United Kingdom Internal Market Bill

Debate between Lord Bruce of Bennachie and Duke of Montrose

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 26th October 2020 Lords Chamber

[The Duke of Montrose (Con) [V]]

My Lords, it is a great pleasure and honour to be able to participate in this very important legislation. The search for common frameworks is something that has concerned me from the minute we went down the Brexit road. I would like to support the amendments that were put forward in the name of the noble and learned Lord, Lord Hope. I was also interested to hear the analysis by the noble Lord, Lord Vaux, of ways of solving problems.

It is very important that we go into this area in great detail. I congratulate the noble and learned Lord, Lord Hope, for bringing it in, in this way, this early in our discussion. What he gave us is a very fair and understanding analysis and I hope the Government will pay due attention to the issues that he outlined. We have also been privileged this evening to hear from four Members who have worked on the frameworks committee, and it is of course also very important to look at what they said. I was interested in the way that the noble Lord, Lord Foulkes, supported the issue from the Scottish point of view.

I would like to offer my support to Amendment 170, in the name of the noble and learned Lord, Lord Mackay, which he moved in his intervention. It is very important that agreements that are achieved are formally notified to Parliament, and that was the point he was making.

It is not a direct parallel, but noble Lords will probably remember that, on the introduction of the Scottish devolution Bill, the parties concerned when it was brought into practice in the Scottish Parliament found that they had to achieve a memorandum of understanding. One of the things that was contained in the memorandum of understanding was the Sewel convention. Here in Westminster, we received no details of what this memorandum of understanding contained. One was left wondering how some of the agreements were arrived at. This of course was rectified when we next looked at the Scottish devolution Act and the actual practice was brought in, in a legislative form, under that Act. We need to be kept fully up to date with the agreements that Governments come to. I support that amendment.

[Lord Bruce of Bennachie (LD) [V]]

My Lords, I also am a member of the Common Frameworks Scrutiny Committee. I would like to give my appreciation to the noble Baroness, Lady Andrews, for the way in which she is chairing the committee. It has a hugely demanding task, which we are all learning extremely fast.

The noble and learned Lord, Lord Hope, is of course a member of that committee. The combination of his work and his expertise in the law has been demonstrated to be one of the strengths of the House today in the amendments that he has drafted, moved and explained in such meticulous detail. This is of huge benefit, and I hope that the Minister will recognise that he should give very serious consideration to what is being proposed.

I do not have the audacity to summarise the noble and learned Lord, other than to say that his basic questions were these: how do the frameworks fit into the Bill, and how will future arrangements be conducted if there is not a proper correlation between the frameworks and the Bill, and indeed the principles behind the frameworks? That is something that we have all been asking the Government to explain.

European Union (Withdrawal) Bill

Debate between Lord Bruce of Bennachie and Duke of Montrose

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[The Duke of Montrose]

My Lords, perhaps I may come in here to congratulate the Minister on how far the Government have got in solving this rather knotty problem. As I go with this, I feel that I should re-emphasise my authority for speaking as a Scot and as a nationalist, rather as my noble and learned friend Lord Mackay of Clashfern did. Mine is founded rather more in history than in current experience, in that members of my family have fought and died for Scottish independence on a number of occasions. They were also responsible for sitting on the whole negotiation for the Acts of Union.

I am not sure whether I can fully accept what the noble Lord, Lord Steel of Aikwood, said about all measures going immediately to Scotland. The provision that I tried to raise when the noble and learned Lord, Lord Wallace, was speaking is that what is devolved was devolved under Schedule 5, but Schedule 5 was subject to the earlier parts of the Act. In attempting to modify Section 29, we are in really novel territory because that provision has remained as it was put in the Act in 1998. This is the first time that we have had to take a hatchet to it but the remaining subsection says that the Scottish Parliament will exceed its powers if it tries to legislate for any provision which,

“would form part of the law of a country or territory other than Scotland”.

A great many of the powers that are coming back affect all parts of the United Kingdom and that element has to be sorted out.

It is very good to hear from the Minister how the agreement on dealing with the powers from Brussels has been achieved. However, it sounds—or rather, it sounded at the start—as if the Scottish Government had the same view as the noble Lord, Lord Steel of Aikwood: that all law should immediately be devolved to them. This is clearly not going to do. Accompanying a letter from the Chancellor of the Duchy of Lancaster was a table, which explained the Government’s view at that point on sorting out what was, I think, a total of 167 measures that they had identified in EU legislation as needing to be addressed. Of these, at that point they had no problem with 12 that needed to be reserved and 49 that could be immediately handed over. Can the Minister give us an update on the Government’s view on how many of these laws could immediately be handed over now, as I am sure that they and such things have been subject to negotiation over the Easter period? At the same time, however, we would like to know what legislative process will be put in place to achieve the handing over to the devolved Parliament and Assemblies and how long it is likely to take for those measures.

One or two noble Lords have quoted from the letter of 26 April from the First Minister of Scotland. The noble and learned Lord, Lord Hope of Craighead, has provided a very good outline of how Section 30 will work. I have no doubt that many of us have much to learn about that. I was slightly worried about the First Minister’s second suggestion in her letter, when she talks about,

“the existing constitutional arrangement where changes to devolved competence are to be made under Section 30 … by Order in Council subject to the approval of both the Scottish Parliament and the UK Parliament”.

I was led to wonder whether an Order in Council, if passed by Her Majesty, was actually subject to approval by the Scottish Parliament at that stage, whereas I think that the amendments that are now in place are suggesting that approval would be sought and, with any luck, granted before the application was made for the order. If the Scottish Parliament were being offered the chance to turn down such a thing as an Order in Council that had already been made, a constitutional change in this order would need more than a memorandum of understanding, which is how the present system works.

[Lord Bruce of Bennachie (LD)]

My Lords, I am comforted by the fact that all of the learned noble Lords who have contributed have acknowledged that this is an extremely complicated situation, one in which there are clearly differences of views. Indeed, the submission that we have had from the Law Society of Scotland took a similar view. However, I also recognise that it is just as well that it is complicated because Clause 11, in its initial format, was brutally simple and wrong. We therefore have got to a position where, after some time, we are now able to debate something that acknowledges the difficulties that Clause 11 originally contained.

Everybody has genuinely welcomed—and should rightly welcome—the progress that has been made, the spirit with which it has been made and the work that has been done to get to a situation which genuinely acknowledges that what we are trying to do is find a decision-making process that carries everybody with us, recognises legitimate interests, but is always left with the elephant in the room, which is, “Where does the buck stop?” Clearly, the buck ultimately stops with the UK because we are a United Kingdom. That, of course, is not entirely acceptable to people who do not believe in the United Kingdom and do not wish it to continue.

It is fair to say that Mike Russell in particular has, on more than one occasion, acknowledged constructive progress and engagement. Indeed, many of us have the view that, left to his own devices, the Scottish Government might have accepted where we are today. The First Minister clearly has not. She has not only sent a letter here to the Lord Speaker, but made fairly—shall we say—lively representations in the Scottish media as to what she thinks is intended. The trouble is that what she said might be legitimately attached to Clause 11 as it was, but it does not legitimately attach to where we are today. That is why the sentiment of this House—and I suspect the sentiment of those people in Scotland who think about it—is that the Scottish Government should be very careful that they do not over-push their position, because Scotland has voted to be in the United Kingdom, is part of the United Kingdom, and recognises that there are shared interests, where we will need to make decisions together. The issue is: how do we find a process that has the trust and confidence and the interests of everybody that can be taken on board?

We might eventually have to talk about a federal constitution; the noble Lord, Lord Wigley, was the only speaker to mention quasi-federalism. We are stumbling towards a federal United Kingdom and we may need to acknowledge that, because federalism would provide a legal framework in which the powers were clearly stated in law and disputes were resolved through a constitutional court.