Amendment 3

European Union (Withdrawal Agreement) Bill - Report (1st Day) – in the House of Lords at 4:45 pm on 20th January 2020.

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Baroness Hayter of Kentish Town:

Moved by Baroness Hayter of Kentish Town

3: Clause 21, page 25, line 5, leave out “(including modifying this Act)” Member’s explanatory statementThis amendment would remove the ability to amend the European Union (Withdrawal) Act 2018 itself by statutory instrument in connection with the Ireland/Northern Ireland Protocol.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Spokesperson (Cabinet Office), Shadow Deputy Leader of the House of Lords, Shadow Minister (Exiting the European Union), Shadow Minister (Business, Energy and Industrial Strategy) (Labour)

My Lords, I beg to move Amendment 3 on behalf of myself and the noble Lord, Lord Tyler. I shall also speak to Amendments 4, 5 and 7. These amendments are all tabled for the same reason: because the Government seem to like deciding things for themselves, with no reference to Parliament. That is possibly why they want to shove us up to York, where our voice will not be heard as loudly as it is in Westminster—although they have missed a trick by not trying to send us to Coventry.

Amendment 5 is needed because when the Government signed the withdrawal agreement allowing the EU-UK joint committee to amend the agreement itself, they failed to allow for scrutiny of the joint committee. The Government have this power under the Bill which is, in the words of our EU committee, a power immune from

“clear scrutiny procedures or parliamentary oversight”.

Clause 21 contains significant new powers to amend by statutory instrument the 2018 withdrawal Act, in what our DPRRC describes as

“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act”.

It is not just unusual for the Government to have that power with only the most cursory of scrutiny to amend primary legislation; it is also unexplained.

Implementing the Northern Ireland protocol may well prove challenging, of course, but we have seen nothing to suggest that this would demand changes to the 2018 Act. Nor does the letter of 16 January from the Minister, the noble Lord, Lord Duncan, provide comfort when it states that the power could not be used to repeal the devolution settlement but be exercised only for the purposes of implementing the protocol and the Government’s policy on unfettered access. If that is the case, why is the power there to repeal? While the Minister says that the power would not be used to repeal any power in the 2018 Act, there is still no reason given as to why it is there, nor why Amendment 3 cannot be accepted, given that it would simply take out from the Bill the ability to amend the 2018 Act by statutory instrument, which the Minister says the Government will do not do anyway.

Amendment 4, in the name also of the noble Lord, Lord Beith, is needed because, as the DPRR Committee states, the Bill contains

“a … potent form of Henry VIII clause … creating a new legal regime that would otherwise require”,

an Act of Parliament. Furthermore, these Clause 21 powers have none of the restrictions which are found in respect of similar powers elsewhere in this Bill or in the 2018 Act. Amendment 4 would insert the same limitation on the Clause 21 regulation-making powers as exists elsewhere in this Bill and the other Act. After all, it would be pretty exceptional for Ministers to be able to create new criminal offences, including with two-year terms of imprisonment attached, to set up public bodies—just referred to by my noble friend Lord Hutton—or to levy taxes, yet the Government want the power the do that. The assurance in the letter of 16 January from the noble Lord, Lord Duncan, that this would be by affirmative procedure is of no comfort to this House, given that such a procedure is effectively never used to stop a Minister doing exactly what he or she wants.

Amendments 5 and 7 are in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, who rightly said at Second Reading that it would be a terrible precedent if we altered the devolution legislation other than by primary legislation. The amendments would simply prevent Ministers using Clause 21 and 22 powers to amend the statutes which embed the devolution settlements. As we know, there is a perfectly viable, acceptable way of amending the Welsh statutes without primary legislation where the National Assembly agrees with the change; that is, through Section 109 Order in Council. We have been given no reason why the Government have written themselves these powers, which I fear can mean only that they want to change the devolution settlements without the consent of the National Assembly and Welsh Government.

Given that, even now, the Government seem determined to push this Bill through without legislative consent from the Welsh Assembly, these powers are understandably fuelling suspicion. I therefore trust that the Minister will accept Amendments 5 and 7 and, by doing so, rule out any chance of the Government trying to amend the Government of Wales Act without the consent of the National Assembly.

The Minister knows full well that the Assembly is due to debate its legislative consent Motion tomorrow. It would be shame—in fact, it would be more than a shame; it would be a constitutional landmark and a bad one—if this consent Motion were to be withheld due to the powers in this Bill, which appear to threaten the Government of Wales Act. Amendments 5 and 7 are therefore of some consequence.

We have been given no satisfactory explanation for why Parliament should give Ministers powers to amend by order the withdrawal agreement, the 2018 Act or the devolution statutes. Frankly, unless and until we have such an explanation, this power must come out of the Bill. I beg to move.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform) 5:00 pm, 20th January 2020

My Lords, I am a co-signatory, with the noble Baroness, to Amendment 3, which leads this group. There is little that I need to add to what she has already said or, indeed, to what was said in the debate last week. However, I would like to raise one or two points with the Minister.

Looking at this as dispassionately and objectively as one can, one wonders whether Clause 21 was drafted before there was any confidence that there would be a new devolved Administration in Stormont. The impression is given that everything was going to have to be decided in London still, whereas since then there has been a very dramatic and welcome change in Northern Ireland—I give credit to the Minister and his colleagues for the part that they played in that. However, it looks as if this was thought through before that element was fully appreciated. It makes much better sense to go through the proper process of primary legislation and not to divert into secondary legislation for this purpose.

Last week, I quoted the noble Lord, Lord Anderson of Ipswich, who referred to this clause as being, “Henry VIII on steroids”. It is the most egregious example of a really powerful use of a Henry VIII power in the whole Bill. There are several others, but this is the most obvious one because, as the noble Baroness has already said, it allows the change in the statute to be made without a reference to Parliament fully in its role as scrutineer. The Minister will recall that, in a powerful recommendation, the Delegated Powers and Regulatory Reform Committee said:

“Even if the House accepts that there is a good reason for Clause 21 to allow regulations to modify the 2018 Act, the power should, in our view, be limited to the minimum necessary. We therefore recommend that the Bill should spell out the purposes for which the power is to be used rather than leaving the matter at large.”

The Bill should spell out how the power should be used, rather than the House just getting assurances from the Minister.

In last week’s debate, the Minister was kind enough to refer to this issue in the following terms:

“It would be very easy for me to say: ‘You have just got to trust me’. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland.”—[Official Report, 14/1/20; col. 639.]

As the noble Baroness has said, there is apparently such a letter: I have not seen it. I took part extensively in that debate. I was in the Committee until almost the last moment on Thursday; I was in the House again this morning at 9.30 am. I cannot be accused of being absent on leave; I have been around. Why did that letter not come to me? From what the noble Baroness said, I can assume that there is an attempt to justify this part of the Bill. I have huge respect for the Minister and his respect for this House is well known, but, frankly, it is not satisfactory for Members of your Lordships’ House to be given that sort of undertaking from a Minister. It makes it very difficult for me and, no doubt, other Members who attended that debate but did not take part, if they have not seen the justification given in the letter.

Given that the House has now voted to amend the Bill, it is going to the Commons, even if it is for a very short time. There must surely be an opportunity for the Minister to explain on the record—not just with a letter, which may go astray—why the exceptional use of Henry VIII powers which I have described is being made at this juncture. That is all I need to say at the moment, but I shall listen with great interest to what the Minister may say. Perhaps he is going to read us the letter.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

The noble Lord, Lord Tyler, refers to this as an “exceptional use” of Henry VIII powers. I wish I could be comforted to that extent, but it seems to me that the use of Henry VIII powers is an endemic vice in government, and I wonder why Ministers and officials never learn. The Henry VIII powers taken in relation to Clause 21 are very extensive indeed. I certainly accept what the Minister says, that it is not their intention to amend the devolution settlement, which ought to be amended by primary legislation. It is, none the less, offensive in principle to take such powers: it does not need to be done. The Government seem to think it is expedient, but it is actually very bad for trust between Parliament and the Executive, and, I think, bad for trust between politics and the people.

The Minister and I had a brief exchange in Committee on this, and on the particular question of whether the powers that the Government propose to take to themselves to alter primary legislation, or even abolish primary legislation by statutory instrument, would be subject to the affirmative or the negative procedure. He said his advice from his officials was that they would be subject to the affirmative procedure, and I agree that that is indeed the case where Clause 21 is concerned, but when we come to Clause 41, which is the most all-embracing, there is a socking great Henry VIII power. It is an almost megalomaniac provision and there is no such assurance available. As I understand the legislation, and as the Delegated Powers and Regulatory Reform Committee, more significantly, understands the legislation, the exercise of those powers under Clause 41 would be by the negative procedure. That is even more offensive, and it would be very helpful if the Minister would comment.

I hope the Minister will accept that, as a matter of general principle, the use of Henry VIII powers is objectionable; that if they are to be taken, they need to be defended in very clear and specific terms, as they have not so far been in the consideration of this legislation; and that the offence is compounded where the proposal is that the exercise of those powers should not be subject to the affirmative procedure.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I support what the noble Lord, Lord Howarth, has just said. Clause 21 says:

“Regulations under subsection (1) may make any provision that could be made by an Act of Parliament (including modifying this Act).”

That is about as broad as the power could possibly go. It seems to me to be entirely unacceptable that there should be absolutely no curb of any sort upon the powers of any Government, and I consider that it is something that this House ought to be very worried about.

Photo of Lord Beith Lord Beith Liberal Democrat

My Lords, I am a signatory to Amendment 4 and my willingness to support it is partly based on a constant desire to police the boundary that ought to exist in the use of regulatory powers, so that they do not permit the imposing of taxation or fees, the making of retrospective provision, the creation of criminal offences or the establishment of public authorities, some of which could arise as a result of what is in the protocol. The Minister may well want to explain to what extent he thinks the protocol itself limits the powers that can be used under this section.

This is an area we have often been reminded of by the noble and learned Lord, Lord Judge, who until his recent departure was such a valued member of the Constitution Committee. If we had not policed the boundary, he would have been urging us on to do so. Indeed, he may have something to say on this amendment. It is an issue we keep having to come back to, because there are those within government who seem to think they can keep putting these kinds of powers into Bills, and we know how dangerous they are.

Photo of Lord Judge Lord Judge Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Convenor of the Crossbench Peers

My Lords, I cannot resist the invitation. First, a word of apology to the noble Baroness, Lady Hayter; I was not here for her very first words, but I was on my way.

Can we just pause? We are going to give a Minister power, if he so chooses, to impose taxation. The whole basis of our democracy started because no taxation was allowed without representation. The Americans picked it up in 1776, but it goes right back to Clause 12 of Magna Carta. The way Henry VIII powers are being used now has led to constant protests by the parties in opposition and by Cross-Benchers.

The time has come for us to address the difficult problem and decide that, if the powers given under these Henry VIII clauses are being misused, we will reject the affirmative process when they are put before us and take it on. If and when Labour comes to power, and one day it will, or if and when the Liberals come to power, and maybe they will, let us hope that when they are addressing Parliament and creating Henry VIII clauses they will remember their hostility to them now and allow the then Opposition, the Conservatives, to lead an attack on affirmative resolutions misusing these powers.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Judge

My Lords, I will speak to Amendments 5 and 7. The same arguments apply to both, so I will deal with them together.

The purpose of these amendments, as with all the amendments we have moved, is to try to ensure that, for the future and in the passage of this Bill, the union is strengthened. To that end, it is of the greatest importance that amendments to the devolution statutes should be made only by primary legislation or by the procedures under the pieces of legislation, such as Section 109 of the Government of Wales Act, that allow amendments to be made by consent. Secondly, we should go forward in our negotiations with the European Union and in the adjustments necessary within the UK in a spirit that honours the constitution as changed as a result of devolution—not merely its letter, but its spirit.

The amendments that we seek to raise address two distinct points. First, why are these powers needed, if it is said that they are, to implement the international obligations of the United Kingdom? Secondly—this is quite a distinct issue—why are these powers needed to implement the United Kingdom Government’s commitment to unfettered access for Northern Ireland goods to Great Britain? They raise entirely different constitutional issues and need to be looked at separately.

As regards the claim that they are needed to implement the international obligations of the United Kingdom, the powers under the Government of Wales Act, particularly Sections 82 and 114, give the Government very significant powers to direct the Welsh legislature and Welsh Ministers, so that what they do complies with international obligations. It is difficult to see why those are not sufficient.

Secondly, the astonishing breadth of these powers enables the Minister to repeal the devolution statutes. The Minister has in his helpful letter indicated that the Government would never contemplate doing so. Indeed, it is asserted that there would be no power to do so given the restrictions in the Bill on what can be done in respect of these powers to the implementation of the protocol. If that is the case, why is this not spelled out in legislation? Why is there not some limit on the Henry VIII powers?

That is the first purpose of these powers. The second purpose—the commitment to give unfettered access to the Great Britain market for Northern Ireland goods—raises a different point. The Government, in their statement on 9 January 2019, recognised that what was done must take into account

“the devolved competences of the Scottish and Welsh governments, and recognise that we need to preserve a level playing field for businesses throughout the UK.”

Of course, I recognise the need to do what is necessary to ensure the strengthening of the union by making arrangements for access to the markets in Great Britain for Northern Ireland goods. I am sure everyone wants to do all they can to preserve the union by ensuring that Northern Ireland businesses remain able to trade to Great Britain without let or hindrance, and I am sure that the Welsh Government and the Welsh Assembly will similarly want to do all they can.

However, if the union is to be strengthened, this should be done by consultation and agreement with the other devolved Governments and legislatures. We should not be going down the route where it appears that unilateral action can be taken to help one part of the union which involves overriding the constitutional statutes and protections of the other nations without their consent. There should therefore be no change to the devolution statutes for these purposes without consent. The present proposal gives Ministers free rein to rewrite the devolution settlements, to take away competences that Parliament has given to the devolved legislatures, and without any right of the devolved legislatures to have any say in that.

A strong union requires consensus, not unilateral action in respect of one part. It is clear that there is a special issue in relation to Northern Ireland. It is right that it is represented in the joint committee that will supervise the negotiations between the UK and the EU. The other two nations, of course, are not included in that committee; they rely upon the Joint Ministerial Committee. I shall return to that issue when we discuss Amendment 17.

As regards this amendment, everything possible should be done to achieve consent, and I see no reason why consent should not be the way forward in dealing with the issue of unfettered access. We should not go near the route of enabling one part of the United Kingdom to be preferred in such a way that actions taken for it can involve overriding the devolution statutes by means other than primary legislation.

I hope that the Minister will tell us why this extraordinary power is needed and why, as regards both the international aspects and the internal aspects, we cannot go forward either with the existing powers in primary legislation or by a route of consensus.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords) 5:15 pm, 20th January 2020

My Lords, I will also focus my remarks on Amendments 5 and 7 in this group, to which I have added my name.

My noble and learned friend Lord Thomas has explained in some detail the legal reasons for our concern at Ministers’ unwillingness to consider these amendments. For my part, while I understand the importance of the promises that the Government have made to Northern Ireland, surely it cannot be right that Welsh and Scottish devolution appear to be treated as less important than that of the six counties of Northern Ireland. The Northern Ireland Executive are assured that they will have direct representation when bodies under the joint committee consider matters relevant to Northern Ireland, but the Government fail to give any assurance to the devolved institutions in Scotland and Wales that their interests will be protected during the negotiations which are to come.

As I and other colleagues have repeatedly argued, there is a perfectly adequate way, through Section 109 Orders, to amend devolved competence where there is agreement between the Welsh and UK Governments. Such an approach involves both this Parliament and the Welsh legislature. I also understand that if an issue falls outside the scope of Schedules 7A or 7B to the Government of Wales Act, other powers may need to be used, but any suggestion that this may happen must be fully consulted on with the Welsh Government from the outset. Wales cannot be ridden over roughshod or treated as a second-class nation. If in extremis such agreement cannot be reached, it is of course open to the Government to ask Parliament to amend the Government of Wales Act, but such extreme measures should be used only as a very last resort.

If this clause is not amended, it will remove the incentive for Ministers of the Crown to reach a reasonable accommodation with the Welsh Government and the Senedd if and when it emerges that changes affecting the nature or implementation of devolved responsibilities and regulation are needed. There is a need to rebuild and regain trust. It may seem trivial, but as the noble Baroness, Lady Hayter, has said, despite the fact that we are on the verge of seeing the Senedd vote against legislative consent, I believe for the first time, and despite the Minister having suggested to me that direct dialogue between the Governments would be helpful, it is with regret that I understand that there have been no conversations between the Secretary of State and Welsh Ministers for the last 10 days. I assure noble Lords that that is not due to any reluctance on the part of Welsh Ministers.

The letter of 16 January from the Minister, the noble Lord, Lord Duncan of Springbank, states that under this Bill, the Government are “wholly incapable” of repealing the devolution statutes. Can he explain the absolute limits on the powers as written in the Bill because, as my noble and learned friend Lady Butler-Sloss has pointed out, no limits seem to be defined in the legislation before us? The letter also contains the phrase that it is not “normal” to use the main power set out in Clause 21 in areas of devolved competence without the agreement of the relevant devolved Administration. Can the Minister also explain the use of “normal”, which feels a bit like a get-out term?

In conclusion, let me say that Amendments 5 and 7 in no way seek to block or slow down Brexit—I remind the House that Wales voted in favour of Brexit— and they would not stand in the way of the Government’s wish to make a success of the Northern Ireland protocol. We are simply trying to avoid the perverse consequence of undermining faith in the union in Wales as a result of trying to shore up belief in the union in Northern Ireland.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Chair, EU Justice Sub-Committee, Chair, EU Justice Sub-Committee

My Lords, I support these amendments, in particular Amendments 5 and 7 spoken to by the noble and learned Lord, Lord Thomas of Cwmgiedd. They are of fundamental importance and go to the heart of the devolution settlements. For a number of reasons I was not able to take part in the Committee stage of the Bill, although I was present for a great deal of the debate.

My interest in a devolved model of government began to crystallise when I was a postgraduate student at Cambridge as far back as 1954. As the Welsh Secretary, I was fortunate to have the opportunity to frame the architecture of a Welsh Bill in 1975, ill-fated as it was, but in 1998 I was given a second chance as a law officer in the Cabinet Committee to contribute to a more acceptable Bill. Anything that casts doubt on it or the important advances made since arouses my suspicion, because we have moved on. My principle is that once a matter is devolved, there is no going back. Once the hand of Westminster grants devolution, it cannot then be withdrawn. The Government must ensure that any suspicion of backsliding is removed.

New subsections (2) and—probably—(5) in Clause 21 cause deep suspicion for me. New subsection (2), which has already been referred to, says that a Minister may make by regulation

“any provision that could be made by an Act of Parliament (including modifying this Act).”

This year I have enjoyed reading the book on Thomas Cromwell; I commend it. It is the life of the greatest political manipulator this country has ever seen—and probably the deviser of Henry VIII powers, because his hand was a very firm one on the tiller in all the legislative processes of that time. I ask the Minister frankly: could anything be wider than new subsection (2)? It is the Trojan horse that could amend the statutes that embed the devolution settlement.

As it stands, my suspicions are justified. The power is there to make changes to the devolution settlement even if the National Assembly and Welsh Government are opposed to the change. If Westminster has the Assembly’s agreement to changes, there is a perfectly respectable machinery for making them. It has already been referred to in the debate. In uncharted waters, such changes may be necessary.

I ask the Minister specifically: have the Government considered the alternative, a Section 109 Order in Council? This is the machinery available and could be used for any changes that might be required. Above all, they would be consensual as opposed to imposed changes. My second specific question is: will the Minister clarify and emphasise that legislative consent would normally be required for any regulation that would be brought in under this Act? Thirdly, have the Government discussed with the Welsh Government the anxieties they have? I commend these amendments.

Photo of Baroness Humphreys Baroness Humphreys Liberal Democrat Lords Spokesperson (Wales)

My Lords, my concerns in Amendments 5 and 7, to which I have added my name, lie around relationships, trust and respect—because, for all the legalese, that is essentially what is at issue here.

The National Assembly for Wales will be 21 years old this year—in human terms, a coming of age: the age of maturity and majority. Over these last 21 years, I have watched the Assembly take on more powers and responsibility—successfully, on the whole—and have seen many of its politicians increase in expertise and stature. But the inclusion in the Bill of these clauses, which would enable Ministers of the Crown to amend the devolution settlement, can only be described as a retrograde step and will surely have a detrimental effect on the relationship between Westminster and Assembly Governments.

These clauses give the Government the power to amend the Government of Wales Act in certain circumstances, without the consent of the Welsh Assembly. It is a recipe for a breakdown in trust and respect. The words “potential major constitutional conflict” have been mooted, and the potential for such a situation concerns me greatly. Far better, then, to use the route already open to the two Governments and already referred to by the noble Baronesses, Lady Hayter and Lady Finlay: consultations that could lead to the Assembly agreeing with changes to its own competence through a Section 109 Order in Council.

Whether we are talking about families, schools or workplaces, or, as in this case, politics, trust and mutual respect are key to successful relationships. The taking away of freedoms and powers is a means of control, and not a constructive act of relationship building between adults, or adult institutions—unless of course in this instance the aim is to disregard the relationship and impose the will of the UK Government on the Assembly Government. This Government, with their large majority in the other place, are in a position of power, but they have a duty to avoid unnecessary conflict and relationship breakdown by using that power wisely.

Photo of Lord Wigley Lord Wigley Plaid Cymru 5:30 pm, 20th January 2020

My Lords, I have an apology to make to start with: I am so sorry that Wales sent Henry VII and Henry VIII through to Westminster to impose the sorts of powers that are now being used in the way they are. Henry VIII was also responsible for the Acts of Union, and I am sorry about that as well.

With regard to Wales, quite clearly these powers are being drawn up in a way that is, at best, cack-handed and, at worst, causing immense reaction in the National Assembly. It is no overstatement to say that Members across party divides in the National Assembly are seething about these powers being brought forward. It follows two years of discussion and debate about fears of a power grab, with powers being taken away from the National Assembly, and indeed possibly from the Scottish Parliament—no doubt Scottish Members of this Chamber can speak up for themselves on the situation there, although I must admit that I have heard very few Scottish voices in these debates. However, as far as Wales is concerned, there is real fear that, in areas such as agriculture and on the question of the single market and the purchasing power of the Assembly, powers may be taken back. That might be done on the pretext of their being necessary for the UK single market, or possibly for other reasons.

Given that there has been co-operation in Wales across party boundaries to make sure that the settlement we have is worked out in a sensible way and progressive additional powers have been given, and, by and large, that successive Governments in Wales have worked in collaboration with Governments in London, for this clause to be put forward in this way is, frankly, not acceptable. The Government of Wales Act could itself be amended, or even overturned. How on earth can these powers be necessary when there are other ways of achieving the objectives the Government may have in the context of international treaties, as the noble and learned Lord, Lord Thomas, mentioned a few moments ago?

I beg the Government to look again at this. They are stoking up unnecessary conflict between Cardiff and Westminster. There may well be areas where we will have conflict and differences of opinion, so, for goodness’ sake, do not do it gratuitously. I ask the Minister to look seriously at this again and, if he cannot accept these amendments, to bring forward amendments on Third Reading to deal with this situation.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

Forgive me, my Lords—I was too premature in eating my Polo Mints; I will save them for later.

As expected, this has been quite a technical debate, and I will do what I can to offer further details on some of the elements I have spoken of. The first thing I should stress to the noble Lord, Lord Tyler, is that the letter was sent to his Whips for onward distribution; it would have gone there on Thursday of last week, and I believe that the same is true for those on the Labour Benches. The letter has been sent out and made available. I am very happy to resend it, so that he can have the details, and I will not belabour the House by reading it out again.

At issue in this debate is the question of the scope and depth of the powers, and we have heard much reference to Henry VIII. I emphasise that Clauses 21 and 22 are required to enable both the UK and the devolved Administrations to fully implement the Northern Ireland protocol. Secondary legislation will be needed to further implement certain elements of that protocol before December 2020, which is the end of the implementation period. As a number of noble Lords noted, failure to do so could affect the ultimate agreement between the EU and the UK, with negotiations being conducted in the light of the UK not fulfilling its obligations under the withdrawal Act. What we are saying is that, in the calendar year ahead, there is much to be done and much is still uncertain, because it will emerge from the negotiations that take place between the UK and the EU. It is important to stress also that, where the issue affects the Northern Ireland protocol, the Northern Ireland Executive will have a role and be involved.

The powers we seek are broad, but they are constrained. First, they are Northern Ireland protocol-specific and can be exercised only to implement the protocol, to supplement it within domestic law or to deal with matters arising out of, or related to, the protocol. Regulations beyond this scope are ultra vires. It is important to stress that, as it limits what these powers can be used to do. A number of noble Lords have suggested that they could be wide-ranging and could up-end or repeal the fundamental devolution settlements for Scotland and Wales. In fact, because they are so specific, that is not a possibility.

Further, any use of the power in Clause 21 that seeks to amend primary legislation, including the fundamental devolution statutes, will be subject to the affirmative procedure. There is no suggestion whatever that this will be done in secret, or in any attempt to blind-side this or the other place. The purpose is to ensure that there is full scrutiny by all the authorities within these Houses. The procedure attached to the use of this power means that there are no circumstances where the Government could change or amend the devolution statutes without the full involvement and scrutiny of both Houses. It affords the fundamental opportunity, according to custom and practice, for this and the other place to be engaged. On the Government of Wales Act 2006 and the Scotland Act 1998, the Bill grants no vires for wholesale repeal of any of the devolution statutes—and I repeat “any”.

I turn to the specific points raised in the amendments. On Amendment 3, the powers are necessary to align Northern Ireland with certain elements of EU law. It is therefore necessary to ensure that the power in Clause 21 can be used to amend the withdrawal Act to ensure that the arrangements required in the protocol are operational and the statute book does not contain uncertainty. That is to happen in the time we have spoken of—by the end of this year.

The power will not be used to repeal any substantive provision in the European Union (Withdrawal) Act 2018. The noble Baroness, Lady Hayter, asked why the Government would wish to amend the withdrawal Act. I assure the noble Baroness that the Government have included the power with due consideration. If the statute book is not clear and in legal conformity with elements of the withdrawal Act, confusion and uncertainty could well result. Again, I reinforce that the Government cannot use this power to make changes to the 2018 Act for any purposes beyond those required for the full implementation of the protocol. It is the protocol itself that gains the ascendancy and restricts the onward actions in a wider sense.

The limits in Amendment 4 risk preventing the United Kingdom fulfilling its international obligations under the Northern Ireland protocol. The proposed restrictions create problems. Several details of the protocol require further decisions in the UK-EU joint committee to become fully operational. The Government have committed that representatives from the Northern Ireland Executive will be invited to form part of the UK delegation in any joint committee meetings where Northern Ireland-specific matters are discussed, and where the Northern Ireland Government are present. This is evidence that the UK places significant importance on maintaining Northern Ireland’s unique place in the union. It is important that, after a very long absence, we now have an Assembly and an Executive in Northern Ireland.

The Government will not use these powers to repeal the devolution statutes wholesale. Indeed, they are wholly incapable of doing so because of the inherent limitations of the power, which I have already touched on. It is the Government’s firm intention to fully engage with the devolved Administrations, and it will be important to do so with regard the withdrawal agreement, and to ensure that the protocol itself is correct and delivered in the right manner.

On Amendment 7, the power is necessary to implement certain elements of the protocol that are within devolved competence. Any modification of the Government of Wales Act 2006 by way of the power in Clause 22 could in practice occur only with the agreement of the Welsh Government; it is only with their full participation that Clause 22 could be delivered. The amendment could impede the Welsh Government in exercising their own legitimate power when implementing the protocol in areas of devolved competence in a manner that they deem appropriate. So, again, the clause, if amended in that way, would cause the Welsh Government a problem in the natural fulfilment of their powers.

The Government fully seek and intend to proceed in the spirit of engagement and co-operation with the devolved Administrations, and that will include the Joint Ministerial Committee. We should bear in mind that that committee has two strata that we are concerned with. The first is one with which the officials themselves are fully engaged; a lot of the issues that we are talking about regarding the Northern Ireland protocol are technical issues that will be dealt with primarily at official level. The second is the ministerial level at which decisions can be taken. The powers themselves are deemed to be essential and are required to implement the protocol.

I will try now to address some of the specific points raised by noble Lords today. The first, which is the most important, is the question of why the Government do not seek to use a Section 109 Order in Council. A number of Peers raised this point, suggesting that it is the correct way. I too was curious and sought specific advice on this. A Section 109 order can be used where appropriate to make amendments to Schedules 7A or 7B to the Government of Wales Act 2006. It would work in those areas. However, if amendments outside the scope of a Section 109 order were required, as updates to the protocol might require, it would not be possible to rely on a Section 109 order to make them. It is important to stress as we look at that that the Section 109 order would be adequate in only certain circumstances, not in all circumstances. Therefore, we cannot rely on that method to move forward.

There was also a question about other means that could be used. A question was raised by a number of noble Lords about whether powers to direct Welsh Ministers could be used to deliver this. Powers to direct are to compel acts in areas of devolved competence. Section 82 of the Government of Wales Act, which the noble and learned Lord, Lord Thomas, referred to, does not allow for amendment of the devolution statutes, which might be needed to implement the protocol. So, again, this route is not available to the Government to address the matters that might result from the ongoing negotiation between the EU and the UK.

I am being corrected, so I will put this on the record. On the joint committee, I should have said that for meetings discussing NI-specific matters and where the Irish—not the Northern Ireland—Government are present, representatives from the Northern Ireland Executive will be invited. Let me be clear on that.

The difficulty we face in this regard is that we now have before us several elements that we need to keep focused on. We will need powers to change the elements required for the Northern Ireland protocol itself. On the question of the concomitant impact on the Scotland Act or the Wales Act, the reason we have been so clear on this is that they will potentially be affected as elements of the negotiations unfold. That is why there needs to be an opportunity for them to be amended in the focused area, as required by the Northern Ireland protocol. They cannot be amended in a wholesale manner, whereby they could be repealed, revoked or amended beyond their constitutional necessity. That is why I was very clear in a letter that I wrote that the important point to take here is that these themselves can be addressed only via the need to institute the elements of the Northern Ireland protocol.

I am fully aware that this is an important issue and that people in Northern Ireland, Wales and Scotland are looking at this with some interest. The reality is that over the next few months we will have a serious negotiation on the future relationship between the UK and the EU, particularly on the Northern Ireland protocol. That will impact on the whole of the United Kingdom and all its manifest elements. However, I am also aware that I might not have fully satisfied your Lordships. If I have not, your Lordships might wish to take the mood of the House, because I will not be able to return to this matter at a later stage.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

Before the Minister sits down, will he explain why the very extensive and potentially arbitrary powers the Government propose to take under Clause 41 are not subject to the affirmative procedure?

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

I had a note on that. I will have to write to the noble Lord, because I am not sure that I can put my hands on that particular matter at this second. If he will allow me, I will come back to him on that. The point is that the amendments we are talking about concern Clauses 21 and 22, not Clause 41, which would not be amended by these particular amendments.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Judge

Before the Minister sits down, could he possibly give some illustration of the kind of provisions for which he and his officials feel it would be necessary to use these very extensive powers that cannot be done under the various sections of, for example, the Government of Wales Act, to which we have referred? Can he give some assurance about what they are? Are they merely technical issues or are they further? It seems extraordinary that, when there are these detailed powers and it is asserted that they are insufficient, no illustration can be given as to why they are necessary.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy) 5:45 pm, 20th January 2020

The noble and learned Lord raises a point that needs to be addressed head-on. The point is that we know that the existing powers whereby we can direct Welsh Ministers, or by using a Section 109 order, might well be inadequate for certain elements of the types of negotiations we anticipate. The problem we would have is that, if we place in the Bill all those aspects that we anticipate, we will run into some difficulty. They are primarily technical in nature, as might be expected in a negotiation of this complexity. The purpose of the powers is therefore to ensure the technical alignment of the various elements as we go forward to implement the Northern Ireland protocol. The ambition to do so will be done using the various instruments already available to us, including the Joint Ministerial Committee, which is primarily a method whereby we can examine the technicalities. The negotiations that will unfold will be technical and it might well be that out of that will emerge no elements in which we will need to invoke these powers—but, if we do need to do so, in areas where we anticipate that the current means to do so are not available, we would need to have these additional powers to move this matter forward.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Chair, EU Justice Sub-Committee, Chair, EU Justice Sub-Committee

I might be a slow learner, but, following the point made by the noble and learned Lord, Lord Thomas, I would like to know which specific points cannot be dealt with by a Section 109 order.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

I cannot give the noble and learned Lord the answer to that question, but I can give him the assurance, from speaking to my legal advisers, that in the negotiations that will unfold there will be areas that we think will be under discussion that might stand outside those areas I have touched on regarding Section 109 and the ability to direct Welsh Ministers.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

Before we finish this, I understand that the Minister cannot foresee all the issues that might arise, but what mechanism is there to ensure that, the moment something comes up that will clearly involve the specific competencies, responsibilities and regulations held by the Government of Wales, the Welsh Government will be involved from the outset—however much behind the scenes—and will have early warning that something might be coming down the road and that the Henry VIII powers might be used? The track record to date is not very reassuring.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

The noble Baroness is right to draw this to our attention. It is not the Government’s plan in any way to seek to surprise any of the devolved Administrations on these matters. It will be necessary, as matters arise from the negotiation’s focus on the Northern Ireland protocol that have an impact on Wales or Scotland, to ensure full dialogue with the Welsh, the Scots and the wider Northern Ireland community to ensure that they are fully aware of why these matters are necessary.

The structure that we have traditionally used is the Joint Ministerial Committee. As I said a few moments ago, our purpose is to ensure that the technical discussions are dealt with primarily at the level of technicians, to enable us to find the correct way to ensure we are in full conformity with our international obligations in good time within calendar year 2020. On that part, the Government will fully commit early and engage often on these matters to ensure there is neither a surprise nor a disappointment in these matters. Again, I stress that these are elements that will be required to deliver the Northern Ireland protocol itself. It will not be in any way an endeavour to try to reach beyond, into the current statutes within the Wales Act or the Scotland Act. That is not their purpose, and indeed they cannot do that.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Spokesperson (Cabinet Office), Shadow Deputy Leader of the House of Lords, Shadow Minister (Exiting the European Union), Shadow Minister (Business, Energy and Industrial Strategy) (Labour)

I thank the Minister, but he is struggling. I have three points to make.

First, this is political. The Minister knows jolly well that he should be making these amendments, and No. 10 is telling him that he cannot. He must have heard from across the House that there are serious concerns about two elements. One is regulation-making powers, and the other is this very important one concerning Wales in particular, as we have heard from the Welsh accents today. A Government who had not been told by No. 10 to make no changes would have made some changes, and I regret that the Minister finds himself in that position. His answers are, frankly, inadequate. He says that this is all going to happen in 2020, but if I am right—and I look to be reassured that I am—there is no sunset clause on these powers, so we are not just talking about this year. We are talking about powers going well into the future.

As the Minister has heard, there is deep concern in your Lordships’ House about the Henry VIII powers and the ability to amend an Act and bring matters such as criminal offences or setting up public bodies which otherwise could be done only by an Act of Parliament. We have heard concern from the noble Lords, Lord Tyler and Lord Howarth, and the noble and learned Baroness, Lady Butler-Sloss, who used the word “unacceptable.” She said that there are no curbs on these powers. The noble and learned Lord, Lord Judge, took us back to Magna Carta—before my time—and the importance of things such as taxation not being done by ministerial fiat; and that is what we are being asked to give here. That is one side of it. As the noble Lord, Lord Beith, said, keeping that boundary between what Parliament can do and what a Minister can do is key.

The second aspect is Wales. Maybe it is because the Minister is Minister for Northern Ireland and Scotland but not for Wales—or, he is indicating, for only a little bit of Wales—that he does not understand. He has the father of Welsh devolution here, the noble and learned Lord, Lord Morris. It is worth hearing about how it was implemented and about the trust, or lack of trust, at the moment. Here we are, a day before the Government ask Wales to give its legislative consent to this Bill, being told that the Government want to do things without the consent of Wales because of some spurious things that Section 109 does not go far enough on— although we have not heard examples—or because the international direction is not covered, even though the protocol is an international obligation. The most regrettable thing is that the Minister is saying, “Take me out: do this by a vote,” because he will not bring back an amendment at Third Reading. That is the sign of a closed mind. I regret that.

I am not, sadly, going to test the opinion of the House, but I leave the Minister with the words of warning from, I think, the noble and learned Lord, Lord Judge: test us on this, and we will vote down those affirmatives. That would be much more serious in the long term for the way government works, and I really do not advise that. But for the moment, I beg leave, with great sadness, to withdraw the amendment.

Amendment 3 withdrawn.

Amendments 4 and 5 not moved.