European Union (Withdrawal) Bill — House of Lords, 2018-03-12
Topic: Government Operations
James Hope (Crossbench, Unknown): My Lords, I am afraid that I have to introduce this group, and I hope to be able to do so fairly concisely. There are two amendments in this group in my name. Amendment 102 relates to Clause 7 and Amendment 124 to Clause 8. They seek to qualify the extent of the power given to Ministers of the Crown to make provision by regulations to deal with the matters to which these clauses refer, asking that these powers be not exercised without the consent of the Scottish or Welsh Ministers, so far as the provision that is sought to be made would be within "devolved competence" within the meaning given to that expression in paragraph 18 of Schedule 2 Once again, at the heart of these amendments is the need to respect the constitutional importance and integrity of the devolution settlements. How the areas of government within devolved competence should be administered is seen—certainly in Cardiff and Edinburgh—as the responsibility of the devolved authorities. They have that responsibility by virtue of the democratic vote under which Members of these legislatures were elected. Their quite correct position is that it should not be for UK Ministers to enter into the area that is devolved to them without their consent, especially in the exercise of the power, to which I referred in the previous group, to make any provision under these two clauses that could be made by an Act of Parliament. I mention the Sewel convention in that connection. In practice, the Sewel principle has been operated for a considerable time in the way that the devolution system has been working since the two fundamental statutes were passed in 1998. The problem is that these clauses fail to give effect to that practice, and that needs to be corrected To set this point in its statutory context, so far as Ministers are concerned, Section 53(1) of the Scotland Act 1998 sets out the basic rule that, in so far as they are exercisable within devolved competence, they are to be exercisable by the Scottish Ministers instead of by a Minister of the Crown. That section expresses the devolutionary principle, but the rule is qualified by Section 57(1) in the case of functions in relation to observing and implementing obligations under EU law. A member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, which is incompatible with EU law. Section 57(1) provides that any function of a Minister of the Crown in relation to such matters shall continue to be exercisable by him in relation to Scotland for the purposes set out in Section 2(2) of the European Communities Act 1972. No mention is made in the statute of any need to consult with, or obtain consent from, the Scottish Ministers before that power is exercised in relation to EU law Coming on to the way that the matter is worked out in practice, these provisions are operated in practice under successive memoranda of understanding on devolution between the UK Government and the devolved Administrations. I think they have operated almost since the start of devolution. One must recall that, to begin with, the Government in Edinburgh and the Government in Westminster were of the same persuasion: Labour Government here, Labour Government there. That, of course, assisted very much in the setting up of memoranda and a common understanding of how these matters were to be operated. The latest of these memoranda was published in October 2013. In a concordat on the co-ordination of EU policy issues, the memorandum states that the UK Government wishes to involve the devolved Administrations, "as directly and fully as possible in decision making on EU matters which touch on devolved areas" It then sets out a series of underlying principles with which I think all those who are responsible for implementing EU obligations in devolved areas will be familiar. Among other things, they state that, "it is for the devolved administrations to consider, in … consultation with the lead Whitehall Department", how the EU obligations should be implemented and enforced, including whether they should be implemented by the devolved Administrations themselves separately or by the UK in UK legislation. As I understand it from those I have spoken to, ever since devolution, this has been a matter of routine intergovernmental working between Scotland and Whitehall ever since the institutions were set up. This is important as it enables the Scottish Government to fulfil the responsibilities that have been devolved to them without their being cut across by measures taken in Whitehall without their agreement. That is where we are now. It is important to say that this system has worked remarkably well, with co-operation particularly between the civil servants on both sides of the border and, initially at least, with political agreement, as I indicated, on both sides of the border too The context in which the powers are given to a Minister of the Crown by Clauses 7 and 8 are, of course, different because we are leaving the EU behind, and this Bill is all about the withdrawal process. In the Bill as it stands, Section 57(1) of the Scotland Act is to be omitted: that is the provision that deals with UK Ministers dealing with EU obligations. Section 57(2) is to be amended by removing the reference to EU law and putting in provisions which are to be found in paragraph 1 of Schedule 3. Their effect is that the power of the Scottish Ministers will be under a restriction in relation to retained EU law which is similar to that in relation to EU law at present. However, when we look at Clauses 7, 8 and 9, we see that the Ministers of the Crown will have power under those provisions to modify retained EU law in areas of policy which are within devolved competence without any prior notice to the devolved Governments, let alone their consent. Therefore, the amendments I am putting forward in this group seek to deal with a problem which runs right through the Bill Provisions in Schedules 2, 3 and 8 to the Bill provide that retained EU law is to be treated in the same way as EU law as regards devolved competence, and I have later amendments which seek to deal with that. However, the problem is that they fail to recognise that much of what will become retained EU law will relate to matters within the devolved competence of the Scottish and Welsh Governments. To deprive them of their primacy, which is established under the memoranda of understanding to which I referred, would be very unfortunate and would create a situation which in both Cardiff and Holyrood is regarded as quite unacceptable. It would mean that while policy areas within devolved competence which raise no issues of retained EU law at all would be for the devolved Administrations to deal with themselves under the ordinary rule, you have policy areas within the same devolved areas which are subject to the provisions in the Bill without the need to obtain the consent of the devolved Governments The point I am really trying to make, as briefly as I can, is that there is here a recipe for confusion and mismanagement which would be in nobody’s best interests, and which we should, if possible, try to avoid. The remarks I have been making are directed largely to the Clause 7 situation, about which the Minister may wish to say something more, but they apply also to Clause 8, without elaborating further on the point I drew out of Schedule 5 to the Scotland Act and paragraph 7. My point is therefore common to these two clauses, and seeks to try to avoid the risk of confusion and mismanagement, which at present is avoided by the common understanding in the memoranda, which works so well I hope that the Minister might be willing to accept these amendments. I think the noble and learned Lord, Lord Mackay of Clashfern, is seeking to intervene. So that we can get into discussion, I beg to move Amendment 103 (to Amendment 102)