“(1) The Secretary of State must lay before each House of Parliament proposals for replacing European frameworks with UK ones.
(2) UK-wide frameworks shall be proposed if and only if they are necessary to—
(a) enable the functioning of the UK internal market;
(b) ensure compliance with international obligations;
(a) ensure the UK can negotiate, enter into and implement new trade agreements and international treaties;
(b) enable the management of common resources;
(c) administer and provide access to justice in cases with a cross-border element;
(d) safeguard the security of the UK.
(3) Ministers of the Crown shall only create UK-wide frameworks if they have consulted with, and secured the agreement of, the affected devolved administrations.”—(Jenny Chapman.)
This new clause would establish new procedures for the creation of UK-wide frameworks for retained EU law.
Brought up, and read the First time.
With this it will be convenient to discuss the following:
“(1) The Joint Ministerial Committee is to be a forum—
(a) for discussing—
(i) the terms upon which the United Kingdom is to withdraw from the European Union and the United Kingdom’s future relationship with the European Union;
(ii) proposals to amend retained EU law;
(iii) agreed legal and policy frameworks in relation to the subject matter of devolved retained EU law that are to operate throughout the United Kingdom;
(iv) a concordat setting out the process for concluding the legal and policy frameworks mentioned in sub-paragraph (iii); and
(b) for seeking a consensus on those matters between Her Majesty’s Government and the other members of the Joint Ministerial Committee.
(2) Before Her Majesty’s Government concludes a withdrawal agreement, the Secretary of State must produce a document for consideration by the Joint Ministerial Committee setting out—
(a) Her Majesty’s Government’s objectives and strategy in negotiating and concluding a withdrawal agreement;
(b) Her Majesty’s Government’s objectives and strategy in relation to establishing a framework for the United Kingdom’s future relationship with the European Union;
(c) the steps Her Majesty’s Government intends to take to keep the Joint Ministerial Committee informed of progress in reaching a withdrawal agreement;
(d) the steps Her Majesty’s Government intends to take to consult each member of the Joint Ministerial Committee before entering into a withdrawal agreement and for taking the views of each member into account;
(e) the steps Her Majesty’s Government intends to take to seek the approval of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly before entering into a withdrawal agreement.
(3) Until a withdrawal agreement is concluded, the Secretary of State must produce a report every three months for consideration by the Joint Ministerial Committee setting out—
(a) Her Majesty’s Government’s assessment of the progress made against Her Majesty’s Government’s objectives—
(i) in negotiating and concluding the withdrawal agreement;
(ii) in relation to establishing a framework for the United Kingdom’s future relationship with the European Union;
(b) any change to the matters listed in paragraphs (a) to (e) of subsection (2).
(4) Before concluding a withdrawal agreement the Prime Minister must produce a document setting out the terms of the proposed agreement for consideration by the Joint Ministerial Committee.
(5) Meetings of the Joint Ministerial Committee must, until Her Majesty’s Government concludes a withdrawal agreement, be chaired by—
(a) the Prime Minister, or
(6) In this section, “the Joint Ministerial Committee” means the body set up in accordance with Supplementary Agreement A of the Memorandum of Understanding on Devolution, between Her Majesty’s Government, the Scottish Government, the Welsh Government and the Northern Ireland Executive Committee.”
This new clause would put the Joint Ministerial Committee’s role in the withdrawal process on a statutory footing.
Amendment 42, in clause 11, page 7, line 16, leave out subsections (1) to (3) and insert—
“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with EU law), omit ‘or with EU law’.
(2) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for National Assembly for Wales to legislate incompatibly with EU law), omit ‘or with EU law’.
(3) In section 6(2)(d) of the Northern Ireland Act (no competency for the Assembly to legislate incompatibly with EU law, omit ‘is incompatible with EU law’.”
This amendment removes the Bill’s proposed restrictions on the ability of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly to legislate on devolved matters.
Amendment 164, page 7, line 16, leave out subsections (1) and (2) and insert—
“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with EU law), omit ‘or with EU law’.
(2) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for National Assembly for Wales to legislate incompatibly with EU law), omit ‘or with EU law’.”
This amendment would replace the Bill’s changes to the legislative competence of the Scottish Parliament and the National Assembly for Wales in consequence of EU withdrawal, by removing the restriction on legislative competence relating to EU law and ensuring that no further restriction relating to retained EU law is imposed.
Amendment 132, page 7, line 19, leave out from “law)” to end of line 29 and insert
“omit ‘or with EU law’”.
This amendment is intended to remove the proposed bar on the Scottish Parliament legislating inconsistently with EU law after exit day.
Amendment 90, page 7, leave out lines 22 to 29 and insert—
“‘(4A) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law which relates to matters specified in Schedule 5 to the Scotland Act 1998.’”
This amendment would remove the restrictions on the Scottish Parliament modifying retained EU law except in relation to matters that are reserved.
Amendment 133, page 7, line 33, leave out from “law)” to end of line 7 on page 8 and insert
“omit ‘or with EU law’”.
This amendment is intended to remove the proposed bar on the National Assembly for Wales legislating inconsistently with EU law.
Amendment 91, page 7, leave out from beginning of line 36 to the end of line 7 on page 8 and insert—
“‘(8) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law which relates to matters specified in Schedule 7A to the Government of Wales Act 2006.’”
This amendment would remove the restrictions on the National Assembly for Wales modifying retained EU law except in relation to matters that are reserved.
Amendment 134, page 8, line 9, leave out from “Assembly)” to end of line 28 and insert “omit subsection 2(d)”.
This amendment is intended to remove the proposed bar on the Northern Ireland Assembly legislating inconsistently with EU law.
Amendment 92, page 8, leave out lines 14 to 28 and insert—
“‘(6) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law which relates to matters specified in Schedules 2 or 3 to the Northern Ireland Act 1998.’”
This amendment would remove the restrictions on the Northern Ireland Assembly modifying retained EU law except in relation to matters that are reserved or excepted.
Amendment 72, page 8, line 28, at end insert—
“(3A) This section shall not come into effect until—
(a) the Scottish Parliament has passed a resolution approving the provisions in subsection (1);
(b) the National Assembly for Wales has passed a resolution approving the provisions in subsection (2); and
(c) the Northern Ireland Assembly has passed a resolution approving the provisions in subsection (3).”
Amendment 337, page 8, line 33, at end insert—
“(6) Subsections (1), (2) and (3) shall not come into force until the exit day appointed for the purpose of this section, which must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”
This amendment, alongside Amendment 42 and NC64, would establish that the UK Government has until the end of transitional arrangements to create any UK-wide frameworks.
Clause 11 stand part.
Amendment 165, in schedule 3, page 25, line 37, leave out paragraphs 1 and 2 and insert—
“1 In section 57(2) of the Scotland Act 1998 (no power for members of the Scottish Government to make subordinate legislation, or otherwise act, incompatibly with EU law or Convention rights), omit ‘or with EU law’.
2 In the Government of Wales Act 2006, omit section 80 (EU law).”
This amendment would replace the Bill’s changes to the executive competence of the Scottish Ministers and Welsh Ministers in consequence of withdrawal from the EU, by removing the restriction on competence relating to EU law and ensuring that no further restriction relating to retained EU law is imposed.
Amendment 183, page 28, line 2, leave out from first “and” to end of line 3.
This consequential amendment, linked to Amendments 164 and 165 to Clause 11 and Schedule 3, would change a heading in the Scotland Act 1998 to remove a reference to retained EU law.
Amendment 184, page 28, line 38, leave out from “(d)” to end of line 39 and insert
“omit ‘or with EU law’”.
This consequential amendment, linked to Amendments 164 and 165 to Clause 11 and Schedule 3, would change the definition of devolution issues in the Scotland Act 1998.
Amendment 185, page 29, line 5, leave out paragraph 21.
This consequential amendment, linked to Amendments 164 and 165 to Clause 11 and Schedule 3, would enable changes to the procedure for subordinate legislation in the Scotland Act 1998.
Amendment 186, page 29, line 28, leave out from “subsection” to end of line 29 and insert “(4), omit paragraph (d)”.
This amendment makes a change consequential on Amendment 165, which would omit section 80 of the Government of Wales Act 2006, making section 58A (4)(d) of that Act redundant.
Amendment 187, page 30, line 4, leave out
“before ‘EU’ insert ‘Retained’” and insert “omit ‘EU law’”.
Amendment 165 omits section 80 of the Government of Wales Act 2006. This amendment would amend the changes made to the heading before section 80 to reflect the omission of section 80 of the Government of Wales Act 2006.
Amendment 188, page 30, line 5, leave out paragraph 31.
This amendment makes a change consequential on Amendment 165, which would omit section 80 of the Government of Wales Act 2006, making paragraph 31 of Schedule 3 in this Bill redundant.
That schedule 3 be the Third schedule to the Bill.
Amendment 177, in schedule 2, page 19, line 47, leave out “and retained EU law”.
This is a consequential amendment linked to Amendments 164 and 165 to Clause 11 and Schedule 3.
Amendment 178, page 20, line 23, leave out “and retained EU law”.
This is a consequential amendment linked to Amendments 164 and 165 to Clause 11 and Schedule 3..
Amendment 179, page 23, line 21, leave out “and retained EU law”.
This is a consequential amendment linked to amendments 164 and 165 to Clause 11 and Schedule 3.
Amendment 180, page 23, line 25, leave out
“and section 57(4) and (5) of that Act”.
This is a consequential amendment linked to amendments 164 and 165 to Clause 11 and Schedule 3.
Amendment 181, page 23, line 31, leave out “and retained EU law”.
This is a consequential amendment linked to amendments 164 and 165 to Clause 11 and Schedule 3.
Amendment 182, page 23, line 35, leave out “80(8)” and insert “80”.
This consequential amendment, linked to amendments 164 and 165 to Clause 11 and Schedule 3, changes the reference to section 80 of the Government of Wales Act 2006 to make clear that the restriction on the powers of the Welsh Ministers not to act or legislate incompatibly with EU law is removed.
Amendment 189, in schedule 8, page 50, line 19, leave out
“section 57(4) of the Scotland Act 1998, section 80(8) of the Government of Wales Act 2006 or”.
This amendment and Amendment 190 are in consequence of Amendment 165 as no restriction relating to retained EU law on the making of subordinate legislation by the Scottish Ministers and the Welsh Ministers would apply.
Amendment 190, page 51, line 1, leave out
“section 57(4) of the Scotland Act 1998, section 80(8) of the Government of Wales Act 2006 or”.
This amendment and Amendment 189 are in consequence of Amendment 165 to Schedule 3 as no restriction relating to retained EU law on the making of subordinate legislation by the Scottish Ministers and the Welsh Ministers will apply.
Amendment 191, page 55, leave out lines 8 to 13 and insert—
(a) in paragraph (a), omit sub-paragraph (ii), and
(b) in paragraph (b), omit “or with EU law”.”.
This amendment would amend the Criminal Procedure (Scotland) Act 1995 on the right of the Advocate General to take part in proceedings in consequence of removing the restriction on the competence of the Scottish Parliament and Scottish Government by Amendments 164 and 165 to Clause 11 and Schedule 3.
Amendment 192, page 59, leave out lines 10 to 16.
This amendment, with Amendments 193, 194 and 195, is in consequence of Amendments 164 and 165 to Clause 11 and Schedule 3 which would remove the powers to make an Order in Council to adjust the new restriction on the legislative competence of the Scottish Parliament and the National Assembly for Wales.
Amendment 193, page 59, leave out lines 23 to 29.
This amendment, with Amendments 192, 194 and 195, is in consequence of Amendments 164 and 165 to Clause 11 and Schedule 3 which would remove the powers to make an Order in Council to adjust the new restriction on the legislative competence of the Scottish Parliament and the National Assembly for Wales.
Amendment 194, page 59, line 47, leave out from beginning to end of line 8 on page 60.
This amendment, with Amendments 192, 193 and 195, is in consequence of Amendments 164 and 165 to Clause 11 and Schedule 3 which would remove the powers to make an Order in Council to adjust the new restriction on the legislative competence of the Scottish Parliament and the National Assembly for Wales.
Amendment 195, page 60, leave out lines 13 to 23.
This amendment, with Amendments 192, 193 and 194, is in consequence of Amendments 164 and 165 to Clause 11 and Schedule 3 which would remove the powers to make an Order in Council to adjust the new restriction on the legislative competence of the Scottish Parliament and the National Assembly for Wales.
It is a pleasure to serve under your guidance, Mrs Laing. I will speak to new clauses 64 and 65, as well as to amendments 42 and 337, which stand in my name and those of my right hon. and hon. Friends.
New clause 64 would establish a collaborative procedure for the creation of UK-wide frameworks. It would require that the Secretary of State must lay before each House proposals for replacing European frameworks with UK ones. We need those frameworks to enable the functioning of the UK internal market; to ensure compliance with international obligations; to ensure the UK can negotiate and enter into international treaties, or, if we leave the customs union, trade agreements; to enable the management of common resources; to administer and provide access to justice in cases with a cross-border element; and to safeguard the security of the UK. The frameworks will have a significant impact on the carefully constructed devolution settlements in the Union. They must be created in collaboration with the devolved Administrations.
The birth of devolved Governments in Scotland, Wales and Northern Ireland was a significant change to the running of the United Kingdom. The then Scottish Secretary, Donald Dewar, battled to extract powers from Whitehall mandarins, who attempted to cling on to them. Then, as now, the default position of Whitehall is to hold on to power whenever possible. There are those who believe that this pro-Whitehall centralising tendency, on display yet again in clause 11, is evidence of the Tories’ reluctance to engage with devolved Administrations, or, even worse, that it signals a persistence of their initial opposition to devolution as a point of principle.
I am pleased to say that I am not one of those people. I believe we have come a long way since 1997, thanks in large part to the persistence of Donald Dewar and others. I sense that the Government’s decision to withhold retained EU powers in Whitehall is not an anti-devolution stance, but instead one of the clearest indications yet that the Government are just not coping with the task of Brexit. The Government simply have not had the ministerial headspace—or, as Alan Milburn said, the bandwidth—to engage with the consequences of Brexit for the established, yet still young, devolution settlements now in place.
I completely agree with the point my hon. Friend is making so eloquently. Does the news from Brussels in the last few minutes about the complexity of the negotiations not show that the Bill, and the whole process of Brexit, will have far greater consequences for our country, not just for the economy but our whole constitutional settlement and the way we run our affairs here in these islands? The very serious consequences needed to have been much more clearly thought through by the Government.
I encourage Ministers to listen very carefully to what my hon. Friend says. Like me, he has a deep concern at what clause 11 may mean for the devolved Administrations. We watch with alarm the statements being made today. We hope the position is clarified very quickly.
My hon. Friend refers to Donald Dewar. The basis for the devolution process came about via referendums in Scotland, Wales and both parts of Ireland to agree the frameworks under which we now operate. Is it therefore not a contempt, an insult, to the people as a whole—not just this House—for the Government to undermine the Good Friday agreement and the devolution settlement, which was endorsed by the people in referendums?
My hon. Friend is right. People voted for these powers to be devolved and it is wrong for the Government to attempt to use Brexit as an excuse to bring them back to London.
The historian Professor Tom Devine called Scottish devolution and the establishment of the Scottish Parliament:
“the most significant development in Scottish political history since the union of 1707.”
The Conservative party may have been opposed to devolution in the 1990s, and the Scottish, Welsh and Northern Irish Administrations may not have been conceived of in the early ’70s, but they are now an important and respected integral part of the constitutional architecture of our country.
The Good Friday agreement could never have succeeded without devolution to Northern Ireland, and, in the view of many of those involved at that time, the fact that devolution to Scotland and Wales took place at the same time as the Good Friday negotiations helped to ease some misgivings about the process.
Two nations of our Union voted to remain in the EU and two voted to leave. Our nations are run by different parties with different views about what Britain should look like after Brexit. The challenge for the Government therefore is significant. Just because it is challenging, however, does not mean the Government should attempt to take shortcuts that undermine the credibility, autonomy or sharing of decision making that are now an accepted feature of our democracy.
I pay tribute to my hon. Friend for all her work on the Bill. Is she surprised, as I am, that the 12 new Scottish Conservative Members of Parliament were sent here by the Scottish Conservative leader, Ruth Davidson, under the banner of standing up for Scotland, yet it appears that, with regards to the Bill and these clauses, all they will be standing up for is the Government Whips Office?
We will have to wait until later this evening to see which Lobby they choose to walk through. I, like my hon. Friend, was encouraged by some of the comments from Ruth Davidson and her hopes for the new group of Conservative Tory MPs, but we shall see if they live up to the billing she has given them.
Whether they want to or not, the Government must adapt to the very different constitutional circumstances that now exist. They are very different from those that existed before 1973. Clause 11, which is intolerable to the devolved Administrations, sets it as the default that powers currently exercised in Edinburgh, Cardiff and Belfast within EU frameworks will be ripped away and held in London. First Ministers are calling this a Whitehall power grab.
The hon. Lady is making a passionate speech, but does she accept that powers are not being ripped away, given that they are not there for the devolved Administrations at the moment? [Interruption.] Whether hon. Members think it right or not, as a matter of law, those powers are vested in the EU, and therefore if they come back to the devolved Administrations, they will be additional powers. Powers are not being taken away.
I think that the hon. and learned Lady—if I may be polite—has not quite grasped what we are talking about. We are talking about a framework, within which the devolved Administrations currently make decisions, that is held now at the EU level. Our desire is for a UK framework that enables those decisions to continue to be made by the devolved Administrations. It is very different from saying, as I anticipate some Government Back Benchers will claim, “Well, the powers are currently held in Brussels, so why is everybody so worried about it?” Actually, the decision making is held in Belfast, Edinburgh and Cardiff.
Does my hon. Friend agree that in Wales devolution actually came in two tranches—in 1997, but also in 2011, when Wales voted overwhelmingly for full law-making powers—and that any rolling back of those powers would be simply unacceptable and anti-Welsh in the extreme?
My hon. Friend is talking about the UK framework and the devolved Administrations. Would she care to comment on the quite astonishing scenes we have witnessed today? It is apparent that the Government have not spoken to the Northern Ireland First Minister about what should happen with respect to any deal. If we are to have special arrangements—or special alignment—between Northern Ireland and the rest of Ireland, what is wrong with giving the whole UK that special alignment? It is called all of us staying in the customs union.
My hon. Friend is highlighting the alarm with which we are witnessing the statements coming out today—the confusion, the briefing, the counter-briefing—and with which we contemplate the destabilisation, particularly in Northern Ireland, that could result. We are deeply concerned about it. I will resist making any specific comment until we have a much clearer picture of the situation, but I am sure that every Member will want to ensure that the negotiations proceed this week and that there is a clearer outcome. The Prime Minister has asked for that to happen at the end of the week. We are expecting a full statement tomorrow, and we look forward to it. I am sure that some very serious questions will be asked of the Prime Minister tomorrow about the conduct of the negotiations.
Is there not a really important point that the Government seem to forget? When they are negotiating about a border, or no border, or about divergence from or convergence with a regulatory framework on the island of Ireland, they must speak to the First Minister of Wales as well, because the vast majority of the exports from Ireland into the rest of the European Union go through Wales. There is no point in coming up with a Bill that simply ignores the devolved Administrations.
My hon. Friend is right to highlight the fact that the Government seem to have acted in a rather high-handed way with all the devolved Administrations on a matter that is so fundamental to the future of the citizens of this country.
I agree with Chris Bryant. The other border between the United Kingdom and Ireland is the one that passes through Holyhead and Fishguard. When I asked the Secretary of State for Exiting the European Union, in the Select Committee, what consideration he had given to the position in Holyhead in particular—given the chaotic road across the island, the two insubstantial bridges, and the extra traffic from the proposed Wylfa B power station—his answer he gave was very clear: “None.”
That is shocking. I am sure that the hon. Gentleman and other colleagues from Wales will continue to make the point as the debate proceeds. Needless to say, the Government’s attitude has been most concerning to me and to First Ministers, because it suggests that they are not interested in the needs and ambitions of the people of Scotland, Wales and Northern Ireland. That approach is regrettable, but it is not too late to change it.
My hon. Friend is being very generous in giving way. Just last week, senior border immigration officials told the Home Affairs Committee that the implications for the Welsh ports of Holyhead, Fishguard and Pembroke, which other Members have mentioned, are very serious in practical terms unless we remain in the customs union, for instance. That underlines the point that my hon. Friend is making about proper frameworks, the Joint Ministerial Committee and so on, and the points made in the new clauses and amendments.
The hon. Lady is making a persuasive speech. She mentioned the renowned Scottish historian Sir Tom Devine. He, of course, has made the journey from being a supporter of devolution to being a supporter of independence. Does the hon. Lady agree that if the Bill is allowed to drive a coach and horses through the current devolution settlement, a great many more Scots are likely to follow Sir Tom Devine by becoming supporters of independence rather than devolution?
I sincerely hope that that will not be the outcome, but I have to admire the hon. and learned Lady’s ability to spot an opportunity and take it.
The Government have never argued that these powers need to be in London or that they intend to hold on to them permanently. Rather, it seems that they feel that tackling the undoubted complexities of considering how to make new arrangements with the devolved Administrations post Brexit belongs in the “too difficult” pile—something to be put off until there is more time and there are fewer distractions. However, there are no time limits on when the Government will cease to hoard the powers. While the hard-line Brexiteers on the Back Benches are promised a time and date—to the very nanosecond—for when they will see powers returned from Brussels, the nations of our Union are told to wait indefinitely. The people of Wales, Scotland and Northern Ireland deserve better from the Government.
The Government agree with Labour and the devolved Administrations that frameworks are needed—I think—and new clause 64 assists them by outlining how that can be achieved. The presumption should be that powers remain devolved as is the case now, and that UK frameworks are created to co-ordinate policy in some areas through negotiation with the devolved Administrations. To do anything else would turn back the clock on devolution—impossible—and cause untold damage to important relationships between Parliaments.
As well as having the motivation and attention to address this issue, the Government need to trust the devolved Administrations. That is why our proposal makes explicit the obligations on each Government and the nature of the frameworks needed. So far, the Government have not exactly shone in their endeavour to develop a UK-wide approach to Brexit, so new clause 65 helps by putting the Joint Ministerial Committee on a statutory footing.
It is important to reflect on the absence of representation from Northern Ireland on the JMC. The suspension of the Executive is deeply regrettable, and permits the neglect of the needs, concerns, ambitions and hopes of the people of Northern Ireland. Their voices must not go unheard at this most critical of moments, but need to be amplified, as it is they who have the most to lose from a chaotic departure from the EU.
I am following the hon. Lady’s speech carefully. I am also looking very carefully at her new clause, but I do not see how it would resolve the question of what would happen if we set up joint structures and there was disagreement about how they will work. It can, of course, be argued that the Parliament of the United Kingdom is ultimately sovereign, so I think that it is a matter of law that if there is a disagreement, the logjam would ultimately be resolved by this Parliament and the Government in Whitehall having primacy. The question the hon. Lady has to answer is whether the structure she is putting forward would be workable in practice, or if it would just lead to conflict.
The new clause is not intended to cause conflict—we already have a certain degree of conflict between the Administrations—but, rather, to remove that conflict, and to provide a mechanism by which issues can be resolved. Hearteningly, the JMC seems to have started to function rather better than it did when we last went around this particular issue. It has issued statements that explain how it wants these frameworks to be established, so it does not seem to be too much of a leap to write that into the Bill.
The right hon. and learned Gentleman will probably remember our attempt to put the JMC on a statutory footing when we considered the article 50 Bill, but this time the Brexit negotiations are upon us. The Government have lost their majority since our last attempt, so I encourage Ministers to take a more conciliatory approach this time. New clauses 64 and 65 would force the Government to respect both the devolution of decisions, and those who are responsible for taking the decisions.
Does my hon. Friend agree that the JMC should be producing communiques that give the public and this House slightly more information? The communique published on
“Ministers noted the positive progress being made on consideration of common frameworks”.
Does my hon. Friend agree that we need slightly more information?
My understanding is that the answer is yes. We have not worked alone on this—we have worked together with the devolved Administrations—so I am slightly surprised by that question. Perhaps the hon. Gentleman is angling for something. Is he trying to extract something from this that I am unaware of?
The plight of the First Minister has always been that new UK frameworks have to be made collaboratively in a partnership of equals. The new clause seems to suggest that this would be a matter determined by Westminster, in negotiation with the devolved Governments, but that is a totally different thing.
The intention is that the frameworks would be achieved collaboratively. That is precisely what we are trying to achieve. It is, of course, a matter for the hon. Gentleman if he is trying to force a wedge between myself and my hon. Friends and the First Minister, but I do not think he is going to be successful.
On the point about conflict that was raised by Mr Grieve, it seems to be the way in which the Bill has been structured that creates the conflict. The Government could have done this differently. They could have said, “You can have all the powers back and we will hold a veto.” The question is about getting agreement on the frameworks when they are necessary. The two new clauses to which my hon. Friend is speaking seem to me—and, I am sure, to many people—to set out a really practical way of bringing the two sides together to get those agreements. That is the route by which we will find a way through this problem.
That is absolutely the approach that we have tried to take. We are trying to be practical, realistic and respectful, and to work collaboratively with the devolved Administrations.
Perhaps the hon. Lady requires a note from elsewhere to say that this is not one of the amendments brought forward by the Scottish Government and the Welsh Government. In fact, the new clause says something entirely different. It states that “Ministers of the Crown” would “create UK-wide frameworks”. The Welsh and Scottish Governments want this to be a combined process that involves all the parties.
I understand what the hon. Gentleman is saying, but I think he is dancing on the head of a pin. We want the creation of the frameworks to be done collaboratively by the devolved Administrations and the Government.
I have already given way quite a lot. If the hon. and learned Lady does not mind, I am going to crack on now. She will have a chance to make her own speech, and I look forward to listening to it.
Pursuing the same point, does the hon. Lady not accept that new clause 64(3), having provided that there should be no new frameworks created without the agreement of the devolved Administrations, would be a recipe for chaos, on the basis that if there were no such agreement, it would be impossible to create the frameworks that she seems to acknowledge as so desirable?
The Joint Ministerial Committee said that it wanted frameworks to be created in this way, I think at the time when the right hon. Gentleman was a Minister, so I really do not understand what his objection is today.
We need look no further than Wales to learn of the practical benefits of devolution. It is right that Cardiff should decide the best way to support farmers in Wales, within an agreed framework but according to their needs and priorities. Jobs Growth Wales has so far supported the employment of 17,000 young people using European funding. That decision would not have been possible if the arrangements proposed by the Government had been in place at the time. When I was first elected, the Tories and the Lib Dems scrapped the almost identical future jobs fund in 2010. Such decisions were devolved for good reason, and we will support the devolved Administrations in keeping them. Amendments 42 and 337, alongside new clause 64, would allow the Government until the end of the transitional arrangements to create UK frameworks.
I want to make it clear to the Minister that in tabling these new clauses and amendments, Labour is attempting to assist the Government by enabling the devolved Administrations to be engaged in decisions that have a direct impact on their people. If the Government accept our criticisms and proposed improvements, Ministers will find that they have a less turbulent time in the months ahead. Do the Government really think that it is wise to pass a Bill to which the devolved Administrations are so hostile? Ministers need to focus on negotiating the best possible deal for all the people of the UK, not on embroiling themselves in constitutional rows with Edinburgh and Cardiff.
I first want to pick up on an earlier comment about what Mr Juncker has been saying. If one could get past the headlines of the biased BBC, the reality is that Mr Juncker actually said that enormous progress has been made in the talks. It might be worth listening to what he actually has to say for once instead of listening to all the usual commentators, who are doing their best to undermine the excellent work that has been done by my colleagues in Government.
Jenny Chapman delivered an interesting speech in which she made a couple of pointed, but very kind, remarks about the fact that the Conservative party had opposed devolution, and she is of course absolutely correct. We totally opposed devolution in Wales and in Scotland, too, but it is Wales that I will talk about. Indeed, I was one of the leaders of the anti-Welsh Assembly campaign in 1999. However, the hon. Lady forgot to mention something in her long speech, despite making several references to devolution, and it is rather an important point. After the referendum in 1999, when the Welsh Assembly was voted for by just over half of the half of the electorate that came out to vote, the Conservative party totally accepted the result of the referendum. On the very next day, we said that we did not like it and that we would not have chosen it ourselves, but we respected the voice of the people of Wales. We recognised that when people vote in a referendum, even if the result is far from overwhelming, we have to adhere to the result. That is a lesson that the hon. Lady and many of her colleagues have yet to learn properly.
I would be delighted to explain, but I probably will not be able to today. It is a lovely idea, and I would be more than happy to spend 20 minutes or so on it, but—
Order. I do not think that the hon. Gentleman would like to tell the House that at this point. We will stick to the matter in hand for the moment.
Let me return to the matter in hand for a minute, because Susan Elan Jones was also there for the underwhelming vote for devolution in 1999, and she will surely recall that the Conservative party did not call for a second referendum. We did not threaten to drag the whole thing through the courts to get the judges to overrule the will of the people of Wales. We were not going around pretending that people had changed their minds and saying that we needed to run the whole thing over again. We did not say that we were going to drag the whole thing out and do everything possible to undermine it. In actual fact, Nick Bourne, who was then the leader of the Welsh Conservatives and is now a Member of the other place, sat down with Members of all parties on the National Assembly advisory group and helped to draw up the Assembly’s Standing Orders, most of which are now in place. That is the difference between the Conservative party’s approach when we were on the losing side of a referendum and the approach of the Labour party, the SNP and many others now that they are on the losing side.
The reality is that the change will be called a power grab. I did not hear the phrase used today, but it will be described as a power grab. Of course it is a power grab, and what a wonderful power grab it is, too. We are grabbing powers from Brussels and bringing them back to London. Not only that, but over the next few years—[Interruption.] SNP Members can shout all they like; I am waiting for one of them to intervene.
Perhaps the reason why the hon. Gentleman’s campaign against the Welsh Assembly in 1999 failed was because the people of Wales voted in 1997. It might have gone better if he had turned up two years earlier. As we are talking about where power ultimately resides, I believe 100% in Scotland’s ancient doctrine that the people are sovereign. Where does he believe ultimate sovereignty over Scotland resides?
As the hon. Gentleman knows, that is for the Scots to decide, and they decided that, for the time being, ultimate sovereignty rests within a United Kingdom Parliament in which the Scots are heavily and well represented, if I may say so. I totally respect that, and I hope he does, too.
A few weeks ago, Scottish National party Members were telling us that we should all support and recognise the referendum result in Catalonia, where a nation decided that it wanted to break out of a union with Spain. I find it ironic that the SNP is saying that we have to recognise referendum results when it happens to agree with the policy but that we should completely ignore referendum results when it does not agree with the policy.
The hon. Gentleman cannot compare an unconstitutional referendum in Catalonia, in which only 2 million people took part, with a constitutional referendum in Scotland and Wales organised according to legal procedures.
I am comparing not the two referendums but the reaction to those two referendums. On that point, I am probably on the same side as the hon. Gentleman.
The hon. Gentleman appears to be making light of the powers coming back from the EU. The Welsh and Scottish Governments were promised that the powers would go to those Administrations. The powers cover a huge number of areas. The Scottish Government reckon there are 111 returning powers, and the Welsh Government reckon the figure is 64. A huge number of areas are coming back here, rather than going to where devolved competence exists. While he is at it, will he tell us which way Monmouthshire voted in the EU referendum?
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 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 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.
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?
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 same problem that some Opposition Members complain will happen 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, over and again, have 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
The hon. Gentleman was a Member of the Welsh Assembly for some considerable time. Is he saying that if he were still there he would not be arguing in Wales, in the Welsh Assembly, for the powers in the 140 distinct policy areas that have devolved responsibility, many of them in relation to the environment, to come back to the Welsh Assembly? Would he be happy for the Westminster Parliament to make those decisions on behalf of Wales?
I can say to the hon. Lady that that is exactly what I am saying to her. May I remind her that in 2003 I had an election leaflet that had the headline “No more powers for the Welsh Assembly” and I was given one of the biggest majorities of anyone in Wales? That is something to think about. So “yes” is the answer to that question.
This Government are doing a superb job. All sorts of people and the commentators will be, once again, in the newspapers tomorrow trying to find little reasons to undermine this process. It is quite a complicated process, but I say from the bottom of my heart that I think these Ministers are doing a superb job, and they are being supported not just by their Back Benchers or all those who voted to leave the European Union, but by a majority of people in Wales, who also voted to vote the EU and are not being respected by the Labour party, Plaid Cymru and whatever is left of the Liberal Democrats. More power to them, and I look forward to joining them in the Lobby tonight.
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 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. 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.
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?
Does the right hon. Gentleman accept that his tone and language in this debate are quite different from what his Ministers say when they come out of their meetings with UK Government officials? We should reflect on the progress that has been made to date, rather than continually try to find a political divide on this most important of issues.
A simple one-word answer: no.
Amendment 72 is simple and straightforward. It seeks to ensure that all the devolved Administrations have a vote on approving clause 11 before it can come into effect. The principles behind the amendment are critical. Scotland, Wales and Northern Ireland have been told time after time that this is a Union of equals. There must be equality in the Brexit process and every corner of the UK must be heard.
We had a very good briefing, as we always do, from the Law Society of Scotland. It concludes, after several paragraphs of different suggestions on how this could be done more practically, that this is essentially a political decision. Does the right hon. Gentleman share that view?
Absolutely. When so many people have worked so hard over many generations and many decades to establish the Scottish Parliament, this attack on the competences of the Scottish Parliament by the Government is absolute bare-faced cheek.
The Tory Members of Parliament from Scotland should remember what they said: that they are here to stand up for Scotland. Tonight they have their opportunity. Are they prepared to see this power grab against the Scottish Parliament? Are they going to vote to take powers back from the Scottish Parliament to Westminster? That is the simple choice that Conservative Members of Parliament face tonight.
It is deeply depressing that the UK Government did not even bother to consult the devolved Administrations on the legislation before publishing it. Where is the respect when they cannot even talk to their colleagues in the devolved Administrations as they should do? I am sure that that obvious act would have saved many of the problems and headaches the Government now face over the devolved aspects of the Bill.
I was happy to put my name to amendment 72 because it is not about whether we want this Brexit Bill to go forward or not—a leaver or a remainer could support amendment 72—but about respecting the constitutional settlement and respecting the rights of the Welsh Assembly, the Northern Ireland Assembly and the Scottish Parliament.
I am very grateful for the hon. Gentleman’s remarks. He is absolutely correct. Amendment 72 is about protecting the interests not just of the Scottish Parliament and Government, but of the Administrations in Wales and Northern Ireland.
A point was made earlier about where sovereignty lies, but this House has to be very careful about going against the wishes and the democratic institutions that have been established in all the devolved areas. We play with that at our peril. I am delighted that amendment 72 has gathered support across the House. I sincerely hope—I plead with them—that the Scottish Conservatives join us and support it tonight. Let us all stand up with one clear and united voice, defending the interests of the Scottish Parliament. Do that tonight—stand up for Scotland. It is their moment to stand up and defend the devolution settlement.
I am not quite sure what the hon. Gentleman is referring to. If he had listened to what the Scottish Government have said, he would know that 111 devolved competences are being interfered with. That is the salient point.
When the Scottish Parliament was established, the Scotland Act 1998 defined matters that were reserved. Those matters that were not reserved were devolved to the Scottish Parliament. Areas such as agriculture, fisheries and the environment are fully devolved. In this Bill, powers over agriculture, fisheries and our environment are being taken back to Westminster. I say with all due respect to the Conservatives: do you want to trample over the powers that the Scottish Parliament has over these areas?
Order. I hesitate to interrupt the right hon. Gentleman, but he knows what I am going to say: I am not going to trample over anyone—well hardly anyone—this afternoon. I would be grateful if he addressed the Government as the Government.
My sincere apologies, Mrs Laing. You are right to reprimand me, and I apologise. I am talking about the powers that the Government are taking back—the naked power grab that is taking place against the Scottish Government.
The Secretary of State and the United Kingdom Government have made it absolutely clear that, after Brexit, the Scottish Parliament will be much more powerful than it is today. Despite that the right hon. Gentleman continues to stand and spout those views. That is just not the case. Our job is to protect Scotland’s place within the United Kingdom and within the internal market of the United Kingdom. Can he tell me the value to Scotland of the rest of the UK trade compared with the value to Scotland of trade with the EU?
My goodness, that really does demonstrate that they are not getting this. Purely and simply, it is about the powers that are being taken back from the EU that will sit here in Westminster. The Scotland Act is very clear about the areas that are devolved and the areas that are reserved. It comes to this fundamental point: are Conservative Members who have been sent here from Scottish constituencies going to defend the interests of the Scottish Parliament, or are they simply going to go through the Lobby tonight and speak up for London? Are they speaking up for Scotland or for London? That is the question that the Tories face tonight.
I wish to make some progress. I will happily take interventions later.
By supporting the amendment, the Scottish Conservatives would give power over how this Bill impacts the devolved Administration to the Scottish Parliament. I am sure Conservative Members will agree with their colleagues—and their leader—in the Scottish Parliament that our own Parliament should have the ability to debate and effect clause 11 and vote on its inclusion in the Bill.
Amendment 184 is a consequential amendment linked to amendments 164 and 165, tabled by Ian Murray. The SNP’s amendment 184 would support amendments 164 and 165 in changing the definition of devolution issues in the Scotland Act 1998. The SNP will work with Members across this House when and where we can. Our joint amendments show just how serious we are about sending a strong message to this Government. However, it is with regret that new clauses 64 and 65, in the name of the official Opposition, do not go far enough for us on the SNP Benches. It is a concern that new clause 64 seeks to place the UK Government in control of joint frameworks and does not recognise that they should be joint creations of the two Governments.
New clause 65 grants the JMC only a consultative role. That is not good enough for the so-called “nation of equals”. We now get to the heart of the problem with this clause. The European Union (Withdrawal) Bill represents the biggest threat to the devolved settlement since the Scottish Parliament reconvened in 1999. Clause 11 seeks to restrict the Scottish Parliament’s legislative competence over EU law and aims to keep all powers coming back from Brussels, which are under the remit of the Scottish Parliament, firmly in the grip of Whitehall officials. The outrageous way in which this legislation was drafted has united the Governments in Scotland and Wales.
After publication of the Bill, the First Ministers of Scotland and Wales published a joint statement warning against this power grab and stating that the Bill does not deliver on the promise to return powers from the EU to the devolved Administrations. That consensus highlights the extent of the problem with the legislation and the extreme power grab facing the devolved Administrations. We want to keep power where it belongs—in the Scottish Parliament.
The right hon. Gentleman says that he wants to keep the powers where they are. Does he therefore accept that he is saying that the SNP wants powers to come back from Europe to Scotland, and for Scotland to become independent to shove those powers straight back to Europe again? Those are views that ensured that the people of Moray voted for a Conservative, rather than an SNP, representative this time.
I do not appreciate the hon. Gentleman’s tone. We cannot get away from the simple fact that this legislation is trampling over the powers of the Scottish Parliament.
The right hon. Gentleman keeps saying that we are trampling on powers that Scotland has, and I just want to correct him. Regardless of what he thinks of the principle, the position—as a matter of law—is that these powers are now vested in the EU. The Supreme Court said in paragraph 130 of the article 50 case judgment:
“The removal of the EU constraints on withdrawal from the EU Treaties will alter the competence of the devolved institutions unless new legislative constraints are introduced. In the absence of such…restraints, withdrawal from the EU will enhance the devolved competence.”
Is the right hon. Gentleman saying that the Supreme Court is wrong?
The simple fact is that the Secretary of State and others have been asked on a number of occasions to name one power—just one—that will come back to the Scottish Parliament, and they have failed to do that. I do not know whether the hon. and learned Lady has ever read the original Scotland Act 1998, but she seems to ignore the fundamental point of all this, which is that the Scotland Act defines what is devolved and what is reserved. The only powers that are reserved are those expressed in the Scotland Act. It excludes fisheries, agriculture and the environment. I would think better of the hon. and learned Lady, who I know has a background in law, if she actually read the relevant documents. She would then understand exactly why people in Scotland and in Wales recognise this legislation for what it is; it is about taking back control.
On that point, does the right hon. Gentleman agree that, if another region of the United Kingdom were offered “regulatory alignment” outwith the rest of the United Kingdom, it would be a real trampling on the rights of the Scottish people and the Scottish Parliament?
Indeed, although I am not quite sure what the hon. Gentleman is referring to when he talks about regions, because we always say that this should be about an equality of nations within the family of nations of the United Kingdom. The issue of sovereignty has been raised in that context. We should remind the Committee that, although we often hear about parliamentary sovereignty, that does not apply in Scotland because the legal case that prejudices our position is MacCormick v. the Crown in 1953, which established that parliamentary sovereignty is a purely English concept that has no counterpart in Scottish constitutional history. It is the people of Scotland who are sovereign.
A recent survey by 38 Degrees shows that 62% of Scots want the responsibility over devolved areas currently held by Europe to be transferred straight to the Scottish Parliament. That is the settled will of the people of Scotland.
I will give way later.
The Scottish and Welsh Governments have tabled a number of key amendments to the Bill—amendments 164, 165, and 183 to 188—through SNP Members and Labour Members. I am delighted that these amendments have all been selected for debate today, and I will leave my friends to speak to the amendments in their own names. It must be recognised that there is deep disapproval from the devolved Administrations in Cardiff and in Edinburgh about not only how this legislation was drafted, but the extent to which it disrupts the functioning of devolved competences.
During the referendum campaign last year, Scotland was promised all sorts of powers. The Environment Secretary told BBC Scotland that Scotland would get immigration powers with a leave vote. The former Member for Birmingham, Edgbaston promised Scotland powers over fishing and agriculture. But here we are, 17 months after the referendum. There are no new powers for Scotland. In fact, Brexit means Scotland losing powers. [Interruption.] I can hear huffing from the Government Benches. I invite any Government Member to rise now and name one power—just one—that will come back to Scotland as a consequence of Brexit.
At the start of his remarks, the right hon. Gentleman sought to give us feedback from the meeting that I held with the First Minister and Deputy First Minister of Scotland and the Minister responsible for exit. If the right hon. Gentleman had been party to those discussions, he would know that all 111 powers were subject to discussion between the two Governments, and the two Governments will bring forward their proposals in due course. This power grab talk and this naming one power—it is pantomime. What this Government are involved in is the reality of negotiating a way forward on this matter.
I can hear Conservative cheering, but what a waste of time that intervention was. The question was very simple: name one power coming back to Scotland. Once again, the Secretary of State for Scotland, who is London’s man in Scotland—far from being Scotland’s man in the Cabinet—was not able to demonstrate that one single power is coming back to us. It is 17 months after the referendum, and we are no further forward. The clock is ticking, and every single power, as things stand, is coming back to Westminster. That is the reality. The Secretary of State, like his colleagues from north of the border, has failed to stand up and protect Scotland’s national interest.
Is the right hon. Gentleman not just demonstrating how out of the loop he is with his own party, given that the Brexit Minister, Mike Russell, knows full well what those discussions have been about? Secondly, is the position of the SNP at Westminster different from that in Holyrood, because the SNP there has said explicitly that it agrees that agriculture and fisheries are areas where UK frameworks will be needed?
I am surprised at that intervention from the hon. Gentleman. I expressed right at the outset of my speech that we recognise that progress was made, but that progress has not been sufficient to justify the SNP supporting this Bill tonight. The whole point about our position is that we want to see frameworks in place, but we can move forward on that only when the UK Government are prepared to negotiate. Why was there a six-month period when the Joint Ministerial Committee did not meet? If there is any blame in this matter, it lies with those on the Government Benches.
I can tell the hon. Gentleman that there is not a fag paper between the position of the SNP on these Benches and that of our colleagues up the road in Holyrood. We are united, which is more than can be said of the Conservative party, because Ruth Davidson is delivering a very different message from the one that is being delivered by the Conservatives down here. Ruth Davidson recognises the threat to Scotland of being out of the single market and the customs union. The Scottish Conservatives would serve the interests of the people of Scotland if they recognised that there is an economic threat from being outwith the single market and the customs union.
If I may say so, I have sympathy with the point that is being put across—that the way in which the Bill is drafted seems to be excessively stark and to fail to take account of the sensitivities of the devolution settlements. However, I am afraid I cannot join the right hon. Gentleman on the rhetoric, because, ultimately, as a United Kingdom, which is what we are, there has to be flexibility in reaching a sensible way forward in the light of a change in circumstance. If I may gently say so to him, because I participated actively in the debates on the devolution legislation of 1997, it was always acknowledged then that devolution was not just a one-way street; for it to work, we required that flexibility of dialogue between Cardiff, Edinburgh, Belfast and London to reach solutions and not just to get anchored on principles. While I am respectful of the point he is trying to make, I suggest to him that that might be a sensible way forward.
I thank my right hon. and learned Friend, if I may call him that, for that intervention. I always listen carefully to what he has to say, and I think that, in some respects, he makes my point. Way back last December, the Scottish Government published a paper about achieving compromise, and that is the position we have always taken. We fully recognise that we have to get to a situation where we can compromise and where we need to have joint frameworks. The nub of this argument is where the powers should lie when they come back from the EU. It would be far better if they came back to the Scottish Parliament, so that we could agree a framework; as it is, the UK has grabbed the powers and is failing to discuss these matters adequately—not just with the Government in Edinburgh, but with the Government in Wales.
The Bill returns powers solely to the UK Government and Parliament, imposing new restrictions on devolved legislatures. Scotland is getting used to Labour and Tory politicians promising all sorts of things during referendums but never delivering them. It is astonishing that just three years ago the Conservative and Labour parties were telling the people of Scotland that the biggest threat to the economy and EU citizenship was an independent Scotland—“Vote no to protect the UK’s EU membership!” Let us think about that for a minute. Now we are losing our EU membership. The economy is already seeing the effects, inflation is up and the fall in the pound and living standards has been the consequence.
The reality is that Brexit is making us poorer before it even takes hold. Our prosperity is under threat. Meanwhile, the UK Government are attempting the biggest power grab since 1999.
I am grateful to the right hon. Gentleman, whose amendments I will support this evening; I believe the SNP will be supporting Labour’s. In that spirit of consensus, may I probe a little further into what he is saying about the independence referendum? I have still to find anyone who supports independence who can explain to me how they think the EU single market is such a good thing but the UK single market is not.
The answer is very simple: we would not be leaving the single market of the UK. We are hoping to protect the interests of the people of Scotland. The simple matter in front of us at the moment, as identified by the Fraser of Allander Institute, is that we run the risk of losing 80,000 jobs in Scotland if we are outwith the single market and the customs union. A decline in wages of £2,000 per person—that is the reality of the threat. We are seeking to protect the interests of the people of Scotland.
I am going to make some progress.
The enormity of clause 11 has been highlighted by numerous legal experts. Professor Alan Page noted that the Bill proposes a massive increase in the power of UK Ministers to legislate in the devolved areas. Professor Richard Rawlings noted that
“The sooner clause 11 is cast aside, the better.”
Professor Stephen Tierney has noted a confusion around the Bill, made even more problematic by the fact that the interpretation of devolved competence will become an area of constant fluctuation.
In evidence to the Scottish Parliament’s Finance and Constitution Committee in early November, the Under-Secretary of State for Exiting the European Union, Mr Walker, stated that it was “quite possible” that the clause restricting the Scottish Parliament’s competency would be “substantially reduced”. We are having this debate today without any action having been taken. I am deeply disappointed that the Government should have found time to table an amendment on the date of Brexit, but have failed to table anything rectifying the mess they have made of clause 11. The House of Lords Delegated Powers and Regulatory Reform Committee report even concluded that
Secretary of State, why has that not happened?
The problem with clause 11 is not just the power grab. The Law Society of Scotland has raised concerns around the modifying of conferring power by subordinate legislation to modify retained EU law. It highlights that it is not clear what Acts of the Scottish Parliament the new provision will apply to. The Bill suggests that the provision is not intended to be retrospective and will apply only to post-exit Acts of the Scottish Parliament. But what exactly is such an Act—an Act enacted on or after exit day? That would mean that legislation would be required to comply with that restriction even if it was introduced months before exit day and even if it had been passed by the Scottish Parliament before exit day.
Following the mounting pressure, lists of questions and growing criticism, the UK Government brought forward a plan of common frameworks. Although we on the Scottish National party Benches recognise that common frameworks that replace EU law across the UK may be needed in some areas, the competence in matters otherwise devolved should revert to the Scottish Parliament. The scope and content of any UK-wide framework must be agreed rather than imposed. That is the fundamental point. We welcome the Secretary of State’s commitment to that principle.
Although the UK Government have indicated that they wish to develop common frameworks, it is not currently clear how policy within those frameworks might be agreed. The Law Society of England and Wales has called for discussions about where common frameworks will remain and the extent of their scrutiny. Professor Michael Keating has warned of the UK Government creating a “hierarchical model of devolution” through the frameworks. With clause 11 in place, agreement can never be reached, as the price of UK Government demands for an agreement would be reservation of the matter, putting the terms and operation of the common frameworks beyond the powers of the Scottish Parliament. Reading clause 11 leaves me in no doubt of that. Whoever drafted it had absolutely no understanding of the devolution settlements of the Scotland Act 1998.
The Scottish Government have published the 111 powers at risk in clause 11 of being held centrally in London despite falling under devolved competencies. Those powers range from agriculture, to justice, to environmental standards. Devolution has meant the divergence of policy across the UK. The Climate Change (Scotland) Act 2009, passed unanimously in the Scottish Parliament, established Scotland as a world leader in tackling climate change. As the UK Government seek continually to catch up, any holding centrally in London of powers that affect this policy divergence will not only hold back the progress Scotland has made on environmental matters but prevent any legal measures that aim to deliver phased introductions on any proposal.
The confusion around the effect of clause 11 deepens. When asked multiple times, as I have done, to name just one power that is currently coming back, the Secretary of State has not been able to do so. Yet the Cabinet Office says that
“anything” the devolved Administrations
“could do before we leave the EU, they will able to do after we leave”.
The truth is that this Bill does not provide for a single new decision-making power for any of the devolved legislatures. Everything goes to London, and it is for London to decide what ultimately happens to these powers. Where is our sovereignty in all this? Where is the sovereignty of the people of Scotland?
The Scottish Government have been clear that there is no way the Scottish Parliament can grant a legislative consent motion until this Bill is drastically dealt with. If no progress is made today on the amendments tabled in the names of Scottish and Welsh Members, there will be no change in that position. Let me make it clear: we do not want to be in the position of not granting a legislative consent motion. We want to do that, but in order for us to do so, the Government have to respect the powers that should sit in the Scottish Parliament. [Interruption.] Stephen Kerr is saying, “Really?” We have tried to engage in this process constructively; it would be great if the Conservatives would engage in the same way.
Is the right hon. Gentleman genuinely surprised that there has not been progress on some of the reasonable amendments that have been tabled on a cross-party basis, given that the Secretary of State for Scotland himself said to the Scottish Affairs Committee that
“it may be that some amendments can be accepted with a little bit of modification”?
I would have hoped that by this stage the Government would have made more progress on some of the very reasonable amendments that have been tabled.
The hon. Gentleman makes an important intervention. We are 17 months on from the vote and we are at a very important stage of this Bill.
We are trying to negotiate on the basis that we recognise the threats that we are facing. It is incumbent on the Government to recognise that we have to get agreement between the Government in London and the Governments in Edinburgh, Cardiff and Belfast. It saddens me that we are having eight hours’ debate today and will have eight hours’ debate on Wednesday, and the Government’s approach just seems to be that they are listening. How long does it take them to listen, and how long does it take them to respond to the fact that they are trampling over the powers of the devolved Administrations? The Government in Edinburgh and SNP Members are making it absolutely crystal clear that we do not want to be in the position of a legislative consent motion being withheld. We want to make sure that we can strengthen this Bill to the advantage of everybody, but we need to get the position from the UK Government that they are prepared to respect the Administrations in Edinburgh, in Belfast and in Cardiff.
There is a lot of scoffing on the Government Benches. Three Committees of this House have heard evidence about clause 11—the Scottish Affairs Committee, the Exiting the European Committee, and the Public Administration and Constitutional Affairs Committee—and the weight of that evidence from a number of senior, distinguished lawyers from both north and south of the border has been that there are very real concerns that clause 11
“drives a coach and horses through the devolution settlement”.
Those are not the SNP’s words but the preponderance of evidence heard by Committees of this House.
My hon. and learned Friend makes a strong case. That is why the Government should listen to her, and to the other reasonable voices that have spoken this afternoon and at other times. The Government have to recognise that they are playing with the powers that have been established under various Scotland Acts, and that is not right. The evidence is there from academics and from the Select Committees of this House that have made judgments on the matter, and the Government have a responsibility tonight to reflect on it. They must not push the matter into the long grass and say that they are listening; they have to show that they are prepared to take action.
I will sum up, because I know that many others want to speak. With the overwhelming evidence from experts in the legal profession showing how flawed clause 11 is, the best thing the Government can do is to accept that the Bill needs to be fundamentally amended. They can do that this evening, by accepting the joint Scottish and Welsh Government amendments. Common frameworks will not prevent the imminent constitutional crisis that clause 11 will create. The Government must change this Bill.
I am grateful to have the opportunity to speak, as a Scottish Conservative MP and as a member of the Scottish Affairs Committee, on what I believe is being termed devolution day. I draw Members’ attention to the Committee’s—in my biased view—exceptional report, which our Chair, Pete Wishart, may well highlight at some point. The report was unanimous, and it draws on huge amounts of common ground between Scotland’s two Governments. That suggests that despite some histrionics, consensus exists on this area of the Bill, and that consensus will enable us to improve the Bill.
We must recognise that the debate takes place in the context of active, and now constructive, talks between the UK and the Scottish Government. That makes it a little difficult to debate the words on the page, because there are so many moving parts, but I will focus my remarks on where I believe clause 11 needs to end up and the route that the Scottish Conservatives envisage for getting there.
As has been addressed, several provisions of the Bill fall within the scope of the Sewel convention; in other words, the Scottish Parliament and Welsh Assembly have been asked to give their consent to the Bill. The Scottish and Welsh Governments have signified that, unless the Bill is substantially amended, neither will recommend that consent be given. The UK Government’s position is, I believe, the right one. They are committed to working to obtain a legislative consent motion and expect to achieve one.
As Scottish Conservatives, we are committed to ensuring that the Scottish Parliament can give its consent to the passage of the Bill. As Members may not all be aware of the timescale, I will explain that the plan is for the Scottish Parliament to vote on whether to grant a legislative consent motion ahead of the Third Reading of the Bill in the other place. It is not an all-or-nothing event; it is perfectly possible for an LCM to be initially denied, and then for another vote on granting an LCM to be taken and passed at a later date.
Although, as readers of The Daily Telegraph will be aware, I have a number of issues with the Bill, by far the biggest concern regarding devolution is clause 11. It is my view that if we can fix clause 11, most of the other issues regarding the Bill’s impact on devolution will fall away. On Second Reading, I said that I would not allow legislation to pass that undermined the Union or the devolution settlement, and that remains my position today.
There are 111 powers currently exercised at EU level that do not fall within reserved competence under the Scotland Act 1998 and are therefore, under the scheme of the Act, devolved. Clause 11 will effectively hold those powers at Westminster level. Although that is a sensible interim measure, as the Scottish Affairs Committee heard in evidence during its enquiry, the interim phase has given rise to the “power grab” melodrama that we have heard from the SNP.
If the hon. Lady will bear with me, I am coming on to talk about that.
Clause 11 provides that the 111 powers that I have mentioned will be released to Scottish Ministers on a case-by-case basis once UK Ministers are satisfied that it is safe to do so. There is no timescale for that, and the process is unilateral. Under clause 11, the powers, once repatriated from the EU to the UK, are for UK Ministers to exercise or to devolve, as they see fit.
The hon. and learned Lady and I perhaps have different definitions of what is interesting.
Ostensibly, amendment 164 and the consequential amendment 165 to schedule 3 are in the names of Opposition Members, but they have in fact been tabled on behalf of the Scottish and Welsh Governments. This distinction is important, and Ministers should be mindful of it. The amendments would turn clause 11 on its head, repatriating all 111 powers directly to Holyrood. Brexit must be delivered in a way that respects devolution, but it would plainly be contrary to the interests of the United Kingdom as a whole for the devolved Administrations in Edinburgh or Cardiff to be able to use powers formerly held at EU level to pull apart Britain’s three centuries old internal market. The fact that Britain is a single employment market, with no barriers of any sort on the movement of people, goods or services is core to the case for the Union.
I absolutely agree, but the point is that the amendments proposed by the Scottish and Welsh Governments go far too far. There is some middle ground, on which, if the hon. Gentleman will allow me, I will set out where I believe we can get to.
Some of the hon. Gentleman’s Conservative colleagues have proposed their own amendments on other areas of the Bill. Why has the Scottish Conservative group of MPs not tabled any amendments to clause 11 if they share his concern?
For the simple reason that there is another JMC meeting on
Much has been devolved since 1998, but nothing that jeopardises the UK’s single internal market. It would be in the interests of neither consumers nor producers for product safety and consumer protection rules to be different across the nations of the United Kingdom.
I am going to make some progress.
These rules are now uniform throughout the UK and many, but of course not all, should remain so after Brexit. Amendments 164 and 165 go too far and are dangerous to the Union. Frankly, I am startled that Scottish Labour—only one Scottish Labour MP is here—and Scottish Liberal Democrats are prepared to support these amendments, which could so fatally undermine the integrity of our Union. The Scottish Conservatives will not support them. However, I want to make it clear that my vote with the Government should not and must not be taken as an acceptance of clause 11 as it stands.
I am astonished. Does the hon. Gentleman not agree that continual discord, arguments about the constitution and a perceived threat to the powers of the Scottish Parliament are more of a threat to the United Kingdom than anything proposed in any amendment in Committee today?
Does the hon. Gentleman not accept that the principle of the Scotland Act 1998 was that what was not reserved was devolved? These powers could easily go to the devolved nations, which could then sit around the table. Their voices would then be heard properly in any national framework, and they would not simply be told what it would be.
If the hon. Lady was listening, she will have heard me say that I agreed that that was the purpose of the 1998 Act. I am coming on to say explicitly that clause 11, as drafted, is not fit for purpose and must be changed. It does not need to be tweaked a little; it needs to be amended and replaced with a new version. However, I do not consider now to be an appropriate stage in the process at which to demand a new draft to be brought before the House.
I fully accept that this issue is linked to active conversations tacking place between Governments, and I share my hon. Friends’ concerns about the fact that introducing new drafting to reflect where I believe we need to, and should, end up—indeed, where we will more likely than not end up—would pre-empt what are now and are expected to continue to be fruitful negotiations between the UK and Scottish Governments. I am prepared at this stage to give the UK Government the time and opportunity to take forward these matters, on the clear understanding that both sides need to move from where they now are on clause 11. We are beginning to see movement: we can see it in the constructive JMC (EN) talks, the next meeting of which will be on
I ask the hon. Gentleman to seriously consider what he has just said. He said that most of the 111 powers are technical and regulatory. Is he aware that the list affects huge swathes of our justice system in Scotland? Does he consider our devolved justice system and separate legal system to be simply technical and regulatory matters?
Order. I am always grateful for the help of Gavin Newlands. Thank you very much. Mr Masterton must have a chance to answer the point made by Ms Cherry before we have any further interventions, although there will probably be another one in a moment.
Again, I draw the attention of Joanna Cherry to the fact that I said that most of the 111 powers are technical and regulatory. They cover areas either where divergence in policy between UK and Scottish Government Ministers would not be a threat to the integrity of the UK internal market, or where consistency could be maintained through non-legislative options. Those powers should be devolved to the Scottish Parliament on exit day, or as close to it as can safely and realistically be achieved.
In respect of those powers where there is a legitimate UK interest in uniformity across the UK—that is, where divergence between the nations of the UK would be contrary to the UK’s interests—it would be unsafe to allow them to be devolved without providing for constraints on how they may be used. It is in those latter cases that we will need common frameworks, a concept accepted as necessary by UK, Scottish and Welsh Ministers. Aspects of agriculture and fisheries are among the examples where it has been accepted that there will be a need for common frameworks.
As confirmed to the Scottish Affairs Committee by the Secretary of State for Scotland, if the frameworks are to be acceptable to the Scottish and Welsh Governments, they will have to be negotiated and agreed, not imposed top down by the UK Government. That suggestion is fairly straightforward. Each of the 111 powers will either fall to be wholly devolved to the Scottish Parliament, or the UK will step into the shoes of the EU, replacing an EU-wide framework with a new UK-wide framework, for which administrative competence will largely rest with the Scottish Parliament.
Although we will not seek to amend clause 11 at this stage, we will, in exchange for supporting the Government on amendments 164 and 165, require confirmation from Ministers that they will expedite discussions with the Scottish Government further. We seek quick progress, looking ahead to the next JMC (EN) in December and into January, and in any event certainly before the debate on Report.
My focus at this stage is very much on the framework negotiations running parallel to this debate, but I ask that the UK Government give me the assurances I seek that they will move forward urgently through the JMC (EN) with, first, identifying and agreeing areas where there is a need for legislative common frameworks; secondly, recognising that the other powers can be devolved immediately on EU exit, including as many of those where non-legislative solutions on maintaining consensus have been agreed; and thirdly, settling how the common frameworks will be agreed. I expect an assurance on the first two issues to be given by the debate on Report, and if the third has not been given by then, I expect clear and significant progress to have been made.
In time, clause 11 will need to be replaced to reflect that, but I recognise that its final form will be linked to the points I have listed, so I do not ask for, or expect, that change to be made now. Looking ahead, once agreement is reached on where frameworks are needed and how they will be agreed, I believe that clause 11 should include a draft default setting, so that the power would be held by UK Ministers until a common framework is agreed. Crucially, however, that default setting could apply only in areas where it was established that there should be a common framework and the mechanisms to reach agreement on a framework have failed.
A lot of work needs to happen between now and then, primarily on moving the frameworks on through the JMC (EN). That is why my focus will stay on that for now. I say again, however, that my vote against amendments 164 and 165 tonight is conditional and must not be taken as support for clause 11 as it stands.
What action will the hon. Gentleman take if amendments 164 and 165 are not passed and his demands do not come to pass? Would it not be more sensible to just support the amendments?
No, because I do not believe that amendments 164 and 165 provide the position in which I think clause 11 could and should end up. I have been very clear—I said this on Second Reading and I have said it again tonight—that I will not support a Bill that undermines devolution and does not respect the integrity of the Union. I do not think I could have been any clearer to Ministers.
I consider my argument to be reasonable, pragmatic, achievable and, crucially, acceptable to both of Scotland’s Governments. There is much at stake. If the steps I have outlined are not completed, the consequences are quite simple: LCMs will not be granted by the devolved Administrations and the other place will not pass the Bill. I genuinely believe that that is not a situation in which any of us want to find ourselves, and I look forward to receiving the necessary assurances from the Minister in his closing remarks.
I pay tribute to Paul Masterton for his contribution. His sensible approach to the Bill shows that, while we may not reach a consensus across the parties on some of these issues, we can make the Bill better, which is why we are here. The dogma with which the Government have approached the UK’s withdrawal from the European Union and the Bill will shape many aspects of how the UK operates for generations to come. I wish that more Members had the attitude of the hon. Member for East Renfrewshire as the Bill goes through Parliament.
The hon. Gentleman wants assurances about amendments 164 and 165, which I tabled, but I say gently that the best way for him to get them would be for him and his colleagues to wander through the Lobby with the Opposition tonight and put the amendments in the Bill. That would ensure that Ministers would get the message that the current drafting of clause 11 is incorrect.
I shall speak to amendments 164, 165, 177 to 181, and 189 to 195, all of which I tabled. I appreciate that many are consequential to my main amendments, 164 and 165, and that a number will be for decision on another day. Amendment 42, which was tabled by my right hon. and hon. Friends on the Opposition Front Bench, is much better drafted than mine—I wish I had said that two weeks ago in the customs union debate. It will probably be the one that is carried as it covers Northern Ireland, which I missed out because of the constitutional difficulties there.
I would like to take a few moments to pay tribute to the former Member for Lanark and Hamilton East, Jimmy Hood, who died last night. We send his wife, Marion, and his wider family all our very best thoughts and wishes in the days to come. Jimmy was a close friend of mine and of this House. He was a great source of advice, and indeed fun, particularly in the Tea Room. Perhaps I should move on to the amendments before I tell any of those stories from the Tea Room, as they may not be over-appropriate for this Chamber.
Two weeks’ ago, in the debate on the Ways and Means motion with regard to the customs union, I put it to the Scottish Conservatives that all Members in this House try their very best to represent the views of their constituents, and of those in our wider geographical areas, including our nations of Scotland, Northern Ireland, Wales and England, as well as the wider United Kingdom. The Conservative party’s leader in Scotland trumpeted the outcome of the 2017 general election in Scotland by heralding it as 13 Scottish Conservative Members of Parliament coming to this House to stand up for and to defend the interests of Scotland. In the context of the Bill, the only Scottish Conservative Member to do that so far—he has demonstrated it today and in previous votes—is the hon. Member for East Renfrewshire. One therefore has to ask: are the Scottish Conservative MPs here under the flag of the Scottish Conservative leader, Ruth Davidson, or under the flag of the Whips Office of the UK Government? I suspect it is the latter.
That is absolutely the case. That is why there are 13 Scottish Conservative MPs and only seven Scottish Labour Members. Indeed, a number of my colleagues are in their place on the Conservative Benches, whereas the hon. Gentleman seems to be the sole Scottish Labour Member in the Chamber. I think that the Scottish Conservatives are doing well in standing up for Scotland.
I think the hon. Gentleman has just demonstrated that he will be voting with the UK Government Whips this evening against the wishes of the Scottish people and against the will of the Scottish people expressed in the referendum. When Ruth Davidson is asked about the 13 Scottish MPs, she always says that they are here to fight Scotland’s corner, but it is quite clear that they are not going to fight Scotland’s corner on these clauses.
I wish briefly to mention new clause 65, which relates to the Joint Ministerial Committee. I have long tried in the House to strengthen the case for the JMC. One of the key aspects of the original Smith commission, which was established on a cross-party basis following the independence referendum in 2014, was to strengthen intergovernmental relationships so that such issues could not occur. I was disappointed, however, during our 2015 deliberations on the Scotland Act 2016, when the Government rejected our amendments aimed at strengthening that relationship. The conclusion of many commentators is that weak intergovernmental and inter-parliamentary working is causing some of these problems.
In his final report, back in 2014, Lord Smith of Kelvin said:
“Throughout the course of the Commission, the issue of weak inter-governmental working was repeatedly raised as a problem.”
That has been a common thread throughout many of the documents we have seen. The Public Administration and Constitutional Affairs Committee, which produced a report on clause 11, mentioned at great length how impenetrable and difficult it was even to determine what the JMC was discussing, what its final conclusions were, and when it was meeting. Its meetings are sporadic, and when a committee is private and produces minutes that are very sparse, the politics take over. It is clear that the UK and Scottish Governments, being different colours—blue and yellow—will never agree in the political sphere, so the JMC is diluted to a political argument and unable to achieve what it is trying to achieve.
I intervened on my hon. Friend Jenny Chapman, during her wonderful speech to talk about the minutes of the JMC. The October minute from the JMC was two pages long. One and a half pages dealt with who attended and who provided apologies, and there was then a skeletal explanation of what was discussed and no real conclusions. The JMC has to be put on a statutory footing along with the parameters required to make it transparent to the public and this House. That is why we should support new clause 65, as it would give us some understanding of the processes of the JMC.
We are heading for a constitutional crisis. We have a Conservative party threatening the very fabric of the United Kingdom just after the people of Scotland decided that the UK should stay together. We have the farce of today’s events: first the Prime Minister and the Downing Street spinning that a deal is close; then, with the Prime Minister barely through her soup with Donald Tusk, Downing Street backtracking as quickly as possible from those briefings; and then, with one phone call, the leader of the Democratic Unionist party, who controls the Government—the de facto Prime Minister—pulling the rug from underneath the feet of the Prime Minister, who then turns her back on something that it was thought had been negotiated and agreed.
Thank you, Mrs Laing. If I may, I will respond to what the Taoiseach said just by saying I am surprised that he is disappointed, but not surprised that he is surprised.
With specific reference to the amendments, particularly around the importance of joint ministerial consultation on a number of matters, does my hon. Friend wonder, like me, whether the First Minister of Wales, the First Minister of Scotland and indeed the Mayor of London, whom we have heard speaking out, were in any way consulted on the potential terms that were being offered in the negotiations in Brussels today?
That is my point about the constitutional crisis we are in. It seems that the only way to follow the discussions between the UK Government and the EU is on Twitter. Journalists seem to know what is happening before hon. Members. We are getting a running commentary from the Government through press releases, but there is absolutely no proper consultation with the devolved Administrations.
I am glad that the hon. Gentleman thinks I might have something interesting to say as I know that he always has something interesting to say. On the general point, I do not think that anybody should get their news constantly from Twitter. Specifically on the amendments, is not the key point that we must show discernment and skill and not fall for the spin, whether that comes out of Dublin, London or Brussels? Let the negotiations run and let us see what comes out of them at the end.
I could not agree with the hon. Gentleman more, but why not bring some of that to the House, rather than leaving it for commentary on Twitter? Journalists following the Prime Minister seem to know much more about what is happening than anybody in the House. If the Prime Minister were to fly home—Ministers can get back from foreign countries very quickly, as was demonstrated over the summer—come to the House and let us know what was going on, we would not need to stand here and speculate. The hon. Gentleman made an intervention about regulatory harmonisation. I think he let the cat out of the bag when he mentioned that the DUP was firmly against regulatory harmonisation in the island of Ireland, and that is why this is so important across the rest of the UK.
Has my hon. Friend noticed that the Minister who has apparently been briefing Conservative Members has just appeared in the Chamber? Perhaps he could give us some answers about what has been going on in Brussels today.
Order. No he cannot. We are discussing new clauses and amendments to the Bill, not what people are seeing on Twitter. If the Prime Minister has anything to report to the House, I am sure that she will come at the earliest opportunity to give such a report.
I am grateful to you, Mrs Laing. I apologise to the Committee for digressing, but these are incredibly important matters—and actually they are directly connected to my amendments, because they about keeping the devolved Administrations informed and involved in the process.
The hon. Member for East Renfrewshire said he was seeking reassurances. What we have seen since lunch time should give him cause for concern that no assurances will be forthcoming, which is why we must put in the Bill the requirement that the Government keep the devolved Administrations properly informed. This is about not just the devolved Administrations, but the people they represent.
Does the hon. Gentleman not accept that his amendments would allow every single one of the 111 powers to be immediately devolved from day one, with no constraints, and that they would therefore enable all the devolved Administrations to do whatever they wanted, meaning that we could have divergence from day one? He believes in continuity and maintaining similarities between the four components of the UK. Does he not understand why his amendments would be dangerous to the integrity of the UK’s internal market, given that from day one the four component parts of the UK could go off and do whatever they wanted?
I will answer that directly when I talk about the Law Society of Scotland’s possible options. We could devolve everything and then put agreements in place, if the JMC and intergovernmental relations worked properly. There are therefore several other options, and it is not just me saying that, but many of the organisations that have commented on the Bill.
Will the hon. Gentleman clarify his amendments? Is he suggesting that some parts of the UK should be treated differently from others? Should London have a different and better deal than, say, Cardiff, Edinburgh or Belfast? Should not we all, as UK subjects, be treated the same?
I agree that all parts of the UK should be treated similarly, which is why I have always championed the UK’s staying in the single market and the customs union. That would allow us to leave the EU while keeping the regulatory harmonisation required—the very regulatory harmonisation that the hon. Gentleman railed against just a few moments ago—and keeping the UK single market operating within the EU single market.
On the question of where power actually lies, we know that many farmers voted leave, yet I know, having attended a National Farmers Union meeting on Friday, that the idea of farming and hill farming in Scotland being controlled from here is something they consider anathema. Given the failure to pass on the convergence uplift in 2013-14, they are frightened about farming powers being here.
These are complex discussions and issues, but the key principle is that any power devolved under schedule 5 to the Scotland Act 1998 should be devolved. No one is saying that everything should be devolved at one minute past midnight—or whenever we leave the European Union—but these discussions must take place by means of intergovernmental processes, and the principle should be that there should be devolution at the point at which powers come back from the EU, when it is possible for that to be done.
Does the hon. Gentleman accept that if the powers are devolved without a framework having first been established, whether we are talking about a European or a UK single market, that principle could not be applied, because powers would be devolved to four different Administrations who could then make whatever regulations they wanted? How does the hon. Gentleman marry that with the need—the recognised need, as he has pointed out—for a UK single market? Surely the framework should first be set, with the remaining powers then devolved to the Assemblies.
But that assumes that we automatically start from the position of hoarding the powers here at Westminster, and I disagree with that principle. The principle must be that when a power is currently devolved to the devolved Administrations, that power should remain devolved—it is very simple. I accept that Members might not agree with that principle, but it is fairly sensible. My amendment 164 would merely remove from section 29(2)(d) of the Scotland Act 1998, on legislative competence, the words “or with EU law”, meaning that everything else would have to be compatible with the Act.
The hon. Gentleman mentioned the hoarding of powers at Westminster. One of the biggest problems that I see with clause 11 is that, ultimately, Scottish Ministers will not be able to amend retained EU law, potentially for an indefinite period, although UK Ministers will. That is completely against the word and spirit of the devolution settlement.
It is against the spirit of the devolution settlement, but it is also against the spirit of the referendum that we heard about earlier. The Scottish people, the Welsh people and the Northern Irish people voted for devolution.
There is no doubt that clause 11 is using a sledgehammer to crack a nut. There are many other ways of legislating that would allow a transition on day one that would respect the devolution settlement. The Law Society has put forward such options. As the leader of the SNP said, the way in which the Government are using clause 11 is clear. There is no sunset provision and no timetable is attached. There is no list of powers, and there is no indication of when certain powers should be given priority. There is no commitment to intergovernmental working and there is no real commitment to devolution. We were diverted to today’s discussions in Brussels because that is part of the disrespect for the devolution settlement in this country, which is why the process has become so difficult.
Does the hon. Gentleman also acknowledge the disrespect that the Taoiseach has shown for the people of Northern Ireland? He has said that he now speaks for them, but the Democratic Unionist party and other elected parties do not. Is it not time that he knew that when it comes to Northern Ireland, democracy and the political process, the power lies here in the Chamber? It certainly does not lie with Leo Varadkar, the Taoiseach of the Republic of Ireland.
We may be being diverted from the point again, but I think that the Committee, the country and anyone who happens to be watching our proceedings will see that the three members of the Democratic Unionist party who are sitting in the Chamber are the real Government. They are dictating the terms of Brexit—and Jim Shannon is doubtless the de facto Secretary of State for Exiting the European Union—in terms of the power that they have over the Prime Minister.
As I said earlier, it is clear that between courses this afternoon the Prime Minister has gone from a negotiated agreement to a set of texts to throwing it all in the bin alongside any leftovers from lunch. It is clear that the DUP—10 Members of Parliament from Northern Ireland —are holding the Government to account and holding them by the neck, because it is much more important for the Prime Minister to hold on to power than it is to do what is the best interests of all our nations.
The hon. Gentleman talks a very good game for defending the Union, but the fact is that the leader of the SNP in Scotland, Mrs Sturgeon, and the Mayor of London have been very quick to start talking about how they would like divergence and special deals, which would completely wreck the union of the United Kingdom.
I normally say that I am grateful for interventions, but in this instance I will refrain. I do not think that the question of how many members of how many parties are in the Chamber at any particular time is relevant. What is relevant is ensuring that Members are in the Lobby tonight. I hope that 13 of the hon. Gentleman’s Scottish Conservative colleagues will go into the Lobby with us to change the Bill, because that is what is important. This is about voting, not about talking and then doing nothing.
The hon. Gentleman is giving a very good speech, but he is not giving a speech in support of his own amendments; he is giving a speech in support of a middle ground between the positions of the UK Government and the Scottish Government. Does he not understand that his amendment would devolve everything from day one, with no constraints, thereby enabling all four constituent parts of the UK to do whatever they wanted? That is not the Labour position, and it is bonkers.
It is funny that the hon. Gentleman now calls my position bonkers after seeking assurances that amendments 164 and 165 would be carried by the Government to ensure that clause 11 became much more appropriate. Perhaps he will intervene again and tell us exactly what he meant, because I am confused. He seems to want to support my amendments, not to support my amendments, to seek assurances, to vote with the Government, and to back Ruth Davidson. I am not sure where he stands.
The hon. Gentleman does not seem to have read his own amendment. I do not want either clause 11 as it stands or clause 11 as suggested by the Scottish and Welsh Governments, because both go too far. We need a middle ground, and that means knowing what the position will be in relation to powers. We do not seem to be too far apart, but the hon. Gentleman is intending to vote for something that he is not arguing for.
I do not wish to be disrespectful to the hon. Gentleman. I know that he is new to this place, having been elected in June 2017. However, he could have tabled his own amendment to do what he wants to do. He has the cheek to stand in the Chamber and criticise my amendments, and say that he wants to seek assurances from his own Government, but he does not have the gall to table his own amendment.
That highlights one aspect of the debate. Scottish Conservative Members are happy to bluff and bluster in the Chamber, straight from the Alex Salmond playbook, but when it comes to putting their money where their mouths are, they will walk into the Lobby with the Government in order not to deliver what they fundamentally believe should be delivered. I look forward to the hon. Gentleman’s tabling a raft of amendments on Report to ensure that clause 11 becomes a much better clause, and I look forward to his being influential with Ministers to ensure that those amendments are carried.
Is it not the case that the reason why my hon. Friend and I—and, indeed, a number of Members on both sides of the House—had to work together to table the amendments, with the support of the Welsh and Scottish Governments, is that the Bill is deficient in so many areas, and needs to be fixed in so many areas before we can even consider allowing it to proceed, and before the Welsh and Scottish legislatures will give their consent?
Absolutely. I think that it comes down to the word “trust”. Many reports on the Bill come down to whether or not the devolved Administrations trust the UK Government to deliver what they are attempting to deliver in the Bill, and I do not think we can trust them to do that. The Law Society of Scotland has argued that the Bill should be revised because clause 11 has no transitional basis: it is an open-ended provision that could last forever. We could see Ministers in Cardiff, Edinburgh, Belfast and, indeed, Whitehall arguing about the minutiae of the detail rather than getting on with the job in hand, for political purposes. We have seen in the House, in respect of every single aspect of devolution, that when it comes down to the politics, it is the people who lose out and the politics that try to win out. We should be very wary of that while we are debating this Bill.
I thank my hon. Friend for giving way again. He is being very generous. Does he agree that this is relevant to an example that has been set in relation to so many issues, including the issue of the Agricultural Wages Board? We do not want case after case to end up in the Supreme Court, with vast amounts of taxpayers’ money being spent and the UK Government fighting the devolved Governments over matters on which they have the clear competence.
Absolutely. We could become involved in a constitutional battle with no end in sight. The Institute for Government, which I am sure is respected by Members on both sides of the House, has said that the Bill
“has exacerbated the already serious tensions between the UK and the devolved Governments”, and we see that day after day. The Repeal Bill Alliance concluded:
“By returning all EU power to Westminster against the wishes of Scotland and Wales, the EU (Withdrawal) Bill is an attack on the principles of devolution.”
So time and again Committees of this House, independent bodies and respected bodies tell us that this Bill is deficient, is a power grab by the Government, and could be done in a different way.
“The overall concerns regarding the devolution aspects of the EUW Bill arise from the constitutionally insensitive nature of the UK. Government’s approach”.
I am trying through these amendments to take away some of that constitutional insensitivity, so as to be able to get to a place where we can be much more comfortable that the Government will do what they said they would do.
The Brexit Select Committee and its well respected Chair, my right hon. Friend Hilary Benn, have also produced a report on the Bill and found that
“the devolved administrations have insufficient trust in the process for agreeing these future relationships and have, accordingly, indicated that they will withhold legislative consent from the Bill.”
That is an incredibly serious issue, because the Scotland Act 2016 put the Sewel convention on a legislative footing that means the UK Government should not be legislating in devolved areas unless the Scottish Parliament, or any of the other devolved Administrations, pass a legislative consent motion. They are saying they will withhold an LCM as this Bill is currently constituted, which would mean we end up in yet another constitutional difficulty with regard to whether this Bill will even be passed.
What will the UK Government do? They will ride roughshod over the constitutional settlement, over the Sewel convention, and over the Scotland Act 2016, in which the convention was put on a statutory footing, in order to get this Bill through. But if they were just to work cross-party on clause 11, and, indeed, with some of their own Members from the Scottish Conservatives, they might get to a place that we could all support and respect.
It is worth working through some of the alternative solutions put forward by the Law Society of Scotland, particularly for the hon. Member for East Renfrewshire, who is desperate to find an alternative to this clause. The society is not saying that any of these solutions takes preference over the others; it is merely proposing some of the different ways this could be done to make it less constitutionally insensitive. One of them is:
“Repeal the EU law constraint and amend schedule 5 to re-reserve specific competences to the UK level to enable UK Government to establish common frameworks.”
That would, essentially, allow us to devolve the vast majority of the competences coming back from the EU, and, with agreement, reserve some of the more complicated issues as may be required, agriculture being one that has been mentioned.
The society’s second alternative suggestion is:
“Replace the cross-cutting EU constraint with new cross-cutting constraints, for example to protect the UK single market and/or to comply with international obligations. These might be more or less extensive than the EU law constraint in practice, but would have the benefit of (a) an underpinning principle and (b) catering for unforeseen cases.”
I am not advocating any of the suggestions, but it is worth airing that there are alternatives to clause 11 in this Bill.
Another of the society’s suggestions is:
“Repeal the EU law constraint leaving EU competences to fall as determined by schedule 5” of the Scotland Act 1998,
“and any new common frameworks to be established by agreement between the UK Government and the devolved administrations.”
That provides a direct answer to the hon. Member for East Renfrewshire. We could devolve everything, but come to an agreement with regard to some of the UK-type frameworks and common frameworks that might be required.
Alternatively, we could:
“Adopt the provisions in the bill on a transitional basis only and subject to a specific cut-off date. At the expiry of the transitional period, powers in devolved areas would revert to the devolved legislatures, unless specific alternatives had been put in place.”
Indeed, we could clearly mix and match from the four alternative solutions from the Law Society of Scotland, but this goes back to the fundamental principle of trust—to the fundamental principle of whether the UK Government and devolved Administrations are truly working together to seek a solution or whether the politics of this trumps the solutions that might be required. That is why we should pass the Opposition Front-Bench new clause on the JMC.
I have proposed these amendments to try and take the edge off this Bill. We are heading into a constitutional crisis. The Conservative party has left this country out of the EU and is risking the constitutional framework of the UK. The question that cannot be answered by this Government is the same question that the Members of the SNP cannot answer, but in reverse: why are the EU single market and customs unions so important—as I believe they are, and on which we see the issues with regard to the island of Ireland—but the UK single market is not? Likewise, I say to the Conservative party, how can they have stood on a platform in the 2014 Scottish referendum saying that removing Scotland from the UK single market would mean a hard border, customs checks and no free movement of people from Scotland into England, and defending that principle, but do completely the opposite in terms of the island of Ireland now? We cannot have the single market and customs union principles on one hand, and then discard them on the other because it suits our political ideology.
It is clear that having a frictionless, seamless border between Northern Ireland and the Republic of Ireland while not staying in the single market or the customs union is utterly impossible to achieve. I say that because I was persuaded by the arguments the UK Government made back in 2014 that removing Scotland from the single market of the United Kingdom would require a hard border at Berwick.
The hon. Gentleman keeps referring to the single market of the United Kingdom. Does he agree that what we have in the UK is a unitary market, because we do not have four separate states, but instead have a union of four separate nations? What the EU has is a single market, which is a regulatory alignment of sovereign states. We do not have that in the UK; we have a unitary market. Will the hon. Gentleman use his language more carefully, please?
That is legal semantics. I can buy an animal in Edinburgh and sell it in London, crossing the border with it in the back of my car—not that I would do so, as that would probably be illegal, but this is just to highlight the point—and do that in one single market, and not have any customs checks or transfer paperwork, apart from the legal paperwork required, and I could also do that across the EU. Outside the legal semantics, the point I am making is that the SNP says the EU single market is a good thing, and I agree, but says the UK single or unitary market is a bad thing, and I disagree. We also have the Conservative party saying that the UK single market is the most wonderful single market in the world, and I agree, but it is also saying that the EU single market is a bad thing and we must come out of it, but we can keep all the benefits of that at the same time.
The crucial difference between the single market and the unitary market is that in the single market there are at present 28 sovereign states who meet together to make their rules from the top down, whereas in the UK’s unitary market the rules are imposed from the United Kingdom. This supports the hon. Gentleman’s argument, because his argument, which I agree with, is that these frameworks across the UK should not be imposed from the top down, but should grow up organically from the bottom.
We have just had a bombshell there; the hon. and learned Lady has just told us that she wants to stay part of the UK. That is what we can surmise from that intervention, and I completely agree with her that the best way for Scotland, and Wales, to thrive is to stay part of the UK. Indeed, in my view, the best way for the UK to thrive is to stay part of the single market and customs union of the EU, and all of these issues would therefore fall away, because we would not need clause 11, because we would not need the framework in place to be able to put UK frameworks together, because we could stay within the frameworks that are already in place. It is strange that we will spend a significant amount of time in this Chamber, in the Committee Rooms of this House, and in all the devolved Administrations discussing frameworks that we already currently have.
The Government strategy is that they want every benefit they currently have from the EU while not being a member of the EU. I suggest that if the Government want to achieve that, they should stay in rather than wrench themselves out. That would resolve all the problems, and would have saved the Prime Minister lunch this afternoon, because they would have had a very straightforward solution to their problem.
I will not press my amendment to a vote if those on my Front Bench are going to press amendment 42, because they are very similar in nature. My Front-Bench colleagues’ amendment is much more technically efficient than my proposal, and we know that technically ineffective amendments tend to be criticised. I will therefore support my Front-Bench colleagues’ proposal, and finish by saying that the simple solution for Northern Ireland, Scotland and Wales would be to stay in the single market and the customs union.
Sir David, thank you for calling me at this stage of the debate.
To be fair to Joanna Cherry, I think she was chafing against the Act of Union, which, as she correctly described, established a unitary market. The Act of Union banned tariffs between Scotland and England and established the free movement of goods.
I commend the use of the word “trust” by Ian Murray, which he used regularly, but I question whether he is in fact doing much to promote trust, as this debate needs to do. He talked about heading into a constitutional crisis, but I think he did so to create a sense of distrust.
I was also disappointed when the hon. Gentleman questioned the motives of my hon. Friends who represent Scottish constituencies. One could suggest that people in glass houses should not throw stones. I do not know which part of the Labour party he represents, but they come in diverse characters these days. Is he in that part of the party that supports its leadership, or the part that is trying to get rid of it? Is he part of Momentum or against it? I do not know whether he is living in fear of deselection. The one thing we do know about him, however, is that he is subject to the Labour Whip. It is not unusual for members of a governing party to be subject to a single Whip, but I think he undervalued the highly significant speech made by my hon. Friend Paul Masterton.
My hon. Friend made it clear that his support for the Government on this issue “should not and must not be taken as an acceptance of clause 11 as it stands.” That demonstrates the fact that, while my hon. Friends representing Scottish constituencies take the Conservative Whip, they demonstrate an independence of mind and work with their colleagues in the Scottish Parliament, whom I met recently on a visit to the Scottish Parliament, along with Scottish Conservative and Scottish National party Members, to discuss clause 11. My hon. Friend also made it clear that the legislative consent motions might not be granted for clause 11 as it stands.
We all accept that the Gina Miller case made it clear that the requirement for legislative consent motions in the devolved Parliaments would not effectively block the passage of the legislation in this House, but it has created some constitutional tension. My hon. Friend pointed out that the progress of the Bill is likely to be somewhat impeded by the absence of legislative consent motions from Holyrood and Cardiff, and from Northern Ireland if the Assembly is operating there. This is an important message. It demonstrates that the devolution that Labour said it was promoting when it gave us devolution has turned into a very different constitutional reality—
I am sorry, I did not realise that I was saying anything particularly provocative—[Interruption.] Yes, there was a referendum, but the constitutional reality has turned into something much more federal in character than the proponents of the original legislation told us it would be.
I do not want to detain the Committee for long. I have chosen to speak in the debate because I am the Chair of the Public Administration and Constitutional Affairs Committee, which is looking at the relationships between the four Governments and Parliaments of the United Kingdom. We issued a report on inter-institutional relations earlier this year, in the previous Parliament, and we issued an interim report just last week on clause 11. That followed meetings that we held in Edinburgh, which will be followed by further meetings in Cardiff and Edinburgh, and if we can get to Northern Ireland, we will. What was striking about the meetings in Cardiff and Holyrood was how little this kind of interchange takes place, how slenderly we know other individuals in other Parliaments throughout the United Kingdom, and how there are no formal mechanisms for proper exchange between the four Parliaments of the United Kingdom. What a shortage that is!
This debate is less about leaving the European Union and more about devolution. It is about reconciling competing narratives of what devolution in the United Kingdom has come to mean, and about dealing with the lack of trust we have inherited from the present devolution settlement. The debate about clause 11 reflects that.
Usually, when devolved powers are going to be legislated for in this House, there is a great deal of discussion, large numbers of papers are produced in all parts of the United Kingdom and eventually, a piece of legislation emerges with a degree of consensus around it. This Bill emerged in much shorter order. We are told that there was very little discussion about the contents of clause 11. This underlines how, under strain, the reflex of our constitutional habits is not to consult. We in the United Kingdom Parliament, and those of us who support United Kingdom Governments, in the plural, have to recognise that there is a serious gap in our capability to discuss, explore, befriend and understand each other throughout the United Kingdom.
I am interested in the point the hon. Gentleman is making, but is it not the case that the UK Government consulted very little with Members of all parties across the House during the preparation of this Bill after the referendum? Does he agree that that was a massive mistake?
The hon. Gentleman has been in this House for quite some time, and he should be used to that by now. That is the way in which Governments have tended to behave. Yes, we have tried to improve things. We now have pre-legislative scrutiny, for example. I did not vote for the Lisbon treaty, which put article 50 into the treaties. I did not vote to have a two-year time limit on the negotiations on leaving the European Union. I suspect that the hon. Gentleman did vote for the Lisbon treaty, however, so I think he should take more responsibility than I should for the time constraints under which we are now operating.
What is unusual about this Bill is that it followed a referendum that means we are going to leave the European Union, and there are splits in both the major parties on this issue. The right approach would have been for the Government to consult much more widely on how this legislation should be taken forward. The reason that it is in such a mess at the moment is that the Government are allowing a small coterie to dominate the conduct of the process, rather than consulting the House as a whole.
I do not accept that the Bill is in any kind of a mess. I think that we ought to keep the effects of clause 11 in proportion. From the perspective of the Government—and, in reality, from the perspective of what actually happens in Scotland, Wales and Northern Ireland—the clause is a status quo measure. The powers, while not reserved by the Scotland Acts, were reserved by virtue of our membership of the European Union, so there is no power grab. If the hon. Gentleman wants me to, I can quote from the evidence that the Committee received from Mr Nigel Smith. He was the chairman of Scotland Forward, which ran the pro-devolution campaign in 1997. He stated:
“Nobody who voted for the Scottish Parliament exactly twenty years ago need worry—there is no ‘power grab’ underway.”
We did receive countervailing evidence. Incidentally, the report we published last week is an interim report. We produced no conclusions or recommendations, but we wanted to surface and discuss many of the pieces of evidence that we have received and make them available for this debate.
Perhaps more relevant to keeping clause 11 in proportion, Professor Alan Page was commissioned by the Scottish Parliament to analyse the effect of leaving the European Union on the devolution settlement. Paragraph 5 of his paper states:
“The main conclusion that emerges from this analysis is that most existing EU competences are reserved to the UK Parliament.”
He also says in paragraph 6:
“The policy responsibilities that would fall to the Scottish Parliament are correspondingly few”.
We need to keep that in proportion.
The main conclusion of Alan Page’s work, with which I am sure the hon. Gentleman is more than familiar, is that clause 11 proposes a hierarchical version of devolution whereby this place has all the central powers. I am surprised that the hon. Gentleman does not know that, because that was the main conclusion. Clause 11 creates a hierarchy of devolution under which, for the first time, this place has control in asserting its sovereignty, and Scotland would fall far under the radar. I am surprised that he is not familiar with that work.
The hon. Gentleman will be surprised no longer, because my next point is that the manner of clause 11 reflects a lack of sensitivity on these matters. Clause 11 suggests that there will be no time limits on the retention of powers and no process for the discussion of how powers should be handed over. There is only consultation through the JMC, which meets sporadically, and there is no statement of long-term aims for where the powers should eventually lie.
Returning to the hon. Member for Edinburgh South and his comments about trust, we should be asking how we can build some trust. The great gap in the devolution settlement, as it exists, is that it is based on a binary notion of what devolution means: power is either reserved or devolved. In fact, most decentralised systems of government have shared competences. The EU itself operates substantially on the basis of shared competences and, paradoxically, it is leaving the EU that is exposing the flaws in the devolution settlement. There are so few mechanisms for dealing with shared competences—virtually none.
I do agree, but the number of times that the JMC and its sub-committees have met formally is few. Months can go by with no meetings, and then a Whitehall Minister will say, “Ooh, we should have one.” That does not inspire confidence. Perhaps the JMC should have fixed diarised formal meetings every year, because there would be things to discuss whether or not a Minister of the Crown here actually thinks there might, and that would give people an opportunity to get to know each other better.
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.
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.
I hear the hon. Lady’s impatience, but we need to be more patient. We are not completing the consideration of this Bill this evening, and I am encouraged by the work done by the First Secretary of State, who chaired the last meeting of the Joint Ministerial Committee and seemed to be drawing people together around some agreed principles for how joint frameworks might be approached. We all want to see that, so let us hope that that work will continue.
The hon. Gentleman was mildly critical of the Welsh First Minister for using rhetoric, but the rhetoric in that relationship came from Prime Minister David Cameron, who said that he wanted to follow a respect agenda but then failed even to have a meeting with the First Minister. May I also correct the hon. Gentleman on something? Ministers actually know each other very well at the moment and met extremely frequently prior to the introduction of this Bill. The problem is that UK Ministers ignored the advice that they were getting from both Scottish and Welsh Ministers, which was that something like clause 11 would be utterly unacceptable.
The better we know each other, the more we will forgive each other for the rhetoric. That is what I found when my Committee went to Edinburgh on a semi-formal visit. Ronnie Cowan and I, as Chairman, had some open and frank discussions about some difficult issues with people I had never even met before, but we of course found that there was lots of common ground.
My next point is that there are no inter-parliamentary arrangements. We had to scrabble around for a bit of budget to do the trip. We found it in the end, but there needs to be a habit of people in this Parliament interacting much more openly and frequently with our counterparts in the other Parliaments. For example, the Environment, Food and Rural Affairs Committee and the Business, Energy and Industrial Strategy Committee have competences that are shared by Committees in different Parliaments. Those Committees should be meeting regularly together. Another suggestion worthy of consideration is that there should be some formal inter-parliamentary council in the United Kingdom to allow representatives of all four Parliaments to meet on a regular basis on some kind of neutral ground.
The Good Friday/Belfast agreement set up many inter-parliamentary institutions, both east-west and north-south. The hon. Gentleman talked about trust. How does he think that trust has been helped by what we saw this morning, with the Government saying there would be a deal on the border in Ireland and the Prime Minister then having to come out of lunch because the DUP either had not been consulted or had not agreed to the arrangements? What does it do for both Unionism and nationalism in Ireland when such things happen? Frankly, it looks as though the Government are in chaos, do not know what they are doing and, in pursuing it, are undermining the whole peace process in Northern Ireland.
Sir David, am I to be tempted to enter a debate on today’s negotiations, or should we wait until tomorrow, when perhaps someone will come to tell the House something about what has been going on?
A formal inter-parliamentary council that meets on a regular basis would be another opportunity for parliamentarians to understand each other better.
Does the hon. Gentleman acknowledge that there is an inter-parliamentary council? The British-Irish Parliamentary Assembly, which obviously includes the Government of the Republic of Ireland, provides an opportunity for parliamentarians to get to know each other. Perhaps it would be useful if, as the Chair of the Select Committee on Public Administration and Constitutional Affairs, he were to be a member of that Assembly. On today’s issues, does it not show that we have a Prime Minister who is in office but not in power and a DUP that is in power but not in office?
I am endeavouring to raise the tone of this debate, and obviously I am not succeeding with certain Opposition Members.
My final suggestion goes to the heart of what clause 11 is about. I mentioned that, in previous discussions about devolution, there has always been a Silk commission or a Calman commission. There has always been a body that has deliberated, drawn out the more controversial politics and tried to make the discussion more objective. I wonder whether there is a case for the Government convening some kind of standing commission, under the scrutiny of a joint group of parliamentarians, to dispassionately look through the powers returning from the EU that intersect with the devolved Parliaments and Assemblies in order to determine what powers should lie where, both immediately as we leave the European Union and in the longer term.
At the moment, I am afraid my criticism of clause 11, as it stands, is that it does not give any assurance about process or much assurance about consultation, time limits or sun-setting. It just sets out this static proposal.
I will not give way again. I have said everything I want to say.
My Committee is continuing its inquiry. If any right hon. or hon. Member wants to have their say, they can always submit evidence to our Committee.
On a point of order, Sir David. I am not sure whether you were in the Chamber earlier, but Mr Speaker made it clear when asked that the Prime Minister intended to make a statement to the House tomorrow about the negotiations and discussions she has been having with the DUP and Europe.
I gather that Downing Street is notifying the press, not this House, that there will be no such statement tomorrow and that the Prime Minister does not intend to make a statement. Is there any way you can make sure that Mr Speaker is aware of this and, for that matter, that Downing Street is fully aware that if we are taking back control—I thought that was the whole point—this House should be kept fully and appropriately informed of the negotiations at every stage?
It is a pleasure to follow Mr Jenkin, who I commend for his thoughtful speech and for how his Committee has sensitively considered some of these issues. We have seen the interim report, and I look forward to the full conclusions. My hon. Friend Ronnie Cowan is a member of the Committee, so the hon. Member for Harwich and North Essex has more than able deputies to back him up.
I rise to support the amendments variously tabled on behalf of the Scottish and Welsh Governments in the name of my hon. Friends and other hon. Members. The key point is that where we are going requires cross-party attention, support and consensus, but it also requires cross-institution support. The efforts to try to resolve some of the difficulties in clause 11 not just in this Chamber but, to give them credit, in Committees, in the other place and in the Scottish Parliament have to be noted. We are starting to see progress on concluding some of these conversations and discussions. This debate will help us to move things on.
I will address the main point but, by way of context, we have to acknowledge that clause 11 is flawed. It does not work, it is unsustainable and it is not in line with what we understand about the devolution settlement. The clause has to be amended. There are very few people in this House who would get to their feet and try to defend it, because it is unworkable and does not respect what we understand as the principles of devolution. In fact, clause 11 turns the central principles and tenets of devolution on their head; it drives a coach and horses through everything we understand about the devolution settlement.
The central tenet of devolution is straightforward and simple. The basic concept is that if something is not listed as reserved, it is presumed to be devolved. That was the founding principle of devolution way before the Scotland Act 1998. It goes back to the days of the Scottish constitutional convention. In fact, it goes even further back to the days before Donald Dewar was even knee high to a parliamentary grasshopper—that is how far back our institutional memory goes when it comes to devolution.
Does the hon. Gentleman agree that the danger of clause 11 is that it seeks to replace Scotland’s relationship with the EU with Scotland’s relationship with the UK? It is important for the Government to set the tone on how they intend to proceed on an equal basis with the devolved Governments.
The hon. Gentleman is, of course, absolutely right. I will address some of those issues. He is spot on that there is an imbalance in how everything is repatriated. The repatriation of the powers is the central feature that concerns us.
Devolution is an elegant solution. Devolution in this country is asymmetric, with the different Parliaments and Assemblies having different powers. The United Kingdom is a complex constitutional nation, and we have designed devolution to meet the demands of a complex, multi-nation United Kingdom. We therefore muck around with the basic premises and principles of devolution at our peril, which is why clause 11 presents such a clear danger and threat that it must be amended.
It is also important to say that Scotland did not vote to leave the European Union. Every single local authority area in Scotland voted to remain in the European Union. I now have constituents who are very concerned about the chaotic cluelessness at the heart of the negotiations and discussions about taking this country out of the European Union. The Scottish Parliament has become collateral in all those conversations and discussions. There is real concern about how our Parliament will operate and about the powers it has the right to expect and to progress with.
Does the hon. Gentleman agree that the secret to the Government’s thinking on this Bill is in the fact that they are insisting on including a date for withdrawal from Europe but that they refuse to include a sunset clause to give us a date when the powers they are about to grab from Wales, Scotland and Northern Ireland will be repatriated?
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.
I congratulate the hon. Gentleman on making a very positive contribution to this debate compared with the speech we heard earlier from 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?
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—
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.
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 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”—
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.] 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 Angus Brendan MacNeil for this analogy. He is not in place, but I hope he will join us later with his words—
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.
I will give way to the hon. Gentleman just to shut him up for a bit.
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
I am grateful for the hon. Gentleman’s intervention, as always, but I do not recognise his view of the way things are progressing. If he will forgive me, I will make some progress and we will look at some of these issues once again. I am not going to satisfy him on these matters and his intervention has certainly not reassured me about the general progress that we have to make.
Let us get back to more of a consensual tone, because I note from the hon. Gentleman’s irritation that I may have been a tad too political in some of my remarks. I look around and I see my colleagues from the Scottish Affairs Committee on the Conservative Benches. I am genuinely grateful for the contribution that they have made. We have designed a way forward in our recommendations and observations that might help to resolve this issue. Resolution is what is required, and I think we all agree that we can find it. Although our recommendations do not directly match what is in the amendments, they are roughly in the same territory.
I think that we all agree that a framework should be agreed and not imposed. Looking around, I think that we are all agreed on that one. That is good. I think that we agree that the UK Government should not legislate on areas of competence devolved to the Scottish Government. Perhaps there is not so much agreement on that one. It genuinely disappoints me that Conservative Members still believe that it is right for the UK Government to legislate in areas of devolved competence. I am looking at the ministerial team, hoping that they will reassure me that that is not what they are seeking to do. No, I am not getting that either. We will leave that there. We were doing well and making a bit of progress, but perhaps that is a step too far. That is the difficulty that we are starting to encounter.
I am pretty sure that Ministers do not share my characterisation of the process, so I will be interested to hear what they say. I am interested in how they will describe the repatriation of devolved competences straight to the United Kingdom, instead of to the devolved Assemblies and Parliaments where they should be; how we will come together to agree the common frameworks, working together in a spirit of consensus—all the warm, cuddly things that the hon. Member for Harwich and North Essex suggested he wants—instead of having them imposed; and then some sort of process of redistribution through Orders in Council and all that sort of stuff. It is disappointing that we cannot hear that.
Amendments 164 and 42 would ensure that the UK Government had to consult and secure the agreement of the devolved Administrations in this context, so they roughly match what I have said. Indeed, they roughly match what the Secretary of State for Scotland has said. This is a really good quote from when he came before the Scottish Affairs Committee:
“A UK framework is not a framework that the UK Government imposes;
it is a framework that is agreed across the United Kingdom.”
That is the approach that we need to hear more of, and we need to see how that works out. I very much support the cross-party amendments that were tabled on behalf of the Scottish and Welsh Governments, which are mainly in the name of Ian Murray. I appreciated his comments today.
I am sorry to say to Labour Front Benchers that we cannot support new clause 64. I know that it is the lead new clause, but we will abstain because it suggests that the frameworks should be designed by the UK Government; not that they should come together with all the devolved Assemblies and Parliaments. Unfortunately, we cannot side with Labour on that. I hope that it withdraws that new clause. I am looking at Matthew Pennycook. Please withdraw it because it is not helpful. We need all the parties in this House to work together. The presumption that the UK Government will be responsible for initiating the frameworks is not acceptable to us.
I do not even think that that is acceptable to—I am looking at Welsh colleagues—the Welsh Assembly, which the Labour party runs. I am looking at Stephen Doughty. He will have to tell me whether the Welsh Government are absolutely happy about the UK Government designing frameworks.
He is saying that it is, so I will accept that.
Does the hon. Gentleman accept that the amendments he is discussing do not reflect the recommendations of the Scottish Affairs Committee and go further than those recommendations? Does he therefore understand why we as Scottish Conservatives are not in a position to support those amendments? It is not about talking Scotland down or being whipping boys for the Conservative Government, but a recognition that that is not the agreeable position where the Scottish Affairs Committee landed?
I am grateful to the hon. Gentleman, because I said that. I said that the amendments do not directly match our recommendations, but that they are in roughly the same territory. I think that he will agree with me about that. He is right that they do not match.
Yes, of course—as long as I am hearing from the Welsh Government.
The hon. Gentleman gives me more power than I currently have. I refer him to the detail of new clause 64. Subsection (3) states:
“Ministers of the Crown shall only create” these frameworks with the advice and consent of the devolved Administrations. We put that forward with the aim of securing their agreement. It relates to the wider discussion and to the other amendments about the Joint Ministerial Committee. I do not think that we should be doing things on a UK-wide basis without their consent. Unfortunately, that is exactly what the Government are doing.
It speaks about consent, but that leaves it to Ministers of the Crown to create the UK-wide frameworks. That is not acceptable.
Absolutely, but that is not the intention of the new clause.
It is shame we are in this position, because the Scottish Government and Welsh Assembly amendments, which all appear in the name of the hon. Member for Edinburgh South, were very clear in their focus and direction. Why Labour Front Benchers felt they had to come along and table new clause 64, I will never understand, but I leave it up to them. I have explained to them why we cannot support it this evening and I think they understand that reason. Let us leave it at that.
Lastly, I turn to my Scottish Conservative colleagues, ever so gently. [Interruption.] No, I think they have entered into this debate with a degree of consensus. The speech by Paul Masterton was very thoughtful and well delivered. However, this is a big test for them tonight. The devolution settlement is at stake. These are critical decisions that we must take. They can believe Ministers, but I do not know what reassurances they have received that this will resolved. I have worked with Scottish Government colleagues and they have told me that progress has been made, but nothing is decided. The best way to get progress and to ensure that there is total focus from Ministers is to vote for the amendments. That will tell them clearly that all of us across this House say that something has to be done.
I was starting winding up, but I give way one last time.
I want to be absolutely clear about the new clause, because it says clearly:
“Ministers of the Crown shall only create UK-wide frameworks if they have consulted with, and secured the agreement of, the affected devolved administrations.”
It is very, very clear. I agree with the hon. Gentleman that we should be working across parties as much as possible, but there is really no need to split hairs. That is very, very clear.
I do not know what part of that line the hon. Gentleman does not understand:
“Ministers of the Crown shall only create UK-wide frameworks”.
It does not talk about anybody else. I will leave that there. It is unfortunate. I do not know why Labour Front Benchers could not have come to us and had a conversation about it. We could have put forward our concerns. We could have come together consensually, as we have been doing quite a lot, and worked something out, but unfortunately that was not the approach they wanted to adopt. That was up to them.
Back to my friends in the Scottish Conservative party—I feel like I have neglected them now. This evening is a test for them. The future and the principles of the devolution settlement are up for grabs this evening. They can trust these guys here—the Ministers—trustworthy though they may be, to do the right thing. Perhaps they have received assurances that the Government are going to do all these things and that everything is going to be all right.
What is not acceptable—I know most of my Scottish Conservative colleagues and friends are new to this place—is for this to go to the unelected House of Lords to be amended. That is what increasingly this Government are doing. They do not like to accept amendments in this place, which is a democratic outrage. This House, which we are all elected to by our constituents, should be the exclusive place in which these things are resolved and fixed down. If those Tories think that we should resolve these really important issues in a place that is full of unelected donors and cronies and failed Members of Parliament—I am thinking about the guy who opposed me in the Scottish Parliament and who managed to get himself in there and a role in the legislature—then that is their view, not mine. When we have debates about such critical issues, we owe it to our constituents to ensure that it is we who decide and determine them and not those in another place, which is unelected.
I hope that the Scottish Tories are right—I am looking round now and can see that they have full confidence that this will be resolved and fixed down—but the one way that they can definitely guarantee that they will get their way is to vote. That is what we do in this House: we vote on issues that we agree on and support. For the sake of the devolution settlement and to ensure that we get some sort of solution to everything that we need to get fixed, they should back us tonight, stand up for Scotland and make sure that these amendments are passed.
I will speak to the measures that relate to Scottish devolution, particularly clause 11, which we have heard so much about during this debate. However, before I do so, I want briefly to talk about my role in this process, and indeed that of other Scottish Conservative and Unionist Members here and in the Scottish Parliament. Our job is to ensure that the Bill is in a form that will ensure that the Scottish Parliament can give its approval through the legislative consent procedure. It is fair to say that without a legislative consent motion, the Brexit process will shudder to a halt and create a constitutional crisis. It is therefore imperative that the consent of the Scottish Parliament is achieved.
No, I just want to make a little bit of progress.
Although I do not support the amendments proposed by the Scottish and Welsh Governments—I will try to outline my reasons why—I do think that the UK Government need to do more to find a way forward with the devolved Administrations. The leader of the SNP here, Ian Blackford, completely misjudged the tone of the debate. Peddling lines about “power grabs” when the complete opposite has clearly been stated to be the case really was staggering. Moreover, I was astonished that the hon. Members for Edinburgh South (Ian Murray) and for Edinburgh West (Christine Jardine) seemed to be supporting the Scottish Government’s amendments, which would do so much harm to the integrity of the UK internal market and to Scotland’s place in the United Kingdom, given that so many of their voters voted overwhelmingly for Scotland to remain part of the United Kingdom in 2014.
It is my colleagues on the Government Benches who have made the Scottish Parliament as powerful as it is today. The Scottish Secretary has given a guarantee that, after Brexit, the Scottish Parliament will have even more powers. The problem with the amendment that the hon. Lady intends to support is that it goes too far. It would harm the internal market of the United Kingdom and undermine Scotland’s place in the United Kingdom. I do not believe that that was what the voters of Edinburgh West or of Edinburgh South voted for when they voted for their MPs, with their Unionist credentials, back in June.
I just find this debate absolutely ironic. We talk about the power of the devolved Assemblies at a time when one individual, in a quick phone call with the Prime Minister, can scupper the whole policy and the whole plans for devolution. Nobody from the Democratic Unionist party is in the Chamber to argue their case. DUP Members will go into the Lobby to vote, but they will not come here to argue their case. That is the shame of this debate. There is no parallel between what is happening in Northern Ireland, and what is happening in Scotland and Wales.
The hon. Lady should perhaps look at last week’s discussions between the Secretary of State for Scotland and the Deputy First Minister for Scotland about how powers should be divided between this place and the Scottish Parliament. I believe that genuine progress is being made, but we should not rush it.
I am very grateful to the hon. Gentleman for allowing me to correct his inaccurate record. He talked about my constituents in Edinburgh South. I should know them better than he does, and they voted 68% to 32% to keep Scotland in the United Kingdom. There is no greater defender of that United Kingdom than me, but perhaps he would like to reflect on the fact that the danger to the United Kingdom is Brexit and English votes for English laws. He stood on a manifesto saying that he would not only maintain the single market and the customs union, but enhance them.
I am grateful to the hon. Gentleman for that point. I will leave it to him to explain to his constituents why, by pressing his amendment, he will be putting at risk Scotland’s place in the United Kingdom. The amendment would damage the internal market of the United Kingdom and Scotland’s place in the United Kingdom. We are not supporting it because it goes too far. As my hon. Friend Paul Masterton explained, we want to amend the Bill, but we will not do so if it puts Scotland’s place within the United Kingdom at risk. The amendment tabled by the hon. Member for Edinburgh South would do that, and that is something that we will be reminding his voters of.
I come to this debate as someone who was disappointed with the result of the referendum in 2016, but I am also a democrat. We need to accept the result and move on to ensure that we get the best outcome possible for Scotland and the United Kingdom. SNP Members would do well to show a degree of acceptance of that, too. They have been on the losing side of two referendums in recent years, but they seem to be unable to accept the result of either.
Our job now is to deliver Brexit smoothly and in a legally coherent way. That is why the Bill is so important. It is horrifically complicated—I expect that most people in our country do not really understand what it is all about—and it could affect many aspects of our everyday lives, particularly in constituencies in parts of our country that are also governed by devolved Parliaments and Assemblies. Rather than focusing on the detailed wording of each clause, my approach has been to focus on outcomes. What do Scottish residents living in the border communities that I represent want to achieve from this process? What do Scottish farmers believe to be important? What do Scottish businesses and traders want from leaving the EU? What do our fishermen want to see on the other side of Brexit day? Ultimately, they all want as little disruption as possible. They want to be able to trade, move, and work within Scotland’s most important trading partner—the rest of the United Kingdom.
Given the concerns that the hon. Gentleman is raising about many issues and the complexity that he is describing, is he not surprised to hear that, in recent moments, the statement that the Prime Minister was due to give to the House tomorrow about the negotiations and these matters of devolved Administrations has apparently been cancelled? The Prime Minister will not be coming here. Does he not agree that she should come to this House to explain just what is going on with these negotiations?
I am grateful to the hon. Gentleman for his intervention. I will not get involved in a running commentary on what he has been reading on Twitter. I look forward to hearing what the Prime Minister has to say when she is ready to speak to us.
My priority from Brexit is twofold. My first priority is to protect the integrity of the UK internal market, which is worth four times more to Scottish businesses than that of the European Union. The other priority is to get the best possible access to the EU market. That, I believe, is also the priority of SNP colleagues, although there are differences over how we define the word “possible”.
The amendments proposed by the Scottish and Welsh Governments would, I believe, put the United Kingdom internal market at risk, which is why I cannot support them. By automatically devolving powers, they would place unnecessary barriers to trade between Scotland and the rest of the UK, our largest market. While accepting the need for common frameworks, the Scottish Government’s approach seems to be that everything should be devolved on day one and there should then be a process of trying to re-reserve powers to Westminster at a later date once we know what trade agreements require a UK-wide approach. That approach would bring an extra layer of uncertainty at an already uncertain time.
Does not the hon. Gentleman agree that these powers have already been devolved? We are talking about powers coming back that have already been devolved, rather than something fresh and new.
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.
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?
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.
But does the hon. Gentleman accept that this is not just about how well Scotland’s two Governments are talking to each others? It is also about Wales and Northern Ireland—it is about each devolution settlement. We should not expect the situations in Wales and Northern Ireland to be dependent on the outcome of talks between Scotland’s two Governments.
I want to make a little bit more progress.
I completely reject the Scottish Government’s unhelpful narrative in the early stages of this process—we have heard it from some who have spoken today—that there is a power grab. No powers that are currently exercised by the Scottish Parliament will be reserved to the Westminster Parliament. Every decision that the Scottish Parliament could have taken before Brexit will still be possible after March 2019. The Scottish Parliament will, in fact, be given greater powers as we leave the European Union. This Bill maintains the current powers of the Scottish Parliament. It merely replaces the restriction on legislating contrary to EU law with the restriction on legislating contrary to EU retained law.
I am beyond confused by the hon. Gentleman’s assumption that we would reserve the powers that come back from the EU here on the basis of trade deals. Stephen Kerr is shaking his head, but John Lamont did say that the powers would be reserved based on trade negotiations. As a Welsh MP, I want to know whether the hon. Member for Berwickshire, Roxburgh and Selkirk is saying that this British Parliament is to forfeit Welsh lamb in favour of Trump’s chicken. Will he clarify what he means by the powers being reserved based on trade?
My comments relate to the UK-wide framework agreements, on which I thought there was cross-party agreement. We need the framework agreements to protect the integrity of the UK internal market’s operations. As we progress out of Brexit, we will enter into trade deals with other countries, and it is important that the United Kingdom as an entity can offer one approach—common standards—in those negotiations. That will be good for Scottish business and for our constituents, and it is one reason why the framework agreements are so important.
I just want to make a little more progress.
The UK Government have made it crystal clear that clause 11 is temporary until powers can be devolved. It is simply wrong to suggest that the Bill is some sort of power grab by Westminster. I suggest that this is just another chapter in the SNP’s book of grievance politics.
The hon. Gentleman makes a point about the power grab, but he needs to understand that this phrase is not just used by the SNP. As I said earlier, it was first used by the former British Prime Minister, Gordon Brown. Government Members have been surprised that I am quoting Gordon Brown, but the Conservative and Unionist party needs to understand that all the Scottish parties—apart from the Conservatives—are united in their desire to protect the devolution settlement. The hon. Gentleman is describing what he hopes will happen, but clause 11 will not enable that to happen, because it involves top-down imposition, rather than organic upwards agreement.
The hon. and learned Lady is misrepresenting the Scottish Conservative and Unionist party’s position. We are completely committed to devolution. We have delivered more powers to the Scottish Parliament than any other party in this Chamber and we will continue to do so after Brexit. It is completely disingenuous to suggest anything else.
On a point of order, Mr Crausby. The hon. Gentleman has used the word “disingenuous”. We have already heard from the Chair once today that that word ought not to be used about another hon. Member. I very much hope that the hon. Gentleman is not suggesting that I am being disingenuous. We might disagree, but I am not being disingenuous. I invite him to withdraw the comment.
I will learn, Mr Crausby, and I am happy to withdraw the remark.
The hon. and learned Lady said that the Scottish Conservative and Unionist party was in some way not supportive of devolution, which is just not the case. She has given me the opportunity to repeat my point: this party has delivered more powers to the Scottish Parliament than any other party in this Chamber, and it will continue to do so after Brexit.
No; I think I have heard quite enough from the hon. and learned Lady this evening. Despite the rhetoric of the Scottish National party, the opposite is in fact true, as the UK Government and the Scottish Government are relatively close to reaching an agreement.
Does my hon. Friend agree that it would be of better service to all our constituents if we dialled down the rhetoric and looked closely at the positions that we all hold? We all agree that we need some common frameworks, and we all agree that the JMC and bilateral negotiations are the right way to make progress. Does he agree that we need to let the negotiations progress so that they can inform future changes to the Bill?
My hon. Friend is absolutely right. Both sides agree on the need for common frameworks. As I listened to the Scottish Government’s Michael Russell and the Secretary of State for Scotland speaking yesterday, it was clear that significant progress has been made in the discussions between the two Governments, which is to be welcomed.
I also welcome the clear statement from the Secretary of State for Scotland that the UK Government’s default position will be devolution in policy areas that are already devolved, and that common frameworks must be agreed, not imposed on the devolved Administrations. The problem with the SNP’s demands is that they would rush a complicated process. I do not support an arbitrary timetable for listing what will be devolved and what needs to be dealt with on a UK basis until that has been agreed between the two Governments. I hope that we can proceed in a constructive way to achieve that. Although the Government are right to take their time, we do need further clarity from them on such matters during the progress of the Bill. In particular, we need more information about the areas in which common UK-wide frameworks are likely to be required.
Finally, it is absolutely not constructive—internally and within the EU—to have the threat of a second independence referendum hanging over the Brexit negotiations. We have seen the front pages of the Scottish press this morning, with the First Minister again talking about the case for independence. I see some SNP Members nodding enthusiastically. This is creating an extra layer of uncertainty for businesses in Scotland and making the task of negotiating with the EU even more difficult.
It seems as if the hon. Gentleman is coming towards the end of his speech. Before he does, will he clarify a matter for the Committee? Is he is saying that if something is part of a UK-wide trade deal, it will remain reserved to this place even though it is devolved under schedule 5 to the Scotland Act 1998?
If the two Governments agree that a power is required for the framework, that is the type of power that will have to be retained. That will protect the integrity of the UK market and allow our country to do trade deals with other countries of the world, but it will be an agreed position. That is why the discussions between the Scottish Government and the UK Government are so important. That is why I have said throughout my speech that I believe significant progress has been made to get to this point, which I certainly welcome.
I urge the SNP to put the national interest first and to work more constructively with the UK Government to achieve what we all want, which is the best outcome for Scotland and the United Kingdom from leaving the EU. I look forward to working with my colleagues in the UK Government to ensure that this Bill works for Scotland and for my constituents in the Scottish borders.
In the past few weeks, we have spelled out many reasons why this Bill will leave the UK worse off in terms of human rights, workers’ rights, animal rights and environmental protections. However, it is designed to leave our devolved Governments and Parliaments worse off too.
I entirely agree with the speech my hon. Friend has made so far. [Laughter.] I am sure I will agree even more as it develops further. She talks about the devolved Administrations, but is the truth not that this Bill also denudes this Parliament of powers through a number of Henry VIII clauses?
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.
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.
I think we are seeing the beginnings of a constitutional crisis right now actually. [Interruption.] I will go on to explain if 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.
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.
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.
I am most grateful to the hon. Lady for giving way—I know she is trying to get on with her speech.
Yes, we published the conclusions of the last Joint Ministerial Committee in our report because they, I think, do show the good faith of the Government. However, I also understand why people have doubted the good faith of the Government—because clause 11 is so bald, if I may say so. We need reassurances around clause 11 that do not necessarily change the substance of it but give assurance that there will be a process and a timetable. That would certainly be a good step.
I thank the hon. Gentleman, and I agree absolutely that we need far more information on how the common frameworks will be agreed, the timetable for agreeing them, and what is involved in the processes.
But the very fact that there is no timetable surely gives weight to the argument that what we are seeing here is a crude power grab.
I thank my hon. Friend, and I completely agree. That is what I am saying in my speech—that this is an absolute power grab to the centre and away from the devolved Administrations.
My hon. Friend is being extremely generous in giving way.
Could we take a practical example of what will happen? The Welsh Government have wisely introduced a law on presumed consent for organ donation—it is settled, and it has saved 40 lives. The United Kingdom Government have not introduced such a law, and England has lost 400 lives. Scotland is in the process of introducing such a law, but the power it has to do that is being grabbed back here. Will that kill people in Scotland? That is an example of this legislative paralysis, which is taking away Scotland’s powers to do something that is much needed.
Absolutely. I completely agree. That just shows that what we have here in a number of policy areas is a constitutional crisis emerging and the UK Government acting as the Government of England, not the Government of the UK, leading to a number of possible conflicts of interest when it comes to imposing pan-UK structures.
Secondly, it is crucial that Welsh Ministers and the Welsh Parliament are responsible for correcting and amending all areas of EU law that are devolved. Restricting involvement means taking away powers that have been devolved for 20 years and creates an inequality between the nations of the UK, as has just been described by my hon. Friend Paul Flynn. That endangers the proper functioning of any UK single market—one of the main aims of this Bill.
We have seen the mess the Prime Minister is making of these negotiations, and we have seen the mess today. She is held to account by a small minority party—the DUP—and we have seen that this afternoon in the negotiations. A hard Brexit or no deal would seriously challenge devolution, as well as risking the Union. As a devolutionist who wants the UK to stay together, I think these issues are likely to cause the UK to begin to unravel. The UK Government must take responsibility.
Finally, the UK Government know they cannot win this. They may be able to whip their Members here in the House of Commons, but they cannot whip their Members in the Lords. Those Members are determined to expose what this Government are doing and will not let them off lightly.
Like the hon. Lady, I represent a constituency in a devolved part of the United Kingdom. Many in the House believe that clause 11 should be amended and have put their point to the Government, but will she work constructively with the Government and be specific—not fan the flames of nationalism, which we all know are at play and could undermine our United Kingdom?
As the hon. Gentleman knows, I am not fanning any flames of nationalism; I am talking about democracy in this place and the democracy of the UK. The Welsh Government have tried on many occasions to negotiate with the UK Government. That has not been possible, so we have the opportunity to vote with our Front Bench on these amendments.
My hon. Friend makes the point that Conservatives with constituencies in devolved parts of the UK should vote with us this evening. The Welsh and Scottish Governments have been saying for years that the JMC should be put on a statutory footing. That would build trust between the Government and the Welsh, Scottish and Northern Irish legislatures. Does my hon. Friend agree?
The Government will probably see the error of their ways as the Bill passes through the Lords and they lose there. My advice is that the Government should avoid any more embarrassment: listen to our devolved nations and amend the legislation before it is too late.
I will make some progress, if I may. Voting remain was a leap of faith that I could not take. I am not here to call for chaos; in fact, it is crucial to the short-term success of Brexit that we disengage from the EU with as little disruption as possible. That is why I support the Government’s plan for a time-limited implementation period after exit day. It is also why I support the Bill, which ensures that the statute book will continue to operate normally on exit day. We have a whole future ahead of us in which to use the controls that we will gain from Brexit to reform the laws and regulations in agriculture, fisheries and so on. At present, the focus should be on ensuring that the process of Brexit runs smoothly. The Bill recognises that.
For me, that approach extends to our devolution settlement in Scotland. We all expect the Scottish Parliament to become more powerful as a result of Brexit, but it is vital that we have secured common frameworks that ensure that the Union continues to function properly after Brexit. The Scottish Government, I hasten to point out, agree—and I commend them for that.
I call on both of Scotland’s Governments to come to a quick agreement. Scots deserve clarity in advance about exactly which powers will rest with Holyrood and which with Westminster after Brexit. The amendments to clause 11, proposed by SNP, Labour and Liberal Democrat Members, do not help that process. Clause 11 preserves the current devolution settlement.
One of the hon. Gentleman’s colleagues has just said that he wants specifics about clause 11, while another says that the Conservative party respects the devolution settlement. Can the hon. Gentleman explain what it is about amendment 72—
“This section shall not come into effect until…the Scottish Parliament…the National Assembly for Wales…and…the Northern Ireland Assembly has passed a resolution approving the provisions”— that does not respect the devolution settlement or support his position?
I will come to that. That is going to happen anyway—by legislative consent motion.
Clause 11 preserves the current devolution settlement. Holyrood will not be stopped from doing anything that it can do now, and nor will it automatically become able to do anything that our current EU membership stops it from doing. This is simple and easy to understand, and it provides a solid basis for the talks currently taking place over which EU powers will be devolved.
I think the hon. Gentleman misunderstands what is happening. At the minute, the EU has legislative competence in 111 devolved areas, to ensure compatibility with the treaty on European Union. After Brexit, that will not be the case; what is being proposed is that the UK Parliament should be given legislative competence over these devolved areas that it currently does not have. That is a material change and constraint on devolution.
That is correct—that is what we are negotiating about. The 111 powers are already devolved at implementation level. That exists at the moment. The question is about where the frameworks sit in respect of the powers that come back from the EU. We have to look at our internal market and how we would better run our country.
On issues such as food standards, it makes complete sense for us to have one framework for the United Kingdom, so that everyone can participate in the trade deals that we do. If we had different rules and regulations in different parts of the United Kingdom, our overseas trade agreements and internal market would fall apart.
The hon. Gentleman talks about different regulations. Surely he understands the desire in Scotland, which the votes cast in Scotland reflected, to stay in the single market and the customs union and have the same rules and regulations. Only England and the other parts of the UK that leave may be threatened with different regulations.
The United Kingdom voted to leave and we respect that democratic decision. Earlier, Pete Wishart said that the councils of Scotland were confused, that there was a lot for them to look at and that every council voted against. In 2014, I remember that 28 of 32 councils voted to stay in the United Kingdom. Hon. Members should respect that, just as I respect the decision taken by the United Kingdom to leave the European Union.