Subsidy Control Bill — House of Lords, 2022-03-22
Topic: Government Operations
Roger Thomas (Crossbench, Unknown): My Lords, in moving Amendment 6, I shall also speak to Amendments 58 and 64 and deal with three issues relating to devolution. I am grateful for the support of the noble and learned Lord, Lord Hope of Craighead, the noble Lord, Lord Wigley, and the noble Baroness, Lady Randerson—although obviously she is not here—on Amendment 6, and of the noble and learned Lord and the noble Lords, Lord Wigley and Lord Fox, on Amendment 64. I shall deal with those two amendments first I think it can truly be said that Amendment 6 is a very modest amendment because, unlike what was before the Committee, it does not seek to give the devolved Governments the power to make streamlined subsidy schemes, nor to submit them to their own Parliaments, but simply seeks to make it clear that if a reasonable request is made to the Secretary of State for a streamlined subsidy scheme by one of the devolved Governments then the Secretary of State would make such a scheme and lay it before Parliament in due course There are two reasons for that. First, it seems completely wrong in principle for the Secretary of State of his own accord to be able to make streamlined subsidy schemes within an area of devolved competence —I hope that is not in dispute. Secondly, there can really be no justification, if the nations of our kingdom are to be treated on the basis of equality, for the Secretary of State, having the power qua Secretary of State and Minister for England, to have the privilege of making these schemes for England that cannot be made in devolved areas of competence for Wales, Scotland and Northern Ireland. I therefore find it extraordinarily difficult to see what the objection is to this in principle, unless of course there is a commitment by the Government to provide for that in some other way On Amendment 64, it is a risk to claim that I am making a second move for a modest amendment, but again, when this is looked at, it will be seen to be modest. It would require the Secretary of State to seek consent from the devolved Governments in respect of some of the regulation-making powers, but not all of them, and in respect of guidance. I think we have debated long enough why guidance is so important. This amendment is modest for a second reason: it would require the Secretary of State to consult and try to seek agreement over the period of a month. Thereafter the Secretary of State would be free, provided that, as no doubt a reasonable Secretary of State would always do, he had good reasons for not being able to obtain that consent. Again, there may be other ways of achieving that result, and I look forward with interest to hearing what the Minister has to say. It is very difficult to see what objection there could be to this measure Amendment 58 raises a very different point. I tabled it simply because it raises an issue of considerable constitutional importance, and one certainly treated by the devolved parliaments and Governments as such. There has been extensive debate in the devolved Governments about it and quite a lot of academic criticism. As is known, this schedule to the Bill sets out an elaborate procedure under which subsidies that have been made under the primary legislation and passed by the devolved legislatures can be challenged in the ordinary courts for breach of the subsidy control and other principles. The position of the Westminster Parliament, which may itself be able to pass legislation that breaches those principles, is of course different because of the principle of parliamentary sovereignty. There is no way this House could constrain a future House from passing a scheme in favour of England or doing something in respect of England which breached the subsidy control principles. It would simply be answerable for breach of its international obligations assumed under the treaty, but that has not always been a treaty with which the Government have accorded full and sufficient attention The devolved legislation originally contained principles—and all the amendments have contained principles—that, where the powers of the devolved legislatures are constrained, any issues as to whether they are in fact constrained in legislation passed are remitted to the Supreme Court. This legislation moves away from that fundamental principle, and it is important to realise the considerable concern caused by this move. It arises because, where a court decides to set aside the decision of the elected representatives of the people, considerable concern is always expressed. That concern should be dealt with by a special process, and submitting it to the ordinary courts is not right I am afraid that this amendment is a long and complex one and I will not attempt to go through it because it had to go through all those hoops. I have raised it because it seems quite impossible for us to pass this piece of legislation without noting what we are doing. Although I can see the hour—this is not the time for a debate on important constitutional principles—I very much hope that raising this issue now will give the Government pause to think about this and for this House to debate in future how we deal with the problem of ensuring that, when the people of Wales, of Scotland and of Northern Ireland for reasons of quite complicated constitutional doctrine have made a decision through their legislatures, that should be questioned only by a very senior court, through a process that is carefully thought through. We will need to return to that in due course Those are the reasons why I have put forward these three amendments, and I beg to move.