Brexit

Lord Wallace of Tankerness Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, these Benches also welcome the debate. A benefit of the purported Prorogation being nullified is that we are able to hold the Government to account on this crucial issue, at such a crucial time—just 29 days before the date, set back in April, for the further extension of Article 50. Donald Tusk was reputed to have advised the United Kingdom not to waste this time.

Today we have learned, and have heard from the noble Lord, Lord Callanan, that the Prime Minister has made what was being trailed this morning as his final offer. It could equally be described as his first offer. We will have to study this in detail. If one looks, for example, at the suggestion that it provides for the potential creation of an all-Ireland regulatory zone on the island of Ireland, it might appear that the Government’s attempt to get around the border problem is to create two borders. Maybe that is why the Prime Minister has the idea of a bridge between Scotland and Northern Ireland—so it can have a regulatory checkpoint half way across.

The Irish border has been a real difficulty ever since Theresa May set out her mutually contradictory red lines: out of the single market, out of the customs union and no hard border on the island of Ireland. The last of these commands widespread support, but the first two amounted to acquiescence to the right wing of the Conservative Party. It treated the outcome of the referendum as if it had been 95:5 and not 52:48. It was in the interest of holding her party together, rather than the national interest. In December 2016, the European Union Select Committee of your Lordships’ House, in its sixth report, said:

“Retaining customs-free trade between the UK and Ireland will be essential if the current soft border arrangements are to be maintained … Nor, while electronic solutions and cross-border cooperation are helpful as far as they go, is the technology currently available to maintain an accurate record of cross-border movement of goods without physical checks at the border”.


That conclusion of the Select Committee has stood the test of time.

Clearly what we have been seeing today will require analysis, but the real concern with any infrastructure, whether at the border or 10 miles removed from it, is that we will see a reversal of the gains of the Good Friday agreement. It will significantly disrupt all-Ireland trade, as well as impact local communities. When the Minister replies, can he confirm that the proposals that have been submitted to the European Commission today would, if carried through, mean there will be no need to amend Section 10 of the European Union (Withdrawal) Act 2018 at all? It says that:

“Nothing in section 8, 9 or 23(1) or (6) of this Act authorises regulations which … create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature physical infrastructure, including border posts, or checks and controls, that did not exist before exit day and are not in accordance with an agreement between the United Kingdom and the EU”.


It is important to get that reassurance.

The immediate priority of my party—indeed, of many—is to ensure that the United Kingdom does not crash out of the European Union on 31 October, without a deal. That is why we wholeheartedly supported the legislation promoted in your Lordships’ House by the noble Lord, Lord Rooker, which is now the European Union (Withdrawal) (No. 2) Act 2019. That has sometimes been traduced as an attempt by remainers to frustrate Brexit in its entirety. It is worth pointing out that that Bill was supported by both remainers and leavers. It is fair to say that, in the House of Commons, there were ex-Cabinet Ministers who had voted for the leave agreement more often than the Prime Minister himself had. Therefore, it is wrong to characterise it as being a device or ploy by remainers to frustrate Brexit. It was intended to frustrate Brexit without any deal, which is an important distinction.

When questioned last Thursday, the Minister—as picked up by the noble and learned Lord, Lord Goldsmith —said that the Government would obey the law, but refused to say what the Government understood the law to be. I very much hope that the very detailed analysis the noble and learned Lord has given will be fully responded to by the Minister.

We oppose no deal because, while we believe that leaving the EU at all on any terms would be damaging to jobs, the National Health Service, small businesses, farmers, the aspirations of our young people, to others and to our prosperity, we believe that crashing out without a deal, as foreshadowed in Operation Yellowhammer, would inflict serious damage indeed, not least on the most vulnerable members of our society. Serious job losses, the anxieties of cancer patients, bleak prospects for rural farmers: these were never displayed on the side of buses during the referendum campaign. Indeed, in April 2016, just two months before the referendum, the now Foreign Secretary, Dominic Raab, said on the BBC’s “Daily Politics” that,

“the idea that Britain would be apocalyptically off the cliff edge if we left the EU is silly”.

In March this year, in a newspaper article, Mr Michael Gove said that,

“we didn’t vote to leave without a deal. That wasn’t the message of the campaign I helped lead”.

There is no mandate whatever for leaving without a deal.

In his remarks, the Minister said that the Government have ramped up no-deal preparations. We had a Statement last week on Operation Yellowhammer on the dire consequences of a no-deal Brexit, and the publication of a document about which the First Minister of Scotland, Nicola Sturgeon, said she could see no difference from the one she had previously seen, except that what had previously been described as a “base scenario” had now been changed to “worst case scenario”. But can the Minister tell us about some of the other operations we believe the Government have prepared briefings and detailed analysis of, such as Operation Snow Bunting—the policing response in the event of a no-deal Brexit?

On the subject of policing, will the Minister comment on evidence given yesterday to the Justice Committee of the Scottish Parliament, in which the deputy chief constable of Police Scotland was reported in the Times as having said that Police Scotland has been denied access to sensitive plans to handle civil disruption after Brexit? He said:

“We have, frankly, at times struggled to access some of the more sensitive elements, or layers, of those planning assumptions … Some of those planning assumptions have tended, at times, to be quite London or south of England-centric, and we’ve been constantly reinforcing the different legal and constitutional arrangements in Scotland”.


It would be very helpful if the Minister could tell us what attempts have been made to address these concerns expressed only yesterday by the deputy chief constable of Police Scotland.

We are told that there is an Operation Kingfisher—a bailout fund to prop up businesses in the event of a no-deal Brexit; and an Operation Black Swan, a worst- case disaster scenario for surprise events with huge repercussions. Can the Minister give us more details of these contingency planning analyses, which we understand are going on within the Government but they are not being totally open about? Are they planning to have any other birds? One could speculate whether Operation Emu might be for a plan that will not fly.

At the time of the attempted Prorogation, a number of pieces of legislation had not been completed. The Queen’s Speech that started this Session back in June 2017 foresaw,

“legislation to ensure that the United Kingdom makes a success of Brexit, establishing new national policies on immigration, international sanctions, nuclear safeguards, agriculture and fisheries”.—[Official Report, 21/6/17; col. 5.]

How many of these Bills have actually been passed? What about the ones which have not? Are the Government saying, having thought that they were necessary to make a success of Brexit, that Brexit will not be a success because they have not passed them?

If one listened to the exchanges in the Supreme Court on the final day of the recent case, the Advocate-General for Scotland, the noble and learned Lord, Lord Keen of Elie, appeared to say that the Government had provided the court with an explanatory note on Brexit-related primary legislation not required for an exit date of 31 October. It would be very helpful, if that note exists—I understood that it was given to the court—if it could be placed in the Library so that we could see the Government’s analysis of legislation that has not been passed. In the event of an agreement being reached, can the Minister also tell us how quickly he thinks the implementation legislation could go through your Lordships’ House?

I have two concluding points. We are told constantly that the theme of the Conservative Party conference is, “Get Brexit done by 31 October”. That conjures up an idea that simply leaving with or without a deal is all that is required. Should that happen, people will very quickly realise that that is only the end of the beginning; that a new, and likely very long, phase of negotiations on our future relations with the European Union would ensue, even longer and more difficult were we to crash out without a deal. There is no sign that the Government have given any thought to the way forward, so what kind of public disillusionment will be created by the kind of simplistic sloganizing that does not bear out reality?

On these Benches, we believe that the best way forward is a people’s vote. Can any of us for one moment think that if the June 2016 result had been 52 to 48 the other way around Brexiteers would have said, “Fair cop, guv, we’re packing up our tents and we are going to quit the field”? Of course they would not. Painful though it would have been to have heard Bill Cash continue to go on, I would have respected the long-term and long-held beliefs of people who have opposed our membership of the European Union for a long, long time. Why, therefore, should not my colleagues and I be afforded a similar respect for the beliefs that we have held for a long time? Why should we abandon those views that we have held for decades? If there is not a people’s vote, we have said that we will campaign in a general election for a majority and a democratic mandate to revoke Article 50.

Brexiteers do not have a monopoly on patriotism. I believe passionately that the prosperity, security and the well-being of our country and the communities that we serve—and not least future generations—are best achieved by our continuing membership of the European Union. No one is going to deny our right to campaign for it.

--- Later in debate ---

[Lord Hamilton of Epsom]

The noble and learned Lord, Lord Goldsmith, is putting words in my mouth. I did not say anything improper. I just said that, considering the judiciary is completely divided on this issue, it was remarkable that all 11 members of the Supreme Court reached the same conclusion. The issue at heart was whether the business of proroguing Parliament was judiciary. The previous court had said it was not judiciary and the Supreme Court said it was. What has actually happened—

[Lord Wallace of Tankerness]

Will the noble Lord give way?

[Lord Hamilton of Epsom]

No. I have given way to so many people, and we are always being told that we cannot go beyond six minutes.

As everybody will know, the judgment of the Supreme Court alluded to the fact that a number of judgments had been made that had political connotations. This is a step much further: the Supreme Court making a political decision. What has the judgment that we could not prorogue Parliament actually resulted in? We have sat for another eight days while we go over all the old ground. One of the reasons we are where we are now is that Parliament is incapable of reaching any conclusion on what it should actually do about leaving the EU. Have we advanced any further by the fact that we have sat for longer? No, we have not. Have the Government been held to account? Well, on the margin, I suppose. Has it really made any difference to anything? No, it has not—for the simple reason that nothing is actually going to happen until the EU Council meets on 17-18 October. After that, of course, it will be decided whether the proposals we have put forward are acceptable, whether there is a deal to be put to Parliament and so forth. It is after the Queen’s Speech that the Government will have to be held to account, and very little has been achieved by Parliament sitting over all these extra days.

The real problem is that if the Supreme Court says, “We’re going to get into the business of not just interpreting but actually making the law, and we’re going to make political decisions when we do that”, as sure as night follows day, Parliament will say, “If the judges are going to make these political decisions, they must be appointed by Parliament”. That is what will happen if we go on down this road. What will happen? A Select Committee in the House of Commons will interview candidates for the Supreme Court. It will ask them about their political views: which way they voted in the last election, what their views are on social matters such as—

--- Later in debate ---

[Lord Callanan]

That is the political game as we all attach different names to it. The noble and learned Lord, Lord Goldsmith, also speculated on the use of the Civil Contingencies Act in relation to the extension. I assure the noble and learned Lord that there are no plans to use the Civil Contingencies Act in a no-deal scenario. I point noble Lords to the words of the Prime Minister on contingency powers. He said that,

“what we want to do is get a deal and there is no purpose in discussing the hypothetical scenario”,

around the Benn Act. Let me be clear and reiterate to all noble Lords, as I have said a number of times on this subject: we will of course obey the law.

[Lord Wallace of Tankerness]

Let me pick up this point. He said that of course we will obey the law. If the House of Commons has not agreed to a deal nor approved no deal by 19 October, does he accept that the law—which he says he will obey—means that the Prime Minister must seek an extension?

[Lord Callanan]

I am not going to get into providing interpretations of an Act that was not government legislation, which we advised against and which we said, in our view, had considerable deficiencies. These are matters for lawyers. It is ultimately for the courts to determine what the Act says and requires, so I will go no further, no matter how many times people intervene on me, than saying that we are going to abide by the law.

European Union (Withdrawal) (No. 2) Act 2019

Lord Wallace of Tankerness Excerpts

Thursday 26th September 2019 Lords Chamber

[Lord Callanan]

The noble and learned Lord is a distinguished lawyer. In fact, there are a lot of distinguished lawyers in this House. Some may say that there are too many, but nevertheless we have lots of distinguished lawyers and I am not a lawyer. I repeat yesterday’s statement that the law officers made in another place: we will always comply with the law. There are a lot of potential outcomes, and no doubt the Government will wish to consider them all carefully when it comes to it, but we will comply with the law.

[Lord Wallace of Tankerness (LD)]

My lords, the noble Lord has omitted to answer the question put by the noble and learned Lord, Lord Goldsmith, as to the Government’s view of the law. It is a perfectly reasonable question, so perhaps he will answer it.

[Lord Callanan]

I believe that I have answered the question. We are a law-abiding Government and we will abide by the law. We will always assess carefully the implications of that law, but we will always comply with it and the legal advice that the Government receive.

Extension of Article 50

Lord Wallace of Tankerness Excerpts

Wednesday 25th September 2019 Lords Chamber

Tabled by

[Lord Wallace of Tankerness]

To ask Her Majesty’s Government what is their policy on the extension of Article 50.

Further Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Wallace of Tankerness Excerpts

Wednesday 27th February 2019 Lords Chamber

[Lord Callanan]

Many serious consequences will flow from leaving with no deal, but we do not want to leave with no deal. If the noble Lord is so convinced of the need to leave with a deal, perhaps he could talk to his colleagues in the House of Commons and ask them to vote for the deal that is on the table.

[Lord Wallace of Tankerness (LD)]

The Minister has just said that the Government are planning for all eventualities. If the House of Commons has a vote on 13 March on whether to support no deal, what would the Government’s position be in that eventuality?

[Lord Callanan]

Does the noble and learned Lord mean if the House of Commons votes to support no deal?

[Lord Wallace of Tankerness]

If the House of Commons has a vote on whether to support no deal or not, what will the position of the Government be?

[Lord Callanan]

That is a very good question. I will leave my colleagues, the Whips in the House of Commons, to determine that. I suppose it will depend on what the Motion says and the results at the time.

Yesterday, we published a paper that summarises government activity to prepare for no deal as a contingency plan and provides an assessment of the implications of a no-deal exit for trade and for businesses, given the preparations that have been made. More information for businesses and citizens can be found on the Government’s exit website.

Yesterday, my right honourable friend the Prime Minister set out three clear commitments to the other place that should provide reassurance and clarity about the way forward:

“First, we will hold a second meaningful vote by Tuesday 12 March at the latest. Secondly, if the Government have not won a meaningful vote by Tuesday 12 March, then they will, in addition to their obligations to table a neutral, amendable motion under section 13 of the European Union (Withdrawal) Act 2018, table a motion to be voted on by Wednesday 13 March, at the latest, asking this House if it supports leaving the EU without a withdrawal agreement and a framework for a future relationship on 29 March. So the United Kingdom will only leave without a deal on 29 March if there is explicit consent in this House for that outcome.


Thirdly, if the House, having rejected leaving with the deal negotiated with the EU, then rejects leaving on 29 March without a withdrawal agreement and future framework, the Government will, on 14 March, bring forward a motion on whether Parliament wants to seek a short, limited extension to article 50, and, if the House votes for an extension, seek to agree that extension approved by the House with the EU and bring forward the necessary legislation to change the exit date commensurate with that extension. These commitments all fit the timescale set out in the private Member’s Bill in the name of the right hon. Member for Normanton, Pontefract and Castleford”.—[Official Report, Commons, 26/2/19; cols. 166-67.]

Brexit: Preparations and Negotiations

Lord Wallace of Tankerness Excerpts

Monday 23rd July 2018 Lords Chamber

[Baroness Hayter of Kentish Town]

Have a bit of humour. I am saying, a handful of rogue Labour votes, and some dubious—

[Lord Wallace of Tankerness (LD)]

It is very clear that those Lib Dem votes would not have made a difference. How many Labour Members voted with the Government?

[Baroness Hayter of Kentish Town]

That is what I have just said. I called them rogue Labour votes. Clearly, the Minister did not help here. There was also some dubious government whipping—just in case noble Lords think anyone was left out.

And it is a White Paper unacceptable to the Opposition, being grounded on flawed facilitated customs arrangements, an absence of migration clarity, inadequate plans for services and a failure to guarantee the Good Friday agreement. Apart from that, it is pretty good.

Why is it so unacceptable? First, of course, it is based on a fallacy; secondly, it is devised to satisfy a divided Conservative Party rather than satisfy UK plc; and, thirdly, because some think that the talk of no deal will somehow bring everyone on board, yet pretending to threaten a no deal, which could cost households £1,000 and see an 8% drop in GDP—twice that in the north-east—is nonsensical if the Conservatives ever want to win an election again. Crashing the economy would never be forgiven, not just by workers and consumers but by business, the City and manufacturing, which have of course traditionally trusted the Tories to manage the economy in the national interest. Borrowing the words of a former Prime Minister from the party that took us into Europe and who herself wanted the single market, “No, no, no”—no deal is not an option, so we should stop being diverted by it.

For all the positives—and there are some, in the common rulebook, a role for the ECJ, which the noble Lord, Lord Campbell, has just mentioned, and a catalogue of issues almost lifted from the reports of our EU committees—the White Paper is based on the fallacy that there are profitable and exciting markets across the globe, currently closed to us, which would magically open the moment we left the EU. The notion that we are leaving in favour of some wondrous US trade deal better than we have with our nearest 500-million strong market, as well as the 57 agreements that we have through the EU, just does not hold water. It is a fantasy that we 60 million can negotiate better than the EU’s half a billion.

European Union (Withdrawal) Bill

Lord Wallace of Tankerness 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 Wallace of Tankerness Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Baroness Goldie (Con)]

My Lords, I am pleased to move this group of amendments as the final piece—to use the analogy of the noble Lord, Lord Griffiths—of the devolution jigsaw puzzle in this Bill. The amendments in this group all relate, in different ways, to the scrutiny that the devolved legislatures will apply to the delegated powers for devolved Ministers in Schedules 2 and 4 to the Bill.

It is right that in conferring powers on devolved Ministers, the Bill should also provide for how they will be scrutinised. It would be irresponsible not to do that. We cannot confer powers and then make no provision for legislative scrutiny whatever. However, the Government recognise that the scrutiny of powers is ultimately a question for the legislature undertaking that scrutiny and the Administration being scrutinised. That is why the Bill consciously preserves the competence of the devolved legislatures, under the respective devolution statutes, to amend those parts of the Bill that make provision for scrutiny of devolved delegated powers. It is why we have sought the views of the legislatures and the devolved Administrations on the appropriate scrutiny arrangements, and these amendments reflect that engagement.

Amendments 69D, 72ZC, 78C and 115A allow for the “made affirmative” urgent scrutiny procedure to be used by devolved Ministers making regulations under their Schedule 2 powers. This was not included in the Bill as originally drafted because it is not a standard procedure in Edinburgh, Cardiff and Belfast. However, we have confirmed with the devolved institutions that this procedure is acceptable and that it should be available to devolved Ministers for the same reasons of urgency as it will be available to UK Ministers. These amendments will achieve that.

Amendments 69C, 70C and 77E provide for the “sifting committee” procedure to apply for negative procedure instruments laid by Welsh Ministers under their Schedule 2 powers. The National Assembly for Wales and the Welsh Government have both confirmed that this procedure should apply to the Welsh Ministers. These amendments would therefore apply the same procedure as currently applies in the Bill to UK Ministers.

Noble Lords will appreciate that there are very specific arrangements for committees in the Northern Ireland Assembly and this relates to the structures of power-sharing within the Northern Ireland devolution settlement. In that context it would not be appropriate for this procedure to apply, so we have not included it in the Bill. The Scottish Government have informed us that they and the Scottish Parliament wish to apply some form of sifting arrangement to the Schedule 2 power. However, their intention is to undertake this by means of their own legislation. As I have said, the Bill preserves the competence of the Scottish Parliament to legislate on this matter.

[Lord Wallace of Tankerness (LD)]

My Lords, I want to clarify what the Minister has just said. When she said that the Scottish Government and the Scottish Parliament wish to do it by their own legislation, is that their Continuity Bill, which is currently before the Supreme Court? If it is, what happens if the Supreme Court strikes it down, or maybe some other piece of legislation they bring forward?

[Baroness Goldie]

That is a reference to this Bill preserving the competence of the Scottish Parliament to legislate on that matter. I understand that it would have to make legislation within the competence of the Parliament. As the noble and learned Lord will be aware, the UK Government question the competence of the continuity legislation. That, therefore, as far as I am aware, is a completely separate issue and not what I was referring to.

Amendments 83KA, 83P, 83LA, 83MA and 112B require the Scottish Ministers to make the same explanatory statements when exercising the powers, under this Bill or when amending regulations made under Section 2(2) of the European Communities Act, that UK Ministers must make when exercising their powers. I will not stray into greater detail on each of these statements, as we have debated them at length already. I will, for the sake of clarity, remind noble Lords that this obligation to explain comprises seven elements. The first is a “good reasons” statement; the second is an equalities statement; the third is a statement explaining the purpose and effect on retained EU law of the instrument; the fourth is a statement of urgency when using the made affirmative procedure; the fifth is a “good reasons” statement when using any delegated powers to amend ECA Section 2(2) regulations; the sixth is, where appropriate, a statement of the “good reasons” for creating a criminal offence, and of the sentence attached; and the final one is, where appropriate, a statement to explain why sub-delegation of the power is appropriate. As is the case where a UK Minister sub-delegates the powers, there will also be a duty on the authority to which the power is delegated to then lay before the Scottish Parliament an annual report on the exercise of the sub-delegated power, if exercised that year.

Finally, Amendment 83AC makes a straightforward provision to clarify that the duties on UK Ministers to make explanatory statements when exercising powers under the Bill will apply when exercising the Schedule 2 powers jointly with a devolved Minister. A purpose of joint exercise will allow greater scrutiny by requiring instruments to be considered by this Parliament and the relevant devolved legislature. It would not, therefore, be correct for Parliament to receive less information in relation to the instrument than it would have received if the UK Minister had been acting alone, and this amendment clarifies that this will not be the case. The duty will not extend to devolved Ministers, but the statements, as with the instrument, will be the joint product of both Administrations. The statements, in being made available to Parliament, will also therefore be available to the devolved legislatures, and the relevant devolved Administration can choose whether to lay this alongside the joint instrument.

I hope that noble Lords will recognise these amendments for what they are: they are positively the product of our continued and sincere engagement with the devolved institutions. I also hope that your Lordships will welcome the steps this takes to respond to calls in this House and in other places for greater scrutiny of delegated powers. I beg to move.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I support the amendments moved and spoken to by the noble Lord, Lord Low. He set out the case extensively as to why these amendments should be made. I also echo his thanks to the noble and learned Lord, Lord Keen of Elie, for discussing them with us in what I found to be a useful and constructive meeting.

The first point I wish to raise is in relation to Amendment 83A, which seeks to take out the reference to,

“section 7(1), 8 or 9”,

and insert “this Act”. Can the Minister clarify in responding whether the Government’s Amendments 83AA, 83AB and 83AC will meet the purpose of that amendment? Our main concern had been that the original Bill, as it stood, put requirements on the Government with regard to what would have been Sections 7(1), 8 or 9—although Clause 8 has now been dropped from the Bill—but we were also concerned that Clause 17 had wide powers, to which the requirements under this part of Schedule 7 did not apply. It would appear that Amendment 83AB extends to Clause 17(1), which I think would go a long way, and Amendment 83AC to other parts in Schedule 2. I seek confirmation that that would now include all parts of the Bill when it becomes an Act, as in our amendment, which might be relevant to the requirements made under paragraph 22 of Schedule 7.

I make a further point in relation to Amendment 83E, which would require the Government—or the Minister in tabling regulations—to be,

“satisfied that it does not remove or diminish any protection provided by or under equalities legislation”.

As the noble Lord, Lord Low, indicated, the origin of much of this is a report from the Women and Equalities Select Committee in the other place which recommended that the Bill should explicitly commit to maintaining current levels of equality protection. In response, the Government tabled amendments in the Commons, the effect of which is that the Minister has to make a statement that,

“so far as required to do so by equalities legislation”,

the Minister had,

“had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010”.

That merely repeated what was already a matter of law, so it did not take us much further. This amendment would require the Minister to make a much wider statement that the proposed regulation,

“does not remove or diminish any protection provided by or under equalities legislation”.

I understand that that is the Government’s intention. It is their politically declared intention, and this amendment makes that a requirement.

When we discussed this with the Minister we agreed that the fact that Ministers are required to make statements under Section 19(1)(a) of the Human Rights Act focuses ministerial minds on whether a provision is compliant with the European Convention on Human Rights. We are saying here that, in terms of equalities legislation, ministerial minds should be focused when regulations are being brought forward so there is no diminution in any protection that it provides. That does not mean that there is a deliberate intent by the Government to diminish equalities legislation but means that people have to think about equality protection in bringing forward regulations, check right through and make sure that what is being done lives up to commitments that have been made. I cannot see any reason why Governments should be afraid of or concerned about this amendment. It merely seeks to give effect to the commitment that has already been made.

As the noble Lord, Lord Low, indicated, when we debated my Amendment 30, one of the objections of the noble Lord, Lord Callanan, was that the word “protection” did not have any statutory basis and therefore was not appropriate. He was possibly not aware that the Legislative and Regulatory Reform Act 2006 provides as one of the preconditions for the exercise of delegated powers under that Act that a provision,

“does not remove any necessary protection”,

so there is already a statutory basis for what we are proposing in this amendment, and therefore I support the amendment moved by the noble Lord, Lord Low.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am pleased to be able to speak in support of these amendments, to which I have added my name, especially as I was unable to speak in support of similar amendments in Committee because of another commitment. I am grateful to the noble Lord, Lord Low of Dalston, for his perseverance on this important issue. When I read the report of the Committee’s proceedings, I was pleased to note the warm words from the Minister, including his acknowledgment that the amendment looks very much like stated government policy, although he qualified that by arguing that the language of political commitment does not necessarily lend itself to the equalities statute book.

I am sure that no one would quarrel with that as a general proposition, but the body charged by Parliament with advising the Government on the equality and human rights implications of proposed legislation has drafted this amendment carefully to guard against such a weakness. I repeat the point made by the noble and learned Lord, Lord Wallace of Tankerness—that in particular the Minister objected to the use of the term “protection”, yet the EHRC points out that the term can be found in the Legislative and Regulatory Reform Act 2006 with regard to the use of delegated powers under that Act. It requires that a Minister must be satisfied that a provision,

“does not remove any necessary protection”.

Does that sound familiar? I imagine that is why the EHRC drafted this amendment in those terms.

The Minister also promised to take away for further consideration the point about the scope of the public sector equality duty, raised by the noble Lord, Lord Low, and also mentioned earlier today. The Minister described it as a constructive suggestion in order to bring further clarity to these parts of the Bill. It was thus very disappointing not to find the government amendment that would have brought this clarity, and I trust the Minister will explain why. I hope he will respond in particular to the EHRC’s injunction that:

“This must be rectified to ensure clarity and compliance with existing statutory duties”,


as the noble Lord, Lord Low, quoted earlier.

--- Later in debate ---

[Lord Callanan]

My Lords, I am grateful to the noble Lord, Lord Low, for his time and consideration on the important issue of how we maintain our equality protections as and after we leave the EU. I appreciate the discussions on this topic that he has had with the Bill officials and my ministerial colleagues. Before addressing the noble Lord’s Amendments 83A and 83E, the Government have reflected on our conversations with him, and today tabled amendments that will extend the statements regarding the Equality Act under Schedule 7 to SIs made under the consequential power in Clause 17(1).

This and other amendments we debated in Committee have sought to reflect in statute the political commitment that the Government have already made in this area—we will maintain the existing protections in and under the Equality Acts 2006 and 2010 after our exit from the EU. Following requests for assurances on this point in the debate in the other place, we tabled an amendment that will secure transparency in this area by requiring ministerial Statements about the amendment made to the Equality Acts by every piece of secondary legislation made under key delegated powers in this Bill.

The statements will, in effect, flag up any amendments made to the Equality Acts, and secondary legislation made under those Acts, while ensuring that Ministers confirm in developing their draft legislation that they have had due regard for the need to eliminate discrimination and other conduct prohibited under the 2010 Act.

As previously stated, the language of a political commitment does not translate to the statute book. So while our commitment to existing equality protections works perfectly well politically, and indeed in the wider world outside this place, these terms do not and could not have a sufficiently clear and precise meaning for the purposes of statute. These statements as tabled in the other place—

[Lord Wallace of Tankerness]

The Minister is repeating what he said in response to my Amendment 30. It was pointed out by me and the noble Baroness, Lady Lister, that the word “protection” has a statutory basis in the 2006 legislation.

[Lord Callanan]

I heard the point that the noble and learned Lord makes, but we are talking about the statements generally.

These statements, as tabled in the other place, applied only to Clauses 7(1), 8 and 9. The Government did not include other powers in this Bill because they are much more tightly constrained than those powers, and their exercise should not give rise to any amendments to the Equality Acts or any harassment, discrimination or other conduct prohibited under the Equality Act 2010. However, we have, as I said, reflected on this, and held discussions with the noble Lord, and we are happy to extend these statements to the consequential power in Clause 17(1). I hope that this will satisfy the noble Lord and that it will enable him to withdraw his amendment. However, this is not a matter on which we will be reflecting further before Third Reading. If he wishes to test the opinion of the House, he should do so now.

European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

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

[Lord Wallace of Tankerness (LD)]

My Lords, it was obvious from contributions at Second Reading and in Committee that this was a particularly thorny and sensitive issue. It is to the credit of the Government and not least to that of the Minister that they have been in listening mode and that a sensible arrangement has been reached. I heard what he said in response to the questions asked by the noble Lord, Lord Pannick, not least his affirmation of the independence of the judiciary. We have reached a satisfactory point. There is nothing I can usefully add. I will prove the point by not continuing to speak but by resuming my seat.

[Lord Spicer (Con)]

My Lords, I shall give a brief lay man’s perspective. Being brief, I shall follow the advice of the late Cecil Parkinson, who said to after-dinner speakers, “Get up, say you’re very proud to stand before them and sit down”. I shall be a little longer than that, but not very long.

I think that we can all agree on one thing: that pretty well all of us had a fixed view on Brexit before this Bill even reached this House. Tactics is a different matter. I am very interested in the remain tactics so far as the generality of the Bill is concerned; I shall come to the specifics in a moment. They seem to be along the lines of: “We absolutely agree that we are coming out—no, we’re serious; we agree we’re coming out—but we’re coming out to a new single market backed by a strengthened court in such a way that it is quite indiscernible that we have come out in the first place”. This debate is about the court and what part it is going to play in all this. I think that it is generally accepted that the court is not only very powerful but foreign—my noble and learned friend brilliantly summed up the foreignness of the law being introduced—and different. It is based on politics rather than on precedent in law.

I first came to this in 1992. On 3 June of that year, I tabled an Early Day Motion which started the rebellion against the Maastricht treaty, so I have some form. What is the relationship between a debate which was then concerned with the single currency and today’s debate and amendment? There is a close relationship with matters to do with the currency. As Henry VIII recognised, the currency is immensely important. “This Realm of England as an Empire” was all about changing our currency back to gain control over it. The currency is vital, and the question is what the relationship between it and today’s debate is. If we did not come out of the European Union, I would not rely on us retaining our currency and our control over it. It is unimaginable that the European court would decide to run a competitive trading arrangement with the one country left to manage its own economy. It is therefore of enormous importance not only to the future of this country but to this amendment.

We debated earlier whether it counts for anything that we have become so deeply embroiled in foreign law. I suppose that where I differ from lawyers is that I believe that there are things in politics that matter as symbols, even if the lawyers can prove otherwise. It is therefore vital that we kick out Amendment 21 today.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

30A: After Clause 6, insert the following new Clause—
“Equality and discrimination
(1) The purpose of this section is to ensure that the withdrawal of the United Kingdom from the EU does not diminish protection for equality in domestic law.(2) Rights under equalities legislation are not to be removed or diminished.(3) In this section “equalities legislation” means the Equality Act 2006, the Equality Act 2010 and subordinate legislation made under either of those Acts.(4) In any proceedings in which a court determines whether a provision of primary legislation is compatible with subsection (2), if the court is satisfied that the provision is incompatible it may make a declaration to that effect.(5) Subordinate legislation is not law if and to the extent that it is incompatible with subsection (2).(6) Subsection (5) does not apply to a provision of subordinate legislation if made in the exercise of a power conferred by primary legislation which prevents avoidance or removal of the incompatibility.(7) In any proceedings in which a court determines whether a provision of subordinate legislation is compatible with subsection (2), if the court is satisfied that subsection (6) applies the court may make a declaration of the incompatibility.(8) Section 10 of the Human Rights Act 1998 (power to take remedial action) applies in relation to a declaration of incompatibility under subsection (4) or (7) of this section as it applies in relation to a declaration of incompatibility under section 4 of that Act.(9) Section 19 of the Human Rights Act 1998 (statements of compatibility) applies in relation to compatibility with subsection (2) of this section as it applies in relation to compatibility with the Convention rights.”

[Lord Wallace of Tankerness]

My Lords, I beg to move Amendment 30A in my name and those of the noble Lord, Lord Low of Dalston, and the noble Baroness, Lady Lister of Burtersett. I know it also enjoys the support of the noble Lord, Lord Cashman. Today’s proceedings on the Report stage of the Bill started with a debate on the Charter of Fundamental Rights and we finish with a debate on equality and rights of a slightly different nature but no less important, albeit that the number of Peers in the Chamber does not quite reflect that. However, that is more likely to do with the time of day.

I put on record my thanks and those of the noble Lord, Lord Low of Dalston, to the noble and learned Lord, Lord Keen of Elie, who took time last week to meet us together with an official from the Equality and Human Rights Commission regarding the protection of equality rights after we leave the European Union. It was a constructive meeting but we nevertheless feel that this amendment remains necessary. It is often said that one of the three great promises is, “I am from the Government and I am here to help”. This is the other way around; although we are in opposition, we are here to help the Government. The Government themselves said in last year’s White Paper about what was then referred to as the great repeal Bill, but which has rather diminished in its title since then, that all the protections covered by the Equality Act 2006, the Equality Act 2010 and the equivalent legislation in Northern Ireland will continue to apply once the United Kingdom has left the European Union.

That is what we seek to secure by way of this amendment. The first subsection of the proposed new clause states:

“The purpose of this section is to ensure that the withdrawal of the United Kingdom from the EU does not diminish protection for equality in domestic law”.


The equality directives currently provide a set of minimum standards in relation to equality rights, and the requirements of these directives are reflected in the Equality Act 2010. It is fair to say that over the years there have been occasions when the European Union has set minimum standards and UK Governments of various descriptions have gone further than those standards, while on other occasions we have required the European Union, as it were, to push us along in securing equality rights. However, the primacy, as we have it today, of European Union law means that domestic laws implementing EU rights-enhancing directives, including those in the Equality Act 2010, cannot be removed while the UK remains bound by EU law, except by agreement at the EU level.

Those equality directives include the race directive of 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. The framework directive 2000/78 established a general framework for equal treatment in employment and occupation. The gender goods and services directive of 2004 implemented the principle of equal treatment between men and women in access to and supply of goods and services, while the recast gender directive of 2006 saw the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. In addition to these specific equality directives, also relevant is Article 157 of the Treaty on the Functioning of the European Union which establishes the principle of equal pay for work of equal value, something that has not been far from the headlines in recent weeks. The directives to which I have referred, together with Article 157, collectively provide a set of minimum standards of protection against discrimination at work on the grounds of racial or ethnic origin, sex, religion or belief, age, disability and sexual orientation. The race and gender goods and services directives provide protection against discrimination on the grounds of race and sex in accessing goods and services, while the race directive also extends to social protection and healthcare, social advantages and education. As I have said, the requirements of these directives are reflected in the Equality Act 2010.

However, despite the Government’s political commitment not to reduce these protections after the United Kingdom leaves the European Union, there is nevertheless a risk that without embedding the principle of non-regression within the Bill, these rights could be undermined in the future once the minimum standards set by EU law are no longer binding on the United Kingdom. For example, while the right to equal pay for work of equal value and many of our protections from discrimination cannot be removed while the United Kingdom remains part of the EU, they could be removed after we leave.

This matter was addressed by the Women and Equalities Select Committee in the other place. In its report published last February, the committee concluded that,

“ensuring protections are maintained is not simply a matter of transposing existing EU law. In order to protect rights, the Government needs to take active steps to embed equality into domestic law and policy. The steps we recommend would entrench equality into the UK legal and policy framework and would ensure that the UK retains a strong, undiminished record of equality after it leaves the EU”.

What we see in the Bill is a transposition of existing EU law. The Select Committee said that we had to go further than doing simply that and entrench equality in the United Kingdom legal and policy framework. This amendment was prepared in consultation with the Equality and Human Rights Commission and we believe it does just that by providing that existing rights under the Equality Acts 2006 and 2010 will not be removed or diminished. It sets out two mechanisms to do so, mirroring those in the Human Rights Act 1998, by requiring a Minister to state when new legislation is introduced to Parliament whether it is compatible with the requirement not to reduce existing protections, as well as by allowing UK courts to assess the compatibility of new laws with this requirement. We believe that this is in line with the recommendation in the Women and Equalities Committee’s report that there is a need to empower Parliament and the courts to declare whether legislation is compatible with UK principles of equality.

The proposed new clause would provide equivalent protections for equality rights after exit day as before because it replaces the foundation of the rights currently provided by EU law with an equivalent domestic underpinning. I assure the House that, in drafting the new clause, attention was paid to concerns raised by the Government in Committee about an earlier proposal to create a new, free-standing right to equality. In response to that debate, the noble Lord, Lord Callanan, stated:

“The bottom line is that substantive new rights are not consistent with the intended purpose of the Bill, which is about maintaining the same level of protection on the day after exit as before”.—[Official Report, 7/3/18; col. 1168.]


The proposed new clause would maintain equivalent protection for equality rights after exit day by simply replacing the foundation for our equality rights currently provided by EU law with an equivalent underpinning in our domestic law. In doing so, we respect the United Kingdom’s constitutional position by applying the same approach as the Human Rights Act and we respect parliamentary sovereignty because the proposed new clause would limit the role of the court in relation to primary legislation to making a declaration of incompatibility, rather than invalidating or striking down primary legislation, as is currently the case under EU law. In that sense, it is a somewhat weaker underpinning than the current level of protection, but we believe that this approach would strike an appropriate balance between ensuring non-regression of equality rights after we leave the EU and returning control to Parliament to have the final say on our laws after exit day.

Having been a Minister in both the Scottish Government and the United Kingdom Government, I know that there has to be compatibility in the United Kingdom with the Human Rights Act and the European Convention on Human Rights; in fact, it is wider in Scotland in that there has to be a declaration of compatibility and being within competence. That focuses Ministers’ minds and, very often, things are changed. No one is saying that a deliberate attempt would be made to undermine what in that case would be human rights but in this case would be equality, but when the tests are applied and people are obliged to look at them, they may find things there that would reduce rights. Therefore, it is a very good test because it ensures that equality rights are not eroded, even through the unintended consequence of a particular provision.

I do not believe that this is fanciful. As a member of the coalition Government between 2010 and 2015, I put my hands up: concerns were expressed that parts of the Red Tape Challenge could have eroded some equality rights during that period. Indeed, in its January review of sex discrimination law, the Fawcett Society stated:

“Without the backstop of the EU … There are good reasons to believe that this presents a real risk to equality legislation. For example, the 2011 Beecroft report, commissioned as part of the ‘Red Tape Challenge’, included proposals to cap discrimination damages awards. This was prevented by the Court of Justice of the European Union, which had ruled in 1993 that damages for sex discrimination could not be limited. That report also proposed a number of other retrograde steps, including opt-outs of equalities requirements for small businesses”.


I commend this proposed new clause to the House. It will send a positive signal that we still wish to be at the forefront of protecting equality rights once we have left the European Union. We seek here a robust underpinning of these equality rights, as currently guaranteed by the European Union. I beg to move.

--- Later in debate ---

[Lord Callanan]

I thank noble Lords for their time and consideration on the important issue of how we maintain our equality protections as and after we leave the EU. There really is no difference between us in our commitments to these important issues. Amendment 30A, in the name of the noble and learned Lord, Lord Wallace of Tankerness, follows on from the debate we had in Committee in that it seeks to reflect in statute the political commitment that the Government have already made in this area—that is, that we will maintain the existing protections in and under the Equality Acts 2006 and 2010 after our exit from the EU.

I must, however, be clear with the noble and learned Lord that we have three concerns about his suggested approach. First, there is the issue of language, context and potential for conflicting rights. Put simply, the language of a political commitment does not translate to the statute book. Therefore, let me say to my good noble friend Lord Cashman that while our commitment to existing equality protections works perfectly well politically—we are committed to them here and in the wider world outside this place—it must be noted that terms such as “protection” and “diminish” do not have a sufficiently clear and precise meaning for the purposes of statute. As a consequence, the amendment runs a very real risk of creating tensions for real people, with real interests that may be difficult to resolve between existing and potential future rights that we may wish to legislate for.

To give an example, noble Lords may be familiar with the experiences on buses of some passengers who use wheelchairs, and the difficulty that they have sometimes had in accessing the space theoretically available to them when it has been taken by people, often parents with young children in pushchairs. The question arises as to whose rights take priority, especially as, arguably, both parties are covered by “protected characteristics” provided for in the Equality Act 2010. This particular example of potentially conflicting rights is being resolved, following a court judgment that passengers who use wheelchairs have priority. However, I trust this helps illustrate the risk of future developments in equality law being, in effect, struck down in the courts because, while they might benefit certain groups, these benefits might come at the expense of rights in retained EU law secured under this Bill. As has been noted, the Equality Act 2010 is lengthy, detailed and specific in order to avoid questions of competing or conflicting rights. Setting it in stone against any future equality issues we or future Governments may wish to provide for runs fundamentally against the grain of the Act and our developing and dynamic approach to equality rights in this country.

Our second concern is closely related in that we fear this new clause would create considerable legal uncertainty. Indeed, the noble and learned Lord has recognised this by including proposed subsections (4) and (7) which describe what a court may do when faced with an issue of the compatibility or otherwise of new provisions and existing equality rights. I hope he will understand when I say that, especially in the context of our exit from the EU, we think it is vital to keep to an absolute minimum any legal uncertainties that may arise for the good of businesses and individuals, so a new clause that seems positively to embrace such uncertainty is not an attractive prospect. It is not at all clear what businesses or individuals are supposed to make of any rights and obligations that might apply to them pending the emergence of the case law that the new clause anticipates.

Finally, there is the relationship between the proposed new clause and the Human Rights Act 1998, the architecture of which reflects the existence of the European convention. The noble and learned Lord’s text uses key concepts from the HRA, notably declarations of incompatibility and their consequences, and proposed subsections (8) and (9) directly cross-refer to sections of the HRA. This simply is not appropriate. Indeed, at the risk of echoing my earlier point, we believe these linkages would lead to uncertainty and confusion. There is, for example, no explanation of what the effect of declaration of incompatibility would be in this context. Would the primary legislation continue to have effect or not? There is clearly potential for gaps and contradictions to develop between challenges and actions based on the new clause as opposed to the HRA and its existing reference to the prohibition of discrimination under Article 14 of the European Convention on Human Rights.

I have already alluded to our clear public commitment to maintaining existing equality protections, and I am very happy to repeat that commitment now. While I understand the noble and learned Lord’s best intentions in this area, I must gently suggest to him that the interests of equality rights on our statute book are not well served by his proposed new clause and I hope that he will feel able to withdraw it. For the avoidance of any doubt, the Government will not be reflecting further on this matter, so if he wishes to do so, he should test the opinion of the House this evening.

[Lord Wallace of Tankerness]

The Minister should not tempt me. I am grateful to him for his reply, which was probably a bit more substantive than ministerial replies to the previous two debates, although it was, equally predictably, negative.

I do not think that the Minister’s arguments bear too much scrutiny. He complained about the language used in my amendment and said that it is difficult to put a political commitment on to a statutory basis. He was challenged by the noble and learned Lord, Lord Goldsmith. If the wording here is not right, what are the Government proposing to do to give underpinning? I do not think that at any point in reply to this debate did the Minister indicate that there is no need for a proper underpinning of the equality rights we have. Indeed, given the Government’s commitment to maintaining them, one assumes that the Government believe that they should continue and be underpinned. If the wording proposed is not right, there is a deafening silence from the Government’s side about what words they would use. The Minister raised the declaration of incompatibility and whether that meant striking down. I think I made it clear, as did the noble Lord, Lord Low of Dalston, that we do not mean striking down. What we seek in this amendment is to make it consistent with the principle of parliamentary sovereignty after we leave the European Union.

It is said that the clause conflicts with the Human Rights Act. I confess that my party and I have argued many times for a written constitution for the United Kingdom, but we are always told that one of the benefits of the unwritten constitution is its flexibility. So we introduced into our constitution a Human Rights Act with some very good provisions; the noble and learned Lord, Lord Goldsmith, indicated some of the focus of attention and consideration that that Act places upon Ministers when they consider compatibility. If we have that, what is wrong? What is the constitutional fault in using that good practice to extend into another area where we are talking about something fundamental?

That is the concluding point because this is a fundamental question. The noble Baroness, Lady Lister, and the noble Lord, Lord Cashman, reflected on what kind of country we want to be. The Government set out in their White Paper last March that they want to respect and cherish equality rights. There is common ground on that. What we have not seen from the Government is a way in which they can ensure that that is underpinned as we go forward, so that we can ensure that that characteristic of what kind of country we want to be can be maintained without threat. I find it very regrettable but the night is a bit too late to test the opinion of the House, so I beg leave to withdraw the amendment.

Amendment 30A withdrawn.

European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

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

Moved by

[Lord Wallace of Tankerness]

311: Clause 11, page 8, line 41, at end insert—
“( ) This section and Part 1 of Schedule 3 will cease to have effect after the end of the period of two years beginning with exit day.”

[Lord Wallace of Tankerness (LD)]

My Lords, at the request and with the consent of the noble Lord, Lord Foulkes of Cumnock, I shall move Amendment 311. For clarification, the noble Lord, Lord Foulkes, did not wish me to move Amendment 310 because he felt it had been superseded by our discussions last week. I shall be brief in moving Amendment 311 because a number of amendments were grouped for our wider debate on Brexit and devolution issues last Wednesday that related to sunset clauses, and this is another example.

It appears that here, as in a number of other areas of the Bill, particularly when powers are to be conferred on United Kingdom Ministers, a sunset clause is attached to them. However, for those in relation to devolution and the exercise of powers by UK Ministers in respect of making orders on the devolved settlement, there is no such sunset clause. As has been said by others, not only in regard to this Bill but on other occasions, there is nothing as permanent as a transitory provision. Although this is intended to be just a temporary move pending the solution of the arrangement between the powers that will go directly to Cardiff, Edinburgh and Belfast and those where we may wish to follow up on what was debated last week with regard to the UK frameworks, it nevertheless appears that there should be some incentive to get on with it and have a time limit.

We debated these issues last week, particularly whether the period should be two, three, four or five years, which is a matter for further discussion, and it is fair to say that this is more about the principle of having a sunset clause. When we debated it last week, the noble and learned Lord, Lord Keen of Elie, helpfully indicated in his reply that the Government’s mind was not closed on this matter and there could be an opportunity to put in some form of sunset clause in relation to this and the other amendments that we look forward to seeing on Report. I hope this amendment allows the Government to give further thought to what was said in our debate last week, and I would certainly encourage that positive thinking with regard to a sunset clause. I beg to move.

[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.

--- Later in debate ---

[Baroness Goldie]

My understanding is that that legislation has been enacted by the devolved Administrations for what they perceive as a necessary protection of their positions. The Government hope that we can supersede that legislation by coming to good sense around the table and hammering this out—which I think is what all parts of the United Kingdom want.

[Lord Wallace of Tankerness]

My Lords, I thank all who have taken part in this short but important debate, and the noble Baroness, Lady Goldie, for responding. I think it fair to say that in all our debates that have touched on devolution, reference has been made to the importance of securing the agreement not just of Ministers but of the devolved legislatures in Scotland and Wales. One prays for the time when it will be the case also in Northern Ireland. That was reflected in the first report of the Scottish Affairs Select Committee of this Session, which recommended that,

“the UK and Scottish governments continue their efforts to secure agreement on those clauses of the Bill which affect devolved areas of responsibility”.

It is important that we reiterate the importance of that. The Minister has indicated that the Government are seized of that, but there is no harm in reinforcing it. She referred to the import of the Sewel convention into both the Wales Act 2017 and the Scotland Act 2016. As we know from the decision in the Miller case in the Supreme Court, the convention is just that: it is a convention and does not have the force of the law. It is important that we reiterate the need to get agreement.

On the proposed sunset clause to which I spoke on behalf of the noble Lord, Lord Foulkes, the Minister seemed to suggest that, once the new proposals come through, this might not be necessary. I tabled a very similar amendment last week, which I had thought of attaching to the amendment brought forward by the noble Lord, Lord Callanan. When I discussed it, I was assured that it was not necessary because, due to the way in which the Bill was set out, it would not have been superseded by pre-emption even if the noble Lord’s amendment had been accepted, so such a clause is still pertinent. It is important that some time limit be set, even for establishing the frameworks. The noble and learned Lord, Lord Mackay, made some interesting and constructive proposals as to how the frameworks might be achieved. While the return of many of the powers at the so-called intersects would be pretty imminent on exit day, a number would still have to be resolved. Therefore, I encourage some positive thinking with regard to a timeframe within which that might be done. On that basis, I beg leave to withdraw the amendment.

Amendment 311 withdrawn.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

To follow on from what the noble Lord, Lord Wigley, has said, I am tempted by the reverse approach of the noble and learned Lord, Lord Mackay, and the mechanism that he has described. I have just one point to add to the debate: I am worried about the emphasis on the single market—the internal UK market. There was a debate in Europe, following the Cockfield White Paper 30 years ago, about how much uniformity was needed in a single market; how much you could rely on mutual recognition; how much you did not need to standardise at all and how much you could harmonise. Noble Lords will remember that that debate became quite controversial at times. Some of us argued that the Commission took a more expansive view of the need to harmonise and standardise, rather than to recognise diversity. In my view, devolution inherently means a recognition of diversity. I do not agree with the noble Lord, Lord Morgan, that the Government have an evil, malign intent here. However, the way that this dossier has been handled has created suspicions in Scotland and Wales of such an intent.

Looking at the criteria set out in the amendment tabled by the noble and learned Lord, Lord Hope, there is no difficulty with a common framework in areas necessary to,

“safeguard the security of the UK”,

or,

“provide access to justice”,

or,

“enable the management of common resources”,

or,

“ensure compliance with international obligations”,

obviously. I pause on,

“new trade agreements and international treaties”,

because there are suspicions that the fox might get into the hen house. The real suspicion arises over the first item:

“enable the functioning of the UK internal market”.

I do not think “enable” is a transitive verb. As all noble Lords recognise, “ennoble” is, but “enable” is intransitive. However, that is not the main reason that I object to this section of the amendment. The phrase,

“the functioning of the UK internal market”,

could be interpreted very widely, and there are those in Scotland and, presumably, in Wales who assume that the Government might want to interpret it widely.

We do not have a single market in the UK now; it is variegated, as are the views on the extent to which it needs to be further harmonised or advanced. I wonder whether it would not be better if the Government could drop from their presentation on this dossier, on Brexit and devolution, the references to the UK internal market. There would be very few areas where it needed to be used and they would all be covered by one of the other criteria in the noble and learned Lord’s amendment.

[Lord Wallace of Tankerness]

My Lords, I will pick up what the noble Lord, Lord Kerr of Kinlochard, has just said. The criteria set out in this amendment—and in one tabled by the noble Lord, Lord Griffiths of Burry Port, to which the noble Lord and I both put our names but which was not moved—reflect a set of principles for common UK frameworks agreed at a Joint Ministerial Committee on EU Negotiations last October. They are certainly a basis for moving forward and already have a buy-in from the United Kingdom Government and the devolved Administrations in Scotland and Wales.

When creating United Kingdom frameworks, we do not want to find a situation where, when we come out of the European Union, there is something which impedes a Scottish beef producer freely selling their beef in Wales or a Welsh sheep producer selling lamb in Belfast. These benefits predate our entry into the European Common Market. It is also important to remind ourselves that the restrictions on the Scottish Parliament relate not only to reserved matters or EU law, but to what is in Schedule 4 to the Scotland Act. That specifically constrains the Scottish Parliament from doing anything which modifies Articles IV and VI of the Union with Scotland Act 1706 and the Union with England Act 1707. If one reads these two articles of the Acts of Union, drafted 280 years before the Cockfield report, one finds not a bad model, in the language of its time, for a customs union and a single market which have served us well over three centuries.

I also note that as well as the criteria that have been agreed, the Scottish Government themselves, in their legislative consent memorandum to the Scottish Parliament in September last year, said at paragraph 19:

“The Scottish Government has made clear, repeatedly, its willingness to negotiate UK frameworks in certain areas previously covered by EU law. This could be, for example, to support the functioning of UK markets, or to facilitate the management of common environmental resources”.


Therefore, I believe there is a basis for reaching agreements here, but it is important that these are not imposed.

In giving evidence to the Scottish Affairs Committee in the other place last year, the Secretary of State for Scotland, Mr Mundell, stated at paragraph 21 of that committee’s first report of Session 2017-19:

“The Secretary of State for Scotland agreed that any common frameworks should be agreed with the devolved administrations, stating:


A UK framework is not a framework that the UK Government imposes; it is a framework that is agreed across the United Kingdom”.


It is important that we approach this issue with that in mind. That is why I think the amendment suggested and spoken to by the noble and learned Lord, Lord Mackay, is helpful. Indeed, that Select Committee went on to recommend that:

“Any common framework must require the consent of the governments of Scotland, Wales and Northern Ireland, where relevant”.


It is important to have a dispute resolution mechanism, as referred to by the noble Baroness, Lady Finlay of Llandaff, because there is potential for some disagreement in setting up these frameworks—I hope not as much as is sometimes thought—for which a dispute resolution mechanism is required. One assumes that once these frameworks are established—that goes beyond the ambit of this Bill—they will not be static but will develop. It might be useful at some stage—not in this debate or in this Bill—to get an indication from the United Kingdom Government as to how they see these frameworks working after they have been established. Do they want to see common standards apply across the United Kingdom, but have diversity within that as to how they are implemented in Scotland, Wales and Northern Ireland, or in England through the United Kingdom Parliament? That too will require some form of dispute resolution mechanism. The Select Committee, to which I have referred, recommends that,

“the UK Government and the devolved administrations agree a mechanism by which disputes can be resolved in the event that common frameworks cannot be agreed”.

I think that that is a two-stage process. First, there is the establishment of the common frameworks, where the amendment of the noble and learned Lord, Lord Mackay, is very pertinent, and, as we move forward, there is the issue of how we look at the operation of the common frameworks, which I believe will also need some form of dispute resolution mechanism. However, it is important that we move forward with the common frameworks. The amendment in the name of the noble and learned Lord, Lord Hope of Craighead, certainly reflects agreements that have already been reached between the United Kingdom Government and the devolved Administrations.

[Baroness Hayter of Kentish Town]

My Lords, I wish to add a couple of points. First, are discussions progressing on the possible inclusion in the Bill of a schedule detailing these areas of concern? Secondly, the noble and learned Lord, Lord Wallace of Tankerness, said that a solution should be agreed, not imposed. We should heed those words. I again ask the Minister: as regards reaching agreement on these issues, to what extent does he have in mind involving the legislatures rather than just the devolved Governments?

The Minister has had notice of my next point. I would like to correct something that the noble and learned Lord, Lord Keen, said in the House last week. He said that there were,

“about 153 areas in which, upon our leaving the EU, competences will return and touch upon areas of devolved competence. These are areas that the devolved parliaments and assemblies previously had no engagement with because they lay in Brussels”.—[Official Report, 21/3/18; col. 334.]

I have since written to him because that it not completely the case. As it works, the memorandum of understanding provides that, in matters of devolved competence, the UK Government consult the devolved Administrations to agree a common UK position on matters before the Council of Ministers, and then defend that position in the Council. Indeed, as we just heard, occasionally devolved Ministers will do that and represent the UK. However, whether it is a UK Minister or a devolved Minister there, they speak in this case for an agreed UK position, not just a UK government position. It may therefore be helpful if the Minister confirms that understanding, which is undoubtedly how the devolved Governments see it. What has been said is right: the spirit to reach accord is there. However, perhaps for clarity, it would be good if that could be confirmed.

--- Later in debate ---

[Lord Wallace of Tankerness]

What the Minister is saying is encouraging. For the sake of argument, let us take fishing. Have any of these meetings between UK officials and officials from the devolved Administrations involved members of the Scottish Fishermen’s Federation? Stakeholders obviously have a practical view on where some common arrangements are useful and where they are not.

[Lord Duncan of Springbank]

I wish I could answer that question in the affirmative, but the answer is no. Before each meeting the devolved Administrations, with the UK Government, have engaged in direct consultation with stakeholders. However, the stakeholders have not been inside the room. None the less, what they bring to the table is very much understood. I develop upon these parts because, as the noble Lord, Lord Wigley, pointed out, it is important that when we consider the question of agriculture there is no suggestion that, although agriculture itself is one of the headings, everything in agriculture will remain part of that. To some degree, what noble Lords had in their in-boxes, which was simply entitled “Agricultural funding”, was a little unhelpful. Underneath that rests each of the areas where there is expected to be a necessary common framework, and indeed a whole range of areas where there would not need to be a common framework because it would be fully devolved from the get-go. To some degree, there can be a result of some misunderstanding contained in that approach. Again, that is why it is imperative that we examine every single aspect when we have these deep dives, which are ongoing; they have not finished yet.

European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

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

[Lord Adonis]

We will be debating Northern Ireland at greater length later. The Minister said in response to my noble friend Lord Judd that the Government would be bringing forward on Report amendments in respect of the Good Friday agreement—or at least that is what I took him to be saying; no doubt he will clarify his remarks when he rises to speak. Will he tell the Committee more about what those amendments will contain?

[Lord Wallace of Tankerness (LD)]

My Lords, I speak in support of the amendments tabled by the noble and learned Lord, Lord Hope of Craighead, to which I have added my name. I shall try to confine myself to the actual amendments to Clauses 7, 8 and 9. Like the noble Baroness, Lady McIntosh of Pickering, I have not yet had an opportunity to see the amendments to Clause 11 which were laid today, but I suspect that we will consider them in great detail before we come to debate them in Committee next week. Suffice it to say that it is helpful that some information has been forthcoming. I may not necessarily agree with it all but it will shed a helpful light by giving us an indication of the frameworks where the UK Government at least think that there should be a United Kingdom dimension, and hopefully some polish from outside stakeholders may help to inform our discussions when we come to them.

On the amendments moved by the noble and learned Lord, Lord Hope, to Clauses 7, 8 and 9, I shall certainly consider with care what the Minister said at the outset of the debate and then again in response to the noble Lord, Lord Adonis. I thought that perhaps he went slightly further when he responded to the noble Lord, but I shall read carefully what he has said just to see whether this particular part concession has substance. That is because, as the noble and learned Lord, Lord Hope, pointed out, the position with regard to Northern Ireland in Clause 7(7) is not absolute. There are qualifications to it and it will be interesting to see whether there are similar qualifications with regard to Scotland and Wales.

The noble and learned Lord, Lord Hope, also intervened on the noble Lord, Lord Empey, and said that the difference between what is there as regards Northern Ireland in Clause 7(7) as it stands and what we have proposed in our amendment is that Clause 7(7) does not make any provision for the consent of the relevant Scottish, Welsh—or in the case of my noble friend’s amendment—or Northern Irish devolved Assemblies or Parliaments. I do not know enough, and I know that it is dangerous to go into Northern Ireland politics without deep knowledge. However, I will say why our amendment, which gives the opportunity for consent, would be preferable, certainly with regard to Scotland and Wales. Ministers talk generally, and one of the concerns we have is with the breadth of the powers given to Ministers under these clauses, but we do not know whether there might be a genuine cause or reason for an amendment to be made to these founding pieces of legislation. It would therefore be helpful if there was a provision for consent so that it is not done unilaterally.

It might also be helpful looking forward. The noble and learned Lord, Lord Hope, mentioned distrust. That cuts two ways. There is distrust among the Scottish and Welsh Governments as to what United Kingdom Ministers might get up to in using these very broad powers, and there is distrust—I can speak only for Scotland—among UK Ministers that the Scottish Government might well seek to veto something that they might otherwise think is perfectly reasonable. That is holding back quite a lot of the development of a pragmatic and reasonable solution to a lot of these issues. It might be that there will be something akin to the so-called Edinburgh agreement, which paved the way for the amendments to the Scotland Act that allowed the EU and independence referendums to take place, so that we can get some understanding between the Governments that consent would not unreasonably be withheld where a compelling case could be made for it.

The problem we have at the moment is that there is no scope for that at all. It is imposition. It could be a unilateral imposition in a change to the Scotland Act or the government of Wales Acts without any form of consultation or consent at all. As the noble and learned Lord pointed out, Clause 8, certainly in terms of Scotland, and Schedule 5 allow some limited powers for the Scottish Parliament relating to international obligations. Again, we think some provision should be made in Clause 9 for putting a brake on any amendment to, or modification of, the Scotland Act or the Government of Wales Act unless there is the consent of the Scottish Parliament or the Welsh Assembly.

[Lord Empey]

Will the noble and learned Lord elaborate on his suggestion for how a middle way could be established? We would all want to see consent if that is achievable, but the problem is that it is very difficult to design a situation in the legislation to say we will seek consent but we do not really need it. The second problem that we have in Northern Ireland is the absence of the Assembly. That creates an even more dramatic situation.

[Lord Wallace of Tankerness]

My Lords, taking that second point, as I indicated earlier, the absence of the Northern Ireland Assembly raises far more questions than those specific to these amendments. My noble friend Lady Suttie touched on that when she moved her amendment. It goes far further than these particular amendments.

I will say more about consent. If it is, in fact, fear that consent will be unreasonably withheld, surely it is not beyond the wit of those negotiating to come up with some kind of agreement that the various parties can sign up to, indicating that that consent would not be unreasonably withheld. I accept that the downside is that they could go back on their agreement. There would be a political consequence to that. Ultimately, we are dealing with issues that have a practical effect on people’s livelihoods and businesses. It is far more important to get some practical solution based on good faith, if it can be restored, rather than standing in corners, not wishing to engage.

If the Government accepted these amendments it might well be a step forward to trying to establish some of that atmosphere where trust can be created. What we currently have would not, as has already been said, trigger a legislative consent Motion in circumstances where, if it was primary legislation, it would have a legislative consent Motion.

[Lord Forsyth of Drumlean (Con)]

On the subject of trust, the noble and learned Lord mentioned the Edinburgh agreement, which the Scottish nationalists signed up to. No sooner was the ink dry on the paper than they were repudiating it. Does he remember the assertion that it would be a “once in a generation” referendum on independence? Surely we are dealing in Scotland with a nationalist Government determined to destroy the United Kingdom. Why on earth would one want to give them a veto over decisions taken by the United Kingdom Parliament?

[Lord Wallace of Tankerness]

My Lords, I accept that, with regard to “once in a generation”, the Scottish National Party is guilty of not living up to what it said, but it is not right to say that, once the ink was dry on the paper, it totally forgot it. What was in that agreement informed both the Section 30 order that was passed and the legislation then passed by the Scottish Parliament in conformity with the agreement. A substantial part of that agreement was carried through in good faith by both parties.

The detailed wording of Schedule 5 to the Scotland Act was important in getting the right balance in the devolution settlement. If in the normal course of events that were to change, it would require an order under Section 30 of the Scotland Act, which requires an affirmative vote not only by both Houses of this Parliament but by the Scottish Parliament. What we are proposing is consistent with what would happen in the normal course of events when the balance of the devolution settlement was changed. That is why I strongly encourage the Minister at least to show willingness to think about this matter and reassure us that the Government are sensitive to it. That could go some way towards establishing a better basis for trust as we look forward to our debates on Clause 11.

[Lord Mackay of Clashfern (Con)]

My Lords, the amendments introduced by the noble and learned Lord, Lord Hope, might be perfectly okay from the point of view of the UK Government. The only change likely under Clause 7 is to something where it says “EU law”; it would have to be changed to something else. The powers in Clause 7 are intended to enable the knitting together of existing UK law and existing EU law which is not already part of it. That is a difficult job. These descriptions are meant to cater for that. I do not see it as likely that much will be required in relation to Scotland in that respect.

The main question is what happens under Clause 11. The Government promised that it would be brought before the House of Commons and hoped that it would be agreed. Your Lordships may or may not remember that I was keen at Second Reading to stress the need for agreement, because it is the only answer. Intense negotiations have gone on at official level over the last while. It now appears sadly possible—I do not make it any stronger than that—that the Governments may not be able to reach agreement. Therefore, it is important before anything further happens that your Lordships get a chance to apply your great experience to the problems separating the two parties. I greatly regret that there is no proper representation for Northern Ireland. I had the responsibility of being a Minister in Northern Ireland for 10 years; I feel very sad that the present situation has been reached and only wish that it could be resolved. From what I hear, I fear that it may not be very easy until after Brexit. In any case, agreement is essential if it is possible. I do not want to say or do anything that would impede the reaching of such agreement.

As for Clause 7, to retain a power to amend the Scotland Act seems unimportant in this situation, although I think the number of amendments generated by a proposal of this kind would be very small and the Government may feel it worth while to forgo such a power in the interest of making peace and progress.

The Clause 11 procedure is much more difficult. It is important to bear in mind that the Scotland Act—this goes for the Wales Act as well—was set up and legislated within the European Union. Therefore, the only powers that were dealt with were the powers that existed in the Parliament of the United Kingdom when these Bills became law. That did not involve the powers that the EU had and therefore I think it is not determinative of how these powers should be distributed on return to look at what was decided in the original Acts setting up the devolved Administrations, because the powers are now wider. It is therefore very much a matter of trying to resolve the issues between the parties by agreement. If we can help in that respect, so be it: I very much hope that we can. Certainly, I hope we do not do anything to hinder it. So far as I am concerned, I am prepared to trust all the parties to do their best to reach an amicable solution.

--- Later in debate ---

[Lord Deben (Con)]

I wonder if I can be my usual emollient self at this point. I admit to being of Welsh extraction with a Welsh-speaking father. My noble friend Lord Forsyth spoke entirely from the point of view of someone who has been bruised—I would be on his side in this—by the activities, and sometimes more than that, of the Scottish nationalists. But the debate here is not about vetoes, although the amendment would confer them; rather it is a debate about trust. My noble friend says we can all work it out: this Government, the coalition Government and the Labour Government continued the utterly unfair system of the Barnett formula, which has done such damage to Wales, and, as the noble Lord, Lord Wigley, said, the Labour Government retained large sums of money, rather than pass it on in the system we previously had.

My noble friend knows very well that I believe in a single market. I do not have a view that narrows that single market to the United Kingdom. I look to a single market that continues through the whole of Europe, which is, of course, of great benefit to all of us and I am sad that he should try to remove us from it. But I do not think that it helps in this debate not to face the very considerable lack of trust in both Scotland and Wales, where there is a history of not getting a fair share except almost by force.

Scotland has managed to get itself into what many of us feel is the opposite position. That is how the Barnett formula works. It would be good for the Government of Scotland occasionally to recognise into what a favourable position history has put it. However, I should not like the Committee to fail to recognise, because of the way these amendments are drawn and have been put together, the specific position of Wales, not least because of the special position in which the north of Ireland has managed to get itself, for political reasons, and the historical position Scotland has been in. This is not to sow discord between the parts of the United Kingdom; it is merely to say to my noble friend the Minister, for whom I have enormous respect—his last speech summing up was an exemplary one to show how the Government can deal with issues in a way that at least makes the Committee feel that it is listened to; I thank him for that, because it was a very different touch—that there is a real feeling among people in Wales that the history does not help people believe that the United Kingdom Government will be entirely even-handed on this issue. Therefore, if, in the withdrawal Bill, Wales has its membership of the European Union, from which it has benefited very significantly, taken away, is there a way the Government can at least give greater confidence to Wales? If they do not, I fear the ability to come to a compromise will be made very considerably more difficult.

I feel my noble friend Lord Forsyth was partisan in the way he concentrated only on Scotland. He was kind enough to say that he did not know about Wales, but I do, so in these circumstances, will the Minister please give us a little more confidence? I should very much like my noble friend, whose own name reminds us of Aberystwyth, to give us a feeling that Government will, in some way, find a manner to give confidence in the Bill, since this is not appropriate.

[Lord Wallace of Tankerness]

My Lords, as a co-signatory to the amendment, I shall briefly make three points. My first is to correct something said by the noble and learned Lord, Lord Hope of Craighead. He said that the smooth running of the early years of devolution was because we had a Labour Government in Westminster and a Labour Government in the Scottish Parliament. In fact, it was a Labour-Liberal Democrat coalition in the Scottish Parliament. That is an important difference.

Secondly, I endorse what the noble and learned Lord said when he gave the example of orders under the European Communities Act 1972 and the memorandum of understanding between the Scottish Government and United Kingdom Government on consultation, and how these might be taken forward. My experience in the Scottish Executive at the time was that it worked. I can say that because I cannot remember an issue over which there was any major dispute. It is also fair to say that I cannot think of any major dispute on that kind of area, some of which was very technical, while the Scottish National Party was in either minority government after 2007 or majority government after 2011. It is possible on a whole range of technical issues to get some common- sense agreement. That is why we should persevere.

Thirdly, the noble Baroness, Lady Finlay, said that underlying the amendments is an effort to have building blocks for trust. I shall not repeat the arguments I made in the previous debate other than to say to the noble Lord, Lord Bourne, that, like the noble Lord, Lord Deben, I appreciated his comprehensive response to it. He seemed to suggest that I had spoken about allowing a veto over areas that were non-devolved. Given that the previous amendments were about modifications to the Scotland Act, I do not think anything I said could have given that implication. Here, where we are talking explicitly about matters within the devolved competence of Scottish Ministers, that cannot be said either. I think there is something we can build on there.

[Lord Kerr of Kinlochard (CB)]

I share the admiration of the noble Lord, Lord Deben, for the way in which the Minister summed up the previous debate. He was a rather brilliant performer of the work of the fire extinguisher. Foam was spread over all of us and calm ensued. It was a brilliant performance.

I am sorry that, this time, the Minister has to deal with pyrotechnics from a pyromaniac, in his colleague, the noble Lord, Lord Forsyth of Drumlean. It is rather a pity that the attacks of the noble Lord, Lord Forsyth, on the party now governing in Scotland are responded to only by a Welshman, the noble Lord, Lord Wigley. He responds very well, but, as a Scotsman who does not support the Scottish National Party, it seems to me rather an easy trick to score pyrotechnical victories against an opponent who is not in the room.

Trust is what this is all about. I can see nothing wrong with this amendment; I cannot see any reason why Ministers should not buy it now. If they cannot, a discussion needs to start. It does not help to insult the party in office in Edinburgh by implying motives. It may well have such motives, but they were not those it explained when it published a perfectly reasonable economic analysis at the end of last year which established clearly the damage that will accrue to Scotland from leaving the single market. The scale of the damage was almost exactly the same as what we have now seen in the Treasury analysis for the United Kingdom as a whole—eight, five, two: the same numbers pop up in both studies. The Scots are not being unreasonable or necessarily malicious when they say that they would prefer to remain in the single market. Of course, the market of the United Kingdom is more important to Scotland than the market of the rest of Europe, but that is not the point; they do not want to have to choose. That seems a perfectly reasonable position to adopt. It does not help establish trust to insult them.