Scotland: European Union (Withdrawal) Bill

Debate between Lord McAvoy and Lord Wallace of Tankerness

Thursday 14th June 2018 Lords Chamber

[Lord McAvoy (Lab)]

My Lords, I thank the Minister for repeating the Statement. This House debated the vital issues of devolution over a number of hours and days during the passage of the EU withdrawal Bill. I pay tribute to noble Lords on all sides of the House for interrogating the Government on the issues with care and a wealth of knowledge. This House agreed a package of amendments to be sent back to the other place for their careful consideration. It is, frankly, remarkable that the Government provided less than 20 minutes for the elected House to debate the proposals in front of them on issues as fundamental to the union as devolution and the future of the Northern Irish border.

When this House gave the Bill its Third Reading, we expressed our regret at the absence of a legislative consent Motion from the Scottish Parliament and our hope that the UK Government would convene cross-party talks with the Welsh and Scottish Governments to look at ways forward. We are informed that requests for such talks, including by the shadow Secretary of State for Scotland, have been declined. This is, at the very least, disappointing.

The Government did not give enough thought to devolution in their drafting of the Bill, as in many other areas, and brought forward a flawed piece of legislation. The Government’s own Ministers conceded this point. A great deal of time and debate went into trying to address problems which are in part of the Government’s own making. It is unreasonable, at the next stage of that process, to claim that there is no time left for the other place to have a full debate on the new Clause 11 that it was promised.

We have repeatedly asked the Government to think more carefully about the devolution settlements, and the place they have in upholding our union and shaping the future of the Brexit negotiations. Are the Government actively considering Her Majesty’s loyal Opposition’s calls for the Joint Ministerial Committee to be put on a statutory footing, and have the minutes of its meetings published? We have a situation and there has to be a discussion, agreement and consensus, and I hope that the Minister can provide some hope in that quarter.

[Lord Wallace of Tankerness (LD)]

I thank the Minister for repeating the Statement. I am not sure whether to thank him for the name check, which was a fairly broad interpretation of a somewhat more complex legal point. However, clearly, the Statement was made in the other place in response to the failure to have an adequate debate on the Lords amendments and following on, too, from the stunt of the SNP walking out yesterday. However, anyone with even a limited knowledge of Scottish politics knows that the SNP is a grand master at cranking up the grievance machine. Can the Minister therefore say why the Government gave them a gift-wrapped grievance to exploit?

We must also ask about the role of the Secretary of State for Scotland. Let us recall that he promised the House of Commons that amendments to Clause 11—which was, by that stage, completely discredited—would be tabled in the House of Commons on Report. That did not happen. I think there was some forbearance, when the Bill came to this House, because we took the view that, if time was needed to get these amendments right, then time should be taken. Indeed, we had good debates in Committee and on Report and even some further debate at Third Reading. But that was done on the expectation that Scotland’s elected Members, not just the SNP Members but those from the Conservative Party, Labour Party and Liberal Democrats—and indeed Welsh and Northern Ireland Members, because it affects their constituents too—would have a proper and adequate opportunity to look at these amendments. They are a total recasting of the devolved situation post Brexit and the Government must really answer why they did not arrange the timetable in such a way as to allow that to happen. We are entitled to ask whether the Secretary of State for Scotland made representations for the timetable to be arranged in such a way for there to be adequate debate. If he did not, he was derelict in his duty and, if he did, I ask the Minister what conclusions can we draw about the weight he carries within government in as much as these representations were overlooked?

If one goes to the substance of the Statement, it says that:

“While the devolution settlements did not predict EU exit, they did explicitly provide that, in situations of disagreement, the United Kingdom Parliament may be required to legislate without the consent of the devolved legislatures”.


It is of course the case that, legally, Section 28(7) of the Scotland Act 1998,

“does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.

That is a statement of the sovereignty of the United Kingdom Parliament. Section 28(8) goes on to state:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.


As the Supreme Court found in the Miller case, it is a convention and, therefore, it is a perfectly legal position that the United Kingdom Parliament can legislate. Can the Minister indicate—it may be that he has not had time to look back at exactly what Lord Sewel said—whether Lord Sewel explicitly said, as was claimed in the Statement, that in some way this would be used as a form of dispute or disagreement resolution? I would quite like to know where this explicit reference to that came from.

We know that this particular Bill is a forerunner to agreeing frameworks. The principles of the frameworks for the United Kingdom were agreed by all parties at the Joint Ministerial Committee on EU Negotiations back in October. Can the Minister indicate what steps have been taken to put some meat on to the frame of these frameworks? Has the position that has been taken by the Scottish Government—indeed the Scottish Parliament—in any way hampered these discussions in recent weeks, both at official level and at ministerial level?

For my final point I just return to the issue of dispute resolution because, if we are going down the road towards UK frameworks, it is important that we have a better form of dispute resolution than taking the sledgehammer to what has happened in the meantime. We want to know what thought has been given by the United Kingdom Government, in discussion with the devolved Administrations, to ensure that there is far better dispute resolution than we have had to date.