Scottish Devolution and Article 50

Dan Poulter Excerpts

Wednesday 15th March 2017 Westminster Hall

[Deidre Brock (Edinburgh North and Leith) (SNP)]

I beg to move,

That this House has considered the implications for the Scottish devolution settlement of triggering Article 50.

It is a great pleasure to serve under your chairship, Mr Gray. I have to say that this debate has taken on a bit of a different taste in the past few days. On Monday morning, I was quite clear about what we would have to discuss, but by lunchtime my party leader, as well as the Prime Minister, had rather knocked me off my stride. She does that sometimes—she is pretty good. I find myself coming back to the basics of the debate and considering what it is we really need to know: what is in store for Scotland?

If Members will allow me, I will keep things a bit sober and restrained so that we can have a sensible discussion of the issues, which I consider to be extremely important. Over the past few months we have asked questions about the Government’s approach to, hopes for and starting position in the negotiations over the UK’s leaving the EU. I am afraid we have received no substantive answers, which has led some people less charitable than me to suggest that the Government do not know the answers to those questions. I would never suggest such a thing—not yet, anyway.

The point of fracture for me came at the Scottish Tory conference in Perth, where the Prime Minister did two things in her speech. The first was to claim that Scotland has the most powerful devolved legislature in the world and the second was to suggest that competencies repatriated—if that is the correct word—from the EU will be exercised in Whitehall rather than in Edinburgh, Cardiff or Belfast.

Let me first address the idea that Scotland has the most powerful devolved legislature in the world. I have seen no evidence to support that claim, although it has been made repeatedly over a number of years. I have seen no comparison made that supports such a suggestion, nor any indication of the definition of a devolved legislature being used. I cannot but think that there are more powerful examples of sub-state bodies, such as the German Länder and the Australian states and territories, which would better fit that description. Anyway, it strikes me that we should not care whether Scotland is the most powerful devolved legislature in the world; we should be asking whether the arrangements—current and proposed—are what best suit Scotland’s needs.

I will argue that Scotland should be independent, because I believe we have a different outlook on public life from that of the fine people south of the border. Our public discourse is different and our values and societies are different. I understand that people on the other side of the debate will see it in a different light: they look at the issue from a UK point of view and decide that Scotland is better where it is. They are entitled to do that. In my view they are entirely wrong, but they are entitled to be wrong and to support the continuation of the UK rather than the re-emergence of its constituent nations.

The idea of the most powerful devolved legislature in the world brings us to the point about where power should rest. In the early days of devolution, some believed that they had squared the circle and that the separation of policy areas that should be reserved and those left devolved was finalised. We discovered fairly quickly, however, that that was not the case and that the issue had to be revisited. The prediction of Ron Davies, the one-time Welsh Secretary, came to pass. Devolution is a process, not an event.

The extension of devolution, by the way, was described by the previous leader of the Scottish Conservatives as the most important debate in the Scottish Parliament. Interestingly, she said that at a time when a Labour Scottish Secretary, Des Browne, was busy trying to strip powers from Holyrood—presumably because the Scottish National party had won the Scottish election in 2007. The upshot was an extension rather than a constriction of the competencies of the Scottish Parliament, and the debate continued. In policy area after policy area, power and competency has been ceded to Holyrood as it becomes clear—even to those opposed to any further devolution—that those powers and competencies are best exercised in Scotland. It is a process, not an event.

[Dr Daniel Poulter (Central Suffolk and North Ipswich) (Con)]

The hon. Lady has secured an important debate. When the UK devolution settlements were designed in 1998, there was no thought of Brexit and, at that time, the single market was the European single market. After Brexit, the single market will be the UK single market—at the moment, because Scotland is not independent. How does she believe that will work in agriculture, fisheries and other policy areas?

[Deidre Brock]

The hon. Gentleman will be pleased to hear that I will address that later in my speech.

Now we find ourselves about to leave the European Union, the Prime Minister is making the threat of removing competencies from Holyrood as they come back from Brussels; other than that, we do not really have any idea of what she is planning. Leaving the European Union means that the Scotland Act 1998 must be revisited, because it compels Scotland to comply with EU law. The clawing back of powers and competencies from Holyrood to Whitehall, as suggested by the Prime Minister, would also require amendments to that Act.

If Members want to understand exactly how much disentanglement there will be, they should ask the Commons Library, as I did. They will be told that there is a huge number of directives and regulations to look through and that to come up with a definitive figure, list or even idea of what is reserved and what remains devolved is, to all intents and purposes, a fool’s errand.

To give an example, there are 527 regulations under the environment, consumer and health sections alone, and there are a whole host of environmental regulations under other headings such as “energy”. I do not know whether the Scotland Office has been working to draw up a list—or the Wales Office or the Northern Ireland Office for that matter. It would be good to be told, but it is clear that there is an enormous amount of work to be done and an enormous amount of legislation to comb through. Sifting that, considering it, deciding where to lay it and working it out will need a new Scotland Act.

It is true that the Government could use section 30 of the 1998 Act further to reserve powers over those areas currently under EU control, but that would seem frankly perverse if the Act has to be amended in any case. That seems simple, but when I asked the Prime Minister last week whether she would consult the people of Scotland properly and seek the consent of the Scottish Parliament before making changes to the legislation that frames devolution, she seemed perplexed. Her answer to me was that she undertakes

“full discussions with the Scottish Government on…reserved matters and…where we are negotiating on behalf of the whole of the United Kingdom.”—[Official Report, 8 March 2017; Vol. 622, c. 808.]

However, we discovered on Monday that that is simply not true. Scotland’s First Minister was clear that none of the devolved Administrations had heard a peep from the UK Government before the announcement that we are all being dragged out of the single market, in spite of that being the major part of the Scottish Government’s compromise proposal on Brexit.

There is a sweetheart deal for Nissan, but no discussion of Scotland’s needs—far less any movement to accommodate those needs. Membership of the single market is vital for Scotland’s exports, and essential to the exercise of the economic competencies of the Scottish Parliament and to the future of many Scottish businesses. An immigration system that offers EU citizens the right to come to Scotland to live, work, study and settle down is essential to our continuing to grow a population that is economically active and demographically sustainable, as was discussed in the recent Scottish Affairs Committee debate. Academic research and the excellent record of Scotland’s universities is under threat, because Brexit will cut them off from an enormous research funder and from the universities they co-operate with on the continent, not to mention the academics who come to Scotland from elsewhere in the EU.

The implications for Scotland of triggering article 50 are enormous and deep-seated and, whichever way things go, they will have a long half-life. We have heard the glib “Brexit means Brexit”, that it will be red, white and blue and that there will be no running commentary, but I am beginning to suspect that there is no running anything behind Whitehall’s firmly closed doors. It is time that the Government started to lay out what Brexit actually means in terms of implications for the people who live on these islands, rather than continuing use of tautology.

--- Later in debate ---

[Patrick Grady]

Planning is of absolute importance, and I have to say, I probably have more confidence in the Scottish Government’s ability to plan ahead, irrespective of what the UK Government is doing. The First Minister has demonstrated at every turn, before, during and since the EU referendum, that the Scottish Government are actually thinking ahead about the consequences of various decisions might be. We have seen that demonstrated again this week.

My hon. Friend leads me on to the important practicalities of how the implications of triggering article 50 will be felt in Scotland and their implications for devolution. The first—I hope we will have an opportunity to find out a little bit more about this—will be when we finally get to see and hear more about the Government’s thinking on the great repeal Bill, or, as it is increasingly known in some circles, the great power grab. It is a serious concern for Members from all parties, not least the hardcore Brexiteers who wanted to restore sovereignty to the House of Commons, that what will in fact happen is a power transfer—a power grab—by the Executive in the United Kingdom.

We read in The Times the other day that it will perhaps not just be a great repeal Bill, but that up to seven or more pieces of individual legislation will be needed just to deal with the complexities of taking us out of the European Union. The Government have to start answering questions, precisely as my hon. Friend the Member for Rutherglen and Hamilton West (Margaret Ferrier) said, so that we can make plans.

The consequences for devolution are profound. Which will come first, the chicken or the egg? Are we going to see an amendment to the Scotland Act to reserve powers as a result of Brexit, or will individual pieces of legislation come forward that reserve different powers? What exactly is going to happen?

[Dr Poulter]

Will the hon. Gentleman give way?

[Patrick Grady]

I am happy to, if the hon. Gentleman has an answer for me.

[Dr Poulter]

I speak as someone who was not a hardcore Brexiteer but voted to remain. Agriculture is an area that affects my constituency in Suffolk, as it does many of the constituencies in Scotland. Given that many agricultural tariffs are currently set at a European level, if Scotland remains part of the United Kingdom and we have a UK single market, it would be appropriate for the UK Government to be involved in dealing with those agricultural tariffs, on a point of principle. Does he agree?

[Patrick Grady]

The principle that is very clear is that if something is not reserved to the UK Government, it is therefore devolved to the Scottish Parliament. I have not read the words “reservation of agriculture” in schedule 5 to the Scotland Act. Some of my hon. Friends might want to clarify or expand on the practicalities of that.

Let us take fisheries as an example, which was one of the potential Bills listed in The Times the other day. There are potential consequences for that. If the Government bring forward a fisheries Bill and have not clarified whether that is devolved or reserved, it seems to me that, under the English votes for English laws Standing Orders, it will fall to the Speaker of the House of Commons to decide whether or not that hugely profound, massive area of policy needs to be certified under the EVEL procedures. That could therefore deny a say to Members from Scotland on something that the Scottish Parliament equally has no power over, because we have been left in a legislative limbo. The Government have to start making clear exactly what their thoughts are on these issues.

--- Later in debate ---

[Ian Murray]

It must be in the post; I hope it is, because it would be thoroughly deserved. I apologise to you for elevating you to a knighthood, Mr Gray, and also to the House for being slightly late. A major constituency issue delayed me, so I only heard the end of the speech by the hon. Member for Edinburgh North and Leith (Deidre Brock).

This issue will be a key element of the discussions over the next few years in this House. I am not sure how many thousands or tens of thousands of statutory instruments and pieces of legislation we will see when the great repeal Bill is announced, but I hope we will have some kind of process that takes into account three things. First, English votes for English laws should be suspended with the great repeal Bill, given its severity. Secondly, there must be a streamlined process, so that we do not all end up having to sit and consider 10,000 statutory instruments. I am sure that the House, and certainly the Clerks of the House, would very much welcome that.

Thirdly, I hope that the Minister and the Government—I say this with all respect and in the interests of trying to find a way through—take into account the political difficulties and sensitivities of the Scottish Parliament’s responsibilities and schedule 5 to the Scotland Act 1998. Schedule 5 is incredibly simple to read now because it has got so small, given the number of powers that have been devolved to the Scottish Parliament, but the key one in there is the relationship with the European Union and foreign affairs. That should not be an excuse for the Government to say that the devolved Administrations should not be heavily involved in this process.

None of us wanted to be here—I certainly did not—in terms of Brexit, but we are, and this process has to be followed through. I pay tribute to the hon. Member for Edinburgh North and Leith for securing this debate. It will probably be one of many we have on Brexit and Scotland over the next few years.

I said this to the Prime Minister yesterday in the House and will emphasise it again now. The general principle should be that where a power is not in schedule 5 to the 1998 Act and where a power has been devolved—whether to Scotland, Northern Ireland, Wales or the metro mayors we are about to elect in May—the power should be devolved. The reason I put it as a principle, rather than saying everything should be devolved in a blanket way, is that some things will take some thought when it comes to the framework. While things such as fisheries, agriculture, the environment, regional development and policy from the European Union are devolved to the Scottish Parliament, it is under the EU framework. That EU framework gives the minimum standards and framework in which member states have to operate.

[Dr Poulter]

The hon. Gentleman is making a very good speech. This is a difficult area, as he has outlined. Agriculture, for example, is devolved to different parts of the United Kingdom, and there is disagreement on areas such as genetically modified crops. However, when the Secretary of State for International Trade needs to make a trade deal, that is surely something that the UK Government across the UK single market are best placed to do.

[Ian Murray]

I am glad that the hon. Gentleman made that point, although my response will not necessarily be on the complicated nature of what he determined in his intervention; rather, it will be on how crucial it is for both Governments to work together. Unless both Governments work together, all the negotiations that are happening on trade deals or otherwise will be incredibly difficult to resolve. Given that Scotland and other regions and nations of the UK have some significant products that are of a singular nature to those particular geographical areas, we will have to work together.

Agriculture is one of three or four big areas where we need some kind of working together to ensure that this works properly. Take, for example, cattle movement across borders, which is a hugely complicated and difficult thing. It is about not only the cattle themselves and their welfare but the spread of disease and other issues. We will need some kind of working together and a framework to allow that to happen. While repatriation and devolution should be the principle, we should do this in a systematic way, not only for the benefit of the country and ensuring that this works properly, but for the benefit of the practitioners in all those areas—whether it be the environment, agriculture or fisheries—that will be repatriated and devolved.

Finally, it is not only about devolution; a cheque has to go with it. It cannot just be devolution of power without the devolution of the money. If we take agriculture as an example, again, Scotland gets 16% or 17% of UK agricultural spending in the round. That would have to travel with the devolved powers, which is why I think we need to be quite careful that the frameworks in place for each of those big items are dealt with properly.