European Union (Withdrawal) Bill - Committee (9th Day) (Continued)

House of Lords, 21 March 2018.

Amendment 266

Lord Hope of Craighead (Judge)

My Lords, Amendment 266, which is in my name, is in a series of groups dealing with devolution. It is in the first of five groups dealing with rather technical points arising out of Schedules 2 and 8. They precede a lot of government amendments which are in the group following my groups. I suggest that the main discussion about devolution and its consequences is best reserved for the government amendments which are focused on Clause 11 and other clauses. I am afraid my groups are rather boring, because I am dealing with a whole series of little technical points which need adjustment to some extent in the light of progress that is being made in discussions with the devolved authorities, among other points.

The theme that runs through all my amendments is the need to respect the devolution settlements in Scotland and Wales. I am confident that the Government share that sentiment. It is all a question of how the matter is worked out in points of detail. The basic rule following our withdrawal from the EU, I suggest, is that returned EU competencies in the devolved areas should be distributed among the devolved authorities in accordance with the devolution statutes. That means that what falls within devolved competence should be treated as devolved, with all that that means, and what falls within reserved matters should be treated as reserved, with all that that means.

The statutes that form the foundation for the devolution settlements—the Scotland Act 1998 and Government of Wales Acts, the latest of which was in 2017—were all built on the foundation of our membership of the EU. In each of these statutes, it was taken as accepted that it would not be within the competence of the devolved Administrations to legislate on matters relating to EU law or indeed to take executive action in relation to these matters either.

What we have in the Bill, in place of EU law, is a new creature called “retained” EU law, which is the law that comes back to us either because it is already present in the United Kingdom or is direct EU law that is coming back to us and is not yet built into our laws but requires being built in using the mechanisms described in the Bill. In the original drafting of the Bill, retained EU law is treated as simply a mirror image of EU law, so that in that original drafting—which can be seen in Clauses 11(1) and (2)—the same restriction on competence which applied in relation to EU law is applied to retained EU law. I am delighted to see that, in developing their thinking on this matter, the Government recognise that this really is not acceptable within the devolved arrangements. A much more nuanced approach to that topic can be seen in the government amendments that we will come to later this afternoon.

What I seek to do in the preliminary groups is to draw attention to various other passages in the Bill that need to be corrected in order to be compatible with the devolution settlements. In some of the groups—but not in the first—it is already clear from the government amendments that they are in almost the same position as I am as to what needs to be done.

I turn to Amendment 266, in the first of these groups, and also mention amendments 278 and 292, which raise exactly the same point in relation to different parts of the Bill. Amendment 266 deals with the power to deal by regulation with deficiencies arising from the withdrawal from the EU, which is the subject of Clause 7. It appears in Part 1 of Schedule 2 in the form that is appropriate for the activities of the devolved institutions in carrying out the exercise to which Clause 7 refers.

Amendment 278 deals with the power by regulation to prevent breaches of international obligations, which is the subject of Clause 8. The devolution mechanism for this is dealt with in paragraph 13 of Schedule 2. Amendment 292 relates to the power by regulation to implement the withdrawal agreement and the mechanism for the devolved Administrations is set out in paragraph 21 of Schedule 2.

The point to which these three amendments draw attention is a qualification that is to be found in each of these contexts on the power of the devolved authority to make provision by regulations regarding these three matters. The particular provision that I am concerned about is found in paragraph 1(4) of Schedule 2:

“Regulations under this Part, so far as made by a devolved authority … (b) may not confer a power to legislate (other than a power to make rules of procedure for a court or tribunal)”.

At first sight that qualification cuts across the concept of devolution, the effect of which is that if a matter is within devolved competence, it is for the devolved authority to take its own decisions as to how to deal with that matter, in whatever way it regards as appropriate. Under the devolution statutes, the qualification that we find in this provision and its equivalents in paragraphs 13 and 21 is new: in my experience it has not been encountered before. To an extent, therefore, these three amendments are probing, to enable the Minister to explain why this qualification has been inserted in these paragraphs and, if no reasonable explanation is given, to suggest to her that maybe the qualification should be removed, on the ground that when it comes to exercising powers within the devolved area, it should not be there.

It is right to add that Part 1 of Schedule 2, for perfectly understandable reasons, contains qualifications. For example, paragraph 2 states that:

“No regulations may be made under this Part by a devolved authority unless every provision of them is within the devolved competence of the devolved authority”.

That is a perfectly sensible provision, and consistent with the devolution scheme. What troubles me is why the qualification that I have mentioned should be there. My question is: should it be there at all? And if it should not be there, should it not be taken out? I beg to move.

Lord Wallace of Tankerness (Liberal Democrat)

My Lords, the Committee is indebted to the noble and learned Lord, Lord Hope of Craighead, for his detailed analysis of the Bill as it originally stood, and the points arising. My name is on the amendment, but I would be happy to deal with the important issues of principle that prompted me to sign some of these amendments, in an attempt to honour the spirit of the original devolution settlement, when we deal with the group containing the government amendments. Obviously, however, I support the amendment that the noble and learned Lord has moved.

Lord Wigley (Plaid Cymru)

My Lords, I too support the noble and learned Lord’s amendment, and I entirely agree with his approach—that it is best to focus on a couple of larger debates rather than going through all the minutiae at this point. However, it is important to underline the principle—that matters coming back from Brussels that deal with devolved subjects should go to the devolved authorities. It is on that principle that I hope we shall concentrate as we move forward.

Baroness Finlay of Llandaff (Crossbench)

My Lords, I too thank my noble and learned friend Lord Hope of Craighead for introducing this set of amendments, to which I have added my name, so concisely and well. I start the afternoon by placing on record my thanks to Ministers, especially the noble Lord, Lord Bourne of Aberystwyth, and the Secretary of State for Wales, who have been trying to keep us—certainly me—up to date in relation to Wales. I have had correspondence during the morning. I hope that the spirit of the debate today will recognise the importance of the devolved competences, and the need to respect them and find a way forwards. Like others, I will reserve my main remarks for later, in the larger debates.

Lord Morris of Aberavon (Labour)

My Lords, I too support the noble and learned Lord, Lord Hope, and I too will reserve my remarks until we come to the government amendments. This is new ground; it needs an explanation, and unless the explanation is reasonable I will certainly oppose the provision.

Baroness Hayter of Kentish Town (Labour)

My Lords, this debate will be an easy one for the Minister to respond to. I entirely agree with what has been said, and all I want to add is that although these are technical changes, they need to be dealt with in the spirit that we shall move on to later. Our worry, particularly at the beginning, was that it took some time for the Government to recognise that the expectation that not everything retained was devolved was a legitimate one from the devolved Administrations. Perhaps now there is that willingness to engage. We may regret that it took a little time but we seem to have got there. Perhaps one of the issues was that the Joint Ministerial Committee has not worked in the way we might have expected in the past. Brexit showed that up in a sense, but this is bigger than a Brexit issue. Therefore, any changes to the status of that body are probably not for this Bill to deal with. However, I hope that at some point the Government can revisit whether it needs to be given either statutory authority or some greater authority in the future. Although these amendments may be technical in the words of the noble and learned Lord, Lord Hope, with his, as ever, diplomatic use of the phrase, “They need adjustments”, I think he means that we want the Government to move on them. I hope the spirit that I think is now abroad will enable us to do that.

Lord Thomas of Gresford (Liberal Democrat)

My Lords, I do not agree that these are simply technical amendments. The issues arise from Clause 7, headed, “Dealing with deficiencies arising from withdrawal”, which gives a Minister of the Crown power to,

“make such provision as the Minister considers appropriate to prevent, remedy or mitigate”,

deficiencies. Clause 8 of the Bill that we have discussed at such length deals with a Minister of the Crown making regulations as he considers appropriate,

“to prevent or remedy any breach, arising from the withdrawal of the United Kingdom … of the international obligations of the United Kingdom”.

Clause 9 is headed, “Implementing the withdrawal agreement”, and similar powers are given to a Minister of the Crown. Schedule 2 is headed, “Corresponding powers involving devolved authorities”. Part 1 of that schedule deals with deficiencies and Part 2 with international obligations. Part 3 is headed, “Implementing the withdrawal agreement”. One would have expected corresponding powers for Welsh Ministers and Scottish Ministers in those areas within their own competences, but each of those parts of Schedule 2 says that regulations may not,

“confer a power to legislate”.

Therefore, unlike the powers granted to a Minister of the Crown in the UK Parliament, the powers to legislate are withheld from Ministers in the devolved Assemblies. That is the critical issue, which is a matter of principle and not at all technical.

Lord Hennessy of Nympsfield (Crossbench)

My Lords, I regret that I was unable to speak at Second Reading. I promise that I shall not make up for it this afternoon; I shall be very brief.

With the clauses before us this afternoon and evening, we have reached a truly load-bearing piece of the Bill. In my more anxious moments I sometimes think that the very weight of the kingdom is resting upon it, and that, if it is misjudged, the chances of the union eventually crumbling would be worryingly greater.

I do not doubt the Government’s good faith in the negotiations within the Joint Ministerial Committees but, as other noble Lords have already mentioned, the devolutionary spirit of 1998 needs to suffuse the discussions in those committees’ deliberations, and, indeed, ours in both Houses of Parliament.

If the European question infects and envenoms the union question, the country will suffer a self-inflicted blow of immense proportions. Of course, there is a need to retain an effective internal market within the UK. That is absolutely crucial, but the sustenance of the union—the essential quiddity of our nation—is paramount, which is why I express my wholehearted support for the thrust of the amendments in the name of my noble and learned friend Lord Hope of Craighead.

Baroness Goldie (Conservative)

My Lords, first, I both echo and reaffirm what the noble and learned Lord, Lord Hope, said: there must be respect for the devolved Administrations. I emphasise that as emphatically and cogently as I can at this Dispatch Box, and I confirm that the Government are wholly committed to demonstrating that respect.

As a number of your Lordships observed, the Government have tabled amendments to Clause 11, and we will give them our full consideration shortly. We have to acknowledge that the position we ultimately reach on Clause 11 will have implications for related policy on devolution in the Bill. Indeed, the noble and learned Lord, Lord Hope, acknowledged that. I can reassure your Lordships that we are mindful of the need to revisit the approach we have taken for the Schedule 2 powers in the light of that forthcoming debate on Clause 11. I therefore thank the noble and learned Lord Hope for instigating this debate on whether the devolved Ministers should be permitted to sub-delegate their Schedule 2 powers.

Amendments 266 and 278 would remove this restriction from the correcting power and the international obligations power for Scottish and Welsh Ministers and for Northern Ireland departments. Amendment 292 relates to the withdrawal agreement power and would have a wider effect, but I understand that the intention is the same. I should be clear that we do not oppose in principle the idea that these powers should be able to be sub-delegated to and by devolved authorities where appropriate cause is shown. This is already evident in the Bill. Noble Lords will see that this restriction—for instance, in paragraph 1(4)(b) of Schedule 2—is already qualified to allow for the sub-delegation of a power to make rules of procedure for a court or a tribunal. This ensures that the power can be sub-delegated where appropriate to ensure judicial independence. We have invited the devolved Administrations to offer any examples of where sub-delegation would be needed, and we have made clear that where they identify such examples we shall consider drawing further exceptions to the restriction. So far, no examples have been given.

It has been our intention—this may surprise the Chamber—not to make the powers in this Bill any wider than is appropriate. Opening up the possibility of sub-delegation by devolved Ministers in all cases where no prior need has been demonstrated does not align with this intention. However, I have listened to the contributions made this afternoon and have heard the concerns that your Lordships have expressed today. I have taken particular note of the question of respect as it relates to the perceived unfairness of a possible disparity between the devolved ministerial powers and the corresponding powers for UK Ministers.

Lord Thomas of Gresford (Liberal Democrat)

I do not understand the expression “sub-delegation” that the Minister uses. Does she suggest that when powers are given to Ministers in the devolved Administrations, that is “sub-delegating”? I do not think that is the appropriate term.

Baroness Goldie (Conservative)

It is merely a generic description of the power to exercise delegated power-making by regulation, as encompassed by these provisions in the Bill.

I reiterate that I accept that these are serious points. They deserve serious consideration, and I can confirm that the Government are prepared to look again at where such a change may be merited for the use of the powers by the devolved Administrations in this way.

Lord Morris of Aberavon (Labour)

May I pursue the intervention made by the noble Lord, Lord Thomas? “Delegated” is not an appropriate term here; they are devolved powers, not delegated powers.

Baroness Goldie (Conservative)

I accept the distinction drawn by the noble and learned Lord. I am trying to address the amendments of the noble and learned Lord, Lord Hope, in the context of what the provisions do and his concern that they appear to cut off what he considers an entitlement of the devolved Administrations. I have tried to explain why, inevitably, these aspects are interlinked with the wider debate we will have on Clause 11.

The Government are prepared to listen to what has been said. I have indicated that we are prepared to look again at these provisions. I thank the noble and learned Lord for bringing forward his amendment, but in the circumstances I urge him to withdraw it.

Lord Hope of Craighead (Judge)

My Lords, I am grateful to the Minister for her remarks. The use of the expression “sub-delegation” gives some insight into the thinking of the Government. As was pointed out, “delegation” is not an appropriate word to use where matters have already been devolved—by the statutes to which I referred earlier—to both Wales and Scotland. “Sub-delegation” is a very odd word to use. We are talking about a power within the devolved competencies for the devolved authorities to legislate, or confer a power to legislate, by whatever means they think appropriate. So I am encouraged by the fact that the Minister is prepared to look at this again. I think that she will agree with me that much of what we will be discussing in this little group of amendments is work in progress, as we try to work through the detail of the scheme that the Bill sets out. I am encouraged by her reply.

I also thank all those who have contributed to this brief debate. On the word “adjustment”, I refer to what the noble Baroness, Lady Hayter, was saying. The Minister will remember, from her early days in the law in Scotland, that the word “adjustment” is sometimes used to take things out as well as to put things in. It is a word that came naturally to me as a means of dealing with bits in the statute that require to be trimmed, perhaps by removal, as well as by refining the language. I am grateful to the noble Lords, Lord Thomas of Gresford and Lord Hennessy of Nympsfield, for their emphasis that we are dealing with matters of great significance and importance. When I said that these were just technical points, I did not mean to suggest otherwise; rather, I was suggesting that the main thrust of our argument will be reserved for when we come to look at the Government’s amendments.

Lastly, on the contribution of the noble Baroness, Lady Finlay of Llandaff, I join in her tribute to the efforts that the noble Lord, Lord Bourne, is making to discuss matters with us and to reach as much common ground as possible. I, too, have had useful meetings with him and I am grateful to him and to his team for the attention they have given to the points I have been raising. As I have said, this is work in progress; I am encouraged by what the Minister said and, in the light of that, I beg leave to withdraw my amendment.

Amendment 266 withdrawn.

Amendment 267 had been withdrawn from the Marshalled List.

Amendment 268

Lord Hope of Craighead (Judge)

My Lords, this is the first of another group of amendments, all of which are in my name. Amendment 268 refers to a provision in paragraph 4 of Part 1 of the schedule, which states that no regulations made under that part by a devolved authority prevent it from conferring functions that correspond to functions under EU tertiary legislation. Amendment 296 relates to the same restriction which we find in paragraph 24. Amendments 280 and 294 deal with another restriction—that no regulations may be made under that part by a devolved authority which modify any retained direct EU legislation or anything which is retained law by virtue of Clause 4.

These are rather complicated matters to explain, but they are all examples of restrictions on the power of the devolved authorities to do what they are supposed to do under Part 1 of the schedule in the two respects mentioned in these passages. The whole point is the same one I mentioned before in regard to the previous group—that these are restrictions on actions which otherwise would be taken within devolved competence. The fact that there are restrictions at all is contrary to the philosophy on which the devolution system has been based. It is a given—as we have seen already in the passage I read out earlier—that, if the powers are exercised, they can be exercised only within the devolved area. There is no question of their moving into the reserved areas as that is not within their competence; if the matter is within their competence, the argument is that they should not be inhibited from doing what they consider to be right.

Tertiary legislation is an animal that has not been referred to much in our debates in this Committee. A fairly lengthy definition of it is to be found on page 10 of the Bill, but it is not obvious to me why the devolved authorities should not be able to deal with tertiary EU legislation in the same way as any other EU retained legislation. So, with that rather brief introduction, directed particularly to Amendment 268, I beg to move.

Baroness Finlay of Llandaff (Crossbench)

My Lords, again I am grateful to my noble and learned friend for the way in which he has introduced this group of amendments. It is absolutely essential that we remember the principles of legislative competence and what has been devolved, and that we try to cut across the technicalities. It is also important to remember that the devolved Governments of Scotland and Wales should not be faced with any implementation framework in which they will have no decision-making power in negotiations and which intrudes on their area of competence.

Our withdrawal from the EU seems to be quite a tangled web. The job of those sitting in Cardiff and Edinburgh is to serve their constituents and defend the rights that they fought so hard to earn in the first place; it is not to return such rights in legislation to Westminster without being sure that it serves their populations well. That is why it becomes so important to make sure that there is an equality of voice in working out these different aspects of legislation.

When it comes to tertiary legislation, it is even more difficult to understand why there would not be such an equality of voice—I find that quite bizarre. I am afraid that, as the noble Baroness, Lady Hayter, said, the way that the Joint Ministerial Committee has worked to date has not been as good as it might have been, and I hope that today will mark a watershed and a complete change in those relationships.

It is important to remember that EU law was in place when we went to devolution. Therefore, as things come down from Europe, they should drop equally into the three Governments of Wales, Scotland and England, and, where they affect the whole of the UK, they should be looked at on a UK-wide basis. However, that does not mean that all of a sudden Parliament has a complete say over what goes on in the devolved Administrations. There is an equality of voice that must not be eroded by the process.

Therefore, these amendments are really important and I am glad that the Minister said that she will look at them carefully. It is very difficult to know which bit we should look at in great detail and tweak—although it will be more than tweaking; it will probably need a massive rewrite. It is not for the Committee to do that; it should simply raise the concerns, with the rewriting to be done afterwards. We will come to the main debate soon.

Lord McConnell of Glenscorrodale (Labour)

My Lords, I want to reinforce the important points made by the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Finlay. I have spoken before in your Lordships’ Chamber about the importance of clarity in the devolution settlement and the difference that it has made to the relationships between the Scottish Government, the Scottish Parliament, the UK Government and the UK Parliament over these last 19 years. The lack of serious or unresolvable dispute about where the legal powers lie has been the result of that initial clarity in 1998.

The one area where there were problems, particularly in the early years, related to the fact that the Scottish Parliament and the Scottish Government had responsibility under the Scotland Act in relation to EU law. The difficulties and legal challenges, both inside Scotland and to the European Court in relation to the actions of the Scottish Executive, the Scottish Government and the Scottish Parliament, were in relation to that relationship.

Therefore, clarity is required as part of the debate and discussion on the Bill—perhaps not today, given the assurances from the noble Baroness, Lady Goldie, on the Government’s behalf, but certainly following the debate on Clause 11. It is vital that we have greater clarity and the right principles behind whatever replaces the current wording in the Bill on the matters raised by the noble and learned Lord, Lord Hope.

Lord Thomas of Gresford (Liberal Democrat)

Your Lordships should appreciate that the devolved Administrations can make law but have been constrained by EU law in the areas of their competencies. If EU law is taken away, we would expect the devolved Administrations to carry on without that constraint. Previously, there had been no constraint on their making law within their competencies from Westminster, only from Brussels. Taking away Brussels suddenly imposes Westminster constraints on the devolved Administrations in areas such as agriculture, which have been devolved to them, but it also means that the devolved Administrations cannot make any changes to the law at all—even when it is, for example, an agricultural matter. It is not simply taking away the constraint of Brussels, but imposing something entirely new. Westminster politics comes into it then; considerations that have not emerged into the arena before suddenly become important. That is why these are matters of principle and deeply difficult to resolve.

I was so pleased to hear the noble Lord, Lord Hennessey, say that this was such a difficult area because I suggested in my Second Reading speech that we should have taken devolution completely out of the Bill. At that point, the Government would have had no problem in getting legislative consent from Scotland and Wales and could have sorted out devolution issues as a completely separate matter. Now, your Lordships are listening—in the context of the EU withdrawal Bill—to a very difficult issue.

Baroness Randerson (Liberal Democrat)

My Lords, I want to add to what my noble friend just said by making reference to the politics of all this. The reality is that powers that came from Europe were seen as politically very neutral, in a party-political sense; but once those powers and restraints are placed with Westminster, raw party politics immediately become a key issue. The tension therefore increases. The Minister will be aware of this from her own experience. Whereas a power that was passed from or constrained by Europe is seen on a pan-European basis—where party politics could not possibly be applied in a local sense—when it becomes a decision by Westminster, party politics are inevitably written into it, whether in favour or against. I am sure the Minister will understand the point I am making from the Scottish experience; it certainly applies to my Welsh experience.

Baroness Goldie (Conservative)

My Lords, I thank the noble and learned Lord, Lord Hope, for tabling these amendments. They would have a significant effect because they seek to remove the restrictions on the ability of these powers to modify direct retained EU legislation and to confer functions that correspond to the making of what is termed EU tertiary legislation. I am grateful for the thoughtful and considered contributions that have emanated from a wide range of experience, not least of the devolved Administrations. As noble Lords have noted in their speeches, this issue is again closely tied to the final policy position on Clause 11.

These amendments concern the question of parity, as the noble Baroness, Lady Randerson, has just pointed out, between Ministers in the devolved Administrations and UK Ministers. They also address the matter of who should be responsible for fixing EU legislation in areas that intersect with areas of devolved competence which currently have uniform application across the UK. I apologise again for emphasising the point, but we need to consider how all of this will work in relation to the wider changes we have tabled in Clause 11. It is important to recognise that the answer we reach on that question in the subsequent debate will necessarily inform the answer to the questions posed in this one.

The Government have been clear that the powers are conferred on the devolved Administrations so as to ensure that we do not disrupt the common frameworks currently provided for by EU law in areas where a framework will need to be retained. That might be to protect our internal UK market, our common resources or any of the other criteria that we have agreed with the devolved Administrations and published in the Joint Ministerial Committee communiqué in October last year. These are laws that apply directly, exactly as written, across every part of the UK, and indeed at the moment across every part of every member state. As such, these are by their nature laws that the devolved institutions currently have no power to modify or to diverge from. As we consider where we shall and shall not need frameworks, it is clear that in many of these areas, competence will pass to the devolved Administrations on exit day.

However, I would suggest to noble Lords that before we get to that point, we have to ensure that these laws function properly. We owe that to our communities and businesses and to individuals—that there can be certainty as to the laws that will apply to all those groups on the day we leave the EU. Carving up the effect of these laws in different parts of the UK or expecting to have different laws to achieve the same effect for different parts of the UK might undermine that certainty. It is the Government’s view that where in the first instance these laws apply at the UK level, we should also consider the corrections to those laws at the UK level. But let there be no doubt that the devolved Administrations will be an integral part of this process. We shall consult them on any and every change to retained direct EU legislation in an otherwise devolved area made under the powers in this Bill. We shall need to reflect on this alongside the debate on Clause 11.

Whatever the outcome in relation to devolved competence more widely after exit day, at a minimum we must retain this limit in those areas where, working with the devolved Administrations, we have identified that we need to retain a framework. Otherwise, we put at risk some of the issues to which I have referred, such as the internal market, the management of our common resources and even our ability to strike the best possible trade deals.

I hope that this provides some reassurance to the noble and learned Lord, Lord Hope, that we are alive to the interaction of this policy with Clause 11. We are considering it in parallel as our discussions continue with the devolved Administrations. The end result must be that both Clauses 10 and 11 dovetail and that they are not in conflict. On that basis, I commit to continuing to keep the noble and learned Lord and this House up to speed on how our policy thinking is developing in these areas. In those circumstances, I would ask him to withdraw his amendment.

Lord Hope of Craighead (Judge)

My Lords, I am grateful to the Minister for her very helpful reply. Perhaps this is an example of another kind of adjustment—to return to the noble Baroness, Lady Hayter, picking up my use of that word. Rather than taking out or adding in, it is a case of refinement. I appreciate exactly what the noble Baroness meant in her reference to frameworks. In regard to tertiary legislation, it might be that a slightly less blanket provision could be used; that is, replacing the blanket restriction on competence with something more targeted to the particular needs to create and preserve the internal market that we are all looking forward to within the UK. What I take from what the Minister has said is that she will look carefully at this and consider to what extent she can come back on Report with something which meets the points that I have been making.

The noble Lords, Lord Thomas and Lord McConnell, referred to the reasoning behind the reference to EU law in the original statutes. EU law shared something in common with rights under the European Convention on Human Rights. In both cases, when the Scotland Act was being designed, it was appreciated that the obligations which gave rise to convention rights and rights and obligations under EU law were based on treaties. So far as those treaties were concerned, in the framing of the Scotland Act and the Wales Act it was thought necessary to preserve the obligations that the United Kingdom had under the treaties and make sure that they were protected in the way that we found in the statute as originally framed; in other words, there was no competence to deal with matters which were the subject of those important treaties. The point made by the noble Lord, Lord Thomas, was that once we leave the EU, that treaty fetter disappears completely; what we have is retained EU law, which is a completely different creature from EU law as we know it today. That is why it is important to appreciate that retained EU law is not a mirror image of EU law, although the subject matter and the detail are no doubt exactly the same.

I shall come back to that in the next group of amendments, to which I shall speak in a moment, because they raise the same issue. For the time being, I beg leave to withdraw the amendment.

Amendment 268 withdrawn.

Amendment 269 had been withdrawn from the Marshalled List.

Amendment 270 not moved.

Amendment 271 had been withdrawn from the Marshalled List.

Amendment 272 not moved.

Amendment 273 had been withdrawn from the Marshalled List.

Amendment 274

Lord Hope of Craighead (Judge)

My Lords, this is the first amendment in a very much larger group, not all of which is composed of amendments in my name. Although the matter is lengthy and rather complicated, I can deal with it comparatively briefly and, I hope, in a way that is intelligible to your Lordships and in particular to the Minister.

Amendments 274 and 275 are related to paragraphs 9 and 10 in part 1 of Schedule 2, the former dealing with Scotland and the latter with Wales. I am concerned about the provision which states:

“A provision is within the devolved competence of the Scottish Ministers for the purposes of this Part if … (a) it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament (ignoring section 29(2)(d) of the Scotland Act 1998 so far as relating to EU law and retained EU law)”.

As I understand that provision, it excludes from competence provisions relating to retained EU law. That is a theme that runs through most of the amendments in this group. It is exactly the same point as we have been discussing in the earlier groups, the question being whether it can possibly be right that the devolved institutions should be prohibited from dealing with retained EU law when they work through the exercises with which part 1 of Schedule 2 is concerned. All the amendments in this group that are in my name raise that issue, except Amendment 363, which I will come back to in a moment. Some of them will require to be superseded in light of the Government’s amended version of Clause 11. I would have thought it was a fairly simple exercise for the Minister and her team to go through these various amendments, which I need not enumerate, just to be sure that the various passages to which I have drawn attention are corrected in light of the revised version of Clause 11.

Amendment 363 relates to the right of the Advocate-General to take part as a party in criminal proceedings so far as they relate to an issue as to whether legislation or an act of a Scottish Minister is incompatible with convention rights or EU law. Of course, the interest of the Advocate-General, if he wishes to enter the proceedings, is to ensure that the devolved institutions act within their competence in relation to these matters. What we have in paragraph 18 is a simple substitution of a reference to “retained EU law” for the reference that is in the statute at the moment to “EU law”. The competence restriction on EU law will of course be removed when we leave the EU, but once again I make the point that simply to substitute a reference to “retained EU law” is not the right thing to do: it is not a mirror image of EU law. Indeed, the fetter that applied to EU law should not apply to retained EU law. The amendment is simply designed to delete from the relevant section of the Criminal Procedure (Scotland) Act 1995, which would no longer have any relevance. I leave that point with the Minister to look at along with all the others.

Lord Foulkes of Cumnock (Labour)

I have been listening very carefully. Can the noble and learned Lord explain again, in simple terms, why retained EU law on a particular area, such as agricultural support, is different from current EU law? I do not understand why he says it is different.

Lord Hope of Craighead (Judge)

In a sense, retained EU law is simply repeating what is to be found in EU law. The point is that the treatment of it, from the point of view of the competence of the Parliament and the Ministers, is different. Under the Scotland Act as it is, Ministers have no power to legislate or deal with EU law, because that is subject to the restriction in Section 29 of the Scotland Act, and also in Section 53, so far as Ministers are concerned. My point is that that restriction disappears because we are no longer bound by the treaty arrangements that gave rise to the restriction in the first place. I think the noble Lord is pointing out that much of retained EU law is already part of our law because it has already been built in to our legal system. The point is that I am suggesting that the Parliament and the Ministers should be able to deal with retained EU law in the same way as they can deal with any other domestic law, as long as it is not reserved.

Lord Foulkes of Cumnock (Labour)

I understand that—these debates are very useful. However, I am getting worried: as the noble and learned Lord knows, I am a strong devolutionist and a former Member of the Scottish Parliament, but in the last hour I have come to understand and sympathise with what the UK Government are arguing, which is a bit worrying.

Lord Foulkes of Cumnock (Labour)

No, it is a serious matter. Surely there are areas that are dealt with now by the European Union because we have all thought that it was right to have standards for the European Union Common Market. Are the UK Government not arguing that if we have a UK common market—which we will in certain areas—it is sensible to have the same standards throughout the United Kingdom? Is that not a valid argument?

Lord Hope of Craighead (Judge)

If the noble Lord will forgive me, I was suggesting that we deal with that issue when we look at Clause 11 and the government amendments. The noble Lord raises a very important point, but it does not really relate to my amendments. I think it is much more fundamental and we will need to discuss it in light of the discussion of the reform of Clause 11. I hope I have answered the noble Lord’s question. There is a basic difference between the competence arrangements relating to EU law, which does not apply once we leave the Union, and retained EU law, either domestic or direct, as it comes in under Clauses 2 or 3.

Having digressed somewhat in my reply, I again thank the Minister for her helpful reply. I will be happy to withdraw the amendment in due course; however, there are others in the group that others may wish to speak to.

Lord Wigley (Plaid Cymru)

My Lords, I will strike a different note as I put forward what are perhaps the substantive arguments—as we see them—in relation to these issues.

Amendment 304 has for some reason been grouped with these amendments, which does not make an awful lot of sense. It stands in my name and that of my noble friend Lord Hain, and is based on one of the key amendments drafted by the Welsh and Scottish Governments ahead of the Bill’s passage through the other place. That amendment is also covered by part of Amendment 303, which surprisingly will not arise until very late tonight. None the less, Amendment 304 goes to the heart of the widespread criticism of Clause 11 as it currently stands—I am aware that amendments may come forward later—and lifts the restriction it places on the devolved parliaments in relation to EU retained law.

My fear—and that of all parties in the National Assembly—is that giving UK Ministers control in the EU withdrawal Bill over areas of retained EU law relating to matters which fall under devolved competences will, in effect, tend to normalise direct rule from Westminster in these areas. Given the powers under this and other recent legislation which enable Ministers at Westminster to amend devolved legislation by order, this will, in effect, undermine Welsh sovereignty in areas which are devolved to Wales and blur the responsibility of the National Assembly. Furthermore, there is a fear that this will set a precedent for this and future UK Governments, who may well be tempted when a devolved Government act in a way with which they disagree, to find a justification to intervene. This would be particularly galling if it were on issues where Welsh interests were seen to be in conflict with England’s perceived interests—perhaps validly so. The Prime Minister has, of course, pledged never again to “devolve and forget”. That can be interpreted in more than one way, and in this context it has generated quite a few ripples of unease.

In order to persuade the devolved parliaments to agree to legislative consent orders—which are currently not forthcoming from either the Scottish Parliament or Welsh Assembly—the UK Government have tabled a set of amendments to Clause 11 which we will consider later. The Government’s proposals would provide a power to make regulations in certain devolved areas currently subject to EU law, and would prevent the devolved legislatures from taking action in the areas covered by those regulations. Whether noble Lords in this Chamber like it or not, this is regarded by members of all parties in the National Assembly as reflecting a growing approach by the UK Government—namely, in areas where devolution may be a nuisance or a hindrance to the UK Government’s agenda—to roll back devolution, or at the very least to attenuate it, and to centralise certain powers in London. The Welsh and Scottish Governments share this fear. That is why, in the Senedd—thanks largely to the lead of my inspirational colleague Steffan Lewis AM—the Welsh Government have introduced a continuity Bill to safeguard Welsh devolution. That Bill is currently progressing through its legislative steps with all-party support. Assembly Members are taking such a step not as a threat but as a safeguard: they still hope that there may be a meeting of minds between them and Westminster, and I understand they have even drafted a sunset clause which could be triggered if such an agreement were achieved. They look to this Chamber today to take a stand in facilitating that meeting of minds and to ensure that the centralist direction to which they feel they are being subject is brought to an end.

Alongside the amendments which the UK Government have tabled, they have published a list of 158 areas of intersection of devolved competences with EU law, noting that they envisage regulations temporarily restricting devolved legislatures’ competence—in advance of more substantive arrangements in primary legislation —in up to 24 of those areas. Taking such steps is, rightly or wrongly, widely perceived as a power grab. These 24 areas, all of which apply to both Wales and Scotland, cover a significant part of devolved responsibilities, including agricultural support, fisheries management, environmental policy, public procurement and food standards. These areas are vital for industries and businesses in Wales, and for the Welsh economy. The amendments would allow the UK Government to make regulations in any or all of these devolved areas.

I wholeheartedly agree that common frameworks are appropriate in some cases, given the current role of EU law in regulating action in all parts of the UK—

Lord Foulkes of Cumnock (Labour)

Hear, hear.

Lord Wigley (Plaid Cymru)

Indeed—the very point that the noble Lord, Lord Foulkes, was making earlier; I agree. Given the current role of EU law regulating action in all parts of the UK in such subjects, partly to facilitate a single market with a level playing field—the point that the noble Lord was making—and partly to ensure that in matters which by their nature cannot be constrained by political borders, there is a coherent common approach. I accept this. Indeed, last week I proposed an amendment to provide a framework agreement for environmental policy—which, quite amazingly, the Government rejected. However, if there are to be such frameworks, the devolved Administrations and the devolved legislatures, whose legislative competence is being constrained by such frameworks, must surely agree the proposed steps jointly with the UK Government. I have tabled an amendment to an amendment in the name of the noble and learned Lord, Lord Mackay, providing a mechanism to this end. That will be debated later so I will not anticipate that debate now.

Let us be clear: unless there is agreement between Westminster and the devolved Governments on these matters, the continuity Bill will be enacted by the Assembly and will take precedence in Wales. Surely it is time for the UK Government to reconsider what is seen as an obdurate stance and agree a sensible, balanced and respectful way forward.

Lord Wallace of Tankerness (Liberal Democrat)

My Lords, I had not intended to speak in this debate because in many respects government Amendment 302A answers the initial point of concern—that the current limitation on competence in the Scotland Act under European Union law would be replaced by a restriction on retained EU law. Of course, under the new amendment that has gone, but there is a wider point on which the Minister could perhaps assist the Committee, which arises from the draft agreement on the transitional period.

As I understand it, during the transitional period basically the acquis will still apply. I have looked at Articles 4 and 82 of the draft agreement. Article 4 says:

“Where this Agreement provides for the application of Union law in the United Kingdom, it shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States”.

Article 82 says:

“The Court of Justice of the European Union shall continue to have jurisdiction for any proceedings brought before it by the United Kingdom or against the United Kingdom before the end of the transition period”.

We will have a lot of debates this afternoon about whether UK Ministers, Scottish Ministers or Welsh Ministers will be exercising powers after exit day, but can the Minister indicate how the United Kingdom Government see the position? If we are going to have to abide by European Union law having the same legal effect as it produces in the Union, is there any room for movement at all? How is effect going to be given to that if, under Clause 1 of the Bill, the European Communities Act 1972 has been repealed?

Lord Thomas of Gresford (Liberal Democrat)

My Lords, I cannot allow the noble Lord, Lord Foulkes, to continue with his heresy that the Government are right in what they are doing. I noticed the shock that passed over the face of the noble Lord, Lord Forsyth. What I think the noble Lord, Lord Foulkes, does not appreciate is that the proposal of the Government is to introduce frame- works into this country to save the internal market of the UK, whether or not the devolved Administrations consent. All they are prepared to do, as the noble Baroness the Minister said in response to something earlier, is to consult—they are not necessarily seeking agreement. That is where he has it wrong.

Lord Foulkes of Cumnock (Labour)

No, I have it absolutely right. I know that that is precisely what it is. I have said that on previous occasions. But, with respect, it was the couple of speeches that the noble Lord, Lord Thomas, made earlier on that moved me in the Government’s direction.

Lord Keen of Elie (Conservative)

My Lords, I am obliged for all the contributions at this stage of the debate. I appreciate, as do other Members of the House, that when I move the government amendment to Clause 11, we will embrace a debate about the consequences of that amended clause and the significant change it makes to the way in which we are going to deal with, among other things, devolved competences. But as the noble and learned Lord, Lord Hope, observed, his amendments are consequential in a sense on what is going to happen with regard to Clause 11. In that context, I point out that we had already indicated our intention to move the amendment to Clause 11 and then withdraw it, in order that the consequences for the schedules to the Bill can be addressed more properly when we reach Report. However, there is a more fundamental issue underlying this, which has been highlighted by the use of the terms “consult” and “consent”. It is really rather fundamental. Because these are probing amendments, I will just outline the Government’s thinking with regard to this area of the Bill and how it will work. I am sorry if I am going to appear somewhat repetitive about some matters of history that have been touched upon already, but perhaps your Lordships could bear with me, if but for a moment.

In 1972, the UK Parliament of course transferred certain competences to the EU. Having done so, it limited its competence to legislate for the United Kingdom. When it came to the Scotland Act 1998 and the Government of Wales Act 2006, that Brussels competence, as I will term it, had already gone. When it came to considering the scope of the divorce settlement, the matter of the powers held by the European Union in Brussels was not in scope for consideration as part of devolution. They had gone, by virtue of an international treaty implemented in domestic law pursuant to the ECA 1972. The devolved settlement was determined by reference to the competence that remained in Westminster in 1998 and in 2006.

Baroness Hayter of Kentish Town (Labour)

My Lords—

Lord Keen of Elie (Conservative)

I am going to elaborate on what happens to the competences in Europe. I wonder whether the noble Baroness will bear with me just for a moment.

Baroness Hayter of Kentish Town (Labour)

But I wanted to challenge what the Minister just said. The competences were not actually removed from us. We agreed to operate within the framework, but the idea that we actually gave up those competences in the way described would perhaps not be accepted, as such. We agreed that the EU had rights to make laws in certain areas, but that is not the same as saying, “This is no longer our responsibility”.

Lord Keen of Elie (Conservative)

With respect, pursuant to our international treaty obligations, we bound ourselves at the level of international law to allow the EU to exercise competence in areas where previously the UK Parliament would have exercised it. That was then implemented in domestic law by virtue of the 1972 Act. Of course a sovereign Parliament is always able to repeal the 1972 Act, as it is now doing, but so long as it remained in place, and so long as we remained party to the relevant treaty—which became treaties—we were bound in that context. I do not entirely agree with the analysis, but I do not believe it is material for the present purposes, if I may respectfully say so.

Once Brussels had certain competences, it then exercised them. It was important that Brussels should exercise them in one area in particular, which was the development of the EU single market, as no one else could have exercised jurisdiction over a single market in the EU. The idea that 12—now 28—individual jurisdictions could have maintained the single market is self-evidently untenable, so Brussels exercised that jurisdiction, for very good reason. When we leave the EU, we will find ourselves in the position where we want to maintain an internal single market in the United Kingdom; the noble Lord, Lord Foulkes, referred to that, while the noble and learned Lord, Lord Hope, said we are looking forward to the internal market in the United Kingdom. We have to bear that in mind. What Parliament is in a position to legislate for a UK single market? The answer to that is the Parliament that has jurisdiction for the whole United Kingdom. I will come on to the issue of devolved competence in a moment, but generally speaking if you are going to maintain a single market you need a legislative power that is able to do that for the single market.

Lest anyone interrupt just yet, I add that of course by their very nature the devolved Administrations, parliaments and assemblies have responsibility for devolved powers in their respective nations. We respect that, of course, but there is an issue here that has not yet been mentioned. We identified, on the basis of analysis that was carried out with the devolved Administrations, that there were some 153 areas of competence where—

Lord McConnell of Glenscorrodale (Labour)

Before the Minister moves on to the detail of those competences, I want to challenge the analysis that he has given about the comparison between the UK single market and the EU single market. No one would have suggested at any time in the last 26 years that the relationship between the United Kingdom and the EU single market, and the decision-making around the EU single market, would have been such that the decision-making on the EU single market would have been left solely to the European Parliament and the European Commission. It was not. The decision-making around the EU single market was done primarily by the Council of Ministers, and in the Council of Ministers some aspects of that single market were determined by absolute consent, where the UK had a veto, while some areas were determined by qualified majority voting. We cannot replicate that arrangement with one that leaves the sole decision-making power after consultation, without consent, with the UK Parliament and the UK Government in relation to areas where currently the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly would have legislative competence.

Lord Keen of Elie (Conservative)

I do not entirely agree with the noble Lord’s analysis but for the present purposes I am not sure that it is particularly relevant. What is relevant is this, if I can continue: we have identified about 153 areas in which, upon our leaving the EU, competences will return and touch upon areas of devolved competence. These are areas that the devolved parliaments and assemblies previously had no engagement with because they lay in Brussels, but they are coming back and touching upon these areas of devolved competence and we recognise that.

However, some of these areas of competence are critical to the maintenance of a single market in the United Kingdom, as I will illustrate in a moment. Those therefore had to be addressed. We did that by engaging with the devolved Administrations and assemblies in the context of the Joint Ministerial Committee negotiations. I take the point made by the noble Baroness, Lady Hayter: there may be criticisms of that process but I respectfully suggest that that is not for this Bill. It is important to notice the achievements made by that committee in this context. In particular, noble Lords may have received a copy of the communiqué of 16 October 2017 from the Joint Ministerial Committee, which was attended by Mark Drakeford, a Cabinet Secretary in Wales, and Mr Russell, a Minister from the Scottish Government, among others, including senior civil servants from Northern Ireland in the absence of their Executive. I shall quote briefly from it, although some aspects are referred to in some of the proposed amendments:

“Ministers noted the positive progress being made on consideration of common frameworks and agreed the principles that will underpin that work”.

The definition of those principles includes the line:

“A framework will set out a common UK, or GB, approach and how it will be operated and governed”.

Then there is a list of principles:

“Common frameworks will be established where they are necessary in order to … enable the functioning of the UK internal market”—

for example, to,

“ensure compliance with international obligations; ensure the UK can negotiate, enter into and implement new trade agreements and international treaties; enable the management of common resources; administer and provide access to justice in cases with a cross-border element; safeguard the security of the”,

United Kingdom.

One can readily understand why we want to maintain these as essentially UK-based frameworks—why we need to ensure that there is a means of maintaining commonality in these areas for the United Kingdom. The document continues:

“Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore: be based on established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent”.

Your Lordships will notice an echo of what is sometimes referred to as the Sewel convention. It is not an absolute: we must consent. It is not a case of “We will just consult”, or anything of that kind. It is simply saying that there will not normally be adjustments without consent.

A great deal of work has been done since October 2017 by officials in Whitehall, Edinburgh, Cardiff and Belfast. As a consequence, on 9 March, we were able to publish the provisional frameworks analysis on returning EU powers, which indicated that in only 24 areas of the 153 was it anticipated that we will need to keep having legislation that works across the whole United Kingdom. There is some difference of opinion on one or two additional areas—as referred to by Mr Russell before one of the Scottish parliamentary committees. State aid is one. There are a number of areas where we consider that the issue is reserved but others consider that it touches on devolved competence. That is not of any immediate moment in the present context, if I may say so, because generally speaking we are agreed what those 24 areas will be.

If we are to maintain commonality for the United Kingdom in these areas, we must be able to legislate uniformly in them. That includes, let us say, pesticides in the context of agriculture—not the whole of agriculture but sub-areas where Brussels and the devolved Administrations would have exercised competence in which we realise that it is necessary to maintain commonality in the United Kingdom. Let me give a very simple example. If the Scottish Government legislated in respect of agricultural pesticides for Scotland—not extending beyond Scotland’s own borders, of course, and only within the area of their devolved competence—and other parts of the United Kingdom did not replicate those regulations, we could find that a Welsh farmer could not sell his corn to an Edinburgh baker simply because he had used pesticides that he was quite lawfully entitled to employ in Wales, and which were quite lawfully used in England and Northern Ireland, but had been banned in Scotland by the Scottish Government. As a consequence, there would be a breakdown in the internal market that is so critical to us.

I give another simple example: food labelling. If the Scottish Government decided to make regulations as soon as they had the power, when these 153 competencies returned, to change the provisions on food labelling only for Scotland, within their devolved competence, a manufacturer of jam in York would find it very difficult to sell his product north of the border, or he would have to label it in two different ways.

Lord Wigley (Plaid Cymru)

Will the noble and learned Lord give way?

Lord Keen of Elie (Conservative)

No, perhaps I can finish this point. I am just trying to explain why in these 24 areas it has been identified as very material that we should retain and then develop frameworks.

Lord Wigley (Plaid Cymru)

I just wanted to intervene on this very point about pesticides. The Minister will be aware that the Welsh Government did in fact legislate on the question of genetically modified crops, and it was forecast that the roof would fall in. It did not; it was quite possible to have a different regime in Wales from that in England. As he addresses the rest of the points that have been raised, will he tell us how the regime will be allowed or not allowed to work in the context of agricultural support? Sheep farmers may well want and be entitled to get support from the Welsh Government. The Welsh Government may want to give them that support but, if it is argued that that distorts the UK market, they would not be able to do so. That is the sort of issue that causes concern.

Lord Keen of Elie (Conservative)

As regards agricultural support, that is another subspecies of agriculture. I am dealing with those matters that fall within the 24 identified areas where we find it necessary to retain and operate the single internal market. Not all areas within those 24 competencies are going to have to be retained for the purposes of that market. There are areas which we will devolve.

Lord Purvis of Tweed (Liberal Democrat)

The Minister is making a very strong case for how a single market can operate effectively. Does he not believe that the United Kingdom could operate under a frictionless trading or regulatory arrangement with managed divergence across the four nations?

Lord Keen of Elie (Conservative)

That is not what is in contemplation, and that is why I am trying to explain the Government’s thinking with regard to maintaining effectively a single market, not frictionless borders between nations within the United Kingdom, which is a different issue altogether and one that does arise in a different context.

Lord McConnell of Glenscorrodale (Labour)

I will not take this opportunity to contest some of the points that have been made about, for example, fertilisers, although I think there is a debate to be had about the way in which the Government describe that issue. It is not helpful to the heat generated around this debate when the examples the Government give for the need to retain the power imply that decisions that would be made in Scotland or Wales would be stupid. The Government need to think hard about the fact that when they describe the need for these single market frameworks in the UK, they should do so in a positive way in terms of the UK having regulations that work together.

On the substantive point about the frameworks, the issue is not the list of 24, but how they will be agreed and who will have the ultimate decision-making power. It is not about what is or is not on the list. That is a matter for negotiation and determination within the existing settlements. The issue here is who agrees the frameworks, how they are agreed and who ultimately has the power to veto them or otherwise. That is the substantive issue I would ask the Minister to address.

Lord Keen of Elie (Conservative)

I wholly reject the implication that we are suggesting that any of the devolved Administrations are going to proceed to legislate, with any of the competencies returned to them, in a way that would be regarded as stupid or unacceptable. That is a most unfortunate gloss to put on the matter. It is, however, very helpful that the noble Lord, Lord McConnell of Glenscorrodale, has raised the question of how we are going to deal with the issue in this context. The framework agreements have been the subject of ongoing negotiation among all of the Administrations, but in order to achieve that it is necessary to retain competencies in those areas so that there is not the prospect of legislation within the devolved areas which impacts upon areas outwith their competence. To give a simple example in that context, the Scottish Government are entitled to exercise devolved competence and powers within Scotland for the Scottish people, but if we allow all of the additional competencies to go back to the Scottish Government and they legislate in an area such as food labelling, that impacts on the people not only of Scotland but of England, Wales and Northern Ireland. There is therefore, in a sense, a veto over proposals for the internal market, with one devolved Administration saying, “No, we don’t like your proposals on food labelling. We know everybody else likes them but we’ve decided we don’t like them, we’re not going to consent to them, so you can’t have them.” That is the problem that we want to ensure does not arise.

Coming more particularly to the point that was made about how this is decided, we do ring-fence, as it were, the 24 competencies—or elements of them—that have been identified following the consultation process with the devolved Administrations and which are reflected in the principles that I quoted from the Joint Ministerial Committee on 16 October last year. Then, we have to formulate framework agreements, essentially, in each of these areas for the United Kingdom.

Taking up the noble Lord’s point on how we are going to implement those, we will do so by way of primary legislation. And where do we find ourselves? Back in the relevant devolved legislation, which says that we will not normally legislate in respect of these devolved areas except with the agreement of the relevant devolved Government. So the relevant safeguard is exactly the same as the one that exists at the present time. What we propose will not intrude on the devolved competence in Scotland, Wales or indeed Northern Ireland. It retains 24 areas that are coming back from the European Union in order that we can work out what is required for the purposes of maintaining a single UK market. However, what would alter the devolved competencies quite fundamentally would be a provision that said that we could retain those areas of competence only with the consent of each of the devolved Administrations. That would give them a veto over matters that went beyond their present devolved competence and a veto over matters that impacted on England, Wales, Northern Ireland or Scotland, depending upon who was doing it. That is why we have set out matters in the way that we have. When we come on to the amendment to Clause 11 in due course, I hope that, having essentially flipped Clause 11, we can reflect on the great progress that we have made to date in these areas. It is in that context that I simply invite the noble and learned Lord to withdraw his amendment.

We will return to these matters under reference to the government amendments but I wanted to set out, I hope with a reasonable degree of clarity, the Government’s thinking in this area. This is not, with respect, a power grab—on the contrary: if we consult, if we agree and if we achieve this, there is no question of a power grab. It is certainly not a derogation from devolved competence. A great deal of competence will be laid on the devolved Administrations, because so many of these competencies coming back from the EU, and under the amended Clause 11, are going straight to the devolved Parliaments and Assemblies.

Lord Forsyth of Drumlean (Conservative)

Before the noble and learned Lord sits down, may I just tempt him? He has given a very clear exposition of the Government’s position and why it is in the interests of the devolved Administrations and the United Kingdom as a whole to proceed in the manner that the Government describe. He has also talked about the great efforts that have been made by the officials and the work that has been done. Why, then, do we have such opposition, in particular from the Scottish Administration?

Lord Keen of Elie (Conservative)

I am not going to rehearse the rhetoric that has been used by some members of the Scottish Government to feed populism. Terms such as “power grab” may have their place, but they do not have a place in the context of our looking at this legislation. Of course, it has been asserted that consultation is not enough—even though it may lead to agreement—and that there has to be consent and only consent. But if it is consent, that is, let us remember, a very material change to the devolved settlements. That will result in the devolved Parliaments and Governments being able effectively to veto matters that impact upon those outwith their area of devolved competence.

Baroness Hayter of Kentish Town (Labour)

The Minister used a phrase—which is used also either in the Explanatory Note or in a letter, I cannot remember which—about the retention of this for the purpose of the internal market. It might be helpful if that wording appeared on the face of the Bill.

Lord Keen of Elie (Conservative)

I note that comment. The noble Baroness will appreciate that the amendment to Clause 11, which I will move in due course, seeks to ring-fence these powers to ensure that they are limited. Indeed, the noble and learned Lord, Lord Wallace, has also tabled an amendment regarding a sunset clause in that context. It is perfectly clear from the proposed amendment to Clause 11 that they are meant to have a very limited function—but I note what the noble Baroness said and I will take it forward.

Lord Wigley (Plaid Cymru)

Does the Minister not realise that the Labour Government in Cardiff feel as strongly as the SNP Government in Scotland about this matter? This is not a matter of party politics; it is a question of where power lies. That is why the term “power grab” has arisen. When he says how outrageous it would be if Scotland, Wales or Northern Ireland had a veto, does he not realise that the structure that he is advocating gives England a veto? It gives Westminster a veto; that is what is causing so much trouble.

Lord Keen of Elie (Conservative)

No. With great respect—

Archbishop of York (Bishop)

My Lords—

Lord Keen of Elie (Conservative)

One moment. I am terribly sorry, Archbishop, but I must reply to that. This does not give England a veto. Essentially, England has no voice. This is the United Kingdom Parliament: it legislates for the United Kingdom.

Archbishop of York (Bishop)

The point I was going to make is exactly the same. As I have listened to the debate, it seems to me that the issue is probably what the noble Lord, Lord Hennessy, tried to address. When we leave the EU, the state of the United Kingdom and Northern Ireland will still be the United Kingdom and Northern Ireland. Therefore, there are areas that are for all four nations and others that are just for one nation. Devolution was a good thing, but it does not mean that powers that affect other nations can simply be devolved. I have listened again and again, and I think the point is that, of all the powers that are coming back, 23 have been identified which, if they were simply handed over without clear legislation, would leave us in a real mess. There would be no coherence, no sense that this would be the United Kingdom; it would be something else. So may I plead with those who come from nations with devolved Governments to realise that, for the benefit of the whole of the United Kingdom and Northern Ireland, there are some areas that affect all of us together, not separately, and that those need to be retained? Of course there could be negotiations and conversations—but I get a little concerned that the message is not getting through. This is not grabbing power: some areas are returning to the United Kingdom and we must sort out which bits really need to go straight to the devolved Administrations. The 23 areas that we have heard about require very careful consideration; otherwise some might think that leaving the EU equals independence for them.

Lord Keen of Elie (Conservative)

I am not going to indulge in party politics at this stage; I do not think that that is necessary. We all know the ultimate objective of the Scottish National Party. It is not to have a United Kingdom; it is to break up the United Kingdom and have an independent Scotland. Although Scottish nationalists talk about all these powers coming back from the EU, let us remember that they do not want them. If they get them, they want to give them back to Brussels, because they want Scotland, as an independent country, to remain in the EU—and, if it leaves, they want it to join EFTA and the single market. Therefore they will return all the powers they are talking about if they get their ultimate aim.

Lord Morris of Aberavon (Labour)

The noble and learned Lord has distinguished between “consult” and “consent”, and has described consent as a veto. Does he not accept that over the years the normal use of “consent” by both the Scottish Parliament and the National Assembly has been exercised responsibly, and that there is no basis for that fear? How would he define the word “consult”? What does it mean?

Lord Keen of Elie (Conservative)

Consultation has been going on in the Joint Ministerial Committees on a regular basis since October of last year. As regards respecting the constitutional settlement on devolution, I entirely agree with the noble and learned Lord—with one qualification. A convention has arisen out of the memorandum of understanding between the Scottish Government and the UK Government about how we ensure that legislation put before the Scottish Parliament is competent. That convention has operated since 1999 and involves an exchange of a note of competence. Prior to a Bill being introduced to the Scottish Parliament, a copy is passed to my office—the Office of the Advocate-General for Scotland. That is always done.

I then confer with the Lord Advocate and his officials—the noble and learned Lord, Lord Wallace, will be familiar with this—and we iron out any differences and come to a view on what is competent and what is not, and consequently these matters are resolved. For the first time in nearly 20 years, that convention was departed from by the Scottish Government in respect of their EU Continuity Bill, which I first heard about after it was introduced to the Scottish Parliament. They did, however, give it to the Presiding Officer of the Scottish Parliament in time for him to take legal advice. Therefore, while I accept the generality of the point the noble and learned Lord made, particular exceptions have arisen very recently.

Lord McConnell of Glenscorrodale (Labour)

I was the Minister who negotiated the memorandum of understanding. I think I am the only Minister involved in the negotiation at the time who serves in your Lordships’ House. I agree that the Sewel convention and the arrangements for considering the competence of legislation have worked very well. That concerns the point I made earlier—two debates ago, I think—about the clarity of the legislation and of the memorandum of understanding, which have worked well over many years. I am encouraged by the Minister’s comment that these frameworks would all be subject to the Sewel convention. It would certainly be very helpful for the debate that we are about to have on Clause 11 for the Minister to say that, if these 24 areas are indeed the final 24 areas that are agreed for common frameworks, in each of the 24 areas the establishment of the common frameworks would be subject to the Sewel convention, as I think he hinted at a few minutes ago.

Lord Keen of Elie (Conservative)

In so far as they are carried forward by primary legislation—and I rather anticipate that that will be the case—they would engage not only the Sewel convention but the provisions of DGN 10, the devolved guidance note, because there may be areas where these matters impact on the competence of Scottish Ministers. That is what is anticipated and I have no difficulty with that.

I keep trying to answer a question raised by the noble and learned Lord, Lord Wallace, about what happens with regard to the transition period. Clearly, that will have to be addressed in the context of the withdrawal agreement Bill—and that, as has been indicated before, may result in some amendment to the existing provisions of this exit Bill.

Lord Thomas of Gresford (Liberal Democrat)

As I understand what the Minister is saying, ultimately everything has to be settled by primary legislation, so there will be a single market in the United Kingdom that is settled by primary legislation—for which legislative consent will be sought and no doubt given. What we are talking about is an interim period when Ministers take powers to themselves. Over a temporary period they will in effect dictate what the framework agreement will be until there is a final agreement in a number of years—that is what I understand the Minister to say.

Lord Keen of Elie (Conservative)

With great respect, I do not think the noble Lord, Lord Thomas, has understood what I said. It is not a case of us dictating anything to the devolved Administrations; it is a case of ring-fencing these limited competences until we have reached agreement with the devolved Administrations as to what the framework agreements will be. They will then be put forward for the purpose of legislative consideration in the usual way. But it is not suggested that we are going to start regulating agriculture in Scotland in the meantime—that is not what is comprehended by this at all. I do not know whether I asked this earlier, but will the noble and learned Lord withdraw his amendment so that I can sit down again?

Lord Thomas of Gresford (Liberal Democrat)

Before the Minister does, how long will this ring-fence last? I believe the Barnett formula was temporary; how long does the Minister envisage the ring-fence will last before there is a proper legislative framework?

Lord Keen of Elie (Conservative)

It will last until we have managed to implement all of the framework agreement. That will be a finite period—there is no question about that. Indeed, if the noble Lord looks at the proposed amendment to Clause 11, he will see that there are various checks and balances, including the requirement that Ministers report to Parliament if they retain the powers for any longer. So that is already addressed.

Lord Hope of Craighead (Judge)

My Lords, this debate has ranged a good deal wider than was necessary for the Minister to deal with my points on this group of amendments. With respect to him, he has not given me the kind of reassurance that the noble Baroness, Lady Goldie, gave me on earlier groups. My point is that this very disparate group contains a number of points that I raised with regard to Schedules 2 and 8, which need to be reconsidered in the light of the reformed Clause 11. A simple example is on page 56, where there is a reference to a fetter on the power to,

“make, confirm or approve subordinate legislation”,

which extends to the wording of Section 57(4) of the Scotland Act as in the Bill. However, that section is reworded by the proposed new Clause 11.

Lord Keen of Elie (Conservative)

I just remind the noble and learned Lord that I said that when we come to Clause 11, we will move and withdraw the amendment. We appreciate that although we want Clause 11 in its present form, to put it forward in a form that covers all these matters we will have to address the impact it has on Schedule 2 in these contexts.

Lord Hope of Craighead (Judge)

I am grateful for that. Not every one of my amendments is a Clause 11 point—there are other points of detail which need to be looked at. If the Minister would be kind enough just to say that these will be looked at, I will be happy to withdraw my amendment. Can he give me that assurance?

Lord Keen of Elie (Conservative)

I am content to indicate that we will look at these points.

Lord Hope of Craighead (Judge)

On that basis, I am happy to beg leave to withdraw Amendment 274.

Amendment 274 withdrawn.

Amendments 275 to 278 not moved.

Amendment 279 had been withdrawn from the Marshalled List.

Amendment 280 not moved.

Amendment 281 had been withdrawn from the Marshalled List.

Amendment 282

Lord Hope of Craighead (Judge)

My Lords, this is the last of my little groups of amendments. I will also speak to Amendments 284, 298 and 300 in this group, which all relate to what one finds in Schedule 2. This point goes back to what we discussed a little earlier about the difference between “consent” and “consult”. In the existing provisions in paragraph 16 in Part 2 and paragraph 25 in Part 3, which deal with the power of devolved authorities to make provision,

“for the purpose of preventing or remedying any breach of the WTO Agreement”,

that power may be exercised only with the consent of a Minister. The simple point I make in my amendment is—I am sorry: it is rather important that the Minister hears what I am going to say. I will be happy to wait for a moment, if the noble Lords would like to confer. Would it help? I can wait for a second.

Lord Taylor of Holbeach (Conservative)

Please continue. We have said all that we need to say.

Lord Hope of Craighead (Judge)

Thank you very much.

I want to explain to the Minister that the point is a very simple one about the difference between “consent” and “consult”, which we have already been discussing. I do not need to elaborate on the point that each of these amendments seeks to substitute in a revised formula a consent mechanism in place of the provision in the Bill, which is all about consultation. In a sense it is a probing amendment because I do not see why, for the moment, the existing situation where these things are done with consent should not operate in these contexts too. I moved the amendment so that the Minister can explain the position—I hope quite briefly—so that we can move on to what we are all looking forward to: his amendments on Clause 11. I beg to move.

Lord Keen of Elie (Conservative)

My Lords, I will respond briefly, without repeating what I said on the immediately preceding group, but this raises essentially the same issue. On these provisions, the circumstances in which consent applies to the powers—which are the obverse of some of the others—are those where the devolved Ministers could use powers in ways that have implications outside of their devolved jurisdiction, for example when making provision regarding the World Trade Organization obligations. That is why we have framed it in this way, but it raises the wider point made by the noble and learned Lord and I appreciate that that might be addressed in more detail when we come to Clause 11 and the government amendments. I wonder if, in these circumstances, the noble and learned Lord will, at this stage, withdraw his amendments.

Lord Hope of Craighead (Judge)

I am glad we have not provoked a longer debate on this group of amendments. There is a reason for being concerned about this; the provision I am concerned about deals specifically with something within competence—in other words, it deals with regulations made for the purpose of preventing or remedying any breach of the WTO agreement. It does not deal with the WTO agreement itself; it simply exercises the power given under paragraph 7(2)(b) of Schedule 5 to the Scotland Act 1998 to deal with these matters domestically. Since it is within competence under the Scotland Act, it is hard to see why the position should be regulated in the way proposed. However, I have listened to what the Minister has said and—on the understanding that we can look at all this again when we get to the revised formula for Clause 11—I am happy to withdraw this amendment.

Amendment 282 withdrawn.

Amendment 283 had been withdrawn from the Marshalled List.

Amendment 284 not moved.

Amendment 285 had been withdrawn from the Marshalled List.

Amendments 286 to 292 not moved.

Amendment 293 had been withdrawn from the Marshalled List.

Amendment 294 not moved.

Amendment 295 had been withdrawn from the Marshalled List.

Amendment 296 not moved.

Amendment 297 had been withdrawn from the Marshalled List.

Amendment 298 not moved.

Amendment 299 had been withdrawn from the Marshalled List.

Amendment 300 not moved.

Amendment 301 had been withdrawn from the Marshalled List.

Schedule 2 agreed.

Baroness Goldie (Conservative)

My Lords, I beg to move that the House be now resumed.

Viscount Ullswater (Conservative)

The Question is that the House be now resumed. As many as are of that opinion will say Content.

Viscount Ullswater (Conservative)

To the contrary, Not Content.

Lord Foulkes of Cumnock (Labour)

Not Content. As we are all here, we might as well get on with it.

Viscount Ullswater (Conservative)

I think I will put the Question again. The Question is that the House be resumed. As many as are of that opinion will say Content.

Viscount Ullswater (Conservative)

To the contrary, Not Content.

Lord Foulkes of Cumnock (Labour)

Not Content.

Viscount Ullswater (Conservative)

I think the Contents have it.

Lord Taylor of Holbeach (Conservative)

My Lords, perhaps I may explain. An Urgent Question has to be repeated at about 6 pm. Rather than have that at a ridiculously late hour, we will adjourn the House until 6 pm. That will provide an opportunity for noble Lords to get refreshment and then we will be able to deal with the next group in toto and without interruption. I think that is the right way to go about it. I have discussed it around the Chamber, as the noble Lord will know.

Lord Foulkes of Cumnock (Labour)

My point is that we are all here. We have been taking part in a debate. Everyone who wants to take part in the next group is here and it seems sensible to continue. I do not understand.

Lord Hope of Craighead (Judge)

The Chief Whip did not discuss the matter with me but I support the position he is taking because it is very obvious that, once we get into Clause 11, we will be discussing it for some considerable time. I would have thought that the sensible thing would be to break now and to come back and deal with it in one go, rather than break up the debate, which we will be forced to do otherwise.

Lord Wigley (Plaid Cymru)

My Lords, as a party of one, I do not expect to be consulted on these matters—I realise that there are limitations. However, on Monday night we sat here until after 1 am, and I spoke after 1 am. Earlier we had a break of 20 minutes for food. Why on earth, when there is time available now, can we not carry on with the Bill, certainly if the implications are that we might go on until late again tonight?

Baroness Goldie (Conservative)

My Lords, I beg to move that the House do adjourn during pleasure until 6 pm.

House resumed.

Sitting suspended.

Amendment 302A

Lord Keen of Elie (Conservative)

My Lords, I shall speak also to the other government amendments in this group. We have put forward these amendments to facilitate scrutiny of the Government’s current position on Clause 11. They reflect the status of our discussions with the devolved Administrations, and noble Lords will be aware that our discussions with the Scottish and Welsh Governments are continuing. We remain convinced that this Bill is the right vehicle for providing legal certainty across the UK and that we should reach agreement with the Scottish and Welsh Governments. As such, the Government do not seek a vote on these amendments today and we will withdraw or not move them at the conclusion of the debate, but we will reflect seriously on the points made and incorporate them into our discussions.

The Government have been clear that the Bill is about continuity, certainty and control. That applies equally and without exception to people and businesses across all parts of the United Kingdom. Our approach has always been guided by two principal aims; namely, that we have a fully functioning statute book on exit, and that there are no new barriers to people living and doing business across the United Kingdom. These amendments have been tabled, in line with our commitment made in the other place, to address the concerns raised regarding the current Clause 11. They represent a substantial movement from our original position and reflect the sincerity of our commitment to finding a mutually agreeable position.

We have had lengthy discussions on this issue at official and ministerial level, including at the Joint Ministerial Committee. Noble Lords will well know that the Scottish and Welsh Governments have not yet agreed these amendments, but we will continue to work with them to try to find a way through. I am confident that all parties to this discussion are invested in trying to reach that agreement, as was demonstrated by the constructive tone set at the JMC by the Prime Minister and the First Ministers. This is a crucial piece of legislation in the national interest. It must work for all parts of the United Kingdom and we are sincere in our hope that we will find a way for us all to come together in support of it.

Noble Lords spoke at length at Second Reading and in previous debates of the importance of the “presumption of devolution” and have debated the principle that if there is not a good reason for a matter to be held in common, it should be devolved. That is what these amendments aim to deliver. They would take the existing Clause 11 and effectively turn it on its head. Their effect is that by default on exit day any decision-making powers currently held by the EU in areas that are otherwise devolved would pass directly to our devolved institutions without first being diverted through Westminster. The amendments then give UK Ministers powers to apply targeted and temporary limitations on competence to modify retained EU law, which would in essence have the effect of maintaining existing UK frameworks. We envisage that they will be used in those specific areas where we have identified that a future framework for the United Kingdom may be needed. That would ensure that in those areas the current common approaches established by EU law will continue to apply until we—the United Kingdom Government and the devolved Administrations—can together determine the form that the new bespoke UK framework will take, if one is ultimately required for the benefit of both our communities and our businesses.

I should be clear that the limits that would be applied by these powers are not new limits or constraints. They would merely preserve existing competence in relation to EU law after exit as it stood in relation to EU law immediately prior to exit. Therefore any decision that the devolved institutions could take before exit day will continue to be a decision that they can take after exit day in areas where they have exercised their powers. There is no encroachment into existing devolved areas, and of course in areas where we have not exercised these powers there will be an immediate and significant increase in the decision-making powers of the devolved institutions upon exit. I should also be clear that these limits apply to an area only to the extent it is covered by EU law and not to the entire subject matter. They will not limit competence to make any provision in relation to a subject matter where this does not involve the modification of retained EU law. I urge noble Lords to refer to the Government’s frameworks analysis, published on 9 March, to see the kind of areas where we envisage that the temporary powers may need to be exercised.

Noble Lords will also want to be aware of the additional limits placed on the exercise of these powers. Not only would the powers be subject to the affirmative procedure but the amendments also apply a reporting duty, a duty to consult the devolved Administrations and a duty to produce explanatory statements.

Ministers will be under a duty to report at regular intervals on the steps taken to implement future frameworks; the way in which the framework principles that underpin that work are applied; steps taken to apply or remove restrictions on devolved competence under the powers; the progress towards removing restrictions and repealing those powers altogether once they have served their purpose; and any other information they deem relevant. All this serves to demonstrate that this mechanism is a temporary means to achieve our end state on frameworks.

Before laying an instrument under these powers, UK Ministers will also be required to consult the relevant devolved Administrations and make a statement on the effect of the instrument and any representations made by the devolved Administrations in response to consultation. Further, since these limits are but a temporary means to preserve existing EU frameworks until they are replaced by a UK framework, the amendments also provide a power to repeal the constraining powers so that they will not be retained for longer than is necessary. Ministers would be under a duty to consider periodically whether it is appropriate to repeal the powers. In doing so, they would be required to have regard to the intended temporary nature of these arrangements and to any progress in putting lasting arrangements in place.

Through this, we have sought to emphasise that these powers and restrictions are not to exist in perpetuity or as a permanent feature of the devolution arrangements. Rather, they provide a short-term fix for our longer, more detailed work on the development of long-term future common arrangements. I note in relation to this the amendments in the name of the noble and learned Lord, Lord Wallace, which would subject the current Clause 11 and any regulations made under the new Clause 11 power relating to Scottish legislative competence to a sunset limit. I understand why that suggestion has been put forward; we have of course been clear that these are temporary arrangements and I am interested to hear the debate on this point.

I must be clear that the temporary nature of the constraints is not the same as proceeding to a fixed timetable. We need to ensure that these complex matters are given due consideration, and there is a risk that the creation of a sunset merely prolongs the cliff edge.

Lord Beith (Liberal Democrat)

Might noble Lords be referring to the mixed metaphor they have just heard?

Lord Keen of Elie (Conservative)

May I proceed to split an infinitive?

The new arrangements must be achieved in partnership with the devolved Administrations. Crucially, that takes time to work through.

We must proceed with caution in considering any form of sunset which would change the purpose of our discussions from designing and implementing frameworks that are fit for purpose to ones that can be achieved in the time allowed. Our priority must be to continue to provide legal certainty on how these laws will work in that interim, but this could risk uncertainty where the provisions may lift before their replacement is known.

This is a substantial and significant amendment to Clause 11. It reflects the progress that we and the devolved Administrations have made on frameworks and in our discussions on Clause 11. It strikes the right balance, delivering for the devolved Administrations and for businesses and people across the United Kingdom. I am grateful for the consideration that this House will provide on this offer as we continue to refine and consider the policy in coming weeks.

The amendments in the names of the noble Lords, Lord Stevenson, Lord Griffiths and Lord Thomas, would amend elements of the amendments that we have put forward. We have heard much on the question of the consent of the devolved institutions for the use of the proposed new Clause 11 powers that would “freeze” existing UK frameworks. As I indicated earlier, I wish to be clear on two fundamental points. The first is that this will be a collaborative process. There is no suggestion or intention that we want to cut our devolved institutions out of these decisions. We have put in place a set of shared principles that the Scottish and Welsh Governments have agreed and which guide our work on frameworks—I referred earlier to the statement following the Joint Ministerial Committee in October last year that sets out those principles in detail. Departments across Administrations are now working together to consider frameworks. Devolved and UK Ministers continue to discuss these matters regularly at Joint Ministerial Committee meetings. The limits on the powers make it clear that the views of the devolved Ministers must be heard and the United Kingdom Government in exercising the power must set out what those views are for Parliament’s consideration. That is not a power grab. As we have heard today, this Parliament will rightly hold us to account on how the Government act on devolution policy. The second point is that we must be clear about the implications and outcomes of this work. These decisions affect every part of the United Kingdom. It is the United Kingdom Government and the United Kingdom Parliament that are responsible for matters that affect the whole of the United Kingdom.

We must therefore be very careful about the impact of a hard-edged legal requirement, not because we do not want the Scottish Government and the Welsh Government and, once restored, the Northern Ireland Executive to be part of these decisions but because it cannot be for an Administration in one devolved nation to exercise what amounts to a veto over something that would be in the interest of the other nations of the United Kingdom as a whole. That is not and never was the purpose of the devolution settlement.

I thank my noble and learned friend Lord Mackay and the noble Lords, Lord Foulkes and Lord Wigley, for their proposals to bring the United Kingdom Government and devolved Administrations together. These are constructive suggestions for a middle way that deserve serious thought. I am encouraged by the effort being made to reach agreement.

At present, we believe that the JMC will be the right forum for engagement, working under the principles agreed for the work on frameworks in October last year, but I would like to take away the ideas that have been brought to the table here today by way of the further proposed amendments and consider how these matters might be incorporated into our policy thinking, while continuing to meet our two stated objectives on legal certainty and respect for the devolved settlements.

I thank my noble and learned friend Lord Mackay of Clashfern for his amendment, which seeks to find a way forward in the context of Clause 11 and the frameworks. Again, it is an attempt to ensure engagement between all the interested Administrations to achieve consensus at the end of the day. My noble and learned friend’s amendment highlights the importance of clarity as we develop frameworks. As we have discussed during earlier debates, the work on frameworks will have to be a collaborative effort designed to ensure maintenance of a single internal market for the United Kingdom after we leave the EU. Our intention remains to reach agreement with the devolved Administrations. However we approach it, we have that as a goal.

The approach that we have put forward for Clause 11 in these amendments is, I venture, an entirely reasonable proposition. By default, and unless further action is taken, the returning EU powers in the 153 areas identified will become devolved matters. We should perhaps take pause to remind ourselves that these are entirely new powers for the Scottish Parliament and National Assembly for Wales, expanding devolved competence into areas previously held and exercised by the EU and, prior to that, by the United Kingdom Parliament.

We believe that what we propose addresses the points raised by the Scottish and Welsh Governments in their legislative consent memorandums. I hope that noble Lords will recognise that we have moved a considerable way on this, but that we continue to see the importance of providing as much certainty as early as possible for businesses across the UK in order that we can avoid, or indeed manage, divergence between the individual nations of the United Kingdom. While we have not yet reached agreement with the devolved Administrations, discussions will continue and we are extremely keen to maintain our engagement with them. But we consider that it is right that noble Lords have the chance to consider these amendments—the Government committed to that on Report and we brought them forward for consideration by this Committee. I hope noble Lords whose amendments are in this group will feel able to withdraw them at this stage; we, as I indicated earlier, will do similarly with the government amendments at the end of this debate. I beg to move.

Amendment 302B (to Amendment 302A)

Lord Griffiths of Burry Port (Labour)

My Lords, in moving Amendment 302B I shall speak also to Amendments 302C and 302G, which seek to amend the government amendments to Clause 11 and Schedule 3.

I recognise and appreciate the tone of the Minister’s speech, as well as the letter that I received this morning from the noble Lord, Lord Bourne of Aberystwyth. Clearly a great effort is being made, and we acknowledge that. Perhaps it will not be a surprise that it is my task—and I consider it my task—to look at those areas where we have perhaps not yet reached agreement, but it is significant that efforts are being made. Yet I must make the point, in sorrow rather than in anger, that the way in which the Government have handled the whole issue over months of inactivity from the autumn onwards leaves much to be desired. Indeed it would not be wholly inappropriate to describe it as lamentable. There was a lot of time lost there.

There is no doubt that we agree on the two main points—indeed, my own interventions earlier in these debates said so very explicitly. We know that a Bill must be enacted and that we must avoid chaos in our legal system. On day one, things must work. As the leader of my party has said more than once, we are totally committed to achieving that. The Welsh and Scottish Governments made it clear as long ago as the White Paper on what was then known as the great repeal Bill that they could not and would not give consent to the approach embodied in the original Clause 11: an emasculation of the devolution settlements by upsetting the balance of the distribution of powers between the UK and the devolved institutions.

There are some in this Committee who will attribute any criticism of the way things have proceeded to a narrow, political sectarianism on the part of an SNP Government in Scotland and a Labour Government in Wales. In my view, such opinions will be more likely to emanate from the narrow, political sectarianism of those who give voice to them, for the repeated expressions of good will from the First Ministers of Scotland and Wales, working together for a satisfactory outcome to these questions, are entirely in line with a whole host of opinions coming from highly respected sources of a totally objective nature. I handpicked just a few for illustrative purposes in an earlier contribution, but I list them again now: our own Select Committee on the Constitution, the Bar Council, the Delegated Powers Committee, the Bingham Centre for the Rule of Law, and the list could go on. Add to that the eloquent contributions from, among others in an earlier debate, the noble and learned Lords, Lord Morris of Aberavon, Lord Wallace of Tankerness and Lord Hope of Craighead, and it should be clear that we can state with confidence that the case being made has widespread and expert backing. But the Government for months stuck their head in the sand and just ignored the growing chorus of voices that has echoed this concern. Indeed, as we have noted insistently and repeatedly, despite the Secretary of State for Scotland giving an assurance in Committee in the other place that an agreed amendment to Clause 11 would be put forward on Report there, far from realising that modest objective, discussions on the matter with the devolved Administrations did not begin until the new year. Now, after all this time, we are presented with an amendment, or set of amendments, that has still not been agreed by the devolved Administrations.

The Chancellor of the Duchy of Lancaster, a nice, approachable man who serves a decent cup of coffee, has proved himself a master of spin. He has told the whole world about the great success he has had in bringing the peoples of Wales, Scotland and Northern Ireland out of their wandering times in the desert to the very edge of the Promised Land. Perhaps I should remind him that the leader in those wandering days died before he could enter the land flowing with milk and honey. There is still a distance to travel, for Mr Lidington’s skilful PR onslaught fails to address the fundamental issue at stake—the issue of consent, which was referred to in the speech we have just heard from the Minister, and which our amendments seek to underline.

Even if amended as now proposed by the Government, Clause 11 would give Ministers of the Crown very wide, unilateral powers to use regulations to place new constraints on the legislative competence of the devolved legislatures. The claims of the Government that this would entail no restrictions on the scope of the legislatures to act that are not now in place ignore the fact that the current EU law restriction falls away on exit day, as does the constraint on our own freedom to pass laws in contradiction of EU law. Let there be no doubt: Clause 11 allows for the imposition of new restrictions, ones that will, if the Government have their way, be controlled and policed by Whitehall. We have heard plenty of discussion of the possibility of this in earlier debates. This is a very different constraint to the one that currently applies to the whole of the UK to respect EU legal frameworks painfully negotiated by 28 member states, with a clear role for the devolved Administrations in developing the UK negotiating position.

The amendments as drafted do not even contain the safeguards that the Government would have us believe. While they say that the restriction will apply to areas where future UK frameworks would apply, and have tried to throw sand in our eyes by simultaneously publishing a list of such potential framework areas, the regulation-making power they seek is not circumscribed in this way. In theory at least, Ministers could simply specify all of those areas of retained EU law that would otherwise be in devolved competence. Of course, I would hope that our House, presented with the requirement for an affirmative resolution to support such regulations, would refuse. But can it possibly be right that it is only Parliament that would have any input into this decision, not the legislatures whose rights would be circumscribed? I mean, it is only the Executive that would have Ministers, not the legislatures. The only requirement in respect of the devolved institutions is one to consult the devolved Administrations.

What the Government have brought forward at this late stage is far too weak.

Lord Forsyth of Drumlean (Conservative)

I am following the noble Lord’s argument very carefully. Will he explain why he is content with the position under the current arrangements by which these matters are determined at European level? The Welsh Assembly or the Scottish Parliament do not have a veto and their consent is not required for Ministers’ negotiating positions in the Council of Ministers, which, after all, can respond only to regulations or proposals brought forward by an unelected Commission.

Lord Griffiths of Burry Port (Labour)

While I will have a word to say in a moment about the use of the word veto, I will not claim to know the detail relating to the Council of Europe, to which reference has been made.

Lord Stevenson of Balmacara (Labour)

It was the Council of Ministers.

Lord Griffiths of Burry Port (Labour)

I beg your pardon. I think the mistake is evidence of the fact that I am not qualified to answer that particular part of the noble Lord’s question.

Lord Hain (Labour)

With due respect to the noble Lord, Lord Forsyth, not for the first time he is wrong about this. Welsh Ministers, for example, and Scottish Ministers often attend the Council of Ministers with the permission of our own UK Government to make sure that their voice is heard. It has been done on a collaborative basis and is nothing to do with his anti-Europeanism: it is actually about how devolution has worked.

Lord Griffiths of Burry Port (Labour)

I am delighted to receive that help from behind me, and also to hear from alongside me that, when my noble friend used to attend such meetings, he did not feel part of the furniture or not very welcome. Perhaps that in some way goes towards an answer.

Lord Forsyth of Drumlean (Conservative)

What the noble Lord, Lord Hain, is saying is perfectly correct. My question to him was why they were content with a system where people were consulted and involved but which did not require their consent as to the United Kingdom’s position, which is exactly what is being proposed here.

Lord Griffiths of Burry Port (Labour)

I thank the noble Lord. I have long since learned that perfection is not my strongest suit. I remember once asking everybody in a congregation of mine if anybody was perfect and a man at the back put his hand up. I did not believe him, and he said, “No, it’s not me; I am speaking proxy for my wife’s first husband”.

Baroness McIntosh of Pickering (Conservative)

Perhaps I could help the noble Lord. In the circumstances my noble friend Lord Forsyth expresses, consent is given when the devolved legislature applies the directive and implements it there.

Lord Griffiths of Burry Port (Labour)

I am very grateful to the noble Baroness. Because I am where I am, I am equally certain that the points being raised will be addressed later in this debate.

What the Government have brought forward at this late stage is too weak. If the purpose is, as the Government claim, simply to give breathing space to negotiate new UK frameworks, which is fair enough, where it is agreed by the devolved Administrations that these are necessary—that is an important part of it—then we should be sure that the devolved legislatures agree that these are indeed the policy areas where restrictions are needed. It does not seem to be very difficult to come to these conclusions. Indeed, there has been no attempt to engage with the proposals put forward by the Welsh Government in their policy paper Brexit and Devolution some nine months ago, arguing for a system which would address precisely this issue. Perhaps the Minister could explain this egregious omission.

Over the last week, I have come across an intriguing poem by Waldo Williams, one of the dominant Welsh writers of the last century. He asks a series of questions and gives succinct, almost gnomic answers to them. As I conclude my remarks, I cannot forbear from quoting one couplet in Welsh, in order to forestall an intervention by the noble Lord, Lord Forsyth—though he might surprise me yet again. I will quote it with a translation by the noble and right reverend Lord, Lord Williams of Oystermouth—I do not want to frighten the Hansard horses. Just listen:

“Beth yw trefnu teyrnas? Crefft

sydd eto’n cropian”.

That is:

“What is it to govern kingdoms? A skill

still crawling on all fours”.

We must urge the Government to stand up, to withdraw their amendments and to go back to the discussions with the devolved Administrations before returning with an approach which gives an appropriate role to the devolved legislatures to agree the areas—indeed, perhaps to go further and to put a list of frameworks into a schedule to the Bill—in which new restrictions on their legislative competence will operate. This may well turn out to be a test of whether the Government have the competence to lead us out of the mess they have so tidily put us in. I wish to move the amendments.

Lord Mackay of Clashfern (Conservative)

My Lords, my Amendment 318A is in this group. As your Lordships know, I am a lawyer, but I have already got limited support from the noble Lord, Lord Wigley, who has repeatedly explained that he does not suffer from this disadvantage—I will do my best to take him along with me.

As I have indicated, I was first introduced to this matter in a discussion with a very distinguished SNP Member in the other place, when we were travelling together from the north. I mentioned to him that I had had no briefing of any sort from the Scottish Government. The next day I got a message from the Scottish Government to say that the Lord Advocate and Mr Russell, the Minister, were very willing to speak to me. I was able to speak to the Lord Advocate that afternoon and to Mr Russell in the early afternoon that Wednesday. I was very emphatically assured by Mr Russell that the Scottish Government were keen to reach an agreement. I am quite satisfied that there is no indication in the attitude of the Scottish Government that this is an attempt to further their ultimate political aim, and that they are seeking to solve this matter in a way that accords with the dignity of the Scottish Government. I said that I did not want to do or say anything that would impede agreement, and I now hope to show how agreement can be reached.

Before I explain the amendment, I will say a word or two about the law that lies behind it—I will take Scotland as an example, as the other Administrations have similar provisions. The devolution settlement in the Scotland Act is subject to EU law. That considerably restricts what the Scottish Administration can do at present, but when Brexit comes along that limitation will disappear. Included in those limitations are the legislative powers of Brussels to legislate in the United Kingdom. From one point of view, it is wise to analyse these powers in this way: a power that can be made effective within a single area of legislative competence in the United Kingdom should go straight to that level—in other words, to the devolved Administration. That is, if the power does not require more than one of our legislative areas in order to be effective, it should go straight to the devolved Administration.

But there are EU powers which can be effective only when they cover more than one of our legislative areas. The one that is of most relevance in this connection is that which provides for the single market. As your Lordships know, and as the Scottish Government certainly know, the single market is quite an important feature of the present negotiations. Part of that single market is the single market in the United Kingdom. It is 100% obvious that, if you are going to legislate for the single market in the United Kingdom, it is legislation that affects all of the countries within the United Kingdom and the legislatures that support them. Therefore, it is absolutely plain that the ultimate power to settle the single market provisions lies with the United Kingdom Parliament.

But—and this is an important consideration—it is extremely wise to proceed by agreement where it is at all possible. A good deal of agreement has already been reached. As I said, I was assured by Mr Russell when I first spoke to him—and again when he later saw my amendment, which he welcomed subject to qualifications such as the noble Lord, Lord Wigley, will propose—that the Scottish Government are very anxious to reach agreement.

Lord Forsyth of Drumlean (Conservative)

I am very interested in this concept, which my noble and learned friend is putting forward, that powers which affect the single market that is the United Kingdom should be taken at a United Kingdom level. Does he see that operating both ways? For example, the Scottish Parliament has the power to set unit pricing for alcohol, which of course affects the single market that is the United Kingdom. Does the proposition that powers which affect the single market should be taken at the UK level mean that, as well as the powers which will come from the European Union when we leave it, powers might also be returned to Westminster from the Scottish Parliament? He might find that Mr Russell is less enthusiastic about that.

Lord Mackay of Clashfern (Conservative)

I am not suggesting that for a minute. I am suggesting that what is required is a single market which is the necessary concomitant of having cross-border trade. I do not think that the price of alcohol in Scotland would necessarily affect that. It might be wise for me, if I wanted to buy alcohol, to do it when I was here rather than in Scotland. I may say at once that I am not particularly keen to do that either. That is not an example of the need for there to be no obstacle at the border, because if I have to pay for the whisky in Scotland, I can take it with me, subject to not coming on an aeroplane, I suppose. It is a matter of what is required.

It is realised by various people who were at the meeting of the Joint Ministerial Committee that framework agreements will be required in certain areas. That is because, for the single market in the UK to be effective, there must be agreement across the legislative areas. It follows, as night follows day, that the legislative vehicle for dealing with a market which is across the whole of the UK is a vehicle which has jurisdiction over the whole of the UK. It cannot be otherwise. That seems to be common sense and you do not need to be a lawyer to think that.

My next point is the “but” I was coming to before I was helped by my noble friend. I stress that it is highly desirable, when you are seeking to get a single market, to get the agreement of the components. They have different interests, but there is a very strong pressure to secure a single market. I am sure the Scottish traders do not wish to have something at Berwick-upon-Tweed which requires them to pay out money to English customs. It is absolutely clear that there is a very good pressure to reach agreement. As I say, I am assured by the White Paper that the Welsh Government put forward some considerable time ago, which was referred to earlier. I say in passing that that paper addresses itself to wider constitutional issues about future government in the United Kingdom and how it is not working very well and what-not. But I need something that will work now for the very limited purpose of getting the single market arrangements secure before Brexit comes into effect.

I have suggested in my amendment that there should be set up a group which consists of representatives of all four countries. I think it is wise to specify who they are. I have also specified, to try to reach agreement, that the chairman of the group should be decided on by the group. The Lord Advocate mentioned to me that one of the features of the present committee is that it is always a UK Minister who presides. There will be a certain amount of interest in the skill of the chairman in reaching agreement. It is often quite an important position—I have not been chairman of many committees that have not reached agreement—and it is an important aspect of the matter. I have therefore suggested that.

Of course, the details of this are very much matters for your Lordships to consider, but that is the ultimate thing: that the group should look at all these questions. If, as I am assured, they are very keen to reach agreement, I have no doubt whatever that there is a very high prospect that they will reach agreement—I emphasise that—when you consider that new rules must come into operation at the point of Brexit or the end of the implementation period, whichever is the later, and that if there was failure to reach agreement it would require the action of the United Kingdom Parliament. I am prepared to limit the amount of time for that to three months to emphasise my confidence that agreement will be reached and that therefore a formal legislative enactment in the United Kingdom with full consent from all four members of the committee would be the result.

This is a simple way of dealing with the matter, which is dealt with in a rather complicated way by the government amendment. The government amendment appears to inject powers into areas which may be devolved in fact. Mine makes it absolutely clear that the devolved powers are to be immediately made available to the Governments of the devolved legislatures; it is only the single market power that I consider needs to be reserved.

My very good supporter, the noble Lord, Lord Wigley, has suggested in his amendment that there should be some extraordinary—I do not mean that in a pejorative sense—tribunal to decide when there is disagreement. I certainly hope that there will not be disagreement, but I have provided that if there is disagreement the group itself must specify what that disagreement is, to make the issue for the United Kingdom Parliament as small and definite as possible. In my analysis, the single market is within the legislative competence of the UK Parliament. All the four countries are represented there. I remember that the Scottish party that got many seats in the 2015 election said that one of the purposes was to provide a strong voice for Scotland in the Parliament of the United Kingdom. I have no doubt there is a pretty strong voice for that purpose. Having all four countries represented is as good as any kind of remarkable thing with Speakers. I am not sure if my noble supporter has asked the Speakers whether they want to take this on, but I think that is not in their competence. That is a job for the legislative assembly of the United Kingdom which is set up under our constitution and which I believe would reach a very good agreement on this point, if it had to. In the meantime, I sincerely hope it will not be necessary for it to do anything except legislate with a form agreed by the four constituents.

Lord Wigley (Plaid Cymru)

My Lords, I tabled Amendment 318AA as an amendment to the amendment in the name of the noble and learned Lord, Lord Mackay. I did so with due deference and with considerable temerity to be trampling on the legal pastures in which he has such expertise and I am a layman. None the less, I confirm that I have had conversations not only with Mr Mike Russell, to whom the noble and learned Lord referred, but with people from the Welsh Government—and, as he raised the question with me, yes, I have discussed it with the Presiding Officer of the National Assembly, Elin Jones, who sees no difficulty at all with such a mechanism.

With that prelude, I thank the noble and learned Lord, Lord Mackay of Clashfern, for tabling Amendment 318A, which he did following the earlier debates in Committee. Those debates pointed to a crying need for a sensible mechanism to be found for dealing with the vexed issue of securing agreement between Westminster and the devolved legislatures regarding those matters which the UK Government feel must be handled on a UK level, even though they deal with areas that may be of devolved competence.

I was encouraged by the Minister’s words, relating to these amendments, that there is a possibility of looking at this between now and Report. That is something that will be welcomed in Cardiff and Edinburgh. Indeed, as the noble and learned Lord, Lord Mackay, said, there is a yearning in both those cities for this issue to be resolved by a sensible mechanism that is acceptable to all sides. That is the point of view from which I approach this question and it is why I put forward the amendment I have on the Order Paper.

I agree very much with what the noble and learned Lord, Lord Mackay, said. The reason I tabled Amendment 318AA is that the system of adjudicating whether or not the powers should be exercised on a UK level must be recognised and accepted as fair by all sides—there should be no political connotation running into it. The final provision of Amendment 318A is for Westminster to have the last word—which I understand that technically and constitutionally it would have, because ultimately the sovereignty is here. However, I fear that, if that was the case, it would inevitably be seen as a facility to overrule the devolved Governments. Having that power in reserve, Westminster would not be encouraged to negotiate on an even-handed basis. It would have the ultimate trump card, and as such the legitimacy of the whole process could be undermined.

As the noble and learned Lord mentioned, my amendment provides for a mechanism whereby, in the event of disagreement, the issue can be considered for a ruling by a panel comprising the Speaker of the House of Commons and the presiding officers of the devolved Parliament and Assemblies. It also provides that, if they so choose, they can refer the matter to the Supreme Court. In this way, we would be providing an equivalence to the European system that we are replacing, in that the European court currently can have a role in resolving such matters.

Incidentally, in response to the intervention by the noble Lord, Lord Forsyth, as I understand it, Scottish whisky now sells very effectively throughout the whole of the European single market—but that does not imply that there is a single tax regime in all the countries of the European single market.

Lord Forsyth of Drumlean (Conservative)

Will the noble Lord allow me to remind him that the Scottish Parliament had great difficulty in passing that legislation, because it was contrary to the European Commission’s views on the single market?

Lord Wigley (Plaid Cymru)

I have no doubt it had difficulty in passing it. None the less, the objective was a very valid one—to address the problems perceived in Scotland with regard to the level of alcohol consumption et cetera. The proposal was supported by many people in the social sector who wanted to see that sort of change. This is arguable, but the point is that you can have different tax regimes within a single market, as you have within the European single market. You can within the UK single market.

Lord Hain (Labour)

I am sure my noble friend will agree with this point. Mention has been made of Scottish whisky—Scottish single malts and so on—but the best single malt in Britain comes from the Penderyn distillery in Wales.

Lord Wigley (Plaid Cymru)

Not only do I agree with my noble friend but I will surprise the Committee by reminding him that Penderyn whisky was in fact formulated as a result of devolution itself. It was on the evening of the setting-up of the National Assembly that people came together and thought, “Now we have to start doing something to help ourselves in Wales. What shall we do?” They concluded that a whisky would be one way forward. As they say, the rest is history—a very enjoyable and successful history. I thank my noble friend for reminding me of that.

Lord Wallace of Tankerness (Liberal Democrat)

The noble Lord, Lord Forsyth, correctly said that the European Commission objected. But in fact the Court of Justice of the European Union found that the Scottish Government’s proposals were actually consistent with the rules of the single market, principally because the minimum unit price was based on health reasons.

Lord Wigley (Plaid Cymru)

Indeed—which shows the importance of the health and social agenda that underpinned the initiative.

Lord Grabiner (Crossbench)

The amendment includes the proposition that if the panel “consider it necessary”, they may refer the matter to the Supreme Court of the United Kingdom. I am not aware that there is any mechanism that could possibly enable that to happen. Moreover, even if it were possible, I suspect that the court would not be very grateful to receive what essentially would be a highly political rather than a purely legal question. If I may respectfully say so, it is rather an unrealistic proposal.

Lord Wigley (Plaid Cymru)

I note what the noble Lord says. All I would say in response is that, in the context of a single market such as the European single market, it has been necessary and sometimes highly useful to have the legal mechanism there in order to resolve difficulties that have arisen—as we heard from the noble and learned Lord a moment ago. My amendment is a constructive attempt to ensure that the amendment tabled by the noble and learned Lord, Lord Mackay, is acceptable to the devolved legislatures, which I believe it can be. I believe that it needs to be tweaked, if not by this wording then along these lines.

The core of the argument that the noble and learned Lord is putting forward in his amendment is very important indeed—and I think there is a similar amendment coming forward from the noble Lord, Lord Foulkes. The fact that these amendments are coming forward from different sides of the House is in response to the need to resolve this issue. We cannot have this going on and on in the way that it has. It has gone on for far too long now. There needs to be a resolution that is recognised and accepted by all sides and seen to be even-handed. I believe that there is, as he himself has indicated unofficially, a feeling in both Cardiff and Edinburgh that, if the amendment could be incorporated, along with my proposed addition or something along those lines, it could be seen as breaking the logjam. For that compelling reason, I invite the noble and learned Lord, Lord Mackay, to accept Amendment 318AA, and then for the Committee to accept his amendment.

Lord Foulkes of Cumnock (Labour)

My Lords, I speak to Amendments 318B, 318C, 318D and 318E, which, it does not take a lot of working out, follow on from Amendments 318 and 318A. In fact, as the noble Lord, Lord Wigley, said, it is interesting that what I suggest in three of those amendments in many ways corresponds exactly with what the noble and learned Lord, Lord Mackay, suggested—as amended by the noble Lord, Lord Wigley. Yet we came to the conclusion separately. We may have been inspired by the same people, the same thinking and the same ideas, but we came to draft them separately, which is interesting.

It is also really helpful that the noble and learned Lord, Lord Keen, has said quite clearly that the Government are willing to look at these amendments and at some way of getting out of the impasse in which they find themselves. That is a really helpful way forward. However, the Government are the architects of their own misfortune. As my noble friend Lord Griffiths of Burry Port said, the Joint Ministerial Committee should have met more frequently and earlier. We were sent just the other day details of the fifth ministerial committee—on 16 October. It is extraordinary that we had only four ministerial committees dealing with this issue before then. It really is a dereliction of duty by the Government, which I think comes from the fact that, within Whitehall—as I found when I was a Minister—there is no understanding about devolution and what it involves. The Minister responsible was perhaps Oliver Letwin or Chris Grayling, so you can understand why they did not understand—but what worries me is that the noble and learned Lord, Lord Keen, has been the Advocate-General for some time, and he should have alerted the people around Whitehall and others to this problem a lot earlier. Indeed, the Secretary of State, David Mundell, who I will concede is a very nice man—

Lord Hain (Labour)

In spite of being a Tory.

Lord Foulkes of Cumnock (Labour)

In spite of being a Tory; that is right. He has been constrained by Whitehall in getting decisions. I remember well sending notes around every Whitehall department to try to get some agreement. It is very difficult. However, I would have hoped he would have flexed his muscles a little earlier.

Lord Forsyth of Drumlean (Conservative)

My Lords, the noble Lord is clearly very expert on this process and when these meetings were held. Could he tell us how many of those meetings were cancelled by the Scottish Government?

Lord Foulkes of Cumnock (Labour)

I have no idea; maybe the Government can help. What I can tell the noble Lord is that when I was Minister of State for Scotland we had a number of meetings. As my noble friend Lord McConnell can confirm, there were a lot of bilateral meetings between the Scotland Office and Ministers in the Scottish Government. That is the kind of thing that should have been happening but has not been.

I am not known for praising the Government, as Members who have heard me from time to time, particularly the noble Lord, Lord Callanan, know only too well. However, we should acknowledge— I say this as a strong devolutionist and a former MSP who really believes in devolution and argued for it for years, long before other people in Scotland were arguing the case—that the UK Government have moved on this. We have to concede that, under pressure and looking at the argument, they have moved.

We also have to be realistic. I say this to some of my Labour colleagues from England and, with respect, from Wales: the SNP has a clear agenda. It is concerned with only one thing, and we have to remember that. If it sees that it is to its advantage to concede then it will, and it may be able to make it to its advantage, but let us not be naive about what the SNP is up to—and let us hope that Welsh Labour is not naive about that either.

There is an advantage in the UK single market having the same kind of regulations on some of these issues, some of which the Minister has mentioned, and we ought to recognise that. We have an institutional and constitutional problem in the UK in that our devolution is asymmetrical. I have said on a number of occasions that this creates problems in a range of areas, and we can see that it does here. This Parliament has to speak for England as well as the UK and that creates structural, philosophical and other problems. Some of us believe in a federal UK—the Liberal Democrats certainly do, as do a number of Labour people such as myself—and in the longer term I hope we will deal with that. In the meantime, though, we have to recognise that it is a dilemma for the Government to be able to look after the interests of England. The Minister pointed out, and this is something that we have to take account of, that decisions made by the Scottish Parliament or the Welsh Assembly can have an impact on England. We have to accept that and look after the interests of England as well as the whole of the UK. The Minister has said there is an advantage in a number of aspects being uniform throughout the whole of the UK, and I concede that. I was going to mention some more examples but I am conscious of the time.

I turn to the amendments. Serious thought needs to be given to the amendments that the noble Lord, Lord Wigley, the noble and learned Lord, Lord Mackay, and I have tabled. We need some form of mediation and that is what we are suggesting in these amendments—certainly in my first three. I am suggesting something similar to what is suggested by the noble and learned Lord, Lord Mackay: a ministerial council that would deal with that. Then, as a fallback if it could not come to an agreement, I have suggested an advisory panel, and have suggested that it should be the Speakers and the Presiding Officers who would set it up so we would get to a very similar conclusion. Some Members opposite will be pleased to hear that I do not refer to the Supreme Court.

For once, I am in agreement with the noble Lord, Lord Thomas of Gresford. I suggest in Amendment 318E that there should be a sunset clause. He and the noble and learned Lord, Lord Wallace, have suggested two years and I have suggested five, and that is open for debate, but it would be very good to have such a clause so that all sides would know that it had to be resolved by a particular time.

I hope, and I think the Minister indicated this at the start, that the Government consider these to be positive suggestions. If I can recognise that the Government have moved after all the awful things I have said about them over the last few days, months and years, I hope others will recognise that as well and give them at least just a little credit.

Lord Wallace of Tankerness (Liberal Democrat)

My Lords, I shall speak to Amendments 302BA, 312 and 318 in my name, but I shall start by speaking more to the generality by responding to the government amendments moved by the Minister. It is fair to acknowledge that much has happened since Second Reading when I and many others criticised the architecture of the original Clause 11, not least because it showed scant regard for the spirit and structure of the original devolution settlement. It had a system of conferred powers that was totally alien to how devolution had performed and been structured until this point.

However, I give credit to the Government for tabling these amendments. They have thought to recast Clause 11 and the related schedules, and I think it was acknowledged earlier that there is more work to be done. When you get legislation like this and new situations arise, it is amazing how new words come into the vocabulary. The Government have claimed that most of the powers at the so-called intersects will go directly to Cardiff, Edinburgh and Belfast on exit day, subject only to relatively few remaining—they emphasise that this will be temporary, though I shall return to that—to secure the UK single market until such time as that framework is put in place.

As has been acknowledged, that is a welcome step. It shows a lot of progress and, I think, a lot of good will towards seeking an agreement. However, it has clearly not yet been sufficient to allow the Scottish and Welsh Governments to recommend the Legislative Consent Motions to their respective Parliament and Assembly. Indeed, the letter from the First Ministers of Scotland and Wales to the Lord Speaker that was circulated to all Members of your Lordships’ House says:

“In being asked to give legislative consent to the EU (Withdrawal) Bill on this basis”—

that is, on the basis of the new amendments—

“the devolved legislatures would be being asked to agree to the creation of this power with no certainty about where frameworks will be established, how these will work, how they will be governed and how we will go from temporary restrictions to longer term solutions”.

It is also arguable that the amendments do not do precisely what the Government claim they are seeking to do. The Government have said—indeed, the Minister has said today—that the intention is that the vast majority of powers identified at the intersects will go directly to the devolved institutions. The noble and learned Lord, Lord Mackay of Clashfern, rightly said that that is the proper thing to do. However, if one looks at the amendments before us, while much has been said about a figure of 24, one sees that there is nothing in the Bill that restricts it to 24. Technically, and I think this was a point made by the noble Lord, Lord Griffiths of Burry Port, all 158 could be subject to this freeze and this restriction. They could all be subject to regulations made under the powers in the revised Clause 11 and there would be no provision for consent from the Scottish or Welsh Ministers, let alone from the Scottish Parliament or the Welsh Assembly.

It would help considerably if, in the body of legislation, it was made clear in some way which powers would go directly, or if there was a schedule concerning which powers would be the subject of framework agreements. I do not doubt for one minute that there will be some negotiation about what should be in frameworks and what should or should not be a UK framework. That is perfectly proper for negotiation. I welcome what the Minister said earlier: agriculture is set out as a broad heading but he accepts that agriculture has to be subdivided and not all aspects of it would be the subject of frameworks. Indeed, it is worth noting that NFU Scotland identifies in a briefing paper animal welfare and traceability, public health, pesticides, regulation and food labelling as examples of overarching areas of regulation that would be best suited to being managed on a commonly agreed framework basis. There is lots of scope for talking to stakeholders about what the framework should be, but it would be very helpful if that could be in the Bill.

I do not underestimate for one moment that there will be work to do, but we should perhaps reflect that it will be at least four weeks until we come to deal with these issues on Report. It is worth reminding ourselves that the House of Commons Select Committee on Scottish Affairs recommended back in November that there should be clarity on this before the Bill reached Third Reading in the House of Commons. I do not take away from the work that has been done by officials, but if there is a will to get there, I am sure it could be done.

One other reflection on this point is that earlier today, in response to an intervention from me, the noble and learned Lord said that, given that we are now to have a transition period, we will have to accommodate that transition period in future legislation, a withdrawal and implementation Bill, so we may not need these frameworks until 31 December 2020 or 1 January 2021, which provides further time to sort out what should be in later legislation. But I would rather strike while the iron is hot and seek what can be done in this Bill.

It has also been said that these measures are temporary. The Chancellor of the Duchy of Lancaster went out of his way to emphasise that in the letter that he sent to all Peers. The Government have, to their credit, included several extra provisions to buttress their position that they should be temporary by reporting requirements, and these are all welcome, but, unlike some other parts of the Bill, there is no sunset clause. That is why, in Amendment 312, which was tabled before the new amendments, my noble friend Lord Thomas of Gresford and I recommended that there should be a sunset on the whole power after two years and, in Amendment 302BA, I suggest that any regulations brought forward under the new powers should themselves lapse after two years. The noble Lord, Lord Foulkes of Cumnock, said that it should be five years. We could have a debate about that but, again, the principle is trying to build confidence to get an agreement between the Scottish and Welsh Governments and the UK Government, and to have a sunset clause would go a considerable way to help that.

As we have heard in the previous three contributions, there could be dispute about the frameworks. Our Amendment 318 would put the Joint Ministerial Committee on European negotiations on a statutory footing. In October 2016, to much fanfare, we were told that this new committee had been set up,

“to ensure that the interests of all parts of the United Kingdom are protected and advanced, and to develop a UK approach and objectives for the forthcoming negotiations”.

That has probably been more honoured in the breach than it has in practice. We know that in recent weeks there have been more concerted efforts in the committee to try to gain agreement on what we are discussing tonight, but there might be a lot of advantage in putting it on a statutory basis so that there could not be any backsliding on when it meets, as has happened before.

I welcome the initiative taken by the noble and learned Lord, Lord Mackay of Clashfern, and the amendments proposed by the noble Lords, Lord Wigley and Lord Foulkes of Cumnock, because they constructively try to address how we resolve some of the difficulties. There clearly are difficulties and differences, and we must try to start thinking outside the box and creatively. The noble and learned Lord, Lord Mackay of Clashfern, picks up very well one difficulty: the United Kingdom Parliament is also the Parliament for England—England does not have a separate legislature, as Scotland, Wales and Northern Ireland do.

I was reminded of my colleague Mr Ross Finnie, Minister for the Environment and Rural Development in the first Scottish Administration. His experience of meeting counterparts from Wales, Northern Ireland and Defra was that some Secretaries of State saw their role as to be the UK chair of the meetings, with the English Minister of State arguing England’s case, whereas other Secretaries of State could not see the difference between an English position and a UK position. He said that, clearly, they made far more progress when they had a Secretary of State who saw him or herself as holding the ring as the UK Minister with an English Minister of State arguing the English position.

We must recognise that, as the noble Lord, Lord Foulkes, said, it is asymmetrical.

Lord Dykes (Crossbench)

I am most grateful to the noble and learned Lord for giving way. He referred to the noble Lord, Lord Foulkes, who said in his speech that he hoped that one day there would be a federal constitution and, I think, implied that the noble and learned Lord supports the same idea. There are other Members, including Cross-Benchers, who feel that that is a very good idea.

The tragedy is that with the constant muddle we have, with our inability to have other than fairly chaotic governance for various reasons, including the lack of a written constitution—which most people would not agree with, of course, but I think is a growing field of thought—how does one get that without first having a constitutional convention to launch it, and how on earth would you get agreement on a constitutional convention in Britain?

Lord Wallace of Tankerness (Liberal Democrat)

There are lots of questions there from the noble Lord, Lord Dykes. First, as a member of a party that has supported some form of federal United Kingdom since the days of Asquith, I have no difficulty in saying that I believe in federalism. Equally, I do not diminish the difficulties and challenges in getting there. I rather suspect that, with what we have at the moment, we do not have time for a constitutional convention. That is why, as with so many other aspects of our constitution, we must move incrementally.

A lot of this has hinged on consent. Interestingly, the report from your Lordships’ European Union Committee on Brexit and devolution states:

“Any durable solution will need the consent of all the nations of the United Kingdom, and of their elected representatives … A successful settlement cannot be imposed by the UK Government: it must be developed in partnership with the devolved Governments”.

The Scottish Affairs Committee also referred to the fact that it would require the consent of the devolved Administrations.

On the issue of legislative consent Motions, as the noble and learned Lord the Advocate-General for Scotland knows, there is concern that frozen areas of EU retained law might well be seen to be beyond the legislative or executive competence of the devolved institutions, and therefore no legislative consent Motion would be required, at least under the enunciation formulated by Lord Sewel in the Scotland Act. I accept that devolution guidance note 10 could kick in. I think that the Minister said something to the noble Lord, Lord McConnell, in a previous debate, but it would be very helpful if he could clarify that, in the event of subsequent primary legislation in pursuance of the common UK framework, legislative consent Motions would indeed be expected.

Finally, we are moving into uncharted waters. Arguably, if we had not been in the European Union in 1998, the Scotland Act would have been constructed differently. The single market of the United Kingdom, which I certainly value and numerous other Members of your Lordships’ House have said they value, has been maintained since 1999 by the single market of the European Union. We are now into new territory with, for example, trade agreements. Negotiating international agreements is a function of the United Kingdom Government, but the detail of these trade agreements could well impact on devolved competences. How will that be accommodated? Canada, for example, when it negotiated its agreement with the European Union, had representatives of the provinces and territories in the room at the table during those negotiations. It would be very welcome if the Government were to make a similar commitment. That, again, would be a confidence-building measure.

At a later date, we will no doubt have to consider how frameworks operate when we have them. I welcome the suggestion of the Welsh Government of a council of UK Ministers with qualified majority voting to operate the frameworks. That would take us much further down the road towards federalism. In the meantime, the challenge is to find workable arrangements in the interim.

We do not really have a concept of shared competence. Perhaps that is something that we should work up. It was something which we discussed in the Calman commission back in 2008-09. It did not have much traction then, but we are in a new situation.

There is also the question of consent and trust. It has been said that constitutional propriety does not really allow for anything like consent. Those of us who argue for a written constitution are often told of the benefits of having a flexible, unwritten constitution. We are in a new situation. The Government responded to the campaign for English votes for English laws by bringing out a new device which, arguably, undermined the sovereignty of Parliament, because the House of Commons and the House of Lords can vote for an amendment, but if English MPs, a subset of one House of Parliament, say no, it does not become law. That is a move away from the sovereignty of Parliament.

Those who were in the Chamber earlier today heard my noble friend Lord Alderdice talk about the Good Friday agreement. He talked about the need to be adventurous and creative and suggested that if that process had involved some of what we have been hearing in the EU debate—people not willing even to entertain the idea of any differences or of how you work with sovereignty—we would never have had the Good Friday agreement. I would encourage the Government to be adventurous and creative; to be willing to think outside the box; to be willing to compromise; and to be willing to seek pragmatic solutions, even at the expense of 100% constitutional purity. What we are discussing, at the end of the day, is not about institutions. It is about people, businesses and the certainty they want in the law and their rights when we move out of the European Union. We should keep that firmly in our minds. In that spirit, I hope that the Government can come to successful negotiation with the devolved Administrations and that, by the time we come to Report, we can have amendments that we can all support.

Lord McConnell of Glenscorrodale (Labour)

My Lords, I have been very critical of the way that both the Government and the Scottish Government have conducted these discussions over the past 12 months, but I want to start by being very positive in your Lordships’ House this evening. I think the Government have moved considerably; I think the reversal of the principle behind the new clause is very welcome indeed; and I think it is now very likely that we are close to an agreement on the different categories of responsibility and competence in the different sections. I very much welcome the assurances from the Minister in the earlier debate that legislative consent Motions will be required for any primary legislation that would enact these new frameworks. I also welcome the tone of the debate tonight and the fact that the Minister is welcoming the different amendments that have been put forward and the ideas that have been suggested and is willing to look at them with his team over the coming weeks, before we get to the stage of having to vote on any specific proposals.

However, I want to make one specific point, in the interests of brevity and concentrating on what I think is most important here this evening. The way in which these frameworks are established is perhaps critical to getting the agreement to the stage of the frameworks in the first place. Whatever opinions each of us might have about the taking back of control to the UK from the European Union, in that exercise of taking back control to the UK I think the Government could be much more ambitious in setting out a new way of working inside the United Kingdom. Frankly, the joint ministerial committees have never worked, from the very first year. They were chaired by UK Ministers; they were sometimes consultation exercises; they were more often a brief, cursory discussion around a table. They were very occasionally brought together to reach agreement on a specific item, but those agreements were always much better reached in other forums or bilaterally. Tony Blair and I both tried to get rid of them. We did not succeed, but I wish that we had.

The Government need to think way beyond the joint ministerial committees. Perhaps the noble and learned Lord, Lord Mackay of Clashfern, has started to point us in the right direction for a way in which we can build a new relationship among the four Governments. What we need to look at is not a joint ministerial committee but a new form of ministerial council within the United Kingdom that might perhaps have a rotating chair, rather than being chaired by the UK Secretary of State, and that would have some sort of procedure for resolving disputes. It obviously could not use qualified majority voting, and it might or might not have a veto, but at least each case would be agreed properly among the different sets of Governments. If the Government could do some radical thinking on this over the next few weeks, before we get to the stage of finally voting on this Bill and agreeing the way ahead on frameworks, then I think they would be on much firmer ground to get agreement on the individual competencies and then to get consent. Although not necessarily required legally or constitutionally, it would be better for the United Kingdom if consent is acquired for this Bill and for the subsequent actions that will take us forward to the next steps. I urge the Government to think more ambitiously about the way these frameworks will look in the future, while I welcome the steps that have already been taken to put in place restricted time scales, which might yet include a sunset clause—that might be very wise—to be clear about the reversal of the principle; to devolve things unless they have to be reserved; and to be willing, tonight, to listen to all the amendments.

Lord Lang of Monkton (Conservative)

My Lords, after roaming around the various amendments to the government amendment, I would like to steer us back to the government amendment itself, which I support and which I hope will form a pathway to getting this matter resolved. I am afraid my remarks will be mainly focused on Scotland, where the battle has been fiercest, but I will refer to the other devolved Administrations in the context of the generality.

We have got here by a tortuous route of JMC meetings, consultations, arguments and a lot of delay. I acknowledge the willingness of the Government, in particular, to try to follow this approach of constantly being willing to participate in discussions and consultations. Much reference has been made in earlier debates to the spirit of devolution, to which the intergovernmental relations paper published by the Constitution Committee some time ago referred—indeed, we argued for many things, including some just referred to by the noble Lord, Lord McConnell. Given where we are in this farrago of committee meetings and consultations and rebuffs and demands and arguments about “consent” and “consult”, it is a relief to have an amendment to the Bill which we can debate and, I hope, remove the deadlock.

I prefer to start by reference to a component of the debate that seems to have been notable by its absence in discussion until my noble and learned friend Lord Keen raised it in the last debate, namely the Sewel convention. When the Scotland Act 1978 was going through Parliament, I asked my lamented and good friend Lord MacKay of Ardbrecknish what it was all about. It was not called the Sewel convention at that stage. He said, “Oh, it’s a good-will measure. When we and the Scottish Government both want to legislate on the same subject, we’ll offer to do it for them to avoid duplication”. If only. The spirit of devolution may have been alive then, but it has taken a battering since. The finished version has turned out a bit differently. Far from being a good-will gesture to foster harmonious relations, it has become a battleground on which Parliament seems under constant challenge, with one visit already to the Supreme Court and another allegedly brewing. That is not the spirit of devolution.

The Government deserve credit for endless trust and courtesy, but their patience has gone unrewarded. It seems that they are left with no alternative but to act as they now propose. The noble Lord, Lord Thomas of Gresford, who I am glad to see in his place, said in an earlier debate that it is a pity that devolution has got tangled up with the Brexit Bill. I absolutely agree with him—I wish they could have been taken separately—but it obviously is not possible. We are where we are. In the much larger arena of the Brexit negotiations, the challenge of this Bill is full of difficulties and complex issues. No solution is easy, but the Government have to make progress to keep to the timetable. In that context, I think reference to the Sewel convention makes clear that Parliament can legislate on devolved matters. That is an important point to remember and one that could have been prayed upon at the very outset as an alternative route to securing a satisfactory conclusion. Of course it is not something to do lightly, but we in the devolved Administrations need a solution. The word “normally” offers a key to this. There can surely be nothing less normal in the world of law-making than legislation to retrieve to our shores from the European Union over 40 years of legislative activity against a tight deadline and in advance of the moment of transfer—a retrieval that is vital to the maintenance of the rule of law as Brexit takes place. If that is not abnormal as an event, I do not know what is.

The Scotland Act and the Wales Act, as amended, and the convention are the nearest we can get to a stable base on which the devolution settlements can have some hope of harmonious survival, provided all parties respect that base. Enoch Powell’s dictum that power devolved is power retained has to prevail or the centre cannot hold, but sovereignty can be courteously delivered and received. The Government’s record on that is good. The Bill respects it and the guarantees that the Government have given. It specifically guarantees that no existing devolved power will be changed. Everything already devolved stays devolved. The area of dispute is a narrow, temporary and reducing one. As the Government’s amendment concerning EU powers being brought into the UK for the first time demonstrates—under the EU treaties, those powers must be transferred to the nation state in the first instance—the vast majority will go straight through to the devolved Administrations. Only those powers temporarily reserved that affect national frameworks, on which the devolved Administrations reached agreement in principle as long ago as last October, will be frozen en route until the frameworks can be decided upon. My noble and learned friend the Advocate-General covered that matter very effectively in his speech in the previous debate.

I respect the principles advanced by noble Lords and their sensitivity over matters that they point out are devolved, but there are other factors that again, in the spirit of devolution, could be deemed worthy of some movement by the devolved Administrations. These competencies and my noble and learned friend’s speech were very helpful on this—indeed, it makes my own speech almost redundant from now on, but I will make it anyway. These competencies coming home from the European Union were not ours to devolve before and do not necessarily fit in under the headings of what is claimed as devolved. They were not ours to devolve before; they are in many ways new and additional and reflect the changed legislative priorities that have evolved over the past 40 years. I just give one simple example of that change in agriculture: 40 years ago, we had a Ministry of Agriculture; now we have a Department for Environment, Food and Rural Affairs—a very much changed animal. Virtually all these new powers will as soon as possible end up with the devolved Administrations.

I do not know how the Government could do more without jeopardising their obligations to the United Kingdom as a whole. This Parliament is the only one that can negotiate the Brexit deal—the outcome will after all form part of an international treaty—and this Parliament is the Parliament of Scotland, Wales and Northern Ireland, as well as of England and the United Kingdom. I sometimes think that Scotland’s First Minister occasionally forgets that the Prime Minister is also her Prime Minister and that the Westminster Government—as the SNP derisively refers to us, as though we were a foreign power—are also Scotland’s Government as well as that of the other parts of the UK. It is the Prime Minister who can protect the First Minister from herself by ensuring that Scotland remains in the UK, as its people decided only three years ago, and thus in the United Kingdom’s single market, which is the mainstay of Scotland’s economy. As I think all your Lordships now know, it takes four and half times more exports than the entire European Union does.

Yet still they rage against the light. The intransigence shown by the Scottish Administration was always likely to emerge. I diverge here from my noble and learned friend Lord Mackay of Clashfern—though fortunately not on a legal point—as I believe it was always going to emerge, and it is what the Scottish Government mean by “negotiation”, because they are working to a different agenda, an agenda with only one item on it: independence. Everything in every area of government in Scotland is subservient to that, hence the neglect that we see of education, the economy and all the other matters that are their responsibility. If they can find of way of turning everything that happens into a source of grievance, they will do so. Grievance is their default position. They would make a grievance out of a ray of sunshine if they thought it would help their cause. Where in that Administration is the spirit of devolution? There is no power grab in the measures proposed in the government amendment, quite the reverse; it is a power bonanza. The devolved Administrations should welcome it as a ray of sunshine.

Lord Hain (Labour)

Even accepting the noble Lord’s criticism of the nationalist Government in Edinburgh, can I just remind him that the Welsh Government—a Labour Government and a pro-union Government—are just as critical of the stance that the Government of the UK have taken up to now? His remarks do not take account of the depth of feeling that there is in Wales and the Welsh Government about this matter and I caution him about that point.

Lord Lang of Monkton (Conservative)

I take note of what the noble Lord says, though I have to say that I have heard information from other sources which suggests that the opposition in Wales is nothing like as strong as it is in Scotland, but it feels obliged to go along in the wake of the Scottish attitude. We will have to disagree on that.

Lord Thomas of Gresford (Liberal Democrat)

With respect, I am saddened to hear the noble Lord get on to this grievance and feeling against the Scots nationalists. They are elected by the people of Scotland. He has to accept the voice of the people there. They represent the interests of the people of Scotland and if they act against those interests they will be kicked out. Maybe he wants that—maybe we all want that—but the tone that is being struck by him just at this moment, after a very constructive speech, unhappily does not help to resolve the outstanding issues. I join the noble Lord, Lord Hain, in saying that that is not the feeling that one should have, certainly with regard to the attitude taken by the Welsh Government. I believe that they represent the feelings in Wales that there is a suggestion that the United Kingdom Government may enter into a position that we would regard as unfortunate. It is unfortunate that this anti-Scots nationalist—they are not represented in this House at all; maybe that is their fault that they choose to do that—language should be used.

Lord Lang of Monkton (Conservative)

My Lords, I too regret having to refer to the behaviour of the Scottish National Party and its constant attempts to find issues on which it can exercise grievance, but that is what is happening. It is because of that attitude that we are where we are now and that the consultations that were allegedly going extremely well throughout the earlier months have run up against a time limit. We are blinding ourselves to reality if we do not take account of the fact that the Scottish Administration have a completely different agenda from this one—notwithstanding the bonhomie of Mr Russell, which my noble and learned friend Lord Mackay of Clashfern was fortunate enough to encounter. I regret having to say it, but it has to be said, otherwise we are blinding ourselves to reality.

I do not dismiss the Government’s past willingness to consult patiently and, again, I respect their willingness to withdraw this amendment so that it can be further debated and discussed. That is entirely in line with the path that they have pursued, which is creditable and desirable. How I wish the other participants in these discussions could unanimously take the same approach. It is a tribute to the constitutional proprieties that we all like to see, seeking as the Government did to negotiate in good faith, to find a route that would not require them to assert the sovereignty of this Parliament. But it did not work in this context and I do not think it was ever going to work. In the end, the supremacy of the union must come first, as another Constitution Committee report, The Union and Devolution, recently suggested.

Lord Beith (Liberal Democrat)

My Lords, the noble Lord is a former chairman of the Constitution Committee, but he is perhaps doing a disservice to its present members by not reflecting that the committee felt that progress had to be made in this area, not least because the parliaments in both Edinburgh and Cardiff, across the parties, were unhappy with the Government’s original proposals.

Lord Lang of Monkton (Conservative)

I agree that progress has to be made, but progress is not made by constantly agreeing to give legislative consent on so many different issues, as so many amendments that we have debated in the last few days suggest. That is not progress; that goes towards unsettling the existence of the devolution within the United Kingdom parliamentary structure. We have to be realistic about these matters.

The Government’s approach of endless patience and consultation did not work. In the end, the supremacy of the union must come first. So I support the government amendment. By protecting the sovereignty of this Parliament we are best able to deliver the overall outcome, both for the devolved Administrations and for the United Kingdom to which they belong.

Lord Foulkes of Cumnock (Labour)

My Lords, before the noble Lord sits down, I am slightly confused. He said that he supports the government amendment, but the noble and learned Lord, Lord Keen, said that he would not press his amendment; he is going to withdraw it and look at some of the other proposals. Does the noble Lord not agree with his Front Bench?

Lord Lang of Monkton (Conservative)

Of course I agree with my Front Bench, and I have already commended it for its willingness to withdraw the amendment. It was tabled so that it could be discussed and Ministers could hear soundings from the Committee. I have given my sounding; perhaps the noble Lord would like to add to that by giving his. He spoke about his own amendment, but I hope that in the last resort he will support the amendment that the Minister will bring forward.

Lord Campbell of Pittenweem (Liberal Democrat)

I shall speak briefly to the amendment proposed by the noble and learned Lord, Lord Mackay of Clashfern. I do not do so because I once enjoyed the privilege of being one of his deputies when he was Lord Advocate for Scotland—as did the noble and learned Lords, Lord Hope and Lord Cullen, both of whom are in their places this evening. I do so without detracting in any way from the amendment in the name of my noble and learned friend Lord Wallace of Tankerness. What attracts me to the amendment proposed by the noble and learned Lord, Lord Mackay, is its simplicity and practicality. It is easily understood, and coming, as it were, from a Scottish source, it pays due regard to economy. For those reasons it is well worthy of consideration. Its simplicity makes it easily capable of being understood not just by those who will have responsibilities under it, but by members of the public.

It is for those reasons that I am, with due deference, rather doubtful about the amendment tabled by the noble Lord, Lord Wigley. The problem with it is that, apart from the reference to the Supreme Court turning into some kind of court of arbitration, and I know of no process or procedure that would allow for that—

Lord Hope of Craighead (Judge)

Will the noble Lord allow me to take the opportunity to say that, as he will remember, there is provision in the Scotland Act and in the Government of Wales Act for a reference to the Supreme Court on issues of law—about the competence of legislation and whether something is within the competence of the legislatures? The problem with the situation that we are contemplating now is that the issues that remain in debate are not really issues of law, and I do not see how the Supreme Court could possibly deal with them. In fact, it is very anxious not to get involved in politics. There was a germ of good sense in the scheme suggested by the noble Lord, Lord Wigley, but it breaks down at that point. I am sorry to intervene, but it is worth mentioning that issue.

Lord Campbell of Pittenweem (Liberal Democrat)

The noble and learned Lord’s intervention is most helpful. Of course, the language of proposed subsection (17), in Amendment 318AA, to,

“refer any question to the Supreme Court”,

supports the view that the use of the Supreme Court in such circumstances would be, to put it mildly, doubtful.

My difficulty with the proposal of the noble Lord, Lord Wigley, is that it is bound to encourage delay. His amendment says:

“The Panel may call witnesses or take legal advice”.

If witnesses are called they may have to be cross-examined, and if there is to be cross-examination there may have to be representation by counsel, or something of that kind. It is not difficult to imagine what is proposed in the amendment turning into something of a full-blown hearing, rather like, for example, industrial tribunals.

Under suggested subsection (15)(a), regard must be had to whether something,

“is reasonable, in all the circumstances”.

As soon as the concept of reasonableness appears in a statute, it opens up the possibility of judicial review. Even if it were not to be granted, none the less an application for judicial review could obviously, and unfortunately, delay the outcome of a decision that might be of considerable economic as well as political importance. For those reasons, however well intentioned the noble Lord’s proposal is, I do not think it stands any proper comparison with that of the noble and learned Lord, Lord Mackay. I therefore urge the Government to give serious consideration to that, for the reasons the noble and learned Lord set out, which I have tried to follow.

Lord Wigley (Plaid Cymru)

I concur entirely, in that I hope the amendment tabled by the noble and learned Lord, Lord Mackay, gets the attention it deserves and that it is adopted. However, does the noble Lord not accept that in order to assuage some of the feelings that, perhaps unfortunately, have been built up over recent months about there being a will here to impose solutions, we need a mechanism that people at both ends of the telescope can see as balanced and even handed?

Lord Campbell of Pittenweem (Liberal Democrat)

It is a question of judgment. The mechanism that the noble Lord suggests may achieve the objectives that he sets out, but it will almost certainly encourage delay, and perhaps even more controversy. What is required here is very quick resolution, in an uncontroversial way, of issues that lie at the very heart of the economies, perhaps, of the United Kingdom—and those of Scotland, Wales and Northern Ireland. It seems to me that the noble and learned Lord, Lord Mackay, has pretty well hit the target.

Baroness Finlay of Llandaff (Crossbench)

My Lords, I feel a bit like somebody from Relate. I am a Cross-Bencher, I am not a lawyer, and I do not now have an interest in Scotland—although I do have an interest in Wales. I just want to make a few brief comments, to assure the noble and learned Lord, Lord Wallace of Tankerness, that I tried to write a schedule for the Bill to set out the frameworks—but for all kinds of reasons I did not, and felt it would be a waste of massive effort to try to achieve something that I could not. However, I think the idea is commendable that we should put on the face of the Bill the matters that will go to the devolved Administrations, which would then not be for dispute. That may go a long way to assuaging some of the concerns.

I remind the Committee that the noble Lord, Lord Wigley, spoke about the need to be even handed, based on what has gone on before. The amendment tabled by the noble and learned Lord, Lord Mackay, is an enormous step forward. The fact that the Government have agreed to invert Clause 11 is also a major step forward, but there is still more to be done. We need to look at what will happen in the event of deadlock. Having a rotating chair, which has been suggested, would certainly help to establish some sense of equality. The frameworks need to include some sort of equal partners in resolution. I hope that some of the negativism of what has gone before may be laid to rest, because we have to move forwards into the new world. At least we have had some positive suggestions tonight. I repeat my thanks to those who have been communicating with us to try to achieve that—but we cannot just say, “Right, we’re there”. There is more work to be done.

The suggestion of a sunset clause could be helpful too, because that would concentrate the mind, and would provide some reassurance. I had put my name to Clause 11 stand part, but it is now to be replaced anyway, which is a great relief. I hope that we shall recognise, and not forget, the need for equality of voice and equality of representation. The failure to do that in the past should be a lesson to us as we go forwards.

Lord Forsyth of Drumlean (Conservative)

My Lords, I have never known a Government make such efforts to meet the arguments that have been put against their first intentions. If it had been up to me I would not have tabled an amendment at all; I thought the Bill as it originally stood was perfectly able to provide for what was required. Instead the Government have listened to the representations from Scotland and Wales. I think the representations from Wales have been a little more constructive than those from Scotland, for the reasons that my noble friend Lord Lang spelled out. I agreed with every word in his excellent speech, although it unsettled one or two people.

I have enormous respect for my noble and learned friend Lord Mackay, and I usually agree with him. I do not know whether he, like me, is a fisherman—but if he were, I would say that the fly he cast should be called the federalist option. What he is proposing is to change our constitution. This is a Bill to put in place the powers that have been lost to the European Union; it is not a Bill in which we should be remodelling our constitution, or reassessing the devolution settlement that was agreed, in the case of Scotland, in the latest Scotland Bill. Therefore, I do not support the amendment of my noble and learned friend Lord Mackay of Clashfern. I have noticed that those people who would like to see a federal arrangement and would like us to remain in the European Union have endorsed it with great enthusiasm, and I can see why.

Lord Forsyth of Drumlean (Conservative)

That is an open admission of it. As I look at the amendment, I think, “Who will speak for England?”.

Lord Mackay of Clashfern (Conservative)

It tells you.

Lord Forsyth of Drumlean (Conservative)

My noble and learned friend says that it tells me. Yes, it tells me that it is the Secretary of State. The Secretary of State’s responsibilities are for the whole of the United Kingdom, not for England. To suggest that there should be a rotating chair, as the noble Baroness, Lady Finlay, did, is a nonsense in terms of our constitution. Ministers in the Government have a responsibility to act for the whole of the United Kingdom.

I have to say that I thought that the speech of the noble Lord, Lord Wigley, was absolutely hilarious. Here he was making an impassioned plea for democracy in Wales while at the same time arguing that all the powers that he was concerned about should remain in Brussels, where the ability to bring forward legislation rests with an unelected Commission and where our ability to influence it is one of 28 in the Council of Ministers. It is a complete distortion of the word “democracy”. What is being offered here to the Welsh Parliament and the Scottish Parliament by the Government is the ability to take back control of a whole range of issues and policies over which they have hitherto had no influence at all.

Lord McConnell of Glenscorrodale (Labour)

I have heard the noble Lord, Lord Forsyth, say on several occasions in these debates on Brexit in your Lordships’ House that other noble Lords around this House have tried to revisit the arguments around the referendum, that that is wrong, that time has moved on and that it is time to debate the process of withdrawal and not revisit those debates of two years ago. However, it seems to me that he does exactly the same thing on devolution. To take fishing as an example, the reality is that the Secretary of State for the United Kingdom Government is responsible for fishing in England and the relevant Minister and the First Minister in Scotland are responsible for fishing in Scotland. We have an equality of representation, duty and competence. That is what should be reflected in any common framework for decision-making. It is not the case that the United Kingdom retains an overarching power over these. There may be a constitutional hold over sovereignty at the end of the day, but the reality for 19 years has been that, once these powers were devolved, the Ministers in the UK Government became the Ministers responsible for the way in which those responsibilities were exercised in England, not in Scotland, or, on many occasions, in either Wales or Northern Ireland.

Lord Forsyth of Drumlean (Conservative)

The noble Lord is talking nonsense—codswallop in fact—in the context of fishing because the position has been that the Secretary of State with responsibility for fisheries, agriculture and everything else had no authority whatever to determine these matters; that rested in Brussels. I have been to Fisheries Councils, which are always held near Christmas and always go into the middle of the night, where we struggled to get a deal, and where we were invariably overruled by other member states. Then clever people such as the noble Lord, Lord Kerr, who I am not sure is in his place, would write press releases explaining how the talks had been a triumph and we had secured a brilliant deal for the United Kingdom. But we did not have the power to determine that.

As to the point about the position of the Secretary of State in the United Kingdom Government and the Scottish Ministers with responsibilities in respect of fisheries, the noble Lord makes my argument for me. The position is pretty clear: once we have regained control of our waters and our fishing policy, we will make international agreements with other parties. That has to be done on a United Kingdom basis. Despite the noble Lord’s efforts to advance the cause of the nationalists in Scotland, with disastrous results for his own party, his former leader now says that he regrets having done devolution at all. The noble Lord shakes his head. If he reads Mr Blair’s own autobiography, he will find that he lists two things that he regrets doing, and devolution is one of them. Devolution has had a disastrous effect on Labour in Scotland, as he well knows, because Labour has sought to appease nationalism and refused to stand up for the role of the United Kingdom in the way that my noble friend Lord Lang argued so brilliantly. When we regain power over fishing and so on, the Secretary of State will be responsible for organising and arranging access to our waters for fishermen throughout the United Kingdom on the basis of international treaties which can be made only by a sovereign state, and that is the United Kingdom. It is not Scotland, it is not Wales and it is not Northern Ireland.

Lord McConnell of Glenscorrodale (Labour)

Plenty of countries around the world that enter into international treaties have internal mechanisms which allow different parts of those countries to come together to make a decision by either consensus or a formal agreement, so there are plenty of examples around the world of where that works in practice. It should be able to work in this country as well. I correct the noble Lord, Lord Forsyth: there is no evidence that the former Prime Minister Tony Blair regrets bringing in devolution in this country. In fact, it is one of the things he is proud of having done for this country and is a major constitutional change that made a real difference. If the noble Lord reads the book properly, he will understand that.

Lord Forsyth of Drumlean (Conservative)

I will return to my copy of this important text and will be in touch with the noble Lord in that respect. I completely agree with his point that there are plenty of countries where people are able to consult on these matters. However, there is a difference between seeking to consult people and seeking their consent. This is where this debate has gone off the rails in that people have confused consultation with consent. Consent, in effect, gives a veto, as has been explained by my noble and learned friend Lord Keen and by my noble friend Lord Lang. It has been explained that, if we have a situation where one devolved legislature is able to have a requirement for consent, as opposed to being consulted, we have one part of the United Kingdom able to use its veto to subvert the wider interests of the rest of the United Kingdom, and that was never ever part of the devolution settlement.

Lord Wigley (Plaid Cymru)

Does the noble Lord accept that some of the frustration that has built up, certainly in Cardiff, and, I can well imagine, in Edinburgh, arises where there was supposed to be consultation but often that was no more than a letter and the reply was ignored? Unless there is meaningful consultation that leads to a coming together of minds, it can be just a façade for there to be continued rule from London ignoring the needs of Scotland, Wales and Northern Ireland.

Lord Forsyth of Drumlean (Conservative)

I do not know the detail. I do know that a number of the joint ministerial meetings were cancelled, but not by the Secretary of State or the UK Government. I am entirely prepared to accept that the process could be improved. Certainly, when I was a Secretary of State and we had differences of view on policy in respect of Scotland compared with other parts of the United Kingdom, we had a joint ministerial committee, sorted out the issues and reached agreement, not always to our advantage but sometimes to our advantage and to the disadvantage of others. I had an amendment down, which I have withdrawn in the interests of making progress, which suggested that there should be some kind of statutory arrangement for consultation. I can see that. But I am seeking to argue against the noble Lord, who wishes to elide consult with consent.

Lord Thomas of Gresford (Liberal Democrat)

My Lords—

Lord Forsyth of Drumlean (Conservative)

May I just answer the noble Lord before I deal with the noble Lord, Lord Thomas?

I understand that. If I were a Welsh nationalist, or someone who did not accept the result of the referendum, I can see why I might table amendments of this kind and cause maximum disruption to the Government’s programme.

Lord Thomas of Gresford (Liberal Democrat)

The noble Lord has just outlined a dispute resolution system of which he was part. He said that the council would get together and it would thrash out an agreement. Is that not precisely what the noble and learned Lord, Lord Mackay, is suggesting?

Lord Forsyth of Drumlean (Conservative)

If the noble Lord had listened to the first part of my speech, I explained who would speak for England, and that this is a matter for the United Kingdom. The difference, of course, when I was Secretary of State was that there was one Government and one party in power. I do not speak for Wales but the difficulty we have in Scotland is that the party in power is determined to destroy and break up the United Kingdom. That is its agenda. As my noble friend Lord Lang said, every single issue is turned into a constitutional crisis and is a source of dispute.

If I may, I will turn to the substance of the government amendment. I started by saying that I have never seen a Government work so hard to try to achieve consensus and agreement. They have tabled an amendment which turns on its head the original proposals in the Bill to reflect the architecture of the Scotland Act. They should be given great credit for that. I welcome the conversion of the noble Lord, Lord Foulkes, who is not in his place; I do not know which road to Damascus he has been on, but it is good to see his conversion and that he now sees that what the Government are trying to do is sensible. The noble and learned Lord, Lord Wallace, also responded positively to this, and made some quite interesting suggestions as to how the amendment might be improved. It is to the Government’s credit that they have brought forward this amendment—and not just brought it forward; as everyone around this House knows, the Secretary of State, David Lidington, has gone to great lengths to meet people, despite all the other things on his agenda, to take this forward. Nobody can say that the Government have not tried to move forward in the interests of getting an agreement.

My noble and learned friend Lord Mackay says that he has had a generous conversation with the Scottish nationalist Minister, and that he thinks he will take a positive and constructive view. Anyone who had that attitude of mind would see that this was a huge leap forward and would embrace it. The Government have not only tabled an amendment which meets any reasonable person’s aspirations but have even said, “We’re not actually going to move the amendment; we going to withdraw it in order for people to have a further opportunity to consult on it”. I cannot think of another occasion when that has happened on a matter of such substance.

Lord Forsyth of Drumlean (Conservative)

I hear tittering in the background. Does the noble Lord wish to intervene?

It is a huge step forward, and we should all support the way in which my noble and learned friend Lord Keen—there are so many lawyers in this debate—has explained the thinking behind that and the Government’s ability to try to meet the anxieties, which have been stirred up unnecessarily, in a constructive and forward-looking manner while maintaining the integrity of our United Kingdom constitution.

It is a matter of regret that agreement has not been reached with the Scottish nationalists and the Welsh. I hope that the Welsh Government will take a different view. I doubt very much that the Scottish Government will want to do anything other than continue this dispute, and if that happens, my advice to my noble friends on the Front Bench is to get on with it, because they have gone as far as any reasonable person could expect them to go. I very much welcome this government amendment.

Lord Morris of Aberavon (Labour)

My Lords, I will make a few comments in this somewhat bizarre debate on the government amendments that the Government propose to withdraw. I have no experience of this situation; it must have happened before, but it is rather unusual, to say the least. I have emphasised before, and will not repeat, the need for “consent” as opposed to “consult”. That is what the Welsh Government want and what all the other parties in Wales want. I already dealt with the history of the Government’s excessive slowness to agree to legislative consent at all in my speech on Clause 5, and I do not wish to repeat that. But I ask the Government: what does “consult” mean? What is the definition? Is it a chat on the telephone or a face-to-face meeting between the First Minister and the Prime Minister? I think that we would like to know before the end of this debate so that we can consider where we go from here and what the Government’s intentions are regarding “consult”.

On Wales, Carwyn Jones has been trying diligently—he is a good advocate—to reach an agreement with the Government. I welcome very much the fact that, in addition to the meetings with the Chancellor of the Duchy of Lancaster, he has had a face-to-face meeting with the Prime Minister. That is how it should be. These are now grown-up Governments in Cardiff and Scotland, and it shows how redundant the role of the Secretary of State now is, because Prime Ministers deal with First Ministers—and likewise, on Treasury matters, it is Treasury Ministers who should seek an agreement.

I have written on this, but I wish to emphasise again that I welcome very much the approach of the Welsh Government, where I believe the will is there to reach an agreement. There are quite a few issues left to be tied up, and I hope very much that we can, in the interests of the Bill as a whole, do that.

The Government have moved—considerably—and I welcome that, too. However, there is not enough here not only to bring the horse to water but to make him drink. Therefore, there must be, I hope before Report, serious consideration of the points of difference between the devolved institutions and Westminster.

The Government claim in their treatment of the proposals that there would be an immediate transfer of the “vast majority” of so-called returning powers to the devolved institutions. Let us examine this claim. First, in the view of the Supreme Court in the case of Miller, they are not returning powers. In fact, these powers would rest with the devolved institutions in the absence of statutory amendment by the Westminster Parliament. The authority is the Miller ruling, which states quite clearly:

“The removal of the EU constraints on withdrawal from the EU Treaties will alter the competence of the devolved institutions unless new legislative constraints are introduced. In the absence of such new restraints, withdrawal from the EU will enhance the devolved competence”.

That is the legal reality. In fact, the government amendments do not generously gift new powers to the devolved institutions, which in the absence of legislative intervention they would not enjoy. They simply loosen somewhat the new shackles that the original Clause 11 sought to impose.

The Government assert that the “vast majority” of powers that are currently exercised by the EU and which impact on devolution will not be intercepted in this pre-emptive strike by the Government. It is sheer hyperbole to assert that 40 out of 64 of the subheadings is a “vast majority”. The reality is that it is a majority, but it should not be expressed in this way, which is far too big a claim about what the Government are doing.

My third point is that the unilateral calculation has the smell of creative accounting in the way the Government count the 24 powers retained and the 40 out of 64. It is quite clear that it is a huge segment of powers that are sought to be retained. We should look at the quality of the areas listed by the Government under the headings, “No action required” or “Legislative framework may be required”. The overall numbers are meaningless. Areas such as “Agricultural support” and “Fisheries management & support”—both of which are likely to require legislative frameworks—are significantly broader and have a greater impact on devolved competence than important but narrower areas such as “Electronic road toll systems” and “Blood safety and quality”. This is self-evident. With equal force, some areas which the Government regard as wholly reserved, including “State aids”, are absolutely central to devolved powers such as economic development. Is it any wonder that there has been a failure to agree?

I The fundamental weakness of the Government’s proposals as they now stand—and which undoubtedly need changing—is that there is nothing in the Government’s amendments to limit the exercise of this power to the areas where frameworks are agreed as being needed. Neither is there a timetable put on such powers. The Government have made progress and I welcome it. But a great deal more needs to be done before we can get the assent of the Welsh Government.

Lord Hope of Craighead (Judge)

I do not want to detain the Committee for very long; I will make just one or two points. First, I congratulate the Government on the steps they have taken to amend the original structure of the Bill so that it fits better with the architecture of the devolved statutes. If you look at the list of amendments, there are not just one but 22. That gives an idea of the scale of the exercise that has gone into preparing what we are discussing this evening. I congratulate the team that has been working behind the scenes to put this together. There are one or two loose ends, as I mentioned earlier this afternoon, but this has gone a very long way and—apart from on the one issue of consent, about which perhaps enough has been said—I support entirely the structure and wording of these amendments.

As far as the solution put forward by the noble and learned Lord, Lord Mackay, is concerned, one feature that is worth noting is paragraph 11, which is the requirement that, if there is disagreement—a failure to reach unanimous agreement—reasons must be given. I have sat for a long time in court where, if you want to dissent, you have to explain yourself, and it is quite extraordinary; once you start writing these things out, you begin to wonder whether the dissent was justified. It is an extremely good discipline, when somebody is in disagreement, to force them to sit round a table and express themselves in writing as to what the nature of the disagreement is. The disagreement may remain, but at least it focuses the mind and makes it easier for the dispute to be resolved by the final body that has the responsibility of resolving the issue.

Regarding the three solutions offered as to how we might deal with this, there are three different solutions for resolving the issue. I have already suggested that the solution put forward by the noble Lord, Lord Wigley, would not work because the Supreme Court could not deal with that kind of issue. As for the suggestion of the noble Lord, Lord Foulkes, I believe that the panel he is talking about has four members, three of whom are from the devolved institutions and one from the United Kingdom. It is a simple majority decision and the United Kingdom would be in the minority—and I am not sure that that is an entirely satisfactory solution to have arrived at. So I am brought back to the solution offered by the noble and learned Lord, Lord Mackay, which, at the end of the day, is to refer to the United Kingdom Parliament. I am not quite sure what procedure would be adopted, but it seems to offer a fairer and better solution than the other two. Broadly speaking, I endorse the thinking behind what the noble and learned Lord suggested.

We have made a great deal of progress. My final point is to comment on the fact that the Government have undertaken to withdraw the amendments. I was arguing for that some days ago, because it seemed to me that if we had to vote on it tonight that would give a rather different flavour to the debate. It is a way of enabling us to talk around the subject and the way in which we on the Back Benches have to operate all the time. It may be unusual but it is part of the constructive way in which the Government are approaching this issue and I commend it.

Baroness Randerson (Liberal Democrat)

My Lords, we sit here week after week and, wherever we started our careers, we cannot help but look at them now from the Westminster and London perspective—the UK perspective. As I have been sitting here this evening, I have done a head count. More than 10 of us in the Chamber during this debate have been Members of the devolved legislatures as well as here. We have First Ministers, Deputy First Ministers—a huge band of people here who have experience of seeing these things from the devolved perspective. It is important to bear in mind—and I say this to the noble Lord, Lord Lang, who said that there had been much too much emphasis on the importance of legislative consent in these debates—that legislative consent is the firm foundation on which confidence in the devolved system lies, in the absence of a full federal system, which of course we do not have in this country. I am a fierce unionist, but demonising the SNP does not help to bind the UK together. I assure noble Lords that there is a firm cross-party determination in Wales to insist on significant improvements to this Bill. The Government’s amendment is extremely welcome—but, so far, it is too little. It is a great pity that it is so late, because it means that people have not been able to give the full attention to it that it deserves. But I am sure that it is a good foundation upon which to build.

As noble Lords may remember, nearly two hours ago the noble Lord, Lord Forsyth, intervened to ask the noble Lord, Lord Wigley, why the devolved legislatures and Administrations had been content to accept EU power but were not content to accept the UK Government’s power on these issues. I can assure the noble Lord that I went to a number of JMCs and, sitting as a Minister in the UK Government, there was never a time when I felt for one minute that the devolved Administrations did not question the need for more power to go to them. They have persistently and determinedly asked for greater powers and a greater say in negotiations with the EU. This is not something that has come out of nowhere; it is a persistent requirement from the devolved Administrations and legislatures that they should have a stronger voice. As the noble Lord, Lord Hain, said, devolved Ministers could go to those meetings—and, indeed, often go to meetings of the European Council. I give way.

Lord Forsyth of Drumlean (Conservative)

I am grateful. I think the noble Baroness might have misunderstood me. The point I was making was that, in the case of Wales, Welsh Ministers have been consulted and involved, but United Kingdom Ministers did not need to seek their consent. They were consulted, but the responsibility in the European Union rested with UK Ministers. She is quite right that sometimes Ministers from devolved areas would go to European Council meetings, but the difference is that whereas then we were one of 28 Members, now we will have all of that power, which will be transferred to Welsh and Scottish Ministers, as the Government have made clear. So it is a huge opportunity. It is not a power grab; it is a huge power injection into the devolved Administrations. The point I was making is that people who are opposed to us leaving the European Union are deliberately misrepresenting this and, characteristically and unfortunately, arguing that they want more power for the devolved Administrations while at the same time saying they wish that power to remain in Brussels. That is the point I was trying to make.

Baroness Randerson (Liberal Democrat)

I resist the idea that I ever deliberately misrepresent anything. However, I am very aware that, although the numbers are different, the principle has always been that the devolved Ministers press the UK Government to require their agreement to a stance that the UK Government take in the Council of Ministers rather than simply consult them. That is not new.

I want to move on to the Minister’s statement in support of his amendments and shall speak, first, about the principle of consent. I believe that consultation is inadequate and that what is needed is consent from the legislatures, not from the Administrations. It is important that the power should lie with the legislatures and not just with the Governments in the devolved Administrations. It is also essential that the list of powers where legislative competence is to be constrained is defined in the Bill. Those powers are not specified in these amendments. The Government must know what powers they have in mind. I accept that there is perhaps some work to do in turning them into a tidy list but they need to be specified.

I I support the calls that have been made for a sunset clause. The Minister said that this is a temporary situation but he also said that he could not be specific about the timescale. A sunset clause would certainly be realistic in that context. Such clauses appear elsewhere in the Bill and there is no reason why the Government should not specify what they regard as a reasonable period in which to deal with this issue. We need the effective powers specified in the Bill as a schedule, as the noble Baroness, Lady Finlay, said.

I I have a question for the Minister—and here I agree with the noble Lord, Lord Forsyth. Where does England fit into all this? We are speaking at great length about introducing a pause on most of the devolved powers of the devolved Administrations, but will there be a parallel pause in relation to England or will things go ahead there on a different timescale?

Finally, I turn to putting frameworks into law. In principle, in the absence of agreement on the future framework for, let us say, agricultural support, the UK Government could seek to enact a framework and argue that, because agricultural support has been specified by regulations as being outside devolved competence, the devolved legislatures’ consent is not required. I believe it should be made clear in the Bill that the specification of areas of retained law as being temporarily beyond devolved competence does not remove the application of the Sewel convention to new primary legislation. Is that interpretation the same as the Minister’s?

I ask the Government to discuss this issue again with the devolved Administrations. I believe that real progress has been made and I am very pleased to see the amendments, but I believe that a further step is needed.

Lord Dunlop (Conservative)

My Lords, the hazard of speaking late in a debate is that, in the interests of brevity, you have to shred your speech; none the less, I hope that what I am about to say is still coherent.

It would be hard to deny that since 2010 significant powers have been devolved to Scotland, Wales and Northern Ireland. As more powers are devolved from Westminster, it becomes ever more important to attend to the glue—the institutions and arrangements that hold together the United Kingdom—and Brexit brings that imperative into sharper relief.

At the heart of the Clause 11 debate is an apparent tension: on the one hand, the powers of the devolved legislatures should not be changed without their consent and, on the other, one part of the UK should not have a veto over legislation to protect the interests of the UK as a whole. I accept that resolving that tension is not an easy matter. Therefore, Clause 11 addresses a very real issue that needs to be recognised and dealt with. The status quo ante cannot simply be asserted because there is no status quo ante. Our exit from the EU creates what the noble and learned Lord, Lord Hope, recently described in a devolution debate in your Lordships’ House as a “void”, and he spoke of the need to create something new. If that is the case, it seems entirely sensible to pause and put in place a temporary mechanism for avoiding legal and regulatory divergence while the void is filled and new frameworks are discussed and agreed. Indeed, if I read it correctly, our own EU Committee recommended something similar in its Brexit devolution report. That is what Clause 11 is intended to achieve.

Of course, the clause could have been handled differently, and I think the Government have tacitly accepted that by agreeing to amend it. As has been recognised on all sides of the Committee this evening, real progress has been made. It has already been mentioned that the Joint Ministerial Committee has agreed six principles for establishing where common frameworks are necessary. Last Wednesday’s Joint Ministerial Committee agreed that intergovernmental structure and the devolution memorandum of understanding should be reviewed to ensure that they are fit for purpose as we leave the EU. I think that everyone accepts that revision is overdue. The MoU was last updated in 2013 and has been under review since 2014, and some firm conclusions are now urgently required. I hope, therefore, that the Government and the Minister can help build confidence that this latest review will lead quickly to concrete results by going as far as they can to spell out the process and timetable for completing this work.

The other welcome development is the publication of the Government’s own analysis of where common legislative frameworks may be required. To date, this has been a theoretical political debate, and greater transparency can only help to stimulate a practical debate in Scotland, Wales and Northern Ireland, informed by real businesses and individuals whose livelihoods depend on trade across the UK.

The Government have now tabled their own amendments to Clause 11 and Schedule 3. Again, I welcome their willingness to go the extra mile to find a resolution. Those amendments are not just tweaks; they represent a significant rewriting of Clause 11. Yet the First Ministers of Scotland and Wales say that they still cannot give their consent to the Bill on the basis of the Government’s current amendments to Clause 11. They seek further amendments and reassurances. It is surely within the realm of possibility to bridge the remaining gap.

In the interests of striking a deal, what further reassurance can the Government provide to the devolved Administrations in the following areas? My noble and learned friend helpfully confirmed earlier that the Government anticipate that the existing consent conventions will apply for any subsequent legislation brought forward to implement common UK legislative frameworks where they engage devolved competence. Can he also confirm that the Government will observe what I might describe as a “self-denying ordinance” not to legislate pre-emptively for England in those areas where it is agreed that common UK legislative frameworks are necessary? To do otherwise would seem to defeat the objective of avoiding regulatory divergence and the very purpose of the Government’s “holding pattern”.

I ask the Government to look closely at the case that has already been made for applying a sunset clause of suitable length to Ministers’ regulation-making powers in Clause 11. This would allow sufficient time for the frameworks to be agreed while providing the devolved Administrations with the backstop safeguard against the risk of powers becoming stuck indefinitely in the holding pattern.

I conclude by saying that there are two sides to every agreement and I hope the devolved Administrations will play their part by showing a willingness to compromise as well. A number of noble Lords have tabled amendments requiring Ministers to obtain the consent or secure the agreement of the devolved Administrations before exercising their regulation-making powers under Clause 11. This seems a step too far and, as the Minister set out so clearly earlier, to go beyond the current devolution settlements. It risks turning the Sewel convention from a political commitment into a legal obligation. Let us not forget that the Sewel convention has been faithfully observed for 20 years. This would represent a significant constitutional change and would surely have implications for the sovereignty of this Parliament. It would also seemingly cross another important constitutional line, namely, as the Minister said, that one devolved institution could exercise a veto over the development of legislation affecting other parts of the United Kingdom.

I welcome the efforts the Government are making to secure a deal. Clearly, there is a balance to be struck here. All parties to the framework negotiations need similar incentives to reach agreement. Of course the devolution settlements need to be respected, but the unique responsibility of the UK Government and the UK Parliament is to guard the interests of Scotland, England, Wales and Northern Ireland—not just individually, but taken as a whole. That needs to be respected too.

Lord Hain (Labour)

My Lords, I think that many in your Lordships’ House will welcome the interesting and constructive contribution of the noble Lord, Lord Dunlop. I welcome the stance adopted by the Minister in his speech; it has made for a very different debate, as others have observed.

As the author of the 2006 Government of Wales Act, when I was the Secretary of State, I have been deeply alarmed by the Government’s high-handed approach—hitherto at least. It seems to risk reversing the deepening of devolution, which the Government have progressed in their recent legislation, ironically. The principle at stake, which I hope the Minister and the Secretary of State, David Lidington, will adopt and take forward, is that the Government must not legislate in this area, provoked by Brexit, without the consent of the Welsh Government and the Scottish Government, in the sad absence of a Northern Ireland Government. I know that my noble and right reverend friend Lord Eames shares that frustration and sadness, as do my noble friends who represent the DUP. There is a serious crisis in Northern Ireland, which sometimes this Parliament takes too casually, to be perfectly frank, but that is another matter. If consent is not obtained, we face a real constitutional crisis, which should not be underestimated. The noble Lord, Lord Lang, spoke about the Scottish nationalists. The problem with the Government’s approach until now—I welcome the fact that it seems to have changed—is that it feeds the separatist appetite.

I observed in the first incarnation of this Bill, and to some extent in the amendments on the Marshalled List, what I saw as Secretary of State for Wales, even under the last pro-devolution Labour Government, which was what I would call the “virus of Whitehall-itis”. It was especially the case in the Home Office, but one saw it in other departments as well. The default position was that, when a new piece of legislation involving devolution was brought forward, there was a sense of needing at the official level to resist any real progression of the devolution process. As I say, that was the default position and it has crept into this Bill as well.

Lord Lang of Monkton (Conservative)

My Lords, I am glad to agree with the noble Lord, Lord Hain, on the point that he has just made. It was reflected in a Constitution Committee report that came out a few years ago. We have to do more within departmental activity in terms of co-operation and cross-policy referencing between us and the devolved parliaments. The noble Lord also referred to what feeds the appetite for separatism. What feeds that appetite is the constant drip-feed of ceding further powers, which makes them hungry for still more.

Lord Hain (Labour)

At this late hour, that is probably a debate for another occasion, but I welcome at least the first part of what the noble Lord said. As a passionate devolutionist and federalist, I believe that the unfinished business of devolution is the failure to give England a proper voice of its own at the regional level, with the exception, of course, of London. However, that is another matter.

I give a cautious welcome to the letter that I received just before coming in to the Chamber for this debate from the Secretary of State for Wales, Alun Cairns, which has been sent to me and, I would guess, to other Welsh Peers. I shall quote part of it, because it is interesting:

“A small number of returning powers in devolved areas will need legislative frameworks in order to safeguard the UK internal market and enable the UK to strike international trade deals. These areas will be placed into a ‘temporary hold’ until the UK Government and devolved Administrations agree the detail of the framework and legislation is enacted to implement the framework”.

He goes on to make an important point:

“The consent of the devolved legislatures will of course be sought for any provisions in parliamentary Bills creating frameworks that are within devolved competence”.

In welcoming that, I stress, at the risk of repeating myself—I will not take too long about it—that until now the Welsh Government have themselves been passionately opposed to the approach of the UK Government in this area. It is not the case that this is only the Scottish Government position. The Welsh Government want to achieve an agreement and the Scottish Government have said the same. We will see in the future, but certainly the Welsh Government want agreement and they have the support of Plaid Cymru, the Liberal Democrats and, I think, some Conservatives in the Welsh Assembly. That is a serious development. In the last few days, the Welsh Assembly have been taking through its continuity Bill, but I am not sure whether it has received assent at this point. However, it has certainly taken the Bill through, which is proof of the deep concern.

Baroness Randerson (Liberal Democrat)

My Lords, the Bill received assent today.

Lord Hain (Labour)

With the help of the noble Baroness, Lady Randerson, we can put on the record the fact that the Bill has received assent. That is a serious situation. There is the potential for direct confrontation, which I hope we can avoid. I also welcome the proposal of the noble and learned Lord, Lord Mackay of Clashfern, which deserves serious attention.

In supporting the amendments tabled by my noble friends Lord Griffiths and Lord Stevenson, which again stress the need for consent, I want to highlight an alternative and perhaps more constitutionally appropriate way forward, which reflects a point touched on by the noble and learned Lord, Lord Wallace of Tankerness, and the noble Baroness, Lady Finlay. It is a way forward that would not give the Government yet another wide-ranging regulation-making power. We should ensure that a schedule is appended to this Bill containing a list of areas where the Government and the devolved Administrations agree that frameworks are needed, as they are, and hence where devolved competence needs to be constrained while such frameworks are negotiated. By doing this, the Government would be able to gain the legislative consent to this Bill of the Scottish Parliament and the National Assembly for Wales, and in future I hope the Northern Ireland Assembly, which they rightly regard as essential to avoiding a major constitutional crisis.

Lord McConnell of Glenscorrodale (Labour)

I welcome the proposal just made by my noble friend Lord Hain, because two versions of it have been suggested during the debate, albeit perhaps not deliberately. One would specify in the Bill or a schedule to it those areas that will be part of the competence frameworks; the other would specify those areas that were devolved, which would be counter to the devolution settlement. It is important that we specify those areas that are not devolved rather than those that are. My noble friend’s proposal is the right one. I hope that the Government will take that seriously and that the other option will not be taken forward.

Lord Hain (Labour)

I completely agree with my noble friend; he spelled it out very clearly.

At the same time, this approach would provide transparency about the areas in which devolved competence would be affected, which is sadly lacking in the approach embodied, until now at least, in the Government’s amendments. It would also enable the Scottish Parliament and the Assembly to agree to the list of retained powers—reinforcing my noble friend’s point—through the very act of providing legislative consent to the Bill. Such an approach would thus reassure the devolved institutions that the regulation-making power proposed by the Government could not be used to specify areas of retained EU law not requiring frameworks. That is a very important point.

If the schedule idea is potentially a magic bullet, why might the Government resist it? I am informed that the first argument is that it cannot be done in time for Report. I am not sure that I buy this argument; Report does not take place until well after Easter, which is many weeks away. We are told that significant work has been done on potential framework areas and the list published recently by the Government—though not agreed with the devolved Administrations, I understand—comes fairly close to defining legally which current EU law restrictions may need to be continued while frameworks are negotiated. Surely if the Government need to specify these areas in regulations, they will need to do so sooner rather than later in any event.

Lord Wallace of Tankerness (Liberal Democrat)

Perhaps I may reinforce what the noble Lord said. He said that Report stage was still some time away. I am sure that it would be possible for the Government, if the will was there, to put down a marker at that stage and, if it needed another two weeks, to come back at Third Reading and fill in the gaps. I support him in saying that in those areas where they want a UK framework a schedule could be a constructive way forward and give reassurances.

Lord Hain (Labour)

I welcome what the noble and learned Lord has said. If it really is not possible to work up such a schedule before Report—for the reasons that he has explained, I do not see why it should be the case—might not the Government find another legislative opportunity to do so? We know that in the autumn we are likely to have to consider a withdrawal agreement implementation Bill. That might provide an opportunity, although it would be better to do it in this Bill.

The second objection that the Government might make is the need to account for unforeseen circumstances. Since Brexit appears to be a process where every stone turned over reveals yet another problem lurking beneath it, there is some validity to this argument. But if, exceptionally, a new area where a framework is required is identified even after the passage of this Bill with the proposed schedule, there is an easy solution that is wholly consistent with the approach to devolution adopted to date—namely, a power to amend the schedule by Order in Council with the express agreement of Parliament and those devolved legislatures affected. That could be included in the Bill as well.

In reality, if the Government resist this proposal, we would be right to suspect that they have an ulterior motive in wishing to press ahead with such a wide regulation-making power as that encapsulated in the current amendment, although I accept that it is about to be withdrawn. I commend to the Government the idea of putting in the Bill a list of areas agreed with the devolved Administrations—I stress, agreed—where the constraint on devolved competence will apply and ask them to consider bringing forward an amendment that does that at Report stage.

Baroness McIntosh of Pickering (Conservative)

My Lords, I applaud the spirit in which the Government have brought forward the amendments before the Committee this evening and the eloquence with which they were brought by my noble and learned friend Lord Keen. However, on balance I think that Amendment 318A, brought by my noble and learned friend Lord Mackay, has much to commend it.

There are a number of points I would like to raise in the hope that my noble and learned friend Lord Keen might reflect upon them before Report. As my noble and learned friend Lord Mackay of Clashfern explained, the regulation-making power in these amendments would appear to be intended to be used only where the United Kingdom Government consider that it would be necessary for the purpose of protecting the UK common market. My question therefore is: would it not be clearer if that was expressly stated in the Bill? The explanatory statement could also explain why the regulations are required for this purpose. Also, do the Government envisage the power in new Section 30A in the government amendment being used only once, or do they intend it to be used more than once? It would be helpful for the Committee to know.

Although it is stated that the regulation-making power is intended to be temporary and that Ministers are required to have regard to that fact, there is nothing presently in the Bill that expressly provides for the regulation-making power to be temporary. Would it not therefore be helpful if such a provision made that clear? I believe that that is covered in my noble and learned friend Lord Mackay’s Amendment 218A.

Does it not also make sense that the Bill be amended so that the regulations and restrictions set out therein take effect at the same time that the new Section 30A comes into force? While it is expressly stated that the regulations are subject to the affirmative consent of both Houses of Parliament, there is nothing in the amendments that expressly requires the consent, as expressed by so many noble Lords this evening, of the Scottish Parliament. This contrasts with the accepted way of making amendments to the legislative competence of the Scottish Parliament through an Order in Council under Section 30 of the Scotland Act 1998. I respectfully ask my noble and learned friend Lord Keen that the Bill be amended to require Ministers to explain the need for regulations under new Section 30A.

On the question of consent, I was trying to help the noble Lord, Lord Griffiths, earlier by stating, as the noble Lord, Lord Hain, set out, that Ministers from devolved Assemblies currently sit next to the Ministers at meetings of the Council of Ministers and advisers. I also suggest that consent is currently expressly given by the devolved Assemblies and by their Ministers when the EU directives are agreed and then implemented by the devolved Assemblies. The point I was trying to make is that it is consent at both levels that is being removed.

Lord Hain (Labour)

Sometimes devolved Ministers are there on their own.

Baroness McIntosh of Pickering (Conservative)

I accept that and I stand corrected.

Lord McConnell of Glenscorrodale (Labour)

I absolutely endorse the description by the noble Baroness of the way consent works in that situation: whether or not devolved Ministers lead the delegation, sit on the delegation or are consulted in advance of the delegation to the Council of Ministers, it is the case that the responsibility for implementing the directives agreed transfers directly to them, not through the UK Government, and they then implement those directives. The noble Baroness is right when she says that that means that the consent is given, but it also reinforces the argument that that responsibility lies there and not through the UK Government any more—that is the result of the devolution settlement.

Baroness McIntosh of Pickering (Conservative)

That is the point I am trying to make. It may be helpful if I conclude by asking the Minister a question: he talked about all retained legislation being primary legislation—if the Committee were to agree that, would it not resolve many of the difficulties we have been discussing?

Lord Thomas of Gresford (Liberal Democrat)

My Lords, the veterans of devolution legislation—and I have sat through all the Acts, both Scottish and Welsh—know only too well that the architecture of devolution takes two forms: conferred powers and reserved powers. For many years, Wales had conferred powers; that is to say the power was held in the centre and handed down to the Welsh Assembly. Scotland has always had the reserved powers model, whereby it has all the powers subject to those that are retained. Clause 11, as it was originally drafted, had the flavour of the conferred powers model—namely, that powers would be taken back from Brussels and handed down piecemeal. What is so encouraging is that the Government have in this amendment put forward something that has the flavour of the reserved powers model; in other words, everything goes to the devolved legislatures, and the Government want to hold back or recover some of those powers through the machinery set out in the amendment. The essential feature of the reserved powers model is that the powers that are reserved are spelt out. That is why I support the suggestion that there should be a schedule setting out precisely what powers Ministers wish to retain or recover for the UK Government. This point was first raised by the noble Lord, Lord Griffiths, and has been repeated by the noble Baroness, Lady Finlay, the noble Lord, Lord Hain, and the noble and learned Lord, Lord Wallace.

Parliament can legislate on devolved matters, and has indeed done so, but always with consent. My amendments suggest that when the UK Government wish to bring back powers from the devolved Administrations, that ought to be with consent. We have a strong common interest in a UK single market. There will be divergence, no doubt: a Welsh Government may want to support lamb and a Scottish Government barley—I do not know what they will want to support, but there all sorts of possibilities of divergence; that is what devolution implies. But we have this strong common interest, and if we work at it and show some trust, which has been so lacking in the negotiations that have taken place so far, then we may come to a solution. That is why I protested at the attacks made upon a democratically elected Scottish Government. I have great Scottish interests and do not support the SNP in any way at all, but nevertheless the Scottish Government, rightly or wrongly, represent the voice of the Scottish people and should be treated with respect—you have to treat them with respect if you are to deal with them.

I urge the Government to take the necessary steps to put some trust into these institutions, and to try to gain the consent of the devolved Administrations for what they want to do. If ultimately consent cannot be obtained, let us have as a safeguard a mechanism such as that proposed by the noble and learned Lord, Lord Mackay of Clashfern, which resolves any disputes. Ultimately, the final decision could be left to the United Kingdom Parliament, as the noble and learned Lord’s amendment suggests, but surely there are many steps to which the devolved Administrations can and will want to consent before we ever got to that stage. I urge the Government to put consent and a positive dispute resolution mechanism into the Bill.

Lord Purvis of Tweed (Liberal Democrat)

My Lords, I know the Committee wants to move on but I will make just a couple of brief points—in support of the Government moving on this issue; on the contributions made by the noble and learned Lord, Lord Mackay of Clashfern, and my noble and learned friend Lord Wallace of Tankerness; and on the anxiety that perhaps yet again we will be making constitutional measures on a temporary basis late in the day as a result of decisions by two Executives. While we have to take the Government at their word that these will be temporary measures, many procedures in this House and many elements of our constitution started off as temporary measures but have become almost permanent features of our constitution. In the absence of some changes which will provide a sunset element, we may well be in a similar situation.

Two years ago I brought a Bill to this House for a British constitutional convention, as a result of the Scottish referendum, to try to proactively discuss some of these issues. But, as the noble Lord, Lord Lang of Monkton, said, we are where we are now with this Bill so we have to address what may be constructive ways forward. I think the contributions made so far are good suggestions for what is a very complex situation because we are extracting ourselves from a single market at the same time as seeking to create one with the powers that will be coming back from the European Union. By definition, many of those powers are designed to be cross-border.

Many elements of European legislation are as a result of international agreements that the EU itself has made to implement global agreements, such as on climate change or safety in aviation. These are complex. Interestingly, as the Government’s own framework paper shows, most of that legislation has come into place since devolution. The evolution of the markets within the European Union does not entirely predate 1999. Whether on animal welfare, safety or aviation, many have developed not only since we established devolution in the UK but since the single market has developed. These are going to be very important for our future trading relationships, not only between us and the EU but in our arrangements with third countries.

Most of those areas concern non-tariff barriers, regulations and legislation in domestic law. These are going to be relevant for every single trade agreement that the UK will negotiate and will be at the heart of our relationship with the European Union. Although I have a degree of sympathy with the Government on a temporary basis, we will have to come back not only to the legislation for the implementation period but to that for the new relationship with the European Union. That adds even more weight to the fact that the discussions taking place now will have to be time-limited.

We are also discussing blind how we would expect a framework or a common market to operate within the UK. In many respects, you would argue that we do not have that at the moment. If you drive from where I live in the Borders to London and if you are selling cigarettes or bringing animals, you will be operating under three different road traffic systems. If it was cigarettes, you might have a different packaging system in Scotland. Certainly in Scotland, not only the language of road signs but road traffic speeds are legislated for differently. We operate within many barriers. The question is how damaging those barriers would be to the functioning of the United Kingdom.

That leads on to my second point. This is not simply going to be a relationship based in law; it is also about how the different component parts of the United Kingdom will operate. Since 1999, as noble Lords have said, there have been major changes to that legislation—changes that previous UK Governments said should not be made because they would be counter to the effective operation of the United Kingdom—and Governments have changed their position, usually as a result of consensus and cross-party negotiations.

Where I did slightly disagree with the comments of the noble Lord, Lord Lang, is that there have been now more than 150 LCMs in the Scottish context, and in many respects devolution has been working extremely well when you take away the rhetoric of the wider nationalistic argument. But it does show that there needs to be a degree of flexibility within this set of arrangements. That flexibility will have to come not just with a government-to-government relationship but also with the other elements that are necessary to determine how effectively a common market operates. Who provides the statistics? What is the dispute resolution mechanism? Who provides the data? We saw this in all the discussions that the noble Lord, Lord Dunlop, had during negotiations on the fiscal framework between the UK Government and the Scottish Government. In the end, many of the discussions were not about the legislative element but about the non-legislative element, such as who provided the information, whether there was an independent source of data on fiscal revenue and who did the forecasting going into the future. These are all going to be very important.

Noble Lords perhaps thought I was making a glib comment in the previous discussion when I intervened on the Minister and spoke about managed divergence, but that is part of the parlance in our discussions with the European Union. We have that within the UK, and the question is how divergent we can be in the UK for that common market to operate effectively. Part of this discussion will have to be about the existing offices that consider the markets within the UK—our office for energy, our office for communications, the Competition and Markets Authority—which are now going to have to be covered.

That leads me to my final point, which in a way is to address the point made by the noble Lord, Lord Forsyth. The choices that we have made about our relationships within the UK—whether nations were consulted and whether or not consent was provided—have been addressed by our European colleagues in different ways. The noble Lord referred to consent in the German federal structure, under which the Bundesrat provides, under the constitution, a decisive opinion when the federal Government bring forward measures that would impact the interests of the Land parliaments. This House is not a federal House; the House of Commons is not a federal Chamber. We will have to have some forms of institutions which bring this together.

In the first instance, however, I strongly support this legislation and the temporary measures being time limited. We will need a schedule of the specific areas which are, in effect, reservations, because we will have to make sure that those areas are resolved before we go over to the next stage. We will be in a kingdom of divergence and will need new institutions. It is not just about frameworks, but a new relationship across them. As many noble Lords have said, including the noble and learned Lord, Lord Hope, in his Second Reading speech, all of this will have to be underpinned by trust. It is the non-legislative relationships which in many respects will be more important than the legislative relationships in this Bill, in the next Bill, in the final agreement Bill and in all the different measures that come subsequent to it.

Earl of Kinnoull (Crossbench)

My Lords, I will speak very briefly indeed, in strong support of the government amendments, to make one observation and one point.

My observation follows on from something that the noble Lord, Lord Dunlop, said in his speech concerning the memorandum of understanding. The current memorandum of understanding, which is dated October 2013, is only a draft—it was never finally signed off. Since that date, of course, we have had the Scottish referendum and very serious Bills in this House that have given more and more powers to the devolved Administrations. I have said before in this House, as others have, that it is frankly not fit for the purpose of acting as the constitutional glue that the structure it controls should be. A well-functioning memorandum of understanding would breed a healthy atmosphere and the ability for the differing nations of the United Kingdom to talk together. Instead of the C words that we have been discussing today, “consult” and “consent”, there may even emerge—from my experience of international companies, where quite often you have the French arguing with the Germans or whatever—a third C word, “consensus”, which would be enormously helpful in this situation. My observation is that this situation is much to be regretted, and I hope the Government are going to put a lot of weight behind getting it resolved and getting a proper memorandum of understanding structure sorted out so that we are not in the position that we are in today where we have a fractious and pretty horrible discussion going on about these issues.

I move on to my one point, which is about the ability of the devolved parliaments to exercise the powers. I have spent quite a lot of today, which has been long and interesting, looking at this wonderful frameworks analysis. I congratulate whoever has prepared it because it has taken a lot of work. It sets out very clearly what is being handed out and what is being discussed, so that one is not talking about the numbers of policy areas but one actually has an idea about what those areas are.

I am lucky enough to be on the European Union Select Committee. Last year we had serious visits discussing these issues to both Cardiff and Edinburgh. They were very helpful days in both places, and we made a lot of progress and eventually produced our devolution report, which several noble Lords have referred to in the debates today. What is always interesting at these events is what happens in the margins, and on both these days the margins were at lunch. In Wales, the discussion at lunch focused very much on the shortage of numbers of Members of the Assembly—I think there were only 56—so they simply did not have the capacity to look at legislation in the way that they would like to. That was an interesting discussion and it lodged in my mind. I worry terribly; I think this House has responsibility to have regard to whether the structures to which we are trying to give powers have the ability reasonably to exercise them. We must have regard to that when we make our decisions.

I turn to what happened at lunch in Edinburgh. There we were entertained by the Presiding Officer, and the conversation came around to whether or not the Edinburgh Parliament should have a second Chamber so that it could look in detail at legislation. Again, the conversation was about resource shortages and the lack of ability of the Scottish Parliament to properly exercise the powers that it had been given.

Lord Foulkes of Cumnock (Labour)

The noble Earl may know that the Scottish Parliament rejected my suggestion that it should have a house of lairds.

Earl of Kinnoull (Crossbench)

I did. I will send my job application in.

I feel that we must have regard to that issue. I have been through the document pretty carefully, and I feel—this is why my support for the government amendments is so strong—that a good balance has been struck in those amendments regarding the point that I have just made. There is a chance that the devolved assemblies can exercise those powers properly, but if we tip too many in then I feel we will be letting down the citizens of Wales and Scotland.

Lord Campbell of Pittenweem (Liberal Democrat)

Before the noble Earl sits down, I would like to pick up the point that was made to him at lunch. He will be aware that when the Scottish Parliament was established, a great deal of store was set by the form of the committee system, which it was hoped would be independent and would provide the kind of scrutiny that a second Chamber would afford. I do not think it is challengeable that the committee system has unfortunately become very political, to the extent that it is very difficult for Members on the committee to strike the kind of independence that we sometimes see in Select Committees in the other place and here. A consequence is that an effort to introduce a principle of “holding to account” has not been maintained in the way that it was in the beginning. If that continues, it makes the case for a second revising opportunity—I do not describe it as a Chamber—overwhelming.

Earl of Kinnoull (Crossbench)

I am very grateful to the noble Lord for making a jolly good point very well. At the lunch, that was hinted at, with rather less force. I wholly accept his reasoning and agree with what he said.

Lord Stevenson of Balmacara (Labour)

I join many noble Lords in congratulating the Government on the way they have handled this issue and reinforce what was said by the noble Lord, Lord Forsyth: I have not seen any such movement from any Government in my time here in terms of trying to reach out to the points being made and accommodate them. That is terrific; long may it last. The test will be whether the noble and learned Lord in fact withdraws his amendment before the end of tonight—but I trust him in this case.

I also think that the idea of a probing government amendment is pretty good. It is nice to know that there is an open mind on the other side, and no better way of showing it than saying: “We haven’t got the faintest idea here, but here’s something you might want to consider and discuss and we will listen hard and take away the best bits”. It is good in the sense that it builds trust and engages debate. We have had a terrific debate—possibly a little overlong, but it has been very interesting—and I am sure that many points will take us forward. I recognise that the idea of probing your own ideas may not work unless we can actually come up with some ideas, so it behoves us all to think very hard about the advice that we want to give to the noble and learned Lord and his colleagues.

What do we want? There are five things that I would like to see in revised amendments. We should be looking for an agreed amendment among the various interests around the House as much as possible. There has been enough evidence about where the central points are—we may differ on the nuances, but there is enough there. It would be really good if we could have some informal discussions and meetings before Report—and Third Reading, if it goes that far. By that stage, I hope that we will have a firmer view of what we are going to do in Northern Ireland. I agree that the situation is beyond the power of this House to do anything about, but it is a real gap when we are trying to address our longer-term constitutional position. If we have nothing to say, that says more about us than about the situation in Northern Ireland. I hope that that will be taken into account.

My first point is a negative. The Bill has raised debates, ideas and thoughts that are really important, but they are far too time-rich and need more discussion before they go into the Bill. The Bill is at heart limited to ensuring that we have a legal framework if and when we leave the EU—as the noble and learned Lord said, a fully functioning statute book. We are wrong to try to overload it with too much. I hope that, in offering our advice either privately or in meetings, we will focus on the minimum necessary to get the Bill on the statute book in a way that will be effective and efficient, and will achieve what we are trying to do.

On the other hand, the debate should not be curtailed by the question of what is and what is not in the Bill. We must accept—some noble Lords were ahead of me on this point—that transfers of this amount of responsibility to admittedly mature Parliaments and Assemblies will start a new chapter in the devolution story, and it would be remiss of this House if we did not think through some of the implications of that.

I have no particular remedies here, but it is inconceivable that the current arrangements, under which we determine through a Board of Trade how we conduct trade policy, can accommodate the new arrangements. They will have to be expanded and thought through again. We will have to think about how we deal with treaties and how our ongoing relationship with the EU and its regulatory and other official operations will continue in a devolved situation where trade responsibility and policy is at a level other than national. There may well be a set of rules that will accommodate that. They will not fit into this Bill, but they need to be considered as we go forward.

We have to think also much wider—certainly much wider than this idea that somehow this paves the way to independence for any or all of the parts of the United Kingdom. We have to think about the opportunities that will exist as these things are devolved in terms of such matters as what happens to state aid rules when they are changed. This will raise a lot of concern and interest much more widely than in this House. We will do ourselves a disservice if we do not take that into account as we think this through. For the moment, though, let us think very narrowly about this Bill.

At the heart of it, we want an agreement that, on the face of the Bill, the underlying principle in play is that everything is devolved unless it is reserved. We also want a clear understanding of why certain things are reserved. The noble and learned Lord, Lord Mackay of Clashfern, gave a very good example of one way into this argument by saying that it was a question of when powers were in consideration which applied in more than one geographical area; however, I put it to him and to the Ministers who are working on this that this is not quite the full story. If you look at the note on the common frameworks that accompanied the full list of them, it goes much deeper than that. These are principles, as I understand it and as I think the noble and learned Lord confirmed, that were agreed by the UK, Scottish and Welsh Governments at a meeting of the Joint Ministerial Committee in October 2017, so they are not in dispute. The principles make clear that,

“common frameworks will be established where they are necessary in order to: … enable the functioning of the UK internal market, while acknowledging policy divergence;”

—the coda about “acknowledging policy divergence” is really important, and we need to know more about that—

“ensure compliance with international obligations;”

—I think that is fairly clear—

“ensure the UK can negotiate, enter into and implement new trade agreements and international treaties;”

—I have already said I do not know whether that will necessarily be the only way into that debate—

“enable the management of common resources;”

and then two rather important issues that we have not touched on but that surely have to lie at the heart of this:

“administer and provide access to justice in cases with a cross-border element;”

and,

“safeguard the security of the UK”.

It has always been the case that national security is the primary concern of all governments, but surely that plus the geographical “bite”, as indicated by the noble and learned Lord, give us—together with the other points I have raised—a much richer context within which the decision to reserve an item can be placed. It is important that this is on the face of the Bill. That is the key issue. There must not be a sense that something has been hidden or held back. We have to be open and trust those who are concerned about this that this will be the way forward. I hope that when the Minister comes to respond, he will be able to confirm that this is an issue that he might look at with some sympathy, because I think it will be the key to it.

I also think, as suggested by the noble and learned Lord, Lord Wallace of Tankerness, and others, that we should see the 24 policy areas included as a Schedule to the Bill. The point made by my noble friend Lord McConnell of Glenscorrodale is very important: we are talking about those things that will have to be reserved for a reason. We should list them, and we should also understand the reasons why they are reserved.

There are two smaller points—in the sense that they are less full of implications; they are still very important—that I will tag on to the end of this. The noble and learned Lord, Lord Hope, raised a number of points that will need to be picked up and that we must not forget, because the change to the existing Clause 11 will affect other aspects of the area. He made that point well. There have also been calls from all around the House for a sunset clause, which I absolutely support. That is the right thing to do. If that all comes together, however—and I think we are confident that it is possible—what we are signing up to is an agreement to agree on process, but that agreement will be able to get the consent of the devolved Administrations. That combination is vital to the way forward, and I recommend it very strongly to the Ministers.

Finally, if we are going to avoid the veto problem, which I think is a real issue that we have not really bottomed out, we are going to need a dispute resolution mechanism. There is no doubt about that. You cannot just go into this hoping that it will somehow be all right on the night. We need to know what happens when one area, for whatever reason—whether it is a political reason or truly an issue of conscience—wants to put down a veto and hold out. I do not think there has been any dispute, but we have not said it enough: at the end of the day the UK Parliament has to have a backstop power to legislate in cases that meet the criteria for why things are reserved. I think we should keep saying that until it has become part of the fabric of our lives. It is not said enough, as the noble Lord, Lord Lang of Monkton, mentioned.

But we also need to achieve the consent that is necessary to establish the agreements that will underpin trust and support for this in the long run. I absolutely think that the amendment proposed by the noble and learned Lord, Lord Mackay, has something in that regard. I am grateful that the Minister has said that he will take this away; we need to workshop it—what we should have is a hackathon—in order to work out together where we might go with it.

Lord Keen of Elie (Conservative)

My Lords, are you sure? I do not think there is any need to rush this. We have covered a lot of ground and we have a lot more ground to cover now.

This amendment was put forward as a catalyst, and there has been a reaction. I leave others to judge whether it was contained or uncontained. As the noble Lord, Lord Stevenson, just observed, this is not the vehicle for major constitutional change in the United Kingdom. If we attempt to bolt that on to this Bill, it will sink without trace. Some may prefer that that should happen; nevertheless, that is not a sensible way forward. I am obliged to all those who have contributed to this debate, because it was our intention in putting forward this amendment to judge the mood of the Committee with regard to the quite radical change and approach that we have taken with this proposed amendment. It may be that I approach the matter with an open mind; it may be that I approach it with an empty mind; but at the end of the day we will have to make a decision that works for the whole of the United Kingdom.

I will take up one or two points. There is an appreciation—it may not be universal, but it is almost universal—of recognising the benefits of maintaining a single market in the United Kingdom. We already enjoy that single market by virtue of our membership of the EU, and it is something we want to retain after we leave the EU. In order to do that, there has to be agreement in principle as to the areas that underpin such a single market. The noble Lord, Lord Stevenson, alluded to the principles set out in the Joint Ministerial Committee minute of 16 October 2017. That is essentially what underpins our seeking agreement; there was consensus. That is what we need to do.

Ultimately, if we are to have a single market for the United Kingdom, we require a body to have jurisdiction over that single market. Again, as the noble Lord, Lord Stevenson, and others have acknowledged, that ultimately has to be the Parliament of the United Kingdom. There is no other way of addressing that issue. If we look to the issue of consent, rather than consultation, let us be clear that it is not a question of trust but of constitutional propriety. If we have a black and white, sharp-edged consent mechanism for the devolved Administrations, then we have the basis for what has been termed the veto problem. We have the situation in which, beyond the existing devolved competence, any one of these Assemblies could—it is at that level that it must be judged; not would, but could—proceed to legislate within its devolved competence in a manner that impacted upon those in another country within the United Kingdom, whether it be England, Wales, Scotland or Northern Ireland. We cannot go down that road. That would be a fundamental change in the devolved competence that we created in, and have indeed developed since, 1998.

It appears that we have, at times, merged two issues. The noble Lord, Lord Griffiths, apart from criticising Ministers for not getting on and doing any work on this, pointed out that there had to be a breathing space. Indeed, that point was developed by the noble Lord, Lord Hain, when he quoted the letter from my right honourable friend the Secretary of State for Wales. Just to put that into context—and if I may briefly go back to a point I made in an earlier part of the debate—the first stage of this process is to identify those competences coming back from the EU that will be required to operate a single market in the United Kingdom and to effectively ring-fence them on a temporary basis; thus the breathing space that the noble Lord, Lord Griffiths, referred to.

That is all that is involved in the first stage. That process has carried on in great detail since the principles were established last October. It has been the work of officials not only in Whitehall but in Edinburgh, Cardiff and Belfast. They have all come together to do what is termed in Civil Service-speak as “deep dives” into these matters. The product has now been published. It is the table that identifies 24 areas where it is considered there will have to be some temporary ring-fencing so that we can establish the next stage of the process for the single market—the framework agreements that will then form the basis for that single market.

Let us be clear: that is a separate stage. The ring-fencing is merely to hold those competences for the time required to put the framework agreements in place. We have agreed the principles on which the competences can be identified, and we have now carried out a process that identifies those competences. There is an element of disagreement about that, but only in two or three areas, so far as the Scottish Government are concerned. State aid is one of them. We regard it, for reasons I find fairly obvious, as a reserved competence, but they say it touches on a devolved competence. We will therefore have to address that, and potentially have a framework agreement in those areas as well. That is why there are a further 12 areas of competence that we are confident are in reserved areas, but which may be open to debate. None the less, there is a very substantial element of agreement on the ring- fencing.

Now let me go to the next stage. We then require the framework agreements. To the extent that those agreements will be implemented by primary legislation—it is anticipated that in many of the areas that will be the case—the primary legislation will be carried on in accordance with the constitutional conventions that we already have, and with the respect for the devolved settlement that we have always shown in the past. That includes the Sewel convention as now expressed in the Scotland Act 2016, which amended the Scotland Act 1998. It also includes those areas where, pursuant to DGN 10, such matters will touch upon the competence of Scottish Ministers.

That is where we seek the true element of consent—but ultimately, of course, if we cannot get agreement, we have the Sewel convention. Normally we proceed with the consent of the devolved assemblies, and that remains the position. That is the political understanding that underpins the devolved settlement, and has done for a very long time.

Can we just remove that dichotomy of consultation or consent? I know that within some Administrations, for reasons we do not have to explore, there is a determination to push for consent. Consent, as such, is constitutionally very difficult; I indulge in understatement when I say that. But there is still room for agreement, and the process overall should result in what somebody termed consensus—that is, a belief that we are all doing the same thing for the same reasons, with an expectation of the same result. That involves an understanding of what these frameworks are.

It has been suggested that the 24 areas of competence that require to be ring-fenced on a temporary basis should be expressed in a schedule to the Bill. I hear what is said about that, but whether it can practically be done in the context of the Bill may be another matter. As was observed, I believe by the noble Lord, Lord Stevenson, that may have to be expressed elsewhere. We can look at that, but in the first instance we have to understand what needs to be ring-fenced for the purposes of the framework agreements.

A sunset clause has been suggested, and I have already expressed a view about that. Clearly, we are listening to the idea that a sunset clause might run for five years. But the more we have gone on about this, the more we realise that what it all comes down to is two questions. One: can we have an appropriate forum in which to negotiate agreement with the devolved legislatures? Yes; that has been carried on in the joint ministerial committees. They have been criticised, but they have been successful, as can be seen by the agreement in principle in respect of these matters. Can we achieve that? The answer is yes.

Secondly, can we then express, in a manner that will satisfy the devolved Administrations, what the framework agreements will be? The answer to that is again yes because we will follow the normal and usual constitutional principles that involve embracing the Sewel convention in cases where primary legislation is required.

I hope that goes some way to reassure noble Lords that we are making progress here because underneath the concern about consent versus consultation there has been considerable movement. We not only have the principles that we will apply to the ring-fencing of competences but we will also have the means to bring forward framework agreements in a manner that will satisfy the devolved competence, as I say. It may be that it will go beyond the 24 areas already identified but work can continue on that matter. What is ultimately of importance is that we retain the means for uniformity of regulation in those critical areas that touch on the principles enunciated in October 2017. That is what has to be achieved. There may be more than one road but ultimately they all lead to Rome, and that is where we want to be at the end of the day, so with that—

Lord Newby (Liberal Democrat)

They go to Brussels.

Lord Keen of Elie (Conservative)

I reassure the noble Lord, Lord Newby, that the roads do not go to Brussels any more. However, he is welcome to go and hack a path there, if he wishes. With that, I seek to withdraw the government amendment.

Amendment 302B (to Amendment 302A) withdrawn.

Amendments 302C to 302G (to Amendment 302A) not moved.

Amendment 302A withdrawn.

Amendments 303 and 304 not moved.

Amendment 304A had been withdrawn from the Marshalled List.

House resumed.

House adjourned at 9.43 pm.