European Union (Withdrawal Agreement) Bill

Lord Wigley 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 Wigley (PC)]

My Lords, I have an apology to make to start with: I am so sorry that Wales sent Henry VII and Henry VIII through to Westminster to impose the sorts of powers that are now being used in the way they are. Henry VIII was also responsible for the Acts of Union, and I am sorry about that as well.

With regard to Wales, quite clearly these powers are being drawn up in a way that is, at best, cack-handed and, at worst, causing immense reaction in the National Assembly. It is no overstatement to say that Members across party divides in the National Assembly are seething about these powers being brought forward. It follows two years of discussion and debate about fears of a power grab, with powers being taken away from the National Assembly, and indeed possibly from the Scottish Parliament—no doubt Scottish Members of this Chamber can speak up for themselves on the situation there, although I must admit that I have heard very few Scottish voices in these debates. However, as far as Wales is concerned, there is real fear that, in areas such as agriculture and on the question of the single market and the purchasing power of the Assembly, powers may be taken back. That might be done on the pretext of their being necessary for the UK single market, or possibly for other reasons.

Given that there has been co-operation in Wales across party boundaries to make sure that the settlement we have is worked out in a sensible way and progressive additional powers have been given, and, by and large, that successive Governments in Wales have worked in collaboration with Governments in London, for this clause to be put forward in this way is, frankly, not acceptable. The Government of Wales Act could itself be amended, or even overturned. How on earth can these powers be necessary when there are other ways of achieving the objectives the Government may have in the context of international treaties, as the noble and learned Lord, Lord Thomas, mentioned a few moments ago?

I beg the Government to look again at this. They are stoking up unnecessary conflict between Cardiff and Westminster. There may well be areas where we will have conflict and differences of opinion, so, for goodness’ sake, do not do it gratuitously. I ask the Minister to look seriously at this again and, if he cannot accept these amendments, to bring forward amendments on Third Reading to deal with this situation.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)]

Forgive me, my Lords—I was too premature in eating my Polo Mints; I will save them for later.

As expected, this has been quite a technical debate, and I will do what I can to offer further details on some of the elements I have spoken of. The first thing I should stress to the noble Lord, Lord Tyler, is that the letter was sent to his Whips for onward distribution; it would have gone there on Thursday of last week, and I believe that the same is true for those on the Labour Benches. The letter has been sent out and made available. I am very happy to resend it, so that he can have the details, and I will not belabour the House by reading it out again.

At issue in this debate is the question of the scope and depth of the powers, and we have heard much reference to Henry VIII. I emphasise that Clauses 21 and 22 are required to enable both the UK and the devolved Administrations to fully implement the Northern Ireland protocol. Secondary legislation will be needed to further implement certain elements of that protocol before December 2020, which is the end of the implementation period. As a number of noble Lords noted, failure to do so could affect the ultimate agreement between the EU and the UK, with negotiations being conducted in the light of the UK not fulfilling its obligations under the withdrawal Act. What we are saying is that, in the calendar year ahead, there is much to be done and much is still uncertain, because it will emerge from the negotiations that take place between the UK and the EU. It is important to stress also that, where the issue affects the Northern Ireland protocol, the Northern Ireland Executive will have a role and be involved.

The powers we seek are broad, but they are constrained. First, they are Northern Ireland protocol-specific and can be exercised only to implement the protocol, to supplement it within domestic law or to deal with matters arising out of, or related to, the protocol. Regulations beyond this scope are ultra vires. It is important to stress that, as it limits what these powers can be used to do. A number of noble Lords have suggested that they could be wide-ranging and could up-end or repeal the fundamental devolution settlements for Scotland and Wales. In fact, because they are so specific, that is not a possibility.

Further, any use of the power in Clause 21 that seeks to amend primary legislation, including the fundamental devolution statutes, will be subject to the affirmative procedure. There is no suggestion whatever that this will be done in secret, or in any attempt to blind-side this or the other place. The purpose is to ensure that there is full scrutiny by all the authorities within these Houses. The procedure attached to the use of this power means that there are no circumstances where the Government could change or amend the devolution statutes without the full involvement and scrutiny of both Houses. It affords the fundamental opportunity, according to custom and practice, for this and the other place to be engaged. On the Government of Wales Act 2006 and the Scotland Act 1998, the Bill grants no vires for wholesale repeal of any of the devolution statutes—and I repeat “any”.

I turn to the specific points raised in the amendments. On Amendment 3, the powers are necessary to align Northern Ireland with certain elements of EU law. It is therefore necessary to ensure that the power in Clause 21 can be used to amend the withdrawal Act to ensure that the arrangements required in the protocol are operational and the statute book does not contain uncertainty. That is to happen in the time we have spoken of—by the end of this year.

The power will not be used to repeal any substantive provision in the European Union (Withdrawal) Act 2018. The noble Baroness, Lady Hayter, asked why the Government would wish to amend the withdrawal Act. I assure the noble Baroness that the Government have included the power with due consideration. If the statute book is not clear and in legal conformity with elements of the withdrawal Act, confusion and uncertainty could well result. Again, I reinforce that the Government cannot use this power to make changes to the 2018 Act for any purposes beyond those required for the full implementation of the protocol. It is the protocol itself that gains the ascendancy and restricts the onward actions in a wider sense.

The limits in Amendment 4 risk preventing the United Kingdom fulfilling its international obligations under the Northern Ireland protocol. The proposed restrictions create problems. Several details of the protocol require further decisions in the UK-EU joint committee to become fully operational. The Government have committed that representatives from the Northern Ireland Executive will be invited to form part of the UK delegation in any joint committee meetings where Northern Ireland-specific matters are discussed, and where the Northern Ireland Government are present. This is evidence that the UK places significant importance on maintaining Northern Ireland’s unique place in the union. It is important that, after a very long absence, we now have an Assembly and an Executive in Northern Ireland.

The Government will not use these powers to repeal the devolution statutes wholesale. Indeed, they are wholly incapable of doing so because of the inherent limitations of the power, which I have already touched on. It is the Government’s firm intention to fully engage with the devolved Administrations, and it will be important to do so with regard the withdrawal agreement, and to ensure that the protocol itself is correct and delivered in the right manner.

On Amendment 7, the power is necessary to implement certain elements of the protocol that are within devolved competence. Any modification of the Government of Wales Act 2006 by way of the power in Clause 22 could in practice occur only with the agreement of the Welsh Government; it is only with their full participation that Clause 22 could be delivered. The amendment could impede the Welsh Government in exercising their own legitimate power when implementing the protocol in areas of devolved competence in a manner that they deem appropriate. So, again, the clause, if amended in that way, would cause the Welsh Government a problem in the natural fulfilment of their powers.

The Government fully seek and intend to proceed in the spirit of engagement and co-operation with the devolved Administrations, and that will include the Joint Ministerial Committee. We should bear in mind that that committee has two strata that we are concerned with. The first is one with which the officials themselves are fully engaged; a lot of the issues that we are talking about regarding the Northern Ireland protocol are technical issues that will be dealt with primarily at official level. The second is the ministerial level at which decisions can be taken. The powers themselves are deemed to be essential and are required to implement the protocol.

I will try now to address some of the specific points raised by noble Lords today. The first, which is the most important, is the question of why the Government do not seek to use a Section 109 Order in Council. A number of Peers raised this point, suggesting that it is the correct way. I too was curious and sought specific advice on this. A Section 109 order can be used where appropriate to make amendments to Schedules 7A or 7B to the Government of Wales Act 2006. It would work in those areas. However, if amendments outside the scope of a Section 109 order were required, as updates to the protocol might require, it would not be possible to rely on a Section 109 order to make them. It is important to stress as we look at that that the Section 109 order would be adequate in only certain circumstances, not in all circumstances. Therefore, we cannot rely on that method to move forward.

There was also a question about other means that could be used. A question was raised by a number of noble Lords about whether powers to direct Welsh Ministers could be used to deliver this. Powers to direct are to compel acts in areas of devolved competence. Section 82 of the Government of Wales Act, which the noble and learned Lord, Lord Thomas, referred to, does not allow for amendment of the devolution statutes, which might be needed to implement the protocol. So, again, this route is not available to the Government to address the matters that might result from the ongoing negotiation between the EU and the UK.

I am being corrected, so I will put this on the record. On the joint committee, I should have said that for meetings discussing NI-specific matters and where the Irish—not the Northern Ireland—Government are present, representatives from the Northern Ireland Executive will be invited. Let me be clear on that.

The difficulty we face in this regard is that we now have before us several elements that we need to keep focused on. We will need powers to change the elements required for the Northern Ireland protocol itself. On the question of the concomitant impact on the Scotland Act or the Wales Act, the reason we have been so clear on this is that they will potentially be affected as elements of the negotiations unfold. That is why there needs to be an opportunity for them to be amended in the focused area, as required by the Northern Ireland protocol. They cannot be amended in a wholesale manner, whereby they could be repealed, revoked or amended beyond their constitutional necessity. That is why I was very clear in a letter that I wrote that the important point to take here is that these themselves can be addressed only via the need to institute the elements of the Northern Ireland protocol.

I am fully aware that this is an important issue and that people in Northern Ireland, Wales and Scotland are looking at this with some interest. The reality is that over the next few months we will have a serious negotiation on the future relationship between the UK and the EU, particularly on the Northern Ireland protocol. That will impact on the whole of the United Kingdom and all its manifest elements. However, I am also aware that I might not have fully satisfied your Lordships. If I have not, your Lordships might wish to take the mood of the House, because I will not be able to return to this matter at a later stage.

--- Later in debate ---

[Baroness Coussins (CB)]

My Lords, this is a very slimmed down amendment compared to what we debated in Committee last week. Nevertheless, it provides some degree of certainty that Erasmus would at least be a prominent and visible issue on the Government’s agenda as we negotiate the details of our departure from the EU over the next year. That should provide some comfort, especially to universities and all the young people aspiring and hoping to become students or apprentices over the next few years.

In Committee, the Minister put forward a couple of specific reasons for his caution about signing up as full members to the next stage of Erasmus+. One was that not enough information was yet available about what the next phase of Erasmus+ would look like, between 2021 and 2027. However, in my contribution to that debate I set out detailed information about exactly what the budget for the next phase would be. There is already an agreed budget with minute details of exactly how much would be allocated to specific areas of education and training, and to vocational activities. This is good enough for the 27 EU member states and for the six other countries that have signed up as non-EU members of Erasmus+, so I am still rather puzzled as to why it is not good enough for us, when we know that Erasmus has been so beneficial up to now.

The second reason advanced by the Minister was that the Government want to expand their mindset from being just Europe-focused to being more global. Absolutely right, but again, as I said in Committee, Erasmus+ does precisely that. The “plus” refers to the fact that the programme now enables students and other young people to take up placements, activities and projects across the world, not just within the EU. Erasmus+ is already completely in line with the policies and statements of Her Majesty’s Government as expressed in the last week by the Department for Education and the Prime Minister. Conversely, without Erasmus, we will do measurable and serious damage to education, trade, diplomacy, defence and security over the longer term. These are all areas where language skills are increasingly vital.

Erasmus+ and this amendment do absolutely nothing to frustrate this Bill or our departure from the European Union. Again, I ask the Government to be consistent with their own statements, and to be magnanimous and adopt this very modest amendment.

[Lord Wigley]

My Lords, I will not repeat what I said in Committee, but I support the amendment. More than that, I want to ask the Minister whether he can give a firm assurance that if a reasonable deal can be reached in the negotiations—I realise that no Government can give the ultimate commitment until the ink is dry—it would be the Government’s ambition to make the maximum possible part of Erasmus+ available to young people in the United Kingdom and to welcome young people from other parts of Europe and the rest of the world to the United Kingdom under the auspices of Erasmus+. It would reassure the House if a fairly firm indicator could be given tonight, and it would give us some comfort as we move ahead.

[Lord Smith of Finsbury (Non-Afl)]

My Lords, I declare my interest as Master of Pembroke College, Cambridge. I support the amendment for the principal reason that parliamentary oversight will be a constant reminder to the Government of the importance of participation in the Erasmus programme. Over its 30 years, Erasmus has helped some 3 million students across Europe in all. It is enormously valuable. For our students who have the opportunity to take part in exchanges across Europe, it enriches their education and fulfils their desire to have the best possible experience of life and the world.

One of the things that distresses me most about the Brexit process we have embarked upon is that it fundamentally undermines what I thought our country was all about: having an international spirit and opening our arms to the rest of the world. We are abandoning that. If our politics abandon it, please do not remove that spirit from our students—who are, after all, the hope for a better future than the one we are currently imposing on them.