Devolution (Constitution Committee Reports)

Monday 9th October 2017 Lords Chamber

Motion to Take Note (Continued)

18:34

[Lord Lexden (Con)]

My Lords, we return to the debate on the Constitution Committee’s reports and the report of the EU Committee on devolution. Among other things, this debate brings us the maiden speech of a new noble friend. My noble friend Lord Duncan of Springbank is to reply to this debate in terms that I hope will reassure us about the Government’s enduring commitment to the union. He follows in office my long-established and personal noble friend Lord Dunlop, who throughout his career has been a staunch defender of the union and sometimes showed a little more flexibility than I have managed to create.

Since I entered the House in 2011, nothing has brought me greater satisfaction and pleasure than my three-year stint on the Constitution Committee between 2012 and 2015. Wise counsel was provided by convivial colleagues from across the House. Immensely skilful chairmanship was supplied first by the noble Baroness, Lady Jay of Paddington, and subsequently by her successor, my noble friend Lord Lang of Monkton—how wonderfully well they steered our discussions. The testimony of a wide variety of expert witnesses helped to add authority and depth to our discussions. Absolutely first-rate officials drew our conclusions and recommendations together in lucid reports to the House and the Government. When the work is done, however, those involved in the committee’s activities have to brace themselves for some disappointment. The Government’s responses to their detailed and carefully considered reports on issues of great political significance are invariably delivered after long delays, in breach of the commitment included in paragraph 11.39 of our Companion to the Standing Orders:

“The government have undertaken to respond in writing to the reports of select committees, if possible, within two months of publication”.


I was a member of the committee when it carried out its inquiry into intergovernmental relations in the United Kingdom. Is it not extraordinary that over two and a half years should have elapsed between the publication of the committee’s report and this debate? In their response of just five and three-quarter pages, which they took just under two years to prepare, the Government make a perfunctory apology for the delay but offer no explanation for why this protracted delay occurred. Convincing apologies surely need to be accompanied by clear explanations.

Indeed, throughout the response as a whole, explanations of the Government’s views and decisions on the issues raised in the committee’s report are hard to find. The Government seem to think it sufficient simply to assert their own positions and views in a rather curt fashion without giving their reasons for adopting them or for rejecting, as they so often do, the committee’s recommendations. I note, too, in passing that the Government need to improve their proofreading: there is a serious grammatical error at the start of paragraph 8.

I am perhaps in danger of being unfair; the response has positive features. In paragraph 12 it states:

“The concordats and devolution guidance notes will be reviewed by the four administrations in due course”,


repeating the point for good measure in the following paragraph. But when will this be done? Rarely are definite dates assigned to the useful developments foreshadowed in the response.

We are told more than once that plenary sessions of the Joint Ministerial Committee—the linchpin of the entire structure of intergovernmental relations—are to be held more frequently. This pledge seems to be being redeemed. The Joint Ministerial Committee met in October last year and again in January this year. The terse communiqué of just eight sentences issued after the meeting in January stated:

“Ministers agreed to meet again in Plenary format later in 2017”.


Has a further date been fixed in conformity with the pledge to increased frequency?

The Constitution Committee’s report noted:

“The current reporting of JMC meetings is bland and unilluminating; much more information could be made public in advance of and after meetings”.


The eight unilluminating sentences issued after the last JMC meeting on 30 January hardly suggest that improvement is on the cards. There is, however, a specific undertaking in paragraph 17 to publish a report on intergovernmental relations this autumn. Has a firm date been fixed for its appearance?

The large measure of uncertainty surrounding many features of future intergovernmental relations surely lends weight to the Constitution Committee’s recommendation:

“The Government should consider whether the framework of inter-governmental relations should be set out in statute”.


In that way core principles and the basic shape of the system would be clearly defined and the devolved Governments would have their place in the system firmly delineated, but the Government say, curtly, in paragraph 6 of their response that they do not agree, without of course giving any reasons.

At the heart of both the Constitution Committee’s reports before us today there stands a question of immense national significance. The report The Union and Devolution sums up that issue perfectly:

“The UK Government needs fundamentally to reassess how it approaches issues relating to devolution. What affects one constituent part of the UK affects both the Union and the other nations within the UK”.


My noble friend Lord Empey, who has been detained in Belfast today for pressing family reasons, has often eloquently deplored the haphazard and ill-considered nature of recent constitutional changes which show why a new approach is needed. Ten months ago one element of our constitutional arrangements ceased to function. The ramshackle coalition of political incompatibles at Stormont collapsed. It had impressed no one with its capacity to deliver good government. Here is one illustration of the need for the fundamental reassessment for which the committee has called to ensure that such a crisis is fully considered in the wider context of the union.

Another issue that proves the point is the denial of the right to same-sex marriage in the same part of our country, even though it commands widespread support there. Why should our fellow countrymen and women, who are fully part of our union, have to endure such discrimination?

How valuable it would be to have a Cabinet Minister to whom the active guardianship and protection of the constitution was entrusted. Sir Oliver Letwin, then in nominal charge of the constitution, took the Constitution Committee’s breath away by dismissing the need for such active guardianship and protection out of hand. There is a pernicious phrase, “devolve and forget”, which was rightly disparaged by my noble friend Lord Lang in his powerful opening remarks. The danger it expresses is increased by the unduly wide scope of the convention which, remarkably, still bears the name of a disgraced former Member of this House. Is it not time to consider such aspects of devolution afresh from the standpoint of the union, the rock on which we all rest, remembering always that one large part of the reason Northern Ireland has suffered so grievously in our lifetimes is that the Parliament of the union gave it no attention during its first period of devolution after 1920?

18:45

[Lord Cullen of Whitekirk (CB)]

My Lords, in its report The Union and Devolution the Constitution Committee, of which I was a member, made this as one of its recommendations:

“There is a strong case for creating a flexible framework, based on appropriate principles, as a guide for future action within which any further demands for devolution can be considered in a coherent manner”.


The committee found that in the past there had,

“been no guiding strategy or framework of principles to ensure that devolution developed in a coherent or consistent manner and in ways that do not harm the Union”.

I have to say that I find the Government’s response to the case advocated by the committee to be entirely disappointing. The Government state that that they support the approach which was taken by the Smith commission and the Silk commission. That approach was, they said, considering proposals for devolution against a set of principles. One initial difficulty I have with this response is that the principles applied by the Smith commission were not similar to those of the Silk commission, as the Government claim, but were different in kind. The Smith commission followed the line agreed with the representatives of the five political parties in the Scottish Parliament, namely that a package of new powers for Scotland should,

“not cause detriment to the UK as a whole nor to any of its constituent parts”.

It was a negative principle. It was understandable that the commission used it in testing the outcome of negotiations between those parties within a short timescale, but it focused not on what devolution should do, but on what it should not do. The Silk commission, on the other hand, applied positive principles such as collaboration, equity, stability and subsidiarity. Part of its stated vision was that:

“Devolution of power to Wales should benefit the whole of Wales and the United Kingdom".


Elsewhere in their response, the Government also state that their approach to devolution,

“is governed by the principle that … it is the right thing to do for the integrity and success of the UK”.

So far, so good, but what are the other principles that they have in mind? That is not clear. Surely if the Government are in favour of the application of a set of principles to consideration of further devolution, a matter of great importance for the constitution of this country, they should say what are those principles, and do so clearly and coherently. However, they seem to have avoided doing so.

The committee identified some of the core principles which it considered should govern the relationship between the union and the devolved nations. They are solidarity, diversity, consent, responsiveness, subsidiarity and clarity. These are positive and constructive principles going to the strength of the union and the vitality of that relationship. In the case of some of these core principles, the Government have responded. Others they have ignored. It is somewhat strange that where they have agreed with the Committee, they have mostly referred to the negative principle adopted by the Smith commission in the circumstances I referred to. It is in the light of these matters that I find the Government’s response on matters of principle unsatisfactory and, indeed, lacking in clarity and coherence. It is of some interest to note that in the course of its report the European Union Committee made this recommendation:

“Thanks to Brexit, it is now more important than ever that reform of the devolution settlements should be underpinned by a clear and agreed framework of guiding principles”.

18:49

[Lord Norton of Louth (Con)]

My Lords, I declare my interest as a member of the Constitution Committee. I too pay tribute to my noble friend Lord Lang for the way he has moved the Motion and for his most effective chairmanship of the committee. In the time available, I wish to pursue two points that merit a response from the Government. Both derive from the two reports of the Constitution Committee that are before us.

As we have heard already, the basic message at the heart of the report on The Union and Devolution is that instead of being defensive, we need to spend more time saying what is right with the union. There is a clear, positive case to be made. As the report says, the union has brought stability, peace and prosperity to the United Kingdom.

I was a member of the Conservative Political Centre National Policy Group on the Constitution that produced a report, Strengthening the United Kingdom, in 1996. My noble friend Lord Dunlop was also a member, and the committee was serviced by my noble friend Lord Lexden. We emphasised the case for the union. We argued that it reconciled order with personal liberty, and national differences with common citizenship, thanks to one constitutional citizenship established by the union. We also drew out that it creates a constitutional citizenship transcending national and regional parochialism, that it successfully reconciles the ideas of nationalism and nationality and that it promotes cultural diversity and the sharing of rich differences which diversity produces.

I am sure my noble friend the Minister will endorse these essential attributes. I think it important we put them on the record. However, the first point I wish to develop, and invite a response to from my noble friend, derives from another, crucial observation in the report on The Union and Devolution. As it says:

“Proper consideration of the cumulative impact of devolution on the integrity of the Union itself has been lacking”.


This relates to a point that I have pursued for many years, namely the essentially incoherent approach taken by successive Governments to constitutional change. Changes to the constitution have been disparate and discrete, advocated on their individual merits and not set within a clear view of what type of constitution is appropriate to the United Kingdom.

I was recently invited to pen an article entitled “Constitutional Change: Unfinished Business?”. I argued that it was more appropriate to refer to “never-ending business”, because “unfinished business” implies that there is an end-point. There is presently no end-point, because no Government of recent years have articulated what they are working towards in terms of our constitution. Specific reforms have been advocated, and in most but not all cases implemented, by Governments, and there have been changes that are essentially the product of reacting to different demands. The reaction has been, in constitutional terms, incoherent, with no obvious thought about the impact on other changes. As Professor Charlie Jeffery told the committee:

“We have seen ... a real absence of territorial statecraft—thinking about how the state as a whole can accommodate the demands for decentralisation in its various parts. Unless we do that, we will continue on this ratchet process of gradual disintegration”.


Even within the context of devolution, there is a need to see it within the wider context of the union. As we have heard, we need a clearer articulation of the case for the union: to have a grasp of the principles underpinning that union and determining what government should seek to achieve. Unless we have that, government will spend too much time in firefighting mode. However, it was clear from the committee’s two inquiries—this brings me to my second point—that one impediment to achieving this was the structure of government. As we reported in our 2015 report, responsibility for devolution was dispersed within government, with a lack of effective co-ordination and oversight. Indeed, we said it was extraordinary that the Cabinet Minister stated to be responsible for devolution, the Deputy Prime Minister, was not a member of the Cabinet Committee on that very subject.

After the 2015 election, a Cabinet Committee on Constitutional Reform was established. However, it met only once in nine months, with constitutional issues being cleared instead through the Home Affairs Committee. As we said at paragraph 344 of our 2016 report,

“consideration of constitutional issues as simply one part of the work of the much broader-ranging Home Affairs Cabinet Committee risks the loss of any explicit focus on the constitutional implications of the UK Government’s policies”.

The situation has not improved since. If anything, it has got worse. There is no Cabinet committee dedicated to constitutional reform. There is no committee on devolution. The Government in their much-delayed response to the 2015 report said that,

“issues concerning devolution cut across a large swathe of Government business considered by different Cabinet Committees”.

They said that it was up to Ministers to consider the interests of all citizens of the UK and the impact of all policies on the whole of the UK. That is it. It is in effect conceding that the Government have no structured collective means of looking holistically and proactively at devolution, and more generally the constitution. There is the Minister for the Cabinet Office with responsibility for an overview of constitutional issues, supported by the Minister for the Constitution. Where is the Cabinet Minister—where is the Cabinet committee?—that has dedicated responsibility for devolution, for addressing what we need to be doing to preserve the union? Where is the Cabinet committee that has responsibility for looking holistically at our constitution?

There is within government an obvious and necessary focus on Brexit. That, though, should not be at the expense of looking at our constitution as a constitution and how the different parts fit within a clear and coherent framework of principles, derived from an understanding of the constitution we want for the United Kingdom. Without that, we are in danger of a never-ending process of disparate and largely reactive changes, resulting in a constitutional framework that no one wants or necessarily understands. How do Brexit, developments in the union, decentralisation in England and demands for a British Bill of Rights fit together within an intellectually coherent view of the constitution we want for the United Kingdom?

We can, I believe, start to get there from some of the principles enunciated in the committee’s 2016 report. There is value, as a witness citing the noble Lord, Lord Hennessy, said, in looking at,

“the issues that bond the union”,

in essence the constitutional citizenship to which I referred in opening. Professor Adam Tomkins, of the University of Glasgow, now an MSP and formerly a legal adviser to the Constitution Committee, said in evidence:

“We really cannot carry on, in the United Kingdom, developing devolution or developing Britain’s territorial governance in silos … Really for me the value of thinking about principles of union constitutionalism is that it gets us, or might help to get us, out of those silos and into the space where we can start thinking about the things that we have in common”.


Getting out of the silos and thinking about our constitution as such—as a whole and not simply the sum of its parts—is essential. The Government need to be on the front foot and not hunkering down in their silos.

I shall conclude by putting the two questions that derive from this to my noble friend Lord Duncan. First, echoing the noble and learned Lord, Lord Cullen, could he please delineate the principles that govern constitutional change? As I say, we need a clear and coherent framework, not only to know how to respond to demands for change but to be proactive in making the case for the fundamentals of the British constitution that have served us well and are in danger of being swept away.

Secondly, what plans are there to restructure the process of government to address constitutional change? There needs to be a structure to enable the Government collectively, at Cabinet level, to discuss and agree change within that framework of basic principles. The clear message in both reports from the Constitution Committee is that existing arrangements are not up to the task. These are crucial matters of principle and process that need to be addressed urgently if we are to maintain and promote the union of the United Kingdom.

19:00

[Lord Murphy of Torfaen (Lab)]

My Lords, there are four Welsh men and women in this Chamber this evening. We are a band quite unique, bearing in mind that within the hour Wales and Ireland will be playing each other at soccer. That is another story but what it tells us is how important this debate is to those of us who are from Wales, Scotland, Northern Ireland or indeed, as my noble friend Lord Desai said, England.

It has been an interesting debate. I congratulate the noble Lords, Lord Lang and Lord Jay, on their speeches and on their committees’ reports. They are excellent; they outline the issues in front of us vividly and cogently. There is no doubt that the implications of Brexit for the devolved nations of our country are considerable, economically, politically and constitutionally. In Wales, for example, it is hugely significant economically: 70% of Wales’s manufacturing exports goes to the EU. On the question of agriculture, sheep farmers and hill farmers in Wales depend heavily upon the EU. Wales, as opposed to other parts of the UK, is a net beneficiary of EU funding. So to Wales this is an important issue.

A few weeks ago in this Chamber we discussed how important Brexit is to Northern Ireland. It was a very good debate. The problem, of course, is that there is no Executive, Parliament, Assembly or Government in Northern Ireland to deal with Brexit but, as that debate indicated, it is uniquely affected. The uniqueness of the land border is still an unresolved issue, as are the implications of leaving Europe for the Good Friday agreement and the peace process, which were helped by our common membership, with the Republic of Ireland, of the EU. I congratulate the Minister on making his maiden speech later today and welcome him to this Chamber, and I ask him to take back to his colleagues the plea—certainly from these Benches but I am sure from all Benches in the House—that those negotiations be speeded up. So long as there is no Executive or Assembly in Northern Ireland, the voice of Northern Ireland is not directly heard in the negotiations in Brussels.

Another issue touched on by many noble Lords is that the devolution settlement, not just with Northern Ireland but with Wales and Scotland, could itself be undermined unless we handle these negotiations properly, understanding that they can in fact directly affect the relationship between the UK Government on the one hand and the devolved Administrations on the other. The repatriation of powers is crucial to that.

Perhaps the Minister can enlighten us, but an issue that has been largely ignored is that we are still unaware whether the Scottish Parliament, the Welsh Assembly and, hopefully—if it is there—the Northern Ireland Assembly can refuse to pass legislative consent Motions. Even if eventually that does not matter, in the initial stages it would seriously hold up the negotiations.

I want to concentrate my remarks on the relationships, which all the reports touch on, between the UK Government and the devolved Administrations, first with regard to the issue of Brexit. We have said that there is no Northern Ireland Executive to deal with the issue, but a Joint Ministerial Committee (EU Negotiations) has been set up. It is a good idea but does not seem to be doing an awful lot at the moment. The Constitution Committee’s recommendations—for example, on ensuring that there are pre-meetings between the various devolved Administrations and the Government on the work programme, on ensuring there is a link with the proper negotiations in Brussels, and on the timeliness of the JMC (EN)—would make it much more effective. At the moment I fear that it is nothing more than a talking shop, but it needs to be a committee with real powers and real teeth. That would be very important to the EU negotiations.

Happily, the Constitution Committee also talked about the importance of looking at the wider field of relationships between the devolved Administrations and the UK Government. Much has been said about the phrase “devolve and forget”. It is an absolutely apt phrase. I spent 10 years of my ministerial life dealing with territorial departments and their relationships with the UK Government. There is no doubt in my mind that Whitehall and Westminster generally did not take the devolved Administrations all that seriously after devolution; as my noble friend Lord Wigley said, if we think about what is happening in Spain and Catalonia at the moment, we know we do that at our peril. I am convinced that the Catalonia/Spain crisis could have been assuaged if there had been negotiation, debate and discussions between the central Government and the devolved Government to avoid what is happening there now and what is likely to happen in the days ahead.

I agree with the noble Lord, Lord Lexden, about the Government’s response to the Constitution Committee on the work of the JMC. It was pretty hopeless, to be honest—a load of bureaucratic waffle. All the committee’s suggestions on how to improve the workings of the JMC were ignored, but the Government did not give any reason for doing so. For example, the Government do not agree that the JMC should be put on a statutory footing. Why not? What is the problem with that? It would make it more effective and give it more teeth, which would be very useful. Not a word—they just did not agree with it, end of story. That is because they do not think enough about it or take it seriously enough.

What about the question of a Cabinet Minister responsible for devolution? “There’s no point in having one. We’ll have a junior Minister in the Cabinet Office dealing with that”. When I was Secretary of State for Wales on the second occasion, I was charged by Gordon Brown with the responsibility generally for devolution and the working of the JMC. So I suppose you can blame part of the problem on me in those years, but at least we tried. It meant that I went to Edinburgh and Belfast; even though my responsibilities were technically Welsh ones, I had the general responsibility of ensuring that these institutions at least met and had some meaning. So I think there should be a Cabinet Minister. It could be one of the three territorial Ministers, as it was in my case, or it could conceivably be the Lord Chancellor, as it sometimes was, but there should be a serious attempt by the Government to ensure that proper Cabinet ministerial responsibility is held on these issues, together with a Cabinet committee.

There should be an annual report to Parliament—in the House of Commons it should be delivered by the Prime Minister; here, by the Leader of the House of Lords—on the relationship between the devolved Administrations and the UK Government. We simply do not take this seriously enough and, I repeat, we do so at our peril.

It is not just about the current situation; it is about the exchange of best practice. If Scotland are looking after the health service in a certain way which is good, why cannot the health services in Northern Ireland, Wales and England benefit from that experience? Why cannot there be sub-committees of the joint ministerial committees which meet bilaterally on different issues? This really has not been thought about enough. I hope that one result of this deliberation and debate is that the Government will at least consider improving the way we structure our relationships governmentally in this country.

There is another organisation, of course. The British-Irish Council was set up by the Good Friday agreement to deal with the so-called strand 3 of the agreement: east-west relations. It is the only one that allows the British and Irish Governments to get together. Its counterpart, the British-Irish Parliamentary Assembly, which meets this weekend in Liverpool, is the only body that brings together parliamentarians from across these islands. Why cannot that be used to consider best practice and improve relations?

More than 10 million people live under the devolved Administrations in Wales, Scotland and Northern Ireland. Frankly, they deserve better, and perhaps the Minister can give us some hope that, in the weeks and months ahead, we can improve the situation—not least because of what is happening with Brexit.

19:11

[Lord Selkirk of Douglas (Con)]

My Lords, the speech just made is very interesting, because we are well aware that the devolution issues relating to Scotland, Wales and Northern Ireland are all quite different. The noble Lord, Lord Jay, led delegations from his Select Committee, on which I serve, and we went to each of the parliaments and saw very clearly not only that the issues are different but that we have a lot to learn from each other.

Tonight, I warmly welcome the noble Lord, Lord Duncan of Springbank. He is a very experienced parliamentarian from the European Parliament, and we very much look forward to his maiden speech—although I can think of few parliamentarians who have made more speeches before they make their maiden speech in this Chamber.

I served as an MSP for the first eight years, as did the noble and learned Lord, Lord Wallace of Tankerness, whom I vividly remember performing very effectively as Acting First Minister of Scotland when the Scottish Parliament met in Glasgow.

The Government and the opposition parties have been concentrating for months on how we can successfully undo the complex ties which bind us to the European Union. We know that there is still a long and winding parliamentary road ahead for us all to navigate, but while we discuss powers wielded by Henry VIII and the future jurisdiction—or more possibly non-jurisdiction—of the European Court of Justice, it is extremely important that we do not weaken the structure of our United Kingdom. I hope that the Minister will acknowledge this danger and assure us that the Government will do everything in their power to hold together what the Prime Minister has described as our “precious union”.

During the current Brexit process, this calls for an understanding of the sensitivity and hostility of the devolved Administrations to any unjustified retention by Westminster of power returned from the EU. It also requires a wholehearted commitment by representatives of the devolved institutions to engage in genuinely trying to reach agreements which benefit the whole United Kingdom.

The report Brexit: Devolution by the European Union Committee, of which I am a member, recognises the real danger which leaving the EU can pose to the somewhat piecemeal political structure and asymmetrical disposition of devolved power in these islands. It correctly concludes that our membership of the European Union has, as was said by the noble Lord, Lord Jay,

“been part of the glue holding the United Kingdom together since 1997”.

It continues:

“In practice, the UK internal market has been upheld by the rules of the EU internal market”.


It warns presciently that with Brexit comes,

“a risk that the complex overlapping competences within the UK could become increasingly unstable”.

Those statements come from pages 12 and 74 of the report.

The report cites the supremacy of EU law and its interpretation by the European Court of Justice as having ensured the consistency of regulations and standards across the whole United Kingdom. This includes devolved areas such as fishing, agriculture and the environment, whose future governance has already become a source of conflict between Westminster and the Scottish and Welsh Governments.

Clearly, it is a difficult balancing act to return power over those areas from Brussels directly to the devolved Governments while making sure that this does not result in a kind of economic balkanisation which damages the seamless working of the UK’s internal market, but this is surely a prime example of the need for the intergovernmental dialogue and co-operation which the report recommends. It must be improved, strengthened and made more transparent.

According to the report, most of the witnesses who gave evidence to the committee agreed that the United Kingdom Government needed to raise their game in this respect. It suggests that this could begin by making the present joint ministerial committees more effective by more preparation, a structured work programme and a willingness to accept that the Joint Ministerial Committee (EU Negotiations) is much more than a talking shop. The Constitution Committee, in its report Inter-governmental Relations in the United Kingdom, also acknowledges the need for improved lines of communication between the nations of the United Kingdom and calls for meetings of the joint ministerial committees to be given a higher profile, with more explanation of their work. The positive, well-thought-out recommendations of the noble Lord, Lord Norton, deserve to be given careful and serious consideration.

In their response to the EU Committee’s report, the Government insist that they have been clear from the start that the devolved Administrations should be fully engaged in the EU exit process. We can achieve far more,

“if we pull together than if we are divided”,

they say. Any post-Brexit changes, however,

“would be for the UK Parliament and where applicable the devolved legislatures to comment upon”.

It is hard to look beyond Brexit, but once our new political course is clearly set, we must take action to shore up our own union. One aspect of this was referred to the other day, when our Scottish leader Ruth Davidson criticised Britain for being too London-centric, calling for more jobs and cultural institutions to be located around the country, better to spread the benefits of the union.

The EU Committee report sees the need in the longer term for a strengthened forum for inter-parliamentary dialogue within the United Kingdom, and states that its resourcing and relationship with existing bodies such as the British-Irish Parliamentary Assembly needs careful consideration. It promises that this House will hope to play a part to begin with, by developing and broadening its well-established mechanisms for collaboration with colleagues in the devolved legislatures.

Can the Minister assure us that the Government will be sympathetic to all such aspirations and that they truly understand the need for more diversity, flexibility and transparency as we seek to strengthen and nurture our most precious union, now and in future?

19:19

[Lord Bruce of Bennachie (LD)]

My Lords, the mood of the House seems to confirm a long-held view of mine: that the UK needs a root-and-branch overhaul if it is to hold together. That is behind many of the speeches that we have heard.

The destructive forces of nationalism—British, Scottish and Irish—have divided us to such an extent that rational decision-making is becoming nearly impossible. A referendum that I recall was supposed to unite the Conservative Party has split that party and the country. The Tory party is now a faction containing two factions fighting like ferrets in a sack. Survival of the Conservative Party, whatever it costs the nation or the interests of the people, is the overriding and only glue that holds it together. If the Tory party does not split, the nation will.

The hope and belief for the EU for many people was that it would act as an umbrella to accommodate and moderate the forces of nationalism. To some extent, that was why the EU was created in the first place. The EU provided the common space to move forward the peace process in Ireland. For many years, the SNP sought to blunt the barb of separatism by calling for independence in Europe, thus reassuring unionist sentiment that we would still be in the same family, even if Scotland became independent. The question for us is whether Parliament can save the United Kingdom from the divisive, destructive forces of the Conservative Party.

Here is an irony. At this year’s election, the Tories fell back everywhere but in Scotland. The Scottish Conservatives have 12 MPs, distinguished sharply, at least by their leader, from the ultra-conservative Democratic Unionist Party within the current government arrangement. In my part of Scotland, the Conservatives had their biggest surge for decades. North-east Scotland appears now as the Tories’ biggest stronghold across the UK. They took six out of seven seats, including my former constituency of Gordon. Why was that? Quite simply, it was a reaction against the SNP and, perhaps particularly, its former leader Alex Salmond.

In 2015, when I retired as a local MP, my party the Liberal Democrats fought a strong campaign to retain the seat with our candidate, Christine Jardine, now the MP for Edinburgh West. Sadly, Edinburgh’s gain is Gordon’s loss. Gordon had voted by two to one on a nearly 90% turnout against independence. Yet only a few months later, they voted in the former leader of the SNP as their local representative. For that, I blame David Cameron. The day after the independence referendum, he called for English votes for English laws—EVEL. “Evil”—a very good name for it. He knew what he was doing: he was promoting the electoral chances of the SNP to defeat Labour in its former stronghold of Scotland and secure a Conservative majority. And it worked.

However, on his election, Alex Salmond interpreted the result as mandate to campaign for a second independence referendum, which was a total misjudgment. The majority of his constituents were outraged. I know that from the doorsteps. Mr Salmond seemed to think that the pathological dislike of the Tories that had characterised Scottish politics for years was irreversible. He accused Liberal Democrats and even Labour of betraying Scotland and effectively endorsing Tory rule. The irony is that Alex, who loved to coruscate the Tories and fellow travellers, gave them the oxygen they needed. Tory strength in the north-east of Scotland was largely achieved by Mr Salmond’s arrogant misjudgment of local people, and his party has paid the price.

So the Tory revival in Scotland is entirely due to its robust campaign to gather the anti-independence referendum forces behind its banner. I am not decrying that as a political expedient—and it worked. But it was certainly not an endorsement of the Brexit shambles now being stumbled through by Mrs May’s Government. I doubt if it was even support for the more attractive brand of social Conservatism espoused and promoted by Ruth Davidson. After all, as a cheerleader for Theresa May she faces a backlash in Scotland if the outcome is as disastrous for the will and interests of the people of Scotland, as now seems likely.

So what do we do now? The SNP Government are wrong to pursue the idea that somehow, Scotland, as part of the UK, can maintain membership of the single market, the currency union or even some kind of EEA arrangement. That is simply not politically or legally achievable. But they are right to join forces with others to fight for continued membership of those institutions, or the best possible access that we can achieve. In my view, they should challenge Ruth Davidson and the Scottish Conservatives to join with them, and they should put Scottish Labour under pressure to do likewise, and make Jeremy Corbyn understand that, without a more constructive approach to Brexit, he will find it much harder to build a majority in any future election.

As a number of noble Lords have said, what has happened and is happening is piecemeal and full of anomalies and contradictions. These reports, as we would expect of reports of this House, are a constructive, useful and helpful contribution to the debate, even if they are somewhat belated in coming to the House. We have to assume, of course, that the key players who are making decisions are listening to this debate. If the devolved Administrations and a significant section of regional government in England—the noble Lord, Lord Desai, is right about that—see leaving the single market and the customs union as damaging and disturbing, do not the Government have a responsibility to explore how much of those we could remain connected to and what compromises would be worthwhile for that purpose? I look to the Minister in his maiden speech.

The problem I articulated at the beginning of my remarks is that it seems that the extreme Brexiteers want to break off all connections with the EU and float off into the mid-Atlantic, and will go ape at any suggestion of compromise—but without compromise there can by definition be no agreement. We know that huge sectors of British society and the economy want to maintain good links with the EU. We know that our financial services still want to serve the EU market. We know our universities and research institutions want continued co-operation. Student exchanges want to continue, and we want to collaborate on culture and the arts as well as intelligence and security—the list is almost endless. The noble Lord, Lord Murphy, mentioned the sheep sector and the rest of the agricultural sector. I am not sure whether noble Lords recognise that in the week after the EU referendum, exports of Scottish lamb to France fell by 80%. They recovered because there was nowhere else to get lamb from, but it tells you that the French will not buy Scottish lamb when we leave the EU, which will destroy our entire sheep sector.

Where is the leadership? The current devolution settlement is inherently unstable, and leaving the EU makes it more so. We need some kind of constitutional convention to explore the basis for a sustainable way of governing the United Kingdom and maintaining good relations with our neighbours. We need a clear statement of where power lies—at which level—and how disputes are resolved. There may well be justification for replacing the Barnett formula with a needs-based approach and a proper share of tax revenues and tax-raising powers, as long as it is not done in an inherently destabilising way.

I am a bit disappointed that the reports reject fairly quickly any form of English Parliament, arguing that England is too big. That fails to address the fact that English MPs and voters see no need for an English Parliament because they regard this Parliament as the English Parliament. That is not consistent with the devolution settlement that we have maintained. There is a good case to be made for devolution within England—I accept that. There is a good case for devolution in Scotland, by the way, as it has been overcentralised under the SNP. But English regions should not be equated with the devolved Administrations; they do not have a historical identity.

Whether it is a Parliament or not, there needs to be an England-wide legislative forum, and we need to work out how we do that. Doing it piecemeal, as EVEL does, creates resentment, just as transferring decision-making to the devolved Administrations creates resentment in England. We need to acknowledge that. But is it not time to stop addressing legitimate concerns in ways that kick off more grievance, and to make a radical change through proper constitutional arrangements?

I would look for a federal constitution, recognising the status of England, clearly defining the powers for all components of the UK and guaranteeing the rights of local government and individual citizens. This issue is bigger than any one political party. No party can be trusted with this, and certainly not the Conservative Party. If we carry on in this incoherent, ad hoc fashion we will not just severely damage the UK’s economic and political wellbeing and our standing in the world, which is already suffering; we will undermine the sustainability of the United Kingdom as a whole. It is time to think hard and long.

19:30

[Baroness Wilcox (Con)]

My Lords, I am pleased that I follow the noble Lord, Lord Bruce, because I was getting madly overexcited about the life ahead that I am going to have when we get out, have our go and enjoy ourselves. Listening to the noble Lord, I thought: “Gosh, what a dreary world he wants to live in”. I am glad to follow him because I think I can cheer him up.

I am a member of the EU Select Committee. I am delighted that the noble Lord, Lord Jay, was our chairman and the House has heard a wonderful speech from my noble friend Lord Lang. If I had to pick two men to get out there and run it for us, these two could make it very well. I am looking forward no end to hearing from the Minister, the noble Lord, Lord Duncan of Springbank, as he makes his maiden speech in the ministerial reply, which is unusual and different. I draw attention to the recent entry I have made in the register of interests as president of the National Consumer Federation. I have returned to representing consumer interests—work which brought me to this House some 20 years—this time doing so throughout the Brexit negotiations. This is an exciting and wonderful time for us to all work together.

Our report draws attention to the risks resulting from the complex, overlapping competences within the United Kingdom and the devolved regions, and the loss of the overarching EU legislative framework within which devolution has developed since 1997. As has been said, there is now an urgent need for a guiding strategy, or framework of principles, to ensure that devolution develops in a coherent and consistent manner, and to ensure that the devolution principles are underpinned by a clear and agreed framework of guiding principles. I seek assurance from the Minister, as did my noble friend Lord Lang and the noble Lord, Lord Desai, that these conclusions will be acted upon and that work will commence without delay to reform the Barnett formula.

Brexit provides many opportunities for the United Kingdom to regain control of our waters and to redevelop our fishing industry. Fisheries is a devolved policy but close co-ordination must be maintained if the United Kingdom is to achieve the future benefits that Brexit offers. The UK will assume control of 200 nautical miles and will soon be able to control access to them. Conversely, UK vessels will no longer have automatic access to EU waters. In the six to 12 nautical mile zone, those with historic rights to fish may retain their rights. Under the UN Convention on the Law of the Sea, the United Kingdom, as a coastal state, will need to sustainably manage fishing activities within our exclusive economic zone. It will be essential for the UK Government and devolved Administrations to work together to develop and implement fisheries policy after withdrawal from the EU. We will be required to co-operate with other coastal states to manage shared stocks. To achieve this, it is likely that some kind of quota system will be needed again to minimise the risk of overfishing. It is in all our interests for any agreements to be consistent throughout the British Isles and between the UK and our neighbouring states.

I ask the Government to implement strategies and effective mechanisms to ensure that the United Kingdom benefits fully from regaining control of all our fisheries. I also urge the Government to ensure that the inshore protection vessels start to be built now and that we look to control our waters with offshore vessels for the wider EZ. This request could equally be directed at other business sectors where interests are wider than a single devolved region.

As a long-term consumer champion who also has business interests, particularly in the small firm area, I have considerable interest in the need to maintain the integrity of the United Kingdom’s internal market post Brexit. Consistent UK consumer rights and regulation are fundamental to an effectively operating UK market. These issues are common to all consumers, whether from Northern Ireland, Scotland, Wales or indeed the regions within England. After all, consumers contribute 65% of the UK’s economy. Scotland trades about £50 billion per annum with the rest of the UK, for example, and much of that trade will be in consumer goods and services purchased in the three other UK nations. In meeting the challenges for devolution identified in our report, there is an opportunity for closer co-operation across the devolved regions for business and societal stakeholders. Working together, businesses and consumers have the potential to deliver an enhanced, thriving, internal market that in turn will act as a springboard for our global market ambitions.

It is certainly a challenge to transpose all the legislation built up over more than 40 years into UK law. Earlier this year the NCF held its congress to identify key messages for Government as we leave the European Union. Among the messages delivered by the congress was a call for current UK policy to protect consumers to be maintained and that, where there are gaps in domestic policy, protection should be enhanced and strengthened, especially in relation to cross-border legislation such as e-commerce, health and passenger rights. Our people’s safety is a priority; intelligence-sharing and systems of redress must continue to operate cross border. Our needs for protection and fairness are the same across all the UK.

As we transpose all the required legislation into UK law, I am concerned that lack of enforcement of the law could threaten businesses and consumers alike. All the changes we face could, without proper enforcement, provide opportunities to defraud the system and provide inadequate services to us all. As we proceed with Brexit, our ability to monitor consumer markets and enforce regulation, through trading standards and industry self-regulation across the nations of the UK, needs strengthening and improving.

In conclusion, I quote from our committee’s report, Brexit: Devolution:

“Brexit will be a major constitutional change for the United Kingdom. Any attempt to use Brexit to make a power-grab, either to ‘re-reserve’ powers previously devolved, or to claim more devolved powers, could compound instability: this is not the time to embark on controversial amendments to the devolution settlements ... The House of Lords Constitution Committee has concluded that hitherto ‘there has been no guiding strategy or framework of principles to ensure that devolution develops in a coherent or consistent manner’. We agree. Brexit makes it more important than ever that a clear and agreed framework of principles should underpin any future reform of the devolution settlements”.


It is vital that there is a well-managed, close co-operation between the UK Government and the regions on devolved matters and where consumer interests are involved. Stakeholders need to be directly engaged in the process and this can be facilitated only by our Government.

19:39

[The Earl of Lindsay (Con)]

My Lords, I welcome my noble friend Lord Duncan of Springbank and warmly congratulate him on his appointment to the Scotland Office. He brings very valuable experience to that role and to this House. His career has seen him working for the Scottish Refugee Council and the Scottish Fishermen’s Federation and he knows the length and breadth of Scotland in considerable detail. He also brings a very timely experience to tonight’s debate in that he has worked for the Scottish Parliament, which has seen him gain first-hand experience of the JMC in action.

I also thank my noble friend Lord Lang and the noble Lord, Lord Jay, for introducing their excellent reports. I would happily speak on all three reports but, for the sake of brevity, I want to focus on the issues raised in the report from the Constitution Committee on Inter-governmental Relations in the United Kingdom. In introducing it, my noble friend suggested that his report remains relevant and valid. Sadly, this is the case. It is very disappointing that in October 2017 intergovernmental relations within the United Kingdom remain as much of a concern requiring urgent attention as they were when the Constitution Committee published its report and recommendations in March 2015, two and a half years ago.

The disappointment is all the greater given that some months before the Constitution Committee published its report and recommendations in 2015, the then Government had accepted a key recommendation on the importance of achieving better intergovernmental relations from the noble Lord, Lord Smith of Kelvin, which he issued when the Smith commission launched its report in 2014. The recommendation from the noble Lord, Lord Smith, was:

“Both Governments need to work together to create a more productive, robust, visible and transparent relationship. There also needs to be greater respect between them”.


The Government, in their response to the Smith commission, agreed with his call for greater intergovernmental co-operation and respect with the following statement:

“Effective inter-governmental working is essential to guarantee the best possible provision of services and representation for the people of the UK; a renewed commitment to build these relationships and explore better ways of working, as recommended by the Smith Commission Agreement, will require close collaboration between the UK Government and Devolved Administrations”.


The Government made that commitment nearly three years ago.

It has to be said that the recommendations of the noble Lord, Lord Smith, in 2014 and of the Constitution Committee in 2015 were not the first time that the Government had been told that the need for greater intergovernmental co-operation was a problem that needed to be urgently addressed. Five years earlier, in June 2009, a similarly urgent call for action was put to the Government by the Calman commission when it published its report and recommendations on Scottish devolution.

I was a member of the Calman commission, as was the noble and learned Lord, Lord Wallace of Tankerness. He and I both have particular reason to recall that the importance the Calman commission placed on both intergovernmental and interparliamentary co-operation was such that it became one of the longest chapters in our report and ran to 23 separate recommendations. I believe that it ran to something like 40 pages. We deliberately put it at the heart of the Calman commission report because we saw it as being such an important strand.

That call for action from the Calman commission was issued over eight years ago. The call for action from the noble Lord, Lord Smith of Kelvin, was made three years ago. The call for action from the Constitution Committee was made two and a half years ago. Here we are in late 2017, three calls for action later, still needing to see greater action and greater progress being sought and achieved. I am not suggesting that nothing has happened since 2009 to improve intergovernmental relations, nor am I underestimating the difficulty of strengthening co-operation when one of the parties involved is happy to see it frustrated. However, if you look at the timeline from Calman to today and the actual detail of the recommendations that were issued in 2009, 2014 and 2015, it is deeply disappointing that more progress has not been made. I echo the lament of my noble friend Lord Lang that there seems to be no sense of urgency.

The message over eight years has remained constant and unambiguous—that the need for co-operation is compelling and that good intergovernmental relations, alongside the ability of different Governments and Parliaments to co-operate and work together in a constructive and structured manner, are essential ingredients of a stable, devolved constitution. How can greater progress be achieved going forward and how can it be achieved without further delay? My noble friend suggested that we need a new attitude and a new mindset and I agree. I believe that we need a new focus, new energy and new determination.

The recommendations of the Calman commission and the Constitution Committee need to be dusted off and reviewed with a commitment to implementing a series of fresh measures. Many of the recommendations of Calman and the Constitution Committee are relatively modest or straightforward. Few require any legislation and all are practical and focused on delivering improved intergovernmental and interparliamentary relations. Therefore, the question is: where do we look for the much-needed new focus, energy and determination that need to be brought to bear? I was interested to hear my noble friend Lord Lang suggest that our noble friend on the Front Bench would bring a fresh eye to this. I completely agree. He is new to his role and intergovernmental relations are an important dimension of his ministerial responsibilities. As I said at the beginning, his career to date is very well suited to someone who wants to bring fresh energy to the intergovernmental sphere, as he has worked for the Scottish Parliament and seen the JMC in action.

Furthermore, those noble Lords who know my noble friend know that he does not lack focus, energy or determination. Therefore, I very much hope that when he sums up, he will set out not only the Government’s commitment to the early delivery of further measures designed to improve intergovernmental relations across the United Kingdom but also his own commitment as a Minister with Scottish and Welsh responsibilities to ensure that rapid progress is made.

19:47

[Baroness Randerson (LD)]

My Lords, I thank the committees for their excellent reports that provide a very thorough background, albeit some of it is almost historic as they have been in existence for so long before we debate them.

The noble Lord, Lord Lang, emphasised the lack of care and involvement of the UK Government in constitutional affairs and said that we must stop taking the union for granted. This Government have at best a chaotic attitude to constitutional change. In fact, for decades Governments have been less than systematic in their approach to the devolved Administrations and to the process of constitutional change as a whole. Of course, the current Government have their eyes, hours and funding all fixed on Brexit. However, Brexit itself fundamentally shakes the foundation of the union. It does so most noisily in the case of Scotland. These arguments have been well rehearsed here today. However, the impact in Northern Ireland, which has received less attention today, is massive and potentially tragic, and it is overwhelmingly ignored in England in my experience. Over the summer I had discussions with senior figures in Irish politics. They see no realistic practical solution to the border issue which observes both the spirit and the letter of the Belfast agreement. I do not need to spell out to noble Lords here today that that has huge implications for politics in Northern Ireland.

However, I want to concentrate on Wales, which, as usual, has received less focus today than Scotland, despite the efforts of, among others, the noble Lord, Lord Murphy. The noble Lord, Lord Jay, set out clearly the situation in relation to EU powers on, for example, agriculture and the environment and their importance to the devolved Administrations.

I do not always agree with the First Minister of Wales but I certainly always agree with his right to be at the table and his right to be heard. In his response to the EU Committee’s report, he emphasised that the Welsh Government have repeatedly but vainly tried to engage with the UK Government. Indeed, they put forward their own policy paper on Brexit and devolution, and I recommend it to those noble Lords who have not yet had a chance to read it. That paper emphasises that the National Assembly for Wales is now the principal law-making body for Wales in most matters that affect people’s daily lives; for example—it is a long list—health, education, training, housing, the environment, economic development, local government, transport, planning, agriculture, fisheries, culture, sport and recreation. Several of those powers—for example, those relating to the environment, agriculture, fisheries and economic development—are exercised specifically according to the framework of EU law.

This Parliament retains the power to legislate on any matter for Wales, as it does for the rest of the UK, but, according to the Sewel convention, which several noble Lords have mentioned today, Parliament will not normally legislate for Wales on matters within the legislative competence of the National Assembly for Wales unless the Assembly has given its formal consent through a legislative consent Motion. That Sewel convention has been observed throughout the history of devolution.

The Welsh Government also have their own direct relationship with the EU, as does the Welsh Assembly—for example, on the administration and strategic direction of structural funds and on implementing the common agricultural policy. They also contribute to European Councils, which Welsh, Scottish and Northern Ireland Ministers attend. I did so myself when I was a Minister in the Welsh Government. It is not surprising, therefore, that the Welsh Government take strong issue with key sections of the Government’s response to the EU Committee’s report.

I agree with those noble Lords who raised the Barnett formula. Some welcome progress was made on this issue during the coalition Government and more recently in the Wales Act 2017, but then a bomb was placed under it through the deal with the DUP to keep the Conservative Government in power. However the additional billions are channelled to Northern Ireland, you cannot escape the fact that that deal upsets the uneasy balance that the Barnett formula represents.

The Welsh Government’s paper proposes, for example, replacing the JMC with a new UK council of Ministers to take forward negotiations, reach binding decisions and resolve disputes. My experience of the JMC is that it is not the most productive and effective of organisations, and that experience predates the point at which Brexit became such a divisive issue. As my noble and learned friend Lord Wallace pointed out, the JMC body established by the UK Government specifically to deal with Brexit has not met since early February, despite repeated calls by both the Welsh and Scottish Governments for it to do so. By any measure, the UK Government are clearly not even pretending to take that process seriously. Noble Lords could draw the conclusion that the Government are simply frightened of meeting the devolved Governments because they have no answers to the constitutional issues they raise.

I am also informed—I would be interested in the Minister’s comments on this—that there has been a total lack of consultation on the series of position papers issued by the UK Government over the summer, even when those papers dealt with devolved issues. The Welsh Government apparently received less than 24 hours’ notice that they were even being published.

The Government’s response represents the status quo on EU policy-making. It says:

“The UK Government is responsible for ensuring that the internal market within the UK operates freely and openly … The powers currently held by the EU that provide that guarantee on the internal market are not, and never have been, within the competence of the devolved administrations”.


However, in relation to devolved powers, such as on agriculture, the UK Government have in practice been formulating their responses in agreement with the devolved Governments. I repeat that those responses to European powers have been made with the agreement of the devolved Governments.

In respect of Wales, the government response talks specifically about the,

“opportunity to redesign our policies to make them work for us”—

the “us” being apparently the UK Government. It applies this approach to agriculture, which is of course a devolved issue. It talks about replacing structural fund programmes with a new fund, but those structural fund programmes are entirely devolved to the Welsh Government. Taking those comments along with the lack of a sunset provision on the powers that the UK Government intend to repatriate from the EU to themselves, is it a surprise that when the Government say to us, “Trust us. We’ll bring back these powers from the EU but we’ll pass them on to the devolved Administrations in due course”, so many of us simply do not trust them and suspect that this is a simple power grab by the UK Government? I remember when debating the Wales Bill having time and again to argue against the centralisation of powers.

Brexit threatens to destabilise our already shaky union. Northern Ireland poses an impossible conundrum and upsets the relationship with one of our closest neighbours—the Republic of Ireland. Northern Ireland is nowhere near as settled as it looks from this side of the water. Wales already resents the disdain with which its problems are treated by the UK Government. Recent events in Catalonia should warn the Government to take nothing for granted in Scotland. The Government must wake up and smell the constitutional coffee. They simply must engage fully with the devolved Administrations and recognise that they have to go forward with the express consent of the devolved Administrations.

I look forward to the Minister’s response and I welcome him to this Chamber. As someone who previously spoke from that place for the Wales Office, I shall be particularly interested in what he has to say in relation to Wales, but I hope that he finds his job enjoyable and fulfilling. In the long term, our untidy, lopsided devolution settlement becomes less and less sustainable and acceptable. I urge the Government to listen to those pressing for the establishment of a constitutional convention, to engage with civil society as well as politicians, and to restore respect within the union.

20:00

[Lord McAvoy (Lab)]

My Lords, I begin by adding my thanks to the members of the Constitution Committee and the European Union Committee for their work in producing these excellent reports. In introducing his committee’s report, the noble Lord, Lord Lang of Monkton, displayed the intellect and experience he has shown throughout the years of his ministerial career. His dissection of the SNP’s record in government goes a long way to explaining, perhaps, his attitude. Perhaps, though, he was in danger of re-running the devolution battle and vote as he showed us his long-standing and genuine concern about the possible eventual road from devolution to separation. We must all work together to make sure that that does not happen. Support for the union has been common throughout the Chamber—in varying degrees, at times—and I add my support to that.

I welcome the noble Lord, Lord Duncan of Springbank, to his post. He follows an extremely distinguished predecessor in the noble Lord, Lord Dunlop, who raised the bar very high and gained the support of this side of the House on many occasions with his attitude and ability. We wish the noble Lord, Lord Duncan of Springbank, well in his new post.

The reports before the House on the union and intergovernmental relations focus on the United Kingdom’s inner workings: how we work together and how we work as one. We are, as the committee expressed, a union by consent, and our political settlement is unique to our United Kingdom. I am a very firm supporter of the union, but it is over 300 years old and we cannot say that it should not evolve, devolve or change in any way—things have got to change in the light of experience and reality. But for as long as the union is there, it will have our full support.

The Constitution Committee outlined the strengths of the union and the risks to it in the context of Brexit. As has been stated before, it is striking that these first two reports were written before the vote on 23 June 2016. The issues raised over the stability of the union, the need for a blueprint for the future and the shortfalls of the joint ministerial committee have a new context and increased urgency in the light of the current EU negotiations.

It was interesting to hear positive support for Brexit from—what is her name?—the noble Baroness, Lady Wilcox. I remember her well as a Minister and so should not have forgotten her name; my apologies.

The stability of our union requires careful management of the balance between unity and diversity. This is a mainstay of the report’s conclusions. Brexit is an acute test, and an opportunity, for this. Getting Brexit right for the United Kingdom means getting it right in Northern Ireland, Wales, back home in Scotland and, as my noble friend Lord Desai mentioned previously, here in England too.

The European Union Committee report summarises the political complexities that are the backdrop to these negotiations: the Scottish independence question, which was a threat to the union; the very real concern of colleagues in the Welsh Government that Wales will be overlooked, which has also been expressed here by colleagues from Wales; and the lack of a functioning power-sharing Executive in Northern Ireland, as so expertly diagnosed and commented on by my noble friend Lord Murphy of Torfaen. It has been six months since an Executive were in place in Northern Ireland. The Government have supported multiple rounds of negotiations, which have failed to return devolved government to the people of Northern Ireland. With what new conviction and what level of involvement will the Prime Minister of the United Kingdom approach the current round of talks to ensure that the outcome is different?

The Secretary of State for Exiting the European Union is currently engaged in the first round of negotiations in Brussels, which include the stark issue of the Irish border. I am impressed and pleased by the unity around the Chamber on the unique position of Northern Ireland as part of our United Kingdom. We all need to work hard to make sure that we come up with a sensible, practical solution that we can implement to assuage the fears expressed by that part of the United Kingdom. We commend the agreement there has been on all sides on the importance of retaining an open border and the Government’s stated commitment to the Good Friday agreement in their duty as co-guarantor. But—and I am not trying to gain party-political advantage here—this is the second set of negotiations in which the Government have achieved far too little. It is imperative that the Northern Irish parties are properly consulted and engaged with as we grapple with the future of this shared UK-EU border.

The joint ministerial committee has been mentioned a lot, and I was especially impressed by what the noble Lord, Lord Norton of Louth, said—he will be pleased that I managed to say his name without stuttering this time. He stressed the importance of the mechanics of government that would make sure this co-operation is extended. The reports detail the strengths and shortcomings of the joint ministerial committee. Concerns have been expressed a few times around grandstanding and time limits, but the report also recognises the strength of these formal channels in bolstering informal communication between Governments. It is difficult to say how well the Joint Ministerial Committee (EU Negotiations) has been working this year, since it has not met since February.

The Labour Party took seriously the committee’s recommendation that the Government should consider setting the JMC out in statute, which has been mentioned tonight by a number of noble Lords. We supported amendments during the notification of the withdrawal Act which would have built consultation with the devolved Administrations formally, in statute, into the Brexit process. Rather than this structured blueprint on how to move forward, the Government opted instead for no blueprint. Can the Minister tell the House with what frequency and through what mechanisms the devolved Administrations have been consulted in lieu of the JMC meeting?

The reports powerfully raise the issue of shared and overlapping competencies between the UK Government and devolved powers, with the EU Committee’s report setting out the new landscape we have to navigate. We take the point of view that these are not problems to destroy things but opportunities to come to new agreements and co-operation for the good of the people we all represent. It has been mentioned often tonight that as powers are repatriated to the UK from the EU, the EU frameworks that standardised, for example, the UK’s single market, will no longer be applicable. The number of varying competencies that overlap between devolved and central jurisdictions will increase. If ever there was a moment for a thought-out blueprint on UK governmental relations moving forwards, it is now.

Genuine fears have been expressed on all sides of the House that the withdrawal Bill brought forward by the Government fails to achieve this. There are concerns that it represents a sweeping power grab by Ministers at the expense of the sovereignty of this Parliament, and undermines the United Kingdom’s devolution settlements. We all have the responsibility to make devolution work—the United Kingdom Parliament and the devolved Administrations—because we all represent people. I take the point of view that we are all trying our best to do that. But in our opinion, it requires slightly more determination to consult with the devolved Administrations and come to practical agreements with them.

Labour has tabled an amendment to remove the proposed restrictions on the ability of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly to legislate on these devolved matters. Your Lordships’ House will be aware that the Welsh and Scottish Governments have already worked together to publish a series of amendments on devolved issues in the Bill. It is not a case of accepting willy-nilly what anyone else says: these are serious people bringing forward serious suggestions and they should be looked at seriously for the future of the United Kingdom.

With regard to future working, in the coming years the Government will have to work closely with the devolved Administrations. Devolution is here to stay, but we need to secure a post-referendum settlement for the UK. I suggest that the Bill is not the best way to begin that process. What is the Government’s vision for the future devolution settlement in the United Kingdom? What thought has been given to establishing structures to be put in place so that the common frameworks that the UK as a whole needs to thrive can be consulted, agreed and legislated on?

I raise a final point about the Civil Service expertise that was also recently raised in the excellent paper on British-Irish relations. Different departments work with the devolved Administrations to differing degrees, as has been mentioned tonight. As the committee expressed, there are differing levels of success. But as officials work through repatriated powers and changes to policies in the coming years, it is incredibly important that they understand the significance of a policy for the people on the Isle of Barra as well as in Birmingham, for example. Can the Minister tell the House what the Government are doing to ensure that expertise about the devolved jurisdictions is widespread through the Civil Service?

We take the point of view that the union need not be threatened or jeopardised by devolution. The facts of life in Scotland are that the Labour Party was elected on a mandate in 1997 to hold a referendum. The Scottish people voted quite overwhelmingly for that. That is their expectation and that is their demand. The demand on all of us is to make sure that it works.

20:12

[The Parliamentary Under-Secretary of State, Scotland Office (Lord Duncan of Springbank) (Con) (Maiden Speech)]

My Lords, this is the first time I speak in your Lordships’ House. The phrase “baptism of fire” probably springs to mind. This is indeed one of the most challenging issues that we will face as a country and as constituent parts of that country. But before I go on to that, if I may, this is also my maiden speech so I hope noble Lords will indulge me for a moment before I return to the business in hand.

I come to the House from another place, not along the Corridor, as many have done—not for want of effort on my part, I hasten to add—but from over the channel, from Brussels and the European Parliament. I represented Scotland, the largest and many would say the best constituency in the European Union. I learned a great deal from watching how that chamber works. Some things worked well and some things did not. I suspect we will be able to look again at how things are developing there with some interest as the Brexit process goes on.

Just as Charles de Gaulle lamented the challenge of governing a land of 246 cheeses, the challenge is all the greater trying to represent a land of 118 distilleries, as Scotland has. However, the tour is slightly more invigorating than the tour of cheese production in France. I had hoped to bring to this House some experience of events in Brussels and Edinburgh, but given the extraordinary collection of talent on the Benches on both sides, from former Commissioners and ambassadors to distinguished former MEPs, frankly, I just hope to keep up. I recognise that there is a wealth of experience in the debate today, and I hope to try to respond to some of that.

When the Garter Principal King of Arms asked me to consider which place name I would take as my title, I asked, somewhat tongue in cheek, whether I could take Brussels. He smiled benignly, as is his wont, and explained only if I could claim to have achieved a great military victory there. I fear my success on the non-road mobile machinery directive was perhaps not quite qualification enough. Instead, I chose Springbank in the county of Perth. My grandparents moved to the newly constructed council scheme of Springbank Road in the town of Alyth in 1934. They came from a mill cottage with an earthen floor. My mother was born there in 1936 on the kitchen table, as she would often tell me, and thank goodness for Formica. Upon marriage, my father moved into the same house and it was there that my brother and sister were born. Indeed, for the first few years of their marriage that is where they lived, alongside my grandparents and their other son. My parents’ first home of their own was also in the same council scheme. My grandparents lived their whole life in Springbank Road, as did my mother, who passed away only a few years ago. I am the third generation to hail from Springbank and I believe that it is appropriate to take that as my title. I also again commend the notion of council housing, which I believe we are once again looking to improve. It is significant and important and I commend it.

Before I move on to the substantive elements of the debate, I should give my thanks to my noble friends Lord McInnes of Kilwinning and Lady Goldie for guiding me so expertly through my introduction here only a few weeks ago. I have to admit that it was the most nerve-racking experience of my parliamentary career and I would not want to go through it again. None the less, it was an extraordinary thing to find myself here among noble Lords. I also thank the doorkeepers who have guided me more than once up different corridors and helped me to locate toilets, which are not well publicised, in different parts of the building. I thank again the clerks who have guided me through various other elements of my work and my ministerial colleagues who have guided me in so many of the elements of what I am about to speak of today. They have all shown me great kindness and I appreciate that a great deal. It is a privilege to be here.

Perhaps I may turn to today’s business. Let me begin by commending the approach of my noble friend Lord Selkirk: the union is precious and there is no question about that. Throughout the debate we have heard many noble Lords speaking of that very precious union. Indeed, as my noble friend Lord Lang of Monkton began the debate, he recognised that we must not take this union for granted. We had a close shave not so many years ago, and again the noble Lord, Lord McAvoy, was very kind to point out how we worked together to try to move forward and recognise the challenges faced at that difficult time.

I shall start by addressing head-on the point made by my noble friend Lord Lang. There was a delay in the response to this paper; that is not appropriate and it will not happen again. We must make sure that we address these challenges in good time and we cannot take for granted that time will be given to us to make sure that that happens. It is also important to stress the attitude of this Government, which is to ensure that both the Brexit process and the devolution process work together. A number of noble Lords pointed out the challenge of the piecemeal approach we have adopted to our constitutional evolution, and indeed some of those changes have not always been in the best interests of the entire union. Some have been made in haste and some, I suspect, we regret and would revisit were we to have an opportunity to do so. The challenge with devolution as we understand it is that it is a ratchet that moves in only one direction. The problem is that if we do not get it right the first time, it unfortunately moves on too fast to change it around.

The joint ministerial committees were mentioned a number of times by several noble Lords, including my noble friends Lord Lang and Lord Dunlop, and the noble and learned Lord, Lord Wallace of Tankerness. I was a clerk in the Scottish Parliament in the early days of the joint ministerial committees and I can assure noble Lords that they were not working well then—long before we had the situation of Brexit and long before we had embraced many aspects of devolution. There were a number of reasons for that. I think that to some degree everyone expected different things from those committees and everyone was slightly disappointed by not getting what they wanted out of them. Let me answer some of the other questions which have been raised. How often have the joint ministerial committees met this year? Not enough—they must meet more often. The times we face now are a challenge and we must embrace that by doing so together, using these committees to help us take the steps forward; of that I am in no doubt whatever. But I should also stress that although these committees have not met as often as perhaps all would have wished, to some degree there were extenuating circumstances such as the election and other elements. None the less, we need to do better.

However, I would also say that the bilateral discussions have been significant and important at all stages of the process. The noble Lord, Lord McAvoy, was right to point out that we are well served by a Civil Service that is able to continue to collaborate even when politicians cannot always quite find themselves at the same table facing each other in the same direction. For example, in rural affairs, over the past few months of the summer period there have been more than 50 face-to-face meetings to discuss each of the aspects of Brexit as they impact on the rural affairs agenda, and that is not without significance. Again, it is important that we are as open as we can be. The UK Government are committed to being as open as they can and have been so throughout the process. Part of the challenge, however, is that we have not always been able to secure from the others participating the same level of openness, and that in itself can be a challenge. The consent aspect has to work both ways. There needs to be collaboration from both sides; it cannot just be all give on one side and all take on the other. It is important that we recognise that.

Perhaps I may go into a little more of the detail. Again, I am fearful that I will not be able to do justice to the sheer range and depth of knowledge and expertise that noble Lords have displayed today. Perhaps I may take a moment to say that, as someone who sat in the European Parliament for a number of years, I have probably experienced more serious debate and insight in the past few hours here than was often the case in some of the debates I witnessed there. First, I turn to the reports themselves. There are elements that we must look at in trying to address how we consider the devolution settlement. It is easy to look on it as unfinished business, but the question is: what would finish that business? How shall we bring together each of the constituent parts to create what needs to be a functioning constitution? We cannot simply keep feeding the crocodile and hope that it will eat us last. There needs to be a recognition of what we are for. What is our country and what shall be our constitutional settlement? We need also to recognise that each constituent part must play its role in that. We do that against the backdrop of Brexit, which makes the whole process considerably more difficult in terms of trying to achieve progress. However, I am well aware that we have to achieve that progress because without it we will be in a terrible situation.

The noble Lord, Lord Jay, made a significant contribution to the discussion today. I am under no illusion about some of the challenges the noble Lord has presented to the Government. What I would say as a former Member of the European Parliament is that there is a challenge in how the acquis communautaire functions, how the frameworks within which we exist today have been constructed and how the devolution settlement itself embraced those frameworks. It is true to say that when we witnessed the changes in Brussels, as we have done over the years, they have been negotiated by the United Kingdom with the involvement of the home nations; none the less, the devolution frameworks were established within an established European framework. That was the glue, as the noble Lord rightly put it, but none the less it was there. That is why the Government have no ambition to change in any fashion the powers currently exercised by the devolved Administrations. What we have to do is work out where the frameworks need to be functional. At the moment there are 111 areas in the Scottish legal world and 64 in the Welsh where again, we hope to collaborate to establish exactly where we can find a common framework, a common approach and the right outcome.

We have no ambition to retain powers that we do not need and do not deserve to hold. We must recognise that the devolution settlement is fixed; we will do so, but we must also recognise that on day 1 after Brexit, each element of our procedures must be legally sound. We can take no risk of there being an upset, stumble or breakdown, and we should take time to echo the points made by so many of my colleagues on these Benches. We must take time to ensure that we get the frameworks settled and sorted and workable. If we get them wrong, we will live to regret it. One problem we face now is that that day is fast approaching, so we need to make sure that on day 1 we have a legally sound system, but that we work out how, as a common people of different nations, we will come together and pull in that direction.

The noble Lord, Lord Desai, is quite right. England can often be overlooked and it is one of the great challenges that we sit in what many people consider to be one of the Chambers of the English Parliament—and yet, the very nation of England itself can often be overlooked in the wider sense of the word. That is a great pity, and we need to recognise that as each of the other home nations pushes for particular changes to the wider constitutional settlement. I served as a clerk on the committee when my noble and learned friend Lord Wallace of Tankerness was in the Scottish Parliament—not that long ago, it seems, but here we have arrived, apparently for greater things.

[Lord Wallace of Tankerness (LD)]

You may think so.

[Lord Duncan of Springbank]

Well, we are certainly moving in the right direction.

I am aware that we face serious challenges in working out each of the component parts of the overall settlement. I am particularly concerned about the devolution settlement and the replacement for the structural funds and the common agricultural policy, to which reference was made. The Government have given a commitment to 2022. In truth, that is one year more than we would have been able to offer to the wider Welsh, Northern Irish and Scottish farmers and others. That is a year more than we would have had if we had stayed in the EU. We are giving a greater degree of certainty. Each of those elements is up for significant change.

When I met the Commissioner for Agriculture in Brussels not so long ago, he talked about the fact that the overall sum of money given to farmers will be significantly reduced in certain areas and that farmers will have to tackle that. As a Government, we are committed to 2022 and we will see how we can reform and move forward at that point; but there is still no desire, I hasten to add, to seek powers being drawn back from those Administrations—none at all. It is about trying to recognise where we can work together. To give some examples—I am aware we are often accused of not explaining where those examples may rest—we are currently focusing on the wider question of pesticides. We are conscious of the food and feed law for animals, but we need a common approach. We are aware of the food labelling issue because, as we begin to look at some of the geographical indicators—I was in the Western Isles not so long ago, breakfasting on Stornoway black pudding, a feast of kings—we need to recognise that we need a common approach across the United Kingdom. The final example is infectious diseases—which is more fun to talk about than look into, I hasten to add.

We face challenges in establishing what the frameworks need to look like. We need collaboration, and that is where the joint ministerial committees will work. It is at such gatherings that officials will sit down and work, because in truth, many of these issues are almost above our pay grade. They are at the level of detail where we need to understand how the law comes together with practical and policy issues. That can be something of a challenge.

The noble Lord, Lord Wigley, is right to point out the issue of Catalonia. We cannot see such issues being resolved with bloodshed on the continent of Europe. I absolutely agree. I am also fully aware that the Edinburgh agreement, which was brokered between the Government of the United Kingdom and the Scottish Government, is a template for how other nations may embrace the demographic and democratic challenges presented by independence movements. It is a model that many people across Europe should be looking at.

I hope the Welsh football team are doing rather well right now—I am sure the noble Lord, Lord Wigley, is as interested in the outcome of that match as I am—but at the same time, he is right to talk about multiple geometry. Much of our situation today is about the asymmetry of our land. We do not face, as the US does, a number of small, medium-sized and large states all mixed together. We have such asymmetry and we need to recognise that. That may be part of the challenge when we start looking at the JMC. How do we contain within the JMC the correct structures to reflect the fact that—as the noble Lord, Lord Desai, pointed out—England is just bigger? How do we recognise that asymmetry, but none the less recognise the obligations we have to the home nations to reflect on the wider settlement of our constitution? It is not as easy as I would like to think.

My predecessor, the noble Lord, Lord Dunlop, has been very kind to me during my time finding my feet. I have not yet witnessed the tartan hippo, although I have witnessed many other tartan animals, if I may be a little unkind. A challenge in trying to do one’s job is embracing social media—it is not always full of laughter, it is fair to say.

It is important to stress that there is an existential threat to our nation. There is no question of that. One thing I would note in passing is that there are far too few nationalists in here. There needs to be more. That seems an odd thing, perhaps, for a unionist to say, but if we are to reflect the wider interests of our country, we must recognise that those voices need to be heard in both Chambers, not just in the House of Commons. That is perhaps not for me to create, but for others to look into; none the less, at this time, more than any other, we need those voices as part of the overall discussion that we are looking into.

Some of the aspects which my noble friend Lord Dunlop was kind enough to point out need to be addressed at the technical level. There are technical deficiencies. There are some issues around subsidiarity which we need to look at and then work out how best to do the job. Certainly in the Scottish situation devolution need not rest in Edinburgh, any more than in Wales and Northern Ireland it need rest in Cardiff or in Belfast. We need to recognise where power needs to be exercised. That is the European concept of subsidiarity. We need to recognise where it works even within the United Kingdom itself. If we can do that, we have a fighting chance of ensuring that our union continues. As someone who comes from outside the central belt of Scotland, I am very conscious that there is a great lament that overcentralisation to Edinburgh can be a huge problem, yet it needs to be addressed.

My noble friend Lord Lexden is quite right that some of the issues that we are talking of are worthy of note. The long delays in responding are unacceptable, and I am happy to confirm that we will not be moving in that direction again. We will move to address that.

“Devolve and forget” is not a concept that I wish to see go forward. We cannot simply hope to push things away, particularly during the Brexit process.

I am conscious that I have several other Members to respond to. Let me make one commitment: if I do not address their questions this evening, I ask them to hunt me down and I will come back to them. I do not wish them to feel that they have been short-changed because I have seemingly glossed over their points.

In the latter moments of my speech, I need to stress Northern Ireland. That will be one of the intractable aspects of the overall Brexit situation. It is equally a challenge within the wider devolution question. I assure noble Lords that James Brokenshire, the Secretary of State, is working very hard, but we have to recognise that the challenge need not rest solely with those inside the would-be Executive or Assembly; it is at all levels within Northern Ireland. They must also be part of the wider question of devolution and Brexit.

How do I finish off without short-changing other noble Lords who have spoken? Many of your Lordships have raised important issues. We need to recognise that the EU has provided the constitutional glue within which we as a Parliament have been able to operate, but we must also recognise that because of the approach that we have taken—by holding a referendum—that glue will not be as available to us to hold these things together. We must find another glue, something else that works for us as a people but also as a country. I hope that we can do so.

I am fully aware of how challenging Brexit will be, but I assure your Lordships that, in so far as I can, I will respond to any and all entreaties to co-operate and to collaborate. We will do all that we can to ensure that there is serious dialogue on all aspects, not just with MSPs and AMs but with councillors as well, to make sure that all are part of the process. This is an important time and we cannot get it wrong, because the ratchet is turning in only one direction. If we are not careful, we will turn it too tight and, as with winding up those old-fashioned clocks, the whole thing will unravel in our hands.

I again thank your Lordships for your forbearance and kindness in listening to my remarks. I assure you that I will do all I can to take forward the issues that we have discussed today in a timely, sensitive and careful manner.

20:33

[Lord Lang of Monkton (Con)]

My Lords, it is well known that maiden speeches are conducted in a warm glow of charm, courtesy and sympathy but also of trepidation, not just on the part of the maiden speaker but in the minds of those who must welcome them and anticipate the brilliance that they are about to face and of those who have to speak afterwards. This evening, we have heard a quite exceptional, indeed outstanding, maiden speech. I think that the whole House will recognise that.

I did a little homework during the gap in the middle of the debate on the background of the noble Lord, Lord Duncan. I discovered that he had received a first-class honours degree in geology from Bristol University and a doctorate in palaeontology from St Andrews University—I think that I have those the wrong way round. He later lectured at Bristol University and in the meantime went to the Smithsonian Institution in Washington and spent some time at Harvard University. He then took up a business career in various spheres and eventually became a Member of the European Parliament in 2014, where he fulfilled major roles in the fields of energy and environment and had the praise of his colleagues heaped upon him—as is evident from the little research that I did.

It is therefore slightly less of a surprise that he has made such a brilliant start to his career, but I think the widespread mastery that he has clearly developed over the years in many spheres will stand him and this House in good stead. His speech was eloquent, knowledgeable, masterly and stylish and the House will look forward to hearing from him again.

This is not the time to rerun the debate and I certainly do not intend to do so. The hour is getting on and it is appropriate that I simply thank all those who have taken part. It is quite difficult to knit together debates on reports from two separate Select Committees on slightly different themes, but the truth is that I believe the themes knitted together extraordinarily well in the event. There was a sort of harmony among almost all speakers as to the method and the means by which the committees had sought to convey to government the need for action and a positive response. There was also a harmony in the disappointment expressed by many speakers that that response has not been forthcoming sooner, but I hope that the debate we have had today will convey to the Government, through the good offices of the Minister, that we are not happy that devolution is being treated in the way it is, and that intergovernmental relations within the United Kingdom, between this Parliament and the other Parliaments, are not being treated as well as they should be. I know a lot of efforts have been made and some success has been achieved, but there are still deep-rooted problems. The Minister has clearly recognised this, so I simply end by asking him to pass on our concerns, as I know he will, to others. I beg to move.

Motion agreed.