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.