European Union (Withdrawal) Bill

Lord Hain Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

I commend this amendment to the House and conclude by saying that it is not just about staying in the customs union but also the single market. I took part in a debate in the Cambridge Union on 8 February and one of my opponents was Jacob Rees-Mogg. Do not ask me the result—do not ask him the result either. It was closed by one of my contemporaries from Cambridge who concluded by asking, “Why is Lord Bilimoria so negative about Brexit? Why doesn’t he realise that we as a country are the best of the best in so many fields? Look at that—we should be proud. We can go global”. I then concluded for the opposition by saying, “Helena Morrissey rightly pointed out that Britain is the best of the best—at aerospace, automobiles, beer, architecture, accounting, lawyers, creative industry, museums, film and music. We are the best in the world. Isn’t it amazing that we have done that in spite of being in the European Union for 44 years?” What we need to do is continue to remain in the European Union.

[Lord Hain (Lab)]

My Lords, I will speak in greater length on the second group but I want to touch on just a few points, if I may, to support Amendments 162 and 197, tabled by the noble Lord, Lord Wigley. I begin by saying how much I agreed with the speech of the noble Lord who has just spoken and also the speeches of the noble Viscount, Lord Hailsham, and the noble Lord, Lord Carlile. I agreed with every word of them, and the best way those two noble Lords can express their passion about Northern Ireland and the dangers of having anything other than the same customs union and single market either side of the border is to support Amendment 198, which I hope, at least on Report, will be put to the vote.

The noble Lord, Lord Lamont, spoke with great eloquence. The problem is that he does not agree with his Government’s policy. The Government signed up in December to an agreement with the European Council for regulatory alignment. That is not what the noble Lord is arguing for. This brings me to Amendment 197, which does not say that we will be in the single market and customs union but that we will have,

“the same rights, freedoms and access”

as exist now. I thought that this was the policy of the Government: to leave but to have exactly the same opportunities for businesses as we have now. As the noble Lord, Lord Wigley, explained, it is of great concern to the Welsh Government, who I am close to. It is the same concern of the London governing authority, expressed through the mayor, and I am sure—since it voted to remain—it would be the same view of the Northern Ireland Government, if they were functioning.

Publishing impact assessments is the least that the Government can agree to. I ask the Minister, in responding to this debate, to explain why they are so afraid of publishing impact assessments for Wales, Scotland, Northern Ireland and, for that matter, England. Why are they afraid of doing that? What is wrong with doing that? Can the Minister also say why he does not accept Amendment 197, when I thought that was what his Government were arguing for? Or are the Government reneging on what they signed up to in December, despite the fact that it was a solemn decision between the European Union and the United Kingdom?

[Lord Fox (LD)]

My Lords, my noble friend Lord Newby and the noble Lord, Lord Carlile, spoke of Kafka in the basement, but I was struck by another, more bizarre allusion earlier this week when the Brexit Secretary ruled out the “Mad Max” scenario post Brexit—I was not aware that the “Mad Max” scenario was on the table. I was concerned about whether he had actually seen the post-apocalyptic, low-budget film packed with ridiculous contraptions and strange fashion. Then, today, the European Research Group issued its ultimatum and it became clear how appropriate the Secretary of State’s imagery was. He clearly has seen not just the original “Mad Max” film but the sequels as well. We are living in a world where so many things are said that clearly cannot be true. We are living in a fantasy world, and we have heard some of those fantasies today.

In speaking to Amendment 89, I declare my interests as set out in the Members’ register, which of late have focused primarily around the aerospace and automotive industries. Last night, along with other Members of your Lordships’ House, I attended the Engineering Employers’ Federation annual dinner, which followed its extremely successful conference. The EEF was celebrating arguably the best year for manufacturers for at least a decade. This is not a justification of Brexit; it is a repudiation of it. The single market, the customs union, the free movement of people and many other facets of the European Union helped to facilitate this highly impressive performance, built on the back of increased trade not only with a burgeoning European economy but with non-European countries. This trade increased while we were still in the customs union. Increased trade with China, albeit from a low base, was achieved while we were still in that iniquitous thing, the single market. We achieved growth with both our European partners and partners in the rest of the world.

To be clear—I know that all noble Lords know this—the single market ensures that UK companies can trade with any of the 27 European Union countries without restrictions and arbitrary barriers. It is a question not just of tariffs, of course, but of regulations and standards and what the Government term “friction”. One of the most damaging things that the Government did from the outset was to rule out membership of the single market and the customs union post Brexit. We see the issues that that has caused, particularly in Northern Ireland. The noble Lord, Lord Carlile, has talked very eloquently about that issue but I shall address the business and industrial implications. The industrial fallout is extremely daunting. We heard evidence of that last night at the EEF dinner. Many companies are only just starting to realise the complexity and friction that will be introduced into their daily business dealings. Many more have yet to comprehend this. Certainly what this means for smaller SMEs is still beginning to dawn on them.

Amendment 89 is focused on the single market. As noble Lords can tell, I think the UK should remain in the single market permanently. However, in case that upsets your Lordships too much and they are reluctant to support Amendment 89, I should emphasise that that is not the point of that amendment. As the noble Lord, Lord Wigley, eloquently said, Amendment 89 is specific in seeking to ensure that the Government cannot use their regulation-making powers in a way that would lead the UK to diverge from the single market. Such divergence would introduce friction between the UK and the 27 in regulation and standards that would harm the very supply chains that manufacturers gathered to celebrate last night. Remaining in the single market would be the most desirable outcome. I hope that the Government will eventually see sense and realise that it is in the UK’s economic interests to stay in the single market and the customs union, as was eloquently expressed by the noble Lord, Lord Bilimoria. However, I trust that your Lordships will recognise that Amendment 89 has a much less ambitious aim than that and will see it essentially as a prudent way of ensuring that we do not increase friction in our trade with the EU.

Your Lordships will be interested to hear that last night the Secretary of State for BEIS, who addressed the more than 1,000 manufacturers from all over the United Kingdom present at the dinner, said that we are going to remain in the single market and the customs union throughout the transition and that nothing will change. Essentially, that means that nothing will change for three years from now. I have heard other messages from other members of the Government, so it would be useful if the Minister could take this opportunity to confirm that that is the settled view of Her Majesty’s Government. That being the case, I am sure that Her Majesty’s Government will have fewer qualms about supporting Amendment 89, because surely Ministers will not seek to erode those barriers to frictionless trade.

In short, it is important that nothing in the Bill hinders the operation of the frictionless, tariff-free trade arrangements in goods and services that we currently enjoy. Amendment 89 seeks to achieve this, and I hope that the Government will realise that and support this sensible addition to the Bill.

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[Baroness Kennedy of The Shaws]

I could not agree more with the underlying sentiments that have just been expressed by the noble Lord. I have said it in this House before: unfortunately, many of those advocates of Brexit are the very same people who do not believe in international law and treaties; who do not support human rights internationally and their protection; who do not want us to be part of the European Convention on Human Rights, which is an important protection for citizens in this country; and who have reservations about what the peace process in Northern Ireland brought about. I regret that there are those common factors, and it is something that is worth our reflecting on.

[Lord Hain]

The answer to the noble Lord’s question is that we joined the European Union at the same time as Ireland. We were, therefore, in the same situation together outside it, and we have been in the same situation together inside it for over 40 years. What we are doing, for the first time since the historic situation of the common travel area and all the rest of it, is putting ourselves outside it and in a very different place. That is why the problem has arisen.

[Baroness Kennedy of The Shaws]

I should explain that the European Union Select Committee has just been in Brussels—in fact, we returned this afternoon. It always comes as a surprise to so many in this House to know that law that was made in Europe, and all the things we are talking about that emanated from Europe, was not thrust upon us. Many of those regulations and much of that law were created by British lawyers, politicians and representatives collaborating with people across Europe and with our Irish colleagues to make a fabric that makes trade and many other things work. The idea that we are in many ways rending that apart is a source of great regret and we are putting at risk the peace that we have created across Ireland.

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[Lord Adonis]

My Lords, I shall also speak to Amendment 3, which would leave out “on exit day” and insert,

“on a date to be determined in the Act of Parliament enacted for the purposes of section 9(1) of this Act”.

The first and crucial significance of the Bill is the repeal of the European Communities Act 1972, and a critical issue that noble Lords will wish to address themselves to is the date on which that happens. The provisions in the Bill in respect of that date are not straightforward. Clause 1 provides that the European Communities Act 1972 will be repealed “on exit day”. Clause 14(1) defines exit day as,

“29 March 2019 at 11.00 p.m.”,

but Clause 14(4) provides that,

“A Minister of the Crown may by regulations … amend the definition of ‘exit day’ in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”.


So exit day is set, but there is a provision for the Government to amend the date. However, my reading of subsection (4) is that a Minister of the Crown may only substitute one date with another date. He cannot suspend the operation of the Act entirely even if there is no agreement and it is in fact the intention of Her Majesty’s Government not to proceed with leaving the EU.

My first question to the Minister is: what is the Government’s understanding of the scope of Clause 14(4)? Is it only possible to substitute 29 March 2019 with another precise date under regulations or is it possible for the Government, by the exercise of the powers under Clause 14(4), to suspend the operation of the Act either indefinitely or in perpetuity? Secondly, in respect of the procedure under Clause 14(4), if the Government wish to change the date of 29 March 2019, what would that procedure be? I would be grateful if he could set it out so that we had it clearly established in Hansard, because I think it is an issue to which the House will wish to return in due course. The procedure for amending the exit date could be of crucial importance if the withdrawal agreement that the Prime Minister presents later this year or early next year leads, either by her intention or by a decision of Parliament, to a desire to extend the Article 50 period and apply for an extension beyond the end of March 2019.

I have those two specific questions for the Minister, but I wish to make a general point for this debate, about the concept of the exit day and the repeal of the European Communities Act 1972. It is clearly the case that Parliament needs to make provision for the substitution of the 12,000 regulations which have currently been made under the European Communities Act 1972, and there must be a procedure for those to be enshrined in United Kingdom law. There obviously needs to be a functioning statute book on 29 March 2019, or whenever the country leaves the European Union, and therefore there need to be procedures in place for that statute book to be fully in place by the end of March. We will have many debates in due course about what that procedure will be, how far it can be done by the Government making regulations and orders, how far it requires parliamentary consent and what the parliamentary procedure should be—all the issues which your Lordships will be familiar with under the broad heading of Henry VIII powers. We will have long debates on that question.

However, I do not think it reasonable for Parliament at this stage to give the Government a near-unilateral power to set the date of leaving the European Union when it is still not clear that it is the will of Parliament that we should leave the European Union. We have not seen the withdrawal agreement that the Prime Minister will negotiate or undergone the new procedure instituted by the amendments passed in the House of Commons, which will need to be followed before the withdrawal agreement is ratified by Parliament. As Parliament will itself make the decision on whether we leave when it can fully consider the terms which the Government have negotiated for leaving, it seems to me that the appropriate time to set the date under the Bill for repealing the European Communities Act 1972 is when Parliament agrees or does not agree to the withdrawal agreement that the Prime Minister has negotiated. To do it in advance in this Bill is a classic legislative case of putting the cart before the horse. The right time to set the date on which the European Communities Act will be repealed is surely when Parliament actually takes the decision and sets the date when it intends the treaty of withdrawal to take effect.

This is significant is because otherwise the danger is that we get into a convoluted and potentially destructive process in terms of relations between Parliament and the Government concerning the operation of the Bill when enacted with the withdrawal agreement. At the moment, the Bill stipulates that the European Communities Act 1972 will cease to have effect on 29 March 2019 or on some other date that a Minister may set. That process is set out in the Bill, but there will then be a withdrawal agreement that will set out the date, to be agreed by Parliament, when the treaties replacing our current European Union commitments will take effect. It seems to me and, I think, to other noble Lords much more straightforward, simpler, less confusing and possibly more conducive to harmony between Parliament and the Government for the decision on the date of the repeal of the European Communities Act to be taken at the same time as Parliament takes its decision on the treaties which will replace it.

These are probing amendments seeking the Minister’s guidance on the scope of Clause 14 (4), but I also wish to start a debate in Committee, which I think will probably continue into Report, on whether this is the appropriate piece of legislation for setting the date of departure from the European Union in respect of the repeal of the European Communities Act independently of Parliament reaching a decision on the withdrawal treaty. I beg to move.

[Lord Hain]

My Lords, having added my name to the amendments in the name of my noble friend Lord Adonis, I want to explain that they are designed to give back to Parliament control of when the European Communities Act 1972 is repealed and to strengthen the effect of the amended Clause 9(1), which was designed to give Parliament a meaningful vote on the final terms of withdrawal and which required that a new statute be put in place before any regulations are made to implement the withdrawal agreement.

I do not need to remind your Lordships’ House that what is at stake is more than a matter of process or procedure. It is ultimately about whether either Parliament or a group of hard Brexiteers who are trying to manipulate the Government will decide the future of the people of this country. What is at stake is people’s jobs and standards of living, which depend on our trading relationships; the protection of labour rights and environmental standards; the alliances on which Britain’s future security depends; and the future of the Good Friday agreement, which has brought peace and stability to the island of Ireland for generations to come but is itself now under attack from assorted Brextremists—including, astonishingly and recklessly, a former Secretary of State, Owen Paterson, who should know a great deal better. It is reckless and downright dangerous to put Brexit dogma before peace and stability on the island of Ireland.

European Union (Withdrawal) Bill

Lord Hain Excerpts

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

[Lord Hain (Lab)]

The noble Baroness is making a very compelling argument about the agricultural and livestock issues associated with the Irish border. I suggest to her that it is even more compelling if the Committee takes account of the fact that many of these farms actually straddle the border; in other words, livestock moves back and forth of its own volition all the time. It is absolutely vital that these phytosanitary issues are addressed but the Government seem to be in denial about them.

[Baroness McIntosh of Pickering]

I am grateful to the noble Lord for that point. He is much more familiar with Northern Ireland and these arrangements than I am, but I am very cognisant of this and I am sure that the powers that be are as well.

European Union (Withdrawal) Bill

Lord Hain Excerpts

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

[Lord Griffiths of Burry Port]

I beg your pardon. I think the mistake is evidence of the fact that I am not qualified to answer that particular part of the noble Lord’s question.

[Lord Hain (Lab)]

With due respect to the noble Lord, Lord Forsyth, not for the first time he is wrong about this. Welsh Ministers, for example, and Scottish Ministers often attend the Council of Ministers with the permission of our own UK Government to make sure that their voice is heard. It has been done on a collaborative basis and is nothing to do with his anti-Europeanism: it is actually about how devolution has worked.

[Lord Griffiths of Burry Port]

I am delighted to receive that help from behind me, and also to hear from alongside me that, when my noble friend used to attend such meetings, he did not feel part of the furniture or not very welcome. Perhaps that in some way goes towards an answer.

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[Lord Wigley]

I have no doubt it had difficulty in passing it. None the less, the objective was a very valid one—to address the problems perceived in Scotland with regard to the level of alcohol consumption et cetera. The proposal was supported by many people in the social sector who wanted to see that sort of change. This is arguable, but the point is that you can have different tax regimes within a single market, as you have within the European single market. You can within the UK single market.

[Lord Hain]

I am sure my noble friend will agree with this point. Mention has been made of Scottish whisky—Scottish single malts and so on—but the best single malt in Britain comes from the Penderyn distillery in Wales.

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[Lord Foulkes of Cumnock (Lab)]

My Lords, I speak to Amendments 318B, 318C, 318D and 318E, which, it does not take a lot of working out, follow on from Amendments 318 and 318A. In fact, as the noble Lord, Lord Wigley, said, it is interesting that what I suggest in three of those amendments in many ways corresponds exactly with what the noble and learned Lord, Lord Mackay, suggested—as amended by the noble Lord, Lord Wigley. Yet we came to the conclusion separately. We may have been inspired by the same people, the same thinking and the same ideas, but we came to draft them separately, which is interesting.

It is also really helpful that the noble and learned Lord, Lord Keen, has said quite clearly that the Government are willing to look at these amendments and at some way of getting out of the impasse in which they find themselves. That is a really helpful way forward. However, the Government are the architects of their own misfortune. As my noble friend Lord Griffiths of Burry Port said, the Joint Ministerial Committee should have met more frequently and earlier. We were sent just the other day details of the fifth ministerial committee—on 16 October. It is extraordinary that we had only four ministerial committees dealing with this issue before then. It really is a dereliction of duty by the Government, which I think comes from the fact that, within Whitehall—as I found when I was a Minister—there is no understanding about devolution and what it involves. The Minister responsible was perhaps Oliver Letwin or Chris Grayling, so you can understand why they did not understand—but what worries me is that the noble and learned Lord, Lord Keen, has been the Advocate-General for some time, and he should have alerted the people around Whitehall and others to this problem a lot earlier. Indeed, the Secretary of State, David Mundell, who I will concede is a very nice man—

[Lord Hain]

In spite of being a Tory.

[Lord Foulkes of Cumnock]

In spite of being a Tory; that is right. He has been constrained by Whitehall in getting decisions. I remember well sending notes around every Whitehall department to try to get some agreement. It is very difficult. However, I would have hoped he would have flexed his muscles a little earlier.

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[Lord Lang of Monkton (Con)]

My Lords, after roaming around the various amendments to the government amendment, I would like to steer us back to the government amendment itself, which I support and which I hope will form a pathway to getting this matter resolved. I am afraid my remarks will be mainly focused on Scotland, where the battle has been fiercest, but I will refer to the other devolved Administrations in the context of the generality.

We have got here by a tortuous route of JMC meetings, consultations, arguments and a lot of delay. I acknowledge the willingness of the Government, in particular, to try to follow this approach of constantly being willing to participate in discussions and consultations. Much reference has been made in earlier debates to the spirit of devolution, to which the intergovernmental relations paper published by the Constitution Committee some time ago referred—indeed, we argued for many things, including some just referred to by the noble Lord, Lord McConnell. Given where we are in this farrago of committee meetings and consultations and rebuffs and demands and arguments about “consent” and “consult”, it is a relief to have an amendment to the Bill which we can debate and, I hope, remove the deadlock.

I prefer to start by reference to a component of the debate that seems to have been notable by its absence in discussion until my noble and learned friend Lord Keen raised it in the last debate, namely the Sewel convention. When the Scotland Act 1978 was going through Parliament, I asked my lamented and good friend Lord MacKay of Ardbrecknish what it was all about. It was not called the Sewel convention at that stage. He said, “Oh, it’s a good-will measure. When we and the Scottish Government both want to legislate on the same subject, we’ll offer to do it for them to avoid duplication”. If only. The spirit of devolution may have been alive then, but it has taken a battering since. The finished version has turned out a bit differently. Far from being a good-will gesture to foster harmonious relations, it has become a battleground on which Parliament seems under constant challenge, with one visit already to the Supreme Court and another allegedly brewing. That is not the spirit of devolution.

The Government deserve credit for endless trust and courtesy, but their patience has gone unrewarded. It seems that they are left with no alternative but to act as they now propose. The noble Lord, Lord Thomas of Gresford, who I am glad to see in his place, said in an earlier debate that it is a pity that devolution has got tangled up with the Brexit Bill. I absolutely agree with him—I wish they could have been taken separately—but it obviously is not possible. We are where we are. In the much larger arena of the Brexit negotiations, the challenge of this Bill is full of difficulties and complex issues. No solution is easy, but the Government have to make progress to keep to the timetable. In that context, I think reference to the Sewel convention makes clear that Parliament can legislate on devolved matters. That is an important point to remember and one that could have been prayed upon at the very outset as an alternative route to securing a satisfactory conclusion. Of course it is not something to do lightly, but we in the devolved Administrations need a solution. The word “normally” offers a key to this. There can surely be nothing less normal in the world of law-making than legislation to retrieve to our shores from the European Union over 40 years of legislative activity against a tight deadline and in advance of the moment of transfer—a retrieval that is vital to the maintenance of the rule of law as Brexit takes place. If that is not abnormal as an event, I do not know what is.

The Scotland Act and the Wales Act, as amended, and the convention are the nearest we can get to a stable base on which the devolution settlements can have some hope of harmonious survival, provided all parties respect that base. Enoch Powell’s dictum that power devolved is power retained has to prevail or the centre cannot hold, but sovereignty can be courteously delivered and received. The Government’s record on that is good. The Bill respects it and the guarantees that the Government have given. It specifically guarantees that no existing devolved power will be changed. Everything already devolved stays devolved. The area of dispute is a narrow, temporary and reducing one. As the Government’s amendment concerning EU powers being brought into the UK for the first time demonstrates—under the EU treaties, those powers must be transferred to the nation state in the first instance—the vast majority will go straight through to the devolved Administrations. Only those powers temporarily reserved that affect national frameworks, on which the devolved Administrations reached agreement in principle as long ago as last October, will be frozen en route until the frameworks can be decided upon. My noble and learned friend the Advocate-General covered that matter very effectively in his speech in the previous debate.

I respect the principles advanced by noble Lords and their sensitivity over matters that they point out are devolved, but there are other factors that again, in the spirit of devolution, could be deemed worthy of some movement by the devolved Administrations. These competencies and my noble and learned friend’s speech were very helpful on this—indeed, it makes my own speech almost redundant from now on, but I will make it anyway. These competencies coming home from the European Union were not ours to devolve before and do not necessarily fit in under the headings of what is claimed as devolved. They were not ours to devolve before; they are in many ways new and additional and reflect the changed legislative priorities that have evolved over the past 40 years. I just give one simple example of that change in agriculture: 40 years ago, we had a Ministry of Agriculture; now we have a Department for Environment, Food and Rural Affairs—a very much changed animal. Virtually all these new powers will as soon as possible end up with the devolved Administrations.

I do not know how the Government could do more without jeopardising their obligations to the United Kingdom as a whole. This Parliament is the only one that can negotiate the Brexit deal—the outcome will after all form part of an international treaty—and this Parliament is the Parliament of Scotland, Wales and Northern Ireland, as well as of England and the United Kingdom. I sometimes think that Scotland’s First Minister occasionally forgets that the Prime Minister is also her Prime Minister and that the Westminster Government—as the SNP derisively refers to us, as though we were a foreign power—are also Scotland’s Government as well as that of the other parts of the UK. It is the Prime Minister who can protect the First Minister from herself by ensuring that Scotland remains in the UK, as its people decided only three years ago, and thus in the United Kingdom’s single market, which is the mainstay of Scotland’s economy. As I think all your Lordships now know, it takes four and half times more exports than the entire European Union does.

Yet still they rage against the light. The intransigence shown by the Scottish Administration was always likely to emerge. I diverge here from my noble and learned friend Lord Mackay of Clashfern—though fortunately not on a legal point—as I believe it was always going to emerge, and it is what the Scottish Government mean by “negotiation”, because they are working to a different agenda, an agenda with only one item on it: independence. Everything in every area of government in Scotland is subservient to that, hence the neglect that we see of education, the economy and all the other matters that are their responsibility. If they can find of way of turning everything that happens into a source of grievance, they will do so. Grievance is their default position. They would make a grievance out of a ray of sunshine if they thought it would help their cause. Where in that Administration is the spirit of devolution? There is no power grab in the measures proposed in the government amendment, quite the reverse; it is a power bonanza. The devolved Administrations should welcome it as a ray of sunshine.

[Lord Hain]

Even accepting the noble Lord’s criticism of the nationalist Government in Edinburgh, can I just remind him that the Welsh Government—a Labour Government and a pro-union Government—are just as critical of the stance that the Government of the UK have taken up to now? His remarks do not take account of the depth of feeling that there is in Wales and the Welsh Government about this matter and I caution him about that point.

[Lord Lang of Monkton]

I take note of what the noble Lord says, though I have to say that I have heard information from other sources which suggests that the opposition in Wales is nothing like as strong as it is in Scotland, but it feels obliged to go along in the wake of the Scottish attitude. We will have to disagree on that.

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[Lord Dunlop (Con)]

My Lords, the hazard of speaking late in a debate is that, in the interests of brevity, you have to shred your speech; none the less, I hope that what I am about to say is still coherent.

It would be hard to deny that since 2010 significant powers have been devolved to Scotland, Wales and Northern Ireland. As more powers are devolved from Westminster, it becomes ever more important to attend to the glue—the institutions and arrangements that hold together the United Kingdom—and Brexit brings that imperative into sharper relief.

At the heart of the Clause 11 debate is an apparent tension: on the one hand, the powers of the devolved legislatures should not be changed without their consent and, on the other, one part of the UK should not have a veto over legislation to protect the interests of the UK as a whole. I accept that resolving that tension is not an easy matter. Therefore, Clause 11 addresses a very real issue that needs to be recognised and dealt with. The status quo ante cannot simply be asserted because there is no status quo ante. Our exit from the EU creates what the noble and learned Lord, Lord Hope, recently described in a devolution debate in your Lordships’ House as a “void”, and he spoke of the need to create something new. If that is the case, it seems entirely sensible to pause and put in place a temporary mechanism for avoiding legal and regulatory divergence while the void is filled and new frameworks are discussed and agreed. Indeed, if I read it correctly, our own EU Committee recommended something similar in its Brexit devolution report. That is what Clause 11 is intended to achieve.

Of course, the clause could have been handled differently, and I think the Government have tacitly accepted that by agreeing to amend it. As has been recognised on all sides of the Committee this evening, real progress has been made. It has already been mentioned that the Joint Ministerial Committee has agreed six principles for establishing where common frameworks are necessary. Last Wednesday’s Joint Ministerial Committee agreed that intergovernmental structure and the devolution memorandum of understanding should be reviewed to ensure that they are fit for purpose as we leave the EU. I think that everyone accepts that revision is overdue. The MoU was last updated in 2013 and has been under review since 2014, and some firm conclusions are now urgently required. I hope, therefore, that the Government and the Minister can help build confidence that this latest review will lead quickly to concrete results by going as far as they can to spell out the process and timetable for completing this work.

The other welcome development is the publication of the Government’s own analysis of where common legislative frameworks may be required. To date, this has been a theoretical political debate, and greater transparency can only help to stimulate a practical debate in Scotland, Wales and Northern Ireland, informed by real businesses and individuals whose livelihoods depend on trade across the UK.

The Government have now tabled their own amendments to Clause 11 and Schedule 3. Again, I welcome their willingness to go the extra mile to find a resolution. Those amendments are not just tweaks; they represent a significant rewriting of Clause 11. Yet the First Ministers of Scotland and Wales say that they still cannot give their consent to the Bill on the basis of the Government’s current amendments to Clause 11. They seek further amendments and reassurances. It is surely within the realm of possibility to bridge the remaining gap.

In the interests of striking a deal, what further reassurance can the Government provide to the devolved Administrations in the following areas? My noble and learned friend helpfully confirmed earlier that the Government anticipate that the existing consent conventions will apply for any subsequent legislation brought forward to implement common UK legislative frameworks where they engage devolved competence. Can he also confirm that the Government will observe what I might describe as a “self-denying ordinance” not to legislate pre-emptively for England in those areas where it is agreed that common UK legislative frameworks are necessary? To do otherwise would seem to defeat the objective of avoiding regulatory divergence and the very purpose of the Government’s “holding pattern”.

I ask the Government to look closely at the case that has already been made for applying a sunset clause of suitable length to Ministers’ regulation-making powers in Clause 11. This would allow sufficient time for the frameworks to be agreed while providing the devolved Administrations with the backstop safeguard against the risk of powers becoming stuck indefinitely in the holding pattern.

I conclude by saying that there are two sides to every agreement and I hope the devolved Administrations will play their part by showing a willingness to compromise as well. A number of noble Lords have tabled amendments requiring Ministers to obtain the consent or secure the agreement of the devolved Administrations before exercising their regulation-making powers under Clause 11. This seems a step too far and, as the Minister set out so clearly earlier, to go beyond the current devolution settlements. It risks turning the Sewel convention from a political commitment into a legal obligation. Let us not forget that the Sewel convention has been faithfully observed for 20 years. This would represent a significant constitutional change and would surely have implications for the sovereignty of this Parliament. It would also seemingly cross another important constitutional line, namely, as the Minister said, that one devolved institution could exercise a veto over the development of legislation affecting other parts of the United Kingdom.

I welcome the efforts the Government are making to secure a deal. Clearly, there is a balance to be struck here. All parties to the framework negotiations need similar incentives to reach agreement. Of course the devolution settlements need to be respected, but the unique responsibility of the UK Government and the UK Parliament is to guard the interests of Scotland, England, Wales and Northern Ireland—not just individually, but taken as a whole. That needs to be respected too.

[Lord Hain]

My Lords, I think that many in your Lordships’ House will welcome the interesting and constructive contribution of the noble Lord, Lord Dunlop. I welcome the stance adopted by the Minister in his speech; it has made for a very different debate, as others have observed.

As the author of the 2006 Government of Wales Act, when I was the Secretary of State, I have been deeply alarmed by the Government’s high-handed approach—hitherto at least. It seems to risk reversing the deepening of devolution, which the Government have progressed in their recent legislation, ironically. The principle at stake, which I hope the Minister and the Secretary of State, David Lidington, will adopt and take forward, is that the Government must not legislate in this area, provoked by Brexit, without the consent of the Welsh Government and the Scottish Government, in the sad absence of a Northern Ireland Government. I know that my noble and right reverend friend Lord Eames shares that frustration and sadness, as do my noble friends who represent the DUP. There is a serious crisis in Northern Ireland, which sometimes this Parliament takes too casually, to be perfectly frank, but that is another matter. If consent is not obtained, we face a real constitutional crisis, which should not be underestimated. The noble Lord, Lord Lang, spoke about the Scottish nationalists. The problem with the Government’s approach until now—I welcome the fact that it seems to have changed—is that it feeds the separatist appetite.

I observed in the first incarnation of this Bill, and to some extent in the amendments on the Marshalled List, what I saw as Secretary of State for Wales, even under the last pro-devolution Labour Government, which was what I would call the “virus of Whitehall-itis”. It was especially the case in the Home Office, but one saw it in other departments as well. The default position was that, when a new piece of legislation involving devolution was brought forward, there was a sense of needing at the official level to resist any real progression of the devolution process. As I say, that was the default position and it has crept into this Bill as well.

[Lord Lang of Monkton]

My Lords, I am glad to agree with the noble Lord, Lord Hain, on the point that he has just made. It was reflected in a Constitution Committee report that came out a few years ago. We have to do more within departmental activity in terms of co-operation and cross-policy referencing between us and the devolved parliaments. The noble Lord also referred to what feeds the appetite for separatism. What feeds that appetite is the constant drip-feed of ceding further powers, which makes them hungry for still more.

[Lord Hain]

At this late hour, that is probably a debate for another occasion, but I welcome at least the first part of what the noble Lord said. As a passionate devolutionist and federalist, I believe that the unfinished business of devolution is the failure to give England a proper voice of its own at the regional level, with the exception, of course, of London. However, that is another matter.

I give a cautious welcome to the letter that I received just before coming in to the Chamber for this debate from the Secretary of State for Wales, Alun Cairns, which has been sent to me and, I would guess, to other Welsh Peers. I shall quote part of it, because it is interesting:

“A small number of returning powers in devolved areas will need legislative frameworks in order to safeguard the UK internal market and enable the UK to strike international trade deals. These areas will be placed into a ‘temporary hold’ until the UK Government and devolved Administrations agree the detail of the framework and legislation is enacted to implement the framework”.


He goes on to make an important point:

“The consent of the devolved legislatures will of course be sought for any provisions in parliamentary Bills creating frameworks that are within devolved competence”.


In welcoming that, I stress, at the risk of repeating myself—I will not take too long about it—that until now the Welsh Government have themselves been passionately opposed to the approach of the UK Government in this area. It is not the case that this is only the Scottish Government position. The Welsh Government want to achieve an agreement and the Scottish Government have said the same. We will see in the future, but certainly the Welsh Government want agreement and they have the support of Plaid Cymru, the Liberal Democrats and, I think, some Conservatives in the Welsh Assembly. That is a serious development. In the last few days, the Welsh Assembly have been taking through its continuity Bill, but I am not sure whether it has received assent at this point. However, it has certainly taken the Bill through, which is proof of the deep concern.

[Baroness Randerson]

My Lords, the Bill received assent today.

[Lord Hain]

With the help of the noble Baroness, Lady Randerson, we can put on the record the fact that the Bill has received assent. That is a serious situation. There is the potential for direct confrontation, which I hope we can avoid. I also welcome the proposal of the noble and learned Lord, Lord Mackay of Clashfern, which deserves serious attention.

In supporting the amendments tabled by my noble friends Lord Griffiths and Lord Stevenson, which again stress the need for consent, I want to highlight an alternative and perhaps more constitutionally appropriate way forward, which reflects a point touched on by the noble and learned Lord, Lord Wallace of Tankerness, and the noble Baroness, Lady Finlay. It is a way forward that would not give the Government yet another wide-ranging regulation-making power. We should ensure that a schedule is appended to this Bill containing a list of areas where the Government and the devolved Administrations agree that frameworks are needed, as they are, and hence where devolved competence needs to be constrained while such frameworks are negotiated. By doing this, the Government would be able to gain the legislative consent to this Bill of the Scottish Parliament and the National Assembly for Wales, and in future I hope the Northern Ireland Assembly, which they rightly regard as essential to avoiding a major constitutional crisis.

[Lord McConnell of Glenscorrodale]

I welcome the proposal just made by my noble friend Lord Hain, because two versions of it have been suggested during the debate, albeit perhaps not deliberately. One would specify in the Bill or a schedule to it those areas that will be part of the competence frameworks; the other would specify those areas that were devolved, which would be counter to the devolution settlement. It is important that we specify those areas that are not devolved rather than those that are. My noble friend’s proposal is the right one. I hope that the Government will take that seriously and that the other option will not be taken forward.

[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.

[Baroness McIntosh of Pickering]

My Lords, I applaud the spirit in which the Government have brought forward the amendments before the Committee this evening and the eloquence with which they were brought by my noble and learned friend Lord Keen. However, on balance I think that Amendment 318A, brought by my noble and learned friend Lord Mackay, has much to commend it.

There are a number of points I would like to raise in the hope that my noble and learned friend Lord Keen might reflect upon them before Report. As my noble and learned friend Lord Mackay of Clashfern explained, the regulation-making power in these amendments would appear to be intended to be used only where the United Kingdom Government consider that it would be necessary for the purpose of protecting the UK common market. My question therefore is: would it not be clearer if that was expressly stated in the Bill? The explanatory statement could also explain why the regulations are required for this purpose. Also, do the Government envisage the power in new Section 30A in the government amendment being used only once, or do they intend it to be used more than once? It would be helpful for the Committee to know.

Although it is stated that the regulation-making power is intended to be temporary and that Ministers are required to have regard to that fact, there is nothing presently in the Bill that expressly provides for the regulation-making power to be temporary. Would it not therefore be helpful if such a provision made that clear? I believe that that is covered in my noble and learned friend Lord Mackay’s Amendment 218A.

Does it not also make sense that the Bill be amended so that the regulations and restrictions set out therein take effect at the same time that the new Section 30A comes into force? While it is expressly stated that the regulations are subject to the affirmative consent of both Houses of Parliament, there is nothing in the amendments that expressly requires the consent, as expressed by so many noble Lords this evening, of the Scottish Parliament. This contrasts with the accepted way of making amendments to the legislative competence of the Scottish Parliament through an Order in Council under Section 30 of the Scotland Act 1998. I respectfully ask my noble and learned friend Lord Keen that the Bill be amended to require Ministers to explain the need for regulations under new Section 30A.

On the question of consent, I was trying to help the noble Lord, Lord Griffiths, earlier by stating, as the noble Lord, Lord Hain, set out, that Ministers from devolved Assemblies currently sit next to the Ministers at meetings of the Council of Ministers and advisers. I also suggest that consent is currently expressly given by the devolved Assemblies and by their Ministers when the EU directives are agreed and then implemented by the devolved Assemblies. The point I was trying to make is that it is consent at both levels that is being removed.

[Lord Hain]

Sometimes devolved Ministers are there on their own.

[Baroness McIntosh of Pickering]

I accept that and I stand corrected.

European Union (Withdrawal) Bill

Lord Hain Excerpts

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

[Lord Trimble]

In the examples I mentioned, going back to 1985 and 1973, there was no consultation by Her Majesty’s Government with the unionist elected representatives. The Irish Government, of course, consulted closely with nationalists, so there was that imbalance. In any event, I come back to the amendment and I think that the proposed new clause has the wrong approach and should be looked at again.

I have one other point and it is simply this: we made the agreement 20 years ago; it was a bit rough at times for a short period afterwards but it has settled in. There are still some difficulties but I am quite sure that those difficulties will be overcome and these institutions will survive because they have the wholehearted endorsement of the people of Northern Ireland. In doing it, we also helped to change the relationship between Belfast and Dublin and, indeed, between Dublin and London to a certain extent as well: relations between them in recent years have been very good. They have been extremely good and I am delighted, but the behaviour at the moment of the Irish Prime Minister and Coveney, backed up by the European Union, is actually destroying that relationship and doing considerable damage to it. I know that we cannot directly affect that, but the message should go out very clearly to Dublin and to Brussels that they are not to continue to damage the basis of our institutions in pursuit of some petty objective, such as getting yourself elected as the head of a European body in Brussels.

That is where I want to stop. It is hugely important that the Government stand firm on this proposal to move to what is called the backstop and against a situation where Northern Ireland is to be moved away from the rest of the United Kingdom and permanently attached to Brussels, as far as these things are concerned. That is the wrong way to go.

[Lord Hain (Lab)]

My Lords, I support this amendment, moved so compellingly by the noble Lord, Lord Patten.

The land border between the United Kingdom and Ireland is a state border—for tax, excise and legal jurisdiction. It is also a border across which public services connect, public agencies operate, people make their daily commute, livestock graze and goods flow back and forth without restriction. The levels of integration across the Irish border are among the closest in the world, bringing material economic benefit to the island—particularly to Northern Ireland—and, even more importantly, a remarkable transformation of a border that fewer than 20 years ago was a highly securitised boundary, close to which hundreds of people lost their lives. Soldiers, police officers, customs officials, farmers, factory workers, musicians and teenagers were all killed near the border because of a conflict about the border.

The 1998 Good Friday agreement and the Act that followed it, which is referred to in the amendment—I point that out to the noble Lord, Lord Alderdice—brought that conflict to an end by making the border a point of co-operation, without raising questions about the sovereignty or constitutional integrity of either the United Kingdom or the Republic of Ireland. This was made much easier by the fact that common EU membership of the United Kingdom and Ireland had already removed many of the barriers to such co-operation and movement. This was because the EU came to form a customs union and create a single market, both of which transcended state boundaries. Thus from the quiet rural hamlets of Fermanagh and Monaghan to the busy border towns of Newry and Dundalk there is no need for customs controls, no tariffs payable, no need to pay VAT at the border, and no checks for quality, standards or regulatory compliance.

As a line of soft integration between the UK and Irish jurisdictions, the Irish border has faded into relative insignificance, allowing Irish and British citizens—nationalists and unionists—both to feel quite comfortable in Northern Ireland. Given the bitter sectarian and violent history, this is a remarkable achievement. But it is also a fragile one, and we ignore that at our peril. To withdraw from the EU is to remove Northern Ireland from the conditions that currently make the Irish border so frictionless. Finding a resolution to the border conundrum while respecting Brexit must somehow preserve those connections and protect those benefits of co-operation. This is an economic necessity as well as a political imperative.

In their joint report with the European Union of December last, the UK Government repeated their commitment to protecting the operation of the 1998 agreement and to the avoidance of a hard border. Indeed, they went so far as to preclude,

“any physical infrastructure or related checks and controls”.

The amendment would bring into legal effect the commitments the UK Government have already made to the European Union and to everyone. In Brussels, a means of doing so in legally operable terms in the withdrawal agreement is currently being negotiated. It is essential that we do likewise in passing this amendment to the Bill.

Any customs partnership must be tight and seamless enough to avoid such checks while ensuring that the border is not a back door into the EU’s single market. Any technological facilitation must not entail physical infrastructure, random checks or compliance checks at any point. The amendment will provide much-needed security and legal certainty, with no fudges, creeping barriers or sly erosion of the finely honed balance. It will ensure that cross-border movement, north-south co-operation and day-to-day, mundane integration will continue to happen unimpeded. It does not tie the Government’s hands on the precise solution, except to insist upon what everyone says they want anyway: namely, a border as free, open and invisible as it is today. In my view this can only mean reproducing in some form the customs, trade, rules of origin, standards and regulatory arrangements that we now have across it.

It is our responsibility to ensure that Brexit does not mean the emergence, at any level, of any new conflict about the border, because that would be both economically catastrophic and politically lethal. That is why this amendment is so vital.