European Union (Withdrawal) Bill

Debate between Baroness Finlay of Llandaff and Lord Morris of Aberavon

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I too thank my noble and learned friend Lord Hope of Craighead for introducing this set of amendments, to which I have added my name, so concisely and well. I start the afternoon by placing on record my thanks to Ministers, especially the noble Lord, Lord Bourne of Aberystwyth, and the Secretary of State for Wales, who have been trying to keep us—certainly me—up to date in relation to Wales. I have had correspondence during the morning. I hope that the spirit of the debate today will recognise the importance of the devolved competences, and the need to respect them and find a way forwards. Like others, I will reserve my main remarks for later, in the larger debates.

[Lord Morris of Aberavon (Lab)]

My Lords, I too support the noble and learned Lord, Lord Hope, and I too will reserve my remarks until we come to the government amendments. This is new ground; it needs an explanation, and unless the explanation is reasonable I will certainly oppose the provision.

European Union (Withdrawal) Bill

Debate between Baroness Finlay of Llandaff and Lord Morris of Aberavon

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I support the amendments in the name of the noble and learned Lord, Lord Hope, and I am grateful to him for the careful way in which he has gone through each of them. I do not propose to do that myself, but I will address the broad issue that the Bill as it stands alters the balance on devolution.

Once granted, devolution cannot be taken away. We had a royal commission and two Acts, and for more than 30 years I played a small part in ensuring that eventually we got there. We have got there, and there is no going back. However, the Bill alters the balance, and finance is involved as well. I mention that in passing. The Barnett formula now is based on population. The grants that agriculture and the environment get from Brussels are based not on population but on need, so that will be the fundamental change if the Bill stands unamended. It goes to the very heart of the matter. I was grateful to the noble Lord, Lord Bourne, for indicating to me today that he was minded to bring forward some amendments, but are they of very great importance? We cannot say until we have seen them. However, something more important is at issue.

There have been conversations between the Westminster Minister—the Chancellor of the Duchy of Lancaster, as I understand it—the Welsh Assembly and the Scottish Parliament. There has been no agreement. I understand that they are getting closer to each other, but this should have been done a long time ago. The promise was made in the other place—the Scottish Secretary made a commitment on behalf of the Government that it would be amended by Report in the Commons. We are now almost on Report in the Lords, but still we have had no agreement from either of the devolved Governments or any indication of what kind of amendment will be forthcoming.

I dealt with the issue of legislative consent in some detail in my short speech on Second Reading. Legislative consent had to be dragged out of the Government. The Whitehall departments have yet to take devolution seriously. I still have the bruises of many years’ campaigning to persuade each one of them that devolution, following the royal commission, was inevitable. Eventually, after a long time, we won. However, I still believe that there is an inherent objection in the Westminster departments to devolution at all. We had an indication from Stephen Crabb MP, the former Welsh Secretary, when he addressed the Welsh Conservative Party conference, saying that,

“we still have to get the cabinet secretary to put pressure on departmental permanent secretaries to take devolution seriously”.

That is why there has been this foot-dragging, why there has not been an agreement, and why there has been this resistance to bringing forward a proposal that would ensure to all of us that we will not go back on devolution.

On 21 June last year, on the issue of legislative consent, the Prime Minister said: “There is a possibility” —those were her words—that,

“a legislative consent motion may be required by the Scottish Parliament”.—[Official Report, Commons, 21/6/17; col. 62.]

The next day, the Leader of the Commons kicked it into touch, and a few days later, the noble Lord, Lord Bourne, kindly affirmed in this House that they would seek legislative consent. That is an indication of the way in which the Westminster departments have not been able to take devolution seriously. That is why the joint letter from the two First Ministers of the Assembly and of the Parliament says that they would not give legislative consent to the Bill in its present form. That is an alarming position, and we are still not clear whether legislative consent, which is now politically necessary, will be given at all.

On 14 September, the Minister, Mr Skidmore, wrote to the noble Lord, Lord Boswell, of this House:

“We will continue to engage the devolved administrations as we seek to deliver an EU Exit approach that takes proper account”,


of the devolved and interested parties. We still await that agreement. It had not been reached last Thursday, when I discussed the matter with the counsel for the Assembly, or this morning, when I discussed it with the person I speak to in the Welsh Assembly in Cardiff. We still await it—although there is more confidence now that there is hope on the horizon.

Perhaps I may set out briefly my objections to the present proposals in the Bill. First, it freezes existing law at the point of exit, and only UK Ministers appear to be allowed to unfreeze it, even in areas clearly within the competence of the Assemblies and the Parliament, such as agriculture and the environment. I hark back to what I said earlier about the Barnett formula and the finances. Is that the reason?

Secondly, UK Ministers will be able to amend legislation within the competence of the Assembly without being answerable to the Assembly, explaining what they are doing and why. That does not seem democratic to me.

Thirdly, the clauses would allow Ministers of the Crown to amend legislation within the legislative competence of the Assembly and Parliament and to amend legislation in respect of which Welsh Ministers may also exercise functions under Schedule 2 or under existing powers. This could extend to amending legislation passed by the Assembly. That is the legal position which has not been faced. It is what this Committee should now consider and get some kind of response on from the Minister. I know that there were many speeches to be answered at Second Reading but there was no response at all to some of the fears that I expressed then and repeat now. I hope that at the end of this debate there will be an answer to each of these points.

Any regulations made by a Minister of the Crown would be scrutinised by the UK Parliament rather than by the Welsh Assembly, even if the law in question contained provisions relating to devolved subjects. That is a horrific scenario and goes well back on the devolution settlement.

One specific piece of advice that I received astonished me and I hope it is wrong. If it is not, I enjoin the Minister to correct it. I am told that these powers could also be used to amend the Government of Wales Act without any requirement for the Assembly’s consent. If my advice is right and that is correct, we are certainly going back on the settlement. We are going back on 30 or 40 years of campaigning; we are going back on the recommendations of the royal commission; and we are going back on what was agreed in two Acts of Parliament—one in 1998 and one in 2006—and by referenda in each country.

Therefore, I hope that on this occasion, unlike at Second Reading, we will have some reply and some indication of where we are going, and that the balance of devolution, which many of us have fought for all our lives, will not be reversed.

[Baroness Finlay of Llandaff (CB)]

My Lords, I have added my name to Amendments 90, 130 and 148. I am most grateful to my noble and learned friend Lord Hope for introducing the amendments in meticulous detail.

I heard the Minister speak about a correcting power in relation to Clause 9 but unfortunately I did not hear the words “legislative consent”. In the Government of Wales Act there is a principle of legislative consent from the Assembly, and that is important when powers change and when legislation comes from Westminster with a direct effect on Wales. I am no lawyer and I hesitate to speak following two such knowledgeable lawyers as my noble and learned friend Lord Hope and the noble and learned Lord, Lord Morris, and the very informed opinion of the noble Lord, Lord Wigley, but I believe that the volume of amendments tabled on this issue and the strength of feeling show both the deficiencies in the Bill as drafted and the deep unease that the Government’s efforts to appease the concerns appear to have been left until the 11th hour. That is a tremendous shame for the operation of the whole of the UK going forward.

As it stands, it seems that the passing of this Bill could mean that Brexit becomes a conduit through which legislative competence is repatriated slowly— as the thaw occurs, after time—from the devolved Governments in Wales and Scotland back to Westminster. In the words of the First Minister of Wales and the First Minister of Scotland, this Bill appears to be a “naked power grab”. It does not return powers from the EU back to the devolved Administrations, as promised; it returns them solely to the Government and Parliament, and freezes them, and it imposes new restrictions on the Scottish Parliament and the National Assembly for Wales.