European Union (Withdrawal Agreement) Bill

Lord Morgan Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

I would not die a death for the precise language of Amendment 29, but it writes into the Bill the fact that the JMC shall have a real job to do in scrutinising what the Government intend to do, advising them on how to do it and hearing how they are getting on. I therefore support the amendment.

[Lord Morgan (Lab)]

Many distinguished Lords have spoken on the amendments, and I agree with them all, particularly the noble Lord, Lord Kerr, who is just leaving. It illustrates the lack of comprehension that there has been about how the British union state has changed, and how its pluralism has changed and become a more central feature.

I have had the great privilege of being on the Constitution Committee for the past four years, and this issue kept recurring. It is not a dispute or debate that has suddenly emerged; it came in Bill after Bill connected with constitutional relationships and with trade, yet somehow it was not resolved, mainly because the devolved Assemblies were being bypassed, often in a very hurtful way, leading to accusations of power grab and such statements.

The issues that have been mentioned include: reserved powers for the Welsh, Scottish and Northern Irish Governments, an issue that has come several times and has not yet been dealt with properly; and the outcome of European legislation when it is transferred to this country, which has not been adequately dealt with either. We discussed this frequently on the Constitution Committee and wrote what I thought was a very important survey of intergovernmental relations. It seemed to have very little effect on ministerial thinking, or indeed on thinking about the nature and importance of devolution throughout our country.

In particular, there is the inadequacy of the Joint Ministerial Council, which is mentioned in Amendment 29. The JMC is an almost hopeless body that has staggered on for two decades with no clear membership, no clear times for convening, and very little effect in real intergovernmental consultation, so I very much hope, as everybody does, that the Government will feel able to accept these proposals. Otherwise, the effect could be disastrous. Our union is in grave danger. People refer primarily to Scotland, but in my experience discontent in Wales is certainly much stronger than it was. It would be tragic if inattention and carelessness led to our leaving not one important union, but two.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, following not just yesterday’s speeches, but those today from the noble and learned Lord, Lord Thomas, my noble friends Lord Howarth, Lord Griffiths, Lord Murphy and Lord Morgan, the noble Baronesses, Lady Finlay and Lady Randerson, and the noble Lord, Lord Wigley, from Wales, as well as welcome additions to our West Country debate from the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Kerr, the Government should have heard by now that the devolved authorities and people close to them feel somewhat squeezed out of the Government’s handling of our withdrawal from the EU and our future relationship with it, and of how the Government plan to discuss, or not, with those representatives as we go forward. That was probably not helped by the response of the noble Lord, Lord Duncan, last night.

We particularly welcome Amendments 18, 23 and 45, accepting in particular that, if we really must have an albeit non-legally enforceable statement about the sovereignty of Parliament in the Bill, it surely has to be accompanied by at least an equivalent nod to the devolution settlements and the Sewel convention to safeguard the union, as my noble friend Lord Murphy emphasised.

Looking towards the future, the noble and learned Lord, Lord Thomas of Cwmgiedd, said earlier this week that devolved Governments have an interest in all the negotiations. It is not simply the bits that can be identified as within their competence, because how agriculture pans out will absolutely affect the future of those countries. So will other parts of trade.

Our Amendment 29 in the name of my noble friend Lady Smith, as well as those of the noble Baroness, Lady Ritchie, and the noble Lords, Lord Bruce and Lord Kerr, seeks to achieve the input of the devolved authorities in the negotiations. As we have heard, it would place the Joint Ministerial Committee on EU Negotiations on a statutory footing—something that we have urged on the Government since its formation in 2016. As my noble friend Lord Morgan reminded us, it has been pretty constantly discussed in the Constitution Committee. The amendment would ensure regular and frequent meetings of the JMC on EU Negotiations, which as we have heard, has at times been sidelined, especially when it was seen as a bit inconvenient. The noble Baroness, Lady Randerson, said that it had a “chequered” history. As my noble friend, Lord Griffiths, reminded us, it was not used in the way intended when it was set up. Importantly—we have not heard this voice this morning—the amendment would also require the JMC to focus on the very unique challenges facing Northern Ireland, including the aspects discussed in your Lordships’ House last night.

The amendment also covers the relationship between the JMC—the Joint Ministerial Committee—and the new and, as we have heard, highly important UK/EU Joint Committee. For example, the Secretary of State would have to brief British members of the Joint Committee to make sure they knew what the JMC was discussing, so that discussions held with the devolved authorities were fed in to the UK negotiators. This is vital. The British members of the Joint Committee, who would, of course, be Ministers, would have to give regard to the views of the Joint Ministerial Committee, which brings together the devolved authorities. They would also have to bear in mind the requirement of the Northern Ireland protocol to facilitate trade between Northern Ireland and Great Britain.

It is particularly important, as the noble and learned Lord, Lord Wallace of Tankerness, said, to realise that, in addition to a general interest in all these negotiations, much of the implementation will fall to the devolved authorities. As any of us who have been involved in developing policy know, if you do not discuss beforehand how it is going to be implemented, the chances are that the policy will not work.

Given the importance of ensuring that Brexit works for all parts of the UK, including the devolved nations, and given the concerns of the devolved Administrations that they are being excluded from vital talks—as we have heard, an amendment which we will come to later about the authority of courts has been tabled without any consultation with them—we look forward to a rather more positive response from the Minister when he replies. If the response is really positive, it might help the Welsh Assembly to consider whether it wants to give its legislative consent to this Bill.

European Union (Withdrawal Agreement) Bill

Lord Morgan Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I should like to reply to the point made by the noble Duke, the Duke of Montrose. I think he suggested that the inclusion of this amendment in the Bill would render the convention justiciable, and that there was something about it that would attract the attention of the judiciary. I have lived with the Sewel convention for a very long time, particularly with the amendment to the Scotland Act, now enshrined in Section 28(8). One of the points made by the Smith commission was that it wanted the Sewel convention to be given statutory effect. I am afraid that that battle was lost because, as Section 28(8) of the Scotland Act puts it, it remains a convention. Indeed, it was made perfectly clear by the Supreme Court when it considered the matter that it is not justiciable; it is simply a convention.

For my part—having, as I say, lived with the convention repeatedly through the 1918 Act—I relied on assurances by Ministers that they would respect the convention. It was not actually written into the Act, as I recall. So, for my part, I shall listen very carefully to what the Minister has to say, because in the past this has been handled by Ministers giving assurances that the House has respected. I am not certain that it is necessary to write it in in this way, but if I do not get that kind of assurance, I might go with the amendment. The words that the Minister uses will be extremely important to me in deciding what to do.

[Lord Morgan (Lab)]

My Lords, points have been admirably made by many other distinguished speakers. I will just make one: this whole issue unfortunately shows the frailty of devolution as a basis for keeping our partnership of nations together. Devolution had weaknesses built into it, admirable change though it was. As many of us said, the regulatory relationships between the nations were left extremely unregulated, if you like, and in a very imperfect condition, depending, as the noble and learned Lord, Lord Thomas, said, on the power of the word “convention”, which hovers over the English constitution in a very dangerous way.

The other thing to be said about devolution as a frail basis for a settlement is that it is deliberately asymmetrical, and an asymmetrical devolution means unequal distribution. Wales has always been treated as a poorer relation in the partnership. When there are possibilities of strain, as we see in the case of the Bill, the thing is liable to crumble. The whole basic weakness of the settlement is, alas, likely to continue and to weaken the United Kingdom. It is perhaps appropriate that these aspects are implications of the work of King Henry VIII, who, despite his background, was the master voice of English nationalism. He adopted a colonial attitude to Wales and that is reflected in our current difficulties.

[Baroness Humphreys (LD)]

My Lords, I have not added my name to this amendment but would like to register my support for it. Twelve months ago, to this week, Vaughan Gething, the Welsh Cabinet Secretary for Health and Social Services was asked: if the Senedd refused to grant consent to an Act of Parliament, could it be overruled by Westminster? His reply was interesting. He said that the ability of the UK Parliament to override a measure made in any part of the UK is one of the mischiefs in the UK’s constitution that needs fixing. I do not for a moment suggest that we begin the fixing process today, but I cite his words merely as a fairly accurate summing up of the situation in which we find ourselves today.

The exclusion of a reference to the status of the devolved Administrations from Clause 38 appears deliberate. It seems designed to ensure that the devolved Administrations have no role to play in the UK’s withdrawal from the EU. It enshrines, by this omission, the inequality of the power between the nations of the UK. The inclusion of Amendment 20 in Clause 38 would go some way to redress the balance and ensure that the devolved Administrations could represent the views of their respective nations in this massively important process.

I am a passionate advocate for the Senedd. I strongly believe in the principles of devolution, as do my colleagues on these Benches. The Senedd has given Wales a voice and a feeling of nationhood. The exclusion of this amendment could lead to the perception of both being taken away. Accepting this amendment would go some way to preventing those losses.