My Lords, I thank noble Lords for their contributions in this debate. We may be repeating some of the ground that we covered at Report, but these are important matters and they deserve full attention. I appreciate that noble Lords want to consider the points made during the debates on the Motions in the Scottish Parliament and the National Assembly for Wales yesterday.
I understand the intention behind the amendment of the noble Lord, Lord Thomas, but I do not accept that the amendment adds anything that is not already achieved by the Bill and by the intergovernmental agreement. This amendment pertains only to Wales, although I appreciate the point made by the noble and learned Lord, Lord Wallace, as to the position in Scotland. It seeks to remedy what is essentially already
a firm political commitment that we have made, in line with the intergovernmental agreement, that we will not normally put Clause 15 regulations before this Parliament without the consent of the National Assembly for Wales.
I would put it to the noble and learned Lord that the sincerity of this commitment—and the process and agreement that underpin it—is, it would appear, sufficient for the Welsh Government to agree to these provisions, and it is sufficient for the National Assembly for Wales to agree to these provisions, as it did yesterday. There must be a genuine cause for action in the interests of the whole of the United Kingdom if the UK Government ask the UK Parliament to approve regulations without consent from the devolved legislatures. I note what my noble and learned friend Lord Mackay of Clashfern said as to the legal position, but of course it goes beyond that. We are concerned to ensure that moves that have a UK-wide impact have the consent of the devolved Administrations.
The intergovernmental agreement that we have made with the Welsh Government makes this clear. The noble Lord, Lord Thomas, referred to paragraph 6 of that agreement which states that we, the UK Government, will not normally ask Parliament to approve draft regulations in the absence of a devolved legislature’s consent. It is also why we will be under a duty to fully explain any such decision to Parliament and to provide the reasons given by the devolved Administrations for why consent has not been given, so that in considering this matter Parliament will be able to take an informed decision on what is right for the United Kingdom as a whole, based on full information. Ultimately, as we have debated fully in this House, it is for the UK Parliament to decide whether to proceed in putting a temporary freeze on the common approaches we have now under EU law. This amendment, while well intentioned, would undermine that. It risks making it a decision for the courts as to whether that question can be put to Parliament. Moreover, the noble Lord himself observed that where you have the issue of what is normal or not normal in the actions of a Minister, it may be amenable to judicial review if he proceeds without the appropriate consent. It would introduce uncertainty because in that context there are no clear grounds on which the courts can consider whether the requirement set out in the intergovernmental agreement has been met.
I am happy to repeat the commitment set out in the noble Lord’s amendment and in paragraph 6 of the intergovernmental agreement. The implementation of that agreement will result in the UK Parliament not normally being asked to approve Clause 15 regulations without the consent of the devolved legislatures. The UK Government have committed to making regulations through a collaborative process. That puts a similar commitment on the Welsh Government that they will not unreasonably withhold recommendations of consent. These are political commitments which apply to both of our Governments so that the intergovernmental agreement carries greater weight. For the reasons that I have given, I would suggest that there is nothing to be gained, and indeed something to be lost, by putting those words on the face of the Bill. In these circumstances,
I invite the noble Lord to withdraw his amendment. Perhaps I may come on to the legislative consent Motion process of yesterday in a moment because he raised questions directly pertinent to that point.
In relation to the amendment spoken to by the noble and learned Lord, Lord Wallace, I recognise that he raised this point during Report and that he is doing so again through his amendment today. I am grateful for this opportunity to clarify these provisions on the record. The noble and learned Lord has made an important case for why we should seek to provide the utmost legal clarity. Given the extent of the Clause 15 changes, this sort of fine detail can easily be lost, but it is no less important that these provisions should deliver the right outcomes. As I confirmed in response to the noble Lord at Report, the reference to principles in sub-paragraph (b) of the reporting requirement is indeed intended to cover those principles that are the subject of his amendment; that is, those principles which were agreed between the UK Government and the devolved Administrations at the Joint Ministerial Committee on EU Negotiations meeting on 16 October 2017 and published in the communiqué of that committee, to which the noble Lord referred. But I ought to be clear that while this reference covers the same ground as the amendment, the current wording also includes any revisions agreed to those principles and to new principles on the same subject that are put in place to supplement them over time.
I am sure that noble Lords will agree that it is right that as the work on the frameworks progresses—and it continues to progress—and as circumstances may change, we, the UK Government, and the devolved Administrations should continue to review the principles to ensure that they remain fit for purpose. I do not believe that it is the noble and learned Lord’s intention that the duty to report on any agreed revisions to the principles should be lifted from the Government or that we should be under a duty to report on the principles as drafted only in October 2017, even where these may have subsequently been revised or updated; but that, on one view, would be the effect of his amendment. In these circumstances, I am grateful for the opportunity to clarify what is covered by the reference to the principles, but again for the reasons given, I invite the noble and learned Lord not to press his amendment.
6.45 pm
On the question of where we are with regard to an LCM, the background which has been described clearly by my noble and learned friend Lord Mackay of Clashfern, I note that the Prime Minister and the Chancellor of the Duchy of Lancaster both answered questions on this earlier today in the other place. Yesterday, the National Assembly for Wales granted its consent to the Bill, as recommended by the Welsh Government, and of course we welcome that. It represents significant progress and a sincere willingness to work together to find the right solution for the United Kingdom as a whole and for its constituent nations. It also recognises that this is not about taking away devolved powers. As Mark Drakeford said to the Assembly yesterday, the effect is,
“not to change the rules but to ensure that they continue as they are today, and to continue until a new rulebook can be agreed”.
I notice the point made by the noble Lord, Lord Foulkes, about the background circumstances to us finding no agreement from the Scottish Government and the Scottish Parliament. I am disappointed that the Scottish Parliament has voted not to give its consent at this time, but I emphasise in response to points made by noble Lords that so far as we are concerned, the door remains open for the Scottish Government to reconsider their position. However, communities and businesses across the United Kingdom need certainty. They need to know how the law will apply to them and that after exit day, divergence in those laws will not create barriers to living and doing business across the United Kingdom. We have to maintain that internal market. I would urge the Scottish Government to continue working with us to deliver that certainty for the benefit of those in Scotland, the benefit of those in England, the benefit of those in Wales, the benefit of those in Northern Ireland—that is, for the benefit of the entire United Kingdom, because this is a United Kingdom issue being addressed by the United Kingdom Parliament, as needs to be done.
I would like to put on the record as well that this Government are committed to acting in the spirit of the intergovernmental agreement which has now been published, and I should say too that we are committed to acting with all the devolved Administrations so far as that agreement is concerned, not only those which have given their consent. We will continue to respect the devolution settlements and we will seek the consent of the devolved Administrations, as we set out in the intergovernmental agreement, with regard to matters as we go forward, including the matter of the amendments adopted by noble Lords during the Report stage of this Bill. With that, I invite the noble Lord to consider withdrawing his amendment.