Amendment 3

Part of European Union (Withdrawal Agreement) Bill - Report (1st Day) – in the House of Lords at 5:00 pm on 20th January 2020.

Alert me about debates like this

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Judge 5:00 pm, 20th January 2020

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.