European Union (Withdrawal Agreement) Bill

Lord Morris of Aberavon Excerpts

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

[Baroness Butler-Sloss (CB)]

My Lords, I had not intended to speak, but over the last week I have listened to the various representatives of the devolved Administrations in this union of ours. Speaking as a totally English person, without any relationships in any of the three devolved areas—other than being married to an Ulsterman—I think that we English ought to be very careful and listen to what the devolved areas are saying to us. It was said earlier that the Government, and indeed many English people, might not really appreciate what devolution has meant. Perhaps it is time we did.

[Lord Morris of Aberavon (Lab)]

My Lords, I support the amendment, which would put in statutory form what has grown into an important convention. I would like clarification, which I failed to get in yesterday’s debate, regarding the breadth of the convention. I asked a specific question:

“will the Minister clarify and emphasise that legislative consent would normally be required for any regulation that would be brought in under this Act?”—[Official Report, 20/1/20; col. 958.]

I was referring in particular to Clause 21.

As I did not get satisfaction from the Minister’s reply, I repeated my question later, saying:

“I might be a slow learner, but, following the point made by the noble and learned Lord, Lord Thomas, I would like to know which specific points cannot be dealt with by a Section 109 order.”


A Section 109 order would be a consensual matter, as opposed to one imposed from Westminster. The Minister replied:

“I cannot give the noble and learned Lord the answer to that question, but I can give him the assurance, from speaking to my legal advisers, that in the negotiations that will unfold there will be areas that we think will be under discussion that might stand outside those areas I have touched on regarding Section 109 and the ability to direct Welsh Ministers.”—[Official Report, 20/1/20; col. 964.]


Perhaps now, after some more thought, the Front Bench can give the clarification that I required on how, from the viewpoint of Her Majesty’s Government, the convention would be implemented.

[Baroness Finlay of Llandaff (CB)]

My Lords, like others who have spoken about devolution, I have made many points and will not repeat them. However, it is important that the Government do not misinterpret the vote to leave the EU on the back of the slogan of “taking back control” as a vote for yet more concentration of power in the hands of people who work within a mile or so of this building. People want a sense of direct influence over their lives and things that really matter to them.

The amendment simply supports the status quo of the Sewel convention. It respects the relationship between Westminster, the Scottish Parliament and the Senedd. I urge the Government to recognise that it does nothing to constrain their agility in negotiating or their ability to negotiate. If the culture change that the noble Lord, Lord Howarth, spoke about so eloquently today is to happen, surely we must recognise that there are Governments other than the one in this Chamber and at the other end of this building.

European Union (Withdrawal) Bill

Lord Morris of Aberavon Excerpts

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

We have something approaching an utter shambles in these matters. The Government should never have got themselves into such a tangle, and it must be the duty of Parliament to save the National Assembly for Wales, the Scottish Parliament, and, I hope, the Northern Ireland Assembly, from the folly of the Government’s approach. There are possible solutions, without having the sort of diktats which the amendment moved by the noble and learned Lord, Lord Hope, and my amendment address, and which we will come on to in Clause 8. However, the Government have not reached out in a way that carries people with them and which enables there to be agreement by willing partners rather than the imposition of solutions on them.

[Lord Morris of Aberavon (Lab)]

My Lords, I support the amendments in the name of the noble and learned Lord, Lord Hope, and I am grateful to him for the careful way in which he has gone through each of them. I do not propose to do that myself, but I will address the broad issue that the Bill as it stands alters the balance on devolution.

Once granted, devolution cannot be taken away. We had a royal commission and two Acts, and for more than 30 years I played a small part in ensuring that eventually we got there. We have got there, and there is no going back. However, the Bill alters the balance, and finance is involved as well. I mention that in passing. The Barnett formula now is based on population. The grants that agriculture and the environment get from Brussels are based not on population but on need, so that will be the fundamental change if the Bill stands unamended. It goes to the very heart of the matter. I was grateful to the noble Lord, Lord Bourne, for indicating to me today that he was minded to bring forward some amendments, but are they of very great importance? We cannot say until we have seen them. However, something more important is at issue.

There have been conversations between the Westminster Minister—the Chancellor of the Duchy of Lancaster, as I understand it—the Welsh Assembly and the Scottish Parliament. There has been no agreement. I understand that they are getting closer to each other, but this should have been done a long time ago. The promise was made in the other place—the Scottish Secretary made a commitment on behalf of the Government that it would be amended by Report in the Commons. We are now almost on Report in the Lords, but still we have had no agreement from either of the devolved Governments or any indication of what kind of amendment will be forthcoming.

I dealt with the issue of legislative consent in some detail in my short speech on Second Reading. Legislative consent had to be dragged out of the Government. The Whitehall departments have yet to take devolution seriously. I still have the bruises of many years’ campaigning to persuade each one of them that devolution, following the royal commission, was inevitable. Eventually, after a long time, we won. However, I still believe that there is an inherent objection in the Westminster departments to devolution at all. We had an indication from Stephen Crabb MP, the former Welsh Secretary, when he addressed the Welsh Conservative Party conference, saying that,

“we still have to get the cabinet secretary to put pressure on departmental permanent secretaries to take devolution seriously”.

That is why there has been this foot-dragging, why there has not been an agreement, and why there has been this resistance to bringing forward a proposal that would ensure to all of us that we will not go back on devolution.

On 21 June last year, on the issue of legislative consent, the Prime Minister said: “There is a possibility” —those were her words—that,

“a legislative consent motion may be required by the Scottish Parliament”.—[Official Report, Commons, 21/6/17; col. 62.]

The next day, the Leader of the Commons kicked it into touch, and a few days later, the noble Lord, Lord Bourne, kindly affirmed in this House that they would seek legislative consent. That is an indication of the way in which the Westminster departments have not been able to take devolution seriously. That is why the joint letter from the two First Ministers of the Assembly and of the Parliament says that they would not give legislative consent to the Bill in its present form. That is an alarming position, and we are still not clear whether legislative consent, which is now politically necessary, will be given at all.

On 14 September, the Minister, Mr Skidmore, wrote to the noble Lord, Lord Boswell, of this House:

“We will continue to engage the devolved administrations as we seek to deliver an EU Exit approach that takes proper account”,


of the devolved and interested parties. We still await that agreement. It had not been reached last Thursday, when I discussed the matter with the counsel for the Assembly, or this morning, when I discussed it with the person I speak to in the Welsh Assembly in Cardiff. We still await it—although there is more confidence now that there is hope on the horizon.

Perhaps I may set out briefly my objections to the present proposals in the Bill. First, it freezes existing law at the point of exit, and only UK Ministers appear to be allowed to unfreeze it, even in areas clearly within the competence of the Assemblies and the Parliament, such as agriculture and the environment. I hark back to what I said earlier about the Barnett formula and the finances. Is that the reason?

Secondly, UK Ministers will be able to amend legislation within the competence of the Assembly without being answerable to the Assembly, explaining what they are doing and why. That does not seem democratic to me.

Thirdly, the clauses would allow Ministers of the Crown to amend legislation within the legislative competence of the Assembly and Parliament and to amend legislation in respect of which Welsh Ministers may also exercise functions under Schedule 2 or under existing powers. This could extend to amending legislation passed by the Assembly. That is the legal position which has not been faced. It is what this Committee should now consider and get some kind of response on from the Minister. I know that there were many speeches to be answered at Second Reading but there was no response at all to some of the fears that I expressed then and repeat now. I hope that at the end of this debate there will be an answer to each of these points.

Any regulations made by a Minister of the Crown would be scrutinised by the UK Parliament rather than by the Welsh Assembly, even if the law in question contained provisions relating to devolved subjects. That is a horrific scenario and goes well back on the devolution settlement.

One specific piece of advice that I received astonished me and I hope it is wrong. If it is not, I enjoin the Minister to correct it. I am told that these powers could also be used to amend the Government of Wales Act without any requirement for the Assembly’s consent. If my advice is right and that is correct, we are certainly going back on the settlement. We are going back on 30 or 40 years of campaigning; we are going back on the recommendations of the royal commission; and we are going back on what was agreed in two Acts of Parliament—one in 1998 and one in 2006—and by referenda in each country.

Therefore, I hope that on this occasion, unlike at Second Reading, we will have some reply and some indication of where we are going, and that the balance of devolution, which many of us have fought for all our lives, will not be reversed.

[Baroness Finlay of Llandaff (CB)]

My Lords, I have added my name to Amendments 90, 130 and 148. I am most grateful to my noble and learned friend Lord Hope for introducing the amendments in meticulous detail.

I heard the Minister speak about a correcting power in relation to Clause 9 but unfortunately I did not hear the words “legislative consent”. In the Government of Wales Act there is a principle of legislative consent from the Assembly, and that is important when powers change and when legislation comes from Westminster with a direct effect on Wales. I am no lawyer and I hesitate to speak following two such knowledgeable lawyers as my noble and learned friend Lord Hope and the noble and learned Lord, Lord Morris, and the very informed opinion of the noble Lord, Lord Wigley, but I believe that the volume of amendments tabled on this issue and the strength of feeling show both the deficiencies in the Bill as drafted and the deep unease that the Government’s efforts to appease the concerns appear to have been left until the 11th hour. That is a tremendous shame for the operation of the whole of the UK going forward.

As it stands, it seems that the passing of this Bill could mean that Brexit becomes a conduit through which legislative competence is repatriated slowly— as the thaw occurs, after time—from the devolved Governments in Wales and Scotland back to Westminster. In the words of the First Minister of Wales and the First Minister of Scotland, this Bill appears to be a “naked power grab”. It does not return powers from the EU back to the devolved Administrations, as promised; it returns them solely to the Government and Parliament, and freezes them, and it imposes new restrictions on the Scottish Parliament and the National Assembly for Wales.

Brexit: Revocability

Lord Morris of Aberavon Excerpts

Wednesday 20th December 2017 Lords Chamber

[Lord Callanan]

The noble Lord is of course very experienced in legal matters and I thank him for his very interesting opinion.

[Lord Morris of Aberavon (Lab)]

My Lords, the Minister will correct me if I am wrong, but were not parts of Sir Nicholas Lyell’s advice on the Maastricht treaty made known to the House of Commons?

[Lord Callanan]

I have absolutely no idea but I will find out and write to the noble and learned Lord.

Brexit: Devolved Administrations

Lord Morris of Aberavon Excerpts

Tuesday 24th October 2017 Lords Chamber

[Baroness Anelay of St Johns]

Absolutely right, my Lords.

[Lord Morris of Aberavon (Lab)]

My Lords, is it not a principle of good governance that powers once devolved should not be lightly withdrawn? Does the Minister agree that it is not beyond the wit of parliamentary counsel, properly instructed, to draft proposals to maintain the status quo and to provide for the interregnum in the meantime?

[Baroness Anelay of St Johns]

The noble and learned Lord, as ever, makes an important contribution on these matters. We are listening to discussions about the drafting of the European Union (Withdrawal) Bill arising out of amendments tabled in another place. It is the intention of this Bill that no decisions currently taken by the devolved Administrations will be removed from them. Each and every part of the noble and learned Lord’s intervention is key to our decision to draft the Bill as it currently stands.

Brexit: Financial Settlement

Lord Morris of Aberavon Excerpts

Thursday 12th October 2017 Lords Chamber

[Baroness Anelay of St Johns]

My Lords, this is a technical matter which will decide the future not only of this country but the rest of Europe. One does not go into that kind of negotiation by just opening the doors of the Treasury and offering a certain number of millions or billions of pounds. What we will do is look very carefully at the paper put forward by the Commission during the summer, in which it set out the list of treaties and the clauses of those treaties and regulations that it says form the legal basis of the money that should be paid by this country. We want to be able to face the British people and say: this is our obligation, this is why we agreed to pay it, and we can justify every part of that money.

[Lord Morris of Aberavon (Lab)]

My Lords, will the settlement take into account the failure of the auditors of the Community to certify the accounts for more than 10 years?

[Baroness Anelay of St Johns]

The noble and learned Lord makes a vital point, and I certainly hope that it might.

Brexit: Article 50

Lord Morris of Aberavon Excerpts

Monday 7th November 2016 Lords Chamber

[Lord Bridges of Headley]

The right reverend Prelate makes a good point. He points to a sin of omission here. I totally agree that we need to be looking at what is best for the communities of this country; that is why I am delighted that I have met with representatives of the Church of England to discuss this. Brexit raises a whole range of issues which are posing challenges for communities. I know that is so as regards EU funding. There are concerns across the board on various points. I am happy to discuss those with all faith groups and I am delighted that the Church of England has agreed to do so.

[Lord Morris of Aberavon (Lab)]

My Lords, will the Minister inform the Prime Minister that she should invite the Minister for Justice to study her constitutional duties under the Constitutional Reform Act—particularly Section 3(1) and 3(6)—to defend the judiciary, in view of her half-hearted and delayed defence of the judiciary and her failure to rebut some of the inflammatory comments in the newspapers, in which she was joined by a senior Minister as well?

[Lord Bridges of Headley]

I hear what the noble and learned Lord says. I have made my position clear on this and I really do not have very much more to add.

Royal Prerogative

Lord Morris of Aberavon Excerpts

Monday 18th July 2016 Lords Chamber

[Lord Bridges of Headley]

The Government’s position is that there is no legal obligation to consult Parliament on triggering Article 50. I understand that, as the noble Baroness rightly alluded to, a court case is beginning to trundle its way through the courts, and obviously that will have to make its way. Beyond what I have said, I am sorry to say there is nothing further for me to add at this point.

[Lord Morris of Aberavon (Lab)]

My Lords, I have already welcomed the Government’s decision, announced last week, on the need for the consent of Parliament to invoke Article 50 rather than rely on the royal prerogative. Since the Constitution Committee of this House proposed, following evidence from the late Lord Mayhew and from me, that the consent of Parliament was necessary to go to war—now a convention—rather than use of the royal prerogative, should not the same committee be asked to examine how the royal prerogative should be used in the future?

[Lord Bridges of Headley]

How the royal prerogative might be used in the future is obviously a matter for the committee to consider. However, I am sorry to say to your Lordships that I cannot go further than what I have said so far. Our understanding is that there is no legal obligation to consult Parliament on triggering Article 50, as it affects the position in international and not domestic law.