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.