European Union (Withdrawal) Bill

Baroness Suttie Excerpts

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

Moved by

[Baroness Suttie]

91: Clause 7, at end insert—
“( ) modify the Northern Ireland Act 1998 without the consent of the Northern Ireland Assembly.”

[Baroness Suttie (LD)]

My Lords, in moving Amendment 91, I shall speak to Amendments 131 and 149 in my name. The noble and learned Lord, Lord Hope, has set out in great detail what his Amendments 90, 130 and 148 in this group seek to do, so I shall be extremely brief. My Amendments 91, 131 and 149 seek to achieve the same aims as those amendments but for Northern Ireland.

Sadly, despite several false dawns, well over a year has now passed since there was a functioning power-sharing Executive in place in Northern Ireland. This means that it is now well over a year since the formal mechanisms have been in place to ensure that the voice of the Northern Irish people is heard through the Executive and the Assembly. It should be recalled that the majority of people in Northern Ireland did not vote the same way in the referendum as the Government’s partners in the DUP. Whereas the Scottish and Welsh Governments have been able to make clear their very deep concerns about the EU (Withdrawal) Bill, there has been no joint position on matters relating to Brexit since the joint letter from Arlene Foster and Martin McGuinness back in August 2016.

If the Minister agrees with the proposition from the noble and learned Lord, Lord Hope, that it is inappropriate for regulations under Clauses 7, 8 and 9 to make changes to the Scotland Act 1998 or the Government of Wales Act 2006 without the consent of the Scottish Parliament and the Welsh Assembly, he must also agree that it would be inappropriate to make changes to the Northern Ireland Act 1998 without the consent of the Northern Irish Assembly. Does the Minister acknowledge the principle that Ministers in Westminster must not encroach on the devolution settlements without the consent of the appropriate devolved Parliament or Assembly? In previous debates, the noble Lord, Lord Duncan, has made much of “not ruling anything out”. There are elected Members in the Northern Ireland Assembly and in the continued absence of an Executive, is thought now being given to how these MLAs might be effectively involved in this process?

Finally, can the Minister say how the Government intend to deal with Northern Ireland in the context of the Bill, in the possible continued absence of an Executive and Assembly, how they would make the Bill fit for purpose were an Executive to be formed, and how they would ensure that the powers provided for in the Bill are appropriate for the very specific circumstances in Northern Ireland? I beg to move.

[Lord Adonis]

My Lords, the Minister unusually intervened at the beginning of the speech of the noble and learned Lord, Lord Hope, to say that he had some significant announcements to make in respect of Scotland and Wales and Clause 7. I assume he also meant Clause 8, but it was not clear. Given that this debate will be precisely on what the terms of Clauses 7 and 8 should be in respect of the devolution settlements, may I suggest that it would be fitting if the Minister made his announcements on the Government’s intentions now, and then noble Lords can respond afterwards? He has already told us that he intends to make such announcements and it would be ridiculous to have a big debate only for us to learn of the Government’s intentions after we have spoken.

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[Lord Tunnicliffe (Lab)]

I believe the amendment under debate is that of the noble Baroness, Lady Suttie.

[Baroness Suttie]

I thank the Minister for his characteristically detailed and courteous response. We look forward to examining these amendments in greater detail ahead of Report stage, when we will probably have many longer discussions about them. In the meantime, I beg leave to withdraw the amendment.

Amendment 91 (to Amendment 90) withdrawn.

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Moved by

[Baroness Suttie]

103: Clause 7, at end insert—
“( ) The consent of the Northern Ireland Ministers is required before any provision is made in regulations under this section so far as the provision would be within the devolved competence of the Northern Ireland Ministers within the meaning given to those words by paragraph 20 of Schedule 2.”

[Baroness Suttie]

My Lords, I will speak to Amendments 103 and 125, which are tabled in my name. I shall be extremely brief, because many of the arguments have already been rehearsed in the previous group of amendments. Again, these amendments raise issues of fundamental importance. Their aim is to amend the amendments in the name of the noble and learned Lord, Lord Hope, to include Northern Ireland.

The initial devolution settlement in Northern Ireland was carefully constructed and delicately balanced. The settlement gave the Assembly real power to make decisions in the best interests of the people of Northern Ireland. Since 1998, the powers have been enhanced, most notably with the transfer of policing and justice powers in 2010 to the Assembly, and with an Act going through this Parliament in 2015 to allow for the devolution of corporation tax to the Assembly at a future date.

Given the delicate and careful negotiations that took place over many years to reach the settlement, and the particular nature of identity politics in Northern Ireland, I hope the Minister agrees that it is only right that Northern Ireland Ministers—once there is, as we all hope, an Executive back in place—should have to give their consent to any move to make regulations under Clauses 7 and 8 which would encroach on the devolved competences of the Northern Ireland Assembly. I beg to move.

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[Lord Bourne of Aberystwyth]

I thank noble Lords who have participated in the debate on this group of amendments, particularly the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Suttie, for tabling their amendments. I will seek to deal with the substance and then very briefly pick up some of the points that were made in debate. Amendments 102, 124, 103 and 125 seek to place a requirement on UK Ministers to have the consent of devolved Ministers when using Clause 7(1)—I think that issue will not arise now but I am happy to discuss it further; however, I think we will have exhausted that by bringing proposals forward on Report—Clause 8 and Clause 9, where it is appropriate, in areas of devolved competence.

I stress that the concurrent powers in this Bill do not in any way undermine the devolution settlements. Rather, they give the UK Government and the devolved Administrations the tools required to respond to what is a shared challenge of ensuring the functioning of our statute book in a pragmatic and collaborative manner which reflects current practice, and I stress has been the norm for some time. I made this point on the last group of amendments and an example can be found in new Schedule 3A to the Government of Wales Act 2006, which lists no fewer than 34 laws containing concurrent functions for United Kingdom and Welsh Ministers, including powers to make subordinate legislation.

I also highlight Section 2(2) of the European Communities Act 1972 itself, which is concurrent and has routinely been used to make a single set of regulations to implement directives relating to devolved matters. Take, for example, the Marine Works (Environmental Impact Assessments) Regulations 2007—enacted, therefore, under the last Labour Government. If a deficiency arises within that statutory instrument and we all agree on the best way to correct it, it makes little sense for four Administrations to make four sets of regulations to make the same amendment. This is of course compounded by the volume of legislation that will be needed in this House and in the devolved legislatures to ensure the proper functioning of our laws after exit day.

Our approach in this Bill is to mirror that effect: to continue working collaboratively with devolved Administrations, which is certainly the norm, to ensure that our statute book is fully functioning on exit. This has not been a cause of conflict in the past—there have certainly been differences but they have been few and far between—and we do not believe that it should be a cause of conflict in the future. We cannot compromise the flexibility provided for by the concurrent power that allows us and the devolved Administrations to benefit from shared working. This is crucial for us to meet the considerable task that lies ahead in order to have a complete, functioning statute book on exit day. I remind noble Lords of the clear commitment the Government have made that we will not normally use the powers in this way without the agreement of the devolved Administrations. I am happy to restate that: it is there in black and white in the delegated powers memorandum and in written evidence to the Constitution Committee. It was stated in the other place and I have repeated it here today.

However, I take very serious note of what my noble and learned friend Lord Mackay suggested about the possibility of a memorandum of understanding. I shall take that away and look at it. Noble Lords have asked why such a commitment is not included in the Bill and I would be happy to look at this with them and to hear their views, taking seriously what my noble and learned friend has said. There can be no doubt about the commitment this Government have made to “normally” seek the agreement of the devolved Administrations on these matters. I hope that that offers some reassurance.

Let me pick up some points made by noble Lords during the debate, first thanking the noble and learned Lord, Lord Hope, for the constructive way he has introduced this set of amendments: I am very happy to talk about this further, ahead of research, as I have suggested. I also thank the noble Baroness, Lady Suttie, and quite understand her seeking the best interests of Northern Ireland, which must be treated in precisely the same way. As I have indicated, I am grateful to my noble and learned friend Lord Mackay of Clashfern for his suggestion about a memorandum of understanding, which I would like to take away and look at further.

The noble Lord, Lord Thomas of Gresford, made far-reaching points on Barnett. We certainly made some headway on that when I was in the Assembly—not because I was in the Assembly, but I remember some headway being made on it. That issue is of course still there but it is far beyond the Bill, let alone this amendment. He made a point, as did others, about the importance of trust, which I take very seriously. I thank the noble Baroness, Lady Finlay, very much; trust is important and we need to build it.

My noble friend Lord Deben is at his most deadly when he seeks to praise me. He was being so constructive that I am bound to agree with him, and I thank him very much for his kind comments. I know that he speaks with authority and understanding, particularly on Wales, and once again on the importance of trust. Again, I take the point made by the noble Lord, Lord Kerr, on the importance of that in our discussions. We can of course discuss this further. I thank the noble and learned Lord, Lord Wallace, for clarifying the point and I am sorry if I misrepresented him. It was certainly unintended so I take that point, too.

My noble friend Lord Forsyth made some serious points about the dangers of the unintended consequences of legislation. We have to be careful of that and I take his point but that said, there is the serious and important issue of building up trust, as my noble friend Lady McIntosh reminded us. She also reminded us of how we all have interests in different parts of the country; it is not as if we are talking about a union that does not mean something. When we all have relations, friends and interests in different parts of our country, we have a shared interest in getting this right.

On the suggestion about engaging made by the noble Lord, Lord Wigley, I am very happy between now and Report to meet with officials to see whether we might move in the direction of a memorandum of understanding. My noble and learned friend Lord Mackay, who has vast experience not just of Scottish issues but of legal issues, made a very valid point as to how we might achieve that. In the meantime, I ask the noble and learned Lord and the noble Baroness if they could perhaps withdraw their amendments.

[Baroness Suttie]

My Lords, I join in the general compliments to the Minister and thank him very much for his courteous and detailed replies this evening, and for his commitment to engage further with noble Lords before Report. We will no doubt return to many of these issues on Clause 11 in Committee, and again during Report. But in the meantime, I beg leave to withdraw my amendment.

Amendment 103 (to Amendment 102) withdrawn.

European Union (Withdrawal) Bill

Baroness Suttie Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Empey]

If the noble Lord is such an expert on the Belfast agreement, why is he not prepared to listen to somebody who lives there and was negotiating it? I can assure him that I have been used to dealing with fairly tough customers and I will have a say.

We are looking here at a problem which has been grossly exaggerated and at some risk, because we should concentrate on solutions. The best way to achieve that is for the parties to sit down together and negotiate.

I conclude where I started: with the comments made by Michel Barnier on Tuesday this week, where he said that he wanted the Prime Minister to reconsider a border up the Irish Sea for Northern Ireland. If that is his position when our Government go in to negotiate, the difficulty created by this amendment is that it would move the emphasis away from negotiating a settlement, removing one lever from the hands of the Government and placing it in the hands of those with whom we are negotiating. We should be united as a House in trying to get the right solution. It is a shame that we would be divided on something where the objective we all seek is the same. It is so unusual to get that—where two Governments and the European Union are all committed to the same thing. We are confusing the two arguments. This is a matter for detailed negotiation, as has happened before. There is no reason why it cannot be done. We can look for help. If we need unique solutions—we are good at those—let us have one; that is what a treaty could facilitate.

When the Minister replies, I hope that he will address some of those points and indicate that the United Kingdom Government are prepared to sit down to negotiate, to re-emphasise that and to reissue the invitation, which sadly has been refused so far. Let us remember also that we are dealing with politics. Ireland is on the verge of a general election at any point. Sinn Féin, which was always an anti-European party, has got on to the bandwagon and now pretends to be a great pro-European party. It could have huge influence on the Irish Government if an election takes place. We have all these moving plates, but we must keep our eye on the detail and on the long-term objective, which is the preservation of as free a border as it is possible to achieve and the preservation of the institutions that were passed by referendum on both sides of the border. They should be used as part of the solution and not become part of the problem.

[Baroness Suttie (LD)]

My Lords, well over two hours ago, this amendment was eloquently moved by the noble Lord, Lord Patten, so I want to make two brief points in response. The first point is about the Government’s own proposals to solve the issue of the border on the island of Ireland. They have produced no new detailed proposals since last August. Clearly, there is an ongoing, and perhaps heated, discussion taking place this afternoon at the Cabinet sub-committee which, for reasons of internal division, is unlikely to reach a conclusion. But at a certain point, the Government will have to take a position. Time is running out and they cannot keep kicking the can down the road.

The so-called technical solutions which many noble Lords have referred to are, at best, wishful thinking and almost certainly not viable for the time being. On the House of Lords EU Select Committee, we have heard numerous experts inform us that the required technology is, at best, five to seven years away. How can that work with the current timetable of December 2020? Does the Minister accept that the only alternative is to remain in some form of customs union?

Secondly, it is important to remember that the border issue is not just about economics, tariffs and trade. It is also about emotions and feelings. Many noble Lords, including my noble friend Lord Alderdice and so many others who have spoken this afternoon, played a vital role in installing the principles of the Good Friday/Belfast agreement, principles that have done so much to remove borders, both physical and psychological. Many people would see any checks, even if efficient and unobtrusive, as a step backwards. It is the principle and symbolism of the checks themselves that is the issue.

My noble friend Lord Alderdice raised some objections and concerns about the amendment. I believe that my noble friend Lord Campbell of Pittenweem explained that this is, perhaps, a misunderstanding of the amendment before us. The noble Lord, Lord Carlile, made a very firm and forceful point and I hope my noble friend Lord Alderdice may reconsider his position. The aim of the amendment is to put into the Bill the commitment that the Government themselves agreed in the joint declaration last December, so that the hard-won gains of the peace process are not reversed for future generations. That is why I urge all noble Lords to support this amendment.