European Union (Withdrawal) Bill

Debate between Lord Hain and Lord Wallace of Tankerness

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

[Lord Hain]

I completely agree with my noble friend; he spelled it out very clearly.

At the same time, this approach would provide transparency about the areas in which devolved competence would be affected, which is sadly lacking in the approach embodied, until now at least, in the Government’s amendments. It would also enable the Scottish Parliament and the Assembly to agree to the list of retained powers—reinforcing my noble friend’s point—through the very act of providing legislative consent to the Bill. Such an approach would thus reassure the devolved institutions that the regulation-making power proposed by the Government could not be used to specify areas of retained EU law not requiring frameworks. That is a very important point.

If the schedule idea is potentially a magic bullet, why might the Government resist it? I am informed that the first argument is that it cannot be done in time for Report. I am not sure that I buy this argument; Report does not take place until well after Easter, which is many weeks away. We are told that significant work has been done on potential framework areas and the list published recently by the Government—though not agreed with the devolved Administrations, I understand—comes fairly close to defining legally which current EU law restrictions may need to be continued while frameworks are negotiated. Surely if the Government need to specify these areas in regulations, they will need to do so sooner rather than later in any event.

[Lord Wallace of Tankerness]

Perhaps I may reinforce what the noble Lord said. He said that Report stage was still some time away. I am sure that it would be possible for the Government, if the will was there, to put down a marker at that stage and, if it needed another two weeks, to come back at Third Reading and fill in the gaps. I support him in saying that in those areas where they want a UK framework a schedule could be a constructive way forward and give reassurances.

[Lord Hain]

I welcome what the noble and learned Lord has said. If it really is not possible to work up such a schedule before Report—for the reasons that he has explained, I do not see why it should be the case—might not the Government find another legislative opportunity to do so? We know that in the autumn we are likely to have to consider a withdrawal agreement implementation Bill. That might provide an opportunity, although it would be better to do it in this Bill.

The second objection that the Government might make is the need to account for unforeseen circumstances. Since Brexit appears to be a process where every stone turned over reveals yet another problem lurking beneath it, there is some validity to this argument. But if, exceptionally, a new area where a framework is required is identified even after the passage of this Bill with the proposed schedule, there is an easy solution that is wholly consistent with the approach to devolution adopted to date—namely, a power to amend the schedule by Order in Council with the express agreement of Parliament and those devolved legislatures affected. That could be included in the Bill as well.

In reality, if the Government resist this proposal, we would be right to suspect that they have an ulterior motive in wishing to press ahead with such a wide regulation-making power as that encapsulated in the current amendment, although I accept that it is about to be withdrawn. I commend to the Government the idea of putting in the Bill a list of areas agreed with the devolved Administrations—I stress, agreed—where the constraint on devolved competence will apply and ask them to consider bringing forward an amendment that does that at Report stage.