Brexit: Devolved Administrations

Lord Lang of Monkton Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, I will try to be brisk but not brusque. To follow a speech by the noble and learned Lord, Lord Hope of Craighead, is always an invaluable education, and I shall read his speech afterwards, as will others, I am sure. I must comment on the undue modesty with which my noble friend Lord McInnes introduced the debate. He laid it out brilliantly for us, and we are grateful to him for opening up this subject for debate today, although with the Second Reading of the European Union (Withdrawal) Bill next week it feels a little like a Committee stage ahead of Second Reading. We are still waiting for the long-promised amendment and without it the debate is a bit like “Hamlet” without the prince.

Nevertheless, I particularly welcome the positive tone of the second part of my noble friend’s Motion, and I hope to find time to say a word or two about that. I found much to agree on with earlier speakers. There is a positive tone in this House and I hope in Parliament as a whole over how to address these negotiations, but sadly the positive tone is not to be heard much from Scotland, least of all on Brexit. The persistent calls for the unattainable are rebuffed not by the Prime Minister or by this Government but by such names as Barroso, Juncker, Van Rompuy and Tusk, because that is where they have been applying. They have made it consistently clear to the Scottish Government that Scotland is not a sovereign nation state—something that was settled firmly, again, in 2014—and therefore special deals on such things as the single market or anything else are not in the EU’s gift to the Scottish Administration.

If the Scottish Administration want something gloomy to talk about, they could focus on their record on Scotland’s economy. Rather than using a crystal ball, they could look at the past 10 years which, according to a Fraser of Allander report, show output per head in Scotland growing by only 1.2% compared with 4.2% in the United Kingdom as a whole. Forward projections remain equally poor, and in Scotland we are teetering on the edge of a recession. That is probably why the Scottish National Party prefers to talk about Brexit.

The fact is that if the Scottish Administration would but admit it, the Government’s commitment to working with them on Brexit is strong, and so is their record. On her first day in office, the Prime Minister went straight to Scotland to talk to the First Minister. In the White Paper that came out a year ago, the maintenance of all the interests of all the parts of the United Kingdom was a very high priority in the list of priorities. The Joint Ministerial Committee has found new life with the development of the European negotiations sub-committee, and in other forums there have been many meetings, so there has been a constant emphasis on consultation and working together carrying through into the withdrawal Bill next week.

In a report published last March by the Constitution Committee ahead of the publication of the withdrawal Bill, we stressed the need for consultation and co-operation between the Government and the devolved Administrations and that they would need to manage the new interfaces and potentially overlapping responsibilities between reserved matters and devolved competence in areas where the writ of the EU would no longer run. That consultation and co-operation has been happening, mainly through the use of the Joint Ministerial Committee and the EN sub-committee, with repeated comments that talks are going well and with agreement on principles for the common frameworks reached last October, so it is not all bad. It seems to me that the body of legislation returning to the United Kingdom has to come, in the first instance, to the nation state, the entity that the EU recognises and that is handling the Brexit negotiations. But it is equally clear that many of the repatriated powers should pass on as quickly as they can, if not immediately, to the devolved Administrations within whose competences the subjects lie. Equally clearly, where the national interest dictates, some specific powers should remain at Westminster.

So diverse and varied is the range of forms and status of EU legislation accumulated over the past 40 years and more, and so complex the task of absorbing them into the appropriate legislative form within the United Kingdom and for the devolved Administrations, against a looming deadline and the possibility of further last-minute amendments from Brussels, that it feels not so much like a three-dimensional jigsaw as a kaleidoscopic whirlpool. So it is not surprising that while some measures fall clearly to the sovereign Parliament to take, and others clearly to the devolved ones, a few in the middle will still pose problems.

For example, in agriculture, as has been mentioned, the possibility of trade deals inhibits full devolution at present. On the environment, some aspects will require national uniformity in the interests of all of us. There will be some pieces of delegated legislation that flow from the European Communities Act that, once repatriated, would be better placed not in delegated legislation but in primary legislation. These are the issues that can fall into place over time, but they have to be handled with understanding on both sides. It is important, however, to stress that not one of the powers the devolved Parliaments hold at present will be lost in this exercise: what they have, they will hold, with many more to come shortly. So there is no question of a power grab, and it is a pity that bogus claims of that kind should be introduced to distort the picture and poison the atmosphere.

The Motion speaks also of,

“future opportunities for strengthening the union”,

which is a welcome, positive approach to something that is still fraught with difficulty. My noble friend Lord McInnes was kind enough to refer to two reports produced by the Constitution Committee a couple of years ago on precisely this subject. They were debated last October, so clearly for two years the Government considered that we had given them food for thought. I will paraphrase them as concisely as I can.

The first report addressed the union itself and argued that any further consideration of constitutional change should include the interests of the union as paramount, and that nothing should be done to its detriment. There should be no more “help yourself” devolution, without a thought for the wider consequences. The second, on intergovernmental relations, argued that the Joint Ministerial Committee should be developed in a much more consensual and even-handed way, with numerous improvements to its use and procedures. We also called for a new mindset in the relationship between the UK Government and Parliament and the devolved Administrations, whereby United Kingdom departments would abandon the “devolve and forget” habits that seemed to have taken seed in many of them around the country and to afflict some of them, and instead introduce much closer relationships, particularly on policy development.

The Government’s response to these recommendations was less than wildly enthusiastic, although they did claim that much was already being done. I echo the thoughts of those who have urged that they have another—indeed a continuing—look at the various suggestions we made. I hope that things are improving and that that will be carried forward further in the future.

But of course, good will on both sides is needed. One has to hope that, over time, the devolved Administrations will shed their apparent resistance to the hand of friendship and settle down to make their powers work better, for the benefit of their citizens.