My Lords, as I was about to say before our proceedings were cut short just before midnight on Tuesday evening, I speak in support of Amendment 267, to which I have added my name. I also say at the outset that shortly before the House adjourned on Tuesday, the noble Lord, Lord Wigley, made a compelling contribution in support of his Amendment 291, which makes a strong case for a United Kingdom framework for agriculture. I would readily support that.
In speaking to his Amendment 267, the noble and learned Lord, Lord Hope of Craighead, put the issue in context. He reminded us that Part 6, of which Clause 40 forms part, relates to the WTO Agreement on Agriculture. As he pointed out, as a matter of international law the United Kingdom Government are responsible for ensuring that UK policies are compliant with the agreement. Clause 40 makes provision for regulations to be made to secure compliance with the UK’s obligations under the WTO Agreement on Agriculture but, as the noble and learned Lord said, as the devolved Administrations see it,
“the starting point for any system of regulation to ensure WTO compliance by the UK as a whole must be that it is the responsibility of each of the devolved Administrations to devise its own system for the support of agriculture with whatever resources may be available”.—[Official Report, 21/7/20; col. 2195.]
What is of concern is that, specifically, regulations can by virtue of Clause 41 impose limits on the amount of domestic assistance available to each of England, Scotland, Wales and Northern Ireland. Those could be at a lower ceiling than exists under the current arrangements. Thus it is self-evident that this is crucial to the operation of the devolved competence of agriculture, yet there is nothing that requires consultation with the devolved Administrations, let alone consent.
Agriculture is prima facie a devolved matter. Although negotiations on the CAP were the responsibility of the UK Government, the devolved Administrations had direct input into the preparations of the UK negotiating position. It is the case that while implementation of the CAP was devolved, as is the management of direct payments to farmers, the allocation of agricultural budgets between the devolved Administrations has been reserved to the United Kingdom Government. However, that allocation invariably involved detailed consultation, even if not always agreement, as the disputes over the allocation of the EU convergence uplift illustrated.
This amendment proposes that there ought to be consultation before any such regulations are brought forward. I would recognise government Amendment 268, which removes the regulation power in respect of requisitioning information from devolved Governments. That is a welcome move and the Government should be given some credit for responding to representations on that matter. But it is because of this apparent overlap between devolved and reserved responsibilities that great sensitivity will be required.
My Lords, I put my name to Amendment 289, tabled by the noble Baroness, Lady Ritchie of Downpatrick, not only because agriculture remains Northern Ireland’s most important and largest industry, but because of some particular political issues that affect Northern Ireland. I recognise that the Minister has tabled some amendments in this group on the relationship with Ministers in the devolved Administrations and I welcome that. However, as my noble and learned friend Lord Wallace of Tankerness has just emphasised, it is important that Ministers in the devolved institutions are serious decision-makers in their own right and in their representation of the people of Scotland, Wales and Northern Ireland and not just rule-takers from outside.
However, in the case of Northern Ireland, there are two other important issues that I believe this amendment facilitates by encouraging and, indeed, requiring the members of the Northern Ireland Executive to work together to develop bespoke legislation and an approach to agriculture that addresses the particular needs of Northern Ireland and the challenges and opportunities of the island nature of Ireland as a whole.
These agricultural issues are practical matters. I found in the negotiation of the peace process that when they could engage on practical issues, rather than those involving profound constitutional principle, it was often possible to reach a surprising degree of agreement between parties that were otherwise in deep disagreement. Recently, we have seen further evidence of this, as the Northern Ireland Executive have dealt quite well with the Covid-19 crisis in comparison with others. By inserting a sunset clause in this Bill, we would be giving a specific encouragement to Northern Ireland Ministers to engage in practical negotiations on the agricultural industry which, as I say, is not a partisan matter.
It was often noted that the late Lord Bannside, when he was Dr Ian Paisley MEP, was able to work closely with the predecessor of the noble Baroness, Lady Ritchie, as leader of the SDLP, John Hume, who was also a Member of the European Parliament. Their co-operation was especially notable on questions of agriculture and the common agricultural policy. Our sunset clause would, in my view, encourage just this sort of bipartisanship and cross-community co-operation on agriculture in Northern Ireland.
My Lords, I associate myself with the amendments in the names of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Wigley, and also with the remarks of the noble and learned Lords, Lord Hope and Lord Wallace. I am proud of the fact that I am a non-practising advocate, so I maintain an interest in matters north of the border.
As I entirely endorse the comments that the noble and learned Lords have made, I want to ask my noble friend a specific question with regard to the consultation that is asked for under these amendments. With regard to Amendment 291, I associate myself with the request from the noble Lord, Lord Wigley, for a UK framework for agriculture. What form will the consultation on these regulations take? Presumably, the regulations must be relatively far advanced, so when would my noble friend expect the consultation to commence? In reply, can he take the opportunity to inform us what developments there have been on the common frameworks? I understand that, originally, there were to be 24; we now hear word that there will be only three. They are absolutely key to this part of the Bill and to ensuring good faith—I know my noble friend likes to use the phrase “bona fides”—between the four parts of the United Kingdom. With those few words, I support the amendments in this group.
My Lords, I am disappointed, like the noble Lord, Lord Wigley, that Amendments 290 and 291 have been regrouped with others in this group. I was looking forward to a full delineation by the Minister of the way forward envisaged by the Government in creating some body in which the four nations could thrash out the common framework of a single market for the United Kingdom. As I have said earlier in Committee, the agricultural systems of the four nations are bound to diverge, not just because the devolved Administrations are governed by different political parties that may have different aims, policies and ideas, but because of the very diverse nature of their landscapes and communities.
Looking at it broadly, there are two main issues: how funding will be distributed between the four nations, and to what degree divergence is compatible with the single market. My concern is that Wales does not lose its current share of UK funding of 16%. Indeed, it should have a greater share. Mr Michael Gove, addressing the Rural Economy and Connectivity Committee of the Scottish Parliament on 27 June 2018, said that
“it is in the nature of the landscape and the environment in Scotland—and also in other parts of the United Kingdom—that the preponderance of less-favoured areas and the nature of upland farming impose particular challenges that require a specific level of support … we need to look in the future at how we allocate funding across the United Kingdom in order to reflect that … My aim … is to ensure that, in the future, we allocate funding in a way that is sensitive to the specific needs of each part of the United Kingdom.”
The United Kingdom Government have guaranteed continued funding of Pillar 1 of the CAP until 2022 and, as we discussed the other day, the continuation of rural development programmes under Pillar 2 of the CAP until contracts come to an end, at the latest in 2023. But what happens then? Farming is not an industry in which capital can be quickly switched from one sector to another. It requires long-term planning, which can be achieved only by clarity on future funding. As for divergence, there should be agreed common standards for animal health, traceability, animal welfare, breeding and trading in animals, fertilisers and the like. What divergence of support in specific areas would be compatible with a single UK market?
I welcome government Amendments 209 and 262, to Clauses 32 and 37, in particular. Agriculture is self-evidently one of the prime examples of where we must get right the legislation and other arrangements for the interrelationship of the powers of the devolved Governments of Wales, Scotland and Northern Ireland and the powers of the Westminster Government, first, in respect of England and, secondly, in respect of the United Kingdom as a whole—I think we frequently fail to make that distinction of the two distinct hats that the Westminster Government wear and it is important to bear them in mind. As a firm supporter of the union, I consider it vital for the strengthening of the union and the removal of the risks to it that we consider these issues most carefully. In this Bill, as agriculture is plainly one of the areas where serious tensions can arise, whether it be in relation to food standards or the extent of subsidies, it is vital that we do so.
It is of course a great pity that we come to this so late in our planning for Brexit, as this has been an obvious area for debate and for reaching decisions long before now. The noble Baroness, Lady Finlay of Llandaff, the noble and learned Lords, Lord Hope of Craighead and Lord Wallace of Tankerness, and the noble Lord, Lord Wigley, have already spoken powerfully on issues relating to the devolved Governments. The noble Lords, Lord Hain and Lord Thomas of Gresford, have compellingly explained the need for long-term and fair financial arrangements.
I wish briefly to make three points. The first is the importance of respecting devolved competence in legislation. I welcome the amendments put forward by the Minister, who understands the importance and sensitivity of devolution. It is reassuring to hear him make it clear that the Government remain wholly committed to seeking legislative consent for all the provisions that engage the scope of the convention in Scotland, Wales and Northern Ireland. I just wanted to be sure of the correctness of my understanding of why the devolved Governments requested the amendments and the reasons why Her Majesty’s Government have brought them forward.
My Lords. I will comment briefly on government Amendments 209, 261, 262 and 268, which I welcome. These amendments cover the areas of outstanding concern to the Welsh Government. They acknowledge their devolved competence and were included at their request.
Amendment 209 deals with an issue that I raised at Second Reading: how the new body created to oversee the identification and traceability of animals would operate in an area of devolved responsibility, particularly if that body was seen to be an English board. That the new body would need to seek the approval of Welsh and other devolved Ministers or institutions is now certainly welcomed.
Amendments 261 and 262 ensure that the consent of the Ministers of the devolved Administrations must be obtained before making cross-border regulations in relation to organic products. I am pleased that the responsibility of the devolved Administrations has again been recognised.
Amendment 268 covers an issue that, again, I raised at Second Reading. By the removal of the powers of the Secretary of State to make regulations in the area of the WTO’s Agreement on Agriculture, this amendment ensures that the rights and responsibilities for implementing international agreements remain with the devolved Administrations.
I welcome all these amendments, as they conclude the process by which the Welsh Government have asserted their competence in these areas. However, I express some disappointment in the fact that there was a need for this process at all. Earlier in this debate, the noble Baroness, Lady Finlay of Llandaff, in her powerful and comprehensive speech on these amendments, described the Government as seeking, in effect,
“to strong-arm the devolved Governments into giving up elements of their executive competence”.—[Official Report, 21/7/20; cols. 2193-94.]
My Lords, in this group of amendments I will speak to Amendment 209. I refer to the contribution of the noble Baroness, Lady Ritchie of Downpatrick, during our debate on Tuesday.
In this debate so far, I have been impressed by the frequent references that the Minister has made to the need to view the Bill in relation to the devolved nations. On Tuesday, the noble Lord, Lord Wigley, spoke powerfully on the importance of that relationship from a Welsh point of view and this afternoon the noble Lord, Lord Alderdice, has reminded us of the connection with the problems in Northern Ireland.
So far as that relationship is concerned, the noble Baroness, Lady Ritchie, reminded the House of the difficulties presented by the period during which the Northern Ireland Assembly and Executive did not function. Amendment 209 is influenced by the problems of that period but now, thankfully, the Northern Ireland Assembly and Executive are operating fully. However, the importance of the relationship between central government and the devolved Administrations in areas such as agriculture cannot be overemphasised in this debate. This amendment is an attempt to build on that sensitivity so far as one devolved nation is concerned, but it has implications for the others so far as the whole Bill is concerned and cannot be isolated to one devolved nation alone.
As the United Kingdom prepares to leave the EU, none of us can have a complete picture of the problems which will emerge for the farming community throughout the UK. Amendment 209 recognises this reality. For Northern Ireland farmers, the uncertainties of their geographical situation are well documented, with a land border about to become the border between the United Kingdom and the EU. As the noble Lord, Lord Alderdice, reminded the House, this is vital to farming communities in Northern Ireland. In addition, there continues to be confusion around the issue of what is normally referred to as a border in the Irish Sea. The implications of that confusion for transporting agricultural produce within the United Kingdom cannot be overstated for Northern Ireland farmers—hence their concerns about the future.
My Lords, I want to speak on a number of these amendments but will make a small technical point at the beginning. Amendment 209 and others in this group refer to Scottish Ministers, Welsh Ministers and a Northern Ireland department. A number of colleagues have asked why this is the case—in fact the noble Lord, Lord Kilclooney, challenged it during one exchange some weeks go. But the Government’s amendment is in fact correct because power in Northern Ireland is not vested in the Minister; it is vested in the department. This goes back to some kind of anomaly in 1921. I have never understood or heard an explanation as to why that is the case, but it is. Amendment 209 is correct but some amendments in this group do not quite follow the same pattern. I think that would need to be addressed. The role of a Minister is to direct and control a department in Northern Ireland so that power is vested in the department, not in the Minister.
With regard to the amendments, my first question to the Minister is: what happens if Whitehall fails to get the agreement of one or other of these devolved institutions? What impact would that have and how would it be addressed in practice?
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Members who have spoken so far today and on Tuesday evening have raised the valid question of whether we have a framework for a UK market, but what is not fully appreciated is that Northern Ireland is effectively in the European Union from the point of view of agriculture, and no man can serve two masters. We can have all the frameworks we like, but at the end of the day, the devolved Administration in Belfast may not be able to sign up to them for the simple reason that they are bound under the Northern Ireland protocol to follow EU regulations.
My point to my noble friends on the Front Bench—not getting at them politically—is that there is a huge political issue here. Her Majesty’s Government—and even in the last fortnight, members of the Cabinet—are even denying that there is a border in the Irish Sea. There is and it is there in the protocol. It was in the explanatory note on 2 October 2019 and reinforced in the agreement of 17 October 2019—it is there. You can waffle on or tear things up and throw them in the bin or do whatever you like, but the border is there.
Why else would you have to notify the authorities? If you are Mr Tesco and you send a tin of baked beans to Belfast, you have to notify the authorities that you are sending those beans and tell them what is in them and they may be subject to inspection. That applies to all manufactures and not just to agriculture. Let us at least acknowledge the reality. I support the principle that we should ask for the consent of the devolved Administrations, but from the point of view of the Bill, we are saying to them: “Let us develop a framework”, but one of those component parts is not capable of doing so, because it is bound by international treaty to follow the regulations of the European Union.
We can say whatever we like, but I would like the Minister, on behalf of the Government, to acknowledge the reality that there is a border in the Irish Sea. Our own European Union Committee spelled out in its recent reports exactly the facts of the case. Let us have some clarity and honesty as to where we are. As the noble Lord, Lord Alderdice, said, agriculture is our largest industry; it supports many thousands of jobs; and we have some unique problems. Of course, we now have cross-border problems throughout the United Kingdom. I have no doubt there are farms in Wales and Scotland that cross into England. It is not simply a Northern Ireland-only issue, but I appeal to my noble friends on the Front Bench to at least acknowledge this reality.
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In its recent report on the constitutional issues arising out of the Brexit legislation, the Constitution Committee of your Lordships’ House, of which I am privileged to be a member, said:
“We recommend that powers for UK Ministers to make delegated legislation in devolved areas, including the power to supersede law made by devolved legislatures, should include a requirement either to consult devolved ministers or to seek their consent, depending on the significance of the power in question.”
In its report on the present Bill, the Constitution Committee said in paragraph 22:
“We recommend that the power in clause 40 should require the Secretary of State to consult the relevant devolved administrations prior to regulations being made.”
In the Fisheries Bill, the Government accepted that the consent of the devolved Administrations was required before amending by regulation prohibitions on the licensing of fishing vessels. In moving Amendment 209 to this Bill and speaking to Amendments 261 and 262, the Minister also indicated that the Government were providing for devolved Administration consent in respect of other regulations proposed under the Bill. Again, in the Fisheries Bill, in making regulations under Clauses 38 and 40, there is a statutory requirement for consultation. This amendment seeks a parallel requirement.
Surely the case for consultation is equally compelling here. I have no doubt, because we have heard it all before, that the Minister will seek to reassure us that of course the Government will consult. If that is to be the case in practice, why not let them also give us the assurance of it being buttressed to make that the case in law?
The second reason for ensuring that the Northern Ireland Executive take up the development of their own legislation is that, in my view, the next few years will see significant changes in the relationships between the north and south in Ireland. It is clear from the protocol with the EU that Northern Ireland will have a special relationship with the rest of the island, which remains within the EU—something quite different from the rest of the UK. Indeed, it will be the only part of the UK with a land border with the EU and, with particular reference to this Bill, it uniquely has farms that straddle the border. In some cases, part of a farm will be inside the EU and part outside it.
It seems to me inconceivable that by 2026, the date in this clause, it will not have become necessary to develop new ways of addressing these issues that will be quite different from the ways that other parts of the United Kingdom—whether devolved or not—relate with the EU. By then, we will be almost 30 years on from the end of the Troubles that so deepened division on the island. A sunset clause will give the Northern Ireland Ministers the encouragement and freedom to address this complex and developing network of relationships. For these two reasons, I strongly support the insertion of this new clause after Clause 45 in the Bill.
There is no issue that there must be some forum—a forum for consent, as my noble and learned friend Lord Wallace argued a moment ago—in which these questions can be resolved. It would be quite unacceptable and in breach of the principles of devolution for decisions to be made by some Whitehall diktat. Indeed, the Joint Ministerial Committee (EU Negotiations) already agreed in October 2017 that common frameworks will be established, to
“enable the functioning of the UK internal market … ensure compliance with international obligations … enable the management of common resources”,
and to
“administer and provide access to justice in cases with a cross-border element”.
It also agreed to
“safeguard the security of the UK”—
in this context, I take it that means food security. However, nothing in the framework of the Bill requires or creates any mechanism, whether by secondary legislation or otherwise, for such a body.
Two alternative approaches are set out in Amendments 290 and 291. Each has its advantages but there really is a hole in the Bill, as I said at Second Reading, which the Government ought to fill themselves. It is no longer satisfactory to be told that civil servants are working away at this—I hope we do not hear that today. We need a commitment to the creation of a forum for negotiation and co-operation, as my noble friend Lord Alderdice said, and it needs to be written into the Bill.
Am I correct in understanding that the Bill as introduced did not properly recognise the important principle that legislation by the UK Government to apply in the devolved nations but within the devolved competence should be made only with the consent of the devolved Governments or their legislatures? It is regrettable that, at the time of the decision made on the EU withdrawal agreement, legislative consent was not obtained. That is water under the bridge, but it was made clear then that that was a truly exceptional occasion. In view of the confirmation given by the Minister in introducing the government amendments, I hope that he can confirm the Government’s commitment that they will not in future present legislation to the House that does not respect the principle of requiring the consent of devolved institutions for any UK legislation that could be made by legislation within the devolved Parliaments. It is important to the way in which devolution is to operate and the strength of the union that there be such a commitment.
My second point—and I can be brief about this—is about moving forward on the frameworks. It is clearly highly desirable that there be agreement between the different Governments on matters on which there can be a common approach and an agreement of where there can be differences or divergence of the kind of which the noble Lord, Lord Thomas of Gresford, spoke. As I understand it, that is the objective of these frameworks. I therefore welcome the statements made on a number of occasions by the Minister that good progress is being made. The matters to be covered will be extensive and it is important to bear in mind that this is not, as I understand it, a consultation exercise by the UK Government but an attempt to reach agreement. I therefore look forward to their publication and hope that the Minister can update us as to when this is to happen.
There is one other reason why publication is important and that is the dispute resolution mechanism that must be inserted into a framework agreement. It is inevitable that there will be disagreements—I hope that they will be small—but the difference between a framework and a consultation, ultimately, is that if there is a framework, there must be a means of resolving differences, whereas, in a consultation, the decision is ultimately made by the person who consults.
Thirdly and finally, there is the need for a coherent constitutional approach. I warmly support the principles behind Amendment 290, in the names of the noble Baroness, Lady Jones of Whitchurch, and the noble Lord, Lord Thomas of Gresford, and Amendment 291, in the names of the noble Lords, Lord Wigley, Lord Bruce of Bennachie and Lord Thomas of Gresford. An alternative is now being canvassed, which is the provisional views put forward in the paper on the internal market. It will obviously be necessary to turn back to this in the long period between September and Christmas. However, it is important now to point out that the imposition of a policy ultimately determined to be in the interests of by far the biggest and most powerful of the four nations is not the way to ensure the preservation of the union. This constitutional issue will have to be a matter for debate and it will have to be debated in the context of agriculture, as it is so important in that area. I therefore look forward to the development of proposals over the summer, because this urgent matter cannot wait longer. If the union is to be strengthened and preserved, positive steps on this are far more likely to achieve that preservation than other action being taken.
I agree with her sentiments and am pleased that that has been avoided by the Government tabling these amendments, and that the competence of the devolved Governments will now be reflected in the Bill.
I support Amendment 209, for I am well aware of the importance to the Northern Ireland economy of our farming community, but I am equally aware of the contribution of the devolved settlement to the strength of the United Kingdom as a whole. That is why I welcome the Minister’s references to the importance of the relationship between central government and the devolved Administrations, so far as agriculture is concerned. It is surely essential that these reflections are clearly stated in the Bill.