European Union (Withdrawal) Bill

Lord Wigley Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, if an Act of Parliament gives the Scottish Parliament power to say no and refuse its consent, what I am asking is whether that affects what might happen in other parts of the United Kingdom, so that you would not be able to get the common UK framework which people might otherwise think is necessary and desirable to be able to sustain a single market within these islands. At the moment, we have to some extent a form of competence at a different level—the European level—which is being brought back down to the United Kingdom. I ask these questions because it possibly means that there is a difference between the procedure which has been used if you wish to modify Schedule 5 or change Schedule 4 and one where we are returning the laws which hitherto have been subject to the European Union.

The amendments in my name, which I know are supported by my noble friend Lord Thomas of Gresford, are Amendment 89DAF in respect of Scotland, Amendment 89DAJ in respect of Wales and Amendment 89 DAK in respect of Northern Ireland. These amendments would, as the noble and learned Lord, Lord Keen, indicated, change the sunset—although it is not really a sunset in this respect—overall from seven years to five years, and they do that by changing the period during which the frameworks must be established from five years to three years. I did not seek to change the two-year period during which these orders have to be made, because that is consistent with other provisions in the Bill.

If my understanding of the situation is correct, if an order is not made that would identify the area for a framework and freeze, the power would automatically flow back to, let us say in this case, Edinburgh. Is it therefore to be expected that all these orders will be made, identifying the areas for freezing to establish common frameworks by the time we leave the European Union? Otherwise, it might appear that, within a period of days, weeks or months between our leaving the European Union and the order being made, there could be divergence between the different parts of the United Kingdom. After the order is made, I suggest that there should be a three-year period for the frameworks to be established rather than a five-year period.

I welcome the fact that time limits have been put in at all—that was a step forward, and the Government have obviously been listening on that. But I have not heard why it should be five years rather than three. That figure may have been plucked out of the air. The noble Lord, Lord Foulkes, is not in his place, but he did have an amendment in Committee in which five was suggested. It may be that that commended itself to the Government because it came from the noble Lord, Lord Foulkes. I would like to hear a rationale as to why five years is to be preferred to three. The noble and learned Lord said that they had agreement from the Welsh Government on this. It would be interesting to hear the Minister’s views on whether the Welsh Government thought that a shorter period of time would be ideal but they were prepared to accept this.

No one disputes the amount of work to be done but we are potentially in a Parkinson’s law situation, where work expands to fill the time available for its completion. If we say five years, it could take up to five years; if we say three years, it would focus the mind and we could possibly do it in three. That is not least because we are dealing with dynamic issues, and if we are to freeze retained EU law in areas where there might be need to update the law—I assume that in these circumstances we would seek to do so by agreement—three years would allow progress to be made faster.

Also in this group is Amendment 90, which again provides a sunset. However, I think it is superseded by what we are debating and so I will not seek to press it. But it is important that the Government give us a rationale as to why they have chosen this period of time.

On a very specific point, Amendment 92AD—on page 19 of the Marshalled List—talks about the reporting that is to be made by Ministers to Parliament:

“After the end of each reporting period, a Minister of the Crown must lay before each House of Parliament a report which … (b) explains how principles … (i) agreed between Her Majesty’s Government and any of the appropriate authorities, and (ii) relating to implementing any arrangements which are to replace any relevant powers or retained EU law restrictions, have been taken into account”.

I rather suspect that these are the principles that were agreed at the Joint Ministerial Committee back in October or November, which have certainly been discussed before. However, it is slightly odd to have reference to “principles” which, as far as I can see, will not actually appear in the Bill. Because we have debated this often enough, we perhaps know what the principles are, or at least know where they can be found, but to anyone coming to this fresh it would not necessarily indicate where these principles are. Will the Minister confirm that these are the principles that are being referred to—the ones agreed at the Joint Ministerial Committee—and explain whether there is any reason that they should not be added as an annexe to the Bill?

In conclusion, the noble and learned Lord, Lord Hope, quoted a letter from the First Minister, which was very measured in its terms—slightly more measured than her writings in last week’s Sunday Herald, in which she said that the Tories would “completely demolish” Scottish devolution. I immediately thought of the many debates we had during the passage of the Scotland Act 2016, in which the Conservative Government extended devolution to cover almost all of income tax and a substantial amount of social security. This could be a very cunning plan, if they assume that the Scottish Government will—I was going to say “screw it up”, but I am not sure whether that is parliamentary—act in such a way that it would end devolution, but I do not think that that was the plan. This Government have shown a very strong commitment—and I say this from the opposition Benches—through the number of things that they have devolved to the Scottish Parliament. Take one example from the 24:

“EU regulations on the classification, labelling and packaging of substances and mixtures (CLP); the placing on the market and use of biocidal products (e.g. rodenticides); the export and import of hazardous chemicals; the registration, evaluation, authorisation and restriction of chemicals (REACH); and plant protection products (e.g. pesticides)”.


I cannot honestly believe that trying to establish a common framework on that somehow undermines devolution, given that the Government transferred, almost entirely, income tax to the Scottish Parliament. It is a degree of hype that does not serve the debate well.

I rather hope that, as we go forward, we can recognise that what we are trying to do is seek a position so that, when we are no longer part of the European Union, we can in many important areas where it is thought necessary—indeed, the Scottish Government have accepted that in some areas it is necessary—establish a common framework throughout the United Kingdom. There will be further arguments as to the content of these frameworks, but for the moment we need to identify what they are. I would welcome a response to the points that I have made.

[Lord Wigley (PC)]

My Lords, in addressing Amendment 89DA, I will, as did the Minister, cover the broader ground contained in the amendments in the group. Some of my misgivings with the new proposed settlement dealt with in this group will arise in later amendments, 91 and 92, which for some reason have not been coupled with these.

While I welcome the progress that was made in the joint discussions on resolving some of the difficulties between Westminster and the devolved Governments—a welcome that has been expressed by both Mike Russell of the Scottish Government and Mark Drakeford, Wales’ Brexit Minister—I am acutely aware that not all the difficulties were resolved, and I beg the indulgence of the House for a few minutes in setting these issues in their context. I realise that some of my points may seem to be Second Reading ones, but in these amendments—there are 21 in this group alone—we have matters before us which were not in the Bill at Second Reading. I noted in particular the Minister’s invitation in his speech for us to contribute positive ideas in this context.

The adjustments before us tonight are in the context of what many people in Cardiff and Edinburgh, across party lines, regarded as a power grab—to use the term that was used then—by Westminster, in taking unto themselves powers returning from Brussels, including powers in what had previously been regarded as devolved functions such as agriculture. The fact that the Labour Government in Cardiff held out so long before agreeing reflected that fear; as did the fact that members of all parties in the Assembly—including initially Tory and UKIP AMs—supported having a continuity Bill to withstand that perceived power grab. The recent debate in Edinburgh reflected similar cross-party support for its continuity Bill. Rather than just scream “power grab” and hurl abuse at those we see as the authors of our difficulties, I will try to put forward what I see as a considered case and implore, even at this late stage in the Bill’s passage, that noble Lords appreciate the complexity of these issues—some of which have already emerged tonight—and rise to the challenge of finding a positive way forward, if not in this Bill then in some parallel or future legislation.

There have been calls from all sides for greater mutual respect in this process—for a mutuality that is not reflected by one side having a veto but other partners being denied that facility. The difficulty, repeated time after time by those involved in the recent negotiations over several months, is that there seems to be a basic lack of trust between Westminster and the devolved regimes. That is not so much a personal lack of trust but rather a lack of trust in the respective institutions.

Part of the lack of trust felt in Wales arises, perhaps, from different social values and from historic experience. There has been a growing lack of trust in Wales during my lifetime, emanating from difficult issues such as the Tryweryn Valley flooding in the 1960s, the S4C debacle of 1980 and, more recently, the Barnett formula. Devolution was meant to help avoid at least some such difficulties, but power devolved is power retained—a truism of which we have become acutely aware in these recent experiences. The underlying issues, which recent difficulties in the context of Brexit have highlighted, are not going to go away. They will continue to plague us until a proper constitutional settlement is reached. I suggest that the sunset clauses define a timescale within which this has to be sorted out.

In the wake of Brexit, the sorts of issues that will arise, and which will strain our constitutional settlement, perhaps to breaking point, include for Wales state aid for threatened industries like steel, the establishment in place of the CAP of a viable sheep-meat regime, and an acceptance that procurement rules can be used to ensure maximum community benefit from public expenditure. Sheep meat is an excellent example of the different perspectives of Westminster and Cardiff. Westminster tends to see it in terms of consumer needs; the Assembly sees it as the cornerstone of our rural economy and of local communities and their attendant culture. Quite frankly, I do not begin to see such considerations being addressed, and if Westminster insists on having a veto over such policies as agriculture, it will be seen as a constraint on devolved ambitions. There has to be give and take or the whole edifice will crumble under the strain of its own self-inflicted tensions. We are in fact trying to constrain the needs of a quasi-federal system within the straitjacket of a unitary state, and it just will not work; four into one will not go.

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[Lord Keen of Elie]

But I will not. If the noble Lord wishes me to elaborate on the operation of the sunset clauses, I would be quite content to write to him. At this stage, perhaps I can continue—with the encouragement of the noble Lord, Lord Griffiths—to address the question of the Scottish Government.

We are extremely grateful that we have achieved consensus with the Welsh Government and will be able to take this forward with their wholehearted agreement. I will come on to one or two points raised by the noble and learned Lord, Lord Morris, in a moment. As far as we are concerned, the door is still open for the Scottish Government, and we would be anxious to see them come through it so that we can take this forward with the agreement of all the Administrations in the United Kingdom. However, we are where we are at the present time. As regards their proposed amendments, they would, by different routes, result in a situation in which one of the devolved Administrations would effectively hold a veto over the implementation of UK-wide legislation for the maintenance of the UK internal market. That, I respectfully suggest, could not and would not be appropriate.

The exit from the EU raises complex questions with regard to the construction and application of the Scotland Act 1998 because, in 1998, such an exit was never contemplated. Reference has been made to Schedules 4 and 5 to the Scotland Act 1998 and the mechanisms for their amendment, but, as we were reminded by the noble and learned Lord, Lord Wallace, those are not the only mechanisms that impact upon the competence of the Scottish Parliament. We have to look at the terms of Section 29 of the 1998 Act, which as the noble and learned Lords, Lord Wallace and Lord Mackay, observed raises issues with regard to territoriality in respect of the competence of the Scottish Parliament. I do not want to go into the detail of that at present, but one notices that its competence is limited in that respect, and by reference to EU law as well. Therefore, we do not consider that, at the end of the day, we can appropriately accept a situation in which the devolved Administration can exercise a veto over the exercise of power by the United Kingdom Parliament in situations where it is being exercised for the benefit of the UK as a whole. I hope that that goes some way to explaining, without looking at the complexities of the 1998 Act, why we do not feel we are in a position to accept the position expressed by the Scottish Government on this point.

We simply regret the fact that, despite the very significant efforts—I underline “significant”—of the representatives of the Welsh Government and the Scottish Government in producing an outline agreement, it has not been possible to persuade the Scottish Government to join us on that point.

The noble Lord, Lord Wigley, suggested that this might reflect a lack of trust. As I have observed on previous occasions, this is not an issue of trust. This is an issue of constitutional propriety. Whatever view one takes of the devolved settlement and of where we are with regard to the legislation on that, at the end of the day it is not appropriate to accept that one of the devolved Administrations could effectively exercise a veto over legislation for the benefit of the other members of the Union—namely England, Wales and Northern Ireland.

[Lord Wigley]

I thank the Minister for the detail in which he is responding to this debate and the work that he has undertaken. None the less, there may be issues such as the sheep meat regime, which we have used in a number of circumstances as an example where the differential impact of policies in one area such as Wales may be much greater than the impact in other areas. To that extent, the wishes of the Welsh Government in that context should have a greater weight, in the same way as when Welsh Ministers represent the UK in the Council of Ministers to discuss the sheep meat regime. Is it not possible to fine-tune the Government’s proposals to enable that happen?

[Lord Keen of Elie]

With respect, I must say that it is our clear intention, which is reflected in the memorandum of understanding in the agreement, that we will engage with the devolved Administrations in the consideration of these framework agreements and their application. Of course, these matters will be taken into account at that stage. But I do not consider it appropriate to bring that sort of granular detail into this Bill, which is designed for a very specific purpose. I hear what the noble Lord says and, clearly, we wish to proceed on the basis of mutual respect and understanding with the other devolved Administrations.

In that context, I underline the point in response to a query raised by the noble and learned Lord, Lord Hope, speaking, I understand, on behalf of the Scottish Government who are not otherwise represented in this House. There is no question of this process under Clause 11 being somehow the thin end of the wedge so far as the devolution settlement is concerned. The devolution settlement is a reality of our constitutional situation and one that we extended under the 2016 Act, really quite recently, in light of the Smith review. We continue to respect, understand and wish to apply the devolution settlement. But it is a devolution settlement that has to work for everyone in the United Kingdom. I return to the point that it cannot work for everyone in the United Kingdom if one devolved Assembly or Government assume that they have the ability to exercise what amounts to a veto over legislation that is relevant, pertinent and important to the entirety of the United Kingdom.

I move on to address one or two additional points raised by noble Lords in respect of these matters. The noble and learned Lord, Lord Morris of Aberavon, referred to finance and whether the Welsh Government had missed a trick. I do not believe that they did for a moment. Indeed, they put themselves one step ahead by embracing this agreement and the amendment. But the noble and learned Lord raised a point about funding. He is right to point out that our agreement for the Welsh Government does not speak to funding but that is not to say that funding has been forgotten or put to one side. Clearly, it is a matter that will be addressed. We recognise the importance, for example, of the Barnett formula. We understand why there is concern, particularly about agricultural funding under CAP Pillar 1 under the current EU budget that runs to 2020. We have provided a degree of certainty by promising to continue to commit the same total cash funds for farm support across the UK until 2022. At present, the Secretary of State for the Environment is in close discussion with his counterparts in the Welsh and Scottish Governments on exactly how our agricultural systems should work outside of the EU. I stress that that is not a matter for this Bill. This is the Bill that provides for our exit and our exit alone, so I hope that the noble and learned Lord will accept that. He raised the question of public procurement—again, these issues are not for this Bill but we are clearly conscious of them and they will have to be addressed.

The noble Lord, Lord Griffiths, also raised the question of whether further areas might be the subject of reservation under the freezing provisions of the amendment. We have identified 24 areas for frameworks but a number of other areas that could be the subject of regulations going forward are still subject to discussion. I acknowledge that. Noble Lords may recollect that we published the list of frameworks and included not only the 24 areas I have referred to, but a further 12 where there is ongoing discussion about how they will be addressed and resolved.

I am conscious that I have not answered every question that has been posed. If noble Lords are concerned that I have not addressed a point that still concerns them about Clause 11, as amended, I would be content to receive their queries and write to them. In the event that I write to any noble Lords on this issue or any issue relating to this clause, I will place a copy in the Library. I seek to reassure noble Lords on that point. With that, I will formally move each amendment. I am sorry—the noble and learned Lord, Lord Hope, has to reply.

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Moved by

[Lord Wigley]

91: Clause 11, page 8, line 43, at end insert—
“( ) This section may not come into effect until—(a) the Scottish Parliament has passed a resolution approving the provisions in subsection (1);(b) the National Assembly for Wales has passed a resolution approving the provisions in subsection (2); and(c) the Northern Ireland Assembly has passed a resolution approving the provisions in subsection (3).”

[Lord Wigley]

My Lords, Amendment 91 stands in my name and those of the noble Lord, Lord Steel of Aikwood, and the noble and learned Lord, Lord Hope of Craighead. It would require the consent of each of the devolved parliaments to be obtained before Clause 11 comes into effect.

Amendments 107 and 108, standing in my name only, provide that none of this Act, except for this clause, would come into force until the Prime Minister was satisfied that resolutions signifying consent have been passed by the Scottish Parliament, the National Assembly for Wales and, unless direct rule is in place, the Northern Ireland Assembly. Both amendments deal in different ways with the element of consent relating to the Act. Both would enshrine the Sewel convention in law. The Sewel convention dictates that the UK Government shall not normally legislate in areas of devolved competence without consent. Consent is sought through a legislative consent Motion. Very rarely do the devolved Parliaments withhold consent. It has happened I believe—I can be corrected if I am wrong on this—only once in Scotland and once in Northern Ireland since 1999. Ironically, it has been used seven times by the National Assembly for Wales. I am not quite sure what that tells us.

The point I am underlining is that withholding legislative consent is not used lightly. It is treated with caution and respect. It is the only constitutional tool available to the devolved Parliaments to challenge the balance of power across the British Isles. However, we know from the Miller case on the Article 50 Bill that the Sewel convention is merely that: it is a convention. The UK Government are wholly within their rights to override any decision made by the devolved Parliaments in relation to this Bill or any other Bill deemed within devolved competence.

I have spoken at length on previous occasions about the need for the Sewel convention to be enshrined in law in relation to this Bill. This is the most wide-ranging constitutional Bill since the European Communities Act 1972. I have spoken at length about the need for the devolved Parliaments formally to consent to Clause 11—I shall not repeat those arguments. I will, however, point to the most recent developments whereby the Welsh Labour Government have implied consent to the Bill, having accepted the amendment to Clause 11 laid by the Government, although time will tell whether that will carry through the Assembly. Those same amendments are insufficient for the Scottish Government and every opposition party in Scotland except the Scottish Conservative Party. The main sticking point for these parties is consent.

The UK Government have tried to devise a new meaning for consent in relation to the functions of Clause 11. They seem quite deliberately to be confusing “consent” with a consent decision. There is a difference, but I think that everybody who reads about this matter in the generality may not be aware of it. The UK Government can impose restrictions on the National Assembly for Wales’s competence as long as a consent decision has been made—not that consent has been obtained. The substance or result of that consent decision is immaterial. The UK Government can steam ahead even if a consent decision is not made. This, quite frankly, is a farce. I believe that there will be a lot of public discussion about that as matters move forward.

We have reached a point in history whereby the current constitutional arrangements, the political conventions underpinning the UK’s intragovernmental relations, are under pressure and in danger of unravelling. In the way that the UK Government are handling consent, they are making it a concept whose understanding among the public is in some doubt and it is causing severe mistrust across the four nations. I urge the UK Government to act, to listen to the Scottish Government and to come to an agreement on consent and a new UK constitution.

Amendment 91 should be grasped by the House today and the Government should accept it to resolve the position in Scotland and to get out of the unholy mess in which they have landed in Wales. I beg to move.

[Lord Hope of Craighead]

My Lords, I have put my name down in support of the amendment. The arguments which led me to do that are those which I set out when I was moving my amendment earlier this evening, so I need not take up the time of the House in repeating them. What I said earlier is the full explanation as to why I put my name down.

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That is the very purpose of the proposed amendment to Clause 11. That is where we should be. The amendments proposed by the noble Lord, Lord Wigley, would give the devolved legislatures the final say over those powers that operate in more than one of the devolved legislatures, and therefore we cannot accept them. At the end of the day, the Bill has to provide legal and administrative certainty. I therefore urge the noble Lord to consider again the appropriateness of these amendments.

[Lord Wigley]

I ask for one point of clarification from the Minister. Does he not accept that there is a real danger of confusion in the public mind between allowing a consent order and actually getting consent? In other words, the process can be one where consent is given, is not given or is refused, but whichever of those three outcomes it is, the process can still go on for a parliamentary resolution here by order; and we know that orders, in the House of Commons and here, go through on the nod most of the time. Is that not a deception, giving the impression that there is a consent mechanism when, in fact, it is a pretty meaningless one?

[Lord Keen of Elie]

I simply do not accept the noble Lord’s characterisation of the matter. It is clearly the case that where consent, for example, was sought and not obtained, it would be necessary for the Minister of the Crown to address that, very clearly and specifically. There would be the opportunity, as there always is, for the devolved Administration to make their own views clear as to why they had declined consent. I do not believe that this is in any sense deceptive, misleading or a mirage. These are constitutional requirements that are adhered to and that will be adhered to. It would not be appropriate to introduce the sort of amendment moved by the noble Lord that would, in effect, tie the hands of this sovereign Parliament, so far as this exit process is concerned. Whatever view one might take about the merits of exit, that is neither here nor there. This is a constitutional principle with regard to the sovereign Parliament of the United Kingdom when it comes to legislate for the benefit of the entirety of the United Kingdom. I therefore urge the noble Lord to withdraw his amendment, and indicate that I would not expect to return to this matter at Third Reading.

[Lord Wigley]

I am very grateful to the Minister. I have heard that form of words from his colleagues in the past. Clearly, this is a matter on which there may be a difference of opinion. I realise the need for there to be coherence on a UK scale but there are matters which have a specific effect in Wales, Scotland or Northern Ireland where their interests need to be taken into account. Clearly, we are not going to make progress on this tonight. Therefore, on the basis of the discussion we have had, I beg leave to withdraw the amendment.

Amendment 91 withdrawn.

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Moved by

[Lord Wigley]

92A: After Clause 11, insert the following new Clause—
“Joint Ministerial Committee
(1) The Joint Ministerial Committee is to consist of —(a) one member appointed by the Prime Minister of the United Kingdom; (b) one member appointed by the First Minister of Scotland;(c) one member appointed by the First Minister of Wales; and(d) one member appointed by the First Minister and Deputy First Minister of Northern Ireland,or, if it is not possible to appoint four members, the member appointed by the Prime Minister under paragraph (a) and two members appointed under paragraphs (b) to (d).(2) The persons referred to in subsection (1) may—(a) appoint themselves to the Joint Ministerial Committee; and(b) appoint different members for different meetings of the Committee.(3) The Joint Ministerial Committee must be chaired by the member appointed by the Prime Minister.(4) Where there is a proposal from any member of the Joint Ministerial Committee for a decision to be made on any question, that proposal must be approved only where—(a) in the case of there being four appointed members, there is an affirmative vote by at least three of its members;(b) in the case of there being three appointed members, there is an affirmative vote by at least two of its members.(5) No recommendation is to be made to Her Majesty in Council to make an Order in Council under the provisions of section 11 of this Act without its having been first approved by the Joint Ministerial Committee.(6) No UK framework providing for agreed action on matters which were, on the day immediately preceding exit day, devolved to Scotland, Wales, or Northern Ireland may take effect without its having been first approved by the Joint Ministerial Committee.(7) In this section, “the Joint Ministerial Committee” means the body set up in accordance with Supplementary Agreement A of the Memorandum of Understanding on Devolution between Her Majesty’s Government, the Scottish Government, the Welsh Government and the Northern Ireland Executive Committee.”

[Lord Wigley]

The main purpose of Amendment 92A is to strengthen the position of the Joint Ministerial Committee on EU Negotiations in relation to the creation of UK frameworks.

The amendment is by no means complete and may lack some technical finesse, which the Government could put right in the other place if they were to accept this proposal. It does, however, propose practical ways around the devolution deadlock. We must remember that, at least in the Scottish situation, the court has yet to come to its conclusion, and if it finds in favour of the Scottish Government, the Scottish continuity Bill could remain a block to progress on implementing this measure. The amendment proposes an alternative to the restrictions placed on the devolved Parliaments through Clause 11 and by the Government’s amendments to Clause 11. It proposes that we go beyond mere consultation rights for the devolved nations. I accept that this Bill might well not be the legislative vehicle we would choose to use to formalise such an important intergovernmental mechanism in law, but I want to draw the Government’s attention to the alternatives to Clause 11 as amended.

The JMC already brings together representatives of the Governments of the United Kingdom, Scotland, Wales and Northern Ireland to discuss matters of common interest. However, at present the JMC has no power. It has no legislative underpinning. It is simply a discussion forum, for consultation and voluntary co-ordination. I remind noble Lords that no minutes are taken. It is an essentially informal arrangement. It meets on an ad hoc basis. There was no meeting last year for over six months. In the context of the European negotiations, that is totally inadequate.

As an alternative to Clause 11 to decide on areas which will require UK frameworks—a facility which the Government may well find they need—as things stand, the JMC is not fit for purpose. Strengthened and bolstered, however, it could provide a way of allaying the critics of Clause 11. It could provide a way of collaboratively deciding on areas that will require temporary legislative restrictions on devolved competences, including on England, which is not currently the case in the Bill—an omission which has already rung some alarm bells in Cardiff and Edinburgh.

This is not a new phenomenon. Dr Jo Hunt and Rachel Minto of the Wales Governance Centre have written extensively about the need for robust intergovernmental structures if the UK constitution is to operate effectively into the future. To achieve this, the JMC should be put on a statutory basis, with clear powers, membership and voting rights. This would replace the current—typically British—constitutional arrangement based on gradually evolving informal understandings.

The JMC should require majority voting. Having four members—appointed by the UK Government, Wales, Scotland and Northern Ireland—would imply the need for an affirmative vote of three members, or two out of three if the Northern Ireland Executive is suspended, or if one abstains. This in turn implies that the UK Government would need to secure support from most of the devolved authorities in order to achieve a decision in favour of their proposals. They would no longer be able simply to consult and then overrule them. The JMC would then effectively become a council of Ministers for the UK’s own internal market.

Some colleagues may have noticed that when the Public Administration and Constitutional Affairs Committee visited Holyrood on Monday, Richard Leonard, leader of the Scottish Labour Party, William Rennie, leader of the Scottish Liberal Democrats, and the Green co-convener, Patrick Harvie, all expressed their objection to Clause 11 as it stands. William Rennie in fact alluded to needing a level playing field across the UK for the withdrawal Bill. He said:

“Westminster having the final say isn’t sufficient. There needs to be some kind of mechanism, perhaps around qualified majority voting of some sort”.


This concept is gaining ground and it might just result in consent.

This is a tool the Government need to get out of the predicament in which they find themselves. Even if it cannot be included in the Bill now, I hope the Government will look seriously at finding a greater role for the JMC and at some way of giving it a legislative underpinning. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, in my own profession when you make a mistake you stop, reflect and rectify. Fortunately, we have seen that happen with Clause 11 and I take this opportunity, having not spoken previously, to commend all players who have renegotiated the amendments that we have agreed to this evening. I pay particular tribute not only to Mark Drakeford but to Carwyn Jones, who has had a role in all this—much more quietly than Mark Drakeford, who has fronted it—and all the civil servants who have supported this process. I have certainly appreciated the interventions from the noble Lord, Lord Bourne of Aberystwyth, who has kept me up to date with some of the progress.

This amendment, as proposed by the noble Lord, Lord Wigley, takes us to the next stage because when you are in a completely new situation, you have to do the best you can. You have to learn from past mistakes and find a new way forward. We are facing a completely new, evolving situation. There really need to be new working arrangements between the devolved nations and Westminster, and they have to be on a much more level playing field than before. I can see that the way this amendment has been drafted is not for the Bill and I would not expect the Government to accept it. However, I hope that the principle of having a different framework whereby these discussions happen will be accepted and taken forwards. I also hope that, however the terms of reference for this group are written, they will be open for discussion and come out of discussion with all the nations involved, rather than being centrally generated and offered as something to be signed up to. There really is a need for ownership going forwards.

On rectifying what has happened as we enter the new partnership, which the noble Lord, Lord Wigley, spoke about previously, I thought it was telling that in the previous debate the noble and learned Lord, Lord Morris of Aberavon, mentioned money. One way the Government might like to help re-establish some of the working practices is to build on the debate we had the other day about the Swansea barrage, consider asking the National Assembly for Wales what it would like to do, and help it achieve whatever it feels is best for jobs and the future energy supply of Wales.

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[Lord Adonis]

I congratulate the noble Lord, Lord Wigley, on trying to rewrite the entire British constitution at 10 pm in one amendment to the European Union (Withdrawal) Bill. In his defence, the Government are rewriting the rest of the British constitution in the rest of the Bill, and we have frequently been debating that after midnight, so I do not think that the Government can complain in principle about what he is seeking to achieve.

I shall make two observations on the noble Lord’s amendment and then I will have a question for the Minister. I think that the noble Lord, Lord Bourne, will be replying. That is part of the reason that I got to my feet, as I particularly want to ask him about consultation with local authorities in England.

My first point is that the noble Lord, Lord Wigley—he was quite open about it—is seeking effectively to introduce a formal federal constitution. Let us be clear: if this became law, effectively the devolved Administrations would have a veto over the United Kingdom Government in certain circumstances, depending on how the weighted voting worked. If that happened, this body would become a new second Chamber. We would then have two second Chambers: this body, which would act as one court of debate and veto over the United Kingdom Government; and the House of Lords as well. If we go down that route, which we may well have to go down eventually as we debate House of Lords reform and all the consequentials of Brexit, then we probably will at some stage end up with a proper federal second Chamber and a substantial rewriting of the United Kingdom constitution. I simply note that that is what the noble Lord is seeking to do, taking a significant step forward from the existing JMC.

The second point I am bound to make is that the word “England” does not appear in about 40 lines of proposed legislative change. Even though I am repeating this point at 10.23 pm, it is quite an important one. Some 53 million of the 63 million people who live in this state live in England. The one debate we have had in the entire proceedings on the European Union (Withdrawal) Bill regarding how the government of England will be improved as a result of this Bill was on an amendment moved, I seem to recollect, by the noble Lord, Lord Shipley, on what the consultation and institutional procedures are going to be after we withdraw from the Committee of the Regions. I seem to remember the Minister saying that he was going to meet local authority representatives in England soon and that he did not rule out—I pressed him on it and got a slightly vague answer, but he was trying to engage—establishing some institutional mechanisms for the formal consultation of local authorities in England to replace the arrangements in respect of the Committee of the Regions, which is of particular importance to the regions of England because of regional development policies hereafter, when the Regional Development Fund ceases to apply.

I see the noble Baroness, Lady Goldie, has her folder open. Is the noble Lord replying? He is. I wonder whether he could update us on how his consultations are going with local authorities in England. In particular, is it the Government’s intention to introduce some formal machinery for developing consultation with local authorities in England?

[Lord Wigley]

To clarify, the amendment, as the noble Lord will no doubt have noticed, refers to,

“one member appointed by the Prime Minister of the United Kingdom”.

I imagine that would be someone representing England, the point being that there is no Prime Minister of England equivalent to the First Minister of Scotland, the First Minister of Wales and the First Minister and Deputy First Minister of Northern Ireland, as specified in the amendment.

[Lord Adonis]

The noble Lord—I would like to call him my noble friend—gives the game away. He says that he imagines that this person might represent an English constituency. In fact, he might or might not. If the noble Lord, Lord Bourne, were Prime Minister, he comes, I understand, from Aberystwyth. He would then be the representative of the UK Government. In our lifetime, I served under one Scottish Prime Minister. I have never served under a Welsh Prime Minister, but there have been one or two Welsh candidates for that post in the past.

In England we are not very good at this rigorous constitutional thinking. Let us be clear, even if it were an English Member of Parliament or Minister, their role would be to represent the Government of the United Kingdom; it would not be their role to represent England, separate from the Government of the United Kingdom.

Finally, when the noble Lord produces his full draft of a new written constitution for the United Kingdom with his proposal for a federal senate, which I assume will be his next amendment on Third Reading, could he please suggest some arrangements for how England will play a part in his federal arrangements?

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

I thank noble Lords who have participated in the debate; we all agree it is very late in the evening for such an important issue. I thank the noble Lord, Lord Wigley, for bringing this to the attention of the House and putting his case very crisply. We have already debated possible structures for the UK Government and devolved Administrations to come together in consideration of common frameworks. I do not want to simply repeat those arguments, particularly at this time of the evening, so I will not.

It is important to note that the Government are currently reviewing the existing intergovernmental structures with the devolved Administrations, as agreed by the Prime Minister and First Ministers at the meeting of the JMC plenary on 14 March. It is important that the review closely aligns with our work on future common frameworks. That undertaking was given then, and it is something that we are looking at.

I note a certain irony in the proposal from the noble Lord, Lord Wigley, that, had this been on the statute book, I presume he would have been championing our agreement with the Welsh Government and saying that it was effective because two Administrations out of the three had agreed to it. Nevertheless, despite that very handy point, I must say that I cannot accept what he is arguing for—not for that reason, obviously, but for others.

We have shown that we are flexible in responding to the devolved Administrations’ requests or concerns regarding the operation of the current structures, including on the management of meetings and the content of discussions. We have all benefited from that process. Why would we not want that to be the case? I believe the pragmatism and flexible approach that we have seen, particularly from the Welsh Government—but, yes, extending certainly to Mike Russell’s approach—is something that has benefited us all. However, we do not agree that the solution would be for intergovernmental relations to be placed on a statutory footing, as suggested by the noble Lord, particularly in this amendment. In all fairness, I think he anticipated this point in saying that he realised that it would not perhaps find total favour with the Government, a point on which he is correct.

That said, we hear much of the failures of our intergovernmental structure and no doubt it could be improved, but we do ourselves a disservice if we do not also recognise its successes. I thank the noble Baroness, Lady Finlay, very much for her kind comments about the Government’s approach and about me particularly; I am very grateful for that. She noted that the JMC (EN) has been very effective. It now meets frequently under the chairmanship of my right honourable friend the Chancellor of the Duchy of Lancaster, who has also continued to meet his counterparts frequently between meetings. Indeed, the committee has met today and has made some progress.

We should note that it is through the effective working of the committee that we have been able to make the progress that we have on Clause 11, and it is through this that we have reached agreement with the Welsh Government on the proposals before noble Lords today. Like other noble Lords, I place on record our thanks and our respect for Mark Drakeford, a competent Minister in the Welsh Assembly—not someone with whom I would agree politically on many occasions but he has shown a flexible, pragmatic and collaborative approach. This is grown-up politics in devolution days, and that is the way to move things forward. There was evidence of some of that approach in Scotland as well, to be fair, but ultimately, as we have noted, the JMC is not a decision-making forum. Its role is just to make an agreement that then goes elsewhere—for understandable reasons. That is something else on which I disagree with the noble Lord; I do not think it can be a decision-making body. I can see the use of bringing people together, which we are doing. It is flexible, and that is the way our constitution operates.

I note the points made by the noble Lord, Lord Thomas of Gresford. Some I would agree with, but I cannot really think of anything more chilling than putting it on an inflexible statutory basis, other than the earlier prospect when the noble Lord talked about his appearance in Aberdeenshire in a kilt. That was probably somewhere along the same lines—somewhat chilling. On a serious note, though, I have to say that although I agree it is good to have bodies where we can discuss these issues, flexibility, as this has demonstrated, is of great use.

We must, as we are doing, foster a culture of collaboration, close working and, yes, compromise, which we have seen in the discussions. That is the way to move things forward in the sort of structure we have in our country, in the make-up of the four nations.

I agree with the noble Lord, Lord Adonis, that England is the dog that does not bark—or has not so far. I agree with him on the absence of the word “England” in the amendment of the noble Lord, Lord Wigley. Obviously, the Prime Minister of the United Kingdom, who, as we know with Gordon Brown, does not need to represent an English constituency, is Prime Minister of the whole of the United Kingdom. That perhaps exhibits the difference between me and the noble Lord, Lord Wigley, for whom I have the greatest respect. He perhaps let the cat out of the bag on that point: he or she is not Prime Minister of England but of the whole state.

That said, some important points that we will want to consider have been made this evening. I noted with seriousness the points made by the noble Baroness, Lady Hayter, and have sympathy with the need for some structure that underpins the union. As unionists, we would applaud that. I have always said that the noble Lord, Lord Wigley, is at the acceptable end of Plaid Cymru—he sees the sense of the workings of the union—and I thank him for his input, which I know is well made.

I turn to some points made by the noble Lord, Lord Adonis—off piste but I will happily pick them up—about the Committee of the Regions. Perhaps other noble Lords will confirm this, but I believe that I have written to noble Lords about a meeting that not I but my honourable friend in the other place, Rishi Sunak, had with leaders of local government. That meeting has taken place. If noble Lords have not received the letter yet, it means that it has not yet gone out, but it is certainly in the system. It indicates that it was a positive meeting and that there would be more.

Here we go into the devolved structures that are now very much part of our system. The noble Lord will appreciate that on devolved matters, the Welsh, Scottish and—when that part of the country is up and running with power-sharing—Northern Ireland local government leaders will be in discussion with the devolved Administrations. That is of course a matter for them to take forward. We are taking it forward with all local government leaders, but, in relation to Scotland, Wales and Northern Ireland, only on those matters that are reserved to us. It was a positive meeting—the letter will outline the progress made—but there are to be more meetings. I cannot remember saying anything other than that, and that is all I am able to convey at this stage.

With that, at this very late hour, I thank noble Lords for their contributions on serious issues. I will ensure that the noble Lord, Lord Thomas of Gresford, who made some very technical but, I am sure, valid points, gets a full response. I respectfully ask the noble Lord, who is my noble friend in personal terms, to withdraw the amendment.

[Lord Wigley]

I am very grateful to the noble Lord, Lord Bourne. I take the opportunity to thank him for—

[Lord Bourne of Aberystwyth]

I am very grateful to the noble Lord, Lord Wigley, for giving way. One thing I forgot to say, which I know he will be anticipating, is that we will not be coming back to this issue. I know that he was probably coming on to the fact that I had not said that, so let me say now that we will not be coming back to this at Third Reading, so if he wishes to press the issue, he should do so now.

[Lord Wigley]

My Lords, seeing the noble Lord, Lord Callanan, sitting next to the noble Lord, I took that as read at this stage of the debate.

I wanted to put on record my appreciation and thanks to the noble Lord, Lord Bourne, for the consultation and the opportunity to discuss various aspects of the Bill. I hope that we can take advantage of that in future. I also thank everyone who has taken part in the debate—the noble Baroness, Lady Finlay, the noble Lord, Lord Thomas of Gresford, the noble Lord, Lord Adonis, who has stood up so effectively for England, and the noble Baroness, Lady Hayter—for their contributions.

I have just a couple of quick points. Of course, there needs to be thought about how England comes into any such structure, but the same argument exists now as it probably did 100 years ago: whether it is England as a whole or England on a regional basis, and how that interplays when you have national units elsewhere. That needs to be thought through.

I will obviously withdraw the amendment in a moment, but I hope that out of this debate, two avenues of thought can proceed on the post-Brexit situation. One is, what will become the equivalent of the Council of Ministers when we have a multinational United Kingdom as a single market? Thought needs to be given to that, and it may be something that can be pursued outside.

Secondly, if we cannot put the JMC on a legislative basis, how can we at least make it much more formal and therefore more effective, so that it plays the role it has the potential to play? As the noble Lord, Lord Thomas, outlined, it has not always done so as effectively as it should. I hope that the noble Lord, Lord Bourne, might be able to sow the seeds of thinking on that in other parts of government, and that we do not allow the water just to run into the sand from this short debate tonight. On that basis, I beg leave to withdraw the amendment.

Amendment 92A withdrawn.