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.