European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

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

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we are dealing here with truly technical amendments to ensure that the provisions of the Bill deliver the intended policy. They achieve two things. The first is to clarify how the requirement for regulations made by devolved Ministers under Schedule 2 to be within devolved competence interacts with the principle of severance applied by the courts.

The normal practice would be that when a Minister makes regulations that include, for instance, 10 different provisions, should one of those provisions be outwith the scope of the power, the courts would not strike down the regulations as a whole, they would simply sever the offending provision and allow the remaining nine provisions to stand as law. Some concerns were raised that the requirements in the Bill might imply that this standard practice should not occur. The amendments therefore make it clear that when a provision is outside devolved competence, only that provision would be ultra vires and not the whole instrument in which the provision is included.

The second purpose of the amendments is to allow for a devolved Minister and a UK Minister acting jointly to make provision that would not be in the competence of the devolved Minister acting alone. It has always been the Government’s intention that the Schedule 2 powers can be exercised jointly to allow us to work together in areas where we may need to make the same or related changes to retained EU law and so that, where appropriate, those changes can be subject to formal scrutiny and approval in both this Parliament and the relevant devolved legislature.

We believe it is right that, for instance, where a UK Minister and a Welsh Minister jointly make regulations in relation to a matter that concerns the England/Wales border, those regulations can include both the provision for England and the provision for Wales, even though it would not be within the Welsh Minister’s competence to make the provision in relation to England if they were acting alone.

We will also be bringing forward at Third Reading a number of further drafting changes to permit combinations of instruments beyond what is normally possible, reflecting the level of joint working that will be needed in relation to these powers. I will be speaking to the Government’s Clause 11 amendments shortly, when we reach the group beginning Amendment 89DA. I am sure noble Lords will appreciate that we have a number of further groups to get through on other parts of the devolution provisions before we reach that debate. The amendments provide what I hope to be welcome legal clarity. They reflect standard practice and the mechanisms for good, collaborative joint working between the Administrations. I beg to move.

[Lord Wallace of Tankerness (LD)]

My Lords, I am grateful to the noble and learned Lord for his explanation of these technical amendments. Can he say whether there is agreement among the devolved Administrations and the UK Government on these amendments?

[Lord Griffiths of Burry Port (Lab)]

My Lords, at last we have reached this stage, although I find it a little off-putting that we are coming to consequential, technical matters before we look at the meaty issue; but that will come, as was said.

I would like to pay the respects of those on our Benches to the serious way in which the Government have contributed through the joint ministerial group to the success of the proposals, and thank them for bringing them to us now. I would also like to thank Mark Drakeford from the Welsh Government and Mike Russell from the Scottish Government for the part they played, even if the latter has thus far been unable formally to sign up to the inter-governmental process. As the Minister said, we are going to discuss Clause 11 and neither of us can wait for that. It is coming in more detail later this evening. However, we on these Benches recognise and appreciate the progress that has been made. We have come a long way since the Bill was published and it is against that backdrop that this and subsequent groups of amendments should be considered.

The Labour Party has always been the party of devolution. While we will be watching the Government’s treatment of the devolved Administrations very closely throughout the Brexit process—that is our job—we recognise the genuine progress that has been made and welcome the amendments in this group. They allow United Kingdom and devolved Ministers jointly to exercise powers in Schedule 2 in order to make provisions that could not be made by a devolved Minister acting alone. This clarifies the use of so-called composite instruments, as the Minister said, and we hope paves the way for collaborative working between the devolved Administrations and the UK Government.

Other amendments in the group improve the position regarding ultra vires provision within instruments made under Schedule 2. I believe that the devolved Administrations previously raised concerns with the Government as to whether the courts would permit those parts of an instrument that were within competence to remain law. We are glad that Ministers and officials have responded positively to the appeals from the devolved bodies and that the amendments provide greater clarity for all involved. The group amounts to just one piece in the jigsaw puzzle. I usually start my jigsaws with the edge pieces. This looks like putting a piece in the middle and working around it in due course. It is a piece that these Benches are happy to support.

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Tabled by

[Lord Wallace of Tankerness]

89: Schedule 2, page 17, line 35, at end insert—
“( ) No regulations may be made under this Part after the end of the period of two years beginning with exit day.”

[Lord Wallace of Tankerness]

My Lords, since submitting this amendment, I note that Clause 7(8) covers the point and therefore I do not wish to move it.

A89 not moved.

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It would be a great help if the Minister could say, if he is able, that we are dealing with a one-off, special situation that lies outside the structure of those sections, and that for that reason he is taking the line that it is a type A and not a type C case. Perhaps he could give an assurance that if we are dealing with something that is precisely covered by Section 30 and the other sections I have mentioned, the system laid down by the Scotland Act 1998 will be adhered to. An assurance of that kind will, I hope, give some comfort to those on the other side of the discussion and reassure them that they are talking about a special situation, which need not in any way cast doubt on the future relationship between the devolved system and the Westminster Government when we come to other debates on how the systems that were set up by the 1998 Act might be modified. Against that background, which I hope has set the scene sufficiently, I beg to move.

[Lord Wallace of Tankerness]

My Lords, I will return to the points on the amendment moved by the noble and learned Lord, Lord Hope of Craighead, but first I endorse what has been said by everyone who has contributed to this debate so far—the noble and learned Lord, Lord Keen, the noble Lord, Lord Griffiths, and the noble and learned Lord, Lord Hope—in expressing gratitude, if that is the right word, to those who have laboured hard to try to move forward and get an agreement on the kind of structure we need for when EU law is, as it were, repatriated. I think there is common ground that the original Clause 11 proposals were not fit for purpose; that has been said on many occasions, and I will not rehearse all the arguments for that now. It is to the credit of the Government that they recognise that and have sought to address it —unfortunately, some valuable time was lost, but nevertheless they have done that in a constructive way. Indeed, I am grateful to both Mark Drakeford of the Welsh Government and Mike Russell of the Scottish Government for their efforts. What has been brought before us represents a considerable advance with much better arrangements for dealing with retained EU law after exit day. It is regrettable that the Scottish Government did not feel able to sign up, notwithstanding the considerable advances that had been made. One or two people have speculated that, if one is not satisfied with what the Government are doing, there may be an argument for voting it down. I pointed out that if you did that, we would be left with Clause 11, which no one seems to think we should give any house room to any longer. However, the progress made is welcome.

I listened carefully to what the noble and learned Lord, Lord Hope of Craighead, said when he moved his amendment. I have been trying to work through it, because something about it was not quite right. It may be just my approach. He quite rightly drew attention to the fact that the “type A” Order in Council procedure is deployed when changes are to be made in the competence of the Scottish Parliament and Scottish Ministers, and specifically where there is a change to Schedule 5, which defines what is reserved, and to the restrictions which are currently set out in Schedule 4. Where I possibly have a difficulty is that of course these are not the only two restrictions; the noble and learned Lord himself pointed out that EU law, and for that matter the European Convention on Human Rights, is another restriction, as indeed is territoriality. As he acknowledged, we are dealing with a situation that was never foreseen when the Scotland Act was being drafted and taken through both Houses back in 1998, and that is a situation where, potentially, the restriction on the legislative competence of the Scottish Parliament —namely, that it must abide by European Union law —will fly off, and we will be in what might be described as a sui generis situation. The question is whether the procedure which is for modification of Schedule 4 or 5 is appropriate for this one-off situation.

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[The Duke of Montrose (Con)]

My Lords, there is a provision in Section 29 of the Scotland Act that covers the thing that worries the noble and learned Lord. Section 29(2)(a) provides that it is outside the competence of the Scottish Government to apply,

“part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland”.

So this raises a great problem in the area he is talking about.

[Lord Wallace of Tankerness]

My Lords, if an Act of Parliament gives the Scottish Parliament power to say no and refuse its consent, what I am asking is whether that affects what might happen in other parts of the United Kingdom, so that you would not be able to get the common UK framework which people might otherwise think is necessary and desirable to be able to sustain a single market within these islands. At the moment, we have to some extent a form of competence at a different level—the European level—which is being brought back down to the United Kingdom. I ask these questions because it possibly means that there is a difference between the procedure which has been used if you wish to modify Schedule 5 or change Schedule 4 and one where we are returning the laws which hitherto have been subject to the European Union.

The amendments in my name, which I know are supported by my noble friend Lord Thomas of Gresford, are Amendment 89DAF in respect of Scotland, Amendment 89DAJ in respect of Wales and Amendment 89 DAK in respect of Northern Ireland. These amendments would, as the noble and learned Lord, Lord Keen, indicated, change the sunset—although it is not really a sunset in this respect—overall from seven years to five years, and they do that by changing the period during which the frameworks must be established from five years to three years. I did not seek to change the two-year period during which these orders have to be made, because that is consistent with other provisions in the Bill.

If my understanding of the situation is correct, if an order is not made that would identify the area for a framework and freeze, the power would automatically flow back to, let us say in this case, Edinburgh. Is it therefore to be expected that all these orders will be made, identifying the areas for freezing to establish common frameworks by the time we leave the European Union? Otherwise, it might appear that, within a period of days, weeks or months between our leaving the European Union and the order being made, there could be divergence between the different parts of the United Kingdom. After the order is made, I suggest that there should be a three-year period for the frameworks to be established rather than a five-year period.

I welcome the fact that time limits have been put in at all—that was a step forward, and the Government have obviously been listening on that. But I have not heard why it should be five years rather than three. That figure may have been plucked out of the air. The noble Lord, Lord Foulkes, is not in his place, but he did have an amendment in Committee in which five was suggested. It may be that that commended itself to the Government because it came from the noble Lord, Lord Foulkes. I would like to hear a rationale as to why five years is to be preferred to three. The noble and learned Lord said that they had agreement from the Welsh Government on this. It would be interesting to hear the Minister’s views on whether the Welsh Government thought that a shorter period of time would be ideal but they were prepared to accept this.

No one disputes the amount of work to be done but we are potentially in a Parkinson’s law situation, where work expands to fill the time available for its completion. If we say five years, it could take up to five years; if we say three years, it would focus the mind and we could possibly do it in three. That is not least because we are dealing with dynamic issues, and if we are to freeze retained EU law in areas where there might be need to update the law—I assume that in these circumstances we would seek to do so by agreement—three years would allow progress to be made faster.

Also in this group is Amendment 90, which again provides a sunset. However, I think it is superseded by what we are debating and so I will not seek to press it. But it is important that the Government give us a rationale as to why they have chosen this period of time.

On a very specific point, Amendment 92AD—on page 19 of the Marshalled List—talks about the reporting that is to be made by Ministers to Parliament:

“After the end of each reporting period, a Minister of the Crown must lay before each House of Parliament a report which … (b) explains how principles … (i) agreed between Her Majesty’s Government and any of the appropriate authorities, and (ii) relating to implementing any arrangements which are to replace any relevant powers or retained EU law restrictions, have been taken into account”.

I rather suspect that these are the principles that were agreed at the Joint Ministerial Committee back in October or November, which have certainly been discussed before. However, it is slightly odd to have reference to “principles” which, as far as I can see, will not actually appear in the Bill. Because we have debated this often enough, we perhaps know what the principles are, or at least know where they can be found, but to anyone coming to this fresh it would not necessarily indicate where these principles are. Will the Minister confirm that these are the principles that are being referred to—the ones agreed at the Joint Ministerial Committee—and explain whether there is any reason that they should not be added as an annexe to the Bill?

In conclusion, the noble and learned Lord, Lord Hope, quoted a letter from the First Minister, which was very measured in its terms—slightly more measured than her writings in last week’s Sunday Herald, in which she said that the Tories would “completely demolish” Scottish devolution. I immediately thought of the many debates we had during the passage of the Scotland Act 2016, in which the Conservative Government extended devolution to cover almost all of income tax and a substantial amount of social security. This could be a very cunning plan, if they assume that the Scottish Government will—I was going to say “screw it up”, but I am not sure whether that is parliamentary—act in such a way that it would end devolution, but I do not think that that was the plan. This Government have shown a very strong commitment—and I say this from the opposition Benches—through the number of things that they have devolved to the Scottish Parliament. Take one example from the 24:

“EU regulations on the classification, labelling and packaging of substances and mixtures (CLP); the placing on the market and use of biocidal products (e.g. rodenticides); the export and import of hazardous chemicals; the registration, evaluation, authorisation and restriction of chemicals (REACH); and plant protection products (e.g. pesticides)”.


I cannot honestly believe that trying to establish a common framework on that somehow undermines devolution, given that the Government transferred, almost entirely, income tax to the Scottish Parliament. It is a degree of hype that does not serve the debate well.

I rather hope that, as we go forward, we can recognise that what we are trying to do is seek a position so that, when we are no longer part of the European Union, we can in many important areas where it is thought necessary—indeed, the Scottish Government have accepted that in some areas it is necessary—establish a common framework throughout the United Kingdom. There will be further arguments as to the content of these frameworks, but for the moment we need to identify what they are. I would welcome a response to the points that I have made.

[Lord Wigley (PC)]

My Lords, in addressing Amendment 89DA, I will, as did the Minister, cover the broader ground contained in the amendments in the group. Some of my misgivings with the new proposed settlement dealt with in this group will arise in later amendments, 91 and 92, which for some reason have not been coupled with these.

While I welcome the progress that was made in the joint discussions on resolving some of the difficulties between Westminster and the devolved Governments—a welcome that has been expressed by both Mike Russell of the Scottish Government and Mark Drakeford, Wales’ Brexit Minister—I am acutely aware that not all the difficulties were resolved, and I beg the indulgence of the House for a few minutes in setting these issues in their context. I realise that some of my points may seem to be Second Reading ones, but in these amendments—there are 21 in this group alone—we have matters before us which were not in the Bill at Second Reading. I noted in particular the Minister’s invitation in his speech for us to contribute positive ideas in this context.

The adjustments before us tonight are in the context of what many people in Cardiff and Edinburgh, across party lines, regarded as a power grab—to use the term that was used then—by Westminster, in taking unto themselves powers returning from Brussels, including powers in what had previously been regarded as devolved functions such as agriculture. The fact that the Labour Government in Cardiff held out so long before agreeing reflected that fear; as did the fact that members of all parties in the Assembly—including initially Tory and UKIP AMs—supported having a continuity Bill to withstand that perceived power grab. The recent debate in Edinburgh reflected similar cross-party support for its continuity Bill. Rather than just scream “power grab” and hurl abuse at those we see as the authors of our difficulties, I will try to put forward what I see as a considered case and implore, even at this late stage in the Bill’s passage, that noble Lords appreciate the complexity of these issues—some of which have already emerged tonight—and rise to the challenge of finding a positive way forward, if not in this Bill then in some parallel or future legislation.

There have been calls from all sides for greater mutual respect in this process—for a mutuality that is not reflected by one side having a veto but other partners being denied that facility. The difficulty, repeated time after time by those involved in the recent negotiations over several months, is that there seems to be a basic lack of trust between Westminster and the devolved regimes. That is not so much a personal lack of trust but rather a lack of trust in the respective institutions.

Part of the lack of trust felt in Wales arises, perhaps, from different social values and from historic experience. There has been a growing lack of trust in Wales during my lifetime, emanating from difficult issues such as the Tryweryn Valley flooding in the 1960s, the S4C debacle of 1980 and, more recently, the Barnett formula. Devolution was meant to help avoid at least some such difficulties, but power devolved is power retained—a truism of which we have become acutely aware in these recent experiences. The underlying issues, which recent difficulties in the context of Brexit have highlighted, are not going to go away. They will continue to plague us until a proper constitutional settlement is reached. I suggest that the sunset clauses define a timescale within which this has to be sorted out.

In the wake of Brexit, the sorts of issues that will arise, and which will strain our constitutional settlement, perhaps to breaking point, include for Wales state aid for threatened industries like steel, the establishment in place of the CAP of a viable sheep-meat regime, and an acceptance that procurement rules can be used to ensure maximum community benefit from public expenditure. Sheep meat is an excellent example of the different perspectives of Westminster and Cardiff. Westminster tends to see it in terms of consumer needs; the Assembly sees it as the cornerstone of our rural economy and of local communities and their attendant culture. Quite frankly, I do not begin to see such considerations being addressed, and if Westminster insists on having a veto over such policies as agriculture, it will be seen as a constraint on devolved ambitions. There has to be give and take or the whole edifice will crumble under the strain of its own self-inflicted tensions. We are in fact trying to constrain the needs of a quasi-federal system within the straitjacket of a unitary state, and it just will not work; four into one will not go.

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Of course, there may be a situation in which, after exit, regulations have not been made, in which case powers will then—

[Lord Wallace of Tankerness]

It seems that we have an explanation. Were officials of the Scottish Government involved in that and, if in-depth work has been done, would the Minister help the House by publishing it?

[Lord Keen of Elie]

I am not in a position to say that such work would be published, because of course it has been on the basis of engagement between officials dealing with this. I do not believe that there is any official report to that effect; it is just a matter of the product of engagement between officials negotiating these matters. Therefore I cannot indicate that we will publish anything in that regard. That is to try to explain the position with regard to the sunset clauses in the regulations. I turn to the question—

European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I support the amendment moved by the noble Lord, Lord Low of Dalston, and support Amendment 245A, to which he also spoke. He has given a very comprehensive explanation as to the origins of the amendments and why we believe that they are important.

Two weeks ago, when we were debating Amendment 70A and other related amendments, one suggested that there should not be any change to equalities legislation, and the noble Lord, Lord Callanan, in responding indicated that that might not be appropriate. He said:

“For example, the Equality Act refers in several places to EU or to Community law. These references are likely to need to be replaced with the term, ‘retained EU law’. As such, we believe that it is essential that the Clause 7 power is able to address these deficiencies so that we can ensure that the legislation that safeguards these rights and protections can continue to function effectively”.—[Official Report, 7/3/2018; col. 1168.]


The amendment gets around the practical objection that the noble Lord, Lord Callanan, had to previous ones because, if all that was being done was changing terminology from EU law to EU retained law, clearly the test or certification referred to in Amendment 245A that the regulation did not,

“remove or diminish any protection provided by or under equalities legislation”,

would be quite easily met.

The noble Lord, Lord Low, indicated some of the background to this amendment. An amendment was brought forward in the House of Commons in response to concerns expressed by the Women and Equalities Select Committee. He also indicated that what the Government did in their response really did little more than to reiterate a public sector equality duty that was already there under the Equalities Act. One reason why we were concerned that that was an inadequate response was, as the Minister responding to this will be well aware, that the public sector equality duty goes much further than just the one that has been put in this Bill. Given that in bringing forward secondary legislation, Schedule 19 of the Equality Act 2010 indicates that the public sector equalities duty is on Ministers when bringing forward subordinate legislation, on the principle of inclusio unius exclusio alterius—

[Lord Willis of Knaresborough (LD)]

We talk of nothing else.

[Lord Wallace of Tankerness]

They talk about nothing else in Harrogate, as my noble friend Lord Willis said. But this proposal is just for clarity’s sake, given that putting one public sector equality duty in the Bill could raise questions as to the status and validity of the other ones.

Another Latin maxim, if I am allowed, is ubi jus ibi remedium. In a number of our debates on equalities and human rights issues, we have heard Ministers talk about rights but say all too little about remedies—and when they do talk about remedies they do so in a way that gives some cause for alarm. The noble Lord, Lord Callanan, time and again, reminds us that the underlying purpose of the Bill is to ensure that there is a smooth transition in law on our departure from the European Union. That entitles us to question what is meant by law.

On 5 March in a slightly different context, the noble and learned Lord, Lord Keen, said in response to an intervention from me:

“They will have rights but they may not have the same remedy, but that is quite distinct. We are talking about maintaining rights at the point when we leave”.—[Official Report, 5/3/18; col. 964.]


But is it right to divorce rights from remedies quite so easily? The noble and learned Lord will be familiar with Section 126(9) of the Scotland Act 1998, which states that,

“all those rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties, and (b) all those remedies and procedures from time to time provided for by or under the EU Treaties, are referred to as EU law”.

For the purposes of the Scotland Act, EU law embraces both rights and remedies.

Too often in our debates, we have heard Ministers reassure the House that the Government are committed to retaining rights but they have sidestepped the issue of remedies. I believe that if there is to be a smooth transition from EU law to EU retained law, it must include rights and remedies. The Government have not given us sufficient reassurance on this. That is why these amendments are necessary and I commend them to the House.

[Lord Cashman (Lab)]

My Lords, I shall speak to Amendments 245A and 242A, and I assure your Lordships that you will get no Latin from me—maybe some Cockney rhyming slang, but certainly no Latin. I have added my name to these two amendments, which were so eloquently and powerfully moved and spoken to by the noble Lord, Lord Low of Dalston, and powerfully supported by the noble and learned Lord, Lord Wallace of Tankerness.

Noble Lords will be aware that I spoke at Second Reading on the issue of rights and protections, and have returned to the same during Committee in your Lordships’ House. I make no excuse or apology for repeating what are grave concerns about the continuation of rights and equalities that we currently enjoy in the United Kingdom. As I have said before—it bears repetition—these rights have been hard fought for and, often, hard fought against. That they exist now is due to the hard work, persistence and sacrifices of generations.

These rights have been achieved through either recourse to law, proceeding through the courts to the European Court of Human Rights in Strasbourg or through the Court of Justice of the European Union, or by legislative changes primarily introduced since the election of the Labour Government in 1997. As I have said, there is deep concern that this Bill, and particularly delegated powers contained within it, will ultimately be used to reduce rights and equalities in the United Kingdom—including in Northern Ireland, where consequent problems for the Good Friday agreement will arise. I will not return to the issue of the charter of fundamental rights today but I will on other occasions.

Amendments 242A and 245A seek to bring security of protection and non-regression by ensuring that delegated powers are not used to diminish protections in the Equality Acts of 2006 and 2010. But I and other noble Lords, and people and organisations outside Parliament, also have concerns about other equality and human rights laws. The certification approach adopted in Amendment 245A could be extended to cover such rights, by requiring a Minister to certify that secondary legislation under the Bill does not diminish protection in equality and human rights law generally.

On Wednesday 7 March, we again discussed amendments that would restrict the use of delegated powers from making any changes to equalities and human rights legislation. The Minister, the noble Lord, Lord Callanan, raised an objection to the amendments that we were discussing on the basis that delegated powers would be needed to make technical changes to our laws to reflect exit from the European Union. He went on to state that the Government could not accept the amendments,

“as the legislation that underpins these rights and protections will contain many provisions that will become deficient after our exit”.—[Official Report, 7/3/18; col. 1168.]

In his reply, the Minister offered examples where the Equality Act refers in several places to EU or community law, as the noble and learned Lord, Lord Wallace of Tankerness, said, and that such references needed to be replaced with the term “retained EU law”. I will not detain the House further by extending the quotation, but I point out that Amendment 245A addresses this concern because it does not prevent a Minister making necessary technical changes to reflect our exit from the European Union, as these technical changes would not diminish existing protections.

In the same debate, the Minister referred to the government amendment tabled in the other place, now paragraph 22 of Schedule 7, saying that it will,

“secure transparency in this area by requiring ministerial statements to be made about amendments made to the Equality Acts under each piece of secondary legislation under key powers in the Bill. These statements will … flag up any amendment to the Equality Acts and secondary legislation made under those Acts, while also ensuring that Ministers confirm that, in developing their draft legislation, they have had due regard to the need to eliminate discrimination and other conduct prohibited under the 2010 Act”.—[Official Report, 7/3/18; cols. 1167.]

This statement does not answer the concern addressed by Amendment 245A: that the Government’s approach in the Bill does not fulfil their commitment to maintaining our current protections. It merely restates the existing statutory duty to have “due regard”.

In debate, the Minister has reiterated clear commitments that there will be no roll back of rights. Therefore, I say to the Government and to the noble and learned Lord the Minister: put the commitments, and the assurances given in this House and in the other place, in the Bill and end the uncertainty that is so widely shared. I ask your Lordships that, when we return again on Report to the issue of the protection of equality and human rights, as we will, we work together to ensure that the departure from the European Union does not signal the beginning of a departure from the rights and protections that we currently enjoy and which are continuously under threat.

European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, Amendment 266, which is in my name, is in a series of groups dealing with devolution. It is in the first of five groups dealing with rather technical points arising out of Schedules 2 and 8. They precede a lot of government amendments which are in the group following my groups. I suggest that the main discussion about devolution and its consequences is best reserved for the government amendments which are focused on Clause 11 and other clauses. I am afraid my groups are rather boring, because I am dealing with a whole series of little technical points which need adjustment to some extent in the light of progress that is being made in discussions with the devolved authorities, among other points.

The theme that runs through all my amendments is the need to respect the devolution settlements in Scotland and Wales. I am confident that the Government share that sentiment. It is all a question of how the matter is worked out in points of detail. The basic rule following our withdrawal from the EU, I suggest, is that returned EU competencies in the devolved areas should be distributed among the devolved authorities in accordance with the devolution statutes. That means that what falls within devolved competence should be treated as devolved, with all that that means, and what falls within reserved matters should be treated as reserved, with all that that means.

The statutes that form the foundation for the devolution settlements—the Scotland Act 1998 and Government of Wales Acts, the latest of which was in 2017—were all built on the foundation of our membership of the EU. In each of these statutes, it was taken as accepted that it would not be within the competence of the devolved Administrations to legislate on matters relating to EU law or indeed to take executive action in relation to these matters either.

What we have in the Bill, in place of EU law, is a new creature called “retained” EU law, which is the law that comes back to us either because it is already present in the United Kingdom or is direct EU law that is coming back to us and is not yet built into our laws but requires being built in using the mechanisms described in the Bill. In the original drafting of the Bill, retained EU law is treated as simply a mirror image of EU law, so that in that original drafting—which can be seen in Clauses 11(1) and (2)—the same restriction on competence which applied in relation to EU law is applied to retained EU law. I am delighted to see that, in developing their thinking on this matter, the Government recognise that this really is not acceptable within the devolved arrangements. A much more nuanced approach to that topic can be seen in the government amendments that we will come to later this afternoon.

What I seek to do in the preliminary groups is to draw attention to various other passages in the Bill that need to be corrected in order to be compatible with the devolution settlements. In some of the groups—but not in the first—it is already clear from the government amendments that they are in almost the same position as I am as to what needs to be done.

I turn to Amendment 266, in the first of these groups, and also mention amendments 278 and 292, which raise exactly the same point in relation to different parts of the Bill. Amendment 266 deals with the power to deal by regulation with deficiencies arising from the withdrawal from the EU, which is the subject of Clause 7. It appears in Part 1 of Schedule 2 in the form that is appropriate for the activities of the devolved institutions in carrying out the exercise to which Clause 7 refers.

Amendment 278 deals with the power by regulation to prevent breaches of international obligations, which is the subject of Clause 8. The devolution mechanism for this is dealt with in paragraph 13 of Schedule 2. Amendment 292 relates to the power by regulation to implement the withdrawal agreement and the mechanism for the devolved Administrations is set out in paragraph 21 of Schedule 2.

The point to which these three amendments draw attention is a qualification that is to be found in each of these contexts on the power of the devolved authority to make provision by regulations regarding these three matters. The particular provision that I am concerned about is found in paragraph 1(4) of Schedule 2:

“Regulations under this Part, so far as made by a devolved authority … (b) may not confer a power to legislate (other than a power to make rules of procedure for a court or tribunal)”.


At first sight that qualification cuts across the concept of devolution, the effect of which is that if a matter is within devolved competence, it is for the devolved authority to take its own decisions as to how to deal with that matter, in whatever way it regards as appropriate. Under the devolution statutes, the qualification that we find in this provision and its equivalents in paragraphs 13 and 21 is new: in my experience it has not been encountered before. To an extent, therefore, these three amendments are probing, to enable the Minister to explain why this qualification has been inserted in these paragraphs and, if no reasonable explanation is given, to suggest to her that maybe the qualification should be removed, on the ground that when it comes to exercising powers within the devolved area, it should not be there.

It is right to add that Part 1 of Schedule 2, for perfectly understandable reasons, contains qualifications. For example, paragraph 2 states that:

“No regulations may be made under this Part by a devolved authority unless every provision of them is within the devolved competence of the devolved authority”.


That is a perfectly sensible provision, and consistent with the devolution scheme. What troubles me is why the qualification that I have mentioned should be there. My question is: should it be there at all? And if it should not be there, should it not be taken out? I beg to move.

[Lord Wallace of Tankerness (LD)]

My Lords, the Committee is indebted to the noble and learned Lord, Lord Hope of Craighead, for his detailed analysis of the Bill as it originally stood, and the points arising. My name is on the amendment, but I would be happy to deal with the important issues of principle that prompted me to sign some of these amendments, in an attempt to honour the spirit of the original devolution settlement, when we deal with the group containing the government amendments. Obviously, however, I support the amendment that the noble and learned Lord has moved.

[Lord Wigley (PC)]

My Lords, I too support the noble and learned Lord’s amendment, and I entirely agree with his approach—that it is best to focus on a couple of larger debates rather than going through all the minutiae at this point. However, it is important to underline the principle—that matters coming back from Brussels that deal with devolved subjects should go to the devolved authorities. It is on that principle that I hope we shall concentrate as we move forward.

--- Later in debate ---

[Lord Wigley]

Indeed—the very point that the noble Lord, Lord Foulkes, was making earlier; I agree. Given the current role of EU law regulating action in all parts of the UK in such subjects, partly to facilitate a single market with a level playing field—the point that the noble Lord was making—and partly to ensure that in matters which by their nature cannot be constrained by political borders, there is a coherent common approach. I accept this. Indeed, last week I proposed an amendment to provide a framework agreement for environmental policy—which, quite amazingly, the Government rejected. However, if there are to be such frameworks, the devolved Administrations and the devolved legislatures, whose legislative competence is being constrained by such frameworks, must surely agree the proposed steps jointly with the UK Government. I have tabled an amendment to an amendment in the name of the noble and learned Lord, Lord Mackay, providing a mechanism to this end. That will be debated later so I will not anticipate that debate now.

Let us be clear: unless there is agreement between Westminster and the devolved Governments on these matters, the continuity Bill will be enacted by the Assembly and will take precedence in Wales. Surely it is time for the UK Government to reconsider what is seen as an obdurate stance and agree a sensible, balanced and respectful way forward.

[Lord Wallace of Tankerness]

My Lords, I had not intended to speak in this debate because in many respects government Amendment 302A answers the initial point of concern—that the current limitation on competence in the Scotland Act under European Union law would be replaced by a restriction on retained EU law. Of course, under the new amendment that has gone, but there is a wider point on which the Minister could perhaps assist the Committee, which arises from the draft agreement on the transitional period.

As I understand it, during the transitional period basically the acquis will still apply. I have looked at Articles 4 and 82 of the draft agreement. Article 4 says:

“Where this Agreement provides for the application of Union law in the United Kingdom, it shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States”.


Article 82 says:

“The Court of Justice of the European Union shall continue to have jurisdiction for any proceedings brought before it by the United Kingdom or against the United Kingdom before the end of the transition period”.


We will have a lot of debates this afternoon about whether UK Ministers, Scottish Ministers or Welsh Ministers will be exercising powers after exit day, but can the Minister indicate how the United Kingdom Government see the position? If we are going to have to abide by European Union law having the same legal effect as it produces in the Union, is there any room for movement at all? How is effect going to be given to that if, under Clause 1 of the Bill, the European Communities Act 1972 has been repealed?

[Lord Thomas of Gresford]

My Lords, I cannot allow the noble Lord, Lord Foulkes, to continue with his heresy that the Government are right in what they are doing. I noticed the shock that passed over the face of the noble Lord, Lord Forsyth. What I think the noble Lord, Lord Foulkes, does not appreciate is that the proposal of the Government is to introduce frame- works into this country to save the internal market of the UK, whether or not the devolved Administrations consent. All they are prepared to do, as the noble Baroness the Minister said in response to something earlier, is to consult—they are not necessarily seeking agreement. That is where he has it wrong.

European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Wigley]

Not only do I agree with my noble friend but I will surprise the Committee by reminding him that Penderyn whisky was in fact formulated as a result of devolution itself. It was on the evening of the setting-up of the National Assembly that people came together and thought, “Now we have to start doing something to help ourselves in Wales. What shall we do?” They concluded that a whisky would be one way forward. As they say, the rest is history—a very enjoyable and successful history. I thank my noble friend for reminding me of that.

[Lord Wallace of Tankerness (LD)]

The noble Lord, Lord Forsyth, correctly said that the European Commission objected. But in fact the Court of Justice of the European Union found that the Scottish Government’s proposals were actually consistent with the rules of the single market, principally because the minimum unit price was based on health reasons.

[Lord Wigley]

Indeed—which shows the importance of the health and social agenda that underpinned the initiative.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I shall speak to Amendments 302BA, 312 and 318 in my name, but I shall start by speaking more to the generality by responding to the government amendments moved by the Minister. It is fair to acknowledge that much has happened since Second Reading when I and many others criticised the architecture of the original Clause 11, not least because it showed scant regard for the spirit and structure of the original devolution settlement. It had a system of conferred powers that was totally alien to how devolution had performed and been structured until this point.

However, I give credit to the Government for tabling these amendments. They have thought to recast Clause 11 and the related schedules, and I think it was acknowledged earlier that there is more work to be done. When you get legislation like this and new situations arise, it is amazing how new words come into the vocabulary. The Government have claimed that most of the powers at the so-called intersects will go directly to Cardiff, Edinburgh and Belfast on exit day, subject only to relatively few remaining—they emphasise that this will be temporary, though I shall return to that—to secure the UK single market until such time as that framework is put in place.

As has been acknowledged, that is a welcome step. It shows a lot of progress and, I think, a lot of good will towards seeking an agreement. However, it has clearly not yet been sufficient to allow the Scottish and Welsh Governments to recommend the Legislative Consent Motions to their respective Parliament and Assembly. Indeed, the letter from the First Ministers of Scotland and Wales to the Lord Speaker that was circulated to all Members of your Lordships’ House says:

“In being asked to give legislative consent to the EU (Withdrawal) Bill on this basis”—


that is, on the basis of the new amendments—

“the devolved legislatures would be being asked to agree to the creation of this power with no certainty about where frameworks will be established, how these will work, how they will be governed and how we will go from temporary restrictions to longer term solutions”.

It is also arguable that the amendments do not do precisely what the Government claim they are seeking to do. The Government have said—indeed, the Minister has said today—that the intention is that the vast majority of powers identified at the intersects will go directly to the devolved institutions. The noble and learned Lord, Lord Mackay of Clashfern, rightly said that that is the proper thing to do. However, if one looks at the amendments before us, while much has been said about a figure of 24, one sees that there is nothing in the Bill that restricts it to 24. Technically, and I think this was a point made by the noble Lord, Lord Griffiths of Burry Port, all 158 could be subject to this freeze and this restriction. They could all be subject to regulations made under the powers in the revised Clause 11 and there would be no provision for consent from the Scottish or Welsh Ministers, let alone from the Scottish Parliament or the Welsh Assembly.

It would help considerably if, in the body of legislation, it was made clear in some way which powers would go directly, or if there was a schedule concerning which powers would be the subject of framework agreements. I do not doubt for one minute that there will be some negotiation about what should be in frameworks and what should or should not be a UK framework. That is perfectly proper for negotiation. I welcome what the Minister said earlier: agriculture is set out as a broad heading but he accepts that agriculture has to be subdivided and not all aspects of it would be the subject of frameworks. Indeed, it is worth noting that NFU Scotland identifies in a briefing paper animal welfare and traceability, public health, pesticides, regulation and food labelling as examples of overarching areas of regulation that would be best suited to being managed on a commonly agreed framework basis. There is lots of scope for talking to stakeholders about what the framework should be, but it would be very helpful if that could be in the Bill.

I do not underestimate for one moment that there will be work to do, but we should perhaps reflect that it will be at least four weeks until we come to deal with these issues on Report. It is worth reminding ourselves that the House of Commons Select Committee on Scottish Affairs recommended back in November that there should be clarity on this before the Bill reached Third Reading in the House of Commons. I do not take away from the work that has been done by officials, but if there is a will to get there, I am sure it could be done.

One other reflection on this point is that earlier today, in response to an intervention from me, the noble and learned Lord said that, given that we are now to have a transition period, we will have to accommodate that transition period in future legislation, a withdrawal and implementation Bill, so we may not need these frameworks until 31 December 2020 or 1 January 2021, which provides further time to sort out what should be in later legislation. But I would rather strike while the iron is hot and seek what can be done in this Bill.

It has also been said that these measures are temporary. The Chancellor of the Duchy of Lancaster went out of his way to emphasise that in the letter that he sent to all Peers. The Government have, to their credit, included several extra provisions to buttress their position that they should be temporary by reporting requirements, and these are all welcome, but, unlike some other parts of the Bill, there is no sunset clause. That is why, in Amendment 312, which was tabled before the new amendments, my noble friend Lord Thomas of Gresford and I recommended that there should be a sunset on the whole power after two years and, in Amendment 302BA, I suggest that any regulations brought forward under the new powers should themselves lapse after two years. The noble Lord, Lord Foulkes of Cumnock, said that it should be five years. We could have a debate about that but, again, the principle is trying to build confidence to get an agreement between the Scottish and Welsh Governments and the UK Government, and to have a sunset clause would go a considerable way to help that.

As we have heard in the previous three contributions, there could be dispute about the frameworks. Our Amendment 318 would put the Joint Ministerial Committee on European negotiations on a statutory footing. In October 2016, to much fanfare, we were told that this new committee had been set up,

“to ensure that the interests of all parts of the United Kingdom are protected and advanced, and to develop a UK approach and objectives for the forthcoming negotiations”.

That has probably been more honoured in the breach than it has in practice. We know that in recent weeks there have been more concerted efforts in the committee to try to gain agreement on what we are discussing tonight, but there might be a lot of advantage in putting it on a statutory basis so that there could not be any backsliding on when it meets, as has happened before.

I welcome the initiative taken by the noble and learned Lord, Lord Mackay of Clashfern, and the amendments proposed by the noble Lords, Lord Wigley and Lord Foulkes of Cumnock, because they constructively try to address how we resolve some of the difficulties. There clearly are difficulties and differences, and we must try to start thinking outside the box and creatively. The noble and learned Lord, Lord Mackay of Clashfern, picks up very well one difficulty: the United Kingdom Parliament is also the Parliament for England—England does not have a separate legislature, as Scotland, Wales and Northern Ireland do.

I was reminded of my colleague Mr Ross Finnie, Minister for the Environment and Rural Development in the first Scottish Administration. His experience of meeting counterparts from Wales, Northern Ireland and Defra was that some Secretaries of State saw their role as to be the UK chair of the meetings, with the English Minister of State arguing England’s case, whereas other Secretaries of State could not see the difference between an English position and a UK position. He said that, clearly, they made far more progress when they had a Secretary of State who saw him or herself as holding the ring as the UK Minister with an English Minister of State arguing the English position.

We must recognise that, as the noble Lord, Lord Foulkes, said, it is asymmetrical.

[Lord Dykes (CB)]

I am most grateful to the noble and learned Lord for giving way. He referred to the noble Lord, Lord Foulkes, who said in his speech that he hoped that one day there would be a federal constitution and, I think, implied that the noble and learned Lord supports the same idea. There are other Members, including Cross-Benchers, who feel that that is a very good idea.

The tragedy is that with the constant muddle we have, with our inability to have other than fairly chaotic governance for various reasons, including the lack of a written constitution—which most people would not agree with, of course, but I think is a growing field of thought—how does one get that without first having a constitutional convention to launch it, and how on earth would you get agreement on a constitutional convention in Britain?

[Lord Wallace of Tankerness]

There are lots of questions there from the noble Lord, Lord Dykes. First, as a member of a party that has supported some form of federal United Kingdom since the days of Asquith, I have no difficulty in saying that I believe in federalism. Equally, I do not diminish the difficulties and challenges in getting there. I rather suspect that, with what we have at the moment, we do not have time for a constitutional convention. That is why, as with so many other aspects of our constitution, we must move incrementally.

A lot of this has hinged on consent. Interestingly, the report from your Lordships’ European Union Committee on Brexit and devolution states:

“Any durable solution will need the consent of all the nations of the United Kingdom, and of their elected representatives … A successful settlement cannot be imposed by the UK Government: it must be developed in partnership with the devolved Governments”.


The Scottish Affairs Committee also referred to the fact that it would require the consent of the devolved Administrations.

On the issue of legislative consent Motions, as the noble and learned Lord the Advocate-General for Scotland knows, there is concern that frozen areas of EU retained law might well be seen to be beyond the legislative or executive competence of the devolved institutions, and therefore no legislative consent Motion would be required, at least under the enunciation formulated by Lord Sewel in the Scotland Act. I accept that devolution guidance note 10 could kick in. I think that the Minister said something to the noble Lord, Lord McConnell, in a previous debate, but it would be very helpful if he could clarify that, in the event of subsequent primary legislation in pursuance of the common UK framework, legislative consent Motions would indeed be expected.

Finally, we are moving into uncharted waters. Arguably, if we had not been in the European Union in 1998, the Scotland Act would have been constructed differently. The single market of the United Kingdom, which I certainly value and numerous other Members of your Lordships’ House have said they value, has been maintained since 1999 by the single market of the European Union. We are now into new territory with, for example, trade agreements. Negotiating international agreements is a function of the United Kingdom Government, but the detail of these trade agreements could well impact on devolved competences. How will that be accommodated? Canada, for example, when it negotiated its agreement with the European Union, had representatives of the provinces and territories in the room at the table during those negotiations. It would be very welcome if the Government were to make a similar commitment. That, again, would be a confidence-building measure.

At a later date, we will no doubt have to consider how frameworks operate when we have them. I welcome the suggestion of the Welsh Government of a council of UK Ministers with qualified majority voting to operate the frameworks. That would take us much further down the road towards federalism. In the meantime, the challenge is to find workable arrangements in the interim.

We do not really have a concept of shared competence. Perhaps that is something that we should work up. It was something which we discussed in the Calman commission back in 2008-09. It did not have much traction then, but we are in a new situation.

There is also the question of consent and trust. It has been said that constitutional propriety does not really allow for anything like consent. Those of us who argue for a written constitution are often told of the benefits of having a flexible, unwritten constitution. We are in a new situation. The Government responded to the campaign for English votes for English laws by bringing out a new device which, arguably, undermined the sovereignty of Parliament, because the House of Commons and the House of Lords can vote for an amendment, but if English MPs, a subset of one House of Parliament, say no, it does not become law. That is a move away from the sovereignty of Parliament.

Those who were in the Chamber earlier today heard my noble friend Lord Alderdice talk about the Good Friday agreement. He talked about the need to be adventurous and creative and suggested that if that process had involved some of what we have been hearing in the EU debate—people not willing even to entertain the idea of any differences or of how you work with sovereignty—we would never have had the Good Friday agreement. I would encourage the Government to be adventurous and creative; to be willing to think outside the box; to be willing to compromise; and to be willing to seek pragmatic solutions, even at the expense of 100% constitutional purity. What we are discussing, at the end of the day, is not about institutions. It is about people, businesses and the certainty they want in the law and their rights when we move out of the European Union. We should keep that firmly in our minds. In that spirit, I hope that the Government can come to successful negotiation with the devolved Administrations and that, by the time we come to Report, we can have amendments that we can all support.

--- Later in debate ---

[Lord Hain]

I completely agree with my noble friend; he spelled it out very clearly.

At the same time, this approach would provide transparency about the areas in which devolved competence would be affected, which is sadly lacking in the approach embodied, until now at least, in the Government’s amendments. It would also enable the Scottish Parliament and the Assembly to agree to the list of retained powers—reinforcing my noble friend’s point—through the very act of providing legislative consent to the Bill. Such an approach would thus reassure the devolved institutions that the regulation-making power proposed by the Government could not be used to specify areas of retained EU law not requiring frameworks. That is a very important point.

If the schedule idea is potentially a magic bullet, why might the Government resist it? I am informed that the first argument is that it cannot be done in time for Report. I am not sure that I buy this argument; Report does not take place until well after Easter, which is many weeks away. We are told that significant work has been done on potential framework areas and the list published recently by the Government—though not agreed with the devolved Administrations, I understand—comes fairly close to defining legally which current EU law restrictions may need to be continued while frameworks are negotiated. Surely if the Government need to specify these areas in regulations, they will need to do so sooner rather than later in any event.

[Lord Wallace of Tankerness]

Perhaps I may reinforce what the noble Lord said. He said that Report stage was still some time away. I am sure that it would be possible for the Government, if the will was there, to put down a marker at that stage and, if it needed another two weeks, to come back at Third Reading and fill in the gaps. I support him in saying that in those areas where they want a UK framework a schedule could be a constructive way forward and give reassurances.

[Lord Hain]

I welcome what the noble and learned Lord has said. If it really is not possible to work up such a schedule before Report—for the reasons that he has explained, I do not see why it should be the case—might not the Government find another legislative opportunity to do so? We know that in the autumn we are likely to have to consider a withdrawal agreement implementation Bill. That might provide an opportunity, although it would be better to do it in this Bill.

The second objection that the Government might make is the need to account for unforeseen circumstances. Since Brexit appears to be a process where every stone turned over reveals yet another problem lurking beneath it, there is some validity to this argument. But if, exceptionally, a new area where a framework is required is identified even after the passage of this Bill with the proposed schedule, there is an easy solution that is wholly consistent with the approach to devolution adopted to date—namely, a power to amend the schedule by Order in Council with the express agreement of Parliament and those devolved legislatures affected. That could be included in the Bill as well.

In reality, if the Government resist this proposal, we would be right to suspect that they have an ulterior motive in wishing to press ahead with such a wide regulation-making power as that encapsulated in the current amendment, although I accept that it is about to be withdrawn. I commend to the Government the idea of putting in the Bill a list of areas agreed with the devolved Administrations—I stress, agreed—where the constraint on devolved competence will apply and ask them to consider bringing forward an amendment that does that at Report stage.

European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Cormack (Con)]

My Lords, I deeply regret and resent the fact that we are having to discuss this and waste the House’s time. We had an opportunity at the beginning of the day to make an unequivocal declaration that we would grant these rights to EU citizens. We voted in that sense, a number of us spoke in that sense and we had a large majority in that sense. Yet here we are, arguing. Frankly, I agree that the amendment is necessary, but we are now arguing unnecessarily about something we could have taken the moral high ground over and dealt with immediately after we had activated Article 50. It is indicative of the mess into which we have got ourselves, and we are taking up so much parliamentary time that should be devoted to other things. I bitterly resent it and wanted to get that on the record.

[Lord Wallace of Tankerness (LD)]

My Lords, as someone who is a co-signatory of the amendment that was moved by the noble Lord, Lord Foulkes of Cumnock, I support what he said and also endorse what the noble Lord, Lord Cormack, said. This should be a no-brainer.

The United Kingdom Government have agreed with the European Union; the terms of that agreement were set out in paragraph 38 of the document of 8 December 2017, and the noble Lord, Lord Foulkes, has spoken them into the record. If one goes back to paragraph 33 of the same document, it is interesting to read that:

“It is of paramount importance to both Parties to give as much certainty as possible to UK citizens living in the EU and EU citizens living in the UK about their future rights. The Parties have therefore reached agreement on the following specific set of arrangements to implement and enforce the citizens’ rights Part of the agreement”.


Admittedly, a later paragraph suggests that the bestowing of or guarantee of rights will come in the withdrawal agreement implementation Bill, but if one reads the paragraph on the consistent interpretation of citizens’ rights, one will see that there is no such commitment there with regard to a future Bill. It would not be right for this Parliament to pass a Bill which cuts off recourse to the Court of Justice of the European Union when we have already agreed that that avenue should be open in this specific case of ensuring consistency in determining the rights of EU citizens living in the United Kingdom and UK citizens living in the European Union.

I say to the noble Lord, Lord Forsyth, that if at the end of the day there is no agreement and we go crashing out, surely he is not suggesting that we would not honour our commitment. We have made that commitment to European Union citizens living in the United Kingdom and United Kingdom citizens living in the European Union. It must send some very alarming signs to UK citizens living abroad if it is suggested that, should we go crashing out, nothing will be done to establish or secure the rights of those citizens—

[Lord Adonis (Lab)]

Did the noble and learned Lord notice that in the Prime Minister’s Statement on Monday, she specifically mentioned that the United Kingdom might seek to achieve associate membership of certain European agencies? She said that,

“the UK would also have to respect the remit of the ECJ in that regard”.—[Official Report, Commons, 05/3/18; col. 26.]

Now that the Government themselves have recognised that there will be a continuing role for the European Court of Justice, is this not an absolutely appropriate further role that it should play?

[Lord Wallace of Tankerness]

It is not only appropriate as a further role but one we have already agreed to. As the noble Lord, Lord Cormack, said, on many occasions noble Lords from all sides of the House have spoken about securing the rights of EU citizens in the United Kingdom and UK citizens in the European Union. This amendment fleshes that out and it would be wrong to pass a Bill which denied something we have already agreed.

[Baroness Prosser (Lab)]

My Lords, I support my noble friend Lord Foulkes and I will speak to Amendment 54, which stands in my name. I will not detain noble Lords for long because much of what I intended to say has already been said and covered. Agreement on the wording of this amendment has been expressed by various Benches in this House, so this is not simply a one-sided argument. It seems to me that this country’s reputation globally will simply go down the Suwannee if we are prepared, at one moment, to say that we agree to certain protections for people who have become embroiled in this dreadful situation in which we find ourselves and then, a moment later, decide that, no, we do not agree with that and will not give those protections. What will people think of us as a nation if that is how the leadership of this country behaves?

My amendment would extend the requirement for certain persons to be able to refer their legal matters back to the European Court of Justice to a period of eight years. I trust that noble Lords will understand the need for such an extension. There is a statute of limitations existing for six years; if we do not include a period of coverage, people whose claims may well start quite late after the leaving date may well find themselves without that coverage, which I hope will be agreed.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I would like to intervene, following what the noble and learned Lord, Lord Mackay, has said, and referring to the amendment that was moved by the noble Lord, Lord Foulkes of Cumnock. One of the problems I have faced since looking at this Bill, is trying to find hard examples of situations in which the Supreme Court would wish to refer a matter to the European Court of Justice.

There is a very good example reported in Monday’s Times of a case called SM (Algeria) (Appellant) v Entry Clearance Officer. I will take a moment to explain what the case is about, because it is a good example of citizens’ rights. SM was a little girl, who was placed into the legal guardianship of EU citizens, who happened to be in Algeria. The question concerned her position in coming to the United Kingdom as a member of that family under the Immigration (European Economic Area Regulations) 2006. Merely referring to those regulations reminds us that they would become, as I understand the position, retained EU law under Clause 2 of the Bill.

The problem arose because the court saw that the regulation had been transposing wording from a directive, which is the normal way in which these things work, but the transposition was inaccurate. This is a situation I have encountered before—it happens from time to time. The question is how to deal with the inaccuracy. The inaccuracy was that while our regulation talked about “family member”—somebody who was put into the legal guardianship of a couple, would normally be regarded as a member of the family—the directive was talking about “direct descendants”, and she was not a direct descendant, because she was not actually related, in that sense, to the people who had become her guardians. In order to resolve that problem, the court found it necessary to refer the matter to the European Court of Justice—which it did on Monday. That was under the existing position.

In resolving the point raised by the noble Lord, Lord Foulkes, it may help to ask how that matter would be handled after exit day. I may be wrong, but my understanding is that it would be for the Supreme Court to resolve the issue itself. The directive would come into EU retained law under Clause 3, so we would have both pieces of legislation to look at. I think that the court, having regard particularly to the way in which we had translated the directive, would give great weight to our own language and regard this little girl as part of the family and therefore entitled to take the benefit of the regulation.

In explaining the situation, I hope I have not made it too complicated, but it is a good example of citizens’ rights, accorded by our own regulations, giving effect to EU law. There must be very many in the corpus of regulations which forms part of EU law. It comes back to the point made by the noble and learned Lord, Lord Mackay of Clashfern. The Supreme Court looks very carefully at the interests of children and would accord every weight to the normal rules about the priority given to the interests of the child in construing the regulation in a sense that fits with our own language. I should have thought that, after exit day, the question of referring the matter to the European Court of Justice simply would not arise because the court would be capable of resolving the issue itself without being bound by the problem of having to refer something which was not that clear. If I may use the English expression, it was not crystal clear; therefore they were bound to refer. Under the situation after exit day, any superior court will be fully able to resolve the problems of interpretation that arise. Will the Minister confirm that, in this situation, there would be no need for a reference because our courts would be able to deal with it perfectly properly, looking at the language of our own regulations, despite the problem that might have arisen in translating them from the directive into English?

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord. The point made by the noble Lord, Lord Foulkes, in moving this amendment— I referred to it myself—was that, as part of the agreement that was struck between the United Kingdom and the European institutions in December, provision was made to,

“establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it”.

So it is not a case of questioning the ability of the Supreme Court. We have entered into an agreement which says that there must be an opportunity or a mechanism to refer to the Court of Justice of the European Union. How does the noble and learned Lord see the mechanism for giving effect to what the United Kingdom Government have agreed?

[Lord Hope of Craighead]

I have listened with great care to what the noble and learned Lord has said but I cannot look into the future. I do not know what is going to happen as a result. We just have to look at the present situation. There are two factors to bear in mind. As far as the UK is concerned, for people looking to come here, an immense amount of citizens’ rights are guaranteed already under the regulations which implement directives. We ought not to lose sight of that. Secondly, problems of interpretation because of conflicts between the wording of the directive and our transposition of it, give rise to some doubt. Under the existing position, there is an obligation to refer which will not be present after exit day. This is a different situation with which I believe our courts will be able to cope perfectly well.

--- Later in debate ---

[Lord Keen of Elie]

With respect to the noble Baroness, businesses affect individuals, so it is not appropriate to try to draw a distinction between citizens’ rights and businesses in that context. The right to work involves the right to maintain a business in various countries; you cannot simply draw them apart in that way. As regards regards timing, of course we are concerned to ensure that we achieve a withdrawal agreement sooner rather than later. That is why these negotiations are under way. If perchance no agreement is achieved—and I am not aware of anyone who wishes this, although others will perhaps assert the contrary—we will have to look at how we then deal with matters in the absence of that international agreement.

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord and I hear what he is saying about the duality principle. Can he conceive of any circumstances in which the consensus reached between the United Kingdom and the European Union on the way in which we should treat EU citizens in the United Kingdom and United Kingdom citizens in the EU would not be taken forward or would fall apart? Can he see any circumstances where that might happen?

[Lord Keen of Elie]

At the present time, no, but we are only now undertaking the detailed negotiation of the withdrawal agreement. It may be, for example, that the situation of UK citizens in Europe will alter during the course of those negotiations. It may be that the European Parliament will take a different view on how the rights and interests of those UK citizens in Europe should be approached. The noble and learned Lord will recall that, at an earlier stage, there were some suggestions that the rights of UK citizens in Europe would be limited to the member state in which they were resident at the time of exit. There are all sorts of possibilities and I am not going to indulge in an analysis of those possibilities—we are concerned with achieving certainty. We have achieved, by way of the joint report in December, an expression of joint opinion about where we are going, with regard not only to the rights of EU citizens in the United Kingdom but also to the rights of UK citizens in the EU. Of course we want to bring that in to the final withdrawal agreement, in order that we can then draw it down and implement it in domestic law.

European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I shall speak to the amendment in the name of the noble Lord, Lord Foulkes of Cumnock, also subscribed to by my noble friend Lady Bowles. The amendment is primarily a probing one, to seek clarification from the Government on what they are seeking to do here. Paragraph 2 of Schedule 1 states:

“No general principle of EU law is part of domestic law on or after exit day if it was not recognised as a general principle of EU law by the European Court in a case decided before exit day”.


So if one allows for the double negative, it rather suggests that, if it was a general principle of EU law that had been determined by the European Court in a case before exit day, it will continue to be part of domestic law. Having reached that point, the following paragraph says:

“There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law”,


and that no,

“court or tribunal or other public authority may, on or after exit day … disapply or quash”—

and so forth.

I am intrigued about why, having apparently established that there is a general principle of EU law that becomes part of our domestic law, when what is given away with one hand is taken away with another, one is not allowed a remedy based on that general principle of EU law. It would be helpful if the Government could clarify that.

The matter was raised in the report of your Lordships’ Constitution Committee, which at paragraph 117 of its report quotes Professor Alison Young, who wrote:

“Schedule 1 to the Bill makes it clear that ‘there is no right of action in domestic law on or after exit day based on failure to comply with any of the general principles of EU law’ … This prevents claims of the nature found in Benkharbouche, where the Charter was used independently from other provisions of EU law. … But claimants will still be able to rely on general principles of EU law, which protect fundamental rights. They will not be able to use these general principles on their own, but they will still be used to interpret EU-derived law, which then in turn could be used to disapply legislation. For the claimants in Benkharbouche, the stronger remedy currently found under EU law for the protection of fundamental rights will disappear”.


Again, I seek clarification from the Government as to why they believe that these protections should disappear as currently found in EU law. Indeed, the committee in paragraph 120 concludes:

“The effects of excluding the Charter rights, retaining the ‘general principles’, but excluding rights of action based on them, are unclear … We recommend that the Government provides greater clarity on how the Bill deals with the general principles and how they will operate post-Brexit”.


I sincerely hope that the noble and learned Lord will take the opportunity when replying to the debate to respond to that recommendation from the Constitution Committee and give us a clarification.

There was also one specific point, on which I would ask for a view from the Government Front Bench. The provision in paragraph 3 is:

“No court or tribunal … may, on or after exit day … disapply or quash any enactment … because it is incompatible with any of the general principles of EU law”.


I assume that that would mean to any enactment pre exit, which could of course include an Act of the Scottish Parliament. Therefore, would the provision in paragraph 3 prevent any challenge being made to an Act of the Scottish Parliament passed before the exit day on the grounds that it was outwith the legislative competence of the Scottish Parliament because it was incompatible with those general principles, but not on the grounds that it was incompatible with any other pre-exit European Union law?

In other words, if other EU law had been satisfied but there was still a problem or it was still not compatible with EU principles, would an action that had been raised before exit day on the grounds that it was incompetent have to fall because no court could make a determination of it because of this paragraph? Some clarification on this point would be welcome. It would appear that a principle is established, but not the remedy that might go with it.

[Lord Pannick]

My Lords, I have a similar question for the Minister. In paragraph 1(1) of Schedule 1, we are told:

“There is no right in domestic law on or after exit day to challenge any retained EU law on the basis that, immediately before exit day, an EU instrument was invalid”.


I understand why that should be so, by reference to EU law principles, because at the moment you cannot challenge, in our courts, the validity of an EU instrument; you have to go to the Court of Justice. I am not sure whether the provision in paragraph 1(1) prevents, after exit day, a challenge to a provision of retained EU law brought by reference not to EU law but to common law principles. For example, are challenges on the grounds of legal certainty, the presumption against retrospectivity, or proportionality, which has already been mentioned, prevented by paragraph 1(1)?

--- Later in debate ---

[Lord Keen of Elie]

The noble Baroness is confusing two distinct issues. The Bill is about the retention in domestic law of EU retained law at the point of Brexit. The Prime Minister was addressing our future relationship with the other 27 members of the EU in the context of our seeking to align in some areas and not align in others. This will be the subject of negotiation which is about to commence and will apply in agreeing a transitional period, and then our post-transitional period relationship with the other EU 27. They are two distinct issues.

On the noble and learned Lord’s observation about the general principles, these are retained as an interpretive tool. It may impact upon the matter of remedies but not on the issue of rights. One has to bear in mind that distinction.

Reference was made by the noble and learned Lord, Lord Wallace, to the case of Benkharbouche, which was a classic example of where the issue of rights had to be distinguished from the issue of remedies. There were rights arising under Article 6 of the convention but there was an also an issue as to whether or not certain principles arising by reference to the charter were also in play. I believe it was Article 46 of the charter that was referred to by Lord Sumption, who delivered the opinion of the court. The point was that while the rights could be identified by reference to the convention or the charter, the particular remedy there arose by reference to the charter. I acknowledge that that is the case.

[Lord Wallace of Tankerness]

Is that not part of the point? An expectation has been built up by what has been said—that, on Brexit date plus one, people will be in the same position. The noble and learned Lord is admitting that they will not be in the same position because they may have rights but they will no longer necessarily have remedies.

[Lord Keen of Elie]

They will have rights but they may not have the same remedy, but that is quite distinct. We are talking about maintaining rights at the point when we leave.

--- Later in debate ---

[Lord Keen of Elie]

No, I do not accept that. I certainly do not accept that that is the position under reference to the Walker case. However, I am content to come back to the noble and learned Lord on that question on the Walker case but I do not accept that it falls in the way he indicates.

Perhaps I can make some progress. We remain of the view that after we cease to be a member of the EU there is a real risk of allowing general principle challenges to continue indefinitely, which is what these amendments would allow. Simply put, this would not be in keeping with our undertaking—our promise—to return sovereignty to this Parliament.

Of course we are aware of the concerns that have been raised, particularly about the impact on those whose cause of action precedes exit but who are unable, for whatever reason, to issue proceedings before some change takes effect. That is why we brought forward amendments on Report in the other place to provide reassurance that where a breach of the general principles occurred or gave rise to a potential claim before exit day—that is the important point—individuals and businesses will still have the opportunity to make certain claims based on the breach of the general principles of EU law for a period of three months after exit date. That period of three months after exit date is taken to mirror the period normally allowed in the context of applications for judicial review. That strikes a balance between ensuring that, on the one hand, individuals and businesses will still have the opportunity to bring these challenges and, on the other hand, delivering the result of the referendum and maintaining our parliamentary sovereignty.

While we believe that the compromises we have already made on the general principles of EU law have improved the Bill, the Government are looking again at these issues to see whether this part of the Bill can be improved in keeping with some of the concerns that have been expressed. That is because we understand the complexities of the issues that arise in the context of Schedule 1 and we are looking at those at present.

With that, I hope that the noble Baroness will see fit to withdraw her amendment.

[Lord Wallace of Tankerness]

My Lords—

[Lord Keen of Elie]

As the noble and learned Lord rises to his feet I am reminded of his reference to whether paragraph 3 includes Acts of the Scottish Parliament passed before Brexit day and not within competence. If they are not within competence, they are not law.

[Lord Wallace of Tankerness]

Perhaps I may explore that with the noble and learned Lord. The point I was making was that if the Acts were passed before Brexit day and they were challenged on the basis that the alleged incompetence was that they were not consistent with the general principles of EU law, would that challenge fail on Brexit day plus one, because it would mean that the court could no longer determine it?

[Lord Keen of Elie]

In the event that an Act of the Scottish Parliament was enacted beyond the competence of the Parliament, it would not and would never have been law. That is the position pursuant to Sections 28 and 29 of the Scotland Act 1998. I hope that that clarifies the point, but if I have misunderstood the noble and learned Lord—

[Lord Wallace of Tankerness]

Let me see if I can make it a bit clearer.

[Lord Keen of Elie]

I am quite prepared to discuss the point with the noble and learned Lord because it may be that we will look more closely at those provisions in the Scotland Act in the very near future.

Leveson Inquiry Update

Lord Wallace of Tankerness Excerpts

Thursday 1st March 2018 Lords Chamber

[Lord Keen of Elie]

The noble Baroness makes a very good point. That is why we are taking forward the digital charter, so that we can have an overarching programme of work to agree the norms and rules for that online world, as well as for the printed press.

[Lord Wallace of Tankerness (LD)]

My Lords, a number of victims of press intrusion sat in a room with the former Prime Minister, David Cameron, when he solemnly promised that the Leveson inquiry would be completed. If the noble and learned Lord were sitting in the room with those same victims today, what would he say to them in the light of the Statement about that broken promise?

[Lord Keen of Elie]

I am not in a position to comment upon the broken promise but, as the noble and learned Lord observed, he was referring to the position of the former Prime Minister.

European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

16: Clause 2, page 1, line 12, after “passed” insert “and commenced”

[Lord Wallace of Tankerness (LD)]

My Lords, the amendment stands in my name and that of the noble Lords, Lord Foulkes, Lord Adonis and Lord Dykes. This is very much a probing amendment and I do not intend to detain the Committee long, as the issues are quite clear.

Clause 2 refers to EU-derived domestic legislation that has,

“effect in domestic law on and after exit day”,

and then goes on to explain what EU-derived domestic legislation means. If we then fast forward to Clause 14, we see that an enactment,

“means an enactment whenever passed or made”.

We are trying to get some certainty into what is meant by that—and I shall come on more specifically to enactments of the Scottish Parliament.

We are seeking to probe what is intended by this. For example, if an enactment has been made but the commencement of a particular provision is not until a date post exit day, what is the status of that? Is it intended to refer only to those enactments when an Act has been made but there has been a commencement before exit day?

Let us look specifically at Acts of the Scottish Parliament—Acts of the Welsh Assembly may well come into a similar category. Paragraph 100 of the Explanatory Notes, which refers to similar phraseology in Clause 5, states that,

“an Act is passed when it receives Royal Assent”.

The Scotland Act 1998, Section 28(2) states:

“Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill shall become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent”.


So there are two stages—passed by the Parliament and then receiving Royal Assent. Amendment 342, in my name and that of my noble friend Lord Thomas of Gresford, seeks to give clarity that this will be an enactment when it has received Royal Assent.

There is an argument that it should be an enactment when it is passed by the Scottish Parliament or the Welsh Assembly. I took the view that it was preferable to make it after Royal Assent because there are some reasons why between being passed by the Scottish Parliament and receiving Royal Assent it could be derailed. As the noble and learned Lord, Lord Keen, as Advocate-General for Scotland will know only too well, in whichever capacity he is appearing at the Dispatch Box, he has powers under Section 33 of the Scotland Act to refer to the Supreme Court a Bill or any provision of a Bill which he believes may not be within the legislative competence of the Scottish Parliament. He has to do that within four weeks of a Bill being passed by the Scottish Parliament, and then it would be a matter for the Supreme Court as to how long it took. So you may have an enactment, or a piece of legislation—let us put it neutrally like that— which has actually been passed but may go to the Supreme Court and the Supreme Court may strike it down, so it may never actually become law. That is why I took the view that, in trying to determine when an enactment becomes an enactment, it should be in the case of Acts of the Scottish Parliament when it receives Royal Assent.

To some extent this is academic. If you were to challenge me and ask me to give an example, I probably could not—but I am sufficiently acquainted over many years with the laws of unintended consequences to know that something will happen. You can bet your life that this issue could well come up and, rather than have the matter taken through the courts, it would be preferable, for certainty purposes, to put in the Bill when an enactment of the Scottish Parliament actually becomes an Act. The preference would be for when it receives Royal Assent.

This is a probing amendment but, if it is the noble and learned Lord who replies, I hope that he will accept that there is an issue here. The wording of our amendments may not be the ones that the Government would prefer, but perhaps he will accept that there is an issue here and the Government will bring forward their own amendment to clarify the point so that, at some future date, we do not have a situation where our learned friends at the Scottish Bar make lots of money out of disputing this, and we can resolve this. It is not a major point but it is one that merits clarity, and I hope that we can get a positive response to these amendments. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, I am really grateful to the noble and learned Lord, Lord Wallace of Tankerness, himself a former Advocate-General, for moving this amendment. In the light of what he said, all I can say is that I agree with his every word.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord and the noble Lord not only for explaining the amendment but for their endorsement of it.

In responding to Amendments 16, 17 and 342, I start by reaffirming our view that Clause 2 is an essential provision for providing certainty and continuity regarding our law after exit day. I think that that is plain to all noble Lords. I shall then say a little more about why Clause 2 must stand part of the Bill. This clause, along with Clauses 3 and 4, delivers one of the core purposes of this Bill: maximising certainty for individuals and businesses when we leave the EU by ensuring that, so far as is practical, the laws that we have now will continue to apply. In that respect, Clause 2 preserves the domestic law that we have made to implement our EU obligations; we have touched on that already.

More particularly, on the point raised by the noble and learned Lord in this regard, Amendment 342 seeks to clarify that Acts of the Scottish Parliament are included within the clause only if they have received Royal Assent before exit day. I suspect that Amendment 16 also seeks to provide clarity on that same point. I am grateful for the opportunity to clarify any uncertainty that there may be here. Clause 2(2) states that,

“‘EU-derived domestic legislation’ means any enactment”

that is described in that subsection. Clause 14 defines the term “enactment” to include an enactment contained in an Act of the Scottish Parliament. An Act of the Scottish Parliament must have received Royal Assent; until that time, it is a Bill. Section 28(2) of the Scotland Act 1998 provides for this. So an Act of the Scottish Parliament that has only been passed and not received Royal Assent does not fall within this definition, and would not be categorised as EU-derived domestic legislation for the purposes of this Bill. I believe that the noble and learned Lord rather suspected that this might be the case; his concern seemed to be one of certainty as regards the drafting.

The same applies in relation to Acts of the UK Parliament. The reference to “passed” in Clause 2(2)(b) is therefore a reference to the purpose for which the enactment was passed, not whether it was passed. In that context, I venture to suggest that Amendments 16 and 342 are unnecessary.

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord. He does get my point that it is for clarity; in Section 28 of the Scotland Act, there is a distinction made between being passed and Royal Assent. It is the word “passed” that appears in Clause 14(1) and the noble and learned Lord knows as well as anyone that, when statute uses the same word, it may—not unreasonably—have the same interpretation. Yet, a Bill “passed” by the Scottish Parliament is not the same as “enacted”. Simply, does it really go to the heart of this Bill that the Government could not bring forward an amendment just to make it clear beyond doubt and, therefore, not allow unnecessary litigation at some stage in the future? Because you can bet your life that something will come up when someone finds some clever point.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord. I do not have any red lines so far as Clause 2 is concerned in this context. It appears to me that if there is concern about a lack of certainty, we can take that into consideration, and we will do so in time for Report. I do not indicate that we will bring forward any amendment in regard to this; it seems to me, as the noble and learned Lord will appreciate, that context is everything. We have to read the provision and the use of “passed” in Clause 14 in the context of what is said in Clause 2(2), but I hear what he says. I am not seeking to strike it down, as it were, at this stage; I am merely seeking to explain the approach that we have taken to this issue and why we consider that, on the face of it, Amendments 16 and 342 are unnecessary.

Amendment 17 seeks to mirror the language of Clause 3 in terms of the cut-off point for inclusion within the scope of the clause. Clause 2 of course works in conjunction with Clause 3, which converts direct EU legislation into domestic law. Both clauses take a snapshot of the law that is in place immediately before exit day. EU-derived domestic law will fall into the scope of Clause 2 if it has been enacted before exit day—that is, if it can be said to be on the statute book at that time. There is of course a different test employed for direct EU legislation to be retained under Clause 3, because direct EU legislation must be operative within UK law “immediately before exit day”, as defined in Clause 3(3). That is why there is a distinction between the two clauses; they serve distinct purposes.

As I say, we are listening and we will consider further the point made by the noble and learned Lord and by the noble Lord, Lord Foulkes. Having given an explanation of the Government’s position, I hope that, at this stage, they will see fit to withdraw or not move these amendments.

[Lord Wallace of Tankerness]

I am very grateful to the noble and learned Lord for his response and his willingness to look at this and take on board the comments made. A simple amendment could be made that in no way detracts from the purpose of this Bill; if anything, it would add to that purpose in terms of legal certainty. Using the word “passed”, which, from what the noble and learned Lord said, has a different meaning in two Acts, is not helpful. I do not think the amendment in any way departs from or mitigates what the Bill seeks to achieve and I therefore strongly encourage the noble and learned Lord and his colleagues to bring forward a simple amendment to provide legal certainty. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords—

[Lord Wallace of Tankerness (LD)]

My Lords, may I speak to Amendment 63A?

[Baroness Kennedy of The Shaws]

I stood up before the noble Lord, Lord Faulks, sat down as I knew he was coming to an end. He mentioned, and I accept entirely, his position that the Government may have excluded the Charter of Fundamental Rights because of uncertainty. But for many people it is an indicator of something else: that Conservative Party manifestos over a number of years have promised that the Human Rights Act would be removed. On many occasions, we have heard leading Conservatives say that we should remove ourselves from the European Convention on Human Rights, too. The absence of the Charter of Fundamental Rights from the Bill suggests to many that this is part of a journey taking us out of any international arrangements dealing with the protection of human rights, and that that is the real purpose.

--- Later in debate ---

[Lord Faulks]

No Parliament can bind its successor; one would expect every Government to consider human rights as an ongoing process, and how best to protect them.

[Lord Wallace of Tankerness]

My Lords, I will speak to Amendment 63A, which is in my name and has already been spoken to with great passion by the noble Lord, Lord Cashman. He gave an excellent antidote to a debate that has otherwise been an important but nevertheless cerebral examination of the legal position of the European Charter of Fundamental Rights.

--- Later in debate ---

[Lord Keen of Elie]

Because this is the only case in which we have identified that situation. There is no other reason for proceeding in this way except for that.

[Lord Wallace of Tankerness]

If, as the noble and learned Lord said on numerous occasions in his reply, the rights established in the charter are already there in our domestic law, what is lost by keeping the charter? If those rights are already there, the Government cannot be worried about anything if they retain the charter.

[Lord Keen of Elie]

I must compliment the noble and learned Lord on his second sight. As I was about to say, the next argument put to us is that if we say that the charter is not adding anything, what is the problem with keeping it? I hope that is a fair summary of the noble and learned Lord’s intervention. With respect, this argument simply fails to take account of how the charter applies at present. The charter and the rights that it reaffirmed have a limited application. They apply to the EU institutions all of the time, but apply only to member states acting within the scope of EU law. We will no longer be a member state and so we will be no longer be acting within the scope of EU law. Simply retaining the charter would not reflect the realities of leaving the EU. It cannot be right that a document called the Charter of Fundamental Rights of the European Union could continue to be used as the justification to bring cases that would lead ultimately to the striking down of UK primary legislation after we leave the EU. Outside our membership of the EU, it is simply not appropriate to retain the charter.

There are also practical questions to consider. It would be no simple matter to say that we are keeping the charter. The amendments in this group all attempt, in various ways, to solve the riddle of how an instrument inherently linked to and constrained by our membership of the EU could apply purely domestically. They each highlight the complexity involved in such an exercise.

In Amendment 13A, the noble and learned Lord, Lord Goldsmith, requires the Government to lay a report on how the charter will continue to apply to retained EU law after we leave the EU. However, his other amendments are far from clear on precisely how he intends the charter to have effect domestically after exit. They would remove the exclusion of the charter provided for in Clause 5, presumably with the intention that it would now form part of retained EU law. I note that one of his amendments would excise the definition of what the charter is from the Bill, despite going on to say that this undefined, unclear thing will continue to have effect in relation to retained EU law under Clauses 2, 3 and 4. What would our courts make of that? Many articles of the charter set out principles, not rights, which can be relied on directly by individuals. How would these have effect after exit? Eight articles of the charter constitute rights intrinsically linked to EU citizenship—for example, the right to vote in an EU parliamentary election. Of course, they claw at the air—we appreciate that—but they do nothing.

Let us pause again on the fact that the charter applies to member states only when acting within the scope of EU law. Presumably, if retained under the Bill, the charter would then apply only when we were acting within the scope of retained EU law, which I believe is the elaboration that the noble and learned Lord made in response to the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Over time, our domestic law will evolve and new laws will be made by this sovereign Parliament and the devolved legislatures that will start to replace and supersede this category of retained EU law. We would be retaining the charter, in whatever capacity the noble and learned Lord intends, only for an ever-diminishing proportion of our law. This further risks incorporating complexity and confusion into our domestic statute book.

We should not overstate the accessibility of the current rights regime, which relies on citizens knowing—

Brexit: Devolved Administrations

Lord Wallace of Tankerness Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I too congratulate the noble Lord, Lord McInnes of Kilwinning, on introducing this important debate. It is a great pleasure to follow the noble Lord, Lord McConnell of Glenscorrodale, with whom I worked co-operatively and productively in government in Scotland for six years.

I think I was one of those, along with the noble Lord, Lord McInnes, who believed in the union—indeed, I speak unashamedly as a member of the only party that unequivocally supports Scotland within a United Kingdom and a United Kingdom within the European Union—but I was one of those who felt fragile about Scotland in the union in the immediate aftermath of the 2016 referendum. Indeed, when the First Minister was putting forward the idea of a second referendum, which, as we all know, has subsequently produced a collective yawn, she found out that it was difficult to persuade some of her own supporters. A significant number of people who had supported independence also supported Brexit. I actually applaud the consistency of that position.

I also think that what we are now finding is that, almost certainly inadvertently, the Scottish Government are starting to make out some good arguments for Scotland remaining in the United Kingdom. Last week, they published a paper entitled Scotland’s Place in Europe: People, Jobs and Investment, which said that a failure to stay in the European Union single market or secure a free trade agreement would see Scotland’s GDP around £12.7 billion lower by 2030 than it would be under continued EU membership. That amounts to a loss equivalent to £2,300 per person per annum. Our experience of the somewhat fantasy figures produced by the Scottish Government in their White Paper in the run-up to the independence referendum should perhaps mean that we take these figures with some care, but the general impact will not be doubted.

But if that is the impact of leaving the single market, what greater impact would there be of leaving the single market of the United Kingdom, which has lasted for more than 300 years with a single currency and a common language? The SNP point to the fact that the European Union market is one of 500 million, but as Mr Kevin Hague of These Islands says in his blog this week:

“Of course the EU market is much larger, but even after nearly 45 years of unfettered market access our exports there are relatively small (16%) compared to those to the rest of the UK (63%)”.


So we may perhaps suggest that leaving the single market of the United Kingdom would have an impact four times as great.

The noble Lord, Lord McInnes, said we should not be complacent. Indeed, we cannot take our union for granted; it needs careful nurturing. That is particularly so at a time of constitutional upheaval. I agree with the noble Lord, Lord McConnell, who said that as we approach the European Union (Withdrawal) Bill we must apply to it the rigour with which the initial devolution settlement was approached in 1997-98. There will be plenty of opportunities over the next few weeks to look at that Bill in general and Clause 11 in particular.

I do not believe that this Government have done the union any favours by the cack-handed approach they have adopted to the Bill, particularly their treatment of the devolution settlement in Clause 11. As the conclusion of the first report of the Public Administration and Constitutional Affairs Committee in the other place said in November:

“The overall concerns regarding the devolution aspects of the EUW Bill arise from the constitutionally insensitive nature of the UK Government’s approach in Clause 11”.


It is not fit for purpose. It turns on its head the spirit of the devolution settlement: that everything is devolved except what is expressly reserved.

We now seem to have got some recognition from the Government that they got it wrong. The Secretary of State for Scotland promised amendments in the House of Commons. I will not indulge in scoring political points that they were not produced; I think it is better to get it right than rush it. However, it is a matter of regret that the elected House will not have a proper opportunity to consider the amendments—only in ping-pong.

I very much share the view expressed by the noble Lord, Lord McConnell, that getting an agreement should not be terribly difficult. In Scotland, there are an estimated 111 instances where powers being repatriated have a devolution component. The Scottish Government agree that there are areas—not least with regard to the functioning of the single market in the United Kingdom—where UK frameworks are necessary. The United Kingdom Government agree that some elements can be directly devolved to Belfast, Cardiff and Edinburgh on Brexit day plus one, but on others we will require memorandums of understanding, working together and common agreements. Rather than political grandstanding, a bit of rolling up the sleeves and getting down to it would be very helpful.

I cannot accept that a Parliament such as this—which in the past two years devolved the whole of income tax, with one or two exceptions, to the Scottish Parliament—will find a stumbling block when it comes to issues such as chemical regulations, including pesticides, or energy performances and building directives. A good dose of common sense will sort this out. The Minister should tell the House, as we approach Second Reading, where the agreements are that have already been reached. Is it a complete stalemate, or are there areas where it has already been identified what goes into each basket, be it in terms of common frameworks, memorandums of understanding or direct devolution?

The European Union Committee, whose report, as the noble Lord, Lord McInnes, indicated, we debated in October, talked about the need to set aside differences and work constructively. That is particularly the case today. Looking to the future, we need that spirit of co-operation.

Last night, I attended a seminar by the Institute of Chartered Accountants of Scotland—I refer to my entry in the register of interests as chair of the regulation board—on what we can learn from Canada for Brexit. I learned that when CETA was being negotiated, representatives from the provinces and the territories were always in the negotiation room. I think the Government could do a lot better than they have been up to now in engaging and embracing active collaboration and co-operation from the devolved Administrations. Early on, I remember giving evidence to the Select Committee on the Constitution, where it was suggested, not only by me, that there was much merit in seconding civil servants from the Welsh and Scottish Governments into DExEU or the Cabinet Office to assist. I am not sure whether it ever happened; perhaps the Minister can tell us.

Again, looking to the future, when the UK frameworks are established—and they must be established by consent—we should look at ways in which we can entrench them, be it by statute or, as the Welsh Government have suggested, a UK council of Ministers, so that the UK Minister does not act as the English Minister in imposing a solution but that there is respect among the different nations of the United Kingdom and their Ministers. In that way, we can move forward. If it is by establishing these relationships and providing suitable mechanisms that we take the United Kingdom further down the road to federalism, then the very dark cloud of Brexit may yet have a silver lining.

--- Later in debate ---

[Lord Duncan of Springbank]

I thank the noble Lord, Lord McConnell, very much for his intervention. The respect agenda is at the heart of the answer to that question. The deep dives are vital for each of the participants to recognise that the solution needs a common framework to address the particular challenges. There will be tensions—I do not doubt they will exist—where there is disagreement, where one of the Administrations say, “Actually, in this particular area, we believe this and the other one disagrees with it”.

Part of the bigger challenge is the movement of rules coming back from the EU, where there are—as the noble and learned Lord, Lord Wallace of Tankerness, pointed out—111 laws that directly affect Scotland. For Northern Ireland, it is more than 140; for Wales, it is around 60. Of course, because of the devolved settlements, the rules are different; so again, the point is to try to find areas of common consensus. In truth, representatives of the various individuals who are part of the stakeholder community will each have to be able to defend their points to the stakeholders, to explain to them why they are arguing one way or another. Those stakeholder communities must also lend their acceptance to this particular point, because upon the hearing the outcome of these discussions, they cannot—and should not—rise up in arms and say that it is an absolute travesty and a scandal. They should be satisfied that this is the best and right way of doing things. The important thing to emphasise is that this is not in any way an attempt by the UK Government to demand certain concessions from the devolved Administrations. That is not the ambition at all.

On the wider question of the institutional arrangements whereby the various parties come together and meet, there have been challenges. There is no point in pretending otherwise. I have a very helpful list somewhere. Noble Lords have asked very thorough questions so I have many pieces of paper; I am now hunting for the right one. We had a hiatus between February and October 2017 for one particular reason: the election. That slowed things down quite considerably. The important thing to stress is that for a very long period, the JMC’s arrangement had been all but moribund: it had not been a functional part of the engagement between the devolved Administrations and the UK Government. Recognising that that was no longer fit for purpose, the UK Government have sought to expand the number of forums by which we have agreement under the JMC, as well as recognising that the frequency of those must therefore be driven by the necessity of the particular issues. That is why what would have been the traditional ongoing European legislation—which was the most important forum for the focused issues before the devolved Administrations—is, if anything, the quieter forum. The negotiations forum is now absolutely critical, as is trying to make sure that there are opportunities at those meetings for a free and frank discussion. There are, and I can assure noble Lords that the discussions are very free and very frank.

There are challenges. I am reminded of the words of the noble Lord, Lord Bruce of Bennachie. At the outset, one of the challenges in this area was that it was very hard to reconcile the demands of the different Administrations because they were not bridgeable in simple terms. So, the notion and the paper put forward by the Scottish Government could not be easily reconciled with the reality of what the UK Government believed they had to deliver after the referendum. That caused a lot of the political tensions. It is very hard to meet on common ground when one party is on one side of the chasm and one is on the other; you end up falling to the bottom like Wiley Coyote, with your arms flailing in the air. We were trying to avoid that outcome. It is bridge building that gets us across the chasm, I hope.

We need to give some consideration to the situation in Northern Ireland. Many noble Lords have rightly mentioned that there is a void in Northern Ireland. We cannot pretend otherwise. I can assure noble Lords that my right honourable friend the Secretary of State for Northern Ireland is actively pursuing facilitating the dialogue required to develop a functioning Executive. On more than one occasion, I have said from this Dispatch Box that Northern Ireland is ill served without an Executive. Although the civil service there can do a great deal to help in many different areas, they cannot do everything. That is why it is important to recognise again the need for a realistic and functional dialogue. Those talks are ongoing; we hope that those around the table will recognise the importance of securing agreement on this occasion but we recognise the challenges that we face.

On the question—again, raised by a number of noble Lords—of the agreement reached by the UK Government and the EU before Christmas, which touched on Northern Ireland and the border question, it is important to recognise that that is but one step toward a larger agreement between the UK and Northern Ireland. Without that agreement, there will be significant challenges for both sides. That is why, in this instance, the ongoing negotiations again seek to address the challenges. One would hope that through that, the negotiations will deliver the Northern Ireland question as part of a bigger settlement. Those negotiations are ongoing. I believe—this is where it becomes important—that we often find ourselves, particularly when following certain newspapers, caught up in an almost daily crisis of one sort or another, with the narrative driven forward in that fashion. However, if we step back and think about it, just before Christmas the UK Government managed to deliver on what they said they wished to do: secure agreement on these three key areas, to allow negotiations to begin shortly thereafter. They achieved that. From some of the reporting, you would have thought that they had failed, but they did not. They moved things forward in that fashion.

The time ahead will not be straightforward. I realise that we will have plenty of opportunities to discuss further the questions that underlie the repeal Bill. I am sure that many of the contributions made today will help inform the Government as they begin to think about how best to approach the investigations into the repeal Bill and its functionality. But we will have to resolve those questions here in such a fashion that we can return those amended clauses to the House of Commons to allow them to deliver upon that. I believe that we will make a difference and, indeed, do what this House always does: seek to make things better. I think the Government will appreciate the work done here in that area.

We have to recognise that the union is perhaps something larger than just the moment of Brexit and the discussions that surround it. A number of noble Lords have pointed out today that immediately after the referendum on Brexit, there was a great fear that our union would itself begin to experience some of the challenges but in truth, there has been a degree of resilience. As we witnessed through the, shall we say, unexpected general election last year, the parties that had perhaps anticipated doing better, certainly in Scotland, did not do so on the basis of what they offered the people. That should be a salutary reminder to anybody who believes that they have the people behind them: it is always worth looking over your shoulder, just to make sure they are still there. You cannot take the people for granted in this regard. The result of that election was a useful reminder to us all to focus on what the people want, whether that be the people of Scotland, the people of Wales or, I hope soon, the people of Northern Ireland.

We in this House must recognise that we have a role to play in ensuring that our union works, and works well. That is why I am indebted to my noble friend Lord McInnes for bringing before us today an opportunity to discuss and explore these issues. It is timely because next week, we will be knee deep in thorough discussions on the questions before us regarding repeal. As I try to answer the questions, I am aware how useful that will be to my colleagues in facilitating, I hope, the right sort of dialogue as we go forward. But I am also aware that there is heavy lifting to be done and we have not yet resolved these issues. On the question of Clause 11 as it affects the devolution settlement, we need to be able to bring before your Lordships a workable amendment that can deliver exactly what it says on the tin—and when we tell your Lordships that we have it, we are telling you that other people in Edinburgh, Wales and, through consultation, Northern Ireland agree that this is the way forward. That should allow us to make that necessary step.

When I began my remarks, I pointed out that in some respects we have been through a revolution, as only Britain can do, in the way that our powers have moved. But we have done so in a piecemeal fashion; again, a number of noble Lords made this point. We need now to refocus on trying to ensure that we are not making stumbling progress but have a clear objective: to make sure that the devolved Administrations fit into a sensible and workable government structure for the United Kingdom. People have to recognise that whether they are in Edinburgh, Wales or Northern Ireland, they have two Governments, not just one. It is important to stress that. Again, we need to be better at explaining to people what the Governments are doing and what their actual responsibilities are. Quite often there is sheer confusion on these points.

[Lord Wallace of Tankerness]

I generally agree with the point the Minister is making but, as part of that better integration, will he respond to the suggestion I made, based on the Canadian experience, that Northern Ireland officials and Scottish and Welsh Ministers might also be involved at the table in the forthcoming phase 2 negotiations?

[Lord Duncan of Springbank]

The noble and learned Lord, Lord Wallace, makes an important point. As a Member of the European Parliament many years ago—no, last year; time is just slipping through my fingers here—I am very conscious that the discussion was always about who sits at the top table and therefore represents the United Kingdom. I was always of the view that the table in London, where all the devolved Administrations argued these things through, was as important as the seat at that top table. Determining the UK position in this instance will be exactly the same. We must deliver a UK position which is part of the respect agenda and delivers for the peoples of Scotland, Wales and Northern Ireland that which is right, workable and appropriate. I can assure your Lordships that those will be dingdong discussions around the tables in London, where the heaviest lifting will be done. As to the point the noble and learned Lord makes, to be frank I do not know the answer, but the important table is the one where we bring together all these individuals to make sure that we are positioned to deliver on behalf of the people we represent.

I am conscious, again, that I am perhaps overstaying my welcome. On this day of Robert Burns, we are conscious that we celebrate that across the globe. So perhaps I might close with some words of Burns, which I thought were slightly appropriate:

“O let us not, like snarling curs,

In wrangling be divided,

Till, slap! come in an unco loun,

And wi' a rung decide it!

Be Britain still to Britain true,

Amang ourselves united;

For never but by British hands

Maun British wrangs be righted!”.