European Union (Withdrawal) Bill

Lord Lang of Monkton Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, this series of amendments, as the noble and learned Lord has explained, expresses the changes necessary to implement the agreement between Her Majesty’s Government and the Welsh Government. I immediately congratulate the Welsh Government on having gone the extra mile and skilfully reached an understanding. I also thank the government negotiators for their part. There has been a great deal of give and take on both sides. I make my comments generally on the agreement and I have given notice in my discussions with Ministers of some of my interests.

I also queried the five years mentioned by the noble and learned Lord, Lord Wallace. Perhaps justification for that can be given. I will not repeat the concerns that I have already expressed, at Second Reading and in Committee, at the insensitive drafting of the original Clause 11. In short, there was a failure—nothing new in Whitehall—to take on board that there is a legally constituted Government in Cardiff as well as in Westminster. I will repeat only that, had the JMCs been working properly and regularly, a great deal of time and energy could have been saved. I welcome the promise of a collaborative process of working out the agreement and the development of frameworks in the JMC in the future. I hope it works much better in the future than it has in the past.

But have the Welsh Government missed a trick? The ghost that is missing—completely absent—from this feast is a reference to financial arrangements. Having spent half my life at the Criminal Bar, the overwhelming maxim in fraud cases with which I was involved was “follow the money”. There is no mention of money here. Agriculture and public procurement constitute a substantial amount of money that comes into Wales from Brussels. My interest in farming, with all my family in west Wales in that industry, is well known.

Agricultural support and agricultural matters constitute at least 10 of the 24 temporarily reserved areas. Public procurement deserves a detailed explanation. Why was it included? Could it mean the privatisation of the NHS in Wales through a Westminster input? These matters have not been explained and they are there in the agreement. I would like the Minister to explain the extent of what public procurement means in this context. Have the Welsh Government given away too much under these specified headings?

Mr Gove has promised the continuation of existing agricultural support until, I believe, 2020. Brussels subventions are generally based on need. In general, the present financial arrangements between Westminster and Cardiff are based on the Barnett formula. When I raised the issue with Mr David Lidington at a recent meeting, there was no reply at all on this issue, but it is crucial. What is the future, how is it envisaged and how will the payments be made to Welsh agriculture? Can I have a clear statement of the progress being made by Mr Gove in his negotiations, and what assurances have been given to the Welsh Government in Cardiff?

The implementation of these amendments will be the key to the effectiveness of the agreement between the Welsh Government and Westminster. Could it be confirmed that it is the intention, or at least the hope, that the number of 24 subjects in the temporary arrangements will be reduced in the light of experience? In my day as Secretary of State—I think after I took over agriculture—I had to sign personally all the regulations in addition to the Minister at Westminster signing them. So there were two Ministers signing each regulation. Heaven forbid that this involves the resurrection of such bureaucracy in the future. The agreement states:

“It is possible that some additional areas … will be reserved”.


What timescale is envisaged for this? It is such an open-ended commitment. I hope the Minister will be able to indicate what is meant by that particular term in the agreement.

In paragraph 3 of the agreement, the words “without prejudice” occur in two contexts. What exactly is the effect of those words in this area? Do the references to the Sewel convention and the words “not normally” mean what they say? There were protracted battles to get confirmation from the Government that there would be legislative consent Motions. That was dragged out of the Government. First there was the prevarication of the Prime Minister, then of the Leader of the House of Commons, and then eventually the Minister here agreed that legislative consent would be given. I hope we can have an explanation of how that will operate, and that there will be no further question about it in the future.

I have said before that once devolution is granted then, short of a Westminster intervention, devolved powers cannot be taken away. I hope, and I specifically wish for confirmation, that the effect of these amendments is that all powers and policy areas will continue to rest with Cardiff unless they are specified to be temporarily held by Westminster.

[Lord Lang of Monkton (Con)]

My Lords—

[Lord Thomas of Gresford (LD)]

My Lords—

[Lord Lang of Monkton]

I say with great respect to the noble Lord that I think it is the turn of this side of the House.

Like other noble Lords, I welcome the progress that has been made in clarifying the clause as it originally appeared and I congratulate my noble friend and the Bill team on further refining the intentions in a way that I hope will make it much clearer at the end of the day. Their patience and diligence has caused them to go many extra miles and they should be warmly thanked for that. But we have now reached a conclusion that all people of reason and good will will surely welcome. I congratulate the Welsh Assembly Administration on their welcome for these changes. Sadly, the Scottish Administration have not done so. Like the noble and learned Lord, Lord Wallace, I regard that as regrettable. Like the noble and learned Lord, Lord Hope, I truly wish that there were some Scottish nationalist Peers in this House to argue their case, answer our comments and explain their purpose and motives. Just because they are not here, however, that does not absolve us from the obligation to question and challenge their policies and make clear what we think of their motives and the way that they are trying to drive affairs.

Having expressed my views on this matter fairly clearly in Committee, and given the hour and the bulk of amendments that we still have to get through, I propose to cut what I intended to say in half and move on to other matters. So I shall spare the House half of what I originally intended to say.

I welcome the introduction of the new sunset clauses. In Committee, I suggested that the Scottish First Minister was capable of creating a grievance out of a ray of sunshine. On looking at her letter to the Lord Speaker, I see that she does not take too kindly to sunset either. She thinks that the sunset clauses are,

“not something I can recommend to the Scottish Parliament for approval”.

I think this a very good idea and an important improvement. The Constitution Committee has long argued for it, as have many others. I will be interested to see what my noble and learned friend the Minister says in his reply to the proposal of the noble and learned Lord, Lord Wallace, to shorten the extensive seven-year period to five years, which must have some arguments in its favour.

I particularly want to ask the Minister about the frameworks. I hope he can clarify the position on something that troubles me, here and elsewhere in the Bill: the possible accumulation of new provisions in legislation, arising from the Bill, that may not all evaporate when the sun eventually sets. For example, as I understand it, all frameworks have to be agreed, and legislation arising from them implemented, before exit day—or, at any rate, secured in some specific way if things stray into the transition period. Otherwise, they could accidentally be allowed to be devolved, to the great detriment of the United Kingdom and as a major change to the devolution settlement. Surely that creates a major time pressure in not just this Bill but those that will flow from it over the next few months. The 40-day cooling-off period adds to the pressure, although I welcome it as a measure. Given the propensity of the devolved Administrations to string matters out for as long as they can, can the Minister assure the House that provisions exist to ensure that all the framework-related legislation will meet the timing deadlines?

Secondly, the Bill would include legal commitments to consult the devolved Administrations on certain areas in future. As a matter of constitutional propriety, that should—and would—happen anyway; it already has, extensively, but now it will be enshrined in law. Given the propensity in some quarters to consider that to consult is to concede, and that consent is equal to granting a veto, can the Minister confirm that there is no question of consultation carrying such implications with it, that this dangerous route is closed off, that all the detritus that will be left after the Bill is implemented will have served its purpose because the measure is essentially transitional, and that such things will eventually fall by the wayside? With those queries and comments, I welcome the changes that have been made. I am confident that they are an improvement and I hope they will speed the Bill towards completion.

[Lord Thomas of Gresford]

My Lords, I also welcome the fact that the Government have moved so far from their original stance and that the Welsh Government have been able to agree to their proposals. It is a tribute to the force of the argument that united all parties in the Welsh Assembly—as pointed out by the noble Lord, Lord Wigley—against the Government’s initial proposals, as well as to the negotiating skills of Mark Drakeford and his team.

As said by the noble and learned Lord, Lord Keen of Elie, the purpose of these provisions is to freeze the exercise of powers transferred from Brussels to Cardiff in 24 specific areas of policy, pending the negotiation and agreement of UK frameworks in those areas. There is a gap: what happens to the powers that are repatriated from Brussels between exit day and the making of these regulations? Where do they lie and are they exercisable by anybody? The noble and learned Lord asked for further guidance. I have looked at the amendment; it is not so much insensitive as tortuous. The machinery by which the restriction is implemented on the Welsh Assembly is contained in proposed new subsection (3), which introduces via proposed new subsection (3A) a new Section—109A—into the Government of Wales Act 2006. There are a number of steps to be taken to implement a restriction relating to retained EU law. It is important that both the principle and the mechanism be clear and understandable to the public and lawyers. I must confess, I found it difficult to understand; I am grateful for the help of the Minister, Chloe Smith MP, and her excellent legal adviser in guiding me through these provisions.

Step one of the process is discussions between the Government and the devolved Administrations. This is not in the new section at all. It is set out in paragraph 7a of the memorandum of understanding:

“Building on the ‘Deep Dive’ process, which has been a collaborative effort between the governments, discussions will take place between the governments to seek to agree the scope and content of regulations. This process will continue to report into JMC(EN)”—


that is, EU negotiations. Discussions will take place; that is the first step. The forum for those discussions and the means by which binding decisions are made is a very important topic, raised by Amendment 92A, tabled by the noble Lord, Lord Wigley. I reserve further comments until then.