European Union (Withdrawal) Bill - Report (5th Day)

Part of the debate – in the House of Lords at 8:00 pm on 2nd May 2018.

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Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 8:00 pm, 2nd May 2018

My Lords, I also welcome the fact that the Government have moved so far from their original stance and that the Welsh Government have been able to agree to their proposals. It is a tribute to the force of the argument that united all parties in the Welsh Assembly—as pointed out by the noble Lord, Lord Wigley—against the Government’s initial proposals, as well as to the negotiating skills of Mark Drakeford and his team.

As said by the noble and learned Lord, Lord Keen of Elie, the purpose of these provisions is to freeze the exercise of powers transferred from Brussels to Cardiff in 24 specific areas of policy, pending the negotiation and agreement of UK frameworks in those areas. There is a gap: what happens to the powers that are repatriated from Brussels between exit day and the making of these regulations? Where do they lie and are they exercisable by anybody? The noble and learned Lord asked for further guidance. I have looked at the amendment; it is not so much insensitive as tortuous. The machinery by which the restriction is implemented on the Welsh Assembly is contained in proposed new subsection (3), which introduces via proposed new subsection (3A) a new Section—109A—into the Government of Wales Act 2006. There are a number of steps to be taken to implement a restriction relating to retained EU law. It is important that both the principle and the mechanism be clear and understandable to the public and lawyers. I must confess, I found it difficult to understand; I am grateful for the help of the Minister, Chloe Smith MP, and her excellent legal adviser in guiding me through these provisions.

Step one of the process is discussions between the Government and the devolved Administrations. This is not in the new section at all. It is set out in paragraph 7a of the memorandum of understanding:

“Building on the ‘Deep Dive’ process, which has been a collaborative effort between the governments, discussions will take place between the governments to seek to agree the scope and content of regulations. This process will continue to report into JMC(EN)”— that is, EU negotiations. Discussions will take place; that is the first step. The forum for those discussions and the means by which binding decisions are made is a very important topic, raised by Amendment 92A, tabled by the noble Lord, Lord Wigley. I reserve further comments until then.

Step two is set out in subsection (6) of the proposed new Section 109A, which requires a Minister of the Crown to,

“provide a copy of the draft”,

of the proposed statutory instrument,

“to the Welsh Ministers, and … inform the Presiding Officer that a copy has been so provided”.

The machinery for making subordinate legislation in Wales is in the hands of the Secretary of State and is not made by an Order in Council. I heard the remarks of the noble and learned Lord, Lord Hope, in relation to Scotland; I believe that it is appropriate for the Minister to make the regulations.

Step three of the process is in subsection (4) of the proposed new Section 109A, which requires the Assembly to make a “consent decision” on the draft. That is a misnomer, because the decision of the Assembly may, under proposed new subsection (5), be not to consent or to refuse to consent. A “consent decision” carries with it the implication that the decision is to not consent or refuse to consent. On the face of the clause as drafted, the making of the so-called “consent decision” is just a box to be ticked that permits the Minister to lay the regulation before the UK Parliament for its approval.

What about the Sewel convention? Much is made in paragraph 6 of the intergovernmental agreement, made with the Welsh Government, on the application of the Sewel convention:

“The implementation of this agreement will result in the UK Parliament not normally being asked to approve clause 11 regulations without the consent of the devolved legislatures”.

A similar reference to Sewel appears in paragraph 8 of the accompanying memorandum of understanding. Would it not be sensible to put in this clause something to this effect: “The UK Parliament will not normally be asked to approve a draft of regulations made under this section without a consent decision under subsection 5(a)”? That would at least give some meaning to what is meant by a “consent decision”. On the other hand, the Government may tell me that they regard themselves bound in making these regulations by the express commitment to the Sewel principle, which we inserted last year as Section 107(6) in the Government of Wales Act 2006:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly”.

I would like an express commitment from the Dispatch Box on this point, either to amend the proposed new Section 109A at Third Reading to put the Sewel convention in this clause, or to confirm that Section 107 (6)—last year’s insertion into the 2006 Act—will apply.

Having gone through steps one, two and three, there is a step four in making the regulations under proposed new subsection (3)—we go backwards in the drafting. That is confusing. Would it not be helpful to put these steps for making the regulations in their correct order?

The termination of the regulations by sunset provisions is in proposed new subsection (10)—we have to dot around a little bit more. The period specified in the amendment is five years not from exit day, but,

“beginning with the time at which they came into force”.

Amendment 89DAJ, tabled by my noble and learned friend Lord Wallace of Tankerness, which I support, seeks to restrict that period from five years to three. Five years is too long. It will certainly extend across at least one electoral cycle of the Welsh Assembly. That means that a Welsh Government might have no powers to act in very important areas of policy at a crucial time of change and development. The creation of an appropriate UK-wide framework agreed between the devolved Administrations surely cannot possibly take as long as five years.

Proposed new subsection (11) is unusually opaque. It says:

“Subsections (4) to (9) do not apply in relation to regulations which only relate to a revocation of a specification”.

I do not know what that means. What is “a specification”? Is this subsection designed to permit the revocation of the regulations within the five-year period before the sunset clause comes into operation, if and when a UK framework agreement has been made? If so, should not that mechanism be made clear? Will there be regulations to revoke the regulations—if so, by what procedure—or will the UK Minister be able to revoke those regulations at the stroke of a pen? This subsection needs a meaning attached to it.

I have gone rather technically into the Welsh legislation. I will very briefly turn to Scottish issues and don my MacThomas kilt, which I have not worn since last year’s Lonach games in Aberdeenshire. I hope that the Scottish Government see fit to accept the solution agreed by the Welsh Government, but what would be the position if the Scottish Government pass a legislative consent Motion to the Bill but with a caveat regarding these amendments to Clause 11? That is what we were told they were likely to do at a meeting we had with the Minister a few days ago. If that were to happen, should Clause 11 be removed from the Bill altogether, as I have argued at Second Reading and since, and its provisions brought back in new primary legislation after further discussion and, we hope, agreement? What will the Government do with what cannot be a real legislative consent Motion for the Bill if that caveat is put in place?

I do not share in the opprobrium that has been heaped upon the Scottish National Party from time to time during the debates. Scotland is a proud country with a population larger than 10 of the current 28 states that form the European Union. The SNP seeks to take back control. It is prepared to take the risk of economic collapse to gain sovereignty—whatever that means, as someone once said—and it pursues a mirage of prosperity by leaving not the European Union, but the union of Great Britain and Northern Ireland. I would have thought that there are people in this House who might understand that. I understand its position, but I do not agree with it.