European Union (Withdrawal) Bill

Lord Dunlop Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Dunlop (Con)]

My Lords, I should start by confessing my membership of the Constitution Committee. I say “confess” because, as the noble Lord, Lord Beith, mentioned, Monday’s Daily Mail took the committee to task to some degree, describing it as a committee filled with “Remoaners”. As noble Lords may imagine, this came as something of a shock to me. I had not before realised this until I read it in the Daily Mail—and I must say that it has shaken my faith in the Daily Mail as a paper of record.

This debate has been conducted in a generally constructive way. That is the spirit in which the Constitution Committee approached its task. Our report proposes,

“a number of practical measures to address the flaws in this Bill without jeopardising the achievement of its objectives”.

No matter how you voted in the referendum, “taking back control” is a powerful idea, so we should use this moment to strengthen our democracy and the sovereignty of this Parliament. Our report, I think, points the way. For example, it recommends that the Bill clarify—as the noble Baroness, Lady Taylor, and the noble Lord, Lord Norton, explained yesterday, and to which my noble and learned friend Lord Mackay of Clashfern gave his benediction today—the status of retained EU law as primary legislation replacing what the report describes as,

“the ill-fitting ‘supremacy principle’—a European legal concept”,

with the UK domestic principle of the primacy of the most recent Act of this Parliament. Where we can safely replace in this Bill the risk of confusion with greater clarity and European legal concepts with British ones, we should do so.

I will focus the rest of my remarks on the Bill’s devolution implications, which many other noble Lords have touched on. Like every unionist I want to ensure that, as we leave the EU, we do not inadvertently jeopardise our union of four home nations. Indeed, handled carefully and sensitively, the process of exiting the EU can strengthen intergovernmental relations within the UK and give our union a renewed sense of purpose.

In the case of Scotland, it is notable that, contrary to expectations, not least of the SNP Government, Scottish opinion has, if anything, swung against Scottish independence as the exit process has continued. The Bill confers on the devolved Administrations powers parallel to those of UK Ministers to correct deficiencies in devolved areas. Clause 11, however, amends the devolution statutes to restrict competence in relation to retained EU law.

Clause 11 has been criticised as a UK Government power grab and as offending a fundamental principle of devolution, where what is not explicitly reserved by the UK Parliament is devolved, as the noble and learned Lord, Lord Wallace of Tankerness, noted yesterday. The Government have explained Clause 11 as being transitional, to provide an orderly process for agreeing with the devolved Administrations where powers repatriated from Brussels are best exercised and what common UK frameworks are needed, and to do so in a way that both respects devolution and protects the integrity of the UK single market—a market which, in the case of Scotland, accounts for 63% of its trade.

As a former Minister with some recent involvement in these matters, I accept that I am perhaps more inclined than others to accept the Government’s assurances at face value. Certainly, the UK Government’s recent devolution record is not the behaviour of power-hungry centrists—quite the opposite. However, I also accept, like many others on all sides of the House, that Clause 11 needs amending. As one of the witnesses who gave evidence to the Constitution Committee put it,

“Clause 11 stacks the cards in favour of the centre”.

Clause 11 unamended would mean that if common frameworks cannot be agreed, the default will be that power remains at Westminster, and what is intended to be transitional will become permanent. We need a clause that is more balanced and which gives the UK Government and the devolved Administrations similar incentives to reach agreement. So I welcome the Government’s commitment to amend Clause 11, and to do so with the support of the devolved Administrations.

But in considering Clause 11, I hope the House will bear in mind two things. First, the 1998 devolution settlements were drawn up on the assumption of EU membership. As such, devolved Administrations are already constrained within their areas of competence. They cannot make law that is incompatible with EU law. As the noble and learned Lord, Lord Hope, noted in a debate last Thursday, removal of this constraint will leave a void, providing, as he put it,

“a wonderful opportunity to create something new”,—[Official Report, 25/1/18; col. 1102.]

in place of it. I agree very much with what he said. The need to replace the void should be interpreted not as rowing back on devolution but as a sensible step to ensure that the UK continues to work effectively as a whole outside the EU.

Secondly, just as we should avoid stacking the cards in favour of the centre, so we should also avoid stacking the cards in the opposite direction. If absence of agreement means that all powers flow, come what may, to the devolved Administrations, their incentive to reach consensus going forward will be weaker. Moreover, I do not believe that one part of the UK should have an effective veto over essential measures to protect the interests of the UK as a whole—interests that this Parliament exists to uphold.

I conclude on an optimistic note. The devolved Administrations accept that common UK frameworks are needed, and the UK Government recognise the importance of obtaining their legislative consent for the Bill. That is a good foundation on which to build agreement. I hope that it can be built quickly; I believe it can.

European Union (Withdrawal) Bill

Lord Dunlop Excerpts

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

[Baroness Randerson]

I resist the idea that I ever deliberately misrepresent anything. However, I am very aware that, although the numbers are different, the principle has always been that the devolved Ministers press the UK Government to require their agreement to a stance that the UK Government take in the Council of Ministers rather than simply consult them. That is not new.

I want to move on to the Minister’s statement in support of his amendments and shall speak, first, about the principle of consent. I believe that consultation is inadequate and that what is needed is consent from the legislatures, not from the Administrations. It is important that the power should lie with the legislatures and not just with the Governments in the devolved Administrations. It is also essential that the list of powers where legislative competence is to be constrained is defined in the Bill. Those powers are not specified in these amendments. The Government must know what powers they have in mind. I accept that there is perhaps some work to do in turning them into a tidy list but they need to be specified.

I I support the calls that have been made for a sunset clause. The Minister said that this is a temporary situation but he also said that he could not be specific about the timescale. A sunset clause would certainly be realistic in that context. Such clauses appear elsewhere in the Bill and there is no reason why the Government should not specify what they regard as a reasonable period in which to deal with this issue. We need the effective powers specified in the Bill as a schedule, as the noble Baroness, Lady Finlay, said.

I I have a question for the Minister—and here I agree with the noble Lord, Lord Forsyth. Where does England fit into all this? We are speaking at great length about introducing a pause on most of the devolved powers of the devolved Administrations, but will there be a parallel pause in relation to England or will things go ahead there on a different timescale?

Finally, I turn to putting frameworks into law. In principle, in the absence of agreement on the future framework for, let us say, agricultural support, the UK Government could seek to enact a framework and argue that, because agricultural support has been specified by regulations as being outside devolved competence, the devolved legislatures’ consent is not required. I believe it should be made clear in the Bill that the specification of areas of retained law as being temporarily beyond devolved competence does not remove the application of the Sewel convention to new primary legislation. Is that interpretation the same as the Minister’s?

I ask the Government to discuss this issue again with the devolved Administrations. I believe that real progress has been made and I am very pleased to see the amendments, but I believe that a further step is needed.

[Lord Dunlop (Con)]

My Lords, the hazard of speaking late in a debate is that, in the interests of brevity, you have to shred your speech; none the less, I hope that what I am about to say is still coherent.

It would be hard to deny that since 2010 significant powers have been devolved to Scotland, Wales and Northern Ireland. As more powers are devolved from Westminster, it becomes ever more important to attend to the glue—the institutions and arrangements that hold together the United Kingdom—and Brexit brings that imperative into sharper relief.

At the heart of the Clause 11 debate is an apparent tension: on the one hand, the powers of the devolved legislatures should not be changed without their consent and, on the other, one part of the UK should not have a veto over legislation to protect the interests of the UK as a whole. I accept that resolving that tension is not an easy matter. Therefore, Clause 11 addresses a very real issue that needs to be recognised and dealt with. The status quo ante cannot simply be asserted because there is no status quo ante. Our exit from the EU creates what the noble and learned Lord, Lord Hope, recently described in a devolution debate in your Lordships’ House as a “void”, and he spoke of the need to create something new. If that is the case, it seems entirely sensible to pause and put in place a temporary mechanism for avoiding legal and regulatory divergence while the void is filled and new frameworks are discussed and agreed. Indeed, if I read it correctly, our own EU Committee recommended something similar in its Brexit devolution report. That is what Clause 11 is intended to achieve.

Of course, the clause could have been handled differently, and I think the Government have tacitly accepted that by agreeing to amend it. As has been recognised on all sides of the Committee this evening, real progress has been made. It has already been mentioned that the Joint Ministerial Committee has agreed six principles for establishing where common frameworks are necessary. Last Wednesday’s Joint Ministerial Committee agreed that intergovernmental structure and the devolution memorandum of understanding should be reviewed to ensure that they are fit for purpose as we leave the EU. I think that everyone accepts that revision is overdue. The MoU was last updated in 2013 and has been under review since 2014, and some firm conclusions are now urgently required. I hope, therefore, that the Government and the Minister can help build confidence that this latest review will lead quickly to concrete results by going as far as they can to spell out the process and timetable for completing this work.

The other welcome development is the publication of the Government’s own analysis of where common legislative frameworks may be required. To date, this has been a theoretical political debate, and greater transparency can only help to stimulate a practical debate in Scotland, Wales and Northern Ireland, informed by real businesses and individuals whose livelihoods depend on trade across the UK.

The Government have now tabled their own amendments to Clause 11 and Schedule 3. Again, I welcome their willingness to go the extra mile to find a resolution. Those amendments are not just tweaks; they represent a significant rewriting of Clause 11. Yet the First Ministers of Scotland and Wales say that they still cannot give their consent to the Bill on the basis of the Government’s current amendments to Clause 11. They seek further amendments and reassurances. It is surely within the realm of possibility to bridge the remaining gap.

In the interests of striking a deal, what further reassurance can the Government provide to the devolved Administrations in the following areas? My noble and learned friend helpfully confirmed earlier that the Government anticipate that the existing consent conventions will apply for any subsequent legislation brought forward to implement common UK legislative frameworks where they engage devolved competence. Can he also confirm that the Government will observe what I might describe as a “self-denying ordinance” not to legislate pre-emptively for England in those areas where it is agreed that common UK legislative frameworks are necessary? To do otherwise would seem to defeat the objective of avoiding regulatory divergence and the very purpose of the Government’s “holding pattern”.

I ask the Government to look closely at the case that has already been made for applying a sunset clause of suitable length to Ministers’ regulation-making powers in Clause 11. This would allow sufficient time for the frameworks to be agreed while providing the devolved Administrations with the backstop safeguard against the risk of powers becoming stuck indefinitely in the holding pattern.

I conclude by saying that there are two sides to every agreement and I hope the devolved Administrations will play their part by showing a willingness to compromise as well. A number of noble Lords have tabled amendments requiring Ministers to obtain the consent or secure the agreement of the devolved Administrations before exercising their regulation-making powers under Clause 11. This seems a step too far and, as the Minister set out so clearly earlier, to go beyond the current devolution settlements. It risks turning the Sewel convention from a political commitment into a legal obligation. Let us not forget that the Sewel convention has been faithfully observed for 20 years. This would represent a significant constitutional change and would surely have implications for the sovereignty of this Parliament. It would also seemingly cross another important constitutional line, namely, as the Minister said, that one devolved institution could exercise a veto over the development of legislation affecting other parts of the United Kingdom.

I welcome the efforts the Government are making to secure a deal. Clearly, there is a balance to be struck here. All parties to the framework negotiations need similar incentives to reach agreement. Of course the devolution settlements need to be respected, but the unique responsibility of the UK Government and the UK Parliament is to guard the interests of Scotland, England, Wales and Northern Ireland—not just individually, but taken as a whole. That needs to be respected too.

[Lord Hain]

My Lords, I think that many in your Lordships’ House will welcome the interesting and constructive contribution of the noble Lord, Lord Dunlop. I welcome the stance adopted by the Minister in his speech; it has made for a very different debate, as others have observed.

As the author of the 2006 Government of Wales Act, when I was the Secretary of State, I have been deeply alarmed by the Government’s high-handed approach—hitherto at least. It seems to risk reversing the deepening of devolution, which the Government have progressed in their recent legislation, ironically. The principle at stake, which I hope the Minister and the Secretary of State, David Lidington, will adopt and take forward, is that the Government must not legislate in this area, provoked by Brexit, without the consent of the Welsh Government and the Scottish Government, in the sad absence of a Northern Ireland Government. I know that my noble and right reverend friend Lord Eames shares that frustration and sadness, as do my noble friends who represent the DUP. There is a serious crisis in Northern Ireland, which sometimes this Parliament takes too casually, to be perfectly frank, but that is another matter. If consent is not obtained, we face a real constitutional crisis, which should not be underestimated. The noble Lord, Lord Lang, spoke about the Scottish nationalists. The problem with the Government’s approach until now—I welcome the fact that it seems to have changed—is that it feeds the separatist appetite.

I observed in the first incarnation of this Bill, and to some extent in the amendments on the Marshalled List, what I saw as Secretary of State for Wales, even under the last pro-devolution Labour Government, which was what I would call the “virus of Whitehall-itis”. It was especially the case in the Home Office, but one saw it in other departments as well. The default position was that, when a new piece of legislation involving devolution was brought forward, there was a sense of needing at the official level to resist any real progression of the devolution process. As I say, that was the default position and it has crept into this Bill as well.