My Lords, my Amendment 118 brings us, once again, to the issue of devolution, the powers of the devolved legislatures and the protection of those powers by legislative consent Motions.
I have spoken to a number of amendments in Committee and expressed my concerns about the way that confidence in the Sewel convention has been eroded over the last few years and how legislative consent Motions have been degraded and disregarded. At each stage, the Minister has sought to reassure me that my fears for the future of our devolved settlements are unfounded but, as I have said before, our experience often tells us a different story. I have therefore tabled Amendment 118 to Clause 15, seeking to ensure that a legislative consent Motion be passed by the relevant devolved legislature if a Minister of the Crown seeks to make regulations to revoke or replace secondary EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature.
Three of your Lordships’ committees have published reports that have included criticism of Clause 15; the issues that they have highlighted are serious and deserve to be debated. The Delegated Powers Committee has recommended that Clause 15 be removed from the Bill because it
“contains an inappropriate delegation of legislative power”.
It says that Clause 15 is
“the most arresting clause in the Bill for its width, novelty and uncertainty.”
Why is this clause arresting? It gives Ministers extraordinarily wide discretion in relation to thousands of secondary EU laws; for example, one option under this clause allows Ministers, as the committee says,
“by regulations to … revoke any secondary REUL and make such alternative provision as Ministers consider appropriate, including with completely different objectives.”
This is, the report says,
“a power to do anything Ministers wish to do”
with retained EU law until 2026.
I appreciate that the Minister has spent time in Committee reassuring me and other noble Lords that the powers of the devolved legislatures are not under threat. I would like to believe that he believes what he says but can he explain, if this clause were to pass, how certain I could be that some other Minister would not use it to make regulations to revoke or replace any piece of secondary EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature?
Ministers will have the power under this part of Clause 15 to do anything, so who or what will stop them acting in devolved areas if they so choose? We received a letter this morning from the noble Baroness the Minister, and I am sure that she or the noble Lord the Minister will summarise the points it contains in their response in relation to these powers.
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Your Lordships’ Secondary Legislation Committee is so concerned about the powers given to Ministers in Clause 15, as well as Clauses 12 and 13, it recommends that an enhanced scrutiny mechanism should apply to the exercise of powers under these clauses. This mechanism would allow either House to modify an instrument and would, I think, receive a welcome from noble Lords. Will the Minister inform the Committee of the Government’s response to the concept of an enhanced scrutiny mechanism for these clauses?
Your Lordships’ Constitution Committee deals specifically with devolution in part of its report on the Bill. It highlights one the problems with the Sewel Convention:
“At present when the Government considers consent is not required from a devolved legislature and proceeds to give effect to this view, there is no parliamentary scrutiny of that determination.”
We have seen this situation time and again in Wales. The UK Government provide a list in a Bill to inform us where they are seeking consent; the devolved legislatures examine the Bill and point out that their consent is needed in certain other areas too; the devolved Administrations produce an LCM saying that consent is required in those areas and that they withhold consent; and the UK Government ignore the LCM. That is the end of the process. There is no scrutiny and no holding them to account for their decision to override the powers of the devolved Administrations. The Constitution Committee therefore recommends that, in future,
“the Government should justify its approach to the House at the beginning of a bill’s consideration. In the case of this Bill, it should do so at the earliest opportunity.”
Will the Government accept the committee’s recommendation and commit to justifying their approach to this aspect of consent in this Bill and in future Bills?
I am grateful to all three committees for their careful and expert analysis of the Bill and for their recommendations. I thank them for their support of democratic principles and their defence of the devolved legislatures and their powers.
I turn briefly to Amendments 135 and 143 in the name of the noble and learned Lord, Lord Hope of Craighead. I am grateful for the support he shows for the devolved legislatures and value greatly his expertise in the legal issues surrounding their powers. His amendments have my full support.