My Lords, as many noble Lords have already indicated, at one level this is indeed a technical Bill. If we are to leave the European Union, there is a legal and practical necessity to have continuity and certainty. However, as the noble Lord, Lord Mandelson, has just articulated so clearly and forcefully, it is impossible to ignore the context in which this legislation comes before us. Given its technical necessity, it is only fair that we ask whether it actually delivers in providing continuity and legal certainty. We have already heard the view of your Lordships’ Constitution Committee that as it stands it is constitutionally acceptable.
Perhaps one of the clearest clauses in the Bill is Clause 1:
“The European Communities Act 1972 is repealed on exit day”.
That got me thinking. The European Communities Act 1972, a much shorter piece of legislation than this, has in fact stood the test of time. Yes, there has been litigation, but over 45 years it has performed its function remarkably well, notwithstanding the changes that have taken place since then. I dare anyone to suggest that the Bill that we are currently debating is anywhere near as robust and fit for purpose for such a major constitutional change. Its shortcomings will be well-rehearsed in this debate and scrutinised during its passage through your Lordships’ House, but I want to make a few remarks about it in relation to the devolution settlement. Here the Bill not only fails to deliver certainty; it undermines the certainty of that settlement, as the noble and learned Lord, Lord Hope of Craighead, forensically demonstrated in his contribution.
I believe the Bill turns the architecture of devolution on its head, more through a lack of proper thought and sensitivity than through malign intent. It also shows little respect for the devolved Administrations or for parity of esteem, which now seems to be out of the window. The structure of devolution in Scotland, as set out in the Scotland Act 1998, is that everything is devolved unless expressly reserved. That situation has stood the test of time. However, here we have proposals created by the Bill, especially Clause 11, where, in areas that otherwise fall entirely within devolved competence, extensive powers to amend retained European Union law fall to United Kingdom Ministers, rather than to the devolved Administrations.
I turn to two pieces of evidence given to your Lordships’ Constitution Committee. First, Professor Richard Rawlings of University College London said:
“At one and the same time, Westminster and Whitehall are freed up to shape a post-Brexit world in crucial respects, and the devolved institutions are locked down and required to wait for partial release”.
Secondly, Professor Tom Mullen of Glasgow University argues that Clause 11 alters,
“the framework of the devolution settlements by replacing a cross-cutting constraint on devolved competence with what is effectively a new set of reservations. It would also overlay the current reserved powers model of devolution with a conferred powers model in relation to retained EU law. This is not a mere technicality; rather the reserved powers model is a central element of the constitutional strength of the current devolution arrangements”.
These are quite bold statements from constitutional experts that go to the heart of what is wrong with the Bill as currently constituted.
While we will obviously deal with these matters regarding the structure of Clause 11, there are a number of other points that we will want to look at as your Lordships’ House considers the Bill in Committee. There is the apparent failure to recognise the statutory delay between a Bill passing in the Scottish Parliament and receiving Royal Assent, which is relevant for references to enactments in the Bill. Why is it that Scottish Ministers have some powers to deal with deficiencies in retained European Union law, but not if it is a deficiency in direct EU legislation, which is left solely for UK Ministers? No explanation has been given as to why that difference is made. Why are sweeping powers for UK Ministers found in Clauses 7 and 8 subject to a sunset provision, but apparently not the powers in Clauses 10 and 11, and in Schedule 2, which relate to powers relating to the devolved Administrations? Why is there a sunset clause for one set of powers and not for those that deal with the devolved Administrations? Absence of sufficient requirements for, or consultation with or consent from, Scottish and Welsh Ministers in devolved areas adds up to a disregard for the idea of parity of esteem.
The Government have accepted, and the noble Baroness the Leader of the House has said again today, that Clause 11 is deficient, and they have promised amendments. It is important that we know, as the Bill progresses, when we are likely to see these amendments. A legislative consent Motion is not a legal requirement, but we should all know that it is very much a political requirement if devolution and the fabric of our United Kingdom are to remain.
I believe we could have an opportunity to have a silver lining to the dark cloud of Brexit and do some things better in our arrangements with the devolved Administrations. The Welsh Assembly Government have floated the idea of joint ministerial committees on a statutory footing. We need ways to find better dispute resolution mechanisms than we have at the moment under the memorandums of understanding.
“A set of effective relationships based on mutual trust and effective communication and consultation are essential for the internal governance of the UK, following its departure from the European Union”.
I fear that the Bill as it stands does little to foster mutual trust. It suggests that there has been ineffectual communication and its drafting is conspicuously lacking in provision for consultation. In our deliberations and scrutiny, I believe we can start to make amends by making amendments.