In this contribution Lord Bilimoria discusses the EU referendum and the voting results from the various devolved administrations as well as the upcoming Bill before the House. He asks the minister whether the Government has worked in close consultation with the devolved administrations to fulfil their Brexit responsibilities as they had intended. He notes the issue of the Northern Irish border in great detail and also asks how much authority devolved administrations will continue to have over various issues. He also notes the issue of identity among those who wanted to remain or leave the EU.

Brexit: Devolved Administrations

25 January 2018

Motion to take note moved by Lord Mcinnes of Kilwinning:

That this House takes note of the role of the devolved Administrations in the process of withdrawal from the European Union and future opportunities for strengthening the union of the United Kingdom.

Lord Bilimoria:

My Lords, in the referendum both Scotland and Northern Ireland were among the strongest supporters of remaining in the EU, with majorities of 62% and 55.8% respectively. In Wales, 52.5% voted to leave the EU and in England 53.4% voted to leave. There is no question about it: the referendum has been a huge divide in this country. Many have said that it has been a demonstration of English nationalism. In the Supreme Court Miller case, the decision of the court was that devolved legislatures did not have a veto on the UK’s decision to withdraw from the EU. I thank the House of Lords Library for its excellent briefing notes on the matter.

The Scottish and Welsh Governments have described the Bill that is coming up—this debate is very timely before the European Union (Withdrawal) Bill reaches our House next week—as a “power grab”. The Government have said that they will come back to it, as the noble and learned Lord, Lord Hope, referred to in his excellent speech.

The Brexit White Paper of 2 February 2017 was based on the Prime Minister’s famous Lancaster House speech, in which she said very clearly that she would strengthen the union by securing a deal that works for the whole of the UK, as the noble Baroness, Lady Smith, just said.

What is the role of the devolved Administrations in this? The Government have stated their intention to fulfil Brexit responsibilities in close consultation with the devolved Administrations. I ask the Minister: has this actually happened? The noble and learned Lord, Lord Wallace, gave the example of CETA. When Canada negotiated with European Union, it had members from each of its provinces at the table. Has this genuinely been the case?

We have the Joint Ministerial Committee on EU Negotiations, which I believe has met only five times between October 2016 and September 2017. Could the Minister confirm this? It has been described by a Member of the House of Commons as,

“a total and utter waste of time”.—[Official Report, Commons, 26/6/17; col. 417.]

Have they agreed the need for a common framework? What are these frameworks? Is it that between Northern Ireland and Ireland there will be only the land border, which I will come to later? The European Union (Withdrawal) Bill does not specifically mention a common framework. Could the Minister tell us why this is the case? I believe that in one of the Joint Ministerial Committee meetings they spent 45 minutes being told what the UK Government had decided, so did its members really have a say on it? Nicola Sturgeon has been very outspoken about this. She feels that the Scottish Government have been cut out of all the decision-making, which is a real shame whether you agree with her or not.

How much autonomy will the devolved Administrations continue to have over areas such as agriculture and fishing? It will be very complicated when it comes to issues such as this, especially when it comes to implementing new frameworks.

We then, of course, have Clause 11, which several noble Lords have mentioned. We are replacing that with a new restriction that devolved institutions cannot modify retained EU law. This will be a huge issue in the Bill. The reaction from Wales, which voted to leave, has been to put out, along with Scotland, a joint statement saying that this is a,

“naked power-grab, an attack on the founding principles of devolution”,

that, “could destabilise our economies”.

There is of course the convention that there is a requirement for the Government to seek a legislative consent Motion from each of the devolved legislatures for the Bill, which the Government have made it clear they will do. That is reassuring. The Welsh and Scottish Governments believe that devolved Ministers should have the same powers in respect of matters falling within devolved competencies as UK Ministers. I do not think that that is happening in this case.

In their rebuttal, the Government have said that this is not a power grab. Any durable solution will need the consent of all the nations the United Kingdom and all their elected representatives. A successful settlement cannot be imposed by the United Kingdom Government; it must be developed in partnership with the devolved Administrations.

We then of course come to the Irish border. This is absolutely ridiculous. In phase 1 of the negotiations, a joint report was prepared by the European Union and the UK that basically kicked the can down the road. It said:

“The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border”.

Moreover, it said:

“The United Kingdom’s intention is to achieve these objectives to the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland”.

However, it continued:

“In the absence of agreed solutions, the United Kingdom will maintain … those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement”.

That is absolute nonsense. How can we remain in the single market and the customs union and have an open border? Then, of course, the DUP has said categorically that there will be no border in the Irish Sea. It wants a commitment to preserve the integrity of the United Kingdom and for our internal union to be preserved. How will this be possible?

Theresa May has said that,

“we will maintain the common travel area throughout these islands … the whole of the United Kingdom, including Northern Ireland, will leave the EU customs union and the EU single market. Nothing in the agreement I have reached alters that fundamental fact”.—[Official Report, Commons, 11/12/17; col. 27.]

I just do not see how this is going to happen. At First Minister’s Question Time in December, Nicola Sturgeon stated that if there was a differential for Northern Ireland it should be available to other parts of the UK as well.

This is so worrying a situation, where devolution is threatened. Brexit presents a risk to these overlapping competences. Article has followed article, among them:

“How Brexit has reopened old wounds on both sides of the Irish border”.

If we look at voting by religion, we see that 85% of Catholics supported remain and 40% of Protestants. Overall, the result in Northern Ireland was to remain.

Donald Tusk met Leo Varadkar, the Indian-origin Prime Minister of Ireland, and said:

“Let me say very clearly: if the UK’s offer is unacceptable for Ireland, it will also be unacceptable for the EU. I realise that for some British politicians this may be hard to understand … This is why the key to the UK’s future lies – in some ways – in Dublin”.

One of the most worrying things about this whole issue has been leave voters saying that they were 79% English, not British. What are we doing here? Amartya Sen spoke about identity—we all have multiple identities. As a country, we are a United Kingdom first, then England, then Northern Ireland, then Wales, then Scotland. That is what comes first and this is what we are threatening. We are threatening the European Union’s integrity; we are threatening the United Kingdom’s integrity. Everyone in this debate has said, “When Brexit happens”; Brexit is not a done deal; we still have the option to remain. Times have changed and we have the option to remain and that should be considered, because divided we fall and united we are strong.

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