European Union (Withdrawal) Bill

Stephen Kerr Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Wayne David (Caerphilly) (Lab)]

Although I campaigned and argued for this country to remain a part of the European Union, I fully accept that that is not the majority view of the country. But I would argue that this is the wrong way to leave the European Union. This is not a general enabling Bill; it is a poorly thought-out, complex and undemocratic piece of legislation. One of the most fundamental problems with the Bill is that it amounts to—yes—a power grab by this Government. That power grab takes several forms, but I want to focus on just two aspects.

First, there is the widespread use of Henry VIII powers, allowing the Government effectively to bypass Parliament and change primary legislation through secondary legislation. That has, of course, happened in the past, but not on such a huge scale as is planned now. As a result of this Bill, we will see extensive use of those undemocratic powers, because some 12,000 EU regulations will be brought into UK law. Some of them will make changes for technical reasons, but, as the most recent paper from the House of Commons Library states, it is anticipated that others will enable “substantive policy changes” to be made by the Government. So changes are likely to be introduced through Committees, which is why the Government are doing their best to pack those Committees with their own MPs, against the established procedure of the House.

We are also seeing an unprecedented power grab with regard to devolution. As a Welsh Member of Parliament and a former Wales Office Minister, I have followed devolution very closely. Many of us expected, as did the devolved institutions themselves, that this Bill would make real the promises the Government set out in their White Paper.

[Stephen Kerr (Stirling) (Con)]

Will the hon. Gentleman give way?

[Wayne David]

There are many speakers, as we have heard, and I am sorry, but I would rather press on.

In the White Paper of March 2017, it was stated that there would be a significant increase in the decision-making powers of the devolved institutions. That was there in black and white. It also intimated that former EU frameworks would be subject to decisions involving the devolved Governments, but such is not the case. The Bill before us does not return powers from the EU to the devolved institutions, as promised. Instead, in devolved areas, such as agriculture and the environment, power is going from Brussels to London, bypassing and therefore undermining devolution. Moreover, this Bill in effect imposes a freeze on the legislative competences of the devolved institutions. As a report by the Welsh Assembly research department points out, the devolved institutions will not be able to modify so-called retained EU law for Wales and Scotland, but a Conservative British Government will be able to do so for England, and may even be able to do so for the devolved nations.

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[Stephen Gethins (North East Fife) (SNP)]

Today marks the 20th anniversary of the referendum on re-establishing the Scottish Parliament—not just “notionally” re-establishing it, I should point out to the hon. Member for Harwich and North Essex (Mr Jenkin). I voted in that referendum having just returned from the Erasmus programme. The re-establishment of the Scottish Parliament was backed by most of Scotland’s parties—certainly by its progressive parties. Today we are about to see the biggest devolution power grab since that re-establishment, and it that will have an impact on the devolution process the likes of which we have never seen before. As someone who returned from Erasmus to vote in the referendum 20 years ago, I have been reflecting on the impact that this process will have on opportunities for young people, among others.

The hon. Member for Richmond Park (Zac Goldsmith) rightly highlighted the benefits of European Union membership. It has benefited our rights; it has enabled us to build a broad consensus on the need to tackle environmental problems such as climate change; it has benefited universities; and it has torn down trade barriers. Tonight we will vote on a Bill that will take powers away from Holyrood and undermine the devolution process, and that is something that we cannot thole.

[Stephen Kerr]

Will the hon. Gentleman give way?

[Ross Thomson (Aberdeen South) (Con)]

Will the hon. Gentleman give way?

[Stephen Gethins]

I shall come to both hon. Members shortly—they will have ample opportunity.

The Government’s approach was rejected in June, and we should all be mindful of the fact that what has been delivered in its place is a Parliament of minorities. That is commonplace at Holyrood. It is something that we had to get used to, and it is something that we shall all have to get used to. A Parliament of minorities is clearly a challenge for the Government, but it is a challenge for the Opposition as well, because we must all show that we are willing to work in a constructive way if the Government are willing to listen. That is not easy for us. The SNP remains committed to Scotland’s membership of the European Union. I want to see Scotland as an EU member state, and I am proud that Scotland voted overwhelmingly to support that. However, given the devastating impact of the Government's lack of strategy, it is up to this Parliament, and all parliamentarians, to step up to the mark.

The mess that we are in is not entirely the Government’s fault. I think that Vote Leave bequeathed that mess by presenting a blank piece of paper, which means that it is up to us to try to fill in those many, many blanks. Having said that, the Government have had five months since they triggered article 50 and 15 months since the EU referendum. Ministers bear culpability for the present situation, but Ministers who were part of Vote Leave bear particular culpability. For instance, there is the Secretary of State’s own yardstick:

“I would expect the new Prime Minister on September 9th to immediately trigger a…round of trade deals”.

Where are they? In the face of such chaos, all Members have a responsibility—each and every one of us. We need to put our differences to one side.

There is scope to do that, as we have put together a compromise. On this anniversary of devolution, I want to pay tribute to the Labour party and Plaid Cymru, which were able to put aside their differences and to try to come up with a common position. I know it was not easy for Members of both parties to do it, but they did, and full credit to them both for doing so. The Scottish Government put together a committee of experts to come up with a compromise, and I note that in the aftermath of the referendum—here is the cue for Conservative Members—Scottish Labour and the Scottish Conservatives called for retaining membership of the single market. In fact, the Scottish Conservative leader—who knows, maybe the future Westminster Conservative leader—said:

“Retaining our place in the single market should be the overriding priority.”

I would certainly hope that Ruth Davidson’s Conservatives will do the right thing and stand by their leader. I wonder if they are Ruth Davidson’s Conservatives or Theresa May’s Conservatives when it comes to this—they are staying seated, saying nothing whatsoever.

The Bill also represents one of the biggest power grabs that we have seen. I note that one MP said—

[Stephen Kerr]

rose—

[Stephen Gethins]

Ah, there we go! I give way.

[Mr Speaker]

Order. The hon. Gentleman is in a state of uncontrolled excitement, but he is auditioning to be a statesman; he must calm himself.

[Stephen Kerr]

The hon. Gentleman has mentioned several times now that this Bill represents a power grab; that is the new in-fashion statement from the Scottish National party. Can the hon. Gentleman name one power that the UK Government will grab back from Holyrood?

[Stephen Gethins]

I will give the hon. Gentleman his due: at least he had the courage of his convictions and stood up; the rest of them took their time over that. On fishing, on agriculture and on energy, we were told that these powers would come back to the Scottish Parliament without touching the sides, so where are the full powers over fishing, agriculture, energy and education? They are being retained by this Parliament on the 20th anniversary of the devolution process.

To return to my point, the MP I mentioned earlier said this:

“The balance of advantage between Parliament and Government is so weighted in favour of the Government that it is inimical to the proper working of our parliamentary democracy.”—[Official Report, 22 June 1999; Vol. 333, c. 930.]

That warning about powers such as Henry VIII powers was made in 1999 by the Secretary of State himself when he tried to introduce a Bill to deal with them.

This is a hung Parliament. The Scottish Parliament was designed for a new kind of politics, and one thing I will say to Conservative Members—I hope they are listening—is that even when the SNP was elected with 47 seats out of 129, we had ground-breaking, world-leading action on climate change, free education was reintroduced, and the number of police officers was increased. Action can be taken in a Parliament of minorities, but for that to happen, Members must be willing to listen to those on the other side of the House.

Excellent points have been made from the Conservative and Labour Benches, as well as by other colleagues. The challenge is whether this Government are prepared to listen. What we have seen so far is a Tory Government who want to turn their back on the EU and happily talk about a no-deal situation that would be devastating for jobs and the economy. This approach of ourselves alone against the world is not one that I can possibly endorse, and nor can my colleagues. We must reject this Bill. A new approach is needed, and that is why we will be voting against the Bill tonight.

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[Richard Drax]

I will not give way again, because many other Members wish to speak. However, I shall address that point later, because I served on the European Scrutiny Committee in the last Parliament.

From listening to the speeches, one would think that this country, Great Britain, was incapable of passing laws. What on earth is wrong with this great place, which we are selected to represent—our country? We are talking about one of the biggest honours: becoming an MP and representing our constituents. We used to make all the rules and regulations that our constituents lived under. Hon. Members may recall that we joined the EU for free trade, which everyone said was a jolly good idea—and it was. Unfortunately, the bureaucrats have taken over the running of that good idea, and if we can go back to that idea by leaving the EU, as I hope we can, I believe our constituents will be forever grateful.

This Bill is not a power grab, as the Opposition claim. The way they are going to vote is a smokescreen; it is a politically cynical move to destabilise this Government—that is all it is. It is an opportunity for the Leader of the Opposition, God forbid, to become Prime Minister of this country. What we are doing here is repatriating thousands of regulations into our jurisdiction, thousands of which have been imposed on us over the past 40 years. We can review them; that is our job—we review legislation. If we do not like it, we will get rid of it. If we have a majority, we will vote it out. If we like it, we will keep it. If we are not sure, we will amend it. What might be right for a European country—for the French or the Germans—might not be right for us.

Because of the sheer number of regulations, some will have to be delegated. Everyone is making a noise about delegated legislation, but both main parties have used delegated legislation for years—it is part of how this place works. Some Government Members have suggested some sort of triage process to assess what should be dealt with through delegated legislation and what should be taken on the Floor of the House. If I recall correctly, my right hon. Friend the Secretary of State listened to them and said that he would think about that. I am sure that those who want there to be a decision-making process for what should and should not be delegated will have a say in Committee.

The hon. Member for North Antrim (Ian Paisley) made a point about the silence that has reigned for so many years. I served on the European Scrutiny Committee under the excellent chairmanship of my hon. Friend the Member for Stone (Sir William Cash), who is sitting just in front of me. For years—for many more years than me and probably most people in this House—he has scrutinised EU legislation. In the short time for which I served on the Committee, we tried to get important issues—not least the future of our ports—debated on the Floor of the House, so that we could all listen to the sense, or lack thereof, of EU legislation and decide whether what was appropriate for Europe was appropriate for us. Those debates never happened.

[Stephen Kerr]

And we could not change it.

[Richard Drax]

As my hon. Friend says, even if those debates had happened, the legislation could not have been changed. Where were all these loud voices? Where were you all over the past 40 years? Why did you not question what was being imposed on our country and our constituents? Where were you?

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[Stuart C. McDonald]

I do not necessarily agree with the right hon. Gentleman, nor do I have faith that even the affirmative procedure is necessarily a proper safeguard against wide-ranging powers such as those in the Bill. Such power does not belong in a Henry VIII clause at all.

Limits could be placed on the powers in the Bill at later stages. We could perhaps restrict which matters could be dealt with by delegated legislation, list further protected enactments, and define key terms such as “deficiencies”, or introduce a test of necessity, rather than rely on subjective ministerial judgment, and thereby improve the Bill. If it is to proceed, that must happen. But none of that would resolve the fundamental challenge of how we parliamentarians are supposed to play a substantial role in the whole process, beyond the usual inadequate procedures for scrutinising secondary legislation. Other Members have gallantly suggested alternative mechanisms—for example, some sort of filter—but to my mind they have been far too modest. At the very least, we need a procedure that allows us to table amendments to regulations, rather than meekly accepting take-it-or-leave-it, all-or-nothing proposals from the Government.

We are more than 13 months on from the referendum. Transposing EU law into UK law was always going to be a monumental task. The Government’s assuming that we could just use the same old procedures we always use was either negligence, complacency, arrogance, or a mixture of all three. Such procedures are not fit for the normal business of this House, never mind for the vital task that lies ahead.

With respect to the devolved competencies, the Bill rides roughshod over the devolution settlements. Can you imagine, Mr Speaker, the federal Governments of Germany or the USA—or of lots of other federal places—attempting such a unilateral power grab? It would be greeted with outrage, and rightly so.

[Stephen Kerr]

I shall try again with the question I asked earlier. The hon. Gentleman talks about power grabs and the trashing of the devolution settlement, but can he tell me one power that the UK Government intend to grab back from Holyrood?

[Stuart C. McDonald]

Had the hon. Gentleman listened to my hon. Friend the Member for North East Fife (Stephen Gethins) earlier, he would have heard him mention agriculture, the environment and fishing. If he bears with me, I shall come to that point in just a moment.

The Länder and the individual states of the United States are lucky that they are protected by a proper constitution; it seems that all our devolved nations are protected by is the Government’s mood and political pressure. It is a salient reminder that power devolved is power retained and of just how fragile the devolution settlement is.

On the point made by the hon. Member for Stirling (Stephen Kerr), can we imagine the response if the Bill sought to do to this Parliament what it would do to the devolved legislatures? If the Bill’s purpose was to take back control, but then to prevent Parliament from changing retained EU law, it would have been laughed at and considered utterly unacceptable, but that is exactly what it will do to the devolved legislatures. It is completely unacceptable for the exact same reasons. We have heard some patronising arguments from Government Members, one of whom essentially argued that the UK Government need to take control of the powers for now to protect citizens in the devolved countries from their democratically elected Governments. We are more than capable of handling powers; we have done so since devolution, and we will continue to do so after Brexit.

If anything good has come of the Bill, it is its highlighting of the significant failings in the House’s procedures for the scrutiny of the ever-increasing number of Executive powers to which successive Governments have helped themselves. It also highlights the utterly centralised nature of the British constitution, which is as far away from a mature federal model as it could ever be. There are almost no proper constraints to rein in Executive power, or proper legal safeguards for important rights. The idea that the Bill is part of a restoration of Parliamentary sovereignty is nonsense; it will simply mean that parliamentary sovereignty and, more significantly, Executive power are more unfettered than ever.

Perhaps membership of the EU, and the protections that that has provided through the charter of fundamental rights and other provisions, has led to complacency about the dangers of untrammelled parliamentary sovereignty, and the problems of the elective dictatorship once identified by Lord Hailsham. Now that the EU’s safety nets are being removed, all of us who believe in constitutionalism need to look again at where the UK goes from here. This Bill is certainly not the answer, which is why I will vote against Second Reading tonight.

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[Hannah Bardell]

I share my hon. Friend’s concerns, and I am sure she shares those of the insurance sector, which cites aviation as a relevant example because national airlines based in any EU country require a range of specialist insurance cover. Most of that is a mandatory requirement for operation. The UK insurance market is the only location with the specialist aviation insurance knowledge and financial capacity to provide the full coverage for all the risks faced.

[Stephen Kerr]

Will the hon. Lady give way?

[Hannah Bardell]

I will not at the moment. I am going to make some progress.

To put it simply, planes will not be able to take off, as my hon. Friend the Member for Central Ayrshire (Dr Whitford) identified.

There is concern that the UK Government might use clause 8 to trigger article 127 of the European economic area agreement, immediately ripping away the UK’s access to the free movement of goods, people, services and capital. As the days pass, the fear and concern heighten. Frances O’Grady, the general secretary of the TUC, said this morning—she was adding to the list of Brexit superlatives—that the Conservative Government were headed towards a “kamikaze Brexit”.

In a single act of complete recklessness, the Government are pressing ahead with this deficient Bill without carrying out a proper economic analysis of any economy across the UK. The people in businesses I have spoken to do not want to fall off a cliff before new trade deals can be agreed. They cannot afford to crash out of the EU or to fall back on WTO rules, which the CBI president said would open a “Pandora’s box”.

The gap between any transitional period and the start of any trade deal is also a real threat. Agriculture, fisheries and the environment are just some of the areas devolved to Scotland that will be affected by the Bill. The Fraser of Allander Institute has shown that a hard Brexit could cost Scotland’s economy and its GDP up to £10 billion and 80,000 jobs. That is almost the entire number of people in my constituency. The Scottish Government did try to work for a compromise, presenting their proposals in “Scotland’s Place in Europe”, but they did not even receive a decent response.

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[Stephen Kerr]

Will the hon. Lady give way?

[Luke Graham]

Will the hon. Lady give way?

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[Stephen Kerr (Stirling) (Con)]

I rise with enthusiasm to support the main principles of the Bill and its Second Reading. We have heard many excellent contributions and I would like to express my appreciation for the quality of this debate. To me, the debate comes down to something rather straightforward. When this House passed the Bill to hold an in/out referendum on the United Kingdom’s continued membership of the European Union, it entered a compact with the British people to act on their direct instruction. This Second Reading debate is about main principles. The first principle of the European Union (Withdrawal) Bill is to repeal the European Communities Act 1972 on the day we leave the European Union. A vote against that principle will be an attempt to set aside the result of the referendum and a base disrespect to the British people—it is as uncomplicated as that.

The second principle of the Bill is to convert EU law, taken as a whole, into UK law so that we can have a stable and functioning statute book on the day we leave the European Union. A vote against that principle would create the potential for instability and uncertainty, because we would have a broken statute book on the day we leave the European Union. It is no more complicated than that. This is a grand moment for British pragmatism.

Sincerely held concerns have been and are being raised about the Bill’s so-called Henry VIII powers. A number of right hon. and hon. Members on both sides of the House have made positive suggestions that deserve the careful consideration of those on the Government Front Bench—[Interruption.] Thanks for the prompt. There is clearly a willingness on the part of the Government both to listen and to accommodate, and I fully expect them to be as good as their word. That said, I find it strange that some of those who object so strenuously to the so-called Henry VIII powers and the Bill seem not to have had many concerns over the past 44 years when Governments have been expected to enact a steady stream of EU laws and regulations that neither the Government nor Parliament have had the power to change or the capacity to scrutinise properly.

[Bill Grant (Ayr, Carrick and Cumnock) (Con)]

Does my hon. Friend agree that as a nation we need to learn to respect the outcomes of referendums? We have had two major referendums in the UK, but we seem repeatedly to fail to respect the will of the British people.

[Stephen Kerr]

My hon. Friend’s excellent point brings me neatly to the nationalists, who have called the Bill a power grab and a threat to the devolution settlement. It is no such thing. They cannot name one power that the UK Government intend to grab back from Holyrood.

[Joanna Cherry (Edinburgh South West) (SNP)]

Does the hon. Gentleman agree with the Law Society of Scotland, a non-partisan body, that the Bill would remove legislative competence from the Scottish Parliament, including in areas of law not reserved to the UK, such as agriculture and fisheries? Has he read the Bill?

[Stephen Kerr]

The answer to the first question is no. I remind the hon. and learned lady, however, that it was a Conservative Government who passed new powers to the Scottish Government, and there is no evidence, other than in the feverish imagination of SNP Members, that the UK Government intend to grab back any devolved powers.

To the contrary: I have lost count of the number of times Ministers have said in this House and elsewhere that they anticipate that the Scottish Parliament will have new enhanced powers because of Brexit. The irony is that the SNP, if it ever got its way, would hand those very powers back to Brussels. The SNP Government have spent the past 10 years power grabbing for themselves from local government and local communities, and their incessant centralising of power has undermined the very fabric of local democracy in Scotland. Just a few days ago, Scottish Ministers, against all advice, including from their own reporter, ran roughshod over local democracy in Stirling by foisting a huge commercial development on scenic greenbelt at Park of Keir. Many of my constituents—

[Brendan O'Hara (Argyll and Bute) (SNP)]

On a point of order, Mr Speaker.

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[Mr Speaker]

If the speech had been disorderly, I would have ruled as such, but it wasn’t, so I didn’t.

[Stephen Kerr]

Thank you, Mr Speaker.

Many of my constituents in Dunblane and Bridge of Allan are rightly angry at this power grab by the SNP. That is one of many such examples.

I have no hesitation in telling the Government, whom I am proud to support, that I want them to get on with Brexit. It will bring opportunities, and we must make the best of them. I want to get on with those free-trade deals across the world. We already know that customers globally have an insatiable appetite for Scottish food and drink, including Scottish salmon, and since Stirling is now the UK’s centre of excellence and innovation in salmon, and finfish aquaculture in general, I declare a vested interest. Those in the House who gleefully seize on every statement by EU negotiators, at the supposed expense of Her Majesty’s Ministers, should consider how their antics appear to the voting public. We must work together across parties to get the best deal for the British people, and I have the utmost faith and confidence in my right hon. Friend the Secretary of State for Exiting the European Union and his ministerial team to do just that. We must be, among ourselves, united.

The Bill represents the best kind of pragmatism, for which this country is rightly renowned around the world. It will efficiently allow us to leave the European Union, it will allow our devolved Administrations to make more decisions about the lives and livelihoods of the people whom they serve, and it will allow us to have a statute book that functions on the day we leave the European Union. I celebrate its British pragmatism.

European Union (Withdrawal) Bill

Stephen Kerr Excerpts

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

[David T. C. Davies]

The hon. Gentleman knows the difference between a local authority area and a parliamentary constituency, so he knows there is absolutely no way of telling what the Monmouth constituency did. He will be aware that it was quite close in the Monmouthshire local authority area. Indeed, there was a very small majority in favour of staying in the European Union. He will also be acutely aware, as I am sure is the hon. Member for Torfaen (Nick Thomas-Symonds), that I represent 10,000 Labour-voting, traditionally working-class voters in Torfaen. I respect those voters, and they voted overwhelmingly to leave the European Union. Some people say I should not listen to such people, but I tell the hon. Member for Cardiff South and Penarth (Stephen Doughty) that those people mean as much to me as anyone living in Monmouth. I will represent their views, and they overwhelmingly voted to leave the European Union.

[Stephen Kerr (Stirling) (Con)]

Is not the key point about the referendum not which regions or nations within the United Kingdom family voted one way or another but that we voted as a United Kingdom on the United Kingdom’s membership of the European Union?

[David T. C. Davies]

Absolutely. My hon. Friend makes an excellent point. Of course, the Government’s whole purpose is to ensure there is a single market within the United Kingdom. We cannot have a situation where different nation states within the United Kingdom go off and do their own thing. If that were to happen, we would have exactly the problem that some Opposition Members complain will occur when we leave the European Union. That is what we are about today.

If one judges the Government by their actions, rather than on the words of Opposition Members, one can see that, actually, this Government and this Conservative party have, over and again, given extra powers to the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly. Sometimes they have been rather more enthusiastic in doing that than I would choose, but we saw it happen in 2011 and we are about to see a huge tranche of extra powers being handed over to the Welsh Assembly on 1 April 2018. The Conservative party has shown it is very willing to give extra powers to the devolved Parliaments and, to some extent, I suppose I agree with that approach. I sometimes think it is happening a bit too quickly, but it will certainly happen again. So I completely support what the Government are doing here today. They are doing what all those on the other side of the House are calling for: bringing about Brexit in a stable and controlled fashion that allows us to move forward with certainty. It is inevitable that this will lead to further powers going to the devolved Parliaments—it may not happen straightaway, but it will happen. Not one single power is coming back to London as a result of these measures; there is not one single thing that can be done by the Scottish Parliament or the Welsh Assembly today that they will not be able to do once this Bill is passed.

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[Ian Blackford (Ross, Skye and Lochaber) (SNP)]

Before I begin, I wish to pay tribute to the former hon. Member for Clydesdale, and for Lanark and Hamilton East, Jimmy Hood, who served this House between 1987 and 2015 and whose sad death we learned of today. I knew Jimmy, having been a constituent of his for a number of years, and I would like to pass on condolences from everyone on our Benches.

I will speak to amendments 72 and 184, which stand in my name and that of my hon. Friend the Member for North East Fife (Stephen Gethins), as well as the remaining amendments standing in the names of Members from these Benches. First, I wish to update the House on the St Andrew’s day meeting in Edinburgh last week, where the Scottish Government and UK Government met to discuss the Bill and its impact on devolution. The talks were constructive and progress was made in some areas, especially on the subject of frameworks, a matter I will come to later in my speech. However, there is a long way to go on this Bill and, as it stands, the Scottish National party cannot and will not support it.

Clause 11 is a bare, naked power grab and it completely undermines the devolution settlements across the United Kingdom. The right hon. Member for Wokingham (John Redwood) often speaks about the UK taking back control from the EU, but this Bill tramples all over the devolved competences of the Parliaments in Edinburgh, Cardiff and Belfast. The Scotland Act 1998, which established the Scottish Parliament, establishes all matters that are reserved. What is happening here is that, without agreement, Westminster is taking back control over matters that are devolved, without having shown due respect and negotiating appropriately with the devolved Administrations.

We are willing to compromise and reach agreement, but we are some distance from that point. The UK Government have failed to see a sense of urgency in concluding an arrangement with the devolved Administrations. Despite our protestations, there was too long a delay in arranging meetings of the JMC, and the Government here in Westminster have to take responsibility for that. Fundamentally, nothing can be agreed until agreement is reached on both frameworks and amendments to the Bill.

The SNP’s amendments seek to remove the power grab and protect Scotland’s devolution settlement. Amendment 72 is a simple and straightforward one.

[Stephen Kerr]

What are the circumstances in which the right hon. Gentleman would vote for, and what are the changes he would have to see in, clause 11?

[Ian Blackford]

If the hon. Gentleman bears with me, I will take him through that in my speech.

The fundamental point is that we must protect the interests of the Scottish Parliament. I say to the hon. Gentleman and his friends: are they willing to join us in the Lobby tonight to make sure that we do not have that naked power grab against the interests of the Scottish Parliament and the Scottish people, or will they simply be the poodles of the Prime Minister? Are they going to stand up for Scotland—Ruth Davidson has talked about that—or are they going to fail tonight to stand up for Scotland, which they said they would do when they got here?

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[Mr Jenkin]

I could not agree more, but I hope that the hon. Gentleman will acknowledge—I am not being accusatory—that this has been a failure of previous Governments as well as this one. When the Select Committee visited the Welsh Assembly and the Welsh Government during the 2010 Parliament, First Minister Carwyn Jones actually complained to us, perhaps with more rhetoric than was justified, that he had been trying to get a meeting with Prime Minister David Cameron for months and months—more than a year—but had not been allowed to have one. We need fewer excuses for people who want to be destructive and more confidence that meetings will take place and that they are valued by all parties.

[Stephen Kerr]

Is it my hon. Friend’s view that the mechanisms that determine such communication should be established by statute?

[Mr Jenkin]

I have an open mind on that, and I have fiddled around with my amendments, which have not appeared on the order paper today, to see whether we can find a way of doing that. I do not know whether this is the right Bill through which to do that—probably not—but such things are statutory in other decentralised systems. There clearly needs to be something much more formal, but we should perhaps experiment without statute first to see whether it is necessary. My Committee took evidence from one civil servant and a former Speaker’s Counsel who said, “It has worked very well for the past 300 years, so why do we need statute?” but that does not recognise that we now have competing political centres with, I repeat, competing narratives about what the constitution actually is. SNP colleagues talk about the natural sovereignty of the Scottish people, but the legal constitutional reality is that the Queen in Parliament in Westminster is still absolutely sovereign. Those things need to aired, discussed and understood.

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[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.

[Stephen Kerr]

I congratulate the hon. Gentleman on making a very positive contribution to this debate compared with the speech we heard earlier from the right hon. Member for Ross, Skye and Lochaber (Ian Blackford). The worthy report that his Committee produced, which is a huge contribution to the establishment of common ground, states:

“We recommend that the UK Government agrees with the devolved administrations what areas should be subject to common frameworks and which ones can be devolved.”

Is that not exactly what is going on? Is that not the common ground that he and we are seeking so that we can get this process to move?

[Pete Wishart]

I am grateful to the hon. Gentleman for that intervention. My Committee looked at these issues and considered them seriously, and we hope our report makes a contribution to addressing some of these issues. The key point that he makes, and the thing we have to start to get to in agreeing issues relating to common frameworks, is that they have to be agreed by the Scottish Government and Scottish Parliament before they can be progressed. This idea that frameworks can be imposed upon devolved Assemblies and Parliaments is unsustainable and cannot be operated. That is—

[Pete Wishart]

I will make some progress; I will deal with our report before letting Members in. The key point is that this needs to be agreed and consented to before progressing. We have to get that in place in order to start moving forward on this sort of thing.

[Stephen Kerr]

rose—

[Pete Wishart]

I have given way to the hon. Gentleman. A lot of people wish to speak and I know he will get a chance, so he will be able to come back to this and we can have a conversation about it.

Clause 11 also changes the fundamental dynamic between the Scottish Parliament and this House. Under the clause, the UK assumes a role as the master and repository of all retained EU legislation in devolved areas. As I said to the hon. Member for Harwich and North Essex, who is deep in conversation with the right hon. Member for West Dorset (Sir Oliver Letwin), the provision creates for the first time a hierarchical model of devolution, as Alan Page said in the work that he did on behalf of the Scottish Government. This House will face absolutely no restriction in how it may want to operate in its areas of devolved competence, but the Scottish Parliament will face restrictions. This represents a sort of “know your place, Scotland”, whereby this House asserts its sovereignty on the Scottish Parliament. That is not good enough. We have a conversation among several Members about sovereignty and our different understanding of and approaches to it culturally. This House obviously takes the view that parliamentary sovereignty is what it is all about, whereas we take the view that it is about the sovereignty of the people and the claim or right of the Scottish people to assert their sovereignty. This idea of a “know your place, Scotland”—

[Stephen Kerr]

rose—

[Pete Wishart]

I have given way to the hon. Gentleman and I want to make some progress. In large swathes of devolved competencies, we will be subject to UK frameworks, determined and controlled by the UK Government. That will never be satisfactory to anybody who works in any of the devolved structures and any devolved parliamentarian.

Let me try to make it simple for the Brexiteers—although when I look around I do not see very many of them. It is strange to look around and see mainly remain types; I do not know who to pick on. I am trying desperately to see a Brexiteer. [Interruption.] The hon. Member for Aberdeen South (Ross Thomson) will do. I will try to make it simple for him so that he can get an understanding of this issue. This situation is like Scotland giving up its place in the European Union as part of the United Kingdom in order to join a UK super-state, but the super-state does not seem to be as benign as the European Parliament. For Scotland, this UK super-state we are expected to be part of would make its jaundiced view of the EU look like a benign, cuddly, receptive institution of enlightenment. I am grateful to my hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) for this analogy. He is not in place, but I hope he will join us later with his words—

[Stephen Kerr]

rose—

[Pete Wishart]

I have given way to the hon. Gentleman already. This UK super-state seeks to control and restrict the operation of Scotland, and it is prepared to strip us of powers faster than any United Kingdom Independence party cartoon version of some evil EU bureaucrat or Commissioner would. I wish to make a comparison with Ireland, because it is instructive. Ireland, as a member of the EU, can almost stop the progress of Brexit—it has the powers to do that, and in the past couple of weeks it has asserted that that might be something it may be obliged to seek. Scotland, as part of the UK super-state, does not even have the power to legislate for the best interests of hill farmers in Perthshire—that is going to be left to this House.

That shows how power grabbing the UK super-state and this place are going to be. This is a real power grab, more menacing than any fantasy dreamt up by our Brexiteer friends in relation to their death star version of Brussels. They are even starting to use the words of the super-state. Our integrated UK joint economy is now to be “the single market”. Any minute now the hon. Member for Harwich and North Essex will be made a UK commissioner and we will start to see “UK-pol” and “UK-atom”. This is the sort of place they are going with this creation of the British super-state. We have to be very careful when we are designing these things. We do not want to swap our useful place in Europe in order to be junior and subservient members of their British super-state.

[Stephen Kerr]

rose—

[Pete Wishart]

I will give way to the hon. Gentleman just to shut him up for a bit.

[Stephen Kerr]

I thank the hon. Gentleman for giving way to shut me up. All the things he has said for the past few minutes, which have detracted from the tone of his speech, are covered in “Common Frameworks: Definition and Principles” published by the Joint Ministerial Committee (EU Negotiations) on 16 October 2017. It describes in detail exactly how we will go about creating the common frameworks. It is the complete opposite of what the hon. Gentleman is saying. He is making it up as he goes along—it is very entertaining, by the way.

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[John Lamont]

These powers are with the European Union just now. We all accept that there will be a need for UK-wide framework agreements, and we need to get the process right. Why rush into devolving everything to the Scottish Parliament when the framework agreements might require powers to be retained at a UK level to protect the UK internal market, and to allow us to enter into trade agreements with other countries around the world? It is critical that we get things done in a logical and thoughtful way, rather than rushing into a situation that we might be unable to unpick further down the line.

[Stephen Kerr]

Does my hon. Friend agree that there are many moving parts in the current process? Our debate is taking place at a time when many things are on the move. For example, there was a very positive meeting last week between representatives of Scotland’s two Governments. Does my hon. Friend welcome that, and does he believe, as I do, that we should be optimistic that we can come up with an agreement based on some of the things that the Scottish Affairs Committee mentioned in its report?

[John Lamont]

My hon. Friend makes an excellent point. Significant progress is being made between the two Governments, which was why I was so disappointed with the opening remarks of the right hon. Member for Ross, Skye and Lochaber. There is not a million miles between the two Governments.

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[Anna McMorrin]

I thank my hon. Friend, and I completely agree.

Wales voted for a devolved Government 20 years ago. I was part of that campaign, and I was proud to see the then UK Labour Government bring that about. We now see a more successful and confident Wales than we did two decades ago, but I fear that we are about to go backwards. The Tories have made it clear that, when it comes to devolution, they just do not get it. Anyone who understands the basics of devolution can tell you that this Bill is taking us backwards. The powers devolved to Wales must stay in Wales.

Clearly, the issue is one of trust—trust to exercise devolved powers responsibly, trust to carry out measures that represent the people of Wales and trust to provide meaningful scrutiny of legislation. However, why should we in Wales trust a UK Government that are leading us to such a shambolic Brexit? As it stands, after Brexit, the devolved Governments will be at the mercy of Whitehall.

[Stephen Kerr]

The hon. Lady’s remarks lead me to conclude that there seems to be no basis, in her mind, on which Wales’s two Governments can get together and make agreements, but there has to be trust. We have to have some basic trust between our levels of Government —otherwise, we will not be able to progress. Surely she is not advocating constitutional confrontation rather than consensus.

[Anna McMorrin]

I think we are seeing the beginnings of a constitutional crisis right now actually. [Interruption.] I will go on to explain if the hon. Member for Stirling (Stephen Kerr) will let me.

After Brexit, devolved Governments will be at the mercy of Whitehall mandarins with complete control over the time, place, method and future of the repatriation of powers from Brussels. We need only an elementary understanding of how institutions and Governments work to understand that this is leading us to a constitutional crisis.

Devolution is one of our country’s great strengths. The last 20 years have shown devolution to be a success, with our Governments in Wales and Scotland able to forge their own distinctive paths with confidence. Decisions about Wales are best made in Wales by the people of Wales. This is not an argument for nationalism, but one for democracy. Governments formed here in Westminster are not best placed to dictate what happens in Wales.

This Bill lets down the constitutional settlement and the people of Wales, Scotland and Northern Ireland. First, as drafted, clause 11 places a new and significant constraint on the devolution settlement and shifts the power dynamic around setting common UK frameworks firmly in the direction of the UK Government. As yet, the UK Government have provided no information on how these common frameworks will be agreed, the timetable for agreeing them or how Parliament and the devolved legislatures will be involved in the process.

[Stephen Kerr]

I am afraid that what the hon. Lady is saying is just not true. The excellent report produced by the Public Administration and Constitutional Affairs Committee reproduces in full the agreement from October —just a couple of months ago—which spells out exactly how these common frameworks will be put together between the Governments. [Interruption.] No, that is what it says in this report.

[Anna McMorrin]

I am afraid the Chair disagreed with the hon. Gentleman. [Interruption.] Well, the hon. Gentleman should speak to the Chair and to other Conservative Members about that.

The situation is further complicated by the fact that, in a number of EU policy areas, the UK Government are in fact acting as the Government of England.

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[Stephen Kerr]

The hon. Lady is a member of the Scottish Affairs Committee, which took evidence from the Secretary of State for Scotland, who was adamant about the fact that there would be additional powers to the Scottish Parliament and about the fact that the existing powers would remain. In fact, this Bill cements those powers to the Scottish Parliament. What has she heard that makes her think anything to the contrary?

[Christine Jardine]

I will come on to that. As the hon. Gentleman himself has said, it is currently being negotiated between Scotland’s two Governments exactly what the framework and the powers would be, and until we have that assurance we cannot be absolutely sure.

Today I find myself in the strange position where I feel as though I have been transported back 25 or 30 years, to a time when the Opposition parties are all in favour of devolution and campaigning for devolution, and the Conservatives are needing to be persuaded.

[Stephen Kerr]

No!

[Christine Jardine]

No, that is how it is. The Conservatives are needing to be persuaded, even though they themselves admit that they are unhappy with aspects of clause 11. They are looking to their own Whips rather than to what might be best for the devolution settlement in Scotland, Wales and Northern Ireland.

We should not forget that the leave campaign argued that Brexit would lift restrictions and lead to Scotland gaining major powers, yet today we find ourselves considering a Bill that aims to modify and place restrictions on both the Scottish Parliament and the Welsh Assembly in relation to EU law. Surely we cannot allow this erosion of our democratic processes. I appeal to Conservative Members, particularly those who have served at Holyrood, to support us in this. Their party may not have originally supported devolution, but they, of all people, must recognise its significance today.

As part of the EU withdrawal process, Scotland’s two Governments are currently discussing where the powers returned from the EU should be vested and how the new frameworks should operate. Just as the 111 powers relating to Scotland are being discussed, the Welsh Government have a list of 64 powers that they feel could be vulnerable under this agreement. Both Administrations are looking to this place for amendments to the Bill that will ensure that they continue to have approval over the aspects that affect them. Indeed, only last month, Scotland’s First Minister stated that the Bill as it stands is not one that her Government would recommend for approval.

This is the specific point where I would take issue with the Conservative allegation that it is Opposition Members who are undermining the Union. If we do not put forward a Bill that can get a legislative consent motion in the Scottish Parliament, we threaten the very fabric of the agreement and throw ourselves into a constitutional crisis. I do not want to be responsible for that. It will undermine the Union in the same way that the Conservative Government’s actions in taking us out of the European Union with a hard Brexit will cost Scotland perhaps £30 billion and put 80,000 jobs at risk. Those are the threats to the United Kingdom, not the debate we are having here today.

--- Later in debate ---

[Ross Thomson]

I would like to make some more progress before I take an intervention.

SNP Members have manufactured the power grab argument in grievance, yet we have heard time and again from the First Minister, all the way along, that the position of the SNP is for full membership of the European Union. [Interruption.] There we go; we have had it confirmed again. The SNP’s position is to support full membership of the European Union for an independent Scotland. The argument that SNP Members are making today is clearly fake news, because they do not want a single one of the new powers that will come to Scotland. They want the EU to retain and maintain those powers.

[Stephen Kerr]

My hon. Friend is making a powerful speech, as is characteristic of him. Does he agree that SNP Members here are not representative of the SNP Government in Scotland? The SNP Government are quite attracted to the idea of these additional powers and would quite like to have them, but SNP Members here are indulging in rhetoric.

[Ross Thomson]

My hon. Friend is right that the rhetoric of the SNP group in Westminster is very different from that of the SNP group in Holyrood.

--- Later in debate ---

[Ross Thomson]

I am so grateful to the hon. Gentleman for bringing that up. By leaving the European Union, we can take back powers over fishing, and we will come out of the common fisheries policy. As we heard earlier in this debate, the SNP wants to take us straight back into the EU and therefore drag every fisherman in Scotland straight back into that very policy, selling Scotland’s fishermen out. That has been confirmed today, but the Scottish Conservatives, such as my hon. Friend the Member for Banff and Buchan (David Duguid), will stand up for Scottish fishermen and deliver a Brexit that works for them. I thank the hon. Gentleman for giving me the opportunity to say so.

[Stephen Kerr]

I am grateful to my hon. Friend for saying that the people of Scotland like it when Scotland’s two Governments work together. We have heard several times from SNP Members—not the hon. Member for Perth and North Perthshire (Pete Wishart), whose speech was, I thought, rather positive—that that negotiation and co-operation has not started. But the Select Committee’s report states:

“We recommend that the UK and Scottish governments continue their efforts to secure agreement”.

“Continue” suggests that something has started, does it not?

[Ross Thomson]

I agree with everything that my hon. Friend has said. It is clear from this debate that I want these powers to come to the Scottish Parliament, but SNP Members want them to stay with the EU. I find it fascinating that I have a higher opinion of the ability of Nicola Sturgeon and her Cabinet to make decisions on such matters in Scotland than her own party in Westminster does. That really tells us something.

To continue with what I was saying, we will need UK-wide frameworks in areas such as food labelling.

--- Later in debate ---

[Joanna Cherry]

I will continue my point.

We are told that it is imperative for everything to be imposed on Scotland, Wales and indeed Northern Ireland from the top down, because we have a UK single market.

[Stephen Kerr]

Will the hon. and learned Lady give way?

[Joanna Cherry]

No, we have heard a lot from the hon. Gentleman. I only have a little time left, and I want to develop my point about the single market, because it is very important. I am indebted to the Scottish blogger and writer Paul Kavanagh—better known on these Benches as the Wee Ginger Dug—for my thoughts on this matter. He has pointed out that there is no such thing as a UK single market. At the moment, the United Kingdom is a unitary state, and what exists in the UK is the internal market of a unitary state. A single market refers to the situation where there are several distinct and discrete national entities coming together from the bottom up in a mutually agreed and negotiated regulatory framework. That is what the EU is at present. It is not what we have in the United Kingdom at present. Indeed, after Brexit, if this Bill goes through unamended, the unitary state of the United Kingdom will be even more centralised than it is at present.

At the moment, the EU states decide collectively what regulations they want to govern the EU single market. On the basis of the Bill as currently drafted, what will happen is that Ministers of the Crown—by the way, that does not include Scottish Ministers; the definition just talks about Cabinet Ministers—will decide on these frameworks, and they will be imposed on us.

I am conscious of what you said, Sir David, so I will bring my remarks to a close, but I will give way to the hon. Gentleman.

[Joanna Cherry]

The distinction I am drawing is between a single market and a unitary market. I am saying that the European Union is a single market because it is a collection of sovereign states that come together and participate in making common regulations. The United Kingdom, as framed by this withdrawal Bill, will not be such a single market. It will be a unitary market where the regulations and the frameworks are imposed from the top down. That is the distinction that I seek to make.

[Stephen Kerr]

Will the hon. and learned Lady give way?

[Joanna Cherry]

As I said, I am drawing my comments to a close.

I want to address one of the many points we have heard from the Government Benches. I think it was the hon. Member for Aberdeen South (Ross Thomson) who said that he is upset and disappointed that the issue of independence is still on the table. Well, I will tell him why it is still on the table; today gives us a good example. The majority of people at the last Scottish election voted for Members of the Scottish Parliament who want another independence referendum—it is called democracy —and the Scottish Parliament itself has voted that there should be another independence referendum if it is necessary because of the Brexit process. But the reason why so many of us in Scotland are interested in the notion of independence really arises from the current crisis in which the United Kingdom finds itself. I will finish by quoting the First Minister of Scotland, who today said:

“Right now, Ireland is powerfully demonstrating the importance of being independent when it comes to defending your vital national interests.”

--- Later in debate ---

[Neil Gray]

I am grateful for the opportunity to speak in one of the most important constitutional debates impacting on Scotland since the re-establishment of the Scottish Parliament. The whole basis and foundation of how Scotland is governed is being discussed today. We should not underestimate how important that is; we cannot allow today to be politicked away or the issues to be kicked down the road. We must consider what is before us carefully and in a non-partisan way. Cross-party working has already started in the tabling of amendments, which have been drafted jointly by the Labour Welsh Government and the Scottish National party Government.

Anyone who understands politics in Scotland will appreciate that Labour and the SNP do not often agree on constitutional issues; that is not a flippant point, but a serious one, on which Ministers might reflect. I fully support amendments 72, 164, 165 and 183 to 188, in the names of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), my hon. Friend the Member for North East Fife (Stephen Gethins) and the hon. Members for Edinburgh South (Ian Murray) and for Cardiff South and Penarth (Stephen Doughty). They all aim to protect the devolved settlements of both Wales and Scotland. Indeed, just about every speaker this evening has expressed great concern about clause 11 as it stands, perhaps with the honourable exception of the hon. Member for Aberdeen South (Ross Thomson) —even the right hon. Member for Clwyd West (Mr Jones) highlighted that clause 11 impinges on the devolved settlements. That is where my concern lies with the so-called UK frameworks.

I understand that it would be sensible in some areas for there to be agreed principles across these isles—I think that of a future independent Scotland’s relationship with the rest of the UK, so why would I not think it now?—but for intra-national frameworks to be strong, effective and deliverable, they need to be agreed on the basis of mutual partnership, without a dominant and dictatorial director.

[Stephen Kerr]

Will the hon. Gentleman give way?

[Neil Gray]

To be fair, the hon. Gentleman has had a good say this evening.

I am not the only one concerned about the direction of travel that the UK Government appear to think we are taking. NFU Scotland has, as I am sure Ministers will be aware, a series of red lines regarding Brexit, many of which are pertinent to today’s debate. I will pick a few out: it wants a replacement for the common agricultural policy that will support the industry in the medium to long term; agriculture must continue to receive the same level and proportion of funding as it does now in the post-2022 landscape; and crucially for tonight, although the Treasury should finance the new policy on a UK-wide funding basis, NFU Scotland says that

“Any approach that adopts a ‘Defra-centric’, one-size-fits-all policy on to the devolved nations would not be acceptable.”

That is why it is crucial that powers in devolved areas are returned to the devolved nations, not held centrally. To do anything other than devolve and then seek to agree a framework agreement in devolved areas would undermine devolution. It would set a dangerous precedent if the UK Government set the terms of devolved policy and then left it to the devolved nations to fill in at the margins. That point was reiterated by Professor Michael Keating when he said the Tory plan would create a “hierarchical model of devolution” where

“the broad principles are set in London and the details filled in across the nations.”

That is not devolution, but executive management. It is anti-devolution, and would rip up the terms and principles of the Scotland Act 1998.

Brexit already poses potentially huge challenges for Scotland economically and constitutionally. Keeping the Bill as it stands in this area would not just be a hard Brexit—it would be a constitutionally regressive Brexit. At this stage, it is worth returning to NFU Scotland’s Brexit priorities: that Scottish and UK agricultural and food products must have frictionless access to existing and new export markets, and that the domestic market must not be exposed to cheaper imports that lack Scotland’s exemplary animal welfare and environmental standards. Continued access to a skilled and competent workforce, within both the farming and food processing sectors, must be secured as a priority. Continued, targeted farm support will be vital, not least through an unknown transition period. This support must be refocused on action-based measures to bring about improved productivity across sectors while delivering environmental benefits and safeguarding and enhancing product standards—the bedrock of a thriving farming, food and drink sector for the post-Brexit era.

I am not closed to the idea that there may be opportunities from Brexit should the UK Government listen and act in a way that is inclusive and bipartisan, but that has not happened to date, no matter what Ministers try to say. The Scottish Government’s compromise proposals have been dismissed and ignored, and that is why we are at today’s crucial juncture. [Interruption.] Conservative Members, some of whom represent farming constituencies, ought to listen to this. NFU Scotland shares the Scottish Government’s desire for continued membership of both the single market and the customs union. Perhaps now the UK Government will realise that they need to allow for tailored arrangements to allow varying national priorities across these isles to be reflected.

How topical it is that we should be discussing aspects of devolution relating to Brexit as we learn, this very day, of what the UK Government appear to be willing to concede in their negotiations with the EU regarding Northern Ireland. In essence, they are conceding that the compromise plan that was presented by the Scottish Government last year for a bespoke deal for Scotland in retaining single market and customs union membership—a plan dismissed as impossible—was on the table earlier for Northern Ireland and has now been discussed. There will be no hard border on the island of Ireland, in summation. It appears that the DUP has put the brakes on that—the irony is there for all to see. What a precedent that sets.

It is time that the UK Government acknowledged that Scotland, as well as Northern Ireland, has the right to expect a bespoke Brexit deal, and that there is nothing precluding a deal that protects Scotland’s interests, as we have been arguing all along. Clearly, for Scotland, that means the ability, for example, to have a different immigration system, and continued membership of the single market and the customs union. Sadly, though, that does not appear to be the path the UK Government are willing to follow, regardless of the consequences either for Scotland or for the future of the United Kingdom. Why not? I fully understand why Northern Ireland needs a bespoke deal. I have no issues with the UK Government pursuing that—in fact, I congratulate them on it—but why do Scotland’s needs matter less? To deny Scotland the same opportunity as Northern Ireland is being afforded would be ridiculous and indefensible. To take back powers from the EU that are clearly devolved competencies and have them sitting here at Westminster for some future divvying-up shows a lack of political or critical thinking, shows a lack of trust or respect towards the devolved nations, and is—quite frankly—lazy. To refuse to look at fresh areas of devolution like employment law to help Scotland deal with Brexit in the most flexible way is equally untrusting, disrespectful, and lazy.

The UK Government must understand the concerns that are being raised. They must not want to rip apart and fundamentally undermine the devolved settlement. Surely they must be willing to engage and accept amendments so as to make Brexit, if not politically palatable, at least reasonable for the devolved nations. I hope that all Members representing Scottish constituencies will support the amendments to be voted on later tonight.

[Stephen Kerr]

I will—[Interruption.] Yes, I am going to speak. I know that SNP Members will be very pleased about that. I will keep my remarks short because a number of people want to speak, but I want to respond to the idea that has been traded pretty commonly in the past couple of speeches about the imposition of a devolution settlement vis-à-vis the frameworks. The Scottish Affairs Committee report quotes the Secretary of State for Scotland, who said:

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

I believe that that is a definitive expression of the Government’s policy in relation to the nature of frameworks and how they will be achieved.

Every time we have a debate in this House in which devolved powers and Brexit are mentioned, the Scottish nationalists go crazy—[Interruption.] Yes, berserk; that is a good word. A number of contributors, including the hon. Member for Airdrie and Shotts (Neil Gray), have spoken positively about how we can work together to create common ground and lift the issue from the trenches of political warfare in which, too often, the SNP wish to put it.

--- Later in debate ---

[Stephen Kerr]

I will come on to that point, if the hon. Gentleman will let me make some progress through my speech.

I remind the Committee that despite what we heard to the contrary, the Conservative Government delivered additional powers to the Scottish Parliament in 2015 and 2016 in fulfilment of their vow, making it the most powerful devolved Parliament in the world. That was a Conservative promise made and kept. The SNP wants to create a crisis, and I hope that we in the Conservatives will continue to be reasonable in our approach to the issue.

[Andrew Bowie]

Does my hon. Friend agree that SNP Members have absolutely no interest in our making a success of Brexit, because their only aim is to break up our United Kingdom?

[Stephen Kerr]

I thank my hon. Friend for his intervention. I was about to say that the SNP is like a collection of 35 carbon copies of the famous Rikki Fulton creation, the Rev. I. M. Jolly. SNP Members sit there on the Benches, depressing the nation and bringing their grim worldview to the people of Scotland. Being so cheerful keeps them going. They talk themselves and Scotland down, and they imply that our Scottish entrepreneurs, our businesses and our communities will be unable to cope with any change and unable to take advantage of the opportunities that the hon. Member for Airdrie and Shotts mentioned and that will undoubtedly arise as we leave the European Union.

[Chris Law]

The Fraser of Allander Institute predicts that not 80,000, but 139,000 jobs are at stake. Does the hon. Gentleman agree that that is not talking Scotland down; those are the facts of the matter when it comes to Brexit? We are just about at a cliff edge now.

[Stephen Kerr]

I thank the hon. Gentleman for bringing the Fraser of Allander Institute to the attention of the Committee, because the institute also points out that the perpetual threat of a second independence referendum is having a dragging effect on the Scottish economy.

[Mr Sweeney]

The hon. Gentleman referred earlier to the Scottish Parliament being the most powerful Parliament in the world, and I am aware that he opposed its initial creation but now recognises its benefits. The creation of the Scottish Parliament has resulted in regulatory divergence between parts of the United Kingdom. Does that fact not undermine the whole logical position of the Tories’ argument against our amendments? Surely, it has already been established that divergence exists but there is still a viable single market in the UK.

[Stephen Kerr]

In my opinion, divergence brought about by devolution enriches the fabric of the Union, but the divergence we are talking about could, in a very real sense, undermine the integrity of the United Kingdom’s common market.

I have had emails from constituents that regularly begin with the words: “I believe that Brexit should strengthen devolution for Scotland, not weaken it.” Many other Members will have had similar emails. I want my constituents to know that that is exactly my position. I want a Brexit that strengthens the democracy of our country and strengthens the devolution settlement for Scotland. I ask Ministers, in the summing up at some point tonight, to make it clear again that the Bill guarantees the existing devolution settlement and the existing powers of the Scottish Parliament and promises that there will be more powers to come.

In regard to the tone and manner in which this issue is discussed and debated, I wish to pay tribute—SNP Members will not be surprised to hear me say this—to Ruth Davidson, Professor Adam Tomkins and others, who have worked as honest brokers in this process, by working with the Scottish and UK Governments to bring them together to build consensus. I believe consensus is vital for the new constitutional settlement we need to reach.

I welcome the recent change of tone from the Scottish Government, especially from the First Minister. When she came out of Downing Street on her last visit to London, I thought she had some very positive things to say. As a Scot, I welcome that: I welcome the fact that the First Minister of my country is willing to be a positive contributor, rather than a simply a detractor.

I want take this opportunity to express my full confidence in the approach and style of the First Secretary of State and the Secretary of State for Scotland, who are leading the UK Government in the very important talks with the Scottish Government. I have great confidence that there will come out of the discussions an agreement that will be sustainable because it will be built on consensus. Consensus is not gained by shouting matches or feigned indignation—we see quite a lot of feigned indignation in this place—and all I would say is thank goodness the SNP leadership in Edinburgh has more maturity than some of the MPs it sends to London. I remain hopeful, and I am optimistic.

[Ian Murray]

Will the hon. Gentleman give way?

[Stephen Kerr]

I was just about to deal with the hon. Gentleman’s previous intervention, but I will sit down.

[Ian Murray]

I was about to ask the hon. Gentleman when he was going to talk about the deficiencies in clause 11 and what he would do to sort them out.

[Stephen Kerr]

I will say this much: it is not that I do not understand people’s concerns about clause 11, because I share some of those concerns. As the intergovernmental discussions progress and the Bill returns to this House, as it will, before it goes to the other place, it is very much my hope that there will be some greater detail in clause 11 to help all hon. Members to have a degree of confidence in its intent.

We are talking about trust, or the lack of trust, and that issue is keeping us from working out a satisfactory agreement. Steps must be taken to underpin the trust that needs to exist on both sides—the UK Government and the devolved Administrations. The UK Government will have to demonstrate trustworthiness in the way that the Bill is amended, as it must be, and the Scottish Government will have to show trustworthiness by committing themselves to the outcome of these talks to the extent that they will publicly state their support for the passage of a legislative consent motion in the Scottish Parliament. To me, that is what trust looks like.

[Deidre Brock]

If the UK Government genuinely wish to show willing towards the Scottish Government and their concerns about the Bill and clause 11 specifically, does the hon. Gentleman not think that powers should be devolved directly to the devolved Administrations first and then that frameworks should be agreed? One wonders what the UK Government are actually afraid of. The hon. Member for East Renfrewshire (Paul Masterton) spoke about powers being devolved when the UK Government think it is safe to do so. Why is there such concern about not sending those powers to the Scottish Government?

[Stephen Kerr]

There are, as we have discussed, either 109 or 111 powers. The Public Administration and Constitutional Affairs Committee report lists 111. There is an issue of trust that we need to address to underpin any eventual agreement. The point is that the Bill will need to be amended. Those amendments will need to reflect where the powers will eventually rest, and whether they will go straight to the devolved Administrations on the day we leave the European Union, or if some will be subject to mutual agreements—memorandums of understanding—that will create the frameworks to support the functioning of the UK’s internal market. I hope very much that the Government will bring forward some detail to add light with regard to those issues.

[Ian Murray]

Like many of his colleagues, the hon. Gentleman is therefore admitting that clause 11 is deficient. He is almost but not quite telling us how he might fix it, but even so he is going to vote in favour of it this evening.

[Stephen Kerr]

Yes, and that is no surprise, because I sit on the Conservative side—the Government side—of the House of Commons. I believe and trust in the Government. I believe that Ministers will deliver on a settlement. I do not know why that is such a surprise to Opposition Members.

[Jenny Chapman]

The hon. Gentleman has told his Front-Bench colleagues that he will vote with the Government this evening but, should the Bill return unamended in this House, what would be his inclination on Third Reading?

[Stephen Kerr]

In common with other colleagues who have spoken today, I expect there to be amendments, and when those amendments come to the House in due course, it will be because everyone involved in this process, including the UK Government and the devolved Administrations—the Scottish Government are my immediate interest—will have put on an adult head because there is so much at stake for our country. I happen to think that one of the most positive contributing factors to the change of climate has been the Scottish Affairs Committee’s excellent report, which is a step in the right direction.

[Ian Murray]

On a point of order, Sir David. I am slightly confused about the process in this Chamber. The hon. Gentleman is making a fine speech, but he keeps talking about amendments that will result in him supporting the Bill. Have you been notified of the Government tabling any amendments to clause 11?

--- Later in debate ---

[Stephen Kerr]

Let me press on, because I did say that I would be brief, and I am in danger of not keeping that promise.

I insist on the Government doing what has to be done to ensure that there is no disruption to the UK home market. I want to be clear that when I say the UK, I mean Scotland, England, Wales and Northern Ireland. I do not want a Brexit that weakens the United Kingdom politically or economically. I am a Unionist. I do not want to see the creation of needless barriers that hinder the frictionless function of Scotland’s most important marketplace, namely the rest of the United Kingdom. The process should avoid any unwarranted points of difference that make it more difficult to trade throughout the UK, because that would inevitably affect business, which would inevitably affect jobs.

Common standards will be needed for the common market within the UK, and those standards will need to be set democratically and transparently. Businesses are looking for leadership on these matters as much as they are looking for harmony throughout the UK single market. It is time to step up to the plate in that respect. Frameworks for the operation of the UK single market must be set at a UK level on the basis of agreement across the United Kingdom, including with the devolved Administrations, and it is up to us as politicians to rise to that challenge.

I am not calling for a whole raft of complex arrangements, because I do not think that would help anything, but we do need some jointly agreed common frameworks. I acknowledge and welcome the Scottish Government’s positive approach towards that end. I believe that the two Select Committee reports that were published in the last couple of weeks have been hugely helpful to the aim of bringing about the co-operation and partnering needed between Scotland’s two Governments.

European Union (Withdrawal) Bill

Stephen Kerr Excerpts

Committee: 5th sitting: House of Commons
Wednesday 6th December 2017 Commons Chamber

[Douglas Ross]

I am not saying anything against that, but what I am trying to put across is that it is quite clear that there is support for the Belfast agreement without the need for new clause 70.

[Stephen Kerr (Stirling) (Con)]

I accept everything that my hon. Friend is saying, and join him in paying tribute to the hon. Member for North Down (Lady Hermon), but does he not agree that perhaps this is a time where some form of underpinning of the Good Friday agreement, by one means or another, might be helpful in building trust?

[Douglas Ross]

My hon. Friend makes a valid point. We are doing some of that by debating this very issue today. By proposing new clause 70, the hon. Member for North Down has allowed us the opportunity to discuss that in this place today.

--- Later in debate ---

[Douglas Ross]

The hon. Gentleman is shaking his head, but the Law Society was absolutely against the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 and continues to be. The Scottish Government and the SNP Members north of the border are happy to ignore the views of the Law Society of Scotland when they do not suit their argument. Now SNP Members in this Chamber tell us that we have to agree with absolutely everything that the Law Society says.

[Stephen Kerr]

On that point, did the Scottish Parliament not vote that that 2012 Act should be repealed?

[Douglas Ross]

I believe that we may be straying slightly from the point. I may now have to declare an interest as a football referee in Scotland. Yes, my hon. Friend is correct that the Scottish Parliament has voted for that Act to be repealed, and the SNP has still done nothing about it.

Much of what we are discussing today should not be controversial. Quite simply, it is what is needed to keep this country operating after exit day with as little disruption as possible. There should, therefore, be consensus behind the broad principles of clause 10 and schedule 2 of this Bill. Where there is not, I suspect that it is because of a burn-it-down mentality that is less concerned with the real world and more intent on achieving some other ideological goal. However, no amount of ideology will keep our industries properly regulated on 30 March 2019. Brexit is happening; it is happening to the entire United Kingdom, and it is our duty now to ensure that it goes as smoothly as possible.

There appear to be two broad themes in the proposed amendments to schedule 2. Some amendments restrict the powers given to the devolved Administrations, while others expand them. Some of my Scottish Conservative colleagues have spoken about the need for a middle ground on clause 11. Well, with respect to clause 10 and schedule 2, it occurs to me that we have already got the middle ground. Amendments 209 and 307 take issue with the provision that a devolved authority may use its delegated powers as it “considers appropriate”. The SNP, it seems, would prefer to replace that with as it “considers necessary”, while Welsh Labour would prefer that a devolved authority make such provision as “is essential”. I welcome the SNP’s new-found restraint when it comes to the powers of the Scottish Government, who have spent the last decade centralising as much power as possible in their own hands. We are seeing it with the NHS in Scotland—centralisation from the SNP. We have already seen it with the police and fire services—centralisation from the SNP.

--- Later in debate ---

[Jenny Chapman]

As earlier contributors have made clear, this issue is the one that finds out the fantasists from the realists. If the Government have the ambition of avoiding a hard border in Northern Ireland, they need to explain exactly how they intend to achieve that.

[Stephen Kerr]

Is not the hon. Lady putting the cart before the horse? The next phase of the negotiations will determine the future relationship between the EU and the UK. Is not she presuming an outcome that very few people would actually be in favour of?

[Jenny Chapman]

I am just making it very clear to the Government and all other observers that this matter is not something on which the Labour party is prepared to compromise. That point may need to be made again as we proceed, but it absolutely ought to be made now too.

--- Later in debate ---

[Tom Brake]

I agree. I am sure that the hon. Gentleman will regret, as many Opposition Members and I do, that very early on, the Government shut down some of the options available to us regarding the single market and the customs union. There was no attempt by the Government to negotiate with the European Union on whether there was scope for the EU to give ground, including on freedom of movement. I know from contacts that I have had that there would have been some appetite among some EU countries to give ground on freedom of movement, but that is not something that the Government sought.

[Stephen Kerr]

We have had a huge election within the past six months. The Conservative party went into that election with a manifesto commitment to honouring the outcome of the June 2016 referendum. I am not sure that I quite understand what the right hon. Gentleman does not understand about what the result of that election meant for the representation of the parties in this House. The majority of Members in this House are elected on a platform of leaving the European Union.

[Tom Brake]

The clearest outcome of the general election was that the hon. Gentleman’s party lost its majority and is now in an unwieldy and dangerous relationship with the Democratic Unionist party. The route that the Government are going down—a particularly hard Brexit—was not endorsed in the general election.

European Union (Withdrawal) Bill

Stephen Kerr Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Anna McMorrin]

That is absolutely the case. It is the case in Scotland and is now the case in Wales. The Welsh and Scottish Governments are clearly arguing this case, and we are now on the brink of a constitutional crisis. This is an issue of trust—trust to exercise devolved powers responsibly, trust to carry out measures that represent the people of Wales and trust to provide meaningful scrutiny of legislation. Why should we in Wales trust a UK Government who are leading us, at any cost, towards such a shambolic, hard Brexit? As it stands, after Brexit, the devolved Governments will be at the mercy of Whitehall, which will have complete control over the time, place, method and future of the powers being repatriated from Brussels. Whitehall may even decide that passing them on is too much trouble, and since the devolved Administrations are given no bargaining powers under the Bill, there will be no opportunities for either Wales or Scotland to demand their return. This is called rolling back the powers of devolution, and we in Wales will not stand for it.

[Stephen Kerr (Stirling) (Con)]

Is the hon. Lady not aware that there are ongoing discussions between the UK Government and the devolved Administrations about this very subject, that there are positive signs that an agreement will be reached—if it has not already been reached—and that therefore she is scaremongering in respect of these powers?

[Anna McMorrin]

I am aware that discussions are taking place, but I am also aware that the UK Government promised to bring forward an amendment at this stage but have not done so. So where is that trust?

--- Later in debate ---

[Stephen Doughty]

Amendment 3 is sensible, well meant and well thought through, and it enjoys substantial support. If the Government just accepted the amendment and moved forward, it would show good faith and we could try to resolve these issues.

As my hon. Friend the Member for Cardiff North said, this Bill will not proceed with the consent of the Scottish Government, the Scottish Parliament, the Welsh Government or the Welsh Assembly without substantial and urgent changes over the next few weeks, or indeed today before the Bill reaches the other place. That is well understood by people across the EU who are watching this process—indeed, I raised it on the visit to Brussels yesterday.

[Stephen Kerr]

The hon. Gentleman is making a good point about the legislative consent motion and the requirements that need to be in place for it to happen. The Labour amendment would not bring that about. There needs to be an agreement between the UK Government and the devolved Administrations. Without that agreement, it is impossible to replace clause 11 satisfactorily to secure that LCM.

[Stephen Doughty]

The bottom line is that these concerns have been raised for months. They were raised by the Welsh and Scottish Governments right at the start, when the Bill was published. The UK Government have had plenty of time to resolve things, which is why there is such deep distrust and suspicion about their intent. Until they come up with something that actually addresses the concerns, we will continue to raise the issue.

--- Later in debate ---

[Stephen Doughty]

The series of issues we have raised concerns about for months has been clearly set out. These issues have been raised since the Bill was drafted. We are in the absurd situation where the Secretary of State for Scotland admits there are deficiencies in the Bill and many Conservative Members agree with that. I have no doubt that the Minister for the Cabinet Office agrees with it, although I doubt he will say so today. We all recognise there are deficiencies with it, so the question is: why have they not been resolved before we reached this stage? We were hearing a lot from the Scottish Conservative Members, whose position seemed to be somewhat different from that of their counterparts in the Scottish Parliament. The Welsh Conservatives claimed today that they are disappointed; the whole of Wales will be disappointed by their failure to stand up for Wales and their own legislature, in which they sit.

As I said, I do not want to go back into all the technical detail, so I finally wish to come to the nub of this issue: why does all this matter? Why do these issues matter? Why do these technical debates about the constitutional settlement matter? They matter because they have consequences for our Union, for the devolution settlement and for the economic operation of the markets within this United Kingdom. We are already going to be struggling to deal with the serious consequences we will face if we carry on along the Government’s hard Brexit path of, for example, leaving the customs union and the single market, with which I do not agree. Do we really want to add to that a series of complexities, challenges and problems within our own internal markets, logistics and functioning?

There are serious consequences for relationships that we know are already under strain and the subject of lively political debate in the UK. There are also economic consequences of Brexit as a whole for the devolved nations. Just this week, University of Birmingham research showed that the nations and regions of the UK are very exposed economically, with 11.7% of Welsh GDP being exposed. As I said, there are serious consequences to leaving the single market and customs union. We heard yesterday from one of Wales’s largest employers, Airbus—I draw attention to my declaration of interests—which employs a number of people in the defence and space industry next door to my constituency and many people across Wales. Its chief executive, Tom Enders, said that the “wreckage” of Trump will be easier to repair than that of Brexit, given the increased costs and the challenges for competitiveness.

The Welsh people, the Welsh Government and the Welsh Assembly need to have a proper say in where we go on this process, given the implications. As the consequences become clearer, the Welsh people, and indeed the British people, have the right to change their minds on this entire process.

[Stephen Kerr]

Thank you for allowing me to say a few words in this setting, Mr Speaker. I wish to make it clear that, despite whatever else I may say in this speech, I support this Bill wholeheartedly and I wish it to be a success. Uppermost in my mind when considering the Bill are the ramifications of there not being a Bill. I think about the choice the British people made to leave the EU and I respect it. We made a commitment to act on that instruction and act on it we shall—we will honour that vote. Those who choose to disregard the vote of the British people must answer to the British people. My constituency voted to remain in the EU, but I know that my constituents are democrats who expect me, as their elected Member of Parliament, to ensure that their best interests are served in the light of the outcome and that the result is upheld. Many businesses and individuals in my Stirling constituency are ready to make the best of Brexit.

[Ian Murray]

The hon. Gentleman is running through the start of the speech he made in Committee, during which I asked him four times to outline how he feels clause 11 is deficient and how he would like that sorted out. Would he like to take this opportunity to tell us?

[Stephen Kerr]

I thank the hon. Gentleman for remembering my speeches, which makes him very favourable in my sight. I shall come to clause 11, but first I wish to make it clear that the people and businesses of Stirling—the individuals who live in my constituency—want us to make the best of Brexit. All we hear from other parties, as we heard from the First Minister of Scotland yesterday, is an unmitigated diet of doom and gloom. The fact is that, as was disclosed in an esteemed social attitudes survey that was released last week, there are really no differences between the electorates in Scotland and England when it comes to what they want the Government to get on with doing. They want the best possible Brexit, and a smooth Brexit that will work for all the people of this country.

The Bill is a necessary enabling measure. No one in this House wants to put our country and British businesses through a cliff-edge Brexit. The idea that there are Members who do is often repeated, but it is just not true. We want a smooth Brexit and a working statute book at the end of it. I repeat that, and I do not apologise for repeating it.

[Martin Whitfield]

Does the hon. Gentleman agree that the electorate do not want a deficient Bill to lead them into Brexit?

[Stephen Kerr]

Let me come to that—I promise that almost my next sentence will be on that. I want to make sure that the Bill and Parliament deliver what my constituents expect.

I now turn to clause 11 and the amendments to it, particularly amendment 3. Let me be absolutely clear about the clause: we must have an agreement between the UK and Scottish Governments to allow for the passage of a legislative consent motion. I am not convinced that that is a legal necessity, but it is a convention that the Government are honouring and they should be commended for that. I am therefore intensely disappointed, dissatisfied and frustrated that a deal has not been struck between Scotland’s two Governments.

In the past few days, there has been a lot of talk in the media about the claim that there is an agreement in principle between the UK and Scottish Governments. The Scottish Government’s Brexit Minister, Mike Russell, claimed on television on Sunday that such an agreement existed. Will the Minister tell us the status of the negotiations between Scotland’s two Governments? Is there an agreement in principle? Is there an agreement on the frameworks that we all agree are essential for the operation of the UK marketplace, to allow the UK to honour its international obligations and to strike trade deals?

[Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)]

Does the hon. Gentleman accept that the need to make amendments to improve clause 11, which is almost universally accepted as deficient, is not predicated on there first being an agreement on a legislative consent motion, or the agreement with the Scottish Government to which he refers? Amendments should be taken on their merits alone.

[Stephen Kerr]

That is brave talk, but the facts of the matter are that Conservative Members are seeking to co-operate with the devolved Administrations so that there can be a unanimous approach to the legislative consent motion.

[Dr Whitford]

Does the hon. Gentleman not see that the way to achieve UK frameworks and to respect devolution would be to have all four Governments around the table as equals? We should not have this place handing things down from on high.

[Stephen Kerr]

I do not recognise that description of what has been going on. In fact, as lately as October, the UK Government and the devolved Administrations set out the principles by which such an agreement as I am describing would be achieved. I do believe that an agreement is necessary for us to be able to see that clause 11 is fit for purpose. It is a very important part of the passage of this Bill. We have to respect the devolved settlement, and an appropriately amended clause 11, which is subject to the negotiation and agreement of the devolved Administrations, is how to proceed.

[Ian Murray]

I will try for the sixth time over two debates to get the hon. Gentleman to answer this question. I ask him to please not say that he is coming on to it, when he never comes on to it. What is deficient in clause 11? What would he like to see changed in order to make it a clause that is not deficient? Does he stand by what he said in the previous debate, that he expects the Government to come forward with amendments before it goes to the other place?

[Stephen Kerr]

I am going to disappoint the hon. Gentleman—I will come on to that last point. What I believe should exist in clause 11 is the subject matter of the agreement that is reached between the UK Government and the devolved Administrations, in terms of UK frameworks in particular. We all accept that it is necessary that there are UK frameworks.

[Dr Whitford]

When I was referring to having all four Governments around the table, I was talking not about negotiating clause 11, but about how to set up frameworks for fishing, food or the environment. Those things should be decided together and not just decided here.

[Stephen Kerr]

My hon. Friend the Member for Harwich and North Essex (Mr Jenkin), the Chair of the Public Administration and Constitutional Affairs Committee, is not in his place now, but he dealt with that matter in his speech. I must say that I find myself in complete agreement with his sentiment and that of the Committee’s recent report, which is that, since we arrived at the position we are at with devolved Government in the United Kingdom, there has been a lack of appropriate machinery for our Governments to work together. There is a lack of appropriate constitutionally agreed machinery for even Parliaments to talk to each other. That must be addressed.

[Mr Alister Jack (Dumfries and Galloway) (Con)]

I absolutely agree with my hon. Friend that amending clause 11 is the right thing to do, but the detail of amendment 3 would be mired in judicial review were it to be accepted. For that reason, it is the wrong route to go down.

[Stephen Kerr]

I completely agree. Although I could not disagree fundamentally with the wording of the amendment, it is not adequate for its purpose in terms of the withdrawal Bill and the importance of achieving the legislative consent motions that this Government have rightfully determined are the way to proceed with what is—I agree—a major constitutional rearrangement of the affairs of this country because of our exit from the European Union.

[Mr Sweeney]

We all accept that having those joint frameworks is a desirable and necessary thing, but we are talking about the sequence in which that should be carried out. It is not necessary for us to wait for that to happen before amending clause 11 and making it fit for purpose now. Why do we not crack on and do it today? What is stopping us?

[Stephen Kerr]

What is stopping us is the fact that there is no point creating an amendment which then itself has to be amended. No one is more disappointed and frustrated than I am that we do not have these amendments. I sat and listened to the Secretary of State for Scotland make the same commitment. I will come on to that as it is a serious matter for me.

[Pete Wishart]

It is important that the hon. Gentleman understands the sequence and how this works. The repeal Bill is something that this Government have done to Scotland. What we have identified in that repeal Bill is a devolution threat in a clause that has to be corrected. If that is not corrected, there will be no legislative consent motion. It is incumbent on the Government who introduced this Bill to sort it and bring it forward. Then we will see whether we can give a legislative consent motion. That is how it works.

--- Later in debate ---

[Stephen Kerr]

There is the soul of a nationalist. The hon. Gentleman manages to take any issue and to make it into a grotesque grievance, which does not even exist. The fact is that the Government are going to extraordinary lengths to achieve the necessary level of consensus and agreement by which clause 11 can be amended so that it is fit for purpose. I support that, but it does not take one iota away from the fact that I am intensely disappointed. I ask the Ministers again to tell us about the status of the negotiations and where we are on the agreement. If there is an agreement, no one will say any louder, “Where is the amendment that we were promised from the Government?” [Interruption.] I am saying it now; I just said it. The Government gave undertakings that the Bill would be amended at the stage before it left this place to go to the House of Lords.

[Ian Murray]

I am not going to ask the hon. Gentleman for the seventh time, but will he tell the House what mechanism he and his Scottish Conservative MP colleagues would have in this House if the Government do not amend the Bill in the House of Lords?

[Stephen Kerr]

rose—

[Joanna Cherry]

He doesn’t know.

[Stephen Kerr]

The hon. and learned Lady, with her normal reserve, says that I do not know. The fact is that there are established processes by which the amendments that will now have to be made to the Bill in the House of Lords will come back here. Those processes were addressed by the Chair of the Public Administration and Constitutional Affairs Committee.

I do not want my next point to be lost, especially on my hon. Friends on the Government Front Bench—please do not underestimate the depth of disappointment and frustration among Scottish Conservative colleagues in the House. It does not seem appropriate for the Government to blame outside influences for the lack of an amendment. [Interruption.] SNP Members say, “Yes.” But it took until October to get an agreement to the principles by which we would proceed towards the agreement that I, and many of us here, regard as essential. Why did it take so long? Well, the fact is that the nationalist Government in Edinburgh are approaching the matter, as usual, with a wrecking mentality. They want to create a constitutional crisis that precipitates their beloved second independence referendum. The First Minister was at it again this week, talking about another independence referendum. The people of Scotland have spoken on this matter, but the SNP will not listen and its Members claim to be the democrats in this House.

[Neil Gray (Airdrie and Shotts) (SNP)]

The hon. Gentleman talks about trust, and about building towards agreement and compromise. Will he advise us as to how he expects that trust, agreement and compromise to come about? My understanding is that the UK Government have not shared any draft amendments to clause 11 with the Scottish Government.

[Stephen Kerr]

I respect the hon. Gentleman’s point of view and question on this matter. Frankly, I believe that we will proceed on the basis of the negotiations, on which I have asked Ministers to update us. Even Ministers in the hon. Gentleman’s own Government in Edinburgh talk about these matters in the most positive terms; it is not necessary to dress the issues up as a crisis and make them into some drama. We need to proceed to a point at which we can get to an agreement, which will then be the basis for an amended clause 11.

[Ged Killen (Rutherglen and Hamilton West) (Lab/Co-op)]

I am just looking for some clarity. The hon. Gentleman mentions how difficult it has been to get agreement with the Scottish Government. If the Government continue to fail to get that agreement, is it the case that no amendments to clause 11 will be tabled in the other place?

[Stephen Kerr]

The hon. Gentleman talks about there not being any prospects of an agreement. There is every prospect of an agreement, and I am quoting the SNP Brexit Minister. There is every possibility and likelihood of an agreement. My view is that it should have been achieved before now, and that we should have had an amendment to the Bill.

[Several hon. Members rose—]

[Stephen Kerr]

I will give way just one more time because I am sure that Mr Speaker’s patience with me is going to wear thin. In fact, I will take one intervention from the Opposition and one from my hon. Friend the Member for Harwich and North Essex.

[Anna McMorrin]

The Welsh Government and First Minister deemed it necessary to make a statement today about the lack of joined-up working with the UK Government, which is threatening a constitutional crisis; that is coming from a Labour Government in Wales. The very point is that we are on the brink of a constitutional crisis. We need an amendment. We need the Government to support Labour’s amendment 3.

[Stephen Kerr]

The hon. Lady is describing the attitude of the Welsh Government, which in many respects has been more hawk than dove on these matters. I have no doubt that that is for the Labour party’s political purposes in Wales, as such things are for the SNP in Scotland.

[Mr Jenkin]

It would be helpful if the Government gave an assurance today that in the event that there is no agreement with the Scottish or Welsh Governments, they will still amend clause 11—unilaterally, if necessary—to ensure that its effect is ameliorated as reasonably as possible. If the Scottish and Welsh Governments refuse to agree to that, it will be a problem for them and not for this Parliament.

[Stephen Kerr]

I completely agree with my hon. Friend. I believe that we must not be foolishly optimistic but realistic. When SNP Ministers talk as positively as they have, which is a different sound from the one that we hear from SNP Members here, then we have every reason to believe that wise heads—adult heads—will have sway and there will be an agreement.

I repeat—I do not want this not to be heard—that the Government made a clear commitment to the House on the amendments to clause 11, and I took those commitments at face value. As a Conservative Member, I never want to get to the point where I cannot take commitments given to me by right hon. and hon. Members at face value, because I hope, frankly, that they can continue to trust commitments that I might make to them. I really do want to understand why we have arrived at this point. I am afraid that there is a point of principle and accountability involved in answering these questions. What happened in the Departments in the past few weeks and months? Did they somehow lose focus? Were we not clear enough about what our expectations were?

I share with the House a concern that has resurfaced time and again since I was elected as Member for Stirling: since the devolution settlement UK Governments of all flavours have tended to devolve and forget, and that is a very dangerous practice. Again, I appeal to the Government to consider the appropriate machinery that creates the means by which our Governments work together, because that is what my constituents want. They are tired of the voices of conflict that they hear regularly in Scotland. They want us to be conciliatory. They want us to work by consensus and through collaboration.

When the devolution settlements first went through, when Labour was in power, there was a fashionable term that is still appropriate—“sofa government”. With a Labour Prime Minister in London and Labour First Ministers in Edinburgh and Cardiff, it was all very cosy, and so there was no need for any of the machinery that I am describing. In fact, one of the Scottish Labour leaders described their party in those days as the “branch office” of the party in London. By contrast, we as Unionists should believe in and work to the principles of partnership, and I believe that that is possible.

The reason behind amendments to clause 11 was to strengthen devolution and by doing so strengthen the Union. The nationalists will always create their narrative of grievance and scream “power grab” at every imagined opportunity. A strong amendment would have pulled the rug from under their squalid argument. It would have shown them up as the creators of grievance rather than giving grievance a voice, which we are hearing today.

Let me touch briefly on the rather weak amendments being offered up by the Opposition parties. The SNP amendment has no chance of passing and does nothing to address many of the concerns that Conservative Members have. The Labour amendment is well-intentioned but poorly drafted, and will only make room for legal wrangling and uncertainty. Not only that, but it shows no understanding that devolution in the UK is asymmetrical. The Scottish, Welsh and Northern Irish Parliaments are very different creatures, and there will undoubtedly be a need for frameworks that cover different parts of the United Kingdom and not just whole-United Kingdom frameworks.

For the good of Scotland, any powers that are returning to the UK from Brussels that are not reserved must, by definition, be devolved. I accept that UK frameworks are required. They can pragmatically solve problems, and they should do so through an equal partnership where all sides—Cardiff, Edinburgh, London and Stormont —can come together to solve problems and to share ideas. This is pragmatic partnership building. It is Unionism at its best, and even the enlightened nationalists seem to sign up for this. Everyone seems to agrees with it, so again I am left wondering why we would allow this Bill to leave this House and go to the other place without a suitable amendment.

I make no bones about it: it sticks in my craw to think that unelected Lords will make the vital amendments to this vital constitutional Bill. It is not really good enough, and as a Member of the House of Commons I hang my head to think that we have somehow dropped the ball. The Bill will leave this House unamended and in an unsatisfactory state, and we are now dependent on unelected Lords to do our job for us.