My Lords, I will speak in support of these amendments. I do so with great trepidation as a non-lawyer, knowing that the noble and learned Lord will be marking my homework—and doing so in front of the noble and learned Lord, Lord Hope.
The noble Lord, Lord Thomas of Gresford, is completely correct to draw our attention to the fact that a constitutionally significant moment has arrived. He is quite right to repeat the questions that he asked before. Whether one considers it a good thing or a bad thing, what happened in Edinburgh yesterday was certainly a big thing—and it could have very serious repercussions.
I agree with the noble and learned Lord, Lord Wallace, in wanting to bring out the principles agreed in October, and I am grateful to him for reading them out. But it seems to me that much is going to depend over time on how they are interpreted. Will they be interpreted narrowly or widely? The two key common frameworks are to enable the function of the UK internal market and to ensure that the UK can negotiate and implement international trade agreements. How are these principles going to operate?
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The United States is generally thought to have a single market and it undertakes international trade agreements. But if you drive across the United States, it is not just gun laws that change from state to state but sales taxes and all sorts of things. There is a degree of diversity. The United States undertakes foreign trade agreements. If Dr Fox concludes a foreign trade agreement with the United States, he will have to try very hard if he is to resist the US agricultural lobby’s demands when it comes to, say, beef with hormones in it or the famous chicken. It is easy to imagine that the Scots might take a different view, and to me it is not inconceivable that different regimes could apply to the sale of chicken in Scotland and the sale of chicken in England. After all, the sale of alcohol is now governed by different regulations in Scotland, and the price is different in Scotland from what it is in England. I am not saying that any of this should happen, I am just saying that it would be very important if the Minister could give us an indication of how these principles will be applied.
I will ask also for three political reassurances. First, the gap between the two sides that has led to this divergence could now lead to a court case. In my view,
that would be very bad. At the time, I considered Clause 2 of the Scotland Act 2016, which handles the Sewel convention, unsatisfactory and ambiguous. But I must say that I think that clarity now might be more dangerous, because clarity in the circumstances we are in now would cause serious trouble for one side or the other. Therefore, I really hope that this does not have to be settled in court.
The gap seems to me to be quite small—I have no view on that—but the atmospherics could be improved. I will give the Minister an example. Last week, the Government published a new paper, Framework for the UK-EU Security Partnership. “Published” is probably the wrong word; the Government “slipped out” the paper. It was clearly produced not just in the issuing department —Mr Davis’s department—but also in the Home Office. It covers issues such as the criminal records information system, mutual legal assistance, extradition, the Schengen information system, Eurojust, the European arrest warrant, the European investigation order, the prisoner transfer framework position and a lot more. I am sure that the Home Office had a huge input into it, because it is the department responsible for England in relation to the EU in future in these areas. So I asked what consultation there had been with Scotland and was told that the Scots were not consulted at all on this document. That seems to me to be extremely unwise.
The people who are responsible for all these areas in Scotland are not working to the Home Office but to the Scottish Government. What is needed here is a little more tact and talk and a little less discourtesy—a bit more diplomacy. It would be good if the Minister could say that, in working out how these principles will be applied and how the frameworks will work, rather more attention will be paid to Scottish concerns than there has been until now. I am not talking about the substance of the matter—I am not competent to talk on that—but about the atmospherics and keeping channels open and talking.
Secondly, if I am right that the gap is actually very small, and if Mr Russell in Scotland is telling the truth when he writes to us saying that his door is still open and a deal could be done, and if Mr Lidington and Mr Mundell are telling the truth when they say that their door is open and a deal can be done, then somebody should make a move. There is no point in having two doors open but nobody going through them. Somebody has to make a move, and it would be very good if the London Government could do that.
My last point has already been made by the noble Lord, Lord Wigley, and the noble and learned Lord, Lord Wallace, and I have probably made it far too often and bored the House—but it would be so much better if our debates on these issues could be illuminated by hearing the views of the governing party in Scotland, directly by being here. This is a paradigm case. Members of the governing party in Scotland are asking us, when Mr Russell writes to us, to take account of their views—but we do not have the opportunity to cross-examine and interrogate them and work out how strongly held or how soundly based those views are.