Brexit: Devolved Administrations

Lord Kerr of Kinlochard Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

It is a pleasure to follow the noble Baroness, Lady Humphreys, and I agree with virtually everything she said. The noble Lord, Lord McConnell of Glenscorrodale, started with Burns, and I think the text for our debate should be:

“O wad some Power the giftie gie us

To see oursels as ithers see us!”.

We do not know enough of the facts of what is going on between the devolved Administrations and the central Administration, but the perceptions around are worrying, and I want to talk about the perceptions.

I have bored the House about this before, but it is a great pity that the governing party in Scotland is not represented here in our debate to tell us what it thinks is and should be going on. I hope that if the recommendations of that other Burns—Terry not Rabbie—are put into effect, it will become impossible for the SNP not to be represented here. If, when they are democratically entitled to a finite number of seats, they choose to leave them vacant, they will be following the policy of Sinn Fein in the House of Commons, whereas the SNP Members of the House of Commons are making a very important contribution to the Brexit debate, and there should be SNP representation here. If they do not change their policy, the perception in Scotland will be that they are letting an arcane point of party theology get in the way of representing the best interests of Scotland in this debate.

I shall make three points. The first is one that the noble Baroness, Lady Humphreys, made more clearly than I could. It is absurd that the co-ordinating committee did not meet between the beginning of February and the middle of October last year. A committee set up to provide oversight of the negotiations did not meet at all. That was a mistake.

It was a mistake, in my view, that the devolved Administrations were not consulted before either the Lancaster House or the Florence speeches. It was a mistake, in my view, that central government did not focus on and take seriously the Welsh proposals for a dispute settlement procedure and the Scottish White Paper of 2016. I hope they will take seriously the economic White Paper published just the other day on the macroeconomic effects of leaving. They should at least go through the motions of taking these things seriously. The perception is that it is a little insulting if one does not have a dialogue. The perception—a silly perception, perhaps—is that Boadicea’s chariot rolls ahead and the subject Celtic races are scattered at her chariot wheels.

As for the Bill, the noble and learned Lords, Lord Wallace of Tankerness and Lord Hope, are much greater experts than me, but it seems on the face of it that Clause 11 means that in areas of devolved competence, UK Ministers are in future to be free to legislate without seeking the consent of Scottish Ministers. While the UK Government may amend retained EU law, the devolved Administrations are required to keep that constraint on their action: they are not allowed to divert from retained EU law. So the perception in Northern Ireland, Wales and Scotland is bound to be that not only are they not taking back control, they are losing a bit of the control that they already have. I do not know the facts—I can judge the Bill only by what is said in it—but this is a very dangerous perception to have.

I understand that there is a concordat that the devolved aspects of proposed legislation are meant to be squared away between central government and the devolved Administrations, if there are any devolved aspects, before Bills are published. Clearly that did not happen in this case, as all amendments to Clause 11 have been rejected, and we are told we must wait. I have a high regard for Mr Lidington; he is a skilful negotiator, and I hope he can crack this problem. Like the noble and learned Lord, Lord Hope, I do not think that should be a particularly difficult problem. If it is not cracked with sensible government amendments, we in this House will have to do our best to correct the Bill. It is dangerous that the perception is widespread—I cannot speak for Wales and Northern Ireland but certainly it is in Scotland—that Mr Davis did not care very much about the views of the devolved Administrations. Perceptions matter.

Another point, which is much more delicate and difficult—and on which I am not an expert—is that Northern Ireland voted to remain. It is represented in the other place only by a party that wanted us to leave. That party support is now crucial to the survival of Mrs May and the Government. As Stormont is suspended, there is no democratic forum in which the views of the majority, who voted to remain, can be presented and debated. That strikes me as a very dangerous situation, and I am alarmed that it runs on. There is a risk of the perception that it suits the DUP very well. I was very sorry that Mr Brokenshire had to step down. I have never met Mrs Bradley but I wish her well. I note that in the past, in the days of Mr Major and Mr Blair, it took the personal involvement of the Prime Minister to crack heads together in Belfast. I recall at least one occasion when the only thing on which Mr McGuiness and Mr Paisley agreed was that a proposal put forward by Mr Blair was absolutely and completely wrong. That is a start.

Are we sure that we are being sufficiently proactive? This stalemate has run on for a very long time. I do not know when the Prime Minister will herself conduct talks in Belfast but she will have to do so. The perception, which may be unfair, that she is staying aloof and keeping out of it is very unfortunate. As the lawyers in Brussels attempt the impossible task of turning into treaty language that absurd December formula on the frontier, “internally inconsistent” can make sense only if either the Republic elects to leave the customs union or the UK as a whole elects to stay in the customs union. Neither Mr Varadkar nor any political party in Dublin recommends the former course and the Prime Minister has shut her face right from the start against the latter course.

I do not know how the Government envisage squaring the circle. Any solution will require enhanced political dialogue with and among the political leaders of Northern Ireland. We need to avoid the perception that the London Government are interested in only the views of the minority in Northern Ireland who voted to leave the European Union.