PARLIAMENTARY DEBATE
Leaving the EU: Scotland and Wales Continuity Bills - 18 April 2018 (Commons/Commons Chamber)

The continuity Bills—that is, the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and the Law Derived from the European Union (Wales) Bill—passed, as the hon. and learned Lady knows, through the Scottish Parliament and the Welsh Assembly on 21 March. As she also knows, the Scotland Act 1998 and the Government of Wales Act 2006 provide the Law Officers with the power to refer to the Supreme Court the question whether devolved legislation falls within legislative competence. That power enables us to fulfil our constitutional roles in upholding the rule of law and monitoring the boundaries of the devolved settlements in the interests of legal certainty.

The continuity Bills raise serious questions about legislative competence that need to be explored. That is apparent from the view of the Scottish Presiding Officer at introduction that the Scottish Bill was not within the legal scope of the Parliament, and the recognition of the Presiding Officer of the Welsh Assembly that the assessment of competence in relation to the Welsh Bill was not a “straightforward” decision,

“as it was recognised that there are significant arguments both for and against legislative competence existing for this Bill.”

The key purpose of the European Union (Withdrawal) Bill before this Parliament is to provide certainty across the UK on day one after exit from the EU, and the Scottish and Welsh continuity Bills would frustrate that objective. If the continuity Bills were to become law, there would be impacts not just on the Governments and legislatures but on the widespread understanding of and confidence in UK law after exit. The UK Government and the Scottish and Welsh Governments therefore agree that the best place for the provisions to ensure legal certainty after exiting the EU is in the EU (Withdrawal) Bill, and we are working hard across Governments to reach an agreement on how that might best be achieved.

However, the four-week statutory limit for making a reference closed yesterday, and an agreement has yet to be struck, so the Law Officers have made references to the Supreme Court in relation to both Bills, as a protective step in the public interest towards upholding legal certainty. This is therefore now a matter for the Supreme Court to determine. However, I remain hopeful that the ongoing negotiations with the devolved Administrations will result in an agreement. It is clear that that would be the best outcome for all involved. Should an acceptable agreement be reached and should the Scottish and Welsh continuity Bills consequently not take effect, the UK Government would seek to withdraw the references.

I agree with the hon. and learned Lady that the situation is unprecedented. She is right that no reference to the Supreme Court about Scottish legislation has previously been brought. However, she will recognise that that is not the only unprecedented factor here. As she knows, it is also the first time the Scottish Parliament has been prepared to proceed in the face of the advice of its Presiding Officer that the Bill is not within its competence. History is being made in more than one way.

I recognise that, as the hon. and learned Lady said, the Lord Advocate is of the view that the Bill is within competence, and I am heartened by her confidence in the unassailable wisdom of Law Officers, but she will recognise that his is not the only view and that legitimate questions have arisen about the Scottish Parliament’s competence to pass the legislation. Law Officers in the United Kingdom, in accordance with our powers under the devolution settlement, are seeking to refer those questions.

The hon. and learned Lady says that the continuity Bills mirror the European Union (Withdrawal) Bill, but she will recognise that there are significant differences between them. Those differences create the difficulty about legal certainty. We cannot have two versions of rules operating at the same time. That needs to be resolved.

Finally, the hon. and learned Lady said that we are seeking to defeat a Bill in the courts that we could not defeat in the Scottish Parliament. I gently point out that a substantial part of the Bill that was certainly passed in the Scottish Parliament was a rerun of amendments that she sought and failed to get passed in this House. As I said, there is more than one way of looking at the position. I hope that she and her colleagues would accept that there is a legitimate dispute, at least about competence, and that it is in accordance with the devolution settlement that the Supreme Court resolves it, unless we can do so by negotiation. I fervently hope that that is the case, because I agree with her that that would be a far better way forward.

I certainly agree that, whatever the views of any Member of this House, the practical reality is that, before the UK has another opportunity to consider whether Scotland, Wales or anywhere else should be independent, the UK will leave the EU. We therefore need to address the questions that arise about a workable system of rules, regulations and laws that will apply on the day we leave. That is what the withdrawal Bill seeks to do, and the complications that the continuity Bills cause simply have to be addressed.

Let me deal with the hon. Lady’s questions in turn. I apologise to the hon. and learned Member for Edinburgh South West (Joanna Cherry), who also raised the question of costs, which I did not address. I cannot give a figure for how much the challenge will cost, but hon. Members will recognise that, where there is a legitimate question about a devolved Administration’s competence to do what they have done, the devolution settlement provides for a mechanism, which we are using here. It is therefore envisaged in the settlement that where a problem occurs, that is how we deal with it. I do not deny that there will be a cost, but it is part of the devolution settlement that that is how we should resolve disputes when they arise.

The hon. Member for Neath (Christina Rees) asked me about the necessity for a flexible approach to settlement, and I agree. Certainly as far as the UK Government are concerned—and, I believe, as far as devolved Governments are concerned—that is very much the spirit in which the continuing negotiations are being approached. I remain optimistic, and I hope others are too, that we can settle the matter in that way.

The hon. Lady said that it was crucial to protect the devolution settlement. Again, I make the point that the process that we are undergoing is part of the devolution settlement. It is the mechanism that the devolution settlement set out for dealing with such concerns.

On withdrawal of the reference, I hope I made the position clear in my initial remarks. If we can reach an acceptable agreement—I very much hope that we will—and, flowing from that, the continuity Bills in Scotland and Wales no longer have effect, the Government would seek to withdraw the references.

I entirely agree with my right hon. Friend, to whom I pay tribute for his considerable involvement in the hard and mostly unrecognised work of the negotiation. He is right: in the end, we seek to get to a place where we recognise that there must be an enforceable and workable UK-wide market. When that requires that powers do not go to devolved Administrations, we will seek to reach a settlement by agreement. I hope that we will reach such an agreement soon.

No, I did not mischaracterise what the Presiding Officer of the Welsh Assembly said. Although the hon. Gentleman is right that she concluded that the Bill was within competence—I did not deny that—I made it clear that she said that there were arguments in both directions. The point that we have made about the references is that, where there is lack of clarity and serious questions about whether a Bill or part of it is within competence, the devolved settlement makes it clear that it is for the Supreme Court to resolve the matter. That will now happen. I hope that the hon. Gentleman accepts that we are not attempting to undermine the devolved settlements but to ensure that they are operating as intended.

The SNP sought, as part of the European Union (Withdrawal) Bill, to impose requirements that Scottish Ministers would be able effectively to veto the process of dealing with incompatible EU law after the point of exit. They returned to that, as they are entitled to do, in the course of passing their own continuity Bill in the Scottish Parliament. The difficulty we now have is that in our view the methods they have chosen raise very real questions as to whether in doing so they exceeded the competence of the Scottish Parliament. That is what the Supreme Court, if necessary, will need to resolve.

I think we will pass over, because it will take too long, how anyone can define as a power grab a situation where one at least retains powers already devolved and probably has a lot more. Leaving that to one side, there is no contempt here—quite the reverse. As I said, what is happening is entirely within the devolution settlement set out in the Scotland Act and the Government of Wales Act. That is what we are doing to resolve what I would have thought sensible members of the SNP would accept is an undeniable controversy. There is more than one view on competence. That is apparent, because the Presiding Officer of the Scottish Parliament did not just say that there were questions; he concluded that those questions could be answered only by saying that the Bill was not within competence.

I agree with my hon. Friend. That is what we should be aspiring to: a workable situation where we can have a system of laws that works on the day after we leave. That is what we owe to all our constituents in whatever part of the United Kingdom they may live.

Again, I do not call into question the concept of devolution—quite the reverse. I seek to assert the provisions of the devolution settlement that enable us to resolve such disputes when they occur. There is undoubtedly a dispute. I am surprised to hear Opposition Members even dispute that there is a dispute. It seems to me that that bit, at least, is pretty obvious.

On the hon. Lady’s point, I accept that there will be differences of approach to devolution. Where the devolution settlements allow for differences in approach, that is perfectly reasonable. What we are talking about, however, is the capacity for the Government to say not just to us in Parliament but to individuals and businesses around the country, that they can be sure what the arrangements will be on the day after we leave the European Union. There simply cannot be two competing versions of that in place at one time. That does not accord with legal certainty and it is that which we seek to address, aside from the very real questions about legal competence, which in the end, if necessary, the Supreme Court will have to decide.

I agree with my hon. Friend. He is right that whatever our final judgment may be, or whatever the final judgment of the Supreme Court may be, no one should disregard the views of a Presiding Officer of a Parliament. I feel confident that I have Mr Speaker’s support in saying that at least. My hon. Friend is also right about what we want. We want a negotiated settlement that is agreed between all the Governments involved. That must remain, and does remain, what we seek to achieve.

No, I am afraid the hon. Lady cannot have that. First, the Government of Wales Act 2006 applies here, not the current devolution settlement with Wales. Secondly, the Government have not picked a fight with anybody. What has happened is that particular Bills have been passed—on an emergency basis, by the way—in both the Welsh Assembly and the Scottish Parliament, which raise very serious questions about the competence of each to pass them. That is not just our view; it is the view of others as well. It is therefore the responsibility of the Law Officers to determine how that should be resolved. The way in which it gets resolved, as set out in the devolution settlements, is by reference to the Supreme Court. If we can avoid that, we would all like to do so. The negotiations that are under way—the reason I am optimistic and heartened is that I hope they will be successful—are a better way to do that.

My hon. Friend is right. As I said, there surely cannot be any doubt that there is a difference of view about whether the Bills are within competence or not. It is not simply the Government who have done that. The Presiding Officer of the Scottish Parliament has expressed the same view. To resolve the dispute, the devolved settlements are very clear: it is for the Supreme Court to do that. We make a reference so that they can, but the problem will go away if we can resolve this through negotiation. I certainly hope that we do.

No, I did not say that the view of the Presiding Officer of the Scottish Parliament triggered the reference. What I said was this: what the Scottish Parliament’s Presiding Officer thinks about that is good evidence that there is a dispute that needs to be resolved—and it does. It is no good the SNP selectively quoting at us what has happened here. It is no good saying that the Lord Advocate thinks it is within competence and forgetting that the Presiding Officer does not think it is within competence. All that demonstrates—this is my point, Mr Speaker—is that there is a disagreement, and when there is a disagreement the devolved settlement makes it very clear that it needs to be settled by the Supreme Court. Unless we can settle it another way, that is what will happen.

I agree with my hon. Friend, but of course there will not be a lack of a continuity Bill in Northern Ireland, because we have the European Union (Withdrawal) Bill, which will apply to the whole United Kingdom. The difficulty we are dealing with is that there seem to be competing versions of continuity, and we really can have only one.

It is important to be clear about the process. We are making a reference to the Supreme Court so that it can consider whether these particular Bills, one Welsh and one Scottish, are within the competence of the Welsh Assembly and the Scottish Government. It is not about deciding whether devolution is or is not going to stand. It is about whether, in accordance with the provisions of the devolution settlement, these particular Bills are inside or outside competence. That is what the Supreme Court will need to do. There is a way of avoiding all this, and we have discussed it at length. If these ongoing negotiations, which involve my right hon. Friend the Secretary of State for Scotland and other members of the Government, are fruitful, and I hope they will be, there will be no need for this process to be concluded. However, if there are competing versions of the way in which continuity is dealt with in legislation, in the end the system will require that to be sorted out.

I agree with my hon. Friend. As I said, the Scottish Government are perfectly entitled to bring to their Parliament whatever legislation they wish and to argue for it, and if they can win a vote, good luck to them. But having done all that, it is bizarre in the extreme for them not to recognise that through their own actions, they have created a difference between the way in which the Scottish Government seek to deal with continuity and the way in which the UK Government have set out that they would deal with continuity. When there is a dispute, there is a way of resolving it, and that is what we are seeking to engage with.

I am in danger of repeating myself, Mr Speaker, and I know you hate that, so I will not. Let me simply say this: it is all very well saying, “There is a democratic imperative to do what the Scottish Government have done because we won a vote in the Scottish Parliament,” but they are forgetting all about the fact that they lost some votes in this Parliament on more or less the same issues. There is a difference of opinion—there is no doubt about it—so how do we resolve it? The answer is that we resolve it through the mechanism that the devolution settlement sets out. That is what we seek to do unless, and this would be better, we can resolve it by agreement.

Yes, I agree with my hon. Friend, and it does not seem to me that we need to invite our colleagues on the SNP Benches to agree with the view of the Presiding Officer. All we really need them to do is to recognise that his view is worthy of respect, that it is valid and needs to be considered and that it represents a clear difference of opinion on the position in this Bill.

I can agree entirely with the hon. Lady that an end to political posturing would be most welcome, but I suggest to her that although she is absolutely right that an agreement is desirable, all agreements require more than one side to consent to them, and we must all do our bit to make sure that agreement is reached.

Yes, I can.

Well, that is a bit of a stretch, even for the hon. Gentleman—[Interruption.] Look, what we are doing here—[Interruption.] If I can just interfere in the family dispute that is going on across the Chamber at the moment—what is going on is that we are respecting the devolution settlement. I do not expect the hon. Gentleman or his colleagues to love the Scotland Act 1998, but I do expect them to have read it, and when they read it, they will see that when such disputes arise—there surely is a dispute here—a mechanism is clearly set out for resolving it. If he and we can find a better way of doing it without engaging the time of the Supreme Court, then we and no doubt the Supreme Court will be delighted, but until that agreement is reached, we have to rely on the mechanisms set out in the devolution settlement.

I agree absolutely with my hon. Friend.

No, I am afraid that the hon. Gentleman has misunderstood. The dispute is not about how many votes the proposals that he is talking about got. The argument here is that once they have passed the Scottish Parliament, we have a real question about whether there was in fact competence to pass them at all. That is the issue that in the end the mechanisms require the Supreme Court to resolve, unless we can do it a better way.

I think that would be a better way forward, and I hope it is the way taken.

The hon. Gentleman is right that, as I have said, we need to provide certainty wherever we can, and he is right too that there is a political job to be done as much as there is a legal one. I have indicated to him that I take the view that the political way forward is better than the legal way forward, but there is a necessity to resolve the difference of opinion that currently exists over the way forward. If we cannot do that politically, we will have to do it legally, but I know which way I would prefer.

Yes. Both my right hon. Friend the Secretary of State for Wales and I are optimistic, and for good reason, and we will remain so in the hope that a sensible settlement can be reached.

There is no doubt that the SNP does not have a great track record of accepting referendum results, but I hope very much that on this issue we will be able to find common ground. As for the UK Government—and, I still believe, the devolved Administrations in Scotland and Wales—that is what we will seek to do.

I do not accept that a co-operative approach is not being taken, but as I pointed out earlier, all agreements require everyone to engage and play their part. I might add, however, as he might be unaware, that in respect of every Bill that has passed through the Scottish Parliament since it has been passing Bills, the Scottish Government have taken the opportunity to share the text of the Bill with the UK Government before its legislative process, so that any questions about competence could be resolved and discussed beforehand. For the first time ever, that did not happen on this occasion. It might be that he or one of his colleagues can explain why, but it certainly does not seem to accord with the principle of maximising the opportunity for collaboration.