My Lords, I thank noble Lords who participated in the discussion on these amendments. In opening, let me say that I fully understand the absence of my noble friend Lord Blencathra. I am very grateful for his careful consideration of the Bill and that of the Delegated Powers and Regulatory Reform Committee, which he chairs.
I apologise to the noble Lord, Lord Tyler. I knew that my noble friend Lord Blencathra was not going to be here and I tried in vain to find out who would be his substitute so that I could have had a word with them earlier. However, I am very happy to meet the noble Lord afterwards at any convenient juncture to discuss this. In fact, I had heard at a previous stage that the substitute would be the noble Lord, Lord Thomas of Gresford, so I encourage him to ignore the several messages he has received from me.
I will respond first to the general points made and then pick up some of the specifics. I want to make it clear that the amendment that the Government have tabled to change how the Bill deals with devolved competence would, as part of that change, remove the Order in Council procedure from Clause 11 and Schedule 3. In the light of this, my noble friend’s amendments would no longer be necessary on that specific point. However, I will address the substantive point that my noble friend Lord Blencathra sought to make, and which has been made by the noble Lord, Lord Tyler, in his stead, on the modification of the devolution statutes—namely, the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006—by secondary legislation.
I understand the point made by the noble Lord, Lord Tyler: that the Order in Council powers contained in Clause 11 and Schedule 3 are unsatisfactory substitutes of those contained in Section 30 of the Scotland Act and Section 109 of the Government of Wales Act. I accept that there is merit in my noble friend’s argument that there may be a difference in the function of these powers and that we may wish to consider the need for a different procedure. As I said, I am very happy to discuss that point with my noble friend Lord Blencathra, the noble Lord, Lord Tyler, and others.
I do not agree that it necessarily follows that secondary legislation can never be used to modify devolved competence or the devolution statutes more widely, and that this should only ever be achieved through primary legislation. For example, we used the procedure in 2013 to amend the Scotland Act 1998, and we used an order in 2007 to amend the Government of Wales Act 2006. There are previous examples and, more recently, we saw the Treaty of Lisbon (Changes in Terminology) Order made under Section 2(2) of the European Communities Act. It has sometimes been a convenient way to proceed, by consent of the devolved Administrations.
I am grateful to the noble Baroness, Lady Hayter, for raising the point that she did. We have been discussing these issues with the devolved Administrations and continue to do so in a perfectly constructive way. I have to say that there is no agreement yet, but we are looking at how this should be used going forward.
I will pick up some of the particular points made. I appreciate that the noble Lord, Lord Tyler, was making general points, but, as I say, the specific issue mentioned will not arise in the light of the amendments we have put down. However, I appreciate that it was, as he said, the unanimous view of the Delegated Powers and Regulatory Reform Committee. I thank the committee for its third report and constructive and dispassionate work on these issues. I served on that committee for a time and I know it looks at these issues constructively.
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I thank the noble Lord, Lord Lisvane, for lending his heft to the argument. I know he has done a great deal of work to find a way through these difficult issues, as has my noble and learned friend Lord Mackay of Clashfern. I thank him for all the work he has done in this area, both in the Chamber and, unseen, away
from it. I would be pleased to take his views on board and discuss this further with him. I am happy to engage on some of the general points.
I thank the noble Lord, Lord Morgan, who has been firm and passionate about devolution. I agree that Wales has acquired additional powers. They are reserved powers which, under the Act, will come into force on 1 April. However, the noble Lord, Lord Elystan-Morgan is right about the extensive list of reserved powers and I thank him for giving examples. Some of them are somewhat blood curdling but I take his point. I hope this is not high-handed and colonial; it is certainly not the intention. I would not say that much of it is mundane but it is done on a consensual and agreed basis in the way that most of devolution legislation proceeds these days. I take seriously the point about making sure that we get this right and I am willing to engage in further discussion.
I thank my noble friend Lord Cormack. He is right that this is more of a devolution issue than a Brexit issue; I appreciate that point. I am aware that there are sensitivities in relation to Wales and Northern Ireland—and in Scotland, by extension—and, as I said, I will be happy to engage constructively on these points.
I thank noble Lords for a useful discussion on this issue but, in the light of the undertakings I have given about the specific and the generality, I appeal to the noble Lord, Lord Tyler, to withdraw the amendment at this stage.