European Union (Withdrawal) Bill

Debate between Lord Wigley and Baroness Finlay of Llandaff

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

[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.

European Union (Withdrawal) Bill

Debate between Lord Wigley and Baroness Finlay of Llandaff

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Wigley (PC)]

My Lords, I too support the noble and learned Lord’s amendment, and I entirely agree with his approach—that it is best to focus on a couple of larger debates rather than going through all the minutiae at this point. However, it is important to underline the principle—that matters coming back from Brussels that deal with devolved subjects should go to the devolved authorities. It is on that principle that I hope we shall concentrate as we move forward.

[Baroness Finlay of Llandaff (CB)]

My Lords, I too thank my noble and learned friend Lord Hope of Craighead for introducing this set of amendments, to which I have added my name, so concisely and well. I start the afternoon by placing on record my thanks to Ministers, especially the noble Lord, Lord Bourne of Aberystwyth, and the Secretary of State for Wales, who have been trying to keep us—certainly me—up to date in relation to Wales. I have had correspondence during the morning. I hope that the spirit of the debate today will recognise the importance of the devolved competences, and the need to respect them and find a way forwards. Like others, I will reserve my main remarks for later, in the larger debates.

European Union (Withdrawal) Bill

Debate between Lord Wigley and Baroness Finlay of Llandaff

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Wigley]

It may well be, but the European single market includes England at this point in time. In other words, they are not losing anything.

The main point I want to come back to is that made by the noble Lord, Lord Thomas of Gresford, with regard to resources. If we are being asked to trust giving a veto to Westminster and to the UK Government —that is essentially is what is coming through in a number of these clauses, whether or not that veto will be used in any way—that a power to impose policies in areas that have been devolved. That is clearly going to rankle with people who have become used to using those powers.

We have had experience of this. The noble Lord mentioned regional policy. The noble Baroness, Lady Randerson, will remember the problems we had in the early days of the National Assembly for Wales. There were problems in getting Westminster and Whitehall to pass over money that was for Wales and not holding it in the Treasury in London. That was what was happening, and it was not until Mr Barnier intervened with the then Chancellor, Gordon Brown, that £442 million was passed over to Wales. It was being held back by Whitehall and the Treasury. That is the background to the lack of trust we have. If we are to build up a future of trust, which is what I want to see between the nations of these islands, it has to be recognised that in some areas the leadership is coming from the devolved regimes. In other areas such as international affairs and defence, it is fair enough that the responsibility should lie here, and there will be grey areas. However, we have to make sure that we have a mechanism whereby we respect each other to sort out the grey areas, but attention has not been paid to that side of the argument. We should concentrate on that, and the amendment moved by the noble and learned Lord, Lord Hope, is a step in that direction.

If the Minister will consider the request made by the noble and learned Lord, Lord Hope, and respond to his proposals in this context as a way of showing good will towards reaching some understanding in the other contexts we shall come to, perhaps we will then start to make progress. May I ask the Minister to consider inviting those interested in these matters to meet to try to agree on a proposal from here that would go at least some way towards answering the problems being felt in Cardiff and Edinburgh? This is not insoluble, but it needs good will. However, good will is not always in evidence here.

[Baroness Finlay of Llandaff]

My Lords, I am a signatory to two of the amendments in the name of my noble and learned friend Lord Hope of Craighead. I should declare first that I am a member of the Bevan commission, which has been quoted, and I should also say that funding for Wales has indeed been a concern over time.

To return to these amendments and the core issue of trust, a wise saying comes to mind: trust arrives on foot and leaves on horseback. It seems as if we have had a few galloping horses through the Chamber this evening, but we have to move forwards. In the new world we will face after Brexit, which will not be easy—no one is now pretending that it will be—we need to be a United Kingdom and we need to pull together. Given the Minister’s remarks in response to the previous group of amendments—he indicated that he sincerely wants to bring the parties together to restore trust and find a resolution that helps us to move forward—I hope he will be able to work with others to achieve that, and that he will give serious consideration to these amendments. They have not been tabled to divide; rather they seek to establish a degree of reconciliation, restore trust and find a working way forward.