European Union (Withdrawal) Bill

Lord Wigley Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, if an Act of Parliament gives the Scottish Parliament power to say no and refuse its consent, what I am asking is whether that affects what might happen in other parts of the United Kingdom, so that you would not be able to get the common UK framework which people might otherwise think is necessary and desirable to be able to sustain a single market within these islands. At the moment, we have to some extent a form of competence at a different level—the European level—which is being brought back down to the United Kingdom. I ask these questions because it possibly means that there is a difference between the procedure which has been used if you wish to modify Schedule 5 or change Schedule 4 and one where we are returning the laws which hitherto have been subject to the European Union.

The amendments in my name, which I know are supported by my noble friend Lord Thomas of Gresford, are Amendment 89DAF in respect of Scotland, Amendment 89DAJ in respect of Wales and Amendment 89 DAK in respect of Northern Ireland. These amendments would, as the noble and learned Lord, Lord Keen, indicated, change the sunset—although it is not really a sunset in this respect—overall from seven years to five years, and they do that by changing the period during which the frameworks must be established from five years to three years. I did not seek to change the two-year period during which these orders have to be made, because that is consistent with other provisions in the Bill.

If my understanding of the situation is correct, if an order is not made that would identify the area for a framework and freeze, the power would automatically flow back to, let us say in this case, Edinburgh. Is it therefore to be expected that all these orders will be made, identifying the areas for freezing to establish common frameworks by the time we leave the European Union? Otherwise, it might appear that, within a period of days, weeks or months between our leaving the European Union and the order being made, there could be divergence between the different parts of the United Kingdom. After the order is made, I suggest that there should be a three-year period for the frameworks to be established rather than a five-year period.

I welcome the fact that time limits have been put in at all—that was a step forward, and the Government have obviously been listening on that. But I have not heard why it should be five years rather than three. That figure may have been plucked out of the air. The noble Lord, Lord Foulkes, is not in his place, but he did have an amendment in Committee in which five was suggested. It may be that that commended itself to the Government because it came from the noble Lord, Lord Foulkes. I would like to hear a rationale as to why five years is to be preferred to three. The noble and learned Lord said that they had agreement from the Welsh Government on this. It would be interesting to hear the Minister’s views on whether the Welsh Government thought that a shorter period of time would be ideal but they were prepared to accept this.

No one disputes the amount of work to be done but we are potentially in a Parkinson’s law situation, where work expands to fill the time available for its completion. If we say five years, it could take up to five years; if we say three years, it would focus the mind and we could possibly do it in three. That is not least because we are dealing with dynamic issues, and if we are to freeze retained EU law in areas where there might be need to update the law—I assume that in these circumstances we would seek to do so by agreement—three years would allow progress to be made faster.

Also in this group is Amendment 90, which again provides a sunset. However, I think it is superseded by what we are debating and so I will not seek to press it. But it is important that the Government give us a rationale as to why they have chosen this period of time.

On a very specific point, Amendment 92AD—on page 19 of the Marshalled List—talks about the reporting that is to be made by Ministers to Parliament:

“After the end of each reporting period, a Minister of the Crown must lay before each House of Parliament a report which … (b) explains how principles … (i) agreed between Her Majesty’s Government and any of the appropriate authorities, and (ii) relating to implementing any arrangements which are to replace any relevant powers or retained EU law restrictions, have been taken into account”.

I rather suspect that these are the principles that were 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. Will the Minister confirm that these are the principles that are being referred to—the ones agreed at the Joint Ministerial Committee—and explain whether there is any reason that they should not be added as an annexe to the Bill?

In conclusion, the noble and learned Lord, Lord Hope, quoted a letter from the First Minister, which was very measured in its terms—slightly more measured than her writings in last week’s Sunday Herald, in which she said that the Tories would “completely demolish” Scottish devolution. I immediately thought of the many debates we had during the passage of the Scotland Act 2016, in which the Conservative Government extended devolution to cover almost all of income tax and a substantial amount of social security. This could be a very cunning plan, if they assume that the Scottish Government will—I was going to say “screw it up”, but I am not sure whether that is parliamentary—act in such a way that it would end devolution, but I do not think that that was the plan. This Government have shown a very strong commitment—and I say this from the opposition Benches—through the number of things that they have devolved to the Scottish Parliament. Take one example from the 24:

“EU regulations on the classification, labelling and packaging of substances and mixtures (CLP); the placing on the market and use of biocidal products (e.g. rodenticides); the export and import of hazardous chemicals; the registration, evaluation, authorisation and restriction of chemicals (REACH); and plant protection products (e.g. pesticides)”.


I cannot honestly believe that trying to establish a common framework on that somehow undermines devolution, given that the Government transferred, almost entirely, income tax to the Scottish Parliament. It is a degree of hype that does not serve the debate well.

I rather hope that, as we go forward, we can recognise that what we are trying to do is seek a position so that, when we are no longer part of the European Union, we can in many important areas where it is thought necessary—indeed, the Scottish Government have accepted that in some areas it is necessary—establish a common framework throughout the United Kingdom. There will be further arguments as to the content of these frameworks, but for the moment we need to identify what they are. I would welcome a response to the points that I have made.

[Lord Wigley (PC)]

My Lords, in addressing Amendment 89DA, I will, as did the Minister, cover the broader ground contained in the amendments in the group. Some of my misgivings with the new proposed settlement dealt with in this group will arise in later amendments, 91 and 92, which for some reason have not been coupled with these.

While I welcome the progress that was made in the joint discussions on resolving some of the difficulties between Westminster and the devolved Governments—a welcome that has been expressed by both Mike Russell of the Scottish Government and Mark Drakeford, Wales’ Brexit Minister—I am acutely aware that not all the difficulties were resolved, and I beg the indulgence of the House for a few minutes in setting these issues in their context. I realise that some of my points may seem to be Second Reading ones, but in these amendments—there are 21 in this group alone—we have matters before us which were not in the Bill at Second Reading. I noted in particular the Minister’s invitation in his speech for us to contribute positive ideas in this context.

The adjustments before us tonight are in the context of what many people in Cardiff and Edinburgh, across party lines, regarded as a power grab—to use the term that was used then—by Westminster, in taking unto themselves powers returning from Brussels, including powers in what had previously been regarded as devolved functions such as agriculture. The fact that the Labour Government in Cardiff held out so long before agreeing reflected that fear; as did the fact that members of all parties in the Assembly—including initially Tory and UKIP AMs—supported having a continuity Bill to withstand that perceived power grab. The recent debate in Edinburgh reflected similar cross-party support for its continuity Bill. Rather than just scream “power grab” and hurl abuse at those we see as the authors of our difficulties, I will try to put forward what I see as a considered case and implore, even at this late stage in the Bill’s passage, that noble Lords appreciate the complexity of these issues—some of which have already emerged tonight—and rise to the challenge of finding a positive way forward, if not in this Bill then in some parallel or future legislation.

There have been calls from all sides for greater mutual respect in this process—for a mutuality that is not reflected by one side having a veto but other partners being denied that facility. The difficulty, repeated time after time by those involved in the recent negotiations over several months, is that there seems to be a basic lack of trust between Westminster and the devolved regimes. That is not so much a personal lack of trust but rather a lack of trust in the respective institutions.

Part of the lack of trust felt in Wales arises, perhaps, from different social values and from historic experience. There has been a growing lack of trust in Wales during my lifetime, emanating from difficult issues such as the Tryweryn Valley flooding in the 1960s, the S4C debacle of 1980 and, more recently, the Barnett formula. Devolution was meant to help avoid at least some such difficulties, but power devolved is power retained—a truism of which we have become acutely aware in these recent experiences. The underlying issues, which recent difficulties in the context of Brexit have highlighted, are not going to go away. They will continue to plague us until a proper constitutional settlement is reached. I suggest that the sunset clauses define a timescale within which this has to be sorted out.

In the wake of Brexit, the sorts of issues that will arise, and which will strain our constitutional settlement, perhaps to breaking point, include for Wales state aid for threatened industries like steel, the establishment in place of the CAP of a viable sheep-meat regime, and an acceptance that procurement rules can be used to ensure maximum community benefit from public expenditure. Sheep meat is an excellent example of the different perspectives of Westminster and Cardiff. Westminster tends to see it in terms of consumer needs; the Assembly sees it as the cornerstone of our rural economy and of local communities and their attendant culture. Quite frankly, I do not begin to see such considerations being addressed, and if Westminster insists on having a veto over such policies as agriculture, it will be seen as a constraint on devolved ambitions. There has to be give and take or the whole edifice will crumble under the strain of its own self-inflicted tensions. We are in fact trying to constrain the needs of a quasi-federal system within the straitjacket of a unitary state, and it just will not work; four into one will not go.

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[Lord Keen of Elie]

But I will not. If the noble Lord wishes me to elaborate on the operation of the sunset clauses, I would be quite content to write to him. At this stage, perhaps I can continue—with the encouragement of the noble Lord, Lord Griffiths—to address the question of the Scottish Government.

We are extremely grateful that we have achieved consensus with the Welsh Government and will be able to take this forward with their wholehearted agreement. I will come on to one or two points raised by the noble and learned Lord, Lord Morris, in a moment. As far as we are concerned, the door is still open for the Scottish Government, and we would be anxious to see them come through it so that we can take this forward with the agreement of all the Administrations in the United Kingdom. However, we are where we are at the present time. As regards their proposed amendments, they would, by different routes, result in a situation in which one of the devolved Administrations would effectively hold a veto over the implementation of UK-wide legislation for the maintenance of the UK internal market. That, I respectfully suggest, could not and would not be appropriate.

The exit from the EU raises complex questions with regard to the construction and application of the Scotland Act 1998 because, in 1998, such an exit was never contemplated. Reference has been made to Schedules 4 and 5 to the Scotland Act 1998 and the mechanisms for their amendment, but, as we were reminded by the noble and learned Lord, Lord Wallace, those are not the only mechanisms that impact upon the competence of the Scottish Parliament. We have to look at the terms of Section 29 of the 1998 Act, which as the noble and learned Lords, Lord Wallace and Lord Mackay, observed raises issues with regard to territoriality in respect of the competence of the Scottish Parliament. I do not want to go into the detail of that at present, but one notices that its competence is limited in that respect, and by reference to EU law as well. Therefore, we do not consider that, at the end of the day, we can appropriately accept a situation in which the devolved Administration can exercise a veto over the exercise of power by the United Kingdom Parliament in situations where it is being exercised for the benefit of the UK as a whole. I hope that that goes some way to explaining, without looking at the complexities of the 1998 Act, why we do not feel we are in a position to accept the position expressed by the Scottish Government on this point.

We simply regret the fact that, despite the very significant efforts—I underline “significant”—of the representatives of the Welsh Government and the Scottish Government in producing an outline agreement, it has not been possible to persuade the Scottish Government to join us on that point.

The noble Lord, Lord Wigley, suggested that this might reflect a lack of trust. As I have observed on previous occasions, this is not an issue of trust. This is an issue of constitutional propriety. Whatever view one takes of the devolved settlement and of where we are with regard to the legislation on that, at the end of the day it is not appropriate to accept that one of the devolved Administrations could effectively exercise a veto over legislation for the benefit of the other members of the Union—namely England, Wales and Northern Ireland.

[Lord Wigley]

I thank the Minister for the detail in which he is responding to this debate and the work that he has undertaken. None the less, there may be issues such as the sheep meat regime, which we have used in a number of circumstances as an example where the differential impact of policies in one area such as Wales may be much greater than the impact in other areas. To that extent, the wishes of the Welsh Government in that context should have a greater weight, in the same way as when Welsh Ministers represent the UK in the Council of Ministers to discuss the sheep meat regime. Is it not possible to fine-tune the Government’s proposals to enable that happen?

[Lord Keen of Elie]

With respect, I must say that it is our clear intention, which is reflected in the memorandum of understanding in the agreement, that we will engage with the devolved Administrations in the consideration of these framework agreements and their application. Of course, these matters will be taken into account at that stage. But I do not consider it appropriate to bring that sort of granular detail into this Bill, which is designed for a very specific purpose. I hear what the noble Lord says and, clearly, we wish to proceed on the basis of mutual respect and understanding with the other devolved Administrations.

In that context, I underline the point in response to a query raised by the noble and learned Lord, Lord Hope, speaking, I understand, on behalf of the Scottish Government who are not otherwise represented in this House. There is no question of this process under Clause 11 being somehow the thin end of the wedge so far as the devolution settlement is concerned. The devolution settlement is a reality of our constitutional situation and one that we extended under the 2016 Act, really quite recently, in light of the Smith review. We continue to respect, understand and wish to apply the devolution settlement. But it is a devolution settlement that has to work for everyone in the United Kingdom. I return to the point that it cannot work for everyone in the United Kingdom if one devolved Assembly or Government assume that they have the ability to exercise what amounts to a veto over legislation that is relevant, pertinent and important to the entirety of the United Kingdom.

I move on to address one or two additional points raised by noble Lords in respect of these matters. The noble and learned Lord, Lord Morris of Aberavon, referred to finance and whether the Welsh Government had missed a trick. I do not believe that they did for a moment. Indeed, they put themselves one step ahead by embracing this agreement and the amendment. But the noble and learned Lord raised a point about funding. He is right to point out that our agreement for the Welsh Government does not speak to funding but that is not to say that funding has been forgotten or put to one side. Clearly, it is a matter that will be addressed. We recognise the importance, for example, of the Barnett formula. We understand why there is concern, particularly about agricultural funding under CAP Pillar 1 under the current EU budget that runs to 2020. We have provided a degree of certainty by promising to continue to commit the same total cash funds for farm support across the UK until 2022. At present, the Secretary of State for the Environment is in close discussion with his counterparts in the Welsh and Scottish Governments on exactly how our agricultural systems should work outside of the EU. I stress that that is not a matter for this Bill. This is the Bill that provides for our exit and our exit alone, so I hope that the noble and learned Lord will accept that. He raised the question of public procurement—again, these issues are not for this Bill but we are clearly conscious of them and they will have to be addressed.

The noble Lord, Lord Griffiths, also raised the question of whether further areas might be the subject of reservation under the freezing provisions of the amendment. We have identified 24 areas for frameworks but a number of other areas that could be the subject of regulations going forward are still subject to discussion. I acknowledge that. Noble Lords may recollect that we published the list of frameworks and included not only the 24 areas I have referred to, but a further 12 where there is ongoing discussion about how they will be addressed and resolved.

I am conscious that I have not answered every question that has been posed. If noble Lords are concerned that I have not addressed a point that still concerns them about Clause 11, as amended, I would be content to receive their queries and write to them. In the event that I write to any noble Lords on this issue or any issue relating to this clause, I will place a copy in the Library. I seek to reassure noble Lords on that point. With that, I will formally move each amendment. I am sorry—the noble and learned Lord, Lord Hope, has to reply.

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Moved by

[Lord Wigley]

91: Clause 11, page 8, line 43, at end insert—
“( ) This section may not come into effect until—(a) the Scottish Parliament has passed a resolution approving the provisions in subsection (1);(b) the National Assembly for Wales has passed a resolution approving the provisions in subsection (2); and(c) the Northern Ireland Assembly has passed a resolution approving the provisions in subsection (3).”

[Lord Wigley]

My Lords, Amendment 91 stands in my name and those of the noble Lord, Lord Steel of Aikwood, and the noble and learned Lord, Lord Hope of Craighead. It would require the consent of each of the devolved parliaments to be obtained before Clause 11 comes into effect.

Amendments 107 and 108, standing in my name only, provide that none of this Act, except for this clause, would come into force until the Prime Minister was satisfied that resolutions signifying consent have been passed by the Scottish Parliament, the National Assembly for Wales and, unless direct rule is in place, the Northern Ireland Assembly. Both amendments deal in different ways with the element of consent relating to the Act. Both would enshrine the Sewel convention in law. The Sewel convention dictates that the UK Government shall not normally legislate in areas of devolved competence without consent. Consent is sought through a legislative consent Motion. Very rarely do the devolved Parliaments withhold consent. It has happened I believe—I can be corrected if I am wrong on this—only once in Scotland and once in Northern Ireland since 1999. Ironically, it has been used seven times by the National Assembly for Wales. I am not quite sure what that tells us.

The point I am underlining is that withholding legislative consent is not used lightly. It is treated with caution and respect. It is the only constitutional tool available to the devolved Parliaments to challenge the balance of power across the British Isles. However, we know from the Miller case on the Article 50 Bill that the Sewel convention is merely that: it is a convention. The UK Government are wholly within their rights to override any decision made by the devolved Parliaments in relation to this Bill or any other Bill deemed within devolved competence.

I have spoken at length on previous occasions about the need for the Sewel convention to be enshrined in law in relation to this Bill. This is the most wide-ranging constitutional Bill since the European Communities Act 1972. I have spoken at length about the need for the devolved Parliaments formally to consent to Clause 11—I shall not repeat those arguments. I will, however, point to the most recent developments whereby the Welsh Labour Government have implied consent to the Bill, having accepted the amendment to Clause 11 laid by the Government, although time will tell whether that will carry through the Assembly. Those same amendments are insufficient for the Scottish Government and every opposition party in Scotland except the Scottish Conservative Party. The main sticking point for these parties is consent.

The UK Government have tried to devise a new meaning for consent in relation to the functions of Clause 11. They seem quite deliberately to be confusing “consent” with a consent decision. There is a difference, but I think that everybody who reads about this matter in the generality may not be aware of it. The UK Government can impose restrictions on the National Assembly for Wales’s competence as long as a consent decision has been made—not that consent has been obtained. The substance or result of that consent decision is immaterial. The UK Government can steam ahead even if a consent decision is not made. This, quite frankly, is a farce. I believe that there will be a lot of public discussion about that as matters move forward.

We have reached a point in history whereby the current constitutional arrangements, the political conventions underpinning the UK’s intragovernmental relations, are under pressure and in danger of unravelling. In the way that the UK Government are handling consent, they are making it a concept whose understanding among the public is in some doubt and it is causing severe mistrust across the four nations. I urge the UK Government to act, to listen to the Scottish Government and to come to an agreement on consent and a new UK constitution.

Amendment 91 should be grasped by the House today and the Government should accept it to resolve the position in Scotland and to get out of the unholy mess in which they have landed in Wales. I beg to move.

[Lord Hope of Craighead]

My Lords, I have put my name down in support of the amendment. The arguments which led me to do that are those which I set out when I was moving my amendment earlier this evening, so I need not take up the time of the House in repeating them. What I said earlier is the full explanation as to why I put my name down.

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That is the very purpose of the proposed amendment to Clause 11. That is where we should be. The amendments proposed by the noble Lord, Lord Wigley, would give the devolved legislatures the final say over those powers that operate in more than one of the devolved legislatures, and therefore we cannot accept them. At the end of the day, the Bill has to provide legal and administrative certainty. I therefore urge the noble Lord to consider again the appropriateness of these amendments.

[Lord Wigley]

I ask for one point of clarification from the Minister. Does he not accept that there is a real danger of confusion in the public mind between allowing a consent order and actually getting consent? In other words, the process can be one where consent is given, is not given or is refused, but whichever of those three outcomes it is, the process can still go on for a parliamentary resolution here by order; and we know that orders, in the House of Commons and here, go through on the nod most of the time. Is that not a deception, giving the impression that there is a consent mechanism when, in fact, it is a pretty meaningless one?

[Lord Keen of Elie]

I simply do not accept the noble Lord’s characterisation of the matter. It is clearly the case that where consent, for example, was sought and not obtained, it would be necessary for the Minister of the Crown to address that, very clearly and specifically. There would be the opportunity, as there always is, for the devolved Administration to make their own views clear as to why they had declined consent. I do not believe that this is in any sense deceptive, misleading or a mirage. These are constitutional requirements that are adhered to and that will be adhered to. It would not be appropriate to introduce the sort of amendment moved by the noble Lord that would, in effect, tie the hands of this sovereign Parliament, so far as this exit process is concerned. Whatever view one might take about the merits of exit, that is neither here nor there. This is a constitutional principle with regard to the sovereign Parliament of the United Kingdom when it comes to legislate for the benefit of the entirety of the United Kingdom. I therefore urge the noble Lord to withdraw his amendment, and indicate that I would not expect to return to this matter at Third Reading.

[Lord Wigley]

I am very grateful to the Minister. I have heard that form of words from his colleagues in the past. Clearly, this is a matter on which there may be a difference of opinion. I realise the need for there to be coherence on a UK scale but there are matters which have a specific effect in Wales, Scotland or Northern Ireland where their interests need to be taken into account. Clearly, we are not going to make progress on this tonight. Therefore, on the basis of the discussion we have had, I beg leave to withdraw the amendment.

Amendment 91 withdrawn.

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Moved by

[Lord Wigley]

92A: After Clause 11, insert the following new Clause—
“Joint Ministerial Committee
(1) The Joint Ministerial Committee is to consist of —(a) one member appointed by the Prime Minister of the United Kingdom; (b) one member appointed by the First Minister of Scotland;(c) one member appointed by the First Minister of Wales; and(d) one member appointed by the First Minister and Deputy First Minister of Northern Ireland,or, if it is not possible to appoint four members, the member appointed by the Prime Minister under paragraph (a) and two members appointed under paragraphs (b) to (d).(2) The persons referred to in subsection (1) may—(a) appoint themselves to the Joint Ministerial Committee; and(b) appoint different members for different meetings of the Committee.(3) The Joint Ministerial Committee must be chaired by the member appointed by the Prime Minister.(4) Where there is a proposal from any member of the Joint Ministerial Committee for a decision to be made on any question, that proposal must be approved only where—(a) in the case of there being four appointed members, there is an affirmative vote by at least three of its members;(b) in the case of there being three appointed members, there is an affirmative vote by at least two of its members.(5) No recommendation is to be made to Her Majesty in Council to make an Order in Council under the provisions of section 11 of this Act without its having been first approved by the Joint Ministerial Committee.(6) No UK framework providing for agreed action on matters which were, on the day immediately preceding exit day, devolved to Scotland, Wales, or Northern Ireland may take effect without its having been first approved by the Joint Ministerial Committee.(7) In this section, “the Joint Ministerial Committee” means the body set up in accordance with Supplementary Agreement A of the Memorandum of Understanding on Devolution between Her Majesty’s Government, the Scottish Government, the Welsh Government and the Northern Ireland Executive Committee.”

[Lord Wigley]

The main purpose of Amendment 92A is to strengthen the position of the Joint Ministerial Committee on EU Negotiations in relation to the creation of UK frameworks.

The amendment is by no means complete and may lack some technical finesse, which the Government could put right in the other place if they were to accept this proposal. It does, however, propose practical ways around the devolution deadlock. We must remember that, at least in the Scottish situation, the court has yet to come to its conclusion, and if it finds in favour of the Scottish Government, the Scottish continuity Bill could remain a block to progress on implementing this measure. The amendment proposes an alternative to the restrictions placed on the devolved Parliaments through Clause 11 and by the Government’s amendments to Clause 11. It proposes that we go beyond mere consultation rights for the devolved nations. I accept that this Bill might well not be the legislative vehicle we would choose to use to formalise such an important intergovernmental mechanism in law, but I want to draw the Government’s attention to the alternatives to Clause 11 as amended.

The JMC already brings together representatives of the Governments of the United Kingdom, Scotland, Wales and Northern Ireland to discuss matters of common interest. However, at present the JMC has no power. It has no legislative underpinning. It is simply a discussion forum, for consultation and voluntary co-ordination. I remind noble Lords that no minutes are taken. It is an essentially informal arrangement. It meets on an ad hoc basis. There was no meeting last year for over six months. In the context of the European negotiations, that is totally inadequate.

As an alternative to Clause 11 to decide on areas which will require UK frameworks—a facility which the Government may well find they need—as things stand, the JMC is not fit for purpose. Strengthened and bolstered, however, it could provide a way of allaying the critics of Clause 11. It could provide a way of collaboratively deciding on areas that will require temporary legislative restrictions on devolved competences, including on England, which is not currently the case in the Bill—an omission which has already rung some alarm bells in Cardiff and Edinburgh.

This is not a new phenomenon. Dr Jo Hunt and Rachel Minto of the Wales Governance Centre have written extensively about the need for robust intergovernmental structures if the UK constitution is to operate effectively into the future. To achieve this, the JMC should be put on a statutory basis, with clear powers, membership and voting rights. This would replace the current—typically British—constitutional arrangement based on gradually evolving informal understandings.

The JMC should require majority voting. Having four members—appointed by the UK Government, Wales, Scotland and Northern Ireland—would imply the need for an affirmative vote of three members, or two out of three if the Northern Ireland Executive is suspended, or if one abstains. This in turn implies that the UK Government would need to secure support from most of the devolved authorities in order to achieve a decision in favour of their proposals. They would no longer be able simply to consult and then overrule them. The JMC would then effectively become a council of Ministers for the UK’s own internal market.

Some colleagues may have noticed that when the Public Administration and Constitutional Affairs Committee visited Holyrood on Monday, Richard Leonard, leader of the Scottish Labour Party, William Rennie, leader of the Scottish Liberal Democrats, and the Green co-convener, Patrick Harvie, all expressed their objection to Clause 11 as it stands. William Rennie in fact alluded to needing a level playing field across the UK for the withdrawal Bill. He said:

“Westminster having the final say isn’t sufficient. There needs to be some kind of mechanism, perhaps around qualified majority voting of some sort”.


This concept is gaining ground and it might just result in consent.

This is a tool the Government need to get out of the predicament in which they find themselves. Even if it cannot be included in the Bill now, I hope the Government will look seriously at finding a greater role for the JMC and at some way of giving it a legislative underpinning. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, in my own profession when you make a mistake you stop, reflect and rectify. Fortunately, we have seen that happen with Clause 11 and I take this opportunity, having not spoken previously, to commend all players who have renegotiated the amendments that we have agreed to this evening. I pay particular tribute not only to Mark Drakeford but to Carwyn Jones, who has had a role in all this—much more quietly than Mark Drakeford, who has fronted it—and all the civil servants who have supported this process. I have certainly appreciated the interventions from the noble Lord, Lord Bourne of Aberystwyth, who has kept me up to date with some of the progress.

This amendment, as proposed by the noble Lord, Lord Wigley, takes us to the next stage because when you are in a completely new situation, you have to do the best you can. You have to learn from past mistakes and find a new way forward. We are facing a completely new, evolving situation. There really need to be new working arrangements between the devolved nations and Westminster, and they have to be on a much more level playing field than before. I can see that the way this amendment has been drafted is not for the Bill and I would not expect the Government to accept it. However, I hope that the principle of having a different framework whereby these discussions happen will be accepted and taken forwards. I also hope that, however the terms of reference for this group are written, they will be open for discussion and come out of discussion with all the nations involved, rather than being centrally generated and offered as something to be signed up to. There really is a need for ownership going forwards.

On rectifying what has happened as we enter the new partnership, which the noble Lord, Lord Wigley, spoke about previously, I thought it was telling that in the previous debate the noble and learned Lord, Lord Morris of Aberavon, mentioned money. One way the Government might like to help re-establish some of the working practices is to build on the debate we had the other day about the Swansea barrage, consider asking the National Assembly for Wales what it would like to do, and help it achieve whatever it feels is best for jobs and the future energy supply of Wales.

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[Lord Adonis]

I congratulate the noble Lord, Lord Wigley, on trying to rewrite the entire British constitution at 10 pm in one amendment to the European Union (Withdrawal) Bill. In his defence, the Government are rewriting the rest of the British constitution in the rest of the Bill, and we have frequently been debating that after midnight, so I do not think that the Government can complain in principle about what he is seeking to achieve.

I shall make two observations on the noble Lord’s amendment and then I will have a question for the Minister. I think that the noble Lord, Lord Bourne, will be replying. That is part of the reason that I got to my feet, as I particularly want to ask him about consultation with local authorities in England.

My first point is that the noble Lord, Lord Wigley—he was quite open about it—is seeking effectively to introduce a formal federal constitution. Let us be clear: if this became law, effectively the devolved Administrations would have a veto over the United Kingdom Government in certain circumstances, depending on how the weighted voting worked. If that happened, this body would become a new second Chamber. We would then have two second Chambers: this body, which would act as one court of debate and veto over the United Kingdom Government; and the House of Lords as well. If we go down that route, which we may well have to go down eventually as we debate House of Lords reform and all the consequentials of Brexit, then we probably will at some stage end up with a proper federal second Chamber and a substantial rewriting of the United Kingdom constitution. I simply note that that is what the noble Lord is seeking to do, taking a significant step forward from the existing JMC.

The second point I am bound to make is that the word “England” does not appear in about 40 lines of proposed legislative change. Even though I am repeating this point at 10.23 pm, it is quite an important one. Some 53 million of the 63 million people who live in this state live in England. The one debate we have had in the entire proceedings on the European Union (Withdrawal) Bill regarding how the government of England will be improved as a result of this Bill was on an amendment moved, I seem to recollect, by the noble Lord, Lord Shipley, on what the consultation and institutional procedures are going to be after we withdraw from the Committee of the Regions. I seem to remember the Minister saying that he was going to meet local authority representatives in England soon and that he did not rule out—I pressed him on it and got a slightly vague answer, but he was trying to engage—establishing some institutional mechanisms for the formal consultation of local authorities in England to replace the arrangements in respect of the Committee of the Regions, which is of particular importance to the regions of England because of regional development policies hereafter, when the Regional Development Fund ceases to apply.

I see the noble Baroness, Lady Goldie, has her folder open. Is the noble Lord replying? He is. I wonder whether he could update us on how his consultations are going with local authorities in England. In particular, is it the Government’s intention to introduce some formal machinery for developing consultation with local authorities in England?

[Lord Wigley]

To clarify, the amendment, as the noble Lord will no doubt have noticed, refers to,

“one member appointed by the Prime Minister of the United Kingdom”.

I imagine that would be someone representing England, the point being that there is no Prime Minister of England equivalent to the First Minister of Scotland, the First Minister of Wales and the First Minister and Deputy First Minister of Northern Ireland, as specified in the amendment.

[Lord Adonis]

The noble Lord—I would like to call him my noble friend—gives the game away. He says that he imagines that this person might represent an English constituency. In fact, he might or might not. If the noble Lord, Lord Bourne, were Prime Minister, he comes, I understand, from Aberystwyth. He would then be the representative of the UK Government. In our lifetime, I served under one Scottish Prime Minister. I have never served under a Welsh Prime Minister, but there have been one or two Welsh candidates for that post in the past.

In England we are not very good at this rigorous constitutional thinking. Let us be clear, even if it were an English Member of Parliament or Minister, their role would be to represent the Government of the United Kingdom; it would not be their role to represent England, separate from the Government of the United Kingdom.

Finally, when the noble Lord produces his full draft of a new written constitution for the United Kingdom with his proposal for a federal senate, which I assume will be his next amendment on Third Reading, could he please suggest some arrangements for how England will play a part in his federal arrangements?

--- Later in debate ---

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

I thank noble Lords who have participated in the debate; we all agree it is very late in the evening for such an important issue. I thank the noble Lord, Lord Wigley, for bringing this to the attention of the House and putting his case very crisply. We have already debated possible structures for the UK Government and devolved Administrations to come together in consideration of common frameworks. I do not want to simply repeat those arguments, particularly at this time of the evening, so I will not.

It is important to note that the Government are currently reviewing the existing intergovernmental structures with the devolved Administrations, as agreed by the Prime Minister and First Ministers at the meeting of the JMC plenary on 14 March. It is important that the review closely aligns with our work on future common frameworks. That undertaking was given then, and it is something that we are looking at.

I note a certain irony in the proposal from the noble Lord, Lord Wigley, that, had this been on the statute book, I presume he would have been championing our agreement with the Welsh Government and saying that it was effective because two Administrations out of the three had agreed to it. Nevertheless, despite that very handy point, I must say that I cannot accept what he is arguing for—not for that reason, obviously, but for others.

We have shown that we are flexible in responding to the devolved Administrations’ requests or concerns regarding the operation of the current structures, including on the management of meetings and the content of discussions. We have all benefited from that process. Why would we not want that to be the case? I believe the pragmatism and flexible approach that we have seen, particularly from the Welsh Government—but, yes, extending certainly to Mike Russell’s approach—is something that has benefited us all. However, we do not agree that the solution would be for intergovernmental relations to be placed on a statutory footing, as suggested by the noble Lord, particularly in this amendment. In all fairness, I think he anticipated this point in saying that he realised that it would not perhaps find total favour with the Government, a point on which he is correct.

That said, we hear much of the failures of our intergovernmental structure and no doubt it could be improved, but we do ourselves a disservice if we do not also recognise its successes. I thank the noble Baroness, Lady Finlay, very much for her kind comments about the Government’s approach and about me particularly; I am very grateful for that. She noted that the JMC (EN) has been very effective. It now meets frequently under the chairmanship of my right honourable friend the Chancellor of the Duchy of Lancaster, who has also continued to meet his counterparts frequently between meetings. Indeed, the committee has met today and has made some progress.

We should note that it is through the effective working of the committee that we have been able to make the progress that we have on Clause 11, and it is through this that we have reached agreement with the Welsh Government on the proposals before noble Lords today. Like other noble Lords, I place on record our thanks and our respect for Mark Drakeford, a competent Minister in the Welsh Assembly—not someone with whom I would agree politically on many occasions but he has shown a flexible, pragmatic and collaborative approach. This is grown-up politics in devolution days, and that is the way to move things forward. There was evidence of some of that approach in Scotland as well, to be fair, but ultimately, as we have noted, the JMC is not a decision-making forum. Its role is just to make an agreement that then goes elsewhere—for understandable reasons. That is something else on which I disagree with the noble Lord; I do not think it can be a decision-making body. I can see the use of bringing people together, which we are doing. It is flexible, and that is the way our constitution operates.

I note the points made by the noble Lord, Lord Thomas of Gresford. Some I would agree with, but I cannot really think of anything more chilling than putting it on an inflexible statutory basis, other than the earlier prospect when the noble Lord talked about his appearance in Aberdeenshire in a kilt. That was probably somewhere along the same lines—somewhat chilling. On a serious note, though, I have to say that although I agree it is good to have bodies where we can discuss these issues, flexibility, as this has demonstrated, is of great use.

We must, as we are doing, foster a culture of collaboration, close working and, yes, compromise, which we have seen in the discussions. That is the way to move things forward in the sort of structure we have in our country, in the make-up of the four nations.

I agree with the noble Lord, Lord Adonis, that England is the dog that does not bark—or has not so far. I agree with him on the absence of the word “England” in the amendment of the noble Lord, Lord Wigley. Obviously, the Prime Minister of the United Kingdom, who, as we know with Gordon Brown, does not need to represent an English constituency, is Prime Minister of the whole of the United Kingdom. That perhaps exhibits the difference between me and the noble Lord, Lord Wigley, for whom I have the greatest respect. He perhaps let the cat out of the bag on that point: he or she is not Prime Minister of England but of the whole state.

That said, some important points that we will want to consider have been made this evening. I noted with seriousness the points made by the noble Baroness, Lady Hayter, and have sympathy with the need for some structure that underpins the union. As unionists, we would applaud that. I have always said that the noble Lord, Lord Wigley, is at the acceptable end of Plaid Cymru—he sees the sense of the workings of the union—and I thank him for his input, which I know is well made.

I turn to some points made by the noble Lord, Lord Adonis—off piste but I will happily pick them up—about the Committee of the Regions. Perhaps other noble Lords will confirm this, but I believe that I have written to noble Lords about a meeting that not I but my honourable friend in the other place, Rishi Sunak, had with leaders of local government. That meeting has taken place. If noble Lords have not received the letter yet, it means that it has not yet gone out, but it is certainly in the system. It indicates that it was a positive meeting and that there would be more.

Here we go into the devolved structures that are now very much part of our system. The noble Lord will appreciate that on devolved matters, the Welsh, Scottish and—when that part of the country is up and running with power-sharing—Northern Ireland local government leaders will be in discussion with the devolved Administrations. That is of course a matter for them to take forward. We are taking it forward with all local government leaders, but, in relation to Scotland, Wales and Northern Ireland, only on those matters that are reserved to us. It was a positive meeting—the letter will outline the progress made—but there are to be more meetings. I cannot remember saying anything other than that, and that is all I am able to convey at this stage.

With that, at this very late hour, I thank noble Lords for their contributions on serious issues. I will ensure that the noble Lord, Lord Thomas of Gresford, who made some very technical but, I am sure, valid points, gets a full response. I respectfully ask the noble Lord, who is my noble friend in personal terms, to withdraw the amendment.

[Lord Wigley]

I am very grateful to the noble Lord, Lord Bourne. I take the opportunity to thank him for—

[Lord Bourne of Aberystwyth]

I am very grateful to the noble Lord, Lord Wigley, for giving way. One thing I forgot to say, which I know he will be anticipating, is that we will not be coming back to this issue. I know that he was probably coming on to the fact that I had not said that, so let me say now that we will not be coming back to this at Third Reading, so if he wishes to press the issue, he should do so now.

[Lord Wigley]

My Lords, seeing the noble Lord, Lord Callanan, sitting next to the noble Lord, I took that as read at this stage of the debate.

I wanted to put on record my appreciation and thanks to the noble Lord, Lord Bourne, for the consultation and the opportunity to discuss various aspects of the Bill. I hope that we can take advantage of that in future. I also thank everyone who has taken part in the debate—the noble Baroness, Lady Finlay, the noble Lord, Lord Thomas of Gresford, the noble Lord, Lord Adonis, who has stood up so effectively for England, and the noble Baroness, Lady Hayter—for their contributions.

I have just a couple of quick points. Of course, there needs to be thought about how England comes into any such structure, but the same argument exists now as it probably did 100 years ago: whether it is England as a whole or England on a regional basis, and how that interplays when you have national units elsewhere. That needs to be thought through.

I will obviously withdraw the amendment in a moment, but I hope that out of this debate, two avenues of thought can proceed on the post-Brexit situation. One is, what will become the equivalent of the Council of Ministers when we have a multinational United Kingdom as a single market? Thought needs to be given to that, and it may be something that can be pursued outside.

Secondly, if we cannot put the JMC on a legislative basis, how can we at least make it much more formal and therefore more effective, so that it plays the role it has the potential to play? As the noble Lord, Lord Thomas, outlined, it has not always done so as effectively as it should. I hope that the noble Lord, Lord Bourne, might be able to sow the seeds of thinking on that in other parts of government, and that we do not allow the water just to run into the sand from this short debate tonight. On that basis, I beg leave to withdraw the amendment.

Amendment 92A withdrawn.

European Union (Withdrawal) Bill

Lord Wigley Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

Moved by

[Lord Wigley]

355B: Clause 19, page 15, line 18, at end insert “, subject to subsection (2AA)”

[Lord Wigley (PC)]

My Lords, I shall move Amendment 355B standing in my name and speak to Amendment 357ZA, also in my name, both of which are paving amendments to the substantive Amendment 358B, in my name and that of the noble Lord, Lord Clancarty— I mean the noble Earl—to which I will also speak. I hope that he will also speak to that amendment in a moment.

Amendment 358B states:

“None of the sections of this Act may come into force unless it is an objective of Her Majesty’s Government, in negotiating a withdrawal agreement, to secure continued EU citizenship for UK citizens”.


This amendment comes after our earlier debate on this subject area, but it is none the less worth revisiting the matter in the light of the publication of the withdrawal agreement and subsequent announcements by both the UK Government and the European Union.

--- Later in debate ---

[Lord Adonis (Lab)]

My Lords, I completely understand the motivation of the noble Lord, Lord Wigley, and I am of course entirely with him in wanting to stay in the European Union, but I am at a complete loss to understand how it is possible for British citizens to continue having European citizenship after we have left the European Union. I simply do not understand how it is possible to have citizenship of an organisation of which we are not a member. The specific issue of what happens to European Union residents in Britain, given that the Government have already committed that their rights will be guaranteed for a further seven years, is a completely different point. Assuming that the noble and learned Lord will be replying to the debate, will he tell us what the precise relationship will be between the European Court of Justice, European law and the seven-year guarantee of the rights of EU citizens currently resident in the UK?

[Lord Wigley]

The noble Lord understandably challenges the point, and he is right to do so, and I too would much prefer we were not leaving the European Union. But there are precedents—I quoted the example of Greenland—and there is also the parallel question of associate citizenship, which has been raised as a possibility by people with a background in international law as a perfectly viable option.

[Lord Adonis]

My Lords, my understanding is that Greenland became independent of Denmark, so the situation was very different from the one we are talking about here.

It is very important that we do not offer people false hope. It is important over the next year that people understand the full gravity and consequences of the decision the Government are proposing to impose on the country. There are no halfway houses. What does this thing called associate citizenship amount to? It amounts to a row of beans. There is no point offering people the prospect that we can somehow have the benefits —it is a classic case of having our cake and eating it. It is important that those who are in favour of staying in the European Union do not somehow think there are all kinds of halfway houses, which might give us all the benefits without staying in the European Union. It seems to me a very simple proposition: if people want to enjoy the benefits and rights of citizenship of the European Union, there is only one way to do it and that is to remain a member of the European Union.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I have the greatest respect for the noble Lord, Lord Wigley, but my head says that this will not work and that the noble Lord, Lord Adonis, is absolutely right. Citizenship is defined in the treaty as being a citizen of a member state. When we cease to be a member state, we all lose our citizenship, unless we are lucky enough to live in Northern Ireland or to be born in Northern Ireland. I do not think the Greenland precedent works, on the grounds of chronology. It was not actually Greenland seeking independence, and it preceded the concept of citizenship emerging in the European Union in the Maastricht treaty.

[Lord Wigley]

Does the noble Lord not accept that although it happened chronologically before the treaty of 1992, the rights continue afterwards and therefore are respected?

[Lord Kerr of Kinlochard]

I am afraid it does not apply to 60 million of us. It did apply to 40,000 Greenlanders a long time ago. My concern is that we should be careful in what we ask the Government to do. The noble Lord, Lord Wigley, said that this is purely a matter of political will, and that the Government could fix this if they chose to. I am afraid that this is not the case.

I would like to ask the Government if they could construe for us the missing paragraph 32 from the draft withdrawal agreement of 28 February. The Minister will remember the Leader of the Opposition’s question on the Statement on Monday. Paragraph 32 was in the draft of the withdrawal agreement of 28 February. It read:

“In respect of United Kingdom nationals and their family members, the rights provided for by this Part shall not include further free movement to the territory of another member state”.


It seems to me that the Government should exercise political will here and carry on negotiating. I was encouraged to see that the paragraph had dropped out, because it limited the rights of UK citizens living in continental Europe after we leave, if we leave, to the particular country in which they live. It seemed to me that these rights ideally should be portable, so that somebody living in France could live in Italy or Spain and retain these rights. I have always thought it a little harsh of the European Union side in this negotiation to take the opposite view. I was encouraged to see that prohibition on the rights extending to residence in another member state had dropped out of the text that was looked at in the European Council.

I hope this means that the Government have either succeeded in killing that prohibition or, perhaps more likely, are themselves continuing the fight to try to get rid of that prohibition. It would be very useful to know. I think that leaving the European Union will be a disaster for all of us. I resent the fact that I will no longer have any rights as a citizen. But it seems to me that it is particularly awkward for those people whose legitimate expectations when they chose to live in France, Italy, Spain or wherever will be reduced. They will still be able to exercise their rights when they live in the country to which they chose to move, but they will not be able to choose to move to another country and retain these rights. I would be glad if the Minister could elucidate the answer to the Leader of the Opposition’s question on the Statement on Monday.

--- Later in debate ---

[Lord Keen of Elie]

I shall just finish the sentence, so will the noble Lord please sit down? It would effectively prevent the present Bill getting on to the statute book and achieving its intended purpose: to ensure legal certainty at the point at which we leave the European Union.

[Lord Wigley]

I am very sorry to hear that this would prevent the Bill reaching the statute book. Notwithstanding those feelings, I ask the noble and learned Lord to address the point I raised in my earlier comment about the 1969 Vienna Convention on the Law of Treaties that that convention,

“will be binding on all remaining Member States, the UK, and the EU itself post Brexit”.

Does he accept that the convention,

“ensures that the status and rights of those EU citizens resident in the territory of the Union and those resident in the UK will continue”,

after Brexit?

[Lord Keen of Elie]

I hope the noble Lord did not pay good money for that opinion. He will perhaps elaborate on the position in due course, but I do not accept that proposition.

[Lord Wigley]

I will not come back after this intervention, but has he read the document to which I referred, or have experts in his department done so?

[Lord Keen of Elie]

I have not read the opinion in question, but I am not unfamiliar with the terms of the Vienna convention on treaties.

--- Later in debate ---

[Lord Wigley]

If between now and Report he or his advisers have an opportunity to read that opinion and, having done so, feel that what has been said in a Chamber does not fully reflect the situation, will he be prepared to come back at a later stage?

[Lord Keen of Elie]

I am perfectly content to look at the opinion.

[Lord Keen of Elie]

The reality is that if Brexit takes place we will not continue to be EU citizens.

[Lord Wigley]

My Lords, I am very grateful to everyone who has participated in this short debate, particularly to the noble Earl, Lord Clancarty, who I am sorry I relegated in my earlier reference. I also thank the noble Lord, Lord Adonis, with whom I usually fully agree on these matters, although it was encouraging to hear that there may be alternatives by not pursuing this Bill. I thank the noble Baronesses, Lady Smith, Lady McIntosh and Lady Hayter, and the noble Lords, Lord Davies, Lord Kerr and Lord Roberts of Llandudno, for their comments. I think I have got as far as I am likely to get on this. I was grateful to the Minister for saying that he is prepared to look at the opinion to which I have been referring. I can ask no more than that, and on that basis, I beg leave to withdraw the amendment.

Amendment 355B withdrawn.

European Union (Withdrawal) Bill

Lord Wigley Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord Bassam of Brighton]

I was sort of reassured by some of the Minister’s words when we were dealing with the last group. I had the feeling that at last we have found a Minister on the Front Bench who is actually listening to what noble Lords are saying about some of the delegated powers provisions in the legislation. I hope that he can offer us some reassurance, but I share the concerns of the noble Lords, Lord Newby, Lord Pannick and Lord Lisvane, and my noble friend Lord Liddle.

Ministers are seeking to take an astonishingly wide power. If we start to apply it practically to some of the legislation being carried over from EU to UK law and think of some of the fundamental rights that that involves, and if Ministers then have the sweeping ability to bring forward anything that they think is relevant to change one of those provisions, we are getting into the territory of a statutory instrument that goes far beyond its original intention. The Constitution Committee was absolutely right to raise concerns about this and we need rather more than reassurance this morning on it. I rather share the view of the noble Lord, Lord Cormack: this is one clause that is probably fit to be withdrawn. I think that that would satisfy your Lordships’ House. We obviously have to listen to what the Minister has to say, but this is pretty profound, as I think he and the Government know. I hope that this is a try-on that we have seen off.

[Lord Wigley (PC)]

My Lords, I had not intended to intervene in this debate—the devolution aspects will come later today—but if one looks at paragraph 17 of Schedule 7, on page 51, and the interplay that it has with Clause 17, on page 14, I read it that the powers exercisable by the Welsh or Scottish Ministers under Schedule 7 are subject to the orders that they can make but that, if they do not make them, they can be over- ruled by the provisions of Clause 17—paragraph 17 on page 51 gives a Minister the right to do that. Am I interpreting this rightly?

[Lord Goldsmith]

My Lords, the provision indeed looks a bit innocuous when one first looks at it. The noble Lord, Lord Newby, is absolutely right. But the more one examines it, as has been demonstrated by speeches from noble Lords in this short debate so far, it is much more than that.

Two ways have been proposed for dealing with this clause. One had been to follow the golden thread of “appropriate” and “necessity” that the noble Lord, Lord Lisvane, referred to. Amendments 253 and 254, which have already been debated, touched on that and we will have to come back to those important proposals in due course. But this amendment goes even further in proposing that the power should be removed. As it stands, the idea that the Minister can, by regulation, make any change that he or she considers appropriate under this Act is extraordinarily wide. I therefore share the hope of other noble Lords that we hear from the Minister—having seen, as I am sure he has, how wide this provision is—that something needs to be done: probably something more radical than simply changing the words “considers” and “appropriate”.

We will listen to what he says. However, the powerful speeches by the noble Lords, Lord Pannick, Lord Cormack and Lord Wigley, and by my noble friends Lord Liddle and Lord Bassam, demonstrate that there is a real risk—as the noble Lord, Lord Cormack, put it—that this is another example of the accretion of power to the Executive at the expense of Parliament. It is our duty to put the brakes on when that sort of provision is put before us. Again, I look forward to what the noble and learned Lord will say; I am sure he has seen the point—in all languages. We need a clear commitment, not just to comfort, but to a change that will satisfy this House that it is not being asked to sanction untrammelled power to the Executive in such an important area.

--- Later in debate ---

[Lord Keen of Elie]

With respect to the noble Baroness, I do not believe that any responsible Government would contemplate abusing powers given to them by Parliament. Indeed, if they did, they would be brought up very short by a sovereign Parliament.

[Lord Wigley]

Could I press the Minister further on the point that I raised? Will he clarify whether the powers that are being accorded in this clause will enable a Minister at Westminster to overrule powers normally exercisable by Ministers in Cardiff or Edinburgh?

[Lord Keen of Elie]

I do not believe that they would be employed to overrule powers that are legitimately being exercised under the devolved arrangements. That is not their purpose. Their purpose is to make consequential amendments that will bring the statute book into line with our departure from the EU.

[Lord Wigley]

I am sorry, but those consequential amendments may well include the need to change an instrument that is being exercised in Scotland or Wales. If that does not happen, does it give the power for a Minister in London to exercise those powers?

[Lord Keen of Elie]

Ultimately, the UK Parliament would have the power to ensure that the statute book in the devolved Administrations also reflects our departure from the EU.

European Union (Withdrawal) Bill

Lord Wigley Excerpts

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, the Committee is indebted to the noble and learned Lord, Lord Hope of Craighead, for his detailed analysis of the Bill as it originally stood, and the points arising. My name is on the amendment, but I would be happy to deal with the important issues of principle that prompted me to sign some of these amendments, in an attempt to honour the spirit of the original devolution settlement, when we deal with the group containing the government amendments. Obviously, however, I support the amendment that the noble and learned Lord has moved.

[Lord Wigley (PC)]

My Lords, I too support the noble and learned Lord’s amendment, and I entirely agree with his approach—that it is best to focus on a couple of larger debates rather than going through all the minutiae at this point. However, it is important to underline the principle—that matters coming back from Brussels that deal with devolved subjects should go to the devolved authorities. It is on that principle that I hope we shall concentrate as we move forward.

[Baroness Finlay of Llandaff (CB)]

My Lords, I too thank my noble and learned friend Lord Hope of Craighead for introducing this set of amendments, to which I have added my name, so concisely and well. I start the afternoon by placing on record my thanks to Ministers, especially the noble Lord, Lord Bourne of Aberystwyth, and the Secretary of State for Wales, who have been trying to keep us—certainly me—up to date in relation to Wales. I have had correspondence during the morning. I hope that the spirit of the debate today will recognise the importance of the devolved competences, and the need to respect them and find a way forwards. Like others, I will reserve my main remarks for later, in the larger debates.

--- Later in debate ---

[Lord Hope of Craighead]

If the noble Lord will forgive me, I was suggesting that we deal with that issue when we look at Clause 11 and the government amendments. The noble Lord raises a very important point, but it does not really relate to my amendments. I think it is much more fundamental and we will need to discuss it in light of the discussion of the reform of Clause 11. I hope I have answered the noble Lord’s question. There is a basic difference between the competence arrangements relating to EU law, which does not apply once we leave the Union, and retained EU law, either domestic or direct, as it comes in under Clauses 2 or 3.

Having digressed somewhat in my reply, I again thank the Minister for her helpful reply. I will be happy to withdraw the amendment in due course; however, there are others in the group that others may wish to speak to.

[Lord Wigley]

My Lords, I will strike a different note as I put forward what are perhaps the substantive arguments—as we see them—in relation to these issues.

Amendment 304 has for some reason been grouped with these amendments, which does not make an awful lot of sense. It stands in my name and that of my noble friend Lord Hain, and is based on one of the key amendments drafted by the Welsh and Scottish Governments ahead of the Bill’s passage through the other place. That amendment is also covered by part of Amendment 303, which surprisingly will not arise until very late tonight. None the less, Amendment 304 goes to the heart of the widespread criticism of Clause 11 as it currently stands—I am aware that amendments may come forward later—and lifts the restriction it places on the devolved parliaments in relation to EU retained law.

My fear—and that of all parties in the National Assembly—is that giving UK Ministers control in the EU withdrawal Bill over areas of retained EU law relating to matters which fall under devolved competences will, in effect, tend to normalise direct rule from Westminster in these areas. Given the powers under this and other recent legislation which enable Ministers at Westminster to amend devolved legislation by order, this will, in effect, undermine Welsh sovereignty in areas which are devolved to Wales and blur the responsibility of the National Assembly. Furthermore, there is a fear that this will set a precedent for this and future UK Governments, who may well be tempted when a devolved Government act in a way with which they disagree, to find a justification to intervene. This would be particularly galling if it were on issues where Welsh interests were seen to be in conflict with England’s perceived interests—perhaps validly so. The Prime Minister has, of course, pledged never again to “devolve and forget”. That can be interpreted in more than one way, and in this context it has generated quite a few ripples of unease.

In order to persuade the devolved parliaments to agree to legislative consent orders—which are currently not forthcoming from either the Scottish Parliament or Welsh Assembly—the UK Government have tabled a set of amendments to Clause 11 which we will consider later. The Government’s proposals would provide a power to make regulations in certain devolved areas currently subject to EU law, and would prevent the devolved legislatures from taking action in the areas covered by those regulations. Whether noble Lords in this Chamber like it or not, this is regarded by members of all parties in the National Assembly as reflecting a growing approach by the UK Government—namely, in areas where devolution may be a nuisance or a hindrance to the UK Government’s agenda—to roll back devolution, or at the very least to attenuate it, and to centralise certain powers in London. The Welsh and Scottish Governments share this fear. That is why, in the Senedd—thanks largely to the lead of my inspirational colleague Steffan Lewis AM—the Welsh Government have introduced a continuity Bill to safeguard Welsh devolution. That Bill is currently progressing through its legislative steps with all-party support. Assembly Members are taking such a step not as a threat but as a safeguard: they still hope that there may be a meeting of minds between them and Westminster, and I understand they have even drafted a sunset clause which could be triggered if such an agreement were achieved. They look to this Chamber today to take a stand in facilitating that meeting of minds and to ensure that the centralist direction to which they feel they are being subject is brought to an end.

Alongside the amendments which the UK Government have tabled, they have published a list of 158 areas of intersection of devolved competences with EU law, noting that they envisage regulations temporarily restricting devolved legislatures’ competence—in advance of more substantive arrangements in primary legislation —in up to 24 of those areas. Taking such steps is, rightly or wrongly, widely perceived as a power grab. These 24 areas, all of which apply to both Wales and Scotland, cover a significant part of devolved responsibilities, including agricultural support, fisheries management, environmental policy, public procurement and food standards. These areas are vital for industries and businesses in Wales, and for the Welsh economy. The amendments would allow the UK Government to make regulations in any or all of these devolved areas.

--- Later in debate ---

[Lord Foulkes of Cumnock]

Hear, hear.

[Lord Wigley]

Indeed—the very point that the noble Lord, Lord Foulkes, was making earlier; I agree. Given the current role of EU law regulating action in all parts of the UK in such subjects, partly to facilitate a single market with a level playing field—the point that the noble Lord was making—and partly to ensure that in matters which by their nature cannot be constrained by political borders, there is a coherent common approach. I accept this. Indeed, last week I proposed an amendment to provide a framework agreement for environmental policy—which, quite amazingly, the Government rejected. However, if there are to be such frameworks, the devolved Administrations and the devolved legislatures, whose legislative competence is being constrained by such frameworks, must surely agree the proposed steps jointly with the UK Government. I have tabled an amendment to an amendment in the name of the noble and learned Lord, Lord Mackay, providing a mechanism to this end. That will be debated later so I will not anticipate that debate now.

Let us be clear: unless there is agreement between Westminster and the devolved Governments on these matters, the continuity Bill will be enacted by the Assembly and will take precedence in Wales. Surely it is time for the UK Government to reconsider what is seen as an obdurate stance and agree a sensible, balanced and respectful way forward.

[Lord Wallace of Tankerness]

My Lords, I had not intended to speak in this debate because in many respects government Amendment 302A answers the initial point of concern—that the current limitation on competence in the Scotland Act under European Union law would be replaced by a restriction on retained EU law. Of course, under the new amendment that has gone, but there is a wider point on which the Minister could perhaps assist the Committee, which arises from the draft agreement on the transitional period.

As I understand it, during the transitional period basically the acquis will still apply. I have looked at Articles 4 and 82 of the draft agreement. Article 4 says:

“Where this Agreement provides for the application of Union law in the United Kingdom, it shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States”.


Article 82 says:

“The Court of Justice of the European Union shall continue to have jurisdiction for any proceedings brought before it by the United Kingdom or against the United Kingdom before the end of the transition period”.


We will have a lot of debates this afternoon about whether UK Ministers, Scottish Ministers or Welsh Ministers will be exercising powers after exit day, but can the Minister indicate how the United Kingdom Government see the position? If we are going to have to abide by European Union law having the same legal effect as it produces in the Union, is there any room for movement at all? How is effect going to be given to that if, under Clause 1 of the Bill, the European Communities Act 1972 has been repealed?

--- Later in debate ---

I give another simple example: food labelling. If the Scottish Government decided to make regulations as soon as they had the power, when these 153 competencies returned, to change the provisions on food labelling only for Scotland, within their devolved competence, a manufacturer of jam in York would find it very difficult to sell his product north of the border, or he would have to label it in two different ways.

[Lord Wigley]

Will the noble and learned Lord give way?

[Lord Keen of Elie]

No, perhaps I can finish this point. I am just trying to explain why in these 24 areas it has been identified as very material that we should retain and then develop frameworks.

--- Later in debate ---

[Lord Wigley]

I just wanted to intervene on this very point about pesticides. The Minister will be aware that the Welsh Government did in fact legislate on the question of genetically modified crops, and it was forecast that the roof would fall in. It did not; it was quite possible to have a different regime in Wales from that in England. As he addresses the rest of the points that have been raised, will he tell us how the regime will be allowed or not allowed to work in the context of agricultural support? Sheep farmers may well want and be entitled to get support from the Welsh Government. The Welsh Government may want to give them that support but, if it is argued that that distorts the UK market, they would not be able to do so. That is the sort of issue that causes concern.

[Lord Keen of Elie]

As regards agricultural support, that is another subspecies of agriculture. I am dealing with those matters that fall within the 24 identified areas where we find it necessary to retain and operate the single internal market. Not all areas within those 24 competencies are going to have to be retained for the purposes of that market. There are areas which we will devolve.

--- Later in debate ---

[Lord Wigley]

Does the Minister not realise that the Labour Government in Cardiff feel as strongly as the SNP Government in Scotland about this matter? This is not a matter of party politics; it is a question of where power lies. That is why the term “power grab” has arisen. When he says how outrageous it would be if Scotland, Wales or Northern Ireland had a veto, does he not realise that the structure that he is advocating gives England a veto? It gives Westminster a veto; that is what is causing so much trouble.

[Lord Keen of Elie]

No. With great respect—

--- Later in debate ---

[Lord Hope of Craighead]

The Chief Whip did not discuss the matter with me but I support the position he is taking because it is very obvious that, once we get into Clause 11, we will be discussing it for some considerable time. I would have thought that the sensible thing would be to break now and to come back and deal with it in one go, rather than break up the debate, which we will be forced to do otherwise.

[Lord Wigley]

My Lords, as a party of one, I do not expect to be consulted on these matters—I realise that there are limitations. However, on Monday night we sat here until after 1 am, and I spoke after 1 am. Earlier we had a break of 20 minutes for food. Why on earth, when there is time available now, can we not carry on with the Bill, certainly if the implications are that we might go on until late again tonight?

[Baroness Goldie]

My Lords, I beg to move that the House do adjourn during pleasure until 6 pm.

European Union (Withdrawal) Bill

Lord Wigley Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Mackay of Clashfern]

I am not suggesting that for a minute. I am suggesting that what is required is a single market which is the necessary concomitant of having cross-border trade. I do not think that the price of alcohol in Scotland would necessarily affect that. It might be wise for me, if I wanted to buy alcohol, to do it when I was here rather than in Scotland. I may say at once that I am not particularly keen to do that either. That is not an example of the need for there to be no obstacle at the border, because if I have to pay for the whisky in Scotland, I can take it with me, subject to not coming on an aeroplane, I suppose. It is a matter of what is required.

It is realised by various people who were at the meeting of the Joint Ministerial Committee that framework agreements will be required in certain areas. That is because, for the single market in the UK to be effective, there must be agreement across the legislative areas. It follows, as night follows day, that the legislative vehicle for dealing with a market which is across the whole of the UK is a vehicle which has jurisdiction over the whole of the UK. It cannot be otherwise. That seems to be common sense and you do not need to be a lawyer to think that.

My next point is the “but” I was coming to before I was helped by my noble friend. I stress that it is highly desirable, when you are seeking to get a single market, to get the agreement of the components. They have different interests, but there is a very strong pressure to secure a single market. I am sure the Scottish traders do not wish to have something at Berwick-upon-Tweed which requires them to pay out money to English customs. It is absolutely clear that there is a very good pressure to reach agreement. As I say, I am assured by the White Paper that the Welsh Government put forward some considerable time ago, which was referred to earlier. I say in passing that that paper addresses itself to wider constitutional issues about future government in the United Kingdom and how it is not working very well and what-not. But I need something that will work now for the very limited purpose of getting the single market arrangements secure before Brexit comes into effect.

I have suggested in my amendment that there should be set up a group which consists of representatives of all four countries. I think it is wise to specify who they are. I have also specified, to try to reach agreement, that the chairman of the group should be decided on by the group. The Lord Advocate mentioned to me that one of the features of the present committee is that it is always a UK Minister who presides. There will be a certain amount of interest in the skill of the chairman in reaching agreement. It is often quite an important position—I have not been chairman of many committees that have not reached agreement—and it is an important aspect of the matter. I have therefore suggested that.

Of course, the details of this are very much matters for your Lordships to consider, but that is the ultimate thing: that the group should look at all these questions. If, as I am assured, they are very keen to reach agreement, I have no doubt whatever that there is a very high prospect that they will reach agreement—I emphasise that—when you consider that new rules must come into operation at the point of Brexit or the end of the implementation period, whichever is the later, and that if there was failure to reach agreement it would require the action of the United Kingdom Parliament. I am prepared to limit the amount of time for that to three months to emphasise my confidence that agreement will be reached and that therefore a formal legislative enactment in the United Kingdom with full consent from all four members of the committee would be the result.

This is a simple way of dealing with the matter, which is dealt with in a rather complicated way by the government amendment. The government amendment appears to inject powers into areas which may be devolved in fact. Mine makes it absolutely clear that the devolved powers are to be immediately made available to the Governments of the devolved legislatures; it is only the single market power that I consider needs to be reserved.

My very good supporter, the noble Lord, Lord Wigley, has suggested in his amendment that there should be some extraordinary—I do not mean that in a pejorative sense—tribunal to decide when there is disagreement. I certainly hope that there will not be disagreement, but I have provided that if there is disagreement the group itself must specify what that disagreement is, to make the issue for the United Kingdom Parliament as small and definite as possible. In my analysis, the single market is within the legislative competence of the UK Parliament. All the four countries are represented there. I remember that the Scottish party that got many seats in the 2015 election said that one of the purposes was to provide a strong voice for Scotland in the Parliament of the United Kingdom. I have no doubt there is a pretty strong voice for that purpose. Having all four countries represented is as good as any kind of remarkable thing with Speakers. I am not sure if my noble supporter has asked the Speakers whether they want to take this on, but I think that is not in their competence. That is a job for the legislative assembly of the United Kingdom which is set up under our constitution and which I believe would reach a very good agreement on this point, if it had to. In the meantime, I sincerely hope it will not be necessary for it to do anything except legislate with a form agreed by the four constituents.

[Lord Wigley (PC)]

My Lords, I tabled Amendment 318AA as an amendment to the amendment in the name of the noble and learned Lord, Lord Mackay. I did so with due deference and with considerable temerity to be trampling on the legal pastures in which he has such expertise and I am a layman. None the less, I confirm that I have had conversations not only with Mr Mike Russell, to whom the noble and learned Lord referred, but with people from the Welsh Government—and, as he raised the question with me, yes, I have discussed it with the Presiding Officer of the National Assembly, Elin Jones, who sees no difficulty at all with such a mechanism.

With that prelude, I thank the noble and learned Lord, Lord Mackay of Clashfern, for tabling Amendment 318A, which he did following the earlier debates in Committee. Those debates pointed to a crying need for a sensible mechanism to be found for dealing with the vexed issue of securing agreement between Westminster and the devolved legislatures regarding those matters which the UK Government feel must be handled on a UK level, even though they deal with areas that may be of devolved competence.

--- Later in debate ---

[Lord Forsyth of Drumlean]

Will the noble Lord allow me to remind him that the Scottish Parliament had great difficulty in passing that legislation, because it was contrary to the European Commission’s views on the single market?

[Lord Wigley]

I have no doubt it had difficulty in passing it. None the less, the objective was a very valid one—to address the problems perceived in Scotland with regard to the level of alcohol consumption et cetera. The proposal was supported by many people in the social sector who wanted to see that sort of change. This is arguable, but the point is that you can have different tax regimes within a single market, as you have within the European single market. You can within the UK single market.

[Lord Hain]

I am sure my noble friend will agree with this point. Mention has been made of Scottish whisky—Scottish single malts and so on—but the best single malt in Britain comes from the Penderyn distillery in Wales.

--- Later in debate ---

[Lord Wigley]

Not only do I agree with my noble friend but I will surprise the Committee by reminding him that Penderyn whisky was in fact formulated as a result of devolution itself. It was on the evening of the setting-up of the National Assembly that people came together and thought, “Now we have to start doing something to help ourselves in Wales. What shall we do?” They concluded that a whisky would be one way forward. As they say, the rest is history—a very enjoyable and successful history. I thank my noble friend for reminding me of that.

[Lord Wallace of Tankerness (LD)]

The noble Lord, Lord Forsyth, correctly said that the European Commission objected. But in fact the Court of Justice of the European Union found that the Scottish Government’s proposals were actually consistent with the rules of the single market, principally because the minimum unit price was based on health reasons.

[Lord Wigley]

Indeed—which shows the importance of the health and social agenda that underpinned the initiative.

[Lord Grabiner (CB)]

The amendment includes the proposition that if the panel “consider it necessary”, they may refer the matter to the Supreme Court of the United Kingdom. I am not aware that there is any mechanism that could possibly enable that to happen. Moreover, even if it were possible, I suspect that the court would not be very grateful to receive what essentially would be a highly political rather than a purely legal question. If I may respectfully say so, it is rather an unrealistic proposal.

[Lord Wigley]

I note what the noble Lord says. All I would say in response is that, in the context of a single market such as the European single market, it has been necessary and sometimes highly useful to have the legal mechanism there in order to resolve difficulties that have arisen—as we heard from the noble and learned Lord a moment ago. My amendment is a constructive attempt to ensure that the amendment tabled by the noble and learned Lord, Lord Mackay, is acceptable to the devolved legislatures, which I believe it can be. I believe that it needs to be tweaked, if not by this wording then along these lines.

The core of the argument that the noble and learned Lord is putting forward in his amendment is very important indeed—and I think there is a similar amendment coming forward from the noble Lord, Lord Foulkes. The fact that these amendments are coming forward from different sides of the House is in response to the need to resolve this issue. We cannot have this going on and on in the way that it has. It has gone on for far too long now. There needs to be a resolution that is recognised and accepted by all sides and seen to be even-handed. I believe that there is, as he himself has indicated unofficially, a feeling in both Cardiff and Edinburgh that, if the amendment could be incorporated, along with my proposed addition or something along those lines, it could be seen as breaking the logjam. For that compelling reason, I invite the noble and learned Lord, Lord Mackay, to accept Amendment 318AA, and then for the Committee to accept his amendment.

--- Later in debate ---

[Lord Campbell of Pittenweem]

The noble and learned Lord’s intervention is most helpful. Of course, the language of proposed subsection (17), in Amendment 318AA, to,

“refer any question to the Supreme Court”,

supports the view that the use of the Supreme Court in such circumstances would be, to put it mildly, doubtful.

My difficulty with the proposal of the noble Lord, Lord Wigley, is that it is bound to encourage delay. His amendment says:

“The Panel may call witnesses or take legal advice”.


If witnesses are called they may have to be cross-examined, and if there is to be cross-examination there may have to be representation by counsel, or something of that kind. It is not difficult to imagine what is proposed in the amendment turning into something of a full-blown hearing, rather like, for example, industrial tribunals.

Under suggested subsection (15)(a), regard must be had to whether something,

“is reasonable, in all the circumstances”.

As soon as the concept of reasonableness appears in a statute, it opens up the possibility of judicial review. Even if it were not to be granted, none the less an application for judicial review could obviously, and unfortunately, delay the outcome of a decision that might be of considerable economic as well as political importance. For those reasons, however well intentioned the noble Lord’s proposal is, I do not think it stands any proper comparison with that of the noble and learned Lord, Lord Mackay. I therefore urge the Government to give serious consideration to that, for the reasons the noble and learned Lord set out, which I have tried to follow.

[Lord Wigley]

I concur entirely, in that I hope the amendment tabled by the noble and learned Lord, Lord Mackay, gets the attention it deserves and that it is adopted. However, does the noble Lord not accept that in order to assuage some of the feelings that, perhaps unfortunately, have been built up over recent months about there being a will here to impose solutions, we need a mechanism that people at both ends of the telescope can see as balanced and even handed?

[Lord Campbell of Pittenweem]

It is a question of judgment. The mechanism that the noble Lord suggests may achieve the objectives that he sets out, but it will almost certainly encourage delay, and perhaps even more controversy. What is required here is very quick resolution, in an uncontroversial way, of issues that lie at the very heart of the economies, perhaps, of the United Kingdom—and those of Scotland, Wales and Northern Ireland. It seems to me that the noble and learned Lord, Lord Mackay, has pretty well hit the target.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I will return to my copy of this important text and will be in touch with the noble Lord in that respect. I completely agree with his point that there are plenty of countries where people are able to consult on these matters. However, there is a difference between seeking to consult people and seeking their consent. This is where this debate has gone off the rails in that people have confused consultation with consent. Consent, in effect, gives a veto, as has been explained by my noble and learned friend Lord Keen and by my noble friend Lord Lang. It has been explained that, if we have a situation where one devolved legislature is able to have a requirement for consent, as opposed to being consulted, we have one part of the United Kingdom able to use its veto to subvert the wider interests of the rest of the United Kingdom, and that was never ever part of the devolution settlement.

[Lord Wigley]

Does the noble Lord accept that some of the frustration that has built up, certainly in Cardiff, and, I can well imagine, in Edinburgh, arises where there was supposed to be consultation but often that was no more than a letter and the reply was ignored? Unless there is meaningful consultation that leads to a coming together of minds, it can be just a façade for there to be continued rule from London ignoring the needs of Scotland, Wales and Northern Ireland.

[Lord Forsyth of Drumlean]

I do not know the detail. I do know that a number of the joint ministerial meetings were cancelled, but not by the Secretary of State or the UK Government. I am entirely prepared to accept that the process could be improved. Certainly, when I was a Secretary of State and we had differences of view on policy in respect of Scotland compared with other parts of the United Kingdom, we had a joint ministerial committee, sorted out the issues and reached agreement, not always to our advantage but sometimes to our advantage and to the disadvantage of others. I had an amendment down, which I have withdrawn in the interests of making progress, which suggested that there should be some kind of statutory arrangement for consultation. I can see that. But I am seeking to argue against the noble Lord, who wishes to elide consult with consent.

European Union (Withdrawal) Bill

Lord Wigley Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Bourne of Aberystwyth]

I am not going to be tempted too far down that path, but I shall be tempted a little way. The area that has historically been most resistant to devolution is Monmouthshire, the only local authority that voted against extended powers in 2011.

[Lord Wigley (PC)]

Can I help the Minister?

[Lord Bourne of Aberystwyth]

Let me finish the point if the noble Lord, Lord Wigley, will allow. If what I said is true, the area with the lowest yes vote on devolution had the highest yes vote in relation to Europe, so I am not sure that the point made by the noble Lord, Lord Porter, would be borne out totally.

[Lord Porter of Spalding]

I think that proves my point.

[Lord Wigley]

It was 49.5% yes in the referendum in Monmouth, so it was almost a majority, while all the other 21 areas voted overwhelmingly in favour— 66% over the whole of Wales. On engagement with local government, it is quite clear that there is a system that works in Wales. Local authorities are brought into consultation, sometimes to an excess—I have heard some complain about the number of times they have to be down in Cardiff to be consulted. It is a question not just of being consulted but of whether the representations lead to change of policy. In those valleys that voted to leave, it was the economic frustration driving them, as in the rust belts in America and in north-east England. Getting the economy right is the key to this.

--- Later in debate ---

[Baroness McIntosh of Pickering]

My Lords, I shall speak to Amendment 247, which seeks to do precisely that. I am delighted to have secured the support of the noble Lords, Lord Wigley and Lord Dykes. I took great comfort from the words of my noble friend Lady Goldie earlier this evening when she said that the Government welcome scrutiny. I hope that she will not regret those remarks.

My starting point this evening was paragraph 215 of the report by the Select Committee on the Constitution, which states:

“We do not consider that it is appropriate for the Henry VIII powers in this Bill to be exercisable by the negative procedure, particularly as they might be used to make legislation of substantive policy significance”.


In Amendment 247, what I seek to do is precisely that: to enable a statutory instrument to be amendable.

While this may seem radical or even revolutionary, it is not as there is a precedent. To appeal to the noble Lord, Lord Lisvane, who I know likes some precedents but not others, the precedent here is the Civil Contingencies Act, which legislated precisely for statutory instruments to be amended. Under that Act, specific examples would be required. In my view, there should not be a blanket provision to amend but in the specific circumstances where a statutory instrument in relation to the Bill before the Committee legislates on what amounts to a substantive policy change, it should be open to both Houses to be able to amend the statutory instrument. That is the procedure that I have set out here, once again with the expert advice of the Public Bill Office. At Clauses 19 and 20 of the Civil Contingencies Act, there is a power to make emergency regulations if certain conditions are met. These orders stand unless negated or amended by Parliament, so the power to amend the statutory instrument does exist, although I accept it is not used very often.

Further, in Clause 29, the emergency regulations should be made by statutory instrument. Statutory instruments can be made by either negative or affirmative resolution of the Houses of Parliament. Whether negative or affirmative is set out in the regulations, which will already have been agreed by Parliament, and committed and put into operation by the Government, unless later rejected or amended by Parliament within the seven-day period set down in that clause.

I am sure that my noble friend, in summing up the debate on this small group of amendments, will say that it is not appropriate to amend statutory instruments in these circumstances. I put it to your Lordships in Committee this evening that in those very specific circumstances where the Government seek to make and propose a substantive policy change by way of statutory instrument rather than by an Act of Parliament, that is simply not appropriate and outwith the actual remit of the Bill before us this evening. I therefore hope that Amendment 247 will find favour with the Committee this evening.

[Lord Wigley]

My Lords, I am delighted to support Amendment 247 in the name of the noble Baroness, Lady McIntosh, to which my name is attached. This is a pragmatic amendment, intended to make the provisions of the Bill more workable. As such, it should be acceptable to noble Lords on both sides of the Brexit argument, and perhaps even to the Government. Given that so much legislation is moving over to being enacted by statutory instrument, the case for looking into the ways of making instruments amendable now becomes an urgent challenge and will become increasingly so as the Bill goes forward.

As the noble Baroness, Lady McIntosh, spelled out the detail of the amendment, including very helpfully the precedents, perhaps I could just give an example of where the power to amend SIs would be useful. Take, for example, Clause 7(6)(b), which enables Ministers to establish new public bodies to undertake functions now carried out by the EU. The provision of such a power by order would require the relevant SI to specify precise details for the workings of the new body, such as its objectives, duties, powers, members, resources and accountability. Parliament might be happy for such a new body to be established but might want to change some of those details, which it could not do under our current procedures and which could only be triggered by rejecting the SI in its entirety, thereby subjecting the process to potentially long delays—exactly what the Government want to try to avoid. Having a process to allow amendment would be swifter and provide more acceptable legislation.

These powers would be used in exceptional circumstances, and it is not proposed that they should cover other Brexit legislation—although a strong argument could be made along those lines. But given the ominously growing use of unamendable orders to force legislative change through Parliament, there is a case for undertaking a far more rigorous review of the statutory instrument system. Since this facility could save time, which may be of the essence in regard to Brexit legislation, I would have thought that Amendment 247 should appeal to both sides, to Brexiters and remainers alike. I commend it to the Committee.

[Viscount Hailsham]

My Lords, I shall speak to Amendment 248 in my name. Because of the lateness of the hour I will speak briefly, but throughout these debates the Committee has repeatedly expressed concern about the scope and nature of the SI procedure. Time and again, noble Lords in Committee have said, “This is not amendable. We cannot change what is proposed. This is government by fiat and declaration”. The noble Lord, Lord Beith, and I spent many years in the House of Commons, where we lamented the fact that statutory instruments could not be amended. It is a great defect in our constitutional process. Statutory instruments are a form of legislation; in fact, they are a form of legislation by fiat or declaration—and that is an extraordinary thing in a parliamentary democracy.

The amendments that I have tabled have just two objectives: one is to assert the primacy of the House of Commons, which must have primacy in these matters, and the other is to say that legislation should be amendable. As two propositions, they are wholly unobjectionable. What are the objections, if there be any? Actually, they are the objections of the Executive throughout the centuries: it makes life for the Government rather more difficult. As a parliamentarian, I am bound to say that I do not find that a very impressive argument.

--- Later in debate ---

[Baroness Goldie]

I respond to my noble friend as I did to the noble Lord, Lord Beith. That hypothetical situation would depend entirely upon the practicalities of the situation confronting the Government if and when such a situation arose.

[Lord Wigley]

A moment ago, the Minister said that we would effectively be according to statutory instruments the role of primary legislation. However, throughout the Bill we are having the amendment of primary legislation by order. In other words, the statutory instrument system is being used—excessively to my mind—in the primary legislative system and we cannot get away from that.

European Union (Withdrawal) Bill

Lord Wigley Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Baroness Prosser (Lab)]

My Lords, I support my noble friend Lord Foulkes and I will speak to Amendment 54, which stands in my name. I will not detain noble Lords for long because much of what I intended to say has already been said and covered. Agreement on the wording of this amendment has been expressed by various Benches in this House, so this is not simply a one-sided argument. It seems to me that this country’s reputation globally will simply go down the Suwannee if we are prepared, at one moment, to say that we agree to certain protections for people who have become embroiled in this dreadful situation in which we find ourselves and then, a moment later, decide that, no, we do not agree with that and will not give those protections. What will people think of us as a nation if that is how the leadership of this country behaves?

My amendment would extend the requirement for certain persons to be able to refer their legal matters back to the European Court of Justice to a period of eight years. I trust that noble Lords will understand the need for such an extension. There is a statute of limitations existing for six years; if we do not include a period of coverage, people whose claims may well start quite late after the leaving date may well find themselves without that coverage, which I hope will be agreed.

[Lord Wigley (PC)]

My Lords, I have put my name to Amendment 52, which was spoken to by the noble Lord, Lord Foulkes, and I support his comments and those made by the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Cormack, a moment ago. I wish to place the amendment within its context, which is EU citizenship—the citizenship of people resident in the United Kingdom, and on the European mainland. These comments are particularly relevant in the context of the interventions of the noble Lords, Lord Forsyth and Lord Liddle, a moment ago.

I am a European; that is my identity. I am Welsh; that is my nationality and, as noted on my European passport, I am a citizen of the United Kingdom. I have rights and obligations under each of these three headings. Some of those rights are protected by international law, some by European law, some by UK law and some by Welsh law. Taking established rights away from a citizen is a very serious matter. Citizens are protected in generality against any negative impact upon them that may arise from taking some of these rights away from them.

There is clearly a wide range of such rights but I shall refer to only one. Page 32 of my passport states that if you need consular assistance when you are outside the EU in a country where there is no British embassy or consulate, you can get help from the embassy or consulate of another member state of the EU. That is a right that I have today but which I may lose as a result of the UK leaving the EU. In other words, Brexit may be taking away from me a right that I currently have by virtue of being a European citizen. This is one of many rights that we have as citizens living within the EU. For those rights to be meaningful, there clearly has to be a process of redress whereby a citizen can seek to protect his or her rights through the courts, and in this context Amendment 52 is highly relevant as it would allow citizens to pursue their rights in the European courts after exit day, where that is relevant.

[Lord Dykes (CB)]

The noble Lord is making an extremely good speech with which I agree, so I am sorry to break in. He referred to being a citizen of the UK. Under Maastricht, he is also a citizen of the EU. Is he aware that the ECJ is beginning to receive many messages from British citizens, both here and living in other EU countries, asking for the ECJ to consider giving protection to them even post-Brexit if necessary?

[Lord Wigley]

I am very grateful to the noble Lord, Lord Dykes, for his helpful intervention. We are all European citizens; it is a European passport that we carry at the moment. Some of our rights are enshrined in the context of Europe, some in the context of the UK and some—in my case, as I mentioned a moment ago—in the context of Wales.

I am not going to speak at length to this amendment because there are several noble Lords who will speak with greater authority on the legal positions involved. However, I want to use the principles underpinning the rights of citizens in the EU to say a brief word about EU citizenship in a broader context: the rights afforded to us at present as citizens of the EU and the status of those rights once we leave. These matters are highly germane to the amendments before us—and they will not go away.

[Baroness Altmann (Con)]

I want to present to the Committee an observation: according to the December agreement reached by the Prime Minister, citizens of Northern Ireland will still be EU citizens after we leave. I am not sure where that leaves the rights of everyone else in the UK.

[Lord Wigley]

I am grateful to the noble Baroness for introducing that point; I was going to move on to it a little later but I shall do so now. Northern Ireland creates a precedent, if the undertakings that have been reported are indeed carried out. It is a part of a union of countries that may be retaining its rights after the other parts of the UK may lose theirs. Of course, there is a precedent in the context of Ireland: people in the Irish Republic maintained many of the rights relating to the UK that they previously enjoyed after the Republic was formed, and for many people those rights continue up to today. As the noble Baroness has said, many of the rights relating to the EU of citizens of Northern Ireland may well continue after Brexit. If it is possible to negotiate such rights for some of the citizens of the UK, why cannot such rights be ongoing for all its citizens?

--- Later in debate ---

[Lord Wigley]

I am sure we shall come on to the position of Gibraltar in greater detail at another time. In many ways this parallels the issues that arise in the context of Northern Ireland. If a solution to Northern Ireland were enshrined which allowed the free movement of people and goods across the border, that might well solve the problem of Gibraltar as well. We need to bear in mind our responsibilities to Gibraltar and to get an amicable settlement which would be acceptable in the European context, and therefore acceptable to Spain as well as to the people of Gibraltar. I am grateful to the noble Lord, Lord Cormack, for raising this.

I want to use the principles underpinning the rights of citizens in the UK to say a brief word about citizenship in the broader context and about the rights afforded to us at present as citizens of the EU, as well as the status of these rights once we leave. These matters are highly germane to the amendments before us. Incidentally, there is an Opposition Day debate in the House of Commons this afternoon, initiated by my Plaid Cymru colleagues, on this precise topic.

By pursuing what may become a no-deal Brexit, the UK Government would, in effect, strip—at least potentially—our citizens of some of their rights. Our rights to travel, live and work across Europe will be curtailed. Our children’s rights—

[Baroness McIntosh of Pickering (Con)]

I am grateful to the noble Lord. Currently, a British lawyer, dentist or doctor can practise in any other European country. There is a reciprocal right for nationals of other EU countries to practise here. We are losing dentists and doctors because of the certification process which will be subject to negotiation on the basis of mutual recognition. Is this right, which could be curtailed, justiciable under his amendment?

[Lord Wigley]

Of course, this amendment provides a mechanism to create a redress for people who feel that they are losing these rights. It may not be the only mechanism available. There may be provisions under international law, which I shall mention before I close. It is not only our rights that are being curtailed but the rights of our children—the right to study in any of the other 27 countries across the EU may well be lost. It is questionable whether, in the context of these rights, we shall thereafter be able to call ourselves European in the full meaning of the word. I am a European. I am a Welsh European and no Government should be able to take away from me or from any citizen of these islands their right to their European identity, nor any of the practical rights they currently hold by virtue of that identity.

It is by virtue of their de facto European citizenship that the citizens of these islands currently have recourse to the European court. Stripping people of their citizenship against their will is illegal under international law. I have tabled another amendment which explores the retention of EU citizenship. I hope this will be debated at a later stage. Suffice it to say, at this stage we need these amendments to safeguard the position of people facing such a serious threat after Brexit. I am delighted to support the noble Lord, Lord Foulkes.

[The Earl of Clancarty (CB)]

My Lords, of particular interest to me in this Bill is the way in which ordinary people would be most directly affected by leaving the EU. I have tabled Amendment 210, which asks the Government to support retention of European citizenship where the individual British citizen wishes to do so. Although not explicitly stated in the amendment, it would also cover those who had not yet acquired European citizenship at the time of Brexit. I am grateful for the support of the noble Baroness, Lady Humphreys, and the noble Lords, Lord Judd and Lord Davies of Stamford.

The importance of European citizenship and the effect of its loss at the individual level has not been sufficiently considered or explored, either before or in the 20 months since the referendum. Nevertheless, its retention has been consistently advocated by Guy Verhofstadt, the European Parliament’s representative on Brexit. Last year, it was the subject of a paper by Volker Roeben, then professor of international law at Swansea University, for Plaid Cymru MEP, Jill Evans. From the Government’s point of view, a useful conclusion of this paper was a belief in the feasibility of an associate citizenship, if citizenship rights were to be extinguished after Brexit. Roeben’s belief that this should be so was given some traction following the submission last month of a request to the European Court of Justice for a preliminary ruling in the case brought by British residents of Amsterdam. It is early days yet, but it is worth noting, in the context of my amendment, this statement from the judgment:

“Once legally acquired, EU citizenship is an independent source of rights and obligations that cannot be simply reduced or affected by actions of a national government”.


The loss of European citizenship would not just adversely affect the British abroad and, indeed, European citizens in the UK, but every British person living in the UK. Following the referral to the ECJ, QC Jolyon Maugham, supporter of those who brought the case in the Netherlands, made a particular point of saying that the final outcome of this case would have implications for residents of the UK as much as those abroad. The loss would be of all those rights that EU citizenship embodies, both in terms of the principle of that citizenship—the loss of identity that many would feel deeply, and which cannot be overestimated—and the very real practical concerns about rights and opportunities that would be lost or compromised, including being able to freely travel, work, study and raise a family abroad.

This is likely to have the greatest effect on young people living in the UK—an effect with no silver lining and which can only register negatively, as a loss. At the level of the individual citizen, it is not replaced by anything. European citizenship is additional to British citizenship, and that is the reality, whatever the outcome of the case begun in Amsterdam. As Sunday’s Observer editorial responding to Theresa May’s speech, but which might just as well have been referring to the potential loss of citizenship, put it:

“It was a defeat for young people, British and European, who, more so than older generations, will perforce inhabit an ugly new world of harder borders, work permits, bureaucracy and pervasive state intrusion”.


The referendum notwithstanding, many British people, both abroad and in this country, are angry that they should be stripped of their European citizenship without their own individual consent. For all these reasons, a Brexit that does not allow the retention of individual European citizenship for those who wish to retain that citizenship is a hard Brexit—more than that, it is a brutal Brexit, whatever the outcome on the wider national scale in terms of any trade deals.

What is being asked for in this amendment is very simple, and the precedent already exists, as this is no different from the dual citizenships that some in this House possess. The amendment asks only for the continuing acknowledgement of that additional citizenship. Do we now wish to start stripping people of all citizenships that are not British—for example, Australian, Canadian, American, Indian, Chinese? The list goes on.

At the level of the individual, the only solution that would be realistic or fair is that the 52%—or whatever the figure is now—may hand in their European passports and renounce their European citizenship, and the 48% retain theirs. The reality, of course, would be quite different. We have heard in the news about noted leavers who have bought, or are buying, EU citizenship as we speak. As I am sure others in this House do, I know of those who voted leave who, in circumstances where they are lucky enough to do so, are applying for European citizenship for themselves and/or their children, sometimes through having a husband or wife who is an EU citizen. Hypocritical? Of course it is, but it is also testament to the significance and desirability of retaining that citizenship and the real loss involved, with those who are lucky or rich enough becoming the first-class citizens of tomorrow, when previously it was an entirely equal arrangement for all of us.

The loss of European citizenship will in itself create an unequal society within the UK. Look too at Northern Ireland, as has been remarked upon: all those born there—about 89% of that country—will retain European citizenship, further turning the rest of us in the UK, in effect, into second-class citizens. Of course, I am not suggesting that Irish citizenship be given up. Late last year, Theresa May gave her agreement to an understanding that goes back to 1917 and that was rightly confirmed in the Good Friday agreement. Better, surely, that all of us who wish to should be able to retain our individual European citizenship. The Minister may say that that offer is not on the table, but a Government and a Parliament that really want to bring this country back together and heal the divisions would take the initiative and put it on the table. That is the right course of action, and I hope that the Government accept this amendment.

--- Later in debate ---

The question of Irish citizens has been raised. I want to be a little clearer about that point. This is something that predates the Belfast agreement but, to put it into context, the position is not that Northern Ireland citizens will remain citizens of the European Union. The position is this: since 1921, although I may be corrected on that, but certainly since the Belfast agreement, certain residents of Northern Ireland are entitled to apply for and be granted citizenship of the Irish Republic and therefore to hold a passport from the Irish Republic, although not all do, for reasons that we do not need to go into in any detail. Where a citizen or resident of Northern Ireland also holds a passport of the Republic of Ireland, post Brexit, in their capacity as a citizen of the Republic of Ireland they will retain their EU citizenship. Let us be clear that EU citizenship is linked directly to citizenship of a member state.

[Lord Wigley]

I am grateful to the noble and learned Lord and I am following what he is saying. Is he in fact confirming that there will be two classes of citizen in Northern Ireland: those who hold Irish citizenship as well and will be able, if there is a border, to cross it totally freely and thus into the rest of Europe, and a second class of UK citizens in Northern Ireland who will not be able to do so?

[Lord Keen of Elie]

No, my Lords, there will not be two classes of citizens. Let us take a simple example. If I hold USA citizenship and UK citizenship, I can pass between the UK and the USA because I am a citizen of both countries. If I am a citizen of the UK and a citizen of the Republic of Ireland, I can pass between the two countries because I am a citizen of each state. It is not a case of classification; it is simply a matter of status.

European Union (Withdrawal) Bill

Lord Wigley Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I support the noble Baroness, Lady Jones of Moulsecoomb, on Amendment 30, to which I have added my name. Coming as it does after the previous vital group of amendments on family law, this group is on a very different aspect of the impact of the Bill. As the noble Baroness, Lady Jones, said, this issue was debated in the other place. On that occasion, there was much rhetoric about whether animals can feel pain and emotions. I can only assume that those who deny animal sentience have not visited the countryside in the spring. Surely those who see young lambs running around with each other, teasing, jumping and enjoying the thin sunshine and light breezes do not assume that that is not a natural activity. Similarly those who see sheep lamb in the depths of winter, as many do, and see their offspring shivering in the bitter winds and driving rain cannot imagine that they would not choose to find warmth and shelter if they could.

There are many farmers and experts present in your Lordships’ House, along with those like me who have no connection with animals other than that we live in the countryside. We will all have heard and suffered the pitiful lowing of a cow which has recently been separated from her calf, even though it may be in an adjoining field. This distressing calling for her calf can go on for hours and long into the night. She misses her calf and wishes everyone to know this so that eventually they may be reunited by her persistent calling. Farrowing pigs in metal arcs scattered around open fields are able to root around in the dirt and keep a watchful eye on their playful young in peace and tranquillity. This is a very far cry from farrowing crates, in which they do not have enough room to turn around and certainly cannot nurture their piglets.

Some noble Lords will think that I have a very rose-tinted view of the countryside in assuming that young animals enjoy playing, exploring and getting into mischief. Very many children’s books give human characteristics to animals. Beatrix Potter’s books are a very famous example. Some of these characterisations are fanciful, but others are based on observing at close quarters the behaviour of animals. Those who have met a small troop of escaped and inquisitive piglets marching down the middle of the road looking for adventure and trouble cannot deny that many of the fictional caricatures are based on fact. Lambs like to play, piglets like to investigate their surroundings and calves are attached to their mothers. The very process of suckling for their sustaining milk means a bond is formed.

As we move forward with Brexit, it is essential that the protocol on animal welfare is high up the list of government priorities. The United Kingdom is nothing if it is not a nation of animal lovers. I have often been surprised and alarmed, as an elected councillor, at the number of letters which people have written to me about animal welfare issues, including hunting, compared to the very few I would get about child cruelty and abuse—although this latter subject has recently moved up the consciousness of the nation, as demonstrated this afternoon. If the Government do not rigorously defend and transfer into domestic UK law Article 13 of Title II of the Lisbon Treaty on the Functioning of the European Union, I fear this will be a very serious miscalculation of the mood of the country on this issue.

Organic farmers who have built up their award-winning herds over many decades prize the quality of the meat of their animals, which rightly fetches high prices in the marketplace. Butchers are keen to demonstrate to the restaurants and hotels they supply with meat which particular farmers it comes from. For their part, catering establishments which believe the quality of the raw meat is half the secret of a successful dish and to a steady flow of customers are also keen to list the source of the meat and fish on their menus.

Organic and other farmers keen to sell to quality outlets will tell you that the way in which their animals are slaughtered affects the flavour of the meat from the carcass. They believe an animal that is stressed at the point of slaughter will produce meat of an inferior quality to that of an animal that is slaughtered completely unaware of what is about to happen to it. This is very important to those farmers who have nurtured their animals to produce a high-quality product.

Standards of animal welfare in abattoirs and slaughterhouses are important, as is the presence of a qualified vet. Many of these vets currently come from EU countries. Can the Minister give reassurances to the Committee that, post Brexit, there will be sufficient trained veterinary officers to ensure robust standards of animal welfare at the point of slaughter? Those of your Lordships who are vegetarian or vegan will not be much interested in the quality of the meat which comes out of the abattoirs, but I believe they will care very much about the way in which the animals are treated as they come forward for slaughter.

Just as it is unacceptable for animals going for slaughter to be nervous and afraid, it is unnecessary and damaging and causes suffering to transport live animals to the EU for slaughter. If we have insufficient abattoirs in the UK to cope with our own animals, then we must increase that capacity. Just as we should not export live animals for slaughter, we must not accept live animals sent to the UK from the EU to be slaughtered here. As the saying goes, there is many a slip between cup and lip, and in the transfer of law from the EU into UK law, we must ensure that animal welfare is preserved at all costs. It is also important that high UK animal welfare standards are not undermined by cheaper imports produced to lower standards, as has already been referred to.

Whether it be the family pet pig that is coming for slaughter or a large herd of sheep, the way in which we treat animals says an awful lot about us as a caring society. In leaving the EU under Brexit we must preserve those principles of our culture which define us as a country. We will have a long time to regret it if we do not. I look forward to the Minister’s response to the issues raised in this debate.

[Lord Wigley (PC)]

My Lords, I have my name to Amendment 30, which I will address in a moment, but before doing so I turn to the comments of the noble Baroness, Lady McIntosh. I am not sure whether she or other noble Lords heard the programme on Radio 4 at lunchtime yesterday about the problems ports in the Netherlands face in taking the steps needed to meet the 29 March deadline next year in due time. What came out of that is that it patently is not going to happen. It is not just that the resources are not available—there will be questions of resources and who pays for them, hence some of the duties that will be forthcoming—but it is a question of actually getting qualified vets. There are just not enough to do the job and there is no prospect of finding enough by the deadline, so it is not going to happen in that way. The reality of the situation facing us, and facing our partners within the EU, is starting to come home to roost.

I listened to the intervention a moment ago by the noble Lord, Lord Hain, on Northern Ireland. The mind boggles at the idea of vets chasing animals roaming around their own farm across the border. That is totally impractical. If we then say, “We accept that there will be an agreement between the north and south of Ireland with regard to the movement of animals that may be different to the relationships with the UK”, the question arises of the ports in the UK that will be taking these in. In any case, as the noble Baroness, Lady McIntosh, said, food coming in from the third world will need to be inspected. The thing just defies credibility.

[Lord Deben (Con)]

I am sure the noble Lord is aware that there is only one vet in an abattoir who is not a national of the rest of the European Union. So this is not a small issue. He might think vets are going to run around chasing animals but it is much more likely that there will be no vets to run around chasing anyone.

[Lord Wigley]

Absolutely—I accept that entirely. I was painting the picture that had been depicted by the noble Lord, Lord Hain, in order to illustrate how ludicrous the situation is. The noble Lord is right with regard to the backgrounds—the national origins—of a very large proportion of the vets that we have; we just do not have enough now. If the demand is going to be that much higher, the problem is going to grow out of all proportion.

I turn to Amendment 30, to which I have added my name, to support the comments made by the noble Baroness, Lady Jones. I support the amendment, which probes the surprising situation that the Bill does not include provision to carry into UK law the principle of Article 13 of the Lisbon treaty recognising animals as sentient beings. Of course animals cannot be put on a pedestal alongside human beings, but they are clearly sentient, as the noble Baroness said. No one who has had anything to do with the countryside or with animals would deny that possibility, so the question arises as to why we are deliberately excluding this. Alarm has been raised among animal lovers as the Animal Welfare Act 2006 does not fully cover this, if we had to resort to that direction.

In the other place, the Government gave an understanding that they would consider how this could be rectified. I would be glad to know what their intentions are. I am not sure whether they are in a position to do so, but I suggest that an amendment should be put into this Bill to give MPs another bite at the cherry. However, if the Government are relying on the draft legislation that I believe they introduced on 12 December to cover this point, a response to the draft Bill was due in by 30 January, as I understand it, but there is still considerable dispute about the appropriateness of Clause 1. We in the Committee have a right to know what the Government’s intentions are on that, and whether the provisions that they are trying to make in that direction will meet some of the points raised by the amendment.

The other aspect that I wish to address is that EU laws on animal sentience have allowed Wales—the National Assembly and the Welsh Government—to take a lead on certain animal safeguarding matters. I remember that when my own party, Plaid Cymru, was in coalition government in the National Assembly from 2007 to 2011, we were able to introduce legislation to ban the appalling electric shock collars that had been used. Can the Government give an undertaking that, when these powers are repatriated from Brussels, the National Assembly and indeed the Scottish Parliament will retain the competence that exists under European provisions in order to take the sorts of steps that I have mentioned in relation to electric shock collars and, indeed, a range of other animal well-being provisions? Can we be assured that these powers will not be centralised to Westminster, thereby imposing on to Wales and Scotland a straitjacket that may constrain their ability to act in a positive manner on these important matters?

[Lord Deben]

My Lords, I declare an interest as the owner of a few Red Poll cattle, which are the local cows of my part of Suffolk. I also was one of the longest-serving Ministers of Agriculture, and this is a matter of very great importance to me. I hope that my noble friend the Minister will realise that he is asking of us, if he does not accept these amendments or agree to do something about this issue, three things, and none of them seems to me acceptable.

The Minister is asking us to accept that, when the Government promised that the withdrawal Bill would take into English law all that is at the moment in European law, and that we would start again from there, that is not the case with sentient animals. The noble Baroness, Lady Jones, explained that very clearly. There are two ways in which it does not. First, it is not complete—and the Government accept that, because they had very urgently to rush forward the advice that they were going to produce a sentient animal Bill to overcome the gap in this Bill. Will my noble friend explain why it is not in the Bill? It is a real issue. If the whole purpose is to use this Bill to ensure that the law after we leave, if we were to leave the European Union, will be the same as before, why is there this exception? It is very important for my noble friend to answer that question because he has in the past, when I have asked him other questions, told me that it is not about the withdrawal Bill, that it is a different issue and comes up elsewhere. This is clearly about the withdrawal Bill—the issue is clearly missing and it ought to be here. My questions are, “Why isn’t it here?”, and whether he will undertake to include it.

We are also supposed to accept that there will be a Bill that will cover this issue. That is a difficult thing for this House because we know very well that, with the best of intentions, the Government do not have a great deal of time to bring in these Bills, and certainly not before the self-imposed end date that they insist upon. Therefore, are we supposed to rely not only on the Government’s good faith, which I am sure I can, but on their ability to deliver on time? Otherwise, there will be a gap when this protection is not afforded.

No doubt my noble friend will say that we will work all that out in the negotiations, but these negotiations are likely to take place after the due date on which we would leave, if we leave the European Union. What is more, clearly, it is not going to be left to the negotiations, because he has already told us that we are going to have a sentient animal Bill—so it is not just a matter of the negotiations. Not only are we supposed to accept that this is outside the Bill, even though that is the Government’s fundamental proposition about the Bill; we are also supposed to accept that they will be able to bring forward legislation that will cover this matter in time for there not to be a gap, which is unconnected with the negotiations because otherwise we would not need to have that until after the negotiations, in which case we could merely take it into our law.

I am afraid that this is very complex and, worse than that, we have before Parliament a Trade Bill. It is clearly the Government’s intention not to restrict their future trading arrangements to ensure the high standards of animal welfare that I spent quite a lot of my life arguing about in the European Union and working for in this country. Those standards are not enshrined in the Trade Bill. There are no arrangements in that Bill for this House to discuss, or to have, in any sense, an influence on, trade negotiations and agreements. We are, therefore, fixed into a position in which we have to accept that this omission from the arrangements of the withdrawal Bill is accidental—it is of no importance and will be covered by another Bill. We also have to accept that there will be another Bill and that it will be in time. What is more, we are to accept that what is in the other Bill will cover this issue. As we know, it has, in the words of the noble Baroness, Lady Jones—I would not like to use the phrase myself but I can repeat it—“been rubbished” by the Select Committee which looked at it. It does not actually do the job.

The Trade Bill will not give any protection for animal welfare, so that our farmers, who meet high standards, will have to accept imports from elsewhere which do not meet them. The argument about chlorinated chicken—I know that phrase has been ridiculed but it is useful—becomes very strong. I hope your Lordships are aware of why the words “chlorinated chicken” are so important. The United States has to chlorinate its chickens because it does not have high welfare standards and unless you chlorinate them you have even more food-borne disease than America has now. It has at least four times the food-borne diseases that we have in Europe. This is no passing comment; it is a fundamental issue of the health of the British people, leave alone the issues of sentient animals.

I am sorry that there is more to say—but this is a very serious area. The Government seem to have misunderstood the way in which you take EU laws into British law. EU laws have always to be read in their context, inside the protocols which make those laws operate. The trouble with this particular bit of the withdrawal Bill—as indeed with much of it—is that when you take the bare bones and put them into English law, you lose that context. You really do have to find a way of getting the context in, otherwise the bare bones do not have the same effect as they do at the moment in the application of EU law.

There is another thing that I find difficult with the Government’s willingness to discuss this issue in such a peculiar manner. I can understand my noble friend, and other Ministers at various times, recognising that some of us do not think that withdrawal is a very good idea. That is perfectly understandable, but we are not debating this on that basis. What we are doing is trying to make sure that the withdrawal Bill does what it is supposed to do—and we are trying to do that as a House that has that specific duty and job. I know that the Daily Mail finds that hard to understand, but what we are here for is to ensure that the legislation that is passed is, in detail, what was intended. The House of Commons—the other place—is now less able to do that because of the way in which it restricts the time spent on these matters. I know that my noble friends would much prefer this House to spend less time on the Bill. But if we do not spend the time, no one else will go through it in the way that we will have to if this is not to be a disaster not just for animals but for human beings, because we will have none of the necessary restrictions.

--- Later in debate ---

[Lord Callanan]

Because we do not think that Article 13 works in the context of UK law; it applies only to EU law. I have set out why we think we can do better.

The public consultation on the draft Bill closed on 31 January. The Government are analysing the responses and will publish a summary and next steps in due course—I hope before we get to Report. I hope this reassures the noble Baroness, and indeed my noble friend Lord Deben, about the Government’s firm stance on animal sentience.

[Lord Wigley]

The Minister emphasised that he hoped this would be brought forward by Report. If it is not, would he be prepared to look at an amendment along these lines to meet the Government’s shortcomings and ensure that the Bill covers the possibilities we have outlined in the debate, rather than relying on the possibility of future legislation that may not reach the statute book?

[Lord Callanan]

I do not want to give the noble Lord an exact commitment but, as I have said, we hope to have it by Report stage. If that is not the case we will look at what can be done in its place.

Amendment 30 seeks to transfer the obligations contained in Article 13—to have regard to the welfare requirements of animals as sentient beings when developing and implementing certain EU policies—to domestic law. Unlike Article 13, however, the amendment applies only to the formulation rather than the formulation and implementation of law and policy. Furthermore, once the UK has left the EU we will obviously no longer be a member state and therefore no longer formulate or implement any EU laws or policies. Therefore, by referring to the obligations contained in Article 13, it is not clear what the effect of the amendment would be in practice. Although it is assumed that its intention is to require the welfare requirements of animals to be taken into account in formulating domestic law and policy, it appears that the amendment would only require it when formulating and implementing EU policy and law, which of course we would no longer be doing. As I have said, the Government have published a draft Bill which introduces a clear duty on Ministers to have regard for animal welfare when formulating and implementing all government policy and not only the six areas I mentioned earlier.

Amendment 98, tabled by the noble Baroness, Lady Jones of Whitchurch, seeks to apply the requirements of Article 13 to the use of Clause 7. It would require Ministers to pay full regard to animal welfare requirements when introducing any legislation under Clause 7. I remind noble Lords that the purpose of Clause 7 is to allow the Government to address deficiencies in retained EU law arising from our withdrawal. Clause 7 provides powers for Ministers to make secondary legislation to deal with any problem that would arise on exit—for example, to remedy any provisions that would have no practical application after the UK has left the EU.

However, the power is temporary and can only be used for up to two years after exit. After that point it will expire. Similarly, the proposed amendment to Clause 7 would only have effect for two years from the date of our withdrawal from the EU. The amendment would also only apply to those regulations introduced by Ministers before March 2021 for the purposes of addressing deficiencies arising from our withdrawal. Therefore, the limited protection provided for animals by the amendment would also expire on 30 March 2021.

The amendment would not hold Ministers to the standards required in Article 13 two years after we have left the EU and, therefore, would weaken the current obligation in Article 13. The provisions set out in our draft Bill in December go beyond the two years following our exit from the EU and will apply to more than just those regulations that deal only with any deficiencies arising from the UK’s withdrawal from the EU.

European Union (Withdrawal) Bill

Lord Wigley Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Baroness Greengross (CB)]

My Lords, I will speak to Amendments 38, 39 and others regarding the rights of participation of children and the maintenance of dignity in older people. The EU charter includes children’s right to participation in Article 24, as we have heard, but there is no broad right to children’s participation in law domestically, although there is some provision for it in certain cases.

One of the general principles of the UN Committee on the Rights of the Child concerns children’s right to be heard and to have their views considered and taken seriously. Accordingly, in 2016 the UNCRC made recommendations to the UK, including that it should:

“Establish structures for the active and meaningful participation of children and give due weight to their views in designing laws, policies, programmes and services at the local and national level”.


However, in the UK there continues to be no permanent structure or action plan to facilitate the systematic participation of children in policy-making, although the DfE has indicated that it wishes to improve such engagement, and has recently published several child-friendly consultation documents.

The European Charter of Fundamental Rights brings together in a single document the rights which underpin EU law. It has included new issues that require protection—for example, the protection of personal data—extended existing rights and established new rights, such as the right to human dignity. It reaffirms the rights for children that already exist in the European Convention on Human Rights, such as the right to education, and includes key rights enshrined in the UN Convention on the Rights of the Child. As the UK has not incorporated certain treaties such as the UNCRC into domestic law, there is no guarantee that rights contained in unincorporated treaties would be adequately protected after Brexit. It is therefore very important that the charter is retained in its entirety, in order not to weaken existing rights protections.

For example, the charter has strongly influenced the development of EU regulations in relation to cross-border family law. In 2016, one in 10 children born in the UK was to a family with one parent from the UK and another from an EU member state. EU cross-border family law regulations, covering issues such as child custody, contact, child abduction and child maintenance, provide these families with certainty about their legal rights in difficult situations.

If the family breaks down and disputes arise between UK and EU parents, the EU framework ensures child rights-based court proceedings that make a difficult situation slightly easier for a child to cope with. For example, regulations ensure that children have the opportunity to have their opinion heard during court proceedings that determine if they are to be returned to a parent in another country. Further charter-based proposals are being agreed that will strengthen children’s rights further, ensuring that the best interests of the child is a mediating principle.

The protection of the rights of children and older persons in the EU Charter of Fundamental Rights is essential as there are not such specific protections in the European Convention on Human Rights. Children in the UK cannot access the UN Committee on the Rights of the Child as the UK has not ratified the third protocol, and there is no treaty on older persons.

Dignity for older people, especially those in care, is about supporting people with the same respect you would want for yourself or for a member of your family, treating each person as an individual and giving people independence and choice as to how their needs and wants are met. There are good examples of people who have been treated in a dignified manner but also, alas, several such as Mid Staffordshire and Winterbourne View have been identified by the Care Quality Commission. The last thing we want is that gaps in the law allow such cases to rear their ugly heads once more.

The principle of the inherent dignity of all people underpins human rights treaties. The right to dignity in the EU charter echoes the principles and rights of the charter of the United Nations and the Universal Declaration of Human Rights. Dignity underpins all the provisions in the EU charter and is as relevant for children as it is for the rights of elderly people and those in need of care and their right to be treated with dignity, to participate in social and cultural life and to fulfil their dreams and aspirations.

We have come a long way in this area and the present and previous Governments have made great strides in helping us to treat anyone who lacks the capacity or the ability to self-determine—in dementia, for example—with consideration and dignity, and it would be more than a pity to put all this to waste. The amendment will signal to both our own people and EU members that the UK remains committed to maintaining the human rights standards we have established together.

I was in Adelaide in Australia some years ago and I went to the local museum. The history of what happened to English children who were sent to Australia has recently been in all our news and papers. We know what can happen to a country with which we have a great deal in common. We must not allow anything to lessen our understanding of and commitment to the human rights of both the young and the old in our society.

[Lord Wigley (PC)]

My Lords, I have added my name to Amendment 37 and I associate myself strongly with the words of the noble Baroness, Lady Massey. I will not delay the House by repeating her persuasive arguments. I warm to the amendment spoken to by the noble Baroness, Lady Lister, in her effective speech.

Issues relating to the rights of the child obviously arise in the generality but I am not going to go after that. To save time, I will concentrate on some aspects that relate to the devolved context, which has already been mentioned by the noble Baroness, Lady Lister. Stronger protection for the child is necessary through legislation and it has been secured in legislation passed by the National Assembly in Wales and also in legislation in Scotland. One piece in Wales is the Rights of Children and Young Persons (Wales) Measure 2011. It imposes a duty on Welsh Ministers to have due regard to the rights of children as expressed in the United Nations Convention on the Rights of the Child when those Ministers exercise any of their functions. To achieve the objective, since 2012 the Welsh Government routinely undertake child rights impact assessments on proposals to change Welsh law or policy that may have a bearing on the well-being of children.

My fear, which is shared by colleagues in the National Assembly, is that the withdrawal Bill will limit the scope of the devolved legislatures to amend laws relevant to children along the lines I have mentioned. These are powers which are currently within the devolved settlement, but there may be uncertainty as to the future. When we withdraw from the European Union, there is concern that these competences may come under Westminster and the powers in Cardiff to that extent would be curtailed. Indeed, the devolved regimes may, under those circumstances, be required by Westminster to act in a manner that contradicts their own commitments to children’s rights. I hope that the Minister can put my mind at rest in this matter and give the devolved regimes the clarity, certainty and transparency they seek.

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[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, I am grateful that the important issue of children’s rights has been raised. I thank noble Lords for these amendments, which seek to make changes relating to the United Nations Convention on the Rights of the Child and the charter of fundamental rights, specifically to incorporate them into domestic legislation via the Bill and to impose statutory duties on Ministers to consider the UNCRC when making regulations. Many of the noble Lords who have spoken to these amendments have a track record of tirelessly championing children’s rights over the years, and the issue is of utmost importance to them and to this Government. Protecting children’s rights is paramount, and I assure noble Lords that I have heard their concerns about how existing rights and protections for children, and our commitment to the UN Convention on the Rights of the Child, will continue as the UK exits the EU.

Amendments 37 and 38, in the names of the noble Baronesses, Lady Massey of Darwen and Lady Greengross, seek to provide that some or part of the charter of fundamental rights would remain part of domestic law following withdrawal from the EU. As a number of noble Lords have observed, we have already debated the wider issue of the charter at length and noble Lords will be pleased to hear that I will not go through the general arguments today, although I thank the noble and learned Lord, Lord Brown, for rehearsing some of them. I take the opportunity again to reassure the Committee that the Government remain fully committed to children’s rights and the UN Convention on the Rights of the Child. Our ability to support and safeguard children’s rights will not be affected by the UK’s withdrawal from the EU.

I have heard the concerns of the noble Baroness, Lady Massey, about the impact of Brexit on children’s rights and the need to ensure that their welfare, safety and best interests are not compromised as we leave the EU. The rights and best interests of children are already, and will remain, protected in England primarily through the Children Act 1989, which sets out a range of duties to safeguard and promote the welfare of children, including making the child’s welfare the paramount consideration for any court—I think the noble and learned Lord, Lord Brown, referred to that. Children’s rights and best interests are further protected through the Adoption and Children Act 2002, which among other things ensures that the child’s welfare is the paramount consideration in all decisions relating to adoption. In addition, other legislative and administrative measures are in place, including the Children Act 2004, which imposes general safeguarding duties in relation to children on various bodies.

Scotland, Wales and Northern Ireland have their own measures for the protection of children’s rights which fully comply with the UN Convention on the Rights of the Child. Additionally, the European Convention on Human Rights as a whole offers the protection of children’s rights, and this is implemented domestically by the Human Rights Act 1998.

[Lord Wigley]

The Minister referred to Wales, Scotland and Northern Ireland having devolved competence. Can he give an assurance that all the powers they currently have in that context will be maintained after Brexit?

European Union (Withdrawal) Bill

Lord Wigley Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to speak to Amendment 18 in my name before the Committee this afternoon. I refer especially to page 24 of the Explanatory Notes, which states, in paragraph 76 on Clause 2(1):

“This will include legislation that has been passed or made but is not yet in force”.


The reason for my introducing and speaking to this probing amendment—I recognise, as Ministers have said previously, that this is a facilitating Bill—arises from the debate at Second Reading, where it was identified that a number of directives are coming forward and commitments are being discussed and agreed in both the European Parliament and Council of Ministers that will be agreed but not transposed into British law before 29 March 2019. I am not sure whether my noble and learned friend the Advocate-General will reply to this amendment, but I hope that he will see it as a tidying-up exercise that is designed to be helpful.

The purpose of the amendment is to facilitate the transposing into UK law of directives that fall into this category which have been agreed by the relevant ministries in Brussels, and in co-decision between the European Parliament and the Council of Ministers, but have not yet been transposed into UK law. This follows on from the debate at Second Reading, where the issue was discussed in particular by the noble Lord, Lord Kakkar, several noble Lords on the Liberal Democrat Benches, myself and a number of others. For example, the drinking water directive will be completed and will likely be transposed into UK law before we leave on 29 March 2019. It forms part of the price review that Ofwat is conducting, which will also conclude in 2019.

However, a further series of environmental directives does not fall into this category, including the so-called mother directive—the EU water framework directive—the bathing water directive and the waste water directive. Given the current timetable for the revisions being discussed in Brussels by the European institutions, it is quite likely that the directives will be agreed in the very month that we leave the European Union.

The purpose of this amendment is simply to clarify whether that would leave the door open to the directives being transposed at a later date, thereby guaranteeing the environmental protections that water companies themselves might wish to adopt, and which the Government and indeed all of us as consumers would wish to see implemented. So my question to the Minister is simply: is it the Government’s wish to facilitate the transposing of directives that are left in this halfway house into UK law after 29 March 2019, and in those circumstances would they welcome this amendment?

[Lord Wigley (PC)]

I support the amendment of the noble Baroness, Lady McIntosh, which seeks to clarify the status of EU directives which will be “adopted, but not implemented” on the day we exit the EU. The Government have repeatedly stressed that the purpose of the Bill is to provide legal certainty. Whichever side of the Brexit debate we take, clearly, that is a worthy and necessary objective. That being so, I am truly baffled that in this instance the Bill totally fails to give that clarity. Everyone affected or potentially affected by EU legislation that has been adopted but not implemented needs to have absolute certainty as to where they stand.

Amendment 18, if passed, would allow Ministers to treat EU directives adopted before exit day to stand, for those purposes, as if the UK had not left the EU. I understand from a House of Commons briefing that no fewer than 23 directives have already been published with implementation deadlines which fall after 29 March 2019. Several of these would enhance the lives of UK citizens. For example, one is aimed at strengthening restrictions on firearms, which are currently permitted to move freely within the European single market. If the Bill stands unamended, can the Minister clarify whether firearms will be controlled when they cross the north-south border in Ireland, for example? Another such directive aims at limiting the exposure of employees to dangerous substances in the workplace, such as carcinogens and mutagens. I will not elaborate but clearly there is an arguable case for saying that such safeguards should be part of UK law. Even more so, there is a crying imperative that people know where they stand on such matters.

[Lord Pannick]

My Lords, I am doubtful about this amendment for two reasons. The first is that the whole purpose of the Bill is to ensure that a snapshot of our obligations under EU law is transposed into domestic law as at exit day. If, as the amendment suggests, retained EU law contains the directives which are not yet in force, the purpose of the Bill will not be accomplished—something more will be read into EU law. However, it is not simply a technical matter; it is also a question of uncertainty. If the amendment is included in the Bill, one will not know at exit day the scope of retained EU law, as that will depend on what happens in Brussels thereafter. A directive which has been adopted but has not yet come into force might be amended before it comes into force, or it might never come into force. Therefore, I am very doubtful that legal certainty is accomplished by this amendment or that it is consistent with the objectives of the Bill. I entirely understand that it may be desirable to include within English law matters of this sort but it is certainly not consistent with the objects of the Bill.

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[Lord Keen of Elie]

There is no legal basis for doing so. With great respect to my noble friend, her amendment would not actually provide one; that is perhaps an aside. The point is more central than that: directives that have been adopted but not implemented by the exit date, and which have a transition period that goes beyond the exit date, are not part of domestic law, and for the purposes of the Bill they will not become part of domestic law or EU retained law. Therefore, we will not be taking them into our domestic law by way of an implementation that takes place after the exit date.

[Lord Wigley]

Following this is fairly complicated, is it not? To add to that complication, what will be the position on devolved matters—such as environmental matters, which are to a very large extent devolved—where the implementation may be on different dates in different devolved regimes?

[Lord Keen of Elie]

We have to be clear here about the distinction between implementation and application. Essentially, there is only one date for implementation. That is when we implement the directive into our domestic law. There may be situations—and if I misunderstand the noble Lord’s question, I am sure he will tell me—in which there is a directive, or indeed a regulation, that is adopted into domestic law but which applies only at a date after the exit date. There are examples of regulations as well, where we accept that the regulation has come into domestic law but its actual operation is deferred, perhaps until 2020. That regulation or that provision will form part of our domestic law at the exit date, even though the operative provisions come into force only after the exit date.

[Lord Wigley]

I do not want to overlabour this point, and perhaps it is one that the Minister could look at between now and Report in case there is any validity in what I am raising, but since it is by instruments that are passed in the National Assembly for Wales or in the Scottish Parliament that some of these will be put into force, there will quite likely be different dates for those purposes, and that could have a material effect. Some may fall one side and others the other side of 29 March 2019.

[Lord Keen of Elie]

If I understand the noble Lord’s point, he is suggesting that we may have a situation in which a directive that has been adopted is implemented in England or in Wales or in Scotland but on different dates.

[Lord Wigley]

Yes, indeed, or it may have failed to have been implemented within the timeframe in one area and therefore does not get implemented but does get implemented in another area.

[Lord Keen of Elie]

In that event, it will be by reference to the exit date that we determine whether or not it forms part of the domestic law.