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

Part of the debate – in the House of Lords at 10:00 pm on 2 May 2018.

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Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 10:00, 2 May 2018

My Lords, it is always a pleasure to follow the noble Baroness, Lady Finlay, and I agree with everything that she said. In the previous debate, I quoted paragraph 7.a. of the Memorandum on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks. I will repeat it because it is worth repeating. It says:

“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 the JMC on EU Negotiations. This amendment, tabled by the noble Lord, Lord Wigley, allows us to discuss the very important issue of how those discussions are to take place, what decisions are to be taken and how they are to be taken over the formation of the UK framework agreements.

The memorandum of understanding of October 2013, between the UK Government on the one hand and the Scottish Ministers, the Welsh Ministers and the Northern Ireland Executive—the devolved Administrations —on the other is not legally binding and does not create legal obligations between the parties. In particular, it explicitly does not create any rights for the devolved Administrations to be consulted on anything. However, supplementary agreement A to that MoU provided for a Joint Ministerial Committee whose purpose was stated to be to ensure uniform arrangements for relations between the UK Government and the devolved Administrations. It considers devolved matters only where the UK Government and the devolved Administrations so agree. Paragraph Al.lO of the MoU of 2013 says that it is a consultative body rather than an executive body, and will reach agreements rather than decisions. It may not bind any of the participating Administrations, who are free to determine their own policies while taking account of JMC discussions.

That might have been all very well in 2013, when we were within the architecture of the EU, but even so it failed. It met irregularly, it sat in private, and it published vague communiques. It had no permanent independent secretariat, so it decided to form an offshoot, the JMC (EN) with terms of reference—it is interesting to look at these—to discuss each Government’s requirements for the future relationship with the EU and to seek to agree a UK approach to, and objectives for, the Article 50 negotiations, to provide oversight of the negotiations to ensure that outcomes agreed by all four Administrations were secured and to discuss issues stemming from the negotiation process. It spectacularly failed to meet from February to October of last year at the very most critical time in the Brexit timetable.

The frustrations about its operations were expressed by Mark Drakeford and Michael Russell, of whom we have heard a lot today, in a joint letter to David Davis on 15 June last year:

“We want to use JMC (EN) as a forum in which we can have meaningful discussions of key issues, aimed at reaching agreement rather than an opportunity to rehearse well-established public positions. Unfortunately, this was not our experience of the way the Committee operated prior to the Election.”

That referred to the general election last May.

The JMC stumbled back into existence in October, and on 13 December, Mark Drakeford made a written statement to the Welsh Assembly on the discussions of the JMC (EN) of the previous day:

“Phase 2 of negotiations will determine the future relationship of the UK Government with the EU. The powers devolved to the Welsh Government and the National Assembly for Wales are deeply embedded in these discussions and we are absolutely clear that the devolved administrations must be fully engaged in the preparation of UK negotiating positions and the negotiations themselves. This is vital both for the proper and respectful representation of devolved issues but also so that the EU can be assured that the UK negotiating team is fully representative of the interest of the whole UK”.

Of course, that is what was said by him to the JMC, but absolutely nothing happened; nothing has happened to include the devolved Administrations in the preparation of the negotiations that are currently going ahead.

There is, therefore, clearly a need to put the Joint Ministerial Committee on a statutory basis. It would require the four Administrations to meet regularly. It would be the forum for the discussions referred to in the memorandum of agreement recently made. It would lead to common UK-wide binding frameworks. It should have a formal structure and an independent secretariat but, above all, it should have the power to take and implement decisions, rather than simply being a talking shop, as the JMC has been until now.

The noble Lord, Lord Wigley, set out his views of the membership of the JMC and suggests a process of qualified majority voting to avoid giving any one of the Administrations a veto over the others. The Welsh Government had suggested that the UK representative and one of the devolved Administration representatives would be sufficient. The noble Lord thinks three out of four would be the proper way of going about it. He also argues that the approval of the JMC should be given before any UK framework could take effect. These are all vital issues and it requires a much fuller debate than we can possibly have at this time of the evening and at this time of this Bill.

Supplementary agreement A3 to the current MoU of 2013 provides an elaborate set of dispute avoidance and resolution procedures. In 2013, the Government thought that they had better find a way of solving any problems that may arise, but then they went on to say:

“Like the MoU itself this agreement is a statement of intent, creating no legal obligations between the parties, and binding in honour only”.

There has to be a dispute resolution mechanism in a statutory JMC. Whatever mechanism is chosen, it has to bind the UK Government and the devolved Administrations. We have a lot of work to do in this area.