Scotland: European Union (Withdrawal) Bill

Lord McAvoy Excerpts

Thursday 14th June 2018 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, with the leave of the House I shall now repeat a Statement made by my right honourable friend the Secretary of State for Scotland in the other place. The Statement is as follows:

“I would like to make a Statement on the operation of the Sewel convention and its application to the European Union (Withdrawal) Bill in relation to Scotland. Mr Speaker, these are serious times and serious issues. I have come to the House today with respect and ready for constructive debate, and I hope that is the spirit of all sides.

Lord Sewel set out a commitment in 1998 that there should be a parliamentary convention to recognise that when the UK Parliament legislated in a devolved area it would,

‘not normally legislate without the consent of the Scottish Parliament’.

Throughout the passage of this Bill, the Government have demonstrated their commitment to the Sewel convention and the principles that underpin our constitution. We have followed the spirit and the letter of the devolution settlement at every stage.

The European Union (Withdrawal) Bill is about ensuring that the whole of the United Kingdom has a functioning statute book on exit day. It is about providing legal certainty to businesses and individuals up and down the country. From the outset we have been clear that, as a result of the UK’s exit, we would expect to see a significant increase in the decision-making powers of the devolved institutions. We have made it clear that exit would provide the opportunity to bring powers home from Brussels, not just to the UK Parliament, but to all of the legislatures of the United Kingdom. We must remember that the powers in question were handed to the European Union through our membership in 1972, long before devolution existed in Scotland. Exit was neither anticipated nor provided for in the Scotland Act or the structure of the devolution settlement. So it is certainly fair to say, as Mike Russell, the Scottish Government’s own Brexit Minister has said, that these are not normal times.

Nevertheless, we have sought to respect the devolution settlements at every turn and recognised the strength of feeling across this House, as well as within the devolved Administrations, that the original measures set out in the Bill did not meet aspirations. No one could deny this Government have come a long way from that original position. Discussions have been conducted at multilateral level through the JMC (EN) and the JMC (P) chaired by the Prime Minister, bilaterally between Administrations, and extensive official level engagement—and we have made significant changes to the Bill. These changes enabled the Welsh Labour Government to gain approval, and to gain approval of the other place.

These changes have seen the original clause turned on its head. Now, all decision-making powers returning from the EU that intersect with devolved competence will pass directly to Cardiff, Edinburgh and Belfast, unless explicit steps are taken to temporarily preserve an existing EU framework. The intergovernmental agreement underpinning the new clause set out how those steps should be taken, with an emphasis on collaboration and agreement. Together, this means we are emphatically delivering on our commitment to give significant further powers to the Scottish Parliament. The clause also provides in certain limited cases that the current arrangements we have under the EU will remain until we have implemented our new UK-wide frameworks. I want to stress that we have already agreed with the Scottish and Welsh Governments where this temporary preservation needs to be considered. The Governments are agreed that ‘freezing’ areas is likely in just 24 of the 153 areas of powers returning to the UK from the EU.

To anyone who has sought to present this as seeking to take back powers that the Scottish Parliament already has, I repeat again here that the Bill includes a specific provision that makes it clear explicitly that no decision-making powers currently exercised by the Scottish Parliament can be taken away. These amendments strike the right balance between ensuring that exit results in increased decision-making powers for the devolved legislatures, while continuing to provide certainty about how our laws will operate and protecting our internal market, a market so vital to Scotland’s businesses.

These amendments do not, and cannot, go as far as the Scottish Government want, because the Scottish Government want a veto over arrangements that will apply to the whole of the United Kingdom. However, as the noble and learned Lord, Lord Wallace, the former Deputy First Minister of Scotland set out when the Bill was being debated in the other place, that was not part of the original devolution settlement.

Our approach also helps to ensure the continued integrity of the UK internal market, which is so vital to people and businesses in Scotland. At every stage, the SNP has disregarded the need to preserve this market and ensure that there are no new barriers to working or doing business in the United Kingdom. The UK internal market is worth over four times more to businesses in Scotland than is EU trade, and we must make sure that it is preserved as we leave the EU.

We have reached a point now where, as the Welsh Labour Government have stated clearly, these arrangements reflect and respect how the devolution settlements operate. The devolved legislatures will have a formal role in considering where existing frameworks need to be temporarily preserved. That is what we have delivered. However, Scotland has two democratically elected Parliaments, and it is only this Parliament, the United Kingdom Parliament, that can speak for the United Kingdom as a whole. It is deeply regrettable that the First Minister of Scotland, Nicola Sturgeon, and her Government were unable to sign up to the compromise solution brokered by her and our officials and the officials from all the Administrations working together. However, as we all know, you can only reach agreement in a negotiation if both sides actually want to reach agreement.

The Scottish Government’s position from the outset was that they would be content with nothing less than a veto. However, such an unreasonable position would fundamentally undermine the integrity of the United Kingdom internal market. This would harm business in Scotland and the rest of the UK. Despite the numerous attempts to find compromise, and the fact one was reached with the Welsh Government, the SNP position has not changed. As a result, this Government, who represent the whole of the United Kingdom, could not responsibly accept their position.

We are now therefore faced with the reality that the Scottish Parliament has not given consent for this critically important legislation that provides certainty across the United Kingdom. This is not a situation any of us would have chosen. It is not, however, a crisis; nor is it unforeseen. While the devolution settlements did not predict EU exit, they did explicitly provide that, in situations of disagreement, the United Kingdom Parliament may be required to legislate without the consent of the devolved legislatures. In any situation, agreement is our aim, and we will continue to seek legislative consent, take on board views, and work with the Scottish Government on future legislation just as we always have done.

We on this side of the House have compromised. We have made every effort to reach agreement, and we have sought consent. Now we are legislating in line with the Sewel convention to ensure that the whole of the United Kingdom leaves the EU with as much legal certainty as possible. That is what the people and businesses in Scotland need”.

My Lords, that concludes the Statement.

[Lord McAvoy (Lab)]

My Lords, I thank the Minister for repeating the Statement. This House debated the vital issues of devolution over a number of hours and days during the passage of the EU withdrawal Bill. I pay tribute to noble Lords on all sides of the House for interrogating the Government on the issues with care and a wealth of knowledge. This House agreed a package of amendments to be sent back to the other place for their careful consideration. It is, frankly, remarkable that the Government provided less than 20 minutes for the elected House to debate the proposals in front of them on issues as fundamental to the union as devolution and the future of the Northern Irish border.

When this House gave the Bill its Third Reading, we expressed our regret at the absence of a legislative consent Motion from the Scottish Parliament and our hope that the UK Government would convene cross-party talks with the Welsh and Scottish Governments to look at ways forward. We are informed that requests for such talks, including by the shadow Secretary of State for Scotland, have been declined. This is, at the very least, disappointing.

The Government did not give enough thought to devolution in their drafting of the Bill, as in many other areas, and brought forward a flawed piece of legislation. The Government’s own Ministers conceded this point. A great deal of time and debate went into trying to address problems which are in part of the Government’s own making. It is unreasonable, at the next stage of that process, to claim that there is no time left for the other place to have a full debate on the new Clause 11 that it was promised.

We have repeatedly asked the Government to think more carefully about the devolution settlements, and the place they have in upholding our union and shaping the future of the Brexit negotiations. Are the Government actively considering Her Majesty’s loyal Opposition’s calls for the Joint Ministerial Committee to be put on a statutory footing, and have the minutes of its meetings published? We have a situation and there has to be a discussion, agreement and consensus, and I hope that the Minister can provide some hope in that quarter.

[Lord Wallace of Tankerness (LD)]

I thank the Minister for repeating the Statement. I am not sure whether to thank him for the name check, which was a fairly broad interpretation of a somewhat more complex legal point. However, clearly, the Statement was made in the other place in response to the failure to have an adequate debate on the Lords amendments and following on, too, from the stunt of the SNP walking out yesterday. However, anyone with even a limited knowledge of Scottish politics knows that the SNP is a grand master at cranking up the grievance machine. Can the Minister therefore say why the Government gave them a gift-wrapped grievance to exploit?

We must also ask about the role of the Secretary of State for Scotland. Let us recall that he promised the House of Commons that amendments to Clause 11—which was, by that stage, completely discredited—would be tabled in the House of Commons on Report. That did not happen. I think there was some forbearance, when the Bill came to this House, because we took the view that, if time was needed to get these amendments right, then time should be taken. Indeed, we had good debates in Committee and on Report and even some further debate at Third Reading. But that was done on the expectation that Scotland’s elected Members, not just the SNP Members but those from the Conservative Party, Labour Party and Liberal Democrats—and indeed Welsh and Northern Ireland Members, because it affects their constituents too—would have a proper and adequate opportunity to look at these amendments. They are a total recasting of the devolved situation post Brexit and the Government must really answer why they did not arrange the timetable in such a way as to allow that to happen. We are entitled to ask whether the Secretary of State for Scotland made representations for the timetable to be arranged in such a way for there to be adequate debate. If he did not, he was derelict in his duty and, if he did, I ask the Minister what conclusions can we draw about the weight he carries within government in as much as these representations were overlooked?

If one goes to the substance of the Statement, it says that:

“While the devolution settlements did not predict EU exit, they did explicitly provide that, in situations of disagreement, the United Kingdom Parliament may be required to legislate without the consent of the devolved legislatures”.


It is of course the case that, legally, Section 28(7) of the Scotland Act 1998,

“does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.

That is a statement of the sovereignty of the United Kingdom Parliament. Section 28(8) goes on to state:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.


As the Supreme Court found in the Miller case, it is a convention and, therefore, it is a perfectly legal position that the United Kingdom Parliament can legislate. Can the Minister indicate—it may be that he has not had time to look back at exactly what Lord Sewel said—whether Lord Sewel explicitly said, as was claimed in the Statement, that in some way this would be used as a form of dispute or disagreement resolution? I would quite like to know where this explicit reference to that came from.

We know that this particular Bill is a forerunner to agreeing frameworks. The principles of the frameworks for the United Kingdom were agreed by all parties at the Joint Ministerial Committee on EU Negotiations back in October. Can the Minister indicate what steps have been taken to put some meat on to the frame of these frameworks? Has the position that has been taken by the Scottish Government—indeed the Scottish Parliament—in any way hampered these discussions in recent weeks, both at official level and at ministerial level?

For my final point I just return to the issue of dispute resolution because, if we are going down the road towards UK frameworks, it is important that we have a better form of dispute resolution than taking the sledgehammer to what has happened in the meantime. We want to know what thought has been given by the United Kingdom Government, in discussion with the devolved Administrations, to ensure that there is far better dispute resolution than we have had to date.