European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

If I may, I will follow on from the points made by the noble Duke about the aspects of the Bill that deal with relations between the constituent parts of the union.

It seems to me that it is inevitable that, as the Bill proceeds and as devolution has to be reconsidered, significant changes may be required to the schemes of devolution as envisaged in the original Bill. Therefore, it is important that, in this Bill, we have regard to two issues. The first is that a terrible precedent would be set if we altered the devolution legislation other than by primary legislation of this House. It is important to recall that the devolution statutes now form part of our constitution; if they are to be amended, they should be amended by primary legislation.

Secondly, going forward, although there may be reasons why parliamentary supervision, and parliamentary time, in relation to the conduct of the negotiations might not be a good idea—I say nothing about that—it is equally important that we have regard to the fact that the devolved Governments have a vital interest in all the negotiations. If we are to go forward with a stronger union and make new arrangements for devolution, it is important that we start as we mean to continue—that is, with the devolved Governments being closely involved in the negotiations and consulted widely as to where we are going, because that is essential for the future of the union, and, secondly, ensuring that any changes made to the devolution statutes are not made using the powers that this Bill intends to confer.

I hope that the House will consider these two points very carefully because, when we enter a future outside the European Union—and I am looking solely to the future, not the past—I hope that we have a union that is stronger. But that strength will not be achieved if we do not start as we mean to continue, and that is by not altering the devolution settlement schemes by way of delegated powers and again leaving out of the way in which the negotiations are conducted obtaining views from and consulting widely with the devolved Governments.

European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

I should correct the noble Lord. Amendment 59 is part of this group, and therefore if he wishes to speak to it, he should do so.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I confess my inexperience in this court of Parliament in knowing whether it is the right opportunity to raise Amendment 59. I will do so. This may seem a very small point, but it goes to two points that underlie the amendments to which we will turn in due course. The first is the need to ensure that the Bill respects our constitution as regards devolution and that the devolution statutes that form part of our constitution are altered in a proper and constitutional manner. Secondly, going forward with our life outside the European Union, we achieve a stronger union by making sure that there is the closest possible working together of the devolved Governments, Assemblies and Parliaments with the Government at Westminster.

Although the amendment is addressed to deal with the position in Scotland, Northern Ireland and Wales together—logically it has to be—I approach this from the standpoint of Wales, for two reasons. First of all, my own experience of that devolution settlement is much clearer than my experience of the others. Secondly, I really think it of importance that in this House we try to do all we can to make sure that Wales, the Welsh Government and the Welsh Assembly understand that the union will work for the future as envisaged in the devolution statutes.

It may seem that devolution is not that important at this time in the context of this Bill, and I can well understand that view. But it is important to reflect for the future and to realise that much will need to be done to the way in which devolution operates when we are outside the European Union and with our own internal market. Those are the general points that underline my seeking to make this amendment.

The purpose of the amendment is to ensure that the principles agreed in respect of the IMA’s composition, as set out in the schedule, are carried forward in the event that a new body is created pursuant to the powers that have been added to the Bill. As regards the obligation to appoint the non-executive members of the IMA, provision is made in the Bill that the Secretary of State will appoint those with experience in relation to Scotland, in relation to Wales and in relation to Northern Ireland, who understand how the systems there work. This is plainly a proper and right provision as, over the past 20 years, as any examination of the detailed operation of devolution will show, things have changed. I find it sometimes regrettable that those who occupy the ministries in Whitehall do not realise the extent of that change. I therefore appreciate what the Government have done through this provision and the further discussions they have had of the role of the Welsh Administration and Welsh Ministers in the selection of the appropriate person. However, the provision is not carried forward if the functions of the IMA are transferred to a new body.

I accept that it is a small point, but small points can go a long way to ensure that the spirit of devolution and the constitution is respected. Of course the Government can say that there will be no change, no statement made and no clarification, but would that be wise? With the utmost respect, I suggest that it would not be wise because it would point out that even a small change that can capture the spirit of the way forward is something that the Government will not contemplate. On the other hand, if some assurance were given about any future transfer to a new body, is not that the first step in showing that the spirit of a post- devolution UK will be respected by this Government?

[Lord Wigley]

My Lords, I am delighted to support Amendment 59, standing in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, to which I added my name, although too late for it to appear on the Marshalled List today.

The IMA is intended to provide assurance to EU citizens who have already established their rights to live and work in the United Kingdom that, after we leave the EU, they will continue to enjoy the same rights as they do now, which flow from the principle of freedom of movement under which they first moved to the United Kingdom. The IMA will be able to investigate complaints by individual EU citizens and members of their families if it believes these complaints to have been compromised in any way.

Since such rights include access to public services, such complaints could be directed against one of the devolved Administrations. An example pointed out to me is of a Polish citizen who moved to Wales perhaps 10 years ago, and who might take up a question with the IMA if they believed that, in 2022, changes to administrative procedures in the Welsh NHS had made it impossible for them to access its services on the same basis as UK citizens. That is a matter that quite clearly has a direct relationship to the responsibilities of the National Assembly for Wales, and there will be parallels in Scotland and in Northern Ireland. It is therefore essential that the IMA has a good knowledge and understanding of the circumstances in each part of the United Kingdom. This applies to its non-executive members, as well as to its staff, who I understand are likely to be based in Wales—perhaps the Minister can confirm that.

European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee: 1st sitting (Hansard continued) & Committee stage & Committee: 1st sitting (Hansard continued): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, earlier in our deliberations we debated some relatively small-scale Henry VIII powers that the Government were seeking to arrogate to themselves. We listened to entirely unsatisfactory explanations from the Front Bench attempting to justify them. But here we have a really egregious set of Henry VIII powers—the most whopping great Henry VIII powers.

If you look at Clauses 21 and 41 together, you see that the Government are proposing to take to themselves a power not only to amend primary legislation but even to abolish any statute that may have been enacted in centuries past to right up until the end of this year. I do not for a moment think that is what the Government specifically intend to do but it is offensive in principle that they should draft legislation of this character.

Let us bear in mind that the purpose of Brexit is to restore parliamentary government. It is not a decent thing for the Government to do to take this opportunity to make a large power grab on the part of the Executive. The Government should be respectful of Parliament. They should be prepared to work with Parliament. If they have significant changes of policy and legislation that they wish to propose, I do not doubt that Parliament will engage very constructively with the Government in their purposes.

Henry VIII powers are objectionable in principle and it is essential that the Minister gives us a full explanation and, if he can devise one, a justification for the taking of these extraordinary powers, which are constitutionally improper. It will not do if he seeks to argue that circumstances in Northern Ireland are peculiarly sensitive and complex. They always are, but there are certain abiding constitutional principles that the Government should respect, and that should be the spirit of this new Government’s approach in their dealings with Parliament.

[Lord Thomas of Cwmgiedd (CB)]

I will make one or two observations, if I may. I accept that it is plainly the obligation of the United Kingdom Government to take steps to implement their international obligations—the justification given by the Minister in his summing up yesterday evening. It is also right that there may be circumstances in which changes to the devolution legislation are needed. But there are ways of doing this, which have been admirably explained.

This Henry VIII clause is extraordinary because it enables the Government not merely to amend the Act but to repeal it. I cannot conceive that anyone who was drafting this with a degree of sense would ever have thought the Government would repeal the Act. When you look at the wording—it is quite useful to look at wording—this has been drafted without any regard to the realities of a union Government. This clause is manifestly deficient in that it goes way beyond anything that could conceivably be needed, even if you ignore the argument about the precedent being set.

The Government should think again. There are proper ways of doing things. I respectfully ask them to see whether they can come back with something different, or, at the very least, explain fully what they intend to do—what consultation they intend to carry out—before they repeal the Act. It is difficult to see how you would ever think that the Act needed to be repealed. One must always recall that the union of England and Wales was brought about by Henry VIII. It would be an extraordinary irony if a Henry VIII clause was used to begin the undermining of that union.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)]

My Lords, this has been an interesting discussion, which has focused on a broad range of issues affecting the wider devolution settlement.

Some things need to be set out very clearly at the outset. The first thing is that the purpose of the protocol, which was not mentioned a great deal in the discussion, is to ensure the delivery of clean access within the island of Ireland between Ireland and the UK. This is to ensure the integrity of the customs union of the United Kingdom but also that we have the powers available as we go forward in the calendar year ahead to make necessary amendments in real time to the various elements that will be required as we seek to deliver on the Northern Ireland protocol. The important thing to stress is that we are in a situation in which time is of the essence, but that can never be an excuse.

Secondly, a number of noble Lords have spoken of the repeal of the devolution settlements almost as a Domesday scenario. There was a reference to Henry VIII powers being used, in essence, to eliminate the devolution settlement with Wales or anywhere else. It is important to stress that this clause is in no way designed for, or seeks to achieve, that purpose. Where there are elements of primary legislation which are to be amended, this will be done through the affirmative procedure, which allows significant scrutiny to take place in both this House and the other place. It is important to recognise that we are not just talking about the letter of the law here, but the wider settlements which we have discussed more broadly with regard to Wales and Scotland. The very notion that we can, by some fiat, undo that which has been set in place through the devolution settlements is, frankly, borderline ludicrous. It is not going to happen.

European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

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

Moved by

[Lord Thomas of Cwmgiedd]

18: Clause 22, page 26, line 28, at end insert—
“( ) But regulations under this Part may not amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.”Member’s explanatory statement
This would ensure that regulations made under this Part may not make provision to amend the Scotland Act 1998, the Government of Wales Act 2006, and the Northern Ireland Act 1998 in line with restrictions under new paragraph 11G, Schedule 2 to the European Union (Withdrawal) Act 2018 (Clause 19).

[Lord Thomas of Cwmgiedd (CB)]

My Lords, yesterday, I explained the purpose of the amendments that we sought to make at that stage, and the first, second and fourth amendments in this group all underlie the same purpose; namely, to ensure that if changes are necessary to the devolution settlements, they are dealt with in a proper constitutional manner, and that when we are outside the EU, the spirit, as well as the letter, of the devolution settlements is followed and the Government at Westminster pay the greatest regard to those.

I should make it clear, as I did yesterday, that I approach this from the standpoint of Wales, in part because that is where, by and large, my experience comes from, and because the union and its continuation is so important to Wales. It is essential that this House, and, I hope, Her Majesty’s Government, give every encouragement to those in Wales who wish to see the union strengthened, and by close co-operation. It may seem that these devolution issues are not that important at this time, but they are. It is inevitable that the devolution schemes will have to be looked at in the light of our departure from the European Union.

I will deal with each of the three proposed amendments, the first of which seeks to amend Clause 22. I intend to say very little about this. It follows on from last night’s debate on the amendments to Clause 21 and the extent to which powers conferred in that clause are not subject to limitations. The same arguments apply to Clause 22. In light of the position that was left last night, I see no point in advancing the arguments to the same effect all over again.

On Clause 26 and Amendment 23, in a way, this amendment comes out of order, because it presupposes that the amendments suggested that would delete proposed new subsections 5A and 5B in the name of the noble Lord, Lord Pannick, and other noble Lords, will not proceed. I will make some observations in due course in support of the objectives of the clause, but not on the manner in which those objectives are sought to be carried out. I will make those observations when we come to that amendment. This amendment addresses a much simpler issue: the importance of giving due regard to the views of the devolved Administrations in Wales, Scotland and—now that it is again in place—Northern Ireland, in formulating any draft regulations of the kind envisaged in the clause, both as to the courts that are to be entitled to depart from previous decisions and the tests that are to be applied.

The clause rightly provides for prior consultation with the judiciary if Ministers decide to proceed in this way. Although Wales’s judiciary is linked with that of England at present, I ought to declare that I presided over a commission appointed by the Welsh Government that examined the future of the legal system in Wales, and in particular, the possible establishment in due course—long outside the scope of the time of this Bill, of course—of a separate judiciary in Wales. The clause also provides for other persons to be consulted but does not list them. Neither Welsh, nor Scottish nor Northern Ireland Ministers are included in the list of consultees. However, bearing in mind that retained EU case law is comprehensive in its definition, and that both the devolved legislatures and the devolved Governments have made legislation and acted on the basis of current law within the devolved fields, it seems obvious that they should be consulted if there is to be a change in the scope of the courts and a new test is to be laid down. They are vitally affected by it, and they should not be left out. The amendment is simple, asking that the role of the devolved Assemblies and Administrations be recognised. I understand that when this clause first appeared in the Bill, there had been no prior discussion with Welsh Ministers about this issue. I hope that the Government will look at it and give the closest possible attention to this amendment.

On Clause 38 and Amendment 45, as the report of the Constitution Committee states in welcoming this clause’s recognising the sovereignty of Parliament, the clause has no legal effect. It may therefore be surprising that I wish to take up time on a clause that has no legal effect. However, the Explanatory Memorandum also makes it clear that there is no material difference to the position of Parliament. Yet I agree that there are circumstances in which it is useful to remind people of the basics of our constitution, and this is no exception.

However, this amendment has been tabled because if there is to be such a reminder—the clause can have no purpose other than that—it should be recognised that since 1998, there has been a significant change to the constitution and in particular to the devolved schemes of administration. In failing to refer to the Sewel convention, which provides that Parliament will not normally legislate without the agreement of the National Assembly, the Scottish Parliament and the Government of Northern Ireland in relation to devolved matters, the clause does not put in place the correct balance of our constitution as it now moves forward. The amendment has been tabled to provide such a reference. It would ensure that for the future—as I hope would be the case in any event—the importance of the devolution settlement is critical to how the union is preserved as we go forward to our life outside the European Union. I beg to move.

--- Later in debate ---

The amendment suggests that the convention applies to the entering into and ratification of international treaties, such as the future relationship agreement. It does not. The entering into and ratification of treaties is a reserved matter. As a matter of law, under the devolution settlements, international relations are the responsibility of the UK Government and Parliament, which includes MPs representing all parts of the UK. However, that is not to say that the devolved Administrations do not have a direct interest in our future relationship with the EU. As I have made abundantly clear, of course they do, and we will draw on their knowledge and expertise to secure an agreement that works for the whole of the UK. As always, we will seek legislative consent for any related primary legislation, including that required to implement the agreement, in areas that are in the competence of the devolved legislatures. I do not believe that this amendment will facilitate this process any further and I therefore urge the noble and learned Lord to withdraw it.

[Lord Thomas of Cwmgiedd]

I am grateful to all noble Lords, who have spoken in this debate. It has underlined how important it is for the future that we look carefully at these devolution issues and, in particular—what I regret to say is my experience as well—address a lack of understanding of the significance of devolution as we go forward.

Things have improved from the first occasion when I had to talk to an official about laying out legislation slightly more carefully so that Wales’s position was clear. He told us, “Yes, they did that in agriculture Bills for sheep, so they could easily do it in other Bills for Wales”. Things are better than that, but maybe not better enough.

It is very important that we put in place the necessary assurances—preferably in legislation, but also by way of structure. Words are fine, but deeds are better. I hope that, by raising these points, we will show that we can proceed with respect for our changed constitutional position and that we in this House—and the Government as well—can do everything possible to reduce the risk of any split in the union. With regard to Wales, it is important that those who may wish to see the union not continue be given no further ammunition for their cause.

Three amendments stand in my name and in the names of other noble Lords. The issue in Amendment 18 arose last night in relation to Clause 21. At the conclusion of the debate, the Minister said he would produce a memorandum which would try to explain why restrictions could not be placed on these powers. I still do not understand why not. These are a perfectly proper means of changing the devolution settlement. If the Governments of Wales, Scotland and Northern Ireland are agreeable, the Section 109 route—to take the example of Wales—will do so. I did not address this issue at any length because the better course is to await the memorandum which the Minister has promised to see how we might go forward.

On Amendment 23, I am very grateful for the assurance given and will consider that further. As to Amendment 45, the clause has no legal effect, but what is really important is that we try to show the people of Wales, of Scotland and of Ireland that things have changed. When we go forward as a United Kingdom, that is something that everyone, particularly those in London, should bear fully in mind. However, I am very grateful for all the speeches that have been made and in the light of the debate, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

--- Later in debate ---

[Lord Judge (CB)]

My Lords, like the noble and learned Lord, Lord Neuberger, I too would welcome some clarity in this field, but I do not think that clarity can be provided by Ministers creating regulations behind the scenes and then serving them up to the House of Commons, which has not rejected any ministerial regulation since 1979, or this House, which has rejected them on minimal occasions, and by doing so in 2015 apparently caused a constitutional crisis. The issue is very simple. Of course there should be clarity and of course it should be provided by Parliament. We will now be considering what is domestic law. We call it EU case law, but the whole point of the process that we are going through is that it will become British EU-retained law. It will be British law and no longer EU law. It is that which will be interfered with.

I could spend some time going through the doctrines of precedents. They are very clear and simple. I remind the House that they have provided a way of achieving legal certainty. You can conduct your affairs with a degree of legal certainty. You can conduct your business, conduct your tax affairs and deal with foreigners outside this country. They tend to want to come to this country because the law is certain and clear. Yet simultaneously, and it is one of the great glories of our system, we have common law that goes back to 1189 that has enabled the law to develop, flourish and adapt as and when it became appropriate and necessary to do so. The greatest tribute to the common law is that it carries the day in all English-speaking countries. It is still used in India and Australia—adapted, of course, because that is one of its fundamental strengths, to conditions there.

I gave a lecture and talked to people who have suffered the horrendous problems of Bhopal, which not many of us will forget. There is a perfectly good legal principle—British, as it happens—called Rylands v Fletcher, which decided in Victorian times to create a new system. If you bring dangerous things on to your land, it is your job to keep them in, and if they get out, you are responsible. That was the common law working with absolute certainty to produce a new way of looking at the responsibilities of the landowner. So between them, the principles of legal certainty and the use of the common law enabled our law to develop.

Here, the noble and learned Lord the Minister, as the noble Lord, Lord Beith, reminded us, with his own personal experience, asserted on Monday by repeating that

“there is no intention on the part of the Government to extend the power to every court and tribunal in the land.”—[Official Report, 13/1/2020; col. 555.]

But that is the power that is being given by this legislation as it stands to a Minister. If that is not the Government’s intention, what on earth is the point of giving the power in the legislation to the Minister?

Where do we go? This permits the Minister to make regulations that would create jurisdiction in any court at any level to disapply retained EU case law, which is our law. Just think of the district judge sitting in, for example, Pontypool County Court, bound by all the decisions of all the courts above him or her by our own native law—Occupiers’ Liability Act, Unfair Contract Terms Act and even the Finance Act—who is then told, “Here is the EU case law. You are not bound by anyone’s decisions on that, so take a running jump at it.”

That in truth is what the poor judge will have to do. Think of his poor colleague in Penrith County Court, faced with a large organisation taking advantage of this new system by going to a small county court without the experience to respond to: “This bit of EU case law really troubles us. Your honour is not bound by it, so here are the reasons you should find for us.” To be fair, it could happen the other way around with a litigant who knows perfectly well that under case law he has no case, going to the same judge and saying, against a large business organisation, “They cannot rely on the case law any more, because you are not bound by it.” The same could happen in a tax tribunal or a VAT tribunal. All of this is quite unnecessary because, as the Minister has said, that is not the Government’s intention.

I would love to have a go at Henry VIII, whether he is filled with fat or with whatever drug to describe this condition today, but I am going to resist the temptation to do so, because I want the Government to realise that this is nothing more than a reasonable argument that needs to be addressed. All that is needed, without causing any delay to Brexit or creating a problem on 31 January, is for the Government to decide what arrangement should be put before Parliament in primary legislation to achieve the desired objective.

As an example, I did a bit of drafting last night so that they could say, “The Supreme Court and/or the Court of Appeal in England and Wales and the High Court of Justiciary in Scotland are not bound by retained EU case law”. Or the Government could say that those courts may depart from any retained EU case law if and when. It is not difficult, and I will offer myself to the Minister to sit down and talk it over with him if that would help. If Ministers are listening, perhaps that offer will be taken up. However, we have to address the principle, because the slightest incursion into judicial processes must be for Parliament, not for Ministers.

[Lord Thomas of Cwmgiedd]

Perhaps I may make some brief observations, in part in support of the underlying purpose of what the Government have said they want to do, but in total support of this amendment. As I understand the position, the Government want courts other than the Supreme Court or the High Court of Justiciary in Scotland to have power not to follow decisions of the CJEU on retained law. That is a purpose I support. In the course of the debate on the withdrawal Bill, in particular the Report stage in April 2018, I asked the Government to think again in relation to allowing the Court of Appeal in England and Wales, the Inner House in Scotland and the Court of Appeal in Northern Ireland to have this power.

European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

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

[Lord Judge (CB)]

My Lords, I cannot resist the invitation. First, a word of apology to the noble Baroness, Lady Hayter; I was not here for her very first words, but I was on my way.

Can we just pause? We are going to give a Minister power, if he so chooses, to impose taxation. The whole basis of our democracy started because no taxation was allowed without representation. The Americans picked it up in 1776, but it goes right back to Clause 12 of Magna Carta. The way Henry VIII powers are being used now has led to constant protests by the parties in opposition and by Cross-Benchers.

The time has come for us to address the difficult problem and decide that, if the powers given under these Henry VIII clauses are being misused, we will reject the affirmative process when they are put before us and take it on. If and when Labour comes to power, and one day it will, or if and when the Liberals come to power, and maybe they will, let us hope that when they are addressing Parliament and creating Henry VIII clauses they will remember their hostility to them now and allow the then Opposition, the Conservatives, to lead an attack on affirmative resolutions misusing these powers.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak to Amendments 5 and 7. The same arguments apply to both, so I will deal with them together.

The purpose of these amendments, as with all the amendments we have moved, is to try to ensure that, for the future and in the passage of this Bill, the union is strengthened. To that end, it is of the greatest importance that amendments to the devolution statutes should be made only by primary legislation or by the procedures under the pieces of legislation, such as Section 109 of the Government of Wales Act, that allow amendments to be made by consent. Secondly, we should go forward in our negotiations with the European Union and in the adjustments necessary within the UK in a spirit that honours the constitution as changed as a result of devolution—not merely its letter, but its spirit.

The amendments that we seek to raise address two distinct points. First, why are these powers needed, if it is said that they are, to implement the international obligations of the United Kingdom? Secondly—this is quite a distinct issue—why are these powers needed to implement the United Kingdom Government’s commitment to unfettered access for Northern Ireland goods to Great Britain? They raise entirely different constitutional issues and need to be looked at separately.

As regards the claim that they are needed to implement the international obligations of the United Kingdom, the powers under the Government of Wales Act, particularly Sections 82 and 114, give the Government very significant powers to direct the Welsh legislature and Welsh Ministers, so that what they do complies with international obligations. It is difficult to see why those are not sufficient.

Secondly, the astonishing breadth of these powers enables the Minister to repeal the devolution statutes. The Minister has in his helpful letter indicated that the Government would never contemplate doing so. Indeed, it is asserted that there would be no power to do so given the restrictions in the Bill on what can be done in respect of these powers to the implementation of the protocol. If that is the case, why is this not spelled out in legislation? Why is there not some limit on the Henry VIII powers?

--- Later in debate ---

[Lord Duncan of Springbank]

I had a note on that. I will have to write to the noble Lord, because I am not sure that I can put my hands on that particular matter at this second. If he will allow me, I will come back to him on that. The point is that the amendments we are talking about concern Clauses 21 and 22, not Clause 41, which would not be amended by these particular amendments.

[Lord Thomas of Cwmgiedd]

Before the Minister sits down, could he possibly give some illustration of the kind of provisions for which he and his officials feel it would be necessary to use these very extensive powers that cannot be done under the various sections of, for example, the Government of Wales Act, to which we have referred? Can he give some assurance about what they are? Are they merely technical issues or are they further? It seems extraordinary that, when there are these detailed powers and it is asserted that they are insufficient, no illustration can be given as to why they are necessary.

European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

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

Moved by

[Lord Thomas of Cwmgiedd]

17: After Clause 35, insert the following new Clause—
“Involvement of the devolved administrations
After section 10 of the European Union (Withdrawal) Act 2018 insert—“10A Involvement of the devolved administrationsThe Joint Ministerial Committee (EU Negotiations) is to be a forum that meets regularly—(a) for discussing—(i) the United Kingdom’s future relationship with the European Union,(ii) the economic and security impacts of that envisaged future relationship on the constituent parts of the United Kingdom, and(iii) means of mitigating the impacts mentioned in subparagraph (ii); and(b) for seeking a consensus on those matters between Her Majesty’s Government and the other members of the Joint Ministerial Committee.”Member’s explanatory statement
This amendment would place the Joint Ministerial Committee (EU Negotiations) on a statutory footing, requiring the Committee to seek consensus on the way forward in terms of the negotiations with the EU.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, in moving this amendment, we seek to insert a new clause after Clause 35. We are doing this in a much slimmed-down version of the clause that was before the House in Committee as Amendment 29. We do this in furtherance of the objective of strengthening the union, in this instance through the second means to which I referred yesterday, by ensuring proper consultation. We seek to set out the short principle that the Joint Ministerial Committee for EU Negotiations should be a statutory committee with clear purposes. Nowhere does the amendment seek to prescribe how the committee is to work. Neither does it require the making of Statements, or anything else at all that might be thought to impede the proper conduct of the negotiations with the European Union. It is there simply to ensure that the principle is accepted on the statute that this committee has a clear and defined purpose.

I would have hoped that, in the light of the many speeches made in Committee, it is clear that statutory recognition of this committee is required, given the way, as so many described, in which it has operated. If that was not the case in Committee, I would have thought that the debates yesterday in relation to Clause 21 would have demonstrated to Her Majesty’s Government how important it is to deal with the position of the devolved Governments and legislatures.

It is a simple fact that our constitution has changed during the period in which we have been in the European Union. We must therefore achieve a workable set of constitutional provisions to make that constitution work with the Governments and legislatures in Wales, Scotland and Northern Ireland, and not simply with this legislature and the Government in London—otherwise the union will be imperilled. This is a small step towards that end.

The conduct of international relations and negotiations is clearly a reserved matter and, as I said yesterday, there are plenty of powers not only in the existing legislation but in the clause carried yesterday to enable Ministers to ensure that in the devolved Administrations the international obligations incurred by Her Majesty’s Government are observed. But surely the United Kingdom must recognise that those are powers of last resort, and that the proper approach is to involve the devolved Governments fully in the negotiations by consulting them and trying to reach a consensus.

As this very modest amendment makes clear, it is not in any way intended to impose a veto. It is simply a way of trying to persuade and ensure that the Government will act in such a way that they strengthen the union. It takes into account, and is seen to take into account, the interests of Wales, Scotland and Northern Ireland as expressed through their constitutional institutions. This question of perception is extremely important if the union is to be strengthened.

There is a further consideration. The effect of the arrangements relating to the Northern Ireland protocol is to give the Northern Ireland Government attendance at some of the meetings of the joint committee: that is, the joint committee for the negotiations between Europe and the United Kingdom. This amendment, relating to the Joint Ministerial Committee—it is unfortunate that we have two committees with very similar names—is designed to ensure that the other two nations have, and are seen to have, the opportunity of expressing their interests so that the UK Government can go forward, with everyone knowing that those have been heard. It is a striking fact that countries such as Germany and Canada manage to conduct international relations while respecting the competences of their states and the other institutions that make up their countries. Indeed, the EU itself has conducted its negotiations successfully by taking into account the interests of the 27 other member states.

I fear, however, that the United Kingdom Government have not caught up with the impact of devolution on our constitution. They really ought to be doing all they can to help those who seek to strengthen the union, by ensuring that devolved Governments are consulted in accordance with not only the spirit of the constitution but its letter. It is surely not too much to ask of the United Kingdom Government, as today the Welsh Government are considering the legislative consent Motion, to think again about doing something to put on the statute book a clear commitment to the Joint Ministerial Committee. This is a critical issue and, if a difference could be made here, it would be far better to see the union go forward to this important stage in the development of our nation with the consent of all the devolved Governments, and not to risk the Welsh legislature taking a different view.

Might I suggest that, if possible, the Government think again now and look at this proposed new clause? It does nothing more than embody what should be clear. I very much hope that, when the Minister comes to deal with this issue, he will give a possible commitment to this clause, but also a clear assurance that this committee is going to work as it should work—given that, as was so ably explained in Committee, it is not working. This is not a lot to ask; it asks to strengthen the union, and it is important that the Government should try to help those who wish to strengthen the union, because there are many who do not. I beg to move.

--- Later in debate ---

[Earl Howe]

My Lords, I say again that it is our absolute wish and intention to engage constructively with the devolved Administrations over the negotiations ahead of us.

Intergovernmental relations have always operated by the agreement of the UK Government and the devolved Administrations. We wish that pattern to continue. The existing terms of reference of the JMC (EN) were agreed jointly in October 2016. In my view, and indeed in others’, those terms of reference have served us well, but to set the terms of reference in legislation would inhibit this joint process. Apart from anything else, to legislate for this would anticipate the outcome of the review of intergovernmental relations, due to be discussed with the devolved Administrations next week at the JMC (EN). Putting the terms of reference of the JMC (EN) in legislation would pre-empt those conversations and restrict the ability of the various Administrations to develop future intergovernmental structures, such as the JMC (EN), to reflect the constitutional relationship between the UK Government and the devolved Administrations once the UK leaves the EU.

I hope noble Lords will appreciate how important it is for the JMC (EN) to have flexibility in its role to develop and adapt as the negotiations progress. Indeed, the terms of reference proposed in this amendment seem to be narrower than the existing agreed terms of reference, which refer to

“issues stemming from the negotiation process which may impact upon or have consequences for the UK Government, the Scottish Government, the Welsh Government or the Northern Ireland Executive.”

This amendment would restrict the focus to economic and security matters. In fact, I believe that, if one reads the current terms of reference in full, one will find that they are miles better than those suggested in the amendment.

The essential point remains that a fixed statutory basis would not support the flexibility required to ensure that the JMC (EN) can operate as effectively as possible, which is what we want it to do. I hope I have provided noble Lords with assurances of the Government’s commitment to work collaboratively with the devolved Administrations to discuss their requirements of the future relationship with the EU. In the light of those assurances, I respectfully ask the noble and learned Lord to withdraw his amendment.

[Lord Thomas of Cwmgiedd]

My Lords, I am grateful for what the Minister has said, but I fear that we have to address the issues of devolution and our changed constitution, and the sooner we do that the better. Looking to put matters on the statute book seems to me inevitable. However, in the light of what has been said, disappointed though I am that the noble Earl, Lord Howe, would not give the commitment that I asked for, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

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

[Baroness Bryan of Partick (Lab)]

My Lords, I think it is fair to say that, had we not been in the EU when devolution occurred, we would most certainly have moved towards a more federal arrangement in this country. The fact that our regulations were shared across the UK, even in devolved areas, covered the need for a federal arrangement where the different Assemblies and Parliaments could come together. Now that we will be out of the EU, there is a fair degree of urgency to address this. How are we going to devise regulations in the future? If we start that process by not including the Sewel convention, we start from a point where levels of disagreement are such that it will be hard to have that debate in a calm, careful way. We should accept this amendment, but also go on to explore the ways in which, where devolved matters intercept, we will work together in future across territorial areas. I hope that we can accept this amendment.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I rise briefly in support of this amendment, to which I have added my name. I explained earlier today, and yesterday, why it is vital for this Government to recognise the importance of devolution as we go forward. This is a purely symbolic clause which does not make any difference. It could be left out. But, if it is to go in, can it please acknowledge that we live in a United Kingdom that has changed and where we must recognise the devolved legislatures? Conventions are of the utmost importance in this respect and should be recognised in the Bill.