Devolution (Constitution Committee Reports)

Baroness Randerson Excerpts

Monday 9th October 2017 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I thank the committees for their excellent reports that provide a very thorough background, albeit some of it is almost historic as they have been in existence for so long before we debate them.

The noble Lord, Lord Lang, emphasised the lack of care and involvement of the UK Government in constitutional affairs and said that we must stop taking the union for granted. This Government have at best a chaotic attitude to constitutional change. In fact, for decades Governments have been less than systematic in their approach to the devolved Administrations and to the process of constitutional change as a whole. Of course, the current Government have their eyes, hours and funding all fixed on Brexit. However, Brexit itself fundamentally shakes the foundation of the union. It does so most noisily in the case of Scotland. These arguments have been well rehearsed here today. However, the impact in Northern Ireland, which has received less attention today, is massive and potentially tragic, and it is overwhelmingly ignored in England in my experience. Over the summer I had discussions with senior figures in Irish politics. They see no realistic practical solution to the border issue which observes both the spirit and the letter of the Belfast agreement. I do not need to spell out to noble Lords here today that that has huge implications for politics in Northern Ireland.

However, I want to concentrate on Wales, which, as usual, has received less focus today than Scotland, despite the efforts of, among others, the noble Lord, Lord Murphy. The noble Lord, Lord Jay, set out clearly the situation in relation to EU powers on, for example, agriculture and the environment and their importance to the devolved Administrations.

I do not always agree with the First Minister of Wales but I certainly always agree with his right to be at the table and his right to be heard. In his response to the EU Committee’s report, he emphasised that the Welsh Government have repeatedly but vainly tried to engage with the UK Government. Indeed, they put forward their own policy paper on Brexit and devolution, and I recommend it to those noble Lords who have not yet had a chance to read it. That paper emphasises that the National Assembly for Wales is now the principal law-making body for Wales in most matters that affect people’s daily lives; for example—it is a long list—health, education, training, housing, the environment, economic development, local government, transport, planning, agriculture, fisheries, culture, sport and recreation. Several of those powers—for example, those relating to the environment, agriculture, fisheries and economic development—are exercised specifically according to the framework of EU law.

This Parliament retains the power to legislate on any matter for Wales, as it does for the rest of the UK, but, according to the Sewel convention, which several noble Lords have mentioned today, Parliament will not normally legislate for Wales on matters within the legislative competence of the National Assembly for Wales unless the Assembly has given its formal consent through a legislative consent Motion. That Sewel convention has been observed throughout the history of devolution.

The Welsh Government also have their own direct relationship with the EU, as does the Welsh Assembly—for example, on the administration and strategic direction of structural funds and on implementing the common agricultural policy. They also contribute to European Councils, which Welsh, Scottish and Northern Ireland Ministers attend. I did so myself when I was a Minister in the Welsh Government. It is not surprising, therefore, that the Welsh Government take strong issue with key sections of the Government’s response to the EU Committee’s report.

I agree with those noble Lords who raised the Barnett formula. Some welcome progress was made on this issue during the coalition Government and more recently in the Wales Act 2017, but then a bomb was placed under it through the deal with the DUP to keep the Conservative Government in power. However the additional billions are channelled to Northern Ireland, you cannot escape the fact that that deal upsets the uneasy balance that the Barnett formula represents.

The Welsh Government’s paper proposes, for example, replacing the JMC with a new UK council of Ministers to take forward negotiations, reach binding decisions and resolve disputes. My experience of the JMC is that it is not the most productive and effective of organisations, and that experience predates the point at which Brexit became such a divisive issue. As my noble and learned friend Lord Wallace pointed out, the JMC body established by the UK Government specifically to deal with Brexit has not met since early February, despite repeated calls by both the Welsh and Scottish Governments for it to do so. By any measure, the UK Government are clearly not even pretending to take that process seriously. Noble Lords could draw the conclusion that the Government are simply frightened of meeting the devolved Governments because they have no answers to the constitutional issues they raise.

I am also informed—I would be interested in the Minister’s comments on this—that there has been a total lack of consultation on the series of position papers issued by the UK Government over the summer, even when those papers dealt with devolved issues. The Welsh Government apparently received less than 24 hours’ notice that they were even being published.

The Government’s response represents the status quo on EU policy-making. It says:

“The UK Government is responsible for ensuring that the internal market within the UK operates freely and openly … The powers currently held by the EU that provide that guarantee on the internal market are not, and never have been, within the competence of the devolved administrations”.


However, in relation to devolved powers, such as on agriculture, the UK Government have in practice been formulating their responses in agreement with the devolved Governments. I repeat that those responses to European powers have been made with the agreement of the devolved Governments.

In respect of Wales, the government response talks specifically about the,

“opportunity to redesign our policies to make them work for us”—

the “us” being apparently the UK Government. It applies this approach to agriculture, which is of course a devolved issue. It talks about replacing structural fund programmes with a new fund, but those structural fund programmes are entirely devolved to the Welsh Government. Taking those comments along with the lack of a sunset provision on the powers that the UK Government intend to repatriate from the EU to themselves, is it a surprise that when the Government say to us, “Trust us. We’ll bring back these powers from the EU but we’ll pass them on to the devolved Administrations in due course”, so many of us simply do not trust them and suspect that this is a simple power grab by the UK Government? I remember when debating the Wales Bill having time and again to argue against the centralisation of powers.

Brexit threatens to destabilise our already shaky union. Northern Ireland poses an impossible conundrum and upsets the relationship with one of our closest neighbours—the Republic of Ireland. Northern Ireland is nowhere near as settled as it looks from this side of the water. Wales already resents the disdain with which its problems are treated by the UK Government. Recent events in Catalonia should warn the Government to take nothing for granted in Scotland. The Government must wake up and smell the constitutional coffee. They simply must engage fully with the devolved Administrations and recognise that they have to go forward with the express consent of the devolved Administrations.

I look forward to the Minister’s response and I welcome him to this Chamber. As someone who previously spoke from that place for the Wales Office, I shall be particularly interested in what he has to say in relation to Wales, but I hope that he finds his job enjoyable and fulfilling. In the long term, our untidy, lopsided devolution settlement becomes less and less sustainable and acceptable. I urge the Government to listen to those pressing for the establishment of a constitutional convention, to engage with civil society as well as politicians, and to restore respect within the union.