European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

Moved by

[Lord Hope of Craighead]

314: After Clause 11, insert the following new Clause—
“UK-wide frameworks
(1) A Minister of the Crown must lay before each House of Parliament proposals for replacing European frameworks with UK ones.(2) UK frameworks may be proposed only if they are necessary to—(a) enable the functioning of the UK internal market,(b) ensure compliance with international obligations,(c) ensure that the UK can negotiate, enter into and implement new trade agreements and international treaties,(d) enable the management of common resources,(e) administer and provide access to justice in cases with a cross-border element, or(f) safeguard the security of the UK.(3) Ministers of the Crown may create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations.”

[Lord Hope of Craighead (CB)]

My Lords, although we have left Clause 11, this amendment is closely related to the topics we discussed in the two previous groups. It seeks, first, to require a Minister of the Crown to lay before each House of Parliament proposals for replacing the European frameworks with UK frameworks, and it lists the particular items which are thought to be the subject matter of the frameworks that are needed. More importantly, proposed subsection (3) in the amendment seeks to provide that:

“Ministers of the Crown may create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations”.


So the issue of consent, perhaps more narrowly focused than in the previous discussion, is raised by this amendment as well.

The amendment was drafted some considerable time ago, when what was on offer in Clause 11 referred to the creation of these measures by Order in Council and made no mention of either consent or consultation. What we had before us, until it was withdrawn, was an amendment which reformed the machinery that Clause 11 is to provide by referring to the need to lay a draft of a statutory instrument containing the regulations under the section after consultation with the Scottish and Welsh Ministers. That is certainly a step forward, but what is sought by the amendment is one step further, which is the need for consultation.

In the discussion on Amendment 305, moved by the noble Lord, Lord Tyler, the noble and learned Lord, Lord Mackay of Clashfern, made the point that the safest way to deal with UK-wide frameworks is by primary legislation. I find it quite hard to understand how a UK-wide framework can be created by using the Section 30 power in the Scotland Act or the Section 109 power in the Government of Wales Act. Those are powers that are designed for dealing with the devolved Administrations separately, whereas the UK-wide framework of course involves the entirety of the United Kingdom, and I entirely agree with the noble and learned Lord that primary legislation would seem to be the proper way to go about it. Of course, if we are presented with primary legislation, the Sewel convention will apply and my point about consent will be satisfied simply by the machinery that has been used to create these frameworks.

We are of course dealing with something that is work in progress and we do not know quite what further discussions are going on in darkened rooms up and down the country where these matters are being debated. However, if by any chance the decision is that that has to be done by statutory instrument—I take it that this is not by Section 30 powers or Section 109 powers but by a UK statutory instrument—then the issue of consent is again raised, because the Sewel convention does not apply. I would like an assurance from the Minister that the principle behind Sewel will apply whichever mechanism is created. Of course, as I said a moment ago, the primary legislation will bring Sewel with it, but it would seem very odd if, by resorting to delegated legislation, the Government can bypass the Sewel convention. I do not believe that that is really what the Government want to do. I hope they will be prepared to say that they will be looking for consent as the mechanism which would precede the framing of any delegated legislation if it is decided to go down that road. But I stress that I agree entirely with the noble and learned Lord, Lord Mackay of Clashfern, that the proper way to create a UK-wide framework, which is what my amendment is talking about, is by primary legislation, in which case the issue of consent does not arise. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am a cosignatory to Amendment 314 and I associate myself with the eloquent comments made by the noble and learned Lord, Lord Hope, in moving it, and, in turn, the comments made by the noble and learned Lord, Lord Mackay. In the debate at the conclusion of business last Wednesday, a number of us put this specific point to the Minister, the noble and learned Lord, Lord Keen, which could have ended the concern that certainly I still have that we should proceed, for the reasons given, by primary legislation and that it would be inappropriate to proceed by delegated legislation.

I would also like to raise the timing of the framework agreements. In summing up the debate on Wednesday, the noble and learned Lord, Lord Keen, said:

“It is the table that identifies 24 areas where it is considered there will have to be some temporary ring-fencing so that we can establish the next stage of the process for the single market—the framework agreements that will then form the basis for that single market”.—[Official Report, 21/3/18; col. 403.]


It has been very firmly expressed by the Law Society of Scotland and others that there should be a timeframe for how long this arrangement will last. I pray in aid farm policy, which I understand is one of the 24 areas that have yet to be agreed, and point out that 85% of Scottish land currently has “less favoured area” status and attracts specific European grants accordingly. I also understand that Wales receives 10% of the farm funds. There is a concern that once we come back to having only a UK single market, both Scotland and Wales will receive less in farm support. My understanding is that Scotland would like to see a framework created and the powers devolved immediately, whereas the Government wish to take control to create the framework and then devolve it subsequently. So there are very real issues in specific policy areas over the timing and content of these framework agreements.

That brings me to this question of consent that keeps coming up. The noble and learned Lord, Lord Keen, said:

“Can we just remove that dichotomy of consultation or consent?”.—[Official Report, 21/3/18; col. 404.]


The problem we face is that the devolved Administrations clearly feel that currently they have consent at three levels. One is through the Sewel convention. The second is that when EU policy is agreed at the level of the Council of Ministers normally it is the Farming Minister who attends, accompanied by the Ministers of the devolved Administrations. The third level is when the devolved Administrations, in their own devolved legislation, implement the directives in the form they think most suitable.

We are very grateful to the noble and learned Lord, Lord Mackay, for setting this out so clearly. It appears so straightforward that our starting point is that in future the UK Parliament legislates for all matters relating to the single market of the United Kingdom. As the noble and learned Lord, Lord Mackay, said on Wednesday, it would be best for this to be implemented by agreement wherever possible. We seem to be edging towards that. In response to the earlier debate, the noble Baroness responded that there is not yet agreement but we are getting close to one.

When we take our oath and are introduced here, we swear allegiance and we are told that we have a voice. My concern regarding this amendment and Amendment 318, which was debated earlier, is that the voice of the devolved legislatures will simply not be heard in that interim between the framework agreements being agreed and subsequently devolved. That is why I support this little amendment and would like to hear more about why we could not proceed along the lines that the noble and learned Lord, Lord Hope, has set out in Amendment 314.

--- Later in debate ---

[Lord Duncan of Springbank]

Yes, that is the intention. We will move forward with this through primary legislation in each of the common framework areas. On that basis, I hope that the noble and learned Lord, Lord Hope, will feel able to withdraw his amendment.

[Lord Hope of Craighead]

My Lords, I am extremely grateful to all noble Lords who have contributed to the debate and to the Minister for his few words in his response. Of course, legislation may contain enabling powers but we do not know yet what the legislation he is promising will look like. If it is simply a Bill with a lot of Henry VIII powers in the area concerned, it will not advance the argument at all.

I am grateful to the noble and learned Lord, Lord Mackay of Clashfern, for enlarging on the points he made last week. I am glad that my amendment has given him the opportunity to emphasise again the points he has made and his valuable contribution to our debate. He said that if his approach is correct then my amendment ceases to have any purpose. Of course, he is right, because my amendment does not look at primary legislation; it looks at the procedure that would be followed if the mechanism to be used is to be by delegated legislation, in which case we are talking about the consent not of the legislatures but of the Administrations—that is, of Ministers. At the moment, we have in the amendment that was before us last week—the amended form of Clause 11—a promise of consultation. Many noble Lords who have spoken in support of my amendment have emphasised the importance of consent, which is the crucial matter. As the noble Lord, Lord Liddle, said after his careful analysis of what we are really talking about: consent is fundamental. That is the background to what I am submitting.

There are one or two scattered points which I might mention. On the contribution of the noble Lord, Lord Kerr of Kinlochard, the noble and learned Lord, Lord Wallace of Tankerness, was absolutely right. Proposed subsection (2) of my amendment is based on an agreement reached in October last year at the Joint Ministerial Committee on EU Negotiations. The wording is exactly as it was framed in the agreements, and that is the point from which we are moving forward. One could debate the language, but I think that the time for doing so has passed.

I thought that the contribution of the noble Lord, Lord Wigley, about the attitude of the sheep farmers was very helpful, and we have heard similar remarks about the position as regards fishing. I do not think that the position of the hill farmer in Scotland is very different from that which was described by the noble Lord. However, there could well be differences in the way that sheep are managed in England and the way that they are bred and moved south in Scotland and east in Wales—they are moved across the United Kingdom before being exported somewhere else. I can see, therefore, that there could be detailed disputes about what the Welsh, Scots and English would want in framing a UK-wide market for the handling of sheep stock. To attempt to create uniformity in areas as sensitive as this may be a mistake, and it may be that that is where the sticking points are in the discussions. I hope very much that one can get to the point where these matters can be agreed without resorting to dispute resolution.

As the noble Lord, Lord Wigley, also pointed out, in a few years’ time, when we move beyond the Clause 11 procedure and the time limit has disappeared, we do not want to have to start these arguments all over again. We want to resolve this at the beginning in the creation of the market.

It is difficult to take the point further because we do not really know the detail of the disagreements before us. However, I suggest to the Minister that it would be a great help if, before Report, a letter could be passed to those who have taken part in the debate explaining the procedure that the Government intend to use in the creation of these frameworks. I would be very pleased if they were to adopt what the noble and learned Lord, Lord Mackay, has suggested, and it would be very helpful to know that that is what they propose before we start looking at this again on Report. If they do not propose to do that, we need to know what the alternative is and how consent is to be built into it. In the light of the very helpful response from the Minister, and of what I have said so far, I will leave the matter there for the time being. I beg leave to withdraw the amendment.

Amendment 314 withdrawn.