Thank you, Presiding Officer; with your permission I will update Parliament on the negotiations that have been taking place between the Scottish Government, the Welsh Government and the United Kingdom Government on the EU withdrawal bill.
The negotiations have become particularly intense over the past few weeks. The joint ministerial committee on European Union negotiations met on 8 March and the JMC plenary met on 14 March. I spoke to David Lidington on the phone on 29 March, on 6 April and again last Saturday. I met David Lidington and Mark Drakeford last Monday and I spoke to Mark Drakeford several times in March and on Friday and Monday. I also wrote to Mr Lidington on Friday, and my officials have been in almost constant contact with Welsh and UK officials in the past month. I expect to meet Mr Lidington and Professor Drakeford again next week.
Accordingly, much effort has gone into—and will continue to go into—seeking and, if at all possible, achieving an agreed approach to the problems that the EU withdrawal bill and Brexit process have presented for the devolved Administrations.
Whenever this Parliament discusses Brexit, we should remember that the people of Scotland voted overwhelmingly to remain in the EU. There were majorities for remain in every single local authority area. The Scottish Government remains as committed as ever to EU membership.
This week we have had yet more evidence of the unfolding disaster and confusion that is Brexit. The Prime Minister’s refusal to countenance continued membership of the customs union, despite the evidence from her own Government of the damage that that will cause, is a result of the internal tensions in her party and has nothing to do with the best interests of any part of the country that she is meant to serve.
What is terrifying and appalling is that jobs, living standards and even the Good Friday agreement are all secondary concerns for the hard Brexiteers who now have the whip hand in Downing Street and, it seems, for those Tory ministers who put their jobs before the livelihoods and future of their fellow citizens.
I know that many people were strongly of the view that, because of our country’s democratic opposition to Brexit and particularly the hard Brexit that is currently favoured by the UK Government, this Parliament and this Government would have been entirely justified in taking a political decision to have nothing to do with the EU withdrawal bill.
As I told the Parliament in a previous statement, there was no consultation on the content of the bill prior to our seeing it in finished form. Moreover, when we saw the bill, it was clear that what was envisaged was nothing less than a crude power grab on the powers of the Scottish people as exercised by this, their Scottish Parliament.
However much we disagree with leaving the EU, legal preparations must, regrettably, be made for EU withdrawal. That is what the withdrawal bill seeks to achieve. Even if we were able to avoid Brexit at the 11th hour, that would still be case. Therefore, the huge, time-consuming task of ensuring that the statute books of the UK and Scotland can function properly following EU withdrawal is a necessary one.
This Scottish Government has risen to the task. Working with others—different political parties, Governments of different political persuasions and communities and interest groups across Scotland—we have all striven to achieve a better, more acceptable bill.
We have undertaken that work with only one absolute red line, which is this: all the preparations for Brexit can and must be done in a way that builds on and is consistent with the principles of devolution—principles that were endorsed overwhelmingly by the people of Scotland in the 1997 referendum.
That cannot come as a surprise to anyone. We have repeatedly made the point over many months. We said it in December 2016, in “Scotland’s Place in Europe”. We made the point in private to the UK Government before the withdrawal bill was even introduced, and we set it out in detail in September 2017 in the legislative consent memorandum for the bill.
On that issue, the Scottish Parliament has spoken as one, and its voice has been heard more powerfully because of that unity. In its interim report on the bill, the Finance and Constitution Committee unanimously called the bill’s approach
“incompatible with the devolution settlement in Scotland”.
It warned that clause 11, in particular, would
“adversely impact upon the intelligibility and integrity of the devolution settlement in Scotland”
and was
“a fundamental shift in the structure of devolution in Scotland”.
Let me focus on the precise words of the committee’s report for a second. What does it mean, to say that the UK Government’s approach is
“incompatible with the devolution settlement”?
Well, it means that clause 11 subverts the principles of that settlement—principles that have given the people of Scotland a stable and effective Parliament for nearly 20 years, supported by all parties in this place, and that, throughout that time, have secured good government under different Administrations and in response to many political challenges. At the very heart of those principles is this non-negotiable truth: changes to the devolution settlement require the agreement of the Scottish Parliament. That is the foundation stone of section 30 of the Scotland Act 1998, under which orders that adjust the list of matters reserved to the UK Parliament must be approved not simply in Westminster, but here as well.
The Scottish Government intends to protect that essential principle of devolution but, before I before I turn to how we will do so, I want to indicate the matters on which we have made negotiating progress—and I am pleased to say that there are quite a few of them. I pay tribute to the work of David Lidington and Mark Drakeford, to our respective officials and to those in this Parliament who have supported and helped the process, which has been strengthened by having substantial cross-party support. I thank a number of members of the House of Lords—especially Lord Hope of Craighead and Lord Mackay of Clashfern, who have shown a keen interest in the matter and have worked hard on it, as have Jim Wallace, David Steel and Dafydd Wigley.
Mark Drakeford and I, in our conversation yesterday, confirmed that we would continue, going forward, to work together on these and on all the other Brexit issues and concerns we have in common. Together with the UK Government, we are agreed that there is an important and difficult job to be done in preparing our laws for EU withdrawal. We are agreed that, ideally, it would be done on a UK-wide basis, through co-operation and collaboration between the Governments of these islands. We are agreed that, on leaving the EU, it could make sense for there to be common frameworks applying across the UK in some areas that were formerly covered by common EU rules. Where such frameworks are in Scotland’s interests, the Scottish Government is ready to discuss them. We have identified 24 areas in which we should be able to work together with consent from all the Governments involved. The Secretary of State for Scotland has also said—both to the UK Parliament and here—that frameworks should not be imposed on the devolved Administrations. We agree with that as well. Taken together with the principles of devolution, those points are the basis of something that this Government could consider recommending to Parliament.
However, the key sticking point remains—as it always has been—clause 11 and the insistence of the UK Government on its right to take control of devolved powers. Let me set out to Parliament where we are at present on that issue. Tomorrow, we expect the UK Government to publish further amendments to clause 11. We have given them serious and respectful consideration but we, as a Government, are absolutely and unanimously clear that we cannot support any proposal that would enable the powers of the Scottish Parliament to be constrained without the agreement of the Scottish Parliament. The UK Government’s latest proposals continue to give Westminster the power to prevent the Scottish Parliament from passing laws in certain devolved policy areas. While we expect the amendments to include the addition of a sunset clause, the restrictions on our use of such powers—our powers—would last for up to seven years. The UK Government says that that ban—or legal constraint—needs to be in place to prevent the Scottish Parliament from legislating on devolved matters, such as farming or fishing, while framework discussions are taking place. However, it has never proposed—and has indicated that it could not accept—such a legal constraint for England. Any constraint placed on the UK Government will, therefore, be purely voluntary.
Given the seemingly endless political uncertainty at Westminster, who can say what a future Prime Minister or UK Government will choose to do? However, during the period of restraint, the Scottish Parliament would lack the ability to ensure that our laws in those areas—environmental protection, for example—could keep pace with EU law. During the same period, Westminster politicians—or those who might replace them, of whatever political or constitutional hue—would have a totally free hand to pass legislation that would directly affect Scotland’s fishing industry, our farmers, our environment, our public sector procurement rules, the safe use of chemicals and our food safety—the list is long, while our Parliament’s hands would be tied.
It is also worth noting that although discussion and political agreement might have reduced the number of areas that might be subject to such restrictions to 24, under the UK Government’s proposals there will be nothing in the withdrawal bill that limits possible restrictions in those areas. Again, we are being asked to take that on trust. How could we recommend giving consent to a bill that would place Scotland in such a vulnerable position in these uncertain political times?
We understand that, in an effort to allay our concerns, the UK Government might also propose a further political commitment to the effect that it will not normally make such regulations without the consent of the Scottish Parliament. However, that would not form part of any legislative amendment. In any event, if we agreed to that, the terms of the UK Government’s approach mean that it would still be for the UK Government and, ultimately, the House of Commons to determine what was normal and what was not. It would also be for Westminster to decide whether the Scottish Parliament was acting reasonably on any occasion on which it opted to withhold consent. In that respect, we cannot forget that the UK Government has gone out of its way during the Brexit process to remind people that it can legislate on any matter at any time. Indeed, in relation to the Sewel convention, the UK Government lawyers told the Supreme Court:
“Whether circumstances are ‘normal’ is a quintessential matter of political judgment for the Westminster Parliament”.
Let me cut to the chase. Notwithstanding the more benign language that is now being used, the effect of the UK Government’s latest proposals remains that the Scottish Parliament’s powers could be restricted for a period of up to seven years without its consent. That is not something that the Scottish Government could recommend that the Parliament approves.
However, there is still a way forward. In fact, there are two possible ways forward, which I have outlined to David Lidington. The First Minister has today outlined them to the Prime Minister. The first is to simply remove clause 11 from the bill. The Scottish and UK Governments could then agree on equal terms not to introduce legislation in devolved policy areas while negotiations on frameworks were taking place. In that way, the Scottish Government is offering exactly the same “certainty” that is being offered by the UK Government. We could do so, as we have indicated, within a written and signed document that showed that neither side would unreasonably withhold agreement.
We believe that if such a voluntary agreement is good enough for Westminster, it should also be good enough for Holyrood. That solution would also demonstrate equity of treatment, which would be in keeping with the repeated assurances that were made to the people of Scotland during and after the 2014 referendum, and as part of the 2016 referendum campaign.
If the UK Government rejects that reasonable proposal, we have another one: we could agree to abide by the present system. In that system, any regulations that would prevent the Scottish Parliament from legislating on devolved matters for a temporary period of time must be introduced only when that is agreed to by the Scottish Parliament. That means that amendments to clause 11 must make it clear that absolute Scottish Parliament consent is required. There must be no override power for UK ministers in the withdrawal bill. That would be consistent with the way in which other order-making powers are currently exercised and with the devolution settlement. That proposal is one that we have repeatedly made to the UK Government.
Those are practical and workable solutions to the issue that would ensure that the necessary preparations for Brexit could be made across the UK, while protecting devolution. They are both on offer. By continuing to work with the Welsh and UK Governments, we can make progress on them but, in the end, it will be for this Parliament to make the final decision. It is the Scottish Parliament that will give or withhold legislative consent to the UK Government’s withdrawal bill.
Later this week, following the lodging at Westminster of the UK Government’s amendments, the Scottish Government will lay in Parliament a supplementary legislative consent memorandum, in which we will spell out in detail the Scottish Government’s remaining concerns about the bill and suggest the options that I have outlined as a way forward. It will express our wish to come to an agreement with the UK Government, but it will also make it clear that if clause 11 is not removed, or if the necessary changes to clause 11 are not made, we will not recommend that Parliament consents to the withdrawal bill as a whole. It will also set out our view on other clauses, indicate what we could accept if agreement can be reached and outline how we intend to proceed with the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, which we will defend vigorously in the courts.
At the end of that process, this Parliament will decide how it wants to proceed. It will then be for the UK Government and the UK Parliament to respond to that decision. They will have to do so by the third reading of the bill in the Lords, which will be the last opportunity to make any substantive changes to it in Westminster. That is what is required by our constitution, and no less an authority on the matter than Professor Tomkins, in this chamber, described the Sewel convention as
“a binding rule of constitutional behaviour: breach it,”
he warned,
“and there will be a high political price to pay”.—[Official Report, 23 January 2018; c 74.]
Indeed. It would be an outrage if the UK Government decided to use what the people of Scotland did not vote for—Brexit—to undermine what we did vote for: devolution. The UK Government has no mandate to undermine the powers of this Parliament and therefore the Scottish Government will do everything that we can to protect the devolution settlement that people voted for so overwhelmingly more than 20 years ago.
We want to agree with the UK Government and move the issue on so that we can spend time on the substantive and dangerous challenges that Brexit presents more and more pressingly to this nation, but we cannot agree at any price and certainly not at the price of undermining this Parliament and the essential work that it does for all the people of Scotland.