Devolution (Constitution Committee Reports)

Lord Forsyth of Drumlean Excerpts

Monday 9th October 2017 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I thank the noble Lords, Lord Lang of Monkton and Lord Jay of Ewelme, for introducing the debate, and their respective committees for giving us the opportunity to consider some very substantial reports containing some very important recommendations. I welcome the noble Lord, Lord Duncan of Springbank, to the Front Bench. We look forward not only to his maiden speech replying to this debate—what a challenge—but his subsequent contributions to your Lordships’ House.

There is probably no better place to start than the opening words of the European Union Committee’s report, which sum up the situation quite succinctly:

“The impact of UK withdrawal from the EU on the UK’s devolution settlements is one of the most technically complex and politically contentious elements of the Brexit debate”.


If anything, that may even be an understatement. As has already been referred to, the architecture of the devolution schemes fully reflected—almost took for granted—our membership of the European Union. Section 29(2)(d) of the Scotland Act 1998 indicates that an Act of the Scottish Parliament is outwith the competence of that Parliament if it is incompatible with Community law; there is similar provision for executive actions. I think the noble Lord, Lord Jay, said that the European Union was the glue that held our union together. In addition, the structure of devolution has been such that everything is devolved unless it is expressly reserved. Devolution includes agriculture, fisheries and the environment—all devolved issues but which hitherto have had a very important European Union component. Logic would certainly indicate, as the noble Lord, Lord Jay, did, that following Brexit these would become the responsibility of the Scottish Parliament and the other devolved bodies.

It is right to say that the Scottish Parliament, in exercising its powers over a number of these areas, has done so within frameworks established by the European Union. Who knows, if we had not been an EU member in 1998—we can speculate but it would be somewhat academic—what further exemptions might there have been in Schedule 5 to the Scotland Act? But that is not where we are. There are some very good reasons why we should be pragmatic and apply common sense in suggesting that there must be frameworks which should be discussed and applied at a UK level. I do not believe it is anti-devolution to say so. The committee itself recognised that some things would be best done at a United Kingdom level when we are outside the European Union. Indeed, paragraph 19 of the Scottish Government’s legal consent memorandum on the European Union (Withdrawal) Bill states:

“The Scottish Government has made clear … its willingness to negotiate UK frameworks in certain areas previously covered by EU law. This could be, for example, to support the functioning of UK markets, or to facilitate the management of common environmental resources”.


The Scottish Government themselves accept that there is a need for United Kingdom frameworks. It is important, therefore, that we address how we best tackle this and the European Union Committee is absolutely right when it emphasises the,

“need to set aside … differences and work constructively together to achieve an outcome that protects the interests of all parts of the UK. No durable solution will be possible without the consent of all the nations of the UK”.

One of the Select Committee’s recommendations reflects some of the earlier reports from the Constitution Committee about the importance of Joint Ministerial Committees. The noble Lord, Lord Lang of Monkton, welcomed the establishment of the Joint Ministerial Committee (EU Negotiations). It was announced by the Government, with much fanfare, last autumn. I received during the most recent Recess a Written Answer from the noble Baroness, Lady Sugg. I had asked how many times that Joint Ministerial Committee had met in 2017. The answer was twice, on 19 January and 8 February. I have no doubt that the Minister will tell us that there is a meeting scheduled for next week and there have been umpteen, or several, bilateral meetings. But the mechanism established by the United Kingdom Government was to have a Joint Ministerial Committee. The recommendation of the European Union Committee was very practical and the Government’s performance to date has fallen well short of this very reasonable recommendation. It is a test of how seriously the Government take their responsibilities towards achieving an outcome that will be satisfactory to all parts of the United Kingdom.

If we look at how we would establish which should be the areas for common frameworks, it would be wrong for the Government to determine that this should be done on a top-down basis. The concerns expressed by the noble Lord, Lord Jay, with regard to the European Union (Withdrawal) Bill betray a certain attitude that this would be done in a top-down way.

A body or a commission should examine these issues. It should be transparent and constructive, in a way that commands support from all parts of the United Kingdom and from all parties. The timescale of a royal commission would probably be too long. However remarkable the work done by the Smith commission, it was far too short and done with a degree of relative secrecy—it was not particularly opaque. We need something that is transparent and engages people, for example by taking evidence from the fishing industry, the agricultural industry and environmental groups as to what they think it important that we should do on a United Kingdom basis. After that the respective Administrations could, as they do now under European frameworks, produce detailed policies within that framework to meet the needs of particular areas.

Even when these United Kingdom-level frameworks are agreed, it would again be wrong if it were purely the United Kingdom Government who set the agenda. We should look for a balance of competences that is both devolved and shared. For example, the Joint Ministerial Committees could be put on a statutory footing. They would no longer be the talking shops which they often have been and could be invested with executive powers. For example, it may be necessary to consider whether they should operate with the possibility of weighted voting. Having made that agreement, the respective devolved Parliaments and Administrations—and the Westminster Parliament, as far as England is concerned—could then be allowed to work out how these agreements would be implemented in detail. That might in some ways be seen as a derogation from the sovereignty of Parliament but I believe David Cameron’s Conservative Government went down that path with their English votes for English laws. We now have a situation where one subset of Parliament, the English Members, can veto a measure that has been passed by the Lords and the Commons.

[Lord Forsyth of Drumlean (Con)]

The noble and learned Lord is making a very sensible and careful speech but could he just explain to me how agricultural subsidies would work under his scheme of things? Most of the money spent by the European Union is on the CAP and before we joined the European Union, we had a common system set by the United Kingdom Parliament. I find it quite difficult to envisage different subsidies for sheep on either side of the Scottish or Welsh borders, or how a market would operate under those proposals. I am thinking of the politics of it, where we have a Government in Scotland who wish to break up the United Kingdom. I just do not see how it could be practical. Is it not a little hypocritical of those who argue that we should remain in the European Union, and that these powers should therefore remain in Brussels, to say that they cannot possibly be exercised by the United Kingdom Parliament?

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Forsyth, makes an important point about the distribution of funds but that point should be agreed. It should not be done, as it were, on a top-down basis by the United Kingdom Government. I would point out to him that when there was a change in the basis for European Union agricultural payments in the early years of this century, Scotland went down the route of historic payments whereas England certainly went down that of payments based on area—I am not sure about Wales. So even under the present arrangements, there are differences in how these things are dealt with north and south of the border.

I will not detain the House on other issues relating to migration, on which the committee made important recommendations. Having looked at the Government’s response, it makes the word “banal” sound exciting—there was no response at all. The Government should have second thoughts on that and address the very important points made by the committee.

If we had a ministerial group setting out the framework, as I have proposed, we would also need some body to overlook it. That could well be done through an interparliamentary body, trying to bring the different Parliaments of the United Kingdom together—in Scotland, Wales, Northern Ireland and the Westminster Parliament—to provide that kind of oversight. If that is a step towards federalism, then certainly from these Benches I do not apologise.