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.