Meeting of the Parliament

Meeting date: Thursday, February 23, 2023

Official Report 1080KB pdf

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Retained EU Law (Revocation and Reform) Bill

The next item of business is a debate on motion S6M-07997, in the name of Angus Robertson, on the Retained EU Law (Revocation and Reform) Bill, which is a piece of United Kingdom legislation.

14:32  

Today’s debate is timely, because today is also the day on which the Retained EU Law (Revocation and Reform) Bill begins its committee stage in the House of Lords. I thank the Constitution, Europe, External Affairs and Culture Committee for its report on the bill. It is clear that the committee shares the significant concerns that the Scottish Government has raised since the bill’s introduction. There is simply not enough time for me to list those concerns in full, but I will highlight three.

First, the bill includes a cliff-edge sunset provision. The inclusion of such a provision is a deeply irresponsible way to manage the statute book.

Secondly, the bill risks deregulation and divergence from the high standards that the people of Scotland experienced and benefited from when the United Kingdom was a European Union member state. That will introduce unwelcome uncertainty for business and for trade.

Thirdly, the bill includes powers for UK ministers to act in areas of devolved responsibility without the consent of the Scottish ministers and without the consent of the Scottish Parliament. I make it clear that conferring powers on UK ministers in devolved areas without requiring the consent of the Scottish ministers or the Scottish Parliament for the exercise of those powers strikes at the heart of the Scotland Act 1998. Democratic oversight and good governance are clearly at risk if UK ministers sideline in that way the Scottish ministers, who are accountable to this Parliament.

The combined assessment of the committee’s 18 expert witnesses was overwhelmingly negative and reflects the astonishing level of opposition to the bill across sectoral and political boundaries. Despite that, the UK Government refuses to withdraw the bill or—as it should do, at the very least—amend it. I again call on the UK Government, as I did in November, when the Parliament previously debated the bill, to see sense and to withdraw the bill.

I will restate the position of the Scottish Government: the only way to eradicate the dangers that are posed by the bill is for it to be scrapped. That remains our position. Nothing during the bill’s parliamentary passage so far has alleviated my initial grave concerns. Indeed, those concerns have been compounded following my conversations with Welsh Government ministers and with peers in the House of Lords.

I am alarmed that the hard Brexit negotiated by the UK Government could become harder, with signals from Europe that the trade and co-operation agreement could itself be at risk because of the divergent and deregulatory UK agenda that informs the bill.

It is highly regrettable that our proposed amendments were not considered by two previous secretaries of state. A third is now in post and two weeks ago, I wrote to her to urge her to respect devolution and the role of the Scottish Parliament. I am yet to receive a reply. The amendments to the bill that we have proposed to the Secretary of State for Business and Trade would ensure that this Parliament would be given its proper scrutinising role. I will continue to urge the secretary of state to consider those amendments.

Much will depend on the further passage of the bill. I have instructed my officials to work closely with the parliamentary clerks here to find an agreeable way forward and I commit to keeping the Parliament updated on our proposals. We must be under no illusion that either devolution or the Sewel convention will be respected in connection with this legislation. Since 2018, the Parliament has withheld consent for a UK Government bill on seven occasions—six times, the UK Government has ignored that. Should this Parliament express a similar view today, I can offer no comfort that the UK Government will listen.

I conclude by drawing members’ attention to just some of the continued opposition to the bill. The House of Lords Delegated Powers and Regulatory Reform Committee criticised it as being “hyper-skeletal” in allowing ministers to act with little parliamentary scrutiny. The UK Government’s own watchdog, the Regulatory Policy Committee, called the impact assessment for the bill “not fit for purpose,” and Wildlife and Countryside Link described the bill as

“an economic and environmental wrecking ball”

that could cost the UK £82 billion over 30 years.

A clear swathe of informed observers understand the danger of the bill. The Welsh Government understands it; the Scottish Government understands it; this Parliament’s constitution committee understands it. I urge the Parliament as a whole to join that list today and to vote in favour of the motion to withhold consent.

I move,

That the Parliament agrees with the recommendation in the Scottish Government’s Legislative Consent Memorandum to withhold consent for the UK Government’s Retained EU Law (Revocation and Reform) Bill.

I call Clare Adamson to speak on behalf of the Constitution, Europe, External Affairs and Culture Committee.

14:37  

I thank members of the Constitution, Europe, External Affairs and Culture Committee, the committee clerks and all those who submitted evidence and attended meetings during our deliberations on this important bill.

The bill is a profound concern. The committee believes, as a point of constitutional principle, in the simple, democratic imperative that the Scottish Parliament should have the opportunity to effectively scrutinise the exercise of all legislative powers within its devolved competence. It is current form, the bill neither protects nor promotes that principle, nor does it encourage confidence about the potential impacts on policy areas as crucial and wide-ranging as food standards, animal health, safeguarding the environment, consumer protection, business practices and employment.

There was a consistency in stakeholder evidence that is rarely found during parliamentary scrutiny. Even those witnesses who have historically favoured diversion from EU policy, such as the Scottish Fishermen’s Federation, said:

“It is more important to get it right than to get it fast.”—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 24 November 2022; c 33.]

The bill, in its current form, contains a sunset clause: if a law is not specifically retained by either the UK or the Scottish Government, it will automatically fall by the end of this year. Kirsty Hood of the Faculty of Advocates said of that deadline:

“That would mean that—to put it plainly—we would end up with gaps in the law.”—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 10 November 2022; c 9.]

The Society of Chief Officers of Trading Standards in Scotland, among many others, shared those concerns. Scottish Environment LINK noted a much harsher cliff edge in devolved areas than in reserved ones.

The Delegated Powers and Legislative Reform Committee also expressed serious concerns about the bill. Its House of Lords equivalent, the Delegated Powers and Regulatory Reform Committee, stated that:

“There is no certainty about the sunset provision itself because UK ministers can extend it under delegated powers in clause 2 ... There is no certainty about which policy areas will be affected and there is no certainty about what will replace revoked rule.”

Seafood Scotland said that the

“legal ‘cliff edge’ ... will force businesses and representatives to divert considerable resource to understanding and responding to proposed changes.”

NFU Scotland suggested that the sunsetting of retained EU food law could well return us to a time when little in the way of standards was applied.

Let me be clear: witnesses were not opposed to the principle of reviewing retained EU law, but considered that any review should not be driven by what Seafood Scotland called “arbitrary cut-off dates”.

The Soil Association Scotland said that it had

“no objection to a sensible process that examines, updates or improves existing environmental laws, but we do not think this Bill delivers that.”

Given inflation, energy prices, post-pandemic recovery and the post-Brexit economic impact, we can but sympathise with the view of the Institute of Directors that the bill is

“the last thing that business needs in such a fragile economic environment.”

The sunset clause as it stands cannot deliver appropriate levels of consultation, scrutiny or debate, and the scale of the task ahead cannot be overestimated in respect of the additional administrative burden and the challenge of conducting scrutiny within the time constraints. That applies to stakeholders, Governments and the Parliament’s committees.

I have already thanked my committee colleagues. It is to their credit that we have been able to work in such a productive and collegiate way in this session. However, I note that we were unable to agree unanimous support for the report with Conservative colleagues on this occasion.

We cannot do justice to the report this afternoon, and we have asked the Conveners Group for a committee-led debate to allow further discussion across committee interests, as the bill will impact on many subject committees of the Parliament. We have also highlighted the potential impact on the workload of the parliamentary committees. We have written to the Standards, Procedures and Public Appointments Committee on the requirement for a legislative consent motion in this specific circumstance, when consent is not to be laid by the Government through a legislative consent motion. Our standing orders are currently silent on that, so we have requested a review of procedures, given the number of times that that has happened, as the cabinet secretary laid out. That is indeed of concern to the committee.

We recommend the report to our fellow committee members and members across the chamber.

14:42  

I refer to my entry in the register of members’ interests. I am a member of the Faculty of Advocates.

This is, of course, the second time that I have risen to speak in a Scottish Government debate on the Retained EU Law (Revocation and Reform) Bill—this time for an LCM debate. As the cabinet secretary has already mentioned, the Scottish Government held a debate on the bill in November 2022. As I argued at the time, the timing of that debate was unprecedented, given that the two parliamentary committees that were looking at the bill had not yet reported. As the convener of the Constitution, Europe, External Affairs and Culture Committee has just mentioned, our committee has agreed to write to the Standards, Procedures and Public Appointments Committee to recommend that it consider undertaking a review of the relevant provisions of the standing orders.

To move on from that issue, it is arguable that the debate that we are having today is likewise premature because, as the cabinet secretary noted, the bill is not in its final form. It was robustly debated in the House of Lords at the beginning of the month, it is entering the committee stage, and there are reports that it will possibly be amended. In my view, it would have been preferable to have waited until we could at least see a finalised version of the bill before debating it again and considering the issue of consent. However, we are where we are.

The Constitution, Europe, External Affairs and Culture Committee and the Delegated Powers and Law Reform Committee have published their reports on the bill.

Although I am not speaking for the committee on this occasion, I would like to take the opportunity to thank the constitution committee clerks for all their work during the scrutiny of the LCM and the drafting of the final report. Although my Scottish Conservative colleague Maurice Golden and I did not, ultimately, support the conclusions of that report, I acknowledge the hard work of MSP colleagues and the clerking team of our committee.

Let me briefly lay out our position on the bill. I acknowledge that there are several concerns about the REUL bill, especially around timeframes. I retain some personal misgivings about various aspects of the bill, but, in principle, I do not believe that the Scottish Parliament should refuse to consent to the bill. The bill, in our view, rightly seeks to end the inertia that currently exists when it comes to retained EU law on the statute book.

Although there are concerns, my belief is that we cannot maintain a kind of statutory stasis forever and ever. We temporarily kept EU laws in place to smooth the process of the UK’s exit from the EU, but that was always envisaged as a short-term bridging measure.

Will the member give way?

Very briefly.

I am interested in the definition of “EU law”, because all these laws were looked at by the Parliaments of the United Kingdom during the time of our membership and so are, in fact, included on our statute. It could therefore be argued that they are already UK and Scottish law and so on.

I am not sure that they were all on the statute book. That is a question of legal interpretation. I certainly acknowledge that a lot of EU law was either directly effective or had been enshrined in UK law, but we are talking retained EU law, and it is my belief that those laws cannot now sit inert ad infinitum.

We have to move forward, taking the laws that we want to keep, amending and updating them where necessary, and jettisoning those that are not relevant, or that are contrary, to the needs of either the UK or Scotland.

Will the member give way?

I will not. I have very little time.

Otherwise, there will be two separate statute books, with completely different interpretive principles and case law.

In addition, the so-called dangers of the bill have, in my view, been overplayed. The UK Government has repeated its commitment across a number of sectors, including those of our international obligations, employment rights and environmental protections.

In contrast, the opportunities for the Scottish Government have been downplayed. It is Scottish Government policy to keep pace with EU law and the bill facilitates that. It allows the Scottish Government to maintain alignment with EU law. The Scottish Government can now choose to adopt any EU laws that it sees fit as either primary or secondary legislation. To that end, I understand that UK Government officials have offered to help the Scottish Government with the task of identifying which retained EU law is devolved or reserved. I hope that the cabinet secretary will take up that offer, because Scotland is of course best served when our two Governments work together.

We retain some misgivings with regard to the timeframes in the bill, but we also believe that the Scottish Parliament should give consent to the bill. It offers Scotland an opportunity to remove outdated EU law that is no longer right for us and replace it with Scotland-specific legislation. For those reasons, we will vote against the motion.

14:48  

Scottish Labour has been clear that we do not support the Retained EU Law (Revocation and Reform) Bill. I start by thanking all those who gave evidence to the Constitution, Europe, External Affairs and Culture Committee on the bill’s implications, and our clerks for their hard work in helping us pull together our report.

My view is that the bill joins a long list of mistakes made by the UK Conservative Government over the Brexit process, demonstrating an obsession with deregulation and destroying our relationships with our nearest neighbours without thinking through the damaging consequences.

The bill delivers a legal cliff edge. Its impact has not been thought through and it would mean that the UK Government would have to consider literally thousands of pieces of legislation and identify the ones that it wants to keep. That would be a massive diversion from the current issues facing our economy and our people.

I note Donald Cameron’s suggestion that our two Governments work together, which I of course agree with, but surely there is a better approach. This bill will create massive uncertainty, and there is a real danger that important legislation will be forgotten about and will disappear overnight.

The Constitution, Europe, External Affairs and Culture Committee report, which was published last week, highlights important concerns about disease control and implications for people’s health. It was suggested in evidence that we will see the impact of the bill when food standards drop and animal welfare is undermined. As the RSPB has highlighted, the bill puts at risk air and water quality, species and habitats protections and protections around pesticide and chemical levels in food and water. Surely, therefore, it would have been far better to consider which EU laws we would rather not have; consult with stakeholders, so that they were able to get involved; carry out risk assessments; ask lawyers about the legal implications; speak to producers and businesses; and discuss with campaigners and trade unions.

We should not only have discussed the laws that need to be retained; we should have thought about the global climate crisis that we are in and how we can accelerate our pace of change. I have to say that this is the worst possible time to be deleting legislation that protects the environment.

It is absolutely striking that stakeholders are deeply worried about the bill. Roger Barker, director of policy and governance at the Institute of Directors, said:

“Getting to grips with any resulting regulatory changes will impose a major new burden on business which it could well do without.”

The legislation will undermine workers’ rights, and the then Trades Union Congress general secretary, Frances O’Grady, described it as “a recipe for chaos”. Further, the Confederation of British Industry said that the Government should focus instead on improving its trading relationships with the EU. I totally agree. We should be rebuilding our relations with our nearest neighbours, not trashing them further.

Let us be clear: this bill is bad for business, the economy, trade, workers’ rights, health and safety and the environment. Critically, it also undermines devolution. It is another example of the Tory Government riding roughshod over devolution. That is not acceptable.

I hope that, as the bill progresses to the UK Parliament, there will be a rethink. By refusing to give consent, I hope that our Parliament will play a role in bringing about that rethink.

We cannot forget that the transfer of power from the legislature to the executive in this bill also extends to our Parliament. It is absolutely vital that we have parliamentary transparency and accountability. I would therefore be keen for the cabinet secretary to publish his Government’s plan for alignment and for ensuring that our stakeholders and our Parliament’s committees are consulted. Clare Adamson was absolutely right to say that we needed more comprehensive debate on this issue. Our stakeholders and our communities need certainty, accountability and transparency, not the legal cliff edge and bad government that this bill will deliver.

14:52  

In many ways, this day was inevitable. As soon as the Brexit referendum was lost and the Conservative Government sought a hard Brexit that cut almost all formal arrangements with the EU, there was always going to be a need to manage the harsh transition. The sheer volume of European law that is contained in British law is enormous, and to unpick it is a horrendous task.

In passing, I say that that is a lesson for those who argue that independence would be a breeze and could be done within 16 months. More than six years into the Brexit process, we are still disentangling our relationship with the European Union.

For the record, my understanding is that no one in the independence movement would suggest that all laws since 1707 be unpicked or repealed on independence day. However, does the member agree that one of the distressing things about this bill is that it proposes to do exactly that with something in the region of 4,000 pieces of extant law?

To be honest, I think that both movements are as bad as each other on this. They both promised far too harsh a transition far too early—the nationalists promised that an independent state would be established within 16 months, and they cannot roll back on that now. Both movements need to learn from each other so that we do not repeat the mistakes of the past. We were in a formal arrangement with Europe for only a few decades, and we have been in a formal arrangement with the United Kingdom for several centuries, so the task would be enormous.

Although the Brexit issues were wholly predictable, there is no doubt that they could have been handled differently in order to smooth the transition to the new arrangement. A better relationship with Europe and a more pragmatic approach, with an acceptance of necessary co-operation, would have made the process easier, and it would have allowed for a greater involvement of the devolved Administrations.

With the EU retained law bill, we face a steep cliff edge—I agree with the minister on that point. It dangerously and blindly dispenses with thousands of laws without a proper process with the Scottish Parliament.

Instead, we could have had a more deliberative process, engaging all interested parties—as Sarah Boyack has rightly highlighted—and reducing the significant and costly errors that could be forthcoming. As we have witnessed today, the unwise process has also enabled the Scottish Government to indulge sometimes in wild hyperbole, speculating about dire consequences without being able to specifically identify actual harms. It is important that we understand those actual harms.

With that in mind, I am still intrigued as to how and when the Scottish Government has used the keeping pace powers that were granted to it by the Parliament. We worked hard with the Government to agree those measures, so I am slightly surprised that we still do not know how many times it has deployed them. In fact, when I raised this issue in the previous debate about Brexit, the Minister for Just Transition, Employment and Fair Work, Richard Lochhead, did not have a clue what I was talking about. He seemed to think that it was something to do with securing employment for people who had been made redundant. We need a Government that is on top of its game on the keeping pace powers, but it seems to have neglected that power for itself.

We were the strongest voice in the UK against Brexit, and we were right to oppose it. It should not, however, be used as some means to an independence end—it is far too important for that. We need partnership with our neighbours rather than using the issue for some political purpose. Therefore, despite our criticisms of the Scottish Government’s handling and its exotic hyperbole at times, we will support the Government’s motion to withhold consent.

The Conservative Government has made an absolute hash of Brexit. It has damaged our economy and weakened our country. If only we had two Governments that could work together. If only we had Governments that would seek pragmatic solutions.

I call the cabinet secretary, Angus Robertson, to wind up on behalf of the Scottish Government.

14:56  

I sincerely thank everybody who took part in this short debate. I will briefly feed back on those contributions.

Clare Adamson, the convener of the Constitution, Europe, External Affairs and Culture Committee, highlighted the overwhelming strength of evidence to the committee about how damaging the bill is.

Donald Cameron, from the Conservative front bench, suggested that it was premature to decline legislative consent. I have to say to him, however, that, given everything that we know about the bill so far, and the evidence that has been presented to the committee, I do not agree with him that the Parliament should give the UK Government a blank cheque to continue.

He called on the UK and Scottish Governments to work together, ignoring the fact that the UK Government has ignored all amendments that were supported by the Scottish and Welsh Governments. Again, that is a reason why, even at this late stage, the Conservatives should reconsider their opposition to granting legislative consent.

Sarah Boyack began by pointing out, in an eminently sensible way, how an alternative course of action could have been proceeded with, were there pieces of retained EU law on the statute book that needed to be sunsetted in any way. That was perfectly possible; however, the UK Government has turned the whole process on its head, forcing every piece of European legislation—devolved, reserved and in between—to face sunsetting. I very much welcome the Labour Party’s opposition to the giving of legislative consent.

To Willie Rennie and the Liberal Democrats—a party that now accepts and is prepared to live with Brexit—I say, as I have said to him before when he has appealed for the Scottish Government to work with the UK Government, that I have done so. I have written repeatedly to the UK Government on this issue. We have published amendments that were supported by colleagues in the Welsh Government, but none of those has been accepted. I reject his suggestion that there is an issue of equidistance in critique. Notwithstanding that, I welcome the support of the Scottish Liberal Democrats for the withholding of legislative consent.

In the short time that I have left, I will draw attention to a number of things. One question that has been raised is whether, given that the Scottish ministers will get powers to preserve and amend retained EU law, the concern about UK ministers acting in devolved areas without consent is overstated. No—it is not overstated. The bill gives devolved ministers powers to preserve, revoke and amend REUL, but UK ministers are able to revoke REUL in devolved areas at any time, prior to and after the 2023 sunset, with no requirement for consent. How can we possibly grant a blank cheque to the UK Government in those circumstances? Moreover, only UK ministers have powers to extend the sunset date to 2026. The balance of power is unequal.

All that could have been solved in the House of Commons or the House of Lords, where the bill is at present, if the Scottish Conservative and Unionist Party was prepared to make the case to the UK Government. Who knows? Perhaps it would be listened to. However, we have heard none of that from the Conservative members today.

Sarah Boyack has repeatedly raised the issue of timescale and decision making, and she is absolutely right on that. No preservation or other instruments can be made under the bill unless and until it has received royal assent and is in force, which is expected to be around May 2023. Once that has happened, the Scottish Government would intend to lay secondary legislation to seek to ensure that laws are not lost at the end of 2023. I would be content to come back, in a further and extended debate, to talk through how that may work and, I hope, to provide the assurances that Sarah Boyack requires.

It is important that we can get that as soon as possible. If the cabinet secretary could refer to the references in the Constitution, Europe, External Affairs and Culture Committee’s report, that would be very helpful.

Absolutely—I am happy to—but I am sure that Sarah Boyack understands that we are still in the middle of a process of trying to understand the course of action that is being pursued by the UK Government. We are trying to work with the UK Government to understand how things will proceed. As soon as we have clarity on that, we will be able to come back to Parliament. I wish to be able to do that as soon as possible.

In my opening speech, I mentioned that, since 2018, the Parliament has been ignored on six occasions when voting to withhold consent to a UK Government bill. Regardless, I urge members to vote in favour of the motion that is before us and to agree with the recommendation to withhold consent for the bill. The UK Government may not be listening, but the people of Scotland are: workers whose employment rights are at risk because of the bill will hear; consumers who want higher food standards will hear; those who benefit from and value the high quality of the Scottish environment will hear; and businesses wanting to avoid even more barriers to accessing the European market will hear, too.

I urge the Parliament to add its voice to the already loud chorus from those across Scotland and the United Kingdom who are opposed to the bill, and to vote in favour of the motion.

That concludes the debate on the Retained EU Law (Revocation and Reform) Bill.