Brexit: Devolved Administrations

Viscount Younger of Leckie Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a pleasure to follow the noble and learned Lord, Lord Wallace of Tankerness. I too congratulate the noble Lord, Lord McInnes of Kilwinning, on the way in which he introduced this important debate, coming as it does between the disappointment of last week in the House of Commons and our engagement next week in the Second Reading of the withdrawal Bill.

As I think everybody knows, the proposals in the Bill as it stands were described by the Scottish Minsters when they first saw them as a power grab. At first hearing, one is inclined to treat an expression of that kind, especially coming from Ministers in a Government that still seem to be planning a second referendum on independence for Scotland, as somewhat overblown and exaggerated. However, on closer examination of the Bill and what it seeks to do to the devolution settlements for Scotland and Wales, which have operated successfully for many years, there is some force in the point that the Scottish Minsters were making.

Of course I must avoid going into matters which we will discuss in detail next week at Second Reading, but there are provisions throughout the Bill, not just in Clause 11, that propose giving powers to Ministers of the Crown to do things by means of regulations in connection with withdrawal which could intrude to a major degree into areas where the devolved Administrations have devolved competence, without the consent—or even seeking the approval—of Scottish and Welsh Ministers.

This is not just a complaint about Henry VIII powers; if I may say so, there is a touch of Oliver Cromwell about this, too. There are powers which, unless controlled in a way that the Bill does not currently provide for, would seriously invade and undermine the way that devolved government is conducted at present in Scotland. They appear to centralise control and decision-making in the UK Government in areas of devolved competence, in a way that would seriously limit the ability of the devolved Administrations to deal with the consequences of withdrawal as they see fit. This may not be the Government’s intention, but as the Bill stands that is how it reads, which was why the Scottish Ministers said what they did.

The Motion asks what the role of the devolved Administrations is to be on withdrawal. To some extent, this is really a matter for the UK Government, who are, after all, the architects of the withdrawal. They should answer that question and we, I am afraid, are at a disadvantage in this House in that the party in government in Scotland has no one here who is in a position to speak for it. But, from such public statements as I have seen, the position of the devolved Administrations is quite easy to understand. It has the support of all parties, particularly in Scotland, as I think was made clear in a debate yesterday. It is fairly straightforward and not really in doubt. These statements show that the Scottish Ministers—I mention them particularly—appreciate that some EU competences cut across elements of both devolved and reserved powers, so we need to find a way, by the creation of appropriate frameworks for matters of common interest, to preserve the single market for goods and services throughout the United Kingdom.

The noble Lord, Lord McInnes, said that this was a matter for mature debate, and I entirely agree. It is also a wonderful opportunity to create something new in place of the void created by the removal of the constraint on EU competences on devolution, which now goes. There is a need to create something new, but UK Ministers must appreciate that those frameworks will have to respect the principles and structure of the enactments which created the devolution settlements in Scotland and Wales, and no doubt in Northern Ireland, too. That, for the Scottish and Welsh Ministers at least, seems to be a red line which must not be crossed. For my part, I see force in the position they are taking.

The settlement for Scotland, which I know best and have worked with for quite some time, has existed since 1998. The basic principle on which that Act was based is, as the noble and learned Lord, Lord Wallace, said, that everything which is not reserved is devolved. The reserved areas are set out in Schedule 5 to that Act, which has stood the test of time. There has been no lack of clarity about it. I have been waiting since 1998 for challenges to things to come before the Supreme Court; they have not emerged, because the system works. It is to those reserved areas that the frameworks must direct their attention. The position of the devolved Administrations is quite simple: they seek to be assured that things will be done only with the consent of the Scottish and Welsh Ministers in areas which are devolved.

I have to confess to some sympathy with the Minister and the Secretary of State for Scotland, to whom he is answerable. They cannot say so, but I sense that the absence of agreement so far about the framework is due not to lack of effort on their part but to policy demands at a higher level in the Cabinet Office. I noticed that the Minister for the Cabinet Office said in debate on Report in the other place last week that he and his team are actively taking forward discussions, with a view to bringing forward amendments in this House. That is very much to be welcomed. However, those discussions must proceed on the basis that there is no point in bringing forward amendments here which do not have the agreement of the Scottish and Welsh Ministers. This is because there will be no prospect of legislative consent being given to this Bill by the Scottish Parliament unless the Scottish Ministers are able to say that it has their agreement, and I believe that the same is true for the Welsh Ministers too.

I do not detect an unwillingness on either side to continue these discussions, but I hope very much that UK Ministers will find their way to constructing frameworks that fully respect the established boundaries between devolved and reserved powers. They need to secure the agreement of the Scottish and Welsh Ministers, and they will, if they respect those boundaries. I look forward to discussing these issues further in our debates in following weeks.

[Viscount Younger of Leckie (Con)]

My Lords, we are tight on time this morning. I would be grateful if Back-Bench speeches could firmly be concluded as the clock reaches seven minutes. In that way, Front-Bench speeches will have their full allotted time.