Examination of witness
Professor Tomkins
Q1 The Chairman: We welcome Professor Adam Tomkins to kick off our inquiry, which is looking, like some other studies we have been doing, at the impacts of Brexit, in this case on the devolved nations and the interaction between UK national objectives and local opinion, and the articulation of the system of government between the two and whether people’s messages are getting through, or are being adequately considered. I know you know our House.
Professor Adam Tomkins MSP: I do.
The Chairman: This is a formal session; it will be on the record, but I hope it will not be a frightening one. It is to have a discussion and draw out some of those things. We hugely appreciate your coming and starting early.
Professor Adam Tomkins MSP: Not at all. It is a pleasure to be here. Perhaps I should say for the record that I am Adam Tomkins, Conservative MSP for the Glasgow region and Scottish Conservative spokesman on constitutional affairs, as well as one or two other things. I hold the John Millar chair of public law at the University of Glasgow. My area of academic legal expertise is constitutional law, including aspects of European law.
The Chairman: Thank you for that. We will start, as you might predict, by giving you an overview question about your reaction to the Prime Minister’s speech setting out the UK Government’s approach to the Brexit negotiations. What are the political, economic and legal implications for Scotland of the Brexit model that the UK is pursuing?
Professor Adam Tomkins MSP: I welcomed the Prime Minister’s speech. Ever since 24 June, most politicians in Scotland, including the Scottish Government, had been calling for clarity from the United Kingdom Government about what approach to Brexit they would take. The Prime Minister’s speech a couple of weeks ago was clear, concise, authoritative and compelling.
For the record, on 23 June I voted to remain in the European Union, but my approach and that of my party to referendums is that they are not opinion polls whose results can be taken or left, as befits the occasion, but formal and constitutionally binding, although maybe not formally legally binding, decision-making devices. We did not ask the British people for their opinion about whether or not the United Kingdom might one day leave the European Union; we asked them to decide whether or not the United Kingdom is going to leave the European Union. Scottish Conservatives have complained for the past two and a bit years that the SNP Government failed to respect the result of the 2014 Scottish independence referendum result, and it would be deeply hypocritical for us now not to respect the result on 23 June, notwithstanding the fact that it did not go the way I would have preferred. That is the context from which I come.
The Scottish Conservatives, led by Ruth Davidson, with support from the whole of the 31-strong MSP group, have been calling before, during and since the 23 June referendum for the United Kingdom to have the fullest possible access to the single market. That is one of the things the Prime Minister said in her speech a couple of weeks ago: that she wants the freest possible trade with the EU 27 and the greatest possible access to and participation in the single market through a new, bold, comprehensive free trade agreement. I welcome that.
I also welcome the reiteration of the commitment the Prime Minister first gave at the Conservative Party conference in Birmingham in the autumn that she would seek to protect all workers’ rights under EU law in a new domestic statute to be passed in due course by the United Kingdom Parliament. I welcome her commitment that the United Kingdom Government would like to ensure the future status of EU nationals in the United Kingdom as soon as that assurance is reciprocated by the EU 27 with regard to the 2 million or so British citizens resident in other EU member states. For all those reasons, I welcome the clarity and substance of what the Prime Minister had to say.
The Chairman: Thank you for that clarification. To follow up one question, you expressed very clearly the view that a national decision was taken, and that it is not one to be walked away from. Do you think that absolves anybody—the Government, the Parliament at Westminster or the devolved Parliaments and Assemblies—from taking a view? I am trying to get at what the nature of the decision was, other than to leave the EU. In your view as a constitutional lawyer, not simply from a political standpoint, would there be any sense in constraining or interpreting that decision, or looking at its implications for different parts of the United Kingdom or the decision-making process?
Professor Adam Tomkins MSP: All those things are on the table, and it is right that they are. All of them are being discussed by Governments, Parliaments and Assemblies across the whole of the United Kingdom, including the Scottish Parliament. As you all know, in Cardiff there was a meeting of the JMC on Monday this week. Further meetings are scheduled of the JMC (EN), the committee of the JMC charged with the particular responsibility of agreeing a pan‑UK approach to Brexit.
I have quite a lot of sympathy with the view that what was decided on 23 June was simply that the United Kingdom must leave the institutions of the European Union; it must withdraw its membership of the treaty-based organisation that is the EU. A lot of questions follow from that, perhaps the most important of which is whether it also means that we need to withdraw from the single market. One has to try to understand not only what happened on 23 June, and what its legal, political and constitutional effects are, but why it happened. It seems to me that the most powerful slogan of the campaign was the idea of taking back control, and that must mean the following: first, we the British people want to take back control of our national finances; secondly, we want to take back control of our national borders; and, thirdly, we want to take back control of the sovereignty of our national legislation.
Visions of Brexit that retained the United Kingdom’s membership of the single market, as distinct from access to it, would fail to respect the result of the referendum, if I am right in interpreting the referendum as wanting to take back control of those three things, because membership of the single market, which means in formal treaty terms membership of the EEA, means that you have to continue to abide by the jurisprudence of the European Court of Justice, including its rules with regard to sovereignty and supremacy. It means, as the other European Union member states have made perfectly plain, that you have to accept unconditionally and in full all four elements of free movement, including the free movement of workers, which means that you cannot take back control of your national borders.
There seems to me to be an insurmountable dissonance between the idea of taking back control and retaining membership of the single market through membership of the EEA, for the reasons I have tried to explain. It is perfectly legitimate, not only for the United Kingdom Parliament but for the devolved Parliaments and Administrations, to consider a variety of options as to what Brexit means. The Prime Minister has signalled her and her Government’s very clear preference for what Brexit should mean. We have talked about that already this morning, and I have indicated in broad terms my support for it, notwithstanding the fact that, like the Prime Minister, I voted to remain.
The Chairman: You spoke about taking back control. I am just trying to explore that concept from the point of view of constitutional law. Can you see any qualitative difference between the jurisdiction of the European Court of Justice, as it applies to the interpretation of the treaties from which we are now going to withdraw, and that of other international organisations that also provide rule-keeping and adjudicatory functions, whether it is a free trade agreement or some other kind of international agreement?
Professor Adam Tomkins MSP: Yes, I can, but it is important to understand that there is no material difference between the European Court of Justice and the EFTA court that enforces the EEA agreement.
The Chairman: The EFTA court would tend to say—I have had some informal contacts with it, not necessarily on the record—that it is less prescriptive and more tolerant.
Professor Adam Tomkins MSP: I have heard that said. I have also read quite a lot of the academic literature on this written by law professors from across Europe. I think the view in the legal academy, if I might summarise it, is to doubt, or be sceptical about, the accuracy of that claim. It seems to me that the preferred academic view in the literature is that the EFTA court, by and large, follows the lead set by the European Court of Justice with regard to internal market law. What the European Court of Justice does as an international court is very different from what most international courts do. The European Court of Justice is not and never has been interested in enforcing the treaties as written. There is nothing new about that; it was the case before the United Kingdom joined the European Community in the 1970s. The European Court of Justice has always been interested in identifying and distilling what it calls the spirit and general scheme of the treaties—I am quoting a famous ECJ judgment in Van Gend en Loos in 1962—and imposing on the whole of the European Union its vision of integration. There are all sorts of examples of that, from the court’s understanding and use of proportionality, to its development of the law of citizenship and its refusal to develop a coherent law of subsidiarity. I can supply you with more written evidence on that if it would help.
The Chairman: It would be useful to have the references. That is a very good start.
Q2 Baroness Suttie: Since the EU referendum last June have you detected a shift in public opinion in Scotland towards Brexit and its implications for Scotland?
Professor Adam Tomkins MSP: First, the EU referendum did not capture the political imagination in Scotland in anything like the way it did in most of England and Wales. There are a couple of reasons for that. One is that we went through our own referendum, which was a two-year campaign that really did capture the imagination. The 85% turnout on 18 September 2014 was unprecedented. Secondly, we went through a pretty intense election for the Scottish Parliament in the early part of 2016—perhaps that is not everybody’s perspective, but as a candidate it was certainly mine—and the referendum followed only seven weeks after that election. There was not much referendum campaigning in Scotland until after the Scottish parliamentary election in early May, which left only a six-week period for there to be any real campaigning. For both those reasons, it is fair to say that the referendum campaign in Scotland was nothing like as intense as in other parts of the UK.
Public opinion in Scotland at the moment, as far as I can judge it, is, first and foremost, a kind of acceptance that Brexit is going to happen. That may not be the opinion of the Scottish Government or every MSP, but certainly in the city I represent the reaction is to shrug one’s shoulders and want Governments and Parliaments to get on with the job.
Moving to slightly more political terrain, the Scottish Government have tried for the last seven months to use Brexit and the differential vote in Scotland compared with England and Wales to build a case for a second independence referendum. I think they have failed to do that, partly because most folk in Scotland do not really care as much about EU membership as Nicola Sturgeon currently says she cares about it. That may even be true of quite a lot of members of her own party. Certainly in the city I represent, EU membership never comes up in one’s MSP surgeries; it is not an issue on which my postbag is bulging. On campus at the University of Glasgow where I work that would not be true. Among certain cohorts in the population, including, classically, academics like me, people are appalled and outraged by Brexit. People see Brexit and its champions, such as Mr Farage, in the same light as they see the current President of the United States, but that is not a general view across the Scottish population.
The Chairman: That is over and above their concern about Horizon 2020 and research funding.
Professor Adam Tomkins MSP: I think so.
The Chairman: You are saying that they are generally concerned, as well as specifically professionally concerned.
Professor Adam Tomkins MSP: Yes, both. That is a very helpful clarification. Successful academics are among the winners in the globalisation race. We enjoy travelling around the continent and working with colleagues across the continent. Nothing about globalisation represents a threat to academe, nor does anything the European Union represents; it represents an opportunity, and people fear that the tap of that opportunity is about to be switched off. I do not think it really will be. Some of the overreaction is exactly that.
The Chairman: Can I pick up the bit that you did not talk about much: the tone of media comment here? You discussed the fact that the ordinary elector is not particularly engaged, as you described it to us. You have described your own position and differentiated the academic world as an example, but in the media debate are people unpicking this in detail and looking at the implications?
Professor Adam Tomkins MSP: In the Scottish media? I do not think they are. There are one or two commentators who are quite interested in it and write passionately about it, but it is not the only game in town. That is probably the wrong language to use. A much bigger constitutional question facing Scotland than Brexit is the prospect, no matter how remote and dismal, of a second independence referendum.
Baroness Suttie: To follow that up, before I go to my next question, would you agree that a lot of the Brexit coverage by the Scottish media is through the prism of its potential impact on a second independence referendum?
Professor Adam Tomkins MSP: Yes, very much so.
Baroness Suttie: It is not the wider EU question and the nitty-gritty of how it is going to work; it is focused more specifically on the SNP’s position.
Professor Adam Tomkins MSP: It would not be fair to say that the broader EU question and what you describe as the nitty-gritty of how it will work are ignored in the Scottish media, but all that is refracted through the prism of the fact that we have a majority of MSPs who are in favour of an independent Scotland, if you add the SNP group to the Greens. We have a Scottish Government led by Nicola Sturgeon whose most important policy, as she said in an interview in the Sunday Herald not long ago, is that independence transcends everything else. The SNP exists in order to prosecute the case for an independent Scotland, and that is where we are.
The Chairman: We probably have to quicken the pace a bit, which I admit is my fault, but we have had some very interesting insights.
Q3 Baroness Suttie: To summarise the next question quickly, Theresa May said in her speech that she wants “a Brexit that works for the whole of the United Kingdom”. Given the disparity and at least the perception of a very different vote in Scotland, how do you think that will be possible in practice?
Professor Adam Tomkins MSP: As I am sure you are all aware, my Lords, the Scottish Government published a paper in December called Scotland’s Place in Europe. The argument in that paper is, first, that the United Kingdom should retain membership of the single market and seek membership of the EEA, and, secondly, if that is not possible or politically desirable at UK level, that that kind of arrangement should at least be established for Scotland. That is what we call a differentiated deal. The idea is that Scotland would continue to be a member of the single market and the rest of the UK would continue to have such access to the single market as it was able to negotiate through a new free trade agreement. I have a number of problems with that approach. Is that the territory you want to get into?
Baroness Suttie: Yes.
Professor Adam Tomkins MSP: The first problem is that, as I said in a speech recently in the Scottish Parliament, it is very odd that a nationalist document has been unable to identify even a single discretely Scottish national interest that would require a differentiated deal for Scotland and other parts of the UK. The interests of Perthshire hill farmers are the same as those of Yorkshire hill farmers; the interests of universities in Glasgow and St Andrew’s are the same as those of universities in Oxford and Manchester; the interests of fishermen in Scotland are the same as those of fishermen in Northern Ireland; the interests of manufacturers in Lanarkshire are the same as those in Sunderland; the interests of the financial services industry in Edinburgh, which is a significant part of the Edinburgh economy, are the same as those of the City of London, and so on.
I am all in favour of thinking about a differentiated deal sector by sector, but I do not understand what evidence there is that there needs to be a differentiated deal in the United Kingdom nation by nation. I do not understand what the interests are of the various home nations of the United Kingdom that are different from one another in that respect. That is problem No. 1.
Problem No. 2 is that Scotland trades four times as much within the UK’s domestic market as it exports to the EU. The value of Scotland’s trade within the United Kingdom is four times greater to the Scottish economy than the value of Scottish exports to the European Union. One of the things the Prime Minister said in her speech last week, which you will not be surprised to learn the Scottish Conservative and Unionist Party has been saying quite persistently throughout the whole of this process, is that whatever happens we must not jeopardise the UK’s domestic market.
I have been through all this before. I was a member of the Smith commission, which met in the immediate aftermath of the independence referendum and agreed the package of further devolution that has been enacted in the Scotland Act 2016 and is in the process of being rolled out during this Parliament. One of the things we thought very hard about in the Smith commission was not devolving things that would upset, disrupt or obstruct the United Kingdom’s single domestic market. The way in which referendums are won is important. The Better Together campaign won the Scottish independence referendum. Its catchphrase was not as catchy as “Take back control”, but its most important policy insight was that the United Kingdom benefits Scotland through the pooling and sharing of risk and resources, which is a rather nice way of describing a single market or a domestic market. That was why, for example, the Smith commission did not agree to devolve employment law to Scotland; it is better for Scotland to be part of a single United Kingdom labour market.
My second problem with the Scottish Government’s proposals is that having a differentiated deal where Scotland was a member of the single market but the rest of the UK was outside it, albeit perhaps with privileged access to it through a free trade agreement, would jeopardise the coherence, stability and value to the Scottish economy of the UK’s domestic market.
The third and final problem is that, as I understand it, in order to be a member of the EEA you need to be a state. It is not as if we have not had an argument in Scotland recently about whether Scotland should be a state. We have had that argument and the answer was, “No thanks. We want to continue to be part of the United Kingdom state”. For those three reasons, I am very sceptical of the practical workability as well as the economic desirability of a differentiated deal along the lines suggested by the SNP in its document.
Q4 Lord Whitty: We have covered most of the territory. First, is there anything else you want to say about that document? Secondly, looking at it from the Scottish or UK point of view, you said that differentiated arrangements would be detrimental to Scotland, but do you think it is even politically possible for either the UK Government or the EU and individual states within the EU to agree to such a differentiated deal in the first place?
Professor Adam Tomkins MSP: I do not think it is impossible. The European Union, certainly since Maastricht, has developed as a European Union of bits and pieces. You can be in the EU but not in Schengen; you can be in the EU but not adopt the EU’s currency. It is a variegated, mixed mosaic.
Lord Whitty: But that tends to be state by state.
Professor Adam Tomkins MSP: It does, but there is no in-principle reason in EU law that says you cannot have exceptions. There are exceptions, albeit they tend to be offshore; the example of Greenland is sometimes cited in that respect and perhaps also the Azores. Scotland is not an offshore island part of the United Kingdom; it is a third of the land mass of Great Britain, so the analogies break down pretty quickly.
The Secretary of State for Scotland, David Mundell, has been keen to emphasise that it may very well be possible to think about elements of differentiation, but not on the scale that the SNP envisages in its documentation. To take an example close to my home in the academic world, suppose—I do not think it is likely to happen—that higher education institutions in England and Wales are somehow excluded from Horizon 2020. Would it be possible as a matter of UK law or EU law to negotiate access to those programmes for Glasgow, Edinburgh, St Andrews and the other institutions in Scotland? Yes, it would. I think it would be possible. Is it possible to identify if not unique Scottish interests in fishing then at least that the fishing industry is more important to the Scottish economy than it is to the English economy, and to act accordingly? Yes, it is. These things are possible, so it is right that we are thinking about them. It would be a mistake at this juncture simply to rule out as undeliverable any kind of differentiation, but we have to be very clear-headed about the kind of differentiation we are talking about and its scale. I was very pleased that the Prime Minister said in her speech last week that the UK Government’s guiding principle will be not to do anything that jeopardises the importance to the Scottish economy of the UK’s domestic market.
The Chairman: As the lawyers would say, we must not close our minds.
Professor Adam Tomkins MSP: That is one of the things lawyers would say.
The Chairman: I am not one myself. At this point we ought to bring in Lord Kinnoull on the other leg of the fall-out from the Supreme Court judgments.
Q5 Earl of Kinnoull: What do you feel has been the reaction to the judgment? It seems to me that the Sewel convention has been addressed fairly comprehensively in a way that goes much wider than the current question. Could you speak briefly to that?
Professor Adam Tomkins MSP: I thought the Scottish Government’s reaction to the Supreme Court’s judgment last week was completely over the top and pretty wild. There was an exchange between Mike Russell, the relevant Minister, and me in the Scottish Parliament about it last week. The Scottish Government decided that the judgment was so important that they had to make a ministerial statement to Parliament about it. Much of that statement was an attack on me. I will let you read it for yourselves, if you do not have better things to do on the train home.
First, the judgment of the court is much misunderstood. The question in the case was a very narrow one. It was not whether the United Kingdom Parliament should be involved in the Brexit process. Of course, the UK Parliament was always going to be involved in the Brexit process, not least because one of the things Brexit will require is the repeal of the European Communities Act 1972, and only Parliament can repeal its legislation; Ministers cannot do that. The question in the case was much narrower and was not whether Parliament should be involved in the Brexit process but whether Ministers have the legal power to give notification under Article 50 without fresh legislation conferring that power upon them. The answer that the Supreme Court gave to that question by a majority of eight to three was that Ministers do not have that power as the law currently stands, which is why a Bill has now been introduced—it had its Second Reading in the Commons yesterday—that will, if it is passed, confer that power upon Ministers.
A secondary question was: if such legislation is needed, does it as a matter of law trigger the Sewel convention? The Supreme Court unanimously said that as a matter of law it does not, because the Sewel convention is not a matter of law. It is reflected and recognised in law, but it is a convention, and conventions are politically binding rules of constitutional behaviour; they are not legally enforceable even if judges from time to time take judicial cognisance of them—another bit of legal jargon. I thought that ruling was perfectly clear, straightforward and absolutely accurate. If I may say so, it was also a reflection of what I thought we were doing in the Smith commission when we said we wanted statute to recognise the Sewel convention.
Earl of Kinnoull: To put it on a statutory basis.
Professor Adam Tomkins MSP: Indeed; to recognise it in statute. There was a debate in the House of Lords, introduced, I think, by Lord Hope of Craighead, about whether it should be not merely reflected in statute but turned into a rule of law. I believe the current Advocate-General, Lord Keen, led the argument against that. As I understand it—I am going only on press reports; I have not checked it in Hansard—Lord Hope’s amendment was never put to a Division.
Earl of Kinnoull: I participated in the debate.
Lord Whitty: Are there other examples of a differentiated approach for Scotland that might become politically deliverable? Is there any other comment you want to make on the Scottish Government’s document, or can we leave that?
Professor Adam Tomkins MSP: I am sure that, as the negotiations unfold, there will be all sorts of points where we could plausibly think about whether we want differentiated deals for different parts or different nations of the UK. I do not have a list of things where I think that would be possible, but the general principle we should apply is that, in future, not just the existence of the union but the meaning of the pooling and sharing of risk and resources that the union represents is more important than access to the EU single market.
My only other positive comment about the Scottish Government’s paper is that it is well written. Its analysis in the early pages of the value of the European market to the Scottish economy is quite well put together.
Lord Selkirk of Douglas: Can I plead guilty to quoting you in the House of Lords?
Professor Adam Tomkins MSP: You need better sources, my Lord.
Lord Selkirk of Douglas: Nobody challenged the quote. You mentioned the overwhelming importance of Scotland’s trade with the United Kingdom. Am I correct in thinking that a lot of Scots are not fully aware of the extent of that, and it is perhaps an issue that should be brought to their attention?
Professor Adam Tomkins MSP: It is certainly an issue that we are trying to bring to their attention in what we say and do on my side of the aisle. One of the invaluable aspects of the Scottish independence referendum campaign was that, because it was so long, it enabled both campaigners in Scotland who wanted the UK to stay together and the United Kingdom Government to do a lot of work to get underneath the question and think about precisely what value the union adds. What would be the cost of independence? What is the benefit of the union? Throughout the run-up to the independence referendum, the UK coalition Government published a series of 15 Scotland analysis papers. If you put them back to back, they are about four or five inches thick. There were thousands of pages of detailed Civil Service analysis of the value that the union adds to the Scottish economy. That was just one of the points identified in that analysis.
I would go further. The share of Scottish exports that go to the European Union is declining; the share of Scottish exports that go to the rest of the world is increasing, so is the European single market important to the Scottish economy? Of course it is; it is important to the British economy, but it is not the only market that is important to either the Scottish or British economy. The share of exports from Scotland to the EU is declining and the share of exports to the rest of the world is increasing. One of the things I want to see from Brexit is a global trading nation, or perhaps a union of four global trading nations. I want the share of Scottish exports to the rest of the world to increase. I want the share of British exports to the rest of the world increase.
Q6 Lord Selkirk of Douglas: As time is pressing, can I wrap up all my questions into one? The Prime Minister committed to “working very carefully to ensure that, as powers are repatriated … the right powers are returned to Westminster, and the right powers are passed to the devolved administrations”. Are there any powers currently reserved to the UK Government that you believe should be devolved as a consequence of Brexit? What impact will Brexit have on the devolution financial settlement? Do the devolved institutions have sufficient capacity and resource to take on additional responsibilities?
The Chairman: If I may come in on that, we would be interested in your take on a new situation that has happened because of the referendum. If something comes back from Brussels, where does it go? Are some of the devolved powers in the right place now for the new situation, given that we will be an international negotiator on the trade matters that you mentioned?
Professor Adam Tomkins MSP: The starting point is to identify that the UK Government have very clearly said there will be no re‑reservation of powers that are already devolved. Under the Scotland Act 1998, everything is devolved apart from that which is expressly reserved to the United Kingdom in Schedules 4 and 5. Wales is moving to the same model under the Wales Bill, which is currently still in your Lordships’ House, and Northern Ireland has a slightly different but similar model.
A number of fields of EU competence are not reserved to Westminster under the framework of the Scotland Act. The three examples most frequently given are agriculture, fisheries and the environment. I would add VAT as a fourth area, because the Smith commission agreed to assign a share of VAT receipts in Scotland to the Scottish Government but not to devolve VAT, for the simple reason that the devolution of VAT within a single member state is contrary to European law. As we are leaving the European Union, that may very well no longer be an aspect of European law that we need to stick with. Of course it may depend on the terms of Brexit, but were there in the future to be no reason in EU law to prevent us from devolving a share of VAT, it may be revisited in due course.
One of the things I have said a lot in the last few years, both with my academic hat on and politically, is that since 1999 we have tended to think about devolution in binary terms: a power is either reserved, in which case it is for Westminster or Whitehall, or it is devolved, in which case it is for Holyrood and Scottish Ministers. I do not think it is as simple as that. That is true, but it is not the whole story; there are also shared powers. The Smith commission significantly extended the number of areas where power is effectively shared between the two Governments. Personal taxation is a good example. National insurance is reserved, income tax on non‑earned income—savings and dividends—is reserved and, for income tax on earnings, the personal tax allowance is reserved, but thereafter all the rates, thresholds and bands of income tax are devolved in full to the Scottish Parliament. That is an example of shared power. Taxation of income in Scotland is the shared responsibility of the two Parliaments and the two Governments working together. That means that our inter-parliamentary and intergovernmental arrangements and relationships are more important than ever. That is a separate inquiry for another day.
When we think about the repatriation of powers from Brussels, we need to be thinking not merely of a binary divide—this power is reserved and that one is devolved—but that some powers will be shared. For example, fisheries might be an area where you would want to think a little more creatively than just the binary divide between one Parliament and another.
Baroness Wilcox: You have just answered my question.
The Chairman: Thinking aloud, there are European analogies, because the conferring of powers to the European Union, which we are now leaving, is often about shared or subordinate competences, not simply a binary choice.
Professor Adam Tomkins MSP: That is right, and as a matter of EU law the European Union has very few exclusive competencies.
The Chairman: For example, trade policy.
Professor Adam Tomkins MSP: Absolutely. The customs union is one area of exclusive competence.
The Chairman: That brings us to a question about the machinery.
Q7 Baroness Wilcox: Are the existing mechanisms for inter-parliamentary dialogue between Westminster and the devolved legislatures sufficient to deal with the challenge of Brexit? You have pretty well answered that, Professor, but somewhere along the line we have to find a way for England and Scotland to talk without it being a fight all the time.
Professor Adam Tomkins MSP: Absolutely.
Baroness Wilcox: I would like to think that there is some form of working that would change and allow the best things to come from both sides. You have virtually answered it yourself. The press do not help us in any degree at all in either place.
The Chairman: One little point it would be useful for us to hear about is the joint ministerial committee. Is that a strong enough reed on which to hang this future relationship, if I can mix metaphors, or do we need something else? Baroness Suttie, do you have a thought on this?
Baroness Suttie: It is on a different subject.
The Chairman: We will come back to you. How do we devolve this relationship, and what vehicle and machinery do we have to do it?
Professor Adam Tomkins MSP: The machinery is important, but not as important as the political will on all sides to make it work. With respect, I do not think the principal problem is the press; it is the fact that in Scotland there is a Government who do not want to work with the United Kingdom because they want to leave the United Kingdom. The operation of intergovernmental and even inter-parliamentary machinery in Wales is much smoother and more successful than the operation of intergovernmental and inter-parliamentary machinery has been in the last few years in Scotland. That is because the Scottish Government on the one hand and the UK Government on the other have diametrically opposed and fiercely fought views about Scotland’s constitutional future.
The Chairman: Is there any academic text on that? Leaving aside the political argument, are there any references you might like to reflect on that you could let us have? We are going to Cardiff next week.
Professor Adam Tomkins MSP: Any commission that has looked at devolution has included in its remit some understanding of the inter-parliamentary and intergovernmental relations. The Smith commission and the Calman commission looked at it in Scotland; the Silk commission looked at it a lot in Wales; and many parliamentary Committees have looked at it too. One of the most authoritative reports on it is that of the House of Lords Constitution Committee, under Lord Lang’s chairmanship, published a couple of years ago. There are also reports on it in the Scottish Parliament. The literature is very well traversed.
One of the things people say about the UK’s intergovernmental machinery is that it is not fit for purpose, but nobody identifies what they think the purpose is. If you want to use that phrase, perhaps you could help identify what the purpose is.
The Chairman: Can you tell us what it should be, or not?
Professor Adam Tomkins MSP: I think the purpose of intergovernmental machinery in the Brexit case is to give the devolved Administrations a formal but confidential and safe space in which they can explain their views to the United Kingdom Government directly, face-to-face over the table, and in that respect it is working well. Brexit will be monumentally difficult in all sorts of ways and dimensions. One of the aspects of our system of government that Brexit will put under stress is intergovernmental machinery, particularly when you have, as I am afraid we have in Scotland at the moment, a Government who want to use Brexit as a proxy for a second independence referendum.
The Chairman: There are three final questions that I would like colleagues to pose, because I know you have to go at about 10 past nine.
Professor Adam Tomkins MSP: Yes, I do.
The Chairman: We are very grateful for your time, but I think we can just manage these if we are restrained.
Q8 Baroness Suttie: Do you think the very differentiated view of the Scottish Government compared with that of the United Kingdom Government on Brexit threatens to weaken the negotiating platform?
Professor Adam Tomkins MSP: That is a really interesting question. I do not think it will, because most European countries, certainly the European institutions, are well aware of the constitutional make-up of the United Kingdom. They are well aware of the fact that Scotland has a separatist Government and that there was an independence referendum in 2014. A number of other European countries have similar issues: Spain, Belgium and others. Even politicians in Europe who might otherwise be sympathetic to the position of the Scottish Government—because, for example, they do not want the UK to leave and they recognise the fact that Scotland did not vote to leave—accept that their interlocutor as far as the negotiations are concerned is the United Kingdom. It is the United Kingdom that is the member state, not Scotland, and, as the United Kingdom as a whole voted to leave, the whole of the United Kingdom will be leaving. The realpolitik of international diplomacy kicks in at that point. That is not to say that Scotland’s voice will not also be heard in Europe, but does it weaken the UK’s negotiating position? I do not think so.
Q9 Lord Whitty: You talked about shared competencies. One thing we have managed not to mention is public finances. One likely area of shared competence is agriculture in one sense—it is the biggest chunk of European money—the presumption being that Scotland would take over the subsidy of agriculture. That would, however, distort the balance of public finances. The Barnett formula and all that would be up for grabs were that chunk to be the full responsibility of the Scottish Government, leaving aside any differentiation in the agricultural systems, because there is some already. Do you think that where the EU money goes raises big questions about where the division of British public finances should be, in particular the Barnett formula?
Professor Adam Tomkins MSP: It might. The fiscal framework agreed between the two Governments in the early part of 2016 is a temporary arrangement that is due to be revisited in 2021 or 2022. The nature of the fiscal arrangements around the territorial constitution is controversial in Scotland, and even more controversial in Wales.
Lord Whitty: And in England.
Professor Adam Tomkins MSP: It is increasingly so in England—that is perfectly true—and Brexit throws yet another complicating spanner into the already pretty obscure works of the Barnett formula and all its cousins and friends. If you are going to think about the quality of agricultural subsidy in Scotland, I urge you to talk to the National Farmers’ Union Scotland.
The Chairman: We shall be doing so later today.
Professor Adam Tomkins MSP: Good. One of the biggest political controversies in Scottish domestic politics has been the Scottish Government’s complete mishandling of CAP payments in recent years, so it is well worth your while talking to the NFU about it.
The Chairman: Lord Kinnoull has the last word.
Q10 Earl of Kinnoull: Following on a bit from what Baroness Suttie has just said, could you remind us what mechanisms already exist for direct interaction between the Scottish Government and the EU? To the extent that those things exist, how will they be affected by Brexit? Following on rapidly from that, do you have reflections on the implications of Brexit for the other devolved nations, in particular Northern Ireland?
Professor Adam Tomkins MSP: I cannot supply you with a detailed answer to your first question because I am not completely on top of it, but the Scottish Government have formal representation in Brussels. I do not know exactly how it works, who staffs it, how big it is, what it does or how effective it is.
The Chairman: We will have a chance to see Mike Russell, so we may wish to talk to him about it.
Professor Adam Tomkins MSP: Fiona Hyslop is the Cabinet Secretary with responsibility for that, so you might want to pursue that with her and her officials.
As regards the other devolved nations, Brexit poses particular problems for Northern Ireland, because it will be the only part of the United Kingdom with a land border with an EU member state. The way that land border is conceived, understood and managed will affect Northern Ireland and not Great Britain, because we will not have a land border with another member state.
Without wishing to be disrespectful, sometimes from London the devolved nations are viewed as one. In this instance, that would be a mistake. One needs to think about Northern Ireland not as if it were just another devolved nation like Scotland. The issues pertaining to Northern Ireland in Brexit are probably unique to it, and a Scottish politician is probably not the best source of authority on those.
The Chairman: You are being very modest. There are quite strong cultural links as well. I appreciate that is a different element from the formal political structures, but Scotland and Northern Ireland relations are personal as well.
Professor Adam Tomkins MSP: They are. A flight from Belfast to Glasgow takes only 20 minutes; it is not very far away at all, and there are strong cultural relations particularly with my part of Scotland and Northern Ireland, not least through football, but you did not come to Scotland to talk about football.
The Chairman: We have been talking, fascinatingly, about matters related to Brexit and constitutional affairs. You have kicked us off splendidly and we are grateful for that.
Professor Adam Tomkins MSP: Thank you for the opportunity to talk to you.
The Chairman: To borrow some jargon from trade negotiations, please feel that this is a living relationship. You indicated that there were one or two things you might be able to send us, so if you have further thoughts, that would be helpful. If at any time you want to draw things to our attention, it would be very welcome. We just want to express our thanks.
