European Union (Withdrawal) Bill

Baroness Finlay of Llandaff Excerpts

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

[Baroness Finlay of Llandaff (CB)]

My Lords, I added my name to this amendment and I am grateful to my noble and learned friend Lord Hope for the way that he introduced it and for the remarks which have subsequently been made. It is very important that we follow up on what the noble Lord, Lord Tyler, said: we must find a way forward by the time we get to Report.

In previous debates, we have discussed common frameworks and there was the suggestion of creating a new schedule to the Bill—indeed, I said that I would try to draft one—to clarify the intersection between EU law and the devolved legislative competences. There are, though, areas that remain for dispute. Like the noble Baroness, Lady McIntosh, I suggest that there is not simply a dichotomy between consultation or consent, but that there is a phase of needing negotiation and trying to reach agreement between the Governments concerned. I refer the Government to a Welsh government document which I do not think has been referred to previously in our debates, Brexit and Devolution. It was produced some time ago but it has a section on what happens,

“if agreement cannot be reached at all through normal procedures”,

and lays out the need to recognise,

“a backstop arrangement as part of the overall operating procedure”,

and that it may need “independently managed arbitration”.

The noble and learned Lord, Lord Mackay, has proposed a very elegant potential solution to move forwards. Some reservations were expressed about that last phase, which was that if there could not be an agreement reached there would be another problem linked to that: that there needs to be an overall responsibility for a UK-wide market and governance responsibility for the way in which things are conducted. Ultimately that will have to rest with one person, who I venture to suggest will be the Prime Minister because that is the overall and overarching point of responsibility. That does not mean that we would go from one to the other without many stages of careful negotiation in between and on the way.

The contents of this amendment were referred to in annexe A of a letter that was sent to me, and I think to other Peers, by the noble Lord, Lord Bourne of Aberystwyth, on 21 March, signalling a wish to move forwards. Following the question about the continuity Bill, I would like to put it on record that I received a letter on 23 March, last Friday, from David Rees, the Assembly Member who chairs the External Affairs and Additional Legislation Committee. He says in that letter:

“We appreciate the UK Government’s willingness to propose a solution to the impasse we currently face on the treatment of devolved areas of competence once EU law restrictions are lifted from them”.


He goes on to point out,

“the failure to acknowledge a role for the Assembly in the control of powers for which it is responsible”.

That was a problem but, he says:

“We note that the amendments were debated before being withdrawn or not moved in the House of Lords on 21 March … and hope that further progress can be made in the coming weeks”.


I wanted to quote from that letter because there is an atmosphere of good will and a recognition that there needs to be a way forward. I hope that this amendment will contribute towards the Government’s move—it was debated at some length last week when we debated the frameworks—and that we can find a way forward, but it will need dispute resolution processes to be clearly laid out because, even though the EU competencies may fall centrally or to the devolved legislatures, there will still be difficulties at the intersection of many of those broad headlines. We have already had the very helpful table set out by the Government following the deep drives into the legislation but, with all due respect to everyone looking at this, I suggest that we should formally consider laying out some form of dispute resolution so that we do not revisit the impasse we had.

[Lord Thomas of Gresford (LD)]

My Lords, I strongly support the call by the noble and learned Lord, Lord Mackay, that primary legislation should be used to form the necessary frameworks. I made that point at Second Reading when I suggested that Clause 11 and all devolved matters should be taken out of the Bill altogether. It might then not have required any consent from the Scottish Parliament and the Welsh Assembly, the whole matter would have been considerably simplified and the focus could have been put on the very difficult issues that arise with devolution. The original architecture which the Government put forward, which of course they have changed now, was that the powers that were to come back from Brussels—or, as the noble and learned Lord, Lord Mackay, said, the restraints upon the devolved Administration, which is a simpler way of looking at it—should go to the UK Government and then be parcelled out and conferred upon the devolved Administrations. Which powers and when—the timing and the nature of those powers—would be virtually at the whim of the Minister who would decide what was appropriate. It would be done by secondary legislation, either statutory instruments or Orders in Council. We have had debates about that.

The conferred powers model has never been used in relation to the Scottish Parliament. It has always been reserved powers. That is to say that in specific cases of policy, all those powers go to the Scottish Parliament, save those that are named, enumerated and held back— reserved—by the UK Government. Precisely that reserve powers model is about to be employed in Wales under last year’s Wales Act. It is to commence in April. To come forward with a scheme in which, in effect, powers are conferred not by the UK Parliament but by a Minister merely by statutory instruments, which cannot be amended, or by Orders in Council, was clearly inadequate and has given rise to a great deal of difficulty and angst, certainly in Wales.

I shall quote from the evidence that appears in the report of the Committee on the Constitution. It was given by Professor Richard Rawlings of University College London, who has given very valuable advice, in Wales in particular, on devolution issues. What he said about the original architecture was that,

“this process does not establish positive duties on the part of the UK Government to devolve. Legally-speaking, suggested ‘transitional’ elements could so easily become permanent features”.

That is the which and the when. He continued:

“Nor need one be an expert in game theory to appreciate the way in which clause 11 stacks the cards in favour of the centre when negotiating the different design choices with common frameworks”.


If the devolution of powers is simply within the control of the Minister of the UK Government, then the Scottish Parliament and the Welsh Assembly have lost their bargaining power in the creation of frameworks. The point was made that while UK-wide frameworks will be necessary in a number of policies, they should be agreed on a parity-of-esteem basis between the Governments and legislatures of the United Kingdom, not imposed by the UK Government even on a time-limited basis.

I hope that indicates what the real, critical matter is. It is not just Welsh, Scottish and possibly Northern Irish people whingeing or seeking to stand up for their own individuality—it is nothing like that. It is that they should have equal bargaining power with the UK Government in the construction of the UK frameworks, which everyone agrees are necessary. I wholly support the amendment.