My Lords, we come to the conclusion of this debate on Clause 11. Once again, it behoves me, I feel, to express appreciation for the very hard work and the deep diving that has been done by all those who have produced the state that we now find ourselves in. In presenting my concluding remarks, I want to set out one or two reasons why the party I belong to here, the Labour Party, has been more than happy to give its assent to the intergovernmental agreement—that is, the statement that culminates from the various strands of thinking that have gone into the making of it. For someone who is new to political exercise, and who was always taught that politics is the art of the possible, this seems to represent as good an illustration of that as I could wish to find.
I should like to set out why we on these Benches support the government amendments now. There are at least five reasons, and I will be very quick about them because it is a late hour already. As the Welsh Labour Government have recognised, so we want to confirm that this package represents a solution that protects devolution, which is very important, as fully as possible as we grapple with the myriad consequences of Brexit. First, as we see with the amendments in this group, it confirms the inversion of the Clause 11 brought before us by the Government in Committee. The original proposal would have retained all returning EU powers over devolved policy areas at Westminster and allowed only Ministers of the Crown to release them to the devolved institutions when they chose to an extent, and to a timescale, that they alone determined. That has been reversed. All powers over devolved policy areas, except those in areas where it is agreed that UK frameworks are needed, will be held in Cardiff
and Edinburgh and, at the appropriate time, we hope and trust, in Belfast. When the EU law restriction ends, that means the devolved institutions will be able to exercise them without the current requirements to operate within those EU frameworks. In these areas, devolved competence will increase. This model is therefore wholly compatible with the reserved powers model embedded in the Scotland Act and the Wales Act 2017, whereby everything is devolved except things specifically retained at Westminster.
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Secondly, the agreement sets out a collaborative process between the Governments to identify where frameworks are needed and to develop draft regulations that specify which EU powers will be frozen. Moreover, it applies the Sewel convention. Reference has been made to all these matters, so forgive me for repeating them while trying to bring them together now. On secondary legislation, the National Assembly and the Scottish Parliament will be asked for their consent, and the United Kingdom Government make the same commitment not to normally proceed without such consent, as applies to primary legislation that touches on devolved policies.
Indeed, it contains further safeguards compared to Sewel, because if the United Kingdom Government want to press on with making regulations in the absence of consent, they have to present not just their views but those of devolved Ministers as to why their legislature has refused consent. This puts the United Kingdom Parliament in a position of genuinely deciding on the facts, not just on the recommendations of the Westminster Government.
I feel led to break off this list for just a moment to go into parenthetical mode to comment on two things that people north of the border have tried to say about the agreement. The first is that all that the Government need to proceed without further explanation is a consent decision, referred to in the amendments. I invite the Minister to confirm that this is absolutely not the case. If any of the legislatures do not give consent, Ministers of the Crown will have to set out both their reasoning for wishing to press ahead and the arguments of devolved Ministers. The purpose of the amendment on the consent decision is simply to enable regulations to be put before Parliament before 40 days have elapsed if all the devolved legislatures have given their views more quickly.
The second is the view that where consent is denied, it is the United Kingdom which will get to decide. That is hugely misleading, as in those circumstances, as we understand it, it will be for both Houses of Parliament to decide whether to approve the draft regulations, taking into account both the arguments from Ministers of the Crown and those from the devolved Ministers. This House has a strong record of support for devolution, and it is hard to envisage your Lordships’ House supporting future instruments that potentially undermine it.
Let me return to the piste that I was on. I have sat in a seminar room with the noble and learned Lord, Lord Hope of Craighead, and now understand a jolly sight more about the law than I did. It was interesting
to hear the way that he and the noble and learned Lord, Lord Mackay of Clashfern, dissected the proposals that came from Scotland to omit Clause 11 and the whole business about type A and type C—I made a note of it and will look it up—and whether Orders in Council made for a specific purpose under the 1998 Act can readily, easily and naturally be applied in these instances. I shall do no more than congratulate the noble and learned Lord, Lord Hope, who wanted to open up consideration of the Scottish aspects of the agreement, and has certainly succeeded. I have listened carefully to the debate, and a lot of Scottish voices have spoken. I hope that the way in which the issues, as they relate to Scotland, have been discussed will be studied well by those north of the border. As others have said, we can only hope that there is even now hope—no, not “Hope”, “hope”—of a revision or development of thinking there.
The intergovernmental agreement gives an unequivocal guarantee that UK Ministers will not bring before Parliament any legislation relating to England to make changes to retained EU law in areas subject to regulations. This effectively establishes a level playing field across the UK, with the effect of the regulations being to retain the current EU frameworks in operation across the whole UK until new frameworks are negotiated and agreed. This commitment will also provide a strong incentive to the UK Government to agree frameworks long before the five-year maximum term, to which ample reference has been made, provided by the regulations, because otherwise they cannot make changes—for example, to reform agricultural policy. It is worth noting here that, in current circumstances, although the duty not to legislate in contradiction of EU law applies to all parts of the UK, it is also asymmetric: in Scotland and Wales it is a requirement of the devolution legislation while, in England, it is enforced by the EU treaties.
These amendments put into the Bill sunset clauses—again, there has been a good discussion of that issue. All powers in devolved areas currently held by the EU will be exercised in Holyrood and Cardiff Bay. Any restrictions on competence, therefore, are temporary. Despite the distance travelled in recent months—we can only rejoice at that—we can express the hope for two things in the minutes, days and weeks that lie ahead. First, I hope the Minister will confirm that the door remains open to the Scottish Government. Given the progress made—and the intergovernmental agreement when it was formed seemed to have the support of both the Welsh and Scottish Governments, a situation that has regrettably changed subsequently—it would be a tremendous shame if the Government closed off the possibility of further talks taking place or limited changes being brought forward at Third Reading. Constitutionally, in terms of the conventions of this House, I do not know how that could be done—finding wriggle room to achieve something of significance that might take the argument further, even at this late stage.
Secondly, assuming that the Minister is happy to keep the door open, as I hope he is, I urge the Scottish Government to continue engaging with a view to joining the intergovernmental agreement and providing legislative consent for this Bill. The Labour Party is
the party of devolution; we accept that this amendment is a huge improvement on where we started and sincerely hope that games are not being played with the devolution settlement by the Scottish Government.
I note that the noble and learned Lord, Lord Mackay, in presenting his amendment in Committee, and in his earlier contribution, highlighted the necessity for Parliament to act as a backstop if, despite collaborative processes designed to lead to agreement between the UK and the devolved Governments, discussions ended in deadlock. This contention, which commanded widespread support across the House in Committee, is one at the heart of our current constitutional settlement. We rejoice at the place we have reached, which is honest, open and takes things forward. In the spirit of wanting a legal system that is functioning and well the day after Brexit, it is a noteworthy contribution to that progress.