Hansard

I thank my colleague Gordon MacDonald, who gave me one of his minutes.

Although I joined the Finance and Constitution Committee after the report was written, I am happy to take part in the debate and make some comments about it.

It strikes me—this follows on quite well from Willie Rennie’s remarks—that a fundamental weakness of the UK is that there is no written constitution. Proper democracies such as Germany and the United States have an agreed framework that might not be perfect but which sets out in writing the relationship between central Government and the state Governments; between the Governments and their respective Parliaments; and between the different Parliaments. Although it would not be desirable to go to court on a regular basis—I wrote this speech before today’s events—at least that is always an option in the background. That might focus minds when negotiations are taking place. It also means that no single party can control or bully the others. Each party can go to an independent organisation if all else fails.

By contrast, the UK has no written constitution. Some might feel that that is a good thing and allows for flexibility and gradual evolution to take place. However, it results in a lack of clarity, and that is the position that we find ourselves in now.

I am sure that members will focus on different parts of the report, so I will just touch on a few that particularly struck me as a relative newcomer to the details of all this. In the introductory paragraphs of the report, reference is made to the Joint Ministerial Committee on EU Negotiations meeting of October 2017 and the resultant communiqué. Paragraph 5 states:

“frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures”.

Of course, the UK Government has changed since then, and I wonder how much we can depend on the statements that were made at that time. In particular, the communiqué said that

“the competence of the devolved institutions will not normally be adjusted without their consent”.

I wonder what “normally” means here. Could the current UK Government be considered to be acting normally? The communiqué also says that we have to

“maintain ... equivalent flexibility for tailoring policies ... as is afforded by current EU rules”.

I wonder how convinced we are by that. It also says that frameworks will

“lead to a significant increase in decision-making powers for the devolved administrations.”

Here we are, two years further down the line, and I wonder whether we have seen any evidence of that happening. The committee makes the point in paragraph 22 that

“both the process for agreeing common frameworks and the actual content must be arrived at through agreement and not imposed.”

Again, I am a bit sceptical as to whether that will be the case.

Paragraph 66 is also important. It refers to frameworks being developed “on an interim basis”, which could make a lot of sense, but the risk would be setting precedents that it could be difficult to unravel. It also mentions “pragmatic and practical arrangements” being required in the event of a no-deal Brexit. Again, I would be concerned that decisions could be railroaded through by a UK Government without adequate Scottish Government input and even a lack of Scottish Parliament scrutiny.

One of the final paragraphs is paragraph 189, in the conclusion of the report. It stresses that

“A robust and trusted process of intergovernmental relations ... is also vital to agreement making”,

which must include a process for dispute resolution. There seems to be broad agreement that the JMC process has not been working and needs to be improved if there are to be

“more effective intergovernmental and interparliamentary mechanisms to examine common frameworks and to deliver greater transparency.”

On Thursday, we are due to debate the Scottish national investment bank, so I was reading the Government’s 26 August 2019 response to the Economy, Energy and Fair Work Committee’s stage 1 report. In reference to state aid after Brexit, the Government response states that the Competition and Markets Authority will rule on that topic. Although the CMA may not be perfect and we will need to keep an eye on it, at least it gives a potential model of an independent body to rule on UK-wide issues.

That is a point that the Royal Society of Edinburgh took up in its briefing for today’s debate. It refers to the absence of a clear institutional body or arrangement that could facilitate development and oversight of common frameworks and it proposes the creation of an independent secretariat body. That would also be worth looking at.

Paragraph 190 of the Finance and Constitution Committee’s report also makes some interesting points, setting out that Parliaments are there to scrutinise Governments but other stakeholders need to be involved too. For both primary and secondary legislation, relatively clear procedures are in place, but it may be more difficult when it comes to non-legislative frameworks. If a deal is done by two Governments in a closed session, how does anyone scrutinise that? Such things have happened, for example in the case of the block grant adjustment, when the respective ministers agreed to split the difference, but that is difficult if not impossible to scrutinise.

Scottish Environment LINK gave us a very helpful briefing, and I agree with a number of its points. Alex Rowley has already partly referred to this, but the briefing makes the point that nature and environmental challenges can cross borders and so cannot be tackled by one country on its own. We want environmental standards that can be protected and enhanced, not drawn down.

There is a lot of uncertainty around this topic. I commend the Finance and Constitution Committee for all its work on the report before I joined it and I will finish by quoting the RSE again when it says:

“Common frameworks should be no more intrusive than they need to be to serve their purpose when they overlap with devolved competences.”