Devolved Administrations: Memorandum of Understanding

Lord Thomas of Gresford Excerpts

Monday 20th November 2017 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I, too, thank the noble Lord, Lord Empey, for raising this very important topic.

Paragraph 20 of the memorandum of understanding states:

“The UK Government will involve the devolved administrations as fully as possible in discussions about the formulation of the UK’s policy position on all EU and international issues which touch on devolved matters”.


Paragraph B2.5 of the annexed Concordat on Co-ordination of European Union Policy Issues—Wales states that,

“the UK Government wishes to involve the Welsh Ministers as directly and fully as possible in decision making on EU matters which touch on devolved areas”.

Nothing could more directly touch on devolved areas than Brexit. Nevertheless, the Government have failed adequately to discuss the formulation of the UK’s policy position with the Welsh Government and have not involved Welsh Ministers—directly or, indeed, indirectly—in decision-making about the negotiations.

These failures have led to an impasse such that neither the Welsh Assembly nor the Scottish Parliament will grant legislative consent to the withdrawal Bill currently before the House of Commons. Welsh and Scottish parliamentarians from every political party in the devolved Administrations, including the Conservatives, met the junior Minister in Committee Room 4A last month—I was present—and made it clear to him that they were united in refusing legislative consent to the Bill in its present form.

Why is that? Currently, the Welsh Assembly and the Welsh Government are legally obliged to comply with EU law. Although legislative competence has been devolved from Westminster, their policy autonomy is significantly constrained in areas such as agriculture, environmental protection, state aid for industry, public procurement, and aspects of transport and energy by that framework of EU law. The effect of the withdrawal Bill is to remove the need for such compliance. These policy areas would, without more, fall completely under devolved control and quickly give rise to significant policy differences—so the Government, quite naturally, have concerns about the coherence of the internal UK market.

During Second Reading on 7 September the Minister, David Davis, said that the purpose of the devolution section of the withdrawal Bill was,

“recreating in UK law the common frameworks currently provided by EU law, and providing that the devolved institutions cannot generally modify them”.—[Official Report, Commons, 7/9/17; col. 354.]

The Joint Ministerial Committee (EU Negotiations), formed under the aegis of the memorandum of understanding, met for the first time in eight months on 16 October last. It issued a weak communiqué, which posited UK frameworks setting out a common approach and common goals. But, under the Bill, it is Westminster which will have the sole power to legislate to replace the EU frameworks with UK frameworks.

We in Wales have by and large been content with the EU framework agreements, based upon a wide perspective of the needs of the states, nations and regions of Europe. Wales is indeed a net beneficiary of European funds, which have significantly helped our deprived areas and our upland farms. But, when a UK framework is created by a Conservative Executive at Westminster, other considerations are bound to come into play. The politics of cutting the cake are very different. Even supposing that European funding is replaced, there are electoral considerations. There is, above all, the English question—the asymmetric aspect of the United Kingdom. Wales is not a priority. Scotland has some clout, simply with the threat of another referendum on independence. Northern Ireland can play its cards with the problems of the Irish border and the threat of a total breakdown of the Belfast agreement—and, in any event, the DUP holds the Government’s majority in its hands, not to mention a cash subsidy of £1 billion. By contrast, Wales holds no levers, and the Welsh Assembly Government is not a friend of the current Tory Administration.

There are 64 policy areas where powers returning from the EU intersect with the Welsh devolution settlement. The plan is that major powers will not go directly to Cardiff but will be retained in Westminster to be devolved, if at all, at the discretion of Ministers by statutory instrument—not even by the will of the Westminster Parliament in primary legislation. This basic lack of democratic process is at the heart of the disquiet voiced by all the devolved Administrations over the withdrawal Bill. In all this, the consultation aspects of the memorandum of understanding, with its joint ministerial committees meeting rarely, if at all, have been a dead letter. They should be scrapped. I am with the noble Lord, Lord Lexden: what is needed without further delay is a statutory UK Council of Ministers, drawing upon all the devolved Administrations and central government so that it can discuss and resolve the many problems that this Tory Brexit throws up.