Amendment 102

Part of Retained EU Law (Revocation and Reform) Bill - Committee (4th Day) – in the House of Lords at 7:15 pm on 6 March 2023.

Alert me about debates like this

Photo of Baroness Humphreys Baroness Humphreys Liberal Democrat Lords Spokesperson (Wales) 7:15, 6 March 2023

My Lords, I will speak to Amendments 103 and 106 in my name. My Amendment 103 is an amendment to Clause 12. It ensures that a legislative consent Motion must be passed by the relevant devolved legislature if a Minister of the Crown seeks to make regulations to restate secondary retained EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature.

Amendment 106 is an amendment to Clause 13. It has the same effect as Amendment 103 but refers to the restating of secondary assimilated law, and therefore is exercisable from only 1 January 2024. Both clauses are commented on in the report from the Delegated Powers and Regulatory Reform Committee, which was concerned about the way that they “inappropriately delegate legislative power”. It recommended that they should be removed from the Bill. The committee said that both clauses gave Ministers power to legislate and achieve effects that ought instead to belong to Parliament and be achieved in subject-specific primary legislation. My noble friend Lady Ludford will speak to Clauses 12 and 13 not standing part of the Bill.

Our debate on Amendment 58 last Thursday warranted far more time and attention than we gave it. We saw there that the UK Government appear ready to take over the powers of the devolved nations when they think that they can. I was particularly grateful to the noble Lord, Lord Collins of Highbury, who is in his place, for probing powers over sunsetting and what the noble and learned Lord, Lord Thomas of Cwmgiedd, referred to as the

“equality of treatment between the various Governments of the United Kingdom.”—[Official Report, 2/3/23; col. 467.]

I am sure that we will return to this issue at a later stage of the Bill.

With the UK Government’s attitude to the devolved legislatures in mind, the Delegated Powers and Regulatory Reform Committee’s very significant sentence in the report seems pertinent:

“The powers conferred by clause 12 are open-ended, there being no requirement for consultation, for criteria to be met or for pre-conditions to be satisfied.”

The committee was of course concerned about the powers of Ministers to legislate, to achieve effects that ought instead to belong to Parliament. The powers of the Senedd are implicit in this, and the belonging should also extend to them.

I want to make a few comments about consent, the Sewel convention, and the powers of the Senedd. I was part of the first intake of Members to the Welsh Assembly, as it was then, in 1999. I have watched its powers grow as a result of the votes of the people of Wales in referenda over the years. I welcomed the introduction of the Sewel convention and its assertion that the UK Government would not normally legislate in devolved areas without consent, to protect and defend the powers of Welsh Ministers and the Senedd itself. That welcome was tempered by a concern shared by many others about the definition of “normally”. Our concerns have been justified. Despite assurances from Ministers during the progress of the Bill, recent history has shown that reality is completely different. Over the last three years or so we have been faced with an increasing disregard for the powers of the devolved legislatures, and an attitude which borders on contempt for the legislative consent Motions.

It is now accepted that the Sewel convention is no longer working. Sadly, its operation is seen as the biggest constitutional issue facing Wales. The First Minister has called for the re-establishment of the way in which the convention was respected from 1999 to 2019 and has supported the intergovernmental agreement that will lead to “some work” being done on how the Sewel convention could be strengthened. As he said in his recent appearance before the Commons Welsh Affairs Committee,

“if you cannot repair the Sewel convention, then one of the major underpinning props of the devolution settlement has simply been kicked from under it.”

My amendments seek to provide in the Bill an additional prop that will put the devolved competence of the Welsh Ministers beyond doubt in this instance so that, if the UK Government wish to act to restate either secondary retained EU law or secondary assimilated law, where those regulations fall within the legislative competence of a devolved legislature they must seek the consent of the Senedd or another legislature through a legislative consent Motion.

House resumed. Committee to begin again not before 8.32 pm.