Devolution (Constitution Committee Reports) - Motion to Take Note

Part of the debate – in the House of Lords at 4:44 pm on 9th October 2017.

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Photo of Lord Wigley Lord Wigley Plaid Cymru 4:44 pm, 9th October 2017

My Lords, some people may wonder why there is a somewhat sparse presence of Peers with Welsh links participating in this debate. One factor is undoubtedly an event taking place in Cardiff, where there is an important international football match in which Wales faces the Republic of Ireland. The outcome will probably determine whether Wales, for the first time since 1958, participates in the World Cup finals. Incidentally, my condolences to my Scottish friends.

I hope that I will gain a few brownie points from colleagues by my presence here tonight. I bought tickets for my son, my grandsons and myself a year ago, and my heart is there, but noble Lords will perhaps recognise that the supreme importance of tonight’s subject dictates that I should participate in this debate concerning the implications for devolution and Brexit. I thank the two noble Lords who introduced the important reports before us today.

Let me first refer to other events which may have a tangential significance for the subject at hand—namely, the constitutional developments in Catalonia. Without trespassing into matters outside the reports which we are considering, I shall put two issues on record. First, my Plaid Cymru colleagues and I utterly abhor the heavy-handed tactics used by the Spanish Government, which have been condemned around the world, although only belatedly and half-heartedly by senior figures of the European Union. For those of us who have been strongly committed to the European ideal and devolution, this serves to remind us that the construct of Europe is still not a Europe of the people, but a Europe which is largely orchestrated to meet the needs of 19th-century imperial states and which can still tolerate actions reminiscent of 20th-century fascist dictators. For the first time in 50 years, my faith in the European dream has been badly shaken.

Secondly, noble Lords may have noticed pictures of David Cameron being paraded by Catalan voters in Barcelona. The experience in Spain allows a new, favourable view of the events surrounding Scotland’s independence referendum in 2014. Certainly there were aspects of that event which dismayed many of my friends in Scotland but virtually everyone, I believe, accepted that if there had been a 55% to 45% vote for independence, the UK Government, while greatly saddened by such an outcome, would have respected the democratic decision of Scotland and would have worked with Scotland’s Government to secure a sensible transition to a new form of partnership in these islands.

For those of us who are sometimes critical of aspects of the British state—justifiably in some matters, such as the iniquitous Barnett formula and the impact it has on Wales, which has been mentioned tonight—there has been a salutary lesson. There are positive aspects of British democracy which we should rightly recognise, and respect for people’s views, and their right to express them through referenda, is something we should cherish. There may come a day when, once again, Scotland, Northern Ireland or Wales vote on their constitutional future. They will do so knowing that, unlike the experience of the Catalans, their voice will be respected and the outcome of the referendum delivered.

That brings me to the Brexit issue. As I have already stated in this Chamber, while I bitterly regret the outcome of last year’s referendum on the UK’s membership of the European Union, I have to recognise that the result has to be respected, although I also recognise that Scotland and Northern Ireland voted to remain in the EU, and that is why the subject of tonight’s debate is additionally significant. These differences and the need to accept that the UK voted in total to leave underline the requirement to secure a form of Brexit which takes on board the diverse demands and expectations of the four nations of these islands and their elected Governments.

The referendum determined that the United Kingdom state will leave the EU, but it did not determine what would be the relationship of the UK as a whole or its constituent nations with the residual EU of 27 member states. The choice which the UK Government should be seriously addressing is whether there will be one overarching solution addressing the diverse needs and considerations of all four constituent nations of the UK, which would inevitably mean that either there has to be large-scale compromise or that the needs of some nations are subjugated to the needs of others. In other words, can we formulate a solution involving multiple geometry and a flexibility which allows a different interplay with Europe among the constituent nations of the UK? That is where consideration of the role and, indeed, the extent of devolution comes centre stage.

The report of the European Union Committee on Brexit and devolution has identified many of these problems. I congratulate the committee on its work; I was fortunate in being invited to give evidence and I thank it for that courtesy. In its conclusions, the report states, on page 4:

“No durable solution will be possible without the consent of all the nations of the UK”.

It recognises that common standards, which may be needed for the integrity of the UK single market,

“cannot be imposed top-down by the UK Government”.

It recognises that the UK Government will need to secure the consent of the devolved legislatures to the withdrawal Bill.

I also highlight the European Union Committee’s criticism of the working—or should I say the non-working—of the Joint Ministerial Committee (EU Negotiations). It notes that that committee, which should have a key co-ordination function as the Brexit negotiations move forward, had only ever met twice, and not since 8 February. I also noted the emphasis placed on this by the noble Lord, Lord Lang, when he introduced the debate and indeed by the noble and learned Lord, Lord Wallace of Tankerness, a moment ago. It is difficult to see how the Prime Minister can claim, as she did at the start of her tenure of office, that she would be “fully engaging” the devolved Administrations in the Brexit process. Indeed, in her Lancaster House speech, she saw the question of what powers should be passed to the devolved Administrations from Brussels as a matter solely for the UK Government to decide.

This brings us to the heart of the issue, concerning which Plaid Cymru has commissioned legal advice from Fflur Jones of the leading Cardiff solicitors Darwin Gray, to provide a legal analysis of the withdrawal Bill and its constitutional implications for Wales. Her paper explains why, in her opinion, the Bill is in breach of the current devolution settlement. Indeed, she goes as far as to state that, in the present form, the withdrawal Bill is,

“an existential threat to the current devolution settlement in Wales”.

The advice states that the Sewel convention, since it has been enshrined in statute,

“is a powerful political mechanism whereby all legislative changes that will affect the devolution settlement in Wales, or the introduction of any framework agreements within the UK, should be introduced by way of consultation and agreement between the UK Parliament and the National Assembly”.

Any other kind of imposition of changes would mean the UK Parliament considers it right to impose changes that affect the devolution settlements without the Assembly’s consent and which may well countermand the constitutional settlement which has been approved by the people of Wales in two devolution referendums.

This is not just a question of legal niceties, it is an issue which will impact on all aspects of Welsh life. It is true, regrettably, that Wales voted by a small margin to leave the EU. In doing so, many Brexit voters may have been motivated by the case for “taking back control”. Passing power from Brussels to London over matters such as agriculture, which are almost wholly devolved to Wales, does not in any way constitute bringing back control to Wales.

In fact, all three current devolution settlements are framed in the context of the UK’s pre-existing EU membership and reflect the supremacy of EU law. This is highlighted in the EU Committee report before us, where, in paragraph 36, it is stated,

“the European Union has been, in effect … the glue holding the United Kingdom together since 1997. The supremacy of EU law, and the interpretation of that law by the Court of Justice of the EU, have in many areas ensured consistency of legal and regulatory standards across the UK, including in devolved policy areas, such as environment, agriculture and fisheries. In practice, the UK internal market has been upheld by the rules of the EU internal market”.

How is this now to be replicated within an UK-only context? The European framework is not the plaything of one member state, nor even of the EU Commission itself. The European Court of Justice is an independent judicial body. If after Brexit we are to have a set of rules for the UK single market, laid down by just one of the four parliaments of these islands, it is, as the committee itself asserts, a development which,

“presents a risk that the complex overlapping competences within the UK could become increasingly unstable”.

In the concluding words of this report, the UK Government must work,

“in a spirit of partnership and cooperation with the devolved legislatures and governments”,

as was emphasised earlier by the noble Lord, Lord Jay of Ewelme. I wait with interest to hear how the Government intend to discharge this most fundamental of duties.