European Union (Withdrawal) Bill

Baroness Finlay of Llandaff Excerpts

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

[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.

[Lord Thomas of Gresford]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Finlay, and I agree with everything that she said. In the previous debate, I quoted paragraph 7.a. of the Memorandum on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks. I will repeat it because it is worth repeating. It says:

“Building on the ‘Deep Dive’ process, which has been a collaborative effort between the governments, discussions will take place between the governments to seek to agree the scope and content of regulations. This process will continue to report”,


into the JMC on EU Negotiations. This amendment, tabled by the noble Lord, Lord Wigley, allows us to discuss the very important issue of how those discussions are to take place, what decisions are to be taken and how they are to be taken over the formation of the UK framework agreements.