My Lords, it is always a pleasure to follow the noble Lord, Lord Norton, whose views on the law are treated with the utmost respect in this House. I will follow him in one respect: on the legal consequences of Clause 11, which is important to the devolved Governments in Scotland and Wales.
I will confine my remarks to that particular clause, which I believe is sufficiently contentious for me to make a fundamental objection to it on Second Reading. The Scottish Secretary made a commitment on behalf of the Government that it would be amended by the Report stage in the Commons. The Government have failed to do so. It would have been of enormous value to this House if that promise had been kept. Is it that Whitehall cannot get round to facing the fact that more than 20 years after the event, there are other legally constituted Governments in other parts of the United Kingdom in addition to Westminster?
“We still have to get the Cabinet Secretary to put pressure on departmental permanent secretaries to take devolution seriously”.
I want to say in passing that with devolution, surprisingly, the involvement of Wales in decision-making in Brussels seems to have been less, not more. When I was Welsh Secretary, I frequently attended the Agricultural Council of Ministers when Welsh agriculture was discussed. On one occasion, at the Prime Minister’s request, I chaired the Employment and Social Affairs Committee during our presidency. The big question is whether Clause 11 undermines the principle and practice of devolution now accepted after years of battling.
The Government have been accused of a Westminster power grab in the Bill, at the expense of the devolved Administrations. Such colourful language may not be justified, but the question remains of how the present proposals were put before Parliament without meaningful discussions first taking place with both devolved Administrations. The explanation may lie with the intermittent and sporadic meetings of the Joint Ministerial Committee, where proposals could have been hammered out and agreed. If I may spell out what I understand to be the legal position, as it stands, there would be a new restriction on the legislative and executive competence of the devolved institutions—a new set of shackles whereby they cannot change retained EU law. So, instead of the devolution settlement, where there is equality between the devolved institutions and the UK Government in terms of freedom to set policy in devolved policy areas within the EU framework, there would exist a situation where the UK Government can unilaterally lock down the devolved institutions’ opportunities to shape such policies.
I believe that the Bill, as it stands, fundamentally redraws the architecture of devolution—the architecture referred to by the noble and learned Lord, Lord Wallace of Tankerness. In my view, and that of the Welsh Government, the principle of effective equality between the UK Government and the devolved institutions in areas that are clearly devolved needs to be retained in the post-Brexit world.
Astonishingly, the Bill would give Ministers of the Crown powers to make rectifications of retained law in areas of devolved competence without consultation with the devolved institutions to reach over into areas of devolved competence. The granting of powers to a Westminster Minister to change an Act of a devolved institution without any input from those legislatures is totally unacceptable.
I now turn to the issue of legislative consent, which of course is a political convention only, as the Miller case commented. The Government have come exceedingly reluctantly to the need for legislative consent. It has had to be dragged out of them. On
“There is a possibility that a legislative consent motion may be required by the Scottish Parliament”.—[Official Report, Commons, 21/6/17; col. 62.]
The Leader of the Commons the following day kicked it into touch. Confirmation had to be dragged out of the Government and I am grateful to the noble Lord, Lord Bourne, who said that we would be seeking consent from the three devolved bodies. The issue is of such serious constitutional importance that the two First Ministers of Scotland and Wales have sent a joint letter to the Government stating that neither the Scottish Parliament nor the Welsh Assembly would give legislative consent that the Government acknowledge is needed to the Bill in its present form. That letter, which the two Governments have sent, is very important. Hence, there is an urgency for getting back to the table for meaningful discussions. As I have said on previous occasions, once devolution is given, it cannot be taken back.