My Lords, I have added my name to Amendments 90, 130 and 148. I am most grateful to my noble and learned friend Lord Hope for introducing the amendments in meticulous detail.
I heard the Minister speak about a correcting power in relation to Clause 9 but unfortunately I did not hear the words “legislative consent”. In the Government of Wales Act there is a principle of legislative consent from the Assembly, and that is important when powers change and when legislation comes from Westminster with a direct effect on Wales. I am no lawyer and I hesitate to speak following two such knowledgeable lawyers as my noble and learned friend Lord Hope and the noble and learned Lord, Lord Morris, and the very informed opinion of the noble Lord, Lord Wigley, but I believe that the volume of amendments tabled on this issue and the strength of feeling show both the deficiencies in the Bill as drafted and the deep unease that the Government’s efforts to appease the concerns appear to have been left until the 11th hour. That is a tremendous shame for the operation of the whole of the UK going forward.
As it stands, it seems that the passing of this Bill could mean that Brexit becomes a conduit through which legislative competence is repatriated slowly— as the thaw occurs, after time—from the devolved Governments in Wales and Scotland back to Westminster. In the words of the First Minister of Wales and the First Minister of Scotland, this Bill appears to be a “naked power grab”. It does not return powers from the EU back to the devolved Administrations, as promised; it returns them solely to the Government and Parliament, and freezes them, and it imposes new restrictions on the Scottish Parliament and the National Assembly for Wales.
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I am most grateful to the Minister for the time he spent with me recently in a one-to-one meeting at which he allowed me to express my concerns. I would have hoped that the Clause 7 changes would allay those concerns but I remain to be convinced by what he says in reply. Clause 7 provides Ministers with the
power to use statutory instruments where they consider it appropriate to amend legislation in which deficiencies are apparent. These powers extend to legislation which is within the competence of the devolved Administrations and even legislation which has not been passed by the devolved legislatures, yet with no involvement from anyone within those institutions.
As the Parliamentary Under-Secretary of State for Exiting the European Union stated in the House of Commons on 6 December, a number of references in the provisions of the devolution statutes will not make sense once we leave the EU and will need correcting to ensure that our statute book continues to function. Therefore, I ask the Minister to define what the Government view as a deficiency or how far an appropriate measure would extend beyond reassurances that such powers would be used only to correct technical changes. Given the wide interpretability of the Bill’s terminology and the exclusive unchecked right to amend legislation promised by the powers that the Bill appears to embed within it, there are real fears that the Government could exploit these powers to amend policies rather than merely to correct technicalities as promised.
I note that a similar provision already exists for Northern Ireland, and the omission of the other devolved Administrations is therefore all the more confusing. If the Government are sincere in their assertion that they intend to use the powers in the Bill merely to correct technicalities, why would they restrict such a proposal or consider it unnecessary? Amendment 90 seeks to ensure that the Government act in line with the terms of the Scotland Act 1998 and the Government of Wales Act 2006. This would mean that if they attempted to amend powers, they would have to seek the consent of the respective devolved Administrations before being able to proceed. The Government’s reluctance to date on this principle has unfortunately fuelled fears that they are not being transparent in their stated intentions for the powers supplied by Clause 7, even when it has corrections inserted. To correct deficiencies, the Government should start with legislation over which they have retained powers.
I turn to Clause 8, where the same problem is evident in relation to international obligations arising from the Bill. As things stand, the Government could amend legislation which underpins the settlements in Scotland and Wales or interfere in areas of devolved competence. Amendment 130 would oblige the Government to follow the consent procedure that we proposed in relation to Clause 7. I am afraid that the assurances we have had to date—that the Government will pursue powers only to correct technicalities rather than substantively to alter devolved policy—are inadequate. We need concrete examples of the kinds of breaches of our international obligations that could be prevented or remedied by UK legislation without the consent of the devolved Administrations. Although it is true that there are existing powers to ensure that the devolved Administrations cannot obstruct the implementation of international agreements, it is quite a different thing for UK Ministers to make changes to devolved law to achieve their aims. It almost feels like the difference between making sure a driver understands the Highway Code and seizing the steering wheel from the passenger seat.
The final amendment in this group that I will speak to is Amendment 148 in Clause 9, which covers the implementation of any withdrawal agreement with the EU. Clause 9 as currently drafted gives Ministers unchecked powers to amend devolved legislation. Both the Welsh and Scottish Governments published legislative consent memoranda in September expressing profound concerns about this part of the Bill. The Welsh legislative consent memorandum stated:
“Those powers could … be used to amend the Government of Wales Act 2006, without any requirement for the Assembly’s approval”.
The Scottish equivalent said that,
“UK Ministers would have the sole power to make corrections to law in devolved areas”.
Unfortunately, the Government’s reassurances have not allayed these concerns to date.
We have been told that the Bill will freeze in UK law EU legislation to date and that the devolved competencies will remain unchanged. But what happens when the freeze begins to thaw and a range of conflicts arise over where responsibility lies because things have moved on? Let me remind the Committee that we have already seen such difficulties. Who, for example, is responsible for dealing with asbestos in schools? That remains unresolved. The plastic bag levy in Wales was implemented with imaginative thinking by the Welsh Government. We cannot pretend that devolution has been free of constitutional conflict. It will re-emerge.
I know the deep dives that have taken place in, if I recall correctly, 27 areas, and the Minister said that in 23 areas these have been completed and are revealing some details, which may be very small, that need resolution. The current round of meetings to discuss and agree frameworks, together with the existing intergovernmental Joint Ministerial Committee process, is important but not sufficient to overcome such hurdles. As the Lords Constitution Committee argued,
“executive assurances about how statutory powers will be exercised are no firm basis on which to legislate. Constitutionally speaking, they are no proper substitute for clarity in the statutory provision”.
It is to achieve clarity for the future that these amendments are crucial. I fail to understand why the framework we already have—of legislative consent—cannot simply be carried over and applied across the piece.