My Lords, I will speak to Amendment 20 to Schedule 6 in the name of my noble and learned friend Lord Falconer on the matter of proper consultation, which it would require. As a former Secretary of State for Wales and still living here, I am aware that no legislative consent Motion is required for this Brexit-consequential Bill and that the Welsh Government appear to seem at least content with it. But, as my noble friend Lady Kennedy highlighted, there are real concerns about the delegated powers to join future private international law agreements.
I understand that the UK Government have provided assurances to the devolved Administrations that, first, there are not any agreements in view at the moment that touch on matters within devolved competences and that, secondly, if any such agreement emerges the UK Government will guarantee to consult the Welsh Government, and presumably the Northern Ireland Executive and the Scottish Government. I would be grateful if the Minister specifically confirms this when he replies. I ask because, for nearly four years, Conservative Governments have had a sorry record of failing properly to enable devolved Governments to participate in framing a series of European Union withdrawal and Brexit-related Bills. Consequently, UK Ministers were regularly accused, as noble Lords might recall, of a power grab—of using the transfer of functions from Brussels back to the UK to recover to Whitehall previously devolved powers.
The First Ministers of Wales and Scotland both repeatedly complained about a failure of Whitehall Ministers to consult. Indeed, I have argued exactly that in your Lordships’ House on several occasions. There were also refusals to grant legislative consent Motions in Wales and Scotland until a satisfactory series of outcomes were belatedly conceded by the UK Government. This is not a good advertisement for the unity of the UK when it is under greater threat than ever.
I will put on record some specific examples of a failure to build consent, as Amendment 20 implies must be the case, because these must not be repeated. The 2017 EU withdrawal Bill, as originally drafted, represented a major assault on devolved competence. It was only as a result of very strong cross-party support in your Lordships’ House that the Government were forced to agree to a default position that all powers vested in the EU on matters of devolved competence would revert to the devolved institutions when we left the EU. This has led to a more consensual approach to the work of developing common frameworks where all four Governments agree that there needs to be a shared understanding and approach across the UK.
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Whereas, under Theresa’s May’s Government, earlier drafts of the withdrawal agreement Bill were shared with the devolved Administrations, the version introduced after the December 2019 election was put forward without meaningful discussion and without proper safeguards for devolved competence. That was why,
for the first time ever, the Senedd—the recently designated name for the Welsh parliament—refused legislative consent, along with the Scottish and Northern Ireland legislatures.
The current Trade Bill was another product of Tory Whitehall unilateralism, and the Welsh Government, for example, have had to work extremely hard to ensure that the Trade Bill contains sufficient safeguards for their requirements. So far these safeguards have only really been given in the form of Dispatch Box commitments by Ministers, rather than formal textual agreements. From the point of view of the Senedd, the fact that the new Trade Bill introduced after the last election removes any oversight role for Parliament has had the side-effect of removing any rights to being consulted on the part of the devolved legislatures. That is unacceptable.
There was also inadequate consultation on the agreement with Spain on reciprocal voting rights in local elections, and elections to the Senedd are now a devolved competence to Wales despite that fact. There was a failure to consult. While the current Welsh Government favour an expansive approach to voting rights for non-UK nationals, this agreement effectively constrains the exercise of this competence by future Senedds that might take a different and less inclusive view of the place of migrants in our society. Understandably, the Welsh Government cannot agree that international agreements which they have not been involved in negotiating should constrict the Senedd’s rights. There were similar arguments about the Healthcare (International Arrangements) Bill, where only after a hard-fought battle and in the context of the 2017-19 hung Parliament were the Welsh Government able to get the UK Government to agree an acceptable way forward.
It comes as no surprise that I view the Bill with some scepticism on the principle of building consent. I therefore ask the Minister to give a copper-bottomed guarantee that full consultation will take place well in advance over any issues that might arise from this legislation that fall within a devolved competence in either Wales, Northern Ireland or Scotland.