My Lords, it is appropriate that I should follow my noble and learned friend Lord Hope of Craighead on the Scottish amendments. The First Minister took the unusual step of sending these amendments to the Lord Speaker. I do not think she expected him to put them before the House.
I narrated in Committee how I had been invited to accept some briefing from the Scottish Government through Michael Russell, with whom I have had very pleasant and genial talks and communications since. I should acknowledge that he kindly said in a statement to the Scottish Parliament that he was grateful for the help that my noble and learned friend Lord Hope and I had given, as well as many people in other parts of the House. Relations between us have been extremely good. I have communicated with nobody about it except for Mr Russell and the Lord Advocate. I have not sought to involve anybody else in these communications, except, of course, the Government of the United Kingdom, with whom I was authorised, if you like, to negotiate. I have enjoyed the best possible approach of the Government of the United Kingdom in the Minister responsible and the Bill team. The officials responsible for the negotiations have been extremely helpful. Like many others I am sorry that the Scottish Government have not yet found it possible to agree with the arrangements that have so far been made.
I will take a word or two to explain what I understand the new government Amendment 89DA amounts to. If EU law is removed from the Scotland Act, all EU law comes immediately either to Scotland if it is a purely local country legislation, or, if it covers more than one of the countries of the UK, to the UK Parliament. That happens on Brexit day unless something is done. From what I understand, the proposed new section before us in the amendment will suspend the application of the new arrangements until arrangements are made for the single market—or the internal market—in the United Kingdom. There are, as all of us know, provisions in EU law for that single market. They might require amendment in light of the fact that the EU is no longer the authority for the law, but it is important to keep them in place until it is possible to get them amended in a way that is satisfactory to the United Kingdom, including the devolved Administrations —I include Northern Ireland in that phrase. Therefore, a power is given in the proposed new section to suspend that part of the immediate operation of the Brexit treaty so far as it affects the law.
It is important to see that proposed new subsection (2) says that that kind of restriction does not apply to any modification of EU law so long as it was, immediately before Brexit day, within the competence of the Scottish Parliament. That restricts it to the kind of provision relating to the common market. That is what the amendment proposes in that situation, in the light of the discussions set out in the agreement—the noble Lord, Lord Thomas of Gresford, spoke of that in a general way that applies to Scotland as well as to Wales. As far as I am concerned that is a reflection of the kind of amendment I proposed in Committee to try to get a better arrangement for negotiation. I am glad to know that such a memorandum of agreement has been accepted by the Welsh Government and, I hope, will be accepted by the Scottish Government.
The First Minister of the Scottish Government sent these amendments to the Lord Speaker. The noble and learned Lord, Lord Hope, and I wanted to give this House an opportunity to hear what they were and to give them some analysis. The noble and learned Lord has opened with that, and I am going to give my analysis. Those of you familiar with the Scottish procedure will know that, in Scotland, the junior spoke first and the senior came second. The noble and learned Lord and I were often in that position, but, at that time, it was a division of status whereas, now, it is a more regrettable division reflecting the age of the participants.
All the amendments on the sheet before us—I suppose that we can call it the recipe for today—refer to Orders in Council. An Order in Council is a method of making alterations to the Scotland Act, which are provided for in it. My understanding is that they apply to variations of or modifications to Schedule 4, which protects various statutes; to Schedule 5, which is the reserved part of the provision; and to Section 63, in relation to transfer of responsibility between Ministers in the UK Government and Ministers in the Scottish Government. These are areas where an Order in Council is required. A common feature of them is that they can be made only with the consent of the Scottish Ministers. That is why this is an attractive way of doing it so far as Scotland is concerned. However, in my approach to the law, it is perfectly open to the Government of the United Kingdom for secondary legislation to be used wisely. There is no provision that I know of which requires that to be with consent. On the other hand, in the spirit of devolution, it would be right for a type of Sewel convention to be applied. It is on that basis that the memorandum has been constructed. Your Lordships have heard the noble Lord, Lord Thomas of Gresford, suggest that it go on to the statute; I was just anxious to have an informal procedure which was recognised and could be altered, with time for that to happen.
The Scottish amendments that we have put forward for consideration do not really apply to what is here, because what is here is just a modification to the way in which the conclusion of the EU treaty will apply to the laws of the United Kingdom. That provision is perfectly made in this withdrawal Bill without further ado.
The power under new Section 30A(1) is to postpone the freedom to go with EU law in this situation. That power is restricted to two years. The power used under that provision to make the regulations required to implement the single market of the UK are then subject to review by the Administrations if they so wish. The regulations are made to implement that single market as a result of the holding up of the application of EU law. The application of the EU law will then come in in full force after the period of postponement has finished. I do not read the sunset clause as necessarily applying to that. It is more appropriate for the regulations that are made in implementation of the single market. If that is right, the only purpose of the sunset clause is that the regulations cease to exist unless they might be out of existence already as a result of legislation that the Scottish Government or the Welsh Government seek to introduce under the powers that they would then have free from EU law.
There is a question as to how long the subsection (1) powers should apply. They say they are not to be made after two years. I hope it would not be necessary to make provision under that situation for very long—just long enough to pass the regulations that would have to be made to implement the single market. I sincerely hope that the Scottish Government will see that what is being proposed here is not along the lines that require Orders in Council under the Scotland Act, but that it is a completely special situation to deal with the fact that we are going out of the European Union and there is a consequence for the single market. I hope that my noble and learned friend Lord Keen will be able to assure all the devolved legislatures that this is not a common or repeated process but is likely to be absolutely unique. I certainly cannot envisage a second process that is quite the same, and I do not know whether any of your Lordships can. For me, this is unique.
I was rather inclined, when I spoke before in Committee, to think that the way to do this was by a statute of the UK Parliament. Mr Russell indicated, when he spoke to a committee of the other place recently, that it does not require the consent of the Scottish Parliament, although the Sewel convention arrangements are in place. I was of the view that that would be the better way to proceed, because it is fairly simple and straightforward. On the other hand, there are different situations for the different areas of policy where this is required—I think it is 24 or 26 areas of policy—and it seems right that if some are easy to fix, they should be fixed at once, and if some are more difficult, that may take a little longer. So separate instruments are appropriate, rather than necessarily waiting for an Act of the UK Parliament that would embrace the whole lot. I think this is a reasonable arrangement and the best we can achieve. I do not think the UK Government can do any better than this. They have certainly done all that I have asked for, and I hope it will be acceptable to the Government of Scotland. I still hope that maybe, in the light of all the discussion, it may be possible for the Scottish Government to accept it as not in any way seeking to undermine the devolution settlement. It is a method of conforming to the devolution settlement that is practical in the very special arrangements that exist at this time.
Reference has been made to the comments of the First Minister on Scottish Tories. I am a lifetime citizen of Scotland, our home has always been there and, as your Lordships know, my legal training, like that of the noble and learned Lord, Lord Hope, was in the Scottish system. We regard ourselves—certainly I regard myself and I am sure it is the same for my noble and learned friend—as loyal citizens of Scotland and to suggest that we want to destroy devolution is, I think, slightly less than fully true. When I was Lord Chancellor, Sir John Major, as he is now, was Prime Minister and he said he did not want the Lord Chancellor to be involved in the nitty-gritty of party politics. I have tried to follow that ever since and I have never taken any part, recently, in public Scottish politics.