I was going to reassure the hon. Member for Stirling (Stephen Kerr), who is no longer in the Chamber, that, given the lateness of the hour, I can do nothing other than to be reasonable and mild mannered in my presentation. He seemed fearful that SNP Members would go berserk and worried that we were putting our case with too much passion. Let me try to put this as reasonably as I can.
I want to agree with Members who have talked about the positive cross-party nature of what is happening. There are three parties on the Opposition side of the House that differ quite significantly on our preferred constitutional outcome or endgame for Scotland, but we are united in trying to defend the gains of devolution that have been made during the past 20 years. Indeed, I think that some of the Scottish Tories might feel that way too, given the discussions we have had in the Scottish Affairs Committee. They seem too timorous to exercise that conviction by going through the Lobby with us tonight, but perhaps they will be persuaded in the fullness of time.
By way of context, we need to remember two things. One is how the interplay between the referendums of 2014 and 2016 in Scotland affects this debate. I was on the losing side in 2014—I lost the Scottish independence campaign—and I accept that result. However, it is important in understanding why Scotland voted to remain in the United Kingdom to look at some of the assurances that were given by the people who won that campaign, because that affects this debate. I am going to talk not about the obvious one, which is what was said about EU membership itself, but about two other things.
First, all parties that campaigned for a no vote in the 2014 referendum went out of their way to stress that there was no threat to the devolution settlement, and that they would defend and extend it. The other assurance given was that should Scotland vote to remain in a political Union with England, Wales and Northern Ireland, this was not a matter of one country being subsumed into a much larger neighbour, but the creation of a partnership of equals—a multinational yet unitary state—with the views of Scotland therefore respected in any future debates. I am now calling to collect from this Government on both their respect and commitment to devolution because, as far as I can see, the way in which clause 11 is currently written means that it recognises neither of those points. It is regrettable that at this relatively advanced stage of our discussions on the Bill, we still do not have any agreement whatsoever about some basic things.
The other factor we need to remember by way of context is of course the debate about devolution itself. I was heavily involved in the campaign that led to the creation of the Scottish Parliament, arguing for yes, yes in 1997. I was not in the House when Members debated the Bill that became the Scotland Act 1998, but I observed the proceedings and we can read the transcripts. We know that Parliament, led by the late Donald Dewar, clearly took a maximalist position. It basically said that everything should be devolved unless there was a case for its not being so, which is why the 1998 Act lists not the powers that are devolved, but the powers that are reserved.
If we had not been in the European Union when Parliament was debating the Act, how many of the 111 areas of responsibility would have been reserved and how many would have been devolved to the Scottish Government? The truth is that practically all of them would have been devolved without question, because there would have been no compelling case for reserving them. I think that people misunderstand the nature of the debate when they talk about the transfer of competences from the EU to the UK following Brexit.
Let us be quite clear that the reason why the European Union currently has some legislative competence in devolved areas is to ensure compliance with the treaty on European Union. That is what this is about. If Brexit goes ahead and we come out of the European Union, that, de facto, will not be required, so whatever the UK Government say about taking on these areas of competence, it will not be about complying with the terms of the treaty on European Union. The only thing it can be about, given that we already have a single economy in the United Kingdom, is convergence on policy. The transfer raises the possibility that we will move from compliance with international agreements to compliance with domestic policy. That is what I mean by a power grab, because it represents a severe potential constraint on the ability of the Scottish Parliament to legislate and act in its devolved areas.
Ministers will say, “That’s not the intention. This is a drop-off point for the powers so that we can then decide the best way for them to go to their final resting place.” I have to say to them that we are politicians, not psychics. We have to deal with what is written in the Bill that they have brought before us, not their intentions for what might happen as they go towards their endgame. What is written in the Bill is most clearly not what is being argued for by Ministers. If that were the case, we would have a schedule by now outlining which of the 111 powers can go straight to the devolved authorities on exit day, which of them definitely need to be reserved in the context of the 1998 Act, and which of them need further exploration through some sort of process, but we have heard nothing about a single one of them.
I say to Ministers that, even from a public relations point of view, would it not have been sensible to at least chuck a few of these powers the way of the devolved Administrations? No. 9 on the list is about blood safety. What is it about the Scottish health service and blood transfusion service that they do not trust? Why on earth would blood safety need to be reserved to the UK? Energy efficiency is another power on the list. Is it the end of the world if Scotland pioneers aspects of efficient energy use and perhaps leads the way in the UK? How is that a threat to the Union? Why do Ministers need to keep those powers? There are other examples that illustrate the ridiculousness of arguing that there should be even a temporary drop-off of these powers at Westminster. Such powers should clearly go to the devolved Administrations.
I am left wondering why this is being done. The obvious first answer is the phenomenal degree of administrative competence involved. I think that there is malintent on the part of some Conservative Members, but probably not on the part of its Front Benchers. However, I think Ministers have got themselves into a situation in which,
because they have been incapable of producing a plan, they simply have no option but to say, “Trust us for now; we’ll do the best thing in the end.” It is very difficult for this Parliament to accept those assurances.
I think there is another red herring with the idea that a further reason why these powers need to be retained and examined further is that there might otherwise be interference with the United Kingdom’s ability to strut the post-Brexit globe in its ambition for “Empire 2.0”. There is a fearfulness that people in Scotland or Wales might act like the Wallonians and try to frustrate the creation of an international trade agreement. How ridiculous is that? Would it really matter if the Scottish Government introduced a policy that said, “We don’t wish to have genetically modified food in our food chain”? How is that a threat to an international trade agreement? All that would need to be done would be simply to specify that that was what people would need to deal with in Scotland, and that anybody wishing to sign the agreement would, quite reasonably, be able to do so.
The only way that that could become a threat to post-Brexit deals would be if there was a suggestion that the Scottish Government and the Welsh Assembly should take to themselves a power to veto a future UK international trade agreement, but no such power is being discussed. It is ridiculous that we should not by now be discussing which powers are going where, rather than arguing that nothing can be done apart from a power grab by the Westminster Government.
Finally, the common frameworks that we need for these 111 areas are going to be entirely different, depending on the individual area. In some cases, it might just be a simple matter of agencies north and south of the border talking to each other and sharing best practice. There are probably very few areas that actually require a full-blown statutory regulatory framework across the United Kingdom.