European Union (Notification of Withdrawal) Bill — House of Lords, 2017-03-01
Topic: Government Operations
Dafydd Elystan-Morgan (Crossbench, Unknown): My Lords, in proposing Amendment 43, I accept totally everything that has been said by the noble Baroness, Lady Hayter, and my noble friend Lord Wigley in respect of their amendments. Those amendments are social and political in their nature. They constitute an overwhelming case for why, in order to preserve the unity of the United Kingdom, the reality of devolution and the harmony between the various constituent parts of the United Kingdom, respect should be shown by the mother parliament to the parliaments of Wales, Scotland and Northern Ireland Those are political and social considerations; the matter that I wish to propose is in no way contrary to that but runs parallel. It is a constitutional point. It is a marvellously simple constitutional point, and I think I can deal with it in very short compass. It concerns the reserved powers constitution that Wales achieved under the Wales Act which became law a few weeks ago. The purpose of that Act was to change the whole pattern of devolution for Wales from a conferred pattern of devolution—bit by bit over the years, a confetti type of development—to a reserved powers constitution It is axiomatic as far as a reserved powers constitution is concerned that two matters should be dominant. The essence of a reserved powers constitution, as we appreciate, is that there is a transfer in the first instance of the totality of power from the mother parliament to the subsidiary parliament, but that at the same time there should be a reservation of a strict number of exceptions and reservations. It is axiomatic, therefore, that two conditions must prevail. First, the mother parliament must be seized of all the legislative power and authority that is relevant to the situation. That is obvious. Secondly, the mother parliament must be cognisant of the powers that it has and must be in a position to know exactly where to draw the line between that which is transferred and that which is reserved. Neither of those conditions exists in this case Why is that so? I remember a piece of dog Latin that I learned many years ago when I was a law student in relation to the sale of goods: "nemo dat quod non habet"—no man can give that which he does not have. Nobody can transfer that which they do not have. When it came to the question of deciding what powers Wales should have, the mother parliament did not have a mass of those powers that are relevant to the situation. There is a huge area that is missing. It may be 25%; it may be 30% or 40%. It is massive in relation to the totality of legal authority. That authority was missing from 1 January 1973, ever since the European Communities Act 1972 came into force. It never was with the mother parliament to dispose of. It could not possibly give it to Wales, or to Scotland for that matter—in Northern Ireland, the situation was entirely different, because its constitution goes back to 1922 What, therefore, is to be done? The following matters have some relevance, broadly. Of course, there is the question of the Sewel convention, which has been written into both the Scotland Act and the Wales Act. That will have its effect gradually over the years. There is also the question of the joint ministerial committee, which meets in confidence and is able to discuss in a situation of total secrecy matters which are of the utmost importance to the mother parliament and the devolved parliaments. There is also the question of protocols, which was greatly promised in the late 1990s when legislation in relation to Scottish and Welsh devolution went through but has been as dead as the dodo, I am afraid, and should be revived I think—this is where we have the amendment—there is the necessity for something that is much more focused. That is why I have proposed that the Prime Minister and the First Minister for Wales should be responsible within a period of two months for forming a body that will look carefully at the situation to determine: first, what is the scope of legislative authority that is missing here; secondly, what is the nature of that authority; thirdly, what entrenched rights—what established rights—have come into being in relation to that since 1 January 1973; and, lastly, what situations are there where there has been legislation under the 1972 Act which has been deemed to be incompatible with the European instruments. That is a very substantial job, and I suggest that the period that I have nominated of 12 months is not unreasonable in the circumstances Many people will say that this is not necessary and that Wales from Cardiff and the Westminster Parliament from here can negotiate at arm’s length. I do not believe for a moment that that is possible. We have seen exactly over the last few months when we were dealing with the Wales Bill how almost impossible it was to persuade Parliament that much of what had been reserved was utterly trivial and was an insult to the Welsh nation. Things such as sharp knives, axes, dogs, licensing, prostitution, hovercrafts—all those matters which scream for domestic consideration—had been reserved Years ago, a very famous Welsh statesman said, "Why look into a crystal ball when you can read the book?". We know exactly what happens when Wales and England deal with each other in that way. It is not the basis of partnership and equality at all. The cobwebs of colonialism still exist in the relationship between Wales and England, I am afraid. Something better has to be done, and I believe that my amendment can bring that about.