Amendment 8

Trade Bill - Third Reading – in the House of Lords at 4:45 pm on 20 March 2019.

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Moved by Lord Stevenson of Balmacara

8: After Clause 13, insert the following new Clause—“Convention about Ministers of the Crown legislating on devolved matters(1) Regulations made under section 1(1) by a Minister of the Crown may not normally make provision which would be within the devolved competence of a devolved authority unless—(a) so far as they contain provision which would be within the devolved competence of the Scottish Ministers (within the meaning given in paragraph 7 of Schedule 2), the Scottish Ministers consent, or(b) so far as they contain provision which would be within the devolved competence of the Welsh Ministers (within the meaning given in paragraph 8 of Schedule 2), the Welsh Ministers consent, or(c) so far as they contain provision which would be within the devolved competence of a Northern Ireland department (within the meaning given in paragraph 9 of Schedule 2), the Northern Ireland department has given consent.(2) Regulations made under section 2(1) by a Minister of the Crown may not normally make provision which would be within the devolved competence of a devolved authority unless— (a) so far as they contain provision which would be within the devolved competence of the Scottish Ministers (within the meaning given in paragraph 7 of Schedule 2), the Scottish Ministers consent, or(b) so far as they contain provision which would be within the devolved competence of the Welsh Ministers (within the meaning given in paragraph 8 of Schedule 2), the Welsh Ministers consent, or(c) so far as they contain provision which would be within the devolved competence of a Northern Ireland department (within the meaning given in paragraph 9 of Schedule 2), the Northern Ireland department has given consent.”

Photo of Lord Rogan Lord Rogan Deputy Chairman of Committees, Deputy Speaker (Lords)

After Clause 13, Amendment 8, the noble Lord, Lord Stevenson of Bara—

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords)

It is Balmacara. It means “the town from which the Macraes come”—Macrae being my mother’s maiden name. I thought the House might enjoy that little moment of clarity.

Amendment 8 in my name and that of the noble Lord, Lord Purvis of Tweed, comes from a concern that the regulatory power-making in the Bill as originally drafted would cause difficulties for the relationships that should exist between the UK Parliament and the devolved Administrations. There have been two developments since the original amendment went down. First, the continuing debate on a series of matters involving trade issues to be brought back to the devolved Administrations has yet to be resolved in discussions between the UK Ministers and devolved Administration Ministers. Also, the Healthcare (International Arrangements) Bill, which recently went through your Lordships’ House, was subject to an amendment that seemed to suggest that there was a requirement in most of the legislation coming forward, particularly this Bill, to reflect how, and on what basis, Ministers of the UK Parliament could engage with the devolved Administrations over how regulations should be framed and consulted on, and under what conditions consent would be given.

Since this seemed to involve a number of different issues, not just those related to trade, the noble Viscount, Lord Younger, kindly held a meeting at which we were able to discuss this in more detail, attended by myself, the noble Lord, Lord Purvis, and the noble and learned Lord, Lord Hope. I think we got a long way on that issue in trying to understand how these various matters came together. I think the broad position that affects all these issues is set out in the Scotland Act 2016 and in comparable primary legislation affecting Wales and Northern Ireland.

In respect of the possibility of having a convention that would echo that relating to regulations that will need to be made under the powers given under primary legislation, I think the noble Lord has something to say that will be helpful in resolving whether Amendment 8 is required. I beg to move.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade)

My Lords, I was interested to hear the clarification of the title of the noble Lord, Lord Stevenson. The House will not be interested, but my title of “Tweed” is because of the river, not because I have a penchant for tweed suits outside this place, which most colleagues from England assume is the case. However, because my title is from the Tweed, because I am from the border and live on the border, and because I was a Member of the Scottish Parliament for the Borders, the legislative competence interaction on trade agreements is of significance, not just for Borderers but for the relationship with the devolved Administrations. I am therefore very happy to add my name to this amendment.

In so doing, I also recognise the patience of the noble Viscount, Lord Younger, in meeting us and hearing our case for the need for an extra level of clarification on the interaction of the areas where discussions continue with the devolved Administrations. In some areas, there is disagreement over where the legislative competences of areas that had been EU areas of legislation will lie, when they are repatriated, if we leave the European Union. As the noble Lord, Lord Stevenson, said, the Scotland Act’s approach to devolution is that if those powers are not spelled out in the Act’s reservations, they are recognised as fully devolved to the Scottish Parliament. This is about how the order-making powers in the Bill interact with those powers. Clarity on the areas of interaction between the devolved competences would be helpful.

Finally, clarity would be helpful in looking at those areas of legislative competence where there are ongoing discussions: agricultural support, organic farming, animal health and traceability, animal welfare, chemical regulations, state aid and food labelling. All are likely to be important not just for continuity agreements but for future trade agreements. Some of these issues are politically sensitive, so getting the required clarity on how they will be legislated for in trade agreements is important. It would be regrettable if the competences ended up in the Supreme Court for dispute; further clarification on current interaction is desirable. I know that the Minister will probably not be able to answer my questions entirely but I look forward to his response to this short debate. I hope he can add an extra level of clarification, which would be satisfactory at this stage.

Photo of Lord Wigley Lord Wigley Plaid Cymru 5:00, 20 March 2019

My Lords, I too welcome the amendment. I apologise for taking so little part in the Bill’s progress since participating at Second Reading. This intermittent pattern has been due largely to being stretched on Brexit matters across many different committees and calls.

I support the comments of the noble Lord, Lord Purvis, on the devolution situation. The position in Wales is different from that in Scotland because of the different natures of the devolution Acts—no doubt the Minister is well aware of those. However, similar issues can arise, particularly in the contexts of agriculture, procurement and competition law. Those areas are sensitive and there are strong feelings in the devolved regimes on the powers they can exercise. No doubt many other issues will arise.

I do not think that we can answer this matter by strict legislation. The most important thing by far is the attitude of Governments towards dealing with each other. It is important that, when issues arise and are flagged up at this end, something is done early enough to get a constructive response from Cardiff or Edinburgh. Likewise, it is important that the devolved regimes are encouraged to flag up issues that arise, and that there is a mechanism to deal with them before they become polarised and unnecessarily political. To that extent, I believe that most of the work on this will have to be undertaken on a day by day, month by month basis after the legislation comes into force. Having said that, I support the amendment.

Photo of Viscount Younger of Leckie Viscount Younger of Leckie Lord in Waiting (HM Household) (Whip)

My Lords, I thank the noble Lord, Lord Stevenson of Balmacara, for moving Amendment 8 and for our fruitful discussions since Report, together with the noble Lord, Lord Purvis, and the noble and learned Lord, Lord Hope, who is not in his place at the moment. I hope to provide some extra clarity on the interaction between the UK Government and the devolved Administrations.

It might help if I summarise my understanding of the amendment’s purpose. It would require the Government to seek the consent of the devolved Administrations when making regulations under Clauses 1 and 2. As we have said, it is the Government’s intention always to consult and seek the consent of the devolved Administrations when exercising the powers in this Bill in areas of devolved competence. We want to form a trade policy that works for the whole of the UK. However, there are good reasons why we do not want to amend the Trade Bill either to extend the operation of the Sewel convention or to replicate the recent amendment to the healthcare Bill, as proposed by the noble Lord.

Let me just touch on the Healthcare Bill. The noble Lord, Lord Stevenson, suggested during the debate on this issue on Report, on 13 March, that a recent amendment to the Bill strengthened the case for what is being proposed here. However, there is a significant difference, both between the powers in the two Bills and between the texts of the two amendments.

First, the concurrent powers in the Trade Bill allow for devolved Administrations themselves to legislate in areas of devolved competence. As mentioned last week, should the UK Government use the powers of the Trade Bill to legislate for the whole of the UK, it will be for the purposes of legislative efficiency, following consultation with the devolved Administrations. The Healthcare Bill does not provide for this: it does not delegate any powers to devolved Administrations. Introducing consultation requirements in lieu of a power for the devolved Administrations to legislate for themselves is understandable—but this clearly is not the case for the Trade Bill.

Secondly, the amendment to the Healthcare Bill introduced a requirement to consult the devolved Administrations, whereas Amendment 8 would require the UK Government to secure the consent of the relevant devolved Administration before legislating in areas of devolved competence. As is well recognised in your Lordships’ House, to “consult” and to “secure consent” are very different concepts.

I turn to the Scotland and Wales Acts, which already enshrine the Sewel convention in legislation. I am happy to restate this Government’s continued commitment to this convention in relation to all future primary legislation. However, it has been suggested that this amendment would put regulations under the Trade Bill in the same position as Westminster primary legislation under the Scotland and Wales Acts. It must be recognised that those provisions were passed in a very different context and in recognition of an accepted political convention relating to primary legislation. Moreover, as the Supreme Court has recognised, those provisions were carefully worded in a way that demonstrated Parliament’s clear intention that they should not be justiciable.

This amendment, however, goes further by effectively proposing an extension of this convention to apply to secondary legislation. It does so in a way that does not reflect the language of the Scotland and Wales Acts provisions, which would risk making the term “not normally” into a legal test. As I stated on Report, I do not believe that it is the intention of this House to introduce new legal uncertainty to our statute book—especially when that could ultimately obstruct the programme of continuity that this Bill seeks to deliver, to the detriment of the UK as a whole.

I would like to touch now on Section 12 of the EU withdrawal Act and its interplay with the Trade Bill.

Photo of Lord Wigley Lord Wigley Plaid Cymru

Does the Minister accept that the problem as seen from the devolved regimes is that, very often, consultation does not amount to very much indeed? That is why the word “consent” is very much more powerful. If consultation was something that was driven with the intention of having a meeting of minds, rather than just sending a message down and forgetting about it, there might be a better chance of getting that form of words to be applicable.

Photo of Viscount Younger of Leckie Viscount Younger of Leckie Lord in Waiting (HM Household) (Whip)

The word “consultation” is well known and well respected. I would like to pick up on what the noble Lord said earlier about the fact that there is much interaction, and consultation, going on; and it generally works very well. I would also like to say how well it has worked in respect of Wales. It is a term that is well recognised and works well.

Turning back to Section 12, I am aware of the letter from the Scottish Government Cabinet Secretary, Mike Russell, which noble Lords have referred to in earlier exchanges and which raises a specific concern in the third paragraph about the effect of Section 12 regulations on the Scottish Government’s ability to exercise powers in the Trade Bill. I am disappointed that, unlike the Welsh Government, the Scottish Government have not seen fit to recommend consent to the Trade Bill. I would like to make it clear that any frameworks-related restrictions on the devolved Administrations’ use of the powers apply only if a Section 12 regulation is first in place.

Due to the collaborative and constructive work that is taking place to establish UK common frameworks once we leave the EU, the UK Government have not yet identified a need to bring forward any Section 12 regulations. The Government have committed to work with the devolved Administrations in the preparation of any Section 12 regulations that would maintain existing frameworks. This was set out in the Inter-governmental Agreement on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks, which ensures that those regulations are subject to scrutiny by the devolved legislatures and the UK Parliament.

In addition, I can reassure your Lordships that, were a Section 12 regulation in place that would restrict the power of the devolved Administrations to use Clauses 1 and 2, the Government’s commitment always to consult would remain. As we have repeatedly said, the UK Government remain committed to the principle of not legislating in devolved areas without seeking the agreement of the respective devolved Administrations. The UK Government have been working productively and collaboratively with the devolved Administrations on a number of fronts, including the development of common frameworks. As a result of this work, the UK Government and the devolved Administrations recently agreed to this joint statement:

“On the basis of the significant joint progress on future frameworks, and the continued collaboration to ensure the statute book is ready for exit day, the UK Government has concluded that it does not need to bring forward any section 12 regulations at this juncture.

On this basis, the Scottish and Welsh Governments continue to commit to not diverging in ways that would cut across future frameworks, where it has been agreed they are necessary or where discussions continue.

UK Government officials are working with devolved administration officials to revise the Common Frameworks analysis and take into account progress on framework areas since March 2018. We anticipate publishing a further iteration of this analysis shortly”.

To conclude, I hope that I have demonstrated that the amendment is unnecessary. The Government are committed to not normally using the powers in the Trade Bill to legislate in areas of devolved competence without the consent of the relevant devolved Administration—and certainly not without first consulting them. I believe that this is proportionate and appropriate to the powers as they currently stand, which have received consent from the National Assembly for Wales, as I said earlier. If passed, this amendment would depart significantly from this. I therefore ask that Amendment 8 be withdrawn.

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords)

I am very grateful to the Minister for his words and for being so explicit about the conditions under which powers can be exercised and how they would be affected, both by the current legislative framework and by Amendment 8 if it were inserted into the Bill. Having said that, however, your Lordships’ House has heard from the noble Lords, Lord Purvis and Lord Wigley, that these are matters of substantial importance in general terms, and particularly when viewed from the perspective of the devolved Administrations.

I hope that behind the words issued today there is a real and deep commitment across the whole of government to make sure that the lessons from the unfortunate experiences in the withdrawal Bill, now Act, and not repeated in this legislation—but obviously touching on it—will be learned in a way that will mean that we can make progress together. In that context, the Government getting their act together and issuing another statement about these matters as early as possible would be a considerable help to all concerned.

However, the point is well made that there is a well thought-through argument in the Bill, which bears exactly on the issues that the amendment sought to arrange. The commitment given openly by the Minister at the Dispatch Box, confirming that it is the Government’s intention to ensure that full, meaningful consultation should be the mode adopted and that there would always be a requirement to obtain consent where possible from the devolved Administrations, makes it very clear that the amendment is not required. On that basis, I beg leave to withdraw it.

Amendment 8 withdrawn.