Meeting of the Parliament (Hybrid)

Meeting date: Thursday, October 29, 2020

Official Report 1053KB pdf

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UK Withdrawal from the European Union (Continuity) (Scotland) Bill: Stage 1

The next item of business is a debate on motion S5M-23163, in the name of Michael Russell, on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. I call Michael Russell to speak to the motion. [Interruption.]

15:30  

Sorry, Presiding Officer—I am having another kerfuffle here.

It has been that kind of afternoon. Please continue, cabinet secretary.

My apologies, Presiding Officer. I thought I would contribute my own kerfuffle, as I did not see the earlier one.

Let me start with what, although a truism, needs to be repeated regularly and often. The people of Scotland voted overwhelmingly to remain in the European Union, but they are being dragged out of the EU against their will. Moreover, in subsequent elections, the people of Scotland have comprehensively rejected the hard-Brexit ideology of the Conservative Party and its plans to remove Scotland from the many benefits of EU membership, including membership of the single market and the customs union. The Tories, in government in the United Kingdom while in perpetual opposition here, are not listening. The Scottish Government and, I believe, the Scottish Parliament, are listening, however. We hear the ambition of the people of Scotland to retain the closest links with the EU and to continue to meet the high European standards that presently serve us so well.

The UK Withdrawal from the European Union (Continuity) (Scotland) Bill makes a start, at least, on meeting those ambitions. It is a modest measure, but it will be of use to every part of our country and every sector of our economy. The only people who oppose it are those who have got us into this mess in the first place.

The bill returns the ability to regulate that was lost as a result of the Brexit that Scotland rejected. It replaces the protection for Scotland’s environment that is provided by EU law, and it is a statement of our values and of the path that we believe is the best future for Scotland. My remarks on it will focus on part 1 of the bill, and my colleague Roseanna Cunningham will cover part 2, which has a particular focus on her area of responsibility.

Will the cabinet secretary give way?

Let me make some progress, please.

I thank the Finance and Constitution Committee, the Environment, Climate Change and Land Reform Committee and the Delegated Powers and Law Reform Committee for their thoughtful contributions to scrutiny of the bill so far. I also thank everyone who has expressed their views.

If Mr Fraser now wishes to express his views, he may.

I am grateful to the cabinet secretary for giving way. It was stated in evidence to the Finance and Constitution Committee that the bill creates a substantial Henry VIII power, taking power away from the Parliament and giving it to the Scottish ministers. The cabinet secretary would be apoplectic if the UK Government were to do that. Why is it all right for him?

I would be in a state of permanent apoplexy if I—

You are.

Well, I am only in a state of permanent apoplexy because I am faced with people like Murdo Fraser too often.

I would be in a state of permanent apoplexy if I even thought about the amount of powers that the UK Government is taking for itself on a daily basis—including today in the House of Lords, under the United Kingdom Internal Market Bill. Murdo Fraser should not patronise this Parliament, please, by pretending that there is an interest in the powers. The powers are being grabbed by the party of which Mr Fraser is a member.

Let me make some progress, however. Let me not be distracted by Mr Fraser—it is never a pleasant experience.

A defining feature of this Parliament, in contrast to some others, is the importance that we place on listening to those who are affected by what we do. The power in section 1 is intended to give ministers an appropriate way to recognise in domestic law the high standards that are represented by EU law. I have, of course, heard the calls for greater clarity on the principles that underpin how that power will be exercised, and I agree with those who say that the nature and breadth of EU law makes trying to define those in the bill almost impossible. However, if the bill passes at stage 1 today, I will commit to publishing guidance on the factors that ministers will have to consider.

I have also heard calls for the Parliament to reflect on the role that it and stakeholders should play in scrutinising regulations. That is, of course, an important issue with every bill. Some people have suggested that primary legislation should be required instead, and there is a role for primary legislation in areas of major innovation, but to make all legislative changes, however small and technical, through primary legislation would be, and always is, disproportionate.

I agree entirely with the points that the cabinet secretary has just raised. Does he accept, however, that, when it comes to major policy issues, primary legislation is very important?

I am always happy to agree with the reasonable face of the Conservative Party, from which I have just heard. We will, of course, ensure that, when there are major changes, they are adopted in that way. However, attempting to limit the power to exclude significant new proposals would not be practical, given the legal difficulties in defining them.

Subject to Parliament’s agreement, I will engage further to agree a way of working together that not only addresses the point that Liz Smith has made but gives Parliament as early a role as possible. That could involve regular reporting by ministers on forthcoming EU legislation and its interaction with devolved areas, as well as a discussion on the most appropriate procedure for any legislation. I will also lodge an amendment that requires ministers to make a statement to accompany regulations under this power, which will set out the consultation that has taken place with local government and others.

We have listened to those who are concerned that Brexit threatens human rights. Following Parliament’s agreement to the general principles of the bill, I will lodge an amendment to require a further statement to accompany regulations that explains any effects that they will have on human rights.

The people of Scotland did not choose Brexit. They certainly did not choose the sort of disastrous no-deal Brexit that is still a possibility, and nor did they choose the equally low deal that is the only alternative left on the table. That low deal is a painfully thin, job-destroying ideological muddle, and, if it is imposed in the middle of a global pandemic, the resulting deep recession will cost every one of us dearly. It beggars belief that any responsible Government would even consider it, still less choose it.

This Government will do all that we can do ensure that we remain a confident, outward-looking country that shares values with the people of England, Wales and Northern Ireland as well as with our European neighbours. We value our joint commitment to compliance with international human rights law and the protection of the environment that is at its core.

With that, I shall pass over to Roseanna Cunningham, the Cabinet Secretary for Environment, Climate Change and Land Reform, who will speak to part 2 of the bill.

That is breaking news to me, but it has been one of those days.

I invite Roseanna Cunningham to speak to and, I presume, move the motion.

15:36  

This is a unique job-share experience for the Parliament.

I thank Mike Russell for so clearly restating that Scotland did not choose to leave the EU. There should be no need to consider how to deal with Brexit, and anything that we do cannot fully substitute for the loss of our membership.

From the beginning, my priority has been to protect the environmental standards that we have in Scotland. I am proud of our environmental record and of our commitment to respond to the global crises of climate and biodiversity loss. Our natural world supports our wellbeing and our reputation as a nation. Natural resources contribute to our society and economy in countless ways, and we must protect those precious assets from the threats that arise from Brexit.

I have committed to maintaining or enhancing our environmental standards, and I have made it clear that we should align with future developments in EU standards wherever possible. Those objectives have been shared by many across Scotland—in our public bodies and nature charities and across society. That is the context for the development of the environmental proposals in part 2 of the bill. We have already completed a huge body of work to ensure that our regulatory systems are robust and will continue to protect standards.

Earlier this year, I published “The Environment Strategy for Scotland: vision and outcomes”, which will set a framework for future policy. The measures in the bill provide for continuity, in domestic law, of two key features of the EU’s structures that we are losing, to ensure that we can continue to protect environmental standards. The proposals establish guiding environmental principles in domestic law, which will ensure that the principles continue to underpin the development of our environmental policy and law. The proposals will also create a proportionate system of domestic environmental governance to replace the role of the EU institutions in ensuring that environmental law is fully implemented and effective.

This is becoming urgent. I hardly need to remind the Parliament that the Scottish Government made repeated calls to negotiate an extension to the transition period in the face of Covid-19—calls that were ignored by the Government at Westminster.

I echo Mike Russell’s thanks to the Finance and Constitution Committee, the Environment, Climate Change and Land Reform Committee and the Delegated Powers and Law Reform Committee for their scrutiny of the bill to date. I also thank all those who have contributed their views. With the hard work of the committees, clerks and stakeholders—who have been willing to give evidence remotely—the proposals in the bill have had a thorough airing. I appreciate that we have been working to a tight timetable for complex provisions. However, that is not a situation or timescale of our own choosing.

If people are saying that the proposals are not as good as being in the EU, I readily agree. However, we must be careful that, in seeking to maintain what we are losing due to the EU exit, we keep the balance with domestic law and procedures right. We want to maintain what we had within the EU, but careful thought must be given to how best to translate supranational arrangements into domestic law. As Mike Russell said, it must be for this Parliament to determine our environmental standards outwith the EU. He made a clear argument against any automatic or rules-based application of the alignment power. The real-world policy environment is too complex for a sensible set of rules to be made by flatly applying criteria.

A similar case can be made with respect to part 2. We need measures to continue the effect of environmental principles and governance, but no rigid set of rules can replace the judgments made by ministers and the Parliament about future policies and legislation.

The environmental principles must remain what they are in the EU context: a central guide to good decision making that is to be weighed alongside other matters and objectives. Environmental governance must keep public authorities in line with the laws that are passed by this Parliament but must not shift decision making from this Parliament to another body or to the courts. I will, of course, be flexible at stage 2.

I believe that the fundamental measures in the bill are what we must have in place. There is limited time, and we must focus on putting in place effective and proportionate principles and governance now and dealing with other matters at a more appropriate time.

The Deputy Presiding Officer is telling me that I have run out of the time that I thought I had.

It has been a mystery tour for us all this afternoon. There was 10 minutes for the cabinet secretaries, and you have not moved the motion.

I move,

That the Parliament agrees to the general principles of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.

There we are. We are all inventing the script as we go. I call Bruce Crawford—I hope—to speak on behalf of the Finance and Constitution Committee.

15:41  

I hope that I can clear up any remaining mysteries.

I thank our clerking team for supporting the committee so effectively through the stage 1 process. I also thank my MSP colleagues for the way they went about the process, not always agreeing, but being able to disagree amicably and professionally.

As the lead committee, we focused on part 1 of the bill. The Environment, Climate Change and Land Reform Committee focused on part 2, and the convener, Gillian Martin, will discuss her committee’s findings later in the debate.

Part 1 of the bill would enable ministers to make provisions in secondary legislation to keep pace with EU law in devolved areas, where appropriate. My committee—with the exception of our Conservative colleagues—supports the principle of the keeping pace power as it exists in the bill, but the committee does not accept that the use of the power should be entirely at the discretion of the Scottish Government. The committee recommends that the bill should be amended to require the Scottish Government to provide guidance setting out the criteria that will apply to the use of that power. The guidance should also set out clearly how the keeping pace power interacts with other sources of regulation that will impact on people and businesses in Scotland. That should include the impact of trade deals, common frameworks and the operation of the UK internal market.

The committee welcomes the commitment from the cabinet secretary to work with the Parliament to agree an appropriate and proportionate decision-making framework for future alignment with EU law. I am therefore pleased that the cabinet secretary has committed to publishing such guidance.

However, given that future Governments might not always be as accommodating as the current one, there might still be room for further discussion on the matter. It is therefore essential that the Parliament gives serious consideration to the level of scrutiny of the keeping pace power that would be appropriate and proportionate. Specifically, what role should Parliament, stakeholders and the wider public have in relation to the decisions on whether to keep pace and to early engagement in the policy development process, especially when there are opportunities for ministerial discretion in how to keep pace?

The committee recognises that, until now, Parliament has had a limited role in the EU policy development process. There might be a risk that EU policy-making process is replaced by an executive-driven process that allows for significant levels of ministerial discretion. Therefore, there is a pressing need for Parliament to consider how its scrutiny role must evolve to meet the challenges of the impact of Brexit on devolution.

The committee has therefore agreed to write to other parliamentary committees to seek their views on the matter. We have also asked for a committee debate in the chamber before the Christmas recess, and we encourage all committee conveners or representatives from each committee to speak in that debate.

A key question for the committee is whether the extent of the secondary powers in the bill is appropriate. As colleagues will be aware, the keeping pace regulations in the bill are subject to either the affirmative or the negative procedure. The committee recognises that it might be necessary and acceptable for minor and technical amendments to be made quickly by subordinate legislation to refine retained EU law. However, the committee’s view is that further consideration is needed in relation to the implementation of significant new policy proposals that have no equivalent in retained EU law.

The committee therefore recommended that the Scottish Government give serious consideration to the Delegated Powers and Law Reform Committee’s view that primary legislation is the most appropriate vehicle for domestic law to implement significant new policy proposals that have no equivalent in retained EU law, and that that applies particularly to EU directives. In the event that the power is not amended to that effect, the committee recommends that the choice of procedure is expanded to include the superaffirmative procedure.

I note the cabinet secretary’s view that attempting to limit the scope of the power in section 1(1) to exclude significant new proposals would not be practical, given the significant legal difficulties involved in defining that in the bill. I also note that the cabinet secretary has said that he is content to discuss the matter further.

A further important consideration for the committee and Parliament is the extent to which the keeping pace power could be subject to statutory and non-statutory constraints. Although the keeping pace power is very wide in principle, in practice it might be much more limited. In particular, the committee notes, although with the disagreement of my Conservative colleagues, that the mutual recognition and non-discrimination principles in the United Kingdom Internal Market Bill could significantly undermine the use of the keeping pace power. Indeed, the committee believes that the internal market bill, in particular the market access principles, undermine the whole basis of devolution. This Parliament has made its views clear on that in refusing consent for that bill.

That leads to my final point, which is on the role of common frameworks—an area that the committee has considered extensively. The committee remains supportive of the Scottish Government’s view that common frameworks should not be imposed by the UK Government. The committee supports a system of common frameworks for trade in the UK market, with the common frameworks to be agreed between the devolved Governments and the UK Government. However, it is equally important that common frameworks are not imposed on Parliament and stakeholders without meaningful consultation and an opportunity to propose amendments.

The committee, with the exception of my Conservative colleagues, supports the general principles of the bill.

15:48  

The Environment, Climate Change and Land Reform Committee outlined a number of areas in which further information and action is required in part 2 of the bill. The committee has previously expressed serious concerns about the ability of Scottish ministers to exercise their powers within the devolution settlement in devolved environmental competence following EU exit. In fact, during the summer, I made a statement on behalf of the committee on our discomfort with giving approval to a legislative consent motion on the UK Environment Bill—that is just one example.

The continuity bill and its interplay with the United Kingdom Internal Market Bill raises further questions about the broad and lasting consequences of EU exit, including on the development of and agreement on common frameworks. Despite our continued requests to the UK Government—certainly since I have convened the committee—for more detail on common frameworks, we have yet to receive sufficient information on them. My committee agrees with the Finance and Constitution Committee on that point.

The committee agrees with the general principles of part 2 of the bill, in so far as it seeks to provide legal recognition of the environmental principles and oversight of the implementation of and compliance with environmental law following EU exit.

We welcome the cabinet secretary’s determination, which he has outlined again today, to keep pace with environmental standards set by the EU. However, we want to highlight some concerns, particularly about the role of environment principles, and the functions, powers, and independence of the proposed new environmental standards Scotland body, or ESS.

The committee certainly supports the commitment to maintain or exceed EU environmental law to ensure the continuation of higher environmental standards in Scotland. We consider that the bill is fundamental in consolidating the framework for environmental law and other policy and law that impacts on our environment. [Interruption.] I apologise for the noise that the dog is making—I will keep going.

On balance, we are content that the keeping pace power is discretionary. However, there must also be more clarity about when the Scottish Government would use the regulation-making power under section 1.

We are also of the view that the climate and ecological emergencies, the climate targets, the commitment to maintain environmental standards and sustainable development must form part of any decision-making tools or assessments when deciding whether to keep pace.

We recommended that the Scottish Government regularly reports to Parliament on developments in EU environmental law and how they have been matched in Scotland. It is crucial that we have a transparent and accountable process for parliamentary engagement and scrutiny of those decisions. The Government should also lay a regular report before Parliament on significant developments in international environmental protection legislation.

We welcome a statutory footing for the principles in the bill, but we consider that, in order to provide legal continuity, it must also set a high level of environmental protection. Without that being on a statutory footing, the Scottish Government’s objective of achieving a high level of environmental protection is a statement of policy intention and does not necessarily provide legal continuity for any subsequent governments.

We firmly believe that, in order to deliver a green recovery and respond to climate and ecological emergencies, we need to integrate environmental issues across all Government policy legislation. That will rely on there being a legislative basis for the principles of integration and environmental equity, and extending the precautionary principle to include human health.

We have said in our report that we need to know how those principles will sit in the broader constitutional and legal context, and how they will be applied. We also need additional information on how the United Kingdom Internal Market Bill will influence Scottish ministers’ ability to act on environmental principles.

I turn to environmental standards Scotland. We asked whether the body will provide continuity of environmental governance and we heard that there are potentially a couple of gaps, specifically in the ability to pursue matters at the level of an individual case, in the investigation of cases in which the environment is an element and not the core of the matter, and in climate governance more generally.

Under the proposed system, an element of governance previously fulfilled by the European Commission will, ultimately, end up in Parliament through the laying of an improvement report. That will impact parliamentary committees, particularly the ECCLR Committee, and questions remain about whether committees have the capacity and access to expertise to consider such reports.

Our report also flags up the long-standing debate about the need for an environmental court in Scotland. We need to rationalise how legal issues and appeals are determined across regulatory frameworks affecting environmental issues. We firmly believe that compliance appeal cases need to be heard by people with expertise and experience in environmental law. We are keen to know how the Government plans to build and consolidate environmental law expertise across the judiciary in tandem with setting up the ESS.

The committee is of the view that the bill’s success, from the point of view of the environment, depends on a satisfactory response to the issues that we have raised in our report and to strengthening the areas that we have outlined. However, as I said earlier, we support the principles of the bill at stage 1.

Thank you, Ms Martin. I also thank your canine companion for the little interventions made on your behalf—or perhaps not on your behalf.

I call Dean Lockhart. Let us hope that things will go smoothly for the rest of the afternoon. You have six minutes, Mr Lockhart.

15:54  

Thank you, Presiding Officer. I do not have any pets with me, as far as I can see.

I add my thanks to the clerks, conveners and others on the committees overseeing the legislation for all their hard work.

The context for the debate is that Scotland is now facing an unprecedented recession, with its economy declining by 20 per cent and unemployment increasing rapidly. Following the additional restrictions that were announced earlier today, the Parliament’s priorities must be to protect jobs and livelihoods and to rebuild Scotland’s economy.

However, instead, we are debating a continuity bill that will do the opposite—a piece of legislation that will impose barriers to trade, increase the cost of doing business and ultimately, I am afraid, cost jobs and livelihoods across Scotland. There is no doubt that this bill will damage Scotland’s trade with the rest of the UK and beyond. Those are not just my views; they are concerns that were raised by stakeholders who gave evidence to the Finance and Constitution Committee.

Will the member give way?

I will in a minute, Mr Mason.

For example, according to NFU Scotland, the keeping pace power in part 1 has, in its words,

“the clear potential to lead to substantial regulatory, and therefore economic, divergence with the rest of the UK.”

For NFU Scotland, that is a major concern, given that more than 60 per cent of Scotland’s agriculture and food exports go to the rest of the UK.

Michael Russell rose—

However, such concerns are not limited to the agriculture sector. According to the Fraser of Allander institute, more than 550,000 jobs across all sectors in Scotland depend on our having barrier-free access to the UK’s internal market.

I will give way to the cabinet secretary.

I wonder whether the member has read NFU Scotland’s submission on the United Kingdom Internal Market Bill, which talks about the difficulties that will be experienced with the proposals that are being made and the effect that they will have on trade.

Would it not be better to remain in the EU, which would get rid of all such problems and would help all of us? It would also mean that the recession that we face would not be made worse by Brexit—which it will be.

I remind the cabinet secretary that we are debating the continuity bill. As Scottish Conservatives have said in previous debates, common frameworks will form the bedrock for trade in the internal market. It was unfortunate that the cabinet secretary walked away from negotiations on the internal market guidelines.

By keeping pace with some—but not all—future EU laws, the bill will require firms in Scotland to comply with myriad divergent regulations, including: devolved law that keeps pace; devolved law that does not; and different regulations in other parts of the UK that no longer follow EU regulations.

The committee heard evidence that that would lead to Scotland becoming a “regulatory no man’s land”, with the inevitable consequence of the proposals being that they will increase the expense and complexity of doing business, increase costs for consumers and, at the end of the day, cost jobs and livelihoods—all at a time when thousands of businesses across Scotland are already struggling to survive under Covid restrictions.

However, the ultimate indictment of the bill is that it will not even achieve its stated aim of keeping Scotland aligned with EU regulations, which the cabinet secretary mentioned in his opening remarks.

The Faculty of Advocates has pointed out that

“the Scottish Government will not be able to ‘keep pace’ in areas of EU law which depend on reciprocal arrangements between Member States.”

Commenting on the proposed legislation, EU officials have said:

“This legislation could create a difficult position for Scotland and wouldn’t be effective. Many regulations which are passed by the EU will be difficult to implement and will not apply to Scotland.”

I look forward to the cabinet secretary addressing that EU response in his closing remarks.

Not only will the bill damage Scotland’s economic recovery; it also represents a power grab by Scottish ministers that will undermine the powers of the Scottish Parliament and turn it into a passive rule taker of future EU laws. [Interruption.] The Scottish National Party members who are making comments should listen to the following concerns that were raised by key stakeholders.

Paragraph 48 of the committee’s report refers to the keeping pace power as a “substantial Henry VIII power”—in other words, a power that will enable Scottish ministers to introduce new laws, including significant new policies, by means of secondary legislation without any parliamentary scrutiny or consultation with stakeholders.

Scottish Conservatives’ concerns in that area are shared by the Law Society of Scotland, the Faculty of Advocates, NFU Scotland and a number of constitutional experts, including Professor Aileen McHarg, who gave the following evidence to the committee:

“In those circumstances, it seems very hard to justify putting such an extensive power into the hands of ministers.”—[Official Report, Finance and Constitution Committee, 26 August 2020; c 4.]

We agree—as does NFU Scotland, which told the committee that

“there is an absolute requirement that Scotland, through the Scottish Parliament, retains an ability to adapt new laws for Scottish circumstances.”

I have read the cabinet secretary’s response to those stakeholder concerns and I have listened to what he has said today about some of the amendments that he will lodge at stage 2 and I have to say that he provides no assurance whatsoever in respect of this Parliament having the proper level of scrutiny.

Given the concerns that I have outlined, a number of stakeholders have provided recommendations on how this legislation can be improved. For example, the NFUS made the following important recommendations: that ministers be required to publish a full regulatory, financial and environmental impact assessment of regulations made under the legislation and to ensure that all keep pace regulations are made following consultation with relevant stakeholders. We will be listening to the recommendations from the NFUS and other key stakeholders and we will be lodging appropriate amendments at stage 2 to address those concerns.

We will be voting against the bill at decision time. It gives excessive powers to Scottish ministers to implement significant new policy changes with no parliamentary scrutiny, it will turn the Parliament into a passive rule taker, and it will create barriers to trade between Scotland and the rest of the UK, a market that accounts for more than 60 per cent of our trade.

16:01  

I am pleased to be speaking in this stage 1 debate on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. I thank all those on the Finance and Constitution Committee and the Environment, Climate Change and Land Reform Committee for their hard work in scrutinising the bill, and I thank the clerks for their support in bringing together the stage 1 reports. I also thank all those who gave evidence and helped to advise the committees through the scrutiny of the bill.

The bill is being introduced to allow our legal system to keep pace with EU law in devolved areas where appropriate, as well as being able to ensure that there continue to be guiding principles on our environment here in Scotland in our post-Brexit landscape. Those general principles are supported by the Labour Party and we will be supporting the Government with the progression of the bill today.

At this stage, we agree in principle with creating new powers to allow the Government to keep pace with EU laws. It is particularly desirable to be able to deliver the strong environmental standards that we want to see in Scotland. It would be impractical to require all changes in EU law to be given effect by primary legislation in the Scottish Parliament. That would hold up important legislative activity. However, some future changes in EU law could involve substantial policy considerations, which Parliament and stakeholders must have the opportunity to scrutinise and influence.

The Government must set out detailed guidance on how those powers would be used and alternative processes for when consultation would be required. Scottish Labour welcomes the proposal for a new environmental governance body, environmental standards Scotland, but that body has to be independent of Government. We believe that climate change, individual cases and fiscal measures should all be included in the remit of that body and that exemptions to investigations should be prevented or at least have to go through primary legislation.

We welcome the incorporation of the EU’s guiding environmental principles in the bill, as argued for by Scottish Labour in relation to the previous continuity bill. Labour is considering amendments at stage 2 to add further principles, including recognition of human health impacts. We also believe that the bill should be strengthened at stage 2 to act in accordance with the environmental principles.

The keeping pace powers should not be entirely at the discretion of the Scottish Government and there must be greater clarity on how the Scottish Government proposes to use the powers. I am pleased by the indications from the cabinet secretary to the Finance and Constitution Committee that he intends to work with the Parliament to agree on an appropriate and proportionate decision-making framework for all future alignment with EU law.

I welcome the cabinet secretary’s response to the Finance and Constitution Committee’s report, which we received this Tuesday and which stated that he would

“commit to publishing the guidance which will be used to inform decisions on the use of this power.”

That is a welcome step. However, it is worth noting that the Law Society of Scotland, in its briefing for today’s debate, said:

“it is suggested that the power to make regulations under section 1 should be restricted to where the changes in EU law do not involve substantial policy considerations unless they are subject to super affirmative procedure”.

That point is worth bearing in mind as we move forward with the bill. From my reading of the cabinet secretary’s response to the committee, he appears not to have taken that suggestion on board. I hope that a satisfactory agreement can be reached on the level of scrutiny that will be required before we take on board new rules.

The NFUS has said that it agrees with the recommendations of the Finance and Constitution Committee and the Environment, Climate Change and Land Reform Committee that the use of the power in part 1 should not be “absolute and inflexible” and that there should be a stronger role for Parliament in scrutinising its use.

I hope that there will be a willingness to work together. We believe that there is a need for the bill. It is ludicrous for the Scottish Tories to continue to align with Boris Johnson and attack the environmental rights of the Parliament and the people of Scotland. We will work together to ensure that we improve the bill at stages 2 and 3 and then pass it.

16:06  

I say at the outset that the Greens strongly back the bill’s principles at stage 1, just as we backed the original continuity bill—the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—which was so recklessly struck down by the UK Government. While the storms gather over the United Kingdom Internal Market Bill, it is important to forge ahead with European alignment for the sake of the environment, people and our economy.

It is important to reflect on what the bill aims to allow us to stay in alignment with. European protections were built on the struggle of citizens’ movements to protect human rights and the environment over many decades. From the Sandoz chemical spill that decimated the Rhine to particulate air pollution in European cities and today’s climate emergency, European protections have been the response to the struggles on those issues and now provide a strong counterweight to the economic neoliberalism that, if left unabated, would have collapsed Europe’s environment a long time ago.

The Environment, Climate Change and Land Reform Committee was told that the bill’s primary objective is to maintain alignment with those hard-won protections and to ease the path to reaccession to the European Union. Therefore, it is not a pick and mix or a Norway-lite approach; it is about EU membership. Stage 2 will be a test of the Scottish Government’s commitment to the goal of alignment and reaccession.

The foundation stone of that is the keeping pace power. I welcome the Government’s commitment to make the decision-making framework for that more democratically accountable, but it still needs a direction. It needs a statutory purpose that nails what we are aiming for. One of the rights that we had as EU citizens was the right to enjoy a world with a high level of environmental protection. That is enshrined under article 37 of the Charter of Fundamental Rights of the European Union, yet it is absent from the bill. If the Government wants to maintain and exceed European environmental standards, it needs to be clear in law that that means a high level of environmental protection.

I have my doubts, however, because the Government’s response to the Environment, Climate Change and Land Reform Committee stage 1 report states:

“When enhanced environmental standards are introduced in the EU, we can expect a full and lively policy debate about how Scotland should respond”.

That worries me because, although there will be EU laws that are no longer functionally relevant to a departed member state, those that set core environmental standards will be relevant. Actually, I do not want a lively debate about whether we should hold off from tackling air pollution that causes asthma in children, or whether we should keep spraying a pesticide that decimates bee populations; I want Europe-wide action as the baseline.

The bill attempts to enshrine four key environmental principles, but it requires ministers merely to “have regard to” them. That is very different from how policy has been developed until now in the EU, because EU treaties have required our policy to be based on those principles. A Westminster committee has judged that the phrase “have regard to” is

“weak, unenforceable and lacks clear meaning”,

so why put those weasel words into Scottish legislation?

I think that we have an opportunity to deliver real progress while staying on a parallel path to reaccession. For example, applying environmental principles to budgets would drive the green recovery that I think we all want. The precautionary principle would help us to put preventative spending first, thereby stopping costly problems becoming unmanageable in the future.

If environmental standards Scotland is to replace the European Commission, it needs to be strong, independent, well resourced and rigorously appointed by Parliament. It needs to operate under the widest definition of the environment, which must include climate change. It must consider individual complaints as case studies to improve compliance with the law and to suggest changes to the law itself. ESS needs to be a watchdog that has one eye on the European and international legislation, with the other eye firmly focused on ensuring that we keep pace at home.

There is acres of room for the Government and a majority of members in the Parliament, should they wish to improve the bill at stage 2. For the sake of our environment and our health, we need to continue to make progress in lockstep with our European neighbours, and the bill must rise to that considerable challenge.

16:10  

I, too, start by thanking the Finance and Constitution Committee and the Environment, Climate Change and Land Reform Committee for their work to date on the bill. It is not a bill that many of us would have wanted to see and it further highlights the needless damage, disruption and uncertainty that have been caused by Brexit.

As Scottish Environment LINK points out, 80 per cent of Scotland’s environmental protections stem from European Union legislation. The climate emergency and the need to tackle biodiversity loss demand no let-up in robust standards, and that is what we must look to achieve through the bill.

To do that effectively, the approach must be based on the right principles and set within the context of a clear overall purpose. Although I have no difficulty with the four principles that are currently in the bill, I agree with the ECCLR Committee and others that the Government should go further by including the Lisbon treaty principles on high levels of protection and integration. It would also be helpful to set out the overarching principle. Scottish Liberal Democrats will work with others to achieve that at stage 2.

Such principles will matter only if there is an onus on ministers to use them as the basis on which to take decisions. As Scottish Environment LINK pointed out and Mark Ruskell has identified, the bill that is going through Westminster appears to provide greater safeguards in that respect than what is proposed in the bill before us. Whether it is a requirement for ministers to have “due regard to” or to “act in accordance with”, it is clear that the ECCLR Committee wants the Government to toughen things up. Again, the Scottish Liberal Democrats will work with others to achieve that.

Another problem that the Government will have to address at stage 2 stems from the power that the bill gives ministers to keep pace while not requiring them to do so. Nobody else is allowed to insist that ministers keep pace; as things stand, only ministers can choose to do so.

I was struck by the fact that Mr Russell told the Finance and Constitution Committee that

“those who are opposed to any keeping pace could frustrate the legitimate will of the Scottish people to keep pace with high standards.”—[Official Report, Finance and Constitution Committee, 9 September 2020; c 6.]

However, he then spent the rest of his time saying that he would not keep pace with everything, for a whole series of reasons. Therefore, it turns out that he might yet find himself in the position of frustrating the legitimate will of the Scottish people.

The Law Society of Scotland, the Faculty of Advocates and others have made suggestions about how that might be addressed. Professor Michael Keating put it well when he said:

“We need to know on what basis things are going to be selected.”—[Official Report, Finance and Constitution Committee, 26 August 2020; c 3.]

It has been suggested that there could be an annual report that would look ahead at anticipated EU legislation and state whether the Government intended to keep pace with it. There are various options. The cabinet secretary has mentioned the use of guidance as a possible option. The bottom line is that the issue needs to be addressed at stage 2.

Among the other issues that have been flagged up by the committees is the need to protect the independence of ESS. I can certainly understand the anxieties about that.

I want to close by acknowledging one other issue that was identified by Scottish Environment LINK in its briefing. The case for a dedicated environmental court or tribunal is one that has been made by many people over many years, although few have made it with as much persistence and passion as Lloyd Austin, formerly of RSPB Scotland, has done. I think that the bill provides an opportunity for the Government at least to commit to consult on an environmental court, which would allow any incoming Government in May to decide how best to proceed. I hope that the cabinet secretary will consider the idea and look at least to take initial steps on it.

In the meantime, I again thank the committees for their work to date and assure them of Scottish Liberal Democrat support in pursuing the improvements that are needed to minimise the damaging legacy of Brexit, especially in the area of environmental policy.

16:14  

We are now more than four years on from the disastrous and irresponsible Brexit referendum, so it is worth reminding ourselves of the outcome of that vote here in Scotland: remain got 62 per cent and leave got 38 per cent. Every local authority area in Scotland voted to remain, so the bill has an overwhelming mandate from the people of Scotland. Brexit has been forced on us by the UK Government’s actions, not only in taking us out of the world’s largest single market and ignoring compromise solutions from the Scottish Government, such as remaining in the single market and customs union, but in refusing to extend the transition period despite Covid and in failing to secure any kind of trade deal worth the name—and certainly not the Canada-double-plus deal that was the UK minister’s catchphrase just a few months ago. The Tories have swung the wrecking ball of Brexit towards Scotland, and the bill aims to mitigate some of the destruction that that wrecking ball will do. This is law as damage limitation.

Maintaining high environmental standards is critical for addressing the nature and climate emergencies that we face as well as underpinning efforts to deliver a green economic recovery from Covid-19, which are all Scottish Government priorities. I note that Scottish Environment LINK welcomed the bill’s intention to embed the four EU environmental principles directly into Scots law, which are the precautionary principle, the polluter-pays principle, the rectification-at-source principle and the preventative action principle. I also note that Scottish Environment LINK would like us to go further still—instead of requiring ministers to “have regard to” the four principles, as the bill states, LINK wishes it to say that the policy will be “based on” the four principles. That strikes me as a fine line and no doubt colleagues will give it due consideration as the bill moves through Parliament.

I must comment on paragraph 87 of the Finance and Constitution Committee’s report on the bill, which notes that the United Kingdom Internal Market Bill could

“significantly undermine the use of the keeping pace power”

in this continuity bill. Indeed, it is incompatible with devolution, as my colleague Bruce Crawford has said.

My committee, the Culture, Tourism, Europe and External Affairs Committee, has also taken evidence on the internal market bill and we came to exactly the same conclusion. The Scottish Parliament has now voted decisively to withhold consent for the internal market bill, but there is no assurance that the UK Government will listen. That is why there is only one way forward. The bill will ensure that we keep pace with European environmental standards, but it looks as if the Brexit wrecking ball means that anything that we do in this Parliament can simply be obliterated and the devolution principle can be turned to dust. That is why more and more Scots understand that it is only by assuming the full status of an independent country that we can prevent the UK Government from smashing Scotland’s powers to pieces. That independent Scotland is coming, and it will be an independent equal member of the European Union. The continuity bill will help to ensure that we are ready to rejoin Europe in as smooth a way as possible, and I therefore have no hesitation in supporting it today.

16:18  

Just as was the case when we debated the United Kingdom Internal Market Bill a few weeks ago, the Parliament’s main purpose with regard to the end of the transition period must surely be to ensure that all the post-Brexit structures that will be put in place will have the best interests of Scotland at heart, as well as her relationships with the rest of the UK and with the international community, most especially those that protect the internal market and Scotland’s ability to be a thriving nation in the future.

The continuity bill must be judged against those criteria, and I am sure that we can all agree, just as we did last August, that Scotland’s best interests also have to be the principal concern from the legislative perspective. To that end, it is surely important that Scotland’s Governments work together and do not seek to create division. That is obviously true for the environment, just as much as it is true for other aspects of policy. Roseanna Cunningham was correct when she said that it is essential that Scotland does not lose crucial environmental safeguards as the UK exits the EU—safeguards that have increasing relevance as the focus on the environment becomes ever more prominent.

That brings me to the controversial keeping pace principle. In the continuity bill, that principle is designed to ensure that Scotland will be aligned with EU regulations wherever possible, but that is something about which members on the Conservative benches are uncomfortable, because it would necessarily mean keeping pace with standards and laws over which we would have no say.

There is another aspect to the issue, which Bruce Crawford mentioned when he was opening on behalf of the Finance and Constitution Committee. Any keeping pace decision would become a matter of political choice for ministers, rather than be a legally binding commitment, as was the case when we were in the EU. Potentially, that will invest significant powers in ministers and it raises questions over scrutiny of some key policies, as Alex Rowley pointed out. Evidence given to both the ECCLR Committee and to the Finance and Constitution Committee reflects that.

On part 2 of the bill, which relates to the environment, there is general agreement across all parties about the need for Scotland to adopt the highest environmental standards and for a legal basis to protect environmental principles, but much less agreement about the structures that need to be put in place to achieve that. As the convener of the ECCLR Committee said, we have broadly agreed on some key principles that would have to be adhered to for the highest standards to be maintained—for example, the polluter-pays principle—but we are not agreed about exactly how to do that. For example, some witnesses at the ECCLR Committee, such as Scottish Environment LINK and the National Trust for Scotland, were seeking confirmation that some aspects of EU environmental law would be written into the bill, so that ministers would be specifically required to keep pace with environmental standards.

That was definitely not the view of NFU Scotland, which told the Finance and Constitution Committee that it has long been frustrated by agriculture’s inability to adapt to local circumstances as a result of some aspects of blanket EU law that do not always articulate with local circumstances. That, of course, is only part of the story, as questions remain about keeping pace decisions. I think that it was Bruce Crawford who said that keeping pace has implications for trade deals, common frameworks and so on, so there are question marks over that.

It is for those reasons that Conservative members want to see structures put in place that permit maximum flexibility when it comes to achieving the highest standards. It should not just be a case of aspiring to follow EU law, when there is no guarantee at all that EU standards would automatically be those that we wished to adopt.

We also want to see good governance when it comes to parliamentary scrutiny and the agencies that oversee environmental standards. A lot of issues have been raised at both committees about how we do that. I entirely accept the comments that members have made about environmental standards Scotland, which in principle is a very good idea, but whether it will have sufficient independence from Government and whether there will be separation of powers is a major issue in the bill.

I reiterate the point that I made at the start of my speech, which is that post-Brexit structures must put in place what is in the best interests of Scotland and the UK, in terms of economic growth and social cohesion, and that both Governments must work together to deliver what the public has a right to expect.

16:22  

I am grateful for the opportunity to participate in the debate and I would like to put on record my thanks to committee colleagues, clerks and those who gave evidence during stage 1.

It is a matter of regret that the legislation is required. My constituents in Renfrewshire South, along with a clear majority of people in Scotland, opposed leaving the European Union. They registered that view in the referendum of June 2016 and reinforced it at subsequent elections, most recently the UK general election of December 2019. With barely five months until the dissolution of this session of the Parliament, currently opinion polling suggests that support for the parties most strongly opposed to Brexit has only strengthened.

The circumstances in which we find ourselves are a consequence of a monumental failure of statecraft by the UK Government. Had it responded to the referendum with humility and a sense of responsibility, and pursued a settlement commensurate with the close and contested nature of the result across the UK, it could well have been the case that we would now be exactly 19 months to the day into a single market and customs union arrangement. Instead, we are exactly nine weeks away from, at best, a damaging low-deal Brexit, and, at worst, a disastrous no-deal Brexit.

Given that our best-case scenario is now a hard Brexit, it is of the utmost importance that we respond by equipping ourselves with the necessary tools to mitigate and minimise the impact of the UK Government’s hardline approach. The bill is an important part of that response. In particular, it enables the Scottish ministers to make provision in secondary legislation to allow Scots law to keep pace with complex EU law in devolved areas, where appropriate.

Outwith the European Union, Scotland will, of course, no longer automatically be subject to new EU regulations, and it will not be obliged to implement EU directives. However, that does not preclude the Scottish Parliament from seeking to mirror EU law where it determines that that is appropriate.

I stress that it will be for the Scottish Parliament ultimately to decide whether to incorporate any new aspect of EU law into Scots law via the bill. All regulations in part 1 of the bill are subject to the affirmative or the negative procedure. Power remains with the Scottish Parliament. The Scottish Government can propose, but it is for the Parliament to decide whether to approve.

For those who wish to see an example of Scotland being compelled to be a rule taker or of a hoarding of powers by the Executive, one need look no further than the UK Government’s United Kingdom Internal Market Bill. That bill, which was comprehensively rejected by the Scottish Parliament only a few weeks ago, poses a threat to the bill that we are considering. That was highlighted by the convener of the Finance and Constitution Committee, Bruce Crawford, who quoted from paragraph 87 of the Finance and Constitution Committee’s stage 1 report on the bill. Those words bear repeating. The report says:

“the mutual recognition and non-discrimination principles in the UK Internal Market Bill have the potential to significantly undermine the use of the keeping pace power in this Bill. Indeed, as the Committee states in our report on the Internal Market Bill LCM, we believe that the Internal Market Bill, and the market access principles in particular, undermine the whole basis of devolution.”

That state of affairs serves as yet another example of the inadequacy of the current constitutional arrangements. The best solution would be for Scotland to be a member of the European Union in its own right. However, as we face the imminent end of the transition period, we must do all that we can to ensure that we have the flexibility to retain the closest possible alignment with the EU where appropriate. On that basis, I support the general principles of the bill.

16:27  

The continuity bill is fundamental to the way forward for our devolved settlement as Brexit deadlines, sadly, approach all too fast. The bill as introduced and the scrutiny so far afforded by both committees are significant. I intend to focus on some of the concerns that were raised by the ECCLR Committee in our unanimous stage 1 report, which I do not believe have yet been resolved by the Scottish Government response.

We need the most robust possible protection for our environment and scrutiny of all actions and impacts on it by air, land and sea. That is not simply about the current Government and its commitments; it is about underpinning the direction and accountability of future Scottish Governments.

I was delighted when the Scottish Government agreed to enshrine the four EU guiding principles—the precautionary, prevention, rectification at source and polluter-pays principles—in law in the previous continuity bill as a result of amendments that Mark Ruskell and I lodged. That said, I still ask the Scottish Government to consider whether it could be necessary to amend the bill to refer more explicitly to human health in the precautionary principle, because of the importance of assessing how actions affect human health.

The four principles have been focused on, but I think that it is necessary to have a high-level environmental protection principle in the bill, as highlighted in recommendation 81 of the ECCLR Committee report. That report refers to

“reflecting the Treaty on the Functioning of the European Union”.

I also want to focus our thinking on the integration principle, which I believe would strengthen the bill. In recommendation 83, which our convener quoted, we stated:

“The Committee believes that, in light of the green recovery and current climate and ecological emergency, it is critical that environmental issues are integrated across all government policy and legislation.”

Despite what the Scottish Government said in response to our report about there being references in the bill, I am still of the view that there is a need for a stand-alone integration principle for robustness, and I hope that the Scottish Government will reconsider that.

I turn to the phrases “having regard to”, “having due regard to”, and “acting in accordance with” the principles. I am aware that time prevents me from going into the detail of the committee’s stakeholder engagement and its deliberations on the significant differences between those phrases. However, it is disappointing that the Scottish Government does not agree with our committee’s recommendations and has said in its response that

“‘have regard to’ ... would give effective and proportionate effect to the principles”.

It is crucial that we accord those principles a strength that is similar to or greater than what is contained at present in the terms of the EU treaty, so I ask the Scottish Government to reconsider.

Turning to the new body, ESS, I point out that our environmental laws are only as good as the institutions that uphold them and a watchdog can only be robust and effective if it is truly separate from and independent of Government. The European Commission’s role in implementing and enforcing environmental law has been crucial because of its independence from member states’ national governments. I still think that climate change should be included in the remit, despite the Scottish Government’s reassurances.

I will turn to the exclusion of individual decisions. Unless those limitations are removed, the ESS would not provide the continuity with existing EU arrangements and would represent a significant erosion of environmental governance in Scotland, as well as the rights and ability of Scots to take action on the environment. A more detailed definition of the environment would also be valuable.

I am clear that the further scrutiny of schedule 1 to the bill, and of the exemptions in paragraph 1(2) of the schedule, is essential. The committee raised those concerns in recommendation 180 of its report. The Scottish Government’s response was detailed and helpful, but if the exception in schedule 1 is required for accounting or other general reporting requirements, could the provision be more tightly drawn to allow for that exception, but no others? I still argue that the scope of the exception is too broad.

Finally, along with the committee and Scottish Labour, I support the principles of the bill and I look forward to working with everyone to take forward the best continuity bill possible.

16:32  

First, Scotland wants to trade freely with both the UK and the EU. I fully accept that the UK may be the bigger part of that trade and that of course we do not want to lose that 60 per cent, but neither do we want to lose the 20 per cent of our trade with the EU. What country in its right mind would put 20 per cent of its exports in jeopardy?

The main aim of the bill was to keep us aligned with both the UK and the EU. It seems wise for us to keep our environmental and other standards as closely aligned with the EU as possible, and that should make it easier for us to trade with the EU and easier when we re-enter the EU as a free member in our own right.

One of the first questions that the Finance and Constitution Committee faced was whether we needed the legislation at all. It was suggested that primary legislation could be used for every issue. However, we accepted that that would be impracticable, and that minor tweaking of existing policies would be best dealt with by secondary legislation.

Following on from that was the need for guidance on what criteria there would be for the Scottish Government to use the powers. I think that it is agreed that guidance is required by the Government, but the Government does not consider that an amendment to the bill is needed; it is committing to providing guidance and I guess that we will go into more detail on that at stage 2.

Another suggestion was that it should be mandatory for ministers to keep pace, at least on environmental matters. That was suggested by the National Trust for Scotland and by Scottish Environment LINK. Clearly, those organisations trust the EU more than they trust the UK, and I share that position. However, I take the Government’s point that the power needs to be discretionary as it would not be possible to keep pace with everything.

Again, there is the question of the volume of work that would be involved in keeping pace, both for the Scottish Government and for the Parliament. I am not sure that it would be practical to require the Government to report on every EU law that is not being kept pace with. It is probably not possible to examine every decision to keep pace or not, but the Parliament, through its committees, should be ready to challenge the Government as to why any particular directive is not being followed. I am quite drawn to the idea of an annual report from the Scottish Government that looks at EU legislative priorities for the coming year, as well as looking back at what has already been done. I think that the Government has agreed to that.

The DPLR Committee considers that for major new policies, in contrast to amendments to existing policies, primary legislation in Parliament will normally be the best way to go. I think that the Government accepts that, since it has talked about “areas of major innovation”, which is good. However, I note that the Government seems reluctant to have amendments to that effect on the face of the bill, apparently because they would be difficult to word. I suppose that that is a challenge for somebody to propose suitable amendments for the committee to consider at stage 2.

The relationship with the United Kingdom Internal Market Bill is also relevant. If, as we fear, that bill allows the UK Government to roll back devolution, or at least gives the power to private companies to challenge devolution, the scope for us to align with the EU might be more limited. Again, the key point is that we want Scotland to be outward looking and international, not narrowly focused on the British or English market, important though that is.

We also touched on common frameworks, which I hope will be voluntarily entered into by all the devolved Administrations. If that is the case, it is to be welcomed. However, bargaining between Governments in a private room late at night or over the phone, as we know has happened before, does not make scrutiny by this Parliament—or, for that matter, by the Westminster Parliament—very easy. The Scottish Government confirmed in its response that there should be “an appropriate role” for Parliament. It would be good if we could hear more detail on that in due course.

Overall, I believe that we can support the bill in principle, and I hope that members will do so at decision time.

I remind members who are taking part in the debate to press their request-to-speak buttons in good time to be called.

16:36  

Just yesterday, I was glad to contribute to a debate that focused on how to support the Scottish energy industry in helping to meet our climate change targets and improve energy efficiency. As a member of the Scottish Parliament, I take pride in doing what I can to represent my constituents and in taking part in debates that will bring real, positive change to their life and the next generation.

Today, however, I am wasting time, which I could have spent helping constituents, by debating a bill that has only one underlying aim: to reopen old divisions and break up the country in the middle of a pandemic. It is on record that, as a member of the Finance and Constitution Committee, I dissented from supporting the general principles of the bill. I did so for a number of reasons. Although the divisive aim of the bill is plain for all to see, and although Mike Russell and his colleagues choose to devote valuable time in the midst of pandemic to such legislation, it is, as usual, flawed.

First, the bill will lead to a lack of scrutiny, and that is simply not good enough. The policy memorandum states that, apart from some prescribed circumstances that are set out in section 4 of the bill, negative procedure will be used to align with EU law. That will lead to this Parliament’s role being diminished, as there is no scrutiny when EU law is simply copied and pasted into Scots law. Professor Aileen McHarg raised concerns, noting that the lack of scrutiny arrangements in the bill are even weaker than the scrutiny arrangements that the SNP proposed in the original UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill in 2018.

There is not only that. Our committee pointed out that the Scottish Government has admitted that it is not possible to keep pace with all future EU laws. The committee recommended that amendments should be made to the bill that set out guidance on how the keeping-pace power would be used. The Law Society of Scotland agreed with that recommendation. I hope that the SNP will be wise enough to change the habit of a lifetime and listen to such organisations.

I cannot support a bill that fails to recognise the importance of our biggest trading partner, the United Kingdom. Some 60 per cent of our trade is with the rest of the UK, and it is worth over £50 billion. NFU Scotland repeated that point, noting that

“the UK internal market is far more important to the interests of Scottish agriculture than the EU market or other export markets”.—[Official Report, Finance and Constitution Committee, 2 September 2020; c 9.]

The bill’s policy memorandum states that the

“Scottish Government will do everything it can to be an active and constructive participant on EU matters.”

What a pity, then, that the SNP can never bring itself to be active and constructive on UK matters, which have far greater impact on Scotland’s interests. The bill is simply another opportunity for the SNP to reheat its separatist agenda.

The coronavirus pandemic has shown that we have had to adapt. Now, more than ever, we need to work with the rest of the UK and take advantage of the benefits that being part of this union bring. [Interruption.] I will not give way.

The Parliament’s time would be better spent in discussing ways in which we can create jobs, become world leaders in education once more and drive forward the revolution that we need to see in tackling climate change. One day, the Parliament will perhaps stop being used as a tool for separatist grandstanding and will focus instead on shaping a better Scotland for future generations.

16:40  

That is a really hard act to follow.

In 2016, the Minister for the Cabinet Office, Michael Gove MP, said that

“there is a free trade zone stretching from Iceland to Turkey that all European nations have access to … after we vote to leave we will remain in this zone.”

Former Tory MEP and founding member of the vote leave campaign, Daniel Hannan, declared that

“absolutely nobody is talking about threatening our place in the single market.”

Indeed, the current Prime Minister promised in the aftermath of the Brexit vote that Britain would retain access to the single market. How times and Tory policy have changed. The risk of Scotland crashing out of the European single market with no trade deal whatsoever has never been greater than it is right now.

Who knows? The UK Tory Government might strike a limited, last-minute low deal with the European Union—only marginally less damaging than no deal at all. As a third country, many goods that enter Scotland from the European mainland would still be subject to border checks, which, by the UK Government’s own admission, would lead to delays as well as an increase in costs and bureaucracy for our businesses.

The people of Scotland did not vote for any type of Brexit and most certainly not for the cliff-edge scenario that we face in only two months in the middle of a pandemic. A direct consequence thereof is that a majority of Scots now want our nation to be an independent country. We could then rejoin the European Union and its single market of 450 million people.

In the meantime, it is our duty to prepare for that possibility by staying close to our European partners. The continuity bill will be a helpful instrument in allowing our businesses to keep pace with European directives and regulations where it makes sense to do so.

Mr Gibson talks about Scotland rejoining the European Union. How will his Government reduce Scotland’s fiscal deficit, which is currently around 25 per cent of gross domestic product, to the 3 per cent that the EU requires?

I have to say that the union dividend to which Scotland has been subjected is quite shocking. Mr Lockhart seems to believe that Scotland is a kind of parasitic nation, in which we live off the rest of the United Kingdom. We all know well that the UK Government is inept when it comes to the development and growth of Scotland’s economy and to ensuring that we are a country that is able to play a full role in Europe. Two million people migrating out of this country from 1950 to 2000—that is Mr Lockhart’s union dividend.

At a time of huge economic uncertainty, the bill will also provide businesses in Scotland and the EU with vital consistency and predictability. I therefore also welcome the Scottish Government’s willingness to prepare regular reports about the EU’s upcoming legislative priorities and updates on how those might affect Scotland’s devolved competencies.

Yet, the continuity bill is about more than just economics: it will also help us uphold the EU’s core values and principles, which we share. I am pleased that the bill seeks to maintain or enhance the EU’s high environmental protection standards, after the Tories drag us out of the single market, the customs union and the European Court of Justice’s jurisdiction.

As a country, we have world-leading ambitions when it comes to tackling global warming and will never accept a post-Brexit race to the bottom in environmental standards. I welcome the fact that the bill seeks to establish a robust and independent environmental governance body—environmental standards Scotland—to secure a full and effective implementation of environmental legislation.

Of course, the current devolution arrangements mean that the Scottish Government will have the discretionary powers to maintain alignment only in matters that are devolved to the Scottish Parliament. Sadly, even in those devolved policy areas, the UK Government’s unacceptable internal market bill poses a serious risk to our ability to maintain close alignment with EU standards in areas where we choose to do so.

I share the Finance and Constitution Committee’s concerns that the internal market bill’s market access principles might still undermine the use of the keeping pace power in the continuity bill. Its implementation could force us to accept the lower food or environmental standards that are set elsewhere, against the explicit wishes of the Scottish Parliament.

The continuity bill is clearly a helpful and necessary instrument in the reduction of the economic shock of a no-deal Brexit. It allows us to maintain close alignment with the European Union’s standards in devolved areas wherein we consider it appropriate and practicable to do so. Yet, the UK Tory Government’s disastrous internal market bill also makes it clear that, as long as we are part of the United Kingdom, the Scottish Parliament will be at constant risk of seeing Westminster overrule its decisions.

16:44  

I welcome the continuity bill and know that constituents welcome it, too. Taking action now to protect the future is crucial to protection of the interests of people, businesses and our environment.

I had a discussion with a constituent last week, who was raising concerns about what will happen to our regulations in the post-EU environment. I told her about the bill and its purpose and she was genuinely pleased to hear that. Constituents are keen to learn that the Scottish Parliament is determined to focus on and work for the interests of every person who lives here.

The UK has taken the decision to leave the EU, although Scotland did not. It is therefore vital that Parliament does what it can to keep our standards as high as possible by aligning with our EU neighbours, rather than with the race to the bottom that is proposed by the Prime Minister and the Tory UK Government.

I thought it was telling, earlier this afternoon, when MSPs from across the chamber were asking Richard Lochhead questions regarding the impact of Brexit on Scottish further and higher education, that issues concerning the Erasmus+ programme, research funding and international researchers were key.

Members from all parties were asking genuine questions, so I found Edward Mountain’s comments of a few moments ago to be quite strange. It was not Edward Mountain, but Alexander Burnett. I apologise. He was attempting to portray the bill as some type of grievance bill, but it certainly is not that. It is a bill to try to protect and help our population and some services in Scotland.

The continuity bill has become even more important as a consequence of things that have happened. The proposals in it are based on the existing strong institutional arrangements for climate change action, including the roles that are played by Parliament and the UK Committee on Climate Change. Our climate change legislation, which was agreed by Parliament in 2009 and 2019, provides a strong role for regular independent expert advice from the UK Committee on Climate Change. In addition to having the ambitious headline target of net zero emissions by 2045, we are the only country to have legally binding annual emissions targets, which means that reporting to Parliament and scrutiny of progress happen every year.

The submission from the Faculty of Advocates to the Environment, Climate Change and Land Reform Committee’s call for evidence on the bill, which closed on 31 July 2020, was very helpful. It said:

“After the end of the transition period, some areas previously subject to EU regulation will continue to require regulation at the domestic level, in the interests of good government. Within those areas, the subject-matter may pertain to an area within devolved competence. A power to adopt EU measures appears to us to offer a vehicle for such necessary regulation of those areas in future.”

I believe that Brexit should not mean a race to the bottom on environmental standards, which is why the Scottish Government is absolutely correct to keep pace with EU regulations. In addition, the UK is already facing the worst economic crisis in decades, yet the Tories are determined to crash out after the transition period this year, thereby imposing yet more uncertainty on Scottish businesses during a global health emergency. Add in the social and economic effects of Covid-19 on Scotland and we see that it is essential that some degree of certainty exists for our population.

Until such time as we become an independent country, it will be important that Parliament maintains an international outlook. The bill does that, for the limited areas that it considers.

We move to closing speeches.

16:48  

This has been an important debate. We need the continuity bill, but it is clear from the hard work of our committees that it needs to be improved, and that the Scottish Government should commit to supporting a more accountable approach in order that we keep to the democratic principle of important policies being tested by the Parliament, and not just by the Scottish ministers.

I agree with Liz Smith that the two Governments need to work together, but the UK Government also needs to respect our devolved Governments and international law. It is really striking how out of step the Tories have been in their speeches today. That makes the bill even more important in ensuring that we retain the high environmental standards that our country needs—a view that has been supported by members from across the chamber.

The debate gives us the opportunity to ensure that this devolved Parliament has the powers to maintain what are currently some of the highest environmental standards in the world, and to keep pace with improvements in standards in the EU. It also gives us the opportunity to decide which standards we wish to maintain in Scotland as Brexit pulls us out of the EU, which is creating huge economic uncertainty in the middle of the pandemic. The comments from Alexander Burnett were completely bizarre and somewhat ironic.

Part 2 of the bill sets out the framework for keeping pace with EU environmental standards. As Alex Rowley made clear, Scottish Labour welcomes the proposal for a new environmental governance body, but it needs to be independent of the Scottish Government. As several colleagues mentioned, climate change, individual cases and fiscal measures should all be included in the remit of that body, and exemptions in respect of investigations should be prevented—or should, at least, have to be made through primary legislation.

We should take on board the evidence from Scottish Environment LINK, which argued that the

“exemption of individual decisions overlooks the critical role that individual decisions have played in setting precedents in the past”.—[Official Report, Environment, Climate Change and Land Reform Committee, 18 August 2020; c 33.]

We welcome the fact that the bill incorporates the EU’s guiding environmental principles. However, as Labour argued in the previous debate on the continuity bill, and as Claudia Beamish said this afternoon, we can still do more to strengthen the bill, with better regulation of human health impacts and environmental protection.

Having looked at the evidence, we feel that because some future changes in EU law could involve substantial policy considerations, this Parliament and our stakeholders must have the opportunity to scrutinise and influence the law as it will apply in Scotland. We believe that, in principle, new powers should allow the Government to keep pace with EU laws, and that we should be able to deliver the strong environmental standards that we want in Scotland. However, it is crucial that we ensure transparency and accountability, so changes need to be made when the bill comes back for stage 2.

I hope that, in summing up, the Scottish ministers will commit to looking at those issues. Those points have been raised by two committees, and there is clear cross-party support for them. It is important that we have the necessary democratic accountability and principles so that people who make representations to Parliament can see that there is transparency and that their views are being considered.

Members from across the parties made points about the importance of tackling climate change, biodiversity and making sure that we have strong environmental policies. It is critical that, in our future economic and trade relations, we have strong standards in Scotland, because that is what we want. It is also important that our Parliament debates the issues and their detail. Although we work with ministers, it is Parliament that needs to do that work. The work should be advised by ministers but not without the control of Parliament. That is a really important principle.

I thank the committee members for the work that they have done so far. I hope that ministers will reflect on the power of their scrutiny and work with MSPs to deliver the change that we need in order to strengthen the bill, because it could not be more important at this time. As we look at Brexit coming down the track, the bill is important for the future of Scotland.

16:53  

I remind members that I am a member of the Law Society of Scotland, as I will be referring to its evidence to the Finance and Constitution Committee.

As we have heard throughout the debate, the bill seeks to give the Scottish ministers the power to keep pace with EU legislation. That will apply after we have left the EU, so we are talking about laws that would be made by a supranational body of which we are not a member and with which we have no direct relationship. We are talking about laws, in relation to which we will have had no input, being made by others.

As a number of witnesses have made clear in evidence to the Finance and Constitution Committee, that would put Scotland in the position of being a rule taker but not a rule maker. Widespread concerns about the approach were expressed in evidence to the committee. Dean Lockhart and Liz Smith both highlighted evidence from NFU Scotland, which is concerned that Scottish producers could be put “at a competitive disadvantage” if they are obliged to adhere to an EU regulatory framework for the environment, in so far as it relates to agricultural practice, when producers elsewhere in the UK are not.

In NFU Scotland’s view, that would cause “distortion” within the UK internal market, which is by far the biggest market for Scottish agricultural exports, and the primary source of the majority of agricultural imports.

That is not the only thing that is wrong with the bill. A host of witnesses who came before the Finance and Constitution Committee, including Professor Aileen McHarg, Professor Michael Keating and representatives of the Faculty of Advocates, the Law Society of Scotland and the NFUS, expressed concerns about the sweeping powers that are being given to Scottish ministers under the bill. Laws that are made in the EU, into which we have had no input, will be introduced in Scotland by Scottish ministers after very limited parliamentary scrutiny and with no scope for amendment.

There is one term for that: it is “power grab”—a term with which the constitution secretary is very familiar. It is a real irony that he is now guilty of the very act that he continually complains is done by the UK Government. I referred earlier to Henry VIII powers; that was a direct quote from Professor Tom Mullen, who is an adviser to the Finance and Constitution Committee and an eminent constitutional lawyer, who Mr Russell complains is patronising Parliament with his view. I suggest that Professor Mullen knows more about these matters than Mr Russell does.

I am sure that Mr Fraser was not intending to suggest that the list of witnesses whom he cited are all calling for the bill to be abandoned, because that certainly is not their position. The Tories argue that the bill will open up regulatory divergence from the rest of the UK. That cannot be the case if he accepts the UK’s promise not to diverge from, or water down, EU standards. Which is it? Does Mr Fraser agree with the UK Government, or does he think that there will be regulatory divergence?

That is an entirely false choice; we do not know what the EU is going to do in the future. We know that, in many areas, UK regulations are actually stricter than EU laws, but we do not know where the EU is going to go in the future. To take a blanket approach and adopt every single EU law, whether we have been consulted on them or not, would put Scottish farmers at a competitive disadvantage, which is precisely why the NFUS is concerned about the bill.

As the Finance and Constitution Committee heard time and again, if the Government wants to bring in major new policy changes, it has a mechanism through which to do that—the tried and tested mechanism of primary legislation. That allows for full consultation, discussion with stakeholders and proper impact assessments to be carried out. It also allows Parliament to amend the legislation, which will not apply to the secondary legislation that the bill will set up.

There was an opportunity to approach the whole issue differently—an opportunity for the Scottish Government to introduce legislation that would allow minor tweaks to existing EU laws to be made via secondary legislation. I do not think that anyone would have objected to a bill that did that.

What we have before us today is quite different, however. It gives sweeping powers to the Scottish ministers and seeks to align Scots law with the future law of the EU—a body of which we are not a member and with which we will not have a direct relationship. That will be damaging to Scottish business, as Dean Lockhart said, and to vital sectors including agriculture. For all those reasons, the bill should be rejected.

What we have before us today is bad law. There could have been consensus on a way forward that had the support of stakeholders through which to bring in a law that would allow ministers to make minor adjustments to existing legislation through use of regulations. Instead, we have a power grab by Mr Russell—the Henry VIII of this Parliament. It is a power grab that will damage the Scottish economy, that disrespects and takes power away from this Parliament, and which is fuelled by the SNP Government’s ideological obsession with the EU.

For all those reasons, Parliament should reject the bill.

16:58  

Let me start with the positives in the debate. I say to the other parties, with the exception of the Conservatives, that I was clear in my opening speech that I want to debate and discuss some of the key issues that the committees have identified. As has been my approach to every bill that I have ever brought to the chamber, I acknowledge that the bill before us can be improved and developed, and we will find a way to do that. I note the points that have been made by a variety of members across the chamber. The stage 1 reports by all the committees have some important issues within them on which we can respond, and we will do so.

We will not agree on everything. One thing that has been common to every bill that I have ever been involved with is that there is always a discussion about the levels of subordinate legislation—a matter that seems entirely arcane to most people outside the chamber, but I know that it is very important to members of the Parliament. I think that we will have that discussion, and I think that we will find a way through it.

In the few minutes available to me, I want to reflect on the extraordinary speeches from the Conservatives. Sarah Boyack used that word, and she was quite right to do so.

Let us start by remembering why we are here. This chamber passed a continuity bill by an overwhelming majority. It was a bill that had keeping pace powers and, with one very small exception that was not in this area, entirely within the competence of this Parliament. The Supreme Court found that the UK Conservative Government had changed the law to outlaw that bill. We are here, repeating what we have already done, because the UK Conservative Government—backed by a minority in this chamber—managed to overrule a piece of legislation that had been passed by an overwhelming majority.

In addition to that, I say to Alexander Burnett that we are here—using the valuable time that he would spend with his constituents—because of the UK’s Tory Government. Therefore, I hope that he will take the issue up with his colleagues in the UK Tory party and blame them for the fact that we have had to come back here.

Mr Burnett should blame them for something else, too. He talked about the waste of time and money that Brexit has been. Indeed, I agree with him—to the tune of £200 billion, which has been the cost of Brexit. I agree with him because I have spent a great deal of the last four years engaged in it, and I would much rather that I had not been, because the people of the country in which I live voted against Brexit. I have had to spend that time—as we all have—on something that goes against the wishes of our constituents. He should, please, not remind me of wasted time. Instead, he should go and remind his Conservative colleagues.

I have to say that I have a life full of enjoyable instances and excitements, and I will go straight from this debate to a meeting of the joint ministerial committee on EU negotiations. During that meeting, I will, no doubt, hear many of the arguments that have been put by the UK Tory party already, and it will allow me a further opportunity to wonder—as I have spent this afternoon doing—at the current state of the Tory party.

Mr Lockhart’s contribution reminded me of a line from “Alice Through the Looking-Glass”:

“If I had a world of my own, everything would be nonsense.”

That is because he is living entirely in a world of his own. He is living in a completely upside-down world.

Will the cabinet secretary take an intervention?

No, thank you. I am standing the right way up and will continue speaking on this matter.

Allow me to deconstruct the nonsense that I heard earlier. There are three particular items that I will deconstruct. The first one—I have to raise this point, because it is of great significance to this chamber—is that Mr Lockhart has now twice contended that the United Kingdom Internal Market Bill bases its powers on the frameworks and is there to support them. The Official Report will make that entirely clear. That has happened twice now; it happened in this debate and in a previous debate. I asked Mr Lockhart to correct the Official Report, because what he said was not true: the bill does not refer to the frameworks in that way. However, he repeated that this afternoon. He doubled down on an assertion about the internal market bill that is not true.

Will the member take an intervention?

No, I will finish this point and then I will give way.

That is a very serious matter, because that bill is of enormous importance. It is taking powers away from this Parliament and we must tell the truth about it. Please, Mr Lockhart, tell the truth about it.

This is a debate about the continuity bill, so will the cabinet secretary respond to comments from European Union officials that the legislation will not be effective, will be difficult to implement and will not apply to Scotland? That has come not from us or from the UK Government, but directly from the European Union.

First, there is the issue of the internal market bill. I have given Dean Lockhart the opportunity to correct something that he has said twice in this chamber, and it has not been corrected. Let the record show that.

Secondly, there is the issue of jobs and the retention of them. The argument from the Conservatives, all afternoon, has been that high standards cost jobs. Their argument is that, if we lower those standards and become a deregulator—because that is what the argument is in favour of—jobs will be created in Scotland. However, that is not true—it would be utterly counterproductive and would mean throwing away all the advantages that we have to create jobs, and they simply would not be created. That is also an area on which the chamber has been woefully misinformed this afternoon.

Then there is a third, very significant, issue: the issue of this Parliament being made a rule taker. How can any Conservative deny that who has in front of them the internal market bill, which is the most massive undermining of devolution since its beginning? Members should not take my word for it; they should take the word of Lord Hope, the former Deputy President of the UK Supreme Court, the word of the Anglican primates across these islands or the word of any of the members of the House of Lords who have spoken on it. Members can take their word for it, and yet what they say is apparently not true, because Mr Lockhart says that it is not true. A rule taker—that is what the Conservative UK Government seeks to make this Parliament. It wants to undermine and take away our powers to do things and to make rules.

Having heard the debate, I say that the Scottish Conservative Party is in an utterly woeful state—in fact, worse than woeful, because what we have heard is an attempt to defend the indefensible. We are debating this bill because a previous bill was sabotaged by the UK Tory Government, and with the consent of the Tory party in Scotland. Now black is white and white is black.

I am grateful to the members who have shown their commitment to taking the bill through. We will take it through, but it will be part of a process of saying to the people of Scotland that we have the right, in Scotland, to make our own choices about what we do. We will not be told not to do that; we will not be cheated out of that by people who care nothing for this chamber and everything for their colleagues south of the border. It is a shameful position and it will not stand.

That concludes our debate on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.