European Union (Withdrawal) Bill

Lord Tyler Excerpts

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

Moved by

[Lord Tyler]

305: Clause 11, page 7, leave out lines 37 and 38

[Lord Tyler (LD)]

My Lords, on behalf of the noble Lord, Lord Blencathra, and at his request, I will move Amendment 305 in his name and speak to the other amendments which he has tabled in this group.

The noble Lord is chairman of the Delegated Powers and Regulatory Reform Committee, on which I also serve. He is involved today in important discussions in Edinburgh in that capacity and very much regrets this clash of commitments. He had anticipated that the group would be reached last Wednesday but it was not to be. My role as the nominee from the substitutes’ bench enables me to emphasise two points in support of the amendments. First, although they may seem primarily concerned with the devolution implications of the Bill in its current form, and the noble Lord, Lord Blencathra, might have referred to his Scottish connections, these issues are in fact of more general UK constitutional significance. As a Cornishman and fellow Celt, I agree with him. Secondly, his request to me—I hope other members of the DPRRC enthusiastically endorse his suggested amendments—underlines the unanimity with which this non-partisan, cross-party committee advises the House on these important issues.

Although the amendments in this group refer to the proposed treatment of retained EU restrictions in devolution legislation in Clause 11, and to executive competence in Schedule 3, it is the strong contention of the noble Lord, Lord Blencathra, and the DPRRC, that wider constitutional precedents are in play here.

To reinforce these points I refer Members of your Lordships’ House to the main arguments we advanced in our third report of this Session, but since it was published as long ago as September 2017 and others may not recall all the detail, I wish to refresh some memories. The Government’s delegated powers memorandum described Clause 11 as a transitional arrangement to provide certainty after exit day and allow intensive discussion and consultation with devolved authorities on where lasting common frameworks are needed. As regards the power to prescribe exceptions by Order in Council, the memorandum asserted that its purpose is to provide an appropriate mechanism to broaden the parameters of devolved competence in respect of retained EU law. It adopts a similar approach to established procedure within the devolution legislation for devolving new powers: for example, Section 30 orders in the Scotland Act 1998. Without the power, it would be necessary for the UK Parliament to pass primary legislation to legislate the consent Motions from the relevant devolved legislatures in order to release areas from the new competence limit.

Our committee doubted the validity of those precedents and whether that was the best way to deal with them in any case. We said in our report at paragraph 54:

“We doubt whether the powers in clause 11 and Schedule 3 are analogous to existing procedures in the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006 (as amended in 2017)”.


The lists of reserved matters in the devolution enactments are, for the most part, relatively straightforward, but this is not the case with the concept of retained EU law, which is defined in Clause 6, as follows:

“anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6),

of Clause 6,

“(as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time)”.

I think all Members of your Lordships’ House will agree that that is complex, obscure and something of a moving target in view of the words in brackets at the end of that definition. Therefore, there may well be significant potential for disputes after exit day between the UK Government and the devolved Administrations about what does or does not constitute retained EU law. It might ultimately require resolution by the Supreme Court. There is a warning note for us all.

The committee was also puzzled by the memorandum’s description of Clause 11 as a transitional provision. It is not drafted in those terms and could remain indefinitely. The Government in their advice to the committee and to the House appear to envisage that the Order in Council procedure will distribute competences returned from the EU to the devolved institutions, following negotiations with them, but the memorandum gives no convincing explanation as to why it is considered appropriate to implement any agreement following these negotiations by delegated legislation rather than by primary legislation—a separate Bill. Revisions to the three devolution settlements in the light of EU withdrawal will be of considerable constitutional significance. The committee anticipates that both Houses of Parliament would wish to closely scrutinise proposed legislation amending the settlements and to have the opportunity to amend it, as has happened with all major changes to devolution since 1998.

I quote paragraph 59 in full. It states:

“On an issue as important as this, we regard it as unacceptable for Parliament to be presented with a draft Order in Council and given a simple choice of ‘take it or leave it’. The Government should instead bring forward a separate Bill. It is, of course, not for us to express a view as to which competencies returned from the EU should be devolved to Belfast, Cardiff or Edinburgh. We are concerned only with the issue of whether it is appropriate for this to be done by delegated powers. In our view, it is not”.


Then our recommendation at paragraph 60 states:

“The Order in Council powers in clause 11 and Schedule 3 are inappropriate and should be removed. Separate Bills should be introduced in Parliament to provide for the conferral on devolved institutions of competencies repatriated from the EU”.


The noble Lord, Lord Blencathra, has been forthright in arguing the case presented by the Delegated Powers and Regulatory Reform Committee. He asked me to say:

“I am totally committed to the amendments and my absence should not be regarded as any lack of support for them … whatever the powers are then they should be in primary legislation as were all the devolved settlements”.


I beg to move.

--- Later in debate ---

I thank noble Lords for a useful discussion on this issue but, in the light of the undertakings I have given about the specific and the generality, I appeal to the noble Lord, Lord Tyler, to withdraw the amendment at this stage.

[Lord Tyler]

My Lords, I apologise to the Minister that the news that I was the nominated understudy on this occasion did not reach him. I thought I had informed everyone who needed to know.

The noble Lord, Lord Blencathra, will be delighted not only by the views expressed by other noble Lords but by the fact that the Minister is listening regarding the way this important matter should be treated. I am particularly grateful to the noble and learned Lord, Lord Mackay. Given his experience and expertise, when he says that something is so complex in this sensitive area that it is doomed to failure—I think I quote him correctly—his colleagues on the Government Front Bench should listen carefully to that advice.

The Minister accepts that there is some merit to the Delegated Powers and Regulatory Reform Committee’s argument. The committee will welcome that and the noble Lord, Lord Blencathra, and those of us on the committee will be pleased to enter into discussions on the issue. However, we need to do it quickly because the matter should be dealt with on Report: we do not want it dragging on to Third Reading. All parts of the House want these matters to be considered carefully and quickly so that the other House can see where we are taking this important issue in the context of devolution, as the noble Lord, Lord Cormack, said.

There is unanimity in the House, as there was in the Delegated Powers Committee. I am grateful for the responses today—not least from the Minister—and in the meantime I beg leave to withdraw the amendment.

Amendment 305 withdrawn.