European Union (Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Wigley]

My Lords, I am delighted to support the amendment moved by the noble Lord, Lord Thomas of Gresford, and to speak to the amendment tabled by the noble and learned Lord, Lord Wallace, both of which I support. I do so having listened to every moment of the debate in the National Assembly yesterday and to large parts of the debate in the Scottish Parliament yesterday evening. What came through loud and clear was the incredulity—across party lines, even though the National Assembly for Wales accepted the agreement reached by the Minister, Mark Drakeford—on the very point touched on in the amendment from the noble Lord, Lord Thomas, namely that consent can mean consent or that consent is refused or consent has not been approved. For consent to be interpreted in that way was just unbelievable to Members there, and there was some doubt as to whether the Minister was carrying his troops with him. Indeed, Mark Drakeford himself was clearly not at ease in defending the agreement that he and the Welsh Government had approved. In his closing speech he said:

“Of course we should be ambitious for even more ground to be gained, and we are too. And I said in my opening remarks: there is more that we want to achieve. We have ambitions beyond the agreement”.


The fact is that a form of words has been reached, which are in the Bill, but they do not succeed in getting hearts and minds behind them. When one is going to something as fundamental as this agreement, which will need to be tested when real issues arise, there needs to be buy-in from all parties. Will the Minister therefore confirm that further discussions may take place with Mike Russell and his Scottish ministerial colleagues? If progress is made there to move the settlement to a form of words that is more acceptable, will the Minister confirm that that form of words would be equally available for Wales and Northern Ireland and not just be a reward for Scotland for standing out against the decisions that have been taken?

What hit Members in both the Scottish Parliament and in the National Assembly was the implication of these agreements when it comes down to the nitty-gritty. The element that stood out most clearly, in both debates interestingly enough, was public procurement. As Dr Dai Lloyd, an Assembly Member in Cardiff, spelled out, it could mean privatisation by the back door for the National Health Service. That came as quite a shock to many Labour Members, and that very point was made in the Scottish Parliament. In his closing remarks, the Minister, Mike Russell, mentioned that public procurement that leads to probably hundreds of thousands of jobs in Scotland would be affected. As the reality of the settlement hits home, there is a growing unease. We should be heading that off, and if we cannot do so tonight, the opportunity should be taken by the Government in another place, where the new clause can be amended by Members of Parliament. I believe that such amendments are needed.

One consideration that they could perhaps apply themselves to is one not covered by this amendment but which could be covered by further amendments in another place. In bringing regulations that will potentially overrule what the Scottish Parliament or the National Assembly for Wales would decide, or the attitude they might take towards certain proposals, if it is done by instrument through both Houses of Parliament, that lays the whole process open to the fact that the solution is being imposed. Perhaps the Minister and the Government could consider the possibility of dealing with those instruments in the Scottish Grand Committee and the Welsh Grand Committee by Members of Parliament from the two countries, so that at least there would be a feeling that people from Wales and from Scotland are dealing with solutions that are so important.

I personally believe that there need to be changes in the Bill along the lines proposed by the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Wallace. I look forward to the Government’s response.

[Lord Kerr of Kinlochard (CB)]

My Lords, I will speak in support of these amendments. I do so with great trepidation as a non-lawyer, knowing that the noble and learned Lord will be marking my homework—and doing so in front of the noble and learned Lord, Lord Hope.

The noble Lord, Lord Thomas of Gresford, is completely correct to draw our attention to the fact that a constitutionally significant moment has arrived. He is quite right to repeat the questions that he asked before. Whether one considers it a good thing or a bad thing, what happened in Edinburgh yesterday was certainly a big thing—and it could have very serious repercussions.

I agree with the noble and learned Lord, Lord Wallace, in wanting to bring out the principles agreed in October, and I am grateful to him for reading them out. But it seems to me that much is going to depend over time on how they are interpreted. Will they be interpreted narrowly or widely? The two key common frameworks are to enable the function of the UK internal market and to ensure that the UK can negotiate and implement international trade agreements. How are these principles going to operate?

--- Later in debate ---

[Lord Foulkes of Cumnock (Lab)]

The noble Lord is very well-meaning in what he suggests. However, is he aware that Mike Russell actually agreed to the same proposal from the United Kingdom Government that the Welsh Government agreed to? He went along with that and then went back up to Scotland and was told by Nicola Sturgeon that it would not be approved because she did not like it. She runs it: not Mike Russell. How on earth can the United Kingdom Government—as noble Lords know, I am no fan of the United Kingdom Government on most things—legitimately deal with someone who says he goes along with it and then goes back up to Edinburgh and gets overruled by his First Minister?

[Lord Kerr of Kinlochard]

The noble Lord probably knows more about it than me. I only know what I read in the UK press, which is almost nothing, and in the Scottish press. But my point is a slightly different one. I thought I would be attacked by the noble Lord on slightly different grounds. I want SNP representation in this Chamber. On previous occasions the noble Lord has reminded me that it is entirely the theology of the SNP that prevents it being represented in this Chamber—and he is completely correct about that. I do not understand why the SNP, represented in the other place, adopts towards this House the policy that Sinn Féin adopts towards the other House. I do not understand it at all. The onus is of course on members of the SNP to change their minds if they wish to take part in our debates, but I would ask the Minister to say what some of his colleagues in the past have said: if SNP MPs were to change their minds, the Government would be delighted to see them represented in this place.

[Lord Mackay of Clashfern]

My Lords, it is certainly not my purpose to say or do anything that makes it more difficult to reach an agreement with the Scottish Government—that is the last thing I want to do. But I want to say, in answer to one of the points that the noble Lord, Lord Thomas of Gresford, made, that the provisions that we are talking about in relation to the frameworks are provisions in which the Scottish Parliament does not have jurisdiction because the framework is for the United Kingdom as a whole. Therefore, it is not within the jurisdiction of the Scottish Parliament. That is why I have said so far that the consent of the Scottish Government is not necessary at that stage. But I would like to see a consent to the arrangements: then they can go through pretty well formally in the Parliament of the United Kingdom.

I had understood from Mr Russell from the early days—I will say a little more about this when we come to considering the Bill passing, which I hope we will do in due course—that the Scottish Government have said that they require to consent to the Parliament of the United Kingdom passing these. But, so long as their views are fully heard by the Parliament of the United Kingdom, that is the correct way to approach this. The legal competence in this matter lies with the Parliament of the United Kingdom. Therefore, technically, consent is not necessary from any of the devolved legislatures: otherwise, one of them could make these regulations impossible for the others. So consent at that stage is not necessary. It is highly desirable, which is why I was trying to concentrate on an arrangement under which it should happen.

I think that I am right in saying that the memorandum provides that, in effect, the Sewel convention will apply before these things are put to the United Kingdom Parliament. As I said before, the amendment and memorandum that the Government proposed went slightly further than I had suggested, by giving the opportunity for the dissenter, whichever Government it was, to put their point of view in their terms before the Parliament of the United Kingdom before it was considered.

So far as the question of consent is concerned, the technical question is: what is required? The intention of the legislation so far is that a decision has to be taken by each of the devolved Governments before anything is put in this connection before the UK Parliament. In other words, every opportunity is given for them to reach consent in their committees. I would like to see this settled, but the decision as to what is required is a legal decision, which, so far as I am concerned, does not require as a matter of law the consent of the Scottish Government—although that is very desirable. I am entirely in favour of doing everything that we can to deal with these matters.

Talking of papers going out and so forth, I saw an article about papers dealing with fisheries. It said that the document contained the idea that the UK Parliament can deal with fisheries in the world. Of course, we do not need to have discovered that in this paper, because it is in the reserved matters in the original constitution of 1998. The fact that the UK Government and the UK Parliament are responsible for international relations is well known; it is not a discovery one makes from a recently leaked document. That sort of thing does not help the atmosphere.

I certainly support strongly all that has been said about doing our level best to get the best atmosphere with the Government of Scotland as well as with the Government of Wales—and I would love to see a Government in Northern Ireland as well.