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.