Brexit: Devolved Administrations

Lord McInnes of Kilwinning Excerpts

Thursday 25th January 2018 Lords Chamber

Moved by

[Lord McInnes of Kilwinning]

That this House takes note of the role of the devolved Administrations in the process of withdrawal from the European Union and future opportunities for strengthening the union of the United Kingdom.

[Lord McInnes of Kilwinning (Con)]

My Lords, I am delighted to bring this important debate before your Lordships’ House this morning. I am especially pleased that so many noble Lords whose expertise goes far beyond mine have chosen to contribute. As I look through the speakers list, I see people from all parts of our United Kingdom, including a former Secretary of State, a former First Minister, a former Member of the Welsh Assembly, an Advocate-General and renowned legal and constitutional experts.

I hope that this debate will give my noble friend the Minister and the wider Government a feeling for the views of your Lordships’ House as we face the inevitable joys of the withdrawal Bill and, specifically, its implications for devolution and the union. I will endeavour to avoid an overdominance of Scotland in my remarks but inevitably, a little later, I may show too much interest in what I know best. However, I hope that that will be compensated for by noble Lords from other home nations.

Above all, and like many in this House, I increasingly find that my unionism drives and underpins my political opinions. Unsurprisingly, I voted no, successfully, in 2014 and Scotland remains part of the United Kingdom. I was less successful in 2016, when the UK voted to leave the EU. My decision in 2016 to vote to remain in the EU was more than influenced, like that of many others in Scotland and Northern Ireland, by my fears for the impact on the union of a leave vote. Like many others, I was genuinely concerned that the fragility of Scotland’s place in the United Kingdom post the 2014 referendum and the Scottish nationalist sweep of Scotland in 2015 would be exacerbated by a leave vote in 2016. After all, an important part of the 2014 referendum had been a discussion of Scotland’s place in the EU and the fact that an independent Scotland would not enjoy automatic membership of the EU. I should have had more faith in my fellow Scots.

My concerns failed to understand one crucial factor, which was that even for those Scots who had voted to remain in the United Kingdom in 2014 and to remain in the EU in 2016, remaining part of the United Kingdom and avoiding another divisive independence referendum was of more importance. In underestimating this feeling I was not alone. The unionist commentariat in Scotland took a similar view. No less a figure than the author JK Rowling took to social media the day after the Brexit vote to say that Scotland would now seek independence. It is of little wonder, therefore, that Scotland’s First Minister also made the same misjudgment and began her campaign for a second independence referendum within hours of the declaration The inevitability of the end of the union seemed almost to be upon us. However, the Scottish people did not, thankfully, agree with that inevitability. The First Minister was punished for this at the general election last year. Unfortunately, she has not heeded that and only last week was once again threatening to make a decision on a second independence referendum by the end of this calendar year.

It is testament to the strength of the union that there has been broad public acceptance that Brexit is going ahead in Scotland and all the evidence is that there is now very little difference between Scottish public opinion and wider UK opinion on this issue. The question on the ballot referred to the whole UK leaving the EU and it will be the United Kingdom that leaves in its entirety.

While Scottish public opinion has over the past 18 months, if anything, become more unionist, it would be easy for complacency to descend as we go through the difficult constitutional time ahead. The union is made up of four component parts and it is in Northern Ireland that we have seen a real questioning of the union in the face of a potential hard border, which of course the Government have committed not to allow. This has been particularly true among younger unionist voters in Northern Ireland. In an opinion poll in November by the Belfast firm LucidTalk it was clear that, faced with the choice between remaining in the EU within a united Ireland or a so-called hard Brexit within the UK, the result would be too close to call as to whether Northern Ireland remained part of the United Kingdom.

The situation in Northern Ireland without a power-sharing Executive makes the interaction between the UK Government and the people’s political representatives and devolved feeling much more difficult. I ask the Minister: what success are the Government achieving in including all political opinion in Northern Ireland in the process of proper engagement as we venture through the Brexit process?

As a unionist, I was pleased in December to hear my right honourable friend the Prime Minister commit to the intrinsic importance and centrality of Northern Ireland to our United Kingdom and that Brexit would not be allowed to undermine Northern Ireland’s place in the United Kingdom, while respecting the Good Friday agreement and the special requirements caused by the land border and the common travel area. The very public discussion of Northern Ireland’s place was, in retrospect, a good thing. All too often on the mainland, Northern Irish politics are given a cursory glance. It is important to recognise that we need to work across all four component parts to preserve the union as we move forward through Brexit.

As we are all aware, and as was debated in your Lordships’ House last October, we are fortunate to have had two thoughtful further reports from the Constitution Committee, on intergovernmental relations in 2015 and the union and devolution, and my noble friend Lord Boswell’s report from the EU Committee on Brexit and devolution. In that context, I very much look forward to the remarks of my noble friend Lord Lang. All these reports have pointed to the asymmetric nature of devolution and have placed before this House recommendations as to how the structures and processes should be improved. It is almost as if the juggernaut of Brexit and the constitutional upheaval coming down the line were foreseen. I hope the Minister will make this point in government. It is important that, as we leave the EU, we use that opportunity to implement the recommendations from these excellent reports from the Constitution Committee and the EU Committee.

Now is the time—over the next 15 months and through the transition or implementation period, depending on what you call it—when Brexit can give an opportunity to ensure that the intensity of the UK Government working closely with the Welsh, Scottish and, I hope, Northern Irish Administrations is used as a means to set in place processes and systems that normalise the present constitutional settlement. Every disagreement for the next 50 years cannot be allowed to become a constitutional crisis that destabilises the state and becomes an excuse for a Scottish or Welsh referendum or a border poll. The state must find a way to ensure that political disagreements between different Administrations can be absorbed in the workings and processes of good government.

The debate over Clause 11 of the withdrawal Bill in many ways offers a good example of how a mature and intense discussion can bring about agreement and consensus between the Governments, as well as Brexit creating more opportunity for framework agreements between the UK Government and the devolved Administrations. If we set aside the political rhetoric of the SNP about a power grab, it is clear that both the Welsh and Scottish Governments accept that the repatriation of powers in devolved areas cannot be allowed to undermine the single UK market, which is so important to all constituent parts of the UK, and that key policy areas require frameworks and joint working. At the same time, the UK Government recognise that repatriated powers in devolved areas that require no framework should not be held here for the sake of it.

An opportunity will come before your Lordships’ House to amend Clause 11 of the withdrawal Bill and to ensure that joint agreement between the UK Government and the Scottish and Welsh Governments gives an underpinning to that agreement to allow the Brexit process to move forward in as consensual a way as possible. It is unfortunate that the wording of the amendment required could not be drafted and agreed by Her Majesty’s Government and the Welsh and Scottish Administrations while the Bill was still in the other place on Report, as had been anticipated. I am sure we will have a thoughtful debate when any such amendment comes before us.

The real lesson from this process has been the acceptance that a legislative consent Motion in the Welsh Assembly and the Scottish Parliament is important to Her Majesty’s Government and your Lordships’ House, even if it is not a legal necessity. I believe that represents a political maturity and understanding from Her Majesty’s Government and the devolved Administrations by not allowing themselves to enter too much of an entrenched position following political agendas.

Agreed frameworks of implementation and dispute resolution will also provide institutional normality that encourages working together and the kind of stability sought by each of the reports debated in this House. As Professor Nicola McEwen pointed out in her evidence to the Constitution Committee, regular interaction and interplay is a key pathfinder to a settled constitutional position. Since the Constitution Committee’s report on intergovernmental relations of 2015, the number of Joint Ministerial Committee meetings have increased in regularity and importance. There has also been the introduction of the joint ministerial council on European negotiations. Sometimes, these meetings have become an opportunity for an angry press statement outside but, overall, the interaction of the government machines in preparation for and implementation of such meetings can only be good for the union. They have also given the Welsh and Scottish Administrations further opportunity to work together, not always to Her Majesty’s Government’s comfort.

Likewise, the repatriation of powers from the EU can only help increase the joint working required between Whitehall departments and the devolved Administrations, which has been an increasing problem because of silo-isation over the past five to 10 years. I look forward to my noble friend the Minister giving us his impression of what Her Majesty’s Government propose to do to ensure that those departments continue to work with the devolved Administrations.

An increasing problem for the union has been a failure of understanding among the general population of which powers are reserved and which are devolved. This was raised specifically in the Constitution Committee’s report. Such a lack of understanding has been a consequence of changes and reports which have been constant through all three devolved Administrations during the past 20 years. Following the implementation of the Silk and Smith recommendations, Brexit gives an opportunity for clarity to be established that demonstrates the diversity that devolution brings to the United Kingdom. For that reason, Her Majesty’s Government and the devolved Administrations cannot constantly be opposites, point-scoring against one another. Of course there will be political dispute—there has to be—but normalising devolution requires a focus on the expectations of the people affected by government. Outside England, that means accepting that people have two Governments, with agreed competencies and processes in place to ensure that disputes are dealt with properly.

While, like many Scots, I may not have been overly optimistic about the future of Scotland’s place in the United Kingdom in the early hours of 24 June 2016, I now hope to see Brexit used as a means and a catalyst for the normalisation and stabilisation of the constitutional settlement in our United Kingdom. The United Kingdom’s tradition of slow, organic change has been somewhat challenged by the past 20 years. With the extra catalyst of Brexit, we must now ensure strength and vitality for our union over the long term. I look forward to the input from many eminent noble Lords in this debate. I beg to move.

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[Lord McInnes of Kilwinning]

My Lords, I take this opportunity to thank all noble Lords who have contributed to this debate. I cannot do your Lordships justice by running through them individually in the time I am given, but this debate really has achieved what I set out for it to do. That was, first, as the noble Lord, Lord Kerr of Kinlochard, made clear, to say that perception is so important. After today’s debate, there will be a clear perception that your Lordships desperately want to see a successful settlement of the Clause 11 issue to the satisfaction of everyone involved, especially the devolved Administrations. The other clear conclusion from today is the feeling in your Lordships’ House that there needs to be urgent action and that absolutely everything needs to be done to ensure that we once again see a proper power-sharing Executive and democratic forum in Northern Ireland. We must have that not only to ensure that Brexit concludes successfully, but for the sake of our United Kingdom. I am very grateful to the Minister for the reassurances he has been able to give us on the importance of joint working and the transparency required to ensure confidence in the process. I once again thank everyone who has contributed to the debate.

Motion agreed.