European Union (Withdrawal Agreement) Bill

Lord Wallace of Saltaire Excerpts

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

[Lord Wallace of Saltaire (LD)]

My Lords, we all accept that the decision to leave has now been made and that this Bill will go through, but what sort of future relationship the Government will negotiate once the Bill is through remains entirely unclear. Different interpretations leak out from different Ministers, Conservative newspapers and MPs. The Prime Minister himself is still in “cake and eat it” mode, wavering between promises of regulatory divergence and assurances that we will remain close to what he sometimes calls “our European friends”.

I will focus here on the process by which Parliament continues to scrutinise the transition we are entering into, from EU membership to association. I was shocked when Liberal Democrat Peers were told in a ministerial briefing last week that there was now no need for the previous Bill’s clause guaranteeing parliamentary scrutiny of future trade negotiations because the result of December’s election had given the Government sufficient mandate to negotiate them in whatever form they may be able to agree.

There will be difficult trade-offs to be struck in the negotiations about our future relationship. The political declaration sets out an agenda but does not give much indication of how these trade-offs will be struck—between fishery concessions and the interests of our financial services sector; between acceptance of some continuing role for the European Court of Justice and insistence on the purity of UK legal sovereignty.

Any democratic Government need to be held to account not just once every five years but as they continue to make policy month by month. That is the difference between a populist electoral dictatorship and a functioning constitutional democracy. I was reading a book on American populism last week, and noted that George Wallace—my namesake, who was the populist Governor of Alabama—was fond of saying in speeches that the will of the people was more important than the law. Some supporters of this Government, even in this House, have come close to saying the same thing.

In the Queen’s Speech debate last week, the noble Lord, Lord Strathclyde, suggested that the Lords, as Parliament’s second Chamber, should rarely oppose the Government on this Bill or, indeed, on other forthcoming legislation. He is right that a second Chamber should not block legislation in principle, but he is wrong to argue that we should not, entirely properly, ask the Government and the Commons to think again on the content and detail of legislation set before us.

After the speech of the noble Lord, Lord Strathclyde, I checked with the Library on the pattern of Lords’ defeats of the Government over the years. Of course, when the noble Lord first entered our Chamber, the Conservatives had a permanent majority, defeating the Labour Government 126 times back in 1975-76. Since most hereditaries were excluded in 1997, the highest number of defeats of the Government in any one Session was in 2002-03, at 88 defeats, when the Leader of the Opposition—the person whom last week the noble Lord called on to behave with caution and restraint—was of course the noble Lord, Lord Strathclyde, himself. He deplored in last week’s debate that the Conservative Government had been defeated in almost 50% of the whipped Divisions in the 2016-17 Session, calling it an “absurdly high figure”. However, in the 2004-05 Session, the Labour Government were defeated in 58% of such Divisions, again with the noble Lord, Lord Strathclyde, leading the largest opposition group. I rest my case.

There are constitutional issues in this Bill which we are entitled to draw attention to and to which a wise Government should listen. While Clause 31 of the previous Bill, asserting Parliament’s role in continuing scrutiny, has disappeared, we now have the new Clause 38 nevertheless asserting that parliamentary sovereignty is absolute. It is there not for any practical purpose but to throw a bone to the hard nationalists of the European Research Group and the Bruges Group. Sovereignty can never be absolute unless a state disengages from all its obligations under international law. The balance between the fundamental principles of law and the untrammelled power of the Government when controlling a majority in the Commons has been argued over since the time of Justice Coke and others, in the early 17th century.

Insistence on the unlimited power of the Government in Parliament to override our devolved Assemblies would now be unwise as well, and arguably close to unconstitutional in itself. This too we will challenge the Government to justify, in Committee and perhaps even on Report.

European Union (Withdrawal Agreement) Bill

Lord Wallace of Saltaire Excerpts

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

We took him at his word, and Amendment 27—which was in the previous Bill and was, after all, a government amendment—was a step in that direction. I am sure there would have been amendments to Clause 31 in that Bill as well. It seemed to me to respect an undertaking given to us by the then Secretary of State. I ask the Minister whether the Government are still behind those words said by David Davis to the European Union Committee and, if so, how they will ensure that they live up to those words.

[Lord Wallace of Saltaire (LD)]

My Lords, my name is also on Amendments 27 and 28, and I wish to add my support for them. The Constitution Committee’s report, published two days ago, says in paragraph 3:

“This Bill is of the highest constitutional significance.”


One of the many aspects of that constitutional significance is as it affects the relationship between Parliament and government. As I understand it, the role of Parliament and the role of the second Chamber of Parliament—the House of Lords—in legislation is that we should present reasoned arguments and criticisms of what the Government have put forward. In response, the Government’s duty is to listen to those arguments. Where they are persuaded that those arguments are reasoned, or where they are unable to provide reasonable answers to them, they should adjust the legislation to meet those arguments.

The other dimension is that, as policy proceeds, the Government should be held to account by Parliament; there should be ongoing accountability as policy proceeds. Amendment 27 does not say that we want to know the details of everything; it talks about objectives. The Government are asked to tell us regularly what their objectives are. That seems entirely reasonable, particularly as the Government’s objectives remain so unclear and, in some ways, contradictory. On regulatory divergence, for example, I have listened to the noble Lord several times explaining the rationale for the regulatory divergence the Government are committed to and each time he explains it I become less and less convinced that the Government know what they want. I think that is partly because different elements of the Government and of the Conservative Party want entirely contradictory outcomes.

The question of the future security relationship also contains a number of unresolved internal differences. On future trade relations, we heard on the radio this morning someone with very close links to the Trump Administration saying that if we want good trade concessions in our future relations with the United States, we had better give something in return on Iran and our policy on the Middle East. There are many questions there that it is reasonable for Parliament to hold the Government to account over, and to ask Ministers to continue to justify.

The noble Baroness, Lady Noakes, in what I thought was rather an odd speech, said that we should not bother Ministers when they are in the middle of negotiations, because they will be tired and busy and we would get in the way. That seems to me, if I may say so in her absence, absurd. Parliaments are there to hold Governments to account and if the Government think they can get away without being held to account, except every five years in elections, we have moved away from constitutional and parliamentary democracy.

We heard a number of empty threats on Monday about the future of the Lords if we were to pass any amendments. There were suggestions that we were standing in the way of the people’s will and that various Members of this House perhaps represent the people against Parliament—although some of the Members of this House who put themselves forward as representing the people seem rather less popular in their backgrounds than one might otherwise expect. All I say to that is that if one faces up to the question of Lords reform—I say this as a former Minister responsible for trying to take through Lords reform—it is very difficult.

Some of us were at a meeting this morning where it was said that Lords reform and electoral reform were the two most difficult constitutional changes that anyone would wish to take through. It was implied that neither would happen in our lifetimes. That may be a bit of an exaggeration, but there is an idea that somehow, with the Express and the Mail behind the Government, threats can be made that the Lords will be abolished—and with Rebecca Long Bailey behind the Express and the Mail in threatening it. The idea that that will happen and we will all then turn quiet is out of the question. We have to do our job. We are here as a revising Chamber and it is our duty to ask the Government to revise when we are not convinced.

There is a question that all Conservatives here should ask themselves carefully as they consider how the House considers the Bill: if a non-Conservative Government were attempting to push through a Bill of this sort, which diminishes the role of Parliament in holding the Government to account, what would the Conservative response be? I think I know. I therefore strongly support this amendment and I hope the Government will recognise that, in rejecting it, they are trying to push the relationship between Parliament and Government towards the Executive and away from proper constitutional democracy.

[Lord Hamilton of Epsom (Con)]

My Lords, to respond to the noble Lord, Lord Wallace of Saltaire, on Lords reform, I remind him that your Lordships’ House was not saved by anybody in this House. It was actually saved by Jesse Norman—who paid a serious price from David Cameron, who subsequently refused to put him into his Government—and a number of right-wingers in the Tory party. We do not have that support in the Commons any longer, so I would not be quite so laid back and complacent about the future of your Lordships’ House. It has been seriously threatened and bruises have been left.

As to the amendment, I think we have all very much welcomed the election of Sir Lindsay Hoyle as Speaker of the House of Commons. I think he will be an umpire rather than a protagonist in the Brexit debate; he certainly has not indicated which way he voted in the referendum. However, the suggestion that he will not allow any Statements or Urgent Questions on the Brexit negotiations in the year that extends before us is for the birds. The idea that the Government will have no accountability to the House of Commons—or to your Lordships’ House—on how the negotiations are progressing is just ridiculous. For that reason, it is completely unnecessary to have this stuff in the Bill; I think there will be a lot of accountability, which will be ensured by the new Speaker. There is no point whatever in putting it in the Bill.

[Lord Wallace of Saltaire]

My Lords, I assure the noble Lord that I am strongly in favour of reforming the House of Lords. I hoped when I was appointed to this House that I would in due course become an elected member for the Yorkshire region. I have now been in this House for 23 years and that has not happened. I am very conscious of the difficulties of reform.

[Lord Hamilton of Epsom]

Yes, and the noble Lord should be very pleased with himself that he has done much to make the idea of reforming our House a significant factor, now that there is a Conservative Government with a serious majority.

European Union (Withdrawal Agreement) Bill

Lord Wallace of Saltaire Excerpts

Committee: 3rd sitting (Hansard continued) & Committee stage & Committee: 3rd sitting (Hansard continued): House of Lords
Thursday 16th January 2020 Lords Chamber

Debate on whether Clause 38 should stand part of the Bill.

[Lord Wallace of Saltaire (LD)]

My Lords, Clause 38 is purely declaratory: it has no effect whatsoever, except to appease the appetite of the hard ideologues on the Conservative right. The Select Committee on the Constitution notes explicitly that

“this Clause has no legal effect”.

Its opening phrase,

“It is recognised that the Parliament of the United Kingdom is sovereign”,


is poorly drafted. It does not say who recognises it, or what effect that might conceivably have. It ought, at least, be an active declaration of the principle of parliamentary sovereignty.

The model for such a declaration was, of course, the ultimate Henry VIII clause in the Statute in Restraint of Appeals 1532, which asserts that,

“this realm of England is an empire”.

It did not surprise me when I checked the date of that statute on Wikipedia to find an accompanying side reference to Sir John Redwood calling for the full restoration of our imperial sovereignty by excluding any appeals to any continental court. This clause is about the myths of English identity and history far more than about current practice.

The foreign appeals which the 1532 Act were restraining were to the Pope in Rome, rather than to any political institution. It has often struck me as odd and eccentric that several of the most ardent English nationalists and Brexiteers are right-wing Catholics, some of them converts, who regard the current Pope critically as tending towards a dangerous liberalism rather than the dogmatic orthodoxy that they prefer. They have nevertheless embraced an English doctrine which is rooted in our Protestant Reformation and its rejection of the universalism of the Catholic Church.

Since the 16th century, the doctrine of sovereignty has evolved a great deal and been the subject of a great deal of scholarship, some of which I had to teach when a university teacher. As Dutch, Danish, English and other lawyers have argued, national sovereignty is embedded in a framework of international law, which is necessary to enable trade and peaceful interchange among nation states. Under our system of parliamentary sovereignty, trade agreements and treaties have to be transposed into domestic law, but Parliament accepts that it cannot renegotiate what the Government have agreed and that international treaties therefore limit absolute parliamentary sovereignty. That is why it is inconsistent with any coherent doctrine of parliamentary sovereignty for a Government to neglect to carry Parliament with them as they negotiate major treaties which have significant implications for domestic law and domestic economic life.

International law and domestic law—as the Minister who is to answer knows extremely well—are closely intertwined. This Conservative Government, like their predecessors, stress the depth of their commitment to the legal, institutionalised international order. As the ideologues on the Conservative Benches rejected the constraints of European Union law, they will still be hemmed in by wider international commitments on human rights, standards, aviation safety, environmental law, shipping, data exchange and a great deal more.

Purists within the United States have gone further than English nationalists and argued that the perfection of the American constitution and the democracy it encapsulates must override the constraints of international law and treaties. Justice Antonin Scalia, appointed by President Reagan to the US Supreme Court, explicitly argued this exceptionalist view that international law could in no way override American law but, so far as I know, no right-wing English lawyer has gone quite so far yet.

The cry of the Vote Leave campaign was to re-establish parliamentary sovereignty by leaving the EU. Now that we are leaving, we hear a different tune, calling on Parliament to accept that it should not examine the process of government too closely. I listened this morning to the noble Lord, Lord Bethell, no doubt reading from his brief when he said that it is vital that we restore the traditional relationship between government and Parliament. I understand that to mean: that Parliament should accept that majority government has now returned; that it should accept what the Government propose without significant amendment, particularly in the second Chamber; and that the key principle of Britain’s unwritten constitution is that the Queen’s government must be carried on without let or hindrance. That is not easily compatible with parliamentary sovereignty.

This clause therefore declares a half-truth. The relationship between Parliament and government in reality remains contested. The noble and learned Lord, Lord Woolf, spoke yesterday of the importance of maintaining the separation of powers between Executive, Parliament and judiciary, but there is nothing here to suggest that the judiciary can in any way be a counterbalance to government. If I correctly understood what the Prime Minister implied in Prime Minister’s Questions yesterday, he thinks it improper for judges to play such a role.

Twice in the last week, we have probed the promise in the Government’s manifesto and the Queen’s Speech to establish within the next 12 months, as the manifesto said, a commission on the constitution, justice and democracy. We have gathered the impression from the incoherence of ministerial answers that the Government are unsure how far they wish to open up such underlying questions of our constitutional and democratic order. It may even be that some within the Government now regret that the commitment has been made, but the commitment to a constitutional commission has been made and these questions will have to be addressed.

This clause, however, with its very poor drafting and its failure to refer in way to the unavoidable influence of European law on the UK as we negotiate a close future relationship, as the political declaration makes clear, does not offer any useful contribution to that task or to providing clarity for our political, legal and constitutional debate.

--- Later in debate ---

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

My Lords, I am obliged to noble Lords for their contributions to this part of the debate. I express some concern that the noble Lord, Lord Wallace, wishes to concertina hard ideologues of the right, English nationalists and Brexiteers into one uniform group. That is regrettable shorthand and, indeed, the very fact that his party has adopted that sort of attitude towards the issue of our leaving the European Union might go some way to explaining why it returned after the general election with a total of 11 Members in the House of Commons. There are many, many people in the United Kingdom who are not English nationalists but voted to leave the European Union. There are many people in the United Kingdom who are not hard ideologues of the right who voted to leave the European Union.

[Lord Wallace of Saltaire]

My Lords, I entirely accept that. I am merely talking about those who have written about this. I am talking, as my noble colleague on the Labour Front Bench suggested, about those who have been agitating for clauses such as this, who have been expounding—the Martin Howes of this world—and not, of course, the average voter, who has much a simpler collection of views on all this. We know that the vote came for many reasons, but for those who have written and spoken about the justification and the necessity for this, in overlapping groups, I think that the terms I used were justified. We are talking about a view of English exceptionalism, which perhaps even some Scots share—a view of English identity and our difference from the continent, which I do not share but which I was taught at university. I have learned a great deal about it and I dispute it.

[Lord Keen of Elie]

My Lords, even though the noble Lord may seek to narrow down the characterisation he advanced in his opening, I still do not accept it. It appears to me to go far too far in its assertion of who might be concerned to restate and recognise the sovereignty of our Parliament, and why. I will make two comments on his observations. He did not mention the duality principle, but he ought to bear it in mind because, of course, while the Executive may enter into obligations at the level of international law, they have no impact on domestic law unless and until they are brought into domestic law by this Parliament. So there is no question of parliamentary sovereignty being undermined in any sense by the ability of the Executive to enter into treaties, and to have and enjoy that treaty-making power. That is simply not correct.

On the noble Lord’s observations about the separation of powers and the position of the judiciary, I invite him to revisit, as am sure he has often done before, the work of Dicey on the constitution—I think the 1887 edition was the last one that Dicey himself edited—in which he makes very clear the position of the judiciary vis-à-vis the sovereignty of Parliament.

[Lord Wallace of Saltaire]

I have indeed read Dicey and I am conscious that his views on a number of issues were influenced by his growing opposition to home rule.

[Lord Keen of Elie]

It is well known that, latterly, Dicey developed views on home rule for Ireland that differed from what might be regarded as the mainstream at the time. Be that as it may, his works on the principles of the constitution stand the test of time and are worthy of being revisited by the noble Lord.

I shall deal shortly with the point advanced by the noble Baroness, Lady Hayter, about the scope of the present clause. The Sewel convention is not itself a matter of constitutional law; it is a political convention, as the Supreme Court made clear in the first Miller case. It is a political convention into which the courts would not intrude. Be that as it may, it has of course been restated in statutory form and therefore does not require repetition. Section 2 of the Scotland Act 2016 and Section 2 of the Wales Act 2017 restated it expressly in statutory form. So it is there on the statute book and does not invite repetition. What is not contained in any of the devolved legislation, for obvious reasons, is a restatement and recognition of the fundamental principle of our constitutional arrangement, namely that Parliament is sovereign, and there is therefore a desire to see that made clear.

The noble Lord, Lord Wallace, suggested that there was some deficiency in the drafting of the clause, but I resist that suggestion. It says, in terms, that the principle of our constitutional arrangement—namely, parliamentary sovereignty—is recognised. It is universally recognised, and that is an appropriate way to express the position of our constitution. In other words, nothing in the Bill derogates from the sovereignty of Parliament, and this clause makes that clear.

[Lord Keen of Elie]

It would not detract from the clause but it would be an unnecessary repetition. We do not normally put precisely the same provision into statutes two or three years apart. Here we have the provision with regard to the Sewel convention in Section 2 of the Scotland Act 2016, and again in Section 2 of the Wales Act 2017. It is there. It is on the statute book; it exists. That is why there is no need for repetition.

As I say, leaving the European Union is a matter of some significance in the context of our constitutional arrangements, in particular, the repeal of the ECA. It is therefore appropriate in this context that there is an explicit recognition of the principle of parliamentary sovereignty. Therefore, as the Bill implements the withdrawal agreement so that we can leave the legal order that is the European Union, it is appropriate, when disentangling ourselves from those international obligations, that we ensure that there is no concern about the principle of parliamentary sovereignty. It is for Parliament, acting in its sovereign capacity, to give effect to the agreement in domestic law—that is the duality principle, and nothing in the Bill derogates from that principle as recognised by this clause. In these circumstances, I submit that it is entirely appropriate that this clause should stand part of the Bill, and I invite the noble Lord not to oppose it doing so.

[Lord Wallace of Saltaire]

My Lords, in that case, I find the phrase “unnecessary repetition” entirely appropriate to this clause as a description of what it is for. I referred to the duality principle; I remind the noble and learned Lord that the United States also has that principle, and that the view of the exceptional position of the American constitution and its relationship with international law means that, on occasion, the Senate turns down treaties that the United States has negotiated, sometimes to the extreme discomfort of the international legal order.

[Lord Keen of Elie]

I think we are aware that it did not join the League of Nations.

[Lord Wallace of Saltaire]

Not just the League of Nations—there was also withdrawal from the joint agreement with Iran, although that was an executive act.

I was saying that our Parliament, which is sovereign, is constrained by acceptance of the legal order. On the delicate relationship between Parliament and government over the negotiation of treaties, particularly trade treaties, we need to bear that in mind, because, as a Parliament, we have never rejected a treaty that a Government have negotiated. That is one reason why many of us are still pressing for that. I wish merely to mark that these issues need to be examined in more detail, that the Government have committed themselves to some sort of commission on the constitution, the judiciary and democracy, and that as we leave the European Union, it is entirely appropriate—indeed, necessary—that we re-examine some of these questions about which, as the noble and learned Lord and I have shown in our discussions, there is some contestation.

Clause 38 agreed.

European Union (Withdrawal Agreement) Bill

Lord Wallace of Saltaire 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 Howarth of Newport]

The noble Lord, Lord Hannay, has remarked on the fact that the ambition and scope of this amendment are quite modest compared to the amendment that we debated last week in Committee. The redrafting has been wise. Gone is the requirement that Parliament should approve the negotiating mandate and stance of the Government and in effect give them their marching orders in the negotiations. The Executive must be allowed to do their job and in turn Parliament should do its job, and we should respect the separation of powers. It is for the Executive to negotiate the future relationship and it is for Parliament to hold the Executive to account. Parliament has numerous means of holding the Executive to account in the form of Questions, debates, Select Committee inquiries and many other procedural resources, and I anticipate that it will use that array of resources very extensively in the months to come.

I would add that I do not think that it is appropriate for parliamentary procedure to be prescribed in statute, and it is particularly inappropriate that this unelected House should make proposals of this nature to the House of Commons, which I suspect will not take very kindly to being told how to do its job.

All in all, I welcome the modification of the approach that is reflected in the amendment and I congratulate my noble friend and her colleagues who have thought it wiser to proceed on this basis rather than the one proposed the other day.

[Lord Wallace of Saltaire (LD)]

My Lords, this is an unusual Bill in a number of ways. We were debating in Committee that it has a clause which restates that parliamentary sovereignty has been established, so we are talking about some fairly fundamental constitutional issues. The relationship between Parliament and the Government is one about which I have heard Ministers make a number of self-contradictory comments in the days and weeks since the election in the rather triumphalist tone they have adopted. One Minister referred during the Committee stage to restoring the “normal relationship” between Parliament and the Government, by which I think he meant a nice safe majority in the Commons so that it does not criticise too much what the Government want to do.

The noble and learned Lord, Lord Keen, talked about the dualist approach to international negotiations whereby treaties, once they have been agreed, have to be transposed into domestic law and thus Parliament comes in, as it were, after the event. Given the importance of this negotiation, if one does believe in the principle of parliamentary sovereignty, the Government need to carry Parliament with them. That is the constitutional set of issues here, and we look forward to further discussions on what the constitution commission the Government are going to set up will be about. If it has the sort of forethought and consideration which was shown in the suggestion thrown out this weekend that the House of Lords might move to York, I have to say that it is not going to be a very good commission because it is quite clear that there was no thought behind that whatever.

It is not just the constitution; it is also about wisdom. Some of us heard the noble Lord, Lord Wilson of Dinton, remark in Committee that in his long career he had noted that it is when Governments are most self-confident and convinced that they can survive criticism that they are most likely to make mistakes. Here we are after an election in which the Government have established a majority on less than 45% of the vote, but it is a majority in the Commons according to our current antiquated rules. The wisdom of carrying the public and Parliament with them as they negotiate—particularly if they are going to negotiate for as hard a break with the European Union as the Chancellor has suggested—seems to me very powerful.

While I was at Chatham House, I was much involved in the various discussions about establishing the single market, and I remember all the talk then about why the Prime Minister was persuaded that the single market was in Britain’s interest and the extent to which we were taking our regulations for a large number of industrial and other standards from the United States extraterritorially. The Government are now suggesting that we will establish our own independent standards. An editorial in the Times this morning said that maybe we should not exclude chlorinated chicken, so we can begin to see that, if we move away from European standards, we will move under American standards, and that will be part of what emerges from the US/UK trade agreement.

I support this amendment on constitutional grounds and on the grounds of political wisdom. Parliament deserves to be carried along with the Government and the Government need to explain and justify their objectives as they proceed.

[Lord Bowness (Con)]

My Lords, I have added my name to this simplified amendment. In Committee, I appealed to the Government to recognise that many people remain concerned about the nature of our future arrangements with the European Union. This is not about for or against Brexit but about the future. The Government appear to want us to take everything on trust, but we need to know in advance not the details of their negotiation but the approach they will take in negotiations.

This is not a novel idea. I know that in the United Kingdom we are not keen on adopting approaches taken by other countries, but—without going into the details—I refer Ministers to the working of the grand committee of the Finnish parliament. It is a good start to learn how other parliaments reconcile coming to an agreement with their Governments about their approach to European Union matters and the attitude we seem to be taking. That approach, with modifications, is to be found in the proceedings—and indeed, so far as Finland is concerned, in the constitutions—of member states. It is not a novel idea.

Statements, Questions and take-note Motions in arrears of events are no substitute for the kind of procedures to which we refer. The citizens who accept Brexit but want to ensure that we try to keep as many of the benefits of the last 40 years as possible need to be listened to. If the Government do not bring forward any amendment at Third Reading to deal with this, I am afraid many people will feel that the Government, in the name of an ideological pursuit of a hard Brexit and possibly no deal, have no intention of healing the divisions in the country. The Government need to establish some trust among the rest of us.

European Union (Withdrawal Agreement) Bill

Lord Wallace of Saltaire Excerpts

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

[Lord Wigley (PC)]

My Lords, I have my name to this amendment, but I rise with some trepidation. I will try not to have a flight of nationalist fantasy, as the noble Baroness, Lady Randerson, put it a moment ago. I hesitate to bring a discordant note. We hear a lot about the strengthening of the union. We must ask ourselves exactly what we mean by that. If it is to make the union work more effectively and harmoniously, be more sensitive to the needs outside Westminster and Whitehall and have greater empathy, of course that is highly desirable. However, I wonder if that is the case. If it is to strengthen the grip of Westminster and Whitehall and impose policies that are not in the best interests of Wales, Scotland and Northern Ireland, that clearly will cause a lot of bitterness. The mechanisms that we are talking about here are to avoid that sort of bitterness arising.

I would have thought that it was patently in the interest of those who want to hold the United Kingdom together in its present form that at least some movement is made to ensure that clashes do not arise from differences of aspiration or even a misunderstanding between the Governments of the various nations of these islands. We need Westminster to be sensitive when there are universally accepted reports on changes in the relationship, such as in Wales in relation to the legal systems. The noble and learned Lord, Lord Thomas, brought up an excellent report, the Silk report, which suggested changes for the police and prisons. When those are universally accepted in Wales and totally ignored year after year here, it is hardly surprising that there is some feeling that the system from the centre fails to work in the interests of every area.

It is very relevant that this issue arises in the context of European legislation. Noble Lords will remember that in 1979, very shortly after we joined the European Union, there was a referendum in Wales in which the vote went 4:1 against having a devolved Government. The noble and learned Lord, Lord Morris, was very much involved in that. Several factors led to the changes between 1979 and 1997 when there was a very small majority, but still a majority, in favour of establishing a national assembly. One of the factors was the advent and development of the European dimension. With this came acceptance of a multilayered system of democracy and that the principle of subsidiarity that runs through the European vision was relevant within these islands. Some things within the strictures that we have are appropriate to be discussed and decided at Westminster, some—until the end of next week—on a European level and some that are more appropriate on a Welsh, Scottish or Northern Irish basis.

It seems there is a possibility now of turning the clock back from the vision that had developed over the last 40 years to what existed before 1979. If that is the case, that is the most likely thing that will drive a change, forced from the periphery, in the structures of these islands. It is the sort of change that many noble Lords have mentioned and are fearful about.

In the context of this specific amendment, all that is being asked for is a provision for a systematic approach that takes into account the needs of the devolved nations. That is not an unreasonable thing to look for. The fact that Northern Ireland yesterday, Scotland before, and probably Wales this afternoon will refuse the orders that are being requested in the context of this Bill is surely an indication that something has been got wrong from the centre.

I urge the Government to look at this amendment in that context and to see it as an opportunity to build a better, more harmonious relationship, rather than just stamp on it and hope that the feelings in Wales, Scotland and Northern Ireland will just go away.

[Lord Wallace of Saltaire (LD)]

My Lords, may I raise a short constitutional question that came up last week and which relates to this? In our debate on Clause 38 last Thursday, the noble and learned Lord, Lord Keen, from the Government Front Bench said that Dicey is the absolute authority on parliamentary sovereignty. Dicey’s view on parliamentary sovereignty was that it was indivisible, that it cannot be shared upwards or downwards. His views were strengthened by his bitter opposition to the whole idea of home rule either for Ireland or for Scotland. He believed strongly that the imperial Parliament was therefore the only authority of British imperial law.

That doctrine of parliamentary sovereignty, strongly held, is of course one reason why those who wish us to leave the European Union have objected to the whole principle of European law interfering with the sovereignty of British law as defined by Parliament. It seems to me, therefore, that as part of the process we go through as we leave the European Union, and as we proceed towards some sort of constitutional convention, we will have to redefine the doctrine of parliamentary sovereignty so as to accept that these devolved Assemblies —these devolved nations—have more than the occasional permission of the Westminster Parliament to do as they wish, and that they have certain entrenched rights that are not compatible with the doctrine of parliamentary sovereignty as defined by this rather prejudiced, late-Victorian lawyer.

[Lord Griffiths of Burry Port (Lab)]

My Lords, some of the speeches have painted on a large canvas. I would like to focus on the amendment itself. I am reminded of a discussion here yesterday about the possibility—perhaps fatuous—of moving this Chamber to York in the name of reaching out to the population of this country. I mention that because, 20 years ago, in the name of reaching out to the country at large, the devolved Administrations came into being. The 20 years in between have offered enough evidence of the fact that you do not just bring things into being; you support and sustain them by developing a relationship that enhances partnership between the devolved bodies and the United Kingdom Parliament. I wish that people on other Benches would realise just how disappointed people in the devolved areas are about what has happened over the last 20 years and the way in which—begrudgingly, as it seems to them—some concessions and developments have come into being. I just wish people could feel that.

I have three children. When they were growing up, as teenagers, the most important aspect of parenthood that we had to learn was the moment when you establish trust. You move away from authoritarian modes of existence with your own children, and you trust them, even when sometimes they make mistakes. It seems to me that, in this amendment, we are asking simply to give visibility to a stance that we could describe as trust; that is the heart of it. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said, it does not seek to change the provisions of the Bill; it just says that we should trust each other as we go along.

I would be surprised if I am the only one who has had to educate myself, because the new clause proposed by the amendment would, if accepted, go in after clauses that describe the UK-EU joint committee, and it is terribly confusing to talk about the Joint Ministerial Committee in the context of movements that bring that joint UK-EU committee into being. It does not end there, because we are talking about the Joint Ministerial Committee European Union sub-committee. The action we are trying to establish good relations for is what will happen in the discussions with Europe to bring about our ongoing relationship, in the period following the enactment of the Bill. We should therefore remember that we are looking to have these things written into the Bill to apply for a limited period.

My noble friend Lord Howarth is quite right: of course you cannot legislate for the processes of consultation. He went on to say that willingness cannot be legislated for, but unwillingness might necessitate legislation—and there has been unwillingness. There is a lack of empathy. Even the noble Lord opposite spoke about hardness and refusing to accept a position that will create difficulties. That is never in anyone’s mind at all.

I go back to discussions in Committee and the intervention made by the noble Lord, Lord Kerr, who said:

“The best option would be to include representatives of the devolved Administrations in the negotiating teams that go to Brussels when the subject for discussion is going to touch on the competence of the devolved Administrations.”—[Official Report, 15/1/20; col. 672.]


If they are going to discuss the competence of the devolved Administrations, is it not fair and proper that those from the devolved Administrations most affected might be there to add their voice to the discussions? Is that not reasonable? Are we not talking about common sense?

We are looking at this in a binary way, thinking that everybody who has a different view is somehow invested with animosity towards the Government. We are talking about bringing out of all this something that stands up and appeals to people on the basis of common decency and fair play. I am happy to rest my case there.

European Union (Withdrawal Agreement) Bill

Lord Wallace of Saltaire Excerpts

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

As the noble Baroness, Lady Hayter, informed us, we have just discovered that the National Assembly of Wales has voted not to consent to those parts of the Bill on which we sought consent. We are of course disappointed that the devolved legislatures have withheld consent and we recognise the significance of proceeding without it. Nevertheless, these are exceptional circumstances and the Bill must proceed so that we can deliver on the referendum result and leave the EU by the end of this month.

[Lord Wallace of Saltaire (LD)]

My Lords, as unamended, the clause we are debating restates the principle of parliamentary sovereignty. Many of us considered that the devolution settlement had modified the Victorian concept of unitary sovereignty. In Committee, the noble and learned Lord, Lord Keen, went out of his way to reassert that AV Dicey’s views on parliamentary sovereignty—that the imperial Parliament is supreme and cannot share legislative power with other Assemblies—is what this clause means. Does the Minister not therefore recognise that the inclusion of this clause as it stands undermines the conventions established by the devolution settlement?

[Lord Callanan]

I am not sure I want to get into an arcane legal debate with the noble Lord, my noble and learned friend Lord Keen and others. I do not accept what the noble Lord says; I do not think this undermines the settlement.

We will of course continue to seek legislative consent. We will continue to take on board views and will work with the devolved Administrations on future legislation, whether related to EU exit or otherwise, just as we always have.