European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

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

[Lord Forsyth of Drumlean (Con)]

My Lords, that is rather like suggesting that one ought to remain inside a burning house in the hope of putting out the fire. I am not sure that I follow the logic of the noble Lord’s argument.

I am in a minority in this House with my views on Brexit—I have noticed that. I am very proud of the way that we in the House of Lords have conducted ourselves over the last 36 hours. I read in the newspapers that we were going to reverse the decisions of the House of Commons and wreck the Bill but, instead, we have had a typically incisive debate. We should be particularly proud of the report produced by the Constitution Committee.

I do not know where I come in the speakers list— 194th or something like that—but I thought that I needed to find something new to say, so I would like to tell the House that there is a blue moon tonight. For those who do not know what a blue moon is, it is not a reference to the Tory party; it is a reference to the fact that there has been a full moon twice in the same calendar month—a very rare thing.

When I got an email from the noble Lord, Lord Adonis—who I hold in very high regard—asking me to support an amendment that we should spend four days on Second Reading, which would mean that we would now be only halfway through, I thought that perhaps the lunar effect was having an effect upon him. Then, when I read that he wanted to suggest that we have a second referendum, I just reflected that we voted on this last year in this House and voted with a majority of more than 200 against that, so I admire his courage and his consistency.

The best speech of many speeches, I think by far, was the one given from the Cross Benches by the noble and learned Lord, Lord Judge. He set it out absolutely clearly, and I feel guilty that I took the advice from the Chief Whip and the Leader of the House and went through the Lobby the other evening, adding to the burden of these Henry VIII clauses. I am impressed that perhaps this is an opportunity for us to take a stand while looking at this Bill. But I have to say that the noble and learned Lord, Lord Hope of Craighead, disappointed me. He actually compared this Bill to Cromwell. He suggested that it was Cromwellian that we were taking powers away from Parliament in the way that Cromwell had done.

[Lord Blencathra]

Thomas Cromwell.

[Lord Forsyth of Drumlean]

Ah, Thomas Cromwell.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

In which case I withdraw entirely my criticism. But some people drew the parallel between taking powers away from Parliament and this Bill, whereas actually, if there is a historical parallel, it is the Restoration, because it is returning powers that were given away in the 1972 Act, which this Bill will repeal. Some 20,000 EU laws were brought into British law over which Parliament had no say whatever. So I take with a pinch of salt those who suggest that this is a terrible Bill because it is denying Parliament the ability to decide matters. It is returning to Parliament the ability, once this Bill is passed and we are out of the European Union, to alter the Bills as we see fit.

I voted to join the European Community, and in my youth—I have to confess—I was once a member of the Young European Federalists—

[Noble Lords]

No!

[Lord Forsyth of Drumlean]

But I grew out of it.

We are keen on Edmund Burke quotes. The one I would suggest the House might look at is this one:

“The people never gave up their liberties but under some delusion”.


I was under a delusion that the Common Market would be a free trade area. Instead, it has turned into a European Union which has been a tyranny for many of the countries of Europe. The noble Lord looks quizzical. Go to Greece and see what the European Union has done to the people in Greece.

[Lord Newby (LD)]

Could the noble Lord inform the House what proportion of the Greek population wishes to remain in the European Union?

[Lord Forsyth of Drumlean]

I have no idea what the proportion is, but if the noble Lord is suggesting that they have a referendum then I think he has enough on his plate with trying to persuade the British people that they should have another referendum. This Bill is a major first start in a process which is about taking back control, making our own laws, and being able to police our own borders and spend our own money.

On the devolution issue, as far as Scotland is concerned, because I have nothing to say about Wales, I have to say that it is absolutely hilarious to watch members of the SNP say that there is a major constitutional crisis because they might not have the powers over agriculture, fisheries and other matters which are exercised in Brussels while at the same time arguing vehemently that Brussels should continue to exercise those powers. It is this Government who are going to create the opportunity for those powers to be exercised in the Scottish Parliament. Many noble Lords have made speeches saying that the Bill is defective because there is no amendment to achieve that purpose. It does not require an amendment; it requires people to sit down in a constructive manner to talk about the arrangements that need to be in place in order to ensure that the various nations of the United Kingdom work together. What the SNP is doing is once again turning everything into a constitutional crisis in its efforts to break up the United Kingdom. We should not give it any quarter on that matter, a point which was made very effectively by my noble friend Lord Dunlop.

This Bill is not a vote to leave or remain, it is not a vote on future policy, it is not a vote on whether we have a free trade agreement and it is not a vote on the devolution of EU policy. Let us just think of the volume of legislation that would be required if we did not have some Henry VIII clauses. I looked at the Open Europe 2005 estimate of EU law passed since 1957 and it amounted to 666,879 pages. I have worked out that if Parliament sat for 24 hours a day, seven days a week, and we did that for a year, we would be able to look at each page for 47 seconds. The practical reality is that we need a Bill of this kind to deliver what the people voted for in the referendum. There are people in the Scottish Parliament who say that they will refuse legislative consent. I wish them well if they are going to try to go through all that legislation and legislate for themselves.

I appreciate that I am running out of time, but leaving aside Thomas Cromwell, perhaps I may give a quote from Oliver Cromwell to those in the House who are so firm in their opposition to responding to what the people voted for:

“I beseech you … Think it possible you may be mistaken”.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Callanan]

I am happy to clarify for the noble Lord that we remain completely committed to the Good Friday agreement.

[Lord Forsyth of Drumlean (Con)]

My noble friend has been accused of not being very experienced. I point out to those Members opposite that we are in Committee but we have had three and a half hours of Second Reading speeches, not speeches on the amendments.

[Lord Wigley]

My Lords, since we have come to the end of this interesting debate, as the mover of the first amendment I thank everyone who has taken part in it. I have no doubt at all that the points that have been raised are relevant to the Bill, otherwise they would not have been accepted, and that the arguments in relation to those amendments are therefore equally pertinent and we are all entitled to have the Government’s response if they have one.

One thing that has come through loud and clear from the Minister’s statement is the fact that he regards this, yes, as a debate about the single market and the customs union rather than about the contents of Clause 1. Well, if it was mainly a debate about the customs union and the single market, as it was, the message that has come from this House is loud and clear: four out of five of those who have taken part in the debate want to see the countries of these islands remain part of the customs union and the single market. If the Government are not going to face up to that, we shall undoubtedly come back on Report with an amendment that can get support across this House, and the Government will then have to defend their case in another place. I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 21st February 2018 Lords Chamber

I understand that at last—the Minister will perhaps confirm this—the joint ministerial committee on the European Union will meet tomorrow. Perhaps the Minister will give some indication as to whether we might expect to have something positive out of it. We need agreement as quickly as possible. We need amendments to Clause 11 to be tabled soon.

[Lord Forsyth of Drumlean (Con)]

Could the noble Lord indicate whether he thinks that, if the House were to pass his amendment, that would make it easier or more difficult to reach an agreement?

[Lord Foulkes of Cumnock]

It would have no great effect either way, to be honest. I would like to think that it would have a greater effect on getting an agreement, but I do not think that it will. Other factors will have greater sway. However, no doubt the noble Lord, Lord Forsyth, will have an opportunity to make his usual spirited contribution to the debate.

It is a running sore that these government amendments to Clause 11 have not been tabled. I say to the Minister that we in this House—I hope that the whole House will agree with me on this; I certainly know that the Official Opposition agree with it—should not debate Clause 11 not just until the amendments have been tabled but until the amendments that have been tabled have been considered by the devolved Administrations. It would be entirely wrong for us to discuss Clause 11 without having the views of the devolved Administrations about the amendments that the Government will table. I hope that we will get an assurance from the Minister that we will not have a debate in Committee on the amendments until they have been considered by the Scottish Parliament, the Welsh Assembly and the Northern Irish Assembly, if it is up and running by then.

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[Lord Foulkes of Cumnock]

I was not in full flow; in fact, I was near the end, noble Lords will be pleased to hear. That is another helpful suggestion. It shows the advantage of debates in this place—we come up with helpful suggestions. I can only say that I wish that Ministers were as ready to accept helpful suggestions as I am, because this place would work a lot better if they were. To be fair, the Minister of State for Scotland was helpful when we discussed the British Transport Police. He came to this House and said that he would take the matter away and look at it further. One good thing is that yesterday the Scottish Government announced a delay in the implementation of British Transport Police integration. That says a lot for the wisdom of this House; it says a lot for the positive intervention of the Minister; and it indicates that, if we put some pressure on the Scottish Parliament, we can influence it. However, it should also be able to influence us.

As I said, under the Sewel convention, the UK Parliament will not normally legislate without the consent of the Scottish Parliament, although it depends what you mean by “normally”. However, this issue is so material to the work of the Scottish Parliament and indeed the Welsh Assembly and the Northern Ireland Assembly that this is one area on which we should not legislate without their consent. I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I well remember the debate on the latest Scotland Act. I think that it was Clause 2 that enshrined the so-called Sewel convention. I remember arguing very vigorously that a convention was a convention and it was a mistake to try to incorporate a convention into statute. The then hapless Minister, reading from his brief, explained that “normally” meant that it would not be a problem. Some of us argued from different points of view that the word “normally” was rather vague and that its meaning could end up being discussed in the courts. We were given assurances that “normally” meant “normally”, but to argue that it is “normal” for the Sewel convention to apply to our repealing of the 1972 Act is stretching the meaning of the word.

I have great respect for the noble Lord, Lord Foulkes, and I feel very sorry about the position that his party now finds itself in in Scotland. It started off with the slogan that devolution would kill nationalism stone dead, but some of us on this side of the House argued that it would not; it would result in the nationalists getting power in Scotland and using their position in the Scottish Parliament at every opportunity to break the United Kingdom. Fortunately, there is a bit of a backlash in Scotland to the advantage of the Conservatives and unionists. I say to the noble Lord that this is not a unionist amendment; it is an extremely unwise amendment. It gives a veto to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly on United Kingdom matters. The noble Lord said that there are four parliaments in the UK. Yes, there are four bodies in the UK, but there is only one United Kingdom Parliament, and that is this Parliament. It is for this Parliament to implement the results of the referendum. The notion that the Scottish Parliament or the Welsh Assembly would be able to stop in its tracks the delivery of leaving the European Union, following the biggest vote in our history, is utterly absurd and ridiculous.

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[Lord Wallace of Tankerness (LD)]

May I ask the noble Lord to cast his mind back to 26 January 2012, when I moved a Motion that the Scotland Bill be considered in Committee, and he moved an amendment that the House,

“declines to consider the Bill in Committee until Her Majesty’s Government have laid before Parliament a report on the results of the consultation they launched on 11 January on Scotland’s constitutional future and until the Scottish Parliament has passed a further Legislative Consent Motion in respect of the Bill”?—[Official Report, 26/1/12; col. 1161.]

He was going to deny a Committee stage on a Bill that contained measures supported in the Conservative, Liberal Democrat and Labour manifestos at the preceding general election. This amendment would still allow the Bill to go forward and become an Act. How does he describe his apparent lack of consistency?

[Lord Forsyth of Drumlean]

I think I was behaving exactly like the noble Lord, Lord Foulkes. I was using the procedures of the House to make an argument against what I thought at the time was a very bad Bill—and which only this week has meant that people like me are now the highest taxpayers in the United Kingdom, as we predicted would happen. If I may say so to the noble and learned Lord, his point is completely irrelevant to the amendment before us.

The noble Lord, Lord Foulkes, talks about tensions being created in Edinburgh between this Parliament and the Scottish Parliament. There will always be tensions between this United Kingdom Parliament and the Scottish Parliament, as long as it is run by people who wish to destroy the United Kingdom. That is what they are about: using their powers to break the United Kingdom. The notion that we should move in a direction and get ourselves into a position where we need lots of legislative consent Motions simply provides more opportunities for everything to be turned into a constitutional crisis, which is the nature of the SNP. We will come to that later in our consideration of the Bill.

[Lord Hamilton of Epsom (Con)]

Does my noble friend think that the noble Lord, Lord Foulkes, was briefed by the Scottish National Party before he tabled this amendment?

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[Lord Forsyth of Drumlean]

That is highly unlikely, although I am sure that it would welcome this amendment.

The key point, surely, is to be able to retain a single market in the United Kingdom. No one is suggesting not devolving powers as appropriate to the various parliaments and assemblies that make up the United Kingdom, but it has to be done in a way that preserves the single market. The noble Lord, Lord Foulkes, asked why we should not have different rules on pesticides. Noble Lords could ask a farmer who has one half of his farm in Scotland and the other half in England whether it would be a problem to spray certain pesticides in some fields and others in others. It is surely sensible in a single market to have a common view on matters such as that. Or let us take an issue that the Scottish nationalists have been keen on, such as fishing. Some of the Scottish Government would quite like to say that all fish caught in Scottish waters should be landed at Scottish ports. How would that go down with fishermen in the north-east of England or elsewhere who had caught fish in northern waters? How would we enforce proper fishing conservation and other policy other than by international treaty? Treaties are made by countries and so far we have one country, which is the United Kingdom.

There are all kinds of issues that need to be sorted out and the way that they are sorted out is by people sitting down and coming to sensible conclusions, not by putting in the Bill an amendment of this kind, which does not actually strengthen the devolution settlement but undermines it because it gives grist to the mill to those who would destroy the United Kingdom. My advice to the noble Lord is to withdraw his amendment. When we come to discuss the amendments of the noble and learned Lord, Lord Hope, and others, we can perhaps address this issue more fully.

[Lord Thomas of Gresford (LD)]

I wonder if I might add a Welsh dimension. The Joint Ministerial Committee did not meet from February last year until October. During that time, the department was beavering away producing the Bill without any consultation with the Welsh and Scottish Administrations about how the devolution of powers from Brussels would take place. Then we had a model produced in the Bill which even the Government rejected. They told us that they would bring forward an amendment to the Bill before Report in the House of Commons. That did not happen, so they continued to beaver away on their amendment. I do not know whether there have been any discussions since, but certainly up until the week before last, Welsh and Scottish Ministers were saying that they had not been consulted about the package that would now be put forward—no consultation. I gather that tomorrow the Joint Ministerial Committee will meet in Edinburgh, and no doubt the Government will produce an amendment and tell the Committee to accept an amendment on which there has been no consultation or discussion.

At Second Reading, I suggested that the whole devolution area should be taken out of this Bill altogether. There should be agreement between the devolved Administrations and the UK Government, and they should bring back a Bill that would encapsulate that agreement. It would go through both Houses without any difficulty. That would be proper consultation and the proper way to make law. We will come to something like that when we discuss Clause 11, because I have given notice of my intention to oppose the question that it stand part of this Bill. If by the time we get there, which no doubt will be in some weeks’ time, there is still no agreement because we have no idea what the reaction of the Scottish and Welsh Administrations will be to what is put on the plate for them tomorrow, then the only thing that this House can do is to take out the devolution principles and proposals in this Bill and bring them back when they have been agreed. There is plenty of time—a month, two or three months, however long it will take—for that process to happen.

[Lord Forsyth of Drumlean]

I wonder whether the noble Lord could help me, and perhaps help the Government, and suggest what an amendment to this Bill might actually say that would meet his requirements?

[Lord Thomas of Gresford]

I am not suggesting an amendment; I am suggesting that we take out Clause 11. The amendment being moved by the noble Lord, Lord Foulkes, today is born of frustration; you can see the frustration that is coming from him. Obviously the opposition to his amendment will say, “We can’t have this. We can’t give Nicola Sturgeon or Carwyn Jones a veto on legislation of the UK Parliament”. I understand that. The frustration behind the amendment should put pressure on the Government to get to grips with this issue. Earlier. my noble friend Lady Humphreys was quoting Mrs Thatcher on the single market. Noble Lords will recall that Mrs Thatcher said that there must be action on this and action on that, but with this Government there is no action. Nothing is happening and no decisions are being made with which we can get a grip.

This is one very important decision and it requires agreement from the devolved Administrations. Why is that? It is because if all the powers come from Brussels to Westminster and are then parcelled out as Westminster thinks fit, it gives incredible power to Ministers, particularly if it is done by means of secondary legislation. That gives them enormous power drastically to alter the devolution settlement. I mentioned at Second Reading that the grants which come to Wales—a lot of money comes to Wales—are sent because of need. That is the criterion that governs the distribution of funds for agriculture and for deprived areas. We are used to operating a Barnett formula in devolution terms and there would be nothing to prevent a Westminster Government with all these powers from Brussels from saying, “I think we will go back to the dear old Barnett formula. We will not look at the needs of the nations of this country; we will look simply at the population and distribute money in accordance with the way we have done it up to now”. That is the sort of thing that could happen. I am not saying it will, but it could, and it would create resentment and concern for the people of Scotland, of Wales and no doubt of Northern Ireland as well. That is the issue which has to be tackled.

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[Lord Wallace of Tankerness]

My Lords, I note what the noble Lord, Lord Forsyth, said in response to my intervention. On the occasion to which I referred, the noble Lord, Lord Foulkes of Cumnock, actually supported him in trying to stop the Bill going forward to Committee stage.

I think that what my noble friend Lord Thomas of Gresford said about the sheer frustration that lies behind the amendment—and what the noble Lord, Lord Wigley, said about the lack of conversation—is absolutely true. That has coloured the background to these discussions. It is worth reminding ourselves about the root of some of this frustration. I think it was in October 2016 when, in a plenary session chaired by the Prime Minister, the Joint Ministerial Committee established the Joint Ministerial Committee on EU Negotiations, with the following terms of reference:

“Working together in EU Negotiations … Through the JMC(EN) the governments will work collaboratively to: discuss each government’s requirements of the future relationship with the EU; seek to agree a UK approach to, and objectives for, Article 50 negotiations; and … provide oversight of negotiations with the EU, to ensure, as far as possible, that outcomes agreed by all four governments are secured from these negotiations; and, discuss issues stemming from the negotiation process which may impact upon or have consequences for the UK Government, the Scottish Government, the Welsh Government or the Northern Ireland Executive”.


The fact that, tomorrow, the Joint Ministerial Committee on EU Negotiations will meet for the second time in 12 months suggests that these terms of reference, agreed by the three devolved Administrations and the United Kingdom Government, have been more honoured in the breach than they have been in the actual implementation. That is at the source of much of the frustration that we have heard expressed. One hears it: when he was replying to the debate initiated on 25 January, the noble Lord, Lord Duncan of Springbank, said:

“The important thing is to stress that it is not for want of effort on our part”—


that is, the United Kingdom Government’s part—

“to secure a form of words that would allow the two devolved Administrations and the UK Government to reach a consensus on that point”.—[Official Report, 25/1/18; col. 1128.]

Yet, if you go to the devolved Administrations, they will say that they have had no communication. There is a lack of communication and there seems to be a complete mismatch with what has been said to us.

It would be interesting if the Minister could tell us yet whether the actual wording of any possible amendment to Clause 11—the Secretary of State for Scotland has accepted that Clause 11 has to be amended; he said that it would be done on Report in the House of Commons, but it was not—has been discussed at ministerial level between the United Kingdom Government and the devolved Administrations. If so, when was that discussed? When the Scottish and Welsh Governments addressed a briefing of Peers in late January they indicated that there had been no exchange of wording.

What is even more frustrating is that it does not seem that the parties are terribly far apart. In September last year, the Scottish Government acknowledged in their legislative consent memorandum that there were areas in which there would have to be common UK frameworks. The communiqué issued after the last Joint Ministerial Committee on EU Negotiations in October also set out the areas in which UK common frameworks were necessary and desirable. Both sides have agreed that that has to be done. Why in the world is more progress not being made, or at least why are we not able to see what progress, if any, is being made?

Perhaps the biggest problem here is the fact that it is done behind closed doors. If there were more transparency, we would see who was playing to the gallery and who was trying genuinely to seek a resolution to these matters. There are issues, such as agriculture, fisheries and the environment, where everybody acknowledges that there will have to be some kind of common framework. Let us identify what progress has been made.

We were told this week in newspaper reports that the United Kingdom Government have done a complete reversal. They now say that they will bring forward an amendment that will devolve everything back to the devolved Administrations, but, as it said in the Times report from yesterday,

“UK ministers are also adamant they would need to retain a veto over the use of some of these powers until ‘common frameworks’ are agreed”.

Again, in terms of public relations, it is like saying, “Here’s one hand; we’ll take away with the other”. What is the position? If we are to have to make decisions when we come to debate Clause 11, it is important that we know what the relationship is and what each side in these negotiations is saying.

[Lord Forsyth of Drumlean]

The noble and learned Lord is very clever and experienced at negotiations with different political parties in government. Perhaps I am too stupid, but I cannot think of a way—and I agree with a lot of what he said—to word an amendment that would deliver the result that he suggests is needed. Can he help me? What would an amendment actually say that ensured that there was the kind of continuing co-operation that is needed?

[Lord Wallace of Tankerness]

My Lords, if the noble Lord will allow me, there is certainly one attached to Clause 11 that has my name on it, as well as the names of a number of other noble Lords. He will find that Amendment 303 sets out a basis for having common frameworks. Indeed, the noble and learned Lord, Lord Hope of Craighead, has one in very similar terms, Amendment 304, which certainly provides a basis for moving forward. We are in opposition. The onus is on the Government to come forward with this. Let us not kid ourselves. The noble Lord, Lord Forsyth, makes a fair point, but it is the Secretary of State for Scotland who promised amendments on Report in the House of Commons. He has made the commitment to amendments, so the onus is not on the Opposition to come forward with these amendments but on the Government.

I hope that when the Minister replies he will tell us what the colour of the Government’s amendments will be. In the European Union negotiations, TF50 sets out where each of the parties is and gives us great transparency—where there is disagreement and where there are things that have to be clarified. This whole exercise would benefit from far greater transparency so that we can see what progress is or is not being made, who is holding things up and who is genuinely seeking to make progress. I appeal to the Minister to make a commitment when he replies that, following tomorrow’s JMC on the European negotiations, that transparency will become a reality.

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[Lord Callanan]

I do not have information about how many official meetings have taken place. I understand that officials are meeting extensively. They are in regular contact. I am told by my officials that contact with officials in the Scottish and Welsh Governments and discussions are extremely positive. That is not the same as getting political agreement, but we are endeavouring to do that. Proposals have been tabled, after extensive discussion, for the meeting tomorrow. We hope there will be agreement. I obviously cannot guarantee that, but we hope there will be. We remain committed to obtaining legislative consent Motions if possible, and we will continue that dialogue in an effort to do that. That is the responsible way to proceed, but I totally understand the frustration expressed from all parts of the Committee that we do not yet have that agreement. We want to get that agreement. We are endeavouring to get that agreement. We will do our best to get it, but we will table amendments for this Committee to consider before we get to Clause 11.

[Lord Forsyth of Drumlean]

Given the difficulties, which are understood, of getting agreement to one legislative consent Motion, can the Minister give us an assurance that whatever amendments he tables will not require us to have legislative consent to even more Motions?

[Lord Callanan]

I am not quite sure I understand that point. I do not think we can give that assurance at the moment. I will have to have a separate discussion with my noble friend on that point.

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[Lord Foulkes of Cumnock]

My Lords, this has been a valuable debate—up until the reply. I have been in this House now for 13 years but I have never heard such an inadequate reply to a debate, and I have heard some pretty inadequate ones. I warn the Minister, my colleagues are outside now.

I was very grateful to my noble friend Lord Griffiths of Burry Port, bringing his eloquence and erudition that we normally hear on “Thought for the Day” to the Labour Front Bench, where it goes down equally well. The only thing I am having difficulty with is picturing Mike Russell in short trousers, but I will try to put that out of my mind.

To return to the Minister’s reply, I am glad the Government Chief Whip is here. I ask him: why do we have a Minister, who is a nice enough man, replying when he does not know any of the answers? On three occasions he turned to the noble Lord, Lord Duncan, and the noble and learned Lord, Lord Keen, to get briefing. The noble Lord, Lord Duncan, is perfectly able to deal with this matter; he should be up at the Dispatch Box dealing with it. He knows what is happening; he is working at it on a day-to-day basis. He could have dealt with all the questions, as he has on previous debates. Even the noble and learned Lord, Lord Keen, would have done better than the noble Lord, Lord Callanan. [Laughter.] As we know, we are always obliged to the noble and learned Lord for his contributions to this House.

I say to the Government Chief Whip: please think about this. I know he does not always listen to me, but when we get to Clause 11 it would be much better to put a Minister up to reply who knows what is going on, sits in on these meetings and deals with this matter on a day-to-day basis. I hope it is a case of horses for courses. The Minister could not answer the question from the noble and learned Lord, Lord Wallace. He could not even answer the question from the noble Lord, Lord Forsyth. That is unusual—actually, no, it is not unusual on that side.

The debate has been very valuable for positive suggestions about the procedures to deal with this issue, and we have had some information about the amendments coming forward and how we deal with them. I am grateful to the noble and learned Lord, Lord Hope, the noble Lord, Lord Warner, and others for their suggestions. As the noble Lord, Lord Thomas, rightly identified, this amendment is born out of frustration. I share the frustration of the devolved Parliament. We saw it when they came down to give a very good briefing to Peers, and this amendment was born out of that.

The noble Lord, Lord Forsyth, paid me the greatest tribute that he has ever paid me: he likened me to himself. I must say that I was flattered. He understood what I am up to, and I know what he is up to. I know he is a real, committed Brexiteer and he knows I am not. I say to him that we would not have had all this debate about powers being transferred back from Brussels, and we need not have them if we stay in the EU. We can let the EU get on with doing what it is doing well on the environment, health and safety and a whole range of other things. That is what we are aiming for.

[Lord Forsyth of Drumlean]

Does the noble Lord not realise how absurd he looks, arguing that if these powers remained in Brussels then he would not have to make the case for Scotland having those powers to exercise domestically? We on this side want that, but done in such a way that we retain the single market. He has just admitted that he is using this as an argument to try to turn people against what the people of this country voted for and is not actually interested in those powers being exercised in Wales, Scotland and elsewhere by the assemblies and parliaments.

[Lord Foulkes of Cumnock]

If they are going to be transferred back to the UK, then I am; that is obviously the case. But it would be far easier to leave them where they are. That would be far better and more sensible, and would have more logic to it. Still, that is an argument for another day. I look forward to the debates when we come to the amendments to Clause 11, but I hope we will have Ministers who can answer the questions that are asked. In the meantime, I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

Now the noble Lord, Lord Pannick, has brought to our notice the wide powers tucked away in Schedule 8 and the repealing by secondary legislation of these—

[Lord Forsyth of Drumlean (Con)]

I am grateful to the noble Lord for giving way, but does not he see how absurd the argument is that he is putting when these European regulations are matters over which the House of Commons has no choice but to implement? The whole point of this Bill is that it is restoring it to the primacy of Parliament to decide on these regulations.

[Lord Bilimoria]

The noble Lord, Lord Forsyth has great foresight, because I am about to cover that in my speech.

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[Lord Bilimoria]

I remind the noble Lord that this House, in that Article 50 Bill, had two of the largest votes in the history of the House of Lords; 614 of us voted in one instance and 634 in the other instance. In both instances, we defeated the Government by almost 100 votes. The fact that the House of Commons did not accept that is a different matter—and the point that I am making is that the Government tried to bypass Parliament. There is the worry that statutory instruments bypass Parliament.

Do Henry VIII clauses give Governments the power of royal despots? Well, secondary legislation is used all the time to amend the text of primary legislation in non-despotic ways, as the noble Lord, Lord Faulks, said—they do not have to be. In fact, the biggest Henry VIII section of them all can be found in the European Communities Act 1972—the very piece of legislation that we are repealing.

[Lord Forsyth of Drumlean]

My Lords—

[Lord Bilimoria]

I am coming to the noble Lord, Lord Forsyth—will he please have some patience? Specifically, Section 2(2) of that Act deals with the type of EU legislation and rulings that need to be transposed into UK law. Typically, these involve EU directives where the intended outcome of the law is made clear, but it is up to the individual member states how to implement them. After Brexit, if Brexit happens, the Government want to use a Henry VIII clause in reverse—to adapt EU laws to make them British. For example, disputes that are currently referred to EU regulators or courts will be amended to refer to their British equivalents. The logic of the noble Lord, Lord Forsyth, is that, if you are going to have a swathe of amendments to undo primary legislation that has already been made using secondary legislation, you should make those replacements in the same way. It is not as simple as that; because of the “deficiencies arising from withdrawal”, the references to the EU regulators, the European Court of Justice and other entities will no longer have any sway if there is Brexit. It is not as simple as saying, “Because they are simple things, we just can’t do this”, and the Government saying, “We will just use these Henry VIII powers to tidy up things”. The problem is that it might alter not just technical details but also the substantive effect of the law. These amendments are trying to protect really important issues.

The Supreme Court has also said that it is well established that, unlike statutes, the lawfulness of statutory instruments can be challenged in court. Even if a statutory instrument gives Ministers broad powers, the courts have established that they will apply limitations. The broader the power, the more likely the courts are to intervene to ensure that the intention of the law in question is not being altered or undermined. Does the Minister accept that?

I conclude that the power to amend all EU-derived primary and secondary legislation by the Government without sufficient scrutiny, checks and control, bypassing Parliament, goes against the ultimate supremacy of Parliament itself.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

My Lords, in moving Amendment 49 I shall speak also to Amendment 52. I read the other day that the two most disbelieved statements are, “The cheque is in the post” and, “I am from the Government and I am here to help you”. Here is another one: this amendment is designed to be helpful to the Government, and I hope they will genuinely believe that. It seeks to formalise the agreement reached in December 2017 in the UK/EU joint report in relation to EU citizens and their ability to refer cases to the CJEU.

Clause 6(1)(b) states that, “A court or tribunal”,

“cannot refer any matter to the European Court on or after exit day”.

However, paragraph 38 of the joint report agreed by the UK Government last December states:

“This Part of the Agreement establishes rights for citizens following on from those established in Union law during the UK’s membership of the European Union; the CJEU is the ultimate arbiter of the interpretation of Union law. In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date. The Agreement should also establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it. This mechanism should be available for UK courts or tribunals for litigation brought within 8 years from the date of application of the citizens’ rights Part”.


We are not taking away any powers from the courts or tribunals. They decide whether to seek advice, and when they get it they then decide whether to take account of it. It does not in any way undermine the principles the Government have adduced for withdrawal. I hope, therefore, that this is helpful. All I am suggesting is that the joint agreement the UK Government have put their name to should be incorporated into the Bill, and I have helpfully provided an amendment to enable them to do that.

I also draw the Minister’s attention to the draft withdrawal agreement presented on 28 February by Michel Barnier to the Brexit Steering Group. I refer specifically to Article 83, which states:

“Where in a case before a court or tribunal in the United Kingdom a question is raised concerning the interpretation of the Treaties or the validity or interpretation of acts of the institutions, bodies, offices or agencies of the Union relating to facts that occurred before the end of the transition period and where that court or tribunal considers that a decision on that question is necessary to enable it to give judgment in that case, it may request the Court of Justice of the European Union to give a preliminary ruling on that question in accordance with the procedural requirements laid down in Article 267 TFEU. The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings on such requests”.


Do Her Majesty’s Government agree to that proposal by Monsieur Barnier in the draft withdrawal agreement and do they plan to amend the Bill accordingly?

[Lord Forsyth of Drumlean (Con)]

How would the noble Lord’s proposed new provision work in the event of there being no agreement and is he not anticipating the terms of an agreement?

[Lord Foulkes of Cumnock]

As I understand it, all that we include depends on there being an agreement. It is not just my amendment; it is the whole legislation. I beg to move.

[Lord Liddle (Lab)]

My Lords, I fully support my noble friend’s decision to raise these questions, which are very important. I suspect the Minister will say that the Government have given a commitment that, when the withdrawal agreement is concluded, it will become before this House an Act of Parliament and we will therefore have the opportunity to debate it then. However, there are two powerful reasons why citizens’ rights should be incorporated in this Bill now.

The first is the high level of anxiety that EU citizens have about their position. I am sure there is relief that, in principle, an agreement was reached in December, but there could still be many a slip between cup and lip in its ratification. Those citizens’ rights should be guaranteed now to provide reassurance.

Secondly, I listened hard to an earlier contribution from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in which he said that the main utility of this Bill is to make sure there is legal certainty if we crash out of the EU—because, assuming that negotiations work, there will be a transition period during which EU citizens’ rights will not be affected. The problem we are dealing with particularly in this Bill is the risk of a crash-out. Of course, the Government will say to us, “Well, we’re very determined there won’t be a crash-out”, but they will not exclude that possibility. It was clear from the intervention at the end of my noble friend Lord Foulkes’ speech that the noble Lord, Lord Forsyth, actually relishes the possibility of a crash-out because he thinks, wrongly, that this is some bargaining leverage we have over the EU.

[Lord Forsyth of Drumlean]

My Lords—

--- Later in debate ---

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord, but he must not put words into my mouth. I simply asked a straightforward question as to what the position would be if this amendment were carried in the event of no deal. Clearly, it would create enormous confusion. There is the separate issue of why we should allow extraterritorial jurisdiction on the part of a foreign court, but I was not embarking on that particular argument. If this is the best the noble Lord can do to support the amendment, I am sure he will support the noble Lord, Lord Foulkes, in withdrawing it in due course.

[Lord Liddle]

The noble Lord, Lord Forsyth, is clearly saying that he thinks there is a real possibility we are going to crash out of the EU. We have heard that from him on other occasions and from people who agree with him. David Davis wrote to Conservative MPs to say that it was a possibility that we would not pay up the money unless we got a good free trade agreement. The fact is that any deal is better than no deal: no deal would be an absolute disaster for this country. But if there is a serious risk of no deal from Members of the governing party—I am sure the Government do not want that but there is pressure in that quarter—I believe we would be right in this Bill to guarantee the rights of EU citizens living in this country.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord and I understand the point he is making about international standards and international bodies. However, the effect of his amendment is, surely, that the British Parliament would be tied, in future, to decisions made by the European Union and the European court. Why does he not trust this Parliament to set regulations that are appropriate for the standards for our own people?

[Lord Haskel]

I do trust Britain to set its own standards, I just do not want to see them lowered. I am concerned that they will be lowered because of trade negotiations and the give and take that will go on in negotiating withdrawal.

[Lord Forsyth of Drumlean]

On that point, why does the noble Lord not think it possible that we might set higher standards, as for example we have done in respect of paternity rights and other matters?

[Lord Haskel]

I would very much welcome setting higher standards and am sure that all noble Lords would do so. My concern is that we should not lower them, because that is one of the rights we should not be giving away.

--- Later in debate ---

[Lord Hope of Craighead]

I have listened with great care to what the noble and learned Lord has said but I cannot look into the future. I do not know what is going to happen as a result. We just have to look at the present situation. There are two factors to bear in mind. As far as the UK is concerned, for people looking to come here, an immense amount of citizens’ rights are guaranteed already under the regulations which implement directives. We ought not to lose sight of that. Secondly, problems of interpretation because of conflicts between the wording of the directive and our transposition of it, give rise to some doubt. Under the existing position, there is an obligation to refer which will not be present after exit day. This is a different situation with which I believe our courts will be able to cope perfectly well.

[Lord Forsyth of Drumlean]

Before the noble and learned Lord sits down, in summary, was he saying that the amendment of the noble Lord, Lord Foulkes, is completely unnecessary?

[Lord Hope of Craighead]

With great respect, I would not put it in that way. It has given me an opportunity to bring forward an example which I am hoping the Minister will be able to comment on. The noble Lord has raised an important point. We all care about citizens’ rights. I hope I have drawn attention to the context in which one looks at the amendment. It is a well-crafted amendment to which the Minister may have an answer along the lines I have suggested.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

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

[Baroness Goldie]

At this point, we are not entirely in control of matters regarding the future. I know that it is frustrating for many of your Lordships, but that is where we have to deal with the negotiations.

[Lord Forsyth of Drumlean (Con)]

I am not an expert in any of these matters, but it is a bit of a puzzle. Why would we want to bring into our legislation regulations which everyone accepts are not fit for purpose, and not bring into effect immediately—

[Noble Lords]

No!

[Lord Forsyth of Drumlean]

I am referring there to the old regulations. The new regulations would provide for a better regime and—this is the most important point, which I hope my noble friend will deal with—enable people to plan ahead for their clinical trials in the future. They need to know which regulatory regime will apply.

[Baroness Goldie]

I thank my noble friend for his intervention. I was about to say that the existing UK legislation based on the current clinical trials directive will be corrected using the powers in this Bill so that that regime continues to function properly when the UK is no longer a member of the EU. This will mean that there is no interruption in UK clinical trials approval. Perhaps I may deal with the point raised by the noble Lord, Lord Kakkar.

--- Later in debate ---

[Viscount Hailsham]

The point is a very sound one, although of course most of us no longer pay national insurance contributions. There is of course another word that one could use, which is “imposition”, as in a financial imposition. The real truth is that we are entitled to a proper definition.

Having focused on some specific narrow points, I would just like to look at one or two general ones. The first is the point that I made on Wednesday, and I shall keep a firm grip on it: any power given to Ministers and officials will be abused. That is an absolute cardinal rule of politics. Secondly, the degree of ministerial and parliamentary control on any statutory instrument is minimal. I speak as one who has considerable authority for saying that: for 10 years I was a Minister and I do not know how many scores of statutory instruments I signed off, but it must have been a very large number.

[Lord Forsyth of Drumlean]

Too many.

--- Later in debate ---

[Lord Deben (Con)]

My Lords, I was once estimably advised by the noble Lord, Lord Turnbull. I want to look at this amendment from the point of view not of the civil servant but of the Minister. I think your Lordships’ House has already understood how difficult it would be for a Minister to understand what he could or could not do under this part of the Bill. First of all, he would have to turn to the modern equivalent of the noble Lord, Lord Turnbull, to ask him what the distinction between a fee and a charge was, and I am not sure that the noble Lord’s equivalent could be entirely precise as to what that distinction was because it is almost impossible to tell.

The noble Lord sitting next to the noble Lord, Lord Turnbull, got up and pointed out the word “contribution”. Of course when talked of in terms of national insurance a contribution is manifestly a tax, but it does not cover the cost of the service to which it is actually appended. It must therefore be possible to have a fee that does not cover the cost but is in fact a tax. That suggests that this part of the Bill—I do not speak of any other part—has not been entirely well thought through.

[Lord Forsyth of Drumlean]

I do not wish to prolong this but I have been reflecting on the definition by the noble Lord, Lord Turnbull, of a tax. He said that it was if you made a surplus. Does that mean that if a charge were being made for a service and the body concerned cut its costs so that it was making a surplus, it would then turn into a tax?

[Lord Deben]

It seems to me that almost any circumstance does not fit this part of the Bill; indeed, I find it difficult to find a single circumstance that does. I hesitate to put this to my noble friend because on the last occasion when I tried to be helpful he found me more unhelpful than usual, so I shall be very careful, but I ask him to imagine that this particular clause was being proposed by a monarch who simply said, “I want to have the powers to decide what kind of word I am going to use for taking money out of your pocket without proper parliamentary control”. I think I know what our forefathers would have said to that monarch. He might indeed have been in fear of his life, for this is precisely what Parliament is about.

We ought not to deal with this merely in the reasonably light-hearted way in which we have pointed out that this is an ill-conceived, utterly ill-thought-through and entirely indefensible bit of the Bill. We should take it one stage further and say that it is fundamentally unacceptable in a democracy that any mechanism can give Ministers the power to decide on taxation without representation. This is what we are here for. This is what Parliament is here for.

It is no good my noble friend reading out, as he will, the carefully phrased answers, because the people who have written the answers have caused the problem in the first place. They are the ones who have not understood that taking back control does not mean giving it to my noble friend. It means, if it is necessary—I do not think it is, but if it is—giving it to Parliament. This is part of the Bill which does not so do. The amendments attempt to put right what is, in the immortal words of some Members of the House, a dog’s breakfast, which is rude to dogs.

This is entirely unacceptable, but there is one bit that I find more unacceptable than any other. If this is necessary in order to carry through our international obligations, which is an argument that has been used, it is a peculiar addition to a Bill which is removing us from international obligations. The one place where this should not be is in the withdrawal Bill. We are withdrawing from international obligations on the basis that we do not want to have them, but writing in an ability to assert international obligations by secondary legislation.

My noble friend Lord Forsyth, who has followed me so far, did not like my little comment about the EU, but I am sure he agrees that we should not be using secondary legislation to impose taxation as a result of international obligations. That is not what it is about.

My last point is very simple. I have always found the word “expediency”, when used by Ministers, a red flag. Ministers always say that something is necessary because it is expedient. Expediency is always the excuse for doing something which you cannot do properly but which you get through on the basis that this is an emergency, it is urgent, or it has something to do with terrorism—we can find some reason or other that means we cannot wait for the proper process.

I was a Minister for 16 years. We are three former Ministers. None of us thinks that this power should have been given to us, so just think how little we believe it should be given to people with a different political view. I say to the Minister, who is well to a different part of the Conservative Party from me, that he should be the last person to give these powers to Ministers.

--- Later in debate ---

One of the reasons why I want to make a brief contribution this afternoon is that I am extremely sad that my noble friend Lord Higgins is unable to be here. His name is on one of these amendments, and I know why. As a former Treasury Minister, and one of very considerable distinction, who among other things was responsible for bringing VAT into our law, he believes that this really is a step too far. I cannot begin to make a speech based on the expertise that he has had for so many years, but it is significant that such a former Treasury Minister should have wanted to nail his colours to this particular mast. It is significant that we have three experienced former Ministers on the Bench below the gangway who all took some pleasure in exercising their powers but who all believe that this is a step and a power too far. We are doing today what we were seeking to do on Wednesday of last week—to put down markers to protect the House of Commons. Your Lordships’ House does not have power—nor should it have—to impose or withhold taxes. That is the ultimate power that is vested in the House of Commons by the electorate.

[Lord Forsyth of Drumlean]

My noble friend mentioned VAT. Is that not an example of where Parliament no longer has the power to reduce the rate of VAT below 5% because we have given that to the European Union? Is not our leaving the European Union an example of restoring the authority of Parliament to impose taxes?

[Lord Cormack]

Our leaving the European Union is an exceptionally unfortunate measure that will do great damage to this country, in my opinion. But the answer to my noble friend’s specific question is that it was enacted by Parliament—a Parliament of which he was not a Member but of which my noble friend Lord Deben and I were—and that, knowing the consequences, we voted for it because we believed that it was in the general interest of our country. We were behaving as Members of the House of Commons should behave. It was properly debated, thoroughly approved and it came on to the statute books as other things have done.

I go back to what I was saying when my noble friend interrupted me. We have a duty to protect and to urge the other place not to abdicate the central power of an elected House—to deal with taxation. I hope that when my noble friend replies we will have a slightly more satisfactory and understanding reply than we had last Wednesday. I hope, too, that he will ensure, if not today, that we have a glossary of all these terms, including charges, fees, taxes, contributions and levies. At the end of the day they all mean something very similar: imposing an obligation to pay. People should never fall under that obligation unless it is imposed by their representatives in Parliament. We have a duty, as the second Chamber—the unelected Chamber—to say to our colleagues at the other end of the Corridor, “Please do not abdicate; please flex your muscles; please do not give to Ministers—the 109 whom we talked about the other night—or to other bodies or authority a power that is only rightly yours”.

--- Later in debate ---

[Lord Callanan]

I take on board the sincere nature of the noble Lord’s assurances on this matter.

[Lord Forsyth of Drumlean]

Might my noble friend point out to the noble Lord that, if it is about taxation, that burden would not be placed on this Chamber anyway?

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

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

[Lord Forsyth of Drumlean (Con)]

On the subject of trust, the noble and learned Lord mentioned the Edinburgh agreement, which the Scottish nationalists signed up to. No sooner was the ink dry on the paper than they were repudiating it. Does he remember the assertion that it would be a “once in a generation” referendum on independence? Surely we are dealing in Scotland with a nationalist Government determined to destroy the United Kingdom. Why on earth would one want to give them a veto over decisions taken by the United Kingdom Parliament?

[Lord Wallace of Tankerness]

My Lords, I accept that, with regard to “once in a generation”, the Scottish National Party is guilty of not living up to what it said, but it is not right to say that, once the ink was dry on the paper, it totally forgot it. What was in that agreement informed both the Section 30 order that was passed and the legislation then passed by the Scottish Parliament in conformity with the agreement. A substantial part of that agreement was carried through in good faith by both parties.

The detailed wording of Schedule 5 to the Scotland Act was important in getting the right balance in the devolution settlement. If in the normal course of events that were to change, it would require an order under Section 30 of the Scotland Act, which requires an affirmative vote not only by both Houses of this Parliament but by the Scottish Parliament. What we are proposing is consistent with what would happen in the normal course of events when the balance of the devolution settlement was changed. That is why I strongly encourage the Minister at least to show willingness to think about this matter and reassure us that the Government are sensitive to it. That could go some way towards establishing a better basis for trust as we look forward to our debates on Clause 11.

[Lord Elystan-Morgan (CB)]

The contributions already made make it perfectly clear how fragile and in many respects how insubstantial is the basis of devolution as we know it. The sovereign Parliament of Westminster has created a sub-Parliament in respect of Scotland and Wales. The sovereign authority that created that Parliament can undo that Parliament any day that it wishes to do so. If it did so I have no doubt that the noble Lord, Lord Wigley, would agree with me that it would be the best recruiting sergeant that Plaid Cymru ever had. Be that as it may, the power is there to do exactly that. It is, of course, utterly understandable that nobody expects that power to be used. In fact, in Clause 1 of both the Scotland Act and the Wales Act of last year there is written in what is intended to guarantee the permanence of the Scottish Parliament and the Welsh Assembly. In terms of law, it has no restriction whatever; it is purely cosmetic but well intentioned. I do not think that, in so far as any legal interpretation is concerned, there is a different view held, but I will be corrected on that point.

Nevertheless, those two Parliaments exist at the mercy, as it were, of this sovereign Parliament. I do not know whether one can change the situation, because the concept of sovereignty means that it can be withdrawn at any time. Unless, of course, one has some self-abnegative discipline—for example, to say that there is a convention. In the Miller case that came before the Supreme Court some time ago, the argument was raised that there was a basic authority that related to each of the Parliaments. No, said the Supreme Court, it is a convention. However, nobody had defined a convention. If Parliament went out of its way to define a convention and said, “In this context a convention means a, b, c and d”, that might get us somewhere. It is a suggestion.

[Lord Forsyth of Drumlean]

The noble Lord may recall that during the passage of the last Scotland Act there was great debate on Clause 2 about whether the convention of seeking legislative consent could be enshrined in law. We ended up with a rather unsatisfactory clause that said that this Parliament,

“will not normally legislate with regard to devolved matters”.

As some of us argued at the time, what on earth does “normally” mean? It came from trying to enshrine the convention in statute. On the subject of people respecting conventions, the noble Lord may not be aware that the Scottish Parliament wishes to charge on with its own legislation on the basis that there is no legislative consent Motion agreed to this legislation, despite the fact that the Presiding Officer has declared that legislation illegal. If we are to have a Parliament acting illegally, led by nationalists who wish to break up the United Kingdom, I think that, as the noble Lord, Lord Empey, has suggested, we should go cannily.

[Lord Elystan-Morgan]

One is greatly tempted to look at this situation beyond the Tweed, as it were—but I will abjure that temptation now and, I hope, for ever. I have scars on my back already in relation to what has happened in Wales over the last few decades.

I believe that in relation to these situations, one can draw a distinction between a convention and something else. A convention can be defined by Parliament in such a way as to have a semi-sovereign authority. That is my point. It is not the same thing as saying that it is regarded as the ordinary way of doing things—that is a totally different argument. In that way, it seems that one might achieve a reasonable and honourable settlement.

--- Later in debate ---

[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.

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

My Lords, late at night on 21 July 1998, I was sitting where the noble and learned Lord, Lord Morris of Aberavon, is sitting at the moment, when Lord Sewel responded to an amendment moved by Lord Mackay of Drumadoon to this effect during the passage of the Scotland Act:

“This Act does not affect the power of the Parliament of the United Kingdom to make laws for Scotland, which may not be amended or repealed by the Scottish parliament”.


In resisting that amendment, Lord Sewel said:

“Clause 27 makes it clear that the devolution of legislative competence to the Scottish parliament does not affect the ability of Westminster to legislate for Scotland even in relation to devolved matters. Indeed, as paragraph 4.4 of the White Paper explained, we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However, as happened in Northern Ireland earlier in the century, we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.


If problems do arise the solution is for the Scottish executive and the United Kingdom Government to resolve the matter through political dialogue. That is what differences between mature parliaments and executives will be concerned with. That is what happens in other political systems. I cannot believe that it is beyond our wit to develop such a convention”.—[Official Report, 21/9/98; cols. 790-91.]


So the use of the word “normally” was off the cuff, and I imagine that Lord Sewel would be as surprised as I am to find that it has become subject to such intense examination in subsequent years.

[Lord Forsyth of Drumlean]

The word “normally” was certainly not off the cuff. If the noble Lord looks back at the lengthy debates we had during the passage of the last Scotland Bill, he will find that there was considerable debate about the use of the word “normally” and the wisdom of including in statute what Lord Sewel said was a convention.

[Lord Thomas of Gresford]

I think that the noble Lord misses the point. I am saying that that was where the word “normally” first originated in 1998. No doubt it has received considerable debate since, and indeed I have listened to debates on that topic.

The problem is a lack of trust—as has been mentioned by a number of noble Lords today and as has been illustrated by the noble Lord, Lord Forsyth, in a number of interventions—between the United Kingdom Government and the Scottish Government, and no doubt a lack of trust between the Labour Government in Wales and the Government in Westminster. It seems to me that it derives from the suggestion that there should be an imposition by the Westminster Government on areas currently devolved to the Parliament and the Assembly.

I looked at the leave campaign’s open letter of 14 June 2016, a week before the referendum. It said:

“There is more than enough money to ensure that those who now get funding from the EU—including universities, scientists, family farmers, regional funds, cultural organisations and others—will continue to do so while also ensuring that we save money that can be spent on our priorities”.


That letter was signed by Mr Johnson, Mr Gove, Ms Priti Patel, Mr Grayling, Mr Duncan Smith and many others. The leader of the Conservatives in Wales, Mr Andrew Davies, said:

“Today’s announcement is hugely welcome and is further evidence that Wales would be better off out of the European Union ... we now know that funding for each and every part of the UK, including Wales, would be safe if we vote to leave”.


Carwyn Jones, the First Minister of Wales, said:

“Those who signed this letter have no more power to deliver on it than my children’s pet cat”.


However, the referendum was won by the leave faction, and there was a proposal in the 2017 Conservative manifesto to set up a UK shared prosperity fund. The manifesto said:

“We will use the structural fund money that comes back to the UK following Brexit to create a United Kingdom Shared Prosperity Fund, specifically designed to reduce inequalities between communities across our four nations ... We will consult widely on the design of the fund, including with the devolved administrations, local authorities, businesses and public bodies”.


The word used in that manifesto was “consult”, not “agree”. Certainly, there was no suggestion that they would look for consent. Similarly, the paper published in June 2017 on the agreement with the DUP, UK Government Financial Support for Northern Ireland, said that Northern Ireland’s needs would be “properly reflected” in the fund,

“which will benefit all parts of the UK”.

So it seems that the intention, as expressed in that manifesto, was for the United Kingdom Government at Westminster to hold the money bags—the structural funds—and dole out the money as they thought fit without any requirement for agreement. The mistrust probably began before then, but that is where it was intensified.

The position is this. The noble and learned Lord, Lord Morris of Aberavon, mentioned earlier the Barnett formula. If, in taking over the rules and regulations relating to regional development, the money were to be distributed under the Barnett formula, Wales would be significantly worse off. The Bevan Foundation, in its report published in conjunction with the Welsh Local Government Association last October, said that using the Barnett formula the estimated allocation of funds for Wales between 2014 and 2020 would be not the actual €2.2 billion but just €562 million. In other words, if the Barnett formula was applied to the structural funds, Wales would get one-quarter of what it was promised up until 2020. And we really do not know what will happen after that: no commitments have been made.

If this clause remains unamended, the United Kingdom Government will have the power to take over all the rules and regulations relating to regional development, agriculture, fisheries and many other areas and to change them and develop other structures as they think fit. Maybe that is a good thing, but only provided that the devolved Administrations consent to it. I cannot understand why the Government resist the concept of consent and agreement—surely, that is the way forward. I think the only reason they resist it is that they do not trust the people they are negotiating with. But they are negotiating with members of a unionist party in the United Kingdom: it does not say much for a United Kingdom if you cannot trust the other partners to that kingdom to reach a sensible agreement. That is what the fuss is about and why I support these amendments.

[Lord Forsyth of Drumlean]

My Lords, I want to follow on from what the noble Lord said. I am not going to talk about Wales, but one of the arguments often put forward by Scottish nationalists is that we must not leave the European Union because we are so dependent on the single market that is the European Union. I think we should focus tonight on the single market that is the United Kingdom. I listened to the noble Lord and I take his point about the Barnett formula. He is absolutely right that it is extremely generous to Scotland and very unfair to Wales. In my opinion, resources should be distributed according to need and not on the basis of a formula that has been amended according to population. But if it is to be the case that the Welsh Assembly and the Scottish Parliament are to have a veto on these matters, what is the prospect of Wales being able to get a fairer share without that being vetoed by Scotland? It is a matter for the United Kingdom Government to decide for the United Kingdom as a whole, and for the single market that is the United Kingdom as a whole.

I have to say that I think the amendments from the noble and learned Lord, Lord Hope, are naive. We are faced with an Administration in Scotland who are absolutely determined to break up the United Kingdom —that is their purpose. We can have all the talks we want with the political Administration, until the crack of doom, but hey ho, we will find that they are saying something completely different from the civil servants. The civil servants will take exactly the kind of sensible, pragmatic, legalistic approach that the noble and learned Lord, Lord Hope, has. But the politicians have another agenda—an agenda which has been set back by the courage of the Prime Minister—which is to destroy the United Kingdom. As a unionist, I have an agenda to make sure that every part of the United Kingdom is treated fairly and that there is no veto for any part of it. We have four parliaments in the United Kingdom, but we have only one United Kingdom Parliament, and that is this.

When Lord Sewel produced his convention, it was greeted with great enthusiasm by the Scottish Parliament. If the noble and learned Lord looks at the record, he will find that this Parliament has legislated for the Scottish Parliament to a very considerable degree—mainly because, until recently, it sat for only one and a half days a week on legislation and so did not have enough time. Now we are in the absurd position where, when a perfectly sensible accommodation has been offered to them by the United Kingdom Parliament, the posturing of Ministers in the Scottish Government—which is about trying to create division and turn everything into a constitutional crisis—is against the interests of having a single market, which they say is essential to the Scottish economy in the case of Europe. Their position is that they do not want any of these powers to come to Wales, Scotland or the United Kingdom; they wish them to remain in Brussels. It is an utterly hypocritical stance. They would rather these matters were decided in Brussels, where even the Scottish Nationals elected as Members of Parliament down the Corridor would have no say. It is political gamesmanship and we would be foolish to accede to it.

We should proceed with the Bill, unamended, and ensure that the United Kingdom Government can work with the Parliaments of the various parts of the United Kingdom to preserve that single market—which, incidentally, is worth four times as much to the people of Scotland in income, jobs and everything else than the single market they purport to defend, which is that of the European Union.

This is a great deal of heat and waffle perpetrated by people who do not like the result of the referendum. They are terribly keen on referenda but find it difficult to accept the results. They argue that we have to have another referendum on independence and we have to have another referendum on Europe. I say to the noble Lord, who is normally very courteous, that to describe in such pejorative terms the 17.4 million people in the United Kingdom who voted to leave—400,000 of whom were Scottish nationalists—is following the course of his leader, who used disgraceful language to insult the 17.4 million people only this week.

I hope that the House will reject these amendments so we can get on with the task of making a success of the United Kingdom, which at last has the powers and authority to ensure that all parts of our country benefit from being able to determine our own affairs.

[Baroness McIntosh of Pickering]

My noble friend has given an interesting speech but it does not appear to bear any relation to the amendments before the House this evening. The amendments go to the heart of obtaining the consent of the Scottish people as expressed through the Scottish Parliament. He is a democrat, I am a democrat. Does he not agree that the amendments go to the heart of devolution and that that is what we are trying to maintain, particularly in the amendments that the noble and learned Lord, Lord Hope, introduced this evening?

[Lord Forsyth of Drumlean]

If the noble Baroness would like me to repeat my speech when she is listening, I will happily do so. However, I do not think the House would like me to. Perhaps she will read what I have said. She says that this goes to the heart of democracy: well, these are matters for the United Kingdom Parliament. There is no veto for any of the devolved Administrations. We have debated this endlessly. This amendment would give a veto; it would mean that the tail was wagging the dog; it would mean that the Scottish Parliament could prevent what was in the interests of the rest of the United Kingdom. That is not democracy.

The noble Baroness needs to address the words on the Order Paper—the words of the amendment—and listen to the arguments, instead of pursuing her ideological determination to reverse the decision of the British people.

[Lord Wigley]

My Lords, I hope that the speech made by the noble Lord, Lord Forsyth, will be reported loudly and clearly in Scotland, because I have no doubt that only one set of winners will be coming from that. The whole of the previous debate and this debate have centred on the question of trust. I am not sure whether the comments we have just heard will help create that trust in future.

The noble Lord, Lord Forsyth, said that my friends in Scotland were ignoring the English single market while building up the European single market—but the European single market includes the UK single market. It is one single market—a bigger one. Those who are looking to that single market are looking outward, not inward and restricting their boundaries to around the coasts of these islands.

[Lord Forsyth of Drumlean]

I said no such thing. I said that the single market, which is the European market, is a quarter of the size of the single market that is the United Kingdom for Scotland.

[Lord Wigley]

It may well be, but the European single market includes England at this point in time. In other words, they are not losing anything.

The main point I want to come back to is that made by the noble Lord, Lord Thomas of Gresford, with regard to resources. If we are being asked to trust giving a veto to Westminster and to the UK Government —that is essentially is what is coming through in a number of these clauses, whether or not that veto will be used in any way—that a power to impose policies in areas that have been devolved. That is clearly going to rankle with people who have become used to using those powers.

We have had experience of this. The noble Lord mentioned regional policy. The noble Baroness, Lady Randerson, will remember the problems we had in the early days of the National Assembly for Wales. There were problems in getting Westminster and Whitehall to pass over money that was for Wales and not holding it in the Treasury in London. That was what was happening, and it was not until Mr Barnier intervened with the then Chancellor, Gordon Brown, that £442 million was passed over to Wales. It was being held back by Whitehall and the Treasury. That is the background to the lack of trust we have. If we are to build up a future of trust, which is what I want to see between the nations of these islands, it has to be recognised that in some areas the leadership is coming from the devolved regimes. In other areas such as international affairs and defence, it is fair enough that the responsibility should lie here, and there will be grey areas. However, we have to make sure that we have a mechanism whereby we respect each other to sort out the grey areas, but attention has not been paid to that side of the argument. We should concentrate on that, and the amendment moved by the noble and learned Lord, Lord Hope, is a step in that direction.

If the Minister will consider the request made by the noble and learned Lord, Lord Hope, and respond to his proposals in this context as a way of showing good will towards reaching some understanding in the other contexts we shall come to, perhaps we will then start to make progress. May I ask the Minister to consider inviting those interested in these matters to meet to try to agree on a proposal from here that would go at least some way towards answering the problems being felt in Cardiff and Edinburgh? This is not insoluble, but it needs good will. However, good will is not always in evidence here.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

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

[Lord Keen of Elie]

I wholly reject the implication that we are suggesting that any of the devolved Administrations are going to proceed to legislate, with any of the competencies returned to them, in a way that would be regarded as stupid or unacceptable. That is a most unfortunate gloss to put on the matter. It is, however, very helpful that the noble Lord, Lord McConnell of Glenscorrodale, has raised the question of how we are going to deal with the issue in this context. The framework agreements have been the subject of ongoing negotiation among all of the Administrations, but in order to achieve that it is necessary to retain competencies in those areas so that there is not the prospect of legislation within the devolved areas which impacts upon areas outwith their competence. To give a simple example in that context, the Scottish Government are entitled to exercise devolved competence and powers within Scotland for the Scottish people, but if we allow all of the additional competencies to go back to the Scottish Government and they legislate in an area such as food labelling, that impacts on the people not only of Scotland but of England, Wales and Northern Ireland. There is therefore, in a sense, a veto over proposals for the internal market, with one devolved Administration saying, “No, we don’t like your proposals on food labelling. We know everybody else likes them but we’ve decided we don’t like them, we’re not going to consent to them, so you can’t have them.” That is the problem that we want to ensure does not arise.

Coming more particularly to the point that was made about how this is decided, we do ring-fence, as it were, the 24 competencies—or elements of them—that have been identified following the consultation process with the devolved Administrations and which are reflected in the principles that I quoted from the Joint Ministerial Committee on 16 October last year. Then, we have to formulate framework agreements, essentially, in each of these areas for the United Kingdom.

Taking up the noble Lord’s point on how we are going to implement those, we will do so by way of primary legislation. And where do we find ourselves? Back in the relevant devolved legislation, which says that we will not normally legislate in respect of these devolved areas except with the agreement of the relevant devolved Government. So the relevant safeguard is exactly the same as the one that exists at the present time. What we propose will not intrude on the devolved competence in Scotland, Wales or indeed Northern Ireland. It retains 24 areas that are coming back from the European Union in order that we can work out what is required for the purposes of maintaining a single UK market. However, what would alter the devolved competencies quite fundamentally would be a provision that said that we could retain those areas of competence only with the consent of each of the devolved Administrations. That would give them a veto over matters that went beyond their present devolved competence and a veto over matters that impacted on England, Wales, Northern Ireland or Scotland, depending upon who was doing it. That is why we have set out matters in the way that we have. When we come on to the amendment to Clause 11 in due course, I hope that, having essentially flipped Clause 11, we can reflect on the great progress that we have made to date in these areas. It is in that context that I simply invite the noble and learned Lord to withdraw his amendment.

We will return to these matters under reference to the government amendments but I wanted to set out, I hope with a reasonable degree of clarity, the Government’s thinking in this area. This is not, with respect, a power grab—on the contrary: if we consult, if we agree and if we achieve this, there is no question of a power grab. It is certainly not a derogation from devolved competence. A great deal of competence will be laid on the devolved Administrations, because so many of these competencies coming back from the EU, and under the amended Clause 11, are going straight to the devolved Parliaments and Assemblies.

[Lord Forsyth of Drumlean (Con)]

Before the noble and learned Lord sits down, may I just tempt him? He has given a very clear exposition of the Government’s position and why it is in the interests of the devolved Administrations and the United Kingdom as a whole to proceed in the manner that the Government describe. He has also talked about the great efforts that have been made by the officials and the work that has been done. Why, then, do we have such opposition, in particular from the Scottish Administration?

[Lord Keen of Elie]

I am not going to rehearse the rhetoric that has been used by some members of the Scottish Government to feed populism. Terms such as “power grab” may have their place, but they do not have a place in the context of our looking at this legislation. Of course, it has been asserted that consultation is not enough—even though it may lead to agreement—and that there has to be consent and only consent. But if it is consent, that is, let us remember, a very material change to the devolved settlements. That will result in the devolved Parliaments and Governments being able effectively to veto matters that impact upon those outwith their area of devolved competence.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

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

[Lord Griffiths of Burry Port (Lab)]

My Lords, in moving Amendment 302B I shall speak also to Amendments 302C and 302G, which seek to amend the government amendments to Clause 11 and Schedule 3.

I recognise and appreciate the tone of the Minister’s speech, as well as the letter that I received this morning from the noble Lord, Lord Bourne of Aberystwyth. Clearly a great effort is being made, and we acknowledge that. Perhaps it will not be a surprise that it is my task—and I consider it my task—to look at those areas where we have perhaps not yet reached agreement, but it is significant that efforts are being made. Yet I must make the point, in sorrow rather than in anger, that the way in which the Government have handled the whole issue over months of inactivity from the autumn onwards leaves much to be desired. Indeed it would not be wholly inappropriate to describe it as lamentable. There was a lot of time lost there.

There is no doubt that we agree on the two main points—indeed, my own interventions earlier in these debates said so very explicitly. We know that a Bill must be enacted and that we must avoid chaos in our legal system. On day one, things must work. As the leader of my party has said more than once, we are totally committed to achieving that. The Welsh and Scottish Governments made it clear as long ago as the White Paper on what was then known as the great repeal Bill that they could not and would not give consent to the approach embodied in the original Clause 11: an emasculation of the devolution settlements by upsetting the balance of the distribution of powers between the UK and the devolved institutions.

There are some in this Committee who will attribute any criticism of the way things have proceeded to a narrow, political sectarianism on the part of an SNP Government in Scotland and a Labour Government in Wales. In my view, such opinions will be more likely to emanate from the narrow, political sectarianism of those who give voice to them, for the repeated expressions of good will from the First Ministers of Scotland and Wales, working together for a satisfactory outcome to these questions, are entirely in line with a whole host of opinions coming from highly respected sources of a totally objective nature. I handpicked just a few for illustrative purposes in an earlier contribution, but I list them again now: our own Select Committee on the Constitution, the Bar Council, the Delegated Powers Committee, the Bingham Centre for the Rule of Law, and the list could go on. Add to that the eloquent contributions from, among others in an earlier debate, the noble and learned Lords, Lord Morris of Aberavon, Lord Wallace of Tankerness and Lord Hope of Craighead, and it should be clear that we can state with confidence that the case being made has widespread and expert backing. But the Government for months stuck their head in the sand and just ignored the growing chorus of voices that has echoed this concern. Indeed, as we have noted insistently and repeatedly, despite the Secretary of State for Scotland giving an assurance in Committee in the other place that an agreed amendment to Clause 11 would be put forward on Report there, far from realising that modest objective, discussions on the matter with the devolved Administrations did not begin until the new year. Now, after all this time, we are presented with an amendment, or set of amendments, that has still not been agreed by the devolved Administrations.

The Chancellor of the Duchy of Lancaster, a nice, approachable man who serves a decent cup of coffee, has proved himself a master of spin. He has told the whole world about the great success he has had in bringing the peoples of Wales, Scotland and Northern Ireland out of their wandering times in the desert to the very edge of the Promised Land. Perhaps I should remind him that the leader in those wandering days died before he could enter the land flowing with milk and honey. There is still a distance to travel, for Mr Lidington’s skilful PR onslaught fails to address the fundamental issue at stake—the issue of consent, which was referred to in the speech we have just heard from the Minister, and which our amendments seek to underline.

Even if amended as now proposed by the Government, Clause 11 would give Ministers of the Crown very wide, unilateral powers to use regulations to place new constraints on the legislative competence of the devolved legislatures. The claims of the Government that this would entail no restrictions on the scope of the legislatures to act that are not now in place ignore the fact that the current EU law restriction falls away on exit day, as does the constraint on our own freedom to pass laws in contradiction of EU law. Let there be no doubt: Clause 11 allows for the imposition of new restrictions, ones that will, if the Government have their way, be controlled and policed by Whitehall. We have heard plenty of discussion of the possibility of this in earlier debates. This is a very different constraint to the one that currently applies to the whole of the UK to respect EU legal frameworks painfully negotiated by 28 member states, with a clear role for the devolved Administrations in developing the UK negotiating position.

The amendments as drafted do not even contain the safeguards that the Government would have us believe. While they say that the restriction will apply to areas where future UK frameworks would apply, and have tried to throw sand in our eyes by simultaneously publishing a list of such potential framework areas, the regulation-making power they seek is not circumscribed in this way. In theory at least, Ministers could simply specify all of those areas of retained EU law that would otherwise be in devolved competence. Of course, I would hope that our House, presented with the requirement for an affirmative resolution to support such regulations, would refuse. But can it possibly be right that it is only Parliament that would have any input into this decision, not the legislatures whose rights would be circumscribed? I mean, it is only the Executive that would have Ministers, not the legislatures. The only requirement in respect of the devolved institutions is one to consult the devolved Administrations.

What the Government have brought forward at this late stage is far too weak.

[Lord Forsyth of Drumlean (Con)]

I am following the noble Lord’s argument very carefully. Will he explain why he is content with the position under the current arrangements by which these matters are determined at European level? The Welsh Assembly or the Scottish Parliament do not have a veto and their consent is not required for Ministers’ negotiating positions in the Council of Ministers, which, after all, can respond only to regulations or proposals brought forward by an unelected Commission.

[Lord Griffiths of Burry Port]

While I will have a word to say in a moment about the use of the word veto, I will not claim to know the detail relating to the Council of Europe, to which reference has been made.

--- Later in debate ---

[Lord Griffiths of Burry Port]

I am delighted to receive that help from behind me, and also to hear from alongside me that, when my noble friend used to attend such meetings, he did not feel part of the furniture or not very welcome. Perhaps that in some way goes towards an answer.

[Lord Forsyth of Drumlean]

What the noble Lord, Lord Hain, is saying is perfectly correct. My question to him was why they were content with a system where people were consulted and involved but which did not require their consent as to the United Kingdom’s position, which is exactly what is being proposed here.

[Lord Griffiths of Burry Port]

I thank the noble Lord. I have long since learned that perfection is not my strongest suit. I remember once asking everybody in a congregation of mine if anybody was perfect and a man at the back put his hand up. I did not believe him, and he said, “No, it’s not me; I am speaking proxy for my wife’s first husband”.

--- Later in debate ---

[Lord Mackay of Clashfern (Con)]

My Lords, my Amendment 318A is in this group. As your Lordships know, I am a lawyer, but I have already got limited support from the noble Lord, Lord Wigley, who has repeatedly explained that he does not suffer from this disadvantage—I will do my best to take him along with me.

As I have indicated, I was first introduced to this matter in a discussion with a very distinguished SNP Member in the other place, when we were travelling together from the north. I mentioned to him that I had had no briefing of any sort from the Scottish Government. The next day I got a message from the Scottish Government to say that the Lord Advocate and Mr Russell, the Minister, were very willing to speak to me. I was able to speak to the Lord Advocate that afternoon and to Mr Russell in the early afternoon that Wednesday. I was very emphatically assured by Mr Russell that the Scottish Government were keen to reach an agreement. I am quite satisfied that there is no indication in the attitude of the Scottish Government that this is an attempt to further their ultimate political aim, and that they are seeking to solve this matter in a way that accords with the dignity of the Scottish Government. I said that I did not want to do or say anything that would impede agreement, and I now hope to show how agreement can be reached.

Before I explain the amendment, I will say a word or two about the law that lies behind it—I will take Scotland as an example, as the other Administrations have similar provisions. The devolution settlement in the Scotland Act is subject to EU law. That considerably restricts what the Scottish Administration can do at present, but when Brexit comes along that limitation will disappear. Included in those limitations are the legislative powers of Brussels to legislate in the United Kingdom. From one point of view, it is wise to analyse these powers in this way: a power that can be made effective within a single area of legislative competence in the United Kingdom should go straight to that level—in other words, to the devolved Administration. That is, if the power does not require more than one of our legislative areas in order to be effective, it should go straight to the devolved Administration.

But there are EU powers which can be effective only when they cover more than one of our legislative areas. The one that is of most relevance in this connection is that which provides for the single market. As your Lordships know, and as the Scottish Government certainly know, the single market is quite an important feature of the present negotiations. Part of that single market is the single market in the United Kingdom. It is 100% obvious that, if you are going to legislate for the single market in the United Kingdom, it is legislation that affects all of the countries within the United Kingdom and the legislatures that support them. Therefore, it is absolutely plain that the ultimate power to settle the single market provisions lies with the United Kingdom Parliament.

But—and this is an important consideration—it is extremely wise to proceed by agreement where it is at all possible. A good deal of agreement has already been reached. As I said, I was assured by Mr Russell when I first spoke to him—and again when he later saw my amendment, which he welcomed subject to qualifications such as the noble Lord, Lord Wigley, will propose—that the Scottish Government are very anxious to reach agreement.

[Lord Forsyth of Drumlean]

I am very interested in this concept, which my noble and learned friend is putting forward, that powers which affect the single market that is the United Kingdom should be taken at a United Kingdom level. Does he see that operating both ways? For example, the Scottish Parliament has the power to set unit pricing for alcohol, which of course affects the single market that is the United Kingdom. Does the proposition that powers which affect the single market should be taken at the UK level mean that, as well as the powers which will come from the European Union when we leave it, powers might also be returned to Westminster from the Scottish Parliament? He might find that Mr Russell is less enthusiastic about that.

[Lord Mackay of Clashfern]

I am not suggesting that for a minute. I am suggesting that what is required is a single market which is the necessary concomitant of having cross-border trade. I do not think that the price of alcohol in Scotland would necessarily affect that. It might be wise for me, if I wanted to buy alcohol, to do it when I was here rather than in Scotland. I may say at once that I am not particularly keen to do that either. That is not an example of the need for there to be no obstacle at the border, because if I have to pay for the whisky in Scotland, I can take it with me, subject to not coming on an aeroplane, I suppose. It is a matter of what is required.

It is realised by various people who were at the meeting of the Joint Ministerial Committee that framework agreements will be required in certain areas. That is because, for the single market in the UK to be effective, there must be agreement across the legislative areas. It follows, as night follows day, that the legislative vehicle for dealing with a market which is across the whole of the UK is a vehicle which has jurisdiction over the whole of the UK. It cannot be otherwise. That seems to be common sense and you do not need to be a lawyer to think that.

My next point is the “but” I was coming to before I was helped by my noble friend. I stress that it is highly desirable, when you are seeking to get a single market, to get the agreement of the components. They have different interests, but there is a very strong pressure to secure a single market. I am sure the Scottish traders do not wish to have something at Berwick-upon-Tweed which requires them to pay out money to English customs. It is absolutely clear that there is a very good pressure to reach agreement. As I say, I am assured by the White Paper that the Welsh Government put forward some considerable time ago, which was referred to earlier. I say in passing that that paper addresses itself to wider constitutional issues about future government in the United Kingdom and how it is not working very well and what-not. But I need something that will work now for the very limited purpose of getting the single market arrangements secure before Brexit comes into effect.

I have suggested in my amendment that there should be set up a group which consists of representatives of all four countries. I think it is wise to specify who they are. I have also specified, to try to reach agreement, that the chairman of the group should be decided on by the group. The Lord Advocate mentioned to me that one of the features of the present committee is that it is always a UK Minister who presides. There will be a certain amount of interest in the skill of the chairman in reaching agreement. It is often quite an important position—I have not been chairman of many committees that have not reached agreement—and it is an important aspect of the matter. I have therefore suggested that.

Of course, the details of this are very much matters for your Lordships to consider, but that is the ultimate thing: that the group should look at all these questions. If, as I am assured, they are very keen to reach agreement, I have no doubt whatever that there is a very high prospect that they will reach agreement—I emphasise that—when you consider that new rules must come into operation at the point of Brexit or the end of the implementation period, whichever is the later, and that if there was failure to reach agreement it would require the action of the United Kingdom Parliament. I am prepared to limit the amount of time for that to three months to emphasise my confidence that agreement will be reached and that therefore a formal legislative enactment in the United Kingdom with full consent from all four members of the committee would be the result.

This is a simple way of dealing with the matter, which is dealt with in a rather complicated way by the government amendment. The government amendment appears to inject powers into areas which may be devolved in fact. Mine makes it absolutely clear that the devolved powers are to be immediately made available to the Governments of the devolved legislatures; it is only the single market power that I consider needs to be reserved.

My very good supporter, the noble Lord, Lord Wigley, has suggested in his amendment that there should be some extraordinary—I do not mean that in a pejorative sense—tribunal to decide when there is disagreement. I certainly hope that there will not be disagreement, but I have provided that if there is disagreement the group itself must specify what that disagreement is, to make the issue for the United Kingdom Parliament as small and definite as possible. In my analysis, the single market is within the legislative competence of the UK Parliament. All the four countries are represented there. I remember that the Scottish party that got many seats in the 2015 election said that one of the purposes was to provide a strong voice for Scotland in the Parliament of the United Kingdom. I have no doubt there is a pretty strong voice for that purpose. Having all four countries represented is as good as any kind of remarkable thing with Speakers. I am not sure if my noble supporter has asked the Speakers whether they want to take this on, but I think that is not in their competence. That is a job for the legislative assembly of the United Kingdom which is set up under our constitution and which I believe would reach a very good agreement on this point, if it had to. In the meantime, I sincerely hope it will not be necessary for it to do anything except legislate with a form agreed by the four constituents.

--- Later in debate ---

Incidentally, in response to the intervention by the noble Lord, Lord Forsyth, as I understand it, Scottish whisky now sells very effectively throughout the whole of the European single market—but that does not imply that there is a single tax regime in all the countries of the European single market.

[Lord Forsyth of Drumlean]

Will the noble Lord allow me to remind him that the Scottish Parliament had great difficulty in passing that legislation, because it was contrary to the European Commission’s views on the single market?

[Lord Wigley]

I have no doubt it had difficulty in passing it. None the less, the objective was a very valid one—to address the problems perceived in Scotland with regard to the level of alcohol consumption et cetera. The proposal was supported by many people in the social sector who wanted to see that sort of change. This is arguable, but the point is that you can have different tax regimes within a single market, as you have within the European single market. You can within the UK single market.

--- Later in debate ---

[Lord Foulkes of Cumnock]

In spite of being a Tory; that is right. He has been constrained by Whitehall in getting decisions. I remember well sending notes around every Whitehall department to try to get some agreement. It is very difficult. However, I would have hoped he would have flexed his muscles a little earlier.

[Lord Forsyth of Drumlean]

My Lords, the noble Lord is clearly very expert on this process and when these meetings were held. Could he tell us how many of those meetings were cancelled by the Scottish Government?

[Lord Foulkes of Cumnock]

I have no idea; maybe the Government can help. What I can tell the noble Lord is that when I was Minister of State for Scotland we had a number of meetings. As my noble friend Lord McConnell can confirm, there were a lot of bilateral meetings between the Scotland Office and Ministers in the Scottish Government. That is the kind of thing that should have been happening but has not been.

I am not known for praising the Government, as Members who have heard me from time to time, particularly the noble Lord, Lord Callanan, know only too well. However, we should acknowledge— I say this as a strong devolutionist and a former MSP who really believes in devolution and argued for it for years, long before other people in Scotland were arguing the case—that the UK Government have moved on this. We have to concede that, under pressure and looking at the argument, they have moved.

We also have to be realistic. I say this to some of my Labour colleagues from England and, with respect, from Wales: the SNP has a clear agenda. It is concerned with only one thing, and we have to remember that. If it sees that it is to its advantage to concede then it will, and it may be able to make it to its advantage, but let us not be naive about what the SNP is up to—and let us hope that Welsh Labour is not naive about that either.

There is an advantage in the UK single market having the same kind of regulations on some of these issues, some of which the Minister has mentioned, and we ought to recognise that. We have an institutional and constitutional problem in the UK in that our devolution is asymmetrical. I have said on a number of occasions that this creates problems in a range of areas, and we can see that it does here. This Parliament has to speak for England as well as the UK and that creates structural, philosophical and other problems. Some of us believe in a federal UK—the Liberal Democrats certainly do, as do a number of Labour people such as myself—and in the longer term I hope we will deal with that. In the meantime, though, we have to recognise that it is a dilemma for the Government to be able to look after the interests of England. The Minister pointed out, and this is something that we have to take account of, that decisions made by the Scottish Parliament or the Welsh Assembly can have an impact on England. We have to accept that and look after the interests of England as well as the whole of the UK. The Minister has said there is an advantage in a number of aspects being uniform throughout the whole of the UK, and I concede that. I was going to mention some more examples but I am conscious of the time.

I turn to the amendments. Serious thought needs to be given to the amendments that the noble Lord, Lord Wigley, the noble and learned Lord, Lord Mackay, and I have tabled. We need some form of mediation and that is what we are suggesting in these amendments—certainly in my first three. I am suggesting something similar to what is suggested by the noble and learned Lord, Lord Mackay: a ministerial council that would deal with that. Then, as a fallback if it could not come to an agreement, I have suggested an advisory panel, and have suggested that it should be the Speakers and the Presiding Officers who would set it up so we would get to a very similar conclusion. Some Members opposite will be pleased to hear that I do not refer to the Supreme Court.

For once, I am in agreement with the noble Lord, Lord Thomas of Gresford. I suggest in Amendment 318E that there should be a sunset clause. He and the noble and learned Lord, Lord Wallace, have suggested two years and I have suggested five, and that is open for debate, but it would be very good to have such a clause so that all sides would know that it had to be resolved by a particular time.

I hope, and I think the Minister indicated this at the start, that the Government consider these to be positive suggestions. If I can recognise that the Government have moved after all the awful things I have said about them over the last few days, months and years, I hope others will recognise that as well and give them at least just a little credit.

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[Baroness Finlay of Llandaff (CB)]

My Lords, I feel a bit like somebody from Relate. I am a Cross-Bencher, I am not a lawyer, and I do not now have an interest in Scotland—although I do have an interest in Wales. I just want to make a few brief comments, to assure the noble and learned Lord, Lord Wallace of Tankerness, that I tried to write a schedule for the Bill to set out the frameworks—but for all kinds of reasons I did not, and felt it would be a waste of massive effort to try to achieve something that I could not. However, I think the idea is commendable that we should put on the face of the Bill the matters that will go to the devolved Administrations, which would then not be for dispute. That may go a long way to assuaging some of the concerns.

I remind the Committee that the noble Lord, Lord Wigley, spoke about the need to be even handed, based on what has gone on before. The amendment tabled by the noble and learned Lord, Lord Mackay, is an enormous step forward. The fact that the Government have agreed to invert Clause 11 is also a major step forward, but there is still more to be done. We need to look at what will happen in the event of deadlock. Having a rotating chair, which has been suggested, would certainly help to establish some sense of equality. The frameworks need to include some sort of equal partners in resolution. I hope that some of the negativism of what has gone before may be laid to rest, because we have to move forwards into the new world. At least we have had some positive suggestions tonight. I repeat my thanks to those who have been communicating with us to try to achieve that—but we cannot just say, “Right, we’re there”. There is more work to be done.

The suggestion of a sunset clause could be helpful too, because that would concentrate the mind, and would provide some reassurance. I had put my name to Clause 11 stand part, but it is now to be replaced anyway, which is a great relief. I hope that we shall recognise, and not forget, the need for equality of voice and equality of representation. The failure to do that in the past should be a lesson to us as we go forwards.

[Lord Forsyth of Drumlean]

My Lords, I have never known a Government make such efforts to meet the arguments that have been put against their first intentions. If it had been up to me I would not have tabled an amendment at all; I thought the Bill as it originally stood was perfectly able to provide for what was required. Instead the Government have listened to the representations from Scotland and Wales. I think the representations from Wales have been a little more constructive than those from Scotland, for the reasons that my noble friend Lord Lang spelled out. I agreed with every word in his excellent speech, although it unsettled one or two people.

I have enormous respect for my noble and learned friend Lord Mackay, and I usually agree with him. I do not know whether he, like me, is a fisherman—but if he were, I would say that the fly he cast should be called the federalist option. What he is proposing is to change our constitution. This is a Bill to put in place the powers that have been lost to the European Union; it is not a Bill in which we should be remodelling our constitution, or reassessing the devolution settlement that was agreed, in the case of Scotland, in the latest Scotland Bill. Therefore, I do not support the amendment of my noble and learned friend Lord Mackay of Clashfern. I have noticed that those people who would like to see a federal arrangement and would like us to remain in the European Union have endorsed it with great enthusiasm, and I can see why.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

That is an open admission of it. As I look at the amendment, I think, “Who will speak for England?”.

[Lord Mackay of Clashfern]

It tells you.

[Lord Forsyth of Drumlean]

My noble and learned friend says that it tells me. Yes, it tells me that it is the Secretary of State. The Secretary of State’s responsibilities are for the whole of the United Kingdom, not for England. To suggest that there should be a rotating chair, as the noble Baroness, Lady Finlay, did, is a nonsense in terms of our constitution. Ministers in the Government have a responsibility to act for the whole of the United Kingdom.

I have to say that I thought that the speech of the noble Lord, Lord Wigley, was absolutely hilarious. Here he was making an impassioned plea for democracy in Wales while at the same time arguing that all the powers that he was concerned about should remain in Brussels, where the ability to bring forward legislation rests with an unelected Commission and where our ability to influence it is one of 28 in the Council of Ministers. It is a complete distortion of the word “democracy”. What is being offered here to the Welsh Parliament and the Scottish Parliament by the Government is the ability to take back control of a whole range of issues and policies over which they have hitherto had no influence at all.

[Lord McConnell of Glenscorrodale]

I have heard the noble Lord, Lord Forsyth, say on several occasions in these debates on Brexit in your Lordships’ House that other noble Lords around this House have tried to revisit the arguments around the referendum, that that is wrong, that time has moved on and that it is time to debate the process of withdrawal and not revisit those debates of two years ago. However, it seems to me that he does exactly the same thing on devolution. To take fishing as an example, the reality is that the Secretary of State for the United Kingdom Government is responsible for fishing in England and the relevant Minister and the First Minister in Scotland are responsible for fishing in Scotland. We have an equality of representation, duty and competence. That is what should be reflected in any common framework for decision-making. It is not the case that the United Kingdom retains an overarching power over these. There may be a constitutional hold over sovereignty at the end of the day, but the reality for 19 years has been that, once these powers were devolved, the Ministers in the UK Government became the Ministers responsible for the way in which those responsibilities were exercised in England, not in Scotland, or, on many occasions, in either Wales or Northern Ireland.

[Lord Forsyth of Drumlean]

The noble Lord is talking nonsense—codswallop in fact—in the context of fishing because the position has been that the Secretary of State with responsibility for fisheries, agriculture and everything else had no authority whatever to determine these matters; that rested in Brussels. I have been to Fisheries Councils, which are always held near Christmas and always go into the middle of the night, where we struggled to get a deal, and where we were invariably overruled by other member states. Then clever people such as the noble Lord, Lord Kerr, who I am not sure is in his place, would write press releases explaining how the talks had been a triumph and we had secured a brilliant deal for the United Kingdom. But we did not have the power to determine that.

As to the point about the position of the Secretary of State in the United Kingdom Government and the Scottish Ministers with responsibilities in respect of fisheries, the noble Lord makes my argument for me. The position is pretty clear: once we have regained control of our waters and our fishing policy, we will make international agreements with other parties. That has to be done on a United Kingdom basis. Despite the noble Lord’s efforts to advance the cause of the nationalists in Scotland, with disastrous results for his own party, his former leader now says that he regrets having done devolution at all. The noble Lord shakes his head. If he reads Mr Blair’s own autobiography, he will find that he lists two things that he regrets doing, and devolution is one of them. Devolution has had a disastrous effect on Labour in Scotland, as he well knows, because Labour has sought to appease nationalism and refused to stand up for the role of the United Kingdom in the way that my noble friend Lord Lang argued so brilliantly. When we regain power over fishing and so on, the Secretary of State will be responsible for organising and arranging access to our waters for fishermen throughout the United Kingdom on the basis of international treaties which can be made only by a sovereign state, and that is the United Kingdom. It is not Scotland, it is not Wales and it is not Northern Ireland.

[Lord McConnell of Glenscorrodale]

Plenty of countries around the world that enter into international treaties have internal mechanisms which allow different parts of those countries to come together to make a decision by either consensus or a formal agreement, so there are plenty of examples around the world of where that works in practice. It should be able to work in this country as well. I correct the noble Lord, Lord Forsyth: there is no evidence that the former Prime Minister Tony Blair regrets bringing in devolution in this country. In fact, it is one of the things he is proud of having done for this country and is a major constitutional change that made a real difference. If the noble Lord reads the book properly, he will understand that.

[Lord Forsyth of Drumlean]

I will return to my copy of this important text and will be in touch with the noble Lord in that respect. I completely agree with his point that there are plenty of countries where people are able to consult on these matters. However, there is a difference between seeking to consult people and seeking their consent. This is where this debate has gone off the rails in that people have confused consultation with consent. Consent, in effect, gives a veto, as has been explained by my noble and learned friend Lord Keen and by my noble friend Lord Lang. It has been explained that, if we have a situation where one devolved legislature is able to have a requirement for consent, as opposed to being consulted, we have one part of the United Kingdom able to use its veto to subvert the wider interests of the rest of the United Kingdom, and that was never ever part of the devolution settlement.

[Lord Wigley]

Does the noble Lord accept that some of the frustration that has built up, certainly in Cardiff, and, I can well imagine, in Edinburgh, arises where there was supposed to be consultation but often that was no more than a letter and the reply was ignored? Unless there is meaningful consultation that leads to a coming together of minds, it can be just a façade for there to be continued rule from London ignoring the needs of Scotland, Wales and Northern Ireland.

[Lord Forsyth of Drumlean]

I do not know the detail. I do know that a number of the joint ministerial meetings were cancelled, but not by the Secretary of State or the UK Government. I am entirely prepared to accept that the process could be improved. Certainly, when I was a Secretary of State and we had differences of view on policy in respect of Scotland compared with other parts of the United Kingdom, we had a joint ministerial committee, sorted out the issues and reached agreement, not always to our advantage but sometimes to our advantage and to the disadvantage of others. I had an amendment down, which I have withdrawn in the interests of making progress, which suggested that there should be some kind of statutory arrangement for consultation. I can see that. But I am seeking to argue against the noble Lord, who wishes to elide consult with consent.

[Lord Thomas of Gresford]

My Lords—

[Lord Forsyth of Drumlean]

May I just answer the noble Lord before I deal with the noble Lord, Lord Thomas?

I understand that. If I were a Welsh nationalist, or someone who did not accept the result of the referendum, I can see why I might table amendments of this kind and cause maximum disruption to the Government’s programme.

[Lord Thomas of Gresford]

The noble Lord has just outlined a dispute resolution system of which he was part. He said that the council would get together and it would thrash out an agreement. Is that not precisely what the noble and learned Lord, Lord Mackay, is suggesting?

[Lord Forsyth of Drumlean]

If the noble Lord had listened to the first part of my speech, I explained who would speak for England, and that this is a matter for the United Kingdom. The difference, of course, when I was Secretary of State was that there was one Government and one party in power. I do not speak for Wales but the difficulty we have in Scotland is that the party in power is determined to destroy and break up the United Kingdom. That is its agenda. As my noble friend Lord Lang said, every single issue is turned into a constitutional crisis and is a source of dispute.

If I may, I will turn to the substance of the government amendment. I started by saying that I have never seen a Government work so hard to try to achieve consensus and agreement. They have tabled an amendment which turns on its head the original proposals in the Bill to reflect the architecture of the Scotland Act. They should be given great credit for that. I welcome the conversion of the noble Lord, Lord Foulkes, who is not in his place; I do not know which road to Damascus he has been on, but it is good to see his conversion and that he now sees that what the Government are trying to do is sensible. The noble and learned Lord, Lord Wallace, also responded positively to this, and made some quite interesting suggestions as to how the amendment might be improved. It is to the Government’s credit that they have brought forward this amendment—and not just brought it forward; as everyone around this House knows, the Secretary of State, David Lidington, has gone to great lengths to meet people, despite all the other things on his agenda, to take this forward. Nobody can say that the Government have not tried to move forward in the interests of getting an agreement.

My noble and learned friend Lord Mackay says that he has had a generous conversation with the Scottish nationalist Minister, and that he thinks he will take a positive and constructive view. Anyone who had that attitude of mind would see that this was a huge leap forward and would embrace it. The Government have not only tabled an amendment which meets any reasonable person’s aspirations but have even said, “We’re not actually going to move the amendment; we going to withdraw it in order for people to have a further opportunity to consult on it”. I cannot think of another occasion when that has happened on a matter of such substance.

[A noble Lord]

Oh!

[Lord Forsyth of Drumlean]

I hear tittering in the background. Does the noble Lord wish to intervene?

It is a huge step forward, and we should all support the way in which my noble and learned friend Lord Keen—there are so many lawyers in this debate—has explained the thinking behind that and the Government’s ability to try to meet the anxieties, which have been stirred up unnecessarily, in a constructive and forward-looking manner while maintaining the integrity of our United Kingdom constitution.

It is a matter of regret that agreement has not been reached with the Scottish nationalists and the Welsh. I hope that the Welsh Government will take a different view. I doubt very much that the Scottish Government will want to do anything other than continue this dispute, and if that happens, my advice to my noble friends on the Front Bench is to get on with it, because they have gone as far as any reasonable person could expect them to go. I very much welcome this government amendment.

[Lord Morris of Aberavon (Lab)]

My Lords, I will make a few comments in this somewhat bizarre debate on the government amendments that the Government propose to withdraw. I have no experience of this situation; it must have happened before, but it is rather unusual, to say the least. I have emphasised before, and will not repeat, the need for “consent” as opposed to “consult”. That is what the Welsh Government want and what all the other parties in Wales want. I already dealt with the history of the Government’s excessive slowness to agree to legislative consent at all in my speech on Clause 5, and I do not wish to repeat that. But I ask the Government: what does “consult” mean? What is the definition? Is it a chat on the telephone or a face-to-face meeting between the First Minister and the Prime Minister? I think that we would like to know before the end of this debate so that we can consider where we go from here and what the Government’s intentions are regarding “consult”.

On Wales, Carwyn Jones has been trying diligently—he is a good advocate—to reach an agreement with the Government. I welcome very much the fact that, in addition to the meetings with the Chancellor of the Duchy of Lancaster, he has had a face-to-face meeting with the Prime Minister. That is how it should be. These are now grown-up Governments in Cardiff and Scotland, and it shows how redundant the role of the Secretary of State now is, because Prime Ministers deal with First Ministers—and likewise, on Treasury matters, it is Treasury Ministers who should seek an agreement.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I am grateful. I think the noble Baroness might have misunderstood me. The point I was making was that, in the case of Wales, Welsh Ministers have been consulted and involved, but United Kingdom Ministers did not need to seek their consent. They were consulted, but the responsibility in the European Union rested with UK Ministers. She is quite right that sometimes Ministers from devolved areas would go to European Council meetings, but the difference is that whereas then we were one of 28 Members, now we will have all of that power, which will be transferred to Welsh and Scottish Ministers, as the Government have made clear. So it is a huge opportunity. It is not a power grab; it is a huge power injection into the devolved Administrations. The point I was making is that people who are opposed to us leaving the European Union are deliberately misrepresenting this and, characteristically and unfortunately, arguing that they want more power for the devolved Administrations while at the same time saying they wish that power to remain in Brussels. That is the point I was trying to make.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

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

[Lord Forsyth of Drumlean (Con)]

I am most grateful to my noble friend. On that basis, did the Liberals lose their mandate to call for a second referendum?

--- Later in debate ---

[Lord Cormack]

Yes, but it is therefore contradictory to have a specific date written in the Bill because the Government are answerable to Parliament and Parliament is sovereign, as we have said many times over the past few weeks; it seems like an eternity. The one message we should convey is that we should not seek to tie the hands of those who are negotiating. We will do so if we put a particular date in the Bill. Failure to reach agreement by that date will then be trumpeted abroad as a failure. None of us wants that. There must be flexibility.

[Lord Forsyth of Drumlean]

With respect, my noble friend has not dealt with the point made by my noble friend Lord Lamont. He says that Parliament must have sovereignty but the House of Commons amended the Bill to allow Ministers to change the order if necessary. That would require the approval of Parliament, so what is he talking about?

[Lord Cormack]

Very simply, I am talking about the fact that the Bill, as it is before the Committee, has a specific date in it. The purpose of these amendments—tabled by my noble friend the Duke of Wellington and others—has been to give the flexibility that the Bill does not allow at the moment. I am surprised if my noble friend cannot see that. I am not arguing against the prudent and excellent speech made by my noble friend Lord Tugendhat. He made the point as effectively as anybody could. Therefore, let us try to unite on Report around an amendment that will give the additional flexibility that changes in the other place have not given.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords—

[Lord Forsyth of Drumlean (Con)]

My Lords—

[Noble Lords]

Front Bench!

[Lord Forsyth of Drumlean]

I am most grateful to the noble Baroness. I will keep my remarks very brief. Whoever sent me the briefing for Labour Lords, I thank them and I am happy to pass it on to any other Member of the House who would like to see it. I found it extremely useful because I was rather puzzled by this amendment and others in the name of the noble Lord, Lord Kerr, and was also puzzled when looking at the Amendment Paper to see a number of other amendments supported by noble Lords from all parties. On reading the briefing for Labour Lords, the explanation became clear. What we are witnessing here is an attempt to create division and confusion in the House of Commons with a view to preventing Brexit going ahead. That is what is going on, and it is carefully orchestrated, as set out in the briefing to Labour Lords.

I was puzzled by this amendment because, like the noble Countess, Lady Mar, I wondered what it had to do with the Bill. The Bill is a simple, technical Bill which sets out to ensure that European law is translated into UK law when we leave the European Union. The amendment makes the commitment that Clause 1, which is the repeal of the European Communities Act, which was central to what the British people voted for, should be subject to some conditions about a customs union, or whatever. The Bill has nothing whatever to do with a customs union. What is going on here is an attempt to get the House of Commons to look at this issue again and create division among those people who wish to support the views of the British people.

I say to colleagues in this House: have a care with what we are doing. We are an unelected House, and this amendment and the other amendments are part of a campaign which is putting Peers against the people—

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

Yes, it is. The people set out very clearly that they wished to leave the European Union, which meant leaving the customs union as well. As my noble friend Lord Lawson pointed out, it was central to the whole campaign. What is going on here is an exercise by remainers in this House—who are the majority—who refuse to accept the verdict of the British people, and I believe they are playing with fire. I hope that, on reflection, the amendment will not be carried.

Perhaps I may just pick up one point which was made—

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

This is a debate. If I may, I will pick up one point as a point of information to my noble friend Lord Ridley, which was the suggestion that the customs union does not discriminate against African countries. Why is it that Germany exports more coffee than the whole of Africa? Answer: because there is a tariff barrier on any finished products. If African countries wish to export coffee beans, that is fine, but if they wish to turn them into an added-value product and create jobs and industries, they are subject to, I think, a 7% tariff. I would have thought that the noble Lord, with all his experience, would have known that, but it is typical of the way in which this campaign has been organised by the remainers: misleading the British public and trying to overturn the decision which the people made with the full knowledge of everything involved.

The noble Lord says, “Calm down”, but I believe in this House. I believe it has an important duty to carry out and it is quite outrageous that people are trying to use this House to overturn the wishes of the British people.

[Baroness Hayter of Kentish Town]

I am so delighted that I gave way to the noble Lord, Lord Forsyth, because he has exposed that it is not the Labour Party, nor is it this House, spreading disarray over Brexit: the Government are doing that quite well by themselves in the other House. We are saying that the Bill is a part of what started with Article 50: looking at how we leave the European Union. As we know, a part of what will come at the end will be our future relationship with the European Union. That is why it is absolutely correct that this House discusses it in this Bill.

On the particular amendment—of course the meat of it is Amendment 4 rather than Amendment 1—it is right for us to cover it, and it is right for us to support it today. It is right for the country. It is demanded, as we have heard, by industry and by trade unions. It is vital for the future of Ireland—although not repeated again today, we have heard that before. It will also get the Government off a hook of their own making: their adoption of the red line of leaving the customs union, which was taken without any impact assessment, without any consultation with business, investors, farmers, exporters or importers, and when the Prime Minister had a Commons majority. Come election night in 2017, soon after 2 am, David Davis admitted on air that the Government might have lost their mandate to exit the customs union. As he said,

“that’s what we put in front of the people, we’ll see tomorrow whether they’ve accepted that or not”.

They did not. There was no majority for that red line. There was no mandate for a hard Brexit.

This amendment is good for the governance of this country. It reflects the rejection of that part of the Government’s manifesto. It would save the economy £24 billion over the next 15 years, which ejection from the customs union would otherwise cost. The amendment would allow full access to European markets, no new impediments to trade, no reductions in standards, no tariffs on goods traded with the EU and common tariffs on goods imported from other countries. This presents no problems for increasing trade outwith the EU; as the noble Lord, Lord Patten, has already said, Germany exports more than we do to China. Even Liam Fox admitted that a customs union self-evidently does not prevent us from increasing bilateral trade with countries such as China. The CBI, as we have heard, stresses that the EU is businesses’ preferred market by far. Three-quarters of exporting companies are selling into the EU and the vast majority of them are SMEs. We have already heard the Japanese ambassador warning that Japan’s firms will leave Britain if Brexit makes it unprofitable to stay—that is a real risk with new tariffs, if we are outside the customs union. As we have heard, there is a high level of integration between the UK and EU supply chains, so checks, delays, and VAT charges all challenge the bottom line. Rules of origin, which we have heard about, could cost up to 15% of trade.

There are also physical challenges. The British Ports Association says that, with 95% of imports and exports handled by its ports, if we have anything like the customs checks that we now have on non-EU imports, it could take 45 minutes per lorry. A quarter of trade between the UK and continental Europe goes through the Channel Tunnel, as indeed does most of the Republic of Ireland’s road freight into mainland Europe. Folkestone—there is a bad joke coming—would look more like stone than folks. We had to have one—I warned your Lordships it was bad.

Last year, the CBI, the Institute of Directors, the British Chambers of Commerce, the EEF and the Federation of Small Businesses all called for tariff-free goods trade between the UK and the EU, in preference to the Government’s slightly weasel words of “as tariff-free as possible”. The CBI stresses that frictionless trade with the EU is businesses’ number one priority and that some form of a customs union is necessary to ensure frictionless trade and no hardening of the Irish border. We have heard already about Airbus, Boeing and Rolls-Royce all saying that a customs union would best support the free flow of goods. Ford, the biggest car manufacturer, argues that any sort of border restrictions or customs friction will be an inhibitor for us continuing to trade the way we have done. The Food and Drink Federation wants a tariff-free customs union. And so it goes on.

We have heard it from industry, we hear it from trade unions, we have heard it from Northern Ireland, and indeed southern Ireland, and it is the same for our regions. Those particularly identified by the Government’s impact assessments will be of interest to the Minister: the north-east and the West Midlands. Those are the areas that will be most affected by Brexit if we have more customs and less trade. They are major exporters of cars, food and other goods.

This amendment is not about us playing politics; it is not about us unscrambling Brexit: it is about how we leave the EU. It is about our future relationship once we are outside. All it asks is for the Government to seek to negotiate our participation in a customs union with the EU. We will support this for the sake of the economy and for the sake of the country.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords—

[Lord Forsyth of Drumlean (Con)]

My Lords—

[Lord Wallace of Saltaire]

My Lords, before the noble Lords, Lord Howarth and Lord Forsyth, tell us that we are frustrating the will of the people, it may be appropriate to remind them of the arguments that the leave campaign made before the referendum for leaving the customs union and the single market. We had to leave the customs union because, if we stayed in, we could not negotiate those different free trade agreements that we would make independently with India, China, the United States and many others, which would give us better conditions than we had had, constrained as we were by being a member of the European Union. They said that we had to leave the single market because we had to get rid of so many of these constricting regulations that bound the British economy and which we could be free of when we left. I wish to suggest that neither of those arguments now holds.

The Government have so far spent well over half a billion pounds on the Department for International Trade, and the Treasury, as the newspapers reported this morning, has decided that that is getting to be too expensive for the value that is being produced, which, after all, is very low. Liam Fox has travelled the world several times—someone told me the other day that he has travelled half the distance between here and the moon so far—and has achieved remarkably little. A number of countries have made it quite clear that they are not prepared to offer us anything better than we would get as a member of the European Union. Our hopes that we have a wonderful free trade partner in the United States do not appear to be assisted by President Trump’s present approach to foreign economic relations. Those who still support a hard leave, such as Jacob Rees-Mogg, are reduced to attacking business as being part of Project Fear when business says that its interests are about to be damaged so badly.

On deregulation, we have heard increasingly from members and supporters of the Government, including those on the Front Bench at present, that we do not want to deregulate—that we want to maintain the high standards of regulation. I have not even heard anyone suggest recently that we should get rid of the working time directive. If that is the case, the reason why we want to leave the single market has also evaporated. The Minister earlier this afternoon suggested that, as an independent country, we could mirror EU regulations by passing, on our own, the same regulations the European Union has just passed. That is wonderful parliamentary sovereignty, isn’t it—jumping in behind, taking the rules and saying, “Gosh, look, we’re doing it on our own”? Geoffrey Howe, a far greater Foreign Secretary than the present incumbent, used to talk about the gains to Britain of the single market: that we would be sharing sovereignty and taking part in decisions about common regulations. Outside the single market we will be taking the rules others have given us and pretending that we are a sovereign country.

The Minister suggested earlier this afternoon that the amendments in question would introduce confusion and uncertainty. I suggest to the Minister that most of us think that that describes the Government’s current position. Indeed, I took part in a radio discussion on Sunday morning with someone whom I imagine is quite a good friend of his—Nigel Farage—who agreed with me that the Government’s current negotiations with the European Union are a total mess. That is the relatively widespread set of opinions from a range of different views around the world. Then, we are faced with the Daily Mail this morning, in which the Foreign Secretary is rubbishing the Prime Minister’s views. If that had ever happened during the coalition Government —if a Liberal Democrat Cabinet member had rubbished the Prime Minister—there would have been a government crisis. But we apparently have such a weak and unstable Government that they totter along from one thing to another, unable to decide what they are doing.

My question to the Minister and to noble Lords who are about to speak is: given that the arguments the leave campaign made in that hard-fought and narrowly won referendum have now evaporated, what are the arguments for staying out of the customs union and single market?

[Lord Forsyth of Drumlean]

My Lords, I feel sometimes in this House that one has wandered into the film “Groundhog Day”; one hears the same arguments over and over again. I thought I might actually address the Bill.

I say to the noble Lord, Lord Alli, that I thought we were debating the European Union (Withdrawal) Bill which, on my reading, simply seeks to ensure that we have in place the necessary legal framework when we leave the European Union, which the other place voted for overwhelmingly when it agreed that we would give notice under Article 50. I have no idea why an amendment about membership of the EEA has any relevance whatever to the Bill. As the noble Lord, Lord Alli, said, it is the job of this House to ask the House of Commons to think again: but to think again about the legislation we are actually debating, not policy matters which Members of this House do not agree with. That is what the noble Lord is doing.

For brass neck, the noble Lord really takes the prize when he stands up to criticise the Government for not being clear about what they want to achieve. They are pretty clear about it: they want a negotiation which will ensure the best deal for our country. That is not helped by the noble Lords, Lord Alli and Lord Mandelson, and others who are seeking to undermine their negotiating position by passing amendments of this kind.

[Lord Cormack]

My Lords—

[Lord Forsyth of Drumlean]

In a second. It is not helping at all to be giving the impression that this House has a different view from the elected House of Commons.

[Lord Cormack]

My Lords—

[Lord Forsyth of Drumlean]

In a second. My noble friend has quite a lot to say, and I am sure I will give way to him in a moment.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

If the noble Lord, Lord Alli, is concerned about the Government’s position, I remind him that the noble Lord, Lord Kinnock, helpfully reminded the House that over 200 people voted to join the EEA. The noble Lord pointed out that that was on a three-line whip in the House of Commons. What he did not say was that it was defeated in that House, as was membership of the customs union. What on earth are we, in this unelected House, doing asking the House of Commons to think again?

[A noble Lord]

Our job.

[Lord Forsyth of Drumlean]

The noble Lord says that we are doing our job. Our job is to address this Bill, not to pursue—

[Lord Kinnock]

I am grateful to the noble Lord. The figure which I used, accurately, was 292, which is slightly over 200. The margin of defeat of that amendment was very small—about nine votes. I was demonstrating the very strong body of opinion, in the elected House, in favour of the principle set down in my noble friend’s amendment. The noble Lord’s familiarity with the Bill should have shown him that, when we are discussing the matter of the EEA, we are completely consistent with the proposals of the European Union (Withdrawal) Bill, which covers our membership of the European Economic Area. Consequently, to try to ensure that we leave the European Union in good order—similar to the phrase that he used—it is surely utterly relevant and entirely proper for this revising House to say to the House of Commons: “Since the Bill provides for reference to the EEA, we are completely consistent with our purpose and the purpose of democracy in asking for further consideration of the arguments in favour of sustaining our goods economy, our service economy and the unity of our nation”.

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord for his guidance on the procedures and nature of this House. He will be well aware of the importance of brief interventions at this stage in the consideration of a Bill. There were indeed 290 votes on a three-line whip, but what is the whip on the Labour Benches today? You are all being told to abstain. For the noble Lord, Lord Alli, to say that the Government’s position is confused, when not many months ago, as the noble Lord, Lord Kinnock, pointed out, the Labour Party had a three-line whip on the EEA but is now urging people not to vote for this amendment—

[Baroness Hayter of Kentish Town]

As this has been raised, it is only fair—for my colleagues more than for the noble Lord, Lord Forsyth—to make it absolutely clear that the three-line whip was on an issue about whether that decision should be taken by Parliament or not. Heidi Alexander, who proposed the new clause 22, said that:

“New clause 22 would not decide on the substantive question of EEA membership, but it would guarantee that at a future moment the House could have its say”.—[Official Report, 15/11/17; col. 426.]


That is, of course, what we have done with the meaningful vote. It is appropriate that accuracy is put before this House.

[Lord Forsyth of Drumlean]

I note that the noble Baroness has not said that her colleagues have been asked to abstain on this matter.

[Baroness Hayter of Kentish Town]

They have indeed.

[Lord Forsyth of Drumlean]

So, from having a three-line whip, and arguing for the importance of the European Economic Area, we now have a “Don’t know” position on the Front Bench. And the noble Lord, Lord Alli, has the cheek to say that the Government are confused about their position; just as the Opposition have been confused about a customs union or the customs union. The truth of the matter is that a number of noble Lords wish to reverse the decision of the British people.

The noble Lord, Lord Wallace of Saltaire, asked me to comment on the position in the referendum campaign. I campaigned in the referendum campaign and went to a number of public meetings. I heard the argument being made that, if we were to join the EEA and be out of the European Union, we would have “fax diplomacy”. We would have no say in the regulations and that was the worst of all worlds. I now find that the people who were advancing that argument are now pretending that it is in the interests of the country: it certainly is not.

The noble Lord, Lord Alli, asked: “What are we getting for our money?”. As my noble friend has pointed out repeatedly, nothing is agreed until everything is agreed. There will be no money paid if we do not have a negotiation which is in the interests of the United Kingdom. By suggesting that that money will be paid, and that the Government cannot get a good negotiation, he is undermining the position of his country, and of the Government, in vital negotiations which, as speeches on all sides have pointed out, are of great importance to the economy as a whole.

[Lord Alli]

I have been in this House for a little while—about 20 years—and I understand that this is an important issue. There has been a civility in this House which has made it a special place to have a debate. I hope that, whatever the feelings of noble Lords, the rest of this debate can be conducted, as is our tradition, with kindness, care and consideration of other people’s views. I know that the noble Lord has strong views, but if we could take it down a notch it would allow us all to have the debate we want in the spirit to which this House has become accustomed.

[Lord Forsyth of Drumlean]

I am sure that the noble Lord was not among those jeering when I was trying to make my points earlier and that his advice to his colleagues will be well received. He said, “Take it down a notch”: he is proposing that we fly in the face of the biggest democratic vote in our history and that, as unelected Peers, we ask the House of Commons to consider a matter which has been considered before and not concentrate on what we are here for, which is improving the legislation in front of us.

The noble Lord, Lord Kinnock, said that this is sort of connected to the Bill. There will be an opportunity for us to consider this matter at the end of the negotiations. The Government have promised to bring forward legislation on the agreement and have promised a vote in both Houses on this matter.

[Viscount Hailsham]

A meaningful vote.

[Lord Forsyth of Drumlean]

My noble friend says “A meaningful vote” from a sedentary position. By that he means a vote to reverse what the British people voted for in a referendum. There will be a vote on the negotiation and on the agreements which have been reached. I urge this House not to undermine the position of the Government in their negotiations or that of the Prime Minister by seeking to argue that her objectives cannot be achieved.

[Lord Cormack]

I am grateful, and at this point an intervention is appropriate. If anybody is undermining the Government at the moment, it is the Foreign Secretary rubbishing the Prime Minister. My noble friend, who is a brilliant debater—I am delighted to be able to debate with him—is arguing for a cause but completely missing the point. I ask him just to reflect: what sort of example are we being given by a Cabinet that is rent asunder by the Foreign Secretary, the second most important member of the Government, rubbishing the Prime Minister in the Daily Mail?

[Lord Forsyth of Drumlean]

I know that my noble friend is not very keen on the Foreign Secretary, and that he has made a number of attacks on Boris Johnson in this House, including calling on the Government to sack him. I point out that Boris Johnson played an important part in the referendum campaign and that the people voted—

[Lord Patten of Barnes (Con)]

My Lords—

[Lord Forsyth of Drumlean]

In a second. Can I just deal with this intervention? I did not think that we had interventions on this scale on Report.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

On Report—I am just referring to Standing Orders.

The Foreign Secretary set out his case, which was not to be in the customs union or in the single market, and the British people voted overwhelmingly. This House is seeking to undermine that vote, and in so doing it is damaging its own standing and reputation in the country.

[Lord Patten of Barnes]

My noble friend has just made, unusually, an unforced error, as they say in tennis. Did he not—perhaps he did not—agree strongly with the Foreign Secretary during the referendum campaign, when Boris Johnson made it absolutely clear that he was in favour of us staying in the single market?

[Lord Forsyth of Drumlean]

No, I did not, and I was not aware that he had done that. I do not think that my noble friend and I would be at loggerheads or in disagreement if I said that the Foreign Secretary does not always get everything right. However, he argues passionately for the democratic mandate which was given to this Parliament and to this Government, and which this Government are determined to carry out.

These amendments are doing no good whatever to this place or to our ability to get the best deal for the British people. If my noble friend Lady Verma said that, like the Prime Minister, she has in all conscience to get the best deal for the country, I suggest that the difference between her and the Prime Minister is that the Prime Minister is elected and the responsibility is hers, and my noble friend should give her her loyalty and support.

[Lord Bilimoria]

My Lords, I have put my name to these amendments, and I will start by putting this in context. When you make a change in business, you do so if there is a burning platform—if you have to make the change—or to make a change for the better, to improve things. Now we keep hearing about equivalence, and about whether we will be able to get terms as good as those we have now when we leave. To follow on from what the noble Lord, Lord Cormack, said, we have heard comments from other members of the Conservative Party, and not just Boris Johnson. Jacob Rees-Mogg has accused the Business Secretary, Greg Clark, of,

“promoting ‘Project Fear’ by saying that thousands of jobs were at risk if Britain did not minimise friction in trade”.

That is the Business Secretary saying that, and it is called Project Fear. Boris Johnson has said that the proposals for a customs partnership after Brexit are “crazy” and that it will not work.

European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Baroness Young of Old Scone (Lab)]

My Lords, I was pondering in bed this morning, as one does, about when the change of tone came from the Government on the watchdog and the principles and the commitment to the environment.

We have heard really quite encouraging statements from the Government over the past year. These have included a pledge to be,

“the first generation to leave the environment in a better state than we inherited”;

saying:

“We need to fill the governance gap”.—[Official Report, 8/1/18; col. 8.];


and promising to create,

“a new, world-leading body to give the environment a voice … independent of government, able to speak its mind freely”,

with “clear authority” and “real bite”. These are not my words, these are the Government’s words. They were not enunciated just by the Secretary of State for the Environment, whom you would expect to say things like that, but they were quite frequently enunciated by the Prime Minister as well. That was jolly welcome to us environmentalists, who believe that the environment is not about birds and bees and tweety things but is actually about the ecosystems on which all of human life and economic prosperity depend.

However, somewhere along the line the cracks in the Government’s commitment to their intentions and their fine words have appeared. The consultation document which came out last week was total confirmation of that. There has been a huge watering-down of the status of the environmental principles to a policy statement, which the Government would only have to have regard to, on the basis that it would,

“offer greater flexibility for Ministers”.

I am not sure that that ought to be the objective of all this. Even though the Government promised that Brexit would not weaken our environmental protections, the way in which the principles are being dealt with in the consultation will not deliver that. As many noble Lords have said, the watchdog is more like a watchpoodle and simply will not do the task that has been carried out by the Commission and the European Court of Justice very successfully, as the noble Lord, Lord Smith, has just pointed out.

The consultation was very late. We should have smelled a rat when it did not appear as promised in November 2017. As a former chief executive of the Royal Society for the Protection of Birds, I know about little birds and a little bird has told us that this is a sign of cold feet in a range of departments—BEIS, the Treasury, the Department for Transport and, indeed, No. 10. There is a total lack of cross-government agreement and that means that the consultation is late, the governance gap is opening up under our feet and there is no chance of getting even these weak proposals in place before Brexit day.

The Government have made a commitment to ensure legal continuity on day one of Brexit so it is vital that the principles and the watchdog are part of domestic law.

[Lord Forsyth of Drumlean (Con)]

My Lords, I am most grateful to the noble Baroness for giving way. I am just contemplating the case that has been put for a really powerful watchdog to protect the environment. If we think, for example, of the decision to turn off the pumps in order to protect the birds on the Somerset Levels, it had a devastating effect on the people who live there.

[Baroness Young of Old Scone]

I shall no doubt see the noble Lord, Lord Forsyth, on this matter at a later point because, in fact, the folklore around that decision is wide of the mark. This is not the time or the place, but I am sure the noble Lord, Lord Smith, and I will be able to see him afterwards.

We really need the principles and the watchdog in place so that, on Brexit day, we have public bodies that are following the principles, courts that are applying the principles, and the public are able to rely on the watchdog to have a voice on the environment. This Bill is the only opportunity that will deliver that on time, so the way the Government deal with this now is the ultimate test of whether they really are truly committed to maintaining equivalence in environmental protection post Brexit. I hope the Government will stand up and meet this test.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

My Lords, I would also like to say a word about giving this Bill a Third Reading, in the absence of a legislative consent Motion from one of the two functioning devolved legislatures, as we heard, obviously. We know that this House regrets that absence.

There is no doubt that we are partly in this position because of the failure of the Government to start their Brexit process by engaging with the devolved authorities. Indeed, there was some six months when the JMC did not even meet, even after the outcry over the initial Clause 11, which had been tabled without consultation, much less agreement with the interested parties.

It was, like much of the Government’s Brexit handling, the result of no pre-referendum consideration of the impact of any withdrawal and indeed, even after June 2016, inadequate attention to this vital area of returning EU regulation. Of course, it was the result—maybe all of us are slightly to blame for this—of not fully appreciating how devolution has fundamentally affected decision-making across the UK. As in the example given by the noble Lord, Lord Kerr, some of this is continuing. Papers are still being produced without the consultation that I would by now have hoped was becoming regular. As I have said, I think, to the Minister, I hope that when this Bill is over, the Government will review the status and the functioning of the currently very ineffective Joint Ministerial Committee.

For now there is, as the Scottish as well as the Welsh Government recognise, a need to look at how to protect an internal UK market even as we pull out of the EU equivalents. Indeed—in a way it is quite funny—the Scottish Government have been the most vociferous about staying in the EU single market, so it is slightly odd that they seem to want to turn their back on an all-UK version of that.

The deal now in Clauses 13 to 15 seeks a way forward, allowing most of the non-reserved powers to be, rightly, with the devolved authorities, while on a temporary basis holding back some of those which may be needed either for trade agreements or for our own internal single market. Consumers and businesses will want to know that they can buy or sell across internal UK borders without safety, product or other regulations being different, such that they lead to border checks or inadequate standards or controls. The example of alcohol pricing across the border is not the same. If you are buying alcohol in Scotland, you know you are in Scotland and it may be cheaper or more expensive. But if you are buying a chicken when you are in Durham, you want to know whether it was chlorine washed when it was produced in Scotland. As a consumer, those products will cross the borders. So there are undoubtedly areas that we will want to sort out, for the consumers, as well as for businesses trading across the UK.

The Bill for now allows for decisions on these temporarily frozen areas to be taken by consensus, but where one devolved Administration disagrees, as we have just heard from the noble and learned Lord, Lord Mackay, their rationale—and indeed the UK Government’s response to their reasoning for withholding that consent—would come to this Parliament. It would not come back to the UK Government, but to this Parliament for consideration and final decision.

As my noble friend said, until very late in the process, the Scottish Minister had been part of these negotiations and appeared content with their direction of travel and outcome. It was at the very last moment that the Scottish First Minister took another view and demanded a veto—effectively a veto over what both Wales and England might do in some of these areas. This is understandable from an independence party that retains doubts about the role of the UK Parliament over any of its affairs.

We on this side of the House support the union. While absolutely defending and championing devolution —who could not, as an old friend of the late and much-lamented Donald Dewar, and indeed the then Labour Government who implemented devolution?— we do not see it as either separatism or proto-independence.

While acknowledging that the SNP does not share our commitment to devolution—and indeed still campaigns for something different—we nevertheless hope, as others have said, that the UK, Welsh and Scottish Governments will convene cross-party talks to broker an agreed way forward, since we regret that the Scottish Government failed to negotiate something to which their Parliament could consent. We live in hope that it might still be possible. There is still time.

[Lord Forsyth of Drumlean]

Could the noble Baroness, Lady Hayter, therefore explain why the Labour members of the Scottish Parliament voted in the way they did, to support not giving legislative consent and to support having a Bill, which the Presiding Officer had said was ultra vires?

[Baroness Hayter of Kentish Town]

My Lords, the wonderful thing about devolution is that it happens within our political parties, just as it happens across the UK.

There is still time for some finessing. Perhaps we can, in the coming months, find an alternative way forward to the approach now proposed, particularly before any draft regulations are laid before this House— maybe from some of the ideas going around today. If we can find a way forward that commands the support of all the devolved Administrations and thus preserve the spirit of the Sewel convention—which those of us who care about devolution rightly believe is of huge importance—we on these Benches would welcome it. For now, we judge that the package in front of us is a positive way forward, and is thus no barrier to our agreement to a Third Reading.

I should add a word about the clauses on devolution and Northern Ireland, given that, very regrettably, it was not possible to have the same level of political engagement from there as was available to the Scottish and Welsh Governments and their legislatures. Cross-UK frameworks have particular relevance to Northern Ireland, given the Government’s welcome commitment,

“to uphold the Belfast Agreement in its entirety, to maintain a frictionless border between Northern Ireland and Ireland, with no physical infrastructure”,


while ensuring that any regulatory continuity in Northern Ireland to maintain a frictionless border would not threaten Northern Ireland’s place in the internal market of the UK. The future developments of the frameworks envisaged in this package have to respect the wider demands of upholding the Good Friday agreement. We trust that will remain uppermost in the Government’s mind.

--- Later in debate ---

Obviously, if the House of Commons expresses itself strongly, we take serious note, irrespective of the Salisbury convention; but if the Commons expresses itself with small and declining majorities, which might vanish if pressed to consider further, we take serious note of that too. Furthermore, on fundamental constitutional issues, we have a responsibility to the country to defend essential rights and interests, which is precisely why the Parliament Acts of 1911 and 1949 give us, as an unelected House, a delaying power over Bills such as this one. If the Government do not give the House of Commons an adequate and timely opportunity to consider our amendments, that fact would be bound to have a significant bearing on our future assessment of the public interest.

[Lord Forsyth of Drumlean]

Does the noble Lord not think that he should be rather more honest about his motives? For example, in January he tweeted this to Donald Tusk:

“We will probably hold a referendum on Mrs May’s Brexit terms before next March, so please work on the assumption that we will continue to play a central role in the future of the European Union”.


Is that not his real agenda? Is this all not just flim-flam?

[Lord Adonis]

I very much hope that happens, and I hope that the noble Lord, being a democrat, will support the holding of a referendum on the Prime Minister’s final treaty. However, that motivation does not guide us in our consideration of these amendments. Our role is to perform our duty as a revising assembly.

Finally, I want to say a word about the right wing of the Conservative Party, which is calling for our abolition because we are not acting as the unquestioning registry office of the views of Mr Paul Dacre, Mr Jacob Rees-Mogg, Mr Nigel Farage and, indeed, the noble Lord, Lord Forsyth. I am strongly in favour of House of Lords reform. I have consistently voted in favour of an elected second Chamber; if the present crisis leads to that, it would be a great gain for the country. An elected Chamber would be much more powerful than the present House and therefore much more able to stand up to Governments such as this one, with weak and non-existent mandates but big and damaging policies.