European Union (Withdrawal) Act 2018 (Repeal of EU Restrictions in Devolution Acts etc.) Regulations 2022

Baroness Humphreys Excerpts

Wednesday 16th March 2022 Grand Committee

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

My Lords, these regulations were laid in draft before the House on 25 January. Their purpose is to repeal the powers introduced by Section 12 of the European Union (Withdrawal) Act 2018, which provided a regulation-making power to temporarily freeze devolved legislative competence while UK common frameworks were finalised. If approved, the regulations will also remove limitations on devolved legislative and executive competence introduced into the devolution settlements and any cross references to those powers.

The European Union (Withdrawal) Act has an inbuilt duty on Ministers to consider the repeal of Section 12 powers. Those powers are time-limited. In any case, the powers have never been used and, since 31 January this year, can no longer be used. There can now be little reason to retain them. Although the powers have never needed to be used, they provided a useful contingency while the Government and the devolved Governments worked jointly to develop UK common frameworks. The Government and the devolved Governments have successfully worked together on a collaborative basis to develop common frameworks, and the powers have not needed to be used. The frameworks that have jointly been developed now underpin a common approach across the United Kingdom to policy areas previously governed by EU law that are within devolved competence.

If approved and made, the regulations will remove the now redundant powers from the statute book. They will also remove the ongoing statutory obligation on the Government to report to Parliament on the use of these powers. The Government have produced 14 reports since the European Union (Withdrawal) Act 2018 was enacted, with the most recent report published last week.

In addition to keeping the statute book in good order, the regulations mark the progress that this Government have made jointly with the devolved Governments to develop common frameworks. These frameworks are in operation to create a consistent approach across the United Kingdom in a wide range of policy areas. I commend the regulations to the Grand Committee.

[Baroness Humphreys (LD)]

I thank the Minister for the clarity of his presentation. As he has already outlined, this SI removes the powers introduced into the devolution settlements by Section 12 of the European Union (Withdrawal) Act. These were temporary powers to prevent divergence from existing structures established in the UK by EU law while the UK common frameworks were developed. The Explanatory Memorandum points out that these regulation-making powers are no longer needed, as the Minister has already explained, because of the progress made towards developing the frameworks. It also points out that the power to make such regulations cannot be exercised after 10.59 pm on 31 January 2022. As we are now six weeks past that date, I presume that the powers no longer exist and that this instrument is therefore needed to remove these redundant provisions from the statute book.

The Government make much of the collaborative approach taken towards working with the devolved Administrations, and point out that the powers introduced by Section 12 of the European Union (Withdrawal) Act have never needed to be used because of that. My concern is that, by removing the powers from the devolution settlements, we are also removing an ongoing statutory obligation to report to Parliament on the use of the powers and, crucially, report on the implementation of the UK common frameworks.

I am a great admirer of the Common Frameworks Scrutiny Committee and the expertise of its chair, the noble Baroness, Lady Andrews, and of its members. I hear of its activities through members of the committee. In its report, Common Frameworks: Building a Cooperative Union, the Committee highlighted three problems with the common frameworks. The first was that the frameworks have been developed behind closed doors, with minimal stakeholder engagement or parliamentary scrutiny. The second was the need to clarify the relationship with the Northern Ireland protocol, and the third was the lack of information given to Parliament to enable it to scrutinise the operation of these important governmental agreements, which, it says, remain largely invisible. While doing excellent work, the committee appears almost to be working in limbo, so what progress has been made on the three problems that it identifies? What steps have been taken to present information to Parliament on a regular basis so that Members can better understand and scrutinise the intergovernmental relationship?

As usual, I am particularly interested in the quality of the collaboration between the UK Government and the devolved Governments. In various Bills that have come before this House recently, the UK Government have talked about consultation or collaboration with the devolved Governments, but they in turn have complained about a lack of meaningful consultation, having sight of a Bill only the day before it is presented to the Commons, and being presented with information without being allowed a sensible response time—so much so that the Senedd’s Legislation, Justice and Constitution Committee, in its legislative consent memorandum to the Elections Bill, made a recommendation that the Welsh Government should include a commentary on the extent of co-operation and engagement with the UK Government in all legislative consent memoranda that are required by virtue of Standing Order 29. This enables the Senedd to scrutinise the level of engagement between the Governments.

I hope that the noble Lord can assure me today that the UK Government have a plan to allow scrutiny of all aspects of the common frameworks process by Members of this House.

[Lord Wigley (PC)]

My Lords, I am delighted to follow the noble Baroness, Lady Humphreys, and to note that four of the six Members in this Room are from Wales. It is noteworthy that there is nobody from Northern Ireland or Scotland here. Before referring to Wales, I want to ask whether there is any substantive difference in the provisions that are being made for Northern Ireland from those being made for Wales and Scotland, and between Wales and Scotland, or is it a uniform approach for all three? Circumstances and challenges are different in Northern Ireland, as we all know.

Regarding Wales, at First Reading of the Bill, it seemed that there were powers coming back to Wales—but perhaps the Minister can clarify that there are no additional powers coming back to Wales. They are coming back to the UK, and they may be handled in a way which, as the noble Baroness, Lady Humphreys, mentioned, may or may not go down well in the devolved Governments. That brings us to the very serious point of how we oversee the working of these regulations to see that there is proper co-operation between the devolved Governments and Westminster. It is in everybody’s interests, and very often is a matter of talking early with each other, rather than waiting for something to arise.

I have seen in the context of the work of the Select Committee dealing with EU business relationships that notification goes to Cardiff often very late in the day. Ministers can then rightly respond, “Yes, we have contacted Cardiff”, but they have not given a reasonable amount of time to get a meaningful response back. I hope that will be taken on board, and that mechanisms can be developed jointly between the Government and the Parliaments in Westminster and Cardiff so that there is a proper, constructive relationship, and that, when there is a need to harmonise things, it can be done by voluntary agreement rather than imposing things from the centre.

Having said that, these sorts of regulations obviously have to come forward and one accepts that they must be enacted.