European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I endorse everything that the noble Lord, Lord Tyler, has said in moving Amendment 305 in the unavoidable absence of the chairman of the Delegated Powers Committee, the noble Lord, Lord Blencathra. I know, the noble Lord being absent on parliamentary business, how much he regretted the unavoidable clash of commitments at this time. The noble Lord, Lord Tyler, was much too modest in his mention of the substitutes’ bench a moment or two ago.

In their delegated powers memorandum the Government have sought to make comparisons with procedures already established in the devolution legislation. I can be very brief, given the conspectus that the noble Lord, Lord Tyler, has given us. The sweeping effect of Clause 11 and Schedule 3 is to reserve to Westminster all returning competences unless the position is changed by Order in Council. The Delegated Powers Committee distils the problem effectively in paragraph 31 of its later, 12th report. The Government have said that the purpose of the Order in Council procedure is to provide an “appropriate mechanism”—there is that word “appropriate” again—to broaden the parameters of devolved competence in respect of retained EU law. However, as the noble Lord, Lord Tyler, made clear, the concept of the definition of retained EU law is anything but straightforward. The fundamental point is that something as important as the distribution of competences should not be left to take-it-or-leave-it statutory instruments. This is something for primary legislation and the much-enhanced scrutiny that it would receive.

[Lord Mackay of Clashfern (Con)]

My Lords, I sought to explain in reference to the amendment I moved last week my belief about the simplicity of the real issue in this area. It seems absolutely clear that all the devolved Administrations—and the UK Administration themselves—are subject to EU law. However, on Brexit day that will all disappear and there will be the powers—these are the ones I am particularly interested in—that were kept to the EU. I said last week, and nothing I have heard since has persuaded me to change my mind, that all the powers which are effectively exercised within a single devolved area should be devolved immediately. That is the result of the EU no longer being in charge of our procedures. In addition, those powers the EU has which to be effective require to operate in more than one of the devolved areas should go to the UK Parliament. I thoroughly believe that that is the only way in which this can be properly accomplished. The idea of doing it with some form of legislation other than primary legislation is doomed to failure. So far as I am concerned, for example, the amendment tabled by my noble and learned friend Lord Hope, which we will come to later, relates only to the idea that something of this kind can happen by statutory instrument. There is no power which creates statutory instrumental authority for this kind of thing. Therefore, what has happened is what Bishop Berkeley once said about the philosophers:

“We have first raised a dust and then complain we cannot see”.


That may have affected other areas of our national life.

This is a simple matter, and the simpler it is, the better what we are trying to do will be understood by ordinary people—the people who read the papers. Otherwise, we will be arguing away about what I certainly cannot understand and I venture to think that, if I cannot understand it, it is likely that one or two others will not understand it either.

[Lord Morgan (Lab)]

My Lords, this is one of a number of issues where it seems that the Government have created extraordinary difficulties for themselves—a quite unnecessary threat to the cohesion of the union in the long term—as well as the other problems introduced by this legislation.

I am a member of the Constitution Committee; the chairman of that distinguished body is sitting behind me. I am not speaking on behalf of the committee, but for myself. The committee has already noticed that the provision about EU-derived measures is quite inappropriate. It ignores the devolution settlement. As the noble and learned Lord, Lord Mackay, explained, these powers should automatically go to the devolved legislatures—where they belong—but they are given no powers of redress or scrutiny. There seems to be very little consultation. I do not understand why such a high-handed and frankly colonial attitude is being adopted toward the legislators of Scotland, Wales and Northern Ireland. Needless complications are being caused. In Wales, which has had a growing accretion of reserved powers under the Government of Wales Act, unnecessary animosity that is not relevant to the Act is being created. It is a form of centralism that goes against the spirit of recent legislation and the consensual spirit in which this has taken place. Much of that consensus is owed to the noble Lord, Lord Bourne. It is comforting to see him sitting on the Government Benches; I hope he can suggest the reversal of this.

--- Later in debate ---

[Lord Morgan]

My Lords, I respond with considerable enthusiasm to what my noble friend Lord Liddle just said—and, if I may say so, with considerable pride, because a long time ago I once had the privilege of teaching him. Everything he said about introducing possible discord is profoundly true. I just make two points. This is trying to impose a static uniformity on a United Kingdom whose pluralism has increasingly been made manifest. It is simply the wrong approach: a heavy-handed, imperial approach which is inappropriate. We heard so much during the campaign about “take back control”. Well, control for whom? It was established in the courts by that courageous lady, Mrs Gina Miller, that it should be control for Parliament, because ours is a parliamentary democracy, but the clutch of issues we have been discussing this afternoon raises the additional point of control being vested not merely solely in the Executive, but in the Executive in Westminster, in a situation of pluralism and partnership. At this time, with other tensions emerging all over the European continent, it is very important that the Government get this right.

[Lord Mackay of Clashfern]

My Lords, it is important to remember that this debate is about a fairly limited matter. No doubt it has consequences, as the noble Lord, Lord Liddle, said, but my principal concern is to get a procedure which is adequate and reasonably simple. As for differences in taxation, the noble Lord will know that for taxpayers in Scotland, there are differences already and even more to come—which may not altogether suggest that he should come to live in Scotland.

This committee has started looking at individual areas of devolved policy. It has come up with a tremendous number and has tended to look at them from that point of view. We now gravely need to look at things from the point of view of the ultimate result. The framework agreements are described in the documents as intended to promote the single market, and that is how I see them—trying to ensure the continuation of the single market which presently exists in the United Kingdom and which everyone, as far as I can see, would like to continue.

That approach has led to people saying, “This area is okay. You do not need a framework”—because of minute descriptions which I shall not attempt to recite—“but if you need a framework, the United Kingdom Government must create some form of control which enables them to lay out such an agreement”. That is the idea of the power to select 24 areas where statutory framework agreements were necessary; and there is another group where memoranda of understanding were thought to be necessary.

That way of looking at it is bound to be complicated, and you have to have some power to hold the devolved area that is to be subject to the single market requirement in order to put the single market requirement into effect. That is the purpose of this rather remarkable proposed new clause: giving Ministers power to hold for a time that particular policy area. Once that happens, I can see that some form of time restraint will be necessary, because you do not want to be waiting too long.

My suggestion, which I put forward in relation to my amendment last week, is that you forget all that and remember that the areas of devolution are defined by the areas which are presently controlled in Europe but which can effectively be legislated for in one of the devolved areas. Scotland cannot legislate for Wales, much as it might like to, and nor can Wales legislate for Scotland. Scotland can legislate only for itself, so it cannot set up by its own legislative authority a single market. Therefore, if the single market is to be legislated for, it has to be done by the Parliament of the United Kingdom—and all devolved areas are appropriately represented in the Parliament of the United Kingdom. We must not forget that.

I suggest that the committee should be defined as a group in the way that I have sought to set out, looking for consent for all the necessary provisions to enable a single market, as far as it is agreed to be required, in the United Kingdom. I sincerely hope that that will be agreed because, as I told your Lordships last week, when I spoke to the Minister from Scotland, he was very insistent that the chances of reaching agreement were very high—so I am working particularly on that assumption. It does not absolutely need to be fulfilled, for a reason that I will come to in a moment, but I certainly hope that it can be. That is why I think we should have a group in which the four different countries—three of which are devolved—should be more or less equally represented. That is what the proposed group is for—it is proposed only for this special purpose. I am not seeking to incorporate this into the Government of the United Kingdom for the future, as some people have suggested. I am thinking only of a group to solve this present problem, which is quite urgent, quite important and not too difficult.

We should remember that a single market exists in the United Kingdom already, so we do not have to invent it all. We may need to make modifications, but there is a kind of plan available to look at—so I think the chances of this group reaching agreement are very strong. If so, what I believe should then happen is that the things they have agreed should be incorporated in a United Kingdom statute. If they are all agreed, the sole convention should provide that there be statutory consent. I see no need for any kind of system for dealing with disagreements at that stage. The United Kingdom Parliament has a responsibility and will have to deal with it on its constituents.

I have also tried to make sure that the group is as united as possible, so I have provided that, where there is a disagreement, it should state precisely, in an agreed form, what it is, so that the Parliament of the United Kingdom—if it had to come to that—would have only that question to determine. I think that this is a better system than anything that starts from the bottom and seems to come up. Consent would come in the group right across the whole field and, if that works, as I hope it will, there is no difficulty whatever. If there is any difficulty, the Parliament of the United Kingdom will have to try to solve it and then the Sewel convention will apply to that United Kingdom Parliament. That is my solution—and, of course, the amendment of the noble and learned Lord, Lord Hope, would then not arise. That is a much better system than trying to work up from the individual in 24 areas, or whatever it is.

[Lord Wigley]

My Lords, I am glad to follow the noble and learned Lord, Lord Mackay, again. I welcomed very much the points that he made last week with regard to looking for a mechanism. We can split hairs about the detail of it, but the need for a mechanism to be there is clear.

I thank the noble and learned Lord, Lord Hope, for proposing this amendment and, particularly, for proposed new subsection (3), which states:

“Ministers of the Crown may create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations”.


I personally believe that it is much easier to look at an issue like this if one looks at a specific aspect and asks oneself how it would work out in practice. I referred in an earlier debate in this Committee to agriculture, which is one of the areas which at present is under the common agricultural policy at a European level, but with devolution with regard to the working of agriculture in Wales and Scotland.

The nature of agriculture in Wales—I think that the noble Lord, Lord Liddle, mentioned this—is different because of the sheep meat regime. We have 12 million sheep in Wales—four times more sheep than we have people. The sheep meat regime is massively important in Wales, and more important relatively than it is in other parts of the United Kingdom. Within the European context it has been possible to find ways of enabling Wales to follow its own policies in some regards within the overall framework of the CAP for Europe. Indeed, at times there have been opportunities for Welsh Ministers to speak in Brussels on behalf of the UK, when there was something relative to a specialist interest in Wales, such as sheep, on the agenda.

The fear in Wales now is that, if the power over agriculture is in London primarily, the ability to fine-tune and develop new policies in Wales that has been exercised up to now will become more constrained—things such as the agro-environmental schemes that have been developed in Wales, for example. The fear is there because the nature of agriculture in England, and the dominant role of those interests in England, are very different to those in Wales. Therefore, if one is trying to secure a single market within the UK, which is obviously common sense, there has to be some mechanism of give and take. It may be all right for a regime in Wales to work in a way that gives added benefits to the Welsh sheep farmers, provided that is bringing them up to the overall level and not giving them unfair competition in the marketplace over other people—but the initiatives for those will need to be developed in Wales, within the context of Welsh circumstances.

That is why I believe that it is essential, whatever the final Bill contains, that it has this element not only of consultation but of agreement. My belief is that, with most things, there would be immediate agreement—and, if there is no immediate agreement, another problem will come and hit us down the road in a year or two, which will build up the type of tensions to which the noble Lord, Lord Liddle, referred. It is far better that we have this model working by agreement between the devolved Administrations, and it might come as a considerable surprise to find how willing people were then to work together.