European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

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

[Baroness Hayter of Kentish Town]

My Lords, I wish to add a couple of points. First, are discussions progressing on the possible inclusion in the Bill of a schedule detailing these areas of concern? Secondly, the noble and learned Lord, Lord Wallace of Tankerness, said that a solution should be agreed, not imposed. We should heed those words. I again ask the Minister: as regards reaching agreement on these issues, to what extent does he have in mind involving the legislatures rather than just the devolved Governments?

The Minister has had notice of my next point. I would like to correct something that the noble and learned Lord, Lord Keen, said in the House last week. He said that there were,

“about 153 areas in which, upon our leaving the EU, competences will return and touch upon areas of devolved competence. These are areas that the devolved parliaments and assemblies previously had no engagement with because they lay in Brussels”.—[Official Report, 21/3/18; col. 334.]

I have since written to him because that it not completely the case. As it works, the memorandum of understanding provides that, in matters of devolved competence, the UK Government consult the devolved Administrations to agree a common UK position on matters before the Council of Ministers, and then defend that position in the Council. Indeed, as we just heard, occasionally devolved Ministers will do that and represent the UK. However, whether it is a UK Minister or a devolved Minister there, they speak in this case for an agreed UK position, not just a UK government position. It may therefore be helpful if the Minister confirms that understanding, which is undoubtedly how the devolved Governments see it. What has been said is right: the spirit to reach accord is there. However, perhaps for clarity, it would be good if that could be confirmed.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

Perhaps noble Lords will forgive me for a moment or two while I stretch my back, which is just a little bit tight. Now I am fighting fit. I point out to the noble Lord, Lord Adonis, that it is because I am carrying the heavy weight of Brexit on my shoulders.

I thank the noble and learned Lord, Lord Hope, for bringing forward this amendment, and all noble Lords who have introduced some interesting debate into the discussions today. It will be useful for us to begin by looking at the deep-dive process itself, whereby the devolved Administrations together with the UK Government have pored over the various 150 or so areas to which my noble and learned friend Lord Keen referred. They have been guided, as the noble and learned Lord, Lord Wallace, noted, by a suite of agreed principles, which indeed from time to time make reference to such concepts as the UK market itself, trade and various other obligations. I understand that each of your Lordships should have had in their postbox or email in-tray a series of emails from my noble friend Lord Bourne which set out the principles themselves and the areas in which they intersect with the policy matters.

It may be useful if I give a flavour of that. It struck me, as I was discussing with various officials in my department and others, that we have perhaps not done that before to give your Lordships a sense of the sheer scale and magnitude of the engagement thus far undertaken. There is a certain sense sometimes that we are quite dismissive of the devolved Administrations, when nothing could be further from the truth. To give your Lordships just a flavour of that, in the area of fisheries there have been six full days of discussions between the devolved Administrations and the UK Government—17, 18, 23 and 24 January, and 6 and 7 February. On environmental quality, to take another example, there was a whole-day discussion on ozone-depleting substances and fluorine gases on 31 January, and two full days at the end of January were spent examining chemicals and pesticides. It is useful to recognise that this approach is unprecedented. Its purpose is, again, one of respect. I can see that the noble and learned Lord, Lord Wallace, is ready to jump up. He is welcome to do so—it will give me a chance to sit down.

[Lord Wallace of Tankerness]

What the Minister is saying is encouraging. For the sake of argument, let us take fishing. Have any of these meetings between UK officials and officials from the devolved Administrations involved members of the Scottish Fishermen’s Federation? Stakeholders obviously have a practical view on where some common arrangements are useful and where they are not.

[Lord Duncan of Springbank]

I wish I could answer that question in the affirmative, but the answer is no. Before each meeting the devolved Administrations, with the UK Government, have engaged in direct consultation with stakeholders. However, the stakeholders have not been inside the room. None the less, what they bring to the table is very much understood. I develop upon these parts because, as the noble Lord, Lord Wigley, pointed out, it is important that when we consider the question of agriculture there is no suggestion that, although agriculture itself is one of the headings, everything in agriculture will remain part of that. To some degree, what noble Lords had in their in-boxes, which was simply entitled “Agricultural funding”, was a little unhelpful. Underneath that rests each of the areas where there is expected to be a necessary common framework, and indeed a whole range of areas where there would not need to be a common framework because it would be fully devolved from the get-go. To some degree, there can be a result of some misunderstanding contained in that approach. Again, that is why it is imperative that we examine every single aspect when we have these deep dives, which are ongoing; they have not finished yet.

--- Later in debate ---

[Baroness McIntosh of Pickering]

Can my noble friend confirm that it is the Government’s intention that this should happen by primary legislation?

[Lord Duncan of Springbank]

Yes, that is the intention. We will move forward with this through primary legislation in each of the common framework areas. On that basis, I hope that the noble and learned Lord, Lord Hope, will feel able to withdraw his amendment.

[Lord Hope of Craighead]

My Lords, I am extremely grateful to all noble Lords who have contributed to the debate and to the Minister for his few words in his response. Of course, legislation may contain enabling powers but we do not know yet what the legislation he is promising will look like. If it is simply a Bill with a lot of Henry VIII powers in the area concerned, it will not advance the argument at all.

I am grateful to the noble and learned Lord, Lord Mackay of Clashfern, for enlarging on the points he made last week. I am glad that my amendment has given him the opportunity to emphasise again the points he has made and his valuable contribution to our debate. He said that if his approach is correct then my amendment ceases to have any purpose. Of course, he is right, because my amendment does not look at primary legislation; it looks at the procedure that would be followed if the mechanism to be used is to be by delegated legislation, in which case we are talking about the consent not of the legislatures but of the Administrations—that is, of Ministers. At the moment, we have in the amendment that was before us last week—the amended form of Clause 11—a promise of consultation. Many noble Lords who have spoken in support of my amendment have emphasised the importance of consent, which is the crucial matter. As the noble Lord, Lord Liddle, said after his careful analysis of what we are really talking about: consent is fundamental. That is the background to what I am submitting.

There are one or two scattered points which I might mention. On the contribution of the noble Lord, Lord Kerr of Kinlochard, the noble and learned Lord, Lord Wallace of Tankerness, was absolutely right. Proposed subsection (2) of my amendment is based on an agreement reached in October last year at the Joint Ministerial Committee on EU Negotiations. The wording is exactly as it was framed in the agreements, and that is the point from which we are moving forward. One could debate the language, but I think that the time for doing so has passed.

I thought that the contribution of the noble Lord, Lord Wigley, about the attitude of the sheep farmers was very helpful, and we have heard similar remarks about the position as regards fishing. I do not think that the position of the hill farmer in Scotland is very different from that which was described by the noble Lord. However, there could well be differences in the way that sheep are managed in England and the way that they are bred and moved south in Scotland and east in Wales—they are moved across the United Kingdom before being exported somewhere else. I can see, therefore, that there could be detailed disputes about what the Welsh, Scots and English would want in framing a UK-wide market for the handling of sheep stock. To attempt to create uniformity in areas as sensitive as this may be a mistake, and it may be that that is where the sticking points are in the discussions. I hope very much that one can get to the point where these matters can be agreed without resorting to dispute resolution.

As the noble Lord, Lord Wigley, also pointed out, in a few years’ time, when we move beyond the Clause 11 procedure and the time limit has disappeared, we do not want to have to start these arguments all over again. We want to resolve this at the beginning in the creation of the market.

It is difficult to take the point further because we do not really know the detail of the disagreements before us. However, I suggest to the Minister that it would be a great help if, before Report, a letter could be passed to those who have taken part in the debate explaining the procedure that the Government intend to use in the creation of these frameworks. I would be very pleased if they were to adopt what the noble and learned Lord, Lord Mackay, has suggested, and it would be very helpful to know that that is what they propose before we start looking at this again on Report. If they do not propose to do that, we need to know what the alternative is and how consent is to be built into it. In the light of the very helpful response from the Minister, and of what I have said so far, I will leave the matter there for the time being. I beg leave to withdraw the amendment.