Last week, MPs debated Clause 11 of the EU Withdrawal Bill for the second time.
This section of the Bill is about how powers in devolved areas that are currently held by the EU will be dealt with once the UK leaves the EU. The principle of devolution has always been that everything is devolved unless specifically reserved.
This means, upon leaving the European Union, there are 111 powers that should come back to the Scottish Parliament. Unamended, Clause 11 seeks to hold those powers at Westminster with the Government saying they will be devolved to Scotland, Wales and Northern Ireland on an unspecified future date.
At the heart of the issue is how to approach setting up new UK-wide frameworks to replace existing EU frameworks after Brexit. No one disputes this is necessary to ensure alignment across the UK on matters such as food packaging to allow goods and services to be traded freely as they are now. The question is about how these frameworks should be agreed.
Clause 11 appears to suggest a one-sided approach from the Tories, with powers that come back from Brussels being held at Westminster until the UK Government sets up the new frameworks. I believe this would fundamentally undermine the role of the devolved administrations.
It is crucial that we get any post-Brexit relationship between the nations and regions of the UK right from the start. As a supporter of federalism, I want to see that relationship based on a more equal footing. I believe it is important for the Government to act in good faith, devolve the powers immediately and agree on new frameworks jointly with the devolved administrations.
Leaving the frameworks to one side, there does appear to be cross-party agreement that Clause 11 must be amended. In the first debate on the topic, numerous Scottish Tory MPs criticised this section of the Bill, with one going as far as to say it was not fit for purpose and he would “not allow legislation to pass that undermined the union or the devolution settlement”.
The Tories only avoided defeat in the vote following that debate with a promise from David Mundell, Secretary of State for Scotland, that the Government would amend Clause 11. Last week, it became clear that David Mundell, not for the first time, had given a commitment the Government had no intentions of honouring.
If Scottish Tory MPs were frustrated by the broken promise, last week was their final opportunity to show some backbone and support Labour and SNP amendments to fix Clause 11 and protect the devolution settlement.
The Government is propped up by 10 DUP MPs, the 13 Scottish Conservatives have the power to overturn that majority and help defeat the Government on important votes such as this. Instead, they decided to pass the buck and take their chances that the Bill will be amended in the House of Lords.
It seems they will always put loyalty to a weakened Prime Minister ahead of the interests of Scotland.