European Union (Withdrawal) Bill — House of Lords, 2018-05-16
Topic: Mixed Topics
Donald Thomas (Liberal Democrats, Centre to centre-left): My Lords, on 2 May on Report, at col. 2148, I pointed out that by reason of subsection (4) of the proposed new Section 109A, which the Bill inserts into the Government of Wales Act 2006, the Minister of the Crown must not lay a draft of regulations to restrict the powers of the Welsh Assembly to modify retained EU law unless the Assembly has first made a "consent decision". Calling it a consent decision is confusing, because the decision of the Assembly may, under proposed new subsection (5)(b), be not to consent or, under (5)(c), to refuse to consent. Therefore, in the proposed new clause as it is currently drafted, the making of the so-called consent decision is just a box to be ticked: a prerequisite step only, which, whatever way it goes, permits the Minister to go ahead to lay the regulation before the UK Parliament for its approval Under further amendments to paragraph 43 of Schedule 3, if the Assembly does not consent, the Minister must make an explanatory statement to the UK Parliament when laying the regulations before both Houses to explain his decision to go ahead without consent. At the same time, he must lay before each House any statement of explanation of Welsh Ministers as to why the Assembly has refused to consent. Of course, at the hearing of a statutory instrument, there will not be counsel on both sides putting forward these points of view, but at least both sides will be put to Parliament This is the precise point of objection of the Scottish Government. In the event of conflict, this mechanism gives the United Kingdom Parliament the final say, which is why the Scottish Government refused last night to give legislative consent to the Bill. I asked the Minister on Report, if the Scottish Parliament did what they have now done and refused consent, "should Clause 11 be removed from the Bill altogether, as I have argued at Second Reading and since, and its provisions brought back in new primary legislation after further discussion and … agreement?".—[Official Report, 2/5/18; col. 2149.] The Minister did not answer me then, no doubt because it was a hypothetical question on 2 May. But it is no longer hypothetical, so what is his answer now? What are the Government going to do More pertinent to this amendment, I raised the issue of the Sewel convention. Paragraph 6 of the intergovernmental agreement made with the Welsh Government said: "The implementation of this agreement will result in the UK Parliament not normally being asked to approve clause 11 regulations without the consent of the devolved legislatures" A similar reference appears in paragraph 8 of the accompanying memorandum of understanding. Therefore, there can be no objection to my amendment in principle if it were to appear in the Bill That is not the only way in which people in Wales can get comfort. The other possible course I suggested was that the Government affirm that they regard themselves bound in making any regulations by the express commitment to the Sewel principle which we inserted last year, and which came into force only on 1 April last, as Section 107(6) of the Government of Wales Act 2006: "But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly" I said in terms to the Minister: "I would like an express commitment from the Dispatch Box on this point, either to amend the proposed new Section 109A at Third Reading to put the Sewel convention in this clause, or to confirm that Section 107(6)—last year’s insertion into the 2006 Act—will apply".—[Official Report, 2/5/18; col. 2148.] There was no answer to this point from the Dispatch Box. I appreciate that the Minister was busy, and he made an offer to correspond with any noble Lord on any point he had not dealt with and to put a copy of his reply in the Library. However, that is an unsatisfactory way of dealing with matters. The Minister in his response to the last amendment referred to the case of Pepper v Hart in 1992. It was with the greatest difficulty that the judicial committee in that case agreed by majority that what was said on the Floor of the House in Parliament was available to construe confusions and anomalies in legislation. Indeed, the noble and learned Lord, Lord Mackay of Clashfern, dissented and thought it wrong to have to look at Hansard to construe a statute. So it is not something that can be extended. I do not think that, particularly on such a sensitive issue, the Supreme Court would be impressed by correspondence between a Member of Parliament and the Minister, even if it was in the House of Lords Library The Supreme Court is about to hear exactly what is meant by the words "not normally" if the Government decide to push the Bill through—particularly the devolution clause—without the consent of the Scottish Parliament. It has been described overnight as a constitutional crisis, but what a setting to try to agree UK framework agreements across 24 areas of policy if the mechanism cannot be agreed with the Scottish Government first. The Welsh Government have come to terms with that, recognising that we live in a united kingdom and that Wales has representatives in both Houses. It is very important that there should be no room for misunderstanding. It is only in the most exceptional cases that any UK Government should push through measures that fall within the competence of the Welsh Assembly, particularly through the use of statutory instruments. That is why this amendment is before the House, and I beg to move.