Monday 4th December 2017
(7 years ago)
Commons ChamberEuropean Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 4 December 2017 - (4 Dec 2017)
23:59 - The Committee divided: - Ayes: 256 / Noes: 313 - Question accordingly negatived.
00:14 - The Committee divided: - Ayes: 292 / Noes: 316 - Question accordingly negatived.
00:30 - divided: - Ayes: 290 / Noes: 316 - Question accordingly negatived.
00:45 - The Committee divided: - Ayes: 315 / Noes: 290 - Question accordingly agreed to.
Jenny Chapman (Darlington) (Lab)
I beg to move, That the clause be read a Second time.
The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)
With this it will be convenient to discuss the following:
New clause 65—Role of Joint Ministerial Committee—
“(1) The Joint Ministerial Committee is to be a forum—
(a) for discussing—
(i) the terms upon which the United Kingdom is to withdraw from the European Union and the United Kingdom’s future relationship with the European Union;
(ii) proposals to amend retained EU law;
(iii) agreed legal and policy frameworks in relation to the subject matter of devolved retained EU law that are to operate throughout the United Kingdom;
(iv) a concordat setting out the process for concluding the legal and policy frameworks mentioned in sub-paragraph (iii); and
(b) for seeking a consensus on those matters between Her Majesty’s Government and the other members of the Joint Ministerial Committee.
(2) Before Her Majesty’s Government concludes a withdrawal agreement, the Secretary of State must produce a document for consideration by the Joint Ministerial Committee setting out—
(a) Her Majesty’s Government’s objectives and strategy in negotiating and concluding a withdrawal agreement;
(b) Her Majesty’s Government’s objectives and strategy in relation to establishing a framework for the United Kingdom’s future relationship with the European Union;
(c) the steps Her Majesty’s Government intends to take to keep the Joint Ministerial Committee informed of progress in reaching a withdrawal agreement;
(d) the steps Her Majesty’s Government intends to take to consult each member of the Joint Ministerial Committee before entering into a withdrawal agreement and for taking the views of each member into account;
(e) the steps Her Majesty’s Government intends to take to seek the approval of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly before entering into a withdrawal agreement.
(3) Until a withdrawal agreement is concluded, the Secretary of State must produce a report every three months for consideration by the Joint Ministerial Committee setting out—
(a) Her Majesty’s Government’s assessment of the progress made against Her Majesty’s Government’s objectives—
(i) in negotiating and concluding the withdrawal agreement;
(ii) in relation to establishing a framework for the United Kingdom’s future relationship with the European Union;
(b) any change to the matters listed in paragraphs (a) to (e) of subsection (2).
(4) Before concluding a withdrawal agreement the Prime Minister must produce a document setting out the terms of the proposed agreement for consideration by the Joint Ministerial Committee.
(5) Meetings of the Joint Ministerial Committee must, until Her Majesty’s Government concludes a withdrawal agreement, be chaired by—
(a) the Prime Minister, or
(b) the Secretary of State for Exiting the European Union.
(6) In this section, “the Joint Ministerial Committee” means the body set up in accordance with Supplementary Agreement A of the Memorandum of Understanding on Devolution, between Her Majesty’s Government, the Scottish Government, the Welsh Government and the Northern Ireland Executive Committee.”
This new clause would put the Joint Ministerial Committee’s role in the withdrawal process on a statutory footing.
Amendment 42, in clause 11, page 7, line 16, leave out subsections (1) to (3) and insert—
“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with EU law), omit ‘or with EU law’.
(2) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for National Assembly for Wales to legislate incompatibly with EU law), omit ‘or with EU law’.
(3) In section 6(2)(d) of the Northern Ireland Act (no competency for the Assembly to legislate incompatibly with EU law, omit ‘is incompatible with EU law’.”
This amendment removes the Bill’s proposed restrictions on the ability of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly to legislate on devolved matters.
Amendment 164, page 7, line 16, leave out subsections (1) and (2) and insert—
“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with EU law), omit ‘or with EU law’.
(2) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for National Assembly for Wales to legislate incompatibly with EU law), omit ‘or with EU law’.”
This amendment would replace the Bill’s changes to the legislative competence of the Scottish Parliament and the National Assembly for Wales in consequence of EU withdrawal, by removing the restriction on legislative competence relating to EU law and ensuring that no further restriction relating to retained EU law is imposed.
Amendment 132, page 7, line 19, leave out from “law)” to end of line 29 and insert
“omit ‘or with EU law’”.
This amendment is intended to remove the proposed bar on the Scottish Parliament legislating inconsistently with EU law after exit day.
Amendment 90, page 7, leave out lines 22 to 29 and insert—
“‘(4A) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law which relates to matters specified in Schedule 5 to the Scotland Act 1998.’”
This amendment would remove the restrictions on the Scottish Parliament modifying retained EU law except in relation to matters that are reserved.
Amendment 133, page 7, line 33, leave out from “law)” to end of line 7 on page 8 and insert
“omit ‘or with EU law’”.
This amendment is intended to remove the proposed bar on the National Assembly for Wales legislating inconsistently with EU law.
Amendment 91, page 7, leave out from beginning of line 36 to the end of line 7 on page 8 and insert—
“‘(8) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law which relates to matters specified in Schedule 7A to the Government of Wales Act 2006.’”
This amendment would remove the restrictions on the National Assembly for Wales modifying retained EU law except in relation to matters that are reserved.
Amendment 134, page 8, line 9, leave out from “Assembly)” to end of line 28 and insert “omit subsection 2(d)”.
This amendment is intended to remove the proposed bar on the Northern Ireland Assembly legislating inconsistently with EU law.
Amendment 92, page 8, leave out lines 14 to 28 and insert—
“‘(6) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law which relates to matters specified in Schedules 2 or 3 to the Northern Ireland Act 1998.’”
This amendment would remove the restrictions on the Northern Ireland Assembly modifying retained EU law except in relation to matters that are reserved or excepted.
Amendment 72, page 8, line 28, at end insert—
“(3A) This section shall not come into effect until—
(a) the Scottish Parliament has passed a resolution approving the provisions in subsection (1);
(b) the National Assembly for Wales has passed a resolution approving the provisions in subsection (2); and
(c) the Northern Ireland Assembly has passed a resolution approving the provisions in subsection (3).”
Amendment 337, page 8, line 33, at end insert—
“(6) Subsections (1), (2) and (3) shall not come into force until the exit day appointed for the purpose of this section, which must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”
This amendment, alongside Amendment 42 and NC64, would establish that the UK Government has until the end of transitional arrangements to create any UK-wide frameworks.
Clause 11 stand part.
Amendment 165, in schedule 3, page 25, line 37, leave out paragraphs 1 and 2 and insert—
“1 In section 57(2) of the Scotland Act 1998 (no power for members of the Scottish Government to make subordinate legislation, or otherwise act, incompatibly with EU law or Convention rights), omit ‘or with EU law’.
2 In the Government of Wales Act 2006, omit section 80 (EU law).”
This amendment would replace the Bill’s changes to the executive competence of the Scottish Ministers and Welsh Ministers in consequence of withdrawal from the EU, by removing the restriction on competence relating to EU law and ensuring that no further restriction relating to retained EU law is imposed.
Amendment 183, page 28, line 2, leave out from first “and” to end of line 3.
This consequential amendment, linked to Amendments 164 and 165 to Clause 11 and Schedule 3, would change a heading in the Scotland Act 1998 to remove a reference to retained EU law.
Amendment 184, page 28, line 38, leave out from “(d)” to end of line 39 and insert
“omit ‘or with EU law’”.
This consequential amendment, linked to Amendments 164 and 165 to Clause 11 and Schedule 3, would change the definition of devolution issues in the Scotland Act 1998.
Amendment 185, page 29, line 5, leave out paragraph 21.
This consequential amendment, linked to Amendments 164 and 165 to Clause 11 and Schedule 3, would enable changes to the procedure for subordinate legislation in the Scotland Act 1998.
Amendment 186, page 29, line 28, leave out from “subsection” to end of line 29 and insert “(4), omit paragraph (d)”.
This amendment makes a change consequential on Amendment 165, which would omit section 80 of the Government of Wales Act 2006, making section 58A (4)(d) of that Act redundant.
Amendment 187, page 30, line 4, leave out
“before ‘EU’ insert ‘Retained’”
and insert “omit ‘EU law’”.
Amendment 165 omits section 80 of the Government of Wales Act 2006. This amendment would amend the changes made to the heading before section 80 to reflect the omission of section 80 of the Government of Wales Act 2006.
Amendment 188, page 30, line 5, leave out paragraph 31.
This amendment makes a change consequential on Amendment 165, which would omit section 80 of the Government of Wales Act 2006, making paragraph 31 of Schedule 3 in this Bill redundant.
That schedule 3 be the Third schedule to the Bill.
Amendment 177, in schedule 2, page 19, line 47, leave out “and retained EU law”.
This is a consequential amendment linked to Amendments 164 and 165 to Clause 11 and Schedule 3.
Amendment 178, page 20, line 23, leave out “and retained EU law”.
This is a consequential amendment linked to Amendments 164 and 165 to Clause 11 and Schedule 3..
Amendment 179, page 23, line 21, leave out “and retained EU law”.
This is a consequential amendment linked to amendments 164 and 165 to Clause 11 and Schedule 3.
Amendment 180, page 23, line 25, leave out
“and section 57(4) and (5) of that Act”.
This is a consequential amendment linked to amendments 164 and 165 to Clause 11 and Schedule 3.
Amendment 181, page 23, line 31, leave out “and retained EU law”.
This is a consequential amendment linked to amendments 164 and 165 to Clause 11 and Schedule 3.
Amendment 182, page 23, line 35, leave out “80(8)” and insert “80”.
This consequential amendment, linked to amendments 164 and 165 to Clause 11 and Schedule 3, changes the reference to section 80 of the Government of Wales Act 2006 to make clear that the restriction on the powers of the Welsh Ministers not to act or legislate incompatibly with EU law is removed.
Amendment 189, in schedule 8, page 50, line 19, leave out
“section 57(4) of the Scotland Act 1998, section 80(8) of the Government of Wales Act 2006 or”.
This amendment and Amendment 190 are in consequence of Amendment 165 as no restriction relating to retained EU law on the making of subordinate legislation by the Scottish Ministers and the Welsh Ministers would apply.
Amendment 190, page 51, line 1, leave out
“section 57(4) of the Scotland Act 1998, section 80(8) of the Government of Wales Act 2006 or”.
This amendment and Amendment 189 are in consequence of Amendment 165 to Schedule 3 as no restriction relating to retained EU law on the making of subordinate legislation by the Scottish Ministers and the Welsh Ministers will apply.
Amendment 191, page 55, leave out lines 8 to 13 and insert—
(a) in paragraph (a), omit sub-paragraph (ii), and
(b) in paragraph (b), omit “or with EU law”.”.
This amendment would amend the Criminal Procedure (Scotland) Act 1995 on the right of the Advocate General to take part in proceedings in consequence of removing the restriction on the competence of the Scottish Parliament and Scottish Government by Amendments 164 and 165 to Clause 11 and Schedule 3.
Amendment 192, page 59, leave out lines 10 to 16.
This amendment, with Amendments 193, 194 and 195, is in consequence of Amendments 164 and 165 to Clause 11 and Schedule 3 which would remove the powers to make an Order in Council to adjust the new restriction on the legislative competence of the Scottish Parliament and the National Assembly for Wales.
Amendment 193, page 59, leave out lines 23 to 29.
This amendment, with Amendments 192, 194 and 195, is in consequence of Amendments 164 and 165 to Clause 11 and Schedule 3 which would remove the powers to make an Order in Council to adjust the new restriction on the legislative competence of the Scottish Parliament and the National Assembly for Wales.
Amendment 194, page 59, line 47, leave out from beginning to end of line 8 on page 60.
This amendment, with Amendments 192, 193 and 195, is in consequence of Amendments 164 and 165 to Clause 11 and Schedule 3 which would remove the powers to make an Order in Council to adjust the new restriction on the legislative competence of the Scottish Parliament and the National Assembly for Wales.
Amendment 195, page 60, leave out lines 13 to 23.
This amendment, with Amendments 192, 193 and 194, is in consequence of Amendments 164 and 165 to Clause 11 and Schedule 3 which would remove the powers to make an Order in Council to adjust the new restriction on the legislative competence of the Scottish Parliament and the National Assembly for Wales.
Jenny Chapman
It is a pleasure to serve under your guidance, Mrs Laing. I will speak to new clauses 64 and 65, as well as to amendments 42 and 337, which stand in my name and those of my right hon. and hon. Friends.
New clause 64 would establish a collaborative procedure for the creation of UK-wide frameworks. It would require that the Secretary of State must lay before each House proposals for replacing European frameworks with UK ones. We need those frameworks to enable the functioning of the UK internal market; to ensure compliance with international obligations; to ensure the UK can negotiate and enter into international treaties, or, if we leave the customs union, trade agreements; to enable the management of common resources; to administer and provide access to justice in cases with a cross-border element; and to safeguard the security of the UK. The frameworks will have a significant impact on the carefully constructed devolution settlements in the Union. They must be created in collaboration with the devolved Administrations.
The birth of devolved Governments in Scotland, Wales and Northern Ireland was a significant change to the running of the United Kingdom. The then Scottish Secretary, Donald Dewar, battled to extract powers from Whitehall mandarins, who attempted to cling on to them. Then, as now, the default position of Whitehall is to hold on to power whenever possible. There are those who believe that this pro-Whitehall centralising tendency, on display yet again in clause 11, is evidence of the Tories’ reluctance to engage with devolved Administrations, or, even worse, that it signals a persistence of their initial opposition to devolution as a point of principle.
I am pleased to say that I am not one of those people. I believe we have come a long way since 1997, thanks in large part to the persistence of Donald Dewar and others. I sense that the Government’s decision to withhold retained EU powers in Whitehall is not an anti-devolution stance, but instead one of the clearest indications yet that the Government are just not coping with the task of Brexit. The Government simply have not had the ministerial headspace—or, as Alan Milburn said, the bandwidth—to engage with the consequences of Brexit for the established, yet still young, devolution settlements now in place.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I completely agree with the point my hon. Friend is making so eloquently. Does the news from Brussels in the last few minutes about the complexity of the negotiations not show that the Bill, and the whole process of Brexit, will have far greater consequences for our country, not just for the economy but our whole constitutional settlement and the way we run our affairs here in these islands? The very serious consequences needed to have been much more clearly thought through by the Government.
Jenny Chapman
I encourage Ministers to listen very carefully to what my hon. Friend says. Like me, he has a deep concern about what clause 11 may mean for the devolved Administrations. We watch with alarm the statements being made today. We hope the position is clarified very quickly.
Mike Gapes (Ilford South) (Lab/Co-op)
My hon. Friend refers to Donald Dewar. The basis for the devolution process came about via referendums in Scotland, Wales and both parts of Ireland to agree the frameworks under which we now operate. Is it therefore not a contempt, an insult, to the people as a whole—not just this House—for the Government to undermine the Good Friday agreement and the devolution settlement, which was endorsed by the people in referendums?
Jenny Chapman
My hon. Friend is right. People voted for these powers to be devolved and it is wrong for the Government to attempt to use Brexit as an excuse to bring them back to London.
The historian Professor Tom Devine called Scottish devolution and the establishment of the Scottish Parliament
“the most significant development in Scottish political history since the union of 1707.”
The Conservative party may have been opposed to devolution in the 1990s, and the Scottish, Welsh and Northern Irish Administrations may not have been conceived of in the early ’70s, but they are now an important and respected integral part of the constitutional architecture of our country.
The Good Friday agreement could never have succeeded without devolution to Northern Ireland, and, in the view of many of those involved at that time, the fact that devolution to Scotland and Wales took place at the same time as the Good Friday negotiations helped to ease some misgivings about the process.
Two nations of our Union voted to remain in the EU and two voted to leave. Our nations are run by different parties with different views about what Britain should look like after Brexit. The challenge for the Government therefore is significant. Just because it is challenging, however, does not mean the Government should attempt to take shortcuts that undermine the credibility, autonomy or sharing of decision making that are now an accepted feature of our democracy.
Ian Murray (Edinburgh South) (Lab)
I pay tribute to my hon. Friend for all her work on the Bill. Is she surprised, as I am, that the 12 new Scottish Conservative Members of Parliament were sent here by the Scottish Conservative leader, Ruth Davidson, under the banner of standing up for Scotland, yet it appears that, with regards to the Bill and these clauses, all they will be standing up for is the Government Whips Office?
Jenny Chapman
We will have to wait until later this evening to see which Lobby they choose to walk through. I, like my hon. Friend, was encouraged by some of the comments from Ruth Davidson and her hopes for the new group of Conservative Tory MPs, but we shall see if they live up to the billing she has given them.
Whether they want to or not, the Government must adapt to the very different constitutional circumstances that now exist. They are very different from those that existed before 1973. Clause 11, which is intolerable to the devolved Administrations, sets it as the default that powers currently exercised in Edinburgh, Cardiff and Belfast within EU frameworks will be ripped away and held in London. First Ministers are calling this a Whitehall power grab.
Lucy Frazer (South East Cambridgeshire) (Con)
The hon. Lady is making a passionate speech, but does she accept that powers are not being ripped away, given that they are not there for the devolved Administrations at the moment? [Interruption.] Whether hon. Members think it right or not, as a matter of law those powers are vested in the EU, so if they come back to the devolved Administrations, they will be additional powers. Powers are not being taken away.
Jenny Chapman
I think that the hon. and learned Lady has not—if I may be polite—quite grasped what we are talking about. We are talking about a framework, within which the devolved Administrations currently make decisions, that is held now at the EU level. Our desire is for a UK framework that enables those decisions to continue to be made by the devolved Administrations. It is very different from saying, as I anticipate some Government Back Benchers will claim, “Well, the powers are currently held in Brussels, so why is everybody so worried about it?” Actually, the decision making is held in Belfast, Edinburgh and Cardiff.
Susan Elan Jones (Clwyd South) (Lab)
Does my hon. Friend agree that in Wales devolution actually came in two tranches—in 1997, but also in 2011, when Wales voted overwhelmingly for full law-making powers—and that any rolling back of those powers would be simply unacceptable and anti-Welsh in the extreme?
Vernon Coaker (Gedling) (Lab)
My hon. Friend is talking about the UK framework and the devolved Administrations. Would she care to comment on the quite astonishing scenes we have witnessed today? It is apparent that the Government have not spoken to the Northern Ireland First Minister about what should happen with respect to any deal. If we are to have special arrangements—or special alignment—between Northern Ireland and the rest of Ireland, what is wrong with giving the whole UK that special alignment? It is called all of us staying in the customs union.
Jenny Chapman
My hon. Friend is highlighting the alarm with which we are witnessing the statements coming out today—the confusion, the briefing, the counter-briefing—and with which we contemplate the destabilisation, particularly in Northern Ireland, that could result. We are deeply concerned about it. I will resist making any specific comment until we have a much clearer picture of the situation, but I am sure that every Member will want to ensure that the negotiations proceed this week and that there is a clearer outcome. The Prime Minister has asked for that to happen at the end of the week. We are expecting a full statement tomorrow, and we look forward to it. I am sure that some very serious questions will be asked of the Prime Minister tomorrow about the conduct of the negotiations.
Chris Bryant (Rhondda) (Lab)
Is there not a really important point that the Government seem to forget? When they are negotiating about a border, or no border, or about divergence from or convergence with a regulatory framework on the island of Ireland, they must speak to the First Minister of Wales as well, because the vast majority of the exports from Ireland into the rest of the European Union go through Wales. There is no point in coming up with a Bill that simply ignores the devolved Administrations.
Jenny Chapman
My hon. Friend is right to highlight the fact that the Government seem to have acted in a rather high-handed way with all the devolved Administrations on a matter that is so fundamental to the future of the citizens of this country.
Hywel Williams (Arfon) (PC)
I agree with the hon. Member for Rhondda (Chris Bryant). The other border between the United Kingdom and Ireland is the one that passes through Holyhead and Fishguard. When I asked the Secretary of State for Exiting the European Union, in the Select Committee, what consideration he had given to the position in Holyhead in particular—given the chaotic road across the island, the two insubstantial bridges, and the extra traffic from the proposed Wylfa B power station—his answer he gave was very clear: “None.”
Jenny Chapman
That is shocking. I am sure that the hon. Gentleman and other colleagues from Wales will continue to make the point as the debate proceeds. Needless to say, the Government’s attitude has been most concerning to me and to First Ministers, because it suggests that they are not interested in the needs and ambitions of the people of Scotland, Wales and Northern Ireland. That approach is regrettable, but it is not too late to change it.
Stephen Doughty
My hon. Friend is being very generous in giving way. Just last week, senior border immigration officials told the Home Affairs Committee that the implications for the Welsh ports of Holyhead, Fishguard and Pembroke, which other Members have mentioned, are very serious in practical terms unless we remain in the customs union, for instance. That underlines the point that my hon. Friend is making about proper frameworks, the Joint Ministerial Committee and so on, and the points made in the new clauses and amendments.
Joanna Cherry (Edinburgh South West) (SNP)
The hon. Lady is making a persuasive speech. She mentioned the renowned Scottish historian Sir Tom Devine. He, of course, has made the journey from being a supporter of devolution to being a supporter of independence. Does the hon. Lady agree that if the Bill is allowed to drive a coach and horses through the current devolution settlement, a great many more Scots are likely to follow Sir Tom Devine by becoming supporters of independence rather than devolution?
Jenny Chapman
I sincerely hope that that will not be the outcome, but I have to admire the hon. and learned Lady’s ability to spot an opportunity and take it.
The Government have never argued that these powers need to be in London or that they intend to hold on to them permanently. Rather, it seems that they feel that tackling the undoubted complexities of considering how to make new arrangements with the devolved Administrations post Brexit belongs in the “too difficult” pile—something to be put off until there is more time and there are fewer distractions. However, there are no time limits on when the Government will cease to hoard the powers. While the hard-line Brexiteers on the Back Benches are promised a time and date—to the very nanosecond—for when they will see powers returned from Brussels, the nations of our Union are told to wait indefinitely. The people of Wales, Scotland and Northern Ireland deserve better from the Government.
The Government agree with Labour and the devolved Administrations that frameworks are needed—I think—and new clause 64 assists them by outlining how that can be achieved. The presumption should be that powers remain devolved as is the case now, and that UK frameworks are created to co-ordinate policy in some areas through negotiation with the devolved Administrations. To do anything else would turn back the clock on devolution—impossible—and cause untold damage to important relationships between Parliaments.
As well as having the motivation and attention to address this issue, the Government need to trust the devolved Administrations. That is why our proposal makes explicit the obligations on each Government and the nature of the frameworks needed. So far, the Government have not exactly shone in their endeavour to develop a UK-wide approach to Brexit, so new clause 65 helps by putting the Joint Ministerial Committee on a statutory footing.
It is important to reflect on the absence of representation from Northern Ireland on the JMC. The suspension of the Executive is deeply regrettable, and permits the neglect of the needs, concerns, ambitions and hopes of the people of Northern Ireland. Their voices must not go unheard at this most critical of moments, but need to be amplified, as it is they who have the most to lose from a chaotic departure from the EU.
Mr Dominic Grieve (Beaconsfield) (Con)
I am following the hon. Lady’s speech carefully. I am also looking very carefully at her new clause, but I do not see how it would resolve the question of what would happen if we set up joint structures and there was disagreement about how they will work. It can, of course, be argued that the Parliament of the United Kingdom is ultimately sovereign, so I think that it is a matter of law that if there is a disagreement, the logjam would ultimately be resolved by this Parliament and the Government in Whitehall having primacy. The question the hon. Lady has to answer is whether the structure she is putting forward would be workable in practice, or if it would just lead to conflict.
Jenny Chapman
The new clause is not intended to cause conflict—we already have a certain degree of conflict between the Administrations—but, rather, to remove that conflict, and to provide a mechanism by which issues can be resolved. Hearteningly, the JMC seems to have started to function rather better than it did when we last went around this particular issue. It has issued statements that explain how it wants these frameworks to be established, so it does not seem to be too much of a leap to write that into the Bill.
The right hon. and learned Gentleman will probably remember our attempt to put the JMC on a statutory footing when we considered the article 50 Bill, but this time the Brexit negotiations are upon us. The Government have lost their majority since our last attempt, so I encourage Ministers to take a more conciliatory approach this time. New clauses 64 and 65 would force the Government to respect both the devolution of decisions, and those who are responsible for taking the decisions.
Ian Murray
Does my hon. Friend agree that the JMC should be producing communiqués that give the public and this House slightly more information? The communiqué published on 16 October merely stated the attendees and apologies, and concluded:
“Ministers noted the positive progress being made on consideration of common frameworks”.
Does my hon. Friend agree that we need slightly more information?
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
Do the Welsh First Minister, and indeed the Welsh Cabinet Secretary for these matters, agree with the wording of new clause 64? Given their public comments, I think they would find it very difficult to agree totally with its current drafting.
Jenny Chapman
My understanding is that the answer is yes. We have not worked alone on this—we have worked together with the devolved Administrations—so I am slightly surprised by that question. Perhaps the hon. Gentleman is angling for something. Is he trying to extract something from this that I am unaware of?
Jonathan Edwards
The plight of the First Minister has always been that new UK frameworks have to be made collaboratively in a partnership of equals. The new clause seems to suggest that this would be a matter determined by Westminster, in negotiation with the devolved Governments, but that is a totally different thing.
Jenny Chapman
The intention is that the frameworks would be achieved collaboratively. That is precisely what we are trying to achieve. It is, of course, a matter for the hon. Gentleman if he is trying to force a wedge between me and my hon. Friends and the First Minister, but I do not think he is going to be successful.
Hilary Benn (Leeds Central) (Lab)
On the point about conflict that was raised by the right hon. and learned Member for Beaconsfield (Mr Grieve), it seems to be the way in which the Bill has been structured that creates the conflict. The Government could have done this differently. They could have said, “You can have all the powers back and we will hold a veto.” The question is about getting agreement on the frameworks when they are necessary. The two new clauses to which my hon. Friend is speaking seem to me—and, I am sure, to many people—to set out a really practical way of bringing the two sides together to get those agreements. That is the route by which we will find a way through this problem.
Jenny Chapman
That is absolutely the approach that we have tried to take. We are trying to be practical, realistic and respectful, and to work collaboratively with the devolved Administrations.
Pete Wishart (Perth and North Perthshire) (SNP)
Will the hon. Lady give way on that point?
Jenny Chapman
I believe that the hon. Gentleman is sincere that his intervention will be on that point.
Pete Wishart
Perhaps the hon. Lady requires a note from elsewhere to say that this is not one of the amendments brought forward by the Scottish Government and the Welsh Government. In fact, the new clause says something entirely different. It states that “Ministers of the Crown” would “create UK-wide frameworks”. The Welsh and Scottish Governments want this to be a combined process that involves all the parties.
Jenny Chapman
I understand what the hon. Gentleman is saying, but I think he is dancing on the head of a pin. We want the creation of the frameworks to be done collaboratively by the devolved Administrations and the Government.
Jenny Chapman
I have already given way quite a lot. If the hon. and learned Lady does not mind, I am going to crack on now. She will have a chance to make her own speech, and I look forward to listening to it.
Mr Jones
Pursuing the same point, does the hon. Lady not accept that new clause 64(3), having provided that there should be no new frameworks created without the agreement of the devolved Administrations, would be a recipe for chaos, on the basis that if there were no such agreement, it would be impossible to create the frameworks that she seems to acknowledge as so desirable?
Jenny Chapman
The Joint Ministerial Committee said that it wanted frameworks to be created in this way, I think at the time when the right hon. Gentleman was a Minister, so I really do not understand what his objection is today.
We need look no further than Wales to learn of the practical benefits of devolution. It is right that Cardiff should decide the best way to support farmers in Wales, within an agreed framework but according to their needs and priorities. Jobs Growth Wales has so far supported the employment of 17,000 young people using European funding. That decision would not have been possible if the arrangements proposed by the Government had been in place at the time. When I was first elected, the Tories and the Lib Dems scrapped the almost identical future jobs fund in 2010. Such decisions were devolved for good reason, and we will support the devolved Administrations in keeping them. Amendments 42 and 337, alongside new clause 64, would allow the Government until the end of the transitional arrangements to create UK frameworks.
I want to make it clear to the Minister that in tabling these new clauses and amendments, Labour is attempting to assist the Government by enabling the devolved Administrations to be engaged in decisions that have a direct impact on their people. If the Government accept our criticisms and proposed improvements, Ministers will find that they have a less turbulent time in the months ahead. Do the Government really think that it is wise to pass a Bill to which the devolved Administrations are so hostile? Ministers need to focus on negotiating the best possible deal for all the people of the UK, not on embroiling themselves in constitutional rows with Edinburgh and Cardiff.
David T. C. Davies (Monmouth) (Con)
I first want to pick up on an earlier comment about what Mr Juncker has been saying. If one could get past the headlines of the biased BBC, the reality is that Mr Juncker actually said that enormous progress has been made in the talks. It might be worth listening to what he actually has to say for once instead of listening to all the usual commentators, who are doing their best to undermine the excellent work that has been done by my colleagues in Government.
The hon. Member for Darlington (Jenny Chapman) delivered an interesting speech in which she made a couple of pointed, but very kind, remarks about the fact that the Conservative party had opposed devolution, and she is of course absolutely correct. We totally opposed devolution in Wales and in Scotland, too, but it is Wales that I will talk about. Indeed, I was one of the leaders of the anti-Welsh Assembly campaign in 1999. However, the hon. Lady forgot to mention something in her long speech, despite making several references to devolution, and it is rather an important point. After the referendum in 1999, when the Welsh Assembly was voted for by just over half of the half of the electorate that came out to vote, the Conservative party totally accepted the result of the referendum. On the very next day, we said that we did not like it and that we would not have chosen it ourselves, but we respected the voice of the people of Wales. We recognised that when people vote in a referendum, even if the result is far from overwhelming, we have to adhere to the result. That is a lesson that the hon. Lady and many of her colleagues have yet to learn properly.
Susan Elan Jones
Would the hon. Gentleman like to explain to the House why he was opposed to Wales having full law-making powers in 2011?
David T. C. Davies
I would be delighted to explain, but I probably will not be able to today. It is a lovely idea, and I would be more than happy to spend 20 minutes or so on it, but—
The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)
Order. I do not think that the hon. Gentleman would like to tell the Committee that at this point. We will stick to the matter in hand for the moment.
David T. C. Davies
Let me return to the matter in hand for a minute, because the hon. Member for Clwyd South (Susan Elan Jones) was also there for the underwhelming vote for devolution in 1999, and she will surely recall that the Conservative party did not call for a second referendum. We did not threaten to drag the whole thing through the courts to get the judges to overrule the will of the people of Wales. We were not going around pretending that people had changed their minds and saying that we needed to run the whole thing over again. We did not say that we were going to drag the whole thing out and do everything possible to undermine it. In actual fact, Nick Bourne, who was then the leader of the Welsh Conservatives and is now a Member of the other place, sat down with Members of all parties on the National Assembly advisory group and helped to draw up the Assembly’s Standing Orders, most of which are now in place. That is the difference between the Conservative party’s approach when we were on the losing side of a referendum and the approach of the Labour party, the SNP and many others now that they are on the losing side.
The reality is that the change will be called a power grab. I did not hear the phrase used today, but it will be described as a power grab. Of course it is a power grab, and what a wonderful power grab it is, too. We are grabbing powers from Brussels and bringing them back to London. Not only that, but over the next few years—[Interruption.] SNP Members can shout all they like; I am waiting for one of them to intervene.
Peter Grant
Perhaps the reason why the hon. Gentleman’s campaign against the Welsh Assembly in 1999 failed was that the people of Wales voted in 1997. It might have gone better if he had turned up two years earlier. As we are talking about where power ultimately resides, I believe 100% in Scotland’s ancient doctrine that the people are sovereign. Where does he believe ultimate sovereignty over Scotland resides?
David T. C. Davies
As the hon. Gentleman knows, that is for the Scots to decide, and they decided that, for the time being, ultimate sovereignty rests within a United Kingdom Parliament in which the Scots are heavily and well represented, if I may say so. I totally respect that, and I hope he does, too.
A few weeks ago, Scottish National party Members were telling us that we should all support and recognise the referendum result in Catalonia, where a nation decided that it wanted to break out of a union with Spain. I find it ironic that the SNP is saying that we have to recognise referendum results when it happens to agree with the policy but that we should completely ignore referendum results when it does not agree with the policy.
Mike Gapes
The hon. Gentleman cannot compare an unconstitutional referendum in Catalonia, in which only 2 million people took part, with a constitutional referendum in Scotland and Wales organised according to legal procedures.
David T. C. Davies
I am comparing not the two referendums but the reaction to those two referendums. On that point, I am probably on the same side as the hon. Gentleman.
Stephen Doughty
The hon. Gentleman appears to be making light of the powers coming back from the EU. The Welsh and Scottish Governments were promised that the powers would go to those Administrations. The powers cover a huge number of areas. The Scottish Government reckon there are 111 returning powers, and the Welsh Government reckon the figure is 64. A huge number of areas are coming back here, rather than going to where devolved competence exists. While he is at it, will he tell us which way Monmouthshire voted in the EU referendum?
David T. C. Davies
The hon. Gentleman knows the difference between a local authority area and a parliamentary constituency, so he knows there is absolutely no way of telling what the Monmouth constituency did. He will be aware that it was quite close in the Monmouthshire local authority area. Indeed, there was a very small majority in favour of staying in the European Union. He will also be acutely aware, as I am sure is the hon. Member for Torfaen (Nick Thomas-Symonds), that I represent 10,000 Labour-voting, traditionally working-class voters in Torfaen. I respect those voters, and they voted overwhelmingly to leave the European Union. Some people say I should not listen to such people, but I tell the hon. Member for Cardiff South and Penarth (Stephen Doughty) that those people mean as much to me as anyone living in Monmouth. I will represent their views, and they overwhelmingly voted to leave the European Union.
Stephen Kerr (Stirling) (Con)
Is not the key point about the referendum not which regions or nations within the United Kingdom family voted one way or another but that we voted as a United Kingdom on the United Kingdom’s membership of the European Union?
David T. C. Davies
Absolutely. My hon. Friend makes an excellent point. Of course, the Government’s whole purpose is to ensure there is a single market within the United Kingdom. We cannot have a situation where different nation states within the United Kingdom go off and do their own thing. If that were to happen, we would have exactly the problem that some Opposition Members complain will occur when we leave the European Union. That is what we are about today.
If one judges the Government by their actions, rather than on the words of Opposition Members, one can see that, actually, this Government and this Conservative party have, over and again, given extra powers to the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly. Sometimes they have been rather more enthusiastic in doing that than I would choose, but we saw it happen in 2011 and we are about to see a huge tranche of extra powers being handed over to the Welsh Assembly on 1 April 2018. The Conservative party has shown it is very willing to give extra powers to the devolved Parliaments and, to some extent, I suppose I agree with that approach. I sometimes think it is happening a bit too quickly, but it will certainly happen again. So I completely support what the Government are doing here today. They are doing what all those on the other side of the House are calling for: bringing about Brexit in a stable and controlled fashion that allows us to move forward with certainty. It is inevitable that this will lead to further powers going to the devolved Parliaments—it may not happen straightaway, but it will happen. Not one single power is coming back to London as a result of these measures; there is not one single thing that can be done by the Scottish Parliament or the Welsh Assembly today that they will not be able to do once this Bill is passed.
Mrs Madeleine Moon (Bridgend) (Lab)
The hon. Gentleman was a Member of the Welsh Assembly for some considerable time. Is he saying that if he were still there he would not be arguing in Wales, in the Welsh Assembly, for the powers in the 140 distinct policy areas that have devolved responsibility, many of them in relation to the environment, to come back to the Welsh Assembly? Would he be happy for the Westminster Parliament to make those decisions on behalf of Wales?
David T. C. Davies
I can say to the hon. Lady that that is exactly what I am saying to her. May I remind her that in 2003 I had an election leaflet that had the headline “No more powers for the Welsh Assembly” and I was given one of the biggest majorities of anyone in Wales? That is something to think about. So “yes” is the answer to that question.
This Government are doing a superb job. All sorts of people and the commentators will once again be, in the newspapers tomorrow trying to find little reasons to undermine this process. It is quite a complicated process, but I say from the bottom of my heart that I think these Ministers are doing a superb job, and they are being supported not just by their Back Benchers or all those who voted to leave the European Union, but by a majority of people in Wales, who also voted to leave the EU and are not being respected by the Labour party, Plaid Cymru and whatever is left of the Liberal Democrats. More power to them, and I look forward to joining them in the Lobby tonight.
Ian Blackford (Ross, Skye and Lochaber) (SNP)
Before I begin, I wish to pay tribute to the former hon. Member for Clydesdale, and for Lanark and Hamilton East, Jimmy Hood, who served this House between 1987 and 2015 and whose sad death we learned of today. I knew Jimmy, having been a constituent of his for a number of years, and I would like to pass on condolences from everyone on our Benches.
I will speak to amendments 72 and 184, which stand in my name and that of my hon. Friend the Member for North East Fife (Stephen Gethins), as well as the remaining amendments standing in the names of Members from these Benches. First, I wish to update the House on the St Andrew’s day meeting in Edinburgh last week, where the Scottish Government and UK Government met to discuss the Bill and its impact on devolution. The talks were constructive and progress was made in some areas, especially on the subject of frameworks, a matter I will come to later in my speech. However, there is a long way to go on this Bill and, as it stands, the Scottish National party cannot and will not support it.
Clause 11 is a bare, naked power grab and it completely undermines the devolution settlements across the United Kingdom. The right hon. Member for Wokingham (John Redwood) often speaks about the UK taking back control from the EU, but this Bill tramples all over the devolved competences of the Parliaments in Edinburgh, Cardiff and Belfast. The Scotland Act 1998, which established the Scottish Parliament, establishes all matters that are reserved. What is happening here is that, without agreement, Westminster is taking back control over matters that are devolved, without having shown due respect and negotiating appropriately with the devolved Administrations.
We are willing to compromise and reach agreement, but we are some distance from that point. The UK Government have failed to see a sense of urgency in concluding an arrangement with the devolved Administrations. Despite our protestations, there was too long a delay in arranging meetings of the JMC, and the Government here in Westminster have to take responsibility for that. Fundamentally, nothing can be agreed until agreement is reached on both frameworks and amendments to the Bill.
The SNP’s amendments seek to remove the power grab and protect Scotland’s devolution settlement. Amendment 72 is a simple and straightforward one.
Stephen Kerr
What are the circumstances in which the right hon. Gentleman would vote for, and what are the changes he would have to see in, clause 11?
Ian Blackford
If the hon. Gentleman bears with me, I will take him through that in my speech.
The fundamental point is that we must protect the interests of the Scottish Parliament. I say to the hon. Gentleman and his friends: are they willing to join us in the Lobby tonight to make sure that we do not have that naked power grab against the interests of the Scottish Parliament and the Scottish people, or will they simply be the poodles of the Prime Minister? Are they going to stand up for Scotland—Ruth Davidson has talked about that—or are they going to fail tonight to stand up for Scotland, which they said they would do when they got here?
Douglas Ross (Moray) (Con)
Does the right hon. Gentleman accept that his tone and language in this debate are quite different from what his Ministers say when they come out of their meetings with UK Government officials? We should reflect on the progress that has been made to date, rather than continually try to find a political divide on this most important of issues.
Ian Blackford
A simple one-word answer: no.
Amendment 72 is simple and straightforward. It seeks to ensure that all the devolved Administrations have a vote on approving clause 11 before it can come into effect. The principles behind the amendment are critical. Scotland, Wales and Northern Ireland have been told time after time that this is a Union of equals. There must be equality in the Brexit process and every corner of the UK must be heard.
Ian Murray
We had a very good briefing, as we always do, from the Law Society of Scotland. It concludes, after several paragraphs of different suggestions on how this could be done more practically, that this is essentially a political decision. Does the right hon. Gentleman share that view?
Ian Blackford
Absolutely. When so many people have worked so hard over many generations and many decades to establish the Scottish Parliament, this attack on the competences of the Scottish Parliament by the Government is absolute bare-faced cheek.
The Tory Members of Parliament from Scotland should remember what they said: that they are here to stand up for Scotland. Tonight they have their opportunity. Are they prepared to see this power grab against the Scottish Parliament? Are they going to vote to take powers back from the Scottish Parliament to Westminster? That is the simple choice that Conservative Members of Parliament face tonight.
It is deeply depressing that the UK Government did not even bother to consult the devolved Administrations on the legislation before publishing it. Where is the respect when they cannot even talk to their colleagues in the devolved Administrations as they should do? I am sure that that obvious act would have saved many of the problems and headaches the Government now face over the devolved aspects of the Bill.
Stephen Doughty
I was happy to put my name to amendment 72 because it is not about whether we want this Brexit Bill to go forward or not—a leaver or a remainer could support amendment 72—but about respecting the constitutional settlement and respecting the rights of the Welsh Assembly, the Northern Ireland Assembly and the Scottish Parliament.
Ian Blackford
I am very grateful for the hon. Gentleman’s remarks. He is absolutely correct. Amendment 72 is about protecting the interests not just of the Scottish Parliament and Government, but of the Administrations in Wales and Northern Ireland.
A point was made earlier about where sovereignty lies, but this House has to be very careful about going against the wishes and the democratic institutions that have been established in all the devolved areas. We play with that at our peril. I am delighted that amendment 72 has gathered support across the House. I sincerely hope—I plead with them—that the Scottish Conservatives join us and support it tonight. Let us all stand up with one clear and united voice, defending the interests of the Scottish Parliament. Do that tonight—stand up for Scotland. It is their moment to stand up and defend the devolution settlement.
Mr Alister Jack (Dumfries and Galloway) (Con)
Can the right hon. Gentleman please tell me one of the 109 powers that is not already implemented at a devolved level?
Ian Blackford
I am not quite sure what the hon. Gentleman is referring to. If he had listened to what the Scottish Government have said, he would know that 111 devolved competences are being interfered with. That is the salient point.
When the Scottish Parliament was established, the Scotland Act 1998 defined matters that were reserved. Those matters that were not reserved were devolved to the Scottish Parliament. Areas such as agriculture, fisheries and the environment are fully devolved. In this Bill, powers over agriculture, fisheries and our environment are being taken back to Westminster. I say with all due respect to the Conservatives: do you want to trample over the powers that the Scottish Parliament has over these areas?
The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)
Order. I hesitate to interrupt the right hon. Gentleman, but he knows what I am going to say: I am not going to trample over anyone—well hardly anyone—this afternoon. I would be grateful if he addressed the Government as the Government.
Ian Blackford
My sincere apologies, Mrs Laing. You are right to reprimand me, and I apologise. I am talking about the powers that the Government are taking back—the naked power grab that is taking place against the Scottish Government.
John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)
The Secretary of State and the United Kingdom Government have made it absolutely clear that, after Brexit, the Scottish Parliament will be much more powerful than it is today. Despite that the right hon. Gentleman continues to stand and spout those views. That is just not the case. Our job is to protect Scotland’s place within the United Kingdom and within the internal market of the United Kingdom. Can he tell me the value to Scotland of the rest of the UK trade compared with the value to Scotland of trade with the EU?
Ian Blackford
My goodness, that really does demonstrate that they are not getting this. Purely and simply, it is about the powers that are being taken back from the EU that will sit here in Westminster. The Scotland Act is very clear about the areas that are devolved and the areas that are reserved. It comes to this fundamental point: are Conservative Members who have been sent here from Scottish constituencies going to defend the interests of the Scottish Parliament, or are they simply going to go through the Lobby tonight and speak up for London? Are they speaking up for Scotland or for London? That is the question that the Tories face tonight.
Several hon. Members rose—
Ian Blackford
I wish to make some progress. I will happily take interventions later.
By supporting the amendment, the Scottish Conservatives would give power over how this Bill impacts the devolved Administration to the Scottish Parliament. I am sure Conservative Members will agree with their colleagues—and their leader—in the Scottish Parliament that our own Parliament should have the ability to debate and effect clause 11 and vote on its inclusion in the Bill.
Amendment 184 is a consequential amendment linked to amendments 164 and 165, tabled by the hon. Member for Edinburgh South (Ian Murray). The SNP’s amendment 184 would support amendments 164 and 165 in changing the definition of devolution issues in the Scotland Act 1998. The SNP will work with Members across this House when and where we can. Our joint amendments show just how serious we are about sending a strong message to this Government. However, it is with regret that new clauses 64 and 65, in the name of the official Opposition, do not go far enough for us on the SNP Benches. It is a concern that new clause 64 seeks to place the UK Government in control of joint frameworks and does not recognise that they should be joint creations of the two Governments.
New clause 65 grants the JMC only a consultative role. That is not good enough for the so-called “nation of equals”. We now get to the heart of the problem with this clause. The European Union (Withdrawal) Bill represents the biggest threat to the devolved settlement since the Scottish Parliament reconvened in 1999. Clause 11 seeks to restrict the Scottish Parliament’s legislative competence over EU law and aims to keep all the powers coming back from Brussels, which are under the remit of the Scottish Parliament, firmly in the grip of Whitehall officials. The outrageous way in which this legislation was drafted has united the Governments in Scotland and Wales.
After publication of the Bill, the First Ministers of Scotland and Wales published a joint statement warning against this power grab and stating that the Bill does not deliver on the promise to return powers from the EU to the devolved Administrations. That consensus highlights the extent of the problem with the legislation and the extreme power grab facing the devolved Administrations. We want to keep power where it belongs—in the Scottish Parliament.
Douglas Ross
The right hon. Gentleman says that he wants to keep the powers where they are. Does he therefore accept that he is saying that the SNP wants powers to come back from Europe to Scotland, and for Scotland to become independent to shove those powers straight back to Europe again? Those are views that ensured that the people of Moray voted for a Conservative, rather than an SNP, representative this time.
Ian Blackford
I do not appreciate the hon. Gentleman’s tone. We cannot get away from the simple fact that this legislation is trampling over the powers of the Scottish Parliament.
Lucy Frazer
The right hon. Gentleman keeps saying that we are trampling on powers that Scotland has, and I just want to correct him. Regardless of what he thinks of the principle, the position—as a matter of law—is that these powers are now vested in the EU. The Supreme Court said in paragraph 130 of the article 50 case judgment:
“The removal of the EU constraints on withdrawal from the EU Treaties will alter the competence of the devolved institutions unless new legislative constraints are introduced. In the absence of such…restraints, withdrawal from the EU will enhance the devolved competence.”
Is the right hon. Gentleman saying that the Supreme Court is wrong?
Ian Blackford
The simple fact is that the Secretary of State and others have been asked on a number of occasions to name one power—just one—that will come back to the Scottish Parliament, and they have failed to do that. I do not know whether the hon. and learned Lady has ever read the original Scotland Act 1998, but she seems to ignore the fundamental point of all this, which is that the Scotland Act defines what is devolved and what is reserved. The only powers that are reserved are those expressed in the Scotland Act. It excludes fisheries, agriculture and the environment. I would think better of the hon. and learned Lady, who I know has a background in law, if she actually read the relevant documents. She would then understand exactly why people in Scotland and in Wales recognise this legislation for what it is; it is about taking back control.
Ian Paisley (North Antrim) (DUP)
On that point, does the right hon. Gentleman agree that, if another region of the United Kingdom were offered “regulatory alignment” outwith the rest of the United Kingdom, it would be a real trampling on the rights of the Scottish people and the Scottish Parliament?
Ian Blackford
Indeed, although I am not quite sure what the hon. Gentleman is referring to when he talks about regions, because we always say that this should be about an equality of nations within the family of nations of the United Kingdom. The issue of sovereignty has been raised in that context. We should remind the Committee that, although we often hear about parliamentary sovereignty, that does not apply in Scotland because the legal case that prejudices our position is MacCormick v. the Crown in 1953, which established that parliamentary sovereignty is a purely English concept that has no counterpart in Scottish constitutional history. It is the people of Scotland who are sovereign.
A recent survey by 38 Degrees shows that 62% of Scots want the responsibility over devolved areas currently held by Europe to be transferred straight to the Scottish Parliament. That is the settled will of the people of Scotland.
Paul Masterton (East Renfrewshire) (Con)
Will the right hon. Gentleman give way?
Ian Blackford
I will give way later.
The Scottish and Welsh Governments have tabled a number of key amendments to the Bill—amendments 164, 165, and 183 to 188—through SNP Members and Labour Members. I am delighted that these amendments have all been selected for debate today, and I will leave my friends to speak to the amendments in their own names. It must be recognised that there is deep disapproval from the devolved Administrations in Cardiff and in Edinburgh about not only how this legislation was drafted, but the extent to which it disrupts the functioning of devolved competences.
During the referendum campaign last year, Scotland was promised all sorts of powers. The Environment Secretary told BBC Scotland that Scotland would get immigration powers with a leave vote. The former Member for Birmingham, Edgbaston promised Scotland powers over fishing and agriculture. But here we are, 17 months after the referendum. There are no new powers for Scotland. In fact, Brexit means Scotland losing powers. [Interruption.] I can hear huffing from the Government Benches. I invite any Government Member to rise now and name one power—just one—that will come back to Scotland as a consequence of Brexit.
The Secretary of State for Scotland (David Mundell)
At the start of his remarks, the right hon. Gentleman sought to give us feedback from the meeting that I held with the First Minister and Deputy First Minister of Scotland and the Minister responsible for exit. If the right hon. Gentleman had been party to those discussions, he would know that all 111 powers were subject to discussion between the two Governments, and the two Governments will bring forward their proposals in due course. This power grab talk and this naming one power—it is pantomime. What this Government are involved in is the reality of negotiating a way forward on this matter.
Ian Blackford
I can hear Conservative cheering, but what a waste of time that intervention was. The question was very simple: name one power coming back to Scotland. Once again, the Secretary of State for Scotland, who is London’s man in Scotland—far from being Scotland’s man in the Cabinet—was not able to demonstrate that one single power is coming back to us. It is 17 months after the referendum, and we are no further forward. The clock is ticking, and every single power, as things stand, is coming back to Westminster. That is the reality. The Secretary of State, like his colleagues from north of the border, has failed to stand up and protect Scotland’s national interest.
Paul Masterton
Is the right hon. Gentleman not just demonstrating how out of the loop he is with his own party, given that the Brexit Minister, Mike Russell, knows full well what those discussions have been about? Secondly, is the position of the SNP at Westminster different from that in Holyrood, because the SNP there has said explicitly that it agrees that agriculture and fisheries are areas where UK frameworks will be needed?
Ian Blackford
I am surprised at that intervention from the hon. Gentleman. I expressed right at the outset of my speech that we recognise that progress was made, but that progress has not been sufficient to justify the SNP supporting this Bill tonight. The whole point about our position is that we want to see frameworks in place, but we can move forward on that only when the UK Government are prepared to negotiate. Why was there a six-month period when the Joint Ministerial Committee did not meet? If there is any blame in this matter, it lies with those on the Government Benches.
I can tell the hon. Gentleman that there is not a fag paper between the position of the SNP on these Benches and that of our colleagues up the road in Holyrood. We are united, which is more than can be said of the Conservative party, because Ruth Davidson is delivering a very different message from the one that is being delivered by the Conservatives down here. Ruth Davidson recognises the threat to Scotland of being out of the single market and the customs union. The Scottish Conservatives would serve the interests of the people of Scotland if they recognised that there is an economic threat from being outwith the single market and the customs union.
Mr Grieve
If I may say so, I have sympathy with the point that is being put across—that the way in which the Bill is drafted seems to be excessively stark and to fail to take account of the sensitivities of the devolution settlements. However, I am afraid I cannot join the right hon. Gentleman on the rhetoric, because, ultimately, as a United Kingdom, which is what we are, there has to be flexibility in reaching a sensible way forward in the light of a change in circumstance. If I may gently say so to him, because I participated actively in the debates on the devolution legislation of 1997, it was always acknowledged then that devolution was not just a one-way street; for it to work, we required that flexibility of dialogue between Cardiff, Edinburgh, Belfast and London to reach solutions and not just to get anchored on principles. While I am respectful of the point he is trying to make, I suggest to him that that might be a sensible way forward.
Ian Blackford
I thank my right hon. and learned Friend, if I may call him that, for that intervention. I always listen carefully to what he has to say, and I think that, in some respects, he makes my point. Way back last December, the Scottish Government published a paper about achieving compromise, and that is the position we have always taken. We fully recognise that we have to get to a situation where we can compromise and where we need to have joint frameworks. The nub of this argument is where the powers should lie when they come back from the EU. It would be far better if they came back to the Scottish Parliament, so that we could agree a framework; as it is, the UK has grabbed the powers and is failing to discuss these matters adequately—not just with the Government in Edinburgh, but with the Government in Wales.
The Bill returns powers solely to the UK Government and Parliament, imposing new restrictions on devolved legislatures. Scotland is getting used to Labour and Tory politicians promising all sorts of things during referendums but never delivering them. It is astonishing that just three years ago the Conservative and Labour parties were telling the people of Scotland that the biggest threat to the economy and EU citizenship was an independent Scotland—“Vote no to protect the UK’s EU membership!” Let us think about that for a minute. Now we are losing our EU membership. The economy is already seeing the effects, inflation is up and the fall in the pound and living standards has been the consequence.
The reality is that Brexit is making us poorer before it even takes hold. Our prosperity is under threat. Meanwhile, the UK Government are attempting the biggest power grab since 1999.
Ian Murray
I am grateful to the right hon. Gentleman, whose amendments I will support this evening; I believe the SNP will be supporting Labour’s. In that spirit of consensus, may I probe a little further into what he is saying about the independence referendum? I have still to find anyone who supports independence who can explain to me how they think the EU single market is such a good thing but the UK single market is not.
Ian Blackford
The answer is very simple: we would not be leaving the single market of the UK. We are hoping to protect the interests of the people of Scotland. The simple matter in front of us at the moment, as identified by the Fraser of Allander Institute, is that we run the risk of losing 80,000 jobs in Scotland if we are outwith the single market and the customs union. A decline in wages of £2,000 per person—that is the reality of the threat. We are seeking to protect the interests of the people of Scotland.
Ian Blackford
I am going to make some progress.
The enormity of clause 11 has been highlighted by numerous legal experts. Professor Alan Page noted that the Bill proposes a massive increase in the power of UK Ministers to legislate in the devolved areas. Professor Richard Rawlings noted:
“The sooner clause 11 is cast aside, the better.”
Professor Stephen Tierney has noted a confusion around the Bill, made even more problematic by the fact that the interpretation of devolved competence will become an area of constant fluctuation.
In evidence to the Scottish Parliament’s Finance and Constitution Committee in early November, the Under-Secretary of State for Exiting the European Union, the hon. Member for Worcester (Mr Walker), stated that it was “quite possible” that the clause restricting the Scottish Parliament’s competency would be “substantially reduced”. We are having this debate today without any action having been taken. I am deeply disappointed that the Government should have found time to table an amendment on the date of Brexit, but have failed to table anything rectifying the mess they have made of clause 11. The House of Lords Delegated Powers and Regulatory Reform Committee report even concluded:
“The Order in Council powers in clause 11 and Schedule 3 are inappropriate and should be removed.”
Secretary of State, why has that not happened?
The problem with clause 11 is not just the power grab. The Law Society of Scotland has raised concerns around the modifying of conferring power by subordinate legislation to modify retained EU law. It highlights that it is not clear what Acts of the Scottish Parliament the new provision will apply to. The Bill suggests that the provision is not intended to be retrospective and will apply only to post-exit Acts of the Scottish Parliament. But what exactly is such an Act—an Act enacted on or after exit day? That would mean that legislation would be required to comply with that restriction even if it was introduced months before exit day and even if it had been passed by the Scottish Parliament before exit day.
Following the mounting pressure, lists of questions and growing criticism, the UK Government brought forward a plan of common frameworks. Although we on the Scottish National party Benches recognise that common frameworks that replace EU law across the UK may be needed in some areas, the competence in matters otherwise devolved should revert to the Scottish Parliament. The scope and content of any UK-wide framework must be agreed rather than imposed. That is the fundamental point. We welcome the Secretary of State’s commitment to that principle.
Although the UK Government have indicated that they wish to develop common frameworks, it is not currently clear how policy within those frameworks might be agreed. The Law Society of England and Wales has called for discussions about where common frameworks will remain and the extent of their scrutiny. Professor Michael Keating has warned of the UK Government creating a “hierarchical model of devolution” through the frameworks. With clause 11 in place, agreement can never be reached, as the price of UK Government demands for an agreement would be reservation of the matter, putting the terms and operation of the common frameworks beyond the powers of the Scottish Parliament. Reading clause 11 leaves me in no doubt of that. Whoever drafted it had absolutely no understanding of the devolution settlements of the Scotland Act 1998.
The Scottish Government have published the 111 powers at risk in clause 11 of being held centrally in London despite falling under devolved competencies. Those powers range from agriculture, to justice, to environmental standards. Devolution has meant the divergence of policy across the UK. The Climate Change (Scotland) Act 2009, passed unanimously in the Scottish Parliament, established Scotland as a world leader in tackling climate change. As the UK Government seek continually to catch up, any holding centrally in London of powers that affect this policy divergence will not only hold back the progress Scotland has made on environmental matters but prevent any legal measures that aim to deliver phased introductions on any proposal.
The confusion around the effect of clause 11 deepens. When asked multiple times, as I have done, to name just one power that is currently coming back, the Secretary of State has not been able to do so. Yet the Cabinet Office says that
“anything”
the devolved Administrations
“could do before we leave the EU, they will able to do after we leave”.
The truth is that this Bill does not provide for a single new decision-making power for any of the devolved legislatures. Everything goes to London, and it is for London to decide what ultimately happens to these powers. Where is our sovereignty in all this? Where is the sovereignty of the people of Scotland?
The Scottish Government have been clear that there is no way the Scottish Parliament can grant a legislative consent motion until this Bill is drastically dealt with. If no progress is made today on the amendments tabled in the names of Scottish and Welsh Members, there will be no change in that position. Let me make it clear: we do not want to be in the position of not granting a legislative consent motion. We want to do that, but in order for us to do so, the Government have to respect the powers that should sit in the Scottish Parliament. [Interruption.] The hon. Member for Stirling (Stephen Kerr) is saying, “Really?” We have tried to engage in this process constructively; it would be great if the Conservatives would engage in the same way.
Stephen Doughty
Is the right hon. Gentleman genuinely surprised that there has not been progress on some of the reasonable amendments that have been tabled on a cross-party basis, given that the Secretary of State for Scotland himself said to the Scottish Affairs Committee that
“it may be that some amendments can be accepted with a little bit of modification”?
I would have hoped that by this stage the Government would have made more progress on some of the very reasonable amendments that have been tabled.
Ian Blackford
The hon. Gentleman makes an important intervention. We are 17 months on from the vote and we are at a very important stage of this Bill.
We are trying to negotiate on the basis that we recognise the threats that we are facing. It is incumbent on the Government to recognise that we have to get agreement between the Government in London and the Governments in Edinburgh, Cardiff and Belfast. It saddens me that we are having eight hours’ debate today and will have eight hours’ debate on Wednesday, and the Government’s approach just seems to be that they are listening. How long does it take them to listen, and how long does it take them to respond to the fact that they are trampling over the powers of the devolved Administrations? The Government in Edinburgh and SNP Members are making it absolutely crystal clear that we do not want to be in the position of a legislative consent motion being withheld. We want to make sure that we can strengthen this Bill to the advantage of everybody, but we need to get the position from the UK Government that they are prepared to respect the Administrations in Edinburgh, in Belfast and in Cardiff.
Joanna Cherry
There is a lot of scoffing on the Government Benches. Three Committees of this House have heard evidence about clause 11—the Scottish Affairs Committee, the Exiting the European Committee, and the Public Administration and Constitutional Affairs Committee—and the weight of that evidence from a number of senior, distinguished lawyers from both north and south of the border has been that there are very real concerns that clause 11
“drives a coach and horses through the devolution settlement”.
Those are not the SNP’s words but the preponderance of evidence heard by Committees of this House.
Ian Blackford
My hon. and learned Friend makes a strong case. That is why the Government should listen to her, and to the other reasonable voices that have spoken this afternoon and at other times. The Government have to recognise that they are playing with the powers that have been established under various Scotland Acts, and that is not right. The evidence is there from academics and from the Select Committees of this House that have made judgments on the matter, and the Government have a responsibility tonight to reflect on it. They must not push the matter into the long grass and say that they are listening; they have to show that they are prepared to take action.
I will sum up, because I know that many others want to speak. With the overwhelming evidence from experts in the legal profession showing how flawed clause 11 is, the best thing the Government can do is to accept that the Bill needs to be fundamentally amended. They can do that this evening, by accepting the joint Scottish and Welsh Government amendments. Common frameworks will not prevent the imminent constitutional crisis that clause 11 will create. The Government must change this Bill.
Paul Masterton
I am grateful to have the opportunity to speak, as a Scottish Conservative MP and as a member of the Scottish Affairs Committee, on what I believe is being termed devolution day. I draw Members’ attention to the Committee’s—in my biased view—exceptional report, which our Chair, the hon. Member for Perth and North Perthshire (Pete Wishart), may well highlight at some point. The report was unanimous, and it draws on huge amounts of common ground between Scotland’s two Governments. That suggests that despite some histrionics, consensus exists on this area of the Bill, and that consensus will enable us to improve the Bill.
We must recognise that the debate takes place in the context of active, and now constructive, talks between the UK and the Scottish Government. That makes it a little difficult to debate the words on the page, because there are so many moving parts, but I will focus my remarks on where I believe clause 11 needs to end up and the route that the Scottish Conservatives envisage for getting there.
As has been addressed, several provisions of the Bill fall within the scope of the Sewel convention; in other words, the Scottish Parliament and Welsh Assembly have been asked to give their consent to the Bill. The Scottish and Welsh Governments have signified that, unless the Bill is substantially amended, neither will recommend that consent be given. The UK Government’s position is, I believe, the right one. They are committed to working to obtain a legislative consent motion and expect to achieve one.
As Scottish Conservatives, we are committed to ensuring that the Scottish Parliament can give its consent to the passage of the Bill. As Members may not all be aware of the timescale, I will explain that the plan is for the Scottish Parliament to vote on whether to grant a legislative consent motion ahead of the Third Reading of the Bill in the other place. It is not an all-or-nothing event; it is perfectly possible for an LCM to be initially denied, and then for another vote on granting an LCM to be taken and passed at a later date.
Although, as readers of The Daily Telegraph will be aware, I have a number of issues with the Bill, by far the biggest concern regarding devolution is clause 11. It is my view that if we can fix clause 11, most of the other issues regarding the Bill’s impact on devolution will fall away. On Second Reading, I said that I would not allow legislation to pass that undermined the Union or the devolution settlement, and that remains my position today.
There are 111 powers currently exercised at EU level that do not fall within reserved competence under the Scotland Act 1998 and are therefore, under the scheme of the Act, devolved. Clause 11 will effectively hold those powers at Westminster level. Although that is a sensible interim measure, as the Scottish Affairs Committee heard in evidence during its enquiry, the interim phase has given rise to the “power grab” melodrama that we have heard from the SNP.
Alison Thewliss (Glasgow Central) (SNP)
Would the hon. Gentleman like to tell us how interim interim is?
Paul Masterton
If the hon. Lady will bear with me, I am coming on to talk about that.
Clause 11 provides that the 111 powers that I have mentioned will be released to Scottish Ministers on a case-by-case basis once UK Ministers are satisfied that it is safe to do so. There is no timescale for that, and the process is unilateral. Under clause 11, the powers, once repatriated from the EU to the UK, are for UK Ministers to exercise or to devolve, as they see fit.
Joanna Cherry
The hon. Gentleman is pouring some scorn on the phrase “power grab”. He might be interested to know that the first person to use the words “power grab” in relation to the process was not a member of the Scottish National party, but the former Prime Minister, Gordon Brown.
Paul Masterton
The hon. and learned Lady and I perhaps have different definitions of what is interesting.
Ostensibly, amendment 164 and the consequential amendment 165 to schedule 3 are in the names of Opposition Members, but they have in fact been tabled on behalf of the Scottish and Welsh Governments. This distinction is important, and Ministers should be mindful of it. The amendments would turn clause 11 on its head, repatriating all 111 powers directly to Holyrood. Brexit must be delivered in a way that respects devolution, but it would plainly be contrary to the interests of the United Kingdom as a whole for the devolved Administrations in Edinburgh or Cardiff to be able to use powers formerly held at EU level to pull apart Britain’s three centuries old internal market. The fact that Britain is a single employment market, with no barriers of any sort on the movement of people, goods or services is core to the case for the Union.
Pete Wishart
The hon. Gentleman is a very assiduous member of the Scottish Affairs Committee, for which I am grateful, but surely he must agree with, recognise and accept the basic premise that clause 11, as currently constituted, is unacceptable and needs to be significantly reformed?
Paul Masterton
I absolutely agree, but the point is that the amendments proposed by the Scottish and Welsh Governments go far too far. There is some middle ground, on which, if the hon. Gentleman will allow me, I will set out where I believe we can get to.
Neil Gray (Airdrie and Shotts) (SNP)
Some of the hon. Gentleman’s Conservative colleagues have proposed their own amendments on other areas of the Bill. Why has the Scottish Conservative group of MPs not tabled any amendments to clause 11 if they share his concern?
Paul Masterton
For the simple reason that there is another JMC meeting on 12 December, and we do not believe it is right to prejudge or prejudice the outcome of those negotiations. There is going to be an agreement, and it is much better to allow such an agreement to be reached and incorporated into the Bill.
Much has been devolved since 1998, but nothing that jeopardises the UK’s single internal market. It would be in the interests of neither consumers nor producers for product safety and consumer protection rules to be different across the nations of the United Kingdom.
Dr Philippa Whitford (Central Ayrshire) (SNP)
Will the hon. Gentleman give way?
Paul Masterton
I am going to make some progress.
These rules are now uniform throughout the UK and many, but of course not all, should remain so after Brexit. Amendments 164 and 165 go too far and are dangerous to the Union. Frankly, I am startled that Scottish Labour—only one Scottish Labour MP is here—and Scottish Liberal Democrats are prepared to support these amendments, which could so fatally undermine the integrity of our Union. The Scottish Conservatives will not support them. However, I want to make it clear that my vote with the Government should not and must not be taken as an acceptance of clause 11 as it stands.
Christine Jardine (Edinburgh West) (LD)
I am astonished. Does the hon. Gentleman not agree that continual discord, arguments about the constitution and a perceived threat to the powers of the Scottish Parliament are more of a threat to the United Kingdom than anything proposed in any amendment in Committee today?
Paul Masterton
I thank the hon. Lady for her intervention, but I do not agree. I think that amendments 164 and 165 are fundamentally dangerous to the Union, and it would be dangerous for the integrity of the Union to pull them into the Bill.
Dr Whitford
Does the hon. Gentleman not accept that the principle of the Scotland Act 1998 was that what was not reserved was devolved? These powers could easily go to the devolved nations, which could then sit around the table. Their voices would then be heard properly in any national framework, and they would not simply be told what it would be.
Paul Masterton
If the hon. Lady was listening, she will have heard me say that I agreed that that was the purpose of the 1998 Act. I am coming on to say explicitly that clause 11, as drafted, is not fit for purpose and must be changed. It does not need to be tweaked a little; it needs to be amended and replaced with a new version. However, I do not consider now to be an appropriate stage in the process at which to demand a new draft to be brought before the House.
I fully accept that this issue is linked to active conversations tacking place between Governments, and I share my hon. Friends’ concerns about the fact that introducing new drafting to reflect where I believe we need to, and should, end up—indeed, where we will more likely than not end up—would pre-empt what are now and are expected to continue to be fruitful negotiations between the UK and Scottish Governments. I am prepared at this stage to give the UK Government the time and opportunity to take forward these matters, on the clear understanding that both sides need to move from where they now are on clause 11. We are beginning to see movement: we can see it in the constructive JMC (EN) talks, the next meeting of which will be on 12 December, and Scottish Conservatives stand ready to help broker a compromise. In our view, the impasse is readily solvable. Most of the 111 powers are technical and regulatory.
Joanna Cherry
I ask the hon. Gentleman to seriously consider what he has just said. He said that most of the 111 powers are technical and regulatory. Is he aware that the list affects huge swathes of our justice system in Scotland? Does he consider our devolved justice system and separate legal system to be simply technical and regulatory matters?
The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)
Order. I am always grateful for the help of the hon. Member for Paisley and Renfrewshire North (Gavin Newlands). Thank you very much. Mr Masterton must have a chance to answer the point made by Ms Cherry before we have any further interventions, although there will probably be another one in a moment.
Paul Masterton
Again, I draw the attention of the hon. and learned Member for Edinburgh South West (Joanna Cherry) to the fact that I said that most of the 111 powers are technical and regulatory. They cover areas either where divergence in policy between UK and Scottish Government Ministers would not be a threat to the integrity of the UK internal market, or where consistency could be maintained through non-legislative options. Those powers should be devolved to the Scottish Parliament on exit day, or as close to it as can safely and realistically be achieved.
In respect of those powers where there is a legitimate UK interest in uniformity across the UK—that is, where divergence between the nations of the UK would be contrary to the UK’s interests—it would be unsafe to allow them to be devolved without providing for constraints on how they may be used. It is in those cases that we will need common frameworks, a concept accepted as necessary by UK, Scottish and Welsh Ministers. Aspects of agriculture and fisheries are among the examples where it has been accepted that there will be a need for common frameworks.
As confirmed to the Scottish Affairs Committee by the Secretary of State for Scotland, if the frameworks are to be acceptable to the Scottish and Welsh Governments, they will have to be negotiated and agreed, not imposed top down by the UK Government. That suggestion is fairly straightforward. Each of the 111 powers will either fall to be wholly devolved to the Scottish Parliament, or the UK will step into the shoes of the EU, replacing an EU-wide framework with a new UK-wide framework, for which administrative competence will largely rest with the Scottish Parliament.
Although we will not seek to amend clause 11 at this stage, we will, in exchange for supporting the Government on amendments 164 and 165, require confirmation from Ministers that they will expedite discussions with the Scottish Government further. We seek quick progress, looking ahead to the next JMC (EN) in December and into January, and in any event certainly before the debate on Report.
My focus at this stage is very much on the framework negotiations running parallel to this debate, but I ask that the UK Government give me the assurances I seek that they will move forward urgently through the JMC (EN) with, first, identifying and agreeing areas where there is a need for legislative common frameworks; secondly, recognising that the other powers can be devolved immediately on EU exit, including as many of those where non-legislative solutions on maintaining consensus have been agreed; and thirdly, settling how the common frameworks will be agreed. I expect an assurance on the first two issues to be given by the debate on Report, and if the third has not been given by then, I expect clear and significant progress to have been made.
In time, clause 11 will need to be replaced to reflect that, but I recognise that its final form will be linked to the points I have listed, so I do not ask for, or expect, that change to be made now. Looking ahead, once agreement is reached on where frameworks are needed and how they will be agreed, I believe that clause 11 should include a draft default setting, so that the power would be held by UK Ministers until a common framework is agreed. Crucially, however, that default setting could apply only in areas where it was established that there should be a common framework and the mechanisms to reach agreement on a framework have failed.
A lot of work needs to happen between now and then, primarily on moving the frameworks on through the JMC (EN). That is why my focus will stay on that for now. I say again, however, that my vote against amendments 164 and 165 tonight is conditional and must not be taken as support for clause 11 as it stands.
Christine Jardine
What action will the hon. Gentleman take if amendments 164 and 165 are not passed and his demands do not come to pass? Would it not be more sensible to just support the amendments?
Paul Masterton
No, because I do not believe that amendments 164 and 165 provide the position in which I think clause 11 could and should end up. I have been very clear—I said this on Second Reading and I have said it again tonight—that I will not support a Bill that undermines devolution and does not respect the integrity of the Union. I do not think I could have been any clearer to Ministers.
I consider my argument to be reasonable, pragmatic, achievable and, crucially, acceptable to both of Scotland’s Governments. There is much at stake. If the steps I have outlined are not completed, the consequences are quite simple: LCMs will not be granted by the devolved Administrations and the other place will not pass the Bill. I genuinely believe that that is not a situation in which any of us want to find ourselves, and I look forward to receiving the necessary assurances from the Minister in his closing remarks.
Ian Murray
I pay tribute to the hon. Member for East Renfrewshire (Paul Masterton) for his contribution. His sensible approach to the Bill shows that, while we may not reach a consensus across the parties on some of these issues, we can make the Bill better, which is why we are here. The dogma with which the Government have approached the UK’s withdrawal from the European Union and the Bill will shape many aspects of how the UK operates for generations to come. I wish that more Members had the attitude of the hon. Member for East Renfrewshire as the Bill goes through Parliament.
The hon. Gentleman wants assurances about amendments 164 and 165, which I tabled, but I say gently that the best way for him to get them would be for him and his colleagues to wander through the Lobby with the Opposition tonight and put the amendments in the Bill. That would ensure that Ministers would get the message that the current drafting of clause 11 is incorrect.
I shall speak to amendments 164, 165, 177 to 181, and 189 to 195, all of which I tabled. I appreciate that many are consequential to my main amendments, 164 and 165, and that a number will be for decision on another day. Amendment 42, which was tabled by my right hon. and hon. Friends on the Opposition Front Bench, is much better drafted than mine—I wish I had said that two weeks ago in the customs union debate. It will probably be the one that is carried as it covers Northern Ireland, which I missed out because of the constitutional difficulties there.
I would like to take a few moments to pay tribute to the former Member for Lanark and Hamilton East, Jimmy Hood, who died last night. We send his wife, Marion, and his wider family all our very best thoughts and wishes in the days to come. Jimmy was a close friend of mine and of this House. He was a great source of advice, and indeed fun, particularly in the Tea Room. Perhaps I should move on to the amendments before I tell any of those stories from the Tea Room, as they may not be over-appropriate for this Chamber.
Two weeks’ ago, in the debate on the Ways and Means motion with regard to the customs union, I put it to the Scottish Conservatives that all Members in this House try their very best to represent the views of their constituents, and of those in our wider geographical areas, including our nations of Scotland, Northern Ireland, Wales and England, as well as the wider United Kingdom. The Conservative party’s leader in Scotland trumpeted the outcome of the 2017 general election in Scotland by heralding it as 13 Scottish Conservative Members of Parliament coming to this House to stand up for and to defend the interests of Scotland. In the context of the Bill, the only Scottish Conservative Member to do that so far—he has demonstrated it today and in previous votes—is the hon. Member for East Renfrewshire. One therefore has to ask: are the Scottish Conservative MPs here under the flag of the Scottish Conservative leader, Ruth Davidson, or under the flag of the Whips Office of the UK Government? I suspect it is the latter.
Ian Murray
I will be happy to take the hon. Gentleman’s intervention if he tells us whether he is standing up for the interests of Scotland or the interests of his Chief Whip.
Ross Thomson
That is absolutely the case. That is why there are 13 Scottish Conservative MPs and only seven Scottish Labour Members. Indeed, a number of my colleagues are in their place on the Conservative Benches, whereas the hon. Gentleman seems to be the sole Scottish Labour Member in the Chamber. I think that the Scottish Conservatives are doing well in standing up for Scotland.
Ian Murray
I think the hon. Gentleman has just demonstrated that he will be voting with the UK Government Whips this evening against the wishes of the Scottish people and against the will of the Scottish people expressed in the referendum. When Ruth Davidson is asked about the 13 Scottish MPs, she always says that they are here to fight Scotland’s corner, but it is quite clear that they are not going to fight Scotland’s corner on these clauses.
I wish briefly to mention new clause 65, which relates to the Joint Ministerial Committee. I have long tried in the House to strengthen the case for the JMC. One of the key aspects of the original Smith commission, which was established on a cross-party basis following the independence referendum in 2014, was to strengthen intergovernmental relationships so that such issues could not occur. I was disappointed, however, during our 2015 deliberations on what became the Scotland Act 2016, when the Government rejected our amendments aimed at strengthening that relationship. The conclusion of many commentators is that weak intergovernmental and inter-parliamentary working is causing some of these problems.
In his final report, back in 2014, Lord Smith of Kelvin said:
“Throughout the course of the Commission, the issue of weak inter-governmental working was repeatedly raised as a problem.”
That has been a common thread throughout many of the documents we have seen. The Public Administration and Constitutional Affairs Committee, which produced a report on clause 11, mentioned at great length how impenetrable and difficult it was even to determine what the JMC was discussing, what its final conclusions were, and when it was meeting. Its meetings are sporadic, and when a committee is private and produces minutes that are very sparse, the politics take over. It is clear that the UK and Scottish Governments, being different colours—blue and yellow—will never agree in the political sphere, so the JMC is diluted to a political argument and unable to achieve what it is trying to achieve.
I intervened on my hon. Friend the Member for Darlington (Jenny Chapman), during her wonderful speech to talk about the minutes of the JMC. The October minute from the JMC was two pages long. One and a half pages dealt with who attended and who provided apologies, and there was then a skeletal explanation of what was discussed and no real conclusions. The JMC has to be put on a statutory footing along with the parameters required to make it transparent to the public and this House. That is why we should support new clause 65, as it would give us some understanding of the processes of the JMC.
We are heading for a constitutional crisis. We have a Conservative party threatening the very fabric of the United Kingdom just after the people of Scotland decided that the UK should stay together. We have the farce of today’s events: first the Prime Minister and the Downing Street spinning that a deal is close; then, with the Prime Minister barely through her soup with Donald Tusk, Downing Street backtracking as quickly as possible from those briefings; and then, with one phone call, the leader of the Democratic Unionist party, who controls the Government—the de facto Prime Minister—pulling the rug from underneath the feet of the Prime Minister, who then turns her back on something that it was thought had been negotiated and agreed.
Mike Gapes
Is my hon. Friend aware that the Taoiseach, Leo Varadkar, has said:
“I am surprised and disappointed that the British government now appears not to be in a position to conclude what was agreed earlier”—
The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)
Order. The hon. Gentleman might be making an interesting point, but it is not directly relevant to the new clause.
Ian Murray
Thank you, Mrs Laing. If I may, I will respond to what the Taoiseach said just by saying I am surprised that he is disappointed, but not surprised that he is surprised.
Stephen Doughty
With specific reference to the amendments, particularly around the importance of joint ministerial consultation on a number of matters, does my hon. Friend wonder, like me, whether the First Minister of Wales, the First Minister of Scotland and indeed the Mayor of London, whom we have heard speaking out, were in any way consulted on the potential terms that were being offered in the negotiations in Brussels today?
Ian Murray
That is my point about the constitutional crisis we are in. It seems that the only way to follow the discussions between the UK Government and the EU is on Twitter. Journalists seem to know what is happening before hon. Members. We are getting a running commentary from the Government through press releases, but there is absolutely no proper consultation with the devolved Administrations.
Ian Murray
I will give way to my friend from the DUP, because I think he might have something interesting to say.
Ian Paisley
I am glad that the hon. Gentleman thinks I might have something interesting to say as I know that he always has something interesting to say. On the general point, I do not think that anybody should get their news constantly from Twitter. Specifically on the amendments, is not the key point that we must show discernment and skill and not fall for the spin, whether that comes out of Dublin, London or Brussels? Let the negotiations run and let us see what comes out of them at the end.
Ian Murray
I could not agree with the hon. Gentleman more, but why not bring some of that to the House, rather than leaving it for commentary on Twitter? Journalists following the Prime Minister seem to know much more about what is happening than anybody in the House. If the Prime Minister were to fly home—Ministers can get back from foreign countries very quickly, as was demonstrated over the summer—come to the House and let us know what was going on, we would not need to stand here and speculate. The hon. Gentleman made an intervention about regulatory harmonisation. I think he let the cat out of the bag when he mentioned that the DUP was firmly against regulatory harmonisation in the island of Ireland, and that is why this is so important across the rest of the UK.
Stephen Doughty
Has my hon. Friend noticed that the Minister who has apparently been briefing Conservative Members has just appeared in the Chamber? Perhaps he could give us some answers about what has been going on in Brussels today.
The First Deputy Chairman
Order. No he cannot. We are discussing new clauses and amendments to the Bill, not what people are seeing on Twitter. If the Prime Minister has anything to report to the House, I am sure that she will come at the earliest opportunity to give such a report.
Ian Murray
I am grateful to you, Mrs Laing. I apologise to the Committee for digressing, but these are incredibly important matters—and actually they are directly connected to my amendments, because they about keeping the devolved Administrations informed and involved in the process.
The hon. Member for East Renfrewshire said he was seeking reassurances. What we have seen since lunch time should give him cause for concern that no assurances will be forthcoming, which is why we must put in the Bill the requirement that the Government keep the devolved Administrations properly informed. This is about not just the devolved Administrations, but the people they represent.
Paul Masterton
Does the hon. Gentleman not accept that his amendments would allow every single one of the 111 powers to be immediately devolved from day one, with no constraints, and that they would therefore enable all the devolved Administrations to do whatever they wanted, meaning that we could have divergence from day one? He believes in continuity and maintaining similarities between the four components of the UK. Does he not understand why his amendments would be dangerous to the integrity of the UK’s internal market, given that from day one the four component parts of the UK could go off and do whatever they wanted?
Ian Murray
I will answer that directly when I talk about the Law Society of Scotland’s possible options. We could devolve everything and then put agreements in place, if the JMC and intergovernmental relations worked properly. There are therefore several other options, and it is not just me saying that, but many of the organisations that have commented on the Bill.
Ian Paisley
Will the hon. Gentleman clarify his amendments? Is he suggesting that some parts of the UK should be treated differently from others? Should London have a different and better deal than, say, Cardiff, Edinburgh or Belfast? Should not we all, as UK subjects, be treated the same?
Ian Murray
I agree that all parts of the UK should be treated similarly, which is why I have always championed the UK’s staying in the single market and the customs union. That would allow us to leave the EU while keeping the regulatory harmonisation required—the very regulatory harmonisation that the hon. Gentleman railed against just a few moments ago—and keeping the UK single market operating within the EU single market.
Dr Whitford
On the question of where power actually lies, we know that many farmers voted leave, yet I know, having attended a National Farmers Union meeting on Friday, that the idea of farming and hill farming in Scotland being controlled from here is something they consider anathema. Given the failure to pass on the convergence uplift in 2013-14, they are frightened about farming powers being here.
Ian Murray
These are complex discussions and issues, but the key principle is that any power devolved under schedule 5 to the Scotland Act 1998 should be devolved. No one is saying that everything should be devolved at one minute past midnight—or whenever we leave the European Union—but these discussions must take place by means of intergovernmental processes, and the principle should be that there should be devolution at the point at which powers come back from the EU, when it is possible for that to be done.
Sammy Wilson (East Antrim) (DUP)
Does the hon. Gentleman accept that if the powers are devolved without a framework having first been established, whether we are talking about a European or a UK single market, that principle could not be applied, because powers would be devolved to four different Administrations who could then make whatever regulations they wanted? How does the hon. Gentleman marry that with the need—the recognised need, as he has pointed out—for a UK single market? Surely the framework should first be set, with the remaining powers then devolved to the Assemblies.
Ian Murray
But that assumes that we automatically start from the position of hoarding the powers here at Westminster, and I disagree with that principle. The principle must be that when a power is currently devolved to the devolved Administrations, that power should remain devolved—it is very simple. I accept that Members might not agree with that principle, but it is fairly sensible. My amendment 164 would merely remove from section 29(2)(d) of the Scotland Act 1998, on legislative competence, the words “or with EU law”, meaning that everything else would have to be compatible with the Act.
Deidre Brock
The hon. Gentleman mentioned the hoarding of powers at Westminster. One of the biggest problems that I see with clause 11 is that, ultimately, Scottish Ministers will not be able to amend retained EU law, potentially for an indefinite period, although UK Ministers will. That is completely against the word and spirit of the devolution settlement.
Ian Murray
It is against the spirit of the devolution settlement, but it is also against the spirit of the referendum that we heard about earlier. The Scottish people, the Welsh people and the Northern Irish people voted for devolution.
There is no doubt that clause 11 is using a sledgehammer to crack a nut. There are many other ways of legislating that would allow a transition on day one that would respect the devolution settlement. The Law Society has put forward such options. As the leader of the SNP said, the way in which the Government are using clause 11 is clear. There is no sunset provision and no timetable is attached. There is no list of powers, and there is no indication of when certain powers should be given priority. There is no commitment to intergovernmental working and there is no real commitment to devolution. We were diverted to today’s discussions in Brussels because that is part of the disrespect for the devolution settlement in this country, which is why the process has become so difficult.
Jim Shannon (Strangford) (DUP)
Does the hon. Gentleman also acknowledge the disrespect that the Taoiseach has shown for the people of Northern Ireland? He has said that he now speaks for them, but the Democratic Unionist party and other elected parties do not. Is it not time that he knew that when it comes to Northern Ireland, democracy and the political process, the power lies here in the Chamber? It certainly does not lie with Leo Varadkar, the Taoiseach of the Republic of Ireland.
Ian Murray
We may be being diverted from the point again, but I think that the Committee, the country and anyone who happens to be watching our proceedings will see that the three members of the Democratic Unionist party who are sitting in the Chamber are the real Government. They are dictating the terms of Brexit—and the hon. Member for Strangford (Jim Shannon) is doubtless the de facto Secretary of State for Exiting the European Union—in terms of the power that they have over the Prime Minister.
As I said earlier, it is clear that between courses this afternoon the Prime Minister has gone from a negotiated agreement to a set of texts to throwing it all in the bin alongside any leftovers from lunch. It is clear that the DUP—10 Members of Parliament from Northern Ireland —are holding the Government to account and holding them by the neck, because it is much more important for the Prime Minister to hold on to power than it is to do what is the best interests of all our nations.
Charlie Elphicke (Dover) (Ind)
May I gently point out to the hon. Gentleman that at least there are three DUP Members in the Chamber, whereas by my count only two Scottish Labour MPs are present?
The hon. Gentleman talks a very good game for defending the Union, but the fact is that the leader of the SNP in Scotland, Mrs Sturgeon, and the Mayor of London have been very quick to start talking about how they would like divergence and special deals, which would completely wreck the union of the United Kingdom.
Ian Murray
I normally say that I am grateful for interventions, but in this instance I will refrain. I do not think that the question of how many members of how many parties are in the Chamber at any particular time is relevant. What is relevant is ensuring that Members are in the Lobby tonight. I hope that 13 of the hon. Gentleman’s Scottish Conservative colleagues will go into the Lobby with us to change the Bill, because that is what is important. This is about voting, not about talking and then doing nothing.
Paul Masterton
The hon. Gentleman is giving a very good speech, but he is not giving a speech in support of his own amendments; he is giving a speech in support of a middle ground between the positions of the UK Government and the Scottish Government. Does he not understand that his amendment would devolve everything from day one, with no constraints, thereby enabling all four constituent parts of the UK to do whatever they wanted? That is not the Labour position, and it is bonkers.
Ian Murray
It is funny that the hon. Gentleman now calls my position bonkers after seeking assurances that amendments 164 and 165 would be carried by the Government to ensure that clause 11 became much more appropriate. Perhaps he will intervene again and tell us exactly what he meant, because I am confused. He seems to want to support my amendments, not to support my amendments, to seek assurances, to vote with the Government, and to back Ruth Davidson. I am not sure where he stands.
Paul Masterton
The hon. Gentleman does not seem to have read his own amendment. I do not want either clause 11 as it stands or clause 11 as suggested by the Scottish and Welsh Governments, because both go too far. We need a middle ground, and that means knowing what the position will be in relation to powers. We do not seem to be too far apart, but the hon. Gentleman is intending to vote for something that he is not arguing for.
Ian Murray
I do not wish to be disrespectful to the hon. Gentleman. I know that he is new to this place, having been elected in June 2017. However, he could have tabled his own amendment to do what he wants to do. He has the cheek to stand in the Chamber and criticise my amendments, and say that he wants to seek assurances from his own Government, but he does not have the nerve to table his own amendment.
That highlights one aspect of the debate. Scottish Conservative Members are happy to bluff and bluster in the Chamber, straight from the Alex Salmond playbook, but when it comes to putting their money where their mouths are, they will walk into the Lobby with the Government in order not to deliver what they fundamentally believe should be delivered. I look forward to the hon. Gentleman’s tabling a raft of amendments on Report to ensure that clause 11 becomes a much better clause, and I look forward to his being influential with Ministers to ensure that those amendments are carried.
Stephen Doughty
Is it not the case that the reason why my hon. Friend and I—and, indeed, a number of Members on both sides of the House—had to work together to table the amendments, with the support of the Welsh and Scottish Governments, is that the Bill is deficient in so many areas, and needs to be fixed in so many areas before we can even consider allowing it to proceed, and before the Welsh and Scottish legislatures will give their consent?
Ian Murray
Absolutely. I think that it comes down to the word “trust”. Many reports on the Bill come down to whether or not the devolved Administrations trust the UK Government to deliver what they are attempting to deliver in the Bill, and I do not think we can trust them to do that. The Law Society of Scotland has argued that the Bill should be revised because clause 11 has no transitional basis: it is an open-ended provision that could last forever. We could see Ministers in Cardiff, Edinburgh, Belfast and, indeed, Whitehall arguing about the minutiae of the detail rather than getting on with the job in hand, for political purposes. We have seen in the House, in respect of every single aspect of devolution, that when it comes down to the politics, it is the people who lose out and the politics that try to win out. We should be very wary of that while we are debating this Bill.
Stephen Doughty
I thank my hon. Friend for giving way again. He is being very generous. Does he agree that this is relevant to an example that has been set in relation to so many issues, including the issue of the Agricultural Wages Board? We do not want case after case to end up in the Supreme Court, with vast amounts of taxpayers’ money being spent and the UK Government fighting the devolved Governments over matters on which they have the clear competence.
Ian Murray
Absolutely. We could become involved in a constitutional battle with no end in sight. The Institute for Government, which I am sure is respected by Members on both sides of the House, has said that the Bill
“has exacerbated the already serious tensions between the UK and the devolved Governments”,
and we see that day after day. The Repeal Bill Alliance concluded:
“By returning all EU power to Westminster against the wishes of Scotland and Wales, the EU (Withdrawal) Bill is an attack on the principles of devolution.”
So time and again Committees of this House, independent bodies and respected bodies tell us that this Bill is deficient, is a power grab by the Government, and could be done in a different way.
The report of the Public Administration and Constitutional Affairs Committee concludes that, on clause 11:
“The overall concerns regarding the devolution aspects of the EUW Bill arise from the constitutionally insensitive nature of the UK. Government’s approach”.
I am trying through these amendments to take away some of that constitutional insensitivity, so as to be able to get to a place where we can be much more comfortable that the Government will do what they said they would do.
The Brexit Select Committee and its well respected Chair, my right hon. Friend the Member for Leeds Central (Hilary Benn), have also produced a report on the Bill and found that
“the devolved administrations have insufficient trust in the process for agreeing these future relationships and have, accordingly, indicated that they will withhold legislative consent from the Bill.”
That is an incredibly serious issue, because the Scotland Act 2016 put the Sewel convention on a legislative footing that means the UK Government should not be legislating in devolved areas unless the Scottish Parliament, or any of the other devolved Administrations, pass a legislative consent motion. They are saying they will withhold an LCM as this Bill is currently constituted, which would mean we end up in yet another constitutional difficulty with regard to whether this Bill will even be passed.
What will the UK Government do? They will ride roughshod over the constitutional settlement, over the Sewel convention, and over the Scotland Act 2016, in which the convention was put on a statutory footing, in order to get this Bill through. But if they were just to work cross-party on clause 11, and, indeed, with some of their own Members from the Scottish Conservatives, they might get to a place that we could all support and respect.
It is worth working through some of the alternative solutions put forward by the Law Society of Scotland, particularly for the hon. Member for East Renfrewshire, who is desperate to find an alternative to this clause. The society is not saying that any of these solutions takes preference over the others; it is merely proposing some of the different ways this could be done to make it less constitutionally insensitive. One of them is:
“Repeal the EU law constraint and amend schedule 5 to re-reserve specific competences to the UK level to enable UK Government to establish common frameworks.”
That would, essentially, allow us to devolve the vast majority of the competences coming back from the EU, and, with agreement, reserve some of the more complicated issues as may be required, agriculture being one that has been mentioned.
The society’s second alternative suggestion is:
“Replace the cross-cutting EU constraint with new cross-cutting constraints, for example to protect the UK single market and/or to comply with international obligations. These might be more or less extensive than the EU law constraint in practice, but would have the benefit of (a) an underpinning principle and (b) catering for unforeseen cases.”
I am not advocating any of the suggestions, but it is worth airing that there are alternatives to clause 11 in this Bill.
Another of the society’s suggestions is:
“Repeal the EU law constraint leaving EU competences to fall as determined by schedule 5”
of the Scotland Act 1998,
“and any new common frameworks to be established by agreement between the UK Government and the devolved administrations.”
That provides a direct answer to the hon. Member for East Renfrewshire. We could devolve everything, but come to an agreement with regard to some of the UK-type frameworks and common frameworks that might be required.
Alternatively, we could:
“Adopt the provisions in the bill on a transitional basis only and subject to a specific cut-off date. At the expiry of the transitional period, powers in devolved areas would revert to the devolved legislatures, unless specific alternatives had been put in place.”
Indeed, we could clearly mix and match from the four alternative solutions from the Law Society of Scotland, but this goes back to the fundamental principle of trust—to the fundamental principle of whether the UK Government and devolved Administrations are truly working together to seek a solution or whether the politics of this trumps the solutions that might be required. That is why we should pass the Opposition Front-Bench new clause on the JMC.
I have proposed these amendments to try and take the edge off this Bill. We are heading into a constitutional crisis. The Conservative party has left this country out of the EU and is risking the constitutional framework of the UK. The question that cannot be answered by this Government is the same question that the Members of the SNP cannot answer, but in reverse: why are the EU single market and customs unions so important—as I believe they are, and on which we see the issues with regard to the island of Ireland—but the UK single market is not? Likewise, I say to the Conservative party, how can they have stood on a platform in the 2014 Scottish referendum saying that removing Scotland from the UK single market would mean a hard border, customs checks and no free movement of people from Scotland into England, and defending that principle, but do completely the opposite in terms of the island of Ireland now? We cannot have the single market and customs union principles on one hand, and then discard them on the other because it suits our political ideology.
It is clear that having a frictionless, seamless border between Northern Ireland and the Republic of Ireland while not staying in the single market or the customs union is utterly impossible to achieve. I say that because I was persuaded by the arguments the UK Government made back in 2014 that removing Scotland from the single market of the United Kingdom would require a hard border at Berwick.
Joanna Cherry
The hon. Gentleman keeps referring to the single market of the United Kingdom. Does he agree that what we have in the UK is a unitary market, because we do not have four separate states, but instead have a union of four separate nations? What the EU has is a single market, which is a regulatory alignment of sovereign states. We do not have that in the UK; we have a unitary market. Will the hon. Gentleman use his language more carefully, please?
Ian Murray
That is legal semantics. I can buy an animal in Edinburgh and sell it in London, crossing the border with it in the back of my car—not that I would do so, as that would probably be illegal, but this is just to highlight the point—and do that in one single market, and not have any customs checks or transfer paperwork, apart from the legal paperwork required, and I could also do that across the EU. Outside the legal semantics, the point I am making is that the SNP says the EU single market is a good thing, and I agree, but says the UK single or unitary market is a bad thing, and I disagree. We also have the Conservative party saying that the UK single market is the most wonderful single market in the world, and I agree, but it is also saying that the EU single market is a bad thing and we must come out of it, but we can keep all the benefits of that at the same time.
Joanna Cherry
The crucial difference between the single market and the unitary market is that in the single market there are at present 28 sovereign states who meet together to make their rules from the top down, whereas in the UK’s unitary market the rules are imposed from the United Kingdom. This supports the hon. Gentleman’s argument, because his argument, which I agree with, is that these frameworks across the UK should not be imposed from the top down, but should grow up organically from the bottom.
Ian Murray
We have just had a bombshell there; the hon. and learned Lady has just told us that she wants to stay part of the UK. That is what we can surmise from that intervention, and I completely agree with her that the best way for Scotland, and Wales, to thrive is to stay part of the UK. Indeed, in my view, the best way for the UK to thrive is to stay part of the single market and customs union of the EU, and all of these issues would therefore fall away, because we would not need clause 11, because we would not need the framework in place to be able to put UK frameworks together, because we could stay within the frameworks that are already in place. It is strange that we will spend a significant amount of time in this Chamber, in the Committee Rooms of this House, and in all the devolved Administrations discussing frameworks that we already currently have.
The Government strategy is that they want every benefit they currently have from the EU while not being a member of the EU. I suggest that if the Government want to achieve that, they should stay in rather than wrench themselves out. That would resolve all the problems, and would have saved the Prime Minister lunch this afternoon, because they would have had a very straightforward solution to their problem.
I will not press my amendment to a vote if those on my Front Bench are going to press amendment 42, because they are very similar in nature. My Front-Bench colleagues’ amendment is much more technically efficient than my proposal, and we know that technically ineffective amendments tend to be criticised. I will therefore support my Front-Bench colleagues’ proposal, and finish by saying that the simple solution for Northern Ireland, Scotland and Wales would be to stay in the single market and the customs union.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
Sir David, thank you for calling me at this stage of the debate.
To be fair to the hon. and learned Member for Edinburgh South West (Joanna Cherry), I think she was chafing against the Act of Union, which, as she correctly described, established a unitary market. The Act of Union banned tariffs between Scotland and England and established the free movement of goods.
I commend the use of the word “trust” by the hon. Member for Edinburgh South (Ian Murray), which he used regularly, but I question whether he is in fact doing much to promote trust, as this debate needs to do. He talked about heading into a constitutional crisis, but I think he did so to create a sense of distrust.
I was also disappointed when the hon. Gentleman questioned the motives of my hon. Friends who represent Scottish constituencies. One could suggest that people in glass houses should not throw stones. I do not know which part of the Labour party he represents, but they come in diverse characters these days. Is he in that part of the party that supports its leadership, or the part that is trying to get rid of it? Is he part of Momentum or against it? I do not know whether he is living in fear of deselection. The one thing we do know about him, however, is that he is subject to the Labour Whip. It is not unusual for members of a governing party to be subject to a single Whip, but I think he undervalued the highly significant speech made by my hon. Friend the Member for East Renfrewshire (Paul Masterton).
My hon. Friend made it clear that his support for the Government on this issue “should not and must not be taken as an acceptance of clause 11 as it stands.” That demonstrates the fact that, while my hon. Friends representing Scottish constituencies take the Conservative Whip, they demonstrate an independence of mind and work with their colleagues in the Scottish Parliament, whom I met recently on a visit to the Scottish Parliament, along with Scottish Conservative and Scottish National party Members, to discuss clause 11. My hon. Friend also made it clear that the legislative consent motions might not be granted for clause 11 as it stands.
We all accept that the Gina Miller case made it clear that the requirement for legislative consent motions in the devolved Parliaments would not effectively block the passage of the legislation in this House, but it has created some constitutional tension. My hon. Friend pointed out that the progress of the Bill is likely to be somewhat impeded by the absence of legislative consent motions from Holyrood and Cardiff, and from Northern Ireland if the Assembly is operating there. This is an important message. It demonstrates that the devolution that Labour said it was promoting when it gave us devolution has turned into a very different constitutional reality—
Kevin Brennan (Cardiff West) (Lab)
There was a referendum. It was the will of the people.
Mr Jenkin
I am sorry, I did not realise that I was saying anything particularly provocative—[Interruption.] Yes, there was a referendum, but the constitutional reality has turned into something much more federal in character than the proponents of the original legislation told us it would be.
I do not want to detain the Committee for long. I have chosen to speak in the debate because I am the Chair of the Public Administration and Constitutional Affairs Committee, which is looking at the relationships between the four Governments and Parliaments of the United Kingdom. We issued a report on inter-institutional relations earlier this year, in the previous Parliament, and we issued an interim report just last week on clause 11. That followed meetings that we held in Edinburgh, which will be followed by further meetings in Cardiff and Edinburgh, and if we can get to Northern Ireland, we will. What was striking about the meetings in Cardiff and Holyrood was how little this kind of interchange takes place, how slenderly we know other individuals in other Parliaments throughout the United Kingdom, and how there are no formal mechanisms for proper exchange between the four Parliaments of the United Kingdom. What a shortage that is!
This debate is less about leaving the European Union and more about devolution. It is about reconciling competing narratives of what devolution in the United Kingdom has come to mean, and about dealing with the lack of trust we have inherited from the present devolution settlement. The debate about clause 11 reflects that.
Usually, when devolved powers are going to be legislated for in this House, there is a great deal of discussion, large numbers of papers are produced in all parts of the United Kingdom and eventually, a piece of legislation emerges with a degree of consensus around it. This Bill emerged in much shorter order. We are told that there was very little discussion about the contents of clause 11. This underlines how, under strain, the reflex of our constitutional habits is not to consult. We in the United Kingdom Parliament, and those of us who support United Kingdom Governments, in the plural, have to recognise that there is a serious gap in our capability to discuss, explore, befriend and understand each other throughout the United Kingdom.
Ian C. Lucas (Wrexham) (Lab)
I am interested in the point the hon. Gentleman is making, but is it not the case that the UK Government consulted very little with Members of all parties across the House during the preparation of this Bill after the referendum? Does he agree that that was a massive mistake?
Mr Jenkin
The hon. Gentleman has been in this House for quite some time, and he should be used to that by now. That is the way in which Governments have tended to behave. Yes, we have tried to improve things. We now have pre-legislative scrutiny, for example. I did not vote for the Lisbon treaty, which put article 50 into the treaties. I did not vote to have a two-year time limit on the negotiations on leaving the European Union. I suspect that the hon. Gentleman did vote for the Lisbon treaty, however, so I think he should take more responsibility than I should for the time constraints under which we are now operating.
Ian C. Lucas
What is unusual about this Bill is that it followed a referendum that means we are going to leave the European Union, and there are splits in both the major parties on this issue. The right approach would have been for the Government to consult much more widely on how this legislation should be taken forward. The reason that it is in such a mess at the moment is that the Government are allowing a small coterie to dominate the conduct of the process, rather than consulting the House as a whole.
Mr Jenkin
I do not accept that the Bill is in any kind of a mess. I think that we ought to keep the effects of clause 11 in proportion. From the perspective of the Government—and, in reality, from the perspective of what actually happens in Scotland, Wales and Northern Ireland—the clause is a status quo measure. The powers, while not reserved by the Scotland Acts, were reserved by virtue of our membership of the European Union, so there is no power grab. If the hon. Gentleman wants me to, I can quote from the evidence that the Committee received from Mr Nigel Smith. He was the chairman of Scotland Forward, which ran the pro-devolution campaign in 1997. He stated:
“Nobody who voted for the Scottish Parliament exactly twenty years ago need worry—there is no ‘power grab’ underway.”
We did receive countervailing evidence. Incidentally, the report we published last week is an interim report. We produced no conclusions or recommendations, but we wanted to surface and discuss many of the pieces of evidence that we have received and make them available for this debate.
Pete Wishart
The main conclusion of Alan Page’s work, with which I am sure the hon. Gentleman is more than familiar, is that clause 11 proposes a hierarchical version of devolution whereby this place has all the central powers. I am surprised that the hon. Gentleman does not know that, because that was the main conclusion. Clause 11 creates a hierarchy of devolution under which, for the first time, this place has control in asserting its sovereignty, and Scotland would fall far under the radar. I am surprised that he is not familiar with that work.
Mr Jenkin
The hon. Gentleman will be surprised no longer, because my next point is that the manner of clause 11 reflects a lack of sensitivity on these matters. Clause 11 suggests that there will be no time limits on the retention of powers and no process for the discussion of how powers should be handed over. There is only consultation through the JMC, which meets sporadically, and there is no statement of long-term aims for where the powers should eventually lie.
Returning to the hon. Member for Edinburgh South and his comments about trust, we should be asking how we can build some trust. The great gap in the devolution settlement, as it exists, is that it is based on a binary notion of what devolution means: power is either reserved or devolved. In fact, most decentralised systems of government have shared competences. The EU itself operates substantially on the basis of shared competences and, paradoxically, it is leaving the EU that is exposing the flaws in the devolution settlement. There are so few mechanisms for dealing with shared competences—virtually none.
Martin Whitfield (East Lothian) (Lab)
Does the hon. Gentleman agree that one of the functions or strategists that can deal with this matter is the Joint Ministerial Committee?
Mr Jenkin
I do agree, but the number of times that the JMC and its sub-committees have met formally is few. Months can go by with no meetings, and then a Whitehall Minister will say, “Ooh, we should have one.” That does not inspire confidence. Perhaps the JMC should have fixed diarised formal meetings every year, because there would be things to discuss whether or not a Minister of the Crown here actually thinks there might, and that would give people an opportunity to get to know each other better.
Martin Whitfield
Does the hon. Gentleman also agree that diarised meetings and more interaction might lead to confidence and agreement between the Governments?
Mr Jenkin
I could not agree more, but I hope that the hon. Gentleman will acknowledge—I am not being accusatory—that this has been a failure of previous Governments as well as this one. When the Select Committee visited the Welsh Assembly and the Welsh Government during the 2010 Parliament, First Minister Carwyn Jones actually complained to us, perhaps with more rhetoric than was justified, that he had been trying to get a meeting with Prime Minister David Cameron for months and months—more than a year—but had not been allowed to have one. We need fewer excuses for people who want to be destructive and more confidence that meetings will take place and that they are valued by all parties.
Stephen Kerr
Is it my hon. Friend’s view that the mechanisms that determine such communication should be established by statute?
Mr Jenkin
I have an open mind on that, and I have fiddled around with my amendments, which have not appeared on the order paper today, to see whether we can find a way of doing that. I do not know whether this is the right Bill through which to do that—probably not—but such things are statutory in other decentralised systems. There clearly needs to be something much more formal, but we should perhaps experiment without statute first to see whether it is necessary. My Committee took evidence from one civil servant and a former Speaker’s Counsel who said, “It has worked very well for the past 300 years, so why do we need statute?” but that does not recognise that we now have competing political centres with, I repeat, competing narratives about what the constitution actually is. SNP colleagues talk about the natural sovereignty of the Scottish people, but the legal constitutional reality is that the Queen in Parliament in Westminster is still absolutely sovereign. Those things need to aired, discussed and understood.
Deidre Brock
Further to that point, the Scottish Government have consistently made it clear that they cannot support the Bill as it stands, so if the UK Government do not vote for amendment 72 tonight, would that not render the Sewel convention completely pointless and not worth the vellum it is written on?
Mr Jenkin
I hear the hon. Lady’s impatience, but we need to be more patient. We are not completing the consideration of this Bill this evening, and I am encouraged by the work done by the First Secretary of State, who chaired the last meeting of the Joint Ministerial Committee and seemed to be drawing people together around some agreed principles for how joint frameworks might be approached. We all want to see that, so let us hope that that work will continue.
Kevin Brennan
The hon. Gentleman was mildly critical of the Welsh First Minister for using rhetoric, but the rhetoric in that relationship came from Prime Minister David Cameron, who said that he wanted to follow a respect agenda but then failed even to have a meeting with the First Minister. May I also correct the hon. Gentleman on something? Ministers actually know each other very well at the moment and met extremely frequently prior to the introduction of this Bill. The problem is that UK Ministers ignored the advice that they were getting from both Scottish and Welsh Ministers, which was that something like clause 11 would be utterly unacceptable.
Mr Jenkin
The better we know each other, the more we will forgive each other for the rhetoric. That is what I found when my Committee went to Edinburgh on a semi-formal visit. The hon. Member for Inverclyde (Ronnie Cowan) and I, as Chairman, had some open and frank discussions about some difficult issues with people I had never even met before, but we of course found that there was lots of common ground.
My next point is that there are no inter-parliamentary arrangements. We had to scrabble around for a bit of budget to do the trip. We found it in the end, but there needs to be a habit of people in this Parliament interacting much more openly and frequently with our counterparts in the other Parliaments. For example, the Environment, Food and Rural Affairs Committee and the Business, Energy and Industrial Strategy Committee have competences that are shared by Committees in different Parliaments. Those Committees should be meeting regularly together. Another suggestion worthy of consideration is that there should be some formal inter-parliamentary council in the United Kingdom to allow representatives of all four Parliaments to meet on a regular basis on some kind of neutral ground.
Vernon Coaker
The Good Friday/Belfast agreement set up many inter-parliamentary institutions, both east-west and north-south. The hon. Gentleman talked about trust. How does he think that trust has been helped by what we saw this morning, with the Government saying there would be a deal on the border in Ireland and the Prime Minister then having to come out of lunch because the DUP either had not been consulted or had not agreed to the arrangements? What does it do for both Unionism and nationalism in Ireland when such things happen? Frankly, it looks as though the Government are in chaos, do not know what they are doing and, in pursuing it, are undermining the whole peace process in Northern Ireland.
Mr Jenkin
Sir David, am I to be tempted to enter a debate on today’s negotiations, or should we wait until tomorrow, when perhaps someone will come to tell the House something about what has been going on?
A formal inter-parliamentary council that meets on a regular basis would be another opportunity for parliamentarians to understand each other better.
Kevin Brennan
Does the hon. Gentleman acknowledge that there is an inter-parliamentary council? The British-Irish Parliamentary Assembly, which obviously includes the Government of the Republic of Ireland, provides an opportunity for parliamentarians to get to know each other. Perhaps it would be useful if, as the Chair of the Select Committee on Public Administration and Constitutional Affairs, he were to be a member of that Assembly. On today’s issues, does it not show that we have a Prime Minister who is in office but not in power and a DUP that is in power but not in office?
Mr Jenkin
I am endeavouring to raise the tone of this debate, and obviously I am not succeeding with certain Opposition Members.
My final suggestion goes to the heart of what clause 11 is about. I mentioned that, in previous discussions about devolution, there has always been a Silk commission or a Calman commission. There has always been a body that has deliberated, drawn out the more controversial politics and tried to make the discussion more objective. I wonder whether there is a case for the Government convening some kind of standing commission, under the scrutiny of a joint group of parliamentarians, to dispassionately look through the powers returning from the EU that intersect with the devolved Parliaments and Assemblies in order to determine what powers should lie where, both immediately as we leave the European Union and in the longer term.
At the moment, I am afraid my criticism of clause 11, as it stands, is that it does not give any assurance about process or much assurance about consultation, time limits or sun-setting. It just sets out this static proposal.
Gerard Killen (Rutherglen and Hamilton West) (Lab/Co-op)
Will the hon. Gentleman give way?
Chris Bryant
On a point of order, Sir David. I am not sure whether you were in the Chamber earlier, but Mr Speaker made it clear when asked that the Prime Minister intended to make a statement to the House tomorrow about the negotiations and discussions she has been having with the DUP and Europe.
I gather that Downing Street is notifying the press, not this House, that there will be no such statement tomorrow and that the Prime Minister does not intend to make a statement. Is there any way you can make sure that Mr Speaker is aware of this and, for that matter, that Downing Street is fully aware that if we are taking back control—I thought that was the whole point—this House should be kept fully and appropriately informed of the negotiations at every stage?
The Temporary Chair (Sir David Crausby)
I will certainly pass on your remarks to Mr Speaker but, in the meantime, you have made your point to the House.
Pete Wishart
It is a pleasure to follow the hon. Member for Harwich and North Essex (Mr Jenkin), who I commend for his thoughtful speech and for how his Committee has sensitively considered some of these issues. We have seen the interim report, and I look forward to the full conclusions. My hon. Friend the Member for Inverclyde (Ronnie Cowan) is a member of the Committee, so the hon. Member for Harwich and North Essex has more than able deputies to back him up.
I rise to support the amendments variously tabled on behalf of the Scottish and Welsh Governments in the name of my hon. Friends and other hon. Members. The key point is that where we are going requires cross-party attention, support and consensus, but it also requires cross-institution support. The efforts to try to resolve some of the difficulties in clause 11 not just in this Chamber but, to give them credit, in Committees, in the other place and in the Scottish Parliament have to be noted. We are starting to see progress on concluding some of these conversations and discussions. This debate will help us to move things on.
Gerard Killen
Does the hon. Gentleman agree that the danger of clause 11 is that it seeks to replace Scotland’s relationship with the EU with Scotland’s relationship with the UK? It is important for the Government to set the tone on how they intend to proceed on an equal basis with the devolved Governments.
Pete Wishart
The hon. Gentleman is, of course, absolutely right. I will address some of those issues. He is spot on that there is an imbalance in how everything is repatriated. The repatriation of the powers is the central feature that concerns us.
Devolution is an elegant solution. Devolution in this country is asymmetric, with the different Parliaments and Assemblies having different powers. The United Kingdom is a complex constitutional nation, and we have designed devolution to meet the demands of a complex, multi-nation United Kingdom. We therefore muck around with the basic premises and principles of devolution at our peril, which is why clause 11 presents such a clear danger and threat that it must be amended.
It is also important to say that Scotland did not vote to leave the European Union. Every single local authority area in Scotland voted to remain in the European Union. I now have constituents who are very concerned about the chaotic cluelessness at the heart of the negotiations and discussions about taking this country out of the European Union. The Scottish Parliament has become collateral in all those conversations and discussions. There is real concern about how our Parliament will operate and about the powers it has the right to expect and to progress with.
Paul Flynn (Newport West) (Lab)
Does the hon. Gentleman agree that the secret to the Government’s thinking on this Bill is in the fact that they are insisting on including a date for withdrawal from Europe but that they refuse to include a sunset clause to give us a date when the powers they are about to grab from Wales, Scotland and Northern Ireland will be repatriated?
Pete Wishart
That is an important point, because a sunset clause is the sort of thing we need to see. It would give confidence to the hon. Gentleman and me, rather than just naming the day that we leave the European Union—we are all familiar with that date, anyway.
It is important that we set the context for this debate. We have to see Northern Ireland in the context of devolved powers. Today, we believed we had some sort of solution to the Northern Irish question. There was an agreement. The Prime Minister of Ireland was prepared to get to his feet and say that a solution had been delivered and garnered, only for it to be knocked out of the water by a telephone conversation with Arlene Foster. That is where some of these issues about devolution have gone.
We have now heard the elegant phrase “regulatory divergence”. I had never heard of it before today, but it is fantastic and I want to hear more of it. If regulatory divergence works for Northern Ireland, I am thinking it could just about work for Scotland, given the range of powers we have in the Scottish Parliament and the legislative competence we have in a swathe of areas. So let us hear more about this regulatory divergence. I am disappointed that none of my DUP friends are in, as they could have talked a bit more to me about some of their concerns. The last thing we need in the Scottish Parliament is to be sucked into all this process, so it is incumbent on this Government to ensure that devolution continues to operate on the basic premise set out in the 1998 Act. The sooner we get reassurance that that is their view and they introduce considered amendments, we will be happier—it starts with clause 11.
I listened carefully to the hon. Member for Harwich and North Essex, and I looked at his Committee’s report, saw the witnesses he brought forward and was surprised that he referenced Nigel Smith. My Committee also looked at this issue, hearing from a variety of witnesses—the House of Lords Constitution Committee and the Scottish Parliament Committees have also looked at it—and it is hard to find anybody with expertise in constitutional politics, either on the legal frameworks or in terms of having an academic interest, who does not agree that clause 11 does not work and is in need of amendment. Of all the guests that have been before the various Committees dealing with these matters it is difficult to find someone who would support the Government’s position, and I congratulate the hon. Gentleman on doing so.
There needs to be a basic understanding that the Scottish Government have stated that if clause 11 proceeds as currently constituted, they will not be in a position to recommend a legislative consent motion. That will lead, at the very least, to a constitutional stand-off, which would be singularly unnecessary and unhelpful, and would of course get in the way of all the other issues the UK Government have to deal with in this Brexit mess. Surely the last thing they want is to get into a constitutional stand-off with the Scottish Government. I know that progress has been made and that there is not much difference on some of these things, so it would be much better if the UK Government just fixed this for goodness’ sake. They should just get it sorted if we are so close; they should accept these amendments as a way forward and we could all then get relaxed and happy about the fact that there will not be any sort of constitutional issue to do with it. The Minister needs to say that we are going to be doing that.
It is good to have a look at what has been included in this Bill, particularly in clause 11, so let us start with something that the clause does not do. We have to be clear that it does not return powers from the EU to the devolved Administrations. Instead, it returns powers within the devolved competences solely and exclusively to the UK Government and Parliament. Worse than that, it imposes new restrictions on how the Scottish Parliament can operate when it comes to these devolved competences. The Scottish Parliament and Government will take a double hit. The clause would give the UK Government power to legislate in relation to policy areas that are the responsibility of the Scottish Parliament and the Scottish Government.
There is another issue, which has not been touched on today. At the point where we leave the EU, all these powers are repatriated to the UK Government and into some form of redistributive system—we are not really clear how that would work, as that has not been stated. When we leave, the EU will of course continue to amend and legislate in these areas, and the UK Government will be legislating on behalf of the Scottish Government. So there will be a space in between, from when we leave, where there is a divergence between EU law and UK retained law, which this Government solely and exclusively fit. Not only will the UK Government have powers on retained law when we leave the EU, but they will have ongoing responsibilities, as we continue to make that journey from leaving the EU, to try to fill that gap in between.
Stephen Kerr
I congratulate the hon. Gentleman on making a very positive contribution to this debate compared with the speech we heard earlier from the right hon. Member for Ross, Skye and Lochaber (Ian Blackford). The worthy report that his Committee produced, which is a huge contribution to the establishment of common ground, states:
“We recommend that the UK Government agrees with the devolved administrations what areas should be subject to common frameworks and which ones can be devolved.”
Is that not exactly what is going on? Is that not the common ground that he and we are seeking so that we can get this process to move?
Pete Wishart
I am grateful to the hon. Gentleman for that intervention. My Committee looked at these issues and considered them seriously, and we hope our report makes a contribution to addressing some of these issues. The key point that he makes, and the thing we have to start to get to in agreeing issues relating to common frameworks, is that they have to be agreed by the Scottish Government and Scottish Parliament before they can be progressed. This idea that frameworks can be imposed upon devolved Assemblies and Parliaments is unsustainable and cannot be operated. That is—
Several hon. Members rose—
Pete Wishart
I will make some progress; I will deal with our report before letting Members in. The key point is that this needs to be agreed and consented to before progressing. We have to get that in place in order to start moving forward on this sort of thing.
Pete Wishart
I have given way to the hon. Gentleman. A lot of people wish to speak and I know he will get a chance, so he will be able to come back to this and we can have a conversation about it.
Clause 11 also changes the fundamental dynamic between the Scottish Parliament and this House. Under the clause, the UK assumes a role as the master and repository of all retained EU legislation in devolved areas. As I said to the hon. Member for Harwich and North Essex, who is deep in conversation with the right hon. Member for West Dorset (Sir Oliver Letwin), the provision creates for the first time a hierarchical model of devolution, as Alan Page said in the work that he did on behalf of the Scottish Government. This House will face absolutely no restriction in how it may want to operate in its areas of devolved competence, but the Scottish Parliament will face restrictions. This represents a sort of “know your place, Scotland”, whereby this House asserts its sovereignty on the Scottish Parliament. That is not good enough. We have a conversation among several Members about sovereignty and our different understanding of and approaches to it culturally. This House obviously takes the view that parliamentary sovereignty is what it is all about, whereas we take the view that it is about the sovereignty of the people and the claim or right of the Scottish people to assert their sovereignty. This idea of a “know your place, Scotland”—
Pete Wishart
I have given way to the hon. Gentleman and I want to make some progress. In large swathes of devolved competencies, we will be subject to UK frameworks, determined and controlled by the UK Government. That will never be satisfactory to anybody who works in any of the devolved structures and any devolved parliamentarian.
Let me try to make it simple for the Brexiteers—although when I look around I do not see very many of them. It is strange to look around and see mainly remain types; I do not know who to pick on. I am trying desperately to see a Brexiteer. [Interruption.] The hon. Member for Aberdeen South (Ross Thomson) will do. I will try to make it simple for him so that he can get an understanding of this issue. This situation is like Scotland giving up its place in the European Union as part of the United Kingdom in order to join a UK super-state, but the super-state does not seem to be as benign as the European Parliament. For Scotland, this UK super-state we are expected to be part of would make its jaundiced view of the EU look like a benign, cuddly, receptive institution of enlightenment. I am grateful to my hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) for this analogy. He is not in place, but I hope he will join us later with his words—
Pete Wishart
I have given way to the hon. Gentleman already. This UK super-state seeks to control and restrict the operation of Scotland, and it is prepared to strip us of powers faster than any United Kingdom Independence party cartoon version of some evil EU bureaucrat or Commissioner would. I wish to make a comparison with Ireland, because it is instructive. Ireland, as a member of the EU, can almost stop the progress of Brexit—it has the powers to do that, and in the past couple of weeks it has asserted that that might be something it may be obliged to seek. Scotland, as part of the UK super-state, does not even have the power to legislate for the best interests of hill farmers in Perthshire—that is going to be left to this House.
That shows how power grabbing the UK super-state and this place are going to be. This is a real power grab, more menacing than any fantasy dreamt up by our Brexiteer friends in relation to their death star version of Brussels. They are even starting to use the words of the super-state. Our integrated UK joint economy is now to be “the single market”. Any minute now the hon. Member for Harwich and North Essex will be made a UK commissioner and we will start to see “UK-pol” and “UK-atom”. This is the sort of place they are going with this creation of the British super-state. We have to be very careful when we are designing these things. We do not want to swap our useful place in Europe in order to be junior and subservient members of their British super-state.
Pete Wishart
I will give way to the hon. Gentleman just to shut him up for a bit.
Stephen Kerr
I thank the hon. Gentleman for giving way to shut me up. All the things he has said for the past few minutes, which have detracted from the tone of his speech, are covered in “Common Frameworks: Definition and Principles” published by the Joint Ministerial Committee (EU Negotiations) on 16 October 2017. It describes in detail exactly how we will go about creating the common frameworks. It is the complete opposite of what the hon. Gentleman is saying. He is making it up as he goes along—it is very entertaining, by the way.
Pete Wishart
I am grateful for the hon. Gentleman’s intervention, as always, but I do not recognise his view of the way things are progressing. If he will forgive me, I will make some progress and we will look at some of these issues once again. I am not going to satisfy him on these matters and his intervention has certainly not reassured me about the general progress that we have to make.
Let us get back to more of a consensual tone, because I note from the hon. Gentleman’s irritation that I may have been a tad too political in some of my remarks. I look around and I see my colleagues from the Scottish Affairs Committee on the Conservative Benches. I am genuinely grateful for the contribution that they have made. We have designed a way forward in our recommendations and observations that might help to resolve this issue. Resolution is what is required, and I think we all agree that we can find it. Although our recommendations do not directly match what is in the amendments, they are roughly in the same territory.
I think that we all agree that a framework should be agreed and not imposed. Looking around, I think that we are all agreed on that one. That is good. I think that we agree that the UK Government should not legislate on areas of competence devolved to the Scottish Government. Perhaps there is not so much agreement on that one. It genuinely disappoints me that Conservative Members still believe that it is right for the UK Government to legislate in areas of devolved competence. I am looking at the ministerial team, hoping that they will reassure me that that is not what they are seeking to do. No, I am not getting that either. We will leave that there. We were doing well and making a bit of progress, but perhaps that is a step too far. That is the difficulty that we are starting to encounter.
I am pretty sure that Ministers do not share my characterisation of the process, so I will be interested to hear what they say. I am interested in how they will describe the repatriation of devolved competences straight to the United Kingdom, instead of to the devolved Assemblies and Parliaments where they should be; how we will come together to agree the common frameworks, working together in a spirit of consensus—all the warm, cuddly things that the hon. Member for Harwich and North Essex suggested he wants—instead of having them imposed; and then some sort of process of redistribution through Orders in Council and all that sort of stuff. It is disappointing that we cannot hear that.
Amendments 164 and 42 would ensure that the UK Government had to consult and secure the agreement of the devolved Administrations in this context, so they roughly match what I have said. Indeed, they roughly match what the Secretary of State for Scotland has said. This is a really good quote from when he came before the Scottish Affairs Committee:
“A UK framework is not a framework that the UK Government imposes; it is a framework that is agreed across the United Kingdom.”
That is the approach that we need to hear more of, and we need to see how that works out. I very much support the cross-party amendments that were tabled on behalf of the Scottish and Welsh Governments, which are mainly in the name of the hon. Member for Edinburgh South (Ian Murray). I appreciated his comments today.
I am sorry to say to Labour Front Benchers that we cannot support new clause 64. I know that it is the lead new clause, but we will abstain because it suggests that the frameworks should be designed by the UK Government; not that they should come together with all the devolved Assemblies and Parliaments. Unfortunately, we cannot side with Labour on that. I hope that it withdraws that new clause. I am looking at the hon. Member for Greenwich and Woolwich (Matthew Pennycook). Please withdraw it because it is not helpful. We need all the parties in this House to work together. The presumption that the UK Government will be responsible for initiating the frameworks is not acceptable to us.
I do not even think that that is acceptable to—I am looking at Welsh colleagues—the Welsh Assembly, which the Labour party runs. I am looking at the hon. Member for Cardiff South and Penarth (Stephen Doughty). He will have to tell me whether the Welsh Government are absolutely happy about the UK Government designing frameworks.
Paul Masterton
Does the hon. Gentleman accept that the amendments he is discussing do not reflect the recommendations of the Scottish Affairs Committee and go further than those recommendations? Does he therefore understand why we as Scottish Conservatives are not in a position to support those amendments? It is not about talking Scotland down or being whipping boys for the Conservative Government, but a recognition that that is not the agreeable position where the Scottish Affairs Committee landed?
Pete Wishart
I am grateful to the hon. Gentleman, because I said that. I said that the amendments do not directly match our recommendations, but that they are in roughly the same territory. I think that he will agree with me about that. He is right that they do not match.
Pete Wishart
Yes, of course—as long as I am hearing from the Welsh Government.
Stephen Doughty
The hon. Gentleman gives me more power than I currently have. I refer him to the detail of new clause 64. Subsection (3) states:
“Ministers of the Crown shall only create”
these frameworks with the advice and consent of the devolved Administrations. We put that forward with the aim of securing their agreement. It relates to the wider discussion and to the other amendments about the Joint Ministerial Committee. I do not think that we should be doing things on a UK-wide basis without their consent. Unfortunately, that is exactly what the Government are doing.
Pete Wishart
I am grateful to the hon. Gentleman for clarifying that. I just refer him to exactly what is in new clause 64:
“Ministers of the Crown shall only create UK-wide frameworks”.
The presumption is that Ministers of the Crown will create them.
Pete Wishart
It speaks about consent, but that leaves it to Ministers of the Crown to create the UK-wide frameworks. That is not acceptable.
Kevin Brennan
Does the hon. Gentleman accept that Scottish Ministers and Welsh Ministers are also Ministers of the Crown?
Pete Wishart
Absolutely, but that is not the intention of the new clause.
It is shame we are in this position, because the Scottish Government and Welsh Assembly amendments, which all appear in the name of the hon. Member for Edinburgh South, were very clear in their focus and direction. Why Labour Front Benchers felt they had to come along and table new clause 64, I will never understand, but I leave it up to them. I have explained to them why we cannot support it this evening and I think they understand that reason. Let us leave it at that.
Lastly, I turn to my Scottish Conservative colleagues, ever so gently. [Interruption.] No, I think they have entered into this debate with a degree of consensus. The speech by the hon. Member for East Renfrewshire (Paul Masterton) was very thoughtful and well delivered. However, this is a big test for them tonight. The devolution settlement is at stake. These are critical decisions that we must take. They can believe Ministers, but I do not know what reassurances they have received that this will be resolved. I have worked with Scottish Government colleagues and they have told me that progress has been made, but nothing is decided. The best way to get progress and to ensure that there is total focus from Ministers is to vote for the amendments. That will tell them clearly that all of us across this House say that something has to be done.
Nick Thomas-Symonds
I want to be absolutely clear about the new clause, because it says clearly:
“Ministers of the Crown shall only create UK-wide frameworks if they have consulted with, and secured the agreement of, the affected devolved administrations.”
It is very, very clear. I agree with the hon. Gentleman that we should be working across parties as much as possible, but there is really no need to split hairs. That is very, very clear.
Pete Wishart
I do not know what part of that line the hon. Gentleman does not understand:
“Ministers of the Crown shall only create UK-wide frameworks”.
It does not talk about anybody else. I will leave that there. It is unfortunate. I do not know why Labour Front Benchers could not have come to us and had a conversation about it. We could have put forward our concerns. We could have come together consensually, as we have been doing quite a lot, and worked something out, but unfortunately that was not the approach they wanted to adopt. That was up to them.
Back to my friends in the Scottish Conservative party—I feel like I have neglected them now. This evening is a test for them. The future and the principles of the devolution settlement are up for grabs this evening. They can trust these guys here—the Ministers—trustworthy though they may be, to do the right thing. Perhaps they have received assurances that the Government are going to do all these things and that everything is going to be all right.
But what is not acceptable—I know most of my Scottish Conservative colleagues and friends are new to this place—is for this to go to the unelected House of Lords to be amended. That is what increasingly this Government are doing. They do not like to accept amendments in this place, which is a democratic outrage. This House, which we are all elected to by our constituents, should be the exclusive place in which these things are resolved and fixed down. If those Tories think that we should resolve these really important issues in a place that is full of unelected donors and cronies and failed Members of Parliament—I am thinking about the guy who opposed me in the Scottish Parliament and who managed to get himself in there and a role in the legislature—then that is their view, not mine. When we have debates about such critical issues, we owe it to our constituents to ensure that it is we who decide and determine them and not those in another place, which is unelected.
I hope that the Scottish Tories are right—I am looking round now and can see that they have full confidence that this will be resolved and fixed down—but the one way that they can definitely guarantee that they will get their way is to vote. That is what we do in this House: we vote on issues that we agree on and support. For the sake of the devolution settlement and to ensure that we get some sort of solution to everything that we need to get fixed, they should back us tonight, stand up for Scotland and make sure that these amendments are passed.
John Lamont
I will speak to the measures that relate to Scottish devolution, particularly clause 11, which we have heard so much about during this debate. However, before I do so, I want briefly to talk about my role in this process, and indeed that of other Scottish Conservative and Unionist Members here and in the Scottish Parliament. Our job is to ensure that the Bill is in a form that will ensure that the Scottish Parliament can give its approval through the legislative consent procedure. It is fair to say that without a legislative consent motion, the Brexit process will shudder to a halt and create a constitutional crisis. It is therefore imperative that the consent of the Scottish Parliament is achieved.
John Lamont
No, I just want to make a little bit of progress.
Although I do not support the amendments proposed by the Scottish and Welsh Governments—I will try to outline my reasons why—I do think that the UK Government need to do more to find a way forward with the devolved Administrations. The leader of the SNP here, the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), completely misjudged the tone of the debate. Peddling lines about “power grabs” when the complete opposite has clearly been stated to be the case really was staggering. Moreover, I was astonished that the hon. Members for Edinburgh South (Ian Murray) and for Edinburgh West (Christine Jardine) seemed to be supporting the Scottish Government’s amendments, which would do so much harm to the integrity of the UK internal market and to Scotland’s place in the United Kingdom, given that so many of their voters voted overwhelmingly for Scotland to remain part of the United Kingdom in 2014.
Christine Jardine
Does the hon. Gentleman accept that I and, I hope, the hon. Member for Edinburgh South (Ian Murray) are doing what we believe is necessary to protect the devolution settlement? By doing so, we are doing much more to protect the United Kingdom than the Conservatives, who may actually be undermining it.
John Lamont
It is my colleagues on the Government Benches who have made the Scottish Parliament as powerful as it is today. The Scottish Secretary has given a guarantee that, after Brexit, the Scottish Parliament will have even more powers. The problem with the amendment that the hon. Lady intends to support is that it goes too far. It would harm the internal market of the United Kingdom and undermine Scotland’s place in the United Kingdom. I do not believe that that was what the voters of Edinburgh West or of Edinburgh South voted for when they voted for their MPs, with their Unionist credentials, back in June.
Mrs Moon
I just find this debate absolutely ironic. We talk about the power of the devolved Assemblies at a time when one individual, in a quick phone call with the Prime Minister, can scupper the whole policy and the whole plans for devolution. Nobody from the Democratic Unionist party is in the Chamber to argue their case. DUP Members will go into the Lobby to vote, but they will not come here to argue their case. That is the shame of this debate. There is no parallel between what is happening in Northern Ireland, and what is happening in Scotland and Wales.
John Lamont
The hon. Lady should perhaps look at last week’s discussions between the Secretary of State for Scotland and the Deputy First Minister for Scotland about how powers should be divided between this place and the Scottish Parliament. I believe that genuine progress is being made, but we should not rush it.
Ian Murray
I am very grateful to the hon. Gentleman for allowing me to correct his inaccurate record. He talked about my constituents in Edinburgh South. I should know them better than he does, and they voted 68% to 32% to keep Scotland in the United Kingdom. There is no greater defender of that United Kingdom than me, but perhaps he would like to reflect on the fact that the danger to the United Kingdom is Brexit and English votes for English laws. He stood on a manifesto saying that he would not only maintain the single market and the customs union, but enhance them.
John Lamont
I am grateful to the hon. Gentleman for that point. I will leave it to him to explain to his constituents why, by pressing his amendment, he will be putting at risk Scotland’s place in the United Kingdom. The amendment would damage the internal market of the United Kingdom and Scotland’s place in the United Kingdom. We are not supporting it because it goes too far. As my hon. Friend the Member for East Renfrewshire (Paul Masterton) explained, we want to amend the Bill, but we will not do so if it puts Scotland’s place within the United Kingdom at risk. The amendment tabled by the hon. Member for Edinburgh South would do that, and that is something that we will be reminding his voters of.
I come to this debate as someone who was disappointed with the result of the referendum in 2016, but I am also a democrat. We need to accept the result and move on to ensure that we get the best outcome possible for Scotland and the United Kingdom. SNP Members would do well to show a degree of acceptance of that, too. They have been on the losing side of two referendums in recent years, but they seem to be unable to accept the result of either.
Our job now is to deliver Brexit smoothly and in a legally coherent way. That is why the Bill is so important. It is horrifically complicated—I expect that most people in our country do not really understand what it is all about—and it could affect many aspects of our everyday lives, particularly in constituencies in parts of our country that are also governed by devolved Parliaments and Assemblies. Rather than focusing on the detailed wording of each clause, my approach has been to focus on outcomes. What do Scottish residents living in the border communities that I represent want to achieve from this process? What do Scottish farmers believe to be important? What do Scottish businesses and traders want from leaving the EU? What do our fishermen want to see on the other side of Brexit day? Ultimately, they all want as little disruption as possible. They want to be able to trade, move, and work within Scotland’s most important trading partner—the rest of the United Kingdom.
Stephen Doughty
Given the concerns that the hon. Gentleman is raising about many issues and the complexity that he is describing, is he not surprised to hear that, in recent moments, the statement that the Prime Minister was due to give to the House tomorrow about the negotiations and these matters of devolved Administrations has apparently been cancelled? The Prime Minister will not be coming here. Does he not agree that she should come to this House to explain just what is going on with these negotiations?
John Lamont
I am grateful to the hon. Gentleman for his intervention. I will not get involved in a running commentary on what he has been reading on Twitter. I look forward to hearing what the Prime Minister has to say when she is ready to speak to us.
My priority from Brexit is twofold. My first priority is to protect the integrity of the UK internal market, which is worth four times more to Scottish businesses than that of the European Union. The other priority is to get the best possible access to the EU market. That, I believe, is also the priority of SNP colleagues, although there are differences over how we define the word “possible”.
The amendments proposed by the Scottish and Welsh Governments would, I believe, put the United Kingdom internal market at risk, which is why I cannot support them. By automatically devolving powers, they would place unnecessary barriers to trade between Scotland and the rest of the UK, our largest market. While accepting the need for common frameworks, the Scottish Government’s approach seems to be that everything should be devolved on day one and there should then be a process of trying to re-reserve powers to Westminster at a later date once we know what trade agreements require a UK-wide approach. That approach would bring an extra layer of uncertainty at an already uncertain time.
Martin Whitfield
Does not the hon. Gentleman agree that these powers have already been devolved? We are talking about powers coming back that have already been devolved, rather than something fresh and new.
John Lamont
These powers are with the European Union just now. We all accept that there will be a need for UK-wide framework agreements, and we need to get the process right. Why rush into devolving everything to the Scottish Parliament when the framework agreements might require powers to be retained at a UK level to protect the UK internal market, and to allow us to enter into trade agreements with other countries around the world? It is critical that we get things done in a logical and thoughtful way, rather than rushing into a situation that we might be unable to unpick further down the line.
Stephen Kerr
Does my hon. Friend agree that there are many moving parts in the current process? Our debate is taking place at a time when many things are on the move. For example, there was a very positive meeting last week between representatives of Scotland’s two Governments. Does my hon. Friend welcome that, and does he believe, as I do, that we should be optimistic that we can come up with an agreement based on some of the things that the Scottish Affairs Committee mentioned in its report?
John Lamont
My hon. Friend makes an excellent point. Significant progress is being made between the two Governments, which was why I was so disappointed with the opening remarks of the right hon. Member for Ross, Skye and Lochaber. There is not a million miles between the two Governments.
Christine Jardine
But does the hon. Gentleman accept that this is not just about how well Scotland’s two Governments are talking to each other? It is also about Wales and Northern Ireland—it is about each devolution settlement. We should not expect the situations in Wales and Northern Ireland to be dependent on the outcome of talks between Scotland’s two Governments.
John Lamont
I accept that the UK Government are holding discussions with the other parts of the United Kingdom, but I am here to represent a Scottish constituency and my Scottish constituents. I would not be doing my job properly if I did not focus on Scotland and the challenges that Brexit will present there.
John Lamont
I want to make a little bit more progress.
I completely reject the Scottish Government’s unhelpful narrative in the early stages of this process—we have heard it from some who have spoken today—that there is a power grab. No powers that are currently exercised by the Scottish Parliament will be reserved to the Westminster Parliament. Every decision that the Scottish Parliament could have taken before Brexit will still be possible after March 2019. The Scottish Parliament will, in fact, be given greater powers as we leave the European Union. This Bill maintains the current powers of the Scottish Parliament. It merely replaces the restriction on legislating contrary to EU law with the restriction on legislating contrary to EU retained law.
Chris Elmore
I am beyond confused by the hon. Gentleman’s assumption that we would reserve the powers that come back from the EU here on the basis of trade deals. The hon. Member for Stirling (Stephen Kerr) is shaking his head, but the hon. Member for Berwickshire, Roxburgh and Selkirk (John Lamont) did say that the powers would be reserved based on trade negotiations. As a Welsh MP, I want to know whether the hon. Member for Berwickshire, Roxburgh and Selkirk is saying that this British Parliament is to forfeit Welsh lamb in favour of Trump’s chicken. Will he clarify what he means by the powers being reserved based on trade?
John Lamont
My comments relate to the UK-wide framework agreements, on which I thought there was cross-party agreement. We need the framework agreements to protect the integrity of the UK internal market’s operations. As we progress out of Brexit, we will enter into trade deals with other countries, and it is important that the United Kingdom as an entity can offer one approach—common standards—in those negotiations. That will be good for Scottish business and for our constituents, and it is one reason why the framework agreements are so important.
John Lamont
I just want to make a little more progress.
The UK Government have made it crystal clear that clause 11 is temporary until powers can be devolved. It is simply wrong to suggest that the Bill is some sort of power grab by Westminster. I suggest that this is just another chapter in the SNP’s book of grievance politics.
Joanna Cherry
The hon. Gentleman makes a point about the power grab, but he needs to understand that this phrase is not just used by the SNP. As I said earlier, it was first used by the former British Prime Minister, Gordon Brown. Government Members have been surprised that I am quoting Gordon Brown, but the Conservative and Unionist party needs to understand that all the Scottish parties—apart from the Conservatives—are united in their desire to protect the devolution settlement. The hon. Gentleman is describing what he hopes will happen, but clause 11 will not enable that to happen, because it involves top-down imposition, rather than organic upwards agreement.
John Lamont
The hon. and learned Lady is misrepresenting the Scottish Conservative and Unionist party’s position. We are completely committed to devolution. We have delivered more powers to the Scottish Parliament than any other party in this Chamber and we will continue to do so after Brexit. It is completely disingenuous to suggest anything else.
Joanna Cherry
On a point of order, Mr Crausby. The hon. Gentleman has used the word “disingenuous”. We have already heard from the Chair once today that that word ought not to be used about another hon. Member. I very much hope that the hon. Gentleman is not suggesting that I am being disingenuous. We might disagree, but I am not being disingenuous. I invite him to withdraw the comment.
The Temporary Chair (Sir David Crausby)
The hon. Gentleman should not have used the word “disingenuous”. I am sure that he will learn from it.
John Lamont
I will learn, Mr Crausby, and I am happy to withdraw the remark.
The hon. and learned Lady said that the Scottish Conservative and Unionist party was in some way not supportive of devolution, which is just not the case. She has given me the opportunity to repeat my point: this party has delivered more powers to the Scottish Parliament than any other party in this Chamber, and it will continue to do so after Brexit.
John Lamont
No; I think I have heard quite enough from the hon. and learned Lady this evening. Despite the rhetoric of the Scottish National party, the opposite is in fact true, as the UK Government and the Scottish Government are relatively close to reaching an agreement.
Colin Clark (Gordon) (Con)
Does my hon. Friend agree that it would be of better service to all our constituents if we dialled down the rhetoric and looked closely at the positions that we all hold? We all agree that we need some common frameworks, and we all agree that the JMC and bilateral negotiations are the right way to make progress. Does he agree that we need to let the negotiations progress so that they can inform future changes to the Bill?
John Lamont
My hon. Friend is absolutely right. Both sides agree on the need for common frameworks. As I listened to the Scottish Government’s Michael Russell and the Secretary of State for Scotland speaking yesterday, it was clear that significant progress has been made in the discussions between the two Governments, which is to be welcomed.
I also welcome the clear statement from the Secretary of State for Scotland that the UK Government’s default position will be devolution in policy areas that are already devolved, and that common frameworks must be agreed, not imposed on the devolved Administrations. The problem with the SNP’s demands is that they would rush a complicated process. I do not support an arbitrary timetable for listing what will be devolved and what needs to be dealt with on a UK basis until that has been agreed between the two Governments. I hope that we can proceed in a constructive way to achieve that. Although the Government are right to take their time, we do need further clarity from them on such matters during the progress of the Bill. In particular, we need more information about the areas in which common UK-wide frameworks are likely to be required.
Finally, it is absolutely not constructive—internally and within the EU—to have the threat of a second independence referendum hanging over the Brexit negotiations. We have seen the front pages of the Scottish press this morning, with the First Minister again talking about the case for independence. I see some SNP Members nodding enthusiastically. This is creating an extra layer of uncertainty for businesses in Scotland and making the task of negotiating with the EU even more difficult.
Ian Murray
It seems as if the hon. Gentleman is coming towards the end of his speech. Before he does, will he clarify a matter for the Committee? Is he saying that if something is part of a UK-wide trade deal, it will remain reserved to this place even though it is devolved under schedule 5 to the Scotland Act 1998?
John Lamont
If the two Governments agree that a power is required for the framework, that is the type of power that will have to be retained. That will protect the integrity of the UK market and allow our country to do trade deals with other countries of the world, but it will be an agreed position. That is why the discussions between the Scottish Government and the UK Government are so important. That is why I have said throughout my speech that I believe significant progress has been made to get to this point, which I certainly welcome.
I urge the SNP to put the national interest first and to work more constructively with the UK Government to achieve what we all want, which is the best outcome for Scotland and the United Kingdom from leaving the EU. I look forward to working with my colleagues in the UK Government to ensure that this Bill works for Scotland and for my constituents in the Scottish borders.
Anna McMorrin (Cardiff North) (Lab)
In the past few weeks, we have spelled out many reasons why this Bill will leave the UK worse off in terms of human rights, workers’ rights, animal rights and environmental protections. However, it is designed to leave our devolved Governments and Parliaments worse off too.
Nick Thomas-Symonds
I entirely agree with the speech my hon. Friend has made so far. [Laughter.] I am sure I will agree even more as it develops further. She talks about the devolved Administrations, but is the truth not that this Bill also denudes this Parliament of powers through a number of Henry VIII clauses?
Anna McMorrin
I thank my hon. Friend, and I completely agree.
Wales voted for a devolved Government 20 years ago. I was part of that campaign, and I was proud to see the then UK Labour Government bring that about. We now see a more successful and confident Wales than we did two decades ago, but I fear that we are about to go backwards. The Tories have made it clear that, when it comes to devolution, they just do not get it. Anyone who understands the basics of devolution can tell you that this Bill is taking us backwards. The powers devolved to Wales must stay in Wales.
Clearly, the issue is one of trust—trust to exercise devolved powers responsibly, trust to carry out measures that represent the people of Wales and trust to provide meaningful scrutiny of legislation. However, why should we in Wales trust a UK Government that are leading us to such a shambolic Brexit? As it stands, after Brexit, the devolved Governments will be at the mercy of Whitehall.
Stephen Kerr
The hon. Lady’s remarks lead me to conclude that there seems to be no basis, in her mind, on which Wales’s two Governments can get together and make agreements, but there has to be trust. We have to have some basic trust between our levels of Government —otherwise, we will not be able to progress. Surely she is not advocating constitutional confrontation rather than consensus.
Anna McMorrin
I think we are seeing the beginnings of a constitutional crisis right now actually. [Interruption.] I will go on to explain if the hon. Member for Stirling (Stephen Kerr) will let me.
After Brexit, devolved Governments will be at the mercy of Whitehall mandarins with complete control over the time, place, method and future of the repatriation of powers from Brussels. We need only an elementary understanding of how institutions and Governments work to understand that this is leading us to a constitutional crisis.
Devolution is one of our country’s great strengths. The last 20 years have shown devolution to be a success, with our Governments in Wales and Scotland able to forge their own distinctive paths with confidence. Decisions about Wales are best made in Wales by the people of Wales. This is not an argument for nationalism, but one for democracy. Governments formed here in Westminster are not best placed to dictate what happens in Wales.
This Bill lets down the constitutional settlement and the people of Wales, Scotland and Northern Ireland. First, as drafted, clause 11 places a new and significant constraint on the devolution settlement and shifts the power dynamic around setting common UK frameworks firmly in the direction of the UK Government. As yet, the UK Government have provided no information on how these common frameworks will be agreed, the timetable for agreeing them or how Parliament and the devolved legislatures will be involved in the process.
Stephen Kerr
I am afraid that what the hon. Lady is saying is just not true. The excellent report produced by the Public Administration and Constitutional Affairs Committee reproduces in full the agreement from October —just a couple of months ago—which spells out exactly how these common frameworks will be put together between the Governments. [Interruption.] No, that is what it says in this report.
Anna McMorrin
I am afraid the Chair disagreed with the hon. Gentleman. [Interruption.] Well, the hon. Gentleman should speak to the Chair and to other Conservative Members about that.
The situation is further complicated by the fact that, in a number of EU policy areas, the UK Government are in fact acting as the Government of England.
Mr Jenkin
I am most grateful to the hon. Lady for giving way—I know she is trying to get on with her speech.
Yes, we published the conclusions of the last Joint Ministerial Committee in our report because they, I think, do show the good faith of the Government. However, I also understand why people have doubted the good faith of the Government—because clause 11 is so bald, if I may say so. We need reassurances around clause 11 that do not necessarily change the substance of it but give assurance that there will be a process and a timetable. That would certainly be a good step.
Anna McMorrin
I thank the hon. Gentleman, and I agree absolutely that we need far more information on how the common frameworks will be agreed, the timetable for agreeing them, and what is involved in the processes.
Wayne David (Caerphilly) (Lab)
But the very fact that there is no timetable surely gives weight to the argument that what we are seeing here is a crude power grab.
Anna McMorrin
I thank my hon. Friend, and I completely agree. That is what I am saying in my speech—that this is an absolute power grab to the centre and away from the devolved Administrations.
Paul Flynn
My hon. Friend is being extremely generous in giving way.
Could we take a practical example of what will happen? The Welsh Government have wisely introduced a law on presumed consent for organ donation—it is settled, and it has saved 40 lives. The United Kingdom Government have not introduced such a law, and England has lost 400 lives. Scotland is in the process of introducing such a law, but the power it has to do that is being grabbed back here. Will that kill people in Scotland? That is an example of this legislative paralysis, which is taking away Scotland’s powers to do something that is much needed.
Anna McMorrin
Absolutely. I completely agree. That just shows that what we have here in a number of policy areas is a constitutional crisis emerging and the UK Government acting as the Government of England, not the Government of the UK, leading to a number of possible conflicts of interest when it comes to imposing pan-UK structures.
Secondly, it is crucial that Welsh Ministers and the Welsh Parliament are responsible for correcting and amending all areas of EU law that are devolved. Restricting involvement means taking away powers that have been devolved for 20 years and creates an inequality between the nations of the UK, as has just been described by my hon. Friend the Member for Newport West (Paul Flynn). That endangers the proper functioning of any UK single market—one of the main aims of this Bill.
We have seen the mess the Prime Minister is making of these negotiations, and we have seen the mess today. She is held to account by a small minority party—the DUP—and we have seen that this afternoon in the negotiations. A hard Brexit or no deal would seriously challenge devolution, as well as risking the Union. As a devolutionist who wants the UK to stay together, I think these issues are likely to cause the UK to begin to unravel. The UK Government must take responsibility.
Finally, the UK Government know they cannot win this. They may be able to whip their Members here in the House of Commons, but they cannot whip their Members in the Lords. Those Members are determined to expose what this Government are doing and will not let them off lightly.
Luke Graham (Ochil and South Perthshire) (Con)
Like the hon. Lady, I represent a constituency in a devolved part of the United Kingdom. Many in the House believe that clause 11 should be amended and have put their point to the Government, but will she work constructively with the Government and be specific—not fan the flames of nationalism, which we all know are at play and could undermine our United Kingdom?
Anna McMorrin
As the hon. Gentleman knows, I am not fanning any flames of nationalism; I am talking about democracy in this place and the democracy of the UK. The Welsh Government have tried on many occasions to negotiate with the UK Government. That has not been possible, so we have the opportunity to vote with our Front Bench on these amendments.
Chris Elmore
My hon. Friend makes the point that Conservatives with constituencies in devolved parts of the UK should vote with us this evening. The Welsh and Scottish Governments have been saying for years that the JMC should be put on a statutory footing. That would build trust between the Government and the Welsh, Scottish and Northern Irish legislatures. Does my hon. Friend agree?
Anna McMorrin
Yes. It is so important that structures and discussions are formally put in place across the country.
Jo Stevens (Cardiff Central) (Lab)
I recall that during the passage of the Wales Bill last year we specifically asked for the JMC to be put on a statutory footing. The Government said no.
Anna McMorrin
The Government will probably see the error of their ways as the Bill passes through the Lords and they lose there. My advice is that the Government should avoid any more embarrassment, listen to our devolved nations and amend the legislation before it is too late.
Mr Alister Jack (Dumfries and Galloway) (Con)
On 23 June last year, I voted, like more than 1 million Scots and more than 17 million Britons, to leave the European Union. I did not take that decision lightly; the caricature of leave voters as romantic zealots with no regard for our economy could not be further from the truth. Brexit is a practical decision, and I believe that the United Kingdom will be better off, and less exposed to risk, by taking control of its own destiny and trading with partners around the world, rather than becoming increasingly tied to the whims and fortunes of the European Union.
Tom Brake (Carshalton and Wallington) (LD)
Will the hon. Gentleman give way?
Mr Jack
I will make some progress, if I may. Voting remain was a leap of faith that I could not take. I am not here to call for chaos; in fact, it is crucial to the short-term success of Brexit that we disengage from the EU with as little disruption as possible. That is why I support the Government’s plan for a time-limited implementation period after exit day. It is also why I support the Bill, which ensures that the statute book will continue to operate normally on exit day. We have a whole future ahead of us in which to use the controls that we will gain from Brexit to reform the laws and regulations in agriculture, fisheries and so on. At present, the focus should be on ensuring that the process of Brexit runs smoothly. The Bill recognises that.
For me, that approach extends to our devolution settlement in Scotland. We all expect the Scottish Parliament to become more powerful as a result of Brexit, but it is vital that we have secured common frameworks that ensure that the Union continues to function properly after Brexit. The Scottish Government, I hasten to point out, agree—and I commend them for that.
I call on both of Scotland’s Governments to come to a quick agreement. Scots deserve clarity in advance about exactly which powers will rest with Holyrood and which with Westminster after Brexit. The amendments to clause 11, proposed by SNP, Labour and Liberal Democrat Members, do not help that process. Clause 11 preserves the current devolution settlement.
Hannah Bardell (Livingston) (SNP)
One of the hon. Gentleman’s colleagues has just said that he wants specifics about clause 11, while another says that the Conservative party respects the devolution settlement. Can the hon. Gentleman explain what it is about amendment 72—
“This section shall not come into effect until…the Scottish Parliament…the National Assembly for Wales…and…the Northern Ireland Assembly has passed a resolution approving the provisions”—
that does not respect the devolution settlement or support his position?
Mr Jack
I will come to that. That is going to happen anyway—by legislative consent motion.
Clause 11 preserves the current devolution settlement. Holyrood will not be stopped doing anything that it can do now, and nor will it automatically become able to do anything that our current EU membership stops it doing. This is simple and easy to understand, and it provides a solid basis for the talks currently taking place over which EU powers will be devolved.
Tommy Sheppard (Edinburgh East) (SNP)
I think the hon. Gentleman misunderstands what is happening. At the minute, the EU has legislative competence in 111 devolved areas, to ensure compatibility with the treaty on European Union. After Brexit, that will not be the case; what is being proposed is that the UK Parliament should be given legislative competence over these devolved areas that it currently does not have. That is a material change and constraint on devolution.
Mr Jack
That is correct—that is what we are negotiating about. The 111 powers are already devolved at implementation level. That exists at the moment. The question is about where the frameworks sit in respect of the powers that come back from the EU. We have to look at our internal market and how we would better run our country.
On issues such as food standards, it makes complete sense for us to have one framework for the United Kingdom, so that everyone can participate in the trade deals that we do. If we had different rules and regulations in different parts of the United Kingdom, our overseas trade agreements and internal market would fall apart.
Hannah Bardell
The hon. Gentleman talks about different regulations. Surely he understands the desire in Scotland, which the votes cast in Scotland reflected, to stay in the single market and the customs union and have the same rules and regulations. Only England and the other parts of the UK that leave may be threatened with different regulations.
Mr Jack
The United Kingdom voted to leave and we respect that democratic decision. Earlier, the hon. Member for Perth and North Perthshire (Pete Wishart) said that the councils of Scotland were confused, that there was a lot for them to look at and that every council voted against. In 2014, I remember that 28 of 32 councils voted to stay in the United Kingdom. Hon. Members should respect that, just as I respect the decision taken by the United Kingdom to leave the European Union.
Mr Jack
I am going to make some progress. By the time we reach Report, I hope we will have a better idea about what common frameworks are needed and how Scotland’s two Governments, in Westminster and Holyrood, will work together to implement them. That is the clarity that Scottish businesses want and need.
Almost two-thirds of Scotland’s exports go to the rest of the United Kingdom. I represent Dumfries and Galloway, which is but a few miles from both England and Northern Ireland, so this matter is particularly important to my constituents. If the internal market of the United Kingdom is harmed, Dumfries and Galloway will be among the worst hit areas. That is why I believe the amendments to be pointless at best, and harmful at worst. The forthcoming round of post-Brexit devolution must be conducted in a clear, measured way, preserving the internal market of the United Kingdom.
Christine Jardine
I want to speak specifically to amendments 132, 133 and 134. Like many others before us today, they are designed to protect the integrity and powers of the devolved Administrations of Scotland, Wales and Northern Ireland by removing the proposed bar on legislating inconsistently with the EU in each case. I have been disappointed that in this debate we have not been able to reach the consensus that members of the Scottish Affairs Committee and the hon. Member for Perth and North Perthshire (Pete Wishart) mentioned on the frameworks. There has been no suggestion, as far as I have heard, that we do not all agree on the need for a framework—it is the devolution of the powers that we are concerned about. This Bill appears to facilitate a power grab by this Government that, in its own way, undermines the devolution settlement and the powers of the Scottish Parliament.
It may have amused SNP Members that, while in the past I have appeared to be critical of their Government, I am agreeing with them on many things today. For example, I have criticised their Government’s handling of Police Scotland, pointed to GP shortages, and highlighted plummeting standards in Scottish education. However, those are criticisms of an Administration and their policies. They have never been criticisms of the Scottish Parliament, of the exercise of its devolved powers, or of any other Administration’s ability to exercise devolved powers. This now represents the settled will of the people of Scotland.
Stephen Kerr
The hon. Lady is a member of the Scottish Affairs Committee, which took evidence from the Secretary of State for Scotland, who was adamant about the fact that there would be additional powers to the Scottish Parliament and about the fact that the existing powers would remain. In fact, this Bill cements those powers to the Scottish Parliament. What has she heard that makes her think anything to the contrary?
Christine Jardine
I will come on to that. As the hon. Gentleman himself has said, it is currently being negotiated between Scotland’s two Governments exactly what the framework and the powers would be, and until we have that assurance we cannot be absolutely sure.
Today I find myself in the strange position where I feel as though I have been transported back 25 or 30 years, to a time when the Opposition parties are all in favour of devolution and campaigning for devolution, and the Conservatives are needing to be persuaded.
Christine Jardine
No, that is how it is. The Conservatives are needing to be persuaded, even though they themselves admit that they are unhappy with aspects of clause 11. They are looking to their own Whips rather than to what might be best for the devolution settlement in Scotland, Wales and Northern Ireland.
We should not forget that the leave campaign argued that Brexit would lift restrictions and lead to Scotland gaining major powers, yet today we find ourselves considering a Bill that aims to modify and place restrictions on both the Scottish Parliament and the Welsh Assembly in relation to EU law. Surely we cannot allow this erosion of our democratic processes. I appeal to Conservative Members, particularly those who have served at Holyrood, to support us in this. Their party may not have originally supported devolution, but they, of all people, must recognise its significance today.
As part of the EU withdrawal process, Scotland’s two Governments are currently discussing where the powers returned from the EU should be vested and how the new frameworks should operate. Just as the 111 powers relating to Scotland are being discussed, the Welsh Government have a list of 64 powers that they feel could be vulnerable under this agreement. Both Administrations are looking to this place for amendments to the Bill that will ensure that they continue to have approval over the aspects that affect them. Indeed, only last month, Scotland’s First Minister stated that the Bill as it stands is not one that her Government would recommend for approval.
This is the specific point where I would take issue with the Conservative allegation that it is Opposition Members who are undermining the Union. If we do not put forward a Bill that can get a legislative consent motion in the Scottish Parliament, we threaten the very fabric of the agreement and throw ourselves into a constitutional crisis. I do not want to be responsible for that. It will undermine the Union in the same way that the Conservative Government’s actions in taking us out of the European Union with a hard Brexit will cost Scotland perhaps £30 billion and put 80,000 jobs at risk. Those are the threats to the United Kingdom, not the debate we are having here today.
Tom Brake
Would my hon. Friend also like to consider the threat to the United Kingdom that is represented by the debacle that is happening with the border between Ireland and Northern Ireland in the context of ensuring the coherence of the United Kingdom? Surely the Government are failing on that front as well.
Christine Jardine
My right hon. Friend makes a very good point. That is yet another example of how this Government are undermining the United Kingdom at every turn.
For Opposition Members, the drive is to protect the devolution settlement and potentially the stability of the United Kingdom. There are a number of other amendments that are similar to ours which we are happy to support, and we will not press ours to the vote. Our overriding priority is to get this Bill in shape so that there is no danger that when it goes to the Scottish Parliament it does not get that consent and we face the crisis that Opposition Members have worked so hard to avoid for the past five years.
Ross Thomson
This has been a very interesting debate. It has been quite extraordinary to hear some of the rhetoric from Opposition Members about power grabs. I do not care where that phrase originated. Whether it was Gordon Brown, Kezia in the jungle, or Patrick Harvie, the fact is that it is simply not true.
It is amazing that Opposition Members have found this new belief in sovereignty. Let us go back to some basic facts. For the past 40 years, the UK has ceded its sovereignty to the EU and its institutions, with literally thousands of pieces of legislation being imposed on the UK and all its nations, and our Parliament having no ability to scrutinise them—
Ross Thomson
No, I am just getting started.
There has been no ability to scrutinise them, amend them, or even reject them. Now, on the day that we leave the EU in March 2019, powers will be returned to the UK and the Scottish Parliament will become more powerful than it already is.
Ross Thomson
No, thank you.
The Scottish Parliament will regain powers over agriculture, the environment and transport, for example. We have seen quite an astonishing level of hypocrisy from Opposition Members today. Where was the SNP’s belief in sovereignty when over the past 40 years laws were imposed on the people of Scotland by the EU without debate in this place, or over the past 20 years without debate in Holyrood?
Jo Stevens
I am grateful to the hon. Gentleman for letting me stop him in mid-flow. Has he never heard of the European Parliament?
Ross Thomson
I am aware of the European Parliament, which cannot reject the legislation that is imposed on it by unelected commissioners. This is about re-establishing democracy. The EU has nothing to do with democracy—it is a deficit in democracy. We are taking that back. Opposition Members should celebrate that fact.
The Temporary Chair (Sir David Amess)
Order. We cannot have two Members standing at the same time. I do not think that the hon. Gentleman is giving way.
Ross Thomson
Thank you, Sir David.
There was no option for debate, and no opportunity to amend or even reject those laws. Where was SNP Members’ concern for sovereignty then?
Ross Thomson
I would like to make some more progress before I take an intervention.
SNP Members have manufactured the power grab argument in grievance, yet we have heard time and again from the First Minister, all the way along, that the position of the SNP is for full membership of the European Union. [Interruption.] There we go; we have had it confirmed again. The SNP’s position is to support full membership of the European Union for an independent Scotland. The argument that SNP Members are making today is clearly fake news, because they do not want a single one of the new powers that will come to Scotland. They want the EU to retain and maintain those powers.
Stephen Kerr
My hon. Friend is making a powerful speech, as is characteristic of him. Does he agree that SNP Members here are not representative of the SNP Government in Scotland? The SNP Government are quite attracted to the idea of these additional powers and would quite like to have them, but SNP Members here are indulging in rhetoric.
Ross Thomson
My hon. Friend is right that the rhetoric of the SNP group in Westminster is very different from that of the SNP group in Holyrood.
Ross Thomson
No, I will answer this point first. It looks as though we are achieving a real consensus about the powers that will come to Scotland, but we have just heard the SNP’s heated rhetoric in this Chamber. I know the SNP group in Holyrood, because I worked with them, and I know that Alex Neil and some bashful others are very keen on Brexit and powers coming back to, and being exercised in, Holyrood. SNP Members in Westminster want those powers to lie with the EU, and they want the EU to retain and maintain full control over all those areas.
Given that the EU is still very much travelling in the direction of greater integration, the SNP will simply want to cede even more powers to the EU if they get their way and win a second independence referendum. Boy, we in the Conservative party will do everything to prevent that from happening. There is no power grab here; this is simply the SNP’s great power giveaway.
Ross Thomson
The hon. Gentleman will want to hear this point, believe me. The SNP is only stronger for Brussels, while the Scottish Conservatives deliver for Scotland yet again with an even stronger Scottish Parliament. Perhaps the right hon. Member for Ross, Skye and Lochaber (Ian Blackford)—he has just come back into the Chamber; that is terrific timing—should reflect more on the comments in his speech. He says that the people of Scotland are sovereign. If that is the case, he should respect the sovereignty of the people of Scotland who said no to independence in 2014, and who rejected in 2017 the SNP’s premise of a second independence referendum. Unlike the SNP, Scottish Conservatives will continue to deliver for Scotland, and for its businesses, communities and people.
Ian Blackford
I should point out to the hon. Gentleman that, when we appeared in front of the Scottish electorate in 2016, we won a mandate to deliver a Scottish referendum if Scotland was dragged out of the EU, the single market and the customs union. Lastly, we have got 35 MPs; we won the election in Scotland.
Ross Thomson
In 2016, the SNP went into the election with a majority in Holyrood and lost it. The SNP now depends on the votes of the Greens to see through its legislation, its budget and a second independence referendum. The right hon. Gentleman mentioned the election in June. I do not know whether he has looked behind him, but 21 of his colleagues have gone missing, including the former leader of the SNP, Alex Salmond, and the party’s leader in Westminster, Angus Robertson. In that election, it was quite clear that the people of Scotland wanted to send the First Minister a message: “In 2014, we said no and we meant it.” That is why there are fewer SNP Members here than there were. There may be 35 of them, as the right hon. Gentleman says, but 13 Scottish Conservatives have achieved more for Scotland in five months in the last Budget than 56 SNP MPs ever did in two years.
I want to get back to my previous point. We will always stand up for Scotland’s businesses, communities and its people.
Ross Thomson
I have literally just answered a point, so I will finish making this one. We will ensure that no barriers are created to trade within the UK. Even the SNP Scottish Government—including the Brexit Minister, Mike Russell—accept that there will have to be common UK-wide frameworks, because they are needed. That is reflected in the Scottish Affairs Committee report, as other colleagues have highlighted in the debate. We need common frameworks, because a UK single market or unitary market—whatever we want to call it—is our greatest asset and we need to maintain it. Where frameworks are needed to underpin the work of companies and individuals across all parts of our United Kingdom, we will make the case for such frameworks.
Luke Graham
Does my hon. Friend agree that, although the SNP always talks down Westminster, this is a great opportunity to talk up Holyrood and Westminster and use the common frameworks to find areas on which we can pull together and act as one great country?
Ross Thomson
My hon. Friend is right. Scotland has two Governments: the United Kingdom Government and the Scottish Government. I know from my own constituency that my residents like it when both Governments work together, rather than being at each other’s throats. We have co-operated on city deals, for example, to achieve something, and we need to see more of that, because my constituents are absolutely fed up with the back-biting.
Drew Hendry
On the subject of powers, does the hon. Gentleman still subscribe to what was written on the banner that he held outside the Scottish Parliament for the Vote Leave campaign? The banner urged people to vote to
“LEAVE the EU and give control of the Scottish fishing industry to our democratically-elected Scottish Parliament”.
Does he still agree that those powers should go to the democratically elected Scottish Parliament?
Ross Thomson
I am so grateful to the hon. Gentleman for bringing that up. By leaving the European Union, we can take back powers over fishing, and we will come out of the common fisheries policy. As we heard earlier in this debate, the SNP wants to take us straight back into the EU and therefore drag every fisherman in Scotland straight back into that very policy, selling Scotland’s fishermen out. That has been confirmed today, but the Scottish Conservatives, such as my hon. Friend the Member for Banff and Buchan (David Duguid), will stand up for Scottish fishermen and deliver a Brexit that works for them. I thank the hon. Gentleman for giving me the opportunity to say so.
Stephen Kerr
I am grateful to my hon. Friend for saying that the people of Scotland like it when Scotland’s two Governments work together. We have heard several times from SNP Members—not the hon. Member for Perth and North Perthshire (Pete Wishart), whose speech was, I thought, rather positive—that that negotiation and co-operation has not started. But the Select Committee’s report states:
“We recommend that the UK and Scottish governments continue their efforts to secure agreement”.
“Continue” suggests that something has started, does it not?
Ross Thomson
I agree with everything that my hon. Friend has said. It is clear from this debate that I want these powers to come to the Scottish Parliament, but SNP Members want them to stay with the EU. I find it fascinating that I have a higher opinion of the ability of Nicola Sturgeon and her Cabinet to make decisions on such matters in Scotland than her own party in Westminster does. That really tells us something.
To continue with what I was saying, we will need UK-wide frameworks in areas such as food labelling.
Ross Thomson
I want to make some more progress, please.
It would make no sense whatsoever to have four different sets of food labelling rules, because it would simply add to our companies’ costs and cause confusion for customers right across the UK. Common frameworks are needed to secure the functioning of the UK internal market, as my hon. Friend the Member for Berwickshire, Roxburgh and Selkirk (John Lamont) said, while acknowledging policy divergence and ensuring that we comply with international obligations.
We cannot support the SNP’s proposal because of the danger that it poses to the integrity of the UK single market, and therefore to our United Kingdom. Let us be absolutely honest. Is it a surprise to anyone that the Scottish nationalist party would suggest something that would create barriers in our UK, in order gradually to break it up? Absolutely not. I gently urge our colleagues in the Scottish Liberal Democrats and Labour to be cautious, because the SNP’s amendments are simply a Trojan horse for the Scottish Government. We in the Scottish Conservatives will work constructively with our colleagues to achieve something better, and I am sure that the Government will reflect on what they have heard tonight.
Ross Thomson
No, thank you.
We need clause 11 to work for our United Kingdom—to protect it as well as enhancing our devolution settlement. It is in the interests of all our constituents that a deal is reached and an LCM is passed in the Scottish Parliament, so perhaps the right hon. Member for Ross, Skye and Lochaber should reflect on his pantomime performance earlier this afternoon. I know he is no longer in the Chamber, but as my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) stated, the Scottish Conservative group will work constructively with our colleagues to help to support both of Scotland’s Governments in moving forward with a withdrawal Bill that will strengthen Holyrood and maintain the integrity of the UK.
In his speech, the hon. Member for Perth and North Perthshire (Pete Wishart) spoke about having confidence in the UK Government. I actually have confidence not just in the UK Government, but in the Scottish Government because I believe they will come to a deal that will work for the whole of the United Kingdom and for Scotland’s place within it. I do not think we should act prematurely tonight because, as we know, there is an upcoming meeting of the JMC, and there is more to come from such a process. We will not support the amendments tonight because we are taking a constructive, productive approach that will actually deliver for Scotland, rather than playing the politics of grievance.
Stephen Doughty
It is a shame to follow the hon. Member for Aberdeen South (Ross Thomson), the tone of whose speech was in stark contrast to those of the more thoughtful colleagues who recognise the very serious problems with the Bill, and particularly with clause 11.
I absolutely assure the hon. Gentleman that I would not sign up to any Trojan horse for independence or for breaking apart the UK. I have been very happy to work together with Scottish National party Members and others on some of the amendments, but they know full well where my views stand on the Union, and we will not agree on that. We can absolutely agree, and I state this as a proud devolutionist, that we have a constitutional settlement that we have spent many years—20 years, in fact—establishing, and I am very proud to support it at all levels. If we throw apart that settlement, we do so at our peril. We are already seeing the chaos created after the negotiations in Brussels today, which is affecting parts of our economy because of the uncertainty for business. Do we really need to add to that uncertainty and chaos in the constitutional settlement of the UK and our islands? I do not think we do.
I rise to speak to amendments 182 and 186 to 188 in my name and those of the hon. Members for North East Fife (Stephen Gethins), for Arfon (Hywel Williams), for East Dunbartonshire (Jo Swinson), and for Brighton, Pavilion (Caroline Lucas), the right hon. Members for Carshalton and Wallington (Tom Brake), for Orkney and Shetland (Mr Carmichael) and for Ross, Skye and Lochaber (Ian Blackford) and my hon. Friend the Member for Edinburgh South (Ian Murray). I support the amendments tabled on behalf of the Welsh and Scottish Governments, and I also add my support to new clauses 64 and 65 tabled by the Opposition, as well as amendment 72 tabled by the Scottish National party—I have put my name to it as well—about legislative consent motions, and the important amendment 337 about transitional arrangements. We will not be speaking much about transitional arrangements today, but they affect the devolved settlements as much as they do many other parts of the Bill.
Withdrawal from the EU represents a major constitutional upheaval for the United Kingdom. I spoke and voted against the Bill on Second Reading, and the Committee will already be aware of my grave concern with the proposed sweeping powers that Ministers intend to gift themselves, bypassing Parliament and in effect subverting the long-established principle that legislative power and sovereignty is in the purview of this Parliament.
The Government are seeking to subvert not just this House, but the elected—duly democratically elected—Governments of the United Kingdom. The amendments I have tabled with other Members seek to protect the devolution settlement. I have with me the various Acts pertaining to Wales. A serious amount of work, effort and consideration has gone into them over 20 years. They are not perfect—they do not necessarily get everything right or include what I and others would like—but they have been developed with the advice and consent of the Welsh people, as have the other settlements with the people of Scotland and of Northern Ireland. They have also been developed by Members of this House, including many Members from across England who take a keen interest in such matters, not least when they relate to the internal borders of the United Kingdom and the differences that may exist.
Although far from perfect, the legislation laid down in law the permanency of the National Assembly for Wales as part of our constitutional arrangements. I am now incredulous that Ministers are seeking to undermine the ability of Ministers of the Crown in Wales, and indeed Scotland, by allowing Whitehall Ministers to pass swathes of secondary legislation in policy areas that it has been long established are administered from Edinburgh and Cardiff Bay.
For those who do not know, the National Assembly is in the heart of my Cardiff South and Penarth constituency, and I take a great interest in that body. I worked there in its early days—in fact, on the first few days after it opened—and like many of the more recently elected Welsh Members in this House, I have spent time in and around both Welsh and UK institutions and I recognise the importance of the settlement we have and how it works for the people of Wales, as indeed it does for Scotland.
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
The hon. Gentleman is making a good speech showing up the deficiencies of the Welsh Assembly and the Scottish Parliament. Does he agree that current events show the vastly advantageous situation in which Ireland finds itself? Its Parliament is not dependent on this place but is actually pulling the strings and telling this place what to do, and this place has to listen.
Stephen Doughty
I do not want to get too drawn into conversations about the state of the negotiations. I have already said that they are absolutely shambolic. Members from Northern Ireland are present and I am sure that they will contribute, if they wish to do so, and there will be a great number of debates on Wednesday.
I am absolutely clear, however, that Wales should not be treated less favourably than any other part of the United Kingdom. I am sure that Scottish Members would say the same about Scotland. Whether that relates to debates about remaining in the single market and the customs union—I believe that we should do so—or to other areas of legislative competence or to funding, about which this place has had many lively debates, Wales deserves to be treated as an equal. The First Minister, Carwyn Jones, is absolutely right to have made that absolutely clear this evening, given the shambolic events in Brussels today.
To return to the advice given to Assembly Members, its chief legal adviser has said that the Bill means that, effectively,
“London could step in and make law for Wales on devolved matters”.
The Bill does not stipulate that that would be subject to the agreement of the Welsh Government or the Assembly. In some cases—I am trying to be charitable—constitutional conventions, such as the Sewel convention, would apply, but the reality is that we are expected to take these matters on trust, when we could be legislating for them and getting the Bill’s detail right.
David Rees, a Welsh Labour Assembly Member and Chair of its External Affairs and Additional Legislation Committee, has said:
“If this Bill does seek to constrain the Assembly’s powers, then it could be seen as undermining devolution and the democratic will of the Welsh people, as expressed in the 2011 referendum on full law-making powers for Wales.”
When we talk about referendums, we need to be clear that they all have value and importance. We need to listen to them all, not just one, and not just interpret them as we see fit. Scottish colleagues have also said as much, with the Scottish Brexit Minister saying very clearly:
“The current proposals are a direct threat to the devolution settlement which the people of Scotland overwhelmingly voted for”.
We are talking about different mandates and our democracy; let us make sure that we listen to all parts of that democracy, not just some of them.
The Library clearly states:
“Matters of devolved competence are effectively reserved in this Act of UK Parliament… Devolved competence frozen…which will go out of date over time… No statutory basis for discussing and making new frameworks.”
That is why Labour Front Benchers’ new clauses 64 and 65 are so important. We need to give statutory effect to those frameworks, and we need clear guidance and processes. There is a small degree of disagreement among Members of different parties about their impact, but I will not dwell on that. It is clear that we need clear frameworks to debate and discuss these matters.
As currently drafted, clause 11 will amend both devolution Acts for Wales by inserting a new restriction on the competence of devolved legislatures. The Welsh and Scottish Governments consider that those provisions fundamentally cut across the principles of the devolution settlements, which is why the amendments that so many Members have signed would remove those restrictions in clause 11 and schedule 3.
I do not want to get into too much technical detail, but there is a crucial point to be made about the nature of Welsh devolution and how it has developed, particularly in the new Wales Act 2017, some parts of which have yet even to come into effect. I urge Ministers to look carefully at the sequencing. They do not seem to have thought through the commencement dates of different parts of the Act and how they relate to the Brexit process.
The question whether Wales would have reserved or conferred powers was at the heart of the debate about that Act. Mark Drakeford, a Welsh Government Minister, made some clear points about that in his evidence to the Assembly’s External Affairs and Additional Legislation Committee. He said that, essentially, there would be a move backwards from the reserved powers model and that the areas set out in the Bill would be subject to conferred powers. He set out the case very clearly, and I hope that you will excuse me, Sir David, if I quote what he said:
“In the Welsh Government’s view, this is an extremely complex and confusing basis on which to construct a properly-functioning system of legislative devolution. Even if we agreed with the policy behind clause 11, we would have strongly to oppose the way the Bill impacts on the structural foundations of devolution, reversing as it does many of the gains for devolution which adoption of the Wales Act reserved powers model aims to create.”
This is the danger of the Brexit Bill process. Those who drafted the Bill seem to lack an understanding of devolution and the different ongoing processes. Wales, Scotland and Northern Ireland have much in common, but they are different. One big gain we achieved in the passage of the Wales Act was moving to a reserved powers model, which the Scottish Parliament and Government have enjoyed for some time. It seems absurd for that to be suddenly rolled back, changing and creating different categories when we have just set out what we thought was a settlement. That is an absurd situation.
Hywel Williams
I am grateful to the hon. Gentleman for giving way. There is a good deal of agreement between us. He talks about the 2017 Act and some of the more abstract aspects that people listening in perhaps might not understand or follow, but there are practical and technical implications for children’s rights, the environment and so on. Does he not think that those aspects should be explored fully before we move to a vote? I certainly hope to do so.
Stephen Doughty
Absolutely. The danger of this place is that we sometimes get into the technical detail, but do not talk about the implications. Fundamentally, this is about where the Welsh Government and the Welsh Assembly have powers over the areas that affect many parts of our lives. When we talk about the impact Brexit could have on the agricultural sector, transport and customs arrangements—look at the debate on Ireland and Northern Ireland today—we need to speak a lot more about how the maritime border between Wales and the Republic of Ireland could be completely messed up, and the effect of the shenanigans and chaos of today’s negotiations on the prospects for Welsh businesses, ports and hauliers. These are real things that affect real lives. They might seem obtuse within this place, but they have an impact in reality.
Finally, I want to reflect on what the Exiting the European Union Committee said in paragraph 77 of its recent report. It was very clear about the problem of trust, and I think that this gets to the heart of the matter. The Government expect us to trust them that everything is going to be okay: there will be no problems; this is all going to fine; and, as I said, it is going to be all right on the night. The Committee said:
“Whilst the Government has said that it plans to work with the devolved administrations to reach agreements on UK common frameworks, the devolved administrations have insufficient trust in the process for agreeing these…relationships and have, accordingly, indicated that they will withhold legislative consent from the Bill. The Government must improve engagement with the devolved administrations. It must reach an agreement with the devolved administrations, which might result in changes to the Bill, setting out how and when…competencies will be devolved.”
What surprises me about this process is that the Government have known about those concerns. They have heard them repeatedly from Welsh and Scottish Ministers. They clearly were not listening to the concerns of some of their Northern Irish colleagues; otherwise we would not have seen today’s mess.
Angus Brendan MacNeil
Those concerns have been laid out by the Scottish Government for over a year now. Surely today’s actions by the UK Government show that if they can concede on Northern Ireland with regard to the customs union and the single market, despite the Democratic Unionist party vetoing that, they can make the same offer to Scotland and to Wales.
Stephen Doughty
I completely agree. The simple way to resolve all these issues would be for us to stay within the customs union and the single market, to stop messing about, get on with it and remove half the problems that will be created for Wales, Scotland and elsewhere. That is my very clear view.
What I cannot understand is that the Government have been told about these problems repeatedly by Welsh Government Ministers. They have been told about these problems repeatedly by the legal advisers in the devolved Administrations. They have been told about these problems repeatedly by Members of this House. They have had plenty of time to come up with some fixes. Some of these areas are really not that contentious. They are practical. They are not about wrecking the Bill or stopping Brexit; they are about making sure we keep a stable constitutional settlement in these islands.
And yet, where is the evidence that the Government have listened to any of it? So far, there is very, very little. In fact, the Secretary of State for Wales has barely been in here for the debate. Other Ministers have been here for longer. The Secretary of State for Scotland at least had the courtesy to take part in it and make some interventions. The Secretary of State for Wales has been completely absent, apart from about 20 minutes at the start of Bill. I do not think that that shows respect for the people of Wales and for the Members of the Welsh Assembly who have been putting these concerns forward. I sincerely hope that Ministers do listen and come up with fixes to these problems. Otherwise, I can tell them that they will have a very rocky ride on Report and in the other place and that they will have very little, if any, chance of getting the legislative consent motions, which they say they want to receive, from the Welsh Assembly and the Scottish Parliament.
David Duguid (Banff and Buchan) (Con)
I welcome the opportunity to speak in this lively debate. I am here to represent all my constituents as best I can, not just those who voted for me and not just those who voted in 2016 to leave. It has been estimated that approximately 54% voted to leave, but I also represent those who continue to have concerns about what will happen after we leave the EU. I appreciate the concerns expressed by many of my constituents, even if I do not necessarily always share them. I will come on to talk about why.
I can understand, to some extent, a certain level of cynicism towards the UK Government—of any Government—by our population. There seems to be a belief, however mistaken, that Scotland’s best interests could be side-lined in the EU withdrawal process. The UK Government, however, are working with, not against, the devolved Administration in Edinburgh to deliver an outcome that works for the whole UK, including Scotland. It is about getting the best deal that works for Scotland, England, Wales and Northern Ireland inside the United Kingdom—that is the key point I want to keep coming back to—so when the SNP and its supporters suggest that Scottish Conservative MPs somehow do not have the best interests of Scotland and the Scottish people at heart, I find that, quite frankly, offensive and insulting. Conservative Scottish MPs, as has been shown, speak up regularly for not only our constituents, but for Scotland as a whole.
I was surprised to hear so much mention of the so-called power grab, considering the amount of progress that has been reported between Ministers from both Scotland’s Governments on that very topic. I was happy to hear my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) quote Nigel Smith, who led the Scotland Forward campaign, that there is actually no power grab. The Bill is about continuity and certainty as much as it is about control. Powers that currently sit with Brussels will return to the UK, but we will still have devolution after Brexit. The devolved institutions, particularly the Scottish Parliament, will end up, through a period of systematic and methodical transition, with more powers than it currently holds. It will certainly have far more powers than if we followed the SNP’s policy of staying in the EU.
The SNP wants the Scottish Government to have more powers, but it does not necessarily want to devolve those powers any further than Edinburgh. It would rather see powers go back to Brussels than to our rural and coastal communities, for example. It has two obsessions: independence and centralisation. [Interruption.] Scotland is far bigger than just the central belt. [Interruption.] It is nice of the SNP to join us.
The Joint Ministerial Committee on EU Negotiations, chaired by my right hon. Friend the Secretary of State for Exiting the European Union, has provided the leaders of the devolved Governments with an opportunity to help to shape the UK’s exit from the EU. This is important because there is a clear need for UK frameworks to protect the sectors of our economy most heavily influenced by EU laws.
Angus Brendan MacNeil
Can the hon. Gentleman imagine any politician elected in the Republic of Ireland thinking that Ireland could not manage such matters itself, especially given what has happened today? Why does he require—demand, need—London to do this? Can he not stand on his own two feet and look at the world eye to eye? What is this puppy-dog need for London to sort it all out?
David Duguid
I do not recognise those concerns. As has been said by several hon. Members tonight, this is a matter of trust, and I accept that it is probably far easier for Scottish Members on the Government Benches to trust the Government to get on with the job of delivering the Bill as required.
As I said, the leaders of the devolved Governments have an opportunity to help shape the UK’s exit from the EU. This is important because there is a universally recognised need for UK frameworks to protect sectors of our economy heavily influenced by EU laws, particularly agriculture and fisheries, which are very important to my constituency. It is universally recognised, including by the Scottish Parliament and the Welsh Assembly, that UK frameworks are necessary and must be established, not imposed, as has been mentioned. This should be done in full partnership with the UK Government. That recognition was shared in what I thought was quite a beautiful moment between the Secretary of State for Scotland and the hon. Member for Edinburgh East (Tommy Sheppard) in a recent meeting of the Scottish Affairs Committee.
Deidre Brock
The hon. Gentleman talks about devolved Administrations being involved in discussions, but none of them is involved in the negotiations themselves, because of the UK Government’s decision to exclude them. Does he agree that in the end that was a big mistake?
David Duguid
The UK Government are interacting actively with the devolved Administrations, but it has to be recognised that it was the UK that voted to leave the EU and it is the UK that has the responsibility for the negotiations.
It is disappointing that the SNP is attempting to undermine the progress made by its Ministers in Holyrood on working towards UK-wide frameworks that work for Scotland. Despite the best efforts of SNP Members, the United Kingdom is still a united kingdom. To expect powers currently held by Brussels to devolve straight to the Scottish Parliament, without a transitional stage in between, is simply not practical or in Scotland’s long-term interests. I say that as someone who believes that Scotland is better off in the Union, whether or not SNP Members agree.
In conclusion, I am confident, particularly given the bending of ears by my Scottish Conservative colleagues and me, that the Government will do right for Scotland. Devolution will be strengthened, but not by these amendments.
Hywel Williams
It is a pleasure to follow the hon. Member for Banff and Buchan (David Duguid), who talked about the promise of more and better powers than the Scottish Parliament currently holds. I suppose the same goes for Wales, but the problem is the question of when, and how we can be sure. While he ruminates on that, perhaps I will get on with my speech.
Angus Brendan MacNeil
Although the Tories might need to ruminate on that, clearly Leo Varadkar does not. He has the powers and he is using them.
Hywel Williams
Indeed. That was an instructive point for us all.
I rise to speak to Plaid Cymru’s amendments 90 to 92. I am pleased to have co-sponsored the similar joint Welsh and Scottish Government amendments although, for reasons that I will make clear, I prefer my own versions.
The UK constitution is unwritten—or at least it is not written down all in one place—and is constantly evolving. It has evolved in such a way that we no longer live in a one-Parliament state. The UK consists of four representative, governing and law-making bodies, not one. That might seem like stating the obvious but, as I noted in my speech on our first day in Committee, there is no operative Assembly in Northern Ireland, the Parliaments in Wales and Scotland are considered differently from this one in Westminster, and of course England is invisible, except that we accept at the very least that England is de facto represented by this place, which raises questions of conflicts of interest.
The point is that democracy and its values apply to all, not just to one, and devolution demands that all parts of the UK have a say, not just one. As Members will know, the devolution statutes operate through a reserved-powers model in which certain matters are listed as the UK Parliament’s responsibilities. That means that matters not explicitly reserved to the UK Parliament are within the competence of the devolved legislatures.
Angus Brendan MacNeil
The hon. Gentleman is making a good point, and the rhetoric of a UK single market would make sense if the UK was composed of independent states, instead of being one super-state.
Hywel Williams
The hon. Gentleman has made that point already, and I agree with it.
In contrast to the EU internal market, the nature of the UK internal market appears to be self-evident and a matter of common sense to many people. It might be great and it might be something that has grown organically and suits us all, but how often have we seen apparently simple, clear and—crucially—unregulated systems descend into a writhing tangle of irreconcilable and conflicting interests? That is what might happen. We might wish for a simple UK internal market, but we might regret it if we wish for it. We will vote for new clause 64 but, if it is passed, we will give close consideration to how it could be improved through further amendments.
Subsidiarity is supposedly one of the governing principles of the European Union. Powers are supposed to be exercised as close to the citizen as possible. That model does not exist in the UK, where the UK Government remain sovereign. We rely on the separation of competences listed in the newly enshrined reserved powers model in the recently passed Wales Act 2017. This Bill, as it stands, undermines and reverses 20 years of the existence of the National Assembly for Wales.
Professor Rawlings, the professor of public law at University College London, in evidence to the Public Administration and Constitutional Affairs Committee on 31 October, highlighted the concern over what he describes as the double-hatted nature of the UK Government, meaning that they simultaneously represent the UK-wide Government and the Government of England. I raised that point during my speech on our first day in Committee. As I said earlier, this raises a concern not only about conflicts of interest, but about the fact that the subcultures, networks and assumptions of large Departments, including the Department for Environment, Food and Rural Affairs, are focused, almost unconsciously, on England. That has been a recurring theme throughout Select Committee evidence sessions. As I said with reference to the Department of Health, this is a long-standing difficulty.
In evidence to the Brexit Committee on 17 October, Laura Dunlop, QC said:
“In our prototype framework—whatever our internal market is destined to look like—at the moment, there is one party in the discussions that is wearing two hats, and that is the UK Government, who are also required to speak for England. That is a significant difficulty, in my view.”
The hon. and learned Member for Edinburgh South West and I were there to hear Laura Dunlop say that. On 24 October, Dr Viviane Gravey told the Welsh Affairs Committee:
“What I mean by giving greater powers is that during that period planned in the Withdrawal Bill, UK Ministers will be able to change the law that has been given back from Brussels, but the devolved”
Governments
“will not. There is then a question of whether any changes made will be in the interests of the whole of the UK or just of England.”
That is the question.
The United Kingdom consists of four countries—four political bodies—not just one. Democracy requires and values all voices, not just one. Devolution demands that all countries within the United Kingdom have a say in the future, not just one. Members will have the opportunity today to stop this Westminster power grab. If all the Opposition parties turn up to vote, and vote together in the interests of the devolved countries, we can stop this encroachment on Welsh sovereignty and put all four UK countries on an equal footing.
Mr David Jones
It is a great pleasure to be asked to address the Committee as a lonely Welsh voice in this Scottish enclave south of the Gangway. I should like to say how impressed I am with my new Scottish colleagues, and with the way in which they stand up for their constituencies and for Scotland.
It was always predictable that clause 11 would be one of the more contentious clauses in the Bill, given that it impinges on the devolution settlements that have been created over the past 20 or so years. When we consider what the clause seeks to achieve, it is important to consider the history of devolution in this country. In the case of Scotland and Wales, it was implemented as a consequence of the two referendums that were held in 1997. That was some years after the United Kingdom became a member of what was then the European Economic Community. Indeed, all our devolution legislation was put in place after we joined. It is important to remember that, at the time of accession to the European Union, devolution was not contemplated.
It was in the context of our membership of the European Union that the various devolution settlements were crafted. The powers that were conferred on the new devolved bodies are consequently subject to overriding EU law, regulations and common frameworks, the principal purpose of which was to protect and preserve the integrity of the European single market, as we have heard repeatedly today. It is a fact, however, that as a consequence of the protection of the European single market, those reservations have operated to protect what I am quite happy to call the UK internal market—
Pete Wishart
Does the right hon. Gentleman think that France has a French internal market and that Germany has a German internal market, or are they just national economies? Does Perthshire have a Perthshire internal market?
Mr Jones
I have never been to Perthshire but I am sure that it is a delightful place. In this country, we have four countries and three devolved bodies, which have competence in the area of economic development, among other things. The hon. Gentleman and I might be at odds on this, but I take the view that there is a United Kingdom internal market. He can come to the contrary conclusion if he wishes.
Hywel Williams
I am intrigued. Can the right hon. Gentleman identify anyone who has spoken in the House today who has argued against having a UK internal market?
Mr Jones
No, but I can identify several people who have denied its existence. Clause 11 seeks to ensure that the integrity of the internal market is not compromised, by preserving the restrictions that prevail in respect of EU law.
It is quite clear that the proposals in clause 11 have caused immoderate anger in certain quarters. The SNP Scottish First Minister and the Labour Welsh First Minister actually joined forces to describe what is proposed as a “naked power grab”, a phrase which has been repeated again and again during this debate, but the fact is that it is nothing of the kind. The competences that are the subject of the retention proposed by clause 11 have never been exercised by the devolved authorities since devolution was first implemented. In practical terms, not one iota less power will be exercised in Belfast, Cardiff or Edinburgh than in the current state of affairs. If there is a diminution in power, it is very much theoretical.
Since the devolved bodies first condemned the proposals in the summer, it is fair to say that their position has moderated considerably. However, I find it intriguing that that position does not appear to have moderated in this House. Indeed, certain Opposition representatives seem to be at odds with their own parties in the devolved areas. Preserving the UK internal market is, after all, extremely important to every constituent part of the United Kingdom. Some 63% of Scottish exports go to the rest of the UK. For Northern Ireland, the equivalent figure is 60%. In Wales, it is a bit less at 49.2%, but I suggest that that is due to the distorting effect of Airbus exports, which form a disproportionately large element of the Welsh economy. Whichever way one looks at it, it is therefore important to guard against any policy divergence that might imperil or damage the internal market. It is also important to ensure that the UK Government have the power to conclude trade agreements with third countries post-Brexit, free from concern that the devolved authorities may be legislating in a manner contrary to the obligations contained in such agreements.
We have heard this evening that the provisions of clause 11 affect approximately 111 devolved competences in Scotland, 64 in Wales and an estimated 149 in Northern Ireland. Many of them exist in the fields of agriculture, the environment and fisheries, where it is generally agreed, not least by those who would be closely affected by market distortion, that it is necessary to preserve common frameworks. As my hon. Friend the Member for Berwickshire, Roxburgh and Selkirk (John Lamont) pointed out, we need to look at the individuals who are most likely to be affected by policy divergence. For example, NFU Cymru—the Welsh branch of the National Farmers Union—supports the retention of common frameworks so that the price commanded by Welsh lamb, which is certainly the highest-quality lamb in the United Kingdom, is not adversely affected by differing husbandry practices in other parts of the UK.
The UK Government have always made it clear that the retention of competence effected by clause 11 is intended to be only temporary. Decisions on where competences may lie in the long term will be taken at a later date. I fully agree that that should not take too long, and a Minister should indicate from the Front Bench what sort of timescale they anticipate the Government will adopt when deciding and agreeing with the devolved Administrations on where those competences should lie.
Dr Whitford
That is the problem. There is no timescale. This place is snarled up in dealing with Brexit work, and that pressure will be even greater after Brexit. Those of us from the devolved countries feel that the needs of our farmers and fishermen will be way down the agenda for the devolution work being done here.
Mr Jones
I remind the hon. Lady that I am also from one of the devolved countries, so I understand her point and I understand that a timescale is needed. My right hon. Friend the Secretary of State for Brexit has always made it clear that the devolved authorities will ultimately have considerably enhanced powers after this process is complete.
Mr Nigel Smith has been extensively quoted in this debate, and what he has to say is of some significance. He was the chairman of Scotland Forward, the campaign for a yes vote in the 1997 Scottish referendum, and he makes a businesslike and practical statement of the position:
“simply giving into demands from the devolved administrations for a complete takeover of powers would quickly fragment policy coherence threatening the function of the UK single market and even over time the political integrity of these islands.”
That would probably be quite welcome to certain Opposition Members. Nigel Smith continues:
“It would be necessary to establish where coherence was vital and where policy could be devolved or shared. There are also financial considerations in some areas. Temporarily retaining the powers in Westminster through clause 11 while this is assessed and negotiated seems nothing more than procedural common sense. As a long-standing devolutionist, I support the process on this basis.”
He is entirely right. It is common sense. We need to assess where powers properly lie, but that process should not take too long.
I am heartened that, at the Joint Ministerial Committee in October, the various Administrations agreed to work towards the establishment of the necessary frameworks. Contrary to what the hon. Member for Perth and North Perthshire (Pete Wishart) indicated, it is not a question of the United Kingdom Government imposing where those powers lie; it is a question of agreement. The communiqué that followed the meeting said:
“There will also be close working between the UK Government and the devolved administrations on reserved and excepted matters that impact significantly on devolved responsibilities.
Discussions will be either multilateral or bilateral between the UK Government and the devolved administrations. It will be the aim of all parties to agree where there is a need for common frameworks and the content of them.
The outcomes from these discussions on common frameworks will be without prejudice to the UK’s negotiations and future relationship with the EU.”
It seems to me that the United Kingdom Government and the devolved Administrations are moving positively towards agreement on where those competences should lie, but I stress that the process should be pursued as expeditiously as possible. I have a huge amount of sympathy for those on both sides of the House who have indicated that there is currently a degree of uncertainty. The best way of resolving that uncertainty is by working quickly and co-operatively with the devolved Administrations.
I therefore believe clause 11 should be supported by the House. I endorse once again what Nigel Smith, a practical devolutionist, has to say about the matter. I also believe those who are promoting the various amendments, most of which appear to be aimed at ensuring the powers that are repatriated pass straight to the devolved Administrations, should think again. Without a coherent agreement beforehand, there could be chaos in this country, which is frankly the last thing we want.
My hon. Friend the Member for Harwich and North Essex (Mr Jenkin) made some important points about the wider issue of devolution. We need to revisit the various institutions that operate the devolution settlements in this country. It is fairly clear that the JMC process is not working. It has been honoured by Governments of all stripes more in the breach than in the observance. Indeed, I believe that during the last Labour Government several years passed without a meeting of the JMC. This cannot be right. It is important that the United Kingdom Government and the devolved Administrations should have regular dialogue, one with another. I am not persuaded that that needs to be put on a statutory basis, but it needs to be something more than a chore for the various Administrations. It is important that a dialogue be constantly maintained. We are moving into a new era in this country, a post-Brexit one, and it is important that there should be that constant dialogue and that all Administrations within the UK understand that they all have a duty, one to another, to work positively to ensure the prosperity of this country and its citizens. At the moment, that is not happening and this needs to be revised and reviewed. I do not believe this Bill is the proper vehicle for such changes, but once this process is over we are going to need to look at those institutions again carefully. We need to move into that new era.
Several hon. Members rose—
The Temporary Chair (Sir David Amess)
Order. Before I call the next speaker, I remind the Committee that the debate finishes at 18 minutes past midnight. Many Members are waiting to speak and I want to give the Minister plenty of time to respond to the debate. So unless colleagues keep the speeches to about 10 minutes, there will be any number of disappointed Members.
Joanna Cherry
I rise to support the amendments standing in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), and those that have been drafted by the Scottish and Welsh Governments, which have cross-party support from the SNP, the Labour party, Plaid Cymru and the Liberal Democrats.
I want to dispel a myth emanating from Conservative Members before I look at clause 11 in any detail: the idea that there is some sort of division between the position of my Scottish Government colleagues and the SNP. I can assure those Members that that is not the case and we regularly meet the Scottish Government Brexit Minister, Mike Russell. Let me tell Conservative Members what Mr Russell told a number of Sunday newspapers yesterday. He said that these cross-party devolution amendments are “non-negotiable” and that, if the UK Government want the SNP to recommend support for the Bill in the Scottish Parliament, they must be passed. He continued:
“I don’t want to leave anybody in any doubt, if the Bill cannot be amended—”
as per these amendments—
“there cannot be a legislative consent motion, there cannot be the progress that the government wants.”
So let there be no doubt of the SNP position on this, which is the position of the Scottish Government and of the Welsh Government, and which has the support of the Lib Dems, Plaid Cymru and the Labour party in this Chamber.
It is important to focus on clause 11. We have heard a lot of general rhetoric today, but what we are actually looking at is that clause. I am not going to use my own analysis of it. I am going to use the analysis of much more eminent lawyers than myself. Let me start by briefly declaring an interest, as I am going to quote the views of the Faculty of Advocates in Scotland on the Bill and I am a member of the faculty, although I am no longer practising. It has pointed out that 111 areas were listed as potentially requiring a common policy framework and that the list is too long, its content is too broadly drawn and some of the 111 areas were so imprecise
“as to be incapable of meaningful understanding”.
It said that the proposed approach of this Government to the European Union (Withdrawal) Bill
“threatens to encroach on matters that are already devolved and legislated on by Holyrood under the current settlement.”
That is the view of the Scottish Bar, of which I am a member; I wish I could say they were all members of the SNP, but they are not, as they comprise people from all political persuasions and none.
The hon. Member for Arfon (Hywel Williams) referred to the evidence given to the Brexit Select Committee by Laura Dunlop, QC, who is the faculty’s spokesperson and head of its law reform committee. The Bingham Centre for the Rule of Law has convened a group of experts to look at the Bill, under the chairmanship of the right hon. and learned Member for Beaconsfield (Mr Grieve), who was in his place earlier. It, too, has been extremely critical of clause 11:
“In a constitution where legislative power is divided between the national parliament and devolved parliaments, uncertainty about the division of legislative power undermines foreseeability and predictability about the overall legal framework and is therefore inimical to the Rule of Law.
Clause 11 of the Bill is such a law: it re-defines the scope of devolved legislative competence after Brexit.”
Those are the words of a group of expert lawyers convened by the Bingham Centre for the Rule of Law. It is not an SNP partisan view, but the view of a cross-party group of lawyers.
Pete Wishart
My hon. and learned Friend is absolutely right. The Scottish Affairs Committee has not heard one dissenting voice to the fact that clause 11 is thoroughly bad for devolution. It is not just all the constitutionalists and all the legal experts who agree with that; the Conservatives agree with it too. They do not believe that clause 11 is fit for purpose. What can she do to encourage them to join us this evening to ensure that we make progress and change the clause significantly?
Joanna Cherry
I am encouraging those Conservatives to listen to the experts who have given evidence to the various House of Commons Committees,whether orally or in writing. I have mentioned several of them. May I mention what Dr Jo Hunt, from the University of Cardiff, said to the Exiting the European Union Committee? She said:
“This should be a profound constitutional moment, where the nature of the UK is properly addressed, and a debate and discussion is had about what the United Kingdom is for and what the roles of the various parties in the United Kingdom are. We have had any number of Select Committee reports from the Commons and the House of Lords dealing with interinstitutional relations, intergovernmental relations, and devolution”.
Now is the moment, when we are allegedly taking back control, to look carefully at how we distribute those powers within the nations of the United Kingdom. We should not simply bring them back in one box from Brussels, rest them at London and leave it to London to decide when and if Edinburgh and Cardiff ever get sight of that power.
There is a terrible irony here. Many Brexiteers went on at great length about how Brussels imposes its will on the United Kingdom, but that is actually a fundamental misunderstanding of how the European Union works. As has been explained, it works by a number of sovereign nations pooling their sovereignty and participating in a process of decisions. If anyone on the Conservative Benches really is a Brexiteer who believes in taking back control and does not like the way, in their opinion, Brussels has imposed on the UK, surely that should make them even more motivated to ensure that the centre—Westminster—does not impose on the constituent nations of the UK.
Luke Graham
We have all raised concerns about clause 11, and we are trying to constructively address them. The hon. and learned Lady makes her position about devolution clear, but she also talks about a chance to refresh the whole constitutional settlement for the United Kingdom. Will she work constructively with Members on the Government Benches to address issues such as air quality, which is devolved? It would be better if we had a joined-up UK approach and if that were reserved with climate issues and other such issues, so that we look effectively to get the best outcome for our constituents and not just go on to political dogma.
Joanna Cherry
The Scottish National party has always worked constructively with all parties to ensure that the principle of subsidiarity is respected within these islands. However, what we are not in the business of doing is simply lying supine while all these powers are brought back from Brussels and left here at Westminster, with absolutely no time limit—[Interruption.] The hon. Member for Stirling (Stephen Kerr) may not like it, but this is the weight of the evidence that we have heard about the effect of clause 11. It is not my view; it is the view of many others.
Several hon. Members rose—
Joanna Cherry
I will continue my point.
We are told that it is imperative for everything to be imposed on Scotland, Wales and indeed Northern Ireland from the top down, because we have a UK single market.
Joanna Cherry
No, we have heard a lot from the hon. Gentleman. I only have a little time left, and I want to develop my point about the single market, because it is very important. I am indebted to the Scottish blogger and writer Paul Kavanagh—better known on these Benches as the Wee Ginger Dug—for my thoughts on this matter. He has pointed out that there is no such thing as a UK single market. At the moment, the United Kingdom is a unitary state, and what exists in the UK is the internal market of a unitary state. A single market refers to the situation where there are several distinct and discrete national entities coming together from the bottom up in a mutually agreed and negotiated regulatory framework. That is what the EU is at present. It is not what we have in the United Kingdom at present. Indeed, after Brexit, if this Bill goes through unamended, the unitary state of the United Kingdom will be even more centralised than it is at present.
At the moment, the EU states decide collectively what regulations they want to govern the EU single market. On the basis of the Bill as currently drafted, what will happen is that Ministers of the Crown—by the way, that does not include Scottish Ministers; the definition just talks about Cabinet Ministers—will decide on these frameworks, and they will be imposed on us.
I am conscious of what you said, Sir David, so I will bring my remarks to a close, but I will give way to the hon. Gentleman.
Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)
On the definition of what constitutes a single market and a unitary market, my interpretation is that any marketplace’s singularity is simply defined by the friction in the trade and the commerce carried out within it. By definition, it is not really something that we can simply sign up to or leave. It is about the extent to which there is a commonality of regulatory and trading arrangements, and cultural and institutional relationships. Therefore, this definition does not really hold water in that respect.
Joanna Cherry
The distinction I am drawing is between a single market and a unitary market. I am saying that the European Union is a single market because it is a collection of sovereign states that come together and participate in making common regulations. The United Kingdom, as framed by this withdrawal Bill, will not be such a single market. It will be a unitary market where the regulations and the frameworks are imposed from the top down. That is the distinction that I seek to make.
Joanna Cherry
As I said, I am drawing my comments to a close.
I want to address one of the many points we have heard from the Government Benches. I think it was the hon. Member for Aberdeen South (Ross Thomson) who said that he is upset and disappointed that the issue of independence is still on the table. Well, I will tell him why it is still on the table; today gives us a good example. The majority of people at the last Scottish election voted for Members of the Scottish Parliament who want another independence referendum—it is called democracy —and the Scottish Parliament itself has voted that there should be another independence referendum if it is necessary because of the Brexit process. But the reason why so many of us in Scotland are interested in the notion of independence really arises from the current crisis in which the United Kingdom finds itself. I will finish by quoting the First Minister of Scotland, who today said:
“Right now, Ireland is powerfully demonstrating the importance of being independent when it comes to defending your vital national interests.”
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
This debate concerns all constituent countries of the United Kingdom, but I will reserve my remarks to Scotland as I represent West Aberdeenshire and Kincardine.
As a Member of Parliament of the 2017 vintage, which is a very fine vintage, I am finding—along with everyone else, I am sure—that one of the most common questions asked of me on the doorsteps and in constituency surgeries is, “How did you vote in the referendum on membership of the European Union?” On such occasions, I deploy one of two answers. I either say, “I’m terribly sorry that I did vote to remain, but I promise you that the United Kingdom is leaving the European Union, and we will make a success of it”, or I answer, “Yes, I know. Like you, I voted to remain, so I’m sorry, but the fact is that we are leaving the European Union. And, you know what? I think we will make a success of it.” That is very easy. Being a Scottish Member of Parliament, another regular inquiry is whether I believe that powers returned from Brussels should be directly transferred to Holyrood. It is not a simple question. [Interruption.] No, it is not, and it requires more than a simple answer. Unfortunately, that is hard to get across on the doorstep, or even in this Chamber.
Patrick Grady (Glasgow North) (SNP)
Let me make it simple for the hon. Gentleman. The founding principle of the devolution settlement is that things that are not reserved are automatically devolved. Is it or is it not his belief that clause 11 fundamentally undermines that principle?
Andrew Bowie
Like my hon. Friend the Member for East Renfrewshire (Paul Masterton), I believe that changes will have to be made to clause 11 as it stands, but that we cannot support the amendments tabled by the SNP as they would fatally undermine the United Kingdom and the common market that we all share.
Let us look at the facts of the devolution settlements. The current devolution settlements reflect the UK’s membership of the European Union. They provide that devolved institutions cannot act or legislate incompatibly with EU law. This has meant that, while we have been within the EU, we have had overarching laws and frameworks across the UK, which has meant that businesses in the UK can trade with one another knowing that they share agreed standards and that we have agreed approaches on how to manage our shared resources. Ultimately, it has meant that Britain can enter into international agreements knowing that our whole country can meet our obligations. That is vital. It is complex and hard to explain to people when we are out knocking on doors, but it is vital that we try. The future of our internal market, which exists, and of our United Kingdom depends on our making a success of Brexit, and that means making a success of devolution and the settlement for our nations and regions.
Ian Murray
The hon. Gentleman is talking a lot about being on the doorsteps in his constituency. When his constituents ask him whether he thinks clause 11 is deficient and whether he would like it fixed, does he explain how it is deficient and how he would like it fixed?
Andrew Bowie
I thank the hon. Gentleman for that question. I have to admit I have never been asked specifically on the doorstep how I think clause 11 is deficient, but when I am I will explain the issue to people, and if the hon. Gentleman holds on, I will get to that in my speech.
Let us be clear: this is not a power grab. It is part of a process through which we must work to achieve the best possible settlement to ensure continuity for business, the integrity of our internal market, and the future success of our United Kingdom. We must, and we will, make a success of this process.
Pete Wishart
Is the hon. Gentleman actually saying that if, for whatever reason, clause 11 was not passed or was significantly amended, what he refers to as the UK’s single market would be done away with?
Andrew Bowie
I am not sure I actually understand the premise of the question. I will give way again if the hon. Gentleman would like to explain.
Pete Wishart
It is quite straightforward. The hon. Gentleman is alleging and suggesting that, for some reason, if clause 11 were significantly amended, his internal market would be at risk. Does he actually believe for one minute that, if clause 11 were rejected, his internal market would absolutely disappear?
Andrew Bowie
I am arguing that, if we agreed to the provisions set down by the Scottish National party and the other Opposition parties, it would be fatally undermined and at risk.
Just to prove my point, we all know that making a success of Brexit and protecting and strengthening our internal market are not in the interests of the Scottish National party, whose raison d’être remains the destruction of our United Kingdom. Conservative Members are committed to making these things work and to making a success of this exciting new chapter in our island’s story for business and for peoples from Inverbervie to Ipswich, and from Banchory to Bognor.
That is why the UK Government are working tirelessly with the devolved Administrations in Cardiff and Edinburgh, and with the various parties in Northern Ireland, to make sure that when we leave the European Union in 2019, the laws that protect the integrity of our market, and the common frameworks that ensure parity and access across Britain, remain the same as they are today. That will involve compromise, but surely even the greatest hardliner would agree that it makes no sense for each of the four nations of our United Kingdom to have different rules and regulations or different regulatory bodies for packaging, animal welfare or aircraft noise, for example.
If we get this right, little will change for most people and most businesses. For the fisherman, it will still be Marine Scotland responsible for implementing rules and regulations on the quayside. For the farmer, it will still be the Scottish Government making a mess of their support payments. But instead of Brussels being responsible for overarching frameworks or new laws, or for negotiating trade deals, fishing quotas and common agricultural payments, it will be the sovereign United Kingdom Parliament in London, which is directly responsible and accountable to the British people.
Andrew Bowie
I will not give way, I am afraid, given that I have to wrap up soon.
As things stand today, it is a fact that, thanks to the actions of this Government, the Scottish Parliament is now one of the most powerful devolved legislative Assemblies in the world, with powers over—[Interruption.] It has powers over justice, education, health, transport, the environment and, now, taxation and elements of social security. The jury is still out on whether that is a good thing, but that may be to do with the parties that have been in charge of those regulations, rather than the powers themselves.
Far from Lord Robertson’s claim that devolution would kill nationalism stone dead, we are about to enter our 11th year of nationalist Government in Scotland, so I remain worried for our Union. For me and the people of the north-east of Scotland, which I have the huge privilege to represent, I am afraid that, far from the renewing or revitalising experience promised by the architects of devolution in 1999, the reality of devolution has been cuts, tax rises, a failing education system and the perception of a central-belt bias in all decision making.
However, just because devolution in its current form has not worked for my constituency or my constituents, that does not mean that it cannot. The point is that, as we today debate new powers that might be going to the Scottish Parliament, it is high time that the current Administration in Holyrood looked at their record in managing the powers they already have and the effect that has wrought on the north-east.
This afternoon and this evening, we have heard a lot from the SNP about power grabs, a betrayal of the Scottish people, Scotland being dragged out of the EU against its will and how we are undermining the devolution settlements, when, of course, nothing could be further from the truth. We all know that concessions are going to be made on both sides of the Committee on this argument. We all know that the Scottish Parliament will have sweeping powers under common UK frameworks on a whole raft of areas.
I will support clause 11, and I will vote against the Opposition provisions. As my hon. Friend the Member for East Renfrewshire said earlier, amendments to clause 11 will be required: we do require a legislative consent motion if we want the other place to pass the Bill. I think that all sides appreciate that. That is why we expect movement on the issue this month at the JMC. However, this is a process. The Opposition amendments would undermine our United Kingdom and threaten our common market. That is why I cannot support them.
Neil Gray
I am grateful for the opportunity to speak in one of the most important constitutional debates impacting on Scotland since the re-establishment of the Scottish Parliament. The whole basis and foundation of how Scotland is governed is being discussed today. We should not underestimate how important that is; we cannot allow today to be politicked away or the issues to be kicked down the road. We must consider what is before us carefully and in a non-partisan way. Cross-party working has already started in the tabling of amendments, which have been drafted jointly by the Labour Welsh Government and the Scottish National party Government.
Anyone who understands politics in Scotland will appreciate that Labour and the SNP do not often agree on constitutional issues; that is not a flippant point, but a serious one, on which Ministers might reflect. I fully support amendments 72, 164, 165 and 183 to 188, in the names of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), my hon. Friend the Member for North East Fife (Stephen Gethins) and the hon. Members for Edinburgh South (Ian Murray) and for Cardiff South and Penarth (Stephen Doughty). They all aim to protect the devolved settlements of both Wales and Scotland. Indeed, just about every speaker this evening has expressed great concern about clause 11 as it stands, perhaps with the honourable exception of the hon. Member for Aberdeen South (Ross Thomson) —even the right hon. Member for Clwyd West (Mr Jones) highlighted that clause 11 impinges on the devolved settlements. That is where my concern lies with the so-called UK frameworks.
I understand that it would be sensible in some areas for there to be agreed principles across these isles—I think that of a future independent Scotland’s relationship with the rest of the UK, so why would I not think it now?—but for intra-national frameworks to be strong, effective and deliverable, they need to be agreed on the basis of mutual partnership, without a dominant and dictatorial director.
Neil Gray
To be fair, the hon. Gentleman has had a good say this evening.
I am not the only one concerned about the direction of travel that the UK Government appear to think we are taking. NFU Scotland has, as I am sure Ministers will be aware, a series of red lines regarding Brexit, many of which are pertinent to today’s debate. I will pick a few out: it wants a replacement for the common agricultural policy that will support the industry in the medium to long term; agriculture must continue to receive the same level and proportion of funding as it does now in the post-2022 landscape; and crucially for tonight, although the Treasury should finance the new policy on a UK-wide funding basis, NFU Scotland says that
“Any approach that adopts a ‘Defra-centric’, one-size-fits-all policy on to the devolved nations would not be acceptable.”
That is why it is crucial that powers in devolved areas are returned to the devolved nations, not held centrally. To do anything other than devolve and then seek to agree a framework agreement in devolved areas would undermine devolution. It would set a dangerous precedent if the UK Government set the terms of devolved policy and then left it to the devolved nations to fill in at the margins. That point was reiterated by Professor Michael Keating when he said the Tory plan would create a “hierarchical model of devolution” where
“the broad principles are set in London and the details filled in across the nations.”
That is not devolution, but executive management. It is anti-devolution, and would rip up the terms and principles of the Scotland Act 1998.
Brexit already poses potentially huge challenges for Scotland economically and constitutionally. Keeping the Bill as it stands in this area would not just be a hard Brexit—it would be a constitutionally regressive Brexit. At this stage, it is worth returning to NFU Scotland’s Brexit priorities: that Scottish and UK agricultural and food products must have frictionless access to existing and new export markets, and that the domestic market must not be exposed to cheaper imports that lack Scotland’s exemplary animal welfare and environmental standards. Continued access to a skilled and competent workforce, within both the farming and food processing sectors, must be secured as a priority. Continued, targeted farm support will be vital, not least through an unknown transition period. This support must be refocused on action-based measures to bring about improved productivity across sectors while delivering environmental benefits and safeguarding and enhancing product standards—the bedrock of a thriving farming, food and drink sector for the post-Brexit era.
I am not closed to the idea that there may be opportunities from Brexit should the UK Government listen and act in a way that is inclusive and bipartisan, but that has not happened to date, no matter what Ministers try to say. The Scottish Government’s compromise proposals have been dismissed and ignored, and that is why we are at today’s crucial juncture. [Interruption.] Conservative Members, some of whom represent farming constituencies, ought to listen to this. NFU Scotland shares the Scottish Government’s desire for continued membership of both the single market and the customs union. Perhaps now the UK Government will realise that they need to allow for tailored arrangements to allow varying national priorities across these isles to be reflected.
How topical it is that we should be discussing aspects of devolution relating to Brexit as we learn, this very day, of what the UK Government appear to be willing to concede in their negotiations with the EU regarding Northern Ireland. In essence, they are conceding that the compromise plan that was presented by the Scottish Government last year for a bespoke deal for Scotland in retaining single market and customs union membership—a plan dismissed as impossible—was on the table earlier for Northern Ireland and has now been discussed. There will be no hard border on the island of Ireland, in summation. It appears that the DUP has put the brakes on that—the irony is there for all to see. What a precedent that sets.
It is time that the UK Government acknowledged that Scotland, as well as Northern Ireland, has the right to expect a bespoke Brexit deal, and that there is nothing precluding a deal that protects Scotland’s interests, as we have been arguing all along. Clearly, for Scotland, that means the ability, for example, to have a different immigration system, and continued membership of the single market and the customs union. Sadly, though, that does not appear to be the path the UK Government are willing to follow, regardless of the consequences either for Scotland or for the future of the United Kingdom. Why not? I fully understand why Northern Ireland needs a bespoke deal. I have no issues with the UK Government pursuing that—in fact, I congratulate them on it—but why do Scotland’s needs matter less? To deny Scotland the same opportunity as Northern Ireland is being afforded would be ridiculous and indefensible. To take back powers from the EU that are clearly devolved competencies and have them sitting here at Westminster for some future divvying-up shows a lack of political or critical thinking, shows a lack of trust or respect towards the devolved nations, and is—quite frankly—lazy. To refuse to look at fresh areas of devolution like employment law to help Scotland deal with Brexit in the most flexible way is equally untrusting, disrespectful, and lazy.
The UK Government must understand the concerns that are being raised. They must not want to rip apart and fundamentally undermine the devolved settlement. Surely they must be willing to engage and accept amendments so as to make Brexit, if not politically palatable, at least reasonable for the devolved nations. I hope that all Members representing Scottish constituencies will support the amendments to be voted on later tonight.
Stephen Kerr
I will—[Interruption.] Yes, I am going to speak. I know that SNP Members will be very pleased about that. I will keep my remarks short because a number of people want to speak, but I want to respond to the idea that has been traded pretty commonly in the past couple of speeches about the imposition of a devolution settlement vis-à-vis the frameworks. The Scottish Affairs Committee report quotes the Secretary of State for Scotland, who said:
“A UK framework is not a framework that the UK Government imposes; it is a framework that is agreed across the United Kingdom.”
I believe that that is a definitive expression of the Government’s policy in relation to the nature of frameworks and how they will be achieved.
Every time we have a debate in this House in which devolved powers and Brexit are mentioned, the Scottish nationalists go crazy—[Interruption.] Yes, berserk; that is a good word. A number of contributors, including the hon. Member for Airdrie and Shotts (Neil Gray), have spoken positively about how we can work together to create common ground and lift the issue from the trenches of political warfare in which, too often, the SNP wish to put it.
Ian Murray
The hon. Gentleman is one of the 12 new Scottish Conservative MPs. Many of his colleagues have already said that clause 11 is deficient, and they would like it to be amended. Will he tell us whether he thinks it is deficient, and how he would like it amended?
Stephen Kerr
I will come on to that point, if the hon. Gentleman will let me make some progress through my speech.
I remind the Committee that despite what we heard to the contrary, the Conservative Government delivered additional powers to the Scottish Parliament in 2015 and 2016 in fulfilment of their vow, making it the most powerful devolved Parliament in the world. That was a Conservative promise made and kept. The SNP wants to create a crisis, and I hope that we in the Conservatives will continue to be reasonable in our approach to the issue.
Andrew Bowie
Does my hon. Friend agree that SNP Members have absolutely no interest in our making a success of Brexit, because their only aim is to break up our United Kingdom?
Stephen Kerr
I thank my hon. Friend for his intervention. I was about to say that the SNP is like a collection of 35 carbon copies of the famous Rikki Fulton creation, the Rev. I. M. Jolly. SNP Members sit there on the Benches, depressing the nation and bringing their grim worldview to the people of Scotland. Being so cheerful keeps them going. They talk themselves and Scotland down, and they imply that our Scottish entrepreneurs, our businesses and our communities will be unable to cope with any change and unable to take advantage of the opportunities that the hon. Member for Airdrie and Shotts mentioned and that will undoubtedly arise as we leave the European Union.
Stephen Kerr
I thank the hon. Gentleman for bringing the Fraser of Allander Institute to the attention of the Committee, because the institute also points out that the perpetual threat of a second independence referendum is having a dragging effect on the Scottish economy.
Mr Sweeney
The hon. Gentleman referred earlier to the Scottish Parliament being the most powerful Parliament in the world, and I am aware that he opposed its initial creation but now recognises its benefits. The creation of the Scottish Parliament has resulted in regulatory divergence between parts of the United Kingdom. Does that fact not undermine the whole logical position of the Tories’ argument against our amendments? Surely, it has already been established that divergence exists but there is still a viable single market in the UK.
Stephen Kerr
In my opinion, divergence brought about by devolution enriches the fabric of the Union, but the divergence we are talking about could, in a very real sense, undermine the integrity of the United Kingdom’s common market.
I have had emails from constituents that regularly begin with the words: “I believe that Brexit should strengthen devolution for Scotland, not weaken it.” Many other Members will have had similar emails. I want my constituents to know that that is exactly my position. I want a Brexit that strengthens the democracy of our country and strengthens the devolution settlement for Scotland. I ask Ministers, in the summing up at some point tonight, to make it clear again that the Bill guarantees the existing devolution settlement and the existing powers of the Scottish Parliament and promises that there will be more powers to come.
In regard to the tone and manner in which this issue is discussed and debated, I wish to pay tribute—SNP Members will not be surprised to hear me say this—to Ruth Davidson, Professor Adam Tomkins and others, who have worked as honest brokers in this process, by working with the Scottish and UK Governments to bring them together to build consensus. I believe consensus is vital for the new constitutional settlement we need to reach.
I welcome the recent change of tone from the Scottish Government, especially from the First Minister. When she came out of Downing Street on her last visit to London, I thought she had some very positive things to say. As a Scot, I welcome that: I welcome the fact that the First Minister of my country is willing to be a positive contributor, rather than a simply a detractor.
I want take this opportunity to express my full confidence in the approach and style of the First Secretary of State and the Secretary of State for Scotland, who are leading the UK Government in the very important talks with the Scottish Government. I have great confidence that there will come out of the discussions an agreement that will be sustainable because it will be built on consensus. Consensus is not gained by shouting matches or feigned indignation—we see quite a lot of feigned indignation in this place—and all I would say is thank goodness the SNP leadership in Edinburgh has more maturity than some of the MPs it sends to London. I remain hopeful, and I am optimistic.
Stephen Kerr
I was just about to deal with the hon. Gentleman’s previous intervention, but I will sit down.
Ian Murray
I was about to ask the hon. Gentleman when he was going to talk about the deficiencies in clause 11 and what he would do to sort them out.
Stephen Kerr
I will say this much: it is not that I do not understand people’s concerns about clause 11, because I share some of those concerns. As the intergovernmental discussions progress and the Bill returns to this House, as it will, before it goes to the other place, it is very much my hope that there will be some greater detail in clause 11 to help all hon. Members to have a degree of confidence in its intent.
We are talking about trust, or the lack of trust, and that issue is keeping us from working out a satisfactory agreement. Steps must be taken to underpin the trust that needs to exist on both sides—the UK Government and the devolved Administrations. The UK Government will have to demonstrate trustworthiness in the way that the Bill is amended, as it must be, and the Scottish Government will have to show trustworthiness by committing themselves to the outcome of these talks to the extent that they will publicly state their support for the passage of a legislative consent motion in the Scottish Parliament. To me, that is what trust looks like.
Deidre Brock
If the UK Government genuinely wish to show willing towards the Scottish Government and their concerns about the Bill and clause 11 specifically, does the hon. Gentleman not think that powers should be devolved directly to the devolved Administrations first and then that frameworks should be agreed? One wonders what the UK Government are actually afraid of. The hon. Member for East Renfrewshire (Paul Masterton) spoke about powers being devolved when the UK Government think it is safe to do so. Why is there such concern about not sending those powers to the Scottish Government?
Stephen Kerr
There are, as we have discussed, either 109 or 111 powers. The Public Administration and Constitutional Affairs Committee report lists 111. There is an issue of trust that we need to address to underpin any eventual agreement. The point is that the Bill will need to be amended. Those amendments will need to reflect where the powers will eventually rest, and whether they will go straight to the devolved Administrations on the day we leave the European Union, or if some will be subject to mutual agreements—memorandums of understanding—that will create the frameworks to support the functioning of the UK’s internal market. I hope very much that the Government will bring forward some detail to add light with regard to those issues.
Ian Murray
Like many of his colleagues, the hon. Gentleman is therefore admitting that clause 11 is deficient. He is almost but not quite telling us how he might fix it, but even so he is going to vote in favour of it this evening.
Stephen Kerr
Yes, and that is no surprise, because I sit on the Conservative side—the Government side—of the House of Commons. I believe and trust in the Government. I believe that Ministers will deliver on a settlement. I do not know why that is such a surprise to Opposition Members.
Jenny Chapman
The hon. Gentleman has told his Front-Bench colleagues that he will vote with the Government this evening but, should the Bill return unamended in this House, what would be his inclination on Third Reading?
Stephen Kerr
In common with other colleagues who have spoken today, I expect there to be amendments, and when those amendments come to the House in due course, it will be because everyone involved in this process, including the UK Government and the devolved Administrations—the Scottish Government are my immediate interest—will have put on an adult head because there is so much at stake for our country. I happen to think that one of the most positive contributing factors to the change of climate has been the Scottish Affairs Committee’s excellent report, which is a step in the right direction.
Ian Murray
On a point of order, Sir David. I am slightly confused about the process in this Chamber. The hon. Gentleman is making a fine speech, but he keeps talking about amendments that will result in him supporting the Bill. Have you been notified of the Government tabling any amendments to clause 11?
The Temporary Chair (Sir David Amess)
That is not a point of order; it is a point of frustration.
Stephen Kerr
Let me press on, because I did say that I would be brief, and I am in danger of not keeping that promise.
I insist on the Government doing what has to be done to ensure that there is no disruption to the UK home market. I want to be clear that when I say the UK, I mean Scotland, England, Wales and Northern Ireland. I do not want a Brexit that weakens the United Kingdom politically or economically. I am a Unionist. I do not want to see the creation of needless barriers that hinder the frictionless function of Scotland’s most important marketplace, namely the rest of the United Kingdom. The process should avoid any unwarranted points of difference that make it more difficult to trade throughout the UK, because that would inevitably affect business, which would inevitably affect jobs.
Common standards will be needed for the common market within the UK, and those standards will need to be set democratically and transparently. Businesses are looking for leadership on these matters as much as they are looking for harmony throughout the UK single market. It is time to step up to the plate in that respect. Frameworks for the operation of the UK single market must be set at a UK level on the basis of agreement across the United Kingdom, including with the devolved Administrations, and it is up to us as politicians to rise to that challenge.
I am not calling for a whole raft of complex arrangements, because I do not think that would help anything, but we do need some jointly agreed common frameworks. I acknowledge and welcome the Scottish Government’s positive approach towards that end. I believe that the two Select Committee reports that were published in the last couple of weeks have been hugely helpful to the aim of bringing about the co-operation and partnering needed between Scotland’s two Governments.
Ronnie Cowan (Inverclyde) (SNP)
Thank you, Dame Rosie. I shall attempt to keep my remarks within the time limit handed down by the Chair, at least 20 minutes ago.
As a member of the Public Administration and Constitutional Affairs Committee, I have been in the privileged position of being able to talk, both formally and informally, with constitutional and political experts about many things, including clause 11. As part of the process of formulating our latest report, the Committee’s Chair, the hon. Member for Harwich and North Essex (Mr Jenkin), and I travelled to Edinburgh and took evidence from panels of experts over two days. It was an enlightening and informative experience.
Under clause 11, a potential 111 powers that could be devolved to Scotland will be held at Westminster until such time as the UK Parliament sees fit to devolve them. The UK Government’s stance is, “Trust us; we’ll do the right thing.” And trust them we have over the years: we trusted them to deliver the Calman report but they did not; we trusted them to deliver on the Smith commission but they did not; we looked to the Sewel convention and we saw right through it; and we listened to, and were influenced by, a vow that was not a vow.
In September 2014, the then Prime Minster David Cameron told us that we were a “family of nations”. We were told that Scotland could lead, not that the Government would attempt to put a lead on Scotland, but every amendment requested by SNP MPs, who were democratically elected to represent the citizens of Scotland, was voted down. When we voted to stay in the EU, our views were ignored. When we asked to sit at the table during the negotiations, we were snubbed. I can assure the Minister that the words “the cheque is in the post” and the promise that you will respect me in the morning will not work any more.
I am well aware of the cold, hard fact that the UK Government do not have to do anything, but Scotland is not a faithful hunting dog standing at its master’s heel, waiting on its orders. Scotland in the Union is a concept rooted in the past. The ties that bind us come from, in part, a shared history—a history of conflict and conquest—but the sun set on the empire a long time ago. It might come as a surprise to some, but 59 colonies have walked away from the empire and, as a new dawn rises, so does Scotland. We want a different future from the one set out for us, but Scotland cannot choose its own future when we have to seek permission to do so.
Clause 11 does not set out a timetable for transition. Professors Richard Rawlings and Alan Page have both raised concerns that clause 11 is described as a transition agreement, but that there is no provision for that in the Bill. Despite that, we are currently designing our Scotland. Civic Scotland, combined with academia and business, is already coming together to design the country we want to live in. Discussions in think-tanks and at public meetings about the Scotland we want to be are common occurrences. There is a growing awareness that Scotland, with the right powers, can reform our energy business, banking sector, and agriculture and fishing industries.
We could even negotiate our own trade deals, like Norway, Iceland and the Faroe Islands do. The Faroe Islands negotiate their own trade deals because the Danish Government respect and trust them. We could each define our own future and still be trading partners and valued neighbours, while continuing to help and support each other, but only if that is achieved through mutual respect for each other’s sovereignty. And there is the rub: clause 11 shows no respect or trust for Scotland or any of the devolved authorities.
Dr Tobias Lock, a senior lecturer at Edinburgh Law School, has said:
“The European Union (Withdrawal) Bill will result in a shift in balance between the powers Westminster has in practice and the powers Holyrood has in practice with Westminster’s powers being augmented and Holyrood's staying the same.”
That concern is shared by Professor Nicola McEwen, professor of territorial politics at the University of Edinburgh. She identifies that clause 11 is fundamentally a problem of trust. The UK Government do not trust the devolved Governments to refrain from using repatriated powers to create policy and regulatory divergence that might harm the UK’s internal market and create problems in trade negotiations. This, she argues, overlooks the considerable constitutional authority that the UK Parliament already retains over market regulation, trade, and the making and implementation of international treaties. For their part, the Scottish and Welsh Governments do not trust the commitment of the UK Government to devolve repatriated powers after Brexit and/or to agree and govern UK common frameworks on a genuinely co-operative basis. Once the existing imbalance has been augmented, when will it be realigned?
Scotland, if given the right powers, could negotiate with the European economic area and European Free Trade Association to seek what is best for Scotland but not detrimental to the rest of the UK. However, we are hamstrung by a UK Government who are scared of their own shadow, constantly looking over their shoulder and wondering from where the next challenge or crisis will emerge. We have a UK Government propped up by bluster and buffoonery.
Individuals may be protected by personal wealth that generates self-confidence and self-assurance, and supports a “devil may care” attitude—one that nudges us forward, assuring us that it will be all right on the night—but the vast majority of people in the UK are less well protected from the economic turmoil that lies ahead. They have concerns about jobs, pensions and visas. They have rightly turned to the UK Government time and again for reassurance, but their concerns are not being addressed. All that has been offered is a sickly mix of jingoistic imperialism. The Scottish Government wish to bring clarity and seek the powers to govern responsibly, but clause 11 does not provide that authority or opportunity. It must be amended forthwith, and the powers due to the Scottish Parliament—powers that will be best used by the Scottish Government, in the best interests of the citizens of Scotland—must be repatriated to the Scottish Parliament immediately after the UK leaves the European Union.
The Parliamentary Secretary, Cabinet Office (Chris Skidmore)
I rise to support clause 11 and schedule 3. Let me say at the outset how grateful I am to all Members for their contributions to the six-hour debate that we have had so far today, and for the thoughtful consideration that has been given to this part of the Bill. I assure the Committee that I shall listen carefully to, and take very seriously, all the views that are expressed on these issues.
The Government have been clear about the fact that the Bill is about continuity, certainty and control. That applies equally, and without exception, to people in businesses in all parts of the United Kingdom. Clause 11 is about delivering certainty while guaranteeing all the existing powers of the devolved institutions. The current devolution settlements reflect the UK’s membership of the EU, and on that basis, they provide that devolved institutions cannot act or legislate in a way that is incompatible with EU law.
Ian Murray
I apologise to the Minister for interrupting him so early in his speech. Many members of his own party have said that clause 11 is deficient and requires amendment. Does he believe that, and, if so, how does he intend to amend it to make it less deficient?
Chris Skidmore
I will set out the Government’s position in due course during my speech. [Interruption.] The hon. Gentleman intervened within 30 seconds of the beginning of my speech, and he is not accepting the answer that I have barely been able to give. I hope he will appreciate that I have a speech about the amendments to get through. When it comes to the clause itself, however, we are interested in the views of all Members and all devolved Administrations, and, above all, we are seeking a legislative consent motion. We are determined to approach the clause with a view to consensus.
As I was saying, the current devolution settlements provide that devolved institutions cannot act or legislate in a way that is incompatible with EU law. That has provided common, overarching laws and approaches throughout the UK while we have been in the EU. Those common approaches and laws have meant that businesses, regardless of where they are based in the United Kingdom, can trade with each other in the knowledge that they share agreed standards.
Stephen Doughty
The Minister is making an important point about businesses being able to trade. Given the amendments that we have been discussing and the importance of consultation with the devolved Administrations, will the Minister tell me whether the proposals that were put forward in Brussels today on the Northern Ireland-Irish border were discussed with the First Ministers of Wales, Scotland or, indeed, Northern Ireland?
Chris Skidmore
It is not for me to comment, during a Committee stage, on the process of European negotiations. There is a time and a place for that. I am not going to get into a discussion with the hon. Gentleman about the process of EU negotiations. We must ensure that the Prime Minister has the opportunity to reach out to Brussels, but I am here to discuss clause 11 and schedule 3 and the amendments, and I hope that the hon. Gentleman will allow me to continue to do so.
I was talking about the common approaches that enable us to trade with each other in the knowledge that we share agreed standards. We have agreed approaches on how to manage our common resources, and the UK can enter into international agreements knowing that we, as a country, can meet our obligations. As we leave the EU, the simple question is about where we need to retain the common approaches in EU law and where we do not. In the immediate term, clause 11 and part 1 of schedule 3 create a mechanism for those common approaches to continue to apply throughout the UK after exit.
Mr Chris Leslie (Nottingham East) (Lab/Co-op)
The Minister speaks of common approaches across the EU. We have heard today about the possibility of an alignment between the Northern Irish arrangements and those of the Republic and the rest of the EU. How will we retain those common approaches if, for instance, the UK negotiates a new trade deal post-customs union, and we end up with circumstances in which that would, or would not, apply to Northern Ireland? How on earth can the Minister reconcile that with the offer that the Government have been talking about today?
Chris Skidmore
I note that the hon. Gentleman has just walked into the Chamber. He is welcome to make a speech later on setting out his own principles; I would listen to that very carefully. I am addressing clause 11 and schedule 3 to the Bill. There is a time and a place for the wider discussions he wants.
Deidre Brock
On the temporary nature of these proposals, why have the Government not chosen just to put in place a sunset clause? Why is no date indicated, because the lack of one creates an enormous amount of uncertainty for everyone?
Chris Skidmore
The issue around placing a sunset clause on this provision is that, in a way, it creates an artificial cliff edge. The sole purpose of clause 11 is to ensure that the UK statute book is complete on exit day. We want to ensure that we work towards common frameworks, and that we can ensure that, when we have that statute book prepared for exit day, we have common frameworks and non-common frameworks in place. Having a sunset clause creates an artificial cliff edge to work towards that date, whereas we might want to create some of those frameworks before that date, and there might need to be some corrections to the withdrawal agreement and the EU withdrawal agreement Bill that has been announced, and some deficiencies that need to be corrected. Having a sunset clause is therefore unhelpful for the purposes of this clause in itself.
Returning to the issue of the policy areas where EU law intersects with devolved competence, as I have said, common frameworks will not always be required, or can be achieved through non-legislative means like concordats, and in such cases clause 11 provides a mechanism to release decision-making powers from the temporary competence arrangement through the Order in Council procedure, giving new powers to the devolved Administrations.
Pete Wishart
I am listening carefully to the Minister’s speech, but I am not hearing much about addressing the concerns of the devolved Parliaments and Assemblies, which are clearly saying that what is being proposed drives a coach and horses through the devolution settlement. How on earth is the Minister going to take on board their real concerns about what this Bill does to devolution, not least through clause 11?
Chris Skidmore
I have listened for six hours to the concerns of Members, but outside this Chamber there is an entire process that I want to touch on later in my speech, and which I hope the hon. Gentleman will reflect upon. There might be hostility in this Chamber from those who say that the Government are somehow taking clause 11 and ripping up the devolution settlement, but that is hyperbole. Clause 11 is a temporary competence limit that is being applied simply by taking EU law and it becoming EU retained law.
Chris Skidmore
No, not at the moment.
There are no powers that the devolved Administrations currently have that they will be losing. We have therefore had tremendous engagement on the framework that we are delivering, and I will touch on that engagement shortly. In particular, in the JMC (EN) process there has been huge good will from the colleagues of the hon. Member for Perth and North Perthshire (Pete Wishart) in the Scottish Government, and his officials, above all, working tirelessly behind the scenes, trying to deliver on what we need to do.
Chris Elmore
The Minister uses the word “temporary”. How long is temporary, and why is that not specified in the Bill?
Chris Skidmore
The hon. Gentleman points to the word “temporary”, and I repeat that this is a temporary competence limit—[Interruption.] He wants to know how long temporary is. It is as long as it takes to ensure that we have a complete statute book that is in the interests of continuity, certainty and control for UK businesses. We want to ensure that we have time to be able to correct the statute book and ensure that this is done properly. To create an artificial time limit would be unhelpful to this process. As he knows, the First Minister of Wales is going forward with the JMC (EN) process. That engagement is taking place, and I will talk about that later in my speech. This means that when it comes to ensuring that we have the temporary competence limit on the face of the Bill, the Order in Council process gives new—
Chris Skidmore
No, I have given way a lot—[Interruption.] I am going to carry on with my speech; otherwise I will not get through it. Other Members want to speak, and although I could stand here and take up all the rest of the time, I think it would be inappropriate to do so.
The Order in Council procedure will provide an opportunity for those powers to be returned to the devolved Administrations. This highlights a well-established procedure for adapting the parameters of the devolved competence, which requires debate and approval in the UK Parliament and the relevant devolved legislatures. It is absolutely right that the devolved legislatures are able to debate and consider any additional areas of competence being released to them through this mechanism. Of course we acknowledge that the Scottish and Welsh Governments have taken a different view on the mechanism to provide the necessary certainty, but we are in agreement that common frameworks will be needed in some areas. In some cases, legislative frameworks might be required, and we hope to continue working closely with our counterparts in the devolved Administrations to establish exactly what those will look like.
Ian C. Lucas
I am puzzled. The Minister has made it clear that the Government’s intention is to maintain the current legislative situation, so far as the clause is concerned. Why then did he not seek agreement with the Welsh and Scottish Governments before he brought this legislation to the Chamber? Why did he not achieve a resolved position before coming to the Chamber with the Bill?
Chris Skidmore
The hon. Gentleman will be aware that the clock is ticking, and that we have a limited amount of time in which to ensure that our statute book is prepared for exit day. We are determined to do that, because we need that certainty, control and stability. Businesses need to know that the statute book will be complete on exit day.
We have had a tremendous amount of engagement with our Welsh and Scottish partners, and I am perfectly happy to place in the Library records of the meetings between the First Secretary of State and his counterparts so that Members can see the level of engagement involved. I think that they would be quite struck by the number of meetings that have taken place and the work that has gone on behind the scenes. Members might be hostile in the Chamber today, but their Welsh and Scottish counterparts are working constructively with the UK Government because they recognise that we need some serious politics here and that we need to ensure that we have certainty and control for businesses.
Chris Skidmore
No, only once for each person. I will give way to the hon. Member for Central Ayrshire (Dr Whitford).
Dr Whitford
Why will having a Brexit date give certainty and clarity, yet having a date on which the powers would move to the devolved Governments is considered unacceptable?
Chris Skidmore
We will be discussing the clause 10 powers to which the hon. Lady refers on a separate day—on the morning of day five. Clause 11 is about ensuring that the statute book is prepared for exit day. In a way, exit day provides that temporary limit. We know that we need to make changes to the common framework, but beyond that, we do not yet know what the negotiation period will look like when it comes to ensuring that we need an implementation period. That is why we cannot necessarily provide that certainty.
Several hon. Members rose—
Chris Skidmore
I will give way to the hon. Member for Ilford South (Mike Gapes) now.
Mike Gapes
I am grateful to the Minister for giving way. Clause 11(3) refers to the Northern Ireland Assembly. Is the position for Scotland and Wales the same in the Bill as it is for Northern Ireland, given that the Good Friday agreement is underpinned by an international treaty between two countries and that it explicitly mentions the European Union?
Chris Skidmore
We are moving on to some of the clause 10 issues around international obligations, but when it comes to schedule 3, which I had hoped to touch upon later in my speech, we are determined to ensure that we obtain legislative consent from all the relevant devolved Administrations. Although the Assembly is absent, we are already working with officials in Northern Ireland to ensure that their perspective is reflected, but we are determined to move forward as the United Kingdom, which includes Northern Ireland.
Martin Whitfield
Does the Minister envisage requesting the legislative consent motions before explaining what amendments the Government are going to make to the Bill?
Chris Skidmore
As I have stated, the Government’s intention is to seek legislative consent for the Bill from all the devolved Administrations, where possible. We have already seen legislative consent memorandums being tabled in Scotland and Wales, and we are determined to ensure that we work with all our devolved partners and with officials in Northern Ireland and that we legislate on behalf of the United Kingdom.
Chris Skidmore
I am going to carry on with my speech. The hon. Gentleman has already intervened and now he decides to—[Interruption.]
The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)
Order. We cannot have sedentary interventions. If the Minister wants to give way, he will give way.
Chris Skidmore
We have been working closely with the devolved Administrations on these questions and will continue to do so, progressing the discussions and the necessary analysis of where common approaches are and are not needed, through ongoing bilateral and multilateral discussions between Ministers and officials.
In an excellent speech, my right hon. Friend the Member for Clwyd West (Mr Jones) highlighted the important progress that was made at the recent JMC (EN) meeting on 16 October, when the UK Government, the Scottish Government and the Welsh Government agreed to a set of principles to identify where we will need frameworks. Given the myth busting that needs to take place around the JMC (EN) process and given how open and transparent it already is, it may be appropriate to quote from a communiqué regarding an agreement by all the devolved Governments and the First Secretary of State on the definition and principles of the common frameworks. It states:
“As the UK leaves the European Union, the Government of the United Kingdom and the devolved administrations agree to work together to establish common approaches in some areas that are currently governed by EU law, but that are otherwise within areas of competence of the devolved administrations or legislatures. A framework will set out a common UK, or GB, approach and how it will be operated and governed. This may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued. Frameworks may be implemented by legislation, by executive action, by memorandums of understanding, or by other means depending on the context in which the framework is intended to operate.”
The communiqué then goes on to set out some important principles for where common frameworks
“will be established where they are necessary in order to: enable the functioning of the UK internal market, while acknowledging policy divergence; ensure compliance with international obligations”.
Jenny Chapman
I may be able to save the Minister a job here. New clause 64 includes what he is reading out, word for word. Given that he supports the principles, is he not inclined to accept new clause 64?
Chris Skidmore
The hon. Lady did not touch on the communiqué and seemed to push it to one side without acknowledging the importance of the process. When the JMC (EN) process is taking place, her new clause is unnecessary. I will touch on why it is unnecessary to legislate when we have all this work ongoing to provide flexibility for the devolved Administrations to draw up a communiqué exactly like this one.
To carry on with what I was saying, common frameworks will
“enable the management of common resources; administer and provide access to justice in cases with a cross-border element; safeguard the security of the UK.”
The frameworks will also
“respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore: be based on established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent; maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules; lead to a significant increase in decision-making powers for the devolved administrations.”
In the absence of Northern Ireland Executive Ministers, the Northern Ireland civil service will continue to be part of these discussions. We are building on the positive and constructive joint working between our Administrations to continue to accelerate our progress on common approaches. For example, there is ongoing work between officials from the devolved Administrations and the UK Government on how policy areas intersect with the devolution settlement. There have been several deep dives into those policy areas, and the work will be presented at the next JMC (EN) on 12 December, where we hope to make further progress by assessing more of the detailed work that has been carried out.
Angus Brendan MacNeil
How does the UK Government’s approach to working together with the devolved Administrations differ from their approach to working together with, say, Dublin and the other members of the EU27? Is one not a meeting of equals and the other a meeting of master and underling?
Chris Skidmore
The work on the common frameworks that clause 11 addresses points to the fact that we are keenly working with the devolved Administrations on drawing up those frameworks. We have an absolute commitment to ensuring that we can look at the principles that were agreed between our Governments on 16 October and that explicitly recognise that frameworks will not be needed in many of the areas currently governed by EU law.
As we have said from the outset, the Bill starts a process that will lead to a significant increase in decision-making powers. That is not a power grab. We are ensuring that more powers go back to the devolved Administrations and legislatures.
Wes Streeting (Ilford North) (Lab)
The Minister talks about the constructive relationship with the devolved Administrations. Has he taken time to look at what they have said about the shambles today?
Chris Skidmore
A bit of a wasted intervention. I am here to talk about clause 11. I do not know whether the hon. Gentleman has read the clause, but he came in slightly late.
Chris Skidmore
The hon. Gentleman is very kind, but we are discussing the effect of clause 11 and schedule 3 —that is the purpose of Committee.
Several hon. Members rose—
Chris Skidmore
I have already given way.
We want to build momentum over the coming months in the continued bilateral and multilateral discussions between Ministers and officials. Let me be clear that the Government are the party committed to devolution. Our record shows that, and we will continue to press on with devolution. Working through these frameworks is part of that, but we also want to protect the benefits of our Union across the UK and across each of our constituent nations, benefiting us all.
Chris Skidmore
No.
I am grateful to hon. Members for raising important points of detail on the ongoing framework process. They are right to acknowledge that work has been done today on agreeing the guiding principles for the future frameworks, and that the further analysis is the product of the ongoing engagement between officials and Ministers in the UK Government and the devolved Administrations. Of course, the outcomes of those discussions are important not just to Governments but, most crucially, to the people and businesses across the UK to whom the rules apply.
Liz Kendall (Leicester West) (Lab)
The Minister is talking about the impact on people in the UK. Under the Good Friday agreement, people in Northern Ireland can choose to be British or Irish, or both. Will that remain the case after Brexit? If so, seeing as Ireland remains a member of the EU, will people in Northern Ireland still be able to choose to be EU citizens?
Chris Skidmore
I do not disagree with what the hon. Lady says. It is important to note that, when it comes to the common frameworks procedure, the communiqué agreed on 16 October states:
“Frameworks will ensure recognition of the economic and social linkages between Northern Ireland and Ireland and that Northern Ireland will be the only part of the UK that shares a land frontier with the EU. They will also adhere to the Belfast Agreement.”
By way of myth busting, it is not the case whatsoever that the Good Friday agreement will somehow be affected.
Clause 11 introduces part 1 of schedule 3, which makes the same provisions in relation to devolved Executive competence—that is, any secondary legislation that the devolved Administrations might make. In addition, provisions in the Bill extend competence to the devolved Administrations so that devolved Ministers can exercise the powers provided by clause 10 and schedule 2 to make the statute book operate effectively once we have left the EU.
In recognition of the current standing of the existing devolution settlements, part 2 of schedule 3 ensures that a significant number of corrections are made to the devolution statutes arising from the UK’s exit from the EU. Together, clause 11 and schedule 3 preserve the current scope of devolved competence. They ensure that any decision that could have been taken by the devolved Administrations and legislatures prior to exit day can still be made after exit day, and that devolved Ministers can exercise powers to make sure that law in areas of devolved competence works correctly. They set up the Order-in-Council process, which will allow for an increase in decision-making powers of the devolved institutions as discussions with the devolved Administrations on common frameworks progress. The Government have repeatedly stated, as I have today, that this is a temporary arrangement; it is a safeguard against a cliff-edge situation as we leave the EU to provide certainty for people and businesses in all parts of the UK. Just as importantly, it allows time for discussion about the future: on where common approaches are needed and where they are not. It is our overriding aim to work with the devolved Administrations to define which areas need frameworks and which do not as soon as possible.
It was absolutely right for the hon. Member for North Down (Lady Hermon) in the debate on clause 2 to raise the matter of consultation with the political parties in Northern Ireland in the absence of a power-sharing Executive. I would like to reassure her that this Government value the views of those parties on the devolution provisions in the Bill, and officials have provided briefings on the Bill to each of the parties represented in the Northern Ireland Assembly that wanted them. In addition, officials have been engaging with their counterparts in the Northern Ireland civil service on the technical and legal aspects of the Bill to make sure it operates properly in the context of Northern Ireland law. That is, of course, no substitute for a devolved Government in Northern Ireland, and my right hon. Friend the Secretary of State for Northern Ireland continues to prioritise the talks between parties to restore the power-sharing Executive. This Government are sincere in their wish to discuss these matters, particularly with regard to common frameworks, with the Northern Ireland Executive when they are restored.
I reiterate that I welcome scrutiny by the House on the approach the Government have taken. I also welcome the vital contributions that the Scottish Government and the Welsh Government, and the devolved legislatures, have made to today’s debate by publishing their views on how—
Ian Murray
I feel that the Minister may be finishing his remarks. I intervened at the beginning of his speech to ask whether he would tell us where he thinks clause 11 is deficient, as many of his colleagues have said it is, and how he thinks that, as the Minister responsible for it, he is going to fix those deficiencies.
Chris Skidmore
As I stated at the opening of my remarks, and as I will state throughout my speech and at the end of my remarks, we are open to hearing from those who seriously want to look at this Bill and consider how we productively ensure that our statute book is complete on exit day. We are in a Committee stage at the moment and there is a process to go through here, and there is a process outside this House in the JMC, which I have spoken about. It is not for me as a Minister to prejudge the discussions that may take place at JMC (EN) next week, on 12 December. What I will say is that I will ensure that when it comes to the agenda of that meeting, the discussions that have taken place in Committee are reflected and discussed in JMC (EN).
Stephen Doughty
I thank the Minister for what he is saying, but it is clear that the Welsh Government and the Scottish Government, and Members of this House working with them, have proposed clear and specific amendments that are not about blocking the Bill or undoing Brexit; they are about retaining a stable constitutional settlement in these islands. Will he accept those amendments, as his colleague the Secretary of State for Scotland said he might?
Chris Skidmore
I am discussing whether the clause should stand part of the Bill and I am about to turn to the hon. Gentleman’s amendments. I hope that he can wait in eager anticipation for my remarks and that he will not be disappointed, although he may be.
I reiterate that I welcome scrutiny by the House on the approach that the Government have taken. As I said, I also welcome the vital contributions the Scottish Government, Welsh Government and devolved legislatures have made in this debate by publishing their views on how devolution aspects of the Bill might be improved. This Government are clear that we want to consider all those views and make improvements to the Bill where we can, but I also emphasise that it is right that we provide certainty across the UK, as this clause seeks to do, and do not take any action to undermine the integrity of our United Kingdom.
I will also take a moment to reflect on the insightful contribution made by my hon. Friend the Member for Harwich and North Essex (Mr Jenkin), informed by the evidence to and input from the members of the Public Administration and Constitutional Affairs Committee. He made a number of pertinent points and I will turn to those now. He is right to say that leaving the EU is that opportunity to revisit some key constitutional questions. As I have set out today, the Government’s aim in introducing clause 11 is to do precisely that: to give us time to give these important issues the consideration they deserve.
We welcome the views of experts such as my hon. Friend and his Committee on these issues of intergovernmental institutional relationships. The Government are ensuring that we engage with other external experts such as leading academics on these questions. What we are focused on today is how we provide that certainty and continuity we need in the law on exit day and how we give ourselves time to consider the issues properly and reach the right answers. I welcome my hon. Friend’s continued contributions to this discussion.
New clause 64, which relates to the creation of common frameworks, comprise three subsections and I will take each in turn. First, the new clause would require the Government to lay their proposals for the replacement of European frameworks with UK ones before each House of Parliament. It is not the position of the UK Government, or of the devolved Administrations, that the existing UK frameworks will be replaced by our own common frameworks in every instance. Instead, we expect more power to sit directly with the devolved Administrations as a result of our leaving the EU.
As I mentioned earlier, we are working closely with the devolved Administrations to determine where future frameworks, whether legislative or non-legislative, will be required in each of the policy areas in question. Although joint conclusions have not been drawn at this point—as I have stated, I do not want to prejudice the outcome of the discussions with the devolved Administrations—we believe that the majority of policy areas will not require legislative frameworks.
Angus Brendan MacNeil
Surely the determination is very simple. It is set down in the Scotland Act 1998 that what is not reserved is devolved, so if it comes from Europe, it will be devolved. It is set down and it is simple. It should not be up to the Minister to be judge and jury. He talks about partnership, but he should respect the law.
Chris Skidmore
As I set out clearly at the beginning of my speech, when current EU law—which it is the UK’s position not to breach—is transferred to become retained EU law, we need to look at the areas where we need to create common frameworks. That is the position that the hon. Gentleman’s own Brexit Minister, Mike Russell, has taken. Mike Russell signed the communiqué and agreed to look at these common approaches and to look at retained EU law being transferred across.
The hon. Gentleman should speak to members of the Scottish Government, because they seem to understand the need to work with the UK Government to come up with common frameworks. He seems to be unaware of the process of engagement that is taking place outside the House. His constituents will not thank him for bringing up constitutional points and not acknowledging that, in looking at the common frameworks procedure and at EU law, we need to ensure that, when it comes to exit day, there is certainty, control and stability in respect of our statute book. We need to ensure that clause 11 provides for that.
Should our detailed discussions conclude that UK-wide or parallel legislation is necessary, both Houses of Parliament will of course have an important role to play in scrutinising the detailed proposals. Where policy areas are released from the temporary arrangements provided for in clause 11, the Order in Council process provides a mechanism to do precisely that to ensure that these decisions are subject to careful scrutiny by both Houses of Parliament and the relevant devolved legislatures.
Secondly, the new clause would permit the establishment of frameworks only where the criteria set out in it are met. That is also unnecessary. Although I agree with the criteria, which, as the hon. Member for Darlington (Jenny Chapman) pointed out, have been lifted by and large from the broader principles that underpin the creation of frameworks, they form only one part of the picture. The broader principles were agreed by the UK, Scottish and Welsh Governments at the meeting of the JMC (EN) on 16 October and were published in the communiqué that I have put on the record. To ensure that the interests of Northern Ireland were heard, a senior official from the Northern Ireland civil service was in attendance.
Those broader principles recognise, among other things, the importance of a wider range of issues, including
“the economic and social linkages between Northern Ireland and Ireland”.
Not only do we have an established set of detailed principles; we have put those principles into practice through a process of ongoing engagement and analysis with the devolved Administrations on where common frameworks are or are not needed. It therefore follows that the more limited set of criteria in the new clause is unnecessary.
Finally, the new clause would permit the creation of frameworks only if they were subject to consultation agreements with the affected devolved Administrations. Once again, that is unnecessary. As the agreed principles published in the communiqué make clear:
“It will be the aim of all parties to agree where there is a need for common frameworks and the content of them.”
The Government are committed to intensive discussions on the areas where common frameworks will and will not be required with the devolved Administrations, and those are happening right now. I therefore urge the hon. Member for Darlington to withdraw the new clause.
New clause 65 seeks to enshrine the Joint Ministerial Committee in legislation. The Joint Ministerial Committee is a forum for the UK Government and the devolved Administrations of Scotland, Wales and Northern Ireland to discuss matters of joint interest and is underpinned by a memorandum of understanding between the four Administrations. Specifically, it provides for a focus of intergovernmental relations and allows attending Ministers to present the positions of their own Administration in a multilateral setting. There is no need to enshrine the JMC provisions in legislation as set out in new clause 65. Indeed, doing so would place limitations on the ability of the members to adapt to what is a rapidly changing political landscape.
The current basis for the JMC has been agreed by all four Administrations and allows for wide-ranging discussions, including on topical issues such as EU exit. The JMC, as set out by the written agreements, must remain adaptable enough to address those four Governments’ interests. If this clause were to be added to the statute book, it could severely hamper the JMC’s ability to do so.
The scope of the committee and its supporting sub-committees is not solely to discuss the domestic impact of EU exit and negotiations with the EU. The JMC plenary, which is chaired by the Prime Minister, should also continue to discuss matters agreed by the Administrations as set out by the terms of reference under subsection (1) (a). As drafted, new clause 65 would significantly limit the scope of the Joint Ministerial Committee. The provisions under subsection (1) are already being demonstrated through the JMC on EU negotiations sub-committee. My right hon. Friend the First Secretary of State chaired the most recent JMC (EN) meeting on 16 October and will chair a further meeting on 12 December to build on those discussions that have taken place so far.
There are also other sub-committees that are equally important for the integrity of intergovernmental relations. The provisions under subsection (5) stipulate that either my right hon. Friend the Prime Minister or my right hon. Friend the Secretary of State for Exiting the European Union must chair all further meetings of the Joint Ministerial Committee until a withdrawal agreement is concluded. That would ignore the role of my right hon. Friend the First Secretary of State who chairs what I am sure will be recognised as an important sub-committee on EU negotiations as well as other sub-committees of the JMC that already exist, such as the sub-committee on Europe. Such provisions will remove the flexibility afforded to the Joint Ministerial Committee to adapt and evolve.
The existing written agreements coupled with the ongoing multilateral and bilateral engagement between Ministers and officials make this new clause redundant. The versatility of the committee is achieved through consensus of the participating Administrations and therefore we urge the Opposition not to press their amendment.
Angus Brendan MacNeil
The hon. Gentleman talked earlier about co-operation and listening. Our party represents the Government of Scotland. Then there is the party that represents the Government of Wales. In this spirit of co-operation, which amendments will he be taking from either of those parties?
Chris Skidmore
I am currently going through the list of amendments and setting out the Government’s position on them. When it comes to looking at the Bill, the Government will listen to those who seek to improve it constructively. We are in Committee at the moment, and we have amendments and legislative consent memorandums that have been tabled by the Welsh and the Scottish Governments. The Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Worcester (Mr Walker), and I have been to Scotland to give evidence. My hon. Friend has also given evidence to Welsh Select Committees. We are determined that it is not just SNP Members who have a veto over this process. There is a consensus that we need to seek across all devolved Administrations—
Chris Skidmore
I have given way to the hon. Gentleman several times; I will not do so again.
Chris Skidmore
No, I am afraid that the hon. Gentleman came in relatively late. I have given way to him several times. I am making my point in response to the amendment, which he does not even want to listen to. The point is that there is a reasonableness test: the UK Government are determined to be the reasonable partner, but we will listen to anyone who puts forward amendments to the Bill and who is determined to ensure that our statute book is protected on exit day, that the UK integral internal market is protected, and that we have that stability, certainty and control that we need for businesses and for the people of Scotland, Wales, England and Northern Ireland, as they will not thank us if we do not work together to ensure that that is achieved. The point of clause 11 is to ensure that we have that stability, certainty and control.
I now turn to amendment 337, which is to be read with amendment 42 and new clause 64. It provides that existing EU law limits on devolved competence will remain in place until the end of the transitional period. At that point, amendment 42 would give the devolved Administrations and legislatures the power to legislate in relation to those matters currently subject to EU law but that are otherwise devolved.
I will discuss amendments 90 to 92, 132 to 134 and 164, which essentially provide the same effect as that of 42, which means that the devolved institutions will be able to diverge from those retained EU law frameworks after exit day. I will also deal with consequential amendments 177 to 179, 181, 185 and 191 to 193, which flow from those substantive amendments. I understand the intention behind these amendments, but we cannot agree with the effects. I have already set out the measures in clause 11 that establish the temporary arrangement that maintains the currents parameters of devolved competence, taking no decision-making power away from the devolved Administrations or legislatures. This means that where we have common approaches across the UK by virtue of EU law, they will continue to apply as they currently do after exit day.
It is vital that we provide certainty to businesses and to people who live and work across the UK, and that laws in place remain consistent while we work with the devolved Administrations to consider where we may need common approaches and where we do not. The amendments risk undermining not only that certainty, but out precious Union. Let me be clear: this Government are committed to ensuring that power sits closer to the people than ever before. Our commitment to strengthening the devolution settlements is clear from the statute book with, most recently, the Wales Act 2017 and the Scotland Act 2016, which has made the Scottish Parliament one of the most powerful devolved Parliaments in the world.
In line with our commitment to devolution, we have been clear that we expect the process of leaving the EU to result in a significant increase in the decision-making powers of the devolved Administrations. But we are also clear about how this must happen. We need careful analysis with the devolved Administrations to determine the areas where common UK-wide or GB-wide approaches need to be retained, and the areas where they do not.
Ian Murray
The Minister is addressing the amendments in my name and those of my hon. Friends. The hon. Member for East Renfrewshire (Paul Masterton) said that he agreed with the principles of my amendments 164 and 165, and that, although he would not vote for them, he expected that the Government would come back with something different to deal with the deficiencies in clause 11. I have not quite heard the Minister admit that the clause has deficiencies. What will he bring back to the Committee that it can vote on that will satisfy his own Scottish Conservative Members with regard to the principles of amendments 164 and 165?
Chris Skidmore
I have already stated that the Government are prepared to listen to all those who seek to improve the Bill. We will use this opportunity to reflect on all the speeches made by hon. Members in Committee; that is what Committee is for. I have stated a commitment to ensuring that the content of today’s debate is shared with all members of the JMC (EN) on 12 December. There is a process to look at the establishment of common frameworks, and the careful analysis needs to take place with the consent of or working with the devolved Administrations and their officials. I am pleased that we have made good progress on this with the agreement at JMC (EN) with the Scottish and Welsh Governments on the principles that will guide our future framework discussions.
Stephen Doughty
The Minister is being generous in giving way. My name is on a number of these amendments. Will he be absolutely clear on one point? The Welsh Government and the Scottish Government have tabled amendments in good faith that are aimed at being constructive and making the Bill more sensible, with the support of many Members across the Committee. Indeed, Members of the Minister’s own party have pointed out problems with the Bill. Am I correct that, despite those points, he is not going to accept any of the amendments?
Chris Skidmore
We have always made it clear that we stand ready to listen to those who offer improvements to the Bill. Engagement at all levels of government—[Interruption.] The hon. Gentleman does not want to listen to what I have to say. He wants me to accept an amendment; I have given way several times, yet he is not prepared to listen to what the Minister has to say. Engagement at all levels of government is a usual part of the process, and this engagement must be at all levels of discussion, not just that which takes place in this Chamber. We want to work with the devolved Administrations, and we have been clear that we would like all parts of the UK to come together in support of this legislation, which is crucial for delivering the outcome of the referendum.
We continue to believe that the provisions in clause 11 are vital to providing the necessary immediate certainty to people and businesses while we discuss where common frameworks are and are not needed. We recognise that the Scottish and Welsh Governments have taken different positions from our approach, and we welcome the contribution to the debate. We remain open to suggestions and thoughts about how to ensure that the Bill works to deliver a functioning statute book for all parts of the UK. However, we cannot accept changes that would undermine the UK’s internal market or increase difficulties for people and businesses.
We are also clear how this process must happen. As I have said, we need the analyses to take place. We are clear that we will make progress with the JMC (EN), and that we will ensure that our final analysis indicates that legislative frameworks will be unnecessary for a majority of those policy areas. Following the agreement of the principles of the JMC (EN), we have already commenced work with the devolved Administrations, building on the work that is taking place at both ministerial and official level to make quick progress on the potential role for frameworks in some specific policies areas including agriculture, justice, home affairs and public health, where deep dives have taken place with officials from all Administrations. This work is allowing us to explore the different form the frameworks could take.
I should say that a legislative framework is by no means the only method. Indeed, as I said, legislative frameworks are likely to be used in a limited number of areas. There is far more use for non-legislative frameworks, including memorandums of understanding, concordats and informal collaborative working arrangements, as already happens.
In removing clause 11, these amendments fail to recognise the importance and value of our internal market and of having consistent rules for individuals and companies. They pre-empt the vital work we are undertaking with the devolved Administrations, and prejudge the outcome of our negotiations with the EU. Until we know the outcome of those negotiations, we cannot have certainty over how these powers, in places, will relate to our future relationship with the EU or, therefore, at what level they should be exercised in the future.
I note that Members have referred to evidence given to various Committees. I have heard their points, but it is important to come back to the motivation and need for the Bill: to provide certainty and control.
Sir Stephen Laws, formerly first parliamentary counsel, has pointed out that the devolution settlements were agreed in the context of our EU membership. That is why we are focusing through our discussions on common frameworks with the devolved Administrations on what our constitutional arrangements should be outside the context of our EU membership. That is what the provisions in the Bill give us the space to do, by maintaining the parameters of devolved competence.
I stress again that the mechanism here is not an end; it is an important first step in the process of returning these powers from the EU to the UK, enabling us to do the necessary work to determine where further powers can be released to the devolved Administrations.
I must reiterate that I understand the intention behind the amendments—that powers sit at the right level once we have left the EU. I am clear that the process we are going through does not change our unshakeable commitment to ensure that devolution in the UK is even further strengthened so that we may have more devolution and more union across the UK.
I turn now to amendment 165, which I will take with consequential amendments 180, 182 to 191, 194 and 195, tabled by the hon. Member for Edinburgh South (Ian Murray). Amendment 165 would allow the Scottish and Welsh Governments to make secondary legislation to change retained EU law in the areas that are currently subject to EU law. Taken together with other provisions of the Bill, part 1 of schedule 3 is intended to maintain the common frameworks across the UK that have been created by EU law. In particular, that will ensure that no new barriers to people living and doing business across the UK are created after we leave the EU.
As I have made clear, the Bill guarantees that the current decision-making powers of the devolved Administrations are respected. Anything the devolved Administrations could do before exit day they will be able to do after exit day. Our priority must now be to prepare our statute book for exit, and we want to work closely with the devolved Administrations to do that.
It is through the work on the common frameworks and the discussions with the devolved Administrations that we can make progress on specific areas and seize the opportunities to improve policy in the UK. As I mentioned earlier, the next JMC (EN) is scheduled to take place on 12 December, and it will continue that accelerated process of assessing where frameworks are needed and where they are not. We will prioritise those areas of greatest interest and significance.
We very much hope to see further steps forward, but it is right that we do these things in discussion and collaboratively with all Governments across the UK. Once it has been agreed through ongoing engagement, which this Government are committed to, where common frameworks are not required, we can use the Order in Council power to release decision-making powers to devolved Administrations. For that reason, the amendment is unnecessary, and we would urge the hon. Gentleman not to press it.
Let me turn now to amendment 72, tabled by the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), which would enshrine a requirement for the Government to seek a legislative consent motion from the devolved legislatures. As the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Worcester, said on day one of Committee stage, we want to make a positive case in favour of legislative consent for this vital piece of legislation and to work closely with the devolved Administrations and legislatures to achieve that. As I have mentioned, there has been an extensive programme of engagement with the Scottish and Welsh Governments and legislatures. In the absence of the Executive in Northern Ireland, official level engagement also continues with the Northern Ireland civil service.
We do not recognise the need for this amendment. The Government have already explicitly recognised the role of the Sewel convention in the Wales Act 2017 and the Scotland Act 2016. I ask hon. Members to look at our track record: we are committed to the devolution settlements and the conventions that we have established.
We continue to believe in the importance of the Bill, which is in the national interest, and we will work to deliver it with the devolved Administrations. The question of ensuring certainty both for our statute book and our internal market when we leave the EU is of great significance to all parts of the UK. We would like all parts of the UK to come together in support of this legislation, which is vital to the securing of a smooth and orderly exit. I urge the hon. Member for Darlington (Jenny Chapman) to withdraw the motion.
Several hon. Members rose—
The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)
Order. As colleagues will see, a number of hon. Members still want to speak. If interventions are kept to a minimum and speeches are kept under about eight minutes, everybody will get in.
Mike Gapes
Having listened to this debate for seven hours and been in the Chamber for most of it, I can say that occasionally it was like watching paint dry. I want to comment on something that the Minister just said: that the Government cannot accept changes that would undermine the UK internal market or businesses. That seems a little ironic on the day the Prime Minister has shown how strong and stable she is and when we are in such a crisis over Northern Ireland and the issues relating to the Good Friday agreement.
Sadly, Democratic Unionist party Members seem to have gone AWOL; I assume that they are out discussing how to spend £1 billion. They, of course, were not part of the negotiations that led to the Good Friday agreement and were not happy when we brought in the institutional frameworks established as a result of the 1998 legislation. I had the pleasure of being in Mo Mowlam’s team during those negotiations. I was a very minor person in the process—as the Parliamentary Private Secretary to the Political Development Minister, my good friend Paul Murphy—but it was a great achievement of our Labour Government.
As Tony Blair has so eloquently put it and John Major has also said, today the Good Friday agreement is in danger. Those of us who have looked at these issues understand that the agreement has three strands. One is the internal political situation in Northern Ireland, which is clearly not going well. The Assembly and Executive are not functioning and the civic forum that was supposed to be established under the Good Friday agreement does not exist.
Then there is strand 2, which is the Irish dimension, the North South Ministerial Council and the implementation bodies; it is supposed to cover agriculture, education, transport, the environment, health and EU programmes. Strand 2 is going to be undermined by the decision to leave the single market and the customs union.
Then there is strand 3, which is the east-west British-Irish Council and the British-Irish Intergovernmental Conference. We now understand that the Irish Government are right to express concerns about the position we face. I was in Dublin three weeks ago with the Foreign Affairs Committee. We also went to County Cavan. We drove along the road that goes from one side of the border to the other, and back across, through County Monaghan. The only way anyone knows they are in Northern Ireland is that there is a building with a “Fireworks for sale” sign. Fireworks cannot be sold in the Irish Republic, but they can be bought in Northern Ireland—that is a bit ironic, but we will not go there.
The reality is that we have fields on both sides of the border, cows that move backwards and forwards, farmhouses that are divided and institutional structures such as the veterinary organisations. We have the milk that is taken from cows in the south and cows in the north, put together in the same factory, mixed together with whiskey, and comes out as Baileys, which is then marketed as an Irish whiskey derivative, and there is an all-Ireland trade arrangement on that basis. Similarly, with tourism, Northern Ireland and the Republic are promoted together globally.
We are putting all this in jeopardy—putting it all at risk. We have to understand how difficult it was to get the Good Friday agreement and how not necessarily just the reality of the economics but the symbolism of the politics will come back, and people will have to think about their differences rather than what unites them. At the moment, there are many Irish citizens living in Northern Ireland because one can have either a British passport or an Irish passport—it does not matter. Will the European Court of Justice apply to those people living in Northern Ireland? Will they have protection even though they are living in the UK? These are interesting and complicated issues.
The Mayor of London, the Welsh Government and the Scottish Government have all said that we need to stay in the single market and the customs union, but above all we need to listen to the voices of the people of Northern Ireland, who want us to stay in the single market and the customs union. Although they claim the contrary, Democratic Unionist party Members do not speak for Northern Ireland—they speak only for one part of Northern Ireland. Northern Ireland voted to remain. Northern Ireland wants to be in the single market. Northern Ireland, collectively, wants to keep the institutions of the Good Friday agreement.
It is fundamentally important that we recognise in this Bill that there are special circumstances relating to Northern Ireland. When I intervened on the Minister—eventually he gave way to me—he did not respond to my point, which was that there is no specific understanding of the differences in Northern Ireland. The all-Irish Good Friday agreement—Belfast agreement—institutional framework is crucial and fundamental, and we have to preserve it and keep it. We will break up the United Kingdom and we will cause dangers and conflict again on the island of Ireland. We will damage relations with our closest neighbour and best friend. We have such a good British-Irish relationship, as we saw when Her Majesty the Queen went to Croke Park, and as Mary McAleese told us when she was the Irish President at the time. That is at risk, and we must not let it happen. Please, please support the continuation of the Good Friday agreement.
Alison Thewliss
I pay tribute to the hon. Member for Ilford South (Mike Gapes), because that was an absolutely perfect speech. It had to be made and I am glad that he did it.
We have talked in general terms today about lots of the things to do with the new clause and what it might mean, about clause 11, and about the 111 things that require some attention. I want to look at how issues of waste are dealt with within the EU. The EU waste framework directive flows into the Waste (Scotland) Regulations 2012. The European landfill directive, the European packaging and packaging waste directive, and various other EU directives are currently implemented by the Scottish Government. The EU sets the rules within those frameworks and directives, and the Scottish Government have flexibility, as do the other devolved nations, on how they implement them.
Without any certainty over what happens on the day of Brexit, we can have no deal, no certainty and no regulation of those matters. In Scotland, we have developed a circular economy strategy and made a lot of progress towards the implementation of the EU’s circular economy action plan. We have made more progress than the rest of the UK has, and we have made different progress. The directives have given us the flexibility to take a different road. Were the matter to come back to the UK Government, we could not be guaranteed the flexibility we need to make progress with the plans that we have already embarked on.
The Local Government Information Unit recently produced an excellent briefing on waste disposal and Brexit. The briefing raises specific concerns about the future UK directive, which could well be less ambitious than our plans. We have heard a lot from various Tories in the past about cutting red tape and regulations, but doing so could have a serious impact on the interesting and important issue of waste collection. Scotland’s zero waste plan is award winning and ambitious, as we are on climate change. We should have full control over it, and we should not have to drag behind the UK if it does not wish to step forward as quickly as we do.
Mr Kevan Jones (North Durham) (Lab)
The hon. Lady says that the plan is ambitious, but, in practice, waste from Scotland is simply being transferred into England, and there is very little enforcement of the so-called zero waste plan.
Alison Thewliss
I would take issue with that, and our plan is ambitious. An awful lot of our plan depends on the existence of a European market for waste. Lots of waste goes backwards and forwards to Europe for processing.
There has been no clear detail from the Government about what they mean by an interim period or a temporary period before further powers are released to the Scottish Government. We already know that the market for waste exists, and taking that market away will create uncertainty. Businesses face huge uncertainty, because there is a big private market in waste; I have a large processing facility in my constituency, for example. The Confederation of Paper Industries has said that its members need to be sure which regulations they will have to operate under. If paper is going into European markets, it needs to meet the standards required by those markets, so we need the regulations in place to allow that to happen.
Hon. Members might not know that paper is a £6.5 billion industry. The UK is the world’s largest net importer of paper, and the industry is doing quite well out of the Bill, which is producing huge amounts of paper. The regulations determine our participation in the paper market, and certainty is important. We need clarity, so that we can make progress on recycling and other things that we have started on. If our ability to work under directives is taken back to the UK Government, who do not share exactly our environmental ambitions or links to European markets, where does that leave Scotland?
There is uncertainty as well for local government. If we do not have the rules or the framework, can we just throw our waste in the street and the council is no longer obliged to collect it? Those things are underpinned by EU waste directives about the processing and treatment of waste, and without them there is no framework at all.
I want to speak briefly about where the power lies in another area. The hon. Member for Aberdeen South (Ross Thomson) and a couple of hon. Members who are no longer in their places mentioned food and food labelling, a lot of which is dealt with by the European Food Safety Authority. Of particular interest to me is the labelling and marketing of infant formula. I am fairly sure that the Scottish Government may wish to act to regulate infant formula further, but the UK, as has been evidenced in questions that I have raised on the issue, may not wish to do so.
The UK has long used EU law as a means to get around the full implementation of the international code of marketing of breast-milk substitutes. If we are no longer in the EU and we can set up the frameworks ourselves and make progress on the issue, why should the Scottish Government have to lag behind? Why should we have to wait while those powers are held at Westminster for an indeterminate length of time—it has been described as temporary and interim, but how long it is we do not know—when we want to make progress on policies?
The hon. Member for Newport West (Paul Flynn) made a very good point about organ donation and presumed consent in that, when the Welsh Government had such powers, they made progress and had a good policy, which has led the way in the UK. In Scotland, we have had the smoking ban and other progressive health policies. If action on such policies is wrapped up in frameworks or EU directives, how can we be certain—in the context of clause 11 and of this Government not accepting any amendments that would give the devolved Administrations competence in these areas—that the devolved Administrations will be able to take the action we actually want to take, and how long will we have to wait for Westminster to give us back our powers?
Tommy Sheppard
I was going to reassure the hon. Member for Stirling (Stephen Kerr), who is no longer in the Chamber, that, given the lateness of the hour, I can do nothing other than be reasonable and mild mannered in my presentation. He seemed fearful that SNP Members would go berserk and worried that we were putting our case with too much passion. Let me try to put this as reasonably as I can.
I want to agree with Members who have talked about the positive cross-party nature of what is happening. There are three parties on the Opposition side of the House that differ quite significantly on our preferred constitutional outcome or endgame for Scotland, but we are united in trying to defend the gains of devolution that have been made during the past 20 years. Indeed, I think that some of the Scottish Tories might feel that way too, given the discussions we have had in the Scottish Affairs Committee. They seem too timorous to exercise that conviction by going through the Lobby with us tonight, but perhaps they will be persuaded in the fullness of time.
By way of context, we need to remember two things. One is how the interplay between the referendums of 2014 and 2016 in Scotland affects this debate. I was on the losing side in 2014—I lost the Scottish independence campaign—and I accept that result. However, it is important in understanding why Scotland voted to remain in the United Kingdom to look at some of the assurances that were given by the people who won that campaign, because that affects this debate. I am going to talk not about the obvious one, which is what was said about EU membership itself, but about two other things.
First, all parties that campaigned for a no vote in the 2014 referendum went out of their way to stress that there was no threat to the devolution settlement, and that they would defend and extend it. The other assurance given was that should Scotland vote to remain in a political Union with England, Wales and Northern Ireland, this was not a matter of one country being subsumed into a much larger neighbour, but the creation of a partnership of equals—a multinational yet unitary state—with the views of Scotland therefore respected in any future debates. I am now calling to collect from this Government on both their respect for and commitment to devolution because, as far as I can see, the way in which clause 11 is currently written means that it recognises neither of those points. It is regrettable that at this relatively advanced stage of our discussions on the Bill, we still do not have any agreement whatsoever about some basic things.
The other factor we need to remember by way of context is of course the debate about devolution itself. I was heavily involved in the campaign that led to the creation of the Scottish Parliament, arguing for yes, yes in 1997. I was not in the House when Members debated the Bill that became the Scotland Act 1998, but I observed the proceedings and we can read the transcripts. We know that Parliament, led by the late Donald Dewar, clearly took a maximalist position. It basically said that everything should be devolved unless there was a case for its not being so, which is why the 1998 Act lists not the powers that are devolved, but the powers that are reserved.
If we had not been in the European Union when Parliament was debating the Act, how many of the 111 areas of responsibility would have been reserved and how many would have been devolved to the Scottish Government? The truth is that practically all of them would have been devolved without question, because there would have been no compelling case for reserving them. I think that people misunderstand the nature of the debate when they talk about the transfer of competences from the EU to the UK following Brexit.
Let us be quite clear that the reason why the European Union currently has some legislative competence in devolved areas is to ensure compliance with the treaty on European Union. That is what this is about. If Brexit goes ahead and we come out of the European Union, that, de facto, will not be required, so whatever the UK Government say about taking on these areas of competence, it will not be about complying with the terms of the treaty on European Union. The only thing it can be about, given that we already have a single economy in the United Kingdom, is convergence on policy. The transfer raises the possibility that we will move from compliance with international agreements to compliance with domestic policy. That is what I mean by a power grab, because it represents a severe potential constraint on the ability of the Scottish Parliament to legislate and act in its devolved areas.
Ministers will say, “That’s not the intention. This is a drop-off point for the powers so that we can then decide the best way for them to go to their final resting place.” I have to say to them that we are politicians, not psychics. We have to deal with what is written in the Bill that they have brought before us, not their intentions for what might happen as they go towards their endgame. What is written in the Bill is most clearly not what is being argued for by Ministers. If that were the case, we would have a schedule by now outlining which of the 111 powers can go straight to the devolved authorities on exit day, which of them definitely need to be reserved in the context of the 1998 Act, and which of them need further exploration through some sort of process, but we have heard nothing about a single one of them.
I say to Ministers that, even from a public relations point of view, would it not have been sensible to at least chuck a few of these powers the way of the devolved Administrations? No. 9 on the list is about blood safety. What is it about the Scottish health service and blood transfusion service that they do not trust? Why on earth would blood safety need to be reserved to the UK? Energy efficiency is another power on the list. Is it the end of the world if Scotland pioneers aspects of efficient energy use and perhaps leads the way in the UK? How is that a threat to the Union? Why do Ministers need to keep those powers? There are other examples that illustrate the ridiculousness of arguing that there should be even a temporary drop-off of these powers at Westminster. Such powers should clearly go to the devolved Administrations.
I am left wondering why this is being done. The obvious first answer is the phenomenal degree of administrative competence involved. I think that there is malintent on the part of some Conservative Members, but probably not on the part of its Front Benchers. However, I think Ministers have got themselves into a situation in which, because they have been incapable of producing a plan, they simply have no option but to say, “Trust us for now; we’ll do the best thing in the end.” It is very difficult for this Parliament to accept those assurances.
I think there is another red herring with the idea that a further reason why these powers need to be retained and examined further is that there might otherwise be interference with the United Kingdom’s ability to strut the post-Brexit globe in its ambition for “Empire 2.0”. There is a fearfulness that people in Scotland or Wales might act like the Wallonians and try to frustrate the creation of an international trade agreement. How ridiculous is that? Would it really matter if the Scottish Government introduced a policy that said, “We don’t wish to have genetically modified food in our food chain”? How is that a threat to an international trade agreement? All that would need to be done would be simply to specify that that was what people would need to deal with in Scotland, and that anybody wishing to sign the agreement would, quite reasonably, be able to do so.
The only way that that could become a threat to post-Brexit deals would be if there was a suggestion that the Scottish Government and the Welsh Assembly should take to themselves a power to veto a future UK international trade agreement, but no such power is being discussed. It is ridiculous that we should not by now be discussing which powers are going where, rather than arguing that nothing can be done apart from a power grab by the Westminster Government.
Finally, the common frameworks that we need for these 111 areas are going to be entirely different, depending on the individual area. In some cases, it might just be a simple matter of agencies north and south of the border talking to each other and sharing best practice. There are probably very few areas that actually require a full-blown statutory regulatory framework across the United Kingdom.
The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Robin Walker)
indicated assent.
Tommy Sheppard
The Ministers are nodding their heads. If that is the case, why have they not identified them? Why not bring forward proposals for dealing with the joint arrangements? I do not attribute malintent to those on the Government Front Bench, but there are people within the Conservative party—I see that the Scottish Tories have gone home—[Interruption.] I am sorry; they have left the hon. Member for Gordon (Colin Clark) as the lone representative. [Interruption.] Two of yer! I withdraw the remark; only 80% of them have gone home.
Conservative Members talk about the process we are engaged in. We are engaged in a process of considering amendments to a Bill. I say to the Scottish Conservatives that they should think again about going through the Lobby with the Government tonight, because if they do so, they will give the Government succour, rather than putting pressure on them to come forward and make agreements and changes. If that happens, it will provide sustenance to those Conservative Members who never believed in devolution in the first place, and who will use Brexit as an opportunity to roll it back and take power to the centre.
Deidre Brock
I appreciate the opportunity to speak. I rise in support of amendments 72, 184 and 185. I am disappointed the Minister will not accept a single amendment or new clause tonight.
It is clear from the amendments that have been tabled, and from many speeches we have heard today, that there is general opposition among Members to the power grab in the Bill, even from people who aspire to be Whitehall Ministers and would wield that power if they did. I also think that the previous Prime Minister—the one who dragged us into this mess with his cunning plan of a referendum—would oppose it. His respect agenda did not run very far, but it did at least run. I urge the current crop of Ministers to aspire at least to clear that very low bar.
The Scottish Secretary has assured us on several occasions that powers repatriated from Brussels will be held at Westminster only temporarily. We could call that the “fluffy protocol”, or the political equivalent of “It’s only resting in my account, guv.” As yet, however, we have seen nothing to suggest there is anything coming down the road to confirm that that is guaranteed to happen. If that were the intention, surely the sensible, logical and easy thing to do would be to have a sunset clause in the Bill that would see the powers transferred to devolved Administrations timeously. Numerous experts, including witnesses to the Scottish Affairs Committee, on which I sit, have advocated that but, like several other things that should have been achieved, that has not happened.
The in-depth analyses of the effects of Brexit that were promised have not been delivered to the devolved Administrations. Some extremely superficial desk research was proffered as if it were the Rosetta stone, but the paucity of what has been delivered leads me to the inescapable conclusion that the Government have no idea what is or might be down the road, or what turns the road might be taking before we get there. The only certainty Ministers seem to have is that the map says “Here be no monsters”. Well, there are monsters, and they are in the Bill. The monsters are those that will damage devolution settlements with the tearing away of responsibility, power and resources from the devolved Administrations to be sucked into the abyss that is a Whitehall trying to deal with Brexit.
Judging by the confusion, bewilderment and disorientation that we have seen so far, just today, in fact, the aftershocks of Brexit are likely to keep hitting the UK—its economy, its international standing and its ability to attract immigrants—for decades. There are no indications that anyone in Whitehall will have the time, patience or inclination to run the rule over coming legislation to make sure that Scotland, Wales and Northern Ireland are properly considered. The devolved Administrations deserve the right to try to mitigate the deleterious effects of Brexit as much as is possible. I believe that the attitudes in each of those Administrations, including Stormont when it gets back on its feet, will differ from those here in great measure on a number of issues. My hon. Friends have already made significant reference to that issue. I appreciate that large swathes of England are about to get sideswiped by the effects of Brexit as well. They undoubtedly have cause for complaint, but I am here to speak for Scotland.
Tonia Antoniazzi (Gower) (Lab)
It is a pleasure to follow the hon. Member for Edinburgh North and Leith (Deidre Brock).
I rise to speak in support of new clause 64 and the Labour amendments that seek to address the sidelining of the devolved Administrations. Since devolution, over 17 years ago, there has been considerable divergence in many policy areas between the different parts of the UK. Environment and rural affairs policy has been significantly devolved, and this is one area where Brexit will have a huge impact. The day before the UK Government triggered article 50, the Welsh Government provided rural communities with a £250 million boost via the final tranche of the rural development fund to help them become more resilient after Brexit. We need this support to continue.
This evening, we have listened to the detail and intricacies of clause 11, the impact of which will have a detrimental effect on Wales, if powers come back to Westminster from Wales. I will take my speech in a different direction, however, so that I can highlight the needs of the farming community in Gower in the light of the new clauses and amendments. As we all know, there might not have been much truth in some of the claims made by the leave campaign, but many farmers had no reason to disbelieve politicians when they were told that
“Wales would not be one penny worse off after Brexit”
and that Welsh farming would have
“at least as much support”
as it currently has after Brexit, but we are yet to see any funding guarantee from the Government that will ensure that Welsh farmers get, at a minimum, the same level of funding support they currently receive through the common agricultural policy after 2020-21.
The Tory UK Government have refused to provide assurances about matching the current level of funding, but they have also failed clearly to explain what will happen about any future trade rules for farmers. The right hon. Member for Clwyd West (Mr Jones) stated that NFU Cymru supported the retention of a common framework for agriculture, but decisions made in Westminster would most definitely not reflect the needs of the devolved nations, particularly of sheep farmers in Wales. There has been no mention, either, of how any support there is for farmers will be distributed between the devolved Administrations.
The Farmers’ Union of Wales supports the UK’s remaining in the single market and the customs union. The president of the FUW, Glyn Roberts, stated it was “the only sensible outcome” as much of the uncertainty about the future would just disappear. NFU Cymru has also stressed that access to the EU single market must be tariff free. We wait on tenterhooks for news from Brussels about whether a special deal can be struck for Northern Ireland, but as the First Minister, Carwyn Jones, said earlier, we cannot allow different parts of the UK to be treated more favourably than others. If Northern Ireland is to stay in the customs union and the single market, why cannot Welsh farmers profit from the benefits of remaining in them as well? They currently have a fantastic global reputation for quality produce, higher environmental standards and animal welfare protections. Wales needs to retain that strong brand, underpinned by high standards, but we have still not had any guarantees on how we can protect it.
It is more important than ever for Members of Parliament to engage with the farming community and the farming unions, which is something that I am proud to do. In my constituency, farming focuses on dairy, lamb and beef. I have met many farmers, and have discussed the post-Brexit situation with dairy farmer Andrew Stevens of Llannant Farm and with Dan Pritchard of Gower Salt Marsh Lamb. Dan has been involved in agricultural talks in Brussels, and says that the main concern for sheep farmers is uncertainty: because no one knows what is happening, it is impossible to plan for the future. Given that profits are already being squeezed for farmers, certainty about a future trade deal with the EU needs to be prioritised, or many more farmers will lose their businesses and stop farming. If Welsh farmers put their trust in the Tories, they will find themselves out of business.
The lamb, beef and dairy industry in Wales is subject to high standards of regulation, and we are proud of that. It ensures that produce from Wales and the United Kingdom is of the highest quality. Welfare should be a high priority, but the big issue for Welsh farmers is that Tory austerity means that people cannot afford to make better choices. Farmers will be unable to compete without either some sort of protection or some assistance to export so that we can continue to sell our goods in the EU and to other countries. Given the threat of tariffs and the risk of losing subsidies, the farming industry in Wales is feeling vulnerable. There must be public procurement in which the produce from our Welsh farms has priority. Our schools, hospitals and armed forces should be using British produce, including produce from Wales.
During my discussion with Dan from Gower Salt Marsh Lamb, he identified one positive aspect of our leaving the EU: the possibility that other markets could be tapped into. However, while farmers hope that that may happen, the prospect of a tariff on their current trade with France, the EU’s largest importer of lamb, makes future business inconceivable. The fact that such huge changes are on the horizon means that leaving the EU is an uphill battle for Welsh farmers. The message from farming unions in Wales is clear, and the message from the Welsh Government is clear: the UK Government must maintain current levels of investment in farming in Wales after Brexit, to ensure that Welsh farmers remain competitive and can produce food of the highest standards.
I support new clause 64 because it would establish collaborative procedures for the creation of UK-wide frameworks only if Ministers
“have consulted with, and secured the agreement of, the affected devolved administrations”,
such as Wales.
Drew Hendry
We have heard a great deal about clause 11 tonight. My right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) described it correctly earlier, and even Conservative Members representing Scottish constituencies admitted that it was faulty in its current form. Indeed, it is nothing more than a power grab which is fatally undermining the devolution settlement in all the nations of the United Kingdom.
Alan Brown (Kilmarnock and London) (SNP)
I thank my hon. Friend for giving way so early in his speech. I do not know whether he has seen the coverage of last week’s rural broadband debate, during which Scottish Tory Members shouted across the Chamber, “Strip the Scottish Government of their powers.” That is their attitude. There is no doubt that there is a power grab at stake.
Drew Hendry
My hon. Friend has made a good point. It is important for us to be aware that there are forces that would like power to be taken away from Scotland.
Clause 11 was drafted by people with no understanding of devolution law. It is a midden in its current form. There are questions about the mechanisms that will result from it. Surely, if the Prime Minister’s “union of equals” statement is correct, frameworks should be agreed, not imposed. If, as the Minister said earlier, this is a temporary situation, why should it not lie with the Scottish Government to take that power temporarily until the frameworks are agreed? Our amendment 72 ensures that the devolved legislature would give consent to those appropriate areas in clause 11 before it comes into effect.
As we have heard, the fact that there are 111 powers demonstrates the scowth of the issues at stake. As things stand, however, UK Ministers could simply make changes to important policy areas without the formal consent of the Scottish Government or the Welsh Government, or the Scottish Parliament or the Welsh Assembly.
We are told to trust that a deal will be done—that we can expect this to happen—but I think people were expecting something to happen today, yet that deal did not happen. How can we have confidence that things will be done and a deal will be delivered when Arlene Foster can just pick up the phone and say, “No, we don’t like that”?
There are 111 areas covering a massive range of Scottish life: fishing, farming, law, data sharing, aircraft noise, pesticides, fracking, flooding, water quality, food, forestry, organs, blood safety—as my hon. Friend the Member for Edinburgh East (Tommy Sheppard) pointed out earlier—land use, railways, renewables and victims’ rights.
It is clear that those at the top of the profession in legal circles believe clause 11 is drafted without an understanding of devolution law. As Professor Alan Page put it:
“Not only does the Bill propose a massive increase in the power of UK Ministers to legislate in the devolved areas, it also proposes that their exercise should not be subject to any form of Scottish parliamentary oversight or control. What is proposed therefore is a law-making system fundamentally at odds with two of the key principles on which the devolution settlement is based.”
He was not the only one. Professor Rick Rawlings noted:
“The sooner clause 11 of the Withdrawal Bill is cast aside, the better. Constitutionally maladroit, it warps the dialogue about the role and place of the domestic market concept post-Brexit.”
On clause 11, even the Law Society of England and Wales has called for discussions about where the common frameworks will remain and their scrutiny. Professor Alan Page said that
“the real purpose of Clause 11 is not to secure legal continuity but to strip the devolved institutions of any bargaining power that they might have when it comes to the discussion of common frameworks and all the rest.”
We welcome the fact that there will be discussion over devolved areas of responsibility; consultation, however, does not satisfy the needs of devolution, and the UK Government should seek consent from the Scottish Government before exercising delegated powers in devolved areas, and the same goes for Wales and Northern Ireland. People’s jobs, businesses and farms, their environment at sea, in the air, above ground and below ground, virtual lives and literal lives, justice we depend on, and even the blood in our veins: tonight we must vote to uphold the rights of people across the nations and ensure that power is not taken from them.
Brendan O'Hara (Argyll and Bute) (SNP)
I begin by echoing the words of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), because clause 11 is an unashamed power grab; it is undermining the devolution settlement, and it drives a coach and horses through devolution across these islands. In the time that I have to speak, I will talk about the impact it will have on farming, particularly in my Argyll and Bute community.
It is generally accepted that Scottish farmers, particularly farmers and crofters working the land on the west coast, face vastly different challenges from farmers in the rest of the UK. Not only do Scottish hill farmers toil with some of the poorest land, but they face additional challenges from climate, geography and topography, and so much so that 85% of Scottish agricultural land is classed “a less favoured area” compared with just 17% of English agricultural land.
Given that Scottish farmers face specific challenges, surely it stands to reason that they need a bespoke solution that recognises the vast differences that exist across these islands. It is understandable that the Scottish Government and the Scottish farming community are demanding confirmation that all powers relating to agriculture post-Brexit will automatically be passed to the relevant legislature—in this case, the Scottish Parliament. I fear that this Government are taking us down a dangerous road. They are deliberately proposing fundamentally to alter the basic principles of devolution.
Jamie Stone (Caithness, Sutherland and Easter Ross) (LD)
The hon. Gentleman has mentioned the word “road”, which prompts me to intervene on him. When the right hon. Member for Ross, Skye and Lochaber (Ian Blackford) and I—and indeed the hon. Member for Argyll and Bute (Brendan O’Hara)—drive to the west, we see big signs telling us that the road was built with the assistance of the EU. One of the biggest questions in the minds of my constituents is: what will replace that funding stream? This relates to the ability of farmers and crofters to access their beasts.
Brendan O’Hara
The hon. Gentleman is absolutely right. This is why my constituency, his constituency and the constituency of my right hon. Friend the Member for Ross, Skye and Lochaber all voted to remain in the European Union. As things stand, all the powers connected to agriculture will go to London post-Brexit. It will be London that decides what happens.
Ian Blackford
My hon. Friend is making a first-class contribution to the debate. I declare an interest as a crofter. Is it not the case that the UK Government have form on this? When they were given convergence uplift money in 2013, there was a distinct intention that 86% of those funds should come to Scotland, yet they have given us only 16%. The Secretary of State for Environment, Food and Rural Affairs, who is sitting on the Front Bench, made sure that Scotland did not get what it should have done. We have been short-changed by Westminster. It is little surprise that we do not trust Westminster to look after us in this regard.
Brendan O’Hara
I thank my right hon. Friend for that intervention. I will touch on that issue in a moment.
Let us be clear that this is not just an SNP argument. The National Farmers Union of Scotland has made it absolutely clear that any move to impose what it describes as “DEFRA-centric policy” is completely unacceptable to Scotland. I agree wholeheartedly with the union when it states:
“The Scottish Government must retain the ability to manage, support and implement schemes, policies and regulations as it currently does”.
If the UK Government are serious about protecting Scottish agriculture, I suggest they listen to the president of the NFUS, Andrew McCornick, who has made it clear that the union’s priorities include securing friction-free trade, access to skilled labour and a support package specifically designed for Scotland. He was absolutely spot-on when he said that maintaining access to the single market and the customs union was essential for Scotland’s farmers. On today of all days, if a deal can be found for one part of the United Kingdom to remain in the single market, there can be no other reason than political pig-headedness that such a deal cannot be found for Scotland.
Stephen Gethins (North East Fife) (SNP)
Does my hon. Friend agree that, if immigration powers were to be devolved to the Scottish Parliament, that would allow us to make provisions for agricultural workers? That was proposed by the Environment Secretary, who is on the Government Front Bench at the moment.
Brendan O’Hara
I could not have put that better myself. My hon. Friend is absolutely correct.
We have heard much today from the hon. Members for Banff and Buchan (David Duguid) and for Stirling (Stephen Kerr) about trust. They said that we should trust the UK Government to do the right by the Scottish farming community, but why would the Scottish farming community trust this Government to do the right thing? This is a Government who shamelessly robbed the Scottish farming community of the convergence uplift, and I doubt that that community will ever trust them again. The Government have to recognise the hugely important part that the Scottish farming community plays, economically and socially, in our lives. It is a vital component of our rural economy. It keeps the land productive and, in many cases, it is members of that community who keep the lights on in the glens of Argyll and the west highlands. I fear that London and Whitehall do not understand that community.
In conclusion, Brexit is a huge challenge for the Scottish farming community. Without a deal on agriculture that does not return legislative competence from Brussels to the Scottish Parliament, Brexit poses an existential threat to Scotland’s farming communities and will be a disaster. Tonight is the first real test of whether the Scottish Conservatives, who are wrong on a whole host of issues, actually put Scotland’s interests first; or are they, as many suspect, simply the Conservative party on manoeuvres in Scotland? They know that, if they choose to vote with the Government tonight and let the Bill go unamended, the result will be catastrophic for Scottish farming. What comes first: their loyalty to the captain of a sinking ship or to the rural communities of Scotland? Be in absolutely no doubt that no serious person believes that lumping Scotland in with the rest of the UK on agriculture is a good thing. This is a litmus test for the Scottish Tories, and I look forward to joining them in the Lobby.
John Mc Nally (Falkirk) (SNP)
I rise to support the amendments in the name of my right hon. and hon. Friends and to oppose clause 11. I have sat here since 3 o’clock, and I have been to the toilet once, nearly equalling Mr Speaker’s record, so he is obviously having an influence on my ability to hold in my water.
As a member of the Environmental Audit Committee, I want to discuss my concerns about clause 11 and Scotland’s environmental laws. Since Scotland gained a devolved Parliament, the political conversation on the divergence of policies has in many cases become diametrically opposite to the policies here in Westminster. I have always believed that, if someone wants to change the world, they have to get busy in their own little corner. The Scottish Government and the Scottish Parliament have done and are doing just that, and they are backed by the people of Scotland in trying to come up with more policies to improve social wellbeing and social mobility. A better community means that a better community spirit can be established, but if the present Tory Government stand in the way of our targets, aims and aspirations, do not think for one minute that the Scottish people will take that lying down—they will not.
The Scottish Government have steadily improved their environmental policies, which have been praised by a variety of academics and recognised by various politicians from other countries, who have commented positively on Scotland’s aims and ambitions. During a trip by the Environmental Audit Committee to Washington earlier this year, the president of one of the universities that we visited could not speak highly enough of the Scottish Government and all their chemical policies, and I want the Labour party and the Conservative party to remember that. The Scottish Government have provided certainty of policy on environmental issues and that policy sits at the top of the tree. Investors like that. Investors who believe in corporate responsibility like that. Investors in people and businesses who see the positive social impact that good, sustainable policies deliver to all parts of the community like that. Expert commentators like that. Most importantly, our people—the Scottish people—like that, and it is the right thing to do. That is why it is so important that we as a country protect our carefully thought-out policies—our devolved policies.
I want to give some examples of comments about our policies that have been given to the Environmental Audit Committee. Professor Holgate, who is an expert on the health effects of poor air quality, said:
“Scotland is taking a lead in this area… Scotland has been able to… keep the relationships between the public, health and local authorities intact. In this country”—
England—
“they have drifted apart”.
He praised the Scottish Government’s approach to tackling poor air quality and their adoption of World Health Organisation guidelines on fine particulates into law—the first country in Europe to do so. He challenged England to raise the bar—I like that. Do we need to protect these policies? Yes, we do.
We simply must not get soil health wrong. Sir Peter Melchett and David Thompson attended our Committee. During their evidence, David Thompson said:
“The Scottish Government…have a statutory requirement to produce a land use strategy under their Climate Change Act, which is not the case for the rest of the country.”
Sir Peter Melchett said that the Scottish Government were looking at the science of soil protection 15 years ago and that the science is linking more closely in Scotland than he has
“ever seen happen in England.”
I like that. Sir Peter Melchett and David Thompson are educated, knowledgeable people. Do we need to protect that policy? Yes, we do.
I will now get a wee bit into the crux of the matter, the re-reservation of powers and the possible threat to Scotland’s environment. Emma Barton, the Royal Yachting Association’s planning and environmental manager, and Professor Carolyn Roberts, vice-president of the Institution of Environmental Sciences, both appeared before the Environmental Audit Committee. When I asked them about marine protection zones, Emma Barton said:
“As far as I am concerned we have had a…positive experience in Scotland… I don’t have any particular concerns…in Scotland.”
When I asked Professor Roberts about the possible post-Brexit danger that devolved Administrations would be forced to take things they do not want, such as genetically modified crops or fracking, her answer was yes. Again, I pressed her on whether these powers could be taken back, and she said, yes, of course they could.
The complexity of working out exactly what the devolved Administrations can and cannot do will mean that every legal decision they make in areas touched by European legislation will be open to challenge at UK level. Effectively, this could turn them into paper Parliaments whose decisions could be overturned by anyone with the resources to launch a case at the UK Supreme Court. The Scottish Government agree that common frameworks are needed to guide many legislative areas across the UK post-Brexit, but the frameworks need to be agreed, not imposed.
My last quote is from the Secretary of State for Environment, Food and Rural Affairs, who was sitting in the Chamber earlier. He has said that he had his own “Damascus moment” on environmental issues, which I welcome, but he raised eyebrows at the EAC in November with his answers on devolved matters. He promised to clarify his position, which he has done by way of a letter to the Committee. Or has he? The letter said:
“In particular, we will explore with the devolved administrations whether they wish to take a different or similar approach. We have been clear throughout that we respect the devolution settlements, that we expect more powers to be devolved and that no decisions which the devolved administrations currently make will be taken from them.”
Consider that. I repeat it:
“no decisions which the devolved administrations currently make will be taken from them.”
Post-Brexit, will the Government honour the Environment Secretary’s statement and make the temporary position permanent?
Jenny Chapman
After eight hours of debate, during which I lost count of the number of contributions, I do not think I heard a single speaker on either side say that there was not an issue with clause 11. The Minister seems to accept that it has some deficiency, yet after eight hours he will not say what he thinks it is or how he intends to remedy it. He has not seen fit to accept a single amendment or new clause put before him today, despite saying he welcomes reasonable, practical contributions. For that reason, I shall seek to put new clause 64 and amendment 42 to the vote.
Question put, That the clause be read a Second time.
The Chairman of Ways and Means (Mr Lindsay Hoyle)
Under Standing Order No. 83D(4), I must now put the single stand part question.
Question put (single Question on successive provisions of the Bill), That clause 11 stand part of the Bill; and that schedule 3 be the Third schedule to the Bill.