European Union (Withdrawal Agreement) Bill

Lord Morris of Aberavon Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I will also focus my remarks on Amendments 5 and 7 in this group, to which I have added my name.

My noble and learned friend Lord Thomas has explained in some detail the legal reasons for our concern at Ministers’ unwillingness to consider these amendments. For my part, while I understand the importance of the promises that the Government have made to Northern Ireland, surely it cannot be right that Welsh and Scottish devolution appear to be treated as less important than that of the six counties of Northern Ireland. The Northern Ireland Executive are assured that they will have direct representation when bodies under the joint committee consider matters relevant to Northern Ireland, but the Government fail to give any assurance to the devolved institutions in Scotland and Wales that their interests will be protected during the negotiations which are to come.

As I and other colleagues have repeatedly argued, there is a perfectly adequate way, through Section 109 Orders, to amend devolved competence where there is agreement between the Welsh and UK Governments. Such an approach involves both this Parliament and the Welsh legislature. I also understand that if an issue falls outside the scope of Schedules 7A or 7B to the Government of Wales Act, other powers may need to be used, but any suggestion that this may happen must be fully consulted on with the Welsh Government from the outset. Wales cannot be ridden over roughshod or treated as a second-class nation. If in extremis such agreement cannot be reached, it is of course open to the Government to ask Parliament to amend the Government of Wales Act, but such extreme measures should be used only as a very last resort.

If this clause is not amended, it will remove the incentive for Ministers of the Crown to reach a reasonable accommodation with the Welsh Government and the Senedd if and when it emerges that changes affecting the nature or implementation of devolved responsibilities and regulation are needed. There is a need to rebuild and regain trust. It may seem trivial, but as the noble Baroness, Lady Hayter, has said, despite the fact that we are on the verge of seeing the Senedd vote against legislative consent, I believe for the first time, and despite the Minister having suggested to me that direct dialogue between the Governments would be helpful, it is with regret that I understand that there have been no conversations between the Secretary of State and Welsh Ministers for the last 10 days. I assure noble Lords that that is not due to any reluctance on the part of Welsh Ministers.

The letter of 16 January from the Minister, the noble Lord, Lord Duncan of Springbank, states that under this Bill, the Government are “wholly incapable” of repealing the devolution statutes. Can he explain the absolute limits on the powers as written in the Bill because, as my noble and learned friend Lady Butler-Sloss has pointed out, no limits seem to be defined in the legislation before us? The letter also contains the phrase that it is not “normal” to use the main power set out in Clause 21 in areas of devolved competence without the agreement of the relevant devolved Administration. Can the Minister also explain the use of “normal”, which feels a bit like a get-out term?

In conclusion, let me say that Amendments 5 and 7 in no way seek to block or slow down Brexit—I remind the House that Wales voted in favour of Brexit— and they would not stand in the way of the Government’s wish to make a success of the Northern Ireland protocol. We are simply trying to avoid the perverse consequence of undermining faith in the union in Wales as a result of trying to shore up belief in the union in Northern Ireland.

[Lord Morris of Aberavon (Lab)]

My Lords, I support these amendments, in particular Amendments 5 and 7 spoken to by the noble and learned Lord, Lord Thomas of Cwmgiedd. They are of fundamental importance and go to the heart of the devolution settlements. For a number of reasons I was not able to take part in the Committee stage of the Bill, although I was present for a great deal of the debate.

My interest in a devolved model of government began to crystallise when I was a postgraduate student at Cambridge as far back as 1954. As the Welsh Secretary, I was fortunate to have the opportunity to frame the architecture of a Welsh Bill in 1975, ill-fated as it was, but in 1998 I was given a second chance as a law officer in the Cabinet Committee to contribute to a more acceptable Bill. Anything that casts doubt on it or the important advances made since arouses my suspicion, because we have moved on. My principle is that once a matter is devolved, there is no going back. Once the hand of Westminster grants devolution, it cannot then be withdrawn. The Government must ensure that any suspicion of backsliding is removed.

New subsections (2) and—probably—(5) in Clause 21 cause deep suspicion for me. New subsection (2), which has already been referred to, says that a Minister may make by regulation

“any provision that could be made by an Act of Parliament (including modifying this Act).”

This year I have enjoyed reading the book on Thomas Cromwell; I commend it. It is the life of the greatest political manipulator this country has ever seen—and probably the deviser of Henry VIII powers, because his hand was a very firm one on the tiller in all the legislative processes of that time. I ask the Minister frankly: could anything be wider than new subsection (2)? It is the Trojan horse that could amend the statutes that embed the devolution settlement.

As it stands, my suspicions are justified. The power is there to make changes to the devolution settlement even if the National Assembly and Welsh Government are opposed to the change. If Westminster has the Assembly’s agreement to changes, there is a perfectly respectable machinery for making them. It has already been referred to in the debate. In uncharted waters, such changes may be necessary.

I ask the Minister specifically: have the Government considered the alternative, a Section 109 Order in Council? This is the machinery available and could be used for any changes that might be required. Above all, they would be consensual as opposed to imposed changes. My second specific question is: will the Minister clarify and emphasise that legislative consent would normally be required for any regulation that would be brought in under this Act? Thirdly, have the Government discussed with the Welsh Government the anxieties they have? I commend these amendments.

--- Later in debate ---

[Lord Duncan of Springbank]

The noble and learned Lord raises a point that needs to be addressed head-on. The point is that we know that the existing powers whereby we can direct Welsh Ministers, or by using a Section 109 order, might well be inadequate for certain elements of the types of negotiations we anticipate. The problem we would have is that, if we place in the Bill all those aspects that we anticipate, we will run into some difficulty. They are primarily technical in nature, as might be expected in a negotiation of this complexity. The purpose of the powers is therefore to ensure the technical alignment of the various elements as we go forward to implement the Northern Ireland protocol. The ambition to do so will be done using the various instruments already available to us, including the Joint Ministerial Committee, which is primarily a method whereby we can examine the technicalities. The negotiations that will unfold will be technical and it might well be that out of that will emerge no elements in which we will need to invoke these powers—but, if we do need to do so, in areas where we anticipate that the current means to do so are not available, we would need to have these additional powers to move this matter forward.

[Lord Morris of Aberavon]

I might be a slow learner, but, following the point made by the noble and learned Lord, Lord Thomas, I would like to know which specific points cannot be dealt with by a Section 109 order.

[Lord Duncan of Springbank]

I cannot give the noble and learned Lord the answer to that question, but I can give him the assurance, from speaking to my legal advisers, that in the negotiations that will unfold there will be areas that we think will be under discussion that might stand outside those areas I have touched on regarding Section 109 and the ability to direct Welsh Ministers.

European Union (Withdrawal Agreement) Bill

Lord Morris of Aberavon Excerpts

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

[Lord Howarth of Newport (Lab)]

My Lords, I fully support the desire expressed by the noble and learned Lord, Lord Thomas, that there should be full consultation between the Government and the devolved Administrations and, indeed, the Assemblies in the devolved countries. I also fully support his plea for mutual courtesy and respect, but I question whether this new clause is appropriate. I doubt whether it is appropriate to lay down in statute the procedures for consultation between the Government and the devolved Administrations—to so formalise, as it were, the agenda that it is placed in a Procrustean bed. That could be too rigid and inflexible. Of course, as he urges, all concerned should seek consensus, which will be extremely important in ensuring that what emerges from the negotiations on the future relationship between the United Kingdom and the EU is viable in each of the devolved territories.

However, the achievement of consensus must be a matter of culture. I do not think that you can legislate for consensus. If you legislate and there is still not the good will and the willingness to give and take, along with the willingness to achieve mutual understanding, it will not work. So, strongly as I support the noble and learned Lord’s objectives in this amendment, the means that he proposes to achieve what we all desire may not be the right ones.

[Lord Morris of Aberavon (Lab)]

My Lords, I support the amendment moved by the noble and learned Lord. I do not know from whom I am quoting, but the Joint Ministerial Committee is a “poor thing, but our own.” It has not worked very well, because it has not met very frequently. There has been no programme, its membership has varied, and it has not been a particularly effective arrangement so far. Hence, in my view, it is important that it should be put on to a statutory basis, in which case a report would be made to both Houses of Parliament and we would know where we stood. So far, we do not know.

The devolved Administrations never know when the current Joint Ministerial Committee will meet. It is important, for the sake of the union, to achieve a consensus where possible. In our discussion yesterday on another amendment in the name of the noble and learned Lord, it was obvious that there had been no discussion with the Welsh Assembly. I fear that the Minister’s reply to our debate was less than persuasive. There is an alternative arrangement that could have been used under Section 109 for an Order in Council that would result in a consensual as opposed to an imposed change. Hence, I very much support the amendment in the hope that there will be a change of heart in Westminster.

I fear that there is still a denial in the Westminster establishment that devolution has taken place at all. It has been there for a long time now and it is part of our establishment. Legislators, particularly those who draft Bills for the Government, should recognise that the devolved Administrations have been set up within the United Kingdom and are there to further the union. I would hope that if this amendment is accepted, it would strengthen the union and put the committee on a proper basis, and then there would be an expectation of regular, frequent meetings with serious and senior representation of the Westminster Government.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the noble and learned Lord, Lord Morris of Aberavon, for his words in support of this amendment, which has my name attached to it. I reiterate the words of my noble and learned friend Lord Thomas of Cwmgiedd, who has made it clear that we are seeking to persuade the Government to think again.

I want to respond to some of the comments made by the noble Lord, Lord Howarth of Newport. Our amendment is not prescriptive; it simply requires that if there is a forum, it should meet regularly, but it does not stipulate how often it should meet. Meeting means face-to-face discussion, and the forum is there to discuss the means of mitigating the impact on the constituent parts of the United Kingdom of the economic and security aspects envisaged in the future relationship. It is to avoid problems arising in the future.

We have already heard that negotiations with the EU are likely to result in agreements that have a very direct impact on many aspects of devolved competence. I would like to highlight just a few of these, some of which are very close to my heart.

The first is the capacity of Welsh universities to access EU research funds and collaborative projects in the future. Over the last 20 years, access to these funds, and to the networks they have generated, has proved critical to boosting the research capacity of Welsh higher education institutions, including medical research. Indeed, a finding from Cardiff University made headlines yesterday about new ways to manage cancers. We have been reliant on, and have built on, the funds we have accessed. The interaction between projects funded by research and development framework programmes and those funded by structural funds has been particularly important, as the Welsh Government have demonstrated in their publication on research and development after Brexit. Whether and how the UK, and therefore Wales, can access these funds will be determined by the negotiations with the EU.

The second aspect—whether there will be any reciprocal arrangements in future between the EU and the UK to access health services—is again a matter for the negotiations. I would support such arrangements, but it needs to be recognised that if such commitments are made by the UK Government, it is the Welsh NHS that will have to pick up the cost of treatment provided in Wales.

The third issue is procurement rules. Procurement is a devolved matter, and the Welsh Government are certainly interested in strengthening the way in which procurement can support, rather than undermine, local purchasing. But we know that the EU, as part of the insistence on maintaining a level playing field, will start from the position that its approach to procurement must continue even post Brexit. Wales needs to have a voice in the discussion within the UK negotiating team about any trade-off between flexibility on procurement and unfettered access to the EU market.

I could give many more examples: the future of state aid rules governing the assistance which the Welsh Government may give to Welsh businesses; access to European markets for Welsh agri-food products, such as lamb, beef and seafood; and whether or not Welsh students and pupils will have access to the Erasmus+ programme of student exchanges—to name but a few.

The key point is that the Welsh Government and the Senedd will be bound by the outcomes of the negotiations, which will begin in only a few weeks. We have already heard that Ministers of the Crown have the powers to force the devolved institutions to comply if they disagree with these outcomes. In these circumstances, it surely makes sense for the Government to start from the position where the default is to reach agreement with the devolved Administrations in the approach to negotiations. Otherwise, I fear that the result will be bitter and very prolonged conflict between the devolved institutions and the Government, which would seriously threaten the union itself.

European Union (Withdrawal Agreement) Bill

Lord Morris of Aberavon Excerpts

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

[Baroness Butler-Sloss (CB)]

My Lords, I had not intended to speak, but over the last week I have listened to the various representatives of the devolved Administrations in this union of ours. Speaking as a totally English person, without any relationships in any of the three devolved areas—other than being married to an Ulsterman—I think that we English ought to be very careful and listen to what the devolved areas are saying to us. It was said earlier that the Government, and indeed many English people, might not really appreciate what devolution has meant. Perhaps it is time we did.

[Lord Morris of Aberavon (Lab)]

My Lords, I support the amendment, which would put in statutory form what has grown into an important convention. I would like clarification, which I failed to get in yesterday’s debate, regarding the breadth of the convention. I asked a specific question:

“will the Minister clarify and emphasise that legislative consent would normally be required for any regulation that would be brought in under this Act?”—[Official Report, 20/1/20; col. 958.]

I was referring in particular to Clause 21.

As I did not get satisfaction from the Minister’s reply, I repeated my question later, saying:

“I might be a slow learner, but, following the point made by the noble and learned Lord, Lord Thomas, I would like to know which specific points cannot be dealt with by a Section 109 order.”


A Section 109 order would be a consensual matter, as opposed to one imposed from Westminster. The Minister replied:

“I cannot give the noble and learned Lord the answer to that question, but I can give him the assurance, from speaking to my legal advisers, that in the negotiations that will unfold there will be areas that we think will be under discussion that might stand outside those areas I have touched on regarding Section 109 and the ability to direct Welsh Ministers.”—[Official Report, 20/1/20; col. 964.]


Perhaps now, after some more thought, the Front Bench can give the clarification that I required on how, from the viewpoint of Her Majesty’s Government, the convention would be implemented.

[Baroness Finlay of Llandaff (CB)]

My Lords, like others who have spoken about devolution, I have made many points and will not repeat them. However, it is important that the Government do not misinterpret the vote to leave the EU on the back of the slogan of “taking back control” as a vote for yet more concentration of power in the hands of people who work within a mile or so of this building. People want a sense of direct influence over their lives and things that really matter to them.

The amendment simply supports the status quo of the Sewel convention. It respects the relationship between Westminster, the Scottish Parliament and the Senedd. I urge the Government to recognise that it does nothing to constrain their agility in negotiating or their ability to negotiate. If the culture change that the noble Lord, Lord Howarth, spoke about so eloquently today is to happen, surely we must recognise that there are Governments other than the one in this Chamber and at the other end of this building.