European Union (Withdrawal) Bill

Lord Bourne of Aberystwyth Excerpts

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

[Lord Hope of Craighead (CB)]

My Lords, three amendments in this group are in my name: Amendment 90, which relates to Clause 7; Amendment 130, which relates to Clause 8; and Amendment 148, which relates to Clause 9. They all raise the same point about the extent of the delegated powers given to Ministers of the Crown by these three clauses. The context is the way in which exercise of these powers may affect the devolution settlements for Scotland, under the Scotland Act 1998, and for Wales, under the Government of Wales Act 2006 and the Wales Act 2017. I am obliged to the noble Baroness, Lady Suttie, for her amendments introducing the position of Northern Ireland in exactly the same terms as my amendments.

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

Before the noble and learned Lord, Lord Hope, proceeds, it may be of benefit to the House if I now confirm that the Government will bring forward amendments on Report to apply the same protection for the Scotland Act and the Government of Wales Act to the Clause 7 correcting power that applies to the Northern Ireland Act. I will speak about that more at the end of the debate. It may also benefit the House to note that the Government have tabled an amendment to Clause 11 —as I am sure noble Lords are aware—that reflects the significant offer we have made on that issue to ensure that the House can debate the offer when we reach that clause, just as we promised to do in the other place.

[Lord Adonis (Lab)]

Since he has started speaking, would it not be better for the noble and learned Lord, Lord Hope, to speak fully now and tell us what he was going to say? That would give us much more to respond to and might indeed shorten the debate.

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[Lord Bourne of Aberystwyth]

The noble and learned Lord, Lord Hope, has not yet moved the amendment so he needs to do that first.

[Lord Hope of Craighead]

I am very grateful to the Minister for his intervention and for the indication that he has given. My amendments extend to Clauses 8 and 9; what he has said is an indication of the way the Government are minded to go on Clause 7, but I must introduce my amendments in relation to Clauses 8 and 9 as well.

The provision relating to Northern Ireland, to which the Minister referred, is what we find in Clause 7(7)(f), which indicates that,

“regulations under subsection (1) may not … amend or repeal the Northern Ireland Act 1998”.

That provision is then substantially qualified in a way one can only understand by reading through the schedules. I am not clear whether the Minister is proposing that the Scotland Act and the Government of Wales Act should be qualified in the same way, but if he intends to qualify them, my amendments are unqualified. It is therefore appropriate for me to explain why my amendments are in the terms they are. Perhaps the noble Lord, Lord Adonis, will appreciate why I need to set this matter out in a little bit of detail and explain why I have brought the amendments forward.

As we have seen, these three clauses confer a very wide power on a Minister of the Crown to make provisions by regulations. That includes a provision to which attention has not been drawn until now, but which is certainly relevant to the amendments in this group: a Minister of the Crown may make a regulation of the same kind that could be made by an Act of Parliament. We find that in Clause 7(5), Clause 8(2) and Clause 9(2). I need not go over what these clauses deal with but, broadly speaking, in Clause 7 the power is to enable a Minister to deal with,

“any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU”.

In Clause 8, the power is to enable a Minister to,

“prevent or remedy any breach, arising from the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom”.

In Clause 9, it is a wider power to enable the Minister to,

“make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day”.

Each of these clauses is limited in some respects by saying that regulations made under them may not do certain things. The Committee has heard about that in earlier debates today, such as in relation to sentencing, the creation of criminal offences and so on. These amendments seek to add two further limitations. One is that the power under these three clauses may not be used to modify the Scotland Acts and the government of Wales Acts without the consent of the Scottish Parliament or the National Assembly for Wales, as the case may be. As I mentioned earlier, the noble Baroness, Lady Suttie, is seeking to make similar provision in relation to Northern Ireland. Amendment 148 goes a little further than that: it builds in an additional provision relating to the Ministers of the devolved institutions. These are the subject of the group after next, which we will come to later this evening. I will not develop that aspect until we get to that group.

The scale of the transfer of legislative competence to Ministers of the Crown, provided for by these clauses, raises concerns of a fundamental nature. This is not only about the balance of power between Parliament and the Executive, as the Constitution Committee pointed out in paragraph 158 of its report, it also raises concerns about the balance of power within the union and the future of the devolution settlements themselves, referred to in the same report at paragraph 243. Some of what I will be saying in a moment will be directed only to the Scotland Act, but it should be understood as applying equally to the Government of Wales Act and the Wales Act, which are referred to in my amendments.

As I understand the wording of these clauses, if they are left as they are the powers could be used to change the constitutional balance of powers between the UK Government and the devolved institutions which the relevant devolution statutes set out. An aspect worth stressing is the width given to the meaning of the word “deficiencies” in Clause 7. We see it set out at length in subsection (2), supplemented by subsection (3). It is extremely wide and can be widened still, as we can see, given the power in subsection (3). The provisions in Clause 7(6) are about the transfer of functions from EU entities or public authorities in member states to public authorities in the United Kingdom, which would, of course, include public authorities in the devolved areas of Scotland and Wales.

The Committee needs to bear in mind the points made by the noble Lord, Lord Wilson of Dinton, in his speech last Wednesday morning about the width of Clause 7; the meaning to be given to the expression “Minister of the Crown”; and the numbers of people who could be embraced by that expression. The point which was of particular concern to me in the amendments in this group is that the power includes a power to make any provision that can be made by an Act of Parliament. I appreciate that the provision in Clause 7 is time limited. This is also true in the case of Clause 8. In Clause 9, the power is not exercisable after exit day. Nevertheless, as these clauses stand, and while they continue to have effect, it would be open to a Minister of the Crown to modify the Scotland Acts and government of Wales Acts in a way that, as I mentioned earlier, could shift the constitutional balance, and to do so without even consulting the Scottish Parliament and the National Assembly for Wales, let alone obtaining their consent.

A particular part of the Scotland Act which is quite vulnerable to an inadvertent amendment without that process of obtaining consent is the detailed wording of Schedule 5. I was involved, as was the noble and learned Lord, Lord Mackay of Clashfern, in considering the Bill which gave rise to the Scotland Act 1998. We sat until late in the night—indeed, early in the morning—dealing with that Bill and went over Schedule 5 in some detail. It has survived very well over the years since devolution, but it contains considerable detail which could be adjusted a little. That would alter the balance between the UK Government and the Scottish Government in a way that should not be done without the consent of the Scottish Government.

I appreciate that Ministers may say that it is not their intention to modify the Acts in this way, but it is well known that there is a high degree of mistrust between the devolved institutions and the UK Government about where this legislation is going. Personally, I regret that but, from a Scottish point of view, the reason is not hard to find. As one reads through these clauses, and looks at them from the approach of a Scottish Minister, or the Scottish Parliament or, indeed, a lawyer who has dealt with the devolution system since it first came in, it is striking that—apart from Northern Ireland—there is simply no mention in these three clauses of the fact that there are devolved Governments in Wales and Scotland that need to be considered. That aspect causes one some alarm as soon as one begins to read through the Act. It would be desirable to do something about it, if one possibly can. That is why I welcome what the Minister said when I began my speech.

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[Lord Adonis]

My Lords, the Minister unusually intervened at the beginning of the speech of the noble and learned Lord, Lord Hope, to say that he had some significant announcements to make in respect of Scotland and Wales and Clause 7. I assume he also meant Clause 8, but it was not clear. Given that this debate will be precisely on what the terms of Clauses 7 and 8 should be in respect of the devolution settlements, may I suggest that it would be fitting if the Minister made his announcements on the Government’s intentions now, and then noble Lords can respond afterwards? He has already told us that he intends to make such announcements and it would be ridiculous to have a big debate only for us to learn of the Government’s intentions after we have spoken.

[Lord Bourne of Aberystwyth]

My Lords, I am most grateful to the noble Lord for giving way. I thought I was explicit that my remarks concerned only Clause 7, but I thought that was still significant because, clearly, that is a large part of the debate. I wanted to make it clear at this stage that we have moved significantly on Clause 7, but there is still an issue to be addressed in relation to Clause 8, and, I believe, Clause 9.

[Lord Adonis]

My Lords, what does the noble Lord mean by “moved significantly”? For those of us not initiated into the intricacies of this, what does he intend to do?

[Lord Bourne of Aberystwyth]

I seek to indicate that I can confirm that the Government will bring forward amendments on Report to apply the same protection to the Northern Ireland Act as to the Scotland Act and the Government of Wales Act. This means that all the changes we are proposing—bar one, I think, in relation to technical standards, but even that we will be able to spell out in relation to the Bill—and all the powers in relation to corrections will be in the legislation when we get to Report. We will table amendments on Report so that the correction power in Clause 7 will not be necessary. It will be in relation only to international obligations in Clause 8 and complying with the exit in relation to Clause 9.

[Lord Judd (Lab)]

On that point, could the noble Lord confirm that the amendments to be brought forward by the Government will make absolutely sacrosanct the principle of the preservation of the Good Friday agreement?

[Lord Bourne of Aberystwyth]

My Lords, I certainly can confirm that but I was going to confirm it, as it were, right at the end of the debate. Clearly, this is fundamental. We are very much wedded to it, as was indicated in December, when there was a meeting with the EU on this issue and as we have stated again and again. I appreciate the point the noble Lord makes. It is important and I can confirm that we will do that.

[Lord Wigley (PC)]

My Lords, I wish to speak to Amendments 92 and 93 standing in the name of the noble Lord, Lord Foulkes, and myself. I am sorry that he cannot be here to speak to these amendments, but I understand that it is in order for me to do so.

These amendments would restrict Ministers of the Crown from being able to amend or repeal the Wales Act 2017 and the corresponding Scotland Act using regulatory powers. The fact that these amendments are necessary underlines a perceived disregard the UK Government have for the sovereignty of the two devolved parliaments. If the Northern Ireland parliament were in existence, I am sure there would be feelings along similar lines.

The Bill gives sweeping powers to Ministers of the Crown, with which they can do what they like, including amending and/or repealing the devolution settlements. This was exemplified last Friday 9 March, when, despite no agreement being reached at the JMC (EN) meeting on the status of powers being repatriated from Brussels, the UK Government pushed ahead and published their framework analysis. This was essentially a list of devolved areas of policy that the UK Government will take over themselves—I will not list them or go into that, because they will mainly come under Clause 8, as the noble Lord, Lord Bourne, mentioned a moment ago.

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I cannot add to the discussion. We have had such extraordinary speeches by people who are far more competent than me. I am Joe Public. For goodness’ sake, what are we thrashing around for? There are devolved Governments in Wales and Scotland and there is a significant moment coming in terms of their relationship with this Parliament and with Europe. If we cannot solve that one, why did we bother to have our earlier discussion about what we have to do to deal with Russia?

[Lord Bourne of Aberystwyth]

My Lords, I am very grateful to noble Lords who have participated in this very wide-ranging debate, particularly to the noble and learned Lord, Lord Hope, for moving his amendment and the noble Baroness, Lady Suttie, for moving her amendment to the amendment. I shall first try to deal with a couple of very basic points before turning to the substance of the debate and I shall then try to pick up some of the points made by noble Lords. I gently say to the noble Lord, Lord Griffiths, that if my aim was to cut short this debate, I failed fairly spectacularly. I regret that. I had sought to clarify where we were—but I will go through the basic principles again.

I shall deal with a couple of very basic points. First, I do not know where the idea came from that there is some possibility of the Government fundamentally amending or repealing the Government of Wales Act without consent. That is not remotely on our agenda. It is certainly not something that I would tolerate. I suppose it is just about within the scope of Austinian sovereignty, but I do not know where the idea came from that that is a possibility—so let me put that to bed absolutely right away. We are totally committed to devolution—the Government of Wales Act, the Scotland Act and the Northern Ireland Act—and I think that noble Lords will appreciate that point.

Secondly, I think that there has been some confusion. We are not principally dealing with Clause 11 today. There might be some confusion because we have just published the amendments in relation to Clause 11, following an undertaking we gave in another place—but that will be the subject of much broader discussion later. No doubt we will go through that in some substance, so I do not intend to deal with it and pre-empt what is going to happen later in our consideration of the Bill.

I thank noble Lords for this valuable debate. We will consider the main clauses relating to devolution in coming days, but the question of how the powers conferred by the Bill interact with our devolution settlements and the responsibilities of our devolved institutions is no less important and deserves no less robust scrutiny. I shall first speak to the protection for the devolution statutes in relation to the Clause 7(1) correcting power and by extension its Schedule 2 counterpart. There are many amendments in Schedule 3 for those who want some idea of what will be brought forward on Report. It is not a question of them coming forward now. My noble friend Lady McIntosh raised this, but we are not in a position to come up with all the amendments that may be necessary. They will be debated on Report. We are talking about every correction that is necessary being brought forward on Report for Scotland, Northern Ireland and Wales. It is as simple as that. I hope that clarifies what I hoped to clarify right at the start.

I must start by emphasising that the Government recognise the importance of our devolution settlements and the Acts through which they have effect. I think noble Lords who know my history will know that that is my starting point. That is why we have sought to make as many corrections to the Acts as possible in the Bill already. Those, as I say, can be found in Part 2 of Schedule 3. We want to be open and transparent in demonstrating that these are, as noble Lords will discover when they look at them, simply technical fixes to remedy deficiencies created by leaving the EU. For instance, much like in other pieces of legislation, we must remove or replace redundant references to member states or EU institutions.

The noble Baroness, Lady Suttie, is absolutely right to raise the unique importance of the Northern Ireland Act as the statutory manifestation of the Belfast agreement. In response to the noble Lord, Lord Adonis—I hope the record will show this—I do not think I said that we were bringing forward amendments in relation to the Good Friday agreement on Report. What we are doing is bringing forward some amendments in relation to Northern Ireland to make sure that all the amendments that relate to Northern Ireland are in the Bill. I cannot stress often enough or strongly enough our total, steadfast commitment to the Belfast agreement. That is precisely why we have, in this Bill, already generally restricted the correcting power from making corrections to the Northern Ireland Act. As I am sure the noble Baroness, Lady Suttie, is aware, references to Northern Ireland amendments are minimal, and we will seek to make sure that all of those are on the face of the Bill when it comes back on Report.

Noble Lords must recognise that there remain outstanding corrections to the Acts that must be made in order to ensure that they function properly on exit day. Corrections to the Scotland Act and the Government of Wales Act are being discussed with the Scottish and Welsh Governments, and progress is being made. It is a mistake to think that people are at daggers drawn. This is not how things are operating, as many noble Lords are well aware. Day to day, negotiations go on very constructively and effectively—that is what is happening. We have not made all of the corrections on the face of the Bill so far, as we must rightly agree the forms of the corrections to those Acts with the Scottish and Welsh Governments. Indeed, some fall within devolved competence to address. In some cases, alternative mechanisms may exist to deal with them.

I can provide further reassurance, because these are not matters of substantive policy. This is about correcting provisions that will not function correctly once we have left the EU. For example, there is provision in the Government of Wales Act requiring the Auditor-General for Wales to make certain arrangements for bodies established by the European Union. This will need to be updated so that the provision continues to work in a post-exit world. There is one correction that must be made to the Northern Ireland Act, as I have referred to, which relates to technical standards—the quality of goods and safety marks. This, again, is fairly routine and will be brought forward on Report.

It would be irresponsible for us to place these limits on the correcting power if we could not also provide the answers to the questions—which I am now providing —and the assurance that we will deal with these issues on Report. I can confirm that we will bring forward amendments on Report to apply the same protection for the Scotland Act and the Government of Wales Act as for the Northern Ireland Act, so that all the necessary amendments will appear on the face of the Bill on Report. Contrary to what some noble Lords seem to think, we have made substantial progress in discussions, but we were not in a position to remedy the remaining deficiencies for consideration in Committee. I regret that, but I am very pleased that we have made the progress we have.

[Lord Forsyth of Drumlean]

I do not know whether my noble friend reads the Scottish papers. If he does, he will have seen that there has been headline after headline about the Scottish Government claiming that this is a great power grab by Westminster—attacking the Government and attacking the whole concept of leaving the European Union with scare stories about the impact of it. I am a little puzzled that he can say that there is a gentlemanly discussion going on when that is the perception north of the border.

[Lord Bourne of Aberystwyth]

My Lords, I do not recognise the power-grab allegation as being anywhere near reality. We are making progress. Of course there are differences, but I think in fairness all parties concerned have indicated, as the noble Lord, Lord Griffiths, did, that progress is being made. These are complex issues and it is a great mistake to see this, in some Animal Farm way as all black and white. It is not like that. Progress is being made. There is still territory to cover and progress to be made, but we are making that progress.

[Lord Wigley]

Before the Minister moves on, we are aware of his good intentions in this, his experience and his wish to get a coming together of minds. However, if the Government’s intention is always to get agreement for the changes—and, from the tone of what he has said, that is their objective—why should they be building provisions into the clause now under discussion to have a veto for Westminster that overrules either Cardiff or Edinburgh?

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord. It certainly is my view that we want to get agreement—I have no doubt about that—but I shy away from his idea that one party should have a veto on things where there is no substantive reason why it should do so. I shall come to this, but if something relates to a devolved area, of course we will need the relevant consent of the devolved Administration. However, we are not seeking to add powers in this legislation that do not already exist to give bodies vetoes over Westminster legislation.

[Baroness Randerson]

It is my understanding that the concept behind the phrase “Westminster will not normally legislate without the consent of the devolved Administrations” depends on what you mean by “normally”. It was explained to me that it meant there was a recognition that very occasionally one would need emergency legislation, perhaps in a situation of terrorism, where it was impossible, possibly because the other body was in recess, to get agreement in a reasonable timescale—that sort of exceptional situation. That is how the meaning of “normally” was explained to me from a legal perspective. Is that accurate? Is that the Government’s understanding of what that word means? If so, would it be possible to reach an agreement with the devolved Administrations on that definition?

[Lord Bourne of Aberystwyth]

My Lords, the noble Baroness, with her normal quicksilver mind, has darted ahead to the bit of the speech that I have not yet got to, relating to where we are on Clauses 8 and 9. She makes a fair point and I intend to deal with it. I hope I have reassured noble Lords over the correction power, and I thank noble Lords who contributed to that part of the debate.

Amendments 130, 131, 132, 148, 149 and 159, tabled by the noble and learned Lord, Lord Hope, the noble Baroness, Lady Suttie, and the noble Lord, Lord Adonis, seek to extend such a restriction to the international obligations and withdrawal agreement powers. I have listened carefully to what has been said. To avoid any shadow of a doubt, I am very happy to sit down with the noble Lord on what he says about the points raised on international agreements to look at the point on international obligations; I think it related to Schedule 5 to the Scotland Act. I am happy to look at that point with officials. However, I think he must accept, as noble Lords would, that the overriding ability in relation to international agreements must rest with the UK Government as the member state and the body able to conclude international treaties. I do not think there can be any question about that. However, I am happy to look at the valid issue he has raised on that point.

The position on international obligations and the withdrawal agreement powers must necessarily be more nuanced because we do not yet know what changes may be required, as we are not yet sure what the precise shape of the withdrawal agreement will be. However, I can confirm that this power will not be used to unpick the devolution settlements, nor to undermine or amend the Belfast agreement. As I have indicated, we are adhered to both the devolution settlements that we have and to the Belfast agreement that was reached in April 1998 and must be protected in all its parts.

[Lord Beith (LD)]

The Minister speaks as though the Clause 8 and Clause 9 powers are basically the same. They are not, of course. The Clause 9 powers can be exercised only if a further piece of legislation, a withdrawal Bill, is passed. It is not clear to me why the Minister is letting himself be cornered over this when the powers do not need to be in the Bill at all.

[Lord Bourne of Aberystwyth]

My Lords, I accept that they are not the same thing. Perhaps by definition, Clause 9 relates to the withdrawal agreement, but that will be made by the United Kingdom Government. As the member state, it will be the United Kingdom Government who will sign the withdrawal agreement. There may—indeed, I am sure there will—be issues about ensuring that our law is compliant with the withdrawal agreement in all parts of the United Kingdom, in both the Westminster Parliament and the devolved Administrations. That is why we need it.

Noble Lords will be aware that it is quite normal to use delegated powers in such ways, including Section 2(2) of the European Communities Act 1972, which amends the devolution statutes to ensure that our legislation reflects the most accurate position in law and ultimately to ensure that we fulfil our international obligations. To give an example, the Treaty of Lisbon (Changes in Terminology) Order 2011 was made under Section 2(2) of the European Communities Act. It amended the Scotland Act, the Northern Ireland Act and the Government of Wales Act to give effect to new terminology relating to the EU. This is not the stuff of power grabs, believe me; it is the stuff of ensuring that day-to-day business can continue. Leaving the EU requires changes of a similar technical nature across the settlements, and we will need the flexibility to ensure that these important Acts operate effectively once we have left the EU. That is precisely what these powers enable.

Amendments 148 and 149 also speak to the concurrent powers for United Kingdom Ministers and would apply a requirement for devolved Ministers to consent to their use. We will consider this matter fully in the next group, but I am very willing to engage with noble Lords on the subject that the noble Baroness, Lady Randerson, raised when she talked about the use of the word “normally”. “Normally” is not subject to definition by government, it is subject to definition in law, but of course we would normally expect the consent of devolved Administrations in conducting discussions on these matters. A lot of this, believe me, is down to ensuring good housekeeping and common sense. If we have the prospect, by agreement, of dealing with this just once in one United Kingdom Parliament rather than repeating it in all the different legislatures of the country, that makes sense.

I shall try to deal quickly with the points raised by noble Lords, I hope in more or less the order in which they were raised. Forgive me if I miss points; I will try to pick them up by letter and will place a copy in the Library for those who did not participate in the debate.

First, I restate my thanks to the noble and learned Lord, Lord Hope, for tabling the amendment and ably and cogently setting out what it was about. I followed precisely what he said and sympathise with a lot of it. I suspect we may disagree on some of the detail and emphasis, but I am certainly willing to engage with the issues he has raised. I also thank the noble Baroness, Lady Suttie, for bringing forward the Northern Ireland dimension. She asked who we will engage with. Sadly, we cannot engage with an Executive at the moment, but we continue to put all our energies into ensuring that we have an Executive in place to engage with. Whatever our differences with them will be, that is far a more desirable form of government and governance of Northern Ireland.

I think the noble Lord, Lord Wigley, spoke next, and spoke also on behalf of the noble Lord, Lord Foulkes. As I said, we will look at Clause 11 later. If I am not mistaken, we sought and obtained agreement from both Scotland and Wales to publish that. There are deep dives, as the parlance has it, going on in all framework areas—I think we are now down to 24 from 27. Full and active engagement on that is the way forward, and significant work is being done.

The noble and learned Lord, Lord Morris, spoke next. He has massive experience and knowledge of this area, so I listened very carefully to what he was saying. I appreciated our earlier chat. I can confirm that these framework areas are frozen, as it were, until we can get down to the substance in the deep dives of the things that need to be devolved and the things that need to be held in the centre. I think there is common agreement, including in Scotland, on the principle that some things will have to be retained in the centre. If we are seeking to pull something back—I do not see that that will happen, but if we were, through some of these other Acts—of course we would need LCMs just as we are seeking an LCM on this legislation. That is, again, a reassurance that I am able to give.

I thank the noble Baroness, Lady Finlay, for the engagement that we have had on this. I can confirm that we are seeking an LCM, as I believe she knows, on this legislation in both Scotland and Wales, and on the other legislation—on agriculture and so on—insofar as this involves potentially encroaching on devolved areas. Of course, once again we would seek to have long and deep discussions, as we are doing. If it were to impinge on devolved areas, we would fairly clearly need that LCM.

I hope I have answered on deficiencies; all of those will be covered in the Bill. An example of an international obligation would be something perhaps not mundane, but, for example, complying with a new law of the sea if there was a new law of the sea convention. That may be something we would seek to amend. It would be that sort of issue.

My noble friend Lady McIntosh asked for full details of the amendments. She will see that we have published the Clause 11 amendments. The amendments to Clause 7 will be tabled on Report. I have given that undertaking. They are not yet ready for reasons I have sought to explain but they will be there for Report stage. I hope she will take some comfort from that.

The noble Baroness, Lady Randerson, spoke with great experience of the devolved areas, and I thank her for her contribution about how things have moved and how there are still rough edges. I share some of the frustration of the noble Baroness, Lady Finlay, because we tried to solve some of this together on asbestos. This is not a power grab. Nobody knows where that power lies. Indeed, there is perhaps a little bit of, “You do it”, “No, you do it”. It is just lack of clarity rather than a power grab, but I hope we will be able to solve and settle it before too long.

I think I have dealt with the point made by the noble Lord, Lord Adonis, who is not in his place at the moment, on the Good Friday agreement. It will not involve any amendments in relation to that agreement, to which we are totally wedded, but there will be some amendments on Report in relation to Northern Ireland and some of the deficiencies that need correcting, in just the same way as in relation to Scotland and Wales. I thank the noble and learned Lord, Lord Wallace, once again for the clarity of what he said. I agree that we should look, perhaps through conversation and discussion, to move this forward. Like my noble friend Lord Forsyth, I have grave doubts. We will not be moving to a position of consent but I would certainly like to see us talking and consulting, and I am very happy to engage with that. To move to a position of consent in non-devolved areas would be dangerous to the union.

I thank my noble and learned friend Lord Mackay of Clashfern once again for what he said. I totally agree: if we think this is difficult, just wait until we get to Clause 11. I think this is relatively straightforward and I can see a way through this where we would have broad agreement. As the noble Lord, Lord Griffiths, indicated, Clause 11 will be a much more difficult area.

The noble Lord, Lord Elystan-Morgan, knows so much about this area, through both his political and legal experience. I agree with him that it is important to move to a position where, for things related to devolved areas, there is a convention that has grown up and is widely accepted about consent. I thank the noble Lord, Lord Griffiths, for his clarity. I agree with him about the importance of transparency and coming up with some common sense; I think that is essentially what he was saying and I do not disagree at all.

We have probably reached agreement on Clause 7. In relation to Clauses 8 and 9, I am very happy to look at the points that were made and discuss them further ahead of Report stage. In the meantime, I ask the noble and learned Lord and the noble Baroness to withdraw their amendments.

[Lord Tunnicliffe (Lab)]

I believe the amendment under debate is that of the noble Baroness, Lady Suttie.

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[Lord Bourne of Aberystwyth]

I thank noble Lords who have participated in the debate on this group of amendments, particularly the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Suttie, for tabling their amendments. I will seek to deal with the substance and then very briefly pick up some of the points that were made in debate. Amendments 102, 124, 103 and 125 seek to place a requirement on UK Ministers to have the consent of devolved Ministers when using Clause 7(1)—I think that issue will not arise now but I am happy to discuss it further; however, I think we will have exhausted that by bringing proposals forward on Report—Clause 8 and Clause 9, where it is appropriate, in areas of devolved competence.

I stress that the concurrent powers in this Bill do not in any way undermine the devolution settlements. Rather, they give the UK Government and the devolved Administrations the tools required to respond to what is a shared challenge of ensuring the functioning of our statute book in a pragmatic and collaborative manner which reflects current practice, and I stress has been the norm for some time. I made this point on the last group of amendments and an example can be found in new Schedule 3A to the Government of Wales Act 2006, which lists no fewer than 34 laws containing concurrent functions for United Kingdom and Welsh Ministers, including powers to make subordinate legislation.

I also highlight Section 2(2) of the European Communities Act 1972 itself, which is concurrent and has routinely been used to make a single set of regulations to implement directives relating to devolved matters. Take, for example, the Marine Works (Environmental Impact Assessments) Regulations 2007—enacted, therefore, under the last Labour Government. If a deficiency arises within that statutory instrument and we all agree on the best way to correct it, it makes little sense for four Administrations to make four sets of regulations to make the same amendment. This is of course compounded by the volume of legislation that will be needed in this House and in the devolved legislatures to ensure the proper functioning of our laws after exit day.

Our approach in this Bill is to mirror that effect: to continue working collaboratively with devolved Administrations, which is certainly the norm, to ensure that our statute book is fully functioning on exit. This has not been a cause of conflict in the past—there have certainly been differences but they have been few and far between—and we do not believe that it should be a cause of conflict in the future. We cannot compromise the flexibility provided for by the concurrent power that allows us and the devolved Administrations to benefit from shared working. This is crucial for us to meet the considerable task that lies ahead in order to have a complete, functioning statute book on exit day. I remind noble Lords of the clear commitment the Government have made that we will not normally use the powers in this way without the agreement of the devolved Administrations. I am happy to restate that: it is there in black and white in the delegated powers memorandum and in written evidence to the Constitution Committee. It was stated in the other place and I have repeated it here today.

However, I take very serious note of what my noble and learned friend Lord Mackay suggested about the possibility of a memorandum of understanding. I shall take that away and look at it. Noble Lords have asked why such a commitment is not included in the Bill and I would be happy to look at this with them and to hear their views, taking seriously what my noble and learned friend has said. There can be no doubt about the commitment this Government have made to “normally” seek the agreement of the devolved Administrations on these matters. I hope that that offers some reassurance.

Let me pick up some points made by noble Lords during the debate, first thanking the noble and learned Lord, Lord Hope, for the constructive way he has introduced this set of amendments: I am very happy to talk about this further, ahead of research, as I have suggested. I also thank the noble Baroness, Lady Suttie, and quite understand her seeking the best interests of Northern Ireland, which must be treated in precisely the same way. As I have indicated, I am grateful to my noble and learned friend Lord Mackay of Clashfern for his suggestion about a memorandum of understanding, which I would like to take away and look at further.

The noble Lord, Lord Thomas of Gresford, made far-reaching points on Barnett. We certainly made some headway on that when I was in the Assembly—not because I was in the Assembly, but I remember some headway being made on it. That issue is of course still there but it is far beyond the Bill, let alone this amendment. He made a point, as did others, about the importance of trust, which I take very seriously. I thank the noble Baroness, Lady Finlay, very much; trust is important and we need to build it.

My noble friend Lord Deben is at his most deadly when he seeks to praise me. He was being so constructive that I am bound to agree with him, and I thank him very much for his kind comments. I know that he speaks with authority and understanding, particularly on Wales, and once again on the importance of trust. Again, I take the point made by the noble Lord, Lord Kerr, on the importance of that in our discussions. We can of course discuss this further. I thank the noble and learned Lord, Lord Wallace, for clarifying the point and I am sorry if I misrepresented him. It was certainly unintended so I take that point, too.

My noble friend Lord Forsyth made some serious points about the dangers of the unintended consequences of legislation. We have to be careful of that and I take his point but that said, there is the serious and important issue of building up trust, as my noble friend Lady McIntosh reminded us. She also reminded us of how we all have interests in different parts of the country; it is not as if we are talking about a union that does not mean something. When we all have relations, friends and interests in different parts of our country, we have a shared interest in getting this right.

On the suggestion about engaging made by the noble Lord, Lord Wigley, I am very happy between now and Report to meet with officials to see whether we might move in the direction of a memorandum of understanding. My noble and learned friend Lord Mackay, who has vast experience not just of Scottish issues but of legal issues, made a very valid point as to how we might achieve that. In the meantime, I ask the noble and learned Lord and the noble Baroness if they could perhaps withdraw their amendments.

[Baroness Suttie]

My Lords, I join in the general compliments to the Minister and thank him very much for his courteous and detailed replies this evening, and for his commitment to engage further with noble Lords before Report. We will no doubt return to many of these issues on Clause 11 in Committee, and again during Report. But in the meantime, I beg leave to withdraw my amendment.

European Union (Withdrawal) Bill

Lord Bourne of Aberystwyth Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank the noble Lords who participated in what has been a very interesting and wide-ranging debate on the Committee of the Regions aspect of this legislation. I will respond to the thrust of what the amendment seeks, then I will briefly go through the contributions and pick up the points that have been made.

In thanking the noble Lord, Lord Shipley, I say that I have considerable sympathy with the underlying aim of Amendment 227, which he tabled, although I do not believe that the proposed provisions are strictly necessary. Addressing the first limb of the amendment, the Government have been very clear that we are consulting with local government and will continue to do so throughout the withdrawal process. Local government has a clear and vital role to play as we depart from the EU and the Government are committed to facilitating it. We have held meetings with leading members of the local government associations of England, Scotland, Wales and Northern Ireland, and their officials, as was indicated by my noble friend Lord Porter. We have met with the Mayor of London and attended a number of “sounding board” round tables, facilitated by the Local Government Association, in Newcastle, Essex, Bristol, Cornwall, London and Staffordshire. These crucial conversations will continue, with local government remaining engaged throughout the Brexit process.

The second limb of the noble Lord’s amendment concerns domestically replicating consultative rights that local government currently has at European level through the mechanism of the Committee of the Regions. The United Kingdom delegation to the Committee of the Regions currently makes an invaluable, important contribution to the decision-making process of the European Union on issues including transport, and economic, social and territorial cohesion. I pay tribute to noble Lords in the Chamber who have been part of that process. I readily agree that it performs a very useful and important function. We do not consider it necessary to provide a statutory basis to a domestic replication of the existing consultative rights provided to local authorities through the mechanism of the Committee of the Regions, but I will explain how we propose to proceed.

We believe the statutory basis risks introducing unduly rigid bureaucracy, which many find so unattractive in some of the current structures. That said, the Government have been having constructive discussions with local government about how the consultative rights and responsibilities it currently has at European level can be replicated domestically, in a non-statutory way, when the United Kingdom has left the European Union. These discussions involve the Local Government Association, the Convention of Scottish Local Authorities, the Northern Ireland Local Government Association and the Welsh Local Government Association, and they are continuing, including at ministerial level.

However, I can now say that we envisage the following approach. Through a ministerial Statement to Parliament, the Government will give local government a clear assurance about how it can expect to be consulted on certain matters which, following their repatriation from Europe, will now be handled at the United Kingdom level. These matters will be those which local government would have been consulted on through the mechanism of the Committee of the Regions. In this way, we could have a flexible, non-statutory mechanism that, in essence, replicates for local government the rights and responsibilities it had through the Committee of the Regions, but in a lighter-touch, non-bureaucratic way. Any such new consultative arrangements will need to complement the wide range of domestic processes and procedures the Government already have for consulting local government.

[Lord Adonis]

My Lords, will those consultative arrangements include a consultative body? If they do not, people will regard what the noble Lord just said as rather hollow.

[Lord Bourne of Aberystwyth]

I am coming to that point, but I anticipate that they would. I will just deal with this point, because there is a complication here. In devolved areas, many of these issues will be matters for the devolved Administration dealing with the relevant bodies. That has to be catered for too. Clearly some non-devolved matters would be part of the arrangement relating to this legislation, but we have to recognise that there are some that are rightly the prerogative of devolved Administrations.

This is the important point, which I hope goes some way to answer the point raised by the noble Lord, Lord Adonis. My colleague in the other place, the Minister for Local Government, Rishi Sunak, will carry this forward with the local government associations’ representatives, and we will update the House on the progress made by the next stage of the Bill. I anticipate that in seeking to replicate the arrangements it will take that forward. We need to allow those discussions to take place with the Minister in charge of local government. I will report back on this on Report.

I will deal with the relevant points raised. The noble Lord, Lord Shipley, talked about the importance of the European Social Fund, the European structural funds, steel, community energy and so on. I anticipate that all these points will come within the ambit of the new arrangements.

My noble friend Lord Porter of, I think, South Holland made it clear that he had consultation and discussion with the Ministry of Housing, Communities and Local Government and the DExEU teams. That is very much on the record.

The noble Lord, Lord Wallace of Saltaire, talked about the regions of England being left out of the devolution arrangements. I readily recognise that point. It came up in a wide-ranging discussion that, apart from the city mayors—I take the noble Lord’s point about Yorkshire not quite being there at the moment, but it will eventually be there with the might of the whole of the county, so I hope that will progress—there is, I readily recognise, a dimension in England that is not answered by the devolution arrangements that exist for Scotland, Wales and Northern Ireland.

The noble Lord, Lord Tope, spoke with feeling and passion about the importance of the Committee of the Regions. He was clearly very much part of it. In this House we have the collective wisdom of many noble Lords as to how that operated very effectively.

The noble Lord, Lord Adonis, talked about the paradox of devolution. I recognise some of the points he made, although I do not necessarily agree with all of them. He talked about the regions of England having some of the highest Brexit votes. That is true, but we should not ignore the fact that some very high Brexit votes were in the valleys of Wales. That happened not just where there was an absence of some substructure of government. I think that the highest yes vote in Wales was in Conservative Monmouthshire, so these things are perhaps not quite as simple as they may seem.

[Lord Porter of Spalding]

My colleagues in Wales would not forgive me if I missed the opportunity to put it on record that that was probably due largely to the fact that devolution to Scotland, Wales and Northern Ireland seems to have bypassed local government in all those provinces as it seems to have done in this country. If the vote there was due to people not being consulted, it might be because the Welsh devolution system does not recognise Welsh local government.

[Lord Bourne of Aberystwyth]

I am not going to be tempted too far down that path, but I shall be tempted a little way. The area that has historically been most resistant to devolution is Monmouthshire, the only local authority that voted against extended powers in 2011.

[Lord Wigley (PC)]

Can I help the Minister?

[Lord Bourne of Aberystwyth]

Let me finish the point if the noble Lord, Lord Wigley, will allow. If what I said is true, the area with the lowest yes vote on devolution had the highest yes vote in relation to Europe, so I am not sure that the point made by the noble Lord, Lord Porter, would be borne out totally.

[Lord Porter of Spalding]

I think that proves my point.

--- Later in debate ---

[Lord Berkeley of Knighton (CB)]

I support what the noble Lord, Lord Wigley, said. Is it not ironic that the valleys of south Wales, where there was a large Brexit vote, had received more money from the EU almost than anywhere else?

[Lord Bourne of Aberystwyth]

Certainly, it is, but before we cause great confusion on the part of anybody tuning in now and thinking that they have tuned into Cardiff Bay, I think all noble Lords will realise the dangers of us going down that path. Suffice it to say that it is wise in the light of that not to be led down the path of discussing a federal second Chamber, although there are certainly issues worthy of broader consideration on another occasion. However, I appreciate some of the points being made.

I am pleased to note that the noble Lord, Lord Beecham, is recovering from his injury and that it is not more serious than it looks.

[Lord Beecham]

I am grateful to the Minister for that. I should make it quite clear that it is not damage inflicted by Brexiteers.

[Lord Bourne of Aberystwyth]

I am not sure that the noble Lord is absolutely certain of that, because it seemed to be a Tube driver who caused the accident. Anyway, I am pleased that it is not a serious injury.

The noble Lord talked about the particular issues in the north-east in relation to government offices and so on. Again, I think it wise to leave the matter for the new arrangements, but I take the point about the great regional interest of the north-east. It is worth mentioning in passing that there was an opportunity under the previous Labour Government which was turned down pretty heartily, but circumstances change and it does not mean that there are not regional interests that need looking after.

We have had a fascinating and wide-ranging discussion. As I have indicated, I am very sympathetic to the aim of what is being sought, but it should not be on a statutory basis. We will follow up with a ministerial Statement. The Minister for Local Government will proceed shortly to discuss this matter with Local Government Association representatives cognisant of the fact that interests in Scotland, Wales and Northern Ireland will need protecting. I understand the concerns. In light of these assurances, and with the undertaking that I will update the House on Report, I urge the noble Lord to withdraw his amendment.

European Union (Withdrawal) Bill

Lord Bourne of Aberystwyth Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I rise only to make it clear that the unanimity comes also from the Front Bench. My noble friend Lord Morgan may not be on the Front Bench but on this occasion we are absolutely as one with him.

It would perhaps be helpful if the Minister feeds back what he has heard from the devolved Administrations in his discussions with them on these amendments.

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank noble Lords who participated in the discussion on these amendments. In opening, let me say that I fully understand the absence of my noble friend Lord Blencathra. I am very grateful for his careful consideration of the Bill and that of the Delegated Powers and Regulatory Reform Committee, which he chairs.

I apologise to the noble Lord, Lord Tyler. I knew that my noble friend Lord Blencathra was not going to be here and I tried in vain to find out who would be his substitute so that I could have had a word with them earlier. However, I am very happy to meet the noble Lord afterwards at any convenient juncture to discuss this. In fact, I had heard at a previous stage that the substitute would be the noble Lord, Lord Thomas of Gresford, so I encourage him to ignore the several messages he has received from me.

I will respond first to the general points made and then pick up some of the specifics. I want to make it clear that the amendment that the Government have tabled to change how the Bill deals with devolved competence would, as part of that change, remove the Order in Council procedure from Clause 11 and Schedule 3. In the light of this, my noble friend’s amendments would no longer be necessary on that specific point. However, I will address the substantive point that my noble friend Lord Blencathra sought to make, and which has been made by the noble Lord, Lord Tyler, in his stead, on the modification of the devolution statutes—namely, the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006—by secondary legislation.

I understand the point made by the noble Lord, Lord Tyler: that the Order in Council powers contained in Clause 11 and Schedule 3 are unsatisfactory substitutes of those contained in Section 30 of the Scotland Act and Section 109 of the Government of Wales Act. I accept that there is merit in my noble friend’s argument that there may be a difference in the function of these powers and that we may wish to consider the need for a different procedure. As I said, I am very happy to discuss that point with my noble friend Lord Blencathra, the noble Lord, Lord Tyler, and others.

I do not agree that it necessarily follows that secondary legislation can never be used to modify devolved competence or the devolution statutes more widely, and that this should only ever be achieved through primary legislation. For example, we used the procedure in 2013 to amend the Scotland Act 1998, and we used an order in 2007 to amend the Government of Wales Act 2006. There are previous examples and, more recently, we saw the Treaty of Lisbon (Changes in Terminology) Order made under Section 2(2) of the European Communities Act. It has sometimes been a convenient way to proceed, by consent of the devolved Administrations.

I am grateful to the noble Baroness, Lady Hayter, for raising the point that she did. We have been discussing these issues with the devolved Administrations and continue to do so in a perfectly constructive way. I have to say that there is no agreement yet, but we are looking at how this should be used going forward.

I will pick up some of the particular points made. I appreciate that the noble Lord, Lord Tyler, was making general points, but, as I say, the specific issue mentioned will not arise in the light of the amendments we have put down. However, I appreciate that it was, as he said, the unanimous view of the Delegated Powers and Regulatory Reform Committee. I thank the committee for its third report and constructive and dispassionate work on these issues. I served on that committee for a time and I know it looks at these issues constructively.

European Union (Withdrawal) Bill

Lord Bourne of Aberystwyth Excerpts

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Griffiths of Burry Port]

I was hoping that that was an intervention—I am better prepared for interventions than I was last time.

I simply hope that, when all is said and done, the fact that this is about money—even if the guarantees and figures cannot be given in a debate such as this—will indicate the desperate need felt in Wales for some support and encouragement. There must be a promissory note for adequate support that will be met once we are no longer in Europe for the activities that up to now Europe has helped us with so generously.

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank the noble Lord, Lord Wigley, for tabling these amendments and all who have participated in what has been a free-wheeling, free-ranging debate covering an awful lot of important areas, some which I perhaps in all fairness could not have anticipated when I read the amendments.

The noble Lord, Lord Griffiths of Burry Port, is absolutely right that in debating something geared specifically to Wales we should recognise the enormous contributions made by Lord Richard and Lord Crickhowell, both of whom sadly died recently. Sometimes in similar ways but in differing ways in other respects, both made enormous contributions in Wales and to devolution. Lord Richard is certainly massively missed. He made an outstanding contribution on the Richard commission in relation to devolution but in so many other ways in public life as well.

I will first turn to the amendments and then try to do justice to the many wide-ranging points made during the debate. The noble Lord, Lord Wigley, was described as “terrier-like” and as getting the last bit of marrow out of the bone. As someone who has often broken bread with him, I thought that conjured up an extraordinary vision of him. For many years, he has certainly fought hard for many issues in public life, not least for Welsh principles and rights, both here, in the Commons and in the National Assembly for Wales. I think that is acknowledged across the political divide and by people with no politics at all. He continues to make an extraordinary contribution.

The amendments would require the United Kingdom Government to produce a report outlining how EU funding provided to Wales will be replaced once we leave the EU. They would mean that the entire Bill could not be brought into force pending the publication of such a report.

While I understand the desire for as much clarity as possible—I shall say something about cohesion funding shortly—I do not consider such a step necessary in view of the considerable funding assurances the Government have already made to all parts of the United Kingdom. I recognise that there is an issue here that goes broader than Wales. There are certainly issues relating to Cumbria, as has been mentioned during the debate, Cornwall, Merseyside, Scotland and so on—this affects many parts of the United Kingdom, although the amendments are for understandable reasons addressed to the needs of Wales, which I can strongly identify with.

The agreed implementation period to the end of 2020 will see the UK participate in 2014 to 2020 EU funding programmes until their closure. In the case of some of those projects, that will mean the end of 2023. It will not be beyond 2023, but it could mean funding for those programmes that remain open during that funding programme until the end of 2023. The projects would receive their full allocation of EU funding during that period—that is an agreed position as things stand.

This approach ensures that projects are not disrupted and no community misses out. The noble Baroness, Lady Humphreys, was there at the start of the Assembly as were the noble Lord, Lord Wigley and I, and saw the benefit of such funding—I fully recognise many of the examples that she gave. In the area that I represented in west Wales, there were massive benefits. No community would miss out. British businesses and potential investors have certainty and stability up to the end of projects running to 2023.

In the longer term, the Government have further committed to maintain cash farm funding until the end of this Parliament, taking us beyond 2020, which provides the sector with more certainty than in any other part of the EU as things stand. The Government will also create a UK shared prosperity fund to reduce inequalities between communities across the United Kingdom and deliver sustainable, inclusive growth. The Government intend to consult on the design of this United Kingdom-wide fund during 2018. That will of course, quite rightly, mean engagement with the Welsh Assembly through the Welsh Government and, similarly, the Scottish Parliament through the Scottish Government and with others who would expect to be consulted in that process.

[Lord Liddle]

Can the Minister tell us anything about the timing of consultation papers on the shared prosperity fund? When are they likely to appear? Particularly in relation to the debate on Brexit, are we likely to see what is proposed before the final decisions that we have to make at the end of this year?

[Lord Bourne of Aberystwyth]

The noble Lord makes a fair point. I do not know the specific answer, but I will cover it in a letter to all Peers who have participated in the debate on these amendments, and place a copy in the Library.

[Lord Thomas of Gresford]

Perhaps the Minister can answer this question. Is the UK prosperity fund—which I think was in the last Conservative manifesto—intended to be administered or distributed on the basis of need or a population count?

[Lord Bourne of Aberystwyth]

My Lords, it certainly was in our last manifesto. As I have just indicated, it talks about reducing inequalities, so the noble Lord has that comfort. Again, I will ensure that any points not dealt with in my answers will be covered in a letter to all Peers who have participated on these amendments, a copy of which will be placed in the Library.

The noble Lord, Lord Wigley, made some points about cohesion funding, which dates back to 2000. I remember when the noble Lord was leader of the opposition in the Assembly and I was leader of the Welsh Conservatives—I later became leader of the opposition. I too went out to Europe and fought for this with Michel Barnier. I also remember the struggles that we had with the Treasury; that was accurately reflected. I agree with the noble Lord, Lord Thomas, on this point, which the noble Lord, Lord Wigley, made in the Assembly on many occasions. Such funding was not a badge of pride: it was coming to Wales because of the poverty that was experienced in west Wales and the valleys. It was not limited to Wales: Cornwall, Merseyside and so on were also involved. This was something that we did not really want to qualify for. There will be another round of funding from 2021 to 2027 and I will look at how that pans out. It is not guaranteed, even in European terms, that Wales will qualify. We were somewhat surprised in the last round of funding—it was very marginal—that Wales just managed to qualify. In one sense we were pleased, because to just qualify rather than just miss was welcome. We have to remember that there is no automatic right to it. It is based on 75% of average prosperity throughout the European Union.

There were some free-ranging points made about the referendum campaign—I remember the campaign in Wales as a campaigner for remain—but I will focus on the parts of the debate that were more central to the amendment and the legislation. First, however, I will touch on some of the funding that is coming to Wales. As a Welsh Office Minister, I know that we are participating very much in mid-Wales growth deals, north Wales growth deals and city deals. Stuff is going on which is helping projects in Wales now and engaging with the NFU, the FUW, the CLA and so on. Many things are happening in Wales that I am sure noble Lords across the Chamber would be pleased about.

Points were made about the Barnett formula. Lord Richard would have had much to say on this and we come back to it on many occasions. However, the issue exists independently of Europe and it is not made better or worse by our position in Europe. It does need addressing. In fairness, as part of the coalition in the previous Parliament, we ensured that the formula was ameliorated by the application of the Barnett floor, which benefited Wales. That said, I recognise the points about the historic position of Wales, unlike Scotland which benefits from the Barnett formula. I will leave that for another day, if I may.

The noble Baroness, Lady Humphreys, was there at the start and very much engaged with ensuring that we got the benefits of Objective 1 into Wales. In parenthesis, the giving of taxation powers to Wales, which was part of the coalition Government and the Silk commission and is now in process, should help to incentivise growth in Wales and is part of the added powers that have been given to the National Assembly for Wales. We should not fail to recognise that a lot of these issues are things that the National Assembly now can, and I have no doubt will, ameliorate.

The noble Lord, Lord Roberts, made a valid point about Welsh agriculture being much dependent on agricultural funding. I hope he takes comfort from what I have said about the agricultural budget up to the end of the Parliament. He is right that we have to focus on it. In fairness, it is not just a Welsh issue but, as he rightly recognises, it is central to a lot of Welsh life and many areas and close to the hearts of people in Wales.

The noble Lord, Lord Liddle, mentioned the Cumbrian situation and touched on federal issues. I can promise that just as I would take a call from Sadiq Khan, I would take a call from the noble Lord. If he wants to ring on any issues, I would be very keen to do that. I think Wigton is extremely important.

The noble Lord, Lord Adonis, referred appositely and correctly to the weak voice of England in our structures. I think that the noble Lord, Lord Foulkes, by inference touched on the incomplete part of the jigsaw in that we do not have regional voices for England, or not in the same way that exist in Scotland, Northern Ireland and Wales.

I perhaps take issue with the noble Lord, Lord Adonis, about the unknown mayor of Birmingham. I think that would be a surprise to many people. Many people know that it is Andy Street, just as we all know Andy Burnham. I do not think it would be quite right to refer to them as colonial governors, either.

[Lord Adonis]

My Lords, I was referring to the then Leader of Birmingham City Council who is now also a Member of your Lordships’ House.

[Lord Bourne of Aberystwyth]

And a very able one. I take that qualification and thank the noble Lord for it.

It is also worth saying that there were attempts to extend regional government to England. I am sure we all remember the referendum in the north-east, which was pretty decisive. I accept that there are issues to address there. This Government have done more for city mayors than has been done for a long time in terms of devolved power and not just in the big cities of the UK. We have looked at other areas—Cambridgeshire, for example. However, there is incomplete work—including in Yorkshire, it is fair to say.

I agree with the noble Lord, Lord Foulkes, that the Falkirk Wheel is well worth visiting. I also agreed with him on other issues that he mentioned in relation to the unaddressed issues about government in our country—some points well made.

I thank the noble Lord, Lord Thomas of Gresford, for his contribution and agree that we fought for money for Wales. It was not a matter of pride, it was a matter of getting money that was needed. I agree that in many ways the money is still needed because of the relative poverty in Wales—sometimes a poverty that is not obvious. The grinding poverty that exists in the Valleys is obvious, but the poverty in the rural communities of north-west and south-west Wales is not necessarily as obvious.

I thank the noble Lord, Lord Griffiths of Burry Port, for his contribution and for re-focusing us on some of the issues that matter. He referred to the history of some of the devolution process in Wales—the 1997 referendum, the 2011 referendum and much work that was done in-between. He is right that there is a money issue. I do not think it is just a money issue; it is also an attitude issue that has existed prior to this Government and probably the previous Government. In short, I think it is ameliorated. There is an attitude of: “Let’s not forget Wales, let’s not forget Scotland”. It has become lot better; it is plugged in. That is not to say that we are there yet. It is not just a money issue, though money is important too.

The noble Lord mentioned the Barnett formula. A lot of good work has been done in the past by Gerry Holtham and the Holtham commission, but there are issues which remain to be addressed—that is no doubt true. He went on to talk about the consenting process, and I take it that he means the process referred to in Clause 11. I agree that this is a partnership and, in fairness, the Prime Minister is very much aware of that. She met the First Ministers of Wales and Scotland very recently, and I think progress was made. More work needs to be done and is being done. We are not there yet. I think that anyone who is fair minded would acknowledge that we have made considerable progress on this but, as I say, we are not there yet.

I appreciate that the noble Lord, Lord Wigley, may regard this as half a loaf—it is not everything he wants—but I am happy to talk to him between now and Report and to find answers to some of the questions put by the noble Lord, Lord Liddle, about the timing of this process. I hope that helps the noble Lord: I thank him for bringing this important issue to the House. I thank other noble Lords for their part in this. While the present team and I remain at the Wales Office, we are determined to ensure that Wales gets a fair deal. I am sure that applies to the Scottish and Northern Ireland teams in relation to Scotland and Northern Ireland. We have to ensure that all parts of the United Kingdom are taken care of in this. We do not want this to be x versus y: everybody has to be fairly dealt with. On the basis that I am happy to try to find more information for the noble Lord, Lord Wigley, and others, I hope that the noble Lord will withdraw his amendment.

[Lord Wigley]

I am very grateful to all noble Lords who have taken part in this debate, which was rather longer than I expected. Perhaps I set the wrong precedent in my own speech. I thank the noble Lords, Lord Liddle, Lord Roberts of Llandudno, Lord Adonis, the noble Baroness, Lady Humphreys, of course, as well as the noble Lords, Lord Foulkes, Lord Thomas of Gresford and Lord Griffiths of Burry Port, and the Minister, for their comments. I am grateful for the acknowledgment of the importance of the issue. In response to the noble Lord, Lord Cavendish, whose interventions I followed with interest, I recognise, as we all do, that other parts of the UK have specific needs which should be addressed as well. We need a mechanism to do that. In the context of the current round of European funding, on top of the CAP, there is a particular impact on Wales, which was what I wanted to highlight.

I suggest to the noble Lord, Lord Bourne, that, in the fullness of time and having thought a bit more about this and discussed it with his colleagues, the Government might be minded to bring forward a White Paper, or a publication of some sort, laying out how funding coming from Europe will be replaced. This would not be just for Wales but for other areas as well, and not just for the period from now until 2019 or 2021—whichever is the end of the transition period—but their ongoing intention after that. As the noble Lord, Lord Foulkes, said, the timing is important. I identify with the comments made about the late Lord Richard and the late Lord Crickhowell who, in their different ways, both made considerable contributions to Wales. I am sure that, if they were here today, they would be taking an active interest in these issues.

The noble Lord, Lord Bourne, knows enough about the feelings in the National Assembly about European funding to realise that this is a real issue that can make a difference, not just a political football. We can certainly argue about how the money is used and how it is used in Merseyside, south Yorkshire or Cornwall, where it is used in different ways, sometimes with better results. We need the resources because we are not going to get them elsewhere. They have to be replicated somehow. The question of trust has arisen in a number of contributions. Before the noble Lord, Lord Bourne, entered the Chamber there was another issue regarding money from the Treasury—the aggregated capital funding that Wales was accumulating in the National Assembly to avoid the wastage of year-end expenditure and put it into capital projects. That money was taken back by the Treasury on the basis that we had no right to aggregate money from other headings to fund capital projects. That is the sort of breakdown of trust that we are talking about, and we have to make sure that those attitudes are not exemplified in the ongoing period.

I hope that over the coming two or three weeks it will be possible to see whether a different formulation of this amendment can be tabled on Report, bringing in other parts of the United Kingdom and perhaps other parties. I invite the Front Benches of the various parties and individuals on the Cross Benches to consider whether that may be possible, and to do so with the positive intention of achieving a meaningful step forward as a result of the debates here that will help Wales and all other parts of the United Kingdom to find a way through the consequences of leaving the European Union. On that basis, I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Lord Bourne of Aberystwyth Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

I thank noble Lords who have participated in the debate; we all agree it is very late in the evening for such an important issue. I thank the noble Lord, Lord Wigley, for bringing this to the attention of the House and putting his case very crisply. We have already debated possible structures for the UK Government and devolved Administrations to come together in consideration of common frameworks. I do not want to simply repeat those arguments, particularly at this time of the evening, so I will not.

It is important to note that the Government are currently reviewing the existing intergovernmental structures with the devolved Administrations, as agreed by the Prime Minister and First Ministers at the meeting of the JMC plenary on 14 March. It is important that the review closely aligns with our work on future common frameworks. That undertaking was given then, and it is something that we are looking at.

I note a certain irony in the proposal from the noble Lord, Lord Wigley, that, had this been on the statute book, I presume he would have been championing our agreement with the Welsh Government and saying that it was effective because two Administrations out of the three had agreed to it. Nevertheless, despite that very handy point, I must say that I cannot accept what he is arguing for—not for that reason, obviously, but for others.

We have shown that we are flexible in responding to the devolved Administrations’ requests or concerns regarding the operation of the current structures, including on the management of meetings and the content of discussions. We have all benefited from that process. Why would we not want that to be the case? I believe the pragmatism and flexible approach that we have seen, particularly from the Welsh Government—but, yes, extending certainly to Mike Russell’s approach—is something that has benefited us all. However, we do not agree that the solution would be for intergovernmental relations to be placed on a statutory footing, as suggested by the noble Lord, particularly in this amendment. In all fairness, I think he anticipated this point in saying that he realised that it would not perhaps find total favour with the Government, a point on which he is correct.

That said, we hear much of the failures of our intergovernmental structure and no doubt it could be improved, but we do ourselves a disservice if we do not also recognise its successes. I thank the noble Baroness, Lady Finlay, very much for her kind comments about the Government’s approach and about me particularly; I am very grateful for that. She noted that the JMC (EN) has been very effective. It now meets frequently under the chairmanship of my right honourable friend the Chancellor of the Duchy of Lancaster, who has also continued to meet his counterparts frequently between meetings. Indeed, the committee has met today and has made some progress.

We should note that it is through the effective working of the committee that we have been able to make the progress that we have on Clause 11, and it is through this that we have reached agreement with the Welsh Government on the proposals before noble Lords today. Like other noble Lords, I place on record our thanks and our respect for Mark Drakeford, a competent Minister in the Welsh Assembly—not someone with whom I would agree politically on many occasions but he has shown a flexible, pragmatic and collaborative approach. This is grown-up politics in devolution days, and that is the way to move things forward. There was evidence of some of that approach in Scotland as well, to be fair, but ultimately, as we have noted, the JMC is not a decision-making forum. Its role is just to make an agreement that then goes elsewhere—for understandable reasons. That is something else on which I disagree with the noble Lord; I do not think it can be a decision-making body. I can see the use of bringing people together, which we are doing. It is flexible, and that is the way our constitution operates.

I note the points made by the noble Lord, Lord Thomas of Gresford. Some I would agree with, but I cannot really think of anything more chilling than putting it on an inflexible statutory basis, other than the earlier prospect when the noble Lord talked about his appearance in Aberdeenshire in a kilt. That was probably somewhere along the same lines—somewhat chilling. On a serious note, though, I have to say that although I agree it is good to have bodies where we can discuss these issues, flexibility, as this has demonstrated, is of great use.

We must, as we are doing, foster a culture of collaboration, close working and, yes, compromise, which we have seen in the discussions. That is the way to move things forward in the sort of structure we have in our country, in the make-up of the four nations.

I agree with the noble Lord, Lord Adonis, that England is the dog that does not bark—or has not so far. I agree with him on the absence of the word “England” in the amendment of the noble Lord, Lord Wigley. Obviously, the Prime Minister of the United Kingdom, who, as we know with Gordon Brown, does not need to represent an English constituency, is Prime Minister of the whole of the United Kingdom. That perhaps exhibits the difference between me and the noble Lord, Lord Wigley, for whom I have the greatest respect. He perhaps let the cat out of the bag on that point: he or she is not Prime Minister of England but of the whole state.

That said, some important points that we will want to consider have been made this evening. I noted with seriousness the points made by the noble Baroness, Lady Hayter, and have sympathy with the need for some structure that underpins the union. As unionists, we would applaud that. I have always said that the noble Lord, Lord Wigley, is at the acceptable end of Plaid Cymru—he sees the sense of the workings of the union—and I thank him for his input, which I know is well made.

I turn to some points made by the noble Lord, Lord Adonis—off piste but I will happily pick them up—about the Committee of the Regions. Perhaps other noble Lords will confirm this, but I believe that I have written to noble Lords about a meeting that not I but my honourable friend in the other place, Rishi Sunak, had with leaders of local government. That meeting has taken place. If noble Lords have not received the letter yet, it means that it has not yet gone out, but it is certainly in the system. It indicates that it was a positive meeting and that there would be more.

Here we go into the devolved structures that are now very much part of our system. The noble Lord will appreciate that on devolved matters, the Welsh, Scottish and—when that part of the country is up and running with power-sharing—Northern Ireland local government leaders will be in discussion with the devolved Administrations. That is of course a matter for them to take forward. We are taking it forward with all local government leaders, but, in relation to Scotland, Wales and Northern Ireland, only on those matters that are reserved to us. It was a positive meeting—the letter will outline the progress made—but there are to be more meetings. I cannot remember saying anything other than that, and that is all I am able to convey at this stage.

With that, at this very late hour, I thank noble Lords for their contributions on serious issues. I will ensure that the noble Lord, Lord Thomas of Gresford, who made some very technical but, I am sure, valid points, gets a full response. I respectfully ask the noble Lord, who is my noble friend in personal terms, to withdraw the amendment.

[Lord Wigley]

I am very grateful to the noble Lord, Lord Bourne. I take the opportunity to thank him for—

[Lord Bourne of Aberystwyth]

I am very grateful to the noble Lord, Lord Wigley, for giving way. One thing I forgot to say, which I know he will be anticipating, is that we will not be coming back to this issue. I know that he was probably coming on to the fact that I had not said that, so let me say now that we will not be coming back to this at Third Reading, so if he wishes to press the issue, he should do so now.

[Lord Wigley]

My Lords, seeing the noble Lord, Lord Callanan, sitting next to the noble Lord, I took that as read at this stage of the debate.

I wanted to put on record my appreciation and thanks to the noble Lord, Lord Bourne, for the consultation and the opportunity to discuss various aspects of the Bill. I hope that we can take advantage of that in future. I also thank everyone who has taken part in the debate—the noble Baroness, Lady Finlay, the noble Lord, Lord Thomas of Gresford, the noble Lord, Lord Adonis, who has stood up so effectively for England, and the noble Baroness, Lady Hayter—for their contributions.

I have just a couple of quick points. Of course, there needs to be thought about how England comes into any such structure, but the same argument exists now as it probably did 100 years ago: whether it is England as a whole or England on a regional basis, and how that interplays when you have national units elsewhere. That needs to be thought through.

I will obviously withdraw the amendment in a moment, but I hope that out of this debate, two avenues of thought can proceed on the post-Brexit situation. One is, what will become the equivalent of the Council of Ministers when we have a multinational United Kingdom as a single market? Thought needs to be given to that, and it may be something that can be pursued outside.

Secondly, if we cannot put the JMC on a legislative basis, how can we at least make it much more formal and therefore more effective, so that it plays the role it has the potential to play? As the noble Lord, Lord Thomas, outlined, it has not always done so as effectively as it should. I hope that the noble Lord, Lord Bourne, might be able to sow the seeds of thinking on that in other parts of government, and that we do not allow the water just to run into the sand from this short debate tonight. On that basis, I beg leave to withdraw the amendment.