My Lords, this has been a shorter debate than the previous one and I will try to honour the Minister’s strictures earlier in the evening and limit my remarks to the Bill and to the issue before us, rather than wander into a premature debate on Clause 11 at this stage. At Second Reading, right at the beginning, while our attention was still good, the noble Baroness, Lady Evans, who introduced the debate, said that it was to be guided by two key principles, the first being the need for a functioning statute book on exit. I pause there to suggest that what I hear from Cardiff and Edinburgh is that there, the devolved Governments too want a functioning statute book the day after exit, which is why we need some resolution of these matters, difficult as they may be. Secondly, she said there were to be,
“no new barriers to living in and doing business across the UK”.
We have no difficulty there. She went on to say:
“We will shortly be publishing our initial framework analysis”.
If the noble Lord, Lord Forsyth, has difficulty with the word “normal”, I promise him that I have difficulty with the word “shortly”, especially since, on 30 January, “shortly” suggested to me that we would have something before us now, but we have not. As the noble Lord, Lord Thomas, said, perhaps the amendment is born of frustration. All that time that went by without any consultation at all that could have produced something that we could be looking at leads us to want to put in a caveat that if what has been promised does not materialise, it is serious enough for us to feel that we have to offer something quite drastic to shake people to their senses. It is in that spirit, I think especially at Second Reading, that we must look at this amendment.
The noble Baroness said:
“Noble Lords will be aware of the Government’s commitment to bring forward amendments to Clause 11”.
Those are her words, not mine. She said:
“This is a complex area”—
she would agree with the noble Lord, Lord Forsyth—
“that we need to get right, and I hope these amendments will put us on the best possible footing to achieve legislative consent”—
her words, which we echo, of course, in the amendment we are looking at—
“which remains our overarching objective”.—[Official Report, 30/1/18; cols. 1374-75.]
When my noble friend Lady Smith rose to reply to that opening speech, she agreed with those objectives without hesitation and promised that from these Benches we would want to co-operate with the Bill in order to get those agreements in place in time. But where are the amendments? How can we proceed? When will promises be fulfilled? Is it not frustrating—and it is at several stages that I have found this to be happening—that here we are, at this hour of the night, debating this matter, when tomorrow the Joint Ministerial Committee will be meeting? Would it not be lovely if it had met yesterday and then perhaps we could have withdrawn the amendment? But it must stay there until we have a bit more satisfaction than we do.
10.15 pm
The Institute of Welsh Affairs made its own comment, saying that,
“in its current form, this Bill fails to respect the power already granted to the elected governments in Scotland and Wales, and to respect the democratic legislatures in Northern Ireland, Wales and Scotland”.
We are all sorry that this debate takes place in a situation where it looks as if we are going to have to make decisions on behalf of Northern Ireland that the Northern Ireland Assembly has not been involved in making for itself. We must all regret that. Cardiff and Edinburgh must do the speaking for the moment. But there is the Institute of Welsh Affairs talking about the lack of respect for the democratic Governments that have been set up for. For 20 years these Governments have been doing their business in areas where now we are told the United Kingdom Government will take things to themselves before deciding how the division of spoils will take place. That just does not seem right. When my two sons were around 20, if I, as the United Kingdom Government, had told them to go back to wearing short trousers, I know what they would have said to me. They would have tabled an amendment exactly like the one we are considering now.
Then the House of Lords Select Committee on the Constitution added its voice, saying:
“The primary concern … is that the devolution settlements must not be undermined”.
They are being undermined. The noble Lord, Lord Forsyth, shakes his head. I have seen heads nodding in Cardiff and Edinburgh—not just Scottish National Party heads either. The committee went on:
“While the Government has clarified aspects of how joint responsibility will operate, there remains significant uncertainty”—
if there is one thing I would want to say about all that we have been discussing today, it is the fact that uncertainty, like a bog, sucks us down into itself and is at the heart of the terrain we are trying to explore together—
“as to how and when these joint powers will be exercised. We are left only with assurances from the Government that it hopes to identify quickly … which powers can be transferred”;
that is quickly, not shortly. Assurances from the Government are like the grin on the face of the Cheshire Cat and we must be careful that we do not simply bow to auntie—big government—but respect the adulthood, maturity and readiness to do business in the respective regions and countries of these islands, in a better way than we have done thus far.
The Bar Council weighed in, saying that,
“there is force in the concerns expressed by the First Ministers”—
to which the noble Lord, Lord Thomas, alluded—
“and that Parliament should consider carefully whether an appropriate balance is struck by the current proposals or whether it would not be more appropriate, and more consistent with the devolved legislation, to accept the proposed amendments”.
Members of the Bar Council are not Members of the House of Lords so they probably do not count.
We come to the last strand of my development of an argument that is on the point, I hope the Minister will agree—he is smiling at me. That is nice; it is the first time I have seen him smiling all day, actually.
In its report, the Delegated Powers Committee said the following. We would not go this far, but it is worth listening to one of its summary proposals:
“The Government should bring forward separate Bills to confer on the devolved institutions competences repatriated”,
from the European Union. It also judges that:
“The Order in Council powers in clause 11 and Schedule 3 are inappropriate and should be removed”.
As has been alluded to by previous speakers, if we do not have either amendments or framework agreements, or evidence of the fruits of conversation, by the time scheduled for the discussion of Clause 11, I suggest that that discussion should not be taken in the place presently allotted to it but be delayed. When Clause 11 comes before us, I do not want to be saying, “The Joint Ministerial Council is meeting tomorrow”. I hope the Minister will recognise that this is not an inappropriate request in the circumstances. With that, I shall simply wait, as will we all before we go to our beds and our Horlicks, for the Minister’s response.