Brexit: Negotiations

Lord Lang of Monkton Excerpts

Tuesday 20th November 2018 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, like other noble Lords I would like to address the three options. I would describe them as: first, to support the present deal, with all its imperfections and uncertainties; secondly, to go for no deal, face economic disruption and do what we can to overcome the unforgivable failure adequately to have prepared for it; and, thirdly, to have the mixed-bag option of rejecting the people’s vote and calling for another one, or for a general election, or for a postponement of the Article 50 trigger—in sum and in essence, to stay in the European Union.

I suppose that it is quite an achievement to have reached any kind of deal in the circumstances here and in Brussels, and I pay tribute to my right honourable friend the Prime Minister for the deal that she has achieved. But one has to ask questions. Does this deal treat the UK as a single entity? Does it give us freedom to set our own tax rates? Does it give us freedom to strike our own trade deals and to leave the customs union when we decide? Notwithstanding what I heard from the noble Lord, Lord Butler—whose speech I shall read tomorrow with great care—my answer to these questions is no.

The vital snag that leads to that answer is of course the Irish backstop. Without the unqualified right to terminate that, we will find the relentless grip of the EU stretching into an uncertain future. We will be like a ship ready to sail that finds its anchor snagged on the rocks beneath. One wonders how the Government thought that they could get away with a concession on the backstop, which they had repeatedly promised never to agree to, and which the DUP had repeatedly said that it could never accept. We conceded so much in order to honour our word to Northern Ireland, and then we failed to do so. Pettifogging over that border should never have been allowed to happen from the very outset. The EU frontier is already perforated by countless special deals. I gather that France even has one to cover French Guiana—a country in another continent across a wide ocean. Given reasonable good will and common sense, a pragmatic solution could easily have been found and still could be.

That is the burden of uncertainty that we take on if we decide to accept this deal, as we may have to. Many people assume that no deal would be calamitous. They could be right; it would certainly create disruption and problems, some of them very severe, in the short term. But in the longer term it could be a different story, unfashionable though it seems to say so in today’s debate. We already trade with four-fifths of the world on WTO terms. Our exports there now stand at 60%, with only 40% going to the EU; a decade ago, it was the other way round. The EU’s share of world trade has halved in the past 30 years. The single market should be a springboard: instead it is a protectionist fortress. The EU’s growth rate is flat, close to recession. While the no-deal route is not an easy one to choose, nor is the present deal, so neither should be ruled out.

There is no denying that we face at present the threat of an economic and political crisis: it is a very bad time to have to take a vital decision of this kind. But the proposals from those who are at heart remainers would make matters worse just when what we and, especially, business need is certainty.

There is another reason why it would be wrong to prevaricate. We gave our word to the electorate in the people’s vote of 2016 that we would deliver what they decided upon. Every political party pledged to do that, both before and after the result, without qualification. What the referendum decided was not subject to conditions, and not to honour it now would be the most damning and damaging outcome of all. With or without a deal, we must leave the European Union.

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.

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.

--- Later in debate ---

[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?

--- Later in debate ---

[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—

--- Later in debate ---

[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.

Brexit: Devolved Administrations

Lord Lang of Monkton Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, I will try to be brisk but not brusque. To follow a speech by the noble and learned Lord, Lord Hope of Craighead, is always an invaluable education, and I shall read his speech afterwards, as will others, I am sure. I must comment on the undue modesty with which my noble friend Lord McInnes introduced the debate. He laid it out brilliantly for us, and we are grateful to him for opening up this subject for debate today, although with the Second Reading of the European Union (Withdrawal) Bill next week it feels a little like a Committee stage ahead of Second Reading. We are still waiting for the long-promised amendment and without it the debate is a bit like “Hamlet” without the prince.

Nevertheless, I particularly welcome the positive tone of the second part of my noble friend’s Motion, and I hope to find time to say a word or two about that. I found much to agree on with earlier speakers. There is a positive tone in this House and I hope in Parliament as a whole over how to address these negotiations, but sadly the positive tone is not to be heard much from Scotland, least of all on Brexit. The persistent calls for the unattainable are rebuffed not by the Prime Minister or by this Government but by such names as Barroso, Juncker, Van Rompuy and Tusk, because that is where they have been applying. They have made it consistently clear to the Scottish Government that Scotland is not a sovereign nation state—something that was settled firmly, again, in 2014—and therefore special deals on such things as the single market or anything else are not in the EU’s gift to the Scottish Administration.

If the Scottish Administration want something gloomy to talk about, they could focus on their record on Scotland’s economy. Rather than using a crystal ball, they could look at the past 10 years which, according to a Fraser of Allander report, show output per head in Scotland growing by only 1.2% compared with 4.2% in the United Kingdom as a whole. Forward projections remain equally poor, and in Scotland we are teetering on the edge of a recession. That is probably why the Scottish National Party prefers to talk about Brexit.

The fact is that if the Scottish Administration would but admit it, the Government’s commitment to working with them on Brexit is strong, and so is their record. On her first day in office, the Prime Minister went straight to Scotland to talk to the First Minister. In the White Paper that came out a year ago, the maintenance of all the interests of all the parts of the United Kingdom was a very high priority in the list of priorities. The Joint Ministerial Committee has found new life with the development of the European negotiations sub-committee, and in other forums there have been many meetings, so there has been a constant emphasis on consultation and working together carrying through into the withdrawal Bill next week.

In a report published last March by the Constitution Committee ahead of the publication of the withdrawal Bill, we stressed the need for consultation and co-operation between the Government and the devolved Administrations and that they would need to manage the new interfaces and potentially overlapping responsibilities between reserved matters and devolved competence in areas where the writ of the EU would no longer run. That consultation and co-operation has been happening, mainly through the use of the Joint Ministerial Committee and the EN sub-committee, with repeated comments that talks are going well and with agreement on principles for the common frameworks reached last October, so it is not all bad. It seems to me that the body of legislation returning to the United Kingdom has to come, in the first instance, to the nation state, the entity that the EU recognises and that is handling the Brexit negotiations. But it is equally clear that many of the repatriated powers should pass on as quickly as they can, if not immediately, to the devolved Administrations within whose competences the subjects lie. Equally clearly, where the national interest dictates, some specific powers should remain at Westminster.

So diverse and varied is the range of forms and status of EU legislation accumulated over the past 40 years and more, and so complex the task of absorbing them into the appropriate legislative form within the United Kingdom and for the devolved Administrations, against a looming deadline and the possibility of further last-minute amendments from Brussels, that it feels not so much like a three-dimensional jigsaw as a kaleidoscopic whirlpool. So it is not surprising that while some measures fall clearly to the sovereign Parliament to take, and others clearly to the devolved ones, a few in the middle will still pose problems.

For example, in agriculture, as has been mentioned, the possibility of trade deals inhibits full devolution at present. On the environment, some aspects will require national uniformity in the interests of all of us. There will be some pieces of delegated legislation that flow from the European Communities Act that, once repatriated, would be better placed not in delegated legislation but in primary legislation. These are the issues that can fall into place over time, but they have to be handled with understanding on both sides. It is important, however, to stress that not one of the powers the devolved Parliaments hold at present will be lost in this exercise: what they have, they will hold, with many more to come shortly. So there is no question of a power grab, and it is a pity that bogus claims of that kind should be introduced to distort the picture and poison the atmosphere.

The Motion speaks also of,

“future opportunities for strengthening the union”,

which is a welcome, positive approach to something that is still fraught with difficulty. My noble friend Lord McInnes was kind enough to refer to two reports produced by the Constitution Committee a couple of years ago on precisely this subject. They were debated last October, so clearly for two years the Government considered that we had given them food for thought. I will paraphrase them as concisely as I can.

The first report addressed the union itself and argued that any further consideration of constitutional change should include the interests of the union as paramount, and that nothing should be done to its detriment. There should be no more “help yourself” devolution, without a thought for the wider consequences. The second, on intergovernmental relations, argued that the Joint Ministerial Committee should be developed in a much more consensual and even-handed way, with numerous improvements to its use and procedures. We also called for a new mindset in the relationship between the UK Government and Parliament and the devolved Administrations, whereby United Kingdom departments would abandon the “devolve and forget” habits that seemed to have taken seed in many of them around the country and to afflict some of them, and instead introduce much closer relationships, particularly on policy development.

The Government’s response to these recommendations was less than wildly enthusiastic, although they did claim that much was already being done. I echo the thoughts of those who have urged that they have another—indeed a continuing—look at the various suggestions we made. I hope that things are improving and that that will be carried forward further in the future.

But of course, good will on both sides is needed. One has to hope that, over time, the devolved Administrations will shed their apparent resistance to the hand of friendship and settle down to make their powers work better, for the benefit of their citizens.