You are getting to the heart of it. Let me start by saying that I would be happy to finesse the issue—many fine minds in the civil service on both sides of the border have been devoted to that—but by “finesse” I do not mean “fudge”. There cannot be fudging of the issue.
We understand—we have understood for a considerable period—the UK Government’s concerns. They were concerns that surprised us. Let me roll this all the way back to the first discussion that I had with David Davis about the detail of the withdrawal bill, at the start of July last year. I do not say this critically, but there was a lack of knowledge of the devolution settlement and, particularly, of the fact that the UK Government has the power to stop things happening or to reverse decisions of the Scottish Parliament. That power exists in the Scotland Act 1998, which is, at the end of the day, sovereign. I do not say that with happiness; it is not what I want to be the case, but it is the reality.
If, as I believe it is, the UK Government is afraid that we will behave in what it sees as an irrational manner or—to put it more positively—in a manner that is contrary to what it believes to be in the United Kingdom’s interests, and wants the ability to prevent our doing so, it already has that power, which the Scotland Act 1998 gives it. Why would it want another power so to do? It took a long time for it to be understood in London that that power exists. I pay tribute to Mr Carlaw and others who have worked hard to understand the situation. I am not asking you to confirm this, Mr Carlaw, but I am sure that you have found that there is a lack of detailed knowledge of devolution on the part of the UK Government and its officials.
The issue became how we gave the UK Government that reassurance. Equally, we had to be clear in our minds about what would and would not work for us. We have been pretty methodical in applying tests to where we are. We tend to work like that, and we did it at the start of the process, when we discussed with Damian Green the principles that would underpin the process of setting up frameworks. We were keen to have a rational, criteria-driven approach. Damian Green understood that and agreed, and we got the principles established.
We have applied four tests to what is taking place and what might come out of it, and I am happy to put them on the record, because I do not think that it does any harm to do so. The first test is that the scope of any power and the circumstances in which it would be used must be agreed, as must the exercise of the power. That test is very clear, and it respects the devolution settlement. Secondly, any constraint must apply equally to all the Administrations. Thirdly, any power of constraint on orders made under the withdrawal bill should, as is generally the case with powers used under the bill, expire automatically after a defined period—sunsetting, in other words. Fourthly, the devolved legislatures should exercise at least the same degree of scrutiny over orders and the frameworks that flow from them as the UK Parliament does.
Those are clear tests. The unlocking of those tests comes in the first test, because, if we accept the first test, the others flow from it. We could have a form of words that covers the other tests, but we cannot have a form of words that does anything with the first test—it is binary: it either is passed or is not. The backstop that the UK Government wishes to have is the obstacle to getting the first test passed. As we contend, a backstop exists in the Scotland Act 1998, so there is no need for an additional, unnecessary backstop, which is derailing the process. That is the debate.
As you said, this will depend on trust. How do we reassure people of what we are trying to do and how do we reassure people that there is no Trojan horse in this? In the context of the independence referendum, the answer was to have a written agreement about a range of things, which allowed matters to go forward. If we were to have the first test accepted and passed, we should enshrine it in some sort of written agreement that is visible and public and that says that no one is going to propose things that are unreasonable or withhold consent unreasonably. That is still a way forward but, first, the Administrations must accept that they can and will meet those tests—that is the issue.
The House of Lords will have to confront that issue as well. It will consider those items for the first time next Monday, I think. There will be no resolution, because there is no expectation of a vote. There has not yet been a vote at the committee stage in the House of Lords, and that is not normally what the House of Lords does. However, I presume that, when the withdrawal bill returns at the report stage, after Easter, there will be a vote on the amendment that has been tabled by the UK Government—which, it is important to say, does not meet those tests—and any other amendments that have been tabled.
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