Chamber and committees

The first thing is that we have had the formation of the portfolio-specific interministerial groups, which is where a lot of the real work is done right across Whitehall departments, and meetings of all of them have taken place. I do not think that that was the case previously—I think that there were some Government departments where there had been no meetings at all. That is to be welcomed, because it means that a mechanism has been agreed for how we could and should be meeting. That is up and running.

To be honest, I am more focused on what goes on during the meetings and the on-going effort to find solutions to common challenges and to help one another to understand where we are coming from. That matters to the Government and its priorities, and it matters to you, as parliamentarians who want to scrutinise that process.

Before I came to this meeting today, I thought about how best to illustrate how some of that works. There is a tension between wanting to have maximum transparency and, as is the norm in intergovernmental relations domestically and internationally, being able to protect a space in which to have on-going discussions about how negotiations are progressing, for example. With your indulgence, convener, I will briefly talk the committee through how that has worked for the UK-EU agreement.

The committee understands that much of that agreement takes place in a devolved space. Much of what we have now learned about what the UK Government has agreed to at a headline level is in a devolved space, and we are now seeing the beginnings of outcomes—again, often in the devolved space. It is therefore important that devolved Administrations are part of the process of formulating the negotiating position and are part of an on-going understanding of how things are going and where these things have got to.

It is a mixed picture, however—that is what I want to share with the committee. There was an initial meeting between myself, Nick Thomas-Symonds and, from memory, colleagues from other devolved Administrations, although perhaps that happened at a different time. Nick Thomas-Symonds was keen to share with the Scottish Government the UK Government’s hopes of a UK-EU agreement, and I shared our perspectives. There were a number of areas in which we had shared priorities, such as wanting to get back into Erasmus+, wanting to secure an agrifood deal, wanting to restore freedom of movement for younger people, and so on. I raised the issue of creative Europe being an area of priority for the Scottish Government, and there was, of course, the standing item of importance to Scotland, which is fishing.

That was the introductory meeting, at which I shared the Scottish Government’s position. However, as it was a matter of negotiation, I said that it would be important for us to be updated on how negotiations were proceeding throughout the process. Nick Thomas-Symonds took that to heart, and we met again in Edinburgh. At that meeting, we were joined by a Welsh Government minister, who came to Edinburgh, and by the First Minister and the Deputy First Minister of Northern Ireland, who joined online, and we went through an update on how things had been going. The update was pretty high level and did not contain a lot of detail. In that meeting, I asked why the other side in the negotiation—Maroš Šefcovic was negotiating on behalf of the Commission—had a negotiating mandate agreed with the member states of the European Union and a mechanism for updating them. They actually had the paperwork. I said, “Can we have the same as they have? If it works for them and is a good thing for them, why would it not be for us?” Nick Thomas-Symonds said that that was an interesting suggestion and that he would take it away.

When we got to the end of his update, I asked Nick Thomas-Symonds why there had been no update on fisheries, because at that stage we were able to read about negotiations on that area in the newspapers. He gave a high-level answer about the UK Government’s wish for “long-term stability” for fisheries but said that he was not in a position to go into the details of what might emerge from the negotiations. From memory, that meeting took place towards the end of the week preceding the agreement. It took place only a few days before the agreement was reached, leaving just a weekend.

Most people who have been around the block in politics understand that, particularly in a European context, nothing is agreed until everything is agreed. I acknowledge that that is a challenge for the UK Government in making sure that it can go through the negotiating process and reach the best deal possible. However, our European colleagues are fully apprised of the situation on an on-going basis.

The next thing that we heard about was the agreement. No paperwork had been shared, although it had been asked for and a commitment to consider sharing it had been made. We learned that there had been an agreement on fisheries, among other things. A number of committee members raised that at the time and were very unhappy about it. At the same time, we learned that the UK Government had not included accession to creative Europe as part of the negotiating process.

There are a number of things to take away from that. First, there is a process of engagement, which is right and proper, but the process is not as good as it could be. Secondly, it makes me think about how we share information about such processes with the likes of this Scottish Parliament committee and others, such as those relating to fisheries and agricultural questions, so that there is an awareness of what has been raised and the direction of travel, and so that people can be held to account by checking, for example, whether Scottish Government ministers have raised things, asked for things to be considered as a priority or asked the UK Government questions in order to understand what is and is not possible.

I say that in order to give a detailed insight into how some of this works, Mr Kerr. As a follow-up, this week I had a phone call with Nick Thomas-Symonds on the morning of the announcement about Erasmus+, which was pretty fully reported in The Times.

I would never presume to describe the democratic process in the way that Mr Halcro Johnston has just done. I would have thought that all of us, as democrats, would be clamouring to uphold both domestic and international democratic standards. In other words, when the people elect a Government to do something, it is empowered to get on and do it. We are in a very strange—

It is not about the fact that there are proposed deals, in theory, or that negotiations might be under way—more often than not, those are shared in public and are a matter of public reporting; it is about the substance of the process.

I was not involved in that process, so I do not know the detail. I do not know the answer to whether any inquiries took place from the UK Government in relation to the different headline areas that might have been discussed, such as pharmaceuticals. The Scottish Government was not involved in any meaningful process whatsoever in relation to where the deal ended up.

I agree. Words are quite important in this.

There is a danger in a performative process by letter exchange. Being informed that trade negotiations are taking place is not the same thing as having a detailed conversation about the potential upsides and downsides of the process.

I would be perfectly happy to go away and review the correspondence that Mr Bibby has drawn my attention to, because I would be interested to see the level of detail that was part of it about what was being considered in relation to pharmaceuticals.

My issue is not necessarily about being informed. We were informed that there was a UK-EU agreement process—of course we were. We had meetings about it and I have given evidence about it. That is not the major issue. The major issue is about the content. This goes beyond the rhetoric of reset point that I was making before. It is not even as much a case of, “We know that things weren’t great before—let’s make them better now.” It is about the substance that happens as part of the process. I would be interested in the substance in relation to pharmaceuticals, just as I was interested in the substance of what was happening with fishing and the substance of having information shared with us that was not shared—yet was being shared with the European Union.

Mr Bibby is absolutely right: what matters is the substance. It is not about the performative element—if there is such a thing—of the fact that there are meetings and that we send each other letters. It is about whether the contents of letters, discussions and meetings are taken on board and whether things happen as a result of them, with better policy as a result. The outcome is surely the most important thing in all that, but I will definitely take away Mr Bibby’s point about having the best possible marshalling of information in the future.

I must be absolutely frank with Mr Brown: I am not a lawyer and nor am I a legal academic or an expert in any sense, so I do not feel that I am suitably qualified to answer his question about English law.

I would observe, however, the Supreme Court judgment—which has been well reported—in relation to the ability of us as parliamentarians in the Scottish Parliament to decide to hold a referendum. Everything that I have seen has advised me that it is unlikely that the Supreme Court would make any different decision from that which it made before. That gets us back to the same conundrum and challenge that we have been discussing since the beginning of this session, which is that it is a matter of political will, political decision making and consensus as democrats that the democratic process should be at the heart of determining our political and constitutional future.

We have a precedent. Given that we have a precedent that we know was agreeable to the UK Government and given that we know the result would have been recognised internationally had Scotland voted yes in 2014, I am of the view that we should secure agreement through the ballot box and that that is exactly what should happen again if a majority of parliamentarians who support independence are returned to this Parliament.

Otherwise, there is the next conversation, which is about the future of political culture in Scotland if we have a blocking minority. If the people who lose the election are telling those who are elected and represent the largest group of people who voted in that election that they cannot exercise the choice that they were voted in for, that is pretty serious and it is not sustainable. It cannot go on.

What is the solution? The solution is to do what David Cameron did, which is to make a vow. We know that there is a not just the rhetorical avowal of the right of self-determination that we have already narrated this morning. There is a route by which this can happen. I would wish it to be a standing right of the Scottish Parliament to be able to determine its future whenever a majority of people elected to this place, acting on behalf of the people who have elected them to come here, determine that that is what should happen. There is no substitute for that.

It is a pretty simple question. Are we democrats—yes or no? If we are, do we believe that the public should be able to exercise a right about the constitutional future of the country—yes or no? My answer is yes to both those things. That being the case, what is the mechanism? It is time for those who cast doubt on this to be absolutely clear about de minimis. It has to match that which exists for one of the other constituent nations of the United Kingdom, which is Northern Ireland.

Therefore, he was able to exercise a democratic right that was delivered by a parliamentary election with the result of a percentage in the mid-30s—not the 50s.

Conflating those two things is not the right way to go about this. The basic point here is about people having the right to self-determination. They vote for a parliament to be able to have the opportunity to say yes and well as no, and that is the best way of doing it. The reason we know that is that we have done it already, so there is precedent.

I agree. That is contradictory, not just in terms but in publicly stated positions. As stated in June 2014, the position of the leaders of the Scottish Conservative and Unionist Party, the Scottish Labour Party and the Scottish Liberal Democrats was:

“Power lies with the Scottish people and we believe it is for the Scottish people to decide how we are governed.”

Also in 2014, the Smith commission stated:

“nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose.”

Another very strong quote states:

“Mandates come from the electorate in an election ... it should be the people of Scotland that decide when the next referendum is.”

That quote is from Anas Sarwar.

I could go on. It does not matter whether politicians—I could go back to Margaret Thatcher, John Major, Theresa May and so on—have all said similar things, there has been an acknowledgement, even among people who do not support Scottish independence, that self-determination, which was the key point in Mr Brown’s question, is an inalienable right of the people of Scotland. That being the case, being repeatedly unprepared to answer the simple question, “By which mechanism can Scotland secure a referendum on independence?” is withholding the right of self-determination.

It is a denial of democracy. A number of rhetorical flourishes are thrown into the debate, which are there to stymie, when people say that now is not the time and that things are required to be the settled will. There is a whole series of things that are absolutely and totally irrelevant to the simple question that you have asked, which is about what the mechanism is.

I think that, as democrats, we all agree and would avow that the only route for significant constitutional change is through the ballot box. The question for all of us to answer, without cavilling at that, is about how that can be secured. The good news is that we have done it. When the Scottish Parliament election happened in 2011, the UK Government acknowledged that a majority in the Parliament had been elected on a manifesto commitment that a referendum should take place, and that is exactly what happened.

We have now had a number of elections since, including those for the current Scottish Parliament, in which a majority of members were elected on a manifesto commitment that there should be a referendum, yet a referendum is being blocked. We have the de facto blocking of a referendum, and we have the de jure challenge from others who oppose independence, although not from all of them—there are some observers out there who have made other points. I have read commentary from the likes of Kenny Farquharson, a Scottish columnist who did not support Scottish independence, that there should be a mechanism.

There must be a mechanism. The issue is not going to go away. I acknowledge that there are strongly held views for and against independence, and for and against the union. However, that is not the question before us. The question is, what is the democratic mechanism at the present time? At least half the Scottish electorate support Scottish independence, and a higher percentage believe that one should be able to make a decision about it.

There is a precedent, and there are different ways in which this happens. Mr Brown mentioned other parts of the world. The National Assembly of Québec has the right to decide whether there should be a referendum, but we do not. That is perfectly possible elsewhere, and it should be possible here. The longer the current situation goes on, the more unsustainable and corrosive it gets for our democratic culture, because it is a roadblock on democratic decision making and a denial of a democratic right of self-determination.

That is the only rational explanation that I have. Let us cast our minds back to the 2011 Scottish Parliament election and the way in which the then UK Prime Minister was able to agree a process with the Scottish Government. That was done on the basis that a majority had been elected to the Scottish Parliament on a manifesto commitment, but support for independence was considered to be in the 20 per cents. I think that the calculation for the then UK Prime Minister was that this was a concession that would lead to a no vote and would then stop the debate and end the question.

The difference now is that not only do the majority of those in this Parliament support independence but a majority in this country support it, too. I see some shaking of heads, but the average of all the independent polling that one is able to point to shows that support for a yes vote is ahead of support for no.

Even if that were not the case, that would not negate the point that I am making, which is that the difference is that the starting point for a referendum in 2025, 2026 or 2027 would be support percentages that were not in the 20s but were, de minimis, in the 40s. Recent polls have also shown that, among those who have a view on how they would vote, support is at more than 50 per cent. That is the only rational explanation as to why someone would seek to block both a democratic choice and a mechanism for exercising that choice.

I am sorry to have to say it, but I think that colleagues who support that position should look themselves in the mirror and be honest about the fact that seeking to stop a vote simply because we do not like the potential outcome does not behove us as democrats. When we go into elections, we all know that we might or might not be elected or re-elected, and we are prepared to stand for election knowing that context.

Decisions have been taken about wider constitutional issues—such as devolution—on which we have had a number of referenda. We had a number of referenda on Europe. People’s views change, and I think that I am right in saying that we now have about 1 million people living in Scotland who were not able to vote in the 2014 referendum. We have also had a material change of circumstances since that vote. We were promised that, if we were to vote no, we would remain in the European Union, but we have since been taken out of the European Union, although a majority in Scotland voted to remain. That was a case of misselling.

Not only is there a strong rhetorical case for a referendum but we have the results of election after election after election. There are those who are not supportive of a yes outcome but who agree, as democrats, that the only acceptable mechanism for determining our future in governmental or constitutional terms is the ballot box. However, some are seeking rhetorical routes to put off answering an actually quite simple question.

I have another simple point. How on earth is it sustainable to have a mechanism in one part of the United Kingdom but not in another? That is just not sustainable.

I can answer that question only about myself, but I am happy to update the committee more generally. I have been provided with confirmation that I have met UK Government ministers at least 24 times since the change in UK Government, but the total number of meetings will be a significant number.

I think that it is actually the Deputy First Minister who has governmental responsibility for intergovernmental relations. I have responsibility for the constitution. My civil service colleagues keep a note of all the details.

It is also fair to acknowledge that some UK Government ministers, because of their area of responsibility, are very committed to meeting regularly. Nick Thomas-Symonds, who is responsible for Europe, is a good example of that. I observe that, more often than not, I tend to meet Scottish and Welsh UK Government ministers. It is perhaps the case that they have a better sense than others that they should be meeting about things—that is just my perception.

I am sorry, but to keep my answer brief, I do not have the full number of meetings, Mr Bibby. If the committee wishes for us to make the best stab at a global number, I am happy to then provide that number.