Scotland: European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

Thursday 14th June 2018 Lords Chamber

[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.

[Lord Duncan of Springbank]

My Lords, I thank both noble Lords for beginning what I think is a very necessary discussion on the functioning of the Sewel convention. If I may—to go in reverse order—I will address the question of the frameworks themselves and their functionality, because I think this is where we need to focus our attention. These have been the subject of extensive engagement at an official level. If we add up the number of hours that have now been spent with officials examining each of those frameworks, we are in excess of 100 hours of meetings specifically to look at the functioning of the frameworks themselves. A phrase that comes to mind is: “officials are smiling on it”, which we always widely interpret as things are going quite well—but officials smiling is not the same as Ministers themselves signing it off. One challenge that we have often had is that what appeared to be agreement at the level of the officials—where examination on the detail of the frameworks themselves appeared to be reaching consensus and agreement—did not always match and meet the next step of making sure that Ministers themselves were able to sign that off. That has been one of the greater challenges that we have experienced because, again, this is without precedent. We are trying to establish how we can repatriate laws that we have not had functional control over, and trying to do so within a devolved framework, which of course did not exist when those laws were first moved from the United Kingdom Parliament across to Brussels.

In terms of the events in the other place, time was given, but it might be argued that time was misspent. A great deal of time was spent on a number of elements in discussion, thereby precluding serious engagement on these specific aspects. There needs to be some soul-searching across a number of parties as to how it ended up that way. I do not think that we in this place—or indeed those in the other place—can legitimately say that there has not been substantive engagement on the devolved clauses, Clauses 11 and 15, on many different occasions, both here and through the various forums that exist for officials and for Ministers to examine them. There has been, I suspect, on this clause alone, more correspondence, engagement and meetings to try to bring about the necessary agreement. Clearly, we were able to secure that agreement with the Welsh Administration but not with the Scottish Administration.

The noble and learned Lord, Lord Wallace, raised the point that my right honourable friend in the other place said that he would bring agreed amendments on Report, but the key part is “agreed”. In order to achieve that, the two sides had to reach agreement. It was not for want of effort that that agreement was not found. The reality is very simple: if you are unwilling to accept that there needs to be some form of concessions to seek that agreement, then you are simply not going to get it. At each stage when we thought that we had moved far enough to change the structure of the clause in such a way that we would be able to get support, we found that the goalposts had shifted slightly further away from us. Clearly, we were able to deliver the support of the Welsh Government, but we were never able to secure the support of the Scottish Government. Even though the officials—and indeed certain Ministers in the Scottish Government—believed that we had made enough progress, unfortunately, when it came to the final sign-off, that was simply not the case.

I take the point from the noble Lord, Lord McAvoy, about the JMC and how it shall work. There are examinations now about how we shall create structures that will necessarily address the changing environment and changing reality. How that will evolve is yet to be determined, but I take on board the points that he has made; it is useful for us to be part of that engagement. There will need to be cross-party engagement on the functionality of what, in effect, is a new constitutional arrangement—one that we are still writing. That is part of the challenge that we are living through right now; we have not yet signed off the final chapter of what this will look like. It is therefore quite difficult, in one respect, to determine exactly how we, as the Government, shall address that—my word, that is very unusual handwriting on the note just passed to me; I will read and speak to it momentarily, but not right now.

To conclude my remarks on this particular point, the important thing is that the show is not over. We are trying, and continue to try, to deliver the outcome that is right, but there needs to be an acceptance of agreement, which has to be based upon at least some acceptance of a concession. At the moment, the Scottish Government’s view on this is so didactic, specific and unmoving that, in essence, we are placed in the invidious position right now of taking a journey that we did not set out to take but which is facilitated within the law. As the noble and learned Lord, Lord Wallace, has said, the Sewel convention does allow for this particular approach under not normal circumstances. We do not want to be taking this journey at all, but we are and we must, because the key thing is that, on day one after Brexit, the statute book must work, not just here in London but in Edinburgh, in Belfast and in Cardiff.

--- Later in debate ---

[Lord Duncan of Springbank]

I thank the noble Lord for his words of advice, but Scots are renowned for telling it like it is, and I assure him that I moderated my language a great deal when I chose those words. What I saw yesterday was scandalous, and I think anyone who saw it would agree. It was a dereliction of a democratic role. That level of theatrics may play its part—I do not doubt that—but there are other things that should be done in the other place.

On qualified majority voting, in the United Kingdom we have a degree of asymmetry. Attempts were made by the other party to address this through regional assemblies within England, but that was simply not supported by the public will. It is not easy to accept in such a small island archipelago such as we are, where one nation is so dominant in terms of population, that we should somehow simply divide the land into four parts and pretend that each is equal and should be considered as such. That would not be easily done. I do not think that the Government today are ruling anything out, but we have to be realistic—something else the Scots are renowned for.

[Lord Wallace of Tankerness]

My Lords, if no one else is rising to speak—we still have 12 minutes—I will ask a question. The Minister said in response to the questions I raised that time was taken up by Divisions, but can he confirm as a matter of fact that the Government could have arranged the timetable, given that it happened over two days, so that the issues on what became Clause 15 were taken first and were not truncated in the way they were? It is also part of the Government’s own timetable that time for Divisions is taken account of. Can the Minister confirm that it was a matter of the Government’s own judgment that they did not put this item in a place where it could be properly debated?

[Lord Duncan of Springbank]

I thank the noble and learned Lord for that point. I can confirm that the Government could have adjusted it, had they been minded to do so. However, the problem was that they did not anticipate what happened as the votes began to dominate and consume the speaking time. Part of the dilemma that was faced was therefore that by the time this was recognised, the time itself had elapsed. I do not doubt that yesterday, had the Scottish National Party not left the building and had lodged their request for a debate, there would have been a debate on that very point to allow each of these issues to be aired adequately.