Brexit: Devolved Administrations

Lord Hennessy of Nympsfield Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

My Lords, I declare my membership of the advisory council of These Islands.

As a remainer and a United Kingdom man to my last fibre, I was fearful in the gap between the Scottish and the EU referendums, as was the noble Lord, Lord McInnes, and other noble Lords, that a vote to leave would reinflame the UK question—that some might argue in Scotland that the vote not to separate in September 2014 largely, if not wholly, turned on economic factors and that the deal was now off, as the UK, thanks to the June 2016 EU referendum result, was set to build a very different kind of political economy for itself. Another referendum on the question of Scotland might therefore be justified if the thrust of this argument carried force.

If such an outcome occurred—as that great political scientist Lady Bracknell might have expressed it—to lose one union may be regarded as a misfortune; to lose both seems like carelessness. I profoundly hope that the union of the UK is not fractured in the future, for it would be a misfortune of the highest order, changing the nature of our country and the very way we imagine it and seriously diminishing thereby our place in the world.

If dealing with the consequences of Brexit turns out, as the wording of today’s Motion hints, to be a successful co-operative effort between the UK central Government, this Parliament, the devolved Parliament and Assemblies and their Administrations, it would be a conspicuous enhancer, rather than a diminisher, of the union of the United Kingdom. I dearly hope that that occurs.

But some peril lurks in the devolution clauses of the European Union (Withdrawal) Bill. To my regret, I shall be away from London on one of the days when your Lordships’ House will be debating it at Second Reading, but had I been able to speak this is the area on which I would have concentrated, for here lies a mixture of delicacy and complication. Rereading recently the European Communities Act 1972, I was struck by the contrast with the withdrawal Bill shortly to come before us. Both are what one might call pipeline measures, the first pouring existing Community legislation into our islands on 1 January 1973 and the second repatriating the powers that we have pooled with our European partners since that date.

But in 1972-73, there were no devolved Administrations; they are creations of the late 1990s. If we consult the official history of the UK’s successful entry negotiations penned by that great public servant, the diplomat Sir Con O’Neill, who led the official negotiating team—it is now declassified and makes a fine and fascinating read—we find very little on Scotland, apart from a few pages on fisheries. For example, those two formidable figures of post-war Scottish politics, Jo Grimond and Lord Boothby, were eloquent about the needs of inshore fishermen seeking their harvest in the testing waters of The Minches, the exquisite seas around the northern isles and the fishing grounds within reach of the north-east coast of Scotland.

But it was a different world. Since then, for example, Section 57 of the Scotland Act 1998 bathes the whole devolution settlement in EU compatibility. As the noble and learned Lord, Lord Wallace of Tankerness, noted, as part of the withdrawal process, some 111 functions are in play that contain a devolutionary element, 80 of which are pretty non-contentious, I understand, but the 31 others might be. As we have also heard, a network of joint ministerial committees, with groups of officials supporting them, has been at work on these problems, mindful among other things of the needs of the UK’s own internal market functioning as it should.

But have your Lordships noticed the paucity of coverage of this critical process by the London-based press, certainly compared to the Scottish newspapers? Yet this is a first-order problem in multiple ways. If the process seriously bruises the internal political and institutional relationships of the Queen’s kingdom, that very kingdom, at best, will function more rancorously in the years after Brexit and, in the worst case, it might be rent asunder.

These intra-UK negotiations will test the mettle of our Ministers and officials in Whitehall and throughout the devolved Administrations, and they have my sympathy in the delicate and difficult task in which they are engaged. I would value greatly a report on the work in progress so far when the Minister winds up. May I request also, henceforth, regular updates for your Lordships’ House on the process of those joint ministerial groups? That would be of immense value to us.

The devolution clauses of the withdrawal Bill that we shall soon debate are crucial for the well-being of our people and the proper functioning of our institutions. It would be truly tragic if Brexit mutated into the eventual dissolver of the union that for more than 300 years has turned us into a most extraordinary United Kingdom atop our damp little archipelago in the cold northern seas.