On 16th January there was a House of Commons debate on the Conservative Government EU Withdrawal Bill. Among the clauses and amendments debated, Clause 11 was important, particularly from the critical constitutional perspective of the Devolution Settlement. The terms of Clause11 as drafted by the Government, and passed in the following division, is set out at the end of this article, as an Appendix for those who wish to scrutinise the detail.

Stephen Kerr, Conservative MP for Stirling gave a speech on Clause 11 during the debate, which can be seen in full below. In the following division Mr Kerr voted with the Government (Division 95).

Subsequent to the Commons debate, I wrote to Stephen Kerr, as a constituent, to discuss the speech. The short correspondence (4 e-mails; two each, ending with Stephen Kerr’s e-mail of 19th January), is presented here without further comment on the content. The initiative for publication was myself. I asked Stephen Kerr to allow the correspondence to be published in Bella Caledonia, with the generous support of the editor, Mike Small.

Stephen Kerr MP has agreed to publication on the understanding that this was initiated solely at the express request of his constituent (myself), and Mr Kerr wishes to emphasise to his constituents that they can write to him about any matter, in the certainty that their messages will be kept entirely confidential by Mr Kerr MP.

Why publish?

It is an attempt to present the divisions that clearly exist over Brexit in the country, in the light of a genuine attempt to initiate dialogue – however imperfect – across the current political divisions, rather than follow the current political convention in press, media, social media and in the political arena; consisting of two deaf factions, delivering shrill monologues by loudhailer across an unbridgeable abyss. I must also confess that I am a great deal more than weary of the degree to which social media debate on Brexit is systematically being ruined, day-in, day-out, quite deliberately, by wide-scale, incessant anonymous trolling by people who take no responsibility for whatever they write; whether undertaken by random opportunists, or even perhaps by crude, low level psy ops.

Stephen Kerr MP House of Commons speech 16th January, on Clause 11 (rising at 17.38), is here:

John Warren wrote to Stephen Kerr MP the following day, the first of an exchange of four e-mails which are set out below:

17th January, 2018

Dear Mr Kerr,

I am a constituent. I watched your speech on Clause 11 of the EU Withdrawal Bill last night on Parliament.tv

I am writing today because, as a constituent, you appear to have represented me, or people like me, as wholesale supporting your position on Brexit; or rather, somewhat ‘over’, or mis-representing it. You had a very small majority in the 2017 GE and only 27.5% of the total constituency electorate able to vote, actually voted for you. You don’t speak for everyone in the constituency, or even a clear majority of the whole constituency. You represent a political majority, narrowly sufficient for the task, but that is all. You should remember that in Parliament – you represent everybody, but you cannot claim to the vanity of claiming you speak for everybody. For the avoidance of doubt, I do not support your stance on Brexit; albeit, given the uneasy irresolution your speech displayed, I am not quite sure what your ‘stance’ might entail. It was quite clear that the essence of your problem was within your own party, although you scattered blame like so much confetti. Your speech needed to be decisive, but in the event, it was not the testament to rigour, fortitude and determination required of the moment, and if it was supposed to provide a representation of political leadership to inspire the wider community of voters back in Scotland, it failed.

I remain wholly unreconciled to Brexit, and in particular to my citizenship of the EU since the 1973 Treaty accession being taken from me, against my will, by your government. Citizenship is personal, and I take it personally. I might add that I have written to Mr Guy Verhofstadt of the European Parliament to ask him to ensure that the EU does whatever it can for people in the UK who share my views, and to defend my right to EU citizenship beyond Brexit. I consider that a move by the British Government to deprive me of MY EU citizenship, to be no better than theft. My letter was received sympathetically; and displayed a greater quotient of tact, sensitivity and wisdom than anything I have come to perceive in the generally coarse, abrasive righteousness displayed ‘en masse’ by Scottish Conservatism; which is becoming a byword for philistinism.

In the 1979 devolution referendum George Cunningham MP inserted a requirement of 40% as a threshold for devolution to succeed. Devolution won the referendum, with deep irony 52%/48%, but did not pass the 40% threshold. Cunningham was heavily criticised by the defeated majority, understandably. I have some sympathy for Cunningham, however in matters where great constitutional changes, like Devolution or Brexit are at stake. By 1999 the majority for devolution was decisive. Great constitutional changes should require decisive majorities. The American Constitution, for example cannot be changed on a simple majority; not should it. The reason for such provisions are clear; to pass a great constitutional change in a democracy on a narrow majority solves nothing, and sows deep divisions in society. They are never easily or cheaply resolved, and there are always bitter consequences to follow. Brexit was passed 52%/48%. It would not have met the 1979 40% threshold; on a 72.2% turnout the vote for Brexit was only 37.2% of the total qualifying electorate. Almost two-thirds of the qualifying electorate did not vote for Brexit; which was a fundamental change to the British constitution. This is divisive. Politically it is disastrous. The Conservative Party is wholly responsible. It was a misuse of Government power, particularly reprehensible because it was done for the sake of the Conservative Party as a brazen piece of self-interested Party opportunism; nothing more.

The cause of the divisiveness is the Conservative Party itself, and its internal ideological differences. The problem lies nowhere else. This is made worse by the post-referendum Conservative insistence that a narrow, divisive majority in a referendum that failed a proper constitutionally viable test, entitles the narrow majority to absolute power thereafter. The huge minority must not only lose, bur give up – forever. Lord Hailsham long ago accurately described this kind of malicious political activity as “elective dictatorship”. There is a profound failure within the Conservative Party to understand how politics in a democracy actually works. There are no absolute majorities; only shifting solutions, transient compromises. There are no settled, final positions. Nothing is to be solved forever, nothing is going away. If Conservatives persist with their current ideological approach to politics, they will never reach the political security they seem to hope for; they will be fought, and eventually they will lose. When they do, they will lose badly because of the bitterness they are creating. We are already seeing this playing out in Parliament. It is displayed in the draconian (Henry VIII) powers, and the wide use of Orders in Council being sought by Government to drive through its Brexit purpose, when it clearly does not have a political consensus, nor a genuine majority, or a deep, convincing or wide political support throughout the UK. The “nation” is not coming together. In these circumstances the Government has become more dictatorial; it needs to be draconian precisely because the Conservative Government does not have what it foolishly and falsely claims it does have – the comprehensive support of the British people. The narrow 2016 majority for Brexit itself is already in jeopardy, and may not even exist in Britain any more. The Conservative Party can force us out of the EU, but it cannot sustain a false majority, and an illusory grip on a national consensus that does not exist.

Yours sincerely,

John S Warren

On 18 Jan 2018, at 11:08, Stephen Kerr MP wrote:

Dear Mr Warren,

Thanks for getting in touch.

Thank you also for your comments on my speech. I would like to make it clear that I believe that all Stirling residents, whether they voted Leave or Remain, are united in wanting Scotland to thrive after Brexit.

I am not in favour of scattering blame, although I do feel that blame should be accepted where it is due. In the case of the EU Withdrawal Bill, the SNP could well have received support from Government benches for their amendments, had they not taken what I refer to as a ‘wrecking mentality’ while constructing them, focused on pushing Scotland towards independence and stopping Brexit rather than getting the best Brexit deal for Scotland.

I understand your concerns about the ‘huge majority’ seemingly being ignored. However the reality is that we cannot be half-in and half-out of the EU. Aspects such as the Single Market and Customs Union require membership of the EU, if not in name than in principle. If we ‘leave’ the EU but retain SM, CU, and ECJ jurisdiction, than all we have done is lost the influence we had in the EU, which will still have influence over us. I have full confidence in our negotiating team- which consists of both Leave and Remain voters- to get us the best deal possible.

It is usual practice for primary legislation to establish a framework and for secondary legislation to set out the rules concerning administration, collection and enforcement of tax. The Bill contains appropriate delegated powers to allow the Government to deliver on a range of potential outcomes from the negotiations with the EU.
I can assure you that Parliament does have the opportunity to exercise proper scrutiny of any regulations. For example, the House of Commons would be asked to expressly approve the first UK customs tariff and any introduction of export duty.

The Bill will allow the Government to give effect to legislation immediately in order to ensure that there is not a gap in the legislative provisions, but the regulations would cease to apply after a short period of time in the event that they did not obtain the express approval of the House of Commons.

In the event that a customs arrangement with another country or territory is agreed, such a move would be subject to a treaty, and would not come into effect until approved by the House of Commons.

Thanks again for getting in touch.

Sincerely,
Stephen Kerr
MP for Stirling

On 18th January, 2018 JohnWarren replied to Stephen Kerr MP:

Dear Mr Kerr,

Thank you for your prompt and careful reply, which I appreciate.

I notice first that you simply ignored the issue most important to me, that I made clear was the most important: the British Government is intent on taking away my EU citizenship, which is a right personal to me. It is an outrage for my government to do this to me, and unforgivable. On that my MP appears to have nothing whatever to say; still less, act. Unfortunately this kind of blind evasion of the big issues in order to deflect and propagandise, focused narrowly on an ill-considered, inarticulate and still largely unknown Brexit agenda, that consists of elaborate formal appearance but of no substance whatsoever, has become the vacuous currency of contemporary British politics. I could rest my case there.

I clearly also require to repeat; I am not reconciled to Brexit, nor do I believe that fight is over. If I may borrow from Hamlet; “the lady doth protest too much”. The Conservative Brexit faction (‘faction’ was David Hume’s favoured word of lowest contempt for the party factionalism of his day, that to my profound distaste I am still having to struggle vainly against almost three hundred years after his warnings); are in inordinate haste to hustle Brexit through as quickly as possible before the British people are roused out of slumbering inertia by the consequences, and the whole wretched Brexit house-of-cards collapses in a heap, under the weight of its intellectual incoherence.

I do not think I have ever experienced, throughout my whole life, a worse example of inept, incompetent Government than the current British Brexit negotiations have presented to the world. Even now, eighteen months into an already too-short Brexit time-frame, nobody at all (it seems inside or outside government) knows definitively (or is prepared to admit) what Britain actually wants from Brexit. I shall pass quickly over the absurdity of the ‘keep the negotiating hand secret’ argument, because clearly we have politicians inexperienced in negotiation. I spent many years in business doing acquisitions; I have never, ever seen anything that looks less like sound negotiating strategy than this Government. It is inept. I can only consider your statement “I have full confidence in our negotiating team” to be a statement of blind, unverifiable faith, presumably based on party ideology; because there is no evidence for it whatsoever. I can simply say, I have no faith in your team: none. Forgive my candour, but you appear to have lurched over the line of faith into mere gullibility.

Let me make this clear. Britain does not have the resources, even to negotiate adequately. The government is currently hiring civil servants in the hundreds; but not enough, and not with the experience required. This is a very bad sign of readiness. The EU has the negotiating team in waiting, with all the experience and all the skills – because they have been negotiating FOR BRITAIN for fifty years. They know more abut us than we do. They know more about the implications than we do. The EU contains almost all our trade negotiation resources and skills. If we were going to set out to achieve even a small proportion of what is required if any kind of serious Brexit deal, on customs and borders alone, just for example; given your Government’s time-frame we would already have required to initiate a very, very large commitment in terms of many thousands of personnel, property acquisition, equipment and administration in Customs & Excise alone that is far beyond anything we have yet begun or acknowledged. It is also striking that there is no political or media focus on the build-up of all these resources. That in itself tells you something politically salient. This Brexit is like a Phoney War, but without the expectation of there being any War. How odd. Think about it.

I do not wish to debate details, but your letter seemed to me flawed regarding what is actually happening. Just to take a single example; you argue that “the House of Commons would be asked to expressly approve the first UK customs tariff and any introduction of export duty”. Tellingly this misses a more crucial point; the key to Brexit trade is not “tariffs”, but “regulations”. There is a whole world of difference in importance between the two issues. This does not encourage me to believe you are master of the brief, or well placed to take informed decisions on these matters. I am entitled to expect my MP to assess and focus on the most important issues as priority. Please forgive my candour, but after all, these are very important matters.

Yours sincerely,

John S Warren

On 19 Jan 2018, at 13:30, Stephen Kerr MP wrote:

Dear Mr Warren,

Thanks for getting back in touch.

My apologies for failing to address the issue of EU citizenship in my first email. I am afraid that I cannot say more than you will lose your EU citizenship when we leave the EU, as this is a fundamental change for the country once we leave the EU. You will of course still be able to travel to EU countries with your UK passport.

I do recognise your concerns over Brexit negotiations. To answer your concern about regulations post-brexit, the Secretary of State for exiting the European Union has pledged that our standards will not drop once we leave the EU. The details of our trade with the EU will be addressed as we negotiate with the EU in stage 2 of Brexit negotiations.

Sincerely,
Stephen Kerr
MP for Stirling

Appendix:

Clause] 11 Retaining EU restrictions in devolution legislation etc.

In section 29 of the Scotland Act 1998 (legislative competence of the Scottish Parliament)—
(a) in subsection (2)(d) (no competence for Scottish Parliament to legislate incompatibly with EU law) for “with EU law” substitute “in breach of
the restriction in subsection (4A)”, and
(b) after subsection (4) insert—
“(4A) Subject to subsections (4B) and (4C), an Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law.
(4B) Subsection (4A) does not apply so far as the modification would, immediately before exit day, have been within the legislative competence of the Scottish Parliament.
(4C) Subsection (4A) also does not apply so far as Her Majesty may by Order in Council provide.”
In section 108A of the Government of Wales Act 2006 (legislative competence of the National Assembly for Wales)—
(a) in subsection (2)(e) (no competence for Assembly to legislate incompatibly with EU law) for “with EU law” substitute “in breach of the restriction in subsection (8)”, and
(b) after subsection (7) insert—
“(8) Subject to subsections (9) and (10), an Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law.
(9) Subsection (8) does not apply so far as the modification would, immediately before exit day, have been within the legislative 40 competence of the Assembly.
(10) Subsection (8) also does not apply so far as Her Majesty may by Order in Council provide.
(11) No recommendation is to be made to Her Majesty in Council to
make an Order in Council under subsection (10) unless a draft
of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, each House of Parliament and the Assembly.”
In section 6 of the Northern Ireland Act 1998 (legislative competence of the Northern Ireland Assembly)—
(a) in subsection (2)(d) (no competence for Assembly to legislate incompatibly with EU law) for “incompatible with EU law” substitute
“in breach of the restriction in subsection (6)”, and
(b) after subsection (5) insert—
“(6) Subject to subsections (7) and (8), an Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law.
(7) Subsection (6) does not apply so far as the modification would, immediately before exit day, have been within the legislative competence of the Assembly.
(8) Subsection (6) also does not apply so far as Her Majesty may by Order in Council provide.
(9) No recommendation shall be made to Her Majesty to make an Order in Council under subsection (8) unless a draft of the Order—
(a) has been laid before and approved by resolution of each House of Parliament, and
(b) has been laid before and approved by resolution of the Assembly.”
Part 1 of Schedule 3 (which makes corresponding provision in relation to executive competence to that made by subsections (1) to (3) in relation to legislative competence) has effect.
Part 2 of Schedule 3 (which contains other amendments of devolution legislation) has effect.