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.