European Union (Withdrawal) Bill

Lord Purvis of Tweed Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I know the Committee wants to move on but I will make just a couple of brief points—in support of the Government moving on this issue; on the contributions made by the noble and learned Lord, Lord Mackay of Clashfern, and my noble and learned friend Lord Wallace of Tankerness; and on the anxiety that perhaps yet again we will be making constitutional measures on a temporary basis late in the day as a result of decisions by two Executives. While we have to take the Government at their word that these will be temporary measures, many procedures in this House and many elements of our constitution started off as temporary measures but have become almost permanent features of our constitution. In the absence of some changes which will provide a sunset element, we may well be in a similar situation.

Two years ago I brought a Bill to this House for a British constitutional convention, as a result of the Scottish referendum, to try to proactively discuss some of these issues. But, as the noble Lord, Lord Lang of Monkton, said, we are where we are now with this Bill so we have to address what may be constructive ways forward. I think the contributions made so far are good suggestions for what is a very complex situation because we are extracting ourselves from a single market at the same time as seeking to create one with the powers that will be coming back from the European Union. By definition, many of those powers are designed to be cross-border.

Many elements of European legislation are as a result of international agreements that the EU itself has made to implement global agreements, such as on climate change or safety in aviation. These are complex. Interestingly, as the Government’s own framework paper shows, most of that legislation has come into place since devolution. The evolution of the markets within the European Union does not entirely predate 1999. Whether on animal welfare, safety or aviation, many have developed not only since we established devolution in the UK but since the single market has developed. These are going to be very important for our future trading relationships, not only between us and the EU but in our arrangements with third countries.

Most of those areas concern non-tariff barriers, regulations and legislation in domestic law. These are going to be relevant for every single trade agreement that the UK will negotiate and will be at the heart of our relationship with the European Union. Although I have a degree of sympathy with the Government on a temporary basis, we will have to come back not only to the legislation for the implementation period but to that for the new relationship with the European Union. That adds even more weight to the fact that the discussions taking place now will have to be time-limited.

We are also discussing blind how we would expect a framework or a common market to operate within the UK. In many respects, you would argue that we do not have that at the moment. If you drive from where I live in the Borders to London and if you are selling cigarettes or bringing animals, you will be operating under three different road traffic systems. If it was cigarettes, you might have a different packaging system in Scotland. Certainly in Scotland, not only the language of road signs but road traffic speeds are legislated for differently. We operate within many barriers. The question is how damaging those barriers would be to the functioning of the United Kingdom.

That leads on to my second point. This is not simply going to be a relationship based in law; it is also about how the different component parts of the United Kingdom will operate. Since 1999, as noble Lords have said, there have been major changes to that legislation—changes that previous UK Governments said should not be made because they would be counter to the effective operation of the United Kingdom—and Governments have changed their position, usually as a result of consensus and cross-party negotiations.

Where I did slightly disagree with the comments of the noble Lord, Lord Lang, is that there have been now more than 150 LCMs in the Scottish context, and in many respects devolution has been working extremely well when you take away the rhetoric of the wider nationalistic argument. But it does show that there needs to be a degree of flexibility within this set of arrangements. That flexibility will have to come not just with a government-to-government relationship but also with the other elements that are necessary to determine how effectively a common market operates. Who provides the statistics? What is the dispute resolution mechanism? Who provides the data? We saw this in all the discussions that the noble Lord, Lord Dunlop, had during negotiations on the fiscal framework between the UK Government and the Scottish Government. In the end, many of the discussions were not about the legislative element but about the non-legislative element, such as who provided the information, whether there was an independent source of data on fiscal revenue and who did the forecasting going into the future. These are all going to be very important.

Noble Lords perhaps thought I was making a glib comment in the previous discussion when I intervened on the Minister and spoke about managed divergence, but that is part of the parlance in our discussions with the European Union. We have that within the UK, and the question is how divergent we can be in the UK for that common market to operate effectively. Part of this discussion will have to be about the existing offices that consider the markets within the UK—our office for energy, our office for communications, the Competition and Markets Authority—which are now going to have to be covered.

That leads me to my final point, which in a way is to address the point made by the noble Lord, Lord Forsyth. The choices that we have made about our relationships within the UK—whether nations were consulted and whether or not consent was provided—have been addressed by our European colleagues in different ways. The noble Lord referred to consent in the German federal structure, under which the Bundesrat provides, under the constitution, a decisive opinion when the federal Government bring forward measures that would impact the interests of the Land parliaments. This House is not a federal House; the House of Commons is not a federal Chamber. We will have to have some forms of institutions which bring this together.

In the first instance, however, I strongly support this legislation and the temporary measures being time limited. We will need a schedule of the specific areas which are, in effect, reservations, because we will have to make sure that those areas are resolved before we go over to the next stage. We will be in a kingdom of divergence and will need new institutions. It is not just about frameworks, but a new relationship across them. As many noble Lords have said, including the noble and learned Lord, Lord Hope, in his Second Reading speech, all of this will have to be underpinned by trust. It is the non-legislative relationships which in many respects will be more important than the legislative relationships in this Bill, in the next Bill, in the final agreement Bill and in all the different measures that come subsequent to it.

[The Earl of Kinnoull (CB)]

My Lords, I will speak very briefly indeed, in strong support of the government amendments, to make one observation and one point.

My observation follows on from something that the noble Lord, Lord Dunlop, said in his speech concerning the memorandum of understanding. The current memorandum of understanding, which is dated October 2013, is only a draft—it was never finally signed off. Since that date, of course, we have had the Scottish referendum and very serious Bills in this House that have given more and more powers to the devolved Administrations. I have said before in this House, as others have, that it is frankly not fit for the purpose of acting as the constitutional glue that the structure it controls should be. A well-functioning memorandum of understanding would breed a healthy atmosphere and the ability for the differing nations of the United Kingdom to talk together. Instead of the C words that we have been discussing today, “consult” and “consent”, there may even emerge—from my experience of international companies, where quite often you have the French arguing with the Germans or whatever—a third C word, “consensus”, which would be enormously helpful in this situation. My observation is that this situation is much to be regretted, and I hope the Government are going to put a lot of weight behind getting it resolved and getting a proper memorandum of understanding structure sorted out so that we are not in the position that we are in today where we have a fractious and pretty horrible discussion going on about these issues.