European Union (Withdrawal) Bill - Report (5th Day)

Part of the debate – in the House of Lords at 7:15 pm on 2nd May 2018.

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Photo of Lord Hope of Craighead Lord Hope of Craighead Convenor of the Crossbench Peers 7:15 pm, 2nd May 2018

My Lords, before I introduce the series of amendments in my name, perhaps I can express my thanks to the noble and learned Lord the Minister for the very helpful way in which he has introduced his Amendment 89DA, and also pay tribute to the work that he and his Bill team have done since we began these discussions way back at the beginning of Committee. The Bill has changed very substantially since its original form. In many respects, I was concerned about the way in which it failed to recognise the structure of the Scotland Act. Considerable advances have been made to bring this Bill into line with the recognised approach to devolution in that Act.

There are 10 amendments in my name, grouped from Amendment 89DAA to Amendment 89DAE, then with Amendments 89DAG and 89DAH and two important amendments, Amendments 92BAA and 92BBA. These amendments come from a list of proposed amendments attached to a letter sent to the Lord Speaker by the First Minister of Scotland at the end of last week; in fact, I think that it arrived last Thursday. It is against the background of that letter that I have introduced these amendments for debate this evening. I shall quote short passages from the First Minister’s letter, because they set the scene for what she sought to achieve in writing to the Lord Speaker. Commenting on the amendments that the noble and learned Lord has introduced, she says:

“The amendments represent a considerable advance on the original position of the Bill, in its introduction to the Commons”.

She goes on to say:

“What is not acceptable to the Scottish Government is that these amendments would bind the Scottish Parliament in law in these areas, whereas the commitment on the part of UK Government is binding in political terms only”.

When she says “these areas”, she refers to the common frameworks to which the noble and learned Lord referred in his introduction. Near the end of her letter she says:

“Annexed to this letter are further amendments (with explanatory notes) which, if made, would resolve the concerns set out in this letter, and give the Scottish Parliament its proper place in the constitutional arrangements of the UK, during the challenging but necessary task of preparing our laws for EU withdrawal”.

For the First Minister to write to the Lord Speaker in this way is a very odd way to proceed, but it was probably unavoidable, due to the refusal of the Scottish National Party to nominate anyone for membership of this House. Before I develop a point on that issue, one ought to recognise the fact that the amendment introduced this evening has been awaited for a very long time indeed. Various Members in the House of Commons were pressing for an amendment before the Bill left the Commons. I am not attributing any blame whatever to the Government for the fact that they have only now come forward with these amendments. The fact is that it has taken a great deal of work and much careful negotiation and planning to achieve what the noble and learned Lord has achieved in the amendment which we see before us this evening. It is a long way from what was being thought about in the House of Commons, and it is just a misfortune of timing that we are facing the position that the amendment comes so late in the process of taking the Bill through Parliament.

That being said, I very much regret the absence of at least one member of the Scottish National Party in this House who could represent the views of the Scottish Government. There is no shortage of suitable candidates, I believe. Their position is all about ideology and their view of the principle of democracy; they refuse to have anything to do with an unelected Chamber. We are not short of people—I look particularly to my right, towards the Liberal Democrat Benches—who believe that this House should be an elected Chamber, but they take the view that, while the present system exists, it must be made to work, and they are content to sit here recognising that that is how Parliament as a whole works today. In a way, it is rather like a bicycle, which has two wheels to it; you cannot really get anywhere unless both wheels are attached. That is how this Parliament works. The House of Commons works in tandem, to use another analogy, with the upper House, and we all know that this House performs a valuable function—much valued by the Government, I may say, on behalf of the whole country—as a revising Chamber. We also know that the House of Commons always has the last word, and we never assert ourselves to the extent of insisting on our view when the Commons has made its view, if it contradicts us, absolutely plain. So it is a real shame that the Scottish National Party cannot accept how this place works. If it is to participate fully in what this Parliament does, it needs to make use of the whole machinery, as it is an essential part of the legislative process.

One could say that, for much of the period when the SNP has had large numbers of Members in the other place, their absence from this Chamber has not mattered very much, but we are entering a time when it is going to matter a great deal, and this evening’s debate is one example. Much of the delegated legislation that we are anticipating, which is going to come through the mechanism to which the noble and learned Lord referred, will refer to Scotland, and many other bits of delegated legislation will come through Clause 7, and probably Clause 9, which will affect Scotland too. Who, then, is to represent the views of the Scottish Government? Are we to have a succession of letters by the First Minister to the Lord Speaker, which somebody might possibly pick up, to achieve what she seeks to do? It is very sad that the ideology is so deeply rooted that there is no real prospect of its being changed. The public should know that Scotland is not being very well served by adhering to it as precisely as we see being done today.

Despite all that, it is important that we should look at and debate at least some of the amendments that the First Minister attached to her letter. There were two sets. The first set took a more radical view of the amendments that we are considering this evening than the second. It invited the Government in effect to remove the entire system, which Clause 11 is really designed to set up, by placing restrictions on the legislative competence of the Scottish Parliament for a temporary period. It is far too late to engage in a debate fundamentally altering what we set out in the amendment before us, particularly having regard to the fact that the Welsh Government have agreed to what is on offer.

The second set is the one from which I have selected my amendments. I have not included all the amendments in that set, because I do not think that it is necessary to do that to put forward the basis of the argument which the Scottish Government seek to advance. I am taking my 10 amendments from that particular group. It may be convenient to start by addressing Amendments 92BA and 92BB, which refer to something called type C, with reference to Sections 30A(1) and 57(4) of the Scotland Act 1998.

Those not familiar with the systems might wonder what type C is all about and why my amendments seek to change type C to type A. The point is that Schedule 7 to the Scotland Act 1998 contains a table listing various provisions in the Scotland Act that are subject to treatment by delegated legislation, setting out in a table various types of procedure that are to be used to subject those bits of delegated legislation to scrutiny. The type C procedure requires that the measure be approved by resolution of both Houses of Parliament; in effect, it is describing the affirmative procedure for dealing with statutory instruments, which we are very familiar with. The type A procedure has that too, but the essential difference between them is that type A requires the measure to be laid before, and approved by resolution of, the Scottish Parliament as well, so it seeks the agreement of both the devolved legislature and the United Kingdom Parliament. That is really the central point that runs right through all these amendments.

The point that they seek to make—I refer now to the Scottish Government’s amendments—is that we are dealing with a system of regulation that is sought to be introduced by the proposed new Clause 11, which under the system introduced by the Scotland Act requires the use of the type A procedure. I do not want to trouble your Lordships by going through all the details of the Scotland Act, but there are three particular sections that carry the type A procedure with them and which all deal with situations where modifications are sought to be made either to the legislative competence of the Scottish Parliament—“modification” being the word that is used—or modifications to the powers of Scottish Ministers in the performance of their duties as an Executive. In each of these three sections—Sections 30, 57 and 108 —the prescribed system is the type A procedure. It is introduced by means of Orders in Council, which are to be conducted through this Parliament and the Scottish Parliament via the use of that procedure.

The essential point to understand in order to gather why the type A procedure was regarded as so important when this system was being set up is that, within the Scotland Act, there are two schedules that set out the boundary between the reserve powers—that is, those reserved to the Westminster Parliament—and the areas of devolved competence. As the noble and learned Lord, Lord Wallace of Tankerness, has said many times, what is devolved is devolved and what is reserved is reserved, and the boundaries are very clearly set out.

Schedules 4 and 5 set out in detail the arrangements that were debated intensely by both Chambers when the Bill went through Parliament in 1997 and 1998. It made sense then that the procedure that would have to be adopted if there were to be any modification of those closely argued provisions should be the heightened procedure, which is the type A procedure. The point really is that those schedules were of crucial importance to the operation of the Scotland Act and the scheme, therefore, was that both legislatures should be involved in the scrutiny and approval process if any modification were made by way of addition or subtraction—addition, because the Scottish Parliament would need to be satisfied, no doubt, that it could cope with the additional responsibilities, and subtraction because it would no doubt wish to be able to exercise control over what was being taken away from it, if that were the intention from the system designed in Schedules 4 and 5.

We are now dealing with a situation that was never anticipated, I think it is right to say, when the 1989 Act was being discussed. At that time we were a member of the EEC and we were able to write into the Scotland Act 1998 a limit on the competence of the Scottish Parliament, which meant that EEC law—Community law, as it was then called—was outside competence. It is of course now EU law, by the amendment following the setting up of the European Union. We are now facing the situation where EU law will come to the United Kingdom as retained EU law, and we are talking of course about the redistribution of EU law and the frameworks that are being set up, particularly with reference to the internal market that is to be designed within the United Kingdom after Brexit.

One has to understand that, while we are dealing with a new situation, nevertheless the Scottish Government’s position is that what is being discussed affects fundamentally the legislative competence of the Scottish Parliament and the executive powers of Scottish Ministers. A modification is being considered by means of the frameworks being discussed that will increase the responsibilities of both the Parliament and Ministers. The point being made is that, if you follow through the principle underlying Sections 30, 54 and 108 of the 1998 Act, the principle should be applied to what we are discussing this evening; therefore, the type A procedure is required. It is not just a matter of reading through the Scotland Act; there is also a constitutional point that informs the approach being taken, which is that it would be inappropriate for the powers of a representative and democratically elected Parliament, which the Scottish Parliament is, to be changed without its consent by subordinate legislation made by a Minister who is not accountable to the Scottish Parliament. That is why there is a fundamental point of principle as well as the point of the understanding of the principles that underlie the Scotland Act itself, which is the basis of the position that the Scottish Government have taken up.

I think it is right to say that both the Scottish Government and First Minister have been criticised for the stand they have been taking on the issue of consent and, like the Minister, I too very much regret that it has not been possible for agreement to be reached, especially as it appears that much of what we are talking about in the area of frameworks is the subject of agreement and it may be that, at the end of the day, when one assesses how much is likely to result in disagreement, there will be very little. We are talking about a very thin area of potential dispute in comparison with a very large area of material that is not in dispute at all. Nevertheless, there is a fundamental point of principle that guides the Scottish Government and I am bound to say that I can see considerable force both in principle and in the construction of the Scotland Act that indicates that they have some justification for the position that they have adopted.

I look forward very much to the contribution of the noble and learned Lord, Lord Mackay of Clashfern, who has added his name to my amendments. I do not think he takes quite the same view as I do, but his contribution may assist in putting the views that I have expressed into what he regards as the proper context. No doubt the Minister may find himself in sympathy with the view of the noble and learned Lord, Lord Mackay, as well. I welcome what the noble and learned Lord is going to say because it is so important that we should be debating and discussing the Scottish Government’s position. If there are reasons for feeling that it is misguided, they should be made clear and we can look at whether the basis on which they are being criticised stands up to examination.

Before I move my amendment and sit down, there is one other point on which I think the Minister may be able to assist in drawing the parties together: there is a view, I think, among members of the Scottish Government and their advisers that what is being attempted in proposed new Clause 11 may be the thin end of a wedge. It may be that we are seeing here the beginning of an attempt to undermine the system that I described earlier, set up by Sections 30(2) and (3) and 108, in particular, and the use of the type C procedure when modifications of the kind discussed in those sections have been made. It would be, I should have thought, a very serious step to seek to undermine the structure of the Scotland Act in that way, if that is what is in prospect.

It would be a great help if the Minister could say, if he is able, that we are dealing with a one-off, special situation that lies outside the structure of those sections, and that for that reason he is taking the line that it is a type A and not a type C case. Perhaps he could give an assurance that if we are dealing with something that is precisely covered by Section 30 and the other sections I have mentioned, the system laid down by the Scotland Act 1998 will be adhered to. An assurance of that kind will, I hope, give some comfort to those on the other side of the discussion and reassure them that they are talking about a special situation, which need not in any way cast doubt on the future relationship between the devolved system and the Westminster Government when we come to other debates on how the systems that were set up by the 1998 Act might be modified. Against that background, which I hope has set the scene sufficiently, I beg to move.