European Union (Withdrawal) Bill

Lord Bruce of Bennachie Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[The Duke of Montrose]

My Lords, perhaps I may come in here to congratulate the Minister on how far the Government have got in solving this rather knotty problem. As I go with this, I feel that I should re-emphasise my authority for speaking as a Scot and as a nationalist, rather as my noble and learned friend Lord Mackay of Clashfern did. Mine is founded rather more in history than in current experience, in that members of my family have fought and died for Scottish independence on a number of occasions. They were also responsible for sitting on the whole negotiation for the Acts of Union.

I am not sure whether I can fully accept what the noble Lord, Lord Steel of Aikwood, said about all measures going immediately to Scotland. The provision that I tried to raise when the noble and learned Lord, Lord Wallace, was speaking is that what is devolved was devolved under Schedule 5, but Schedule 5 was subject to the earlier parts of the Act. In attempting to modify Section 29, we are in really novel territory because that provision has remained as it was put in the Act in 1998. This is the first time that we have had to take a hatchet to it but the remaining subsection says that the Scottish Parliament will exceed its powers if it tries to legislate for any provision which,

“would form part of the law of a country or territory other than Scotland”.

A great many of the powers that are coming back affect all parts of the United Kingdom and that element has to be sorted out.

It is very good to hear from the Minister how the agreement on dealing with the powers from Brussels has been achieved. However, it sounds—or rather, it sounded at the start—as if the Scottish Government had the same view as the noble Lord, Lord Steel of Aikwood: that all law should immediately be devolved to them. This is clearly not going to do. Accompanying a letter from the Chancellor of the Duchy of Lancaster was a table, which explained the Government’s view at that point on sorting out what was, I think, a total of 167 measures that they had identified in EU legislation as needing to be addressed. Of these, at that point they had no problem with 12 that needed to be reserved and 49 that could be immediately handed over. Can the Minister give us an update on the Government’s view on how many of these laws could immediately be handed over now, as I am sure that they and such things have been subject to negotiation over the Easter period? At the same time, however, we would like to know what legislative process will be put in place to achieve the handing over to the devolved Parliament and Assemblies and how long it is likely to take for those measures.

One or two noble Lords have quoted from the letter of 26 April from the First Minister of Scotland. The noble and learned Lord, Lord Hope of Craighead, has provided a very good outline of how Section 30 will work. I have no doubt that many of us have much to learn about that. I was slightly worried about the First Minister’s second suggestion in her letter, when she talks about,

“the existing constitutional arrangement where changes to devolved competence are to be made under Section 30 … by Order in Council subject to the approval of both the Scottish Parliament and the UK Parliament”.

I was led to wonder whether an Order in Council, if passed by Her Majesty, was actually subject to approval by the Scottish Parliament at that stage, whereas I think that the amendments that are now in place are suggesting that approval would be sought and, with any luck, granted before the application was made for the order. If the Scottish Parliament were being offered the chance to turn down such a thing as an Order in Council that had already been made, a constitutional change in this order would need more than a memorandum of understanding, which is how the present system works.

[Lord Bruce of Bennachie (LD)]

My Lords, I am comforted by the fact that all of the learned noble Lords who have contributed have acknowledged that this is an extremely complicated situation, one in which there are clearly differences of views. Indeed, the submission that we have had from the Law Society of Scotland took a similar view. However, I also recognise that it is just as well that it is complicated because Clause 11, in its initial format, was brutally simple and wrong. We therefore have got to a position where, after some time, we are now able to debate something that acknowledges the difficulties that Clause 11 originally contained.

Everybody has genuinely welcomed—and should rightly welcome—the progress that has been made, the spirit with which it has been made and the work that has been done to get to a situation which genuinely acknowledges that what we are trying to do is find a decision-making process that carries everybody with us, recognises legitimate interests, but is always left with the elephant in the room, which is, “Where does the buck stop?” Clearly, the buck ultimately stops with the UK because we are a United Kingdom. That, of course, is not entirely acceptable to people who do not believe in the United Kingdom and do not wish it to continue.

It is fair to say that Mike Russell in particular has, on more than one occasion, acknowledged constructive progress and engagement. Indeed, many of us have the view that, left to his own devices, the Scottish Government might have accepted where we are today. The First Minister clearly has not. She has not only sent a letter here to the Lord Speaker, but made fairly—shall we say—lively representations in the Scottish media as to what she thinks is intended. The trouble is that what she said might be legitimately attached to Clause 11 as it was, but it does not legitimately attach to where we are today. That is why the sentiment of this House—and I suspect the sentiment of those people in Scotland who think about it—is that the Scottish Government should be very careful that they do not over-push their position, because Scotland has voted to be in the United Kingdom, is part of the United Kingdom, and recognises that there are shared interests, where we will need to make decisions together. The issue is: how do we find a process that has the trust and confidence and the interests of everybody that can be taken on board?

We might eventually have to talk about a federal constitution; the noble Lord, Lord Wigley, was the only speaker to mention quasi-federalism. We are stumbling towards a federal United Kingdom and we may need to acknowledge that, because federalism would provide a legal framework in which the powers were clearly stated in law and disputes were resolved through a constitutional court.

[Lord Adonis (Lab)]

I have been following the noble Lord’s very interesting speech very closely. How would he propose to deal with England, which has not been mentioned at all in this very long debate, and its 53 million inhabitants in his federal constitution?

[Lord Bruce of Bennachie]

Of course I would wish to deal with England in a friendly and constructive manner, but the serious point is that many of us have recognised that ultimately, the United Kingdom is England, Scotland, Wales and Northern Ireland. They are the entities. Within England there are lots of other entities, but they fall below the state level. I certainly have never had the difficulty other people have had in saying that a federal constitution would include England having its own voice, but that is for another day. All I am saying is that we have muddled along and now have elected mayors, metropolitan authorities, the London Assembly, the Northern Ireland Assembly, the Welsh Assembly and the Scottish Parliament—all with different powers, different terms of reference and different mechanisms. Although it is very British to maintain this pluralism and diversity, at some point or other we may need to try to find a slightly more coherent framework in which these matters can be resolved and in which people can know that where there is a dispute, there will an impartial resolution based on law, rather than the heavier political weight overruling the lighter weights.

The fact remains that the noble Lord’s intervention is entirely right: 85% of the population lives in England. England does not constitute 85% of the land area, but if we have a United Kingdom, there is a responsibility on those of us who live elsewhere than in England to acknowledge the weight of England. But if the English want the United Kingdom to continue, it behoves them to understand that they will have to give probably slightly more than they want to accommodate Wales, Scotland and Northern Ireland, because the price is holding the union together. That is what this debate has fundamentally been about. The argument I always make is that I wonder at what point, if ever, an ultranationalist would regard anything that left residual power with the United Kingdom as acceptable. If your objective is to leave, my only point is that once you have left, you will suddenly find that England is still there and you still have to deal with it. We have had that debate for the past several weeks—about Europe still being there and still having to deal with it. It is the same point.

This debate has been very academic, legalistic and process-driven. In the end, it is about politics and policy and what the Government believe is essentially determined by the UK’s national interest and where they believe that allowing the devolved authorities to block something would be contrary to the UK interest. I say that as somebody who acknowledges that there is sometimes a danger that if Scotland insists on its rights, it will be in the interests not of Scotland but of an ideological commitment to being Scottish, and there are people in Scotland who would rather be poor and independent than well off and sharing resources with the rest of the United Kingdom. We need to know where people are coming from. In a sense, in Scotland people are clearer about that than they were a few years ago. I suggest that support for the United Kingdom, with all its faults—and, by God, there are many and they are very conspicuous at the moment—is significantly stronger than it was a few years ago because people have seen the abyss. We are looking into another abyss right now, and I suspect opinion will change accordingly.

The sunset clause has been mentioned by many people. It would be helpful if the Minister explained why we need five years rather than three. The noble and learned Lord, Lord Mackay, made a point about what the sunset clause applies to. I thought it was to the period to which the process would apply, not to the decisions made under that process. That is a point for clarification. From the Government’s point of view, what does the sunset clause apply to?

My noble and learned friend Lord Wallace articulated that for a regulation on, for example, pesticides there would clearly be a UK agreement and it would be perverse for any component part to resist it. I shall give one final example because agriculture features quite strongly in these powers. We are about to leave the European Union. The common agricultural policy has been the basis of support for Scottish farmers. It has been based on an acquis which is focused on smaller, more marginal farmers in the less-favoured areas. The House will be well aware that most of them live in Scotland, Wales and Northern Ireland, although I acknowledge that they also live in the Pennines, the Lake District and other parts of England.

There are debates in the Conservative Party about abandoning subsidies altogether. There is clear concern in the devolved areas about the impact of that. But we can look at it both ways. For example, somebody who sees Scotland as having twice as much, much more marginal agriculture than England, in most cases, would say, “We want to be able to continue to support our agriculture”. But they might also say, “But we think that is something the United Kingdom should help us with, so there should be a UK policy that helps to contribute to it”. The arch-UK nationalist point would be to say, “Well, you can have the right to support your farmers, but you will pay for it out of your own tax base”. I would suggest that questions the validity of the United Kingdom, and I will say that in friendly terms to Michael Gove and his team in due course.

The other area is social security, where we have decided that we want to transfer the power. I find it interesting that the SNP is saying, “No, no, we want more power”, having said, “We can’t quite accept responsibility for social security just yet, because we haven’t got the mechanisms in place”.

I think we have probably reached a settlement which is the centre of gravity of this debate for now. We now need to devise a process in the longer term whereby collective decision-making can be put into a context where all the component parts honestly feel that they are likely to get their voice heard and a fair and equitable decision, with some kind of external judicial review or appeal process as the final backstop, rather than it being based simply on weight of numbers.

Having said that, I think many of us who saw the beginning of this debate when Clause 11 was published are very grateful that we are now at the end of it and can actually see a way forward. I wish it was true of all other aspects of the Bill.