Official Report 249KB pdf
With us for item 2, we have Mr McCabe again. He has had quite an afternoon with the committee.
Good afternoon, once again. I am joined by Lynda Towers and Alastair Wilson. I thank you for giving me the opportunity to come to the committee to say a few words about the European Union Bill. As the committee will be aware, it was introduced to the House of Commons on 25 January. On 26 January, I wrote to the committee to say that the bill had, in essence, two main purposes. First, it makes provision for a referendum on the treaty establishing a constitution for Europe, which was signed by heads of state and Government on 29 October last year. Secondly, assuming that the treaty is ratified, it will give effect to it in UK law.
Clause 3 of the bill contains statements on subsidiarity. In the draft treaty establishing a constitution for Europe, specific provision is made for the Parliaments of member states to notify "parliaments with legislative powers" of issues that emerge from legislative proposals in the EU, about which a Parliament that has legislative powers might be concerned in the context of the principle of subsidiarity. The provision is expressly set out in the draft constitutional treaty, but there is no such provision in the bill. What is your view on that?
The provision is part of the constitutional treaty and it would not necessarily be relevant to transfer it to the bill. The treaty would place an obligation on the Government of the UK, as a member state, to consult regions with devolved legislative competence, and the UK Government made it clear in evidence to the House of Lords and in the paper that Peter Hain presented that it is content to do so. In answer to a parliamentary question, I said that I had had discussions with the Minister for Europe on the matter, at which he confirmed that the UK Government is keen for devolved Parliaments to have involvement and to develop the mechanisms that would ensure that such involvement worked.
I do not think that I am splitting hairs but, in part IV of the constitutional treaty, article 5 of the protocol on the application of the principles of subsidiarity and proportionality states:
I do not think that specific parts of the constitutional treaty are replicated in the bill. However, clause 3(2) places a duty on the UK Government to lay before the UK Parliament a statement about whether, in the responsible minister's opinion, a European legislative proposal
I hear what you say, but notwithstanding the committee's earlier discussion about hypothetical scenarios, I suggest that a legitimate hypothetical scenario in relation to legislation would be one in which the political colour of the Administration in London changes—just as the political colour of the Administration in Edinburgh might change. The bill must be robust for all scenarios. My reading of the constitutional treaty is that it does not place an obligation on the UK Parliament to consult the Scottish Parliament. The provision creates an opportunity but not an absolute, mandatory obligation to consult. To protect the interests of the Scottish Parliament, it would be fair to amend the bill to that effect. I refer in particular to clause 3(2), which provides for a six-week period in which
The European Union Bill refers specifically to the provision in the treaty that gives explicit responsibility to national Parliaments for ensuring compliance with the subsidiarity principle. As you have suggested, that is the obligation on the national Parliament. As the minister has already made clear, the UK Government has helpfully assured us that it believes that Westminster should closely involve the devolved Scottish Parliament in the workings of the subsidiarity mechanism. Obviously, it is for the Scottish Parliament to agree with Westminster the specific mechanisms to ensure that that happens within the tight six-week period. I know that officials have already been in touch. Executive officials have also had helpful discussions with officials of the Parliament, which is a welcome development.
With the greatest respect, I am talking about a parliamentary channel. I do not want to confuse that issue with Executive involvement in the process. I quite understand and accept the assurances that have been given at ministerial level, but I am concerned about the parliamentary aspects. If a Sewel motion is laid before Parliament, we have an opportunity to say to the UK Government whether we are happy for legislation to be taken forward on the proposed basis. It would be remiss of the Parliament if it did not take every step to entrench in the legislation the parliamentary channel that has been offered. I am making a very clear distinction between the Executive and the Parliament, and that distinction is further reinforced by the fact that this piece of legislation must be dispassionate if it is to last for all time and outlive individual ministers' commitments. As the minister is aware, such commitments are good only up until the moment when another minister rescinds them. We require a firm view from the Executive on that matter if we are to get this legislation right. Will the minister comment further on that point?
You make a fair point. I fully understand that, although we have received assurances from the existing Westminster Government, Governments can change. I will investigate the matter further, seek to clarify the position and find a form of words that gives the reassurance that the committee wants.
For the sake of absolute clarity, I believe that it would help if there were a change to the bill itself. After all, the content of some of the issues to which clause 3 would relate—and therefore the justification for legislating on them—is equally as significant as the commitments to subsidiarity that I am concerned about.
I cannot make commitments on behalf of the UK Government on matters that are clearly reserved. However, I understand your point and will investigate it further.
In your letter to the committee dated 26 January, you say, "We believe that"—
Mr Canavan, let me just stop you for a moment. Do any other members want to pursue the issue that has just been discussed? I want to close that one off before we move on.
I very much welcome the minister's comments. Indeed, I made the same points about Mr MacShane's comments to the minister in the chamber. There is no obligation whatever on national Governments to pass down such matters. Both articles 2 and 6 of the protocol on subsidiarity—protocol 2—to the constitutional treaty make it clear that there is an element of responsibility without any commitment. The minister's comment today acknowledges that and I welcome it.
I offer an alternative. I want to acknowledge the unanimity among committee members on this issue. A legitimate concern exists and I welcome the minister's acknowledgement of that. Getting the drafting of the bill changed would be ideal, but it might be difficult. Another way of attacking the issue might be through the concordat between the Executive's Finance and Central Services Department and its counterpart at Westminster.
As I have said, I am not able to express an opinion on the various options that might be available, but I give you a commitment that I will explore them.
In your letter to the committee of 26 January, you state:
Unfortunately, I do not think that I will. I do not agree with your view that we are denying the committee the opportunity to scrutinise. We can have a separate debate on the pros and cons of the whole Sewel convention, but on occasion, it provides the Parliament with the opportunity to concentrate on the priorities that it has set for itself. It gives us the opportunity to look at the legislation that is passing through the Westminster Parliament that will have an effect on the Scottish Parliament, and it reassures us that, although the Westminster Parliament could legislate on our behalf, it is allowing us time and space to concentrate on other priorities that we have set for ourselves in our devolved Parliament.
If the Parliament were to agree to the Sewel motion, it would not have the opportunity to discuss the matters that are contained in the bill that is being debated at Westminster.
I thought that that is what we are doing at the moment.
We are simply a committee of the Parliament. I am arguing that the whole Parliament should have the opportunity to discuss these matters.
With due respect to Mr McCabe's position, I understand that there will be a discussion in the Parliamentary Bureau—as a former Minister for Parliamentary Business, Mr McCabe can confirm this—about how the issue is handled in the chamber. This is the committee's opportunity to make whatever judgments we want to make about how much evidence we want to take on the European Union Bill and its associated Sewel motion. It is up to the Parliamentary Bureau to decide how the issue is handled in the chamber. Does that clarify things?
Yes, but will the minister confirm that the bill, as drafted, would give Scottish ministers the power to use subordinate legislation—in other words, to make regulations—to implement certain aspects of the treaty without giving the Scottish Parliament a full opportunity to scrutinise that secondary legislation?
That would depend on the nature of the Scottish statutory instrument that was produced. If it was subject to the affirmative procedure, a committee of the Parliament would scrutinise it before it was passed. The same would happen if it was subject to the negative procedure. A negative instrument would be laid, which would give a committee the chance to look at it.
In the context of the European Union Bill, is there any proposal to change the method by which we undertake our scrutiny of subordinate legislation in the Parliament?
No, there is not.
If you could clarify that point, that might help Mr Canavan.
The bill rationalises the process in a way that saves us making changes to both European and domestic law, but SSIs, which are scrutinised by the Parliament, are still required.
What discretion would Scottish ministers have with regard to the type of SSI used and to the choice of whether the affirmative procedure or the negative procedure is used?
It would depend on the circumstances of the legislation under which instruments were being made.
In other words, you are asking us to buy a pig in a poke. We do not even know what opportunity we will have at a future date to scrutinise the orders concerned. We do not know whether they will be subject to the affirmative or negative procedure, for example.
That is a particularly unkind description, Mr Canavan, if you do not mind me saying so. We are not asking you to do that at all. The same procedures that apply to every other SSI will apply to the SSIs relative to the bill.
Have you exhausted that line of questioning, Mr Canavan?
I hope he has.
Well, there is room for plenty more.
I was intending to pursue the point with Mr McCabe along similar lines. What is the Scottish Executive's view of the way in which the bill has been presented, given the immensity of the implications of accepting the European constitution? Did Scottish ministers feel—as did many of their colleagues in England, including Austin Mitchell—that it might have been better to deal with part 3, on a referendum, alone at this stage and to work towards implementation of the constitution after a positive result in the referendum has been achieved, if it ever is?
I do not think that it would be appropriate for members of the Westminster Parliament to make undue comment on the way in which we handle legislation in the Scottish Parliament. Equally, it is not necessarily appropriate for me to comment on the way in which people at the Westminster Parliament decide to progress particular pieces of legislation.
But this is a United Kingdom bill that very much affects Scotland. If we pass powers to Westminster at this point and if Westminster passes the bill, the constitutional treaty in its entirety virtually becomes the law of Scotland, without any debate in the Scottish Parliament. Is that right? Should not there be a debate on the treaty's contents before we approve a bill that sets out the way forward for its implementation?
As a former member of the Westminster Parliament, you will be more aware than me, even, of which matters are devolved and which matters are reserved. You are well aware that this is a reserved matter, and that it is for the United Kingdom Government to consider how it proceeds using the necessary processes in the House of Commons.
If that is the case, why do we need a Sewel motion?
Because we in this country are in the very fortunate position of having a devolved Government. In certain instances, before the United Kingdom Government legislates on issues that cover people here in Scotland, it seeks the permission of the Scottish Parliament. That is one of the benefits of devolution.
You have said that this is a UK matter. If you look at article 117 of the constitutional treaty, you will recognise a number of areas that are purely Scottish matters, such as culture, tourism, many aspects of education, youth and sport. Those are Scottish matters—they have been devolved—yet we seem to be giving up the ghost on them.
There is going to be a referendum.
I do not think that we are giving up the ghost, Mr Gallie. That is another unfortunate description. Perhaps it is just that kind of afternoon.
Okay—I will drop that, convener.
Can we have that in writing?
Mr Gallie has perhaps reinforced a point that we discussed earlier: where there are devolved issues such as culture and sport, we must have the right mechanism in place to ensure that the parliamentary interest is protected. For me, that is the central point that we need to address.
I will ask Lynda Towers to respond to the question.
Common foreign and security policy is primarily reserved. It tends to deal with issues such as terrorism that come under Westminster's authority. It is possible that there will be instances when the Scottish ministers, in particular the Lord Advocate, will wish to exercise authority in a particular area. I am thinking of instances that relate to security that come to Scottish ministers through the European route. In those instances, the Lord Advocate could impose sanctions such as the freezing of bank accounts.
Okay. If the approach in the bill is similar to the concurrent approach that is taken to the implementation of EU legislation, is it also similar in respect of the balance of powers that sees Scottish ministers acting in devolved areas of responsibility and the secretary of state acting in reserved areas?
Indeed.
So there will be no change to the dynamic of that relationship as a result of the bill.
No.
You mentioned that actions might require to be taken very quickly. In what circumstances would Scottish ministers be notified that the secretary of state would exercise powers? By what mechanism would the Scottish Parliament be advised of the actions that had been taken?
An order of some kind would require to be made to implement the powers in Scotland. The Scottish Parliament would be subject to notification of the order. I imagine that it is likely that such a power would be exercised through Westminster departments. It is more likely that the information would come through the departments that have responsibility for foreign and security matters. I assume that the relevant department would advise Scottish ministers that a particular order might be required. Scottish ministers would draft the order and it would come before the Scottish Parliament in accordance with the Parliament's usual procedures.
What is the forum for resolving such issues? Would it be a joint ministerial committee that considers home affairs or judicial issues?
This is not that kind of power. The minister down south with responsibility for terrorism might say that a particular power requires to be exercised in Scotland. He would advise the Scottish ministers, who could exercise their powers under the provisions in clause 5. The Executive does not envisage that any complicated arrangement or a particular committee would be needed to deal with the powers. The CFSP could relate to a number of different circumstances. The provisions in the bill will allow Scottish ministers to exercise powers where it would be appropriate to do so within their devolved competence.
So, as things stand, a United Kingdom minister who receives information that requires him or her to make an order that relates to powers that are held by Scottish ministers has the ability today to take that action. What the bill does is to extend the powers into common foreign and security policy.
Yes.
Right.
I want to follow up that point. You specifically mentioned terrorism, and there will obviously be occasions when both Scottish ministers and UK ministers will have to act quickly and discreetly, without being subject to the type of parliamentary scrutiny that we would expect in other areas of devolved or reserved work.
The provision describes how it is envisaged that the process will apply to those particular orders. It would be open to the Scottish Parliament to decide how particular orders are processed.
Would it? I am not sure about that. Schedule 2 refers to the possibility of
That is not the context in which I made my comment. The Scottish Parliament would decide how to pass its legislation—as it is doing at present through its review of the regulatory framework. Things will be done in accordance with whatever procedures are set down for SSIs in the Scottish Parliament.
Yes, but the European Union Bill also sets out the possibility of orders in council being made simply on the recommendation of the First Minister. I refer you to schedule 2 on page 18 of the bill.
But that applies equally to any statutory instrument made under the relevant provision by Scottish ministers. It would be for Scottish ministers to decide on the appropriate way to proceed.
Yes—the ministers, but not the Scottish Parliament.
Not if the ministers decided that they were not proceeding by statutory instrument. However, they would have to account to Parliament for that.
I feel very strongly that such things should be debated in the first instance by the Scottish Parliament.
I want to be clear about this. In answer to earlier questions, you said that the subordinate legislation process that is envisaged under this bill would entail no change to our existing arrangements for the treatment of subordinate legislation. Therefore, I assumed that ministers could not act outwith the existing arrangements. It now appears that they can.
There is existing power for Scottish ministers to ask, in specific circumstances, for an order in council to be made, so things would not be any different. At present, there are circumstances in which the First Minister could ask for an order in council to be made.
In what circumstances would the First Minister ask for that?
We would report retrospectively to Parliament. The occasions on which that would happen would obviously be exceptional, and we could all speculate about circumstances that could crop up. However, if we looked back over the past five years, we would see that it has happened very few times, if at all. That perhaps gives the committee a guide.
Which of parts 1, 2, 3 and 4 of the bill actually require the clearance of the Scottish Parliament? In other words, which parts require the backing of a Sewel motion?
I referred to clauses 4 and 5, which grant ministers specific powers. Parts 1 to 3 are a bit too detailed for me to pinpoint an aspect at the moment, but we could write to you about that.
I am interested in part 3 in particular, because nobody around the table would want the referendum to be halted, although we might well feel that other parts of the bill are not to Scotland's advantage—that is my belief. I would like guidance on part 3 and assurance that our rejecting the Sewel motion would not prevent the bill from proceeding to provide for the referendum question.
I understand that part 3 is reserved.
In its entirety?
The possible exception is a small provision on a legal challenge to the referendum result. A petition for judicial review could be received in a Scottish court. I give the caveat that if any other such small provisions are relevant, we will tell you. You will understand that we are not in a position to go through provisions line by line at the moment.
I will draw the discussion to a conclusion. We have discussed a couple of significant issues. One is the method by which Parliament's interest in relation to subsidiarity is assured in the bill and the other is the point that Mr Gallie made about the implications of whether parts of the bill relate to devolved or reserved matters. To allow the committee to conclude its investigations into the bill properly, it would help to have the Government's response to those points before the Sewel motion is debated in the Parliament. I ask the Executive to reflect on that.
I understand that desire and will do my best to comply with it. We will respond in early course.
I thank Mr McCabe and his colleagues for their participation.