Hansard

I echo Bruce Crawford’s thanks to everyone who contributed to the committee’s work on the subject. It is worth noting that the context has changed somewhat since we began the work. When we began looking at the topic, the Brexit crisis had only reached about DEFCON 3, I think. Things have moved on somewhat, not least with today’s news. However, they have moved on in a way that underscores the importance of some of the committee’s conclusions, rather than making them in any way less relevant.

If the UK leaves the European Union, it is clear that common frameworks will be needed, but it is also clear—it is clearer now than ever before—that trust and goodwill are inadequate and cannot be relied on as the basis on which to arrive at those common frameworks. We will need clear, defined and accountable processes for developing, agreeing, monitoring and revising them. Let us remember that, in agreeing a common framework, we may reach consensus on day 1, but consensus, politics and circumstances can change, and the common frameworks themselves will also need to change over time.

In the debate, comparisons have been made with the Council of Ministers and the European Commission of the European Union. However, it is important to remember that those bodies are intergovernmental bodies. The Council of Ministers has direct representation from member states and the Commission is comprised of people who are nominated by member states. The UK is not an intergovernmental body. The UK Government is not intergovernmental in the sense of representing in a fair and democratic manner the constituent parts of the UK. It continues with the delusion that the UK is a unitary state. It never was, but a great many people in Whitehall and Westminster seem to think that it is and behave accordingly.

For me, the simplest option in order to achieve common frameworks, if indeed Brexit does come to pass, is what we have now: devolution. As the committee heard, that has been done before. For example, a decade ago, we were debating marine spatial planning, which is a complex area with many different policy objectives, some of which are in tension with others. It also involves many different stakeholders and interest groups and a range of devolved and reserved competencies. We did not have the language of common frameworks—we did not use that jargon at the time—but, through discussing the policy objectives and legislating separately in the two Parliaments, there emerged what we could reasonably call a common framework. However, the degree of agreement that was reached would have been a lot less likely had the UK Government threatened to overrule and impose a solution if consensus was not reached. Consensus has to be meaningful, and it cannot be meaningful if one party is holding a big stick during the discussions.

I use marine spatial planning as an example because the debate that we are going to have has a great many environmental aspects. The same applies in relation to the implications of trade agreements. If trade agreements are reached that contain implications for, or impinge upon, the application of devolved responsibilities, it should absolutely be the right, requirement and responsibility of this Parliament and the Scottish Government to be deeply involved in the development and negotiation of mandates, the agreement of draft texts and the finalisation of an agreement before it is, ultimately, signed off.

If we were not talking about Brexit, we could be making progress on what we might call common frameworks in a huge number of areas—data privacy, for example—that cut across devolved and reserved competencies. We could be making progress on a great many other issues—but we are not, because of the energy that is being taken up by Brexit. Despite all the energy and focus that is being taken up by Brexit, here we are, more than six months after the first planned Brexit day, still at the point of trying to figure out a way through the debate on common frameworks. We do not have a resolution to the fundamental questions that are involved, which are very similar to the questions that were raised during our debates about legislative consent. The principle of legislative consent has not been respected during this process. For consent to be meaningful, it has to be informed, freely given or withheld, revocable at any time, and—fundamentally—respected. Those same principles must also apply to the development and agreement of common frameworks.

Where consensus and agreement cannot be reached—Murdo Fraser asked about this—we will be making, in a democratically accountable way, a decision to accept the consequences of not having that agreement. Let us not kid ourselves—the internal market of the UK is not an absolute. We already regulate things such as alcohol sales differently, and we tax and register land and property transactions differently. There are differences in the way in which those matters are dealt with.

Fundamentally, if we are to remain in the UK, and if Brexit cannot—as it should be—be stopped, we will need a constitutional arrangement that rebalances power and prevents the UK from abusing its power and imposing its will. As long as it holds that power, fair negotiation cannot happen, and we will be less likely to achieve the agreement and consensus that many people argue are necessary.