The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)
My Lords, I thank the noble Lord, Lord McAvoy, for his generous donation of further time to allow me to answer all these questions. I also congratulate him, of course, on his elevation to Chief Whip. I look forward to hearing much more from him in that capacity.
There are, I suspect, a number of challenges that lie ahead for all of us in trying to grapple with the issues we have touched upon today. A number of noble Lords have reflected on the fact that our union is an extraordinary thing and in many respects we sometimes take it for granted. Indeed, all too recently it almost slipped through our fingers. Yet here we are now. We often talk about our constitution, both written—in several documents—and of course unwritten, but in fact, from 1979 through to 1997 and beyond, the sheer volume of change, evolution and, indeed, in some cases near revolution in the way we administer power within the United Kingdom was fundamental. It is important to recognise, again, how flexible our system can be to allow that sort of change to happen without there being a great deal more angst and unease.
I begin by delving straight in to the question of the repeal Bill, since many noble Lords touched upon it. Clause 11 needs to be amended: it is not going to work in its present form. The important thing to stress is that it was not for want of effort on our part—the noble and learned Lord, Lord Hope, was quite correct—to secure a form of words that would allow the two devolved Administrations and the UK Government to reach a consensus on that point. The key thing, and this is why I stress the point, is that this is part of the respect agenda: we must find a form of words with the devolved Administrations to secure progress going forward. As all have noted and accepted, if we do not secure that form of words, the legislative consent motion we will need will not be made available. Then, a constitutional crisis, to use that slightly hackneyed phrase, will be upon us. That is why every effort is being made to ensure that we can find that form of words with the Ministers from Scotland and Wales—always recognising that we are also reliant upon the civil servants in Northern Ireland—who must give us guidance on how we are going to take this matter forward. I wish I could tell noble Lords right now that we have that form of words: I cannot, but I know that discussions are ongoing and all are aware that the time for those words to be agreed is slipping gently away. I believe that on all sides there is now a recognition that we must secure these words if we are to make the progress we would like to make.
The wider question has been asked about the common frameworks and the nature of the laws, and how they will move and migrate. Is work going on to establish exactly what the common frameworks will look like and whether there will be clarity? I assure noble Lords that that is indeed happening. It is being done under the slightly euphemistic term, “the deep dive”: in each of the policy areas a deep dive involves all those involved in the devolved Administrations—Wales, Northern Ireland and Scotland—as well as the UK Government.
The purpose of those deep dives is to identify exactly the areas where there is no need for a common framework—indeed, those roles would then be fully devolved—recognising which ones must one must remain fully reserved and teasing out the complexities in the middle ground. The noble Lord, Lord Lang, mentioned that very point. This is where it becomes a little bit more complicated, but it can be resolved; that is the purpose of the deep dives. Take, for example, a subject that is very dear to my own heart and to a number of noble Lords here today: fishing. At present, fishing is wholly devolved—there is no way round that; it is a clear statement of fact—but it is devolved within the framework established by the common fisheries policy. At present, every aspect of fisheries is broadly administered by the Scottish Government, on the basis of the established framework. Going forward, the question is, what should replace that framework? In many instances, the answer is that there need not be a common framework and these matters will be fully devolved. For example, issues around what I would term technical measures, such as the mesh size of nets, will continue to be taken forward by the Scottish Government in exactly the same manner as now.
Let me revert to other, perhaps broader questions about quotas and quota management. Here, different questions must be resolved. That is the purpose of the deep dive: not to tell the devolved Administrations what the answer or the UK Government position is, but to ask what will work best for our fishermen up and down the land. No fisherman fishes simply on their own little bit. We have a much more mobile fleet; the distant water fleet fishes all across our territorial waters, as well as those of other countries, including Norway and EU countries. We need to find a way to make that work. That is why, in this instance, oddly enough, the term “deep dive” is probably appropriate. We need to find a way to make sure that we can deliver on that.
Deep dives will take place across all policy areas. In the lead, necessarily, are those that are closely connected to Defra and focus on fisheries, agriculture and the environment. However, a number of others are happening as well—though not quite in lock-step—to secure answers, because these are the key points that will allow the devolved Administrations to have confidence that we have taken their concerns on board and intend to move this forward in a manner that respects both sides.
Lord McConnell of Glenscorrodale
On that specific point, we all understand that there is complexity in these policy areas and that there is a difference between the administration of policy and the agreement, implementation and legislation of that policy, whether it be in fishing quotas or anything else. Do the UK Government understand that the key point of principle is not whether there should be a common framework but whether one should be imposed from the centre—or whether the agreement to have a common framework and commit to it should be voluntary on the part of the three devolved Governments and the UK Government representing England?
Lord Duncan of Springbank
I thank the noble Lord, Lord McConnell, very much for his intervention. The respect agenda is at the heart of the answer to that question. The deep dives are vital for each of the participants to recognise that the solution needs a common framework to address the particular challenges. There will be tensions—I do not doubt they will exist—where there is disagreement, where one of the Administrations say, “Actually, in this particular area, we believe this and the other one disagrees with it”.
Part of the bigger challenge is the movement of rules coming back from the EU, where there are—as the noble and learned Lord, Lord Wallace of Tankerness, pointed out—111 laws that directly affect Scotland. For Northern Ireland, it is more than 140; for Wales, it is around 60. Of course, because of the devolved settlements, the rules are different; so again, the point is to try to find areas of common consensus. In truth, representatives of the various individuals who are part of the stakeholder community will each have to be able to defend their points to the stakeholders, to explain to them why they are arguing one way or another. Those stakeholder communities must also lend their acceptance to this particular point, because upon the hearing the outcome of these discussions, they cannot—and should not—rise up in arms and say that it is an absolute travesty and a scandal. They should be satisfied that this is the best and right way of doing things. The important thing to emphasise is that this is not in any way an attempt by the UK Government to demand certain concessions from the devolved Administrations. That is not the ambition at all.
On the wider question of the institutional arrangements whereby the various parties come together and meet, there have been challenges. There is no point in pretending otherwise. I have a very helpful list somewhere. Noble Lords have asked very thorough questions so I have many pieces of paper; I am now hunting for the right one. We had a hiatus between February and October 2017 for one particular reason: the election. That slowed things down quite considerably. The important thing to stress is that for a very long period, the JMC’s arrangement had been all but moribund: it had not been a functional part of the engagement between the devolved Administrations and the UK Government. Recognising that that was no longer fit for purpose, the UK Government have sought to expand the number of forums by which we have agreement under the JMC, as well as recognising that the frequency of those must therefore be driven by the necessity of the particular issues. That is why what would have been the traditional ongoing European legislation—which was the most important forum for the focused issues before the devolved Administrations—is, if anything, the quieter forum. The negotiations forum is now absolutely critical, as is trying to make sure that there are opportunities at those meetings for a free and frank discussion. There are, and I can assure noble Lords that the discussions are very free and very frank.
There are challenges. I am reminded of the words of the noble Lord, Lord Bruce of Bennachie. At the outset, one of the challenges in this area was that it was very hard to reconcile the demands of the different Administrations because they were not bridgeable in simple terms. So, the notion and the paper put forward by the Scottish Government could not be easily reconciled with the reality of what the UK Government believed they had to deliver after the referendum. That caused a lot of the political tensions. It is very hard to meet on common ground when one party is on one side of the chasm and one is on the other; you end up falling to the bottom like Wiley Coyote, with your arms flailing in the air. We were trying to avoid that outcome. It is bridge building that gets us across the chasm, I hope.
We need to give some consideration to the situation in Northern Ireland. Many noble Lords have rightly mentioned that there is a void in Northern Ireland. We cannot pretend otherwise. I can assure noble Lords that my right honourable friend the Secretary of State for Northern Ireland is actively pursuing facilitating the dialogue required to develop a functioning Executive. On more than one occasion, I have said from this Dispatch Box that Northern Ireland is ill served without an Executive. Although the civil service there can do a great deal to help in many different areas, they cannot do everything. That is why it is important to recognise again the need for a realistic and functional dialogue. Those talks are ongoing; we hope that those around the table will recognise the importance of securing agreement on this occasion but we recognise the challenges that we face.
On the question—again, raised by a number of noble Lords—of the agreement reached by the UK Government and the EU before Christmas, which touched on Northern Ireland and the border question, it is important to recognise that that is but one step toward a larger agreement between the UK and Northern Ireland. Without that agreement, there will be significant challenges for both sides. That is why, in this instance, the ongoing negotiations again seek to address the challenges. One would hope that through that, the negotiations will deliver the Northern Ireland question as part of a bigger settlement. Those negotiations are ongoing. I believe—this is where it becomes important—that we often find ourselves, particularly when following certain newspapers, caught up in an almost daily crisis of one sort or another, with the narrative driven forward in that fashion. However, if we step back and think about it, just before Christmas the UK Government managed to deliver on what they said they wished to do: secure agreement on these three key areas, to allow negotiations to begin shortly thereafter. They achieved that. From some of the reporting, you would have thought that they had failed, but they did not. They moved things forward in that fashion.
The time ahead will not be straightforward. I realise that we will have plenty of opportunities to discuss further the questions that underlie the repeal Bill. I am sure that many of the contributions made today will help inform the Government as they begin to think about how best to approach the investigations into the repeal Bill and its functionality. But we will have to resolve those questions here in such a fashion that we can return those amended clauses to the House of Commons to allow them to deliver upon that. I believe that we will make a difference and, indeed, do what this House always does: seek to make things better. I think the Government will appreciate the work done here in that area.
We have to recognise that the union is perhaps something larger than just the moment of Brexit and the discussions that surround it. A number of noble Lords have pointed out today that immediately after the referendum on Brexit, there was a great fear that our union would itself begin to experience some of the challenges but in truth, there has been a degree of resilience. As we witnessed through the, shall we say, unexpected general election last year, the parties that had perhaps anticipated doing better, certainly in Scotland, did not do so on the basis of what they offered the people. That should be a salutary reminder to anybody who believes that they have the people behind them: it is always worth looking over your shoulder, just to make sure they are still there. You cannot take the people for granted in this regard. The result of that election was a useful reminder to us all to focus on what the people want, whether that be the people of Scotland, the people of Wales or, I hope soon, the people of Northern Ireland.
We in this House must recognise that we have a role to play in ensuring that our union works, and works well. That is why I am indebted to my noble friend Lord McInnes for bringing before us today an opportunity to discuss and explore these issues. It is timely because next week, we will be knee deep in thorough discussions on the questions before us regarding repeal. As I try to answer the questions, I am aware how useful that will be to my colleagues in facilitating, I hope, the right sort of dialogue as we go forward. But I am also aware that there is heavy lifting to be done and we have not yet resolved these issues. On the question of Clause 11 as it affects the devolution settlement, we need to be able to bring before your Lordships a workable amendment that can deliver exactly what it says on the tin—and when we tell your Lordships that we have it, we are telling you that other people in Edinburgh, Wales and, through consultation, Northern Ireland agree that this is the way forward. That should allow us to make that necessary step.
When I began my remarks, I pointed out that in some respects we have been through a revolution, as only Britain can do, in the way that our powers have moved. But we have done so in a piecemeal fashion; again, a number of noble Lords made this point. We need now to refocus on trying to ensure that we are not making stumbling progress but have a clear objective: to make sure that the devolved Administrations fit into a sensible and workable government structure for the United Kingdom. People have to recognise that whether they are in Edinburgh, Wales or Northern Ireland, they have two Governments, not just one. It is important to stress that. Again, we need to be better at explaining to people what the Governments are doing and what their actual responsibilities are. Quite often there is sheer confusion on these points.
Lord Wallace of Tankerness
I generally agree with the point the Minister is making but, as part of that better integration, will he respond to the suggestion I made, based on the Canadian experience, that Northern Ireland officials and Scottish and Welsh Ministers might also be involved at the table in the forthcoming phase 2 negotiations?
Lord Duncan of Springbank
The noble and learned Lord, Lord Wallace, makes an important point. As a Member of the European Parliament many years ago—no, last year; time is just slipping through my fingers here—I am very conscious that the discussion was always about who sits at the top table and therefore represents the United Kingdom. I was always of the view that the table in London, where all the devolved Administrations argued these things through, was as important as the seat at that top table. Determining the UK position in this instance will be exactly the same. We must deliver a UK position which is part of the respect agenda and delivers for the peoples of Scotland, Wales and Northern Ireland that which is right, workable and appropriate. I can assure your Lordships that those will be dingdong discussions around the tables in London, where the heaviest lifting will be done. As to the point the noble and learned Lord makes, to be frank I do not know the answer, but the important table is the one where we bring together all these individuals to make sure that we are positioned to deliver on behalf of the people we represent.
I am conscious, again, that I am perhaps overstaying my welcome. On this day of Robert Burns, we are conscious that we celebrate that across the globe. So perhaps I might close with some words of Burns, which I thought were slightly appropriate:
“O let us not, like snarling curs,
In wrangling be divided,
Till, slap! come in an unco loun,
And wi' a rung decide it!
Be Britain still to Britain true,
Amang ourselves united;
For never but by British hands
Maun British wrangs be righted!”.