European Union (Withdrawal) Bill

Deidre Brock Excerpts

Committee: 4th sitting: House of Commons
Monday 4th December 2017 Commons Chamber

[Ian Murray]

But that assumes that we automatically start from the position of hoarding the powers here at Westminster, and I disagree with that principle. The principle must be that when a power is currently devolved to the devolved Administrations, that power should remain devolved—it is very simple. I accept that Members might not agree with that principle, but it is fairly sensible. My amendment 164 would merely remove from section 29(2)(d) of the Scotland Act 1998, on legislative competence, the words “or with EU law”, meaning that everything else would have to be compatible with the Act.

[Deidre Brock (Edinburgh North and Leith) (SNP)]

rose—

[Ian Murray]

I give way to my parliamentary neighbour.

[Deidre Brock]

The hon. Gentleman mentioned the hoarding of powers at Westminster. One of the biggest problems that I see with clause 11 is that, ultimately, Scottish Ministers will not be able to amend retained EU law, potentially for an indefinite period, although UK Ministers will. That is completely against the word and spirit of the devolution settlement.

[Ian Murray]

It is against the spirit of the devolution settlement, but it is also against the spirit of the referendum that we heard about earlier. The Scottish people, the Welsh people and the Northern Irish people voted for devolution.

There is no doubt that clause 11 is using a sledgehammer to crack a nut. There are many other ways of legislating that would allow a transition on day one that would respect the devolution settlement. The Law Society has put forward such options. As the leader of the SNP said, the way in which the Government are using clause 11 is clear. There is no sunset provision and no timetable is attached. There is no list of powers, and there is no indication of when certain powers should be given priority. There is no commitment to intergovernmental working and there is no real commitment to devolution. We were diverted to today’s discussions in Brussels because that is part of the disrespect for the devolution settlement in this country, which is why the process has become so difficult.

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[Mr Jenkin]

I have an open mind on that, and I have fiddled around with my amendments, which have not appeared on the order paper today, to see whether we can find a way of doing that. I do not know whether this is the right Bill through which to do that—probably not—but such things are statutory in other decentralised systems. There clearly needs to be something much more formal, but we should perhaps experiment without statute first to see whether it is necessary. My Committee took evidence from one civil servant and a former Speaker’s Counsel who said, “It has worked very well for the past 300 years, so why do we need statute?” but that does not recognise that we now have competing political centres with, I repeat, competing narratives about what the constitution actually is. SNP colleagues talk about the natural sovereignty of the Scottish people, but the legal constitutional reality is that the Queen in Parliament in Westminster is still absolutely sovereign. Those things need to aired, discussed and understood.

[Deidre Brock]

Further to that point, the Scottish Government have consistently made it clear that they cannot support the Bill as it stands, so if the UK Government do not vote for amendment 72 tonight, would that not render the Sewel convention completely pointless and not worth the vellum it is written on?

[Mr Jenkin]

I hear the hon. Lady’s impatience, but we need to be more patient. We are not completing the consideration of this Bill this evening, and I am encouraged by the work done by the First Secretary of State, who chaired the last meeting of the Joint Ministerial Committee and seemed to be drawing people together around some agreed principles for how joint frameworks might be approached. We all want to see that, so let us hope that that work will continue.

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[David Duguid]

I do not recognise those concerns. As has been said by several hon. Members tonight, this is a matter of trust, and I accept that it is probably far easier for Scottish Members on the Government Benches to trust the Government to get on with the job of delivering the Bill as required.

As I said, the leaders of the devolved Governments have an opportunity to help shape the UK’s exit from the EU. This is important because there is a universally recognised need for UK frameworks to protect sectors of our economy heavily influenced by EU laws, particularly agriculture and fisheries, which are very important to my constituency. It is universally recognised, including by the Scottish Parliament and the Welsh Assembly, that UK frameworks are necessary and must be established, not imposed, as has been mentioned. This should be done in full partnership with the UK Government. That recognition was shared in what I thought was quite a beautiful moment between the Secretary of State for Scotland and the hon. Member for Edinburgh East (Tommy Sheppard) in a recent meeting of the Scottish Affairs Committee.

[Deidre Brock]

The hon. Gentleman talks about devolved Administrations being involved in discussions, but none of them is involved in the negotiations themselves, because of the UK Government’s decision to exclude them. Does he agree that in the end that was a big mistake?

[David Duguid]

The UK Government are interacting actively with the devolved Administrations, but it has to be recognised that it was the UK that voted to leave the EU and it is the UK that has the responsibility for the negotiations.

It is disappointing that the SNP is attempting to undermine the progress made by its Ministers in Holyrood on working towards UK-wide frameworks that work for Scotland. Despite the best efforts of SNP Members, the United Kingdom is still a united kingdom. To expect powers currently held by Brussels to devolve straight to the Scottish Parliament, without a transitional stage in between, is simply not practical or in Scotland’s long-term interests. I say that as someone who believes that Scotland is better off in the Union, whether or not SNP Members agree.

In conclusion, I am confident, particularly given the bending of ears by my Scottish Conservative colleagues and me, that the Government will do right for Scotland. Devolution will be strengthened, but not by these amendments.

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[Stephen Kerr]

I will say this much: it is not that I do not understand people’s concerns about clause 11, because I share some of those concerns. As the intergovernmental discussions progress and the Bill returns to this House, as it will, before it goes to the other place, it is very much my hope that there will be some greater detail in clause 11 to help all hon. Members to have a degree of confidence in its intent.

We are talking about trust, or the lack of trust, and that issue is keeping us from working out a satisfactory agreement. Steps must be taken to underpin the trust that needs to exist on both sides—the UK Government and the devolved Administrations. The UK Government will have to demonstrate trustworthiness in the way that the Bill is amended, as it must be, and the Scottish Government will have to show trustworthiness by committing themselves to the outcome of these talks to the extent that they will publicly state their support for the passage of a legislative consent motion in the Scottish Parliament. To me, that is what trust looks like.

[Deidre Brock]

If the UK Government genuinely wish to show willing towards the Scottish Government and their concerns about the Bill and clause 11 specifically, does the hon. Gentleman not think that powers should be devolved directly to the devolved Administrations first and then that frameworks should be agreed? One wonders what the UK Government are actually afraid of. The hon. Member for East Renfrewshire (Paul Masterton) spoke about powers being devolved when the UK Government think it is safe to do so. Why is there such concern about not sending those powers to the Scottish Government?

[Stephen Kerr]

There are, as we have discussed, either 109 or 111 powers. The Public Administration and Constitutional Affairs Committee report lists 111. There is an issue of trust that we need to address to underpin any eventual agreement. The point is that the Bill will need to be amended. Those amendments will need to reflect where the powers will eventually rest, and whether they will go straight to the devolved Administrations on the day we leave the European Union, or if some will be subject to mutual agreements—memorandums of understanding—that will create the frameworks to support the functioning of the UK’s internal market. I hope very much that the Government will bring forward some detail to add light with regard to those issues.

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Crucially, the discussions and work we are undertaking now with the devolved Administrations will help us establish where common approaches are not necessary. I want to emphasise that we believe that in the majority of the policy areas where EU law intersects with devolved competence, common frameworks will not be required at all, or can be achieved through non-legislative means like concordats, and in these cases clause 11 provides a mechanism to release decision-making powers from the temporary competence arrangement through the Order in Council procedure, giving new powers to the devolved Administrations.

[Deidre Brock]

On the temporary nature of these proposals, why have the Government not chosen just to put in place a sunset clause? Why is no date indicated, because the lack of one creates an enormous amount of uncertainty for everyone?

[Chris Skidmore]

The issue around placing a sunset clause on this provision is that, in a way, it creates an artificial cliff edge. The sole purpose of clause 11 is to ensure that the UK statute book is complete on exit day. We want to ensure that we work towards common frameworks, and that we can ensure that, when we have that statute book prepared for exit day, we have common frameworks and non-common frameworks in place. Having a sunset clause creates an artificial cliff edge to work towards that date, whereas we might want to create some of those frameworks before that date, and there might need to be some corrections to the withdrawal agreement and the EU withdrawal agreement Bill that has been announced, and some deficiencies that need to be corrected. Having a sunset clause is therefore unhelpful for the purposes of this clause in itself.

Returning to the issue of the policy areas where EU law intersects with devolved competence, as I have said, common frameworks will not always be required, or can be achieved through non-legislative means like concordats, and in such cases clause 11 provides a mechanism to release decision-making powers from the temporary competence arrangement through the Order in Council procedure, giving new powers to the devolved Administrations.

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[Deidre Brock]

I appreciate the opportunity to speak. I rise in support of amendments 72, 184 and 185. I am disappointed the Minister will not accept a single amendment or new clause tonight.

It is clear from the amendments that have been tabled, and from many speeches we have heard today, that there is general opposition among Members to the power grab in the Bill, even from people who aspire to be Whitehall Ministers and would wield that power if they did. I also think that the previous Prime Minister—the one who dragged us into this mess with his cunning plan of a referendum—would oppose it. His respect agenda did not run very far, but it did at least run. I urge the current crop of Ministers to aspire at least to clear that very low bar.

The Scottish Secretary has assured us on several occasions that powers repatriated from Brussels will be held at Westminster only temporarily. We could call that the “fluffy protocol”, or the political equivalent of “It’s only resting in my account, guv.” As yet, however, we have seen nothing to suggest there is anything coming down the road to confirm that that is guaranteed to happen. If that were the intention, surely the sensible, logical and easy thing to do would be to have a sunset clause in the Bill that would see the powers transferred to devolved Administrations timeously. Numerous experts, including witnesses to the Scottish Affairs Committee, on which I sit, have advocated that but, like several other things that should have been achieved, that has not happened.

The in-depth analyses of the effects of Brexit that were promised have not been delivered to the devolved Administrations. Some extremely superficial desk research was proffered as if it were the Rosetta stone, but the paucity of what has been delivered leads me to the inescapable conclusion that the Government have no idea what is or might be down the road, or what turns the road might be taking before we get there. The only certainty Ministers seem to have is that the map says “Here be no monsters”. Well, there are monsters, and they are in the Bill. The monsters are those that will damage devolution settlements with the tearing away of responsibility, power and resources from the devolved Administrations to be sucked into the abyss that is a Whitehall trying to deal with Brexit.

Judging by the confusion, bewilderment and disorientation that we have seen so far, just today, in fact, the aftershocks of Brexit are likely to keep hitting the UK—its economy, its international standing and its ability to attract immigrants—for decades. There are no indications that anyone in Whitehall will have the time, patience or inclination to run the rule over coming legislation to make sure that Scotland, Wales and Northern Ireland are properly considered. The devolved Administrations deserve the right to try to mitigate the deleterious effects of Brexit as much as is possible. I believe that the attitudes in each of those Administrations, including Stormont when it gets back on its feet, will differ from those here in great measure on a number of issues. My hon. Friends have already made significant reference to that issue. I appreciate that large swathes of England are about to get sideswiped by the effects of Brexit as well. They undoubtedly have cause for complaint, but I am here to speak for Scotland.