Retained EU Law (Revocation and Reform) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

[Baroness Randerson (LD)]

My Lords, my noble friends Lord Bruce, Lady Suttie and Lady Humphreys have explained the different approaches and situations of the devolved Administrations, thereby demonstrating the need for a sensitive approach from Ministers. I particularly welcome the reference by the noble Baroness, Lady Ritchie, and my noble friend Lady Suttie to the application of the Bill in Northern Ireland. Because of the situation there, we discuss the Administration far too infrequently, and that issue needs to be addressed.

On Amendment 117, to which I have added my name, I am very grateful to the Minister for his recent letter which specified that any REUL to be extended will need to be specified by its full title or by “specifying a description”. That phrase is not defined in the Bill, which means it is another thing that has been left to the judgment of Ministers; indeed, the Minister’s letter actually uses that phrase, saying that it will be left as “a judgement for Ministers”. It says that this description

“could encompass a description of legislation in scope of the Common Frameworks”

and gives the example of common frameworks relating to food and feed safety. That is extremely helpful information for those of us who have been members of the Common Frameworks Scrutiny Committee for some years.

By logical progression, am I right to assume that Ministers could decide to include all common frameworks in one umbrella description in the Bill, or to provide a list of all the agreed common frameworks? Surely, that is the logical conclusion. There are very good reasons to do that. First, it would end the unnecessary uncertainty caused by the Bill and the economic damage it is doing to industries in Britain. Secondly, there can be no clusters of legislation that have been more thoroughly and comprehensively—and very recently—looked at than those subject to common frameworks. They have been subject to scrutiny by all four nations of the UK and by a wide variety of stakeholders. All those clusters have been deemed by the UK Government and by the Administrations in the devolved nations to be up to date and fit for purpose. The Minister has said that that was the reason why some legislation might need to fall, and we would all understand that, but it does not apply to the legislation subject to common frameworks. If something unforeseen arises, there is a mechanism to resolve disputes.

There is no doubt that this legislation is not fit for purpose. The UK Government have nothing to fear because they have the last word on common frameworks and have led the process of establishing them. So I urge the Minister to table amendments on Report that clarify the future place of common frameworks and that specify which ones will be exempt from the sunset.

I have one other thing to probe. In his letter, the Minister used the example of food safety legislation. The extensive catalogue of this has grown since the 19th century. Back then, lead was put in Red Leicester cheese to make it red, copper was put in butter to make it yellow, and chalk and water were put in milk to make it go further. Even if the food was kept in normal circumstances, those normal circumstances were often so poor that it went off and made people seriously ill or killed them. We have moved on from that to a vast catalogue of food safety legislation, but we are still nowhere near perfection or peak knowledge on food safety. Our understanding improves all the time. Recently, there has been research showing that there are plastic particles in bottled water. That is something that we did not understand a couple of years ago. We do now.

Can the Minister tell us how further regulations on food and upgrading regulations on food will be viewed by the Government? Will it be regarded as an additional burden on business? Will it be regarded as increasing regulatory burdens and therefore be excluded by the Bill? If we are not allowed to update our legislation, surely we will lag behind. We will be the country that still has the substandard plastic bottles, just as we would be the country with cars that are less fuel-efficient and toys that are more dangerous, to take examples from earlier debates.

On Amendments 135 and 143 in the name of the noble and learned Lord, Lord Hope, which I support, I refer to the fourth report of the Procedure and Privileges Committee, which followed up on the Constitution Committee’s report of January 2022. That report recommended that we in the House should give greater prominence to legislative consent Motions. The Procedure and Privileges Committee has now agreed to a very welcome and comprehensive process for reporting the decisions of devolved Administrations on LCMs and situations where the UK Government have not sought consent but the devolved Administrations have given or withheld it. This is significant because, as my noble friend has said, in the last few years there has been a huge erosion of the 1998 decision that the UK Government would not normally legislate in matters within the competence of a devolved parliament without its consent. It used to be the case that the Government went to enormous lengths to take the Sewel convention into account. That has been eroded, to the great detriment of good relationships across the UK. This Bill does nothing to improve relationships.

I fully support those amendments tabled by the noble and learned Lord, Lord Hope, which seek to restore a small part of the devolved powers that have been undermined by the Government in recent years. Those amendments and the recent decisions of the Procedure and Privileges Committee will make it more difficult for us to remain unaware of the views of the devolved Administrations.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will add a brief word on two of the amendments, because I agree with everything that has been said but do not wish to prolong the debate. I wish to say something about Amendments 135 and 143 as, in my view, they go to the spirit of the union. I know that the noble Baroness the Minister has done much to try to ensure that we are governed in a union where there is respect and equal treatment. I thank her very much for that. I also welcome the attitude of the Prime Minister, which is in complete contrast to that of the last but one Prime Minister.

The spirit of the union is encapsulated in both these amendments. First, on Amendment 135, if something is devolved, please get consent. That seems a matter of ordinary courtesy that strengthens the union. It is not a big ask. Secondly, on Amendment 143, why should the Welsh and Scottish Ministers not have the same powers? The answer was given by the noble Lord the Minister to a similar question I raised. Although the Government may not say what they are going to do, I very much hope that they look at these amendments as showing a determination to govern our union in the spirit of co-operation, equality and respect.

[Baroness Crawley (Lab)]

My Lords, I support this group of amendments, particularly, as a member of the Common Frameworks Scrutiny Committee, Amendment 117, which tries to tease out the application of common framework agreements to retained EU law and how they will be impacted by the Bill. These frameworks work right across the devolved Administrations, as noble Lords have said, and are underpinned by retained EU law. As my noble friend Lady Andrews has said during Committee, that underpinning is a cat’s-cradle of hundreds if not thousands of complicated and interrelated SIs. How much instability will the Bill, and its obvious legal uncertainties, bring to the common framework agreements between the devolved Administrations?

The noble Baroness, Lady Neville-Rolfe, wrote to the noble and learned Lord, Lord Thomas—and to all of us, in fact—to answer several questions. We appreciate that. One of the questions was on methodology. What competence do the UK Government have to affect the methodology of seeking retained EU law within the devolved Administrations?

Agriculture Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage & Committee: 6th sitting (Hansard) & Committee: 6th sitting (Hansard): House of Lords
Thursday 23rd July 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

I welcome government Amendments 209 and 262, to Clauses 32 and 37, in particular. Agriculture is self-evidently one of the prime examples of where we must get right the legislation and other arrangements for the interrelationship of the powers of the devolved Governments of Wales, Scotland and Northern Ireland and the powers of the Westminster Government, first, in respect of England and, secondly, in respect of the United Kingdom as a whole—I think we frequently fail to make that distinction of the two distinct hats that the Westminster Government wear and it is important to bear them in mind. As a firm supporter of the union, I consider it vital for the strengthening of the union and the removal of the risks to it that we consider these issues most carefully. In this Bill, as agriculture is plainly one of the areas where serious tensions can arise, whether it be in relation to food standards or the extent of subsidies, it is vital that we do so.

It is of course a great pity that we come to this so late in our planning for Brexit, as this has been an obvious area for debate and for reaching decisions long before now. The noble Baroness, Lady Finlay of Llandaff, the noble and learned Lords, Lord Hope of Craighead and Lord Wallace of Tankerness, and the noble Lord, Lord Wigley, have already spoken powerfully on issues relating to the devolved Governments. The noble Lords, Lord Hain and Lord Thomas of Gresford, have compellingly explained the need for long-term and fair financial arrangements.

I wish briefly to make three points. The first is the importance of respecting devolved competence in legislation. I welcome the amendments put forward by the Minister, who understands the importance and sensitivity of devolution. It is reassuring to hear him make it clear that the Government remain wholly committed to seeking legislative consent for all the provisions that engage the scope of the convention in Scotland, Wales and Northern Ireland. I just wanted to be sure of the correctness of my understanding of why the devolved Governments requested the amendments and the reasons why Her Majesty’s Government have brought them forward.

Am I correct in understanding that the Bill as introduced did not properly recognise the important principle that legislation by the UK Government to apply in the devolved nations but within the devolved competence should be made only with the consent of the devolved Governments or their legislatures? It is regrettable that, at the time of the decision made on the EU withdrawal agreement, legislative consent was not obtained. That is water under the bridge, but it was made clear then that that was a truly exceptional occasion. In view of the confirmation given by the Minister in introducing the government amendments, I hope that he can confirm the Government’s commitment that they will not in future present legislation to the House that does not respect the principle of requiring the consent of devolved institutions for any UK legislation that could be made by legislation within the devolved Parliaments. It is important to the way in which devolution is to operate and the strength of the union that there be such a commitment.

My second point—and I can be brief about this—is about moving forward on the frameworks. It is clearly highly desirable that there be agreement between the different Governments on matters on which there can be a common approach and an agreement of where there can be differences or divergence of the kind of which the noble Lord, Lord Thomas of Gresford, spoke. As I understand it, that is the objective of these frameworks. I therefore welcome the statements made on a number of occasions by the Minister that good progress is being made. The matters to be covered will be extensive and it is important to bear in mind that this is not, as I understand it, a consultation exercise by the UK Government but an attempt to reach agreement. I therefore look forward to their publication and hope that the Minister can update us as to when this is to happen.

There is one other matter why publication is important and that is the dispute resolution mechanism that must be inserted into a framework agreement. It is inevitable that there will be disagreements—I hope that they will be small—but the difference between a framework and a consultation, ultimately, is that if there is a framework, there must be a means of resolving differences, whereas, in a consultation, the decision is ultimately made by the person who consults.

Thirdly and finally, there is the need for a coherent constitutional approach. I warmly support the principles behind Amendment 290, in the names of the noble Baroness, Lady Jones of Whitchurch, and the noble Lord, Lord Thomas of Gresford, and Amendment 291, in the names of the noble Lords, Lord Wigley, Lord Bruce of Bennachie and Lord Thomas of Gresford. An alternative is now being canvassed, which is the provisional views put forward in the paper on the internal market. It will obviously be necessary to turn back to this in the long period between September and Christmas. However, it is important now to point out that the imposition of a policy ultimately determined to be in the interests of by far the biggest and most powerful of the four nations is not the way to ensure the preservation of the union. This constitutional issue will have to be a matter for debate and it will have to be debated in the context of agriculture, as it is so important in that area. I therefore look forward to the development of proposals over the summer, because this urgent matter cannot wait longer. If the union is to be strengthened and preserved, positive steps on this are far more likely to achieve that preservation than other action being taken.

[Baroness Humphreys (LD) [V]]

My Lords. I will comment briefly on government Amendments 209, 261, 262 and 268, which I welcome. These amendments cover the areas of outstanding concern to the Welsh Government. They acknowledge their devolved competence and were included at their request.

Amendment 209 deals with an issue that I raised at Second Reading: how the new body created to oversee the identification and traceability of animals would operate in an area of devolved responsibility, particularly if that body was seen to be an English board. That the new body would need to seek the approval of Welsh and other devolved Ministers or institutions is now certainly welcomed.

Amendments 261 and 262 ensure that the consent of the Ministers of the devolved Administrations must be obtained before making cross-border regulations in relation to organic products. I am pleased that the responsibility of the devolved Administrations has again been recognised.

Amendment 268 covers an issue that, again, I raised at Second Reading. By the removal of the powers of the Secretary of State to make regulations in the area of the WTO’s Agreement on Agriculture, this amendment ensures that the rights and responsibilities for implementing international agreements remain with the devolved Administrations.

I welcome all these amendments, as they conclude the process by which the Welsh Government have asserted their competence in these areas. However, I express some disappointment in the fact that there was a need for this process at all. Earlier in this debate, the noble Baroness, Lady Finlay of Llandaff, in her powerful and comprehensive speech on these amendments, described the Government as seeking, in effect,

“to strong-arm the devolved Governments into giving up elements of their executive competence”.—[Official Report, 21/7/20; cols. 2193-94.]

I agree with her sentiments and am pleased that that has been avoided by the Government tabling these amendments, and that the competence of the devolved Governments will now be reflected in the Bill.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I call the noble Lord, Lord Bruce of Bennachie. No? I call the noble and learned Lord, Lord Thomas of Cwmgiedd, after which we will return to the noble Lord, Lord Bruce.

[Lord Thomas of Cwmgiedd [V]]

My Lords, I wish I had the privilege of following the noble Lord, Lord Bruce, but I will be brief, in view of the lateness of the hour. I support Amendments 255, in the name of the noble and learned Lord, Lord Hope of Craighead, and 263A, in the name the noble Baroness, Lady Finlay of Llandaff. The noble and learned Lord has clearly analysed the issues that need to be addressed in relation to the interrelationship of the Bill with the internal market proposals. The noble Baroness has eloquently spelled out the consequences of our failing to deal with that properly. Both amendments, therefore, are examples of what needs to be done if we are to respect the devolution schemes or change them to make them work better. Again, I pay tribute to the Minister’s efforts in this respect in relation to agriculture.

We must now concentrate on two matters. One is the way in which the internal market is to operate in relation to agriculture; the second is the structures needed. It is too late to begin on the internal market tonight, but I urge that when we return in September to consider the Bill on Report, we are in a position to look at the interrelationship of the Bill with the provisions to be put forward on the internal market. Also, as the noble Lord, Lord Wigley, spelled out so clearly earlier, we must have something to look at on the structures that are necessary to make this work. If we fail to do so, even at the eleventh hour, the consequences for the union will be dire indeed.

[Lord Bruce of Bennachie (LD) [V]]

I am not sure what happened there, but I am glad noble Lords can now hear me. I shall speak to Amendment 255, in the name of the noble and learned Lord, Lord Hope, which I would have signed had there been space to do so, and Amendment 263, in the name of my noble friend Lord Tyler, which I have signed, along with my noble and learned friend Lord Wallace of Tankerness and the noble Lord, Lord Holmes of Richmond. We have already had an important debate on devolution with specific reference to devolved issues throughout the Bill, and I very much appreciate the clear and valuable case made by the noble and learned Lord, Lord Hope, in Amendment 267, which I have also signed.

Amendment 255 requires the Secretary of State, when making regulations for England, to consult the Scottish, Welsh and Northern Ireland Administrations and bodies that represent the UK farming industry. The scope of these regulations is a extensive and detailed, covering every aspect of agricultural production, processing, packaging, standards and distribution. Any significant changes could be very disruptive to the UK single market if it means divergence from practices in parts of the United Kingdom outside England.

Livestock production is more prominent in the devolved areas, especially in the more prevalent and less favoured upland farms. As I have pointed out in previous contributions, England is the main market for much of the produce from farms in Scotland and Northern Ireland. It matters, therefore, to Scottish and Northern Irish producers, that any changes to established practice and procedure do not interfere with farming methods and costs for non-English producers.

It also matters to English consumers if it disrupts or increases the costs of supply for markets to England. It would be invidious to single out individual companies, but I can think of a number in my part of Scotland whose main markets are in the south. The products are high-quality and well-received; indeed, the fact that the ingredients are sourced from quality Scottish farms is a key part of the branding. I hope that English Ministers would resist any measures deliberately designed to disadvantage farmers in the devolved areas, but lack of consultation could do damage unintentionally, to the detriment of producers and consumers throughout the UK.

Turning to Amendment 263, which I was pleased to sign, there can be no doubt that the protection of traditional speciality food and drink products delivers comparative advantage, which is of huge importance to our terms of trade. There are many parts of the world where the only visible expression of UK brands is Scotch whisky—where that is all you would know about the United Kingdom. It is one of our leading exports, if not the leading one. But there are many products that are distinctly British and that benefit from GI protection; so, are the Government resisting maintaining reciprocal GI arrangements, and if so, can the Minister explain why? The suggestion that EU GIs can be replaced by a domestic regime puts exports in an invidious position. Are there products from the EU 27 that the UK Government want to deny GI to? Do we want the freedom to designate English sparkling wine as champagne?

Over the years, battles have been fought to secure GI designation. Why should we now throw it to the winds? If we refuse to recognise established EU GIs, and it creates a conflict between our brands and theirs, it will sour the entire trade relationship. I support my noble and learned friend Lord Wallace of Tankerness and his powerful analysis of what the consequences would be. I urge the Government to accept this amendment.

Fisheries Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 11th February 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I support the Bill for many of the reasons already given and will not repeat them. However, there is one point for which I thank the Minister: the evident hard work undertaken by his department in seeking co-operation with the devolved Governments in the drafting and framework of the Bill.

There are three matters, however, on which I should like briefly to touch. First, as reflected in the debates on the withdrawal agreement Act, it is essential that the devolved Administrations are involved in a meaningful and systematic way in the negotiations. I am sure, in the light of the assurances given by Ministers then, that this will happen. However, it will be important to check from time to time that it is happening. It would not be good for the future of the union if we went into negotiations when there was not the greatest possible degree of consensus between the devolved nations, given their responsibilities proposed under the Bill.

Secondly, it is important that every attempt is made to reach a consensus on the position that the United Kingdom Government will take on their negotiations with the European Union and any other states or organisations. It would be a serious matter if the Secretary of State was put in a position where he had to exercise the powers under Clause 23 to force the devolved Administrations to alter their policies, unless every possible attempt had been made to reach a common negotiating position.

Thirdly—a point made by the noble Lord, Lord Hannay, and the noble Baroness Lady Young, whom it is a privilege to follow—the Bill is lacking much detail, particularly regarding how the policies are to be agreed between the various Governments and legislatures. It would be far better, sooner rather than later, to spell out the mechanisms that are intended to be deployed to try to reach consensus, to say what is to happen if there is not consensus, and to do everything possible to reach common policies. Furthermore, it may well be that the fisheries sector and the way it emerges from the frameworks will have an effect on the internal market. Therefore, I suggest that it is important that we address the issue now and see what the picture is, rather than leave it until months or years later.

No doubt many of these issues will require discussion in Committee but it is important that they are grappled with now, because they go to the maintenance and strength of the union.