I rise to support the amendments standing in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), and those that have been drafted by the Scottish and Welsh Governments, which have cross-party support from the SNP, the Labour party, Plaid Cymru and the Liberal Democrats.
I want to dispel a myth emanating from Conservative Members before I look at clause 11 in any detail: the idea that there is some sort of division between the position of my Scottish Government colleagues and the SNP. I can assure those Members that that is not the case and
we regularly meet the Scottish Government Brexit Minister, Mike Russell. Let me tell Conservative Members what Mr Russell told a number of Sunday newspapers yesterday. He said that these cross-party devolution amendments are “non-negotiable” and that, if the UK Government want the SNP to recommend support for the Bill in the Scottish Parliament, they must be passed. He continued:
“I don’t want to leave anybody in any doubt, if the Bill cannot be amended—”
as per these amendments—
“there cannot be a legislative consent motion, there cannot be the progress that the government wants.”
So let there be no doubt of the SNP position on this, which is the position of the Scottish Government and of the Welsh Government, and which has the support of the Lib Dems, Plaid Cymru and the Labour party in this Chamber.
It is important to focus on clause 11. We have heard a lot of general rhetoric today, but what we are actually looking at is that clause. I am not going to use my own analysis of it. I am going to use the analysis of much more eminent lawyers than myself. Let me start by briefly declaring an interest, as I am going to quote the views of the Faculty of Advocates in Scotland on the Bill and I am a member of the faculty, although I am no longer practising. It has pointed out that 111 areas were listed as potentially requiring a common policy framework and that the list is too long, its content is too broadly drawn and some of the 111 areas were so imprecise
“as to be incapable of meaningful understanding”.
It said that the proposed approach of this Government to the European Union (Withdrawal) Bill
“threatens to encroach on matters that are already devolved and legislated on by Holyrood under the current settlement.”
That is the view of the Scottish Bar, of which I am a member; I wish I could say they were all members of the SNP, but they are not, as they comprise people from all political persuasions and none.
The hon. Member for Arfon (Hywel Williams) referred to the evidence given to the Brexit Select Committee by Laura Dunlop, QC, who is the faculty’s spokesperson and head of its law reform committee. The Bingham Centre for the Rule of Law has convened a group of experts to look at the Bill, under the chairmanship of the right hon. and learned Member for Beaconsfield (Mr Grieve), who was in his place earlier. It, too, has been extremely critical of clause 11:
“In a constitution where legislative power is divided between the national parliament and devolved parliaments, uncertainty about the division of legislative power undermines foreseeability and predictability about the overall legal framework and is therefore inimical to the Rule of Law.
Clause 11 of the Bill is such a law: it re-defines the scope of devolved legislative competence after Brexit.”
Those are the words of a group of expert lawyers convened by the Bingham Centre for the Rule of Law. It is not an SNP partisan view, but the view of a cross-party group of lawyers.
9.15 pm
Today’s proceedings are being watched closely both north and south of the border. I noticed that, about an hour or so ago, in response to some of the speeches from Government Members, Professor Aileen McHarg, the professor of public law at the University of Strathclyde and a renowned expert in this area who has given evidence to Parliament, said:
“It just doesn’t wash to suggest…that criticism of clause 11 is just SNP grievance mongering. I’ve not heard anyone with any expertise on devolution who thinks it is acceptable.”
These are views that are widely held.
In putting forward these cross-party amendments, what we are engaged in is protecting the devolved settlements that, speaking particularly from a Scottish point of view, are the settled will of the Scottish people and have widespread support. Eighty per cent. of people in Scotland support the current set-up of the Scottish Parliament.
I think a brief history lesson may be in order for some Government Members. It is simply not correct to say that the Conservative and Unionist party is the party that has delivered the most power to the Scottish Parliament. The most powers that were ever delivered to the Scottish Parliament were delivered by the Scotland Act 1998, which had cross-party support in this House, but was opposed by the Scottish Conservatives. The Conservative and Unionist party has been somewhat late to the party in its acceptance of devolution. Just as the Lord always welcomes a sinner back to the fold, we are very glad to have them on board, but we will not take any instruction from them on how to protect the devolved settlement.
We are not in danger of taking instruction from Scottish Conservative Members because, as other hon. Members have pointed out, despite the fact that they have so many reservations about clause 11, as they keep telling us this afternoon and this evening, they have not bothered themselves to put forward any constructive amendments. They are falling into a classic trap. They are relying on the process of the negotiations, under the auspices of the JMC. Progress has been made there, as we say quite openly, but we are here today to debate the legal framework. We are here to look at clause 11.
It is not just my view, the view of the SNP and the view of the Labour party, Plaid Cymru and the Lib Dems that the clause is unacceptable; it is the view of lawyers of all hues. Remember the words of Professor Aileen McHarg: she could not think of a single person with “any expertise on devolution” who thinks that clause 11 is “acceptable”. Professor Michael Keating, the director of the Centre on Constitutional Change, has described clause 11 and the Bill as
“the first significant rolling back of devolution since the process started twenty years ago.”
So let us not have any more of this nonsense about this being an SNP grievance. It is a widely held view that clause 11, in its current form, is not acceptable.