Brexit: Stability of the Union
Lord Lisvane Excerpts(5 years, 3 months ago)
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Lord Lisvane
That this House takes note of the possible effects of Brexit on the stability of the Union of the parts of the United Kingdom.
Baroness Stedman-Scott (Con)
My Lords, the business we are about to begin is very important and there is a real desire to hear from every contributor. However, time is tight so, in the nicest way possible, I ask noble Lords to adhere to the time allocated to them. When the Clock reaches five minutes, I will stand up to maintain order in the debate.
Lord Lisvane (CB)
My Lords, I begin with a word of thanks to those Cross-Bench colleagues who voted for the Motion to be debated. I am delighted that the noble Lord, Lord Young of Cookham, is to reply to the debate for the Government. In view of our happy co-operation in former lives, I hope that I may refer to him as my noble friend on this occasion. I see from the speakers’ list that I am allotted 15 minutes in moving the Motion. That is an unimaginable luxury but, in view of the long list of speakers, I shall try not to use all that time and so perhaps offer a little elbow room to other noble Lords. I am extremely grateful to the Government Chief Whip for the half-hour extension to the debate.
The Motion is couched specifically in terms of the hazards to the union posed by Brexit, but the seeds were sown long before. We have a worrying habit in this country of doing constitutional change in bits, as the occasion serves, but with little overall intent or co-ordination. I have seen the process at close quarters for 46 years, so I entirely understand how this has come about. The Government, often incoming, have their priorities and wish to demonstrate their authority. The business managers wish to make rapid progress with focused proposals. They do not much like Parliament going into what might be called seminar mode. And of course, there is the ever-looming phenomenon of “Events, dear boy, events”.
The result over several Parliaments is that we are left with a patchwork. Nowhere is this clearer than in the devolution of powers to different parts of the United Kingdom. Scotland, Wales and Northern Ireland have different models of devolved government. They have developed independently and subject to the successive pressures of the moment; no one, I think, would regard any of them as wholly successful. Moreover, they are characterised by a sort of imperial condescension from the centre—from Westminster and Whitehall, but especially from the latter—and they are inconsistent. As a Welshman by birth and title, I think I may ask why Scotland and Northern Ireland can set their own rates of air passenger duty but Wales cannot. Indeed, why are justice and policing devolved in Scotland and Northern Ireland but not in Wales? I am glad that my noble and learned friend Lord Thomas of Cwmgiedd is addressing that question through the work of his commission. England, the largest part of the UK, accounts for some 85% of United Kingdom GVA and a little more in terms of population and GDP, yet, with the exception of London and a few city mayors, it has been largely omitted from these changes. Of course, that poses a pressing but ever more intractable “English question”.
I have described an unsatisfactory and probably unstable system that has come about through a variety of political pressures and aspirations, often worthy in themselves but with unco-ordinated and piecemeal results. Were we not now set to leave the European Union, in any event, significant centrifugal forces in the years ahead would put the integrity and stability of the UK’s devolution settlement at risk. The profound Brexit changes now in contemplation will, I suggest, only increase that risk. I am sure that noble Lords taking part in the debate will have many expert perceptions of how the months ahead may put further strain on the union. I note that your Lordships’ Constitution Committee has described our territorial constitution as “in flux” and our European Union Committee has said that,
“the European Union has been, in effect, part of the glue holding the United Kingdom together”.
What are the main hazards? The first is the Brexit process itself, bearing in mind that in the referendum, two of the constituent parts of the UK voted differently from the other two and differently from the overall result. Secondly, the repatriation of powers will be contentious. Central government will want to protect the UK-wide single market by retaining substantial powers in London, but Edinburgh, Cardiff and Belfast will not see it like that. Also, the repatriation process will, I think, take longer than anyone at the moment predicts, which is not going to help. The complex exchanges over the Scottish and Welsh continuity Bills and the referral of the Scottish Bill to the Supreme Court demonstrate that there are serious unresolved tensions. The Scottish constitutional relations Secretary has referred to “constitutional vandalism” and has said that he,
“could not conceive of circumstances”,
in which the Scottish Parliament would give its consent to further UK Brexit-related legislation.
Our departure from the EU will intensify debate about the fair funding of the different parts of the UK. It is a commonplace to say that we must move on from the Barnett formula, but it is not yet clear how we should do so. In Northern Ireland, the issues of borders and backstops are already causing great concern and contention, and lurking behind those issues is the aspiration of some for reunification. There is also the risk, identified by the Scottish Government, that future customs arrangements might give Northern Ireland a competitive advantage among the parts of the United Kingdom.
In Scotland, a significant proportion of those who supported independence in 2014 did so on the basis that an independent Scotland would or could become a member state of the EU. The UK having left the European Union would, in the case of Scotland, remove the long-standing unwillingness of the EU to countenance subnational aspirations, as would still be the case with Lombardy, Catalunya, Flanders and so on. This might be a seductive prospect in the context of any indyref2.
Intergovernmental relations within the United Kingdom are the concern of the Joint Ministerial Committee, which has now been in existence for 20 years—20 years this year, actually. This should be the key forum for the discussion of developing relations, but both the Scottish and the Welsh Governments have expressed dismay at the way it is operated. Her Majesty’s Government have the opportunity to make this a much more effective mechanism to support the Brexit process. I trust that this is something that will receive close attention, as recommended by our EU and Constitution Committees and the equivalent committees in Scotland and Wales. I hope that in his reply to the debate, the noble Lord will be able to tell us the Government’s current thinking on how the JMC might be overhauled.
The House of Commons Public Administration and Constitutional Affairs Committee has suggested that separate English representation on the JMC would be a way of addressing the English question, although how this would be achieved in practice is not entirely clear. It is a pleasure to pay tribute to the work of the Interparliamentary Forum on Brexit, which brings together the chairs and convenors of the committees scrutinising Brexit at Westminster, Edinburgh and Cardiff with, understandably in the current circumstances, the participation of officials from Belfast as observers. The forum, which happens to be meeting at Westminster today, offers a mutually supportive and constructive approach which so far has not, I think, quite been replicated in the JMC, which the forum has described as “not fit for purpose”.
Noble Lords may be chafing slightly at my listing a litany of problems without any suggestion of how they might be cured. In the excellent debate in your Lordships’ House before Christmas, there were calls for a constitutional convention or commission. In replying to that debate, the noble Lord who is now on the Front Bench said that the wide-ranging nature of the issues raised meant that any convention looking into them would take years to do them justice. I have a lot of sympathy with his point of view. It would be hard to argue that such a convention should be anything other than comprehensive, which might further reduce the likely glacial pace of such an initiative. Time is not on our side.
I do not suggest that the Act of Union Bill, which I introduced in October, has all the answers, but at least it seeks to address the problems in an holistic way. I must be careful not to offend against anticipation—this is a debate on the Motion before us, not on the Second Reading of the Bill—but perhaps, with your Lordships’ permission, I may say a few words about it.
The Bill is the result of the work of the Constitution Reform Group, which consists of members of all the major parties, including the noble Lords, Lord Hain and Lord Campbell of Pittenweem, both of whom are in their place. The group is convened and chaired by Lord Salisbury, a former distinguished Member and indeed Leader of your Lordships’ House, and the Bill has been drafted by the outstanding parliamentary draftsman Daniel Greenberg. It seeks to replace the present top-down method of devolution with a bottom-up method, in which the constituent parts of the United Kingdom—and perhaps the regional parts of England—would decide which powers they wished to pool for greater solidarity and effectiveness. It would replace the central imperial condescension, to which I referred earlier, with a devolution settlement properly owned by its participants. It would also include something perhaps missing from the present arrangements: the R word—respect.
The Bill is comprehensive but it does not attempt to provide a full written constitution. It does not, for example, touch those parts that work perfectly well, such as the courts and the judiciary. But it does seek to address the areas of difficulty, some of which I have outlined. It would not try to bind a subsequent Parliament—no Bill can do that—but it offers an overarching settlement with an indication of how primary legislation of, as it were, the second tier could fill in some of the detail. And there is a lot of detail to be filled in. In a sentence, it aspires to be a plan B. As each day passes, I become more and more convinced that we need a plan B.
Lord Lisvane
My Lords, I will not attempt to respond to or summarise the debate in any way, as that role has been so admirably performed by the Minister. I will just say two things. First, I thank all noble Lords who have taken part in what has been an excellent debate. Secondly, I say to the noble Lord, Lord Griffiths of Burry Port, that I think the hostelry in Lisvane he has in mind is the Black Griffin. I should be very happy to join him there. We might even persuade the Minister to join us for an extremely convivial discussion of the Act of Union Bill.
European Union (Withdrawal) Bill
Lord Lisvane Excerpts(6 years, 3 months ago)
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Lord Lisvane (CB)
My Lords, it is no exaggeration to say that if the Bill before us is enacted without significant amendment, it will represent the largest single peacetime transfer of power from Parliament to the Executive. By comparison, the 1972 Act was a model of restraint.
This is not what we were led to believe in the referendum campaign by the use of phrases such as “parliamentary sovereignty” coupled with “taking back control”. The leave/remain and soft/hard/no deal debate no doubt continues unabated, but that is not where criticism of the Bill should lie. The Constitution Committee has done an excellent job on the Bill. In passing, I gently observe, in the distinguished presence of the chairman of the committee, that some of its recommendations are a little less exacting than those of the Delegated Powers Committee, of which I am a member and which I expect to produce another report in time for the start of Committee.
The issue here is parliamentary sovereignty in the making of law, which the Bill challenges and will constrain—and, not least in the power to make tertiary legislation, not only constrain but extinguish. No one doubts that flexibility and speed will be needed to adapt our legal order to life after Brexit, but it cannot be at the expense of the power of Parliament to scrutinise and decide.
As one or two noble Lords have alluded to, it is worth remembering that once extensive ministerial powers are on the statute book, they can be used by any Minister of the Crown. Her Majesty’s present Ministers may not welcome the thought, but were the powers they now propose to be in the hands of an Administration of a different political colour, I fancy there would be a great deal of traffic down the legislative road to Damascus. It is important to keep in mind that assurances about how powers are intended to be used are of limited value. The only thing that matters is what is on the statute book.
The Bill will, no doubt, be heavily amended by your Lordships’ House. Issues of real concern include the looming presence of a largely unconstrained Henry VIII. Although Henry VIII has become a convenient shorthand for the exercise of ministerial powers which erode parliamentary sovereignty, the dangers of the other delegated powers in the Bill are just as serious. I pay tribute to the speech of my noble friend Lord Wilson of Dinton. There is the Bill’s substitution of ministerial judgment of what is “appropriate” for what is “necessary”, allowing major changes of policy to be made under a power intended, we are told, to make purely technical adjustments to the repatriated legal order.
There is the ability of Ministers to confer on bodies and even individuals the power to make law—tertiary legislation—without the approval of Parliament or even the requirement to publish that law. There is the fact that the superficially reassuring sunsetting provisions do not apply to substantial areas of ministerial power. There is the ability of Ministers, not Parliament, to decide the level of parliamentary approval required for the exercise of many of their delegated powers. There is the ability to impose taxation by statutory instrument, not primary legislation.
The mechanics of approving a final deal will no doubt be an issue, despite the extreme difficulties of timing involved, alluded to by the noble Lord, Lord Hamilton of Epsom. In a parliamentary system of government, I am no friend of referendums, and I recall Attlee’s excoriating criticism of them, which was quoted by Margaret Thatcher, as the noble Lord, Lord Patten of Barnes, recalled. I am genuinely torn. I have sympathy with the noble Lord, Lord Adonis, in not understanding why, when it is all right to ask the people once, it is not all right to ask them again—not the same question, of course, but to see whether they are content with what has been achieved in their name.
Indulge me for a moment, my Lords. It is as though I have three elderly and extremely nervous aunts of whom I am very fond. I decide to give them a treat and ask them to discuss what they would like to do. They have a discussion and arrive at a democratic solution, which is that they would like to go to the cinema tomorrow. I look in the local paper and discover that the only films on offer are “Reservoir Dogs” and “The Texas Chainsaw Massacre”. What am I going to say to my highly nervous—indeed, squeamish—but much-loved aunts: “You must stick with your democratic decision”? Or do I say, “Now you know what’s on offer, what do you think?”?
Of course, on all these matters, in the end, the elected House must have its way. That is a given, but I would not be surprised, especially in the context of the numbers in the Commons, to see extended exchanges between the two Houses. After all, it was not that long ago that the then Corporate Manslaughter and Corporate Homicide Bill went back and forth between the two Houses seven times. That was an important issue, but it was nothing like as important as the issues now before us. Some argue against any criticism or amendment of this Bill on the grounds that if the Bill were not enacted there would be legal chaos. That is a naive and slightly condescending argument. We all know there need to be mechanisms to move us towards a post-Brexit legal order and, suitably amended, this Bill would provide those mechanisms, but without doing profound damage to the authority of Parliament and its duty to act as a check on the Executive. Of course, there are those who see such criticism or amendment as an attempt to stop Brexit. It is not. It is about what we have after Brexit; it is about parliamentary sovereignty and the long-term constitutional settlement.