Meeting of the Parliament 24 September 2019
I welcome today’s debate, and I congratulate the Finance and Constitution Committee on its helpful report into this complex area of law.
I wish that the debate was not necessary. The majority of my constituents wished to remain in the European Union, and that was the case, of course, with the majority of people in Scotland. The discussion on common frameworks is predicated on the assumption that Brexit will go ahead. I do not want that to happen, Scotland does not want it to happen and, after today’s Supreme Court judgment, who knows what will happen?
Nevertheless, we must plan for the worst. Developments since the 2016 referendum make it clear that common UK frameworks are only one part of the significant adjustment that is required to how our Governments work together. The Scottish Government’s call for a genuine relationship of equals between Governments is absolutely correct. Adjustments should take account of the realities of devolution. That must be the baseline from which common framework negotiations should progress. Anything less than that would not be in Scotland’s interests.
The UK Government has been able to pay lip service to the devolved Governments in the Brexit process, and there appears to be recognition that a process overhaul is required to meet the needs of devolved Governments. For common frameworks to succeed, Governments and Parliaments must work together, but the precedents for such working are poor.
Parliamentary committees across the UK consider the joint ministerial committee mechanism to be not fit for purpose, and the interparliamentary forum on Brexit has called for more effective intergovernmental mechanisms to examine common frameworks and to deliver greater transparency. It appears to be accepted across the political divide that the current mechanisms for working together are simply inadequate. However, as others have said, it appears that the UK Government’s review of intergovernmental relations has stalled. Why that is so is not clear, but it compounds constitutional chaos and stores up problems for devolved Governments.
I welcome the Finance and Constitution Committee’s finding that there is no definition of “UK internal market”. The committee heard from Professor Michael Keating that the EU single market is not about particular competences, but about a broad set of principles. Professor Keating pointed out that nothing like those mechanisms exists in the UK or in relation to devolution, and that there may be instances, in his view, in which the internal market principle could impinge on devolution.
In my view, there has been a considerable degree of bad faith in the use of the term “internal market”. It is used to attack different policy choices across the UK and, potentially, it could be used to justify a post-Brexit power grab. Devolution already allows quite wide divergence in policy—one thinks of minimum alcohol pricing and, indeed, our new tax powers. Such policies deliver considerable differentiation across these islands, but they in no way interfere with our ability to trade freely across these islands.
I agree with members who have emphasised the importance of consent in all matters regarding common frameworks. Democracy is not served by the retention of section 12 of the European Union (Withdrawal) Act 2018, and I therefore call on colleagues across the chamber to support its repeal. Section 12 allows UK ministers to freeze Scotland’s power to legislate in areas that are established as devolved, which is why this Parliament refused to give legislative consent to the 2018 act. The Parliament was right to do so.
In an ideal world, the Scottish ministers—indeed, all of us—would be confident that section 12 powers would never be used by the UK Government. They have not been used to date, but agreement in recent framework negotiations is no guarantee. Consent sought is not the equivalent of consent granted. That is why, if we are to proceed with negotiations on common frameworks across these islands in good faith, section 12 should be struck off.
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