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.