European Union (Withdrawal) Bill

Paul Masterton Excerpts

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

[Ian Blackford]

Indeed, although I am not quite sure what the hon. Gentleman is referring to when he talks about regions, because we always say that this should be about an equality of nations within the family of nations of the United Kingdom. The issue of sovereignty has been raised in that context. We should remind the Committee that, although we often hear about parliamentary sovereignty, that does not apply in Scotland because the legal case that prejudices our position is MacCormick v. the Crown in 1953, which established that parliamentary sovereignty is a purely English concept that has no counterpart in Scottish constitutional history. It is the people of Scotland who are sovereign.

A recent survey by 38 Degrees shows that 62% of Scots want the responsibility over devolved areas currently held by Europe to be transferred straight to the Scottish Parliament. That is the settled will of the people of Scotland.

[Paul Masterton (East Renfrewshire) (Con)]

Will the right hon. Gentleman give way?

[Ian Blackford]

I will give way later.

The Scottish and Welsh Governments have tabled a number of key amendments to the Bill—amendments 164, 165, and 183 to 188—through SNP Members and Labour Members. I am delighted that these amendments have all been selected for debate today, and I will leave my friends to speak to the amendments in their own names. It must be recognised that there is deep disapproval from the devolved Administrations in Cardiff and in Edinburgh about not only how this legislation was drafted, but the extent to which it disrupts the functioning of devolved competences.

During the referendum campaign last year, Scotland was promised all sorts of powers. The Environment Secretary told BBC Scotland that Scotland would get immigration powers with a leave vote. The former Member for Birmingham, Edgbaston promised Scotland powers over fishing and agriculture. But here we are, 17 months after the referendum. There are no new powers for Scotland. In fact, Brexit means Scotland losing powers. [Interruption.] I can hear huffing from the Government Benches. I invite any Government Member to rise now and name one power—just one—that will come back to Scotland as a consequence of Brexit.

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[Paul Masterton]

Is the right hon. Gentleman not just demonstrating how out of the loop he is with his own party, given that the Brexit Minister, Mike Russell, knows full well what those discussions have been about? Secondly, is the position of the SNP at Westminster different from that in Holyrood, because the SNP there has said explicitly that it agrees that agriculture and fisheries are areas where UK frameworks will be needed?

[Ian Blackford]

I am surprised at that intervention from the hon. Gentleman. I expressed right at the outset of my speech that we recognise that progress was made, but that progress has not been sufficient to justify the SNP supporting this Bill tonight. The whole point about our position is that we want to see frameworks in place, but we can move forward on that only when the UK Government are prepared to negotiate. Why was there a six-month period when the Joint Ministerial Committee did not meet? If there is any blame in this matter, it lies with those on the Government Benches.

I can tell the hon. Gentleman that there is not a fag paper between the position of the SNP on these Benches and that of our colleagues up the road in Holyrood. We are united, which is more than can be said of the Conservative party, because Ruth Davidson is delivering a very different message from the one that is being delivered by the Conservatives down here. Ruth Davidson recognises the threat to Scotland of being out of the single market and the customs union. The Scottish Conservatives would serve the interests of the people of Scotland if they recognised that there is an economic threat from being outwith the single market and the customs union.

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[Paul Masterton]

I am grateful to have the opportunity to speak, as a Scottish Conservative MP and as a member of the Scottish Affairs Committee, on what I believe is being termed devolution day. I draw Members’ attention to the Committee’s—in my biased view—exceptional report, which our Chair, the hon. Member for Perth and North Perthshire (Pete Wishart), may well highlight at some point. The report was unanimous, and it draws on huge amounts of common ground between Scotland’s two Governments. That suggests that despite some histrionics, consensus exists on this area of the Bill, and that consensus will enable us to improve the Bill.

We must recognise that the debate takes place in the context of active, and now constructive, talks between the UK and the Scottish Government. That makes it a little difficult to debate the words on the page, because there are so many moving parts, but I will focus my remarks on where I believe clause 11 needs to end up and the route that the Scottish Conservatives envisage for getting there.

As has been addressed, several provisions of the Bill fall within the scope of the Sewel convention; in other words, the Scottish Parliament and Welsh Assembly have been asked to give their consent to the Bill. The Scottish and Welsh Governments have signified that, unless the Bill is substantially amended, neither will recommend that consent be given. The UK Government’s position is, I believe, the right one. They are committed to working to obtain a legislative consent motion and expect to achieve one.

As Scottish Conservatives, we are committed to ensuring that the Scottish Parliament can give its consent to the passage of the Bill. As Members may not all be aware of the timescale, I will explain that the plan is for the Scottish Parliament to vote on whether to grant a legislative consent motion ahead of the Third Reading of the Bill in the other place. It is not an all-or-nothing event; it is perfectly possible for an LCM to be initially denied, and then for another vote on granting an LCM to be taken and passed at a later date.

Although, as readers of The Daily Telegraph will be aware, I have a number of issues with the Bill, by far the biggest concern regarding devolution is clause 11. It is my view that if we can fix clause 11, most of the other issues regarding the Bill’s impact on devolution will fall away. On Second Reading, I said that I would not allow legislation to pass that undermined the Union or the devolution settlement, and that remains my position today.

There are 111 powers currently exercised at EU level that do not fall within reserved competence under the Scotland Act 1998 and are therefore, under the scheme of the Act, devolved. Clause 11 will effectively hold those powers at Westminster level. Although that is a sensible interim measure, as the Scottish Affairs Committee heard in evidence during its enquiry, the interim phase has given rise to the “power grab” melodrama that we have heard from the SNP.

[Alison Thewliss (Glasgow Central) (SNP)]

Would the hon. Gentleman like to tell us how interim interim is?

[Paul Masterton]

If the hon. Lady will bear with me, I am coming on to talk about that.

Clause 11 provides that the 111 powers that I have mentioned will be released to Scottish Ministers on a case-by-case basis once UK Ministers are satisfied that it is safe to do so. There is no timescale for that, and the process is unilateral. Under clause 11, the powers, once repatriated from the EU to the UK, are for UK Ministers to exercise or to devolve, as they see fit.

[Joanna Cherry]

The hon. Gentleman is pouring some scorn on the phrase “power grab”. He might be interested to know that the first person to use the words “power grab” in relation to the process was not a member of the Scottish National party, but the former Prime Minister, Gordon Brown.

[Paul Masterton]

The hon. and learned Lady and I perhaps have different definitions of what is interesting.

Ostensibly, amendment 164 and the consequential amendment 165 to schedule 3 are in the names of Opposition Members, but they have in fact been tabled on behalf of the Scottish and Welsh Governments. This distinction is important, and Ministers should be mindful of it. The amendments would turn clause 11 on its head, repatriating all 111 powers directly to Holyrood. Brexit must be delivered in a way that respects devolution, but it would plainly be contrary to the interests of the United Kingdom as a whole for the devolved Administrations in Edinburgh or Cardiff to be able to use powers formerly held at EU level to pull apart Britain’s three centuries old internal market. The fact that Britain is a single employment market, with no barriers of any sort on the movement of people, goods or services is core to the case for the Union.

[Pete Wishart]

The hon. Gentleman is a very assiduous member of the Scottish Affairs Committee, for which I am grateful, but surely he must agree with, recognise and accept the basic premise that clause 11, as currently constituted, is unacceptable and needs to be significantly reformed?

[Paul Masterton]

I absolutely agree, but the point is that the amendments proposed by the Scottish and Welsh Governments go far too far. There is some middle ground, on which, if the hon. Gentleman will allow me, I will set out where I believe we can get to.

[Neil Gray (Airdrie and Shotts) (SNP)]

Some of the hon. Gentleman’s Conservative colleagues have proposed their own amendments on other areas of the Bill. Why has the Scottish Conservative group of MPs not tabled any amendments to clause 11 if they share his concern?

[Paul Masterton]

For the simple reason that there is another JMC meeting on 12 December, and we do not believe it is right to prejudge or prejudice the outcome of those negotiations. There is going to be an agreement, and it is much better to allow such an agreement to be reached and incorporated into the Bill.

Much has been devolved since 1998, but nothing that jeopardises the UK’s single internal market. It would be in the interests of neither consumers nor producers for product safety and consumer protection rules to be different across the nations of the United Kingdom.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

Will the hon. Gentleman give way?

[Paul Masterton]

I am going to make some progress.

These rules are now uniform throughout the UK and many, but of course not all, should remain so after Brexit. Amendments 164 and 165 go too far and are dangerous to the Union. Frankly, I am startled that Scottish Labour—only one Scottish Labour MP is here—and Scottish Liberal Democrats are prepared to support these amendments, which could so fatally undermine the integrity of our Union. The Scottish Conservatives will not support them. However, I want to make it clear that my vote with the Government should not and must not be taken as an acceptance of clause 11 as it stands.

[Christine Jardine (Edinburgh West) (LD)]

I am astonished. Does the hon. Gentleman not agree that continual discord, arguments about the constitution and a perceived threat to the powers of the Scottish Parliament are more of a threat to the United Kingdom than anything proposed in any amendment in Committee today?

[Paul Masterton]

I thank the hon. Lady for her intervention, but I do not agree. I think that amendments 164 and 165 are fundamentally dangerous to the Union, and it would be dangerous for the integrity of the Union to pull them into the Bill.

[Dr Whitford]

Does the hon. Gentleman not accept that the principle of the Scotland Act 1998 was that what was not reserved was devolved? These powers could easily go to the devolved nations, which could then sit around the table. Their voices would then be heard properly in any national framework, and they would not simply be told what it would be.

[Paul Masterton]

If the hon. Lady was listening, she will have heard me say that I agreed that that was the purpose of the 1998 Act. I am coming on to say explicitly that clause 11, as drafted, is not fit for purpose and must be changed. It does not need to be tweaked a little; it needs to be amended and replaced with a new version. However, I do not consider now to be an appropriate stage in the process at which to demand a new draft to be brought before the House.

I fully accept that this issue is linked to active conversations tacking place between Governments, and I share my hon. Friends’ concerns about the fact that introducing new drafting to reflect where I believe we need to, and should, end up—indeed, where we will more likely than not end up—would pre-empt what are now and are expected to continue to be fruitful negotiations between the UK and Scottish Governments. I am prepared at this stage to give the UK Government the time and opportunity to take forward these matters, on the clear understanding that both sides need to move from where they now are on clause 11. We are beginning to see movement: we can see it in the constructive JMC (EN) talks, the next meeting of which will be on 12 December, and Scottish Conservatives stand ready to help broker a compromise. In our view, the impasse is readily solvable. Most of the 111 powers are technical and regulatory.

[Joanna Cherry]

I ask the hon. Gentleman to seriously consider what he has just said. He said that most of the 111 powers are technical and regulatory. Is he aware that the list affects huge swathes of our justice system in Scotland? Does he consider our devolved justice system and separate legal system to be simply technical and regulatory matters?

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[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

Order. I am always grateful for the help of the hon. Member for Paisley and Renfrewshire North (Gavin Newlands). Thank you very much. Mr Masterton must have a chance to answer the point made by Ms Cherry before we have any further interventions, although there will probably be another one in a moment.

[Paul Masterton]

Again, I draw the attention of the hon. and learned Member for Edinburgh South West (Joanna Cherry) to the fact that I said that most of the 111 powers are technical and regulatory. They cover areas either where divergence in policy between UK and Scottish Government Ministers would not be a threat to the integrity of the UK internal market, or where consistency could be maintained through non-legislative options. Those powers should be devolved to the Scottish Parliament on exit day, or as close to it as can safely and realistically be achieved.

In respect of those powers where there is a legitimate UK interest in uniformity across the UK—that is, where divergence between the nations of the UK would be contrary to the UK’s interests—it would be unsafe to allow them to be devolved without providing for constraints on how they may be used. It is in those cases that we will need common frameworks, a concept accepted as necessary by UK, Scottish and Welsh Ministers. Aspects of agriculture and fisheries are among the examples where it has been accepted that there will be a need for common frameworks.

As confirmed to the Scottish Affairs Committee by the Secretary of State for Scotland, if the frameworks are to be acceptable to the Scottish and Welsh Governments, they will have to be negotiated and agreed, not imposed top down by the UK Government. That suggestion is fairly straightforward. Each of the 111 powers will either fall to be wholly devolved to the Scottish Parliament, or the UK will step into the shoes of the EU, replacing an EU-wide framework with a new UK-wide framework, for which administrative competence will largely rest with the Scottish Parliament.

Although we will not seek to amend clause 11 at this stage, we will, in exchange for supporting the Government on amendments 164 and 165, require confirmation from Ministers that they will expedite discussions with the Scottish Government further. We seek quick progress, looking ahead to the next JMC (EN) in December and into January, and in any event certainly before the debate on Report.

My focus at this stage is very much on the framework negotiations running parallel to this debate, but I ask that the UK Government give me the assurances I seek that they will move forward urgently through the JMC (EN) with, first, identifying and agreeing areas where there is a need for legislative common frameworks; secondly, recognising that the other powers can be devolved immediately on EU exit, including as many of those where non-legislative solutions on maintaining consensus have been agreed; and thirdly, settling how the common frameworks will be agreed. I expect an assurance on the first two issues to be given by the debate on Report, and if the third has not been given by then, I expect clear and significant progress to have been made.

In time, clause 11 will need to be replaced to reflect that, but I recognise that its final form will be linked to the points I have listed, so I do not ask for, or expect, that change to be made now. Looking ahead, once agreement is reached on where frameworks are needed and how they will be agreed, I believe that clause 11 should include a draft default setting, so that the power would be held by UK Ministers until a common framework is agreed. Crucially, however, that default setting could apply only in areas where it was established that there should be a common framework and the mechanisms to reach agreement on a framework have failed.

A lot of work needs to happen between now and then, primarily on moving the frameworks on through the JMC (EN). That is why my focus will stay on that for now. I say again, however, that my vote against amendments 164 and 165 tonight is conditional and must not be taken as support for clause 11 as it stands.

[Christine Jardine]

What action will the hon. Gentleman take if amendments 164 and 165 are not passed and his demands do not come to pass? Would it not be more sensible to just support the amendments?

[Paul Masterton]

No, because I do not believe that amendments 164 and 165 provide the position in which I think clause 11 could and should end up. I have been very clear—I said this on Second Reading and I have said it again tonight—that I will not support a Bill that undermines devolution and does not respect the integrity of the Union. I do not think I could have been any clearer to Ministers.

I consider my argument to be reasonable, pragmatic, achievable and, crucially, acceptable to both of Scotland’s Governments. There is much at stake. If the steps I have outlined are not completed, the consequences are quite simple: LCMs will not be granted by the devolved Administrations and the other place will not pass the Bill. I genuinely believe that that is not a situation in which any of us want to find ourselves, and I look forward to receiving the necessary assurances from the Minister in his closing remarks.

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[Ian Murray]

I am grateful to you, Mrs Laing. I apologise to the Committee for digressing, but these are incredibly important matters—and actually they are directly connected to my amendments, because they about keeping the devolved Administrations informed and involved in the process.

The hon. Member for East Renfrewshire said he was seeking reassurances. What we have seen since lunch time should give him cause for concern that no assurances will be forthcoming, which is why we must put in the Bill the requirement that the Government keep the devolved Administrations properly informed. This is about not just the devolved Administrations, but the people they represent.

[Paul Masterton]

Does the hon. Gentleman not accept that his amendments would allow every single one of the 111 powers to be immediately devolved from day one, with no constraints, and that they would therefore enable all the devolved Administrations to do whatever they wanted, meaning that we could have divergence from day one? He believes in continuity and maintaining similarities between the four components of the UK. Does he not understand why his amendments would be dangerous to the integrity of the UK’s internal market, given that from day one the four component parts of the UK could go off and do whatever they wanted?

[Ian Murray]

I will answer that directly when I talk about the Law Society of Scotland’s possible options. We could devolve everything and then put agreements in place, if the JMC and intergovernmental relations worked properly. There are therefore several other options, and it is not just me saying that, but many of the organisations that have commented on the Bill.

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[Ian Murray]

I normally say that I am grateful for interventions, but in this instance I will refrain. I do not think that the question of how many members of how many parties are in the Chamber at any particular time is relevant. What is relevant is ensuring that Members are in the Lobby tonight. I hope that 13 of the hon. Gentleman’s Scottish Conservative colleagues will go into the Lobby with us to change the Bill, because that is what is important. This is about voting, not about talking and then doing nothing.

[Paul Masterton]

The hon. Gentleman is giving a very good speech, but he is not giving a speech in support of his own amendments; he is giving a speech in support of a middle ground between the positions of the UK Government and the Scottish Government. Does he not understand that his amendment would devolve everything from day one, with no constraints, thereby enabling all four constituent parts of the UK to do whatever they wanted? That is not the Labour position, and it is bonkers.

[Ian Murray]

It is funny that the hon. Gentleman now calls my position bonkers after seeking assurances that amendments 164 and 165 would be carried by the Government to ensure that clause 11 became much more appropriate. Perhaps he will intervene again and tell us exactly what he meant, because I am confused. He seems to want to support my amendments, not to support my amendments, to seek assurances, to vote with the Government, and to back Ruth Davidson. I am not sure where he stands.

[Paul Masterton]

The hon. Gentleman does not seem to have read his own amendment. I do not want either clause 11 as it stands or clause 11 as suggested by the Scottish and Welsh Governments, because both go too far. We need a middle ground, and that means knowing what the position will be in relation to powers. We do not seem to be too far apart, but the hon. Gentleman is intending to vote for something that he is not arguing for.

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[Pete Wishart]

He is saying that it is, so I will accept that.

[Paul Masterton]

Does the hon. Gentleman accept that the amendments he is discussing do not reflect the recommendations of the Scottish Affairs Committee and go further than those recommendations? Does he therefore understand why we as Scottish Conservatives are not in a position to support those amendments? It is not about talking Scotland down or being whipping boys for the Conservative Government, but a recognition that that is not the agreeable position where the Scottish Affairs Committee landed?

[Pete Wishart]

I am grateful to the hon. Gentleman, because I said that. I said that the amendments do not directly match our recommendations, but that they are in roughly the same territory. I think that he will agree with me about that. He is right that they do not match.