Lord Hope of Craighead:

Moved by Lord Hope of Craighead

17: Clause 7, page 5, line 25, at end insert—“(6A) The Scottish Ministers may by regulations make provision amending an enactment that is within devolved competence in consequence of the name of a thing being changed by subsection (1).(6B) The Welsh Ministers may by regulations make provision amending an enactment that is within devolved competence in consequence of the name of a thing being changed by subsection (1).(6C) A Northern Ireland department may by regulations make provision amending an enactment that is within devolved competence in consequence of the name of a thing being changed by subsection (1).”Member's explanatory statementThis amendment gives the Scottish and Welsh Ministers and a Northern Ireland Department a power, equivalent to the power of Ministers of the Crown in Clause 7(6), to amend legislation in consequence of the change in terminology from ‘retained EU law’ to ‘assimilated law’ made by Clause 7.

I am sorry; it falls to me to introduce this group—again.

This is about devolution. One of the concerns about the Bill as drafted is that it does not pay proper attention to the devolution settlements as regards Scotland, Wales and Northern Ireland, and to the key principle of respect and co-operation that underpins those settlements. I have several amendments in this group to which I wish to speak, as briefly as possible: Amendments 17, 35, 37, 39, 72A and 75.

Amendment 17 seeks to extend the regulation-making power under Clause 20 that is referred to in Clause 7 to Ministers in each of the three devolved Administrations. I seek clarification from the Minister as to whether this point is already met by government Amendments 57 to 60, which, among other things, extend the power in Clause 20 to make regulations to the devolved Authorities. If that is the case, I am very grateful and may not press this amendment.

Amendments 35, 37 and 39 seek to ensure that the consent of the relevant devolved legislatures is sought before a Minister of the Crown can make regulations under Clauses 13, 14 and 16 where the provisions fall within devolved competence. The principle that lies behind these amendments is very simple: respect and co-operation is key to the effective operation of the devolution settlements, and that is what these amendments seek to give effect to.

Amendment 75, to which Amendment 72A is related, seeks to apply the same principle to the powers given to a Minister of the Crown acting alone under Part 3 of Schedule 4. These powers should be exercised in devolved areas, only with the consent of Scottish or Welsh Ministers or a Northern Ireland department, as the case may be. These amendments are not intended to delay matters; they simply seek to obtain the proper respect for the devolved Administrations which is the essence of the devolved settlements.

I am open to correction; it may be that the government amendments meet what I am seeking. However, if they do not go far enough, I invite the Minister to give further thought to my amendments. I beg to move.

My Lords, I have added my name to Amendment 39, and I am most grateful to my noble and learned friend Lord Hope for the way in which he has introduced this group.

The problem, basically, is that Westminster seems to be trying to make laws that cover devolved matters, which cuts across the democratic mandate of devolved Ministers and legislatures. The consent process has to be in the Bill, and I can see that Amendment 75 would be speedier than Amendment 39, to which I have put my name. I very much hope that the Government will be able to tell us that they accept Amendment 75 or that their amendments will do exactly what that amendment states, as that will be a faster process, from Minister to Minister, rather than having to go through the whole process of debate. However, I do not think that agreements behind the scenes and reassurances that this will be sorted out later will be adequate.

Now that there is no sunsetting at the end of the Bill, we do not have a time constraint on gaining consent, so I hope the Government will not say that this will impose a time limit, because it would be possible to have a very fast turnaround through Minister-to-Minister communication for an individual SI that affects devolved law. In summary, I hope that the Government will accept Amendment 75. I do not necessarily expect that they will accept Amendment 39, but if they do not do anything in this area, it threatens the whole constitutional arrangement of the UK as it now stands.

My Lords, I speak to Amendments 41 and 46 in my name. These amendments would ensure that a substantial policy change in human rights, equality and environmental protection in Northern Ireland may not be effected by the exercise of delegated powers. Given the ongoing lack of a functioning Executive and sitting Assembly, this raises serious concerns about the implementation of the Bill in Northern Ireland, and the amendments in my name would add a helpful safeguard in these challenging circumstances. Therefore, to be brief, I ask the Minister to give careful consideration to, and accept, the amendments as a means of ensuring that the devolution settlement in Northern Ireland is protected and that issues of equality and human rights and environmental considerations are all protected, as required under the Good Friday agreement.

My Lords, I shall speak briefly to amendments in this group tabled by the noble and learned Lord, Lord Hope of Craighead, to which I have added my name, and I thank him for introducing the amendments so clearly and comprehensively.

I am grateful to the noble Lord the Minister—or perhaps to the noble Baroness, Lady Neville-Rolfe—for the concessions the Government have brought to Report. The Bill is in a better state than when we first debated it at Second Reading, and many of the House’s concerns have been addressed, but there remain some significant issues pertaining to the Bill on which I hope that the Minister will look favourably.

The amendments deal with obtaining the consent of the devolved legislatures to the making of regulations that fall within their devolved competence, and equivalence of powers for Ministers where the provisions of regulations again fall within the devolved competence of the legislatures. It is clear that these amendments do not seek additional powers for the devolved legislatures; they merely secure those powers that the legislatures already have—powers devolved to them by this Parliament but which the Bill ignores or chooses to overlook.

One of my main concerns about the Bill in its original form was that it usurped the powers of this Parliament and those of the devolved legislatures, and this view was echoed across the House. In Committee, I was heartened to hear strong and powerful speeches from those on Benches across the House in support of the devolved Administrations and legislatures, and I thank those who spoke for their support.

The noble Baroness, Lady McIntosh of Pickering, reflected my view when she said—and I hope my précis of her comments does her justice—that she might not necessarily support a political party in power in a devolved legislature, but that her focus and support was on the legislature itself. I think that reflects the view of many in this House, and certainly those on these Benches.

In his letter to us, the Minister said that he had listened to the House and, in fairness, he has—to an extent. I hope he is still in listening mode and, as I said earlier, will be able to look favourably on these amendments.

Finally, as this will be my last contribution in debates on the Bill, I express my gratitude to the noble and learned Lord, Lord Hope of Craighead, for the part he has played in its progress and improvement. His leadership, knowledge of constitutional and devolved matters, forensic legal analysis of the Bill, and tenacity have made a massive contribution and have led us to where we are today. We have an improved Bill, and it can be improved further by the Minister accepting the noble and learned Lord’s amendments. In the event of him wishing to press any of them to a vote, he will have the support of these Benches.

My Lords, not having taken part in earlier stages, I will say no more than a sentence to thank the noble and learned Lord, Lord Hope, for proposing this amendment and to agree with the previous speakers about devolved powers.

My Lords, I too thank the noble and learned Lord, Lord Hope of Craighead, the noble Baroness, Lady Ritchie of Downpatrick, and other noble Lords who have contributed to this debate, to all the extensive and useful debates we had in Committee, and—this is important—for the useful engagement that has taken place on the devolutionary aspects of the Bill.

The Government have listened carefully to the concerns raised both in the debates in Parliament and by the devolved Governments and have tabled the government amendments in this group in response. Amendments 52 and 53 extend the power to make consequential provision under Clause 20 for the devolved authorities. Amendment 58 extends the power to make transitional, transitory and savings provisions under Clause 23 to the devolved authorities. These amendments will make the consequential power and the power to make transitional, transitory and savings provisions concurrent powers. This will enable UK Ministers and the devolved Governments—or both acting jointly—to exercise the powers in devolved areas.

The remaining government amendments, Amendments 54, 55, 56, 57, 59, 60, 65, 66, 67, 70, 71, 72 and 77, are consequential. They will remove the requirement for the devolved Governments to request the UK Government to make such changes on their behalf. Furthermore, these amendments will align these powers with the other powers in the Bill, which are also conferred concurrently on the devolved Governments.

I hope that noble Lords will agree that this is a meaningful change to the Bill that demonstrates the UK Government’s commitment to working collaboratively with the devolved Governments—which we talked about in Committee—and ensuring that the Bill works for all parts of the UK. Amendment 71 is a further technical amendment that I think everybody is happy with.

Amendment 17, tabled by the noble and learned Lord, Lord Hope of Craighead, is to Clause 7. As we have now extended the power to make consequential provision under Clause 20 on devolved authorities, he is right that it is no longer necessary.

I turn to Amendments 35, 37, 39 and 75, which relate to powers under Clauses 13, 14 and 16 and Schedule 4. Amendment 35 requires that the power to restate REUL cannot be used to restate it in areas of devolved competence unless the relevant parliament has provided legislative consent for the retained EU law to be restated. Amendments 37 and 39 place similar requirements on the power to restate under Clause 14, and on the powers to revoke or replace under Clause 16.

In essence, these amendments would carve out regulation within areas of devolved competence in the absence of legislative consent. As has been said, Amendment 75 similarly seeks to impose a requirement for a Minister of the Crown to seek legislative consent when using the powers on legislation within areas of devolved legislative competence. These amendments are unnecessary. The UK Government are committed to ensuring that the provisions in the Bill, including its powers, are consistent with the devolution settlements and work for all parts of the UK. Indeed, the majority of the powers in the Bill are conferred concurrently on the devolved Governments, which will enable them to make active decisions regarding their retained EU law.

It is not necessary to limit the use of the powers within areas of devolved legislative competence by requiring UK Ministers to obtain legislative consent. Rest assured, the concurrent nature of the powers is not intended to affect the devolution settlements, nor to influence decision-making in devolved Governments. Rather, it is intended to reduce additional resource pressure on the devolved Governments by enabling the UK Government to legislate on behalf of a devolved Government where they do not intend to take a different position.

Let me move on and address Amendments 41 and 46, eloquently spoken to by the noble Baroness, Lady Ritchie of Downpatrick. Her amendments would restrict the exercise of the powers to revoke or replace and the power to update. They require that any replacement instruments could not effect substantial policy change relating to human rights, equality or environmental protection that has effect in Northern Ireland. The Government intend to maintain the UK’s leading role in the promotion and protection of human rights, equality, the rule of law and environmental protections. We are proud of our long and diverse history of freedoms. The Government do not intend to undermine our hard-won human rights, equality and environmental legislation through the exercise of these powers. I should perhaps add that we are committed to ensuring the UK’s compliance with our international obligations, such as our human rights obligations. I therefore do not judge that the proposed restrictions to this clause are necessary.

Amendment 61 in the name of the noble and learned Lord, Lord Hope of Craighead, is no longer necessary in the light of the amendments that the Government have tabled in relation to Clause 23.

Finally, I turn to the noble and learned Lord’s latest amendment, Amendment 72A. It relates to Amendment 76, which we discussed in the previous grouping and which seeks to insert a new paragraph in Schedule 4 to the Bill. As Amendment 76 has fallen away, this amendment is now redundant.

Let me say that we have come a long way on this part of the Bill, as has been acknowledged on all sides. For all the reasons I have outlined, I ask that these amendments be withdrawn or not pressed.

My Lords, I am grateful to all noble Lords who spoke in this debate; I am particularly grateful to the noble Baroness, Lady Humphreys, for her very kind words.

I listened carefully to what the Minister said. I am grateful for her assurance that Amendment 17 is not required; that was my impression, so it is nice to have confirmation of that from her.

As far as the other amendments are concerned, I take the point that increasing pressure on resources is something that we should try to avoid. I see the value of joint working, which is really what the Minister described to us in her reply. I recognise that the Government have gone a long way in their amendments in this group, for which I am extremely grateful; I am sure that all others who care about devolution would say the same.

I will not press the amendments, but I hope that the message is still powerfully in the mind of the Government that continued co-operation and easing of the pressures round about to achieve a consensus across the board is the way to proceed if we possibly can. I think that the signs behind the scenes are that that can be achieved. I am grateful for that. For that reason, I beg leave to withdraw my amendment.

Amendment 17 withdrawn.

Clause 8: Role of courts