European Union (Withdrawal) Bill

Lord Wigley Excerpts

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

[Lord Cormack (Con)]

My Lords, I join in the tributes to my noble friend Lord Bourne. One thing I hope he will take on board is that the amendment was tabled by my noble friend Lord Blencathra—it has been explained why he cannot be here, and we completely understand—but it was moved, most eloquently, by the noble Lord, Lord Tyler. Nobody could accuse them of being on the same side of the Brexit argument, which underlines the fact that, as our Constitutional Affairs Committee said in its report, the Bill is deficient and the deficiencies are recognised equally by those on both the remain and leave sides. I hope that this will command unanimous support among your Lordships and that there will be no need to put the amendment to a vote at a later stage. I hope that my noble friend Lord Bourne will take on board the virtual unanimity of concern here and give us an encouraging answer.

[Lord Wigley (PC)]

My Lords, I apologise for taking my seat after the noble Lord, Lord Tyler, started but I heard most of what he said from outside the Chamber. I add my voice in support of the comments that have been made. There is an old saying in Wales: you can lead a Welsh workforce through hell and high water but once you start driving them, woe betide. I think we should bear in mind the psychology of this situation. If these amendments are made to the Bill, I do not think that they will undermine the main purpose in any way. I hope the Government can look again at the Bill between now and Report.

[Lord Elystan-Morgan (CB)]

My Lords, I respectfully agree with the sentiments articulated by the noble Lord. In relation to Wales, a totally new attitude has been taken toward reservations. The noble Lord, Lord Tyler, suggested that reservations were somewhat limited on the whole in devolution legislation. That is not so; in the Wales Act there are 197 separate reservations, believe it or not. Some are massive; some apply to sovereign powers that should belong to the mother Parliament; others are very trivial. For example, dangerous dogs, sharp knives and axes, prostitution and half a dozen similar situations are included. Why they were ever included in that context I know not, but there they are. Therefore, the area that has been reserved regarding Wales is massive and comprehensive.

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[Lord Wallace of Tankerness (LD)]

My Lords, at the request and with the consent of the noble Lord, Lord Foulkes of Cumnock, I shall move Amendment 311. For clarification, the noble Lord, Lord Foulkes, did not wish me to move Amendment 310 because he felt it had been superseded by our discussions last week. I shall be brief in moving Amendment 311 because a number of amendments were grouped for our wider debate on Brexit and devolution issues last Wednesday that related to sunset clauses, and this is another example.

It appears that here, as in a number of other areas of the Bill, particularly when powers are to be conferred on United Kingdom Ministers, a sunset clause is attached to them. However, for those in relation to devolution and the exercise of powers by UK Ministers in respect of making orders on the devolved settlement, there is no such sunset clause. As has been said by others, not only in regard to this Bill but on other occasions, there is nothing as permanent as a transitory provision. Although this is intended to be just a temporary move pending the solution of the arrangement between the powers that will go directly to Cardiff, Edinburgh and Belfast and those where we may wish to follow up on what was debated last week with regard to the UK frameworks, it nevertheless appears that there should be some incentive to get on with it and have a time limit.

We debated these issues last week, particularly whether the period should be two, three, four or five years, which is a matter for further discussion, and it is fair to say that this is more about the principle of having a sunset clause. When we debated it last week, the noble and learned Lord, Lord Keen of Elie, helpfully indicated in his reply that the Government’s mind was not closed on this matter and there could be an opportunity to put in some form of sunset clause in relation to this and the other amendments that we look forward to seeing on Report. I hope this amendment allows the Government to give further thought to what was said in our debate last week, and I would certainly encourage that positive thinking with regard to a sunset clause. I beg to move.

[Lord Wigley]

My Lords, I shall speak to Amendment 313 in this group, which is in my name. The amendment again returns to the question of making progress by consent. The words in the amendment in the context of Wales provide that the relevant provisions will not come into effect until,

“the National Assembly for Wales has passed a resolution approving the provisions in subsection (2)”.

The convention of gaining legislative consent is of course flawed since it is held to be just that—a convention and no more. This amendment attempts to rectify that flaw, albeit just for one clause of what is in so many ways a problematic Bill. None the less, given our debates earlier this afternoon and last week, it appears that the Government are starting to become a little more sensitive to these issues and may be thinking of finding a way to bring people together on them.

As I say, the proposed new subsection would require the UK Government to seek consent from the devolved legislatures before implementing Clause 11, which may help to break the negotiations deadlock. It may help the devolved legislatures to regain some trust, and this is very much a question of trust. It could go a long way towards proving to Wales and Scotland that their voices matter in these issues.

There are clear constitutional problems with the Bill, which over recent months have been raised vociferously by both the Scottish and Welsh Governments. The UK Government have conceded that the Bill inevitably overrides the devolution settlement. I understand that in the conceptual context, but it is only right that the sitting devolved legislatures are given a statutory legislative opportunity to sign off the final product. The UK Government have rationalised our leaving the EU with the unforgettable soundbite “Taking back control”. Surely to deny the sitting devolved legislatures their fair say on Clause 11 goes against that very reasoning.

[Lord Morgan]

My Lords, I agree entirely with what the noble Lord, Lord Wigley, said. This might appear to introduce a somewhat belligerent note in the discussions between the devolved assemblies and the Westminster Parliament, but it has been forced upon the devolved legislatures. They have been so excluded while these debates have been going on that it is essential for them to have a failsafe mechanism for asserting their views. Again, as I remarked a moment ago, it is very sad to see an element of discord needlessly introduced into what has been a very fruitful period of collaboration quite recently. It is important for the Assembly in Wales, the Parliament in Scotland and the authorities in Northern Ireland to have this power. If they do not, devolution will be flouted. We will be turning our backs on now nearly 19 years of history, which I do not believe anyone wants to do. In that spirit, it is essential and necessary for the devolved legislatures to have the powers included in the amendment.

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[Lord Mackay of Clashfern]

My Lords, it is important to remember that this debate is about a fairly limited matter. No doubt it has consequences, as the noble Lord, Lord Liddle, said, but my principal concern is to get a procedure which is adequate and reasonably simple. As for differences in taxation, the noble Lord will know that for taxpayers in Scotland, there are differences already and even more to come—which may not altogether suggest that he should come to live in Scotland.

This committee has started looking at individual areas of devolved policy. It has come up with a tremendous number and has tended to look at them from that point of view. We now gravely need to look at things from the point of view of the ultimate result. The framework agreements are described in the documents as intended to promote the single market, and that is how I see them—trying to ensure the continuation of the single market which presently exists in the United Kingdom and which everyone, as far as I can see, would like to continue.

That approach has led to people saying, “This area is okay. You do not need a framework”—because of minute descriptions which I shall not attempt to recite—“but if you need a framework, the United Kingdom Government must create some form of control which enables them to lay out such an agreement”. That is the idea of the power to select 24 areas where statutory framework agreements were necessary; and there is another group where memoranda of understanding were thought to be necessary.

That way of looking at it is bound to be complicated, and you have to have some power to hold the devolved area that is to be subject to the single market requirement in order to put the single market requirement into effect. That is the purpose of this rather remarkable proposed new clause: giving Ministers power to hold for a time that particular policy area. Once that happens, I can see that some form of time restraint will be necessary, because you do not want to be waiting too long.

My suggestion, which I put forward in relation to my amendment last week, is that you forget all that and remember that the areas of devolution are defined by the areas which are presently controlled in Europe but which can effectively be legislated for in one of the devolved areas. Scotland cannot legislate for Wales, much as it might like to, and nor can Wales legislate for Scotland. Scotland can legislate only for itself, so it cannot set up by its own legislative authority a single market. Therefore, if the single market is to be legislated for, it has to be done by the Parliament of the United Kingdom—and all devolved areas are appropriately represented in the Parliament of the United Kingdom. We must not forget that.

I suggest that the committee should be defined as a group in the way that I have sought to set out, looking for consent for all the necessary provisions to enable a single market, as far as it is agreed to be required, in the United Kingdom. I sincerely hope that that will be agreed because, as I told your Lordships last week, when I spoke to the Minister from Scotland, he was very insistent that the chances of reaching agreement were very high—so I am working particularly on that assumption. It does not absolutely need to be fulfilled, for a reason that I will come to in a moment, but I certainly hope that it can be. That is why I think we should have a group in which the four different countries—three of which are devolved—should be more or less equally represented. That is what the proposed group is for—it is proposed only for this special purpose. I am not seeking to incorporate this into the Government of the United Kingdom for the future, as some people have suggested. I am thinking only of a group to solve this present problem, which is quite urgent, quite important and not too difficult.

We should remember that a single market exists in the United Kingdom already, so we do not have to invent it all. We may need to make modifications, but there is a kind of plan available to look at—so I think the chances of this group reaching agreement are very strong. If so, what I believe should then happen is that the things they have agreed should be incorporated in a United Kingdom statute. If they are all agreed, the sole convention should provide that there be statutory consent. I see no need for any kind of system for dealing with disagreements at that stage. The United Kingdom Parliament has a responsibility and will have to deal with it on its constituents.

I have also tried to make sure that the group is as united as possible, so I have provided that, where there is a disagreement, it should state precisely, in an agreed form, what it is, so that the Parliament of the United Kingdom—if it had to come to that—would have only that question to determine. I think that this is a better system than anything that starts from the bottom and seems to come up. Consent would come in the group right across the whole field and, if that works, as I hope it will, there is no difficulty whatever. If there is any difficulty, the Parliament of the United Kingdom will have to try to solve it and then the Sewel convention will apply to that United Kingdom Parliament. That is my solution—and, of course, the amendment of the noble and learned Lord, Lord Hope, would then not arise. That is a much better system than trying to work up from the individual in 24 areas, or whatever it is.

[Lord Wigley]

My Lords, I am glad to follow the noble and learned Lord, Lord Mackay, again. I welcomed very much the points that he made last week with regard to looking for a mechanism. We can split hairs about the detail of it, but the need for a mechanism to be there is clear.

I thank the noble and learned Lord, Lord Hope, for proposing this amendment and, particularly, for proposed new subsection (3), which states:

“Ministers of the Crown may create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations”.


I personally believe that it is much easier to look at an issue like this if one looks at a specific aspect and asks oneself how it would work out in practice. I referred in an earlier debate in this Committee to agriculture, which is one of the areas which at present is under the common agricultural policy at a European level, but with devolution with regard to the working of agriculture in Wales and Scotland.

The nature of agriculture in Wales—I think that the noble Lord, Lord Liddle, mentioned this—is different because of the sheep meat regime. We have 12 million sheep in Wales—four times more sheep than we have people. The sheep meat regime is massively important in Wales, and more important relatively than it is in other parts of the United Kingdom. Within the European context it has been possible to find ways of enabling Wales to follow its own policies in some regards within the overall framework of the CAP for Europe. Indeed, at times there have been opportunities for Welsh Ministers to speak in Brussels on behalf of the UK, when there was something relative to a specialist interest in Wales, such as sheep, on the agenda.

The fear in Wales now is that, if the power over agriculture is in London primarily, the ability to fine-tune and develop new policies in Wales that has been exercised up to now will become more constrained—things such as the agro-environmental schemes that have been developed in Wales, for example. The fear is there because the nature of agriculture in England, and the dominant role of those interests in England, are very different to those in Wales. Therefore, if one is trying to secure a single market within the UK, which is obviously common sense, there has to be some mechanism of give and take. It may be all right for a regime in Wales to work in a way that gives added benefits to the Welsh sheep farmers, provided that is bringing them up to the overall level and not giving them unfair competition in the marketplace over other people—but the initiatives for those will need to be developed in Wales, within the context of Welsh circumstances.

That is why I believe that it is essential, whatever the final Bill contains, that it has this element not only of consultation but of agreement. My belief is that, with most things, there would be immediate agreement—and, if there is no immediate agreement, another problem will come and hit us down the road in a year or two, which will build up the type of tensions to which the noble Lord, Lord Liddle, referred. It is far better that we have this model working by agreement between the devolved Administrations, and it might come as a considerable surprise to find how willing people were then to work together.

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[Baroness Butler-Sloss]

I apologise. I was looking one seat further to the right. However, I feel that the noble Lord has not seen as much of the documentation as I have. I have the strong impression that the Gibraltar Government are extremely concerned about the movement of people, particularly between La Linea and Gibraltar. The agreements between the United Kingdom and Gibraltar Governments on the transition period go far beyond gambling—I am not the least bit interested in gambling—and include all the other areas of interest to the ordinary people of Gibraltar, including education. One of the agreements between the United Kingdom Government and the Gibraltar Government enables Gibraltarians who want education in this country to have it on the same terms as they have always had it and to be treated as if they were UK citizens. That is the kind of thing which is going on.

[Lord Wigley]

It really is me now. The noble and learned Baroness mentioned market access, which links in to the point the noble Lord, Lord Foulkes, made a moment ago. Can the assurances she has got be projected as single market access/participation? If so, does that not necessarily run way beyond the links between Gibraltar and Spain and into the generality of our relationship with the European Union?

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[Lord Wigley]

My Lords, I wish to speak to Amendment 335 in this group, which stands in my name. I agree wholeheartedly with the comments of the noble Viscount and, indeed, of other speakers in this debate.

My amendment would leave out,

“29 March 2019 at 11.00 p.m.”,

and insert,

“the day concluding any implementation period or transition period agreed between the UK and the EU”.

The question that arises is: why was 29 March put in in the first place? The only justification, other than the party political ones, is to give some certainty. That certainty disappears by virtue of the fact that we now have an amendment to the Bill that can change this date in any case. Businesses and others may take 29 March 2019 at 11 pm as gospel, and take decisions on that basis. They would clearly be wrong to do so, and we would mislead them by including that time and date in the Bill. It would be far better to have the flexibility afforded by one or other of these amendments.

I have referred to the,

“implementation period or transition period”,

for a specific reason: either those words mean something or they do not. The concept of an implementation period means that implementation is at the end of that period, which means that is the point at which we would leave all the institutions of Europe, the treaties and their implications, and all the rest. Transition means the same thing. If it does not mean that, what does having those periods mean? The Government’s intention needs to be clarified. When it comes to the final decision, Parliament should be aware of as many of the details that have come out of the negotiations as possible, so that taking a decision is as clear-cut as it can be. However, we will not know that until the very last moment, perhaps because nothing is agreed until everything is agreed. We know how some of the negotiations in Brussels have gone on. It could be the 23rd hour when that decision comes together. Flexibility must be built into the Bill by one or other of these amendments to enable Parliament to take the final decision.

[Baroness Wheatcroft (Con)]

My Lords, I support this group of amendments, particularly Amendment 345 in my name.

My noble friend Lord Bridges, who I am glad to see in his place, told the House, when he was no longer the Minister for exiting the European Union, that entering a transition period could risk stepping off the “gangplank into thin air”. He is right. To reach 11 pm on 29 March next year and exit the EU without being fully aware of where we are going is foolhardy in the extreme. Advocates of the transition period—I guess we have to believe that “transition period” means transition period—claim that it gives business the certainty it craves, but the exact opposite is the case. Businesses would be left hovering in the thin air to which my noble friend referred, without any idea of where to go afterwards. The status quo would be preserved for a few months longer, near enough, but what would come next? Therefore, I support these amendments with their option of extending the Article 50 period while negotiations continue. That way, once the final terms of exit are clear, the country would not be forced off that gangplank come what may, as others have already said. Parliament would have the choice whether to take that course of action or not. It could simply revoke the Article 50 notice. These amendments are about Parliament taking back control of the Brexit process. That has to be desirable. We should not endorse the Government slamming the stable door before the horse has even entered.