European Union (Withdrawal Agreement) Bill

Lord Morgan Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I should like to reply to the point made by the noble Duke, the Duke of Montrose. I think he suggested that the inclusion of this amendment in the Bill would render the convention justiciable, and that there was something about it that would attract the attention of the judiciary. I have lived with the Sewel convention for a very long time, particularly with the amendment to the Scotland Act, now enshrined in Section 28(8). One of the points made by the Smith commission was that it wanted the Sewel convention to be given statutory effect. I am afraid that that battle was lost because, as Section 28(8) of the Scotland Act puts it, it remains a convention. Indeed, it was made perfectly clear by the Supreme Court when it considered the matter that it is not justiciable; it is simply a convention.

For my part—having, as I say, lived with the convention repeatedly through the 1918 Act—I relied on assurances by Ministers that they would respect the convention. It was not actually written into the Act, as I recall. So, for my part, I shall listen very carefully to what the Minister has to say, because in the past this has been handled by Ministers giving assurances that the House has respected. I am not certain that it is necessary to write it in in this way, but if I do not get that kind of assurance, I might go with the amendment. The words that the Minister uses will be extremely important to me in deciding what to do.

[Lord Morgan (Lab)]

My Lords, points have been admirably made by many other distinguished speakers. I will just make one: this whole issue unfortunately shows the frailty of devolution as a basis for keeping our partnership of nations together. Devolution had weaknesses built into it, admirable change though it was. As many of us said, the regulatory relationships between the nations were left extremely unregulated, if you like, and in a very imperfect condition, depending, as the noble and learned Lord, Lord Thomas, said, on the power of the word “convention”, which hovers over the English constitution in a very dangerous way.

The other thing to be said about devolution as a frail basis for a settlement is that it is deliberately asymmetrical, and an asymmetrical devolution means unequal distribution. Wales has always been treated as a poorer relation in the partnership. When there are possibilities of strain, as we see in the case of the Bill, the thing is liable to crumble. The whole basic weakness of the settlement is, alas, likely to continue and to weaken the United Kingdom. It is perhaps appropriate that these aspects are implications of the work of King Henry VIII, who, despite his background, was the master voice of English nationalism. He adopted a colonial attitude to Wales and that is reflected in our current difficulties.

[Baroness Humphreys (LD)]

My Lords, I have not added my name to this amendment but would like to register my support for it. Twelve months ago, to this week, Vaughan Gething, the Welsh Cabinet Secretary for Health and Social Services was asked: if the Senedd refused to grant consent to an Act of Parliament, could it be overruled by Westminster? His reply was interesting. He said that the ability of the UK Parliament to override a measure made in any part of the UK is one of the mischiefs in the UK’s constitution that needs fixing. I do not for a moment suggest that we begin the fixing process today, but I cite his words merely as a fairly accurate summing up of the situation in which we find ourselves today.

The exclusion of a reference to the status of the devolved Administrations from Clause 38 appears deliberate. It seems designed to ensure that the devolved Administrations have no role to play in the UK’s withdrawal from the EU. It enshrines, by this omission, the inequality of the power between the nations of the UK. The inclusion of Amendment 20 in Clause 38 would go some way to redress the balance and ensure that the devolved Administrations could represent the views of their respective nations in this massively important process.

I am a passionate advocate for the Senedd. I strongly believe in the principles of devolution, as do my colleagues on these Benches. The Senedd has given Wales a voice and a feeling of nationhood. The exclusion of this amendment could lead to the perception of both being taken away. Accepting this amendment would go some way to preventing those losses.

European Union (Withdrawal) Bill

Lord Morgan Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, I sought to explain in reference to the amendment I moved last week my belief about the simplicity of the real issue in this area. It seems absolutely clear that all the devolved Administrations—and the UK Administration themselves—are subject to EU law. However, on Brexit day that will all disappear and there will be the powers—these are the ones I am particularly interested in—that were kept to the EU. I said last week, and nothing I have heard since has persuaded me to change my mind, that all the powers which are effectively exercised within a single devolved area should be devolved immediately. That is the result of the EU no longer being in charge of our procedures. In addition, those powers the EU has which to be effective require to operate in more than one of the devolved areas should go to the UK Parliament. I thoroughly believe that that is the only way in which this can be properly accomplished. The idea of doing it with some form of legislation other than primary legislation is doomed to failure. So far as I am concerned, for example, the amendment tabled by my noble and learned friend Lord Hope, which we will come to later, relates only to the idea that something of this kind can happen by statutory instrument. There is no power which creates statutory instrumental authority for this kind of thing. Therefore, what has happened is what Bishop Berkeley once said about the philosophers:

“We have first raised a dust and then complain we cannot see”.


That may have affected other areas of our national life.

This is a simple matter, and the simpler it is, the better what we are trying to do will be understood by ordinary people—the people who read the papers. Otherwise, we will be arguing away about what I certainly cannot understand and I venture to think that, if I cannot understand it, it is likely that one or two others will not understand it either.

[Lord Morgan (Lab)]

My Lords, this is one of a number of issues where it seems that the Government have created extraordinary difficulties for themselves—a quite unnecessary threat to the cohesion of the union in the long term—as well as the other problems introduced by this legislation.

I am a member of the Constitution Committee; the chairman of that distinguished body is sitting behind me. I am not speaking on behalf of the committee, but for myself. The committee has already noticed that the provision about EU-derived measures is quite inappropriate. It ignores the devolution settlement. As the noble and learned Lord, Lord Mackay, explained, these powers should automatically go to the devolved legislatures—where they belong—but they are given no powers of redress or scrutiny. There seems to be very little consultation. I do not understand why such a high-handed and frankly colonial attitude is being adopted toward the legislators of Scotland, Wales and Northern Ireland. Needless complications are being caused. In Wales, which has had a growing accretion of reserved powers under the Government of Wales Act, unnecessary animosity that is not relevant to the Act is being created. It is a form of centralism that goes against the spirit of recent legislation and the consensual spirit in which this has taken place. Much of that consensus is owed to the noble Lord, Lord Bourne. It is comforting to see him sitting on the Government Benches; I hope he can suggest the reversal of this.

[Lord Cormack (Con)]

My Lords, I join in the tributes to my noble friend Lord Bourne. One thing I hope he will take on board is that the amendment was tabled by my noble friend Lord Blencathra—it has been explained why he cannot be here, and we completely understand—but it was moved, most eloquently, by the noble Lord, Lord Tyler. Nobody could accuse them of being on the same side of the Brexit argument, which underlines the fact that, as our Constitutional Affairs Committee said in its report, the Bill is deficient and the deficiencies are recognised equally by those on both the remain and leave sides. I hope that this will command unanimous support among your Lordships and that there will be no need to put the amendment to a vote at a later stage. I hope that my noble friend Lord Bourne will take on board the virtual unanimity of concern here and give us an encouraging answer.

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[Lord Wigley]

My Lords, I shall speak to Amendment 313 in this group, which is in my name. The amendment again returns to the question of making progress by consent. The words in the amendment in the context of Wales provide that the relevant provisions will not come into effect until,

“the National Assembly for Wales has passed a resolution approving the provisions in subsection (2)”.

The convention of gaining legislative consent is of course flawed since it is held to be just that—a convention and no more. This amendment attempts to rectify that flaw, albeit just for one clause of what is in so many ways a problematic Bill. None the less, given our debates earlier this afternoon and last week, it appears that the Government are starting to become a little more sensitive to these issues and may be thinking of finding a way to bring people together on them.

As I say, the proposed new subsection would require the UK Government to seek consent from the devolved legislatures before implementing Clause 11, which may help to break the negotiations deadlock. It may help the devolved legislatures to regain some trust, and this is very much a question of trust. It could go a long way towards proving to Wales and Scotland that their voices matter in these issues.

There are clear constitutional problems with the Bill, which over recent months have been raised vociferously by both the Scottish and Welsh Governments. The UK Government have conceded that the Bill inevitably overrides the devolution settlement. I understand that in the conceptual context, but it is only right that the sitting devolved legislatures are given a statutory legislative opportunity to sign off the final product. The UK Government have rationalised our leaving the EU with the unforgettable soundbite “Taking back control”. Surely to deny the sitting devolved legislatures their fair say on Clause 11 goes against that very reasoning.

[Lord Morgan]

My Lords, I agree entirely with what the noble Lord, Lord Wigley, said. This might appear to introduce a somewhat belligerent note in the discussions between the devolved assemblies and the Westminster Parliament, but it has been forced upon the devolved legislatures. They have been so excluded while these debates have been going on that it is essential for them to have a failsafe mechanism for asserting their views. Again, as I remarked a moment ago, it is very sad to see an element of discord needlessly introduced into what has been a very fruitful period of collaboration quite recently. It is important for the Assembly in Wales, the Parliament in Scotland and the authorities in Northern Ireland to have this power. If they do not, devolution will be flouted. We will be turning our backs on now nearly 19 years of history, which I do not believe anyone wants to do. In that spirit, it is essential and necessary for the devolved legislatures to have the powers included in the amendment.

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[Lord Morgan]

My Lords, I respond with considerable enthusiasm to what my noble friend Lord Liddle just said—and, if I may say so, with considerable pride, because a long time ago I once had the privilege of teaching him. Everything he said about introducing possible discord is profoundly true. I just make two points. This is trying to impose a static uniformity on a United Kingdom whose pluralism has increasingly been made manifest. It is simply the wrong approach: a heavy-handed, imperial approach which is inappropriate. We heard so much during the campaign about “take back control”. Well, control for whom? It was established in the courts by that courageous lady, Mrs Gina Miller, that it should be control for Parliament, because ours is a parliamentary democracy, but the clutch of issues we have been discussing this afternoon raises the additional point of control being vested not merely solely in the Executive, but in the Executive in Westminster, in a situation of pluralism and partnership. At this time, with other tensions emerging all over the European continent, it is very important that the Government get this right.

[Lord Mackay of Clashfern]

My Lords, it is important to remember that this debate is about a fairly limited matter. No doubt it has consequences, as the noble Lord, Lord Liddle, said, but my principal concern is to get a procedure which is adequate and reasonably simple. As for differences in taxation, the noble Lord will know that for taxpayers in Scotland, there are differences already and even more to come—which may not altogether suggest that he should come to live in Scotland.

This committee has started looking at individual areas of devolved policy. It has come up with a tremendous number and has tended to look at them from that point of view. We now gravely need to look at things from the point of view of the ultimate result. The framework agreements are described in the documents as intended to promote the single market, and that is how I see them—trying to ensure the continuation of the single market which presently exists in the United Kingdom and which everyone, as far as I can see, would like to continue.

That approach has led to people saying, “This area is okay. You do not need a framework”—because of minute descriptions which I shall not attempt to recite—“but if you need a framework, the United Kingdom Government must create some form of control which enables them to lay out such an agreement”. That is the idea of the power to select 24 areas where statutory framework agreements were necessary; and there is another group where memoranda of understanding were thought to be necessary.

That way of looking at it is bound to be complicated, and you have to have some power to hold the devolved area that is to be subject to the single market requirement in order to put the single market requirement into effect. That is the purpose of this rather remarkable proposed new clause: giving Ministers power to hold for a time that particular policy area. Once that happens, I can see that some form of time restraint will be necessary, because you do not want to be waiting too long.

My suggestion, which I put forward in relation to my amendment last week, is that you forget all that and remember that the areas of devolution are defined by the areas which are presently controlled in Europe but which can effectively be legislated for in one of the devolved areas. Scotland cannot legislate for Wales, much as it might like to, and nor can Wales legislate for Scotland. Scotland can legislate only for itself, so it cannot set up by its own legislative authority a single market. Therefore, if the single market is to be legislated for, it has to be done by the Parliament of the United Kingdom—and all devolved areas are appropriately represented in the Parliament of the United Kingdom. We must not forget that.

I suggest that the committee should be defined as a group in the way that I have sought to set out, looking for consent for all the necessary provisions to enable a single market, as far as it is agreed to be required, in the United Kingdom. I sincerely hope that that will be agreed because, as I told your Lordships last week, when I spoke to the Minister from Scotland, he was very insistent that the chances of reaching agreement were very high—so I am working particularly on that assumption. It does not absolutely need to be fulfilled, for a reason that I will come to in a moment, but I certainly hope that it can be. That is why I think we should have a group in which the four different countries—three of which are devolved—should be more or less equally represented. That is what the proposed group is for—it is proposed only for this special purpose. I am not seeking to incorporate this into the Government of the United Kingdom for the future, as some people have suggested. I am thinking only of a group to solve this present problem, which is quite urgent, quite important and not too difficult.

We should remember that a single market exists in the United Kingdom already, so we do not have to invent it all. We may need to make modifications, but there is a kind of plan available to look at—so I think the chances of this group reaching agreement are very strong. If so, what I believe should then happen is that the things they have agreed should be incorporated in a United Kingdom statute. If they are all agreed, the sole convention should provide that there be statutory consent. I see no need for any kind of system for dealing with disagreements at that stage. The United Kingdom Parliament has a responsibility and will have to deal with it on its constituents.

I have also tried to make sure that the group is as united as possible, so I have provided that, where there is a disagreement, it should state precisely, in an agreed form, what it is, so that the Parliament of the United Kingdom—if it had to come to that—would have only that question to determine. I think that this is a better system than anything that starts from the bottom and seems to come up. Consent would come in the group right across the whole field and, if that works, as I hope it will, there is no difficulty whatever. If there is any difficulty, the Parliament of the United Kingdom will have to try to solve it and then the Sewel convention will apply to that United Kingdom Parliament. That is my solution—and, of course, the amendment of the noble and learned Lord, Lord Hope, would then not arise. That is a much better system than trying to work up from the individual in 24 areas, or whatever it is.

European Union (Notification of Withdrawal) Bill

Lord Morgan Excerpts

Report stage (Hansard): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Baroness Wheatcroft (Con)]

My Lords, I have no wish to get involved in Liberal Democrat internecine warfare but I put my name to this amendment and I support many of the speeches that have been made in support of it.

My noble friend the Minister has done a very skilful job in getting the Bill to this stage in this House, but in Committee he told us to be in no doubt that this country was leaving the EU—no ifs, no buts, and with no idea of the terms. I admire determination but not when it is blind to changing circumstances. I cannot see why any Government would be so adamant about a course of action with no knowledge of the circumstances in which they might take that course.

We do not know what the world will look like in two years’ time. Economically and politically it is at some of the most uncertain stages that I have ever seen in my lifetime. In two years’ time, the EU, the world and our economy could look very different—and, I suspect, not for the better. At that stage, we will be able to look at the deal that our Government have negotiated or, as others have pointed out, at the no deal that they have been handed. Although I am not an advocate of government by referenda, in this situation, having started the process with a referendum, as the noble Lord, Lord Hain, pointed out, it seems to me that the only sensible way to bring the process to an end is to put the terms to the public. I have listened to the arguments of the noble Lord, Lord Carlile, and I do not dismiss the patronising advice that he gave the Liberal Democrats or those supporting this amendment, but I believe that the public need to see what is on offer.

During the course of this Bill, we have heard that, whatever people voted for on 23 June last year, it was not to get poorer. I cannot see that in the end the Government will be presenting them with a deal which does not mean that they get poorer. I believe that at that stage they should have a chance to vote on whether, having seen the future, it is the future that they really want.

[Lord Morgan (Lab)]

My Lords, there was a previous referendum on Europe in 1975. On that occasion, it was not taken as holy writ and as something that it was almost obscene to vote against. On the contrary, in 1979 the Labour Party said that it would ignore and vote against the referendum result—there were no difficulties there—and so did a very large number of Conservatives, headed by Mr Enoch Powell. Therefore, I cannot see why the advisory referendum of 1975, where the majority was 33%, should somehow be treated so casually, whereas this referendum, with a majority of, I think, 3.8%, is somehow treated reverentially, with the view that we should all genuflect before the will of the people.

I link this amendment with Amendment 3, which I shall also support. Amendment 3 confirms the view so wisely put by the Supreme Court that sovereignty in this country resides in the two Houses of Parliament. That was the view taken and it is the view that will be proclaimed in Amendment 3. Referendums are always advisory—they are to help Parliament in reaching a view. It is best to have an informed referendum. The last one was not in the least informed; it was a process of serial lying and deception, which added nothing to public understanding. As the facts emerge, I think that public understanding will change substantially.

We need to ask the view of the people again to assist Parliament when the facts are known—when the car workers at Vauxhall, the steel workers at Port Talbot and the car workers at Sunderland will be forming a view on employment, trade and Britain’s economic relationships with a wider world. It would also be when we have had an opportunity to have the views of young people, deprived of voting this time and whose futures are imperilled by this ill-informed, almost non-informed, decision.

Another referendum will not be taken in a one-world universe; it will be taken when the views on Brexit of those other 27 countries, views which are quite important, are also known. As I believe was the Labour Party in 1979 and 1983 in respect of the previous referendum, as well as a growing number of Conservatives, I am in favour of regarding the referendum that we had in June last year as ill-informed, or almost uninformed, guidance. I would prefer informed guidance and that is why I shall vote for this amendment.

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[Lord Morgan]

It was an advisory referendum. There is no doubt about that.

[Lord Foulkes of Cumnock]

I agree. I share that view. However, some people tried to sow confusion and indicated that it had to be accepted. I say to my noble friend Lord Grocott that this is why we need to look carefully at what happens at the end of this long and complicated process.

As I say, I was not sure how to vote, but I am now convinced. The noble Lord, Lord Newby, answered my question. The form of the referendum, its timing, the question, the franchise and all of the other matters will be dealt with in a Bill which will come before this Parliament.

I also support Amendment 3 about parliamentary approval of any deal that is agreed. I envisage—I do not know whether my colleagues agree—that Parliament would then put the proposal to the referendum. That would be the question. So at that time, in that referendum, we would know what we were voting for, unlike the previous referendum. That has convinced me that the way forward is to combine the parliamentary consideration of the deal that is reached and come to some conclusion, and then put it to the people because they will have considered it already. That is the first thing that has convinced me to support this amendment.

The second thing is that I have become increasingly concerned at the tribalism of the Tories on this issue. They are sitting there supporting some kind of concerted campaign to push through the kind of hard Brexit that they want at any cost—and I mean at any cost. The more they do that, and the more they sit there jeering at our partners in Europe, dismissing them as if they were irrelevant in relation to this, the more I will be convinced that we need to make sure that their kind of hard Brexit—

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[Lord Grocott]

My Lords, it is a pleasure to follow the noble Lord, Lord Faulks, because he, like me, sat through most of the debate that resulted in this House, without opposition, deciding that we should have a referendum to determine whether to remain in or leave the European Union. I say that perhaps particularly to the noble Lord, Lord Taverne, who expressed his strong opposition to referendums. I respectfully say to him that, if that is the case, he should have opposed in this House the Bill that established the referendum mechanism to decide whether we should leave or remain.

I want to make an observation and will then specifically address the amendment. The observation is simply that there has been an awful lot of rerunning of the referendum argument in the discussion so far. I always want to urge this House, above all institutions that I have been able to be involved in, not to ascribe motives to people in elections and to assume that we understand precisely why they voted in the way they did, and then to challenge them somehow on the basis of whether they made what we consider to be the right or wrong decision. Perhaps I have a considerable qualification in this regard in that I have lost an awful lot of elections over the course of my career. Although the motive is always to say that your opponents lied or misled people, or that the people were not bright enough to make the decision, my advice, when they eventually elect you, is to acknowledge that they are a pretty shrewd electorate. That is how we all react to success and failure in elections.

Specifically on the amendment, we still have not had a reply on whether such a referendum would be advisory. I respectfully need to point out to the noble Lords who have spoken that one or two mistakes have been made in arguing this case. I think that it was my noble friend Lord Morgan who said that all referendums are advisory. That simply is not right. The referendum that we held on whether we should have AV or first past the post was based on legislation that this House had passed in the form of the Bill for the AV referendum. That laid out precisely the system that the electorate would put into place, should the referendum be passed.

[Lord Morgan]

I apologise for interrupting my noble friend. With regard to that referendum and all referendums, this is a constitution based on parliamentary sovereignty. Unlike France, it is not based on popular sovereignty.

[Lord Grocott]

My noble friend is absolutely right but in this case the Act of Parliament that this House passed to establish the referendum included precisely the mechanism for the alternative vote election that would come into place should that referendum be carried.