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.
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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?
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.