European Union (Withdrawal) Bill

Debate between Lord Wigley and Lord Hope of Craighead

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

[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.

European Union (Withdrawal) Bill

Debate between Lord Wigley and Lord Hope of Craighead

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I am very much in favour of the idea that lies behind the amendment of the noble Lord, Lord Trees, and Amendment 41A, which the noble Baroness has just addressed us to. However, I have a technical problem with the amendment. In making this point, I wish to make it absolutely clear that I am not in any way criticising subsection (1) of the proposed new clause in Amendment 40 or the idea that lies behind it. My point is directed at proposed new subsections (4), (5) and (6), which, as I think the noble Lord hinted at, are designed to exclude judicial review as a means of holding Ministers to account. As the amendment is worded, it is for the Parliament,

“exclusively in the exercise of absolute discretion, to hold”,

Ministers to account. I think that the word “exclusively” is there to make it clear that there is to be no other remedy except to raise the matter before Parliament.

I recall arguments about 15 or 20 years ago when there was a real risk that the Government of the day would put provisions into Bills excluding the possibility of judicial review. There were occasions when the judges made their position clear and they were very unpopular as a result. There was a real risk of the Government taking that measure, and I think that that risk was diminished through various representations made through the Lord Chancellor and others. Eventually it was established as a convention that the Government would not seek to exclude judicial review. They might limit it in some respects, as they have done, by the length of time that can elapse before a petition is brought, and there have been other ways in which the opportunity for judicial review has been narrowed, but they have never excluded judicial review, because it is one of the essential protections of individuals against the state.

We are talking here not about people but about animals, and I can quite see that there is room for some difference, but I respectfully suggest that it would set an unfortunate precedent for us to pass a measure that excluded judicial review. If that were to be picked up later by a Government in areas where individual rights were involved, I think that we would greatly regret it.

I am sorry to raise that technical objection. I wish that we were not on Report but in Committee, where this matter could be sorted out. However, I feel it necessary to make that point clear at this stage.

[Lord Wigley (PC)]

My Lords, I intervene briefly in support of the amendment moved by the noble Lord on the question of animal sentience. I should declare an interest. I am an honorary associate of the BVA and I want to underline the representations that it has made—I think that a number of noble Lords will have received them at various times. It feels very strongly that steps need to be taken prior to Brexit to include provisions for animal sentience in UK law. When representations of this sort come from such a respected body as the BVA, I think that we are duty-bound to take good notice of it, and I hope that noble Lords on all sides of the House will act accordingly tonight.

European Union (Withdrawal) Bill

Debate between Lord Wigley and Lord Hope of Craighead

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

[Lord Hope of Craighead]

If the noble Lord will forgive me, I was suggesting that we deal with that issue when we look at Clause 11 and the government amendments. The noble Lord raises a very important point, but it does not really relate to my amendments. I think it is much more fundamental and we will need to discuss it in light of the discussion of the reform of Clause 11. I hope I have answered the noble Lord’s question. There is a basic difference between the competence arrangements relating to EU law, which does not apply once we leave the Union, and retained EU law, either domestic or direct, as it comes in under Clauses 2 or 3.

Having digressed somewhat in my reply, I again thank the Minister for her helpful reply. I will be happy to withdraw the amendment in due course; however, there are others in the group that others may wish to speak to.

[Lord Wigley]

My Lords, I will strike a different note as I put forward what are perhaps the substantive arguments—as we see them—in relation to these issues.

Amendment 304 has for some reason been grouped with these amendments, which does not make an awful lot of sense. It stands in my name and that of my noble friend Lord Hain, and is based on one of the key amendments drafted by the Welsh and Scottish Governments ahead of the Bill’s passage through the other place. That amendment is also covered by part of Amendment 303, which surprisingly will not arise until very late tonight. None the less, Amendment 304 goes to the heart of the widespread criticism of Clause 11 as it currently stands—I am aware that amendments may come forward later—and lifts the restriction it places on the devolved parliaments in relation to EU retained law.

My fear—and that of all parties in the National Assembly—is that giving UK Ministers control in the EU withdrawal Bill over areas of retained EU law relating to matters which fall under devolved competences will, in effect, tend to normalise direct rule from Westminster in these areas. Given the powers under this and other recent legislation which enable Ministers at Westminster to amend devolved legislation by order, this will, in effect, undermine Welsh sovereignty in areas which are devolved to Wales and blur the responsibility of the National Assembly. Furthermore, there is a fear that this will set a precedent for this and future UK Governments, who may well be tempted when a devolved Government act in a way with which they disagree, to find a justification to intervene. This would be particularly galling if it were on issues where Welsh interests were seen to be in conflict with England’s perceived interests—perhaps validly so. The Prime Minister has, of course, pledged never again to “devolve and forget”. That can be interpreted in more than one way, and in this context it has generated quite a few ripples of unease.

In order to persuade the devolved parliaments to agree to legislative consent orders—which are currently not forthcoming from either the Scottish Parliament or Welsh Assembly—the UK Government have tabled a set of amendments to Clause 11 which we will consider later. The Government’s proposals would provide a power to make regulations in certain devolved areas currently subject to EU law, and would prevent the devolved legislatures from taking action in the areas covered by those regulations. Whether noble Lords in this Chamber like it or not, this is regarded by members of all parties in the National Assembly as reflecting a growing approach by the UK Government—namely, in areas where devolution may be a nuisance or a hindrance to the UK Government’s agenda—to roll back devolution, or at the very least to attenuate it, and to centralise certain powers in London. The Welsh and Scottish Governments share this fear. That is why, in the Senedd—thanks largely to the lead of my inspirational colleague Steffan Lewis AM—the Welsh Government have introduced a continuity Bill to safeguard Welsh devolution. That Bill is currently progressing through its legislative steps with all-party support. Assembly Members are taking such a step not as a threat but as a safeguard: they still hope that there may be a meeting of minds between them and Westminster, and I understand they have even drafted a sunset clause which could be triggered if such an agreement were achieved. They look to this Chamber today to take a stand in facilitating that meeting of minds and to ensure that the centralist direction to which they feel they are being subject is brought to an end.

Alongside the amendments which the UK Government have tabled, they have published a list of 158 areas of intersection of devolved competences with EU law, noting that they envisage regulations temporarily restricting devolved legislatures’ competence—in advance of more substantive arrangements in primary legislation —in up to 24 of those areas. Taking such steps is, rightly or wrongly, widely perceived as a power grab. These 24 areas, all of which apply to both Wales and Scotland, cover a significant part of devolved responsibilities, including agricultural support, fisheries management, environmental policy, public procurement and food standards. These areas are vital for industries and businesses in Wales, and for the Welsh economy. The amendments would allow the UK Government to make regulations in any or all of these devolved areas.

--- Later in debate ---

[Lord Hope of Craighead]

The Chief Whip did not discuss the matter with me but I support the position he is taking because it is very obvious that, once we get into Clause 11, we will be discussing it for some considerable time. I would have thought that the sensible thing would be to break now and to come back and deal with it in one go, rather than break up the debate, which we will be forced to do otherwise.

[Lord Wigley]

My Lords, as a party of one, I do not expect to be consulted on these matters—I realise that there are limitations. However, on Monday night we sat here until after 1 am, and I spoke after 1 am. Earlier we had a break of 20 minutes for food. Why on earth, when there is time available now, can we not carry on with the Bill, certainly if the implications are that we might go on until late again tonight?