European Union (Withdrawal) Bill

Lord Griffiths of Burry Port Excerpts

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

[Lord Wallace of Saltaire (LD)]

My Lords, I hope that an Englishman, albeit one with a Scottish name, may be allowed to add something to this debate, because it is depressing for someone who lives in the north of England to hear a debate about how much of a privileged relationship the devolved Administrations should have with the United Kingdom Government, when the north of England is likely to suffer very much from leaving the European Union in terms of the loss of European development funds, and at the moment lacks any sort of forum for negotiation or consultation with the very centralised government of England in order to make its case. I am very conscious that the poorer parts of northern England were among those that voted most heavily to leave and that recent studies have suggested that they are also the regions that are likely to lose most from Brexit.

Amendment 227, when we come to it, addresses the question of how far a new mechanism will be needed for the central government in London to consult with English local authorities. My understanding is that the Local Government Association has been in conversation with the Government on that and that the Government have not yet come to an agreed view. I just wish to give notice that this is a very important point, politically and constitutionally, and when we come to it I hope that it will be given sufficient weight.

[Lord Griffiths of Burry Port (Lab)]

My Lords, this has been a shorter debate than the previous one and I will try to honour the Minister’s strictures earlier in the evening and limit my remarks to the Bill and to the issue before us, rather than wander into a premature debate on Clause 11 at this stage. At Second Reading, right at the beginning, while our attention was still good, the noble Baroness, Lady Evans, who introduced the debate, said that it was to be guided by two key principles, the first being the need for a functioning statute book on exit. I pause there to suggest that what I hear from Cardiff and Edinburgh is that there the devolved Governments too want a functioning statute book the day after exit, which is why we need some resolution of these matters, difficult as they may be. Secondly, she said there were to be,

“no new barriers to living in and doing business across the UK”.

We have no difficulty there. She went on to say:

“We will shortly be publishing our initial framework analysis”.


If the noble Lord, Lord Forsyth, has difficulty with the word “normal”, I promise him that I have difficulty with the word “shortly”, especially since, on 30 January, “shortly” suggested to me that we would have something before us now, but we have not. As the noble Lord, Lord Thomas, said, perhaps the amendment is born of frustration. All that time that went by without any consultation at all which could have produced something that we could be looking at, leads us to want to put in a caveat that if what has been promised does not materialise, it is serious enough for us to feel that we have to offer something quite drastic to shake people to their senses. It is in that spirit, I think especially at Second Reading, that we must look at this amendment.

The noble Baroness said:

“Noble Lords will be aware of the Government’s commitment to bring forward amendments to Clause 11”.


Those are her words, not mine. She said:

“This is a complex area”—


she would agree with the noble Lord, Lord Forsyth—

“that we need to get right, and I hope these amendments will put us on the best possible footing to achieve legislative consent”—

her words, which we echo, of course, in the amendment we are looking at—

“which remains our overarching objective”.—[Official Report, 30/1/18; cols. 1374-75.]

When my noble friend Lady Smith rose to reply to that opening speech, she agreed with those objectives without hesitation and promised that from these Benches we would want to co-operate with the Bill in order to get those agreements in place in time. But where are the amendments? How can we proceed? When will promises be fulfilled? Is it not frustrating—and it is at several stages that I have found this to be happening—that here we are, at this hour of the night, debating this matter, when tomorrow the Joint Ministerial Committee will be meeting? Would it not be lovely if it had met yesterday and then perhaps we could have withdrawn the amendment? But it must stay there until we have a bit more satisfaction than we do.

European Union (Withdrawal) Bill

Lord Griffiths of Burry Port Excerpts

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

[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.

[Lord Griffiths of Burry Port (Lab)]

My Lords, I am at a loss to know quite how we have got where we have. The labyrinthine discussions we have been involved in have not helped me to clarify any sense of where I am, either.

The noble Lord, Lord Forsyth, has just talked about a Bill proposed in Scotland that has been judged by the Presiding Officer to be illegal; I think he said it was beyond competence. The law will no doubt run its course and somebody will make a judgment as to whether it is legal or illegal at that stage. For all that, in Wales it has been judged to be competent and it is well under way. So the concern in both cases, however we define the words, is that when all is said and done we will be left with a mess—and continuity has to be guaranteed because that is the basis on which this debate and the Bill are posited. We simply must have a snapshot moment on that date so that continuity in law can continue.

If we are not to reach the agreements that the noble and learned Lord, Lord Mackay, is so desirous of—indeed, who can be for anything else?— there has to be some modus agendi to take us through the impasse, because it will be an impasse. Why could we not have thought of adding the words of the amendment about exempting the need to modify the Scotland and Wales Acts? Why could we not have put in, understood, assumed or intuited that consulting the devolved Governments was a natural, normal, everyday breathing kind of thing to do? I cannot really understand why we are in this mess. You cannot judge for two devolved Governments without having agreements or consents from them.

I have made the case already in debate, and the last thing I am going to do is add to the time taken to resolve this matter this evening, but what worries me are the parallel narratives coming out of the discussions that have taken place so far. The press has been full of articles suggesting that the Chancellor of the Duchy of Lancaster has pulled off some kind of a coup—that there have been magnificent and radical developments. But just this morning I got an email from Wales, from people who have been discussing the amendments. It says quite clearly that the basis on which such amendments have been prepared, “while representing a move in the right direction”—we rejoice at that—“was not sufficient to secure our support”. They made suggestions as to alternative ways that their outstanding concerns could be addressed. The conclusion of the communication I am looking at is: “We must keep on talking”. They say that the Government gave a promise that they would not press to a vote the amendments that are to be put before them—in other words, the amendments will be available for discussion. I hope that the Minister will be prepared this evening to repeat the assertion contained here, which was given to the parties in the discussions with the devolved Governments.

European Union (Withdrawal) Bill

Lord Griffiths of Burry Port Excerpts

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

Moved by

[Lord Griffiths of Burry Port]

302B: Clause 11, in subsection (2), in inserted subsection (3)(a), leave out “consult the Scottish Ministers” and insert “obtain the consent of the Scottish Parliament”

[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.

[Lord Stevenson of Balmacara (Lab)]

It was the Council of Ministers.

[Lord Griffiths of Burry Port]

I beg your pardon. I think the mistake is evidence of the fact that I am not qualified to answer that particular part of the noble Lord’s question.

[Lord Hain (Lab)]

With due respect to the noble Lord, Lord Forsyth, not for the first time he is wrong about this. Welsh Ministers, for example, and Scottish Ministers often attend the Council of Ministers with the permission of our own UK Government to make sure that their voice is heard. It has been done on a collaborative basis and is nothing to do with his anti-Europeanism: it is actually about how devolution has worked.

[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”.

[Baroness McIntosh of Pickering (Con)]

Perhaps I could help the noble Lord. In the circumstances my noble friend Lord Forsyth expresses, consent is given when the devolved legislature applies the directive and implements it there.

[Lord Griffiths of Burry Port]

I am very grateful to the noble Baroness. Because I am where I am, I am equally certain that the points being raised will be addressed later in this debate.

What the Government have brought forward at this late stage is too weak. If the purpose is, as the Government claim, simply to give breathing space to negotiate new UK frameworks, which is fair enough, where it is agreed by the devolved Administrations that these are necessary—that is an important part of it—then we should be sure that the devolved legislatures agree that these are indeed the policy areas where restrictions are needed. It does not seem to be very difficult to come to these conclusions. Indeed, there has been no attempt to engage with the proposals put forward by the Welsh Government in their policy paper Brexit and Devolution some nine months ago, arguing for a system which would address precisely this issue. Perhaps the Minister could explain this egregious omission.

Over the last week, I have come across an intriguing poem by Waldo Williams, one of the dominant Welsh writers of the last century. He asks a series of questions and gives succinct, almost gnomic answers to them. As I conclude my remarks, I cannot forbear from quoting one couplet in Welsh, in order to forestall an intervention by the noble Lord, Lord Forsyth—though he might surprise me yet again. I will quote it with a translation by the noble and right reverend Lord, Lord Williams of Oystermouth—I do not want to frighten the Hansard horses. Just listen:

“Beth yw trefnu teyrnas? Crefft

sydd eto’n cropian”.

That is:

“What is it to govern kingdoms? A skill

still crawling on all fours”.

We must urge the Government to stand up, to withdraw their amendments and to go back to the discussions with the devolved Administrations before returning with an approach which gives an appropriate role to the devolved legislatures to agree the areas—indeed, perhaps to go further and to put a list of frameworks into a schedule to the Bill—in which new restrictions on their legislative competence will operate. This may well turn out to be a test of whether the Government have the competence to lead us out of the mess they have so tidily put us in. I wish to move the amendments.

European Union (Withdrawal) Bill

Lord Griffiths of Burry Port Excerpts

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Griffiths of Burry Port (Lab)]

My Lords, my noble friend Lord Foulkes described this as a futile Bill. He may be right, but it is the Bill that we are discussing. Similarly, many quite prolix arguments have been made about a number of matters that are of great importance but are not directly a consequence of the amendment before us. If we look at that, we might need to do so in a particularly poignant way.

First, I commend the terrier-like activity and concerns of the noble Lord, Lord Wigley, who has worried away at this subject like a dog with a bone over 11 days —it astonishes me that there is still some marrow in the bones, but it has been necessary. Others have talked with regret about the fact that other parts of the United Kingdom have not received the same attention that Wales, Scotland and Northern Ireland have. We can all regret that, but we can see exactly why they have received more attention, because the Bill as drafted dealt with the devolved Governments’ established institutions in a way that many people in authority felt was not fair, or just, or constitutional or whatever. Consequently, we needed to deal with the irregularities that the Bill generated in respect of these institutions, and that is what we have spent quite a lot of time doing.

I look at what has happened in Wales since 1997 and recognise the building of confidence in the institutions that now govern the Principality. I see the three different ways in which powers were gradually passed over to the Assembly: first, in a hand-me-down sort of way from this Parliament; secondly, by statutory instrument; and, finally, only very recently, through primary legislation-making powers.

I am delighted to see the noble Lord, Lord Bourne, across the Chamber, given the constructive part he played, as the leader of the Conservatives in Wales at that time, in bringing about the referendum and the agreed settlement that gave us the Assembly as it is. Let there be no doubt about it, the Assembly in Wales began in a situation of chaos—with a plain piece of paper on which many potential plans and outlines were scribbled as the various parties for power struggled between themselves to find the right shape.

At the minute, I am dealing with the family of the late Lord Richard of Ammanford, because I will be officiating at his funeral. As I look at his life, the interesting thing to note is the part played by the Richard commission, which put before the people of Wales a number of steps, just about all of which have now been incorporated into legislation which I believe will soon come into being and will govern affairs henceforward—a posthumous tribute to him. The important thing was that it commanded the confidence of all parties in Wales. Those who have typified the contribution of the Welsh voice to this debate as being merely a mouthpiece for Labour in Wales are wide of the mark. The widespread support for the institutions is acknowledged—and the part played in that by the noble Lord, Lord Bourne, has to be recognised.

Here we are on the 11th day of Committee, but this is not the end of it—for goodness sake, there is a lot of entertainment yet to come. Where else would I get the kind of discussion that we have enjoyed about the Queen’s printer? Was it dot matrix or what? Because Her Majesty likes Tupperware, perhaps she likes old-fashioned ways of printing—I do not know, but it was a very illuminating and enlightening debate. We have had esoteric and philosophical principles adduced, constitutional and political positions established and fought for, and all the rest of it. At the end of the day, is it not wonderful that, with all these things in the ether—all this magnificence of idea and thought—it is money that constitutes the core of the amendment before us? We heard reference earlier in the debate to the practical arrangements that we need to face—well nothing is more practical than money.

Wales can legitimately point to the difference between the kind of economic activity that it was able to enjoy and take forward while administered, as it were, from Westminster and the kind of support that it has received subsequently because of membership of the European Union. We should hear from our debate the plea to distinguish between the infelicities of a Barnett formula which applied crudely to Wales and what will happen if it is applied crudely to Wales after we come out of Europe—if we come out of Europe. It will lead once again to a cap-in-hand approach from Wales to its financial masters here in London.

“Needs based” has been a tectonic plate, it has been a quantum leap to go from the Barnett formula to that. The needs of some of the run-down and rural areas in Wales are very desperate indeed. So I hope that we have heard, through all that has been said, the need for us to look again at the principle of how to financially support this institution.

The word “consent” was used earlier and was disputed greatly. Consenting adults is a concept that I am very familiar with. I would have hoped that instead of consent being interpreted, as it has been, as requiring a level of support that cannot be given for legal and other reasons, we would remember that consent between consenting adults is reciprocal. I do not want to think that the devolved Governments are holding a gun—a veto power—to the head of the United Kingdom Government. But Wales feels that, in the way the Bill is drafted, that is exactly what the United Kingdom Government are doing to Wales: holding a potential veto to its plans, which in certain circumstances they might use.

It all drives us back to that one word which the noble Baroness, Lady Bowles of Berkhamsted, mentioned this morning: trust. There has to be trust. How we rejoiced at the possibility that framework arrangements—the list of 24 has been referred to in previous debates—might be written into a schedule to the Bill, as amended, so as to give confidence to the people in Wales that there is a shape going forward. Some sort of consent to that list could indicate all that is necessary for us moving together as partners. The Government in Wales do not need to be treated in an infantile manner in these matters. Trust is possible, and in my opinion it is necessary.

We can read for ourselves all the details in Hansard, but this amendment has put out the case. Once we are through this process and into the legal situation that we will arrive at, on the shores of Canaan, having have crossed the river Jordan—

[A noble Lord]

Oh!

[Lord Griffiths of Burry Port]

I was hoping that that was an intervention—I am better prepared for interventions than I was last time.

I simply hope that, when all is said and done, the fact that this is about money—even if the guarantees and figures cannot be given in a debate such as this—will indicate the desperate need felt in Wales for some support and encouragement. There must be a promissory note for adequate support that will be met once we are no longer in Europe for the activities that up to now Europe has helped us with so generously.

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank the noble Lord, Lord Wigley, for tabling these amendments and all who have participated in what has been a free-wheeling, free-ranging debate covering an awful lot of important areas, some which I perhaps in all fairness could not have anticipated when I read the amendments.

The noble Lord, Lord Griffiths of Burry Port, is absolutely right that in debating something geared specifically to Wales we should recognise the enormous contributions made by Lord Richard and Lord Crickhowell, both of whom sadly died recently. Sometimes in similar ways but in differing ways in other respects, both made enormous contributions in Wales and to devolution. Lord Richard is certainly massively missed. He made an outstanding contribution on the Richard commission in relation to devolution but in so many other ways in public life as well.

I will first turn to the amendments and then try to do justice to the many wide-ranging points made during the debate. The noble Lord, Lord Wigley, was described as “terrier-like” and as getting the last bit of marrow out of the bone. As someone who has often broken bread with him, I thought that conjured up an extraordinary vision of him. For many years, he has certainly fought hard for many issues in public life, not least for Welsh principles and rights, both here, in the Commons and in the National Assembly for Wales. I think that is acknowledged across the political divide and by people with no politics at all. He continues to make an extraordinary contribution.

The amendments would require the United Kingdom Government to produce a report outlining how EU funding provided to Wales will be replaced once we leave the EU. They would mean that the entire Bill could not be brought into force pending the publication of such a report.

While I understand the desire for as much clarity as possible—I shall say something about cohesion funding shortly—I do not consider such a step necessary in view of the considerable funding assurances the Government have already made to all parts of the United Kingdom. I recognise that there is an issue here that goes broader than Wales. There are certainly issues relating to Cumbria, as has been mentioned during the debate, Cornwall, Merseyside, Scotland and so on—this affects many parts of the United Kingdom, although the amendments are for understandable reasons addressed to the needs of Wales, which I can strongly identify with.

The agreed implementation period to the end of 2020 will see the UK participate in 2014 to 2020 EU funding programmes until their closure. In the case of some of those projects, that will mean the end of 2023. It will not be beyond 2023, but it could mean funding for those programmes that remain open during that funding programme until the end of 2023. The projects would receive their full allocation of EU funding during that period—that is an agreed position as things stand.

This approach ensures that projects are not disrupted and no community misses out. The noble Baroness, Lady Humphreys, was there at the start of the Assembly as were the noble Lord, Lord Wigley and I, and saw the benefit of such funding—I fully recognise many of the examples that she gave. In the area that I represented in west Wales, there were massive benefits. No community would miss out. British businesses and potential investors have certainty and stability up to the end of projects running to 2023.

In the longer term, the Government have further committed to maintain cash farm funding until the end of this Parliament, taking us beyond 2020, which provides the sector with more certainty than in any other part of the EU as things stand. The Government will also create a UK shared prosperity fund to reduce inequalities between communities across the United Kingdom and deliver sustainable, inclusive growth. The Government intend to consult on the design of this United Kingdom-wide fund during 2018. That will of course, quite rightly, mean engagement with the Welsh Assembly through the Welsh Government and, similarly, the Scottish Parliament through the Scottish Government and with others who would expect to be consulted in that process.

European Union (Withdrawal) Bill

Lord Griffiths of Burry Port Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Beith (LD)]

My Lords, these are very helpful amendments, in that they reassert respect for the constitutional importance of the devolution legislation. They are part of the context that we will return to next week when we try to sort out other devolution aspects of the Bill—perhaps with greater ease in relation to Wales than Scotland, but that is for another day. Some of them are technical and tidying-up, and have been achieved with agreement. All that is welcome.

[Lord Griffiths of Burry Port (Lab)]

My Lords, it falls to me to echo what the noble Lord, Lord Beith, has said, and to thank the Minister for moving the amendments and for the explanations that he has given. I hope he will agree to convey to his departmental colleagues our congratulations on their very hard work, the results of which are now before us. Of course, we should recognise that this is the calm before the storm, in the sense that Clause 11 is coming along. If there are some very simple technical amendments here, there are 16 pages of amendments to Clause 11, so there will be fun and games when we get to it. Still, as the noble Lord, Lord Beith, has said, this respects the devolution arrangements between us.

I wonder if noble Lords will be patient with me if I use this occasion to express my gratitude for the work of Carwyn Jones, the First Minister of the Welsh Assembly, who has announced that he intends to stand down. The steadiness of his hand on the tiller, and indeed his involvement in the discussions that have yielded these amendments, has been considerable. Wales, its parliament and the people of the UK owe him a great deal, and I would like to place this short tribute on the record.

So I think we are sitting pretty with this one. I know King Henry VIII was a Welshman, and he might even have voted with the Government on this one too. Without further ado, we have no problem with this at all.

European Union (Withdrawal) Bill

Lord Griffiths of Burry Port Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I am grateful to the noble and learned Lord for his explanation of these technical amendments. Can he say whether there is agreement among the devolved Administrations and the UK Government on these amendments?

[Lord Griffiths of Burry Port (Lab)]

My Lords, at last we have reached this stage, although I find it a little off-putting that we are coming to consequential, technical matters before we look at the meaty issue; but that will come, as was said.

I would like to pay the respects of those on our Benches to the serious way in which the Government have contributed through the joint ministerial group to the success of the proposals, and thank them for bringing them to us now. I would also like to thank Mark Drakeford from the Welsh Government and Mike Russell from the Scottish Government for the part they played, even if the latter has thus far been unable formally to sign up to the inter-governmental process. As the Minister said, we are going to discuss Clause 11 and neither of us can wait for that. It is coming in more detail later this evening. However, we on these Benches recognise and appreciate the progress that has been made. We have come a long way since the Bill was published and it is against that backdrop that this and subsequent groups of amendments should be considered.

The Labour Party has always been the party of devolution. While we will be watching the Government’s treatment of the devolved Administrations very closely throughout the Brexit process—that is our job—we recognise the genuine progress that has been made and welcome the amendments in this group. They allow United Kingdom and devolved Ministers jointly to exercise powers in Schedule 2 in order to make provisions that could not be made by a devolved Minister acting alone. This clarifies the use of so-called composite instruments, as the Minister said, and we hope paves the way for collaborative working between the devolved Administrations and the UK Government.

Other amendments in the group improve the position regarding ultra vires provision within instruments made under Schedule 2. I believe that the devolved Administrations previously raised concerns with the Government as to whether the courts would permit those parts of an instrument that were within competence to remain law. We are glad that Ministers and officials have responded positively to the appeals from the devolved bodies and that the amendments provide greater clarity for all involved. The group amounts to just one piece in the jigsaw puzzle. I usually start my jigsaws with the edge pieces. This looks like putting a piece in the middle and working around it in due course. It is a piece that these Benches are happy to support.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord, Lord Griffiths, and note his comments. The amendments will provide not only clarity but a much needed flexibility when it comes to the application of the schedules.

With respect to the point raised by the noble and learned Lord, Lord Wallace of Tankerness, my understanding is that both devolved Administrations were content with the proposals. Indeed, much of the force for the first group of amendments came from them. I hope that satisfies noble Lords.

--- Later in debate ---

[Lord Adonis]

My Lords, I am not sure that it is permissible for an English Peer to intervene in this debate. We have been going for two hours six minutes on Scotland. Earlier, I think we went on for two hours and 57 minutes on Northern Ireland, which reinforces one of the strongest impressions that these debates on the EU withdrawal Bill have left on me, apart from the tragedy of the withdrawal from the European Union itself: the lopsidedness of our constitution.

The United Kingdom is a state of 63 million people, of whom 53 million are in England. The noble Lord, Lord Thomas of Gresford, said earlier that if Scotland were an independent state, it would be larger than 10 EU states. But if England were an independent state, it would be larger than 24 EU states. It would be fourth in the EU and the separation from Scotland, Wales and Northern Ireland would make a difference of only one place in its ranking: it would be behind, rather than in front of Italy.

I only make these points because it is very clear to me that the future constitution of the United Kingdom is going to become increasingly debated and contested, particularly if we leave the European Union and one of its major existing planks is wrenched away. It is also clear to me that one of the reasons why we may be leaving the European Union—there is still a lot of water to pass under this bridge over the next 11 months—is that in England, politicians, particularly in the Conservative Party, which is the dominant political party of England now and historically, have huge difficulty with the notion of sharing power and of different tiers of government to which power is distributed.

By a very painful process, which has been graphically exhibited by all the procedures that have had to be gone through in this Bill—legislative consent Motions and all that—over the last two generations we have managed to reach an accommodation with Scotland and Wales which has enabled devolved government to be introduced. It was extremely painful. It took two lots of referendums, in the case of Scotland and Wales, to do it and we all know the difficulties that there have been in Northern Ireland. In England, we have not even begun seriously to go through that process of sharing power and establishing new tiers of government, with the partial exception of London.

London is very interesting because, like all the metropolitan authorities, it had a long-standing authority, the Greater London Council, which had previously been the London County Council for the best part of a century, but when it diverged from central government policy in the 1980s it was abolished, though it was re-established afterwards. However, that is the only real exception in terms of an authority with significant power in England. Attempts to establish regional assemblies have failed. We are still struggling in the early stages of establishing mayoral authorities but, significantly, the mayoral authorities outside London are partial and weak, and in many parts of the country it is still not even possible to devise what they are.

I simply put down as a marker—it may be that we continue this debate on the next group of amendments—that this is going to be an increasingly big and problematic issue for us. Indeed, if Brexit is accomplished in the next 11 months, because the unitary state of England, which effectively runs the UK, will be even more powerful in its own sphere than it is now because it will not even be sharing any of its sovereignty and power with Brussels, then I suspect this is going to become a still more difficult issue to address in due course. I was very struck by the noble Lord, Lord Bruce, mentioning federalism. At some point this issue will have to be grasped, but at the moment no one has the faintest idea how England would be represented and be able to exert its proper role within a federal constitution. I cannot see that happening any time soon.

I note that the noble Lord, Lord Wigley, has an amendment coming up. The noble Lord has played a complete blinder through these debates. I have to say that Wales has been spectacularly well represented—in his person, for a good deal of the time, with a bit of help from one or two other noble Lords. If England had had a voice as powerful as his in this Chamber, I think we might have got a federal UK with a Government and Parliament of England a long time ago. He is doing a spectacularly good job.

I notice—this is very telling—that the noble Lord’s Amendment 92A on the Joint Ministerial Committee makes no reference whatever to England. The JMC is about the Government of the UK and then Scotland, Wales and Northern Ireland. That sums up the huge constitutional deficit we have in the UK at the moment, which is the government and proper representation of England within the UK. I suspect that this issue will increasingly dominate our politics if we leave the EU.

[Lord Griffiths of Burry Port]

My Lords, we come to the conclusion of this debate on Clause 11. Once again, it behoves me, I feel, to express appreciation for the very hard work and the deep diving that has been done by all those who have produced the state that we now find ourselves in. In presenting my concluding remarks, I want to set out one or two reasons why the party I belong to here, the Labour Party, has been more than happy to give its assent to the intergovernmental agreement—that is, the statement that culminates from the various strands of thinking that have gone into the making of it. For someone who is new to political exercise, and who was always taught that politics is the art of the possible, this seems to represent as good an illustration of that as I could wish to find.

I should like to set out why we on these Benches support the government amendments now. There are at least five reasons, and I will be very quick about them because it is a late hour already. As the Welsh Labour Government have recognised, so we want to confirm that this package represents a solution that protects devolution, which is very important, as fully as possible as we grapple with the myriad consequences of Brexit. First, as we see with the amendments in this group, it confirms the inversion of the Clause 11 brought before us by the Government in Committee. The original proposal would have retained all returning EU powers over devolved policy areas at Westminster and allowed only Ministers of the Crown to release them to the devolved institutions when they chose to the extent, and the timescale, that they alone determined. That has been reversed. All powers over devolved policy areas, except those in areas where it is agreed that UK frameworks are needed, will be held in Cardiff and Edinburgh and, at the appropriate time, we hope and trust, in Belfast. When the EU law restriction ends, that means the devolved institutions will be able to exercise them without the current requirements to operate within those EU frameworks. In these areas, devolved competence will increase. This model is therefore wholly compatible with the reserved powers model embedded in the Scotland Act and the Wales Act 2017, whereby everything is devolved except things specifically retained at Westminster.