My Lords, Amendment 91 stands in my name and those of the noble Lord, Lord Steel of Aikwood, and the noble and learned Lord, Lord Hope Craighead. It would require the consent of each of the devolved parliaments to be obtained before Clause 11 comes into effect.
Amendments 107 and 108, standing in my name only, provide that none of this Act, except for this clause, would come into force until the Prime Minister was satisfied that resolutions signifying consent have been passed by the Scottish Parliament, the National Assembly for Wales and, unless direct rule is in place, the Northern Ireland Assembly. Both amendments deal in different ways with the element of consent relating to the Act. Both would enshrine the Sewel convention in law. The Sewel convention dictates that the UK Government shall not normally legislate in areas of devolved competence without consent. Consent is sought through a legislative consent Motion. Very rarely do the devolved Parliaments withhold consent. It has happened I believe—I can be corrected if I am wrong on this—only once in Scotland and once in Northern Ireland since 1999. Ironically, it has been used seven times by the National Assembly for Wales. I am not quite sure what that tells us.
The point I am underlining is that withholding legislative consent is not used lightly. It is treated with caution and respect. It is the only constitutional tool available to the devolved Parliaments to challenge the balance of power across the British Isles. However, we know from the Miller case on the Article 50 Bill that the Sewel convention is merely that: it is a convention. The UK Government are wholly within their rights to override any decision made by the devolved parliaments in relation to this Bill or any other Bill deemed within devolved competence.
I have spoken at length on previous occasions about the need for the Sewel convention to be enshrined in law in relation to this Bill. This is the most wide-ranging constitutional Bill since the European Communities Act 1972. I have spoken at length about the need for the devolved parliaments formally to consent to Clause 11—I shall not repeat those arguments. I will, however, point to the most recent developments whereby the Welsh Labour Government have implied consent to the Bill, having accepted the amendment to Clause 11 laid by the Government, although time will tell whether that will carry through the Assembly. Those same amendments are insufficient for the Scottish Government and every opposition party in Scotland except the Scottish Conservative Party. The main sticking point for these parties is consent.
The UK Government have tried to devise a new meaning for consent in relation to the functions of Clause 11. They seem quite deliberately to be confusing “consent” with a consent decision. There is a difference, but I think that everybody who reads about this matter in the generality may not be aware of it. The UK Government can impose restrictions on the National Assembly for Wales’s competence as long as a consent decision has been made—not that consent has been obtained. The substance or result of that consent decision is immaterial. The UK Government can steam ahead even if a consent decision is not made. This, quite frankly, is a farce. I believe that there will be a lot of public discussion about that as matters move forward.
We have reached a point in history whereby the current constitutional arrangements, the political conventions underpinning the UK’s intragovernmental relations, are under pressure and in danger of unravelling. In the way that the UK Government are handling consent, they are making it a concept whose understanding among the public is in some doubt and it is causing severe mistrust across the four nations. I urge the UK Government to act, to listen to the Scottish Government and to come to an agreement on consent and a new UK constitution.
Amendment 91 should be grasped by the House today and the Government should accept it to resolve the position in Scotland and to get out of the unholy mess in which they have landed in Wales. I beg to move.