European Union (Withdrawal) Bill

Paul Flynn Excerpts

Committee: 4th sitting: House of Commons
Monday 4th December 2017 Commons Chamber

[Pete Wishart]

The hon. Gentleman is, of course, absolutely right. I will address some of those issues. He is spot on that there is an imbalance in how everything is repatriated. The repatriation of the powers is the central feature that concerns us.

Devolution is an elegant solution. Devolution in this country is asymmetric, with the different Parliaments and Assemblies having different powers. The United Kingdom is a complex constitutional nation, and we have designed devolution to meet the demands of a complex, multi-nation United Kingdom. We therefore muck around with the basic premises and principles of devolution at our peril, which is why clause 11 presents such a clear danger and threat that it must be amended.

It is also important to say that Scotland did not vote to leave the European Union. Every single local authority area in Scotland voted to remain in the European Union. I now have constituents who are very concerned about the chaotic cluelessness at the heart of the negotiations and discussions about taking this country out of the European Union. The Scottish Parliament has become collateral in all those conversations and discussions. There is real concern about how our Parliament will operate and about the powers it has the right to expect and to progress with.

[Paul Flynn (Newport West) (Lab)]

Does the hon. Gentleman agree that the secret to the Government’s thinking on this Bill is in the fact that they are insisting on including a date for withdrawal from Europe but that they refuse to include a sunset clause to give us a date when the powers they are about to grab from Wales, Scotland and Northern Ireland will be repatriated?

[Pete Wishart]

That is an important point, because a sunset clause is the sort of thing we need to see. It would give confidence to the hon. Gentleman and me, rather than just naming the day that we leave the European Union—we are all familiar with that date, anyway.

It is important that we set the context for this debate. We have to see Northern Ireland in the context of devolved powers. Today, we believed we had some sort of solution to the Northern Irish question. There was an agreement. The Prime Minister of Ireland was prepared to get to his feet and say that a solution had been delivered and garnered, only for it to be knocked out of the water by a telephone conversation with Arlene Foster. That is where some of these issues about devolution have gone.

We have now heard the elegant phrase “regulatory divergence”. I had never heard of it before today, but it is fantastic and I want to hear more of it. If regulatory divergence works for Northern Ireland, I am thinking it could just about work for Scotland, given the range of powers we have in the Scottish Parliament and the legislative competence we have in a swathe of areas. So let us hear more about this regulatory divergence. I am disappointed that none of my DUP friends are in, as they could have talked a bit more to me about some of their concerns. The last thing we need in the Scottish Parliament is to be sucked into all this process, so it is incumbent on this Government to ensure that devolution continues to operate on the basic premise set out in the 1998 Act. The sooner we get reassurance that that is their view and they introduce considered amendments, we will be happier—it starts with clause 11.

I listened carefully to the hon. Member for Harwich and North Essex, and I looked at his Committee’s report, saw the witnesses he brought forward and was surprised that he referenced Nigel Smith. My Committee also looked at this issue, hearing from a variety of witnesses—the House of Lords Constitution Committee and the Scottish Parliament Committees have also looked at it—and it is hard to find anybody with expertise in constitutional politics, either on the legal frameworks or in terms of having an academic interest, who does not agree that clause 11 does not work and is in need of amendment. Of all the guests that have been before the various Committees dealing with these matters it is difficult to find someone who would support the Government’s position, and I congratulate the hon. Gentleman on doing so.

There needs to be a basic understanding that the Scottish Government have stated that if clause 11 proceeds as currently constituted, they will not be in a position to recommend a legislative consent motion. That will lead, at the very least, to a constitutional stand-off, which would be singularly unnecessary and unhelpful, and would of course get in the way of all the other issues the UK Government have to deal with in this Brexit mess. Surely the last thing they want is to get into a constitutional stand-off with the Scottish Government. I know that progress has been made and that there is not much difference on some of these things, so it would be much better if the UK Government just fixed this for goodness’ sake. They should just get it sorted if we are so close; they should accept these amendments as a way forward and we could all then get relaxed and happy about the fact that there will not be any sort of constitutional issue to do with it. The Minister needs to say that we are going to be doing that.

It is good to have a look at what has been included in this Bill, particularly in clause 11, so let us start with something that the clause does not do. We have to be clear that it does not return powers from the EU to the devolved Administrations. Instead, it returns powers within the devolved competences solely and exclusively to the UK Government and Parliament. Worse than that, it imposes new restrictions on how the Scottish Parliament can operate when it comes to these devolved competences. The Scottish Parliament and Government will take a double hit. The clause would give the UK Government power to legislate in relation to policy areas that are the responsibility of the Scottish Parliament and the Scottish Government.

There is another issue, which has not been touched on today. At the point where we leave the EU, all these powers are repatriated to the UK Government and into some form of redistributive system—we are not really clear how that would work, as that has not been stated. When we leave, the EU will of course continue to amend and legislate in these areas, and the UK Government will be legislating on behalf of the Scottish Government. So there will be a space in between, from when we leave, where there is a divergence between EU law and UK retained law, which this Government solely and exclusively fit. Not only will the UK Government have powers on retained law when we leave the EU, but they will have ongoing responsibilities, as we continue to make that journey from leaving the EU, to try to fill that gap in between.

--- Later in debate ---

[Anna McMorrin]

I thank my hon. Friend, and I completely agree. That is what I am saying in my speech—that this is an absolute power grab to the centre and away from the devolved Administrations.

[Paul Flynn]

My hon. Friend is being extremely generous in giving way.

Could we take a practical example of what will happen? The Welsh Government have wisely introduced a law on presumed consent for organ donation—it is settled, and it has saved 40 lives. The United Kingdom Government have not introduced such a law, and England has lost 400 lives. Scotland is in the process of introducing such a law, but the power it has to do that is being grabbed back here. Will that kill people in Scotland? That is an example of this legislative paralysis, which is taking away Scotland’s powers to do something that is much needed.

[Anna McMorrin]

Absolutely. I completely agree. That just shows that what we have here in a number of policy areas is a constitutional crisis emerging and the UK Government acting as the Government of England, not the Government of the UK, leading to a number of possible conflicts of interest when it comes to imposing pan-UK structures.

Secondly, it is crucial that Welsh Ministers and the Welsh Parliament are responsible for correcting and amending all areas of EU law that are devolved. Restricting involvement means taking away powers that have been devolved for 20 years and creates an inequality between the nations of the UK, as has just been described by my hon. Friend the Member for Newport West (Paul Flynn). That endangers the proper functioning of any UK single market—one of the main aims of this Bill.

We have seen the mess the Prime Minister is making of these negotiations, and we have seen the mess today. She is held to account by a small minority party—the DUP—and we have seen that this afternoon in the negotiations. A hard Brexit or no deal would seriously challenge devolution, as well as risking the Union. As a devolutionist who wants the UK to stay together, I think these issues are likely to cause the UK to begin to unravel. The UK Government must take responsibility.

Finally, the UK Government know they cannot win this. They may be able to whip their Members here in the House of Commons, but they cannot whip their Members in the Lords. Those Members are determined to expose what this Government are doing and will not let them off lightly.