European Union (Withdrawal Agreement) Bill

Baroness Finlay of Llandaff Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, thank you for allowing me to speak in the gap.

Wales voted to leave. In respecting that, we must maintain the coherence and cohesion of the union and avoid unintended consequences as negotiations progress and in the future. The devolution settlements are in primary legislation, and Wales, having supported Brexit, must not feel that the Government of Wales Act is threatened.

Negotiations which will have a huge impact on devolved policies and functions cannot be conducted without some meaningful involvement of the Senedd and the Welsh Government. It is not about vetoes; it is about real consultation. The Minister kindly met me recently, yet without reassurances to the Welsh Government on these key issues, there is a serious risk of a constitutional crisis if the legislative consent Motion is declined.

The maiden speeches that we heard today were both memorable. We ignore our populations and their devolved Governments at our peril.

European Union (Withdrawal Agreement) Bill

Baroness Finlay of Llandaff Excerpts

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

When this agreement was reached between Ministers at Westminster and the Welsh Government, the draft Bill did not contain any provision for Ministers, by regulation, to transfer the functions of the IMA to another body. That is why, now, we need this amendment. It is necessary to include this provision to ensure that there is no danger of UK Ministers circumventing the appointment of members. Over the decades, there could be good reasons for a number of cases falling and for the merging of the IMA’s functions with another tribunal or court. If that is to happen, it is essential that these safeguards are built in. The point of this amendment is to try to ensure that that happens, if not in the Bill then perhaps by a statement from the Minister responding tonight. That would give some assurance that the agreement reached privately in Cardiff underpins the Government’s thinking at this stage in the process of the Bill.

[Baroness Finlay of Llandaff (CB)]

My Lords, the background to this amendment has been well explained by both my friends who have spoken. I would like to stress the importance of this as signalling to the Welsh Government a way forward and a real commitment to make sure that the devolution settlement is respected, now and into the future. Amendment 59 seeks to ensure that if the functions are transferred to another body—I stress “if”—the same obligations should apply as far as is possible in respect of the appointment of a member with a knowledge of Wales.

We now have legislation and regulations in Wales which are interpreted as providing a degree of divergence in some areas; health has already been cited and other areas include education, agriculture and local environment. Therefore, a very real difficulty could arise if the function is transferred to a body that has a mandate only for England, or to a body with governance that does not involve members from Wales who have a working knowledge of Wales and understand the detail of the regulation by which the Welsh Government have overseen services and their organisation and strategy.

If the Minister believes that such an amendment is unduly detailed for inclusion in the Bill, I hope that, at a minimum, he will make a commitment before the House that Ministers intend to act in accordance with the spirit of the provisions on the IMA if functions are at any time transferred to another body.

[Baroness Humphreys (LD)]

My Lords, my contribution to this debate on Amendment 59 will be very brief, because everyone has said what I want to say. I am grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, for tabling this amendment and giving me the opportunity to add my name to it. I am also grateful for the detailed analysis that he and the noble Lord, Lord Wigley, provided, and for the comments of the noble Baroness.

The independent monitoring authority for citizens' rights will, as noble Lords have outlined, be composed of an independent board of members with experience of matters covered by the citizens’ rights agreements, and—this is important—knowledge of the relevant laws and issues in Scotland, Wales, Northern Ireland, and, I believe, Gibraltar. As the noble Lord, Lord Wigley, pointed out, it is important to note that these qualifications for membership of the IMA are the result of many hours of negotiation between the Government and the devolved Administrations. The qualifications have been taken very seriously. The amendment seeks to ensure that if the functions of the IMA are transferred to another body, the same qualifications for membership of the new body should apply. This seems to be an eminently sensible, simple and straightforward request. I hope that the Minister can commit to it from the Dispatch Box tonight.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, it is of the nature of the IMA’s function that it involves consideration of the views of the devolved Administrations and Gibraltar. It also involves consideration of the interests of those in England. We have to have regard not only to Wales, Northern Ireland and Scotland but, in this context, England and Gibraltar. It would be appropriate to consider all their interests if we were to put forward a proposal for the abolition of the IMA. Indeed, I find it difficult to conceive of a situation in which we could put forward a proposal for the abolition of the IMA at the joint committee without having consulted the devolved Administrations. It strikes me as so improbable that one should not give much weight to it.

[Baroness Finlay of Llandaff]

I hope the Minister will forgive me interrupting. I was wondering whether I would wait until the end of his remarks, but this follows on from the question asked by the noble Lord, Lord Wigley. In the event of the transfer to another body and a view that the IMA could be slimmed down, can the Minister provide assurance that the required consultation of the devolved Administrations would happen—with the devolved Administrations having a say rather than it being tokenistic consulting; I am not asking for a veto—and that there would be no possibility of them then being charged in any way or being requested to provide financial support for having as a member somebody who had particular knowledge of their area, whether it is Wales, Scotland, Gibraltar or Northern Ireland?

Can the Minister explain to me—this is my ignorance —why paragraph 39(1)(b) of Schedule 2 is in italics and the other parts of the Bill are not? Is there some significance to it being in italics?

[Lord Keen of Elie]

My Lords, I am not immediately aware of the significance of the italics, but no doubt someone will pass me a piece of paper in a moment that explains them—or not, as the case may be.

We have not yet determined the cost—this also responds to a point made by the noble Lord, Lord Greaves—or budget requirements for the IMA. I therefore cannot comment further on that. The obligation to ensure that it is fully and properly funded lies on the Secretary of State and therefore on the UK Government. What further or future negotiation there might be about cost sharing is a matter beyond the terms of the Bill. I would imagine that if we start with an obligation that lies with the Secretary of State and the UK Government it will not easily be transferred in any form to the devolved Administrations. Perhaps one day we will have a reverse Barnett formula, but we do not have one at present.

In the circumstances I have set out I hope it will be appreciated by the noble Lord, Lord McNicol, that Amendments 58 and 60 are not required in this context. The approach that we take to exercising the powers with regard to the IMA will be proportionate and appropriate and it would therefore not be necessary or appropriate that the procedures in the Public Bodies Act 2011 should apply. The bodies to which that procedure usually applies are those established on the basis of domestic policy. It will be appreciated that this is a rather different body which is the product of an international agreement and therefore it has to comply with the obligations we have entered into at the level of international law and it should not be tied to domestic legislation.

On the noble Baroness’s observations about the italics that appear in the Bill, it may well be that she alighted upon an issue that may arise later in the day, but I am advised very clearly that it is a misprint. Apparently, the entire Bill should have been in italics.

I have sought to reassure noble Lords about the concerns that have been raised and which have motivated these amendments. We have sought to design the IMA to provide robust, effective and fully independent oversight of citizens’ rights and our commitment to citizens’ rights. It is necessary to bear in mind that we are implementing international law obligations that we have incurred by entering into the withdrawal agreement. The clause and the schedule in their present form meet those international obligations and the demand for robust, effective and fully independent oversight of citizens’ rights and obligations. I hope that noble Lords will not press their amendments.

European Union (Withdrawal Agreement) Bill

Baroness Finlay of Llandaff Excerpts

Committee: 1st sitting (Hansard continued) & Committee stage & Committee: 1st sitting (Hansard continued): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I suppose I should declare an interest as regards Clauses 21 and 22 because I live and work in Wales, so the stability of the devolution settlement is therefore important to me personally, especially as my work is in areas of the devolved competences.

I should point out that, along with a clear majority, I was alarmed at the prospect of a no-deal Brexit and therefore relieved when the Prime Minister and the EU negotiators managed to agree a process for an orderly EU withdrawal. Clearly, the Northern Ireland protocol is critical to that, and I am sure that no one wishes to imperil the withdrawal agreement by wilfully obstructing the implementation of that protocol.

Nevertheless, the Henry VIII powers in respect of doing so are wholly unrestricted—something which other Members have quite understandably expressed disquiet over. The concern is that such powers would enable Ministers of the Crown unilaterally to amend the devolution settlement as laid down in the Government of Wales Act—and the equivalent legislation for Scotland and, indeed, Northern Ireland itself—or to enable Ministers to make such changes without any scrutiny by the legislature.

I understand that Ministers may conclude that it is necessary to adapt devolved competences; for example, to underpin the unfettered access of Northern Ireland agricultural produce to the market in Wales, even if it fails to meet the standards which have been adopted in Wales itself or across Great Britain as a whole. I also understand why they might not want to follow the cumbersome route of primary legislation to achieve this.

But where the National Assembly—or Senedd, as it will be known—agrees with changes to its own competence, there is a perfectly acceptable route, as the noble Baroness, Lady Hayter, has said, via a Section 109 Order in Council to achieve this without primary legislation. I would argue that any attempt to proceed in a matter of this kind without securing the agreement of the devolved Government and legislature in question would be likely to ignite a major constitutional conflict. No one should underestimate the tensions there are at the moment around the devolution settlements.

The aim of the amendment is therefore to promote an exception to this power in respect of the Government of Wales Act and, for the sake of logical consistency, the equivalent legislation in respect of Scotland and Northern Ireland. If the Minister does not concede, or at least provide reassurance, that these powers will not be used to change the devolution settlements without consultation and agreement by the institutions affected, it will inevitably fuel suspicions, as has already been said, that the UK Government want the power to make changes to the devolution settlements even when the National Assembly and Welsh Government are opposed to such changes.

As I said at Second Reading, it is about ensuring consultation, not veto. In many areas the item of negotiation is very likely to straddle devolved and reserved competences. The use of an overriding Henry VIII power—rather than a Henry VIII power in conjunction with a Section 109 Order in Council, or simply the Order in Council—would be completely inappropriate. It would ride roughshod over the settlement we currently have. It would appear to be a potential abuse of power. I am not saying that this Government intend to abuse their power, but we have to be concerned that whatever we put in legislation now could produce unintended consequences in the future.

[Lord Howarth of Newport (Lab)]

My Lords, earlier in our deliberations we debated some relatively small-scale Henry VIII powers that the Government were seeking to arrogate to themselves. We listened to entirely unsatisfactory explanations from the Front Bench attempting to justify them. But here we have a really egregious set of Henry VIII powers—the most whopping great Henry VIII powers.

If you look at Clauses 21 and 41 together, you see that the Government are proposing to take to themselves a power not only to amend primary legislation but even to abolish any statute that may have been enacted in centuries past to right up until the end of this year. I do not for a moment think that is what the Government specifically intend to do but it is offensive in principle that they should draft legislation of this character.

Let us bear in mind that the purpose of Brexit is to restore parliamentary government. It is not a decent thing for the Government to do to take this opportunity to make a large power grab on the part of the Executive. The Government should be respectful of Parliament. They should be prepared to work with Parliament. If they have significant changes of policy and legislation that they wish to propose, I do not doubt that Parliament will engage very constructively with the Government in their purposes.

Henry VIII powers are objectionable in principle and it is essential that the Minister gives us a full explanation and, if he can devise one, a justification for the taking of these extraordinary powers, which are constitutionally improper. It will not do if he seeks to argue that circumstances in Northern Ireland are peculiarly sensitive and complex. They always are, but there are certain abiding constitutional principles that the Government should respect, and that should be the spirit of this new Government’s approach in their dealings with Parliament.

European Union (Withdrawal Agreement) Bill

Baroness Finlay of Llandaff Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, the noble and learned Lord has made an obviously reasonable and appropriate case for the propriety of the Government consulting with Ministers in the devolved Assemblies. That is not only good politics, it is good manners, and I hope that the noble and learned Lord who will be replying on behalf of the Government will readily accept that that is appropriate. I hope, therefore, that he will be willing to accept Amendment 23.

Amendment 45 is an amendment to a clause that is in any case otiose, so I do not think it is necessary for the Government to accept it, but again I hope that the Minister will affirm that of course the Government will want to follow the usual conventions and established procedures for legislative consent.

[Baroness Finlay of Llandaff (CB)]

My Lords, I wish to speak to three of the amendments in this group. Yesterday I spoke in support of Amendment 15, and those remarks are relevant to Amendment 18 so I will not repeat them. It is important to ensure that our concerns about the Bill are recognised. One is that, as currently written, the Bill can be interpreted as not respecting the union, which becomes extremely important constitutionally.

Amendment 23 relates to Clause 26 and the potential role of the courts, other than the Supreme Court, in the future. The difficulty arises in having due regard to the devolved Administrations, as my noble and learned friend Lord Thomas of Cwmgiedd has outlined. Legislation that has already been passed by the Senedd, the Welsh Assembly Government, reflects European rulings. If those rulings are changed in the future, the Assembly will have to address the changes. The difficulty, of course, is that if it has not been consulted on all the changes to the way appeals can be made, it could find itself in an extremely difficult position.

This amendment, like the others that we have tabled, is therefore designed to prevent avoidable problems emerging in the future. I cannot see that anything in our amendments would undermine the Government’s ability to move forward with their withdrawal Bill, but they would make sure that the legislative powers already held by the Senedd and the Welsh Government are respected.

Our amendment to Clause 38 is necessary because, as written, it fails to refer to the Sewel convention and therefore risks undermining the devolution settlements. If the Government do not wish to accept the amendment, one could suggest another way forward by deleting the entire clause, although I suspect that they are less minded to do that than to insert something short to respect the devolved settlements.

I also signal my support for Amendment 29 in the group, because again it aims to safeguard the devolution settlements from unilateral amendment by Ministers of the Crown. Although the conduct of international negotiations is a reserved matter, which everyone respects, the amendment would ensure that the impact on the devolution settlements are recognised and would give the devolved institutions the responsibility to make arrangements to implement international agreements as they go forward.

Essentially, we are asking to be consulted and to be kept in the loop. We are not asking for a veto, but our amendments ask for the devolution settlement to be respected, as it works at the moment with an intact union.

[Lord Wigley (PC)]

My Lords, my name is also attached to Amendments 18, 23 and 45. I am very pleased to support the points made by the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Finlay.

The issues at question are issues of trust between the devolved Governments and the Government of the United Kingdom. Nobody is arguing that the devolved Governments have power over international treaties—of course they do not; they are reserved powers. None the less, what will be undertaken in those treaties will almost certainly have a very direct effect on matters that are devolved, some of them fully, to the National Assembly for Wales, and likewise to Scotland and Northern Ireland in slightly different ways.

To that extent, there have been occasions when the UK Government has been well represented in negotiations in Brussels by Ministers from the Government of Wales. It is perfectly right that they should be there on matters such as the sheepmeat regime or when questions of smaller languages are debated. When such matters arise, as is likely, in the context of any ongoing treaties or new treaties that will emerge, it is vital that the confidence of the Welsh Government and the National Assembly, and likewise that of Scotland and Northern Ireland, is taken fully into account.

The real danger is that things happen by default. The UK Government, with all the good will in the world, might think that issues do not arise without having talked about them. There needs to be some system to avoid unnecessary tension and rows between the various Governments within the United Kingdom.

I did not participate in the debate last night, but I read with considerable interest the comments made by the noble Lord, Lord Duncan of Springbank. He said:

“This debate has taken a turn that I had not anticipated—the notion that a power is now being granted to the Government to undo that which has been set before: if you like, the magisterium of the law which sets up the elements of Northern Ireland, Scotland and Wales. That is not the purpose of this rule.”


He goes on to say that he would be happy to make a note available

“to all noble Lords who are interested in this, so they can see where we believe this power will be required”.—[Official Report, 14/1/20; col. 639.]

The point is that if the noble Lord, Lord Duncan, has recognised that there is a need for greater clarification than is provided in the Bill, surely with the Bill still going to Parliament there is an opportunity to table amendments, such as the ones proposed in this group, to safeguard the position. It is not enough to have a sentence in Hansard. That obviously helps to clarify the position, but there needs to be something more cast-iron than that.

This is not a party-political issue, it is a matter of getting means of sensible co-operation into the Bill. If the Government cannot accept the amendments now, I very much hope that between now and Report they will consider these issues and try to bring in some form of wording that gives an assurance in the Bill along the lines that the noble Lord, Lord Duncan, suggested last night.

European Union (Withdrawal Agreement) Bill

Baroness Finlay of Llandaff Excerpts

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Wilson of Dinton]

I am not arguing that. I am worried that the Government’s powerful position, and their glee and joy, which is understandable, will lead them to a certain arrogance and to ignore the role which Parliament can properly play. These amendments are a good reminder of the role that Parliament must play. I urge the Government to work with Parliament, with noble Lords and with influences that can be brought to bear behind the scenes, to listen and not to think that they know all the answers and can just go in and negotiate, because they cannot.

[Baroness Finlay of Llandaff (CB)]

My Lords, I should like to briefly follow that very powerful speech by my noble friend Lord Wilson of Dinton. The spirit of the amendment tabled by the noble Lord, Lord Wigley, is about consultation. It is about making sure that people behind the scenes know what is happening and can understand if they have to give something up rather than it being delivered on them.

The Senedd, the National Assembly of Wales, has responsibility for a set of devolved competences. When negotiations become difficult and tough, it is almost inevitable that at times people will have to give things up. If people in Wales, behind the scenes, know what is happening and understand why, they can support it. If something is just delivered on them as a fait accompli afterwards, trust is lost. There is a Chinese saying that I think we should remember: trust arrives on foot and leaves on horseback—and it is trustworthiness in behaviour that wins trust.

The Joint Ministerial Committee on EU Negotiations was set up with promises by the Government to seek consensus over approaches behind the scenes—yet, sadly, I understand that sometimes the committee had no more information than could be found in the previous day’s newspapers. Sometimes those attending were told that they could not be told more because it was not in the public domain. If there is a small group of people whom you are taking into your confidence and you trust them to observe that confidence, it is not helpful for them to be told, “You can’t be told what’s going on because it isn’t in the public domain”—because the role of that group is to share that confidential information and thinking before the next round of negotiations.

The spirit of the amendment tabled by the noble Lord, Lord Wigley, completely encapsulates a need: where devolved competences are at stake and will be deeply constitutionally affected, it is only right that the devolved Administrations are involved and that their thinking is sought early on, so that they can explain it both to their own legislatures and to the people who voted them into office.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support Amendments 27 and 28, and I would have put my name to Amendment 40 had I seen it before the deadline. This is a sad day for me, not just because these amendments are necessary but because today I have disagreed very strongly with the noble Lord, Lord Howarth. We have sat together companionably for six years. He is like a human form of Wikipedia. He knows everything that there is to know about all noble Lords and this saves me from having to use my phone.

Returning to the amendments, I hope that Hansard has a copy and paste function, because, quite honestly, we have been over this time and again. Noble Lords have said the same things to the Government again and again, and at one point it seemed to have sunk in, because the European Union (Withdrawal Agreement) Bill last year contained a whole load of provision for parliamentary scrutiny. I know that the Minister will reply to us with his tried and tested lines that we have heard before—but, quite honestly, that is not enough. The election has changed things and now the Government have gutted the agreement Bill of all scrutiny. I say to the Minister that, just because his Government now have a majority in the other place, that does not make them right or mean that this is the right thing to do. It does not make them immune from parliamentary scrutiny. Our job is to hold the Government to account, and if they scrap us—well, actually, I have been trying to abolish the House of Lords for six years and it has not worked so far.

Is it not obvious that a lack of parliamentary engagement—a failure to bring the majority on board—is what led to the parliamentary deadlock when the final deal was secured? Instead of working with Parliament, the Government told us that there would be no running commentary and that the sharing of details would undermine the negotiations and so on. Scrutiny was deferred until the very last stages of the negotiations when, instead of it being a mere inconvenience, it culminated in a crescendo of chaos. Had the Government engaged constructively with Parliament, things could have turned out very differently. However, despite all those lessons, the Government are, once again, trying to sideline Parliament.

Over the coming weeks and months, much will be made of the Salisbury convention and the extent to which this House should exercise its powers and functions to scrutinise, correct and improve. My stomach slightly turned over when the noble Lord, Lord Howarth, said that we had to trust the Government. Well, actually, no, we do not. It is our job to trust when it is appropriate to trust and to distrust when we can see that they are going wrong. When the Government try to shut down scrutiny in the way they have with this amended Bill, it leaves this House with no choice but to exercise its constitutional might as far as that extends. The last stage of the negotiations was the easy bit. It is the next stage that is going to set out all our future concerns. That negotiation must be got right, and this sovereign Parliament absolutely must play its role in securing that for the national interest.

European Union (Withdrawal Agreement) Bill

Baroness Finlay of Llandaff Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

I hope that the Minister will tell us why this extraordinary power is needed and why, as regards both the international aspects and the internal aspects, we cannot go forward either with the existing powers in primary legislation or by a route of consensus.

[Baroness Finlay of Llandaff (CB)]

My Lords, I will also focus my remarks on Amendments 5 and 7 in this group, to which I have added my name.

My noble and learned friend Lord Thomas has explained in some detail the legal reasons for our concern at Ministers’ unwillingness to consider these amendments. For my part, while I understand the importance of the promises that the Government have made to Northern Ireland, surely it cannot be right that Welsh and Scottish devolution appear to be treated as less important than that of the six counties of Northern Ireland. The Northern Ireland Executive are assured that they will have direct representation when bodies under the joint committee consider matters relevant to Northern Ireland, but the Government fail to give any assurance to the devolved institutions in Scotland and Wales that their interests will be protected during the negotiations which are to come.

As I and other colleagues have repeatedly argued, there is a perfectly adequate way, through Section 109 Orders, to amend devolved competence where there is agreement between the Welsh and UK Governments. Such an approach involves both this Parliament and the Welsh legislature. I also understand that if an issue falls outside the scope of Schedules 7A or 7B to the Government of Wales Act, other powers may need to be used, but any suggestion that this may happen must be fully consulted on with the Welsh Government from the outset. Wales cannot be ridden over roughshod or treated as a second-class nation. If in extremis such agreement cannot be reached, it is of course open to the Government to ask Parliament to amend the Government of Wales Act, but such extreme measures should be used only as a very last resort.

If this clause is not amended, it will remove the incentive for Ministers of the Crown to reach a reasonable accommodation with the Welsh Government and the Senedd if and when it emerges that changes affecting the nature or implementation of devolved responsibilities and regulation are needed. There is a need to rebuild and regain trust. It may seem trivial, but as the noble Baroness, Lady Hayter, has said, despite the fact that we are on the verge of seeing the Senedd vote against legislative consent, I believe for the first time, and despite the Minister having suggested to me that direct dialogue between the Governments would be helpful, it is with regret that I understand that there have been no conversations between the Secretary of State and Welsh Ministers for the last 10 days. I assure noble Lords that that is not due to any reluctance on the part of Welsh Ministers.

The letter of 16 January from the Minister, the noble Lord, Lord Duncan of Springbank, states that under this Bill, the Government are “wholly incapable” of repealing the devolution statutes. Can he explain the absolute limits on the powers as written in the Bill because, as my noble and learned friend Lady Butler-Sloss has pointed out, no limits seem to be defined in the legislation before us? The letter also contains the phrase that it is not “normal” to use the main power set out in Clause 21 in areas of devolved competence without the agreement of the relevant devolved Administration. Can the Minister also explain the use of “normal”, which feels a bit like a get-out term?

In conclusion, let me say that Amendments 5 and 7 in no way seek to block or slow down Brexit—I remind the House that Wales voted in favour of Brexit— and they would not stand in the way of the Government’s wish to make a success of the Northern Ireland protocol. We are simply trying to avoid the perverse consequence of undermining faith in the union in Wales as a result of trying to shore up belief in the union in Northern Ireland.

[Lord Morris of Aberavon (Lab)]

My Lords, I support these amendments, in particular Amendments 5 and 7 spoken to by the noble and learned Lord, Lord Thomas of Cwmgiedd. They are of fundamental importance and go to the heart of the devolution settlements. For a number of reasons I was not able to take part in the Committee stage of the Bill, although I was present for a great deal of the debate.

My interest in a devolved model of government began to crystallise when I was a postgraduate student at Cambridge as far back as 1954. As the Welsh Secretary, I was fortunate to have the opportunity to frame the architecture of a Welsh Bill in 1975, ill-fated as it was, but in 1998 I was given a second chance as a law officer in the Cabinet Committee to contribute to a more acceptable Bill. Anything that casts doubt on it or the important advances made since arouses my suspicion, because we have moved on. My principle is that once a matter is devolved, there is no going back. Once the hand of Westminster grants devolution, it cannot then be withdrawn. The Government must ensure that any suspicion of backsliding is removed.

New subsections (2) and—probably—(5) in Clause 21 cause deep suspicion for me. New subsection (2), which has already been referred to, says that a Minister may make by regulation

“any provision that could be made by an Act of Parliament (including modifying this Act).”

This year I have enjoyed reading the book on Thomas Cromwell; I commend it. It is the life of the greatest political manipulator this country has ever seen—and probably the deviser of Henry VIII powers, because his hand was a very firm one on the tiller in all the legislative processes of that time. I ask the Minister frankly: could anything be wider than new subsection (2)? It is the Trojan horse that could amend the statutes that embed the devolution settlement.

As it stands, my suspicions are justified. The power is there to make changes to the devolution settlement even if the National Assembly and Welsh Government are opposed to the change. If Westminster has the Assembly’s agreement to changes, there is a perfectly respectable machinery for making them. It has already been referred to in the debate. In uncharted waters, such changes may be necessary.

I ask the Minister specifically: have the Government considered the alternative, a Section 109 Order in Council? This is the machinery available and could be used for any changes that might be required. Above all, they would be consensual as opposed to imposed changes. My second specific question is: will the Minister clarify and emphasise that legislative consent would normally be required for any regulation that would be brought in under this Act? Thirdly, have the Government discussed with the Welsh Government the anxieties they have? I commend these amendments.

--- Later in debate ---

[Lord Duncan of Springbank]

I cannot give the noble and learned Lord the answer to that question, but I can give him the assurance, from speaking to my legal advisers, that in the negotiations that will unfold there will be areas that we think will be under discussion that might stand outside those areas I have touched on regarding Section 109 and the ability to direct Welsh Ministers.

[Baroness Finlay of Llandaff]

Before we finish this, I understand that the Minister cannot foresee all the issues that might arise, but what mechanism is there to ensure that, the moment something comes up that will clearly involve the specific competencies, responsibilities and regulations held by the Government of Wales, the Welsh Government will be involved from the outset—however much behind the scenes—and will have early warning that something might be coming down the road and that the Henry VIII powers might be used? The track record to date is not very reassuring.

[Lord Duncan of Springbank]

The noble Baroness is right to draw this to our attention. It is not the Government’s plan in any way to seek to surprise any of the devolved Administrations on these matters. It will be necessary, as matters arise from the negotiation’s focus on the Northern Ireland protocol that have an impact on Wales or Scotland, to ensure full dialogue with the Welsh, the Scots and the wider Northern Ireland community to ensure that they are fully aware of why these matters are necessary.

The structure that we have traditionally used is the Joint Ministerial Committee. As I said a few moments ago, our purpose is to ensure that the technical discussions are dealt with primarily at the level of technicians, to enable us to find the correct way to ensure we are in full conformity with our international obligations in good time within calendar year 2020. On that part, the Government will fully commit early and engage often on these matters to ensure there is neither a surprise nor a disappointment in these matters. Again, I stress that these are elements that will be required to deliver the Northern Ireland protocol itself. It will not be in any way an endeavour to try to reach beyond, into the current statutes within the Wales Act or the Scotland Act. That is not their purpose, and indeed they cannot do that.

European Union (Withdrawal Agreement) Bill

Baroness Finlay of Llandaff Excerpts

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

[Lord Morris of Aberavon (Lab)]

My Lords, I support the amendment moved by the noble and learned Lord. I do not know from whom I am quoting, but the Joint Ministerial Committee is a “poor thing, but our own.” It has not worked very well, because it has not met very frequently. There has been no programme, its membership has varied, and it has not been a particularly effective arrangement so far. Hence, in my view, it is important that it should be put on to a statutory basis, in which case a report would be made to both Houses of Parliament and we would know where we stood. So far, we do not know.

The devolved Administrations never know when the current Joint Ministerial Committee will meet. It is important, for the sake of the union, to achieve a consensus where possible. In our discussion yesterday on another amendment in the name of the noble and learned Lord, it was obvious that there had been no discussion with the Welsh Assembly. I fear that the Minister’s reply to our debate was less than persuasive. There is an alternative arrangement that could have been used under Section 109 for an Order in Council that would result in a consensual as opposed to an imposed change. Hence, I very much support the amendment in the hope that there will be a change of heart in Westminster.

I fear that there is still a denial in the Westminster establishment that devolution has taken place at all. It has been there for a long time now and it is part of our establishment. Legislators, particularly those who draft Bills for the Government, should recognise that the devolved Administrations have been set up within the United Kingdom and are there to further the union. I would hope that if this amendment is accepted, it would strengthen the union and put the committee on a proper basis, and then there would be an expectation of regular, frequent meetings with serious and senior representation of the Westminster Government.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the noble and learned Lord, Lord Morris of Aberavon, for his words in support of this amendment, which has my name attached to it. I reiterate the words of my noble and learned friend Lord Thomas of Cwmgiedd, who has made it clear that we are seeking to persuade the Government to think again.

I want to respond to some of the comments made by the noble Lord, Lord Howarth of Newport. Our amendment is not prescriptive; it simply requires that if there is a forum, it should meet regularly, but it does not stipulate how often it should meet. Meeting means face-to-face discussion, and the forum is there to discuss the means of mitigating the impact on the constituent parts of the United Kingdom of the economic and security aspects envisaged in the future relationship. It is to avoid problems arising in the future.

We have already heard that negotiations with the EU are likely to result in agreements that have a very direct impact on many aspects of devolved competence. I would like to highlight just a few of these, some of which are very close to my heart.

The first is the capacity of Welsh universities to access EU research funds and collaborative projects in the future. Over the last 20 years, access to these funds, and to the networks they have generated, has proved critical to boosting the research capacity of Welsh higher education institutions, including medical research. Indeed, a finding from Cardiff University made headlines yesterday about new ways to manage cancers. We have been reliant on, and have built on, the funds we have accessed. The interaction between projects funded by research and development framework programmes and those funded by structural funds has been particularly important, as the Welsh Government have demonstrated in their publication on research and development after Brexit. Whether and how the UK, and therefore Wales, can access these funds will be determined by the negotiations with the EU.

The second aspect—whether there will be any reciprocal arrangements in future between the EU and the UK to access health services—is again a matter for the negotiations. I would support such arrangements, but it needs to be recognised that if such commitments are made by the UK Government, it is the Welsh NHS that will have to pick up the cost of treatment provided in Wales.

The third issue is procurement rules. Procurement is a devolved matter, and the Welsh Government are certainly interested in strengthening the way in which procurement can support, rather than undermine, local purchasing. But we know that the EU, as part of the insistence on maintaining a level playing field, will start from the position that its approach to procurement must continue even post Brexit. Wales needs to have a voice in the discussion within the UK negotiating team about any trade-off between flexibility on procurement and unfettered access to the EU market.

I could give many more examples: the future of state aid rules governing the assistance which the Welsh Government may give to Welsh businesses; access to European markets for Welsh agri-food products, such as lamb, beef and seafood; and whether or not Welsh students and pupils will have access to the Erasmus+ programme of student exchanges—to name but a few.

The key point is that the Welsh Government and the Senedd will be bound by the outcomes of the negotiations, which will begin in only a few weeks. We have already heard that Ministers of the Crown have the powers to force the devolved institutions to comply if they disagree with these outcomes. In these circumstances, it surely makes sense for the Government to start from the position where the default is to reach agreement with the devolved Administrations in the approach to negotiations. Otherwise, I fear that the result will be bitter and very prolonged conflict between the devolved institutions and the Government, which would seriously threaten the union itself.

[Baroness Randerson (LD)]

My Lords, I support the amendment and respectfully disagree with some of the sentiments expressed by the noble Lord, Lord Howarth. The Government can no longer afford the luxury of an underdeveloped and informal arrangement with the devolved Administrations. The proposed JMC needs to function properly and to meet regularly—ideally, frequently—to deal with the details of EU negotiations and future relationships with the EU.

If the Government want to maintain the union, which I believe they strongly do, they will need to treat the devolved Administrations with the respect that they deserve. Not least it is an issue of common sense. It is often not obvious to civil servants and Ministers here what impact their negotiations will have on the devolved Administrations. Very often it is simply a sin of omission: a failure to understand the full detail and significance of devolved powers and their impact on the countries concerned. That is understandable; after all, no one can be an expert in everything.

I have argued for years that the EU, as the origin of many rules and regulations and a source of funding, has taken the party-political edge off decisions it makes. As they are made on an EU-wide basis, they are not regarded as having party-political significance. Once that ends, I believe that the party politics will become quite vicious if we do not provide for proper channels of negotiation and discussion. The noble Baroness, Lady Finlay, has laid out that issue very ably. She also talked about the impact on many aspects of life in Wales. She referred in some detail to universities. I declare an interest as chancellor of Cardiff University, but I am aware that it looks constantly and in detail at the impact of each negotiation on the life of that university, on research funding and on research partnerships with institutions in Europe.

There is also the impact on Wales of the proposed, and rather confused, arrangements for Northern Ireland. As that agreement works its way through—I point out to noble Lords that the Government seem to have no understanding of what it means—it is bound to have a strong impact on Wales. The Minister will know that I am not given to flights of nationalist fantasy, nor is there any sympathy on these Benches for independence, either in Scotland or in Wales. However, bearing in mind again the words of the noble Baroness, Lady Finlay, I urge the Government to be careful what they wish for. I am well aware that there are many, both at official and at ministerial level, who still regard devolution as a bit of nuisance, yet another hurdle to be overcome and an unnecessary level of complexity, but it is well established and in Scotland nationalist sympathies are very strong. They could grow stronger in Wales if this is not sorted neatly and effectively.

At the very least, officials and Ministers here often do not understand the full implications of the decisions they make. That is what is behind this attempt by the Government to write the devolved Administrations out of the picture. It is easier to ignore them than to pay them particular attention. I say to the Government that if they succeed in ignoring the devolved Administrations, they may well live to regret it.

European Union (Withdrawal Agreement) Bill

Baroness Finlay of Llandaff Excerpts

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

[Lord Morris of Aberavon (Lab)]

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

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

I was referring in particular to Clause 21.

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

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


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

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


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

[Baroness Finlay of Llandaff (CB)]

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

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

[Lord Hope of Craighead (CB)]

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

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