European Union (Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

To follow on from what the noble Lord, Lord Wigley, has said, I am tempted by the reverse approach of the noble and learned Lord, Lord Mackay, and the mechanism that he has described. I have just one point to add to the debate: I am worried about the emphasis on the single market—the internal UK market. There was a debate in Europe, following the Cockfield White Paper 30 years ago, about how much uniformity was needed in a single market; how much you could rely on mutual recognition; how much you did not need to standardise at all and how much you could harmonise. Noble Lords will remember that that debate became quite controversial at times. Some of us argued that the Commission took a more expansive view of the need to harmonise and standardise, rather than to recognise diversity. In my view, devolution inherently means a recognition of diversity. I do not agree with the noble Lord, Lord Morgan, that the Government have an evil, malign intent here. However, the way that this dossier has been handled has created suspicions in Scotland and Wales of such an intent.

Looking at the criteria set out in the amendment tabled by the noble and learned Lord, Lord Hope, there is no difficulty with a common framework in areas necessary to,

“safeguard the security of the UK”,

or,

“provide access to justice”,

or,

“enable the management of common resources”,

or,

“ensure compliance with international obligations”,

obviously. I pause on,

“new trade agreements and international treaties”,

because there are suspicions that the fox might get into the hen house. The real suspicion arises over the first item:

“enable the functioning of the UK internal market”.

I do not think “enable” is a transitive verb. As all noble Lords recognise, “ennoble” is, but “enable” is intransitive. However, that is not the main reason that I object to this section of the amendment. The phrase,

“the functioning of the UK internal market”,

could be interpreted very widely, and there are those in Scotland and, presumably, in Wales who assume that the Government might want to interpret it widely.

We do not have a single market in the UK now; it is variegated, as are the views on the extent to which it needs to be further harmonised or advanced. I wonder whether it would not be better if the Government could drop from their presentation on this dossier, on Brexit and devolution, the references to the UK internal market. There would be very few areas where it needed to be used and they would all be covered by one of the other criteria in the noble and learned Lord’s amendment.

[Lord Wallace of Tankerness]

My Lords, I will pick up what the noble Lord, Lord Kerr of Kinlochard, has just said. The criteria set out in this amendment—and in one tabled by the noble Lord, Lord Griffiths of Burry Port, to which the noble Lord and I both put our names but which was not moved—reflect a set of principles for common UK frameworks agreed at a Joint Ministerial Committee on EU Negotiations last October. They are certainly a basis for moving forward and already have a buy-in from the United Kingdom Government and the devolved Administrations in Scotland and Wales.

When creating United Kingdom frameworks, we do not want to find a situation where, when we come out of the European Union, there is something which impedes a Scottish beef producer freely selling their beef in Wales or a Welsh sheep producer selling lamb in Belfast. These benefits predate our entry into the European Common Market. It is also important to remind ourselves that the restrictions on the Scottish Parliament relate not only to reserved matters or EU law, but to what is in Schedule 4 to the Scotland Act. That specifically constrains the Scottish Parliament from doing anything which modifies Articles IV and VI of the Union with Scotland Act 1706 and the Union with England Act 1707. If one reads these two articles of the Acts of Union, drafted 280 years before the Cockfield report, one finds not a bad model, in the language of its time, for a customs union and a single market which have served us well over three centuries.

I also note that as well as the criteria that have been agreed, the Scottish Government themselves, in their legislative consent memorandum to the Scottish Parliament in September last year, said at paragraph 19:

“The Scottish Government has made clear, repeatedly, 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”.


Therefore, I believe there is a basis for reaching agreements here, but it is important that these are not imposed.

In giving evidence to the Scottish Affairs Committee in the other place last year, the Secretary of State for Scotland, Mr Mundell, stated at paragraph 21 of that committee’s first report of Session 2017-19:

“The Secretary of State for Scotland agreed that any common frameworks should be agreed with the devolved administrations, stating:


A UK framework is not a framework that the UK Government imposes; it is a framework that is agreed across the United Kingdom”.


It is important that we approach this issue with that in mind. That is why I think the amendment suggested and spoken to by the noble and learned Lord, Lord Mackay, is helpful. Indeed, that Select Committee went on to recommend that:

“Any common framework must require the consent of the governments of Scotland, Wales and Northern Ireland, where relevant”.


It is important to have a dispute resolution mechanism, as referred to by the noble Baroness, Lady Finlay of Llandaff, because there is potential for some disagreement in setting up these frameworks—I hope not as much as is sometimes thought—for which a dispute resolution mechanism is required. One assumes that once these frameworks are established—that goes beyond the ambit of this Bill—they will not be static but will develop. It might be useful at some stage—not in this debate or in this Bill—to get an indication from the United Kingdom Government as to how they see these frameworks working after they have been established. Do they want to see common standards apply across the United Kingdom, but have diversity within that as to how they are implemented in Scotland, Wales and Northern Ireland, or in England through the United Kingdom Parliament? That too will require some form of dispute resolution mechanism. The Select Committee, to which I have referred, recommends that,

“the UK Government and the devolved administrations agree a mechanism by which disputes can be resolved in the event that common frameworks cannot be agreed”.

I think that that is a two-stage process. First, there is the establishment of the common frameworks, where the amendment of the noble and learned Lord, Lord Mackay, is very pertinent, and, as we move forward, there is the issue of how we look at the operation of the common frameworks, which I believe will also need some form of dispute resolution mechanism. However, it is important that we move forward with the common frameworks. The amendment in the name of the noble and learned Lord, Lord Hope of Craighead, certainly reflects agreements that have already been reached between the United Kingdom Government and the devolved Administrations.