Scotland: European Union (Withdrawal) Bill — House of Lords, 2018-06-14
Topic: Mixed Topics
Ian Duncan (Conservative, Centre-right): My Lords, I thank both noble Lords for beginning what I think is a very necessary discussion on the functioning of the Sewel convention. If I may—to go in reverse order—I will address the question of the frameworks themselves and their functionality, because I think this is where we need to focus our attention. These have been the subject of extensive engagement at an official level. If we add up the number of hours that have now been spent with officials examining each of those frameworks, we are in excess of 100 hours of meetings specifically to look at the functioning of the frameworks themselves. A phrase that comes to mind is: "officials are smiling on it", which we always widely interpret as things are going quite well—but officials smiling is not the same as Ministers themselves signing it off. One challenge that we have often had is that what appeared to be agreement at the level of the officials—where examination on the detail of the frameworks themselves appeared to be reaching consensus and agreement—did not always match and meet the next step of making sure that Ministers themselves were able to sign that off. That has been one of the greater challenges that we have experienced because, again, this is without precedent. We are trying to establish how we can repatriate laws that we have not had functional control over, and trying to do so within a devolved framework, which of course did not exist when those laws were first moved from the United Kingdom Parliament across to Brussels In terms of the events in the other place, time was given, but it might be argued that time was misspent. A great deal of time was spent on a number of elements in discussion, thereby precluding serious engagement on these specific aspects. There needs to be some soul-searching across a number of parties as to how it ended up that way. I do not think that we in this place—or indeed those in the other place—can legitimately say that there has not been substantive engagement on the devolved clauses, Clauses 11 and 15, on many different occasions, both here and through the various forums that exist for officials and for Ministers to examine them. There has been, I suspect, on this clause alone, more correspondence, engagement and meetings to try to bring about the necessary agreement. Clearly, we were able to secure that agreement with the Welsh Administration but not with the Scottish Administration. The noble and learned Lord, Lord Wallace, raised the point that my right honourable friend in the other place said that he would bring agreed amendments on Report, but the key part is "agreed". In order to achieve that, the two sides had to reach agreement. It was not for want of effort that that agreement was not found. The reality is very simple: if you are unwilling to accept that there needs to be some form of concessions to seek that agreement, then you are simply not going to get it. At each stage when we thought that we had moved far enough to change the structure of the clause in such a way that we would be able to get support, we found that the goalposts had shifted slightly further away from us. Clearly, we were able to deliver the support of the Welsh Government, but we were never able to secure the support of the Scottish Government. Even though the officials—and indeed certain Ministers in the Scottish Government—believed that we had made enough progress, unfortunately, when it came to the final sign-off, that was simply not the case I take the point from the noble Lord, Lord McAvoy, about the JMC and how it shall work. There are examinations now about how we shall create structures that will necessarily address the changing environment and changing reality. How that will evolve is yet to be determined, but I take on board the points that he has made; it is useful for us to be part of that engagement. There will need to be cross-party engagement on the functionality of what, in effect, is a new constitutional arrangement—one that we are still writing. That is part of the challenge that we are living through right now; we have not yet signed off the final chapter of what this will look like. It is therefore quite difficult, in one respect, to determine exactly how we, as the Government, shall address that—my word, that is very unusual handwriting on the note just passed to me; I will read and speak to it momentarily, but not right now To conclude my remarks on this particular point, the important thing is that the show is not over. We are trying, and continue to try, to deliver the outcome that is right, but there needs to be an acceptance of agreement, which has to be based upon at least some acceptance of a concession. At the moment, the Scottish Government’s view on this is so didactic, specific and unmoving that, in essence, we are placed in the invidious position right now of taking a journey that we did not set out to take but which is facilitated within the law. As the noble and learned Lord, Lord Wallace, has said, the Sewel convention does allow for this particular approach under not normal circumstances. We do not want to be taking this journey at all, but we are and we must, because the key thing is that, on day one after Brexit, the statute book must work, not just here in London but in Edinburgh, in Belfast and in Cardiff.