I sometimes feel like someone in Palmerston’s description of the people who understood the Schleswig-Holstein question: one had gone mad, one had died and the other had forgotten it. This set of things is very, very complicated; I ask you to allow me to be as general as I can, because everybody would fall asleep were I to go into the extraordinary and excruciating detail.
The heart of the issue is how a bill that requires legislative consent is prepared. Officials in both Administrations would usually have regular contact to make sure that the bill would be operable with regard to legislative consent, but that has not applied in the case of this bill. I have said that I had a conversation, probably in December 2016, with the then Cabinet Office minister who was responsible for the bill, Ben Gummer—the person with responsibility kept changing between him and David Davis. It was proposed that Ben Gummer would discuss with ministers and officials what the bill was to look like, but that did not happen.
In January 2017 at the JMC plenary in Cardiff, I raised the bill with the Prime Minister and said that an early indication of content and timescale would be helpful. The bill had been discussed—members will remember that the so-called great repeal bill had been announced at the Tory party conference in 2016. The bill was clearly in preparation—we had been told that—and at that stage the intention was to introduce it in May. In January and February, we said that the issue was getting close to the wire and that we needed to see the bill and have a conversation about it. In April, the general election was called, so no bill could be introduced at that time, although the commitment continued. The election took place on 8 June and shortly thereafter it was indicated to our officials in discussions that the bill was likely to be published in early July. We did not see any details until the last day of June or the first day of July, when our officials were shown a copy of the bill. It was immediately obvious that we could not agree to the bill as drafted, primarily because of clause 11, which takes to Westminster all the intersection of powers between European competence and devolved competence, with a process in which Westminster can or cannot divvy them up or pass them out.
I went to London on, I think, 3 July and spoke to David Davis at some length. I indicated the situation and we entered into a process of discussion. The Welsh Government was in exactly the same position. Later in July, at a meeting in Cardiff between the law officers, ministers and officials, we agreed to start work on amendments, because we wished to be constructive. Little progress was made on amendments until November, when the Prime Minister and the First Minister met, despite our joint amendments being published in September when we made it clear that we objected to withdrawal but were dealing with the technicalities.
Around November, there was an indication that there would be changes, given the strength of views across Scottish civic society, which included concerns from the Conservative Party in Scotland, the Welsh Assembly—members of which were unanimous—and others who were involved. In early December at a meeting in St Andrew’s house, Damian Green and David Mundell gave a commitment to John Swinney and me that there would be amendments, and that was confirmed by the JMC. However, there was not much progress; no amendments were tabled in the House of Commons. There was a commitment to do so at report stage, but that did not happen. We began to see movement only in February. Damian Green stopped being First Secretary, David Lidington came in with a learning period, and there was an acceptance that, rather than the approach of taking the whole lot of powers, there would be a smaller group—in essence, clause 11 would be turned on its head.
The progress was very welcome, but the basic issue of consent by the devolved Administrations to anything that happens to their powers has still not been agreed. We have had detailed deep dives, as they are called, into areas of possible frameworks—we have always said that we can agree on the principle of frameworks—but the issue of consent or agreement, which is central to respect for the devolved settlement, has still not been agreed.
I am sorry that that answer took so long, but we are now up to date. There is another meeting tomorrow.
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