European Union (Notification of Withdrawal) Bill

Lord Elystan-Morgan Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 21st February 2017 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, I will confine my remarks to the effect that leaving the European Union will have on Welsh devolution, in particular on the Welsh devolution settlement contained in the Wales Act 2017.

Wales achieved a reserved-powers constitution in that Act. As the House will appreciate, there are two main patterns of devolution. One is a reserved-powers constitution where there is notionally a transfer of the totality of powers and then a reservation of certain specific exceptions. The other is a piecemeal system—what is called conferred devolution—and that is what Wales had from 1964 onwards, when it achieved its Secretary of State, and indeed there have been hundreds if not thousands of what one might call confetti-like situations of conferring individual powers.

Central to the concept of a reserved constitution is the idea that the mother parliament has on the table, as it were, the totality of powers that are available and relevant in the situation, and that the mother parliament looks upon those powers and says, “This is all that we have. This is where we draw the dividing line between the totality that is transferred and that small remnant that is retained and reserved”. If indeed for some reason the mother parliament did not have the totality of powers at the time, it goes to the very heart, kernel and essence of a reserved constitution. I make the case that that is exactly what happened.

From 1972 onwards—indeed, from 1 January 1973 when we entered the Common Market—it meant that the European Communities Act ruled with regard to a very considerable swathe of legal authority. Exactly what percentage that represents of the laws affecting us I would not like to calculate but it is very substantial. It may be 25%, it may be 30% or 35%, or even higher. What it means for Wales, and it affects Scotland in exactly the same way, is that some 5,000 elements of law affect those devolved countries and yet the authority was not on the table of the mother parliament. That seems to me to go to the very heart, core and kernel of the idea of a reserved settlement.

What can one do? We can look at three situations: one is the Sewel convention, a convention that is now contained in the Scotland Act and the Wales Act of last year. That convention says that it is accepted that the mother parliament, being the supreme authority, can do what it wishes in relation to a devolved Administration. It can change the situation overnight if it wishes, but it will not do so, and would not think of doing so, unless asked by that sub-parliament or unless there were some very exceptional circumstances. That, as I said, has been written into the law by way of the Scotland Act and the Wales Act.

It is a convention. The Supreme Court said it was a convention and nothing more. It does not have the power of law. That obviously must be the situation technically. However, the Supreme Court went on in its judgment, in paragraph 151, to say that, nevertheless, a convention is important. It is binding morally and politically. It goes on to say that such conventions are of immense significance and have to be respected to bring about the harmonious situation and amity between the mother parliament and the devolved parliaments.

Although you might say that Europe was a reserved matter altogether, that is not so. Paragraph 8 of the schedule says that, although European relations are reserved, the question of the administration and oversight of the operation of European relations is not reserved. Clearly, that is covered by the convention.

Secondly, there is the question of the Joint Ministerial Committee, where, in utter confidence, matters are disclosed between one party and another. It has a very considerable future: it is possible to build a mutuality of trust that can be more important for the future of the United Kingdom than anything else.

Thirdly, there is the question of protocols. When the legislation was going through in relation to Scotland and Wales in late 1990s, it was said that on matters that were not devolved, there would have to be protocols. In fact, however, it was a dead letter. I would like to see the breath of life breathed into the cold clay and dry bones of such institutions, which I think have a very considerable future.

As for the situation now, when these powers are repatriated, they will be repatriated, of course, not to Wales, nor to Scotland nor, indeed, to Westminster. A joint body should be set up between Westminster and Scotland and between Westminster and Wales to see exactly how one can bring about a settlement that is fair, just and lasting.

European Union (Notification of Withdrawal) Bill

Lord Elystan-Morgan Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Wigley]

My Lords, as the noble Baroness mentioned, it is still St David’s Day—just. I have my name on Amendment 21 and support what was said about the absolute need to ensure that the devolved Administrations in Wales, Scotland and Northern Ireland are at the centre of reaching a consensus—meaning, of course, some give and take—across the UK on what will be the proposed terms of withdrawal from the European Union and the future frameworks for our relationships with the EU.

As the noble Baroness mentioned a moment ago, the National Assembly for Wales already indicated its good will in this matter by publishing the White Paper, Securing Wales’ Future. It is an excellent and very constructive White Paper and I invite the Minister to endorse the positive approaches taken in it as a basis for the co-operation and consensus the Government pledged to seek. I hope that they can do that either by accepting Amendment 21 or in other ways.

If the Minister cannot or will not do so, that will undoubtedly be seen as an indication that, although warm words may be said about securing a UK consensus, it will not be underpinned by a legislative guarantee. In those circumstances, the provisions of Amendment 36 would be needed, preventing the Government from exercising the powers of this Bill until all devolved Administrations have agreed. However, if the Government can move along the lines of Amendment 21, I would see that as a positive way forward.

The noble Baroness also referred to the powers that, post Brexit, should be transferred to the devolved Administrations. Clearly, if Brexit goes ahead and powers are repatriated from Brussels, some will deal with matters that are totally devolved, such as agriculture. To my mind, these functions should immediately be directed to Cardiff, Edinburgh and Belfast as appropriate. Clearly, there needs to be some mechanism to resolve any disagreements about what should be passed on to the devolved Administrations. In that context, I await the words of my noble friend Lord Elystan-Morgan, whose Amendment 43 possibly addresses that.

In conclusion—these will probably be my last words in Committee—what matters so much is that, in Edinburgh as in Belfast and Cardiff, there is a feeling that the Government are working with them as partners in this project. Clearly, the power rests in London, but if it is a question of “London knows everything better” and if it does not take on board the objectives and tactics put forward by any of those devolved regimes, and does not give them serious thought, then it creates problems for itself in its relationship with these organisations.

I seriously suggest to the Minister that he please consider this White Paper as a basis. It has cross-party agreement in Cardiff and it is not impossible also to form a cross-party basis here.

[Lord Elystan-Morgan (CB)]

My Lords, in proposing Amendment 43, I accept totally everything that has been said by the noble Baroness, Lady Hayter, and my noble friend Lord Wigley in respect of their amendments. Those amendments are social and political in their nature. They constitute an overwhelming case for why, in order to preserve the unity of the United Kingdom, the reality of devolution and the harmony between the various constituent parts of the United Kingdom, respect should be shown by the mother parliament to the parliaments of Wales, Scotland and Northern Ireland.

Those are political and social considerations; the matter that I wish to propose is in no way contrary to that but runs parallel. It is a constitutional point. It is a marvellously simple constitutional point, and I think I can deal with it in very short compass. It concerns the reserved powers constitution that Wales achieved under the Wales Act which became law a few weeks ago. The purpose of that Act was to change the whole pattern of devolution for Wales from a conferred pattern of devolution—bit by bit over the years, a confetti type of development—to a reserved powers constitution.

It is axiomatic as far as a reserved powers constitution is concerned that two matters should be dominant. The essence of a reserved powers constitution, as we appreciate, is that there is a transfer in the first instance of the totality of power from the mother parliament to the subsidiary parliament, but that at the same time there should be a reservation of a strict number of exceptions and reservations. It is axiomatic, therefore, that two conditions must prevail. First, the mother parliament must be seized of all the legislative power and authority that is relevant to the situation. That is obvious. Secondly, the mother parliament must be cognisant of the powers that it has and must be in a position to know exactly where to draw the line between that which is transferred and that which is reserved. Neither of those conditions exists in this case.

Why is that so? I remember a piece of dog Latin that I learned many years ago when I was a law student in relation to the sale of goods: “nemo dat quod non habet”—no man can give that which he does not have. Nobody can transfer that which they do not have. When it came to the question of deciding what powers Wales should have, the mother parliament did not have a mass of those powers that are relevant to the situation. There is a huge area that is missing. It may be 25%; it may be 30% or 40%. It is massive in relation to the totality of legal authority. That authority was missing from 1 January 1973, ever since the European Communities Act 1972 came into force. It never was with the mother parliament to dispose of. It could not possibly give it to Wales, or to Scotland for that matter—in Northern Ireland, the situation was entirely different, because its constitution goes back to 1922.

What, therefore, is to be done? The following matters have some relevance, broadly. Of course, there is the question of the Sewel convention, which has been written into both the Scotland Act and the Wales Act. That will have its effect gradually over the years. There is also the question of the joint ministerial committee, which meets in confidence and is able to discuss in a situation of total secrecy matters which are of the utmost importance to the mother parliament and the devolved parliaments. There is also the question of protocols, which was greatly promised in the late 1990s when legislation in relation to Scottish and Welsh devolution went through but has been as dead as the dodo, I am afraid, and should be revived.

I think—this is where we have the amendment—there is the necessity for something that is much more focused. That is why I have proposed that the Prime Minister and the First Minister for Wales should be responsible within a period of two months for forming a body that will look carefully at the situation to determine: first, what is the scope of legislative authority that is missing here; secondly, what is the nature of that authority; thirdly, what entrenched rights—what established rights—have come into being in relation to that since 1 January 1973; and, lastly, what situations are there where there has been legislation under the 1972 Act which has been deemed to be incompatible with the European instruments. That is a very substantial job, and I suggest that the period that I have nominated of 12 months is not unreasonable in the circumstances.

Many people will say that this is not necessary and that Wales from Cardiff and the Westminster Parliament from here can negotiate at arm’s length. I do not believe for a moment that that is possible. We have seen exactly over the last few months when we were dealing with the Wales Bill how almost impossible it was to persuade Parliament that much of what had been reserved was utterly trivial and was an insult to the Welsh nation. Things such as sharp knives, axes, dogs, licensing, prostitution, hovercrafts—all those matters which scream for domestic consideration—had been reserved.

Years ago, a very famous Welsh statesman said, “Why look into a crystal ball when you can read the book?”. We know exactly what happens when Wales and England deal with each other in that way. It is not the basis of partnership and equality at all. The cobwebs of colonialism still exist in the relationship between Wales and England, I am afraid. Something better has to be done, and I believe that my amendment can bring that about.

[Baroness Randerson (LD)]

My Lords, the first point in my notes is to remind your Lordships that today is St David’s Day. There have been moments in the last couple of hours when I wondered if I would have to scrub that bit, because it would no longer be St David’s Day. However, I maintain that discussing these things here on St David’s Day is the best possible way of celebrating it.

St David’s Day and its celebration emphasise the point that the UK is a voluntary association of four nations bound together by tacit consent. With that comes the obligation to mutual respect. I acknowledge that the Government are grappling with a very complex picture. Scotland voted to remain but has a Government who wished to remain. Wales voted to leave, but has a Government who wished to remain. Northern Ireland voted to remain, but has a pro-Brexit First Minister and faces elections this week. England voted to leave and that vote has dominated and outweighed the size of the votes in all the other nations. The UK Government’s determination to take a strict and harsh interpretation of the Brexit vote has made that more obviously difficult for the other nations to accept.

I added my name to these amendments because they express, in very clear terms, the need for formal structures for consultation with the devolved Administrations. Mere informal assurances of consultation will be totally inadequate; there must be formal structures.