My Lords, it is a pleasure to follow the noble Lord, Lord Hain. I find myself in agreement with much of what he said. I speak to Amendments 26 and 27 in this group. As we have heard, they both address the same point about engagement with the devolved Administrations when a Minister of the Crown is exercising the powers conferred by this clause. I am grateful to them for raising this subject, which I raised at Second Reading. As I think the Minister will recognise, how devolution is addressed in the Bill is most important and has to be handled wisely, as the noble Lord, Lord Wigley, so rightly said.
Of the two amendments before us, I prefer that in the name of my noble kinsman Lord Stevenson of Balmacara. That is because the context for this discussion is the making of orders by delegated legislation, which is the privilege of Ministers, not of legislatures. Obtaining the consent of the relevant Minister in the devolved Administrations, rather than of their legislatures, seems the better and easier route in this context. But that is a side issue; the issue of principle matters. I agree with and endorse the points that the noble Lords proposing these amendments made in support of them.
I take this opportunity to thank the noble Lord, Lord Grimstone, for the very helpful reply he gave to a letter that I wrote to him, after Second Reading. This came about because I happened to be in the Chamber and took part in the debate personally, so I was able to take advantage of the opportunity, which noble Lords participating virtually do not have, of catching a moment with the Minister afterwards. I asked him why, as was the case, he had not answered the questions that I put
to him in my speech. The noble Lord, Lord Stevenson, also noted the lack of any response to them, as he recalled when he was speaking in this debate yesterday. Very kindly and without hesitation, the noble Lord, Lord Grimstone, invited me to write to him instead, and gave me his email address. That is how this letter to me came about, and I am most grateful to him for the generous way he responded to my inquiry.
While I do not agree with everything it says, this letter has provided far and away the best and most thorough explanation that I have received for the Government’s approach to amendments asking for consent to be obtained from the devolved Administrations to be put in the Bill, and why they have almost always been refused. Although I greatly regret the refusal, it at least shows that the Government are thinking about the issue.
I am sure that we will have to return to this in the different and much more controversial context of the United Kingdom Internal Market Bill, on which a storm is brewing with the devolved Administrations about UK market access provisions, which is every bit as powerful as that for Part 5 of the Bill. But the context here is different: this Bill is concerned with international agreements for which, although implementation is devolved, the UK Government are ultimately responsible internationally. Both the Scottish and Welsh Ministers have recommended that their legislatures give their consent to the Bill, so we are in much calmer territory, but I wish to support these amendments and to explain why.
I start by taking up a point that the noble Lord, Lord Stevenson, made at the outset of his speech. Referring to the Sewel convention, he said that the question of whether it should or could apply to delegated legislation is still open. The time has come for us to put that to bed, once and for all. It should now be recognised on all sides that the principle of the convention extends to delegated legislation by UK government Ministers in the same way as it does to legislation by the UK Parliament. In view of the importance of the matter, perhaps I can be allowed to say why that is so. I have the following reasons.
First, there is no doubt that, if he had been asked about this at the time, Lord Sewel would have said that his remark applied to the use of delegated powers too. It did not occur to any of the noble Lords who were there 20 years ago to ask him about this, because the idea that delegated powers might be used in this area was nothing like as obvious as it is now. Today, we all appreciate that Brexit could not be made to work across so many areas without resort to delegated legislation on a scale far removed from what we were used to that long ago. That is why the issue has been raised time and again during this process.
Secondly, the convention, as first formulated by Lord Sewel—recorded more formally in a memorandum of understanding and put into statutory language by Section 2 of the Scotland Act 2016—refers to legislation by the Parliament of the United Kingdom only. But we are dealing here with a convention, a political statement, and not black-letter law. What really matters is the principle that lies behind it. There is no logical reason whatever for not applying the Sewel principle to delegated legislation too.
Thirdly, we need look only to what happens in practice. There is a very high level of engagement, at official level at least, between the devolved Administrations across the board and the UK Government. There is no suggestion there that the fact that delegated legislation may be in prospect, rather than primary legislation made in this Parliament, makes any difference.
Finally, there is the noble Lord’s letter. It contains an express commitment that the UK Government will not normally legislate using the Bill’s powers—these are delegated powers—in areas of devolved competence without consent of the relevant devolved Administration, and never without consulting them first. There it is: Sewel applies here too. It applies across the board.
To cement this into our practice, so that we can refer to it whenever it is needed, we should give this commitment a name. I would call it the Sewel principle. It is striking, and to the Government’s great credit, that nowhere in the letter is it suggested that we are limited nowadays by the precise wording of the convention. It is the Sewel principle that is being applied now. Although the memorandum and statute are silent on the point, they do not exclude this approach so, please, let us say farewell to any idea that the question of whether it applies to delegated legislation is still open.
As for the reasons given in the letter for the Bill not providing that UK government Ministers must seek the consent of the devolved Administrations, I will make a few points. First, it is said that to do that would discourage consensual intergovernmental working and incentivise bringing disagreements to the courts. Reference is made to the case of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill in the Supreme Court as an example of the lengthy litigation that may result. I simply do not follow that argument. Surely the best and most secure way to avoid disagreements is to proceed by consent. That is what these amendments seek to achieve. They are all about settling disagreements, as the noble Lord, Lord Wigley, said.
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As for the Supreme Court’s continuity Bill case, the situation was entirely different. That case dealt with the Scottish Parliament’s response to the UK’s withdrawal Bill, to which it had refused consent. If it tells us anything about what we have here, it is that if you proceed without agreement, there may be trouble. That is what these amendments, if passed, would avoid.
Then it is said that to put the commitment in the Bill risks undermining the principle enshrined in the devolution statutes that international trade is a reserved matter and that, as a matter of international law, the UK Government are ultimately responsible for ensuring compliance with our obligations, even in devolved areas. Yes, the devolution statutes state that international relations are reserved matters: see, for instance, paragraph 7(1) of Schedule 5 to the Scotland Act 1998. But look at the wording of paragraph 7(2), which states:
“Sub-paragraph (1) does not reserve … (a) observing and implementing international relations … (b) assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies.”
It could not be plainer.
Implementation, which Clause 2 is about, is devolved. It is a matter entirely for the devolved Administrations, not UK Government Ministers or the UK Parliament. It is devolution itself that is being undermined with this reasoning, not the principle that international trade is a reserved matter. There is more than a hint here of the very worst of parents that the noble Baroness, Lady Humphreys, was talking about so well in her speech yesterday: the devolved Administrations must be kept in order and, like little children, cannot be trusted to behave themselves.
Let us be clear. The idea that the UK Government can tell the devolved Administrations what to do and what not to do to ensure compliance when implementing these agreements finds no support whatever in the wording of that paragraph. It is entirely at odds with the devolution settlements. It for the devolved Administrations to make their own democratic choices, as the noble Baroness, Lady Bennett of Manor Castle, said. I support these amendments.