Scotland Act 1998: Section 35 Power

Lord McConnell of Glenscorrodale Excerpts

Wednesday 18th January 2023 Lords Chamber

[Lord Offord of Garvel (Con)]

On one level, we are just in the legal mechanics at this point, because concerns were raised by the UK Government—and by many other credible groups—with the Scottish Government, and those were not taken care of in the passing of the Bill. That now moves into a four-week legal process under Section 35 of the Scotland Act 1998 for us to reject the Bill and for it not to go to Royal Assent. It now goes back to the Scottish Parliament on that basis, and the channels are very open and clear that we are prepared to have a conversation about it. We want to move this forward, but we need to do it on a basis that satisfies the whole of the United Kingdom.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I do not recall every individual discussion we had in Cabinet during my time as First Minister, but I do recall this discussion in 2004 in great detail. It was quite possibly the most complex discussion we ever had on a single piece of legislation, and that decision to go for a legislative consent Motion and legislate consistently across the UK was not taken lightly at the time. It was taken primarily to protect the interests of transgender people—not to protect the state or the union, but to protect the interests of individuals who had to live and work across the whole of the United Kingdom. So, this issue needs to be taken very seriously and from a point of principle.

The Scotland Act was designed to make sure that we also did not have conflicting legislation that caused difficulties across the UK; therefore, this does need to be looked at in the detail outlined by the Secretary of State. Will the Government guarantee to have constructive discussions with the Scottish Government about finding a way through the difficulties that have been outlined? Will they publish the minutes of the meetings that took place between the Ministers, because there are conflicting claims about those meetings? If there is an agreement reached that allows this legislation to work across the whole of the UK, will the Government withdraw the Section 35 order in the spirit of unity that this would then mean?

[Lord Offord of Garvel (Con)]

A number of these matters lie fundamentally in another place and in another department. Right now, the Scotland Office is in a situation where, under the architecture, it is pressing the button on Section 35. The Bill now goes back to the Scottish Government, and discussions need to be had with the relevant UK department on this matter. That will require discussion with the UK Minister for Women and Equalities. My understanding is that these channels are open and that a discussion will be had. As to whether minutes are published, et cetera, I cannot comment on that. I guess that if that is the normal procedure, it will be done. There is no attempt to be anything other than fully transparent on this matter. The Scottish Government are within competency in matters of gender. This issue has come to this House and the other place because there is a knock-on effect on the rest of the United Kingdom in relation to the Equality Act.

Private International Law (Implementation of Agreements) Bill [HL]

Lord McConnell of Glenscorrodale Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 29th June 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, I too am glad to see that Clause 2 and the schedule will go and I fully support the amendments brought forward by the noble and learned Lord, Lord Falconer. Is it the Government’s intention to replace Clause 2 and in particular Schedule 6 when the matter goes to the other place? If so, is it their intention to have criminal offences, which are punishable by imprisonment, by secondary legislation? I made that point at an earlier stage of the Bill. In principle, it is quite wrong for imprisonment to be imposed as a result of secondary legislation. In this particular instance it is even worse, because the scope of private international law is so wide that anything could be the subject of it within the principles of private international law. There is no clarity at all about where a criminal sanction involving imprisonment would be imposed. I would be grateful if the Minister could deal with that point.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, these are sensible amendments and I support the Bill as it now stands. There was an interesting exchange on Report in relation to devolution issues, particularly in relation to Wales following the amendment moved by my noble friend Lord Hain. It was an informative debate. During that discussion, I raised the issue of the arrangements in place to involve the devolved Governments in the discussion of international treaties. There is a commitment in the concordat between the UK Government and the devolved Governments to ensure that there is prior consultation in relation to appropriate international treaties.

In that debate on my noble friend’s amendment, I asked specifically if it might be appropriate at some stage for us to move towards an institutional framework for the involvement of the devolved Governments in the agreement of negotiating mandates for international treaties, rather than simply a preference from Government to Government on consultation. I heard the response of the noble and learned Lord, Lord Keen, on that day and I read it again afterwards. The Government’s wording is carefully chosen. He said:

“We are very conscious of our responsibilities under the devolution settlements, and our approach in this area is always to seek to engage early and often when any questions arise. It is my view that such an approach of early engagement is the best way to make consultation genuinely meaningful.”—[Official Report, 17/6/20; col. 2251.]


That is of course very sensible. But will the Minister reflect on the opportunity for this and other Bills that will come before us as a result of our departure from the European Union and other factors to prompt us along the road of a better institutional framework for the engagement of the devolved Governments in negotiating mandates for international treaties? Perhaps, outwith a piece of legislation that might just polarise us in debate, there might be scope for a debate on this in your Lordships’ House in the future.

[Lord Holmes of Richmond (Non-Afl) [V]]

My Lords, I support the three amendments, largely for the reasons already eloquently elucidated by other noble Lords. I spare a word for my noble and learned friend the Minister in his dogged determination in the way that he has taken this Bill through. Perhaps he, like others, will agree that the Bill will now leave this place in a better state than when it arrived. We all hope that we are bidding au revoir to Clause 2 and hope that when the Bill appears in the other place it will in no sense be à bientôt.

In making those points, I underscore the important place of London as a centre for international dispute resolution. I ask my noble and learned friend, as I have on each occasion, to underline our gift—a gleaming jewel—in having English law and the jurisdiction of the courts of England and Wales.

Sentencing Bill [HL]

Lord McConnell of Glenscorrodale Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 25th June 2020 Lords Chamber

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I add my congratulations to everyone who has been involved over many years in all the work that has led to the Bill that we are debating today. I particularly associate myself with the remarks of the noble and learned Lord, Lord Hope of Craighead. From his experience, particularly of the 1995 Act in Scotland, he has a particularly relevant contribution to make regarding the importance of this legislation and the way in which it has been constructed.

When I was First Minister of Scotland, I was involved, like my noble friend Lord Blunkett, in a number of political debates that led to legislative change that affected sentencing. That is always going to take place. Sometimes politicians will get those decisions right and sometimes they will get them wrong but there will always be political debates about sentencing. Part of that will always be about sending signals to victims or potential offenders about the importance of various forms of sentence, although I agree entirely with what the noble Baroness, Lady Bennett, just said about the importance of getting sentences right.

I think that in Scotland the existence of the 1995 Act and the sentencing code gave those involved in the drafting of legislation and the implementation of new sentences a backdrop against which to ensure that the decisions being made by the new Scottish Parliament were accessible and able to be implemented successfully by the judiciary. So I endorse entirely the points made by the noble and learned Lord, Lord Hope, and I certainly fully support the Bill.

I want to ask one question of the Minister. It is implied in the Bill, and in all the contributions that have been made today, that because the Bill is a consolidation it in no way changes the devolution settlement or affects the legislative competence of the Scottish Parliament and the Scottish Government in relation to civil and criminal law, but it would be helpful if that were stated. There are no supporting documents for the Bill, it is not stated anywhere in the documents that are available to us and it was certainly not in the Library briefing that we received earlier this week. If the Minister could just put it on the record, that would be helpful for all concerned.

With that one caveat, I enthusiastically support the Bill and congratulate all who have been involved in its drafting.

Private International Law (Implementation of Agreements) Bill [HL]

Lord McConnell of Glenscorrodale Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I too am grateful to my noble friend Lord Hain for the opportunity to raise some issues on Report, not least because it gives an opportunity to emphasise the different situations in Scotland, Northern Ireland and Wales and, very specifically, the different situation between Scotland and Northern Ireland and Wales, given the legislative competencies that exist in Scotland and Northern Ireland. That was perhaps highlighted earlier today in the amendment tabled by the noble and learned Lord, Lord Wallace of Tankerness, on the Hague convention. He reminded us that the Hague convention was carried into Scots law in 2003, when he was Deputy First Minister and I was First Minister, and it is still outstanding in UK law for England and the rest of the country.

I want to ask where we have reached with the legislative consent Motion for the Bill in the Scottish Parliament. I would be grateful if the Advocate-General would update us on that. I would also be grateful for his consideration of this issue of consultation and engagement with the devolved Governments and Parliaments on international treaties. It is accepted in the Scotland Act and the other Acts of 1998 that there is a reserved responsibility on international treaties, but it has been accepted ever since, most recently perhaps in the concordat on international relations between the UK Government and the devolved Governments, that there are joint interests here in relation to devolved legislative competencies and reserved legislative competencies. We can surely do better, as the Law Society of Scotland and others have argued now for many years, in finding systems for the engagement of devolved Governments and Parliaments in advance of treaties being negotiated and signed, rather than afterwards. It seems to me that we are long overdue a formal structure for the engagement of devolved Ministers and Governments in the agreement of negotiating mandates for treaties, rather than simply information, consultation and then approval afterwards. I would be interested to hear the views of the Advocate-General on that as a way forward.

[Lord Thomas of Gresford [V]]

My Lords, I support this amendment and I, too, was shocked by the lack of response to the very detailed speech by the noble Lord, Lord Hain, in Committee. It seemed to me that the Minister did not give a proper response to what had been said. I think it underlines the Conservative Party’s problem with devolution: either it does not understand it or, if it does, it does not accept it. To give one example, a Conservative Member of Parliament called for the end of devolution to Wales altogether and the scrapping of the Senedd, because his constituents could not, as they normally do at this time of year, go to the Welsh beaches to swim in the sea. That was sufficient to call for the end of devolution in Wales. With that sort of attitude, and with the noble and learned Lord’s attitude to the speech by the noble Lord, Lord Hain, it really makes the case that the Conservative Party is at odds with devolution and what it means.

Throughout the legislation going through Parliament at the moment, there is a gap in recognising the need for consultation and if possible agreement with the devolved Administrations. This is so on the Agriculture Bill, as I pointed out last week. The Joint Ministerial Committee is a joke; it has never worked properly and is ignored by English Ministers. These are great gaps that have to be filled if the devolution settlements are to be properly appreciated.

Scottish Government: Discussions

Lord McConnell of Glenscorrodale Excerpts

Thursday 2nd May 2019 Lords Chamber

Asked by

[Lord McConnell of Glenscorrodale]

To ask Her Majesty’s Government when their Ministers will next meet Ministers from the Scottish Government, and what will be discussed at that meeting.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, the UK Government have frequent engagement with the Scottish Government. UK and Scottish Ministers are due to meet on 9 May 2019 at the meeting of the Joint Ministerial Committee on EU Negotiations. I am scheduled to meet Scottish Ministers as part of the Defra devolved Administrations Inter Ministerial Group for Environment, Food and Rural Affairs on 20 May 2019. The agendas for both meetings are yet to be finalised.

--- Later in debate ---

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, next week sees the 20th anniversary of the first elections to the devolved Scottish Parliament. I am sure that the whole House would want to congratulate the civil servants and legislators who, despite all the political ups and downs of the last 20 years, created such a stable institution that has legislated and budgeted on a consistent basis, despite one party rarely having a political majority. The success of the scheme was based on debate and discussion about the constitutional convention and very well thought-through legislation. In view of the fact that, whatever happens with Brexit, there needs to be a good, hard look at the UK’s constitutional arrangements and our relationship with the public, is it not the case that a model such as a constitutional convention, looking on an all-party basis at improving the governance of the United Kingdom as a whole, might be a way forward in these times?

[Lord Duncan of Springbank]

The noble Lord is right to draw attention to the sterling efforts of all those civil servants who brought about a functioning and sustainable Scottish Parliament and, indeed, a Welsh Assembly Government. There has been extraordinary progress and it is right that we recognise that this is a process, not an event. Last year, the Government set up, alongside the Welsh and Scottish Governments, an intergovernmental review and it will be reporting soon. Let us see what comes of that. However, the noble Lord is correct that this is a process and we cannot let this be the end of it. We must make sure that it continues to deliver as we would like it to do.

European Union (Withdrawal) Bill

Lord McConnell of Glenscorrodale Excerpts

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, again I am grateful to my noble and learned friend for the way in which he has introduced this group of amendments. It is absolutely essential that we remember the principles of legislative competence and what has been devolved, and that we try to cut across the technicalities. It is also important to remember that the devolved Governments of Scotland and Wales should not be faced with any implementation framework in which they will have no decision-making power in negotiations and which intrudes on their area of competence.

Our withdrawal from the EU seems to be quite a tangled web. The job of those sitting in Cardiff and Edinburgh is to serve their constituents and defend the rights that they fought so hard to earn in the first place; it is not to return such rights in legislation to Westminster without being sure that it serves their populations well. That is why it becomes so important to make sure that there is an equality of voice in working out these different aspects of legislation.

When it comes to tertiary legislation, it is even more difficult to understand why there would not be such an equality of voice—I find that quite bizarre. I am afraid that, as the noble Baroness, Lady Hayter, said, the way that the Joint Ministerial Committee has worked to date has not been as good as it might have been, and I hope that today will mark a watershed and a complete change in those relationships.

It is important to remember that EU law was in place when we went to devolution. Therefore, as things come down from Europe, they should drop equally into the three Governments of Wales, Scotland and England, and, where they affect the whole of the UK, they should be looked at on a UK-wide basis. However, that does not mean that all of a sudden Parliament has a complete say over what goes on in the devolved Administrations. There is an equality of voice that must not be eroded by the process.

Therefore, these amendments are really important and I am glad that the Minister said that she will look at them carefully. It is very difficult to know which bit we should look at in great detail and tweak—although it will be more than tweaking; it will probably need a massive rewrite. It is not for the Committee to do that; it should simply raise the concerns, with the rewriting to be done afterwards. We will come to the main debate soon.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I want to reinforce the important points made by the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Finlay. I have spoken before in your Lordships’ Chamber about the importance of clarity in the devolution settlement and the difference that it has made to the relationships between the Scottish Government, the Scottish Parliament, the UK Government and the UK Parliament over these last 19 years. The lack of serious or unresolvable dispute about where the legal powers lie has been the result of that initial clarity in 1998.

The one area where there were problems, particularly in the early years, related to the fact that the Scottish Parliament and the Scottish Government had responsibility under the Scotland Act in relation to EU law. The difficulties and legal challenges, both inside Scotland and to the European Court in relation to the actions of the Scottish Executive, the Scottish Government and the Scottish Parliament, were in relation to that relationship.

Therefore, clarity is required as part of the debate and discussion on the Bill—perhaps not today, given the assurances from the noble Baroness, Lady Goldie, on the Government’s behalf, but certainly following the debate on Clause 11. It is vital that we have greater clarity and the right principles behind whatever replaces the current wording in the Bill on the matters raised by the noble and learned Lord, Lord Hope.

[Lord Thomas of Gresford]

Your Lordships should appreciate that the devolved Administrations can make law but have been constrained by EU law in the areas of their competencies. If EU law is taken away, we would expect the devolved Administrations to carry on without that constraint. Previously, there had been no constraint on their making law within their competencies from Westminster, only from Brussels. Taking away Brussels suddenly imposes Westminster constraints on the devolved Administrations in areas such as agriculture, which have been devolved to them, but it also means that the devolved Administrations cannot make any changes to the law at all—even when it is, for example, an agricultural matter. It is not simply taking away the constraint of Brussels, but imposing something entirely new. Westminster politics comes into it then; considerations that have not emerged into the arena before suddenly become important. That is why these are matters of principle and deeply difficult to resolve.

I was so pleased to hear the noble Lord, Lord Hennessey, say that this was such a difficult area because I suggested in my Second Reading speech that we should have taken devolution completely out of the Bill. At that point, the Government would have had no problem in getting legislative consent from Scotland and Wales and could have sorted out devolution issues as a completely separate matter. Now, your Lordships are listening—in the context of the EU withdrawal Bill—to a very difficult issue.

--- Later in debate ---

[Lord Keen of Elie]

With respect, pursuant to our international treaty obligations, we bound ourselves at the level of international law to allow the EU to exercise competence in areas where previously the UK Parliament would have exercised it. That was then implemented in domestic law by virtue of the 1972 Act. Of course a sovereign Parliament is always able to repeal the 1972 Act, as it is now doing, but so long as it remained in place, and so long as we remained party to the relevant treaty—which became treaties—we were bound in that context. I do not entirely agree with the analysis, but I do not believe it is material for the present purposes, if I may respectfully say so.

Once Brussels had certain competences, it then exercised them. It was important that Brussels should exercise them in one area in particular, which was the development of the EU single market, as no one else could have exercised jurisdiction over a single market in the EU. The idea that 12—now 28—individual jurisdictions could have maintained the single market is self-evidently untenable, so Brussels exercised that jurisdiction, for very good reason. When we leave the EU, we will find ourselves in the position where we want to maintain an internal single market in the United Kingdom; the noble Lord, Lord Foulkes, referred to that, while the noble and learned Lord, Lord Hope, said we are looking forward to the internal market in the United Kingdom. We have to bear that in mind. What Parliament is in a position to legislate for a UK single market? The answer to that is the Parliament that has jurisdiction for the whole United Kingdom. I will come on to the issue of devolved competence in a moment, but generally speaking if you are going to maintain a single market you need a legislative power that is able to do that for the single market.

Lest anyone interrupt just yet, I add that of course by their very nature the devolved Administrations, parliaments and assemblies have responsibility for devolved powers in their respective nations. We respect that, of course, but there is an issue here that has not yet been mentioned. We identified, on the basis of analysis that was carried out with the devolved Administrations, that there were some 153 areas of competence where—

[Lord McConnell of Glenscorrodale]

Before the Minister moves on to the detail of those competences, I want to challenge the analysis that he has given about the comparison between the UK single market and the EU single market. No one would have suggested at any time in the last 26 years that the relationship between the United Kingdom and the EU single market, and the decision-making around the EU single market, would have been such that the decision-making on the EU single market would have been left solely to the European Parliament and the European Commission. It was not. The decision-making around the EU single market was done primarily by the Council of Ministers, and in the Council of Ministers some aspects of that single market were determined by absolute consent, where the UK had a veto, while some areas were determined by qualified majority voting. We cannot replicate that arrangement with one that leaves the sole decision-making power after consultation, without consent, with the UK Parliament and the UK Government in relation to areas where currently the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly would have legislative competence.

[Lord Keen of Elie]

I do not entirely agree with the noble Lord’s analysis but for the present purposes I am not sure that it is particularly relevant. What is relevant is this, if I can continue: we have identified about 153 areas in which, upon our leaving the EU, competences will return and touch upon areas of devolved competence. These are areas that the devolved parliaments and assemblies previously had no engagement with because they lay in Brussels, but they are coming back and touching upon these areas of devolved competence and we recognise that.

However, some of these areas of competence are critical to the maintenance of a single market in the United Kingdom, as I will illustrate in a moment. Those therefore had to be addressed. We did that by engaging with the devolved Administrations and assemblies in the context of the Joint Ministerial Committee negotiations. I take the point made by the noble Baroness, Lady Hayter: there may be criticisms of that process but I respectfully suggest that that is not for this Bill. It is important to notice the achievements made by that committee in this context. In particular, noble Lords may have received a copy of the communiqué of 16 October 2017 from the Joint Ministerial Committee, which was attended by Mark Drakeford, a Cabinet Secretary in Wales, and Mr Russell, a Minister from the Scottish Government, among others, including senior civil servants from Northern Ireland in the absence of their Executive. I shall quote briefly from it, although some aspects are referred to in some of the proposed amendments:

“Ministers noted the positive progress being made on consideration of common frameworks and agreed the principles that will underpin that work”.


The definition of those principles includes the line:

“A framework will set out a common UK, or GB, approach and how it will be operated and governed”.


Then there is a list of principles:

“Common frameworks will be established where they are necessary in order to … enable the functioning of the UK internal market”—


for example, to,

“ensure compliance with international obligations; ensure the UK can negotiate, enter into and implement new trade agreements and international treaties; enable the management of common resources; administer and provide access to justice in cases with a cross-border element; safeguard the security of the”,

United Kingdom.

--- Later in debate ---

[Lord Keen of Elie]

That is not what is in contemplation, and that is why I am trying to explain the Government’s thinking with regard to maintaining effectively a single market, not frictionless borders between nations within the United Kingdom, which is a different issue altogether and one that does arise in a different context.

[Lord McConnell of Glenscorrodale]

I will not take this opportunity to contest some of the points that have been made about, for example, fertilisers, although I think there is a debate to be had about the way in which the Government describe that issue. It is not helpful to the heat generated around this debate when the examples the Government give for the need to retain the power imply that decisions that would be made in Scotland or Wales would be stupid. The Government need to think hard about the fact that when they describe the need for these single market frameworks in the UK, they should do so in a positive way in terms of the UK having regulations that work together.

On the substantive point about the frameworks, the issue is not the list of 24, but how they will be agreed and who will have the ultimate decision-making power. It is not about what is or is not on the list. That is a matter for negotiation and determination within the existing settlements. The issue here is who agrees the frameworks, how they are agreed and who ultimately has the power to veto them or otherwise. That is the substantive issue I would ask the Minister to address.

[Lord Keen of Elie]

I wholly reject the implication that we are suggesting that any of the devolved Administrations are going to proceed to legislate, with any of the competencies returned to them, in a way that would be regarded as stupid or unacceptable. That is a most unfortunate gloss to put on the matter. It is, however, very helpful that the noble Lord, Lord McConnell of Glenscorrodale, has raised the question of how we are going to deal with the issue in this context. The framework agreements have been the subject of ongoing negotiation among all of the Administrations, but in order to achieve that it is necessary to retain competencies in those areas so that there is not the prospect of legislation within the devolved areas which impacts upon areas outwith their competence. To give a simple example in that context, the Scottish Government are entitled to exercise devolved competence and powers within Scotland for the Scottish people, but if we allow all of the additional competencies to go back to the Scottish Government and they legislate in an area such as food labelling, that impacts on the people not only of Scotland but of England, Wales and Northern Ireland. There is therefore, in a sense, a veto over proposals for the internal market, with one devolved Administration saying, “No, we don’t like your proposals on food labelling. We know everybody else likes them but we’ve decided we don’t like them, we’re not going to consent to them, so you can’t have them.” That is the problem that we want to ensure does not arise.

Coming more particularly to the point that was made about how this is decided, we do ring-fence, as it were, the 24 competencies—or elements of them—that have been identified following the consultation process with the devolved Administrations and which are reflected in the principles that I quoted from the Joint Ministerial Committee on 16 October last year. Then, we have to formulate framework agreements, essentially, in each of these areas for the United Kingdom.

Taking up the noble Lord’s point on how we are going to implement those, we will do so by way of primary legislation. And where do we find ourselves? Back in the relevant devolved legislation, which says that we will not normally legislate in respect of these devolved areas except with the agreement of the relevant devolved Government. So the relevant safeguard is exactly the same as the one that exists at the present time. What we propose will not intrude on the devolved competence in Scotland, Wales or indeed Northern Ireland. It retains 24 areas that are coming back from the European Union in order that we can work out what is required for the purposes of maintaining a single UK market. However, what would alter the devolved competencies quite fundamentally would be a provision that said that we could retain those areas of competence only with the consent of each of the devolved Administrations. That would give them a veto over matters that went beyond their present devolved competence and a veto over matters that impacted on England, Wales, Northern Ireland or Scotland, depending upon who was doing it. That is why we have set out matters in the way that we have. When we come on to the amendment to Clause 11 in due course, I hope that, having essentially flipped Clause 11, we can reflect on the great progress that we have made to date in these areas. It is in that context that I simply invite the noble and learned Lord to withdraw his amendment.

We will return to these matters under reference to the government amendments but I wanted to set out, I hope with a reasonable degree of clarity, the Government’s thinking in this area. This is not, with respect, a power grab—on the contrary: if we consult, if we agree and if we achieve this, there is no question of a power grab. It is certainly not a derogation from devolved competence. A great deal of competence will be laid on the devolved Administrations, because so many of these competencies coming back from the EU, and under the amended Clause 11, are going straight to the devolved Parliaments and Assemblies.

--- Later in debate ---

[Lord Keen of Elie]

Consultation has been going on in the Joint Ministerial Committees on a regular basis since October of last year. As regards respecting the constitutional settlement on devolution, I entirely agree with the noble and learned Lord—with one qualification. A convention has arisen out of the memorandum of understanding between the Scottish Government and the UK Government about how we ensure that legislation put before the Scottish Parliament is competent. That convention has operated since 1999 and involves an exchange of a note of competence. Prior to a Bill being introduced to the Scottish Parliament, a copy is passed to my office—the Office of the Advocate-General for Scotland. That is always done.

I then confer with the Lord Advocate and his officials—the noble and learned Lord, Lord Wallace, will be familiar with this—and we iron out any differences and come to a view on what is competent and what is not, and consequently these matters are resolved. For the first time in nearly 20 years, that convention was departed from by the Scottish Government in respect of their EU Continuity Bill, which I first heard about after it was introduced to the Scottish Parliament. They did, however, give it to the Presiding Officer of the Scottish Parliament in time for him to take legal advice. Therefore, while I accept the generality of the point the noble and learned Lord made, particular exceptions have arisen very recently.

[Lord McConnell of Glenscorrodale]

I was the Minister who negotiated the memorandum of understanding. I think I am the only Minister involved in the negotiation at the time who serves in your Lordships’ House. I agree that the Sewel convention and the arrangements for considering the competence of legislation have worked very well. That concerns the point I made earlier—two debates ago, I think—about the clarity of the legislation and of the memorandum of understanding, which have worked well over many years. I am encouraged by the Minister’s comment that these frameworks would all be subject to the Sewel convention. It would certainly be very helpful for the debate that we are about to have on Clause 11 for the Minister to say that, if these 24 areas are indeed the final 24 areas that are agreed for common frameworks, in each of the 24 areas the establishment of the common frameworks would be subject to the Sewel convention, as I think he hinted at a few minutes ago.

[Lord Keen of Elie]

In so far as they are carried forward by primary legislation—and I rather anticipate that that will be the case—they would engage not only the Sewel convention but the provisions of DGN 10, the devolved guidance note, because there may be areas where these matters impact on the competence of Scottish Ministers. That is what is anticipated and I have no difficulty with that.

I keep trying to answer a question raised by the noble and learned Lord, Lord Wallace, about what happens with regard to the transition period. Clearly, that will have to be addressed in the context of the withdrawal agreement Bill—and that, as has been indicated before, may result in some amendment to the existing provisions of this exit Bill.

European Union (Withdrawal) Bill

Lord McConnell of Glenscorrodale Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I have been very critical of the way that both the Government and the Scottish Government have conducted these discussions over the past 12 months, but I want to start by being very positive in your Lordships’ House this evening. I think the Government have moved considerably; I think the reversal of the principle behind the new clause is very welcome indeed; and I think it is now very likely that we are close to an agreement on the different categories of responsibility and competence in the different sections. I very much welcome the assurances from the Minister in the earlier debate that legislative consent Motions will be required for any primary legislation that would enact these new frameworks. I also welcome the tone of the debate tonight and the fact that the Minister is welcoming the different amendments that have been put forward and the ideas that have been suggested and is willing to look at them with his team over the coming weeks, before we get to the stage of having to vote on any specific proposals.

However, I want to make one specific point, in the interests of brevity and concentrating on what I think is most important here this evening. The way in which these frameworks are established is perhaps critical to getting the agreement to the stage of the frameworks in the first place. Whatever opinions each of us might have about the taking back of control to the UK from the European Union, in that exercise of taking back control to the UK I think the Government could be much more ambitious in setting out a new way of working inside the United Kingdom. Frankly, the joint ministerial committees have never worked, from the very first year. They were chaired by UK Ministers; they were sometimes consultation exercises; they were more often a brief, cursory discussion around a table. They were very occasionally brought together to reach agreement on a specific item, but those agreements were always much better reached in other forums or bilaterally. Tony Blair and I both tried to get rid of them. We did not succeed, but I wish that we had.

The Government need to think way beyond the joint ministerial committees. Perhaps the noble and learned Lord, Lord Mackay of Clashfern, has started to point us in the right direction for a way in which we can build a new relationship among the four Governments. What we need to look at is not a joint ministerial committee but a new form of ministerial council within the United Kingdom that might perhaps have a rotating chair, rather than being chaired by the UK Secretary of State, and that would have some sort of procedure for resolving disputes. It obviously could not use qualified majority voting, and it might or might not have a veto, but at least each case would be agreed properly among the different sets of Governments. If the Government could do some radical thinking on this over the next few weeks, before we get to the stage of finally voting on this Bill and agreeing the way ahead on frameworks, then I think they would be on much firmer ground to get agreement on the individual competencies and then to get consent. Although not necessarily required legally or constitutionally, it would be better for the United Kingdom if consent is acquired for this Bill and for the subsequent actions that will take us forward to the next steps. I urge the Government to think more ambitiously about the way these frameworks will look in the future, while I welcome the steps that have already been taken to put in place restricted time scales, which might yet include a sunset clause—that might be very wise—to be clear about the reversal of the principle; to devolve things unless they have to be reserved; and to be willing, tonight, to listen to all the amendments.

[Lord Lang of Monkton (Con)]

My Lords, after roaming around the various amendments to the government amendment, I would like to steer us back to the government amendment itself, which I support and which I hope will form a pathway to getting this matter resolved. I am afraid my remarks will be mainly focused on Scotland, where the battle has been fiercest, but I will refer to the other devolved Administrations in the context of the generality.

We have got here by a tortuous route of JMC meetings, consultations, arguments and a lot of delay. I acknowledge the willingness of the Government, in particular, to try to follow this approach of constantly being willing to participate in discussions and consultations. Much reference has been made in earlier debates to the spirit of devolution, to which the intergovernmental relations paper published by the Constitution Committee some time ago referred—indeed, we argued for many things, including some just referred to by the noble Lord, Lord McConnell. Given where we are in this farrago of committee meetings and consultations and rebuffs and demands and arguments about “consent” and “consult”, it is a relief to have an amendment to the Bill which we can debate and, I hope, remove the deadlock.

I prefer to start by reference to a component of the debate that seems to have been notable by its absence in discussion until my noble and learned friend Lord Keen raised it in the last debate, namely the Sewel convention. When the Scotland Act 1978 was going through Parliament, I asked my lamented and good friend Lord MacKay of Ardbrecknish what it was all about. It was not called the Sewel convention at that stage. He said, “Oh, it’s a good-will measure. When we and the Scottish Government both want to legislate on the same subject, we’ll offer to do it for them to avoid duplication”. If only. The spirit of devolution may have been alive then, but it has taken a battering since. The finished version has turned out a bit differently. Far from being a good-will gesture to foster harmonious relations, it has become a battleground on which Parliament seems under constant challenge, with one visit already to the Supreme Court and another allegedly brewing. That is not the spirit of devolution.

The Government deserve credit for endless trust and courtesy, but their patience has gone unrewarded. It seems that they are left with no alternative but to act as they now propose. The noble Lord, Lord Thomas of Gresford, who I am glad to see in his place, said in an earlier debate that it is a pity that devolution has got tangled up with the Brexit Bill. I absolutely agree with him—I wish they could have been taken separately—but it obviously is not possible. We are where we are. In the much larger arena of the Brexit negotiations, the challenge of this Bill is full of difficulties and complex issues. No solution is easy, but the Government have to make progress to keep to the timetable. In that context, I think reference to the Sewel convention makes clear that Parliament can legislate on devolved matters. That is an important point to remember and one that could have been prayed upon at the very outset as an alternative route to securing a satisfactory conclusion. Of course it is not something to do lightly, but we in the devolved Administrations need a solution. The word “normally” offers a key to this. There can surely be nothing less normal in the world of law-making than legislation to retrieve to our shores from the European Union over 40 years of legislative activity against a tight deadline and in advance of the moment of transfer—a retrieval that is vital to the maintenance of the rule of law as Brexit takes place. If that is not abnormal as an event, I do not know what is.

The Scotland Act and the Wales Act, as amended, and the convention are the nearest we can get to a stable base on which the devolution settlements can have some hope of harmonious survival, provided all parties respect that base. Enoch Powell’s dictum that power devolved is power retained has to prevail or the centre cannot hold, but sovereignty can be courteously delivered and received. The Government’s record on that is good. The Bill respects it and the guarantees that the Government have given. It specifically guarantees that no existing devolved power will be changed. Everything already devolved stays devolved. The area of dispute is a narrow, temporary and reducing one. As the Government’s amendment concerning EU powers being brought into the UK for the first time demonstrates—under the EU treaties, those powers must be transferred to the nation state in the first instance—the vast majority will go straight through to the devolved Administrations. Only those powers temporarily reserved that affect national frameworks, on which the devolved Administrations reached agreement in principle as long ago as last October, will be frozen en route until the frameworks can be decided upon. My noble and learned friend the Advocate-General covered that matter very effectively in his speech in the previous debate.

I respect the principles advanced by noble Lords and their sensitivity over matters that they point out are devolved, but there are other factors that again, in the spirit of devolution, could be deemed worthy of some movement by the devolved Administrations. These competencies and my noble and learned friend’s speech were very helpful on this—indeed, it makes my own speech almost redundant from now on, but I will make it anyway. These competencies coming home from the European Union were not ours to devolve before and do not necessarily fit in under the headings of what is claimed as devolved. They were not ours to devolve before; they are in many ways new and additional and reflect the changed legislative priorities that have evolved over the past 40 years. I just give one simple example of that change in agriculture: 40 years ago, we had a Ministry of Agriculture; now we have a Department for Environment, Food and Rural Affairs—a very much changed animal. Virtually all these new powers will as soon as possible end up with the devolved Administrations.

I do not know how the Government could do more without jeopardising their obligations to the United Kingdom as a whole. This Parliament is the only one that can negotiate the Brexit deal—the outcome will after all form part of an international treaty—and this Parliament is the Parliament of Scotland, Wales and Northern Ireland, as well as of England and the United Kingdom. I sometimes think that Scotland’s First Minister occasionally forgets that the Prime Minister is also her Prime Minister and that the Westminster Government—as the SNP derisively refers to us, as though we were a foreign power—are also Scotland’s Government as well as that of the other parts of the UK. It is the Prime Minister who can protect the First Minister from herself by ensuring that Scotland remains in the UK, as its people decided only three years ago, and thus in the United Kingdom’s single market, which is the mainstay of Scotland’s economy. As I think all your Lordships now know, it takes four and half times more exports than the entire European Union does.

Yet still they rage against the light. The intransigence shown by the Scottish Administration was always likely to emerge. I diverge here from my noble and learned friend Lord Mackay of Clashfern—though fortunately not on a legal point—as I believe it was always going to emerge, and it is what the Scottish Government mean by “negotiation”, because they are working to a different agenda, an agenda with only one item on it: independence. Everything in every area of government in Scotland is subservient to that, hence the neglect that we see of education, the economy and all the other matters that are their responsibility. If they can find of way of turning everything that happens into a source of grievance, they will do so. Grievance is their default position. They would make a grievance out of a ray of sunshine if they thought it would help their cause. Where in that Administration is the spirit of devolution? There is no power grab in the measures proposed in the government amendment, quite the reverse; it is a power bonanza. The devolved Administrations should welcome it as a ray of sunshine.

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[Lord Forsyth of Drumlean]

My noble and learned friend says that it tells me. Yes, it tells me that it is the Secretary of State. The Secretary of State’s responsibilities are for the whole of the United Kingdom, not for England. To suggest that there should be a rotating chair, as the noble Baroness, Lady Finlay, did, is a nonsense in terms of our constitution. Ministers in the Government have a responsibility to act for the whole of the United Kingdom.

I have to say that I thought that the speech of the noble Lord, Lord Wigley, was absolutely hilarious. Here he was making an impassioned plea for democracy in Wales while at the same time arguing that all the powers that he was concerned about should remain in Brussels, where the ability to bring forward legislation rests with an unelected Commission and where our ability to influence it is one of 28 in the Council of Ministers. It is a complete distortion of the word “democracy”. What is being offered here to the Welsh Parliament and the Scottish Parliament by the Government is the ability to take back control of a whole range of issues and policies over which they have hitherto had no influence at all.

[Lord McConnell of Glenscorrodale]

I have heard the noble Lord, Lord Forsyth, say on several occasions in these debates on Brexit in your Lordships’ House that other noble Lords around this House have tried to revisit the arguments around the referendum, that that is wrong, that time has moved on and that it is time to debate the process of withdrawal and not revisit those debates of two years ago. However, it seems to me that he does exactly the same thing on devolution. To take fishing as an example, the reality is that the Secretary of State for the United Kingdom Government is responsible for fishing in England and the relevant Minister and the First Minister in Scotland are responsible for fishing in Scotland. We have an equality of representation, duty and competence. That is what should be reflected in any common framework for decision-making. It is not the case that the United Kingdom retains an overarching power over these. There may be a constitutional hold over sovereignty at the end of the day, but the reality for 19 years has been that, once these powers were devolved, the Ministers in the UK Government became the Ministers responsible for the way in which those responsibilities were exercised in England, not in Scotland, or, on many occasions, in either Wales or Northern Ireland.

[Lord Forsyth of Drumlean]

The noble Lord is talking nonsense—codswallop in fact—in the context of fishing because the position has been that the Secretary of State with responsibility for fisheries, agriculture and everything else had no authority whatever to determine these matters; that rested in Brussels. I have been to Fisheries Councils, which are always held near Christmas and always go into the middle of the night, where we struggled to get a deal, and where we were invariably overruled by other member states. Then clever people such as the noble Lord, Lord Kerr, who I am not sure is in his place, would write press releases explaining how the talks had been a triumph and we had secured a brilliant deal for the United Kingdom. But we did not have the power to determine that.

As to the point about the position of the Secretary of State in the United Kingdom Government and the Scottish Ministers with responsibilities in respect of fisheries, the noble Lord makes my argument for me. The position is pretty clear: once we have regained control of our waters and our fishing policy, we will make international agreements with other parties. That has to be done on a United Kingdom basis. Despite the noble Lord’s efforts to advance the cause of the nationalists in Scotland, with disastrous results for his own party, his former leader now says that he regrets having done devolution at all. The noble Lord shakes his head. If he reads Mr Blair’s own autobiography, he will find that he lists two things that he regrets doing, and devolution is one of them. Devolution has had a disastrous effect on Labour in Scotland, as he well knows, because Labour has sought to appease nationalism and refused to stand up for the role of the United Kingdom in the way that my noble friend Lord Lang argued so brilliantly. When we regain power over fishing and so on, the Secretary of State will be responsible for organising and arranging access to our waters for fishermen throughout the United Kingdom on the basis of international treaties which can be made only by a sovereign state, and that is the United Kingdom. It is not Scotland, it is not Wales and it is not Northern Ireland.

[Lord McConnell of Glenscorrodale]

Plenty of countries around the world that enter into international treaties have internal mechanisms which allow different parts of those countries to come together to make a decision by either consensus or a formal agreement, so there are plenty of examples around the world of where that works in practice. It should be able to work in this country as well. I correct the noble Lord, Lord Forsyth: there is no evidence that the former Prime Minister Tony Blair regrets bringing in devolution in this country. In fact, it is one of the things he is proud of having done for this country and is a major constitutional change that made a real difference. If the noble Lord reads the book properly, he will understand that.

[Lord Forsyth of Drumlean]

I will return to my copy of this important text and will be in touch with the noble Lord in that respect. I completely agree with his point that there are plenty of countries where people are able to consult on these matters. However, there is a difference between seeking to consult people and seeking their consent. This is where this debate has gone off the rails in that people have confused consultation with consent. Consent, in effect, gives a veto, as has been explained by my noble and learned friend Lord Keen and by my noble friend Lord Lang. It has been explained that, if we have a situation where one devolved legislature is able to have a requirement for consent, as opposed to being consulted, we have one part of the United Kingdom able to use its veto to subvert the wider interests of the rest of the United Kingdom, and that was never ever part of the devolution settlement.

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[Lord Hain]

With the help of the noble Baroness, Lady Randerson, we can put on the record the fact that the Bill has received assent. That is a serious situation. There is the potential for direct confrontation, which I hope we can avoid. I also welcome the proposal of the noble and learned Lord, Lord Mackay of Clashfern, which deserves serious attention.

In supporting the amendments tabled by my noble friends Lord Griffiths and Lord Stevenson, which again stress the need for consent, I want to highlight an alternative and perhaps more constitutionally appropriate way forward, which reflects a point touched on by the noble and learned Lord, Lord Wallace of Tankerness, and the noble Baroness, Lady Finlay. It is a way forward that would not give the Government yet another wide-ranging regulation-making power. We should ensure that a schedule is appended to this Bill containing a list of areas where the Government and the devolved Administrations agree that frameworks are needed, as they are, and hence where devolved competence needs to be constrained while such frameworks are negotiated. By doing this, the Government would be able to gain the legislative consent to this Bill of the Scottish Parliament and the National Assembly for Wales, and in future I hope the Northern Ireland Assembly, which they rightly regard as essential to avoiding a major constitutional crisis.

[Lord McConnell of Glenscorrodale]

I welcome the proposal just made by my noble friend Lord Hain, because two versions of it have been suggested during the debate, albeit perhaps not deliberately. One would specify in the Bill or a schedule to it those areas that will be part of the competence frameworks; the other would specify those areas that were devolved, which would be counter to the devolution settlement. It is important that we specify those areas that are not devolved rather than those that are. My noble friend’s proposal is the right one. I hope that the Government will take that seriously and that the other option will not be taken forward.

[Lord Hain]

I completely agree with my noble friend; he spelled it out very clearly.

At the same time, this approach would provide transparency about the areas in which devolved competence would be affected, which is sadly lacking in the approach embodied, until now at least, in the Government’s amendments. It would also enable the Scottish Parliament and the Assembly to agree to the list of retained powers—reinforcing my noble friend’s point—through the very act of providing legislative consent to the Bill. Such an approach would thus reassure the devolved institutions that the regulation-making power proposed by the Government could not be used to specify areas of retained EU law not requiring frameworks. That is a very important point.

If the schedule idea is potentially a magic bullet, why might the Government resist it? I am informed that the first argument is that it cannot be done in time for Report. I am not sure that I buy this argument; Report does not take place until well after Easter, which is many weeks away. We are told that significant work has been done on potential framework areas and the list published recently by the Government—though not agreed with the devolved Administrations, I understand—comes fairly close to defining legally which current EU law restrictions may need to be continued while frameworks are negotiated. Surely if the Government need to specify these areas in regulations, they will need to do so sooner rather than later in any event.

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[Baroness McIntosh of Pickering]

I accept that and I stand corrected.

[Lord McConnell of Glenscorrodale]

I absolutely endorse the description by the noble Baroness of the way consent works in that situation: whether or not devolved Ministers lead the delegation, sit on the delegation or are consulted in advance of the delegation to the Council of Ministers, it is the case that the responsibility for implementing the directives agreed transfers directly to them, not through the UK Government, and they then implement those directives. The noble Baroness is right when she says that that means that the consent is given, but it also reinforces the argument that that responsibility lies there and not through the UK Government any more—that is the result of the devolution settlement.

[Baroness McIntosh of Pickering]

That is the point I am trying to make. It may be helpful if I conclude by asking the Minister a question: he talked about all retained legislation being primary legislation—if the Committee were to agree that, would it not resolve many of the difficulties we have been discussing?

European Union (Withdrawal) Bill

Lord McConnell of Glenscorrodale Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, the noble Lord, Lord Farmer, is rightly respected for his expertise on a number of subjects—this was not one of them. Indeed, it was palpable that the atmosphere in the Chamber was curdling as he spoke. I remind the noble Lord and, indeed, the Committee, and particularly the Minister, who I suspect did not enjoy the speech we have just heard, about the danger of double standards on this subject. I remind the Committee in particular of Section 1 of the Children Act 1989, and of the standard that that Act imposes on courts. By “courts” I refer to every court dealing with children’s issues, from the Amlwch magistrates’ court, if the noble Lord, Lord Wigley, will forgive that reference or enjoy the name check, to the Supreme Court and, indeed, to the President of the Family Division, a role which my noble and learned friend Lady Butler-Sloss filled with such great distinction. It is worth reminding your Lordships that the “paramount consideration”—those are the statutory words—when a court considers the upbringing of a child or anything to do with the child is that child’s welfare. Section 1 of the Children Act 1989 does not merely deal with physical aspects of the child’s life but includes, for example, in Section 1(3)(a),

“the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”.

Those are the standards that this Parliament places on our courts.

There is a danger that, if the Government do not sort out the problems so ably articulated by those who have spoken to these various amendments, we will have a situation of double standards. The courts will be obliged to apply those standards but our Government will abandon them, possibly merely to avoid a few cases coming before the Court of Justice of the European Union. That is completely unconscionable. I am not saying that the only solution is to fall under the jurisdiction of the Court of Justice of the European Union; there may be alternatives, such as a treaty with the European Union that provides for similar processes, albeit through our own courts, and reciprocal arrangements with other courts. The Court of Justice of the European Union is not a shibboleth—one way or the other. It is just the current way of solving a series of problems, which nobody is able to improve on at the moment.

It would be completely unacceptable to hear from the Minister who responds to this debate words such as, “We hope to negotiate”; “We are considering negotiating”; or “We expect that we will achieve”. That will not do, because it does not put the welfare of children first. So when the Minister comes to reply, I hope that we will hear, specifically, how many meetings have taken place in an attempt to start to negotiate a resolution of issues affecting the welfare of children who may be abducted in the most appalling circumstances; when the next series of meetings is to take place on that subject; at what level it is being done; and to what extent the leaders of the family Bar and the family solicitors are being involved in the process of consultation and negotiation. Otherwise, we will have no option but to adopt something like these amendments on Report.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I very much welcome the amendment in the name of my noble friend Lady Sherlock, and the important questions that she posed to the Minister at the start of the debate. The debate has shown how critically important it will be to get the answers to these questions right, not just in the coming months but in the coming years and perhaps decades. The noble and learned Baroness, Lady Butler-Sloss, was forensic in her description, which came from very real experience, of the benefits of the current system and of what might be lost if we make the wrong decisions in passing the Bill.

I will not go back over all the points that have already been made; in the current circumstances I will be deliberately brief. I will raise two points in particular. First, within the United Kingdom we have different jurisdictions concerning family law and some of the other legal rights that have been mentioned in the debate so far. I would welcome some reassurance from the Minister in his response that appropriate discussions are taking place with the Scottish Government and others to ensure that whatever we enact here in the UK Parliament is appropriate for the whole of the United Kingdom, and not just for the legal system in England or England and Wales.

Secondly, on a point of principle, there is a reason why this subject matters so much. We can have ideological debates about our future economic partnership with the European Union, and we can have ideological or political debates about the financial position before and after exiting the European Union—but children and family law are at the very core of the things that matter to us most: the relationships between parents and children; the relationships between children and other children who might be estranged from their brothers and sisters; the relationships between adopted children and their natural parents, whom they may wish to contract later in life; and the relationship between estranged couples.

That is why this debate is different from others, and why in this instance I urge the Government and everybody on all sides who supports or sympathises with Brexit to look for solutions to these issues that deal with the personal, not the political. I urge them to ensure that, whatever arrangements are finally agreed, those personal rights will give families an opportunity to continue contact and to seek appropriate rights and redress, and to be able to do so in the easiest and least expensive way possible.

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[Lord McConnell of Glenscorrodale]

I thank the Minister for giving way. Of course discussions are taking place between officials in the different departments, but are Ministers talking to each other and are agreements being reached that will ensure that the right decisions are made to serve the different jurisdictions of the UK?

[Lord Keen of Elie]

I cannot say that agreements are being reached at this time because we are only setting out on the process of negotiation with regard to the future partnership; I cannot take that any further at this stage. However, our position is that family law co-operation is critically important, and it is no different from our general position with regard to civil co-operation.

I would acknowledge that the development of Brussels IIa is an improvement on the Hague conventions, and indeed I believe that some would acknowledge that it is an improvement on the terms of the Lugano convention in this regard as well. The terms have been refined and developed, and it may be that there will be a further negotiation and conclusion over Brussels IIa—what might be termed as Brussels IIb, I suppose—which may well occur after Brexit. Nevertheless, in order to ensure that we have reasonable alignment and therefore the basis for reciprocity, we will want to take into consideration such developments in the law.

Let us be clear: generally speaking, these developments take place for all the best reasons. They are developments that reflect improvements, so why would we turn our face away from improvements in the law on the reciprocal enforcement of family law matters related to maintenance, divorce and child abduction? We have no cause or reason to do so and of course we are going to embrace these matters.

I appreciate that the amendments in this group are probing in nature, but I shall try to address some of the specific details. The report called for in the first amendment tabled by the noble Baroness would require the Government to publish details of how rights in EU family law operate in domestic law as well as key details of the negotiations within six months of this Bill receiving Royal Assent. With great respect, that is an arbitrary deadline which makes no reference to the position of the negotiations at that stage or the other documents that the Government will be publishing on the subject. These documents include not only any final agreement reached in the negotiations regarding continuing judicial co-operation on family law, but also the explanatory material that Ministers will publish when they exercise their key Bill powers to amend retained EU law. That will include retained EU family law. So, as I am sure the noble Baroness is aware, any agreement between the UK and the EU will be detailed clearly within the withdrawal agreement and domestically legislated for in the upcoming withdrawal agreement and implementation period Bill, which Parliament will have a full opportunity to scrutinise. However, I have to say that it does not arise in the context of this Bill.

The next amendment concerns the jurisdiction of the CJEU. We will discuss that in more detail when we come to debate Clause 6, so I will not take up a great deal of time although I want to make a couple of points. First, it is not necessary for the UK to be subject, unilaterally, to CJEU jurisdiction to secure a reciprocal agreement in this field any more than it is a requirement of the signatories to the Lugano convention to secure agreement with Brussels regarding family law matters. There are a number of existing precedents: not just Lugano, but the Hague convention as well. As I have indicated, the jurisdiction of the CJEU is sometimes either exaggerated or misunderstood in this context. In the EU, it is of course the final arbiter of the construction and application of EU instruments, but that does not mean that we have to embrace the CJEU’s jurisdiction to have a suitable partnership agreement with the 27 members of the EU.

Brexit: Devolved Administrations

Lord McConnell of Glenscorrodale Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I congratulate the noble Lord, Lord McInnes, on securing this debate on Burns day, which seems particularly appropriate. I know that the debate will cover the whole United Kingdom and not just Scotland, but we celebrate this day with particular gusto. It is celebrated throughout the world, because Burns was an internationalist—he never travelled further than Newcastle, but he understood the rest of the world and was able to write about it in creative and passionate ways which would shame many of the debates that have taken place across Scotland and the UK during the past two years.

I congratulate the noble Lord also on his introductory speech. It was an incredibly thoughtful and reflective speech that indicates that he will make a significant contribution to your Lordships’ House. He may not, as he said, have the same level of political experience as some other speakers in this debate, but his contribution was outstanding and I welcome the opportunity to follow him.

I have been a lifelong supporter both of home rule for Scotland within the United Kingdom and of the United Kingdom’s membership of the European Union. I have watched with despair over recent years as in both referenda the campaigns promoting the position that I adopt failed to make a positive case and focused far too much on the negative—in one case just surviving and in the other just losing. However, despite that position, which I have held all my life, it is my very strong view that the role of your Lordships’ House over these coming weeks and months is not to overturn the result of the referendum in 2016 but to scrutinise the way in which the Government are implementing that referendum result and to try to help to shape the future of the United Kingdom in this new set of circumstances.

For the two decades between 1979 and 1999, a massive debate took place, not just in Scotland but elsewhere in the United Kingdom, about the future of the principle that there should be democratic accountability for Scottish domestic affairs in Scotland within the framework of the United Kingdom. Over the course of those two decades, the debates that took place produced a national consensus—ultimately, the consent for that national consensus was demonstrated in the referendum of 1997—and a scheme in legislation that, despite all the political ups and downs of the past 18 or 19 years, has actually stood the test of time legally, not least because of the contribution of my noble and learned friend Lord Irvine, who was one of the key figures in ensuring that we had a Bill and an Act for Scottish devolution that was intellectually rigorous and would stand the test of time.

In the approach that we take to these decisions post Brexit, we need to apply the same level of rigour and principle as was applied back in 1997, 1998 and 1999. In the two decades since 1999, we have seen too many piecemeal changes, not properly thought through—compromises established because of immediate political circumstances rather than based on the principles of the original settlement. We have also seen over that time, partly because of the political ups and downs but also because of a lack of understanding at the centre of the British state, an inability or unwillingness to reform how the UK Government operate, both in relation to the devolved Governments in Scotland, Wales and Northern Ireland but in relation to its own internal affairs following the huge reform that took place in the decentralisation of power in 1999.

Not only should we in this debate address the principles of the split between devolved and reserved responsibilities post Brexit, but we should also say something about the way in which Brexit, for all its faults and for all the worries that many of us may have about it, provides an opportunity to reinvigorate and refresh the way in which the UK is governed, both at the centre and in relation to the devolved Governments and devolved responsibilities.

First, on the principles, it seems blatantly obvious that the principle at the heart of the Government’s decisions, and, I hope, the legislation that finally passes through both Houses of this Parliament, has to be that the matters repatriated from the European Union should be devolved, unless it is absolutely essential that they are reserved in the national interest. It also seems to me blatantly obvious that, within those devolved responsibilities, there are areas that, of course, the Scottish, Welsh and Northern Irish Governments will get on with and operate autonomously, but there are other areas where there have to be common frameworks. In the same way as there have been common frameworks and indeed common laws across the European Union on issues such as agriculture, fisheries and the environment and so on, over the last 40 or 50 years, we also need to have those common frameworks and perhaps, occasionally, common laws across the United Kingdom. So devolved Governments need to commit, and commit firmly, to those common frameworks.

As I said previously, if we have this debate transparently and openly, we can reach that agreement. The egos and ideologies that are getting in the way of reaching this agreement, in both the British Government and the Scottish Government and elsewhere, have got this fundamentally wrong. They need to get on with making an agreement and allowing us to move on to the next stage—and the next stage needs to include reforming the relationships and a new level of engagement, which could make a real difference to the UK post Brexit. First, the new partnership, sharing common frameworks across the UK that allow for common decision-making, voluntarily agreed by the devolved Governments but firmly agreed and implemented consistently across the UK, could be a new way of working inside the UK that would actually refresh both the UK and the method of government, including attention to detail in policy in Scotland in particular.

I also believe, however, that there is need for a new level of engagement from the Scottish Government and perhaps others in the work of the British Government at home and abroad. In the time of the noble Lord, Lord Kerr, at the Foreign Office, and his successor, the noble Lord, Lord Jay, the Scottish Government were actively involved with the Foreign Office in adding value to the work of the UK internationally, as well as representing Scottish interests. I think that has diminished over the past decade. I believe there is a real opportunity here—in international trade negotiations, representing the Scotch whisky industry, food and drink, oil and gas, in internal debates on immigration, in all these areas—for fresh engagement and a new, fresh voice for Scotland that I hope the Scottish Government will be willing to seize.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, I thank the noble Lord, Lord McAvoy, for his generous donation of further time to allow me to answer all these questions. I also congratulate him, of course, on his elevation to Chief Whip. I look forward to hearing much more from him in that capacity.

There are, I suspect, a number of challenges that lie ahead for all of us in trying to grapple with the issues we have touched upon today. A number of noble Lords have reflected on the fact that our union is an extraordinary thing and in many respects we sometimes take it for granted. Indeed, all too recently it almost slipped through our fingers. Yet here we are now. We often talk about our constitution, both written—in several documents—and of course unwritten, but in fact, from 1979 through to 1997 and beyond, the sheer volume of change, evolution and, indeed, in some cases near revolution in the way we administer power within the United Kingdom was fundamental. It is important to recognise, again, how flexible our system can be to allow that sort of change to happen without there being a great deal more angst and unease.

I begin by delving straight in to the question of the repeal Bill, since many noble Lords touched upon it. Clause 11 needs to be amended: it is not going to work in its present form. The important thing to stress is that it was not for want of effort on our part—the noble and learned Lord, Lord Hope, was quite correct—to secure a form of words that would allow the two devolved Administrations and the UK Government to reach a consensus on that point. The key thing, and this is why I stress the point, is that this is part of the respect agenda: we must find a form of words with the devolved Administrations to secure progress going forward. As all have noted and accepted, if we do not secure that form of words, the legislative consent motion we will need will not be made available. Then, a constitutional crisis, to use that slightly hackneyed phrase, will be upon us. That is why every effort is being made to ensure that we can find that form of words with the Ministers from Scotland and Wales—always recognising that we are also reliant upon the civil servants in Northern Ireland—who must give us guidance on how we are going to take this matter forward. I wish I could tell noble Lords right now that we have that form of words: I cannot, but I know that discussions are ongoing and all are aware that the time for those words to be agreed is slipping gently away. I believe that on all sides there is now a recognition that we must secure these words if we are to make the progress we would like to make.

The wider question has been asked about the common frameworks and the nature of the laws, and how they will move and migrate. Is work going on to establish exactly what the common frameworks will look like and whether there will be clarity? I assure noble Lords that that is indeed happening. It is being done under the slightly euphemistic term, “the deep dive”: in each of the policy areas a deep dive involves all those involved in the devolved Administrations—Wales, Northern Ireland and Scotland—as well as the UK Government.

The purpose of those deep dives is to identify exactly the areas where there is no need for a common framework—indeed, those roles would then be fully devolved—recognising which ones must one must remain fully reserved and teasing out the complexities in the middle ground. The noble Lord, Lord Lang, mentioned that very point. This is where it becomes a little bit more complicated, but it can be resolved; that is the purpose of the deep dives. Take, for example, a subject that is very dear to my own heart and to a number of noble Lords here today: fishing. At present, fishing is wholly devolved—there is no way round that; it is a clear statement of fact—but it is devolved within the framework established by the common fisheries policy. At present, every aspect of fisheries is broadly administered by the Scottish Government, on the basis of the established framework. Going forward, the question is, what should replace that framework? In many instances, the answer is that there need not be a common framework and these matters will be fully devolved. For example, issues around what I would term technical measures, such as the mesh size of nets, will continue to be taken forward by the Scottish Government in exactly the same manner as now.

Let me revert to other, perhaps broader questions about quotas and quota management. Here, different questions must be resolved. That is the purpose of the deep dive: not to tell the devolved Administrations what the answer or the UK Government position is, but to ask what will work best for our fishermen up and down the land. No fisherman fishes simply on their own little bit. We have a much more mobile fleet; the distant water fleet fishes all across our territorial waters, as well as those of other countries, including Norway and EU countries. We need to find a way to make that work. That is why, in this instance, oddly enough, the term “deep dive” is probably appropriate. We need to find a way to make sure that we can deliver on that.

Deep dives will take place across all policy areas. In the lead, necessarily, are those that are closely connected to Defra and focus on fisheries, agriculture and the environment. However, a number of others are happening as well—though not quite in lock-step—to secure answers, because these are the key points that will allow the devolved Administrations to have confidence that we have taken their concerns on board and intend to move this forward in a manner that respects both sides.

[Lord McConnell of Glenscorrodale]

On that specific point, we all understand that there is complexity in these policy areas and that there is a difference between the administration of policy and the agreement, implementation and legislation of that policy, whether it be in fishing quotas or anything else. Do the UK Government understand that the key point of principle is not whether there should be a common framework but whether one should be imposed from the centre—or whether the agreement to have a common framework and commit to it should be voluntary on the part of the three devolved Governments and the UK Government representing England?

[Lord Duncan of Springbank]

I thank the noble Lord, Lord McConnell, very much for his intervention. The respect agenda is at the heart of the answer to that question. The deep dives are vital for each of the participants to recognise that the solution needs a common framework to address the particular challenges. There will be tensions—I do not doubt they will exist—where there is disagreement, where one of the Administrations say, “Actually, in this particular area, we believe this and the other one disagrees with it”.

Part of the bigger challenge is the movement of rules coming back from the EU, where there are—as the noble and learned Lord, Lord Wallace of Tankerness, pointed out—111 laws that directly affect Scotland. For Northern Ireland, it is more than 140; for Wales, it is around 60. Of course, because of the devolved settlements, the rules are different; so again, the point is to try to find areas of common consensus. In truth, representatives of the various individuals who are part of the stakeholder community will each have to be able to defend their points to the stakeholders, to explain to them why they are arguing one way or another. Those stakeholder communities must also lend their acceptance to this particular point, because upon the hearing the outcome of these discussions, they cannot—and should not—rise up in arms and say that it is an absolute travesty and a scandal. They should be satisfied that this is the best and right way of doing things. The important thing to emphasise is that this is not in any way an attempt by the UK Government to demand certain concessions from the devolved Administrations. That is not the ambition at all.

On the wider question of the institutional arrangements whereby the various parties come together and meet, there have been challenges. There is no point in pretending otherwise. I have a very helpful list somewhere. Noble Lords have asked very thorough questions so I have many pieces of paper; I am now hunting for the right one. We had a hiatus between February and October 2017 for one particular reason: the election. That slowed things down quite considerably. The important thing to stress is that for a very long period, the JMC’s arrangement had been all but moribund: it had not been a functional part of the engagement between the devolved Administrations and the UK Government. Recognising that that was no longer fit for purpose, the UK Government have sought to expand the number of forums by which we have agreement under the JMC, as well as recognising that the frequency of those must therefore be driven by the necessity of the particular issues. That is why what would have been the traditional ongoing European legislation—which was the most important forum for the focused issues before the devolved Administrations—is, if anything, the quieter forum. The negotiations forum is now absolutely critical, as is trying to make sure that there are opportunities at those meetings for a free and frank discussion. There are, and I can assure noble Lords that the discussions are very free and very frank.

There are challenges. I am reminded of the words of the noble Lord, Lord Bruce of Bennachie. At the outset, one of the challenges in this area was that it was very hard to reconcile the demands of the different Administrations because they were not bridgeable in simple terms. So, the notion and the paper put forward by the Scottish Government could not be easily reconciled with the reality of what the UK Government believed they had to deliver after the referendum. That caused a lot of the political tensions. It is very hard to meet on common ground when one party is on one side of the chasm and one is on the other; you end up falling to the bottom like Wiley Coyote, with your arms flailing in the air. We were trying to avoid that outcome. It is bridge building that gets us across the chasm, I hope.

We need to give some consideration to the situation in Northern Ireland. Many noble Lords have rightly mentioned that there is a void in Northern Ireland. We cannot pretend otherwise. I can assure noble Lords that my right honourable friend the Secretary of State for Northern Ireland is actively pursuing facilitating the dialogue required to develop a functioning Executive. On more than one occasion, I have said from this Dispatch Box that Northern Ireland is ill served without an Executive. Although the civil service there can do a great deal to help in many different areas, they cannot do everything. That is why it is important to recognise again the need for a realistic and functional dialogue. Those talks are ongoing; we hope that those around the table will recognise the importance of securing agreement on this occasion but we recognise the challenges that we face.

On the question—again, raised by a number of noble Lords—of the agreement reached by the UK Government and the EU before Christmas, which touched on Northern Ireland and the border question, it is important to recognise that that is but one step toward a larger agreement between the UK and Northern Ireland. Without that agreement, there will be significant challenges for both sides. That is why, in this instance, the ongoing negotiations again seek to address the challenges. One would hope that through that, the negotiations will deliver the Northern Ireland question as part of a bigger settlement. Those negotiations are ongoing. I believe—this is where it becomes important—that we often find ourselves, particularly when following certain newspapers, caught up in an almost daily crisis of one sort or another, with the narrative driven forward in that fashion. However, if we step back and think about it, just before Christmas the UK Government managed to deliver on what they said they wished to do: secure agreement on these three key areas, to allow negotiations to begin shortly thereafter. They achieved that. From some of the reporting, you would have thought that they had failed, but they did not. They moved things forward in that fashion.

The time ahead will not be straightforward. I realise that we will have plenty of opportunities to discuss further the questions that underlie the repeal Bill. I am sure that many of the contributions made today will help inform the Government as they begin to think about how best to approach the investigations into the repeal Bill and its functionality. But we will have to resolve those questions here in such a fashion that we can return those amended clauses to the House of Commons to allow them to deliver upon that. I believe that we will make a difference and, indeed, do what this House always does: seek to make things better. I think the Government will appreciate the work done here in that area.

We have to recognise that the union is perhaps something larger than just the moment of Brexit and the discussions that surround it. A number of noble Lords have pointed out today that immediately after the referendum on Brexit, there was a great fear that our union would itself begin to experience some of the challenges but in truth, there has been a degree of resilience. As we witnessed through the, shall we say, unexpected general election last year, the parties that had perhaps anticipated doing better, certainly in Scotland, did not do so on the basis of what they offered the people. That should be a salutary reminder to anybody who believes that they have the people behind them: it is always worth looking over your shoulder, just to make sure they are still there. You cannot take the people for granted in this regard. The result of that election was a useful reminder to us all to focus on what the people want, whether that be the people of Scotland, the people of Wales or, I hope soon, the people of Northern Ireland.

We in this House must recognise that we have a role to play in ensuring that our union works, and works well. That is why I am indebted to my noble friend Lord McInnes for bringing before us today an opportunity to discuss and explore these issues. It is timely because next week, we will be knee deep in thorough discussions on the questions before us regarding repeal. As I try to answer the questions, I am aware how useful that will be to my colleagues in facilitating, I hope, the right sort of dialogue as we go forward. But I am also aware that there is heavy lifting to be done and we have not yet resolved these issues. On the question of Clause 11 as it affects the devolution settlement, we need to be able to bring before your Lordships a workable amendment that can deliver exactly what it says on the tin—and when we tell your Lordships that we have it, we are telling you that other people in Edinburgh, Wales and, through consultation, Northern Ireland agree that this is the way forward. That should allow us to make that necessary step.

When I began my remarks, I pointed out that in some respects we have been through a revolution, as only Britain can do, in the way that our powers have moved. But we have done so in a piecemeal fashion; again, a number of noble Lords made this point. We need now to refocus on trying to ensure that we are not making stumbling progress but have a clear objective: to make sure that the devolved Administrations fit into a sensible and workable government structure for the United Kingdom. People have to recognise that whether they are in Edinburgh, Wales or Northern Ireland, they have two Governments, not just one. It is important to stress that. Again, we need to be better at explaining to people what the Governments are doing and what their actual responsibilities are. Quite often there is sheer confusion on these points.

Scottish Independence Referendum

Lord McConnell of Glenscorrodale Excerpts

Tuesday 14th March 2017 Lords Chamber

[Lord Wigley (PC)]

My Lords—

[Lord McConnell of Glenscorrodale (Lab)]

The last referendum left a deep legacy in Scotland of division that affected families, friendships and communities. During that referendum, there was regularly a real problem of aggression and, occasionally, violence. Can the Government guarantee that, in any discussions that take place over these next two years about the possibility of another referendum in Scotland, they will keep uppermost in their mind the need to ensure that any debates are conducted properly and that the leadership of those debates behaves in a way that inspires people positively?

[Lord Dunlop]

All political debates should take place with courtesy and respect; the Government would obviously want to promote and uphold that. The key question here, however, is whether there should be another Scottish independence referendum. The Government are absolutely clear that there should not be.