may not have been the most persuasive or cogent advancement of my position and I recognise that changing the Committee’s mind on this may be a tall order, but I hope I have, for your Lordships at least, made this fare a little more digestible. I urge noble Lords to reflect on the arguments I have advanced. As I have said, though, if the view of the Committee is ultimately that this element of the Bill remains unpalatable, I shall take that view away and we can see where we are on Report. In the meantime, I ask the noble Lord to withdraw his amendment.

European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

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

Moved by

[Lord Hope of Craighead]

90: Clause 7, page 6, line 25, at end insert—
“( ) modify the Scotland Act 1998 without the consent of the Scottish Parliament, or( ) modify the Government of Wales Act 2006 without the consent of the National Assembly for Wales.”

[Lord Hope of Craighead (CB)]

My Lords, three amendments in this group are in my name: Amendment 90, which relates to Clause 7; Amendment 130, which relates to Clause 8; and Amendment 148, which relates to Clause 9. They all raise the same point about the extent of the delegated powers given to Ministers of the Crown by these three clauses. The context is the way in which exercise of these powers may affect the devolution settlements for Scotland, under the Scotland Act 1998, and for Wales, under the Government of Wales Act 2006 and the Wales Act 2017. I am obliged to the noble Baroness, Lady Suttie, for her amendments introducing the position of Northern Ireland in exactly the same terms as my amendments.

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

Before the noble and learned Lord, Lord Hope, proceeds, it may be of benefit to the House if I now confirm that the Government will bring forward amendments on Report to apply the same protection for the Scotland Act and the Government of Wales Act to the Clause 7 correcting power that applies to the Northern Ireland Act. I will speak about that more at the end of the debate. It may also benefit the House to note that the Government have tabled an amendment to Clause 11 —as I am sure noble Lords are aware—that reflects the significant offer we have made on that issue to ensure that the House can debate the offer when we reach that clause, just as we promised to do in the other place.

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[Lord Bourne of Aberystwyth]

The noble and learned Lord, Lord Hope, has not yet moved the amendment so he needs to do that first.

[Lord Hope of Craighead]

I am very grateful to the Minister for his intervention and for the indication that he has given. My amendments extend to Clauses 8 and 9; what he has said is an indication of the way the Government are minded to go on Clause 7, but I must introduce my amendments in relation to Clauses 8 and 9 as well.

The provision relating to Northern Ireland, to which the Minister referred, is what we find in Clause 7(7)(f), which indicates that,

“regulations under subsection (1) may not … amend or repeal the Northern Ireland Act 1998”.

That provision is then substantially qualified in a way one can only understand by reading through the schedules. I am not clear whether the Minister is proposing that the Scotland Act and the Government of Wales Act should be qualified in the same way, but if he intends to qualify them, my amendments are unqualified. It is therefore appropriate for me to explain why my amendments are in the terms they are. Perhaps the noble Lord, Lord Adonis, will appreciate why I need to set this matter out in a little bit of detail and explain why I have brought the amendments forward.

As we have seen, these three clauses confer a very wide power on a Minister of the Crown to make provisions by regulations. That includes a provision to which attention has not been drawn until now, but which is certainly relevant to the amendments in this group: a Minister of the Crown may make a regulation of the same kind that could be made by an Act of Parliament. We find that in Clause 7(5), Clause 8(2) and Clause 9(2). I need not go over what these clauses deal with but, broadly speaking, in Clause 7 the power is to enable a Minister to deal with,

“any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU”.

In Clause 8, the power is to enable a Minister to,

“prevent or remedy any breach, arising from the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom”.

In Clause 9, it is a wider power to enable the Minister to,

“make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day”.

Each of these clauses is limited in some respects by saying that regulations made under them may not do certain things. The Committee has heard about that in earlier debates today, such as in relation to sentencing, the creation of criminal offences and so on. These amendments seek to add two further limitations. One is that the power under these three clauses may not be used to modify the Scotland Acts and the government of Wales Acts without the consent of the Scottish Parliament or the National Assembly for Wales, as the case may be. As I mentioned earlier, the noble Baroness, Lady Suttie, is seeking to make similar provision in relation to Northern Ireland. Amendment 148 goes a little further than that: it builds in an additional provision relating to the Ministers of the devolved institutions. These are the subject of the group after next, which we will come to later this evening. I will not develop that aspect until we get to that group.

The scale of the transfer of legislative competence to Ministers of the Crown, provided for by these clauses, raises concerns of a fundamental nature. This is not only about the balance of power between Parliament and the Executive, as the Constitution Committee pointed out in paragraph 158 of its report, it also raises concerns about the balance of power within the union and the future of the devolution settlements themselves, referred to in the same report at paragraph 243. Some of what I will be saying in a moment will be directed only to the Scotland Act, but it should be understood as applying equally to the Government of Wales Act and the Wales Act, which are referred to in my amendments.

As I understand the wording of these clauses, if they are left as they are the powers could be used to change the constitutional balance of powers between the UK Government and the devolved institutions which the relevant devolution statutes set out. An aspect worth stressing is the width given to the meaning of the word “deficiencies” in Clause 7. We see it set out at length in subsection (2), supplemented by subsection (3). It is extremely wide and can be widened still, as we can see, given the power in subsection (3). The provisions in Clause 7(6) are about the transfer of functions from EU entities or public authorities in member states to public authorities in the United Kingdom, which would, of course, include public authorities in the devolved areas of Scotland and Wales.

The Committee needs to bear in mind the points made by the noble Lord, Lord Wilson of Dinton, in his speech last Wednesday morning about the width of Clause 7; the meaning to be given to the expression “Minister of the Crown”; and the numbers of people who could be embraced by that expression. The point which was of particular concern to me in the amendments in this group is that the power includes a power to make any provision that can be made by an Act of Parliament. I appreciate that the provision in Clause 7 is time limited. This is also true in the case of Clause 8. In Clause 9, the power is not exercisable after exit day. Nevertheless, as these clauses stand, and while they continue to have effect, it would be open to a Minister of the Crown to modify the Scotland Acts and government of Wales Acts in a way that, as I mentioned earlier, could shift the constitutional balance, and to do so without even consulting the Scottish Parliament and the National Assembly for Wales, let alone obtaining their consent.

A particular part of the Scotland Act which is quite vulnerable to an inadvertent amendment without that process of obtaining consent is the detailed wording of Schedule 5. I was involved, as was the noble and learned Lord, Lord Mackay of Clashfern, in considering the Bill which gave rise to the Scotland Act 1998. We sat until late in the night—indeed, early in the morning—dealing with that Bill and went over Schedule 5 in some detail. It has survived very well over the years since devolution, but it contains considerable detail which could be adjusted a little. That would alter the balance between the UK Government and the Scottish Government in a way that should not be done without the consent of the Scottish Government.

I appreciate that Ministers may say that it is not their intention to modify the Acts in this way, but it is well known that there is a high degree of mistrust between the devolved institutions and the UK Government about where this legislation is going. Personally, I regret that but, from a Scottish point of view, the reason is not hard to find. As one reads through these clauses, and looks at them from the approach of a Scottish Minister, or the Scottish Parliament or, indeed, a lawyer who has dealt with the devolution system since it first came in, it is striking that—apart from Northern Ireland—there is simply no mention in these three clauses of the fact that there are devolved Governments in Wales and Scotland that need to be considered. That aspect causes one some alarm as soon as one begins to read through the Act. It would be desirable to do something about it, if one possibly can. That is why I welcome what the Minister said when I began my speech.

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[Lord Empey (UUP)]

My Lords, before we whip ourselves into a lather of outrage at the prospect of doing something without the consent of the devolved Administrations, perhaps I may remind the House that we have a short memory. The devolution settlement in Northern Ireland represented by the 1998 Act was butchered—a term I used some weeks ago—by this Parliament without a by your leave, without the consent of the Northern Ireland Assembly and without the consent of the parties that negotiated the agreement. That was done in the Northern Ireland (St Andrews Agreement) Act 2006, where dramatic changes were made to the methods we had negotiated with the noble Lord, Lord Trimble, and others over many years. So this Parliament can do what it likes, when it likes. That is the nature of having a devolved institution versus a sovereign Parliament. There is a hierarchy.

The Good Friday agreement, for which the noble Lord, Lord Judd—who is not in his place—and others indicated strong support, which I welcome, was dramatically changed without a by your leave. It was done as a result of a back-stairs deal and this Parliament implemented it. There was no requirement for the Northern Ireland Assembly to agree—it was just done. So let us look back at the actions that have already been taken.

In these challenging circumstances, and from what was said by the noble and learned Lord, Lord Hope of Craighead, among others, in his forensic examination of the amendments that he introduced, I understand that there is genuine reason to be concerned. But we have to keep this in proportion. When powers are repatriated to the United Kingdom, the European Union deals with the member state—that is the way in which it works—so the only place it can come to is the member state. The question then is: what happens when it gets there? That is of significant concern to Members. But I am not as concerned as some because I believe that it is perfectly possible to arrive at an appropriate accommodation.

The word “balance” has been used, and that is an important point. But let us look at legislative consent. I have to say to noble Lords that we have got to be extremely careful about what we are doing here. If there is a Northern Ireland Assembly, do we know what legislative consent means? It means that Sinn Fein will decide whether there is legislative consent. If we build that into an Act of this Parliament dealing with such an important matter as the consequences of the EU decision, we will be handing a veto to that single party. Under our devolution settlement, it will be about Sinn Fein’s consent as a party. Whether it has a majority or a minority in the Assembly is irrelevant; it has sufficient power to block consent. What are we doing in considering that?

[Lord Hope of Craighead]

I am most grateful to the noble Lord. In Clause 7(7), which deals with Northern Ireland, there is no mention of the need for consent at all. It states simply that the power to amend or repeal the Northern Ireland Act by statutory instrument is excluded. I can see the sense in that. Does the noble Lord agree that that is a sensible way of dealing with the matter, and that perhaps the same provision should be made for Scotland and Wales?

[Lord Empey]

I think that we have to be careful because this is complicated. It is obvious that the devolution settlements are not uniform; they are at different levels. My concern with the whole point of having consent is that, while it is obviously highly desirable to have it, although we are talking about the institutions, in practice we are talking about the people who at any point in time are controlling those institutions. In our particular case, there is a veto. I take the point made by the noble and learned Lord, but in the Scottish case a similar situation arises because there is a political party which has a particular objective in mind. It is not simply about the institutions but about those who are controlling them at a point in time when these matters come forward. In fact the noble and learned Lord, Lord Morris, said in his passionate contribution—I know that he is a lifelong devolutionary —that devolution, once granted, cannot be taken away. That is a contradiction in terms, because by definition devolution is something that is given—and of course our experience is that what has been given can be taken away. That is the danger in all of this.

Obviously we are waiting to see what the Government’s proposals will be. I do not believe that what the Minister indicated at the start of this debate will be the only contribution they will be making on these clauses, because it is clear that other matters need to be dealt with in Clauses 8 and 9, and I am sure that we will hear more from the Government. But I would urge colleagues to be careful about what this may mean in practice—because it is not as straightforward as it seems.

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Amendment 91 (to Amendment 90) withdrawn.

[Lord Hope of Craighead]

My Lords, I moved my amendment some time ago—at least I believe I did. I am very grateful to all noble Lords who have spoken in the debate and to the Minister for his very constructive response.

To sum up briefly, it seems that a theme ran through various contributions, which I want to bring to a point. I picked up from the noble Lord, Lord Wigley, the point that the Government have not really carried the people with them in the way they have responded to devolution, at least in Wales. Then, the noble and learned Lord, Lord Morris of Aberavon, said that devolution had yet to be taken seriously. Then, the noble Baroness, Lady Randerson, said that the atmosphere is becoming increasingly negative. These are very unfortunate phrases to be using in a situation where we seek agreement. However, the noble and learned Lord, Lord Wallace of Tankerness, said that accepting these amendments would be a step forward and the noble and learned Lord, Lord Mackay of Clashfern, said—if I understood him correctly—that accepting the amendments would not cause the Government much trouble, given what they have been saying about their intentions for the use of the powers that will be given to Ministers of State by these three clauses.

If the Minister searches his conscience very thoroughly, it does not look as though the Government have much to lose, if anything, in accepting these amendments. At the same time, there is a lot to be gained because they would help to change the atmosphere, which is so negative at the moment. He has made a step forward in Clause 7, which I appreciate, but he has done so because he says that he does not need to bother with the Scotland Act because he will have it all there on Report. I applaud that, but surely he might take the same step with Clauses 8 and 9. He may say that there is no question of amending the Scotland Act or the Government of Wales Act under those clauses—if so, why not just say so? Why not put these measures in the Bill and get this all over with, as a background to when we come to the real difficulty of Clause 11? There is that to take away from the debate.

I want to mention one other point. If we put a provision of this kind in Clause 7, people will look at Clauses 8 and 9 and say, “Oh, it’s not there. The situation is different as far as Clauses 8 and 9 are concerned”. There is a Latin phrase for this: inclusio unius est exclusio alterius, which means that putting one thing in excludes the other. We need to look rather carefully at the wisdom of adding a very sensible amendment to Clause 7 but not reproducing it in Clauses 8 and 9 as well.

I hope we can take these thoughts into the discussions which I would like to have with the Minister if we can find time. I look forward to Report when he will bring forward his other amendments. That is as far as we can take the matter this evening. We will come back to it on Report, but for the time being I beg leave to withdraw the amendment.

Amendment 90 withdrawn.

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Moved by

[Lord Hope of Craighead]

102: Clause 7, page 6, line 25, at end insert—
“( ) The consent of the Scottish Ministers is required before any provision is made in regulations under this section so far as the provision would be within the devolved competence of the Scottish Ministers within the meaning given to those words by paragraph 18 of Schedule 2.( ) The consent of the Welsh Ministers is required before any provision is made in regulations under this section so far as the provision would be within the devolved competence of the Welsh Ministers within the meaning given to those words by paragraph 19 of Schedule 2.”

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[Lord Hope of Craighead]

My Lords, I am afraid that I have to introduce this group, and I hope to be able to do so fairly concisely. There are two amendments in this group in my name. Amendment 102 relates to Clause 7 and Amendment 124 to Clause 8. They seek to qualify the extent of the power given to Ministers of the Crown to make provision by regulations to deal with the matters to which these clauses refer, asking that these powers be not exercised without the consent of the Scottish or Welsh Ministers, so far as the provision that is sought to be made would be within “devolved competence” within the meaning given to that expression in paragraph 18 of Schedule 2.

Once again, at the heart of these amendments is the need to respect the constitutional importance and integrity of the devolution settlements. How the areas of government within devolved competence should be administered is seen—certainly in Cardiff and Edinburgh—as the responsibility of the devolved authorities. They have that responsibility by virtue of the democratic vote under which Members of these legislatures were elected. Their quite correct position is that it should not be for UK Ministers to enter into the area that is devolved to them without their consent, especially in the exercise of the power, to which I referred in the previous group, to make any provision under these two clauses that could be made by an Act of Parliament. I mention the Sewel convention in that connection. In practice, the Sewel principle has been operated for a considerable time in the way that the devolution system has been working since the two fundamental statutes were passed in 1998. The problem is that these clauses fail to give effect to that practice, and that needs to be corrected.

To set this point in its statutory context, so far as Ministers are concerned, Section 53(1) of the Scotland Act 1998 sets out the basic rule that, in so far as they are exercisable within devolved competence, they are to be exercisable by the Scottish Ministers instead of by a Minister of the Crown. That section expresses the devolutionary principle, but the rule is qualified by Section 57(1) in the case of functions in relation to observing and implementing obligations under EU law. A member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, which is incompatible with EU law. Section 57(1) provides that any function of a Minister of the Crown in relation to such matters shall continue to be exercisable by him in relation to Scotland for the purposes set out in Section 2(2) of the European Communities Act 1972. No mention is made in the statute of any need to consult with, or obtain consent from, the Scottish Ministers before that power is exercised in relation to EU law.

Coming on to the way that the matter is worked out in practice, these provisions are operated in practice under successive memoranda of understanding on devolution between the UK Government and the devolved Administrations. I think they have operated almost since the start of devolution. One must recall that, to begin with, the Government in Edinburgh and the Government in Westminster were of the same persuasion: Labour Government here, Labour Government there. That, of course, assisted very much in the setting up of memoranda and a common understanding of how these matters were to be operated. The latest of these memoranda was published in October 2013. In a concordat on the co-ordination of EU policy issues, the memorandum states that the UK Government wishes to involve the devolved Administrations,

“as directly and fully as possible in decision making on EU matters which touch on devolved areas”.

It then sets out a series of underlying principles with which I think all those who are responsible for implementing EU obligations in devolved areas will be familiar. Among other things, they state that,

“it is for the devolved administrations to consider, in … consultation with the lead Whitehall Department”,

how the EU obligations should be implemented and enforced, including whether they should be implemented by the devolved Administrations themselves separately or by the UK in UK legislation. As I understand it from those I have spoken to, ever since devolution, this has been a matter of routine intergovernmental working between Scotland and Whitehall ever since the institutions were set up. This is important as it enables the Scottish Government to fulfil the responsibilities that have been devolved to them without their being cut across by measures taken in Whitehall without their agreement. That is where we are now. It is important to say that this system has worked remarkably well, with co-operation particularly between the civil servants on both sides of the border and, initially at least, with political agreement, as I indicated, on both sides of the border too.

The context in which the powers are given to a Minister of the Crown by Clauses 7 and 8 are, of course, different because we are leaving the EU behind, and this Bill is all about the withdrawal process. In the Bill as it stands, Section 57(1) of the Scotland Act is to be omitted: that is the provision that deals with UK Ministers dealing with EU obligations. Section 57(2) is to be amended by removing the reference to EU law and putting in provisions which are to be found in paragraph 1 of Schedule 3. Their effect is that the power of the Scottish Ministers will be under a restriction in relation to retained EU law which is similar to that in relation to EU law at present. However, when we look at Clauses 7, 8 and 9, we see that the Ministers of the Crown will have power under those provisions to modify retained EU law in areas of policy which are within devolved competence without any prior notice to the devolved Governments, let alone their consent. Therefore, the amendments I am putting forward in this group seek to deal with a problem which runs right through the Bill.

Provisions in Schedules 2, 3 and 8 to the Bill provide that retained EU law is to be treated in the same way as EU law as regards devolved competence, and I have later amendments which seek to deal with that. However, the problem is that they fail to recognise that much of what will become retained EU law will relate to matters within the devolved competence of the Scottish and Welsh Governments. To deprive them of their primacy, which is established under the memoranda of understanding to which I referred, would be very unfortunate and would create a situation which in both Cardiff and Holyrood is regarded as quite unacceptable. It would mean that while policy areas within devolved competence which raise no issues of retained EU law at all would be for the devolved Administrations to deal with themselves under the ordinary rule, you have policy areas within the same devolved areas which are subject to the provisions in the Bill without the need to obtain the consent of the devolved Governments.

The point I am really trying to make, as briefly as I can, is that there is here a recipe for confusion and mismanagement which would be in nobody’s best interests, and which we should, if possible, try to avoid. The remarks I have been making are directed largely to the Clause 7 situation, about which the Minister may wish to say something more, but they apply also to Clause 8, without elaborating further on the point I drew out of Schedule 5 to the Scotland Act and paragraph 7. My point is therefore common to these two clauses, and seeks to try to avoid the risk of confusion and mismanagement, which at present is avoided by the common understanding in the memoranda, which works so well.

I hope that the Minister might be willing to accept these amendments. I think the noble and learned Lord, Lord Mackay of Clashfern, is seeking to intervene. So that we can get into discussion, I beg to move.

Amendment 103 (to Amendment 102)

Moved by

--- Later in debate ---

[Lord Mackay of Clashfern]

Does the noble and learned Lord, Lord Hope, think that it would be possible to deal with his point by amending the memorandum of understanding so that it meets a new situation?

[Lord Hope of Craighead]

My Lords, I can see the force of that, but I do not know whether that option is available in the present climate. As regards reassuring the parties in Cardiff and Edinburgh, something in the Bill is looked for. Again, it is a matter of trying to find a way to soften the atmosphere, which is highly unfortunate at the moment. I deliberately have not discussed Clause 11, because that is quite a different debate. However, the more we can do to clear the air by getting these points out of the way before we get into Clause 11, the better, and that is the basis on which I have moved this amendment.

[Lord Thomas of Gresford (LD)]

My Lords, late at night on 21 July 1998, I was sitting where the noble and learned Lord, Lord Morris of Aberavon, is sitting at the moment, when Lord Sewel responded to an amendment moved by Lord Mackay of Drumadoon to this effect during the passage of the Scotland Act:

“This Act does not affect the power of the Parliament of the United Kingdom to make laws for Scotland, which may not be amended or repealed by the Scottish parliament”.


In resisting that amendment, Lord Sewel said:

“Clause 27 makes it clear that the devolution of legislative competence to the Scottish parliament does not affect the ability of Westminster to legislate for Scotland even in relation to devolved matters. Indeed, as paragraph 4.4 of the White Paper explained, we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However, as happened in Northern Ireland earlier in the century, we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.


If problems do arise the solution is for the Scottish executive and the United Kingdom Government to resolve the matter through political dialogue. That is what differences between mature parliaments and executives will be concerned with. That is what happens in other political systems. I cannot believe that it is beyond our wit to develop such a convention”.—[Official Report, 21/9/98; cols. 790-91.]


So the use of the word “normally” was off the cuff, and I imagine that Lord Sewel would be as surprised as I am to find that it has become subject to such intense examination in subsequent years.

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Amendment 103 (to Amendment 102) withdrawn.

[Lord Hope of Craighead]

My Lords, since that amendment has been withdrawn I am now in a position to withdraw Amendment 102 but I wish to make a few remarks. First, I must thank all noble Lords who have spoken in this rather briefer debate, and particularly the Minister for his helpful response to it.

I have to apologise to the noble and learned Lord, Lord Wallace of Tankerness, for my lapse of memory as to the nature of the Government at the beginning of devolution. He was of course absolutely right on that. I reject the criticism of the noble Lord, Lord Forsyth, that I am being naïve. I believe that my amendment had cross-party support in Edinburgh and, as the noble Lord, Lord Deben, said, it is really all about a question of trust.

If I understood the Minister correctly, we are really in the same position on Clause 7 as we were on the previous group. In effect, he will say that the Clause 7 problem is going to be exhausted. There is therefore nothing to be lost by putting in the same thing that he is prepared to put in about the Parliament; he might as well put in something about the Ministers, too. There is a serious issue with Clause 8, which would benefit from further discussion, but perhaps that is for another day. On the basis that we can still talk about it, the proper thing for me to do is to withdraw the amendment.

Amendment 102 withdrawn.

European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

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

[Lord Foulkes of Cumnock]

It would have no great effect either way, to be honest. I would like to think that it would have a greater effect on getting an agreement, but I do not think that it will. Other factors will have greater sway. However, no doubt the noble Lord, Lord Forsyth, will have an opportunity to make his usual spirited contribution to the debate.

It is a running sore that these government amendments to Clause 11 have not been tabled. I say to the Minister that we in this House—I hope that the whole House will agree with me on this; I certainly know that the Official Opposition agree with it—should not debate Clause 11 not just until the amendments have been tabled but until the amendments that have been tabled have been considered by the devolved Administrations. It would be entirely wrong for us to discuss Clause 11 without having the views of the devolved Administrations about the amendments that the Government will table. I hope that we will get an assurance from the Minister that we will not have a debate in Committee on the amendments until they have been considered by the Scottish Parliament, the Welsh Assembly and the Northern Irish Assembly, if it is up and running by then.

[Lord Hope of Craighead (CB)]

As it happens, I have an amendment directed to Clause 11. I would have thought that there was an advantage in debating in Committee so that we can at least engage with the Minister and explain the points that lie behind the amendment. Otherwise, if the amendment is simply not pursued in Committee, we cannot come back to it until Report. Therefore, I hope that the noble Lord will forgive me if in due course I move my amendment, which is intended to be helpful. At the end of the day, I hope that the amendment that the noble Lord is pursuing today will become completely academic because the differences between the devolved institutions and Westminster will be resolved. That surely must be the aim, not to keep this sense of tension until the Bill is passed.

[Lord Foulkes of Cumnock]

My Lords, I have great respect for the noble and learned Lord, Lord Hope, and he is right on this. I will now rethink what I just said. As long as we have not deliberated finally on Report, we need on Report to have the result of the deliberations and the views of the devolved Parliament and Assemblies. The noble and learned Lord has made a good point, which I accept, and I hope that he is right that it will make my amendment ultimately redundant. No one would be happier than me if that were the case. The Sewel convention is that the UK Parliament will not normally legislate—