Meeting date: Tuesday, December 8, 2020
Meeting of the Parliament 08 December 2020
Agenda: Time for Reflection, Topical Question Time, Business Motion, Covid-19, Brexit Readiness, Covid-19 (Education), Parliament’s Evolving Scrutiny Function, Presiding Officer’s Statement, Decision Time, Human Rights Day (70th Anniversary)
- Time for Reflection
- Topical Question Time
- Business Motion
- Brexit Readiness
- Covid-19 (Education)
- Parliament’s Evolving Scrutiny Function
- Presiding Officer’s Statement
- Decision Time
- Human Rights Day (70th Anniversary)
Parliament’s Evolving Scrutiny Function
The next item of business is a Finance and Constitution Committee debate on motion S5M-23565, in the name of Bruce Crawford, on Parliament’s evolving scrutiny function. I ask all members who wish to speak in the debate to press their request-to-speak buttons now, and I invite Bruce Crawford to open the debate on behalf of the Finance and Constitution Committee.16:27
This has been a quite extraordinary year and, rightly, the focus of the Scottish Government, our Parliament and its committees has been on dealing with the impact of the on-going Covid-19 emergency. However, as we near the end of the Brexit transition period, the Finance and Constitution Committee has also been focusing on the constitutional impact of the United Kingdom leaving the European Union on devolution—or, more specifically, its impact on our Parliament’s powers and what that means for how we conduct scrutiny.
At the outset, it is important to recognise that my contribution will not be about whether that might involve a power grab or a power surge. Brexit itself neither directly increases nor decreases the powers of the Scottish Parliament; any such change to its powers would require UK legislation. For example, the United Kingdom Internal Market Bill rereserves subsidy control, which means that the UK Government will be able to introduce state aid legislation without the need to seek consent from the devolved legislatures. The Scottish Parliament has, of course, refused its consent, but it is likely to be imposed regardless of its strongly held views.
However, the main impact of Brexit on devolution is to remove the obligations on the Scottish Parliament to implement changes to EU law in devolved areas and not to legislate in any way that is contrary to EU law. It is such constraint that is being removed.
All else being equal, from 1 January 2021, this Parliament would have had legislative autonomy in any devolved policy area that was previously within EU competence. However, the reality is a bit different, because other constraints will replace the existing requirements to comply with EU law and will essentially limit our legislative autonomy.
Unfortunately, with only three weeks to go until the end of the transition period, the extent of those constraints remains highly uncertain. There are essentially two levels of constraint: external and domestic. External constraints include the requirement to comply with international treaties agreed by the UK, including trade deals. The level of regulatory alignment with the EU as part of any trade deal will therefore be of critical importance in determining this Parliament’s level of legislative autonomy after Brexit.
The extent of domestic constraints such as common frameworks on the use of Parliament’s legislative powers also remains unclear. That is partly because the UK Government and the devolved Governments cannot fully agree on how that should work. There is, nevertheless, broad agreement on developing common frameworks consensually, as that is the most effective way of delivering an appropriate level of regulatory coherence across the UK. However, there have been specific problems with the emissions trading scheme framework, for instance, which I am sure we will hear more about this afternoon.
The UK Government continues to press ahead with its internal market bill, which, as I have said, does not have the consent of this Parliament. With the exception of our Conservative colleagues, the committee’s view of the bill is that it undermines the whole basis of devolution. In essence, the market access principles in the bill mean that regulatory standards agreed by the UK Parliament could be imposed on the devolved nations. As such, it in effect imposes new reservations on devolved competences. Common frameworks might also constrain legislative autonomy in certain policy areas but that, at least, will be with the agreement of the Scottish Government.
Given those external and domestic constraints, a key question for the committee is the extent to which they will, in turn, limit the use of the keeping pace power in the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.
That brings me to the critical question in this debate—what is the impact on our Parliament’s scrutiny function and how do we need to evolve to meet the challenges that I have just outlined? It was on that key question that we sought the views of other committees. The committee believes that there is a need to ensure that, as a Parliament, we facilitate engagement in the policy-making process in areas that were previously subject to EU law.
That is primarily because there will no longer be any formal democratic engagement in the EU policy-making process by the UK Government and devolved Governments. However, it is also because there is a risk that the EU policy-making process is replaced by an Executive-driven process that allows for significant levels of ministerial discretion—for example, in deciding which EU law to keep pace with or in deciding areas of policy convergence in common frameworks.
The responses that we have received from other committees confirm that there is a recognition across the Parliament that we need to evolve our scrutiny process to address the risk of an overly Executive-driven process. However, it is also clear from the responses that we have received that that raises significant resource implications.
Those implications are threefold. First, it is essential that all members, especially the new intake next May, are sufficiently supported in understanding the on-going complex constitutional implications of Brexit on our Parliament’s powers. It is also essential that we are able to provide the public with an understanding of how policy making in areas such as the environment and food standards will work after Brexit. However, that will not be easy, as the constraints are not static and, in many respects, will be agreed at an intergovernmental level.
Secondly, the situation perhaps leads to the need to develop an interparliamentary approach in all policy areas that were previously within EU competence.
Finally, it is clear from the responses that we have received from other committees that there is not sufficient capacity in the existing committee structure. Therefore, there is a need for the Parliament at a strategic level to consider its scrutiny priorities in addressing the complex and dynamic impact of Brexit on devolution. The past few years have seen a significant increase in the complexity, volume and diversity of policy areas that the Parliament needs to scrutinise to ensure that they work for the people of Scotland.
As the committee responses that we received confirm, that requires resourcing, if the Parliament is to continue to deliver a high-quality and participative approach to scrutiny of policy and legislation in the future and, critically, to ensure that members are supported to deliver robust scrutiny in a post-Brexit constitutional landscape. Given the tight fiscal environment, that might require difficult conversations about reprioritising existing resources, but that needs to start now, before the next session of Parliament begins.
In moving the motion in my name on behalf of the Finance and Constitution Committee, I take this opportunity to thank very much the clerks of the committee for all their support in the process.
That the Parliament notes the Finance and Constitution Committee’s recent consultation with other committees regarding the impact of Brexit on devolution and how the Parliament’s scrutiny role will need to evolve to address this impact.16:36
I thank Bruce Crawford and his committee for securing this important debate, because there is nothing more central to the role of a Parliament than scrutinising, on behalf of the people whom it represents, the actions of Government—in this instance, that is the Scottish and UK Governments. That is borne out by the participation of five different committees in the debate that we are conducting.
As Bruce Crawford highlighted, Brexit has raised a number of challenges around the exercise of that crucial scrutiny function. Before considering those in detail, it is essential that we establish context. Brexit was not the choice of the people of Scotland, and we now face the most damaging form of Brexit that can be imagined—a choice between no deal or a very limited future relationship agreement—thanks to the approach of the UK Government.
The UK Government’s approach is similarly crucial in considering the challenges that we face in some of the specific matters that we are debating—notably, UK frameworks and the United Kingdom Internal Market Bill, but also future international negotiations beyond those with the EU.
On the subject of approach, let me outline that of the Scottish Government to the topic before us. Let me be clear that we want to take all practical steps to support and encourage scrutiny by the Parliament and, alongside that, consultation with stakeholders. It might be that we will not agree with the Parliament, or some of the parties represented here, on what “all practical steps” are but, with good will and the right intent on all sides, I am certain that we can ensure that scrutiny is proportionate and that it balances proper and thorough questioning with the need to progress business within the finite limits of parliamentary time.
The Government and Parliament established protocols for scrutiny of the substantial range of secondary legislation that is already in place for leaving the EU. Now we must build on that for the new challenges ahead. On Bruce Crawford’s important point about resource to deliver that scrutiny, the Government will of course listen to any reasoned financial ask from the Parliament via the Finance and Constitution Committee.
There are three immediate relevant issues facing us: UK frameworks, the UK Government’s United Kingdom Internal Market Bill and our UK Withdrawal from the European Union (Continuity) (Scotland) Bill.
The negotiation and agreement of UK-wide frameworks in devolved areas is a largely new exercise in the UK. The four Administrations have had to create principles and structures to allow us to negotiate and agree common approaches to issues, where we agree that that is in our best interests. The Scottish Government and the Parliament have always been clear that UK frameworks must be agreed, not imposed, and must respect devolved powers.?
We are now moving to the detail of individual frameworks and the scrutiny by subject committees of the Parliament of those frameworks.
The proposals for scrutiny are intended to secure effective scrutiny of an intergovernmental process, as they would require agreement across all four Executives and legislatures. I reiterate the Scottish Government’s commitment to enabling effective scrutiny of the frameworks by the Scottish Parliament.
However, it is clear that agreement of frameworks and proper democratic accountability require respect and trust between all four Administrations and, regrettably, recent events concerning the proposed emissions trading scheme framework again call into question the UK Government’s commitment to that approach.
It would be wholly unacceptable—and it would undermine the common frameworks process—if UK ministers unilaterally introduced an alternative carbon tax regime against the wishes of the other UK Administrations, and I am sure that that view will find support across this Parliament.
Of course, the UK Government has already severely damaged the frameworks process through its United Kingdom Internal Market Bill. Although the bill’s many flaws are well rehearsed, it is worth reflecting on its specific implications for the UK frameworks. Put bluntly, the bill removes any need for the UK Government to agree frameworks if it does not like the outcome of negotiations. The market access principles will ensure that there will be no need for the UK to conform to our regulations if they are different from those in England. That would also be true if the UK Government decided unilaterally to withdraw from any UK framework that had already been agreed.
There is no protection in the internal market bill for matters under negotiation for UK frameworks or for matters in agreed frameworks. Therefore, the bill not only undermines devolution and common frameworks, but undermines scrutiny by this Parliament in the discharge of its democratic responsibility.
The Scottish Government’s UK Withdrawal from the European Union (Continuity) (Scotland) Bill also raises new issues of scrutiny for the Parliament, as Bruce Crawford has set out. In essence, the Parliament will rightly want to examine the proposals that the Government makes to maintain alignment in devolved areas with the high standards of EU law. The normal processes of secondary legislation will provide the Parliament with the opportunity to approve individual exercises of the powers in the bill.
However, stage 2 consideration of the bill showed that members have a range of other proposals to ensure that there is wider scrutiny of the Government’s plans in this area. I know that Michael Russell is reflecting on those proposals and that he will listen to any further points that are made today as the Government considers its approach to stage 3 of the bill later this month.
Brexit has focused attention on parliamentary oversight of the negotiation of international treaties. Again, the approach of the UK Government has shown clearly the flaws in the current system. The Westminster Parliament is excluded from any role in shaping negotiating positions. The devolved Administrations and legislatures are shut out, too, despite the fact that many devolved matters are directly affected by the UK Government’s position and the negotiations. That is clearly unacceptable in a modern democracy. Rightly, the Parliament would not accept such an approach from a Scottish Government, so why would it accept it from a UK Government?
Although the circumstances of Brexit are not of our making, as a responsible Government and Parliament, we must face up to those new challenges. We should be proud of the work that has been done so far to fulfil our duty to provide a functioning legal system that is suitably scrutinised and approved. I am sure that by working together, we can ensure that future measures, such as common frameworks and alignment with EU law, are developed properly by the Government and rigorously examined by the Parliament, always with the best interests of the people of Scotland as our aim.16:43
I, too, thank the clerks and advisers to the Finance and Constitution Committee, who have worked tremendously hard on an ever-increasing volume of primary and secondary legislation and parliamentary reports.
I agree with Bruce Crawford that this is the beginning of a very important debate—a debate about the future role of the Parliament in scrutinising the exercise of powers in a post-Brexit settlement. The backdrop is that, next year, after the transition period, the Parliament will have more powers than ever. Following the transition period, more than 100 new powers will come directly to the Parliament in a number of areas, including air quality, animal welfare, land use, harbour regulation and energy efficiency. The Parliament will also have oversight of substantial new powers in areas that are the subjects of common frameworks, including agriculture, fisheries, procurement and food packaging.
In addition to all that, new legislation in the form of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill and the United Kingdom Internal Market Bill will generate yet more regulatory change that will require scrutiny and stakeholder consultation.
How those significant new powers will be scrutinised by Parliament is being considered by the committee as part of its legacy inquiry, and it will be for members who are returned in the next session to determine exactly how that will all work in the years to come. However, it is important that we start the debate now about how the powers will be used and scrutinised, and how the Scottish Government will remain accountable to this Parliament.
I will touch on some of the common themes that have emerged from the responses that have been received from the various committees. It did not come as a surprise that most committees had questions surrounding use of the keeping pace powers under the continuity bill, or that they raised a number of important challenges to which the legislation will give rise.
Committees noted that the task of monitoring changes to EU laws was previously done at UK level and that, after the transition period, we will have no formal role in influencing or amending future EU laws. That reflects evidence that was given to the committee at stage 1 of the bill by Professor Aileen McHarg, who cautioned, on the keeping pace powers, that this Parliament will become a passive rule taker and that
“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.]
The committee’s stage 1 report reflected those concerns by concluding that
“It is, therefore, essential that the Parliament gives serious consideration to the level of scrutiny of the keeping pace power”.
That is part of what we are debating today, so it is welcome that a number of committees looked at that question and responded by calling for Parliament and stakeholders to be able to scrutinise Scottish Government decisions on whether to keep pace with particular EU policy developments, and by suggesting that committees of this Parliament should have a role in those decisions. In fact, the Delegated Powers and Law Reform Committee went as far as to recommend that primary legislation would be the most appropriate vehicle for keeping pace with developments at EU level.
Those committee responses were reflected in a number of the amendments that we lodged at stage 2 of the continuity bill, which were designed to address concerns. First, we suggested that Parliament or, if it is more appropriate, a relevant committee should have the ability to consider the relevant procedure that should apply to keeping pace regulations that are brought forward by Scottish ministers—in particular, the power to decide whether the keeping pace regulations should be subject to negative, affirmative or super-affirmative procedure, or be in primary legislation.
If Parliament or, if relevant, a sifting committee were to decide that the super-affirmative procedure should apply—for example, if the keeping pace provisions require a significant change in Scots law or in Scottish Government policy—that would require the Scottish Government to undertake impact assessments and stakeholder consultations. The amendments were all based on submissions from the NFU Scotland and a number of other stakeholders.
I will accept the minister’s invitation. Given that not all the amendments were agreed to at stage 2, I am very happy to work with the minister, the cabinet secretary and other parties to agree amendments at stage 3 that will address the concerns that have been raised by various committees.
The second common theme that emerged from committee responses centred on the need for a much more active and detailed scrutiny process for common frameworks. There is recognition that although the common frameworks themselves will not alter devolution, they will constrain—albeit voluntarily and subject to continued agreement—this Parliament’s ability to agree policy divergence in a number of areas. The consensus across the committees is therefore that development of the common frameworks must involve a higher level of transparency and an opportunity for Parliament to scrutinise the powers that are subject to common frameworks.
However, the Environment, Climate Change and Land Reform Committee identified a number of serious concerns, including about Parliament being asked to consider legislative elements of frameworks without having sight of the relevant framework itself, and with a real failure to engage stakeholders and the wider public in the process of developing common frameworks.
Those concerns relate to the processes that are undertaken by both the Scottish and UK Governments. It is worth highlighting that the Rural Economy and Connectivity Committee noted that there is a structural problem that relates to how the intergovernmental process operates—in particular, in relation to the emphasis on confidentiality. The REC Committee went on to say that there is a real concern that if that is not addressed, common frameworks
“could represent a shift towards a greater degree of intergovernmental decision-making where the scrutiny role of parliaments is significantly diminished”.
I am sure that all members will want to avoid an outcome in which that process is driven by the Executive and does not involve a relevant amount of Parliamentary scrutiny. The Scottish and UK Governments, and the Parliament, should be looking to address that.
I conclude on an issue for which I think there is support across the chamber. All the committees highlighted significant resource implications for the Parliament as a consequence of the additional powers that I have mentioned, and of the additional scrutiny functions that will be vested in the Parliament from the beginning of next year. I think that that issue will become increasingly urgent, so I urge that cross-party consensus be reached on what additional capacity and resources will be required for the Parliament and its committees to address the issues that I have outlined.16:50
I start by thanking Bruce Crawford and his committee for bringing forward the debate. Previously, I was acting convener of the Public Audit and Post-legislative Scrutiny Committee, which was able to respond. Having left that committee, and having joined the Finance and Constitution Committee, I look forward to serving under Mr Crawford’s chairmanship.
I am saddened that the UK is leaving the EU. My view on Brexit is clear, as is the case for many members; I wish that we were not even having the debate. I did not support Brexit—I do not believe that it is good for the UK or for Scotland.
However, whatever our views on it, we, as members of the Scottish Parliament, have to deal with the here and now of what Brexit means for the Parliament and how it functions, both as a legislature and, which is important, as a body that is able properly and timeously to scrutinise and hold to account the Executive—the Scottish Government—of whatever political shade it might be. That is the approach that Scottish Labour will be taking.
In some ways, therefore, the debate should not be party political—although it is, of course, political. I am sure that having Murdo Fraser second the motion is to Bruce Crawford’s eternal shame, but it is a good indication that we are trying to find consensus on what should happen next.
In addition, I do not want the debate to be dominated by the much more political debates about the rights and wrongs of Brexit itself, its impact on Scotland, the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, the Internal Market Bill, and the impact on devolved policy areas and devolution. Of course those are important, but they are probably for a different debating opportunity.
Those matters are not the subject of today’s debate, which is about the role of Parliament, scrutiny by it and the resources that will be available to it for holding the Executive to account. I hope that every MSP believes that there should be a properly resourced and functioning Parliament, with the necessary capability to pass legislation and to scrutinise the Executive.
In addition, I think that there is a discussion to be had about how we can take some of the party politics out of committees. That, in itself, would help with scrutiny. I say that having come off the Public Audit and Post-legislative Scrutiny Committee. I have to give credit to all my colleagues who have served on that committee with me. I think that they would all agree that we have been very good, as a committee, at avoiding party politics, and in uniting in our scrutiny work on issues that are relevant to the Scottish people.
I think that a level of consensus can be seen from committees’ responses to Bruce Crawford’s letter. That is a good thing, because the Parliament has changed since 1999 and I am sure that it will want to continue to change and adapt in the years to come.
Although some new scrutiny processes that have been established by the Scottish Government are working well, committees are already struggling through lack of capacity and lack of timely information from the UK Government—and, consequently, from the Scottish Government—for example, on common frameworks. That is not good enough, and it prevents Parliament from doing its job.
Without getting into the politics of the withdrawal bill, it is problematic for two reasons when it comes to scrutiny. It gives much power to ministers, which requires adequate scrutiny. Responding to the keeping pace powers is currently beyond the current capacity of our parliamentary committees. Scottish ministers will be able to make regulations corresponding to EU regulations, tertiary legislation or decisions. The regulations will also be able to enforce the laws and implement the directives, or modify any retained law, of the EU.
It would be incomprehensible if the Executive and ministers had such powers without corresponding parliamentary scrutiny. That is why the Government must work with committees and the Parliament, as a matter of urgency, to ensure that changes in our laws and governance structures can be adequately scrutinised by the Parliament. Mr Dey gave that commitment in his speech. I hope that the commitment is matched with action. It is for all of us in this Parliament to work collectively to make that happen.
There have, in recent months, been too many instances of the Scottish Government seeking to sideline, or ignoring, the will of the Parliament. I do not mean that in a partisan sense. If a Labour Executive was the Government of the day and the Parliament as a whole directed it, I would expect it to listen to the will of the Parliament. I would expect that of a Labour Administration, an SNP Administration or an Administration of any other political colour. That has to be the case, if we are to respect this Parliament and the people who elect us to come here.
The committee noted that the Scottish Government is using the UK Withdrawal from the European Union (Continuity) (Scotland) Bill to legislate for some Scottish laws to keep pace with EU laws, as a default position. The role of the Scottish Government in monitoring EU developments in devolved policy areas will be a new one, so there will be a need for scrutiny of whether the Scottish Government chooses to keep pace with EU policy developments.
The Health and Sport Committee—the Deputy Presiding Officer, as convener of that committee, is acutely aware of this—said that it and, perhaps, other committees should have a role in decisions on whether to keep pace, in order to provide democratic engagement in Scottish Government ministers’ decisions on such matters.
There is also concern that mutual recognition of standards could result in standards being imposed on Scotland, thereby undermining devolved powers. In the committee’s view, parliamentary involvement and meaningful stakeholder engagement at the earliest opportunity are vital in internal market policy development.
The Finance and Constitution Committee also identified the need for the Parliament and its committees to consider how it needs to evolve.
I must close. As Bruce Crawford said, this is about not just today’s members of the Scottish Parliament, but the MSPs who will follow in the next session and the sessions after that. It is incumbent on us all to make sure that our Parliament is true to the values of democracy through accountability and active scrutiny, regardless of who is in a position of power, who is on a committee and who is a back bencher. There is a collective interest, for all of us, in the democratic rights of the Scottish people.16:57
I am grateful to all the committees that contributed their perspective, but I fear that issues are being raised that the Scottish Parliament itself will not be able to resolve satisfactorily.
The events of 2020 have inevitably taken a huge amount of public attention away from the Brexit crisis, but the public health crisis that we have been living through should be a reminder that the way in which power is exercised, and the way in which people are held accountable for that in a democracy, must be capable of operating not just in good times but in challenging times and even in an emergency.
I would have liked to think that even the most extremist anti-European would have thought twice about proceeding with Brexit in the middle of a global pandemic if they had known that that was coming. However, given how the UK Government has refused every opportunity to think again, it seems clear that it puts its ideological obsession ahead of everything—ahead, even, of life and death.
It should therefore be no surprise that the UK Government puts its ideological obsession ahead of Scotland’s right to govern itself. That right, albeit that it is limited in its current form, was reasserted in the final years of the previous century. We voted for a devolved Parliament, which was created on the basis that whatever was not explicitly reserved was devolved, and on the basis that changes to the devolution framework, including the powers that this Parliament exercises, would require the consent of this Parliament.
Those principles are now under sustained and systematic assault by a UK Government that clearly holds them in contempt. That is the context in which we are forced to consider important questions about the impact on devolution of a Brexit crisis that Scotland rejected and the implications for parliamentary scrutiny.
The issue of policy divergence is not new, though. In my first years as an MSP back in 2003-04, I was involved in debates on issues from charity law to the protection of the marine environment in relation to which Scottish and UK Governments and Parliaments were legislating in areas that involved significant cross-border issues. They were legislating separately but in parallel, each jurisdiction taking account of its different circumstances, while also seeking to achieve a coherent overall approach.
To me, that is the right and most democratic way to achieve what we now call a common framework. It is also the simplest way to ensure that parliamentary scrutiny takes place in the way that Parliament thinks that it should. Any other approach raises serious questions—questions that are about not only parliamentary scrutiny but the balance of power between Parliament and Government. Any Government will inevitably be drawn to arguments that protect its ability to make decisions. Every Parliament should be focused on the need to hold the Government accountable for those decisions. That balance of power issue is even more important in a Parliament with a fair voting system, where single-party majorities can be expected to be rare.
If we accept the principle that the UK and Scottish Governments, and others within Great Britain or the UK, will reach agreement among themselves about common approaches, the challenge of parliamentary scrutiny becomes significant but manageable. We should avoid, for example, arrangements that allow the Scottish Government to decide for itself the correct level of scrutiny, such as saying that it will not normally adopt a position without parliamentary approval. Such language would echo the weak and undefined legislative consent principle, and we have seen how a Government that has no respect for that principle can abuse it to the extent that it is rendered meaningless.
More challenging than scrutiny of common frameworks, though, is the question of power. Once a common framework has been agreed between the Governments, even with the consent of the Parliament of the day, how much power will the people of Scotland have to elect a Parliament that will end that framework and seek a different agreement? How much power will a future Parliament have to ensure that changes are made to common frameworks, or indeed to ensure that changes are resisted, if a minority Government disagrees with a parliamentary majority? I cannot see any satisfactory answers to those questions.
Worst of all, of course, is what is to happen if the UK Government continues with its wrecking ball approach to devolution—its internal market bill. While some in the Conservative Party try to maintain that the bill poses no threat to devolution, their colleagues, such as Jacob Rees-Mogg, have a habit of saying the quiet bit out loud and making the Conservatives’ true intentions very clear.
If the UK Government imposes its own decisions in devolved areas in the way that is so clearly threatened, how will those decisions be held up to scrutiny? UK ministers are notoriously unwilling to appear before this Parliament’s committees, and they cannot answer questions in the chamber from MSPs who are elected to hold those exercising devolved power accountable—and they will never face the judgment of the Scottish electorate.
The example of the European emissions trading scheme is of critical importance but it is, in truth, only one of a huge range of environmental, social and economic issues in which this Parliament’s role must be respected. That respect appears entirely absent from the UK Government’s approach.
Ultimately, such issues must be resolved by the people of Scotland. They are sovereign in their country. If the UK Government and those who want Scotland to choose to remain part of the UK want the people of Scotland to be able to exercise their sovereignty by electing people to their Parliament, they must end the threat to overturn the fundamental basis on which that Parliament operates. If the UK Government instead continues with its current course, the people of Scotland will have only one option left by which they can continue to assert their right to self-government, and that is to complete the journey, take our place as an independent member of the international community and rejoin the family of European nations.17:04
There is no doubt that Brexit is having and will have a major impact on how the Scottish Parliament operates. The paper produced by the Finance and Constitution Committee and this debate are a welcome part of the process of examining how this devolved Parliament responds to changing circumstances.
Time allows me to concentrate on only one of the five major areas of concern: that of how the Scottish Parliament will hold the Scottish Government to account over the keeping pace power in the Scottish Government’s UK Withdrawal from the European Union (Continuity) (Scotland) Bill, which has completed the stage 2 process and comes before the whole Parliament in two weeks’ time.
I believe that anything that makes trade between Scotland and the rest of the UK—and, indeed, with the continuity bill, trade between Scotland and our European neighbours—easier must be a good thing. It is on that basis that I voted for the general principles of the bill at stage 1.
However, when it came to stage 2, I was disappointed, to say the least, to find that the Scottish Government opposed any change to its proposed use of regulations for the keeping pace power. The sole use of regulations for the keeping pace power means that, unlike with primary legislation, the Scottish Parliament will have no power to amend the Government’s legislative proposals when it introduces them. I see Mike Russell, who is the cabinet secretary responsible, shaking his head, but that is the truth.
Unfortunately, the role of Parliament will be somewhat neutered under the proposals. Let me explain what I mean. All Governments use regulations, but they are meant to be used for uncontroversial minor adjustments or keeping our laws up to date, and they are usually nodded through up to 28 days after they come into effect. However, over the past nine months, regulations have been used to bring in quite drastic and controversial measures. Although those measures can be justified, my concern is that ministers seem determined to expand their use of regulations through the keeping pace powers in the bill.
If major changes are to be made to our laws, the proper way to do that is with primary legislation, so that Parliament can properly interrogate and improve our laws rather than, simply accepting or rejecting regulations, which is what has to be done with regulations.
I am concerned, and MSPs across the chamber should be concerned, with two specific subsections in section 4 of the bill. Subsection 4(2)(d)
“creates, or widens the scope of, a criminal offence”,
and subsection 4(2)(e)
“creates or amends a power to legislate”—
all by regulation. The Government’s defence of those provisions is that, rather than relying on regulations under the bill, Parliament can at any time go down the route of primary legislation, if that is what Parliament decides that it wants to do. That is a truism if ever there was one, and I am afraid that the argument is not valid. The bill gives the Government power to use regulations rather than primary legislation to make major changes—such as creating a criminal offence—to our law.
If Governments have the power to use regulations, they are extremely unlikely to want to use a lengthier but more appropriate process. Parliament’s ability to amend legislation will be curtailed. This is not only a party-political issue; it is a parliamentary issue. We happen to have an SNP Government, but I have made the same point about the Labour-Liberal Administration: MSPs should guard against the tendency of Governments of whatever colour to use legislation in such a way to curtail Parliament’s proper power to amend legislation.
The role of Parliament is to ensure that, with major legislation, the Government gets it right. If Parliament loses its power to amend major legislation, as it will with the keeping pace power, we will be on a slippery slope.
I hope that, when we look at stage 3 amendments to the continuity bill in two weeks’ time, the Scottish Government will accept that there are issues with what some people call the Henry VIII powers in those two small subsections of section 4. If the Scottish Government is willing to seek consensus in amending those two subsections—I know that my colleague Liam McArthur is trying to find a solution to that with the Government—I will look forward to voting for the bill at stage 3 so that Parliament can move forward with the Government.
I have concentrated on the keeping pace power because that is what is of concern to me, and I have used this opportunity to highlight my concern. I am glad that the minister responsible for the bill is really listening to the debate—that is encouraging. However, that is only one of the five areas of concern identified by the Finance and Constitution Committee. I look forward to hearing the contributions of other members on the other four.
I call Gordon Lindhurst to speak on behalf of the Economy, Energy and Fair Work Committee.17:09
The debate is about a new, post-Brexit world, in which our committees will have new challenges. We must take time to consider our approach—but not too much time.
I am pleased to take part in the debate on behalf of the Economy, Energy and Fair Work Committee. I thank members of the Finance and Constitution Committee for their diligent work and for initiating the debate.
The Finance and Constitution Committee’s letter raised important constitutional issues; I will limit my comments to just a few of the questions that it set out. My committee highlighted three key points: consultation, transparency and time.
“I assure you that it is our desire and intention to keep the doors of consultation always and fully open. There must never be a final word between friends.”
He highlighted an important point, which is the need for consultation and transparency—and for having friends.
A key principle of the Parliament is that it should be open and encourage participation. Eisenhower was right that the doors of consultation should be open. The Economy, Energy and Fair Work Committee believes that any policy-making process, including that in areas that were previously subject to EU law, should include consultation of those the policy will affect. That is explained by the famous constitutionalist and author Montesquieu, who said:
“Pour devenir vraiment grand, il faut se tenir avec les gens, pas au-dessus d’eux.”
For the benefit of my colleague Graham Simpson, who might be listening, I will translate. Montesquieu said that, to become truly great, one must stand with people, not above them.
There should be clear and transparent processes for facilitating consultation engagement. The need to engage those who will be affected applies to many areas of post-Brexit policy making, including common frameworks. The committee expects both the UK and Scottish Governments to consult on common frameworks, and consultation responses should be published. Changes to common frameworks as a result of consultation should be made clear to lead committees, which would help them to gauge the response and plan their scrutiny.
Committees need time for scrutiny. The Economy, Energy and Fair Work Committee believes that information on and timescales for forthcoming common frameworks should be made available well before they are referred to committees.
Like most committees, the Economy, Energy and Fair Work Committee has a full work programme and requires notice to scrutinise common frameworks. The protocol that was produced for scrutinising Brexit-related subordinate legislation that is being dealt with at Westminster was helpful in setting out the parameters of scrutiny. In most cases, the timescales that the protocol set out have been adhered to. However, if common frameworks cover wider and more complex matters, adequate time must be given for proper scrutiny of them.
Our committee has liaised with its counterpart at Westminster. Time is needed to explore the possibility of joint working when that is appropriate. Some common frameworks are likely to be highly technical—many of the Brexit-related UK statutory instruments that the committee has considered fall into that category. Consideration should be given to developing a sifting process to enable committees to have a proper perspective on the scrutiny work that they carry out on frameworks.
As for resources, we note the additional work that is welling up from the increased volume of Brexit-related subordinate legislation that has been referred to the committee. I thank Scottish Parliament information centre officials for the excellent briefings that they provide on those instruments, often to challenging timescales. Increases in the work that arises from such matters for committees require proper resources.
Consultation, transparency and time are all key ingredients of good policy making and scrutiny. At this time of change, those three things should be uppermost in the minds of the UK and Scottish Governments.
I call Ruth Maguire to speak on behalf of the Equalities and Human Rights Committee.17:14
I congratulate the Finance and Constitution Committee on securing this significant debate.
Like many other committees, the Equalities and Human Rights Committee has been sighted on Brexit and how it might affect the areas in its remit since the committee was established in 2016. We have worked hard over the past four years to bottom out the issues so that we have a clearer view of what leaving the EU will mean for the protection and advancement of equal opportunities and human rights in Scotland.
Our early work identified the main risks. At the end of any transition period, the Charter of Fundamental Rights of the European Union will cease to apply across the UK. Our report “Getting Rights Right: Human Rights and the Scottish Parliament” looked at the importance of the charter. The charter brings the fundamental rights of everyone who lives in the EU into an overarching human rights framework. It includes the convention rights, some in updated form, as well as additional, specific rights that are not in the convention, such as certain social and economic rights, which the UK has agreed to guarantee either in EU law or in other international treaties.
The charter was designed to permit the development of new rights and new means of protecting rights. Those benefits will be lost when the charter can no longer be relied on in the UK courts. It is crucial that we keep up to date with human rights to ensure that they are not eroded in Scotland and that opportunities to enhance protections are grasped by the Government of the day.
Our current Government has committed to the creation of a new statutory human rights framework for Scotland in the next parliamentary session. Developments in the area will need to be closely monitored. That will require stakeholders to help the committee with the task to ensure, first, that there is no regression from rights that were previously guaranteed by membership of the European Union; secondly, that Scotland keeps pace with future rights developments in the European Union; and thirdly that leadership in human rights continues to be demonstrated.
Moving on to the equalities part of our remit, I note that being out of the EU will mean that there is no ability to seek the opinion of the European Court of Justice. It is notable that many of the decisions that have been made by the European Court of Justice have been influential in expanding and improving our equality legislation.
Equal treatment legislation has been defined as a policy area where no common framework is required. It bans discrimination and harassment in employment on the grounds of sex, race, age, disability, sexual orientation and religion or belief. It also bans discrimination in the provision of services on the grounds of sex and race, and it requires the existence of an equalities monitoring board such as the Equality and Human Rights Commission.
Many of those aspects are reserved. However, devolved competence intersects with EU equal treatment legislation through the Government’s role in acting to encourage equal opportunities. It will therefore remain a key area of work for the committee to monitor what happens at the EU level and how the Scottish Government works with the UK Government.
The committee sees a sizeable task ahead of it. Much of the Equalities and Human Rights Committee’s scrutiny of Brexit in the current and coming parliamentary sessions will focus on the keeping pace power. As such, the committee agrees that whether the Parliament should be dependent on the Scottish Government in identifying what might and might not be suitable for the keeping pace power is an important consideration. The committee asks for early engagement in the policy development process.
I will touch on two emerging issues that an Equalities and Human Rights Committee will have to grapple with—the UK internal market and trade deals. There is currently limited information on how those policy areas will affect equalities and human rights, but we note that there is potential for them to do so. Work will be required to establish the extent to which that will impact on the committee’s remit.
As other speakers have mentioned, additional work comes at a cost. Our experience when human rights was added to our remit was that stakeholders raised concerns that the committee would not cope with the increased workload and that areas of the remit could become neglected. Although we have managed that test, I do not feel so certain that the committee would cope with another increase in its workload unless additional clerking and research resources were made available. I end my contribution on that note.
I call Gillian Martin to speak on behalf of the Environment, Climate Change and Land Reform Committee.17:19
The Environment, Climate Change and Land Reform Committee has played a substantial role in the parliamentary scrutiny of EU-exit matters to date. We were the secondary committee scrutinising the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, reporting on part 1. We have undertaken a considerable degree of work on common frameworks and have scrutinised a significant number of Brexit-related statutory instruments. We considered the environmental implications of the UK Agriculture Bill and the UK Fisheries Bill, and we also considered the legislative consent memorandum for the UK Environment Bill.
That scrutiny will not end at the end of the transition period—far from it. During the committee’s evidence taking on the withdrawal bill, concerns were expressed about the opportunity for parliamentary scrutiny when the Scottish Government decides to exercise its powers and align its policies to EU law. The setting of EU environmental standards is now a policy and law-making process that does not include any involvement of UK and Scottish interests. On the whole, members believe that that process has improved environmental standards in Scotland over the years of EU membership, and that those standards are an important benchmark for the future, particularly as the UK makes its own trade deals outwith the EU.
We do not believe that it is practical or realistic for a parliamentary committee to have a role in continually monitoring the EU policy-making process within its remit. For one thing, the committee does not have sufficient capacity to forensically monitor the EU policy-making landscape. However, we recommended that the withdrawal bill be amended to require the Scottish Government to report to the Parliament regularly on developments in EU environmental law. We also recommended that the Government include information about whether it intends to use the keeping pace power to align with each development, and that, when it decides not to align, the Government should provide reasons for that decision.
It is essential for committees to have a complete understanding of how the EU-exit process impacts on the governance and constitutional landscape within their policy areas. For that to happen, we believe that the capacity within the Scottish Parliament information centre, the clerking teams and legal services should be enhanced accordingly.
The committee expressed serious concern about the impact of the Brexit process on the operation of the devolution settlement in its report on the legislative consent memorandum for the UK Environment Bill. We have subsequently outlined our serious concerns about the consequences of the proposals in the United Kingdom Internal Market Bill for the operation of the devolution settlement.
As Bruce Crawford mentioned, we have serious concerns about the emissions trading scheme framework. We had anticipated scrutinising the related framework before the end of 2020, but recent suggestions that the framework might no longer be progressed and might, in fact, be replaced by a carbon emissions tax by the UK Government are deeply worrying. That issue is a microcosm of our general serious concerns about the process of developing and agreeing UK-wide frameworks, including the fundamental issue of the views of devolved Governments and Parliaments, in effect, being ignored. Those concerns highlight the point that UK policy decisions could have a detrimental impact on devolved ambitions, particularly those relating to tackling climate change.
Other UK common frameworks seem to be nowhere near the state of completion that we would have expected by this 11th hour. We highlighted significant concerns about being asked to consider legislative elements of frameworks without having sight of the related frameworks. To date, we have very little information about the timetabling of frameworks, which makes it difficult for us to protect space in our work programme for parliamentary scrutiny.
The frameworks will have to be monitored by the Scottish Parliament well beyond the end of the transition period, and we note that any such scrutiny is likely to be very technical and complex. The committee agrees that, when aspects of a UK trade agreement relate to devolved competence, the Scottish Parliament should be able to scrutinise the Scottish Government’s position.
The committee also has a role in scrutinising the new body, environmental standards Scotland. Indeed, we met the board nominees this morning. As ESS issues improvement notices, the Parliament will need the tools to scrutinise those decisions, too.
As everyone in the chamber is aware, it takes collaboration with clerks, researchers and legal services for such issues to be adequately scrutinised by members. I put on record my thanks to the Environment, Climate Change and Land Reform Committee clerks and our researchers, who have put in a power of work to assist us through those processes and beyond.
Effective scrutiny takes a substantial amount of time. The impact of the UK’s exit from the EU represents a significant challenge to the Scottish Parliament’s scrutiny function. To meet that challenge, we must be sufficiently resourced in terms of time and expertise.
I call Joan McAlpine to speak on behalf of the Culture, Tourism, Europe and External Affairs Committee.17:24
I, too, begin by thanking Bruce Crawford and the Finance and Constitution Committee for embarking on this process, consulting other committees and securing this very important debate.
The debate is timely, with 23 days to go until we leave the regulatory framework of the customs union and the single market. In addition, there are specific arrangements for Northern Ireland, the operational detail of which is not yet entirely clear given today’s developments regarding the protocol. However, all evidence suggests that there will be a border in the Irish Sea. That the future relationship between the EU and the UK Government remains so unclear on the cusp of the transition period ending and in the middle of a global pandemic is quite astonishing.
This afternoon, I am speaking as convener of the Culture, Tourism, Europe and External Affairs Committee. The committee—with the exception of our two Conservative members—agreed our response to the letter from the convener of the Finance and Constitution Committee, and I will address the issues raised in that letter.
Membership of the European Union formed a key pillar underpinning the devolution settlements in Scotland, Wales and Northern Ireland. The process of leaving the European Union necessitates the restructuring of the territorial governance of the UK.
The European Union has an open and democratic decision-making process that allows for stakeholder engagement and relies on the democratic consent of member states and the European Parliament. The critical governance question for the UK is what similar democratic processes will be put in place post-Brexit that provide for decision making that is not confined to governmental actors.
To that end, the committee has highlighted a number of key principles—drawn from the operation of the European Union—that we consider should inform the territorial governance in the UK post-Brexit. The principles are: transparency, consent, trust and respect for existing constitutional arrangement for jurisdictions, including Scotland, that are subject to so-called internal market provisions.
As it is drafted, the United Kingdom Internal Market Bill, which is currently being considered at Westminster, will significantly constrain the exercise of devolved competences by this Parliament, with some of our witnesses pointing out that certain pieces of legislation that cover devolved areas might be impossible to enforce effectively.
In addition, the committee considers that, although the internal market bill seeks to appropriate the language of the European single market, the substance of the bill lacks the checks and balances that are central to the operation of the European single market. In particular, the bill lacks the principles of proportionality and subsidiarity as well as what are known as flanking measures, which seek to ensure that wider social, environmental and public policy objectives are able to constrain the operation of the market when appropriate. Those vital checks and balances are all absent from the UK Government’s proposals for an internal market.
The committee emphasised that robust governance mechanisms alongside opportunities for genuine debate and scrutiny—including with individuals and non-governmental actors—are essential and central to the operation of the EU single market. Those governance mechanisms are absent from the UK Government’s proposals.
The committee also highlighted the potential for trade agreements to impact on devolved competences. At present, there are very limited formal powers to scrutinise those arrangements with the UK Parliament, and there is no formal role for the Scottish Parliament.
The committee has taken evidence from trade experts, including formal international trade negotiators, who observed that the complex nature of modern trade agreements requires that legislatures and stakeholders should be engaged at an early stage—ideally before a negotiating mandate has been agreed. Expert witnesses consistently stressed that non-tariff barriers are at least as important an area of scrutiny as tariffs. That will represent a new area of scrutiny for the Scottish Parliament, and it therefore raises a series of resource challenges for the next session of Parliament.
The committee also emphasised that tracking the process of EU legislation that the Scottish Government decides to keep pace with and, indeed, not to keep pace with will also represent a significant scrutiny challenge during the next session of Parliament.
Lastly, the committee noted that the Brexit process will not conclude at the end of the transition period. In many respects, the end of transition marks only the beginning of the Brexit process. To leave with no deal might put relations between the EU and UK in a negative place in the short term. Even with a deal, there will be a substantial process of adaptation and change.
Scrutiny is on-going. The evolving relationship between the EU and the UK and the implications for the devolution settlement will be a challenge.
The Brexit process has exposed the weakness of the democratic safeguards that will operate in the UK after the regulatory framework that is provided by the EU is removed. Brexit has profound implications for the devolution settlement and the committee stresses that those are likely to be particularly acute in the months following the end of the transition period. The committee has sought to emphasise a set of principles that can underpin the devolution settlement after Brexit and which have been central to our membership of the EU. I therefore welcome the opportunity that the debate has provided to begin to explore, on a cross-committee basis, the implications of Brexit for devolution.17:31
I am grateful for the opportunity to speak as convener of the Delegated Powers and Law Reform Committee and I thank the Finance and Constitution Committee for bringing the debate.
Before I turn to what we are here to discuss, it is perhaps helpful to explain to those outwith this place, and to remind those within it, that one of the key roles of my committee is to scrutinise primary legislation, be that Scottish Government bills, members’ bills or—via legislative consent memorandums—UK bills that confer powers on the Scottish ministers. We are here to advise Parliament whether it is right to give the Scottish ministers the powers to legislate in the future—often with no end date—and, when that is appropriate, to advise what level of future scrutiny Parliament should have over the exercise of such powers.
The Delegated Powers and Law Reform Committee takes that role seriously. We are purists on scrutiny. Regardless of subject or policy, we believe that members of the Parliament must have the opportunity to scrutinise secondary legislation at the appropriate time and at the appropriate level, which must balance the amount of delegation with the practicalities of running an Administration as well as the risks of ministers—of whatever Government—being unchecked in what they do.
As Anas Sarwar said, the committee also takes pride in looking in a collegiate fashion at the questions that are posed by legislative scrutiny. All of the committee’s recommendations on the scrutiny of legislation relating to the exit from the EU were agreed unanimously. That is not to say that we do not have lively discussions; we always seek to get to the heart of an issue. Rather, it is because we have a shared desire to protect the Parliament’s scrutiny role for this and any future Government. It is in that light that I turn to the substance of the debate.
The committee has been considering UK Government bills in light of the UK departure from the EU for a number of years, from the initial European Union (Withdrawal Agreement) Bill to the current United Kingdom Internal Market Bill. The common theme in the committee’s scrutiny of each of those UK bills is that the Scottish Parliament should have the opportunity to effectively scrutinise the exercise of all legislative powers within devolved competence.
The committee also believes that, as a minimum, all powers under those bills that are exercisable by UK ministers in devolved areas should be subject to the process that is set out in the new statutory instrument protocol, which covers powers exercised by UK ministers in devolved areas arising from EU withdrawal.
This is the third protocol that the Parliament and Scottish Government have developed since the UK voted to leave the EU. The protocols have already been mentioned. Each has been jointly agreed to help ensure effective and proportionate scrutiny of legislation. Although they may not make front-page news, they have ensured some vital checks and balances in the Parliament’s scrutiny function and should be applauded.
Some earlier contributors raised the keeping pace power in the current UK Withdrawal from the European Union (Continuity) (Scotland) Bill. In its stage 1 report, the committee highlighted that primary legislation is the most appropriate vehicle for keeping pace with significant new policy developments in future EU law where those have no equivalent in retained EU law. The committee looked at the bill again today, as amended at stage 2, and will report shortly.
I am grateful for the time that I have been granted to speak in the debate. I take the opportunity to thank my past and present fellow committee members for their excellent work. Each of us on the committee wants to ensure that the Parliament continues to have a proper scrutiny role for both today and tomorrow.
We enter the open part of the debate.17:35
Clearly, in this debate we are looking at specific pieces of legislation, such as the continuity bill and the United Kingdom Internal Market Bill. We are also thinking ahead to trade negotiations with other countries as well as common frameworks within the UK, and how all those will develop over time. However, I will start with some more general points. There are wider and deeper issues to do with what Parliament’s scrutiny function means. I looked up “scrutiny” in the dictionary and it showed up definitions such as “a searching study, inquiry, or inspection”, “examination”, “a searching look” and “a close watch”.
Here we are with a minority Government, and all of us have responsibilities if we are not in government. Parliament, including the committees, must scrutinise Government, and the Scottish Government and Parliament must scrutinise the Westminster Government. Related to that is the fact that the Westminster Parliament, where we all have colleagues, should be scrutinising the Westminster Government too.
It seems to me that scrutinising does not mean automatically supporting or opposing either Government. We all have party affiliations and loyalties, but if we are to fulfil our role of scrutiny, we need to draw to some extent a distinction in our minds between our responsibilities to our parties and our responsibilities to whichever Parliament we are members of. Personally, I think that that is more important than whether we have one chamber or two chambers. Both models are perfectly acceptable means of scrutiny and there are examples of both around the world. However, we have to be prepared to scrutinise Governments even if we are in the same party as them, which will certainly include questioning and challenging them.
Moving on to some of the more specific issues that we face, I was particularly interested in the section of the Finance and Constitution Committee’s letter of 30 October on governance. It made the point that the EU has a range of institutions in place, including the European Commission and the European Court of Justice. Of course, we did not always agree with or like the decisions of those bodies, but they were broadly seen to be independent and not under the influence of one particular Government or country.
Now we have new bodies being set up, including the office of the internal market and the trade remedies authority. I remain a little unclear about what the relationship will be between the office of the internal market and the Competition and Markets Authority. Time will tell how those bodies will develop and relate to the devolved Governments and Parliaments. However, there has to be concern about how independent they will truly be and whether they will be unduly influenced by the UK Government.
We continue to have the fundamental weakness in the UK of having no written constitution and therefore there being no real way for Scotland, Wales and Northern Ireland to challenge UK Government legislation and UK institutions in the courts in the way that, in a proper federal system, the states in the US or the Länder in Germany ultimately have legal rights that the courts will protect. Our experience of UK institutions such as HM Revenue and Customs and the Office for Budget Responsibility is patchy, and it can depend on particular office-holders whether they treat devolved Administrations seriously. However, that should not depend on the good will of individuals. Solid principles and requirements need to be in place, for example for the TRA to lay its reports directly in Parliament and not just with the Scottish Government.
There was concern from a number of committees that the common frameworks should be widely consulted on and that committees, presumably in all four Parliaments, should have sufficient time to influence them before they are finalised. It certainly remains a concern of mine that informal agreements between ministers are made over the phone with minimal input from anyone else, which I think happened with the Scottish fiscal framework to some extent. That does not inherently have to be a bad thing and it can break logjams in negotiations. However, the inevitable downside of it is less scrutiny and less parliamentary involvement. The Rural Economy and Connectivity Committee response on that is good. It says:
“the introduction of common frameworks could represent a shift towards a greater degree of intergovernmental decision-making where the scrutiny role of parliaments is significantly diminished.”
I thought that the Environment, Climate Change and Land Reform Committee’s response, which shares some of its experiences, is helpful. The example that it gives of the emissions trading scheme framework is concerning and shows that there could be cases in which, although everyone is moving ahead in good faith, the UK Government might suddenly decide to take a completely different line, as is potentially the case with a carbon emissions tax. It is not so much the decision that concerns me as how it has been carried out.
In that regard, where all Parliaments are potentially, to some extent, excluded by all Governments, I think that we should be looking at doing more joint working with committees in the other three places. The Economy, Energy and Fair Work Committee mentions interacting with its counterpart committee in the House of Commons, which is good.
On trade deals, we heard evidence that the provinces in Canada are heavily involved all the way through the process, so such an approach clearly can be taken if there is a requirement and a willingness for that to happen.
Overall, this has been a helpful process. The Finance and Constitution Committee is grateful for the considered input from the other committees. Clearly, this is a topic on which we need to keep a focus in the new year and in the new Parliament.17:40
I welcome the opportunity to speak in the debate for the Scottish Conservatives.
I note that the letter from the Finance and Constitution Committee that was sent to consult committees on their views on the future scrutiny role of the Parliament was sent before the pandemic occurred. Therefore, the COVID-19 Committee that I convene has not had an opportunity to participate. Naturally, we all hope that the pandemic will be over as soon as possible, and that there will not be a long-term need for the COVID-19 Committee.
I do not speak tonight as the convener of the COVID-19 Committee. However, I want to comment briefly on the work of the committee because, in my view, it shows the strength and the ability of the Parliament to innovate when necessary in response to events.
Recently, the COVID-19 Committee has had challenges in working out exactly how it should scrutinise emergency legislation, given the timeframes of made affirmative legislation. I hope that we have reached the correct position in that we are now able to scrutinise changes in, for example, Covid restriction levels that apply nationally in the weeks that they happen.
I accept that the COVID-19 Committee’s remit has little to do with Brexit, but, as I have said, it is an example of the Parliament adapting and creating an effective scrutiny mechanism, and I commend the Scottish Government for its input into that. However, I state that it is for Parliament, not Government, to determine the correct procedures. As John Mason said, that applies as much to Westminster as it does to Holyrood, and it should be the case regardless of political affiliation.
I will try to give more general observations on the issue, having listened carefully to other members’ comments. I was especially impressed by the many measured contributions from the conveners of the subject committees. Many commented on resources. If anything, both Government and Parliament need to take away that point from the debate.
I do not intend to add much to what others have said about the politics of the UK’s exit from the EU. That is well-trodden ground, and, as Anas Sarwar said, that is not for today.
Dean Lockhart and Mike Rumbles mentioned the keeping pace issues and raised concerns about the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. Bruce Crawford made the point that following Brexit, there is no democratic input into EU policy making, and there are fewer limits on ministerial discretion. In my view, all Scottish parliamentarians should be concerned by that combination.
Members have spoken about common frameworks. In my view, there is bound to be disagreement about such frameworks. We heard from Graeme Dey and Gillian Martin about disputes over the emissions trading scheme framework. However, only this morning, the Health and Sport Committee saw an example of a common framework working well. The Scottish Government minister who was attending commended all four nations for their work on the common framework on food labelling. Common frameworks can work well, and there are examples of all the devolved Administrations co-ordinating and collaborating quickly and effectively.
Next I want to cover trade deals, which other members have mentioned. Given the terms of its convener’s letter inviting input, I know that the Finance and Constitution Committee had concerns about the role of the Government in future trade deals. Bruce Crawford made the argument that the SNP Government could
“assist the UK Government in the formulation, negotiation and implementation of policy regulating to regulation of international trade issues regarding devolved matters.”
That is a fair remark, and a number of other members, including Gillian Martin and Joan McAlpine, have made the same point in the debate. However, it must be balanced against the fact that, as a matter of law, that is a reserved area, and the UK Government has already secured new trade deals, many of which will benefit Scotland. For instance, it has signed a free trade agreement with Japan, which goes beyond Japan’s agreement with the EU, meaning that 99 per cent of UK exports will be free of tariffs. Part of that agreement included the protection of more UK geographical indicators than was previously agreed under the deal between the EU and Japan, including those protecting Scottish products such as Stornoway black pudding, Scotch beef and Shetland wool for the first time ever in Japan. In my view, that has been of indisputable benefit to Scotland.
I turn briefly to comments made by the Health and Sport Committee in its letter to the Finance and Constitution Committee, because they provide an example of day-to-day interaction between the Scottish Government and the Scottish Parliament on scrutiny. One of the Health and Sport Committee’s criticisms was about how the Scottish Government had engaged with it on the consideration of statutory instrument notifications. It said that there had been several occasions on which such notifications had led to the committee having to seek further information and clarification on what a particular instrument was trying to achieve, and it had required such additional information before the committee could take an informed decision. In addition, timescales are not set out in the protocol for scrutinising proposals. That might be a technical issue, but it is about how the scrutiny process works in reality.
I hope that the Scottish Government will take note of all the points that have been made in the debate, which has been largely consensual. There are clearly differing views on Brexit, the United Kingdom Internal Market Bill and the continuity bill, but the fact remains that in the years ahead, we will have a real challenge if the Scottish Parliament is to scrutinise the Government. I repeat my earlier point that that is for the Parliament to determine, and it is not for the Government to make such decisions.17:47
I welcome the opportunity to speak in this important debate. I was both surprised and pleased to hear Gordon Lindhurst’s reference to Montesquieu, the French liberal thinker. At first, I thought that that was down to the usual Tory obsession with barons and baronesses, but then I realised that Montesquieu is best known for his theory on the separation of powers, which is appropriate to the debate. However, it is worth noting that the Westminster establishment has never been too keen on the separation of powers. Members might recall that the Lord Chancellor was formerly both head of the judiciary and head of the House of Lords in the legislature, and also sat in the Cabinet that forms part of the Executive. The debate therefore does bear on where power should properly lie.
As the UK leaves the EU against the wishes of the overwhelming majority of people in Scotland, it is crucial that the Scottish Parliament and the other devolved legislatures should develop their roles in response to evolving circumstances, to ensure continued scrutiny of the creation and on-going operation of common frameworks in the UK, as well as on how to engage with the negotiation of any new international agreements by the UK Government.
Not many consequences of Brexit can be expected to impact on Scotland without directly affecting the devolution settlement—for example, the regrettable end of freedom of movement. Just as many areas will impact on the competences of the Scottish Parliament, such as food safety, public procurement and environmental standards. As we have heard, it is therefore right that the Scottish Parliament’s committees have considered its evolving scrutiny in the context of the impact of Brexit on devolution. The Scottish Parliament’s ability to scrutinise and either consent to or disagree with legislation proposed by the UK Government that impacts on matters devolved here is at the heart of the devolution settlement. Members will be aware of the Sewel convention, the principle of which is laid out in section 28(8) of the Scotland Act 1998, which states that
“it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
Members will also be aware that, during the passage of the European Union (Withdrawal) Bill, the UK Government sought the Scottish Parliament’s consent, in line with the Sewel convention, and they will recall that the Scottish Parliament voted overwhelmingly to refuse such consent. The UK Government then took an unprecedented decision and, for the first time since devolution, chose to continue with the bill and legislate for matters within or affecting the responsibilities of the Scottish Parliament without its agreement.
Since then, this Parliament has also refused consent for the internal market bill; again, the UK Government has turned its back on the Sewel convention in a move that can be seen only as an attack on devolution. It is a move that will allow Westminster to undermine democratic decisions made by this Parliament, which could force Scotland to accept standards set by Westminster in devolved policy areas such as public health measures, the environment and food safety—a move that even the House of Lords could not condone.
It is worth remembering that back in 2014, we were told that this would be the most powerful devolved Parliament in the world. Then we saw Lord Keen arguing in the Supreme Court that the Sewel convention was merely a self-denying ordinance. As we have heard from the committee conveners, committees of this Parliament have identified a number of areas worthy of note. I am particularly drawn to the principles that the Culture, Tourism, Europe and External Affairs Committee feels should underpin governance in the UK post-Brexit: transparency, consent, trust and respect for existing constitutional arrangements for jurisdictions that are subject to internal market provisions. That is certainly not what the UK Government has demonstrated thus far.
The submissions from committees highlighted several common areas such as monitoring EU developments in devolved policy areas, which may or may not be kept pace with. Given that such monitoring has previously been done at the UK level, there was a consensus that that would be a challenging task, which the Parliament and its committees would not currently have the capacity to perform, and on the importance of building in sufficient time for parliamentary scrutiny and wider engagement with stakeholders and those affected by the policy proposals in question. That would also be challenging, given what are already very busy workloads.
Increased workloads could be expected for colleagues in clerking teams, SPICe and legal services as a result of the consequences of Brexit, and Bruce Crawford quite rightly made the point that resources need to be made available to support the requirement for increased scrutiny. Those are resources not just for members of this Parliament but for those who support the work of the Parliament. It is important that the Parliament takes that point on board as soon as possible.
The content and operation of any common frameworks or trade agreements will undoubtedly have important implications for Scotland. The crucial point is that they should not be imposed. Respect for the fact that different Parliaments have different powers should be what underlies the approach in all the different Parliaments and legislatures across the UK. Agreements must be developed in partnership and agreed on. It is vital that this Parliament is fully involved and has a strong and effective scrutiny role to ensure that we work in the interests of Scotland, as well as the interests of those other Parliaments, when we are talking about their powers.17:52
The issue that has been brought before us by the Finance and Constitution Committee is that of scrutiny for devolution powers post-Brexit, and there can be no doubt that the massive transfer of powers that will take place is going to transform the devolution landscape. In that respect, it is absolutely crucial that there is a proper and constructive working relationship between the UK and Scottish Governments. In my speech, I will argue that both have more work to do. I will draw on two legislative examples and make two political points.
On the legislation aspect, substantial reference has been made to the United Kingdom Internal Market Bill throughout the debate. There are two particular problems with the bill in terms of the Tory Government’s approach to the Scottish Parliament. First, by setting up an office for the internal market to, in effect, dictate standards throughout the different devolution aspects of the United Kingdom, it overrides some of the powers of the Parliament and does not respect the views of different parts of the UK. The other problem is that there is no proper arbitration process to settle disputes. Clearly, with the significant transfer of powers that we are going to see, there will be disputes and disagreements, but no other format of settling those disputes has been set in the United Kingdom Internal Market Bill. As long as that situation continues, we will have serious problems.
As Mike Rumbles highlighted, in the continuity bill that the Government has introduced in the Parliament, there is a problem with the balance between the powers that are conferred on ministers and the powers of the Parliament vis-à-vis committees. There needs to be redress in that regard. A number of the committee conveners have made important points not only about resources for committees but about how the Government interacts with them. For that process to work, there needs to be greater interaction.
Turning to the wider political points, the Tories have run into real difficulty in their approach to devolution. They have been on a journey on devolution. Obviously, their party opposed it and the setting up of the Scottish Parliament, but, to be fair, I have seen many Conservative MSPs make genuine and sincere speeches in support of the Scottish Parliament and devolution. However, recently, that was trashed by Boris Johnson’s comments that he regards devolution as a “disaster”. I understand that he made the comments on a Zoom call. There is no doubt that, after that, he will be known as Zoomer Johnson, because he basically threw the Scottish Tories under a bus. All the work that the Scottish Conservatives have genuinely done to interact with the devolution process has been trashed. That will tarnish and damage the Scottish Conservatives in the coming period.
On the subject of this afternoon’s debate, which is parliamentary scrutiny, the minister, Graeme Dey, said at the start that
“there is nothing more central to the role of a Parliament”.
John Mason said that he looked up the word “scrutiny” in a dictionary before the debate to learn a bit about it. I suggest that the Government needs to look more into what “scrutiny” means, given its recent attitude.
During the pandemic, the Presiding Officer has, at times, had to intervene because statements that should have been made in the Parliament have been made outwith it in press conferences. The Parliament has not been given its proper place and has been treated with disrespect.
Allied to that, in relation to the Alex Salmond inquiry, we have twice had debates recently in which we have requested that legal advice be provided by the Government and, twice, the Government has not accepted a vote in Parliament. If the Government is going to have that attitude to scrutiny, instead of coming to such debates, we would all be better just going for a run round Holyrood park. The Government needs to learn more and work more stringently on that.
To sum up, there are big issues for scrutiny post-Brexit. The UK Government has to do a lot to repair the damage of Boris Johnson’s comments and the United Kingdom Internal Market Bill. The Scottish Government needs to be more serious if it wants us to believe that it is truly interested in scrutiny.17:58
I am pleased to see from what is on show today that the Parliament and its committees evidently continue to have such a healthy and positive interest in scrutiny. Since the Parliament reconvened in 1999, after its unduly long adjournment, it has had to adjust its working practices and scrutiny mechanisms to cope with many new external realities. However, in all that time, perhaps nothing has represented the kind of threat to the Parliament and its powers that the United Kingdom Internal Market Bill represents.
That is one reason why it is right that the Finance and Constitution Committee has been working with the other committees that we have heard from today to look at the impact of Brexit on devolution and at what I think is the inseparable issue of why the Scottish Parliament and, more importantly, Scotland need the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.
The continuity bill does not pretend bravely that Brexit has somehow not really happened and that it was all just a very bad dream; it starts from the sober realisation that the people of Scotland’s views on Brexit, as on so many other issues, feature only marginally in the thinking of the UK Government. The Scottish Government’s approach to that situation also recognises that almost anything could still happen in the Brexit talks that are currently under way in Brussels. We all realise that it could still be just 23 sleeps till a no-deal Brexit, a prospect that some in the UK Government seem to have been open to—indeed, perhaps festive about—at various stages in recent weeks, despite all that it would mean for our economy in the midst of a global pandemic.
Faced with all those issues and threats, the continuity bill seeks to give the Parliament the ability not just to scrutinise the huge changes before us—important as that ability is—but to ensure a continuity of provision that would otherwise be lost on withdrawal from the EU. At its most basic, it would guarantee that, after new year’s day, those devolved areas that were previously subject to EU regulation will continue to be regulated on and scrutinised in Scotland as a matter of stable, good governance.
Secondly, in those parts of the law where the subject matter might pertain to an area within devolved competence, the bill offers the Parliament the chance to ensure that EU law is kept pace with if that is the Parliament’s wish. In my view, such a power to adopt EU measures is the best way to ensure that we have the on-going productive relationship with Europe that our businesses want and to maintain the high environmental standards that our farming and other industries demand.
As with the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, which was passed by the Parliament but blocked by the UK Government, the bill contains a power for the Scottish ministers—with the Parliament’s approval—to align devolved Scots law with laws in the EU. It will also help us to live up to our commitments on the environment, as others have pointed out, regardless of what pressures might come from elsewhere for us to do otherwise.
All that said, the Finance and Constitution Committee and the Environment, Climate Change and Land Reform Committee have highlighted their concerns about the way in which the United Kingdom Internal Market Bill will seek to impact on not just the continuity bill but the Parliament’s ability to scrutinise legislation.
Therefore, in my view—and I am far from alone in believing this—it is important that the Scottish Parliament is in the driving seat on the debate ahead of us in the context of Europe. We are certainly now in uncharted waters. The Parliament must contend with a Prime Minister who is on record as saying that it matters not one jot to him what the Scottish Parliament has to say; who claims, rather intriguingly, that he believes that Scotland does not have a border; who says that public money is best not spent in Strathclyde; and who describes the very idea of devolution as a “disaster”.
That is not a Prime Minister with whom this Parliament can easily do business, but we will try, and the committee’s efforts, which we are considering today, are an attempt to do so under very trying circumstances.18:03
I welcome the opportunity to speak in this afternoon’s debate on the impact of Brexit on the devolution settlement. As our relationship with the European Union is set to change, which in turn will change how the Scottish Parliament will function in the years to come, it is right and proper that Parliament considers the issue carefully. Therefore, I would like to thank the Finance and Constitution Committee for reaching out to other committees to seek their views, and for bringing the debate to the chamber.
That said, as we look ahead to the future and envisage what kind of role we want the Scottish Parliament to play in holding the Government of the day to account, it is important that we first take a step back to ascertain how we got here. As with the current circumstances relating to Brexit, the 2014 independence referendum debate was a time when change was looming with regard to how the Scottish Parliament would function.
Prior to that referendum, the Scottish Conservatives launched our plans for making the Scottish Parliament one of the most powerful devolved legislatures anywhere in the world—as it rightfully should be. From among the other pro-Union parties, we put our head above the parapet and made a loud and clear case that unprecedented powers over tax and welfare should be devolved to the Scottish Parliament. A powerful energised and confident Scottish Parliament, supported by the broader framework of the United Kingdom, is the guiding principle that we followed, and continue to follow to this day.
As we now prepare to exit the European Union, the functions of the Scottish Parliament are set to change once again, and it is my firm belief that they will change for the better. As parliamentarians, we should recognise this as another excellent opportunity for the Scottish Parliament to grow and mature even further, as its powers are set to strengthen and expand once again, as we leave the European Union.
As we are set to leave the Brexit transition period at the end of the month, a raft of significant powers, which for years have been held and controlled by the European Union, will flow to the Scottish Parliament. Significant areas of policy—from land use to animal welfare to air quality—are well on their way to the Scottish Parliament, where we, as MSPs, can properly debate ideas, challenge opinions and scrutinise Scottish Government policy on such important matters. We can do so in the knowledge that we can, by being able to make policy in those areas, change things for the better and make a positive difference to the lives of people across Scotland.
Despite the noise—the same old rhetoric and talk of a power grab from the usual suspects—let us not forget that not one single power will be taken away from the Scottish Parliament. Indeed, quite the opposite will be the case. The faux outcry from others is completely devoid of logic and reeks of hypocrisy. Although the SNP is highly vocal and complains about the Internal Market Bill being a power grab from the Scottish Parliament by the UK Government, what is its proposed solution? As far as I understand it, it is simply to give those powers back to the EU and let it decide how to make laws in vital areas that impact Scots day to day. In that scenario, the Scottish Parliament and its MSPs would not get a look-in, because it would be up to the EU to develop policy in a wide range of areas, some of which I have mentioned.
Let us take fisheries, for example. The SNP has made no secret of the fact that it would reject any new deal agreed by the UK Government and the member states of the EU, and would move to vote against it. Putting its position about not backing any deal whatsoever to one side, what kind of message does it think that sends to our fishermen and Scotland’s coastal communities, who have for decades been required to abide by, and face the adverse consequences of, the EU’s common fisheries policy? That is why I remain genuinely dismayed by the SNP’s current position on the matter.
The SNP seems to be complaining about the UK Government taking powers from the Scottish Parliament, although it would happily give those same powers to the EU in a heartbeat. With all the new powers that are coming to the Scottish Parliament, it is vital that we remember that MSPs will have the power to directly influence and change policy in those areas, where we see fit. I am afraid that we simply would not be able to do that as a member of the European Union.
As I mentioned, I welcome the fact that we are having the debate because it is, of course, right that we, as MSPs, discuss the impact of the UK’s withdrawal from the EU on the workings of the Scottish Parliament. However, Conservative members urge Parliament to be positive about the forthcoming changes, because they will take the Scottish Parliament to the next level by providing it with new and unprecedented powers to wield as it sees fit.18:08
Three key themes have emerged from today’s debate and from the committees’ letters and the report. They are the role of Parliament, accountability of ministers, and the processes for keeping pace and the role of ministers and Parliament in choosing whether to keep pace.
There is broad consensus on the role of committees and the need to beef them up. They need time to scrutinise and, in order for them to be able to do that work well, they need resources for supporting staff, including clerks, Scottish Parliament information centre staff and legal support staff. Gordon Lindhurst summed it up as
“consultation, transparency and time”.
Ruth Maguire and Gillian Martin both reflected that they do not believe that our committees are currently adequately resourced or ready to take up that role, and I agree.
On accountability for ministers, there is no doubt that the Executive and ministers are going to gain significant new powers from the process, as has been noted by a number of colleagues, including Dean Lockhart. As Patrick Harvie said, there is a challenge about how we strike the right balance of power between the Parliament and the Executive, to make sure that the Parliament is prime and that it, not the Government, decides on the level of scrutiny. How we have that Parliamentary accountability built in to our processes is, I think, absolutely crucial.
On keeping pace, I think that it was Mike Rumbles who said that we have to get the balance right. Again, it is for the Parliament to be at the forefront of that, not the Government.
Many members, including Bill Bowman and Joan McAlpine, referred to the importance of the checks and balances that should come from Parliament. I echo what Bruce Crawford said at the start of the debate—that checks and balances are not about the parliamentarians who are currently in the chamber; they are for the parliamentarians of future Parliaments.
As Donald Cameron reflected, it is for the Parliament to decide not only what scrutiny looks like, but what the process for that scrutiny is.
Keith Brown raised a point about the imposition of laws on Scotland. Of course, he was referring to that imposition coming from Westminster. I agree that there should be no imposition of laws on Scotland; however, I would be careful that that includes inadvertent imposition of laws from the EU through the powers. We need to guard against that.
There is a significant new role for the Scottish Government in monitoring EU policy developments. How that is done will be important. At the moment, it is up to ministers whether to choose to keep pace. We need greater clarity on the roles of committees and Parliament in that process. We must have democratic accountability, so beefing up the committees will be absolutely crucial.
I will finish by giving credit to James Kelly for coming up with the “Zoomer Johnson” line, although he is probably not the first person to have used it. James Kelly was, of course, right to say that the attack on devolution by the Prime Minister—at the very least, the words that were spoken—was gravely wrong. That attack has been rightly condemned by members across the Parliament. The Prime Minister is not a natural supporter of devolution.
However, we should also accept that independence is not devolution, either: it is a separate process. Those who are proudly supportive of devolution have to speak out and speak up for it.
The fundamental point that has been made in the debate today is that there has to be primacy for Parliament when it comes to accountability and transparency. Regardless of our party, or of which party is in Government, it is in our collective interest to come together to decide how that primacy works in practice.
I call Alexander Burnett to wind up for the Conservative Party.18:13
Care homes, small business support, national health service waiting times, tourism support and green energy targets are all issues that, I think, we would all rather find ourselves talking about today. I have noted before my frustration at having to debate constitutional points when we should be focusing on protecting jobs, supporting businesses and boosting trade.
As my colleagues have noted, when the UK leaves the EU, Holyrood will become the most powerful devolved Parliament in the world, with 111 extra powers coming to the Scottish Parliament. Despite what the SNP falsely claims, not a single power will be removed from the Scottish Parliament. We will experience a power surge to Scotland, but the SNP wants instead to hand those powers back to the EU by rejoining the hated common fisheries policy.
The UK Government has introduced a bill to protect the UK internal market and strengthen the Scottish Parliament, yet the SNP has withdrawn and has refused to work on that bill for more than a year. I am not sure how that approach stands up to any scrutiny. Michael Gove rightly said that that completely threatens
“our common frameworks programme ... As we cautiously emerge from coronavirus and focus on our country’s recovery, we will consider how to bring people in the UK closer together, not put up more barriers.”
It is not just the UK Government that is asking the SNP to work with it. Business groups have done so, too. Carolyn Fairbairn, director general of the Confederation of British Industry, said:
“Preserving the integrity of the internal single market—the economic glue binding our four nations—is essential to guard against any additional costs or barriers to doing business between different parts of the UK.”
Even Mike Russell, in 2018, admitted the need for common frameworks across the UK, and the SNP’s white paper on separation said that the UK internal market is vital, noting that
“It will be in the interests of both countries for there to be an integrated market across Scotland and the rest of the UK.”
Why, then, is the SNP no longer working in the best interests of Scotland? What does it have to hide, apart from the £92 million that was given to it to prepare? It has refused to show how that money has been spent. On 1 November, Michael Gove wrote to the cabinet secretary to seek clarification, but he got no detail from Mike Russell.
It is disappointing that our SNP Government is choosing to play petty politics with the constitution, risking the more than half a million Scottish jobs that are linked to trade with the rest of the United Kingdom. That is what is at stake here. We are talking about 60 per cent of our trade, worth more than £50 billion. We owe it to the people of Scotland to protect those close economic ties and the jobs that rely on them. If the SNP keeps up its petty grievance with the UK Government, businesses and consumers in Scotland will suffer.
After a horrendous year in which thousands of people have lost their loved ones, watched their businesses disappear and struggled to make ends meet, the people of Scotland are desperate for some support from their Scottish Government. I can only hope that in May, they will have a new Government that will be willing to provide that support.
On a point of order, Presiding Officer.
I know that we are not able to make points of order when people are speaking from home via the virtual process, but during that speech there was not one occasion when the member mentioned parliamentary scrutiny of the Government here or in Westminster. I hope that you will raise that with him, because I think that it would be appropriate to do so.
Thank you, Mr Crawford. Your point is noted. I think that the member suffered from not being present in the chamber. However, he referred to some of the comments in the debate, and in that context what he said was relatively appropriate. Your comments are on the record and I am sure that they will be noted.18:17
What will stick in my memory of this debate is that not one but two members—Bill Bowman and Keith Brown—mentioned Montesquieu.
Montesquieu talked about the separation of powers, which is where I want to start. We are discussing the separation of powers, and we have to have some clarity about that and about all the different roles in this Parliament and our democracy. There has to be agreement on the respective spheres in which we work.
I must take issue with my friend Donald Cameron, who said that it is not up to the Scottish Government to make proposals on these matters. If he looks at the coronavirus legislation, he will see that it was precisely up to the Scottish Government to make proposals on those matters. I think that he meant to say that it is not up to the Scottish Government to decide on these matters; it is for all of us, as members of this Parliament, to decide what is the right level of scrutiny and how it should operate. That is the issue that many members addressed this afternoon, and they addressed it well—I have a caveat, though, which I will come to in a minute.
I want to commend some speeches, and I will start with that of Mike Rumbles. It is so unusual for me to commend Mike Rumbles that this should be a red-letter day. I disagree with him on a single, profound issue in this debate, which is his point about making the use of primary legislation the norm when taking on regulations from the EU. However, I have offered to discuss the matter with Mr Rumbles and I will be happy to do so, to see whether we can find a suitable definition that narrows down what he wishes in relation to areas of significant or major change.
I am heartened by what the cabinet secretary just said. There is a slight misunderstanding. He is not disagreeing with me at all. I am not calling for the use of primary legislation to be the standard practice; I am calling for its use when major changes to the law are being considered. I will take him up on his offer to talk the matter through.
Good, and I hope that we can get an agreement on that because we are endeavouring to get agreement on how to take forward the wider issue of the continuity bill. It is not a question of the Scottish Government simply saying, “This is how we’re going to do it.” In fact, tomorrow morning, I have a meeting with four MSPs from different parties about how to find the right way to put issues into the bill. We will go on in that way, and I hope that, in the end, Mr Rumbles and I can come to a conclusion.
Scrutiny is, of course, about securing good governance; it is not about replacing governance. Despite what we heard in unfortunate contributions from two Conservatives, scrutiny is not only about politics; it is also about ensuring that politics does not get in the way of good governance. We have to recognise that, as we look at scrutiny and how it operates across the Parliament.
Scrutiny is also indivisible from the wider issues of how we operate. Patrick Harvie was absolutely right about that. Scrutiny cannot be separated from the power structures; nor can it be separated from the powers that we hold. I want to come to one of those powers in a moment, because I and Bruce Crawford are as one on a major issue here.
However, I say to the Conservatives that these issues are inseparable. They cannot defend scrutiny here but reject it elsewhere. For example, on the issues that are being discussed in the internal market bill, they are trying to take powers away, while here they are suggesting that scrutiny is required more than we believe that it is.
Scrutiny is also a function of democracy. The Conservatives cannot promote democracy in this chamber and deny it elsewhere, in the way that they are denying the people of Scotland the right to say how they wish to be governed.
As Ruth Maguire said, scrutiny is also about human rights—it is about wider issues. The UK Conservative Government is trying to suppress those rights, for example in relation to the European convention on human rights. It is trying to stop scrutiny happening in judicial review. I want to see consistency on the matter.
Anas Sarwar and James Kelly raised the issue of belief in devolution. If there is genuine belief in the Scottish Parliament, the Conservatives should operate as if they believe in it and want it to work; they cannot have one thing elsewhere and another thing here. The Conservatives cannot measure up standards to suit them here that do not suit them elsewhere.
I come to a point that Bruce Crawford made. There was extensive discussion in the previous session of Parliament about resources for committees and, in particular, about how we can develop the ability of members to specialise and understand key issues. That was a big debate, which was connected with the question whether conveners should be paid and whether the number of committees should be reduced. That issue remains at the conclusion of this session of Parliament. Scrutiny would and could be at its most effective if we recognised those linkages. I give the examples of the way in which members are pulled so far apart by trying to be on two or three committees that they cannot specialise and the resources that members need to challenge legislation in a well-informed way. I know, both as a minister and having been on a committee and dealt with legislation on occasion, that ministers are massively better resourced when it comes to legislation than members are. That should not be the case. We should be able to address that.
Equally, if we are going to build a Parliament as a Parliament—and I hope that we build it with all the powers of a normal Parliament—we have to build the ability of individual members not just to hold the Government to account but to contribute to the wider issue of scrutiny, which means that we all scrutinise one another in our desire to ensure that the governance of Scotland is as good as it possibly can be. That is the big issue. Regrettably, it has not been resolved in this session of Parliament; it really needs to be resolved in the next one.18:23
I am pleased to close this important debate on behalf of the Finance and Constitution Committee. Although the committee has been considering the impact of Brexit on the devolution settlement for some time, it has been interesting to hear the views of other committees, given that the issue will impact on all the remits to some extent. I appreciate the views that have been expressed by not only committee conveners, but other representatives.
Inevitably, in a debate in which the word Brexit appears, there was always going to be some party political comment, and that is entirely understandable. Given that I am responding on behalf of the committee, I am sadly constrained in responding to any of those comments. Anas Sarwar put it well earlier, when he said that we should all be able to unite around the debate, because it is a discussion on how the Parliament should function. I will concentrate my closing remarks on those aspects, rather than on the party political comments that were made by all sides.
It is clear, both from responses to the committee’s letter and from the debate, that three key areas are giving cause for concern. First, there is the question of who will undertake the monitoring of relevant EU policy developments to inform decisions whether to keep pace with them, where appropriate. That question arises as a result of the continuity bill, which is expected to complete its parliamentary passage before the Christmas break. That issue was referred to by a number of the conveners who spoke, including Ruth Maguire on behalf of the Equalities and Human Rights Committee, Gillian Martin on behalf of the ECCLR Committee and Joan McAlpine on behalf of the Culture, Tourism, Europe and External Affairs Committee. Monitoring will be a challenging task—Gillian Martin made that point fairly—because, particularly in relation to the environment, a huge amount of policy will come out of the EU that we will need to keep track of.
The key question is who will decide whether to keep pace with specific policy developments. Some committees have suggested that the Scottish Government should be required to report on the use of the power and, perhaps more important, on the reasons underpinning its decisions. It has also been suggested that the Parliament and its committees should have a role in such decisions, and our stage 1 report welcomed the cabinet secretary’s commitment to working with the Parliament to agree a decision-making framework for future alignment with EU law. It is essential that the Parliament gives serious consideration to the level of scrutiny of the keeping pace power that would be both appropriate and proportionate—Bill Bowman made that point in his contribution on behalf of the Delegated Powers and Law Reform Committee. I look forward to greater clarity being provided on those matters when the continuity bill is considered at stage 3 in a couple of weeks’ time.
The second overarching point relates to the need for sufficient time for parliamentary scrutiny and engagement and consultation with those stakeholders who will be most affected by the decisions. That point was made by Gordon Lindhurst on behalf of the Economy, Energy and Fair Work Committee in a contribution that was made at least partly in French—and it sounded like fluent French to me. The point is particularly important in respect of common frameworks, which the Finance and Constitution Committee has previously recommended should be agreed between devolved Administrations and the UK Government. However, it is equally important that common frameworks are not in effect imposed on the Parliament and stakeholders without meaningful consultation and an opportunity to discuss or propose amendments. I hope that both of Scotland’s Governments will reflect on those points and seek to build sufficient time into the process for meaningful parliamentary scrutiny—for example, how might amendments be dealt with in what is essentially an intergovernmental process? We need to consider that more carefully.
My third and final point has also been highlighted by several committees and it is about the impact of increased workloads on committees’ already busy work programmes; Ruth Maguire highlighted that on behalf of her committee. Much of the work will be complex and technical in nature and will involve topics to which the Scottish Parliament has given limited scrutiny to date because they have been matters reserved to the EU. Questions have been asked and raised about the Parliament’s capacity to undertake that additional work in tandem with our usual legislative and inquiry-driven functions and whether resources should be reprioritised accordingly. I expect that the Finance and Constitution Committee will return to that subject in our scrutiny of the Scottish Parliamentary Corporate Body’s budget submission for 2021-22. I believe that we are taking evidence from the SPCB on that subject next week. The issue was acknowledged at the start of the debate by the Minister for Parliamentary Business and Veterans, and all other speakers acknowledged it, too.
I agree with the remarks made by Michael Russell in his closing speech. Those are not words that I utter often in the chamber, but his comments about support for committees around legislation were very well made. As committee members, we have all had the experience of sitting in a stage 2 bill debate when our carefully crafted amendments, which have been prepared with help from the Parliament’s legislation team, have been gaily dismissed by the relevant minister as being poorly drafted or not doing what was intended. Ministers benefit from the back-up of civil servants in drafting their amendments; perhaps we should reflect on giving non-ministerial members similar back-up, so that our amendments are just as credible and capable as those of ministers are.
In the time that has been available, I have touched only briefly on the topics that have been raised, but the debate has certainly provided valuable food for thought. I thank again all who contributed and I look forward to returning to the topics in due course.