European Union (Withdrawal) Bill

Lord Empey Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Empey (UUP)]

My Lords, before we whip ourselves into a lather of outrage at the prospect of doing something without the consent of the devolved Administrations, perhaps I may remind the House that we have a short memory. The devolution settlement in Northern Ireland represented by the 1998 Act was butchered—a term I used some weeks ago—by this Parliament without a by your leave, without the consent of the Northern Ireland Assembly and without the consent of the parties that negotiated the agreement. That was done in the Northern Ireland (St Andrews Agreement) Act 2006, where dramatic changes were made to the methods we had negotiated with the noble Lord, Lord Trimble, and others over many years. So this Parliament can do what it likes, when it likes. That is the nature of having a devolved institution versus a sovereign Parliament. There is a hierarchy.

The Good Friday agreement, for which the noble Lord, Lord Judd—who is not in his place—and others indicated strong support, which I welcome, was dramatically changed without a by your leave. It was done as a result of a back-stairs deal and this Parliament implemented it. There was no requirement for the Northern Ireland Assembly to agree—it was just done. So let us look back at the actions that have already been taken.

In these challenging circumstances, and from what was said by the noble and learned Lord, Lord Hope of Craighead, among others, in his forensic examination of the amendments that he introduced, I understand that there is genuine reason to be concerned. But we have to keep this in proportion. When powers are repatriated to the United Kingdom, the European Union deals with the member state—that is the way in which it works—so the only place it can come to is the member state. The question then is: what happens when it gets there? That is of significant concern to Members. But I am not as concerned as some because I believe that it is perfectly possible to arrive at an appropriate accommodation.

The word “balance” has been used, and that is an important point. But let us look at legislative consent. I have to say to noble Lords that we have got to be extremely careful about what we are doing here. If there is a Northern Ireland Assembly, do we know what legislative consent means? It means that Sinn Fein will decide whether there is legislative consent. If we build that into an Act of this Parliament dealing with such an important matter as the consequences of the EU decision, we will be handing a veto to that single party. Under our devolution settlement, it will be about Sinn Fein’s consent as a party. Whether it has a majority or a minority in the Assembly is irrelevant; it has sufficient power to block consent. What are we doing in considering that?

[Lord Hope of Craighead]

I am most grateful to the noble Lord. In Clause 7(7), which deals with Northern Ireland, there is no mention of the need for consent at all. It states simply that the power to amend or repeal the Northern Ireland Act by statutory instrument is excluded. I can see the sense in that. Does the noble Lord agree that that is a sensible way of dealing with the matter, and that perhaps the same provision should be made for Scotland and Wales?

[Lord Empey]

I think that we have to be careful because this is complicated. It is obvious that the devolution settlements are not uniform; they are at different levels. My concern with the whole point of having consent is that, while it is obviously highly desirable to have it, although we are talking about the institutions, in practice we are talking about the people who at any point in time are controlling those institutions. In our particular case, there is a veto. I take the point made by the noble and learned Lord, but in the Scottish case a similar situation arises because there is a political party which has a particular objective in mind. It is not simply about the institutions but about those who are controlling them at a point in time when these matters come forward. In fact the noble and learned Lord, Lord Morris, said in his passionate contribution—I know that he is a lifelong devolutionary —that devolution, once granted, cannot be taken away. That is a contradiction in terms, because by definition devolution is something that is given—and of course our experience is that what has been given can be taken away. That is the danger in all of this.

Obviously we are waiting to see what the Government’s proposals will be. I do not believe that what the Minister indicated at the start of this debate will be the only contribution they will be making on these clauses, because it is clear that other matters need to be dealt with in Clauses 8 and 9, and I am sure that we will hear more from the Government. But I would urge colleagues to be careful about what this may mean in practice—because it is not as straightforward as it seems.

[Lord Adonis]

We will be debating Northern Ireland at greater length later. The Minister said in response to my noble friend Lord Judd that the Government would be bringing forward on Report amendments in respect of the Good Friday agreement—or at least that is what I took him to be saying; no doubt he will clarify his remarks when he rises to speak. Will he tell the Committee more about what those amendments will contain?

[Lord Wallace of Tankerness (LD)]

My Lords, I speak in support of the amendments tabled by the noble and learned Lord, Lord Hope of Craighead, to which I have added my name. I shall try to confine myself to the actual amendments to Clauses 7, 8 and 9. Like the noble Baroness, Lady McIntosh of Pickering, I have not yet had an opportunity to see the amendments to Clause 11 which were laid today, but I suspect that we will consider them in great detail before we come to debate them in Committee next week. Suffice it to say that it is helpful that some information has been forthcoming. I may not necessarily agree with it all but it will shed a helpful light by giving us an indication of the frameworks where the UK Government at least think that there should be a United Kingdom dimension, and hopefully some polish from outside stakeholders may help to inform our discussions when we come to them.

On the amendments moved by the noble and learned Lord, Lord Hope, to Clauses 7, 8 and 9, I shall certainly consider with care what the Minister said at the outset of the debate and then again in response to the noble Lord, Lord Adonis. I thought that perhaps he went slightly further when he responded to the noble Lord, but I shall read carefully what he has said just to see whether this particular part concession has substance. That is because, as the noble and learned Lord, Lord Hope, pointed out, the position with regard to Northern Ireland in Clause 7(7) is not absolute. There are qualifications to it and it will be interesting to see whether there are similar qualifications with regard to Scotland and Wales.

The noble and learned Lord, Lord Hope, also intervened on the noble Lord, Lord Empey, and said that the difference between what is there as regards Northern Ireland in Clause 7(7) as it stands and what we have proposed in our amendment is that Clause 7(7) does not make any provision for the consent of the relevant Scottish, Welsh—or in the case of my noble friend’s amendment—or Northern Irish devolved Assemblies or Parliaments. I do not know enough, and I know that it is dangerous to go into Northern Ireland politics without deep knowledge. However, I will say why our amendment, which gives the opportunity for consent, would be preferable, certainly with regard to Scotland and Wales. Ministers talk generally, and one of the concerns we have is with the breadth of the powers given to Ministers under these clauses, but we do not know whether there might be a genuine cause or reason for an amendment to be made to these founding pieces of legislation. It would therefore be helpful if there was a provision for consent so that it is not done unilaterally.

It might also be helpful looking forward. The noble and learned Lord, Lord Hope, mentioned distrust. That cuts two ways. There is distrust among the Scottish and Welsh Governments as to what United Kingdom Ministers might get up to in using these very broad powers, and there is distrust—I can speak only for Scotland—among UK Ministers that the Scottish Government might well seek to veto something that they might otherwise think is perfectly reasonable. That is holding back quite a lot of the development of a pragmatic and reasonable solution to a lot of these issues. It might be that there will be something akin to the so-called Edinburgh agreement, which paved the way for the amendments to the Scotland Act that allowed the EU and independence referendums to take place, so that we can get some understanding between the Governments that consent would not unreasonably be withheld where a compelling case could be made for it.

The problem we have at the moment is that there is no scope for that at all. It is imposition. It could be a unilateral imposition in a change to the Scotland Act or the government of Wales Acts without any form of consultation or consent at all. As the noble and learned Lord pointed out, Clause 8, certainly in terms of Scotland, and Schedule 5 allow some limited powers for the Scottish Parliament relating to international obligations. Again, we think some provision should be made in Clause 9 for putting a brake on any amendment to, or modification of, the Scotland Act or the Government of Wales Act unless there is the consent of the Scottish Parliament or the Welsh Assembly.

[Lord Empey]

Will the noble and learned Lord elaborate on his suggestion for how a middle way could be established? We would all want to see consent if that is achievable, but the problem is that it is very difficult to design a situation in the legislation to say we will seek consent but we do not really need it. The second problem that we have in Northern Ireland is the absence of the Assembly. That creates an even more dramatic situation.

[Lord Wallace of Tankerness]

My Lords, taking that second point, as I indicated earlier, the absence of the Northern Ireland Assembly raises far more questions than those specific to these amendments. My noble friend Lady Suttie touched on that when she moved her amendment. It goes far further than these particular amendments.

I will say more about consent. If it is, in fact, fear that consent will be unreasonably withheld, surely it is not beyond the wit of those negotiating to come up with some kind of agreement that the various parties can sign up to, indicating that that consent would not be unreasonably withheld. I accept that the downside is that they could go back on their agreement. There would be a political consequence to that. Ultimately, we are dealing with issues that have a practical effect on people’s livelihoods and businesses. It is far more important to get some practical solution based on good faith, if it can be restored, rather than standing in corners, not wishing to engage.

If the Government accepted these amendments it might well be a step forward to trying to establish some of that atmosphere where trust can be created. What we currently have would not, as has already been said, trigger a legislative consent Motion in circumstances where, if it was primary legislation, it would have a legislative consent Motion.