Lord McConnell of Glenscorrodale
Main Page: Lord McConnell of Glenscorrodale (Labour - Life peer)Department Debates - View all Lord McConnell of Glenscorrodale's debates with the Scotland Office
(6 years, 5 months ago)
Lords ChamberMy Lords, again I am grateful to my noble and learned friend for the way in which he has introduced this group of amendments. It is absolutely essential that we remember the principles of legislative competence and what has been devolved, and that we try to cut across the technicalities. It is also important to remember that the devolved Governments of Scotland and Wales should not be faced with any implementation framework in which they will have no decision-making power in negotiations and which intrudes on their area of competence.
Our withdrawal from the EU seems to be quite a tangled web. The job of those sitting in Cardiff and Edinburgh is to serve their constituents and defend the rights that they fought so hard to earn in the first place; it is not to return such rights in legislation to Westminster without being sure that it serves their populations well. That is why it becomes so important to make sure that there is an equality of voice in working out these different aspects of legislation.
When it comes to tertiary legislation, it is even more difficult to understand why there would not be such an equality of voice—I find that quite bizarre. I am afraid that, as the noble Baroness, Lady Hayter, said, the way that the Joint Ministerial Committee has worked to date has not been as good as it might have been, and I hope that today will mark a watershed and a complete change in those relationships.
It is important to remember that EU law was in place when we went to devolution. Therefore, as things come down from Europe, they should drop equally into the three Governments of Wales, Scotland and England, and, where they affect the whole of the UK, they should be looked at on a UK-wide basis. However, that does not mean that all of a sudden Parliament has a complete say over what goes on in the devolved Administrations. There is an equality of voice that must not be eroded by the process.
Therefore, these amendments are really important and I am glad that the Minister said that she will look at them carefully. It is very difficult to know which bit we should look at in great detail and tweak—although it will be more than tweaking; it will probably need a massive rewrite. It is not for the Committee to do that; it should simply raise the concerns, with the rewriting to be done afterwards. We will come to the main debate soon.
My Lords, I want to reinforce the important points made by the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Finlay. I have spoken before in your Lordships’ Chamber about the importance of clarity in the devolution settlement and the difference that it has made to the relationships between the Scottish Government, the Scottish Parliament, the UK Government and the UK Parliament over these last 19 years. The lack of serious or unresolvable dispute about where the legal powers lie has been the result of that initial clarity in 1998.
The one area where there were problems, particularly in the early years, related to the fact that the Scottish Parliament and the Scottish Government had responsibility under the Scotland Act in relation to EU law. The difficulties and legal challenges, both inside Scotland and to the European Court in relation to the actions of the Scottish Executive, the Scottish Government and the Scottish Parliament, were in relation to that relationship.
Therefore, clarity is required as part of the debate and discussion on the Bill—perhaps not today, given the assurances from the noble Baroness, Lady Goldie, on the Government’s behalf, but certainly following the debate on Clause 11. It is vital that we have greater clarity and the right principles behind whatever replaces the current wording in the Bill on the matters raised by the noble and learned Lord, Lord Hope.
Your Lordships should appreciate that the devolved Administrations can make law but have been constrained by EU law in the areas of their competencies. If EU law is taken away, we would expect the devolved Administrations to carry on without that constraint. Previously, there had been no constraint on their making law within their competencies from Westminster, only from Brussels. Taking away Brussels suddenly imposes Westminster constraints on the devolved Administrations in areas such as agriculture, which have been devolved to them, but it also means that the devolved Administrations cannot make any changes to the law at all—even when it is, for example, an agricultural matter. It is not simply taking away the constraint of Brussels, but imposing something entirely new. Westminster politics comes into it then; considerations that have not emerged into the arena before suddenly become important. That is why these are matters of principle and deeply difficult to resolve.
I was so pleased to hear the noble Lord, Lord Hennessey, say that this was such a difficult area because I suggested in my Second Reading speech that we should have taken devolution completely out of the Bill. At that point, the Government would have had no problem in getting legislative consent from Scotland and Wales and could have sorted out devolution issues as a completely separate matter. Now, your Lordships are listening—in the context of the EU withdrawal Bill—to a very difficult issue.
With respect, pursuant to our international treaty obligations, we bound ourselves at the level of international law to allow the EU to exercise competence in areas where previously the UK Parliament would have exercised it. That was then implemented in domestic law by virtue of the 1972 Act. Of course a sovereign Parliament is always able to repeal the 1972 Act, as it is now doing, but so long as it remained in place, and so long as we remained party to the relevant treaty—which became treaties—we were bound in that context. I do not entirely agree with the analysis, but I do not believe it is material for the present purposes, if I may respectfully say so.
Once Brussels had certain competences, it then exercised them. It was important that Brussels should exercise them in one area in particular, which was the development of the EU single market, as no one else could have exercised jurisdiction over a single market in the EU. The idea that 12—now 28—individual jurisdictions could have maintained the single market is self-evidently untenable, so Brussels exercised that jurisdiction, for very good reason. When we leave the EU, we will find ourselves in the position where we want to maintain an internal single market in the United Kingdom; the noble Lord, Lord Foulkes, referred to that, while the noble and learned Lord, Lord Hope, said we are looking forward to the internal market in the United Kingdom. We have to bear that in mind. What Parliament is in a position to legislate for a UK single market? The answer to that is the Parliament that has jurisdiction for the whole United Kingdom. I will come on to the issue of devolved competence in a moment, but generally speaking if you are going to maintain a single market you need a legislative power that is able to do that for the single market.
Lest anyone interrupt just yet, I add that of course by their very nature the devolved Administrations, parliaments and assemblies have responsibility for devolved powers in their respective nations. We respect that, of course, but there is an issue here that has not yet been mentioned. We identified, on the basis of analysis that was carried out with the devolved Administrations, that there were some 153 areas of competence where—
Before the Minister moves on to the detail of those competences, I want to challenge the analysis that he has given about the comparison between the UK single market and the EU single market. No one would have suggested at any time in the last 26 years that the relationship between the United Kingdom and the EU single market, and the decision-making around the EU single market, would have been such that the decision-making on the EU single market would have been left solely to the European Parliament and the European Commission. It was not. The decision-making around the EU single market was done primarily by the Council of Ministers, and in the Council of Ministers some aspects of that single market were determined by absolute consent, where the UK had a veto, while some areas were determined by qualified majority voting. We cannot replicate that arrangement with one that leaves the sole decision-making power after consultation, without consent, with the UK Parliament and the UK Government in relation to areas where currently the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly would have legislative competence.
I do not entirely agree with the noble Lord’s analysis but for the present purposes I am not sure that it is particularly relevant. What is relevant is this, if I can continue: we have identified about 153 areas in which, upon our leaving the EU, competences will return and touch upon areas of devolved competence. These are areas that the devolved parliaments and assemblies previously had no engagement with because they lay in Brussels, but they are coming back and touching upon these areas of devolved competence and we recognise that.
However, some of these areas of competence are critical to the maintenance of a single market in the United Kingdom, as I will illustrate in a moment. Those therefore had to be addressed. We did that by engaging with the devolved Administrations and assemblies in the context of the Joint Ministerial Committee negotiations. I take the point made by the noble Baroness, Lady Hayter: there may be criticisms of that process but I respectfully suggest that that is not for this Bill. It is important to notice the achievements made by that committee in this context. In particular, noble Lords may have received a copy of the communiqué of 16 October 2017 from the Joint Ministerial Committee, which was attended by Mark Drakeford, a Cabinet Secretary in Wales, and Mr Russell, a Minister from the Scottish Government, among others, including senior civil servants from Northern Ireland in the absence of their Executive. I shall quote briefly from it, although some aspects are referred to in some of the proposed amendments:
“Ministers noted the positive progress being made on consideration of common frameworks and agreed the principles that will underpin that work”.
The definition of those principles includes the line:
“A framework will set out a common UK, or GB, approach and how it will be operated and governed”.
Then there is a list of principles:
“Common frameworks will be established where they are necessary in order to … enable the functioning of the UK internal market”—
for example, to,
“ensure compliance with international obligations; ensure the UK can negotiate, enter into and implement new trade agreements and international treaties; enable the management of common resources; administer and provide access to justice in cases with a cross-border element; safeguard the security of the”,
United Kingdom.
That is not what is in contemplation, and that is why I am trying to explain the Government’s thinking with regard to maintaining effectively a single market, not frictionless borders between nations within the United Kingdom, which is a different issue altogether and one that does arise in a different context.
I will not take this opportunity to contest some of the points that have been made about, for example, fertilisers, although I think there is a debate to be had about the way in which the Government describe that issue. It is not helpful to the heat generated around this debate when the examples the Government give for the need to retain the power imply that decisions that would be made in Scotland or Wales would be stupid. The Government need to think hard about the fact that when they describe the need for these single market frameworks in the UK, they should do so in a positive way in terms of the UK having regulations that work together.
On the substantive point about the frameworks, the issue is not the list of 24, but how they will be agreed and who will have the ultimate decision-making power. It is not about what is or is not on the list. That is a matter for negotiation and determination within the existing settlements. The issue here is who agrees the frameworks, how they are agreed and who ultimately has the power to veto them or otherwise. That is the substantive issue I would ask the Minister to address.
I wholly reject the implication that we are suggesting that any of the devolved Administrations are going to proceed to legislate, with any of the competencies returned to them, in a way that would be regarded as stupid or unacceptable. That is a most unfortunate gloss to put on the matter. It is, however, very helpful that the noble Lord, Lord McConnell of Glenscorrodale, has raised the question of how we are going to deal with the issue in this context. The framework agreements have been the subject of ongoing negotiation among all of the Administrations, but in order to achieve that it is necessary to retain competencies in those areas so that there is not the prospect of legislation within the devolved areas which impacts upon areas outwith their competence. To give a simple example in that context, the Scottish Government are entitled to exercise devolved competence and powers within Scotland for the Scottish people, but if we allow all of the additional competencies to go back to the Scottish Government and they legislate in an area such as food labelling, that impacts on the people not only of Scotland but of England, Wales and Northern Ireland. There is therefore, in a sense, a veto over proposals for the internal market, with one devolved Administration saying, “No, we don’t like your proposals on food labelling. We know everybody else likes them but we’ve decided we don’t like them, we’re not going to consent to them, so you can’t have them.” That is the problem that we want to ensure does not arise.
Coming more particularly to the point that was made about how this is decided, we do ring-fence, as it were, the 24 competencies—or elements of them—that have been identified following the consultation process with the devolved Administrations and which are reflected in the principles that I quoted from the Joint Ministerial Committee on 16 October last year. Then, we have to formulate framework agreements, essentially, in each of these areas for the United Kingdom.
Taking up the noble Lord’s point on how we are going to implement those, we will do so by way of primary legislation. And where do we find ourselves? Back in the relevant devolved legislation, which says that we will not normally legislate in respect of these devolved areas except with the agreement of the relevant devolved Government. So the relevant safeguard is exactly the same as the one that exists at the present time. What we propose will not intrude on the devolved competence in Scotland, Wales or indeed Northern Ireland. It retains 24 areas that are coming back from the European Union in order that we can work out what is required for the purposes of maintaining a single UK market. However, what would alter the devolved competencies quite fundamentally would be a provision that said that we could retain those areas of competence only with the consent of each of the devolved Administrations. That would give them a veto over matters that went beyond their present devolved competence and a veto over matters that impacted on England, Wales, Northern Ireland or Scotland, depending upon who was doing it. That is why we have set out matters in the way that we have. When we come on to the amendment to Clause 11 in due course, I hope that, having essentially flipped Clause 11, we can reflect on the great progress that we have made to date in these areas. It is in that context that I simply invite the noble and learned Lord to withdraw his amendment.
We will return to these matters under reference to the government amendments but I wanted to set out, I hope with a reasonable degree of clarity, the Government’s thinking in this area. This is not, with respect, a power grab—on the contrary: if we consult, if we agree and if we achieve this, there is no question of a power grab. It is certainly not a derogation from devolved competence. A great deal of competence will be laid on the devolved Administrations, because so many of these competencies coming back from the EU, and under the amended Clause 11, are going straight to the devolved Parliaments and Assemblies.
Consultation has been going on in the Joint Ministerial Committees on a regular basis since October of last year. As regards respecting the constitutional settlement on devolution, I entirely agree with the noble and learned Lord—with one qualification. A convention has arisen out of the memorandum of understanding between the Scottish Government and the UK Government about how we ensure that legislation put before the Scottish Parliament is competent. That convention has operated since 1999 and involves an exchange of a note of competence. Prior to a Bill being introduced to the Scottish Parliament, a copy is passed to my office—the Office of the Advocate-General for Scotland. That is always done.
I then confer with the Lord Advocate and his officials—the noble and learned Lord, Lord Wallace, will be familiar with this—and we iron out any differences and come to a view on what is competent and what is not, and consequently these matters are resolved. For the first time in nearly 20 years, that convention was departed from by the Scottish Government in respect of their EU Continuity Bill, which I first heard about after it was introduced to the Scottish Parliament. They did, however, give it to the Presiding Officer of the Scottish Parliament in time for him to take legal advice. Therefore, while I accept the generality of the point the noble and learned Lord made, particular exceptions have arisen very recently.
I was the Minister who negotiated the memorandum of understanding. I think I am the only Minister involved in the negotiation at the time who serves in your Lordships’ House. I agree that the Sewel convention and the arrangements for considering the competence of legislation have worked very well. That concerns the point I made earlier—two debates ago, I think—about the clarity of the legislation and of the memorandum of understanding, which have worked well over many years. I am encouraged by the Minister’s comment that these frameworks would all be subject to the Sewel convention. It would certainly be very helpful for the debate that we are about to have on Clause 11 for the Minister to say that, if these 24 areas are indeed the final 24 areas that are agreed for common frameworks, in each of the 24 areas the establishment of the common frameworks would be subject to the Sewel convention, as I think he hinted at a few minutes ago.
In so far as they are carried forward by primary legislation—and I rather anticipate that that will be the case—they would engage not only the Sewel convention but the provisions of DGN 10, the devolved guidance note, because there may be areas where these matters impact on the competence of Scottish Ministers. That is what is anticipated and I have no difficulty with that.
I keep trying to answer a question raised by the noble and learned Lord, Lord Wallace, about what happens with regard to the transition period. Clearly, that will have to be addressed in the context of the withdrawal agreement Bill—and that, as has been indicated before, may result in some amendment to the existing provisions of this exit Bill.