My Lords, today’s debate overlaps to some extent with tomorrow’s, and some of my observations, while constitutional and on devolution affairs, also affect our exiting the European Union. My first point is on the cost of our divorce from the EU. Many large and varied figures have been bandied about. Will the Government demand full transparency of all EU assets and expenditure, given that the EU accounts have not been given the all-clear for 19 years? While the Court of Auditors found them “reliable”, whatever that may mean, they were also materially affected by errors, for example, to the tune of €109 billion out of €117 billion spent in 2014. These errors may be only a small part of the problem, but the point is the general application of full transparency. We have an old legal adage: “He who seeks equity must come with clean hands”.
Secondly, I seek an assurance that when the responsibility for a subject is repatriated to the UK on exiting, there will be no attempt to claw it back by Westminster. Agriculture, and the necessary finance to replace the funding from Brussels with that from Westminster, is one example that I have in mind. A subject, once devolved, remains devolved and cannot be clawed back.
Thirdly, under the Sewel convention, the Westminster Government do not normally legislate on devolved matters without getting legislative consent from the relevant devolved legislatures. This is reflected in the Scotland Act 2016 and the Wales Act 2017. According to the Supreme Court in Miller, the convention is political and does not give rise to obligations. The Prime Minister said in the Commons on 21 June:
“There is a possibility that a legislative consent motion may be required in the Scottish Parliament”.—[Official Report, Commons, 21/6/17; col. 62.]
The Leader of the Commons kicked that into touch on 22 June, when she said that a decision will be taken on whether a legislative consent Motion is needed at that point.
If I heard correctly, the Minister said today that legislative consent Motions will be necessary, where required. If I am right, could that be confirmed? I would be grateful for confirmation of what I thought I heard today. If I am right, we have moved substantially forward in recent days.
My fourth and last point concerns the triggering of another general election. Brenda from Bristol would be aghast that I am even mentioning it. The Times was good enough to publish last week my views on the law regarding any request for a second Dissolution. As a matter of history, the then leader of the Opposition asked me in 1992 about the position of a Prime Minister who had failed to obtain a Commons majority in a general election requesting a second Dissolution. I consulted widely eminent constitutional lawyers, such as Sir William Wade and Sir David Williams, and we believed that such a request then would be improper, as it would,
“smack of an attempt to get a recount of the electorate’s first decision”.
The machinery of a request under the royal prerogative has now been superseded by the Fixed-term Parliaments Act 2011. In April this year, the Prime Minister moved under Section 2(2) of that Act:
“That there shall be an early parliamentary general election”,
and got the required majority for a Dissolution, the result of that Division being 522 to 13. Parliament cannot now otherwise be dissolved.
As we know, in the election, the Prime Minister failed to get the Commons majority that she expected. In the Act, there is nothing to prevent the Prime Minister trying to get the House of Commons to pass a Motion for yet another Dissolution. This is an unintended consequence of the Act. It must be strictly interpreted and is confined to dissolving Parliament, and dissolving Parliament only. Choosing a Prime Minister, from whatever party, remains a matter for the royal prerogative. The convention on precedent before the Act, rather than then having a second Dissolution, was for the leader of the Opposition commanding the support of a substantial number of Members of the House of Commons, to be given the opportunity to form a Government. Rather than further Dissolutions, reverting to the convention, which is unaffected by the Act, should be the first port of call. I commend it.
6.57 pm