My Lords, I thank the noble Lords, Lord Lang and Lord Jay, for the way in which they introduced the debate. I welcome my noble friend Lord Duncan to the Front Bench and I look forward to his maiden speech. He has certainly been busy in the last four months, consulting groups across Scotland. As his immediate predecessor, I did the same thing. My progress across Scotland was always forensically—one might say obsessively—tracked on social media by a cybernat called the Tartan Hippo. I grew quite fond of the Tartan Hippo, although he seemed to imagine that ministerial visits to Scotland represented some sort of extended holiday. So, notwithstanding my noble friend’s doctorate in palaeontology, if he encounters the Tartan Hippo on his travels I can only wish him the very best of luck.
We are debating today three important reports. The common thread running through all of them is how the UK manages a period of unprecedented constitutional change to provide constitutional stability and protect the integrity of the UK. The greatest existential threat to the integrity of the union has come from Scottish independence. That threat takes two forms: the direct fundamentalist threat that nationalists will seek, by stirring up grievance, to engineer the circumstances in which Scotland votes to leave the UK; and the indirect, gradualist threat that powers are indiscriminately devolved to the Scottish Parliament to an extent that the UK becomes so hollowed out that it can no longer function as a viable nation state.
No one can doubt the significance of Brexit to our territorial constitution. Handled badly, Brexit risks exacerbating the threats to the UK’s constitutional stability. Handled well, it provides a unique opportunity to strengthen the union between our four home nations. So I want to set out grounds to be hopeful and thoughts on the repatriation of powers from Brussels. The most obvious reason to be hopeful is that the threat of a second independence referendum has receded although, I hasten to add, not gone away. Campaign fatigue is doubtless a factor but there are three other important factors: grievance denial, accountability and the SNP’s independence paradox.
On the first of those, grievance denial, the way in which the devolved Administrations are handled is often criticised, and I would be the first to admit that the UK Government sometimes do not help themselves—for example, by unnecessarily being slow to share information and not holding regular meetings of the Joint Ministerial Committee. However, I know from personal experience what efforts are made to behave reasonably and to be seen to do so. The Edinburgh agreement, which has been referred to, is seen as an example of how reasonably and successfully to hold an independence referendum. It gave force and legitimacy when the Prime Minister came rightly to refuse to concede a second independence referendum. Similarly, in this 20th anniversary year of the Scottish devolution referendum, despite well-publicised tensions, the business of managing areas of shared competence has continued to be conducted successfully. City deals and the joint ministerial group on welfare are current examples of effective intergovernmental co-operation. It has become commonplace for UK and Scottish government Ministers jointly to meet with Scottish business and civic society. So while Scottish devolution was not stress-tested at the outset for the possibility of an SNP Government in Holyrood and a Conservative Government in Westminster, it is being now and is proving remarkably resilient because most people in Scotland want the two Governments to work together.
Brexit is further testing the arrangements, with the Scottish Government insisting that they will not give legislative consent to the European Union (Withdrawal) Bill, but let us remember that the Scottish Parliament threatened until the last minute to withhold consent for both the Scotland Acts 2012 and 2016. Indeed, many was the time that I stood at the Dispatch Box waiting, in the memorable phrase of my noble friend Lord Forsyth, for Billy Bunter’s postal order to turn up. Well, it turned up in the end in the form of legislative consent for the Scotland Act 2016, and there are sound reasons for the Scottish Government to reach agreement this time, too: to achieve more powers and ensure that Scots law continues to work.
That brings me to accountability. At its heart, the Scotland Act 2016 is about strengthening the accountability of the Scottish Government by increasing their financial responsibilities and reducing their reliance on the UK block grant. I accept that it is still early days, but the 2016 Holyrood and 2017 general elections suggest that the Smith package is having a positive effect on Scottish political debate, with less focus on what more powers Scotland needs and much more on how those powers are being used. This can only be healthy.
My final ground for hope is the paradox at the heart of the independence proposition. Brexit has not proved the recruiting sergeant for independence that Nicola Sturgeon expected it to be, and it is not hard to see why. For those who want Scotland to have more control of its own destiny, the paradox is being asked to leave a long-standing union where power is being dispersed to stay in a more recent union where the clear direction of travel, as recent speeches of Presidents Juncker and Macron make clear, is towards more integration, not less.
A similar paradox applies to the SNP’s claim that the UK Government are seeking to hoard at Westminster powers repatriated from Brussels. Not only does this defy the Government’s recent devolution record and commitment to devolve more powers post-Brexit, it is also hard to square with the SNP’s apparent preference for powers to remain concentrated in Brussels instead. Voters have a keen ear for justifications and arguments that sound fake or phoney.
Against this backdrop, the government approach set out in the European Union (Withdrawal) Bill to the repatriation of powers is broadly to confer on the devolved Administrations power to correct technical deficiencies in repatriated EU law in order to provide a workable devolved statute book on exit day; to replicate for retained EU law the existing requirements prohibiting devolved Administrations from legislating contrary to EU law; and to establish a mechanism for releasing, by mutual agreement of the UK Government and the devolved Administrations, powers to the appropriate level of government from what is, in effect, intended as a temporary holding pattern. This makes possible an orderly process for establishing and agreeing where common UK frameworks are required, because all three devolution settlements assume the UK’s membership of the EU and, as the noble Lord, Lord Jay, and others have already said, EU law is the glue holding together the United Kingdom’s single market. Without common UK frameworks to replace this, there is a real risk of undermining the UK home market as we exit the EU.
The Government’s intentions are sound and sensible. Without that approach, powers currently exercised at EU level could flow back by default to the devolved Administrations. This would be contrary to one of the central conclusions of the Constitution Committee’s report on the union and devolution: that proposals for further devolution must take into account,
“the needs of, and consequences for, the entire Union”.
That said, moving forward, the Government will need to demonstrate that the process for agreeing how repatriated powers are allocated is both fair and robust, and there are two areas where action could be taken to build greater confidence in the process. The European Union (Withdrawal) Bill is currently asymmetrical between the constraints imposed on the devolved Administrations and the extensive delegated powers conferred on UK Ministers. I am not arguing for the constraints on the devolved Administrations to be removed. If, however, as the Government say, the delegated powers in the Bill are not intended to effect major changes of policy but technical changes to make the law work, this should be reflected in stronger safeguards in the Bill against their misuse. I commend to the House the Constitution Committee’s proposals in its most recent report for achieving this. A better balance of constraints would have the virtue of providing the UK Government and devolved Administrations with similar incentives to reach early agreement on substantive policy issues.
The second area of risk is the risk of reservation by default, to which the noble Lord, Lord Jay, has already referred. The power to fix deficiencies is time limited, but the mechanism in Clause 12 of the European Union (Withdrawal) Bill for releasing powers from the holding pattern is open ended. There needs to be clarity, therefore, about where the competencies repatriated from Brussels will be exercised if there is no agreement between the UK Government and devolved Administrations. The Government have said that they will seek the legislative consent of the Scottish Parliament for the European Union (Withdrawal) Bill; they therefore have the strongest possible incentive to get this right, which underlines the importance of having in place a clear route map and timetable for reaching agreement. I hope that my noble friend will say more about this in his speech.
In conclusion, the great strength of the UK’s unwritten constitution is its flexibility and resilience, which has been tested often and increasingly questioned. In the face of these challenges, the temptation is to propose statutory solutions for constitutional arrangements governed by convention and practice. However, we should be careful not to reach for judicial adjudication, excellent though it is, when what is required is political negotiation and agreement. It was the late Garrett Fitzgerald who asked, in relation to a public policy proposal:
“I can see that it works in practice, but does it work in theory?”.
It is unfashionable to say it, but I believe that the daily management of the Scottish devolution settlement has worked better in practice than theory and theorists would suggest. I am confident that in handling the issue of repatriation of powers, the Government will demonstrate that that remains the case—so no pressure.