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I heartily endorse everything that the noble Baroness, Lady Kennedy, said about the reciprocity of the law across Europe, particularly in the field of crime and the pursuit of criminals, but I wish to focus on the devolution provisions in the Bill.
Clause 11 is agreed on all sides to be defective and in need of amendment. The Government promised to bring forward an amendment on Report in the Commons but failed. I think we all assumed that negotiations were going on backstage with the devolved Administrations, but that was not the case. We were told in a meeting on Monday with Mark Drakeford of the Welsh Government and Michael Russell of the Scottish Government, in the presence of the relevant government Ministers, that they had not been consulted on the proposed amendment to Clause 11 at all. We do not want to be presented at some stage in Committee with a government amendment that has been drafted without even consultation with, let alone the agreement of, Cardiff and Edinburgh. What would we do with it? The whole point of the exception taken to Clause 11 is the lack of consultation and the evident incomprehension of the principles of devolution by Ministers. Both Cardiff and Edinburgh, with the full support of every elected member of every political party, rightly conclude that, as currently drafted, Clause 11 and Schedules 2 and 3 put all the cards in the hands of Westminster.
The proposal in the Bill is that the UK Government will dictate, with no requirement for consultation or agreement, how the powers repatriated under retained EU law should or should not be parcelled out to Cardiff, Edinburgh and Belfast, even in areas of policy where the devolved Administrations have full and exclusive competence. Not only that, but UK Ministers are given power to alter not merely the Scotland Act and the Government of Wales Act but the existing legislation passed by the Scottish Parliament and the Welsh Assembly—and by ministerial decree, through statutory instruments and Orders in Council. Welsh and Scottish Ministers have no such powers.
The noble and learned Lord, Lord Hope, described the architecture of the Bill as misguided and ill-informed, and my noble friend Lord Newby described the Government’s approach as a combination of arrogance and incompetence. Nowhere are these descriptions truer than in this mishmash of the devolution settlements.
The powers repatriated from Brussels will include funding and policy-making in many fields. For example, take the European Regional Development Fund and the European Social Fund. Brussels has parcelled these out across 28 member states on the basis of need. In the 2014-20 European budget; Wales benefits by over £2 billion. With matched funding; a total investment of £3 billion is available to the Welsh Government to support people into work and training, on youth employment, research and innovation, business competitiveness, renewable energy and energy efficiency, and connectivity and urban development. All these are fully devolved competences for the Welsh Government.
But the much-criticised and hoary old Barnett formula, which is the current Westminster vehicle for funding Cardiff, Edinburgh and Belfast from UK Government sources, is divided not on the basis of need but on a simple population head count. Under the provisions of the Bill, there would be nothing to prevent Ministers, by statutory instrument and without the consent of the devolved Administrations, departing from the Brussels basis of need to the Barnett model of population count. English politics and English interests are bound to be engaged in funding decisions. After all, in the policy areas devolved to the devolved Administrations, Westminster and its Ministers act as an English Parliament. English interests are going to intrude.
All are agreed that there will be a need for new UK frameworks, but the Bill hands all the power to UK government Ministers. They will be able to dictate to the suppliant and powerless devolved Administrations whatever frameworks they think “appropriate” in whatever fields they choose.
The Bill cannot be chuckled through this House as David Davies is trying to chuckle his way through European negotiations. Someone in this Government has to take a grip, to make decisions and determine both a destination and a course to get there.
Step 1: the devolution proposals in the Bill have already failed the test and there is no time while the Bill is in this House to go through with it. They should be extracted from the Bill forthwith. Clause 11, Schedules 2 and 3 and any other related provisions should be taken out of the Bill.
Step 2: the Government should demand from their DUP supporters that in return for the £1 billion bung they have been given, they should make the compromises necessary to revive the Northern Ireland Assembly and Executive. If Paisley could sit down with McGuinness, the current DUP leadership owes it to their countrymen to do the same.
Step 3: the Government should negotiate with the devolved Administrations on the basis of parity of esteem and respect for the devolution principles. They should agree the areas for the new frameworks that will be required.
Step 4: they should bring forward a new Bill on an agreed basis, with legislative consent orders ready to go. These current provisions are not fit for purpose.