European Union (Withdrawal) Bill

Lord Lang of Monkton Excerpts

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

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I have been very critical of the way that both the Government and the Scottish Government have conducted these discussions over the past 12 months, but I want to start by being very positive in your Lordships’ House this evening. I think the Government have moved considerably; I think the reversal of the principle behind the new clause is very welcome indeed; and I think it is now very likely that we are close to an agreement on the different categories of responsibility and competence in the different sections. I very much welcome the assurances from the Minister in the earlier debate that legislative consent Motions will be required for any primary legislation that would enact these new frameworks. I also welcome the tone of the debate tonight and the fact that the Minister is welcoming the different amendments that have been put forward and the ideas that have been suggested and is willing to look at them with his team over the coming weeks, before we get to the stage of having to vote on any specific proposals.

However, I want to make one specific point, in the interests of brevity and concentrating on what I think is most important here this evening. The way in which these frameworks are established is perhaps critical to getting the agreement to the stage of the frameworks in the first place. Whatever opinions each of us might have about the taking back of control to the UK from the European Union, in that exercise of taking back control to the UK I think the Government could be much more ambitious in setting out a new way of working inside the United Kingdom. Frankly, the joint ministerial committees have never worked, from the very first year. They were chaired by UK Ministers; they were sometimes consultation exercises; they were more often a brief, cursory discussion around a table. They were very occasionally brought together to reach agreement on a specific item, but those agreements were always much better reached in other forums or bilaterally. Tony Blair and I both tried to get rid of them. We did not succeed, but I wish that we had.

The Government need to think way beyond the joint ministerial committees. Perhaps the noble and learned Lord, Lord Mackay of Clashfern, has started to point us in the right direction for a way in which we can build a new relationship among the four Governments. What we need to look at is not a joint ministerial committee but a new form of ministerial council within the United Kingdom that might perhaps have a rotating chair, rather than being chaired by the UK Secretary of State, and that would have some sort of procedure for resolving disputes. It obviously could not use qualified majority voting, and it might or might not have a veto, but at least each case would be agreed properly among the different sets of Governments. If the Government could do some radical thinking on this over the next few weeks, before we get to the stage of finally voting on this Bill and agreeing the way ahead on frameworks, then I think they would be on much firmer ground to get agreement on the individual competencies and then to get consent. Although not necessarily required legally or constitutionally, it would be better for the United Kingdom if consent is acquired for this Bill and for the subsequent actions that will take us forward to the next steps. I urge the Government to think more ambitiously about the way these frameworks will look in the future, while I welcome the steps that have already been taken to put in place restricted time scales, which might yet include a sunset clause—that might be very wise—to be clear about the reversal of the principle; to devolve things unless they have to be reserved; and to be willing, tonight, to listen to all the amendments.

[Lord Lang of Monkton (Con)]

My Lords, after roaming around the various amendments to the government amendment, I would like to steer us back to the government amendment itself, which I support and which I hope will form a pathway to getting this matter resolved. I am afraid my remarks will be mainly focused on Scotland, where the battle has been fiercest, but I will refer to the other devolved Administrations in the context of the generality.

We have got here by a tortuous route of JMC meetings, consultations, arguments and a lot of delay. I acknowledge the willingness of the Government, in particular, to try to follow this approach of constantly being willing to participate in discussions and consultations. Much reference has been made in earlier debates to the spirit of devolution, to which the intergovernmental relations paper published by the Constitution Committee some time ago referred—indeed, we argued for many things, including some just referred to by the noble Lord, Lord McConnell. Given where we are in this farrago of committee meetings and consultations and rebuffs and demands and arguments about “consent” and “consult”, it is a relief to have an amendment to the Bill which we can debate and, I hope, remove the deadlock.

I prefer to start by reference to a component of the debate that seems to have been notable by its absence in discussion until my noble and learned friend Lord Keen raised it in the last debate, namely the Sewel convention. When the Scotland Act 1978 was going through Parliament, I asked my lamented and good friend Lord MacKay of Ardbrecknish what it was all about. It was not called the Sewel convention at that stage. He said, “Oh, it’s a good-will measure. When we and the Scottish Government both want to legislate on the same subject, we’ll offer to do it for them to avoid duplication”. If only. The spirit of devolution may have been alive then, but it has taken a battering since. The finished version has turned out a bit differently. Far from being a good-will gesture to foster harmonious relations, it has become a battleground on which Parliament seems under constant challenge, with one visit already to the Supreme Court and another allegedly brewing. That is not the spirit of devolution.

The Government deserve credit for endless trust and courtesy, but their patience has gone unrewarded. It seems that they are left with no alternative but to act as they now propose. The noble Lord, Lord Thomas of Gresford, who I am glad to see in his place, said in an earlier debate that it is a pity that devolution has got tangled up with the Brexit Bill. I absolutely agree with him—I wish they could have been taken separately—but it obviously is not possible. We are where we are. In the much larger arena of the Brexit negotiations, the challenge of this Bill is full of difficulties and complex issues. No solution is easy, but the Government have to make progress to keep to the timetable. In that context, I think reference to the Sewel convention makes clear that Parliament can legislate on devolved matters. That is an important point to remember and one that could have been prayed upon at the very outset as an alternative route to securing a satisfactory conclusion. Of course it is not something to do lightly, but we in the devolved Administrations need a solution. The word “normally” offers a key to this. There can surely be nothing less normal in the world of law-making than legislation to retrieve to our shores from the European Union over 40 years of legislative activity against a tight deadline and in advance of the moment of transfer—a retrieval that is vital to the maintenance of the rule of law as Brexit takes place. If that is not abnormal as an event, I do not know what is.

The Scotland Act and the Wales Act, as amended, and the convention are the nearest we can get to a stable base on which the devolution settlements can have some hope of harmonious survival, provided all parties respect that base. Enoch Powell’s dictum that power devolved is power retained has to prevail or the centre cannot hold, but sovereignty can be courteously delivered and received. The Government’s record on that is good. The Bill respects it and the guarantees that the Government have given. It specifically guarantees that no existing devolved power will be changed. Everything already devolved stays devolved. The area of dispute is a narrow, temporary and reducing one. As the Government’s amendment concerning EU powers being brought into the UK for the first time demonstrates—under the EU treaties, those powers must be transferred to the nation state in the first instance—the vast majority will go straight through to the devolved Administrations. Only those powers temporarily reserved that affect national frameworks, on which the devolved Administrations reached agreement in principle as long ago as last October, will be frozen en route until the frameworks can be decided upon. My noble and learned friend the Advocate-General covered that matter very effectively in his speech in the previous debate.

I respect the principles advanced by noble Lords and their sensitivity over matters that they point out are devolved, but there are other factors that again, in the spirit of devolution, could be deemed worthy of some movement by the devolved Administrations. These competencies and my noble and learned friend’s speech were very helpful on this—indeed, it makes my own speech almost redundant from now on, but I will make it anyway. These competencies coming home from the European Union were not ours to devolve before and do not necessarily fit in under the headings of what is claimed as devolved. They were not ours to devolve before; they are in many ways new and additional and reflect the changed legislative priorities that have evolved over the past 40 years. I just give one simple example of that change in agriculture: 40 years ago, we had a Ministry of Agriculture; now we have a Department for Environment, Food and Rural Affairs—a very much changed animal. Virtually all these new powers will as soon as possible end up with the devolved Administrations.

I do not know how the Government could do more without jeopardising their obligations to the United Kingdom as a whole. This Parliament is the only one that can negotiate the Brexit deal—the outcome will after all form part of an international treaty—and this Parliament is the Parliament of Scotland, Wales and Northern Ireland, as well as of England and the United Kingdom. I sometimes think that Scotland’s First Minister occasionally forgets that the Prime Minister is also her Prime Minister and that the Westminster Government—as the SNP derisively refers to us, as though we were a foreign power—are also Scotland’s Government as well as that of the other parts of the UK. It is the Prime Minister who can protect the First Minister from herself by ensuring that Scotland remains in the UK, as its people decided only three years ago, and thus in the United Kingdom’s single market, which is the mainstay of Scotland’s economy. As I think all your Lordships now know, it takes four and half times more exports than the entire European Union does.

Yet still they rage against the light. The intransigence shown by the Scottish Administration was always likely to emerge. I diverge here from my noble and learned friend Lord Mackay of Clashfern—though fortunately not on a legal point—as I believe it was always going to emerge, and it is what the Scottish Government mean by “negotiation”, because they are working to a different agenda, an agenda with only one item on it: independence. Everything in every area of government in Scotland is subservient to that, hence the neglect that we see of education, the economy and all the other matters that are their responsibility. If they can find of way of turning everything that happens into a source of grievance, they will do so. Grievance is their default position. They would make a grievance out of a ray of sunshine if they thought it would help their cause. Where in that Administration is the spirit of devolution? There is no power grab in the measures proposed in the government amendment, quite the reverse; it is a power bonanza. The devolved Administrations should welcome it as a ray of sunshine.

[Lord Hain]

Even accepting the noble Lord’s criticism of the nationalist Government in Edinburgh, can I just remind him that the Welsh Government—a Labour Government and a pro-union Government—are just as critical of the stance that the Government of the UK have taken up to now? His remarks do not take account of the depth of feeling that there is in Wales and the Welsh Government about this matter and I caution him about that point.

[Lord Lang of Monkton]

I take note of what the noble Lord says, though I have to say that I have heard information from other sources which suggests that the opposition in Wales is nothing like as strong as it is in Scotland, but it feels obliged to go along in the wake of the Scottish attitude. We will have to disagree on that.

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[Lord Lang of Monkton]

My Lords, I too regret having to refer to the behaviour of the Scottish National Party and its constant attempts to find issues on which it can exercise grievance, but that is what is happening. It is because of that attitude that we are where we are now and that the consultations that were allegedly going extremely well throughout the earlier months have run up against a time limit. We are blinding ourselves to reality if we do not take account of the fact that the Scottish Administration have a completely different agenda from this one—notwithstanding the bonhomie of Mr Russell, which my noble and learned friend Lord Mackay of Clashfern was fortunate enough to encounter. I regret having to say it, but it has to be said, otherwise we are blinding ourselves to reality.

I do not dismiss the Government’s past willingness to consult patiently and, again, I respect their willingness to withdraw this amendment so that it can be further debated and discussed. That is entirely in line with the path that they have pursued, which is creditable and desirable. How I wish the other participants in these discussions could unanimously take the same approach. It is a tribute to the constitutional proprieties that we all like to see, seeking as the Government did to negotiate in good faith, to find a route that would not require them to assert the sovereignty of this Parliament. But it did not work in this context and I do not think it was ever going to work. In the end, the supremacy of the union must come first, as another Constitution Committee report, The Union and Devolution, recently suggested.

[Lord Beith]

My Lords, the noble Lord is a former chairman of the Constitution Committee, but he is perhaps doing a disservice to its present members by not reflecting that the committee felt that progress had to be made in this area, not least because the parliaments in both Edinburgh and Cardiff, across the parties, were unhappy with the Government’s original proposals.

[Lord Lang of Monkton]

I agree that progress has to be made, but progress is not made by constantly agreeing to give legislative consent on so many different issues, as so many amendments that we have debated in the last few days suggest. That is not progress; that goes towards unsettling the existence of the devolution within the United Kingdom parliamentary structure. We have to be realistic about these matters.

The Government’s approach of endless patience and consultation did not work. In the end, the supremacy of the union must come first. So I support the government amendment. By protecting the sovereignty of this Parliament we are best able to deliver the overall outcome, both for the devolved Administrations and for the United Kingdom to which they belong.

[Lord Foulkes of Cumnock]

My Lords, before the noble Lord sits down, I am slightly confused. He said that he supports the government amendment, but the noble and learned Lord, Lord Keen, said that he would not press his amendment; he is going to withdraw it and look at some of the other proposals. Does the noble Lord not agree with his Front Bench?

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[Lord Lang of Monkton]

Of course I agree with my Front Bench, and I have already commended it for its willingness to withdraw the amendment. It was tabled so that it could be discussed and Ministers could hear soundings from the Committee. I have given my sounding; perhaps the noble Lord would like to add to that by giving his. He spoke about his own amendment, but I hope that in the last resort he will support the amendment that the Minister will bring forward.

[Lord Campbell of Pittenweem (LD)]

I shall speak briefly to the amendment proposed by the noble and learned Lord, Lord Mackay of Clashfern. I do not do so because I once enjoyed the privilege of being one of his deputies when he was Lord Advocate for Scotland—as did the noble and learned Lords, Lord Hope and Lord Cullen, both of whom are in their places this evening. I do so without detracting in any way from the amendment in the name of my noble and learned friend Lord Wallace of Tankerness. What attracts me to the amendment proposed by the noble and learned Lord, Lord Mackay, is its simplicity and practicality. It is easily understood, and coming, as it were, from a Scottish source, it pays due regard to economy. For those reasons it is well worthy of consideration. Its simplicity makes it easily capable of being understood not just by those who will have responsibilities under it, but by members of the public.

It is for those reasons that I am, with due deference, rather doubtful about the amendment tabled by the noble Lord, Lord Wigley. The problem with it is that, apart from the reference to the Supreme Court turning into some kind of court of arbitration, and I know of no process or procedure that would allow for that—

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[Lord Lang of Monkton]

My Lords, I am glad to agree with the noble Lord, Lord Hain, on the point that he has just made. It was reflected in a Constitution Committee report that came out a few years ago. We have to do more within departmental activity in terms of co-operation and cross-policy referencing between us and the devolved parliaments. The noble Lord also referred to what feeds the appetite for separatism. What feeds that appetite is the constant drip-feed of ceding further powers, which makes them hungry for still more.

[Lord Hain]

At this late hour, that is probably a debate for another occasion, but I welcome at least the first part of what the noble Lord said. As a passionate devolutionist and federalist, I believe that the unfinished business of devolution is the failure to give England a proper voice of its own at the regional level, with the exception, of course, of London. However, that is another matter.

I give a cautious welcome to the letter that I received just before coming in to the Chamber for this debate from the Secretary of State for Wales, Alun Cairns, which has been sent to me and, I would guess, to other Welsh Peers. I shall quote part of it, because it is interesting:

“A small number of returning powers in devolved areas will need legislative frameworks in order to safeguard the UK internal market and enable the UK to strike international trade deals. These areas will be placed into a ‘temporary hold’ until the UK Government and devolved Administrations agree the detail of the framework and legislation is enacted to implement the framework”.


He goes on to make an important point:

“The consent of the devolved legislatures will of course be sought for any provisions in parliamentary Bills creating frameworks that are within devolved competence”.


In welcoming that, I stress, at the risk of repeating myself—I will not take too long about it—that until now the Welsh Government have themselves been passionately opposed to the approach of the UK Government in this area. It is not the case that this is only the Scottish Government position. The Welsh Government want to achieve an agreement and the Scottish Government have said the same. We will see in the future, but certainly the Welsh Government want agreement and they have the support of Plaid Cymru, the Liberal Democrats and, I think, some Conservatives in the Welsh Assembly. That is a serious development. In the last few days, the Welsh Assembly have been taking through its continuity Bill, but I am not sure whether it has received assent at this point. However, it has certainly taken the Bill through, which is proof of the deep concern.