Devolved Administrations: Memorandum of Understanding

Lord Wigley Excerpts

Monday 20th November 2017 Lords Chamber

[Lord Wigley (PC)]

My Lords, I also thank the noble Lord, Lord Empey, for arriving and facilitating this short debate. I will take a slightly different tack from him on the question of the memorandum of understanding because, as has already been mentioned, the decision to leave the EU raises quite distinct and different issues. Indeed, they are different in the devolved nations, in the context of the memorandum of understanding; Northern Ireland is clearly in difficulty because of the non-functioning of a devolved Government at present. So my comments are related more to the position in Wales, Scotland and particularly, of course, Wales.

Leaving the EU involves changes to the exercise of power relating to devolved matters, including agriculture, the environment, tourism and transport. The Sewel convention requires the UK Government not normally to intervene in devolved matters; to do so without the consent of the devolved Assemblies is seen in both Wales and Scotland as a power grab. Indeed, in a remarkable joint initiative following the publication of the EU withdrawal Bill, the SNP Government in Edinburgh and Labour Government in Cardiff issued a joint statement describing that as a “naked power grab”, indicating that, without clear assurances, the Bill would be rejected by both Parliaments. Despite the matter being raised subsequently on more than a dozen occasions in the House of Commons, the UK Government have still not clarified how they will proceed if the devolved Assemblies refuse to support the Bill.

A Plaid Cymru amendment to the withdrawal Bill in the Commons that would have made the Sewel convention binding in this context was defeated, with the Labour Party refusing to support the stance taken earlier by the Welsh Labour Government. Both the Welsh and Scottish Governments agree that if we are outside the EU single market, but within a UK single market—with or without Ireland—there has to be a mechanism to co-ordinate that. However, we are still in the dark as to what such a mechanism will be. If one of the causes of the present difficulties is the total ineffectiveness of the Joint Ministerial Committee on EU Negotiations, then we certainly face a challenge there. The committee met in February, but not then until October, at a time when critical issues were arising. If that is meant to be the prototype for future co-ordination negotiations, it augurs very badly indeed.

The contrast between the embryonic UK mechanism and the one that exists between the EU member states was highlighted by Laura Dunlop QC in her evidence to the Brexit Select Committee on 17 October. She stated that,

“in the European Union, each member state has a participant in the negotiations. In our prototype framework … there is one party in the discussions that is wearing two hats, and that is the UK Government, who are also required to speak for England. That is a significant difficulty”.

In his paper entitled Brexit and the Territorial Constitution, published by the Constitution Society, Professor Richard Rawlings warned of,

“the innate capacities of individual Whitehall departments for power-hoarding through hard-edged legal expressions of institutional self-interest”.

He highlighted the danger that:

“The prospect at the expense of the devolved institutions of … ‘reregulation creep’”—


via common frameworks—

“is clear and immediate”.

He concluded:

“There is an urgent need for multilateral forms of intergovernmental relations which are fit for purpose”.


The UK Government will ignore such warnings at their peril.

Another problem relating to the JMC (EN) is that while it is chaired by the First Secretary of State, there is no formal relationship between his department and the Department for Exiting the EU. The UK in its present form may not survive the tensions created by the current failings of Westminster to address these problems. The Welsh Labour Government have stated overtly that Brexit represents an existential challenge to the UK. If it survives, it will undoubtedly need a new UK constitution, which inevitably will be quasi-federal in its nature.

Perhaps I may quote Fflur Jones, a partner in Darwin Gray solicitors, in her report, The EU Withdrawal Bill—A Legal Perspective, when she concluded that Brexit,

“will require intense scrutiny to ensure … that the UK government does not ride rough shod over the current devolution settlement and the principles of the UK’s evolved territorial constitution. Indeed, now is the time for that territorial constitution to be reflected in a written UK constitution so that there can be no doubt over the approach that should be adopted by the UK government to matters affecting Wales and the other devolved administrations”.

I conclude with a plea, which reinforces the House of Lords Brexit committee’s conclusions, for the UK Government not to treat these matters as minor, subsidiary or of little consequence. A failure to carry the devolved Administrations towards an acceptable consensus will undermine the future of the union.