European Union (Withdrawal) Bill

Lord Foulkes of Cumnock Excerpts

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

Moved by

[Lord Foulkes of Cumnock]

5: Clause 1, page 1, line 3, at end insert—
“( ) Regulations under section 19(2) bringing into force subsection (1) may not be made until the Prime Minister is satisfied that resolutions have been passed by the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly signifying consent to the commencement of subsection (1).”

[Lord Foulkes of Cumnock (Lab)]

My Lords, it is a great pleasure to move Amendment 5. I pay particular credit to my good friend, the noble Lord, Lord Elystan-Morgan, who, having thought that we were going to deal with this earlier on—as indeed many of us did—has managed to stay with us right through to this late hour. I think that that indicates his enthusiasm and commitment, for which he deserves credit.

Amendment 5, generally designed to provide consent by the devolved Administrations, would prevent the European Communities Act 1972 from being repealed until legislative consent has been obtained from the devolved Administrations. Effectively, it would give a veto to the devolved Administrations. One or two of my more unionist colleagues have been having a go at me and saying that this goes too far, and no doubt the noble Lord, Lord Forsyth—I was going to say my noble friend—might come in and say that. I am arguing this for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, which I hope, by the time we get to this, will be back up and working again as effectively as it has in the past and providing an effective voice for Northern Ireland.

I recall when devolution was introduced. I was in the Department for International Development at the time. I know the Minister is a bit younger than me and may not remember all the details—

[Lord Bassam of Brighton (Lab)]

Do not hold that against him.

[Lord Foulkes of Cumnock]

Yes, he is a good bit younger than me, Steve—sorry, I mean my noble friend. He may not remember this, but Whitehall mandarins and Ministers did not like the idea of devolution. They were losing power from their central departments in Whitehall and opposed it. However, we had strong and effective Labour Ministers, particularly Donald Dewar, my noble and learned friend Lord Irvine and others, who made sure that real powers were devolved to the Scottish Parliament. Whitehall mandarins and Ministers still do not understand devolution. They have not come to terms with the new reality that there is not just one Parliament in the United Kingdom but four and that the others must at the very least be consulted on matters that affect them.

--- Later in debate ---

[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.

[Lord Hope of Craighead (CB)]

As it happens, I have an amendment directed to Clause 11. I would have thought that there was an advantage in debating in Committee so that we can at least engage with the Minister and explain the points that lie behind the amendment. Otherwise, if the amendment is simply not pursued in Committee, we cannot come back to it until Report. Therefore, I hope that the noble Lord will forgive me if in due course I move my amendment, which is intended to be helpful. At the end of the day, I hope that the amendment that the noble Lord is pursuing today will become completely academic because the differences between the devolved institutions and Westminster will be resolved. That surely must be the aim, not to keep this sense of tension until the Bill is passed.

[Lord Foulkes of Cumnock]

My Lords, I have great respect for the noble and learned Lord, Lord Hope, and he is right on this. I will now rethink what I just said. As long as we have not deliberated finally on Report, we need on Report to have the result of the deliberations and the views of the devolved Parliament and Assemblies. The noble and learned Lord has made a good point, which I accept, and I hope that he is right that it will make my amendment ultimately redundant. No one would be happier than me if that were the case. The Sewel convention is that the UK Parliament will not normally legislate—

[Lord Warner (CB)]

I am sorry to interrupt the noble Lord in full flow, but I want to make an intervention that I hope will be helpful in reconciling his position with that of the noble and learned Lord, Lord Hope. There is a precedent for pausing legislation. During the Committee stage of the Health and Social Care Bill, which became the Health and Social Care Act 2012, there were problems with making progress and the legislation was paused. I do not know whether that idea appeals to the noble Lord, but it occurs to me that, when we get to Clause 11 and if there has been no action from the Government, it might be possible to pause consideration in Committee at that point to give the Government sufficient time to come forward with their amendments, having agreed them with the devolved Administrations. I do not know whether he finds that a helpful intervention.

[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.

--- Later in debate ---

[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.

Amendment 5 withdrawn.