Meeting date: Wednesday, March 21, 2018
Meeting of the Parliament 21 March 2018
Agenda: Business Motion, United Nations International Day for the Elimination of Racial Discrimination, Portfolio Question Time, UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill: Stage 3, UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, Business Motions, Parliamentary Bureau Motions, Decision Time
- Business Motion
- United Nations International Day for the Elimination of Racial Discrimination
- Portfolio Question Time
- UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill: Stage 3
- UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill
- Business Motions
- Parliamentary Bureau Motions
- Decision Time
UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill
The next item of business is a debate on motion S5M-11136, in the name of Michael Russell, on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill at stage 3.
I call the Deputy First Minister to signify Crown consent to the bill.
For the purposes of rule 9.11 of the standing orders, I advise the Parliament that Her Majesty, having been informed of the purport of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, has consented to place her prerogative and interests, in so far as they are affected by the bill, at the disposal of the Parliament for the purposes of the bill.
I call Michael Russell to speak to and move the motion.18:23
On 27 February, which seems like an impossibly long time ago now, I came to the chamber to set out the Government’s reasons for introducing the bill. In the three weeks and one day since then, the bill has been scrutinised by five committees of the Parliament. More than 230 amendments were considered at stage 2 during not one but two unprecedented evening committee sessions. The amount of time that was spent at stage 2 was longer than the time spent on the Social Security (Scotland) Bill, for example. We have just considered a further 65 amendments at stage 3. We are now here—I am sorry—for a further evening session to pass the bill on the timetable that was set out by the Parliament on 1 March.
In our pre-stage 2 debate—another procedural innovation—I said that the Parliament had risen to the occasion, and I repeat that sentiment this evening. I put on record the Government’s appreciation of the efforts of many people who have brought the bill to a successful conclusion.
Let me start with the Parliament’s staff—those in the chamber office, and the clerks to various committees who organised evidence sessions at short notice, and who received and processed the amendments at stages 2 and 3. The team at the Finance and Constitution Committee did an outstanding job in guiding the committee and other members through the complexities of the stage 2 amendments. We all owe a particular debt to the convener, my good friend Bruce Crawford, for his absolutely masterful chairing.
I record my appreciation of those involved in the logistics: the security staff; catering; the official report; television and audio teams; and other facilities staff who are necessary to make the chamber work. All of them rose magnificently to the occasion, including the management of the Parliament, under the clerk, Sir Paul Grice.
Finally, I thank other members for their contributions. We are all aware of the unusual features of the legislation and the procedure. Members have ensured that both were tested to ensure that they were justified, sometimes using a great deal of imagination or what one might even call ingenuity. The bill that has emerged is improved as a result of all our efforts.
I remind members of why the bill is necessary. Nine months ago, the United Kingdom Government introduced a bill that would directly affect the competence of the Parliament and the Scottish Government. In effect, that bill sought to turn back the clock to 1973, and to allow the UK Government—and it alone—to redesign devolution as if the UK had never been in the European Union or the common market or the European Community. I will leave aside the difficulty of travelling in time. As the late Stephen Hawking observed:
“If time travel is possible, where are the tourists from the future?”
However, it was clear from the outset that that provision was never going to get the agreement of any devolved Administration worth its salt. To quote the unanimous view of the Finance and Constitution Committee, it was obviously
“incompatible with the devolution settlement in Scotland”.
That was also true in Wales, where our colleagues in the Welsh Government and Welsh Assembly took a similarly robust view of the UK Government’s proposals. Indeed, one of the features of this process has been the close working of the Welsh and Scottish Governments—I pay particular tribute to my colleague Mark Drakeford—and members of their Parliament and Assembly, and indeed members and peers at Westminster from across political parties. All have sought to address the concerns about devolution that have been raised by the UK bill.
However, despite the almost unanimous calls for change to respect the principles of devolution, the UK Government has yet to agree amendments that could get the consent of this Parliament or the Welsh Assembly. Hence our alternatives—the continuity bills. Our bill will ensure that Scots law continues to operate effectively following withdrawal should the Parliament be unable to consent to many provisions of the UK’s bill.
We now invite Parliament to pass the bill this evening, in parallel with our colleagues in the Welsh Assembly, whose bill is completing its parliamentary stages as I speak. It has, indeed, just gone into stage 4, although I am not proposing that we have a stage 4. In fact, I understand that the Welsh bill has been passed in the last few minutes.
In asking Parliament to support the bill, I emphasise what the Government has made clear from the outset: our aim remains to reach agreement to satisfactory changes to the UK bill. That would be the best path because it is desirable to have the relevant powers all in the same place. Also, and perhaps more important, reaching agreement would send an important signal. It would show that devolution will be properly respected. It would acknowledge the constitution under which we live. It would show that the different Governments of the UK can sit down and negotiate to reach a mutually acceptable outcome, and we have been trying to do so. It would show that this way of doing business, rather than imposition, should be the norm no matter the political composition of the Governments or their constitutional preferences.
I remain hopeful that an agreement can be reached. The First Minister, the Deputy First Minister and I have all made clear that that is our firm objective and we will do our very best to achieve it. However, passing the bill will be an important sign that Parliament is resolute in defending devolution and serious in its consideration of the issues at stake, and it will give us an important alternative in the negotiations that remain ahead of us.
As the minister knows, there are grave doubts about the legislative competence of the bill. In order to clarify and clear up those doubts authoritatively—that can happen only in the UK Supreme Court—will he undertake that the Lord Advocate will refer the provisions of the bill to the UK Supreme Court for a definitive ruling on its legislative competence?
The Scottish Government, of which the Lord Advocate is a member, has no grave doubts. It has no doubt that the bill is competent. That is absolutely clear to us. There is no need to challenge the bill in the Supreme Court. The right way ahead for any part of these islands is to accept the democratic will of the chamber, if the bill is passed this evening, and then to work closely together, Government to Government, either to ensure that we have an agreement between Wales, Scotland, the UK and possibly Northern Ireland, should it have a working Assembly, or to allow the bills to operate in parallel and for the UK Government to withdraw those sections of its bill that do not get legislative consent. That is the clear, democratic way forward. I urge that clear, democratic way forward on all the Governments of these islands.
That the Parliament agrees that the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill be passed.18:29
I open on a point of consensus—like my friend and colleague Murdo Fraser, I am always looking for consensus. On behalf of the Scottish Conservatives, I echo the remarks that the minister correctly made in thanking the Parliament and its staff for rising to the significant challenge of legislating in the absurdly restricted amount of time that the Government made available for the bill.
Parliament rose to the challenge successfully at stage 2, but perhaps did so a little less successfully at stage 3. This afternoon we heard about a number of disturbing incidents. We have had amendments that appeared to have been agreed with the Government but which turned out not to do what was promised. There have been very serious allegations of Government ministers “strong-arming” members of a key scrutiny committee in this Parliament. Those allegations will, no doubt, be for others to investigate, but whatever the full picture, those and other related incidents serve only to reinforce the core point that we made about this bill when it was introduced: it is bad law, which we have been asked to make badly.
The bill is unwelcome and unnecessary. We have resisted it at every stage of its process and we will vote against it tonight. The first reason for that is that there are grave doubts about its legislative competence. Mr Russell’s response to my question a few minutes ago was extraordinary. Competence is not a question of democracy; it is a question of legality, and the only place that can rule authoritatively on the legality of this legislation is the United Kingdom Supreme Court.
Will the member give way?
The Lord Advocate should have the courage of his legal convictions and he should use his powers under the Scotland Act 1998 to refer the provisions of the bill to the Supreme Court. [Interruption.]
Please sit down, Mr Swinney.
First, there is the point about its compatibility with European law, which is the point that the Presiding Officer wrote about in his opinion on legislative competence. In addition, section 33 of the bill modifies protected statutes contrary to schedule 4 to the Scotland Act 1998. That is unlawful.
The bill trespasses on reserved matters contrary to schedule 5 to the Scotland Act 1998, such as in section 17 and in the amendment in the name of Mr McKee that was agreed to this afternoon; that is just one of the reasons why that amendment should have been strongly resisted.
The Scottish Government likes to talk about respecting the devolution settlement, but wilfully enacting law in this Parliament that is beyond the limits of our legislative competence does not respect the devolution settlement. That is not respecting the rule of law; it is not respecting the British constitution; and it is not respecting the devolution settlement.
Does Mr Tomkins not accept that for the Scottish Government to present the bill to Parliament, we would have had to seek the authority of the Lord Advocate—Scotland’s principal law officer—before we could introduce it, in order to certify its legislative competence? The Government sought and secured that from the Lord Advocate.
Of course I accept that. That is a matter of fact, as Mr Swinney well knows, but there is more than one legal opinion about this. There is also the legal opinion of the Presiding Officer. There are also the points that lawyers who have scrutinised the bill during its rushed, reckless passage through the Parliament have identified, including those that I have just mentioned. The only place where the matter can be authoritatively determined is the United Kingdom Supreme Court. Any Lord Advocate who was really confident about his opinion that these provisions are within competence would have no hesitation but to refer them to the Supreme Court for a ruling.
The bill is known informally as the continuity bill, but its real purpose, which has been exposed time and again during the rushed proceedings, is not continuity; its real purpose is to sow the seeds of division within the United Kingdom. Its real purpose is to create legal chaos and legal confusion. That was revealed even in the Government’s policy memorandum accompanying the bill, paragraph 20 of which states that the bill will “add to the complexity” of Brexit. In the same paragraph, it says that the bill will “present serious logistical challenges”. That is what the Scottish National Party has been about in these proceedings and that is why we have resisted the bill every step of the way.
In addition, there is the extraordinary power grab in section 13—a provision that will enable Scottish ministers to act in all manner of ways without adequate parliamentary scrutiny, notwithstanding the valiant attempts of members across the chamber to improve an odious provision. It will make Scotland a rule-taker and bound by a European Union of which we will cease to be a part. That cannot be consistent with democracy, or with the rights and interests of this Parliament.
What we should have been doing, instead of debating this unnecessary, unwanted and unwelcome legislation, is thinking hard about how we will negotiate, navigate and enforce the common frameworks that the minister and I—and everybody in this Parliament—agree should be agreed and not imposed, as we move into the post-Brexit scenario.
What we should have been doing, instead of debating this reckless legislation in this reckless way, is figuring out how we are going to make the best of the post-Brexit landscape, and seizing the opportunities that Brexit presents us with. How are we going to design an agricultural support mechanism that suits the interests of farmers in Scotland? What are we going to do to take forward environmental protection post-Brexit? At UK level, what are we going to do to ensure that we have appropriate industrial policy with appropriate state aids and public procurement rules?
For the past 46 years we have not been able to debate any of those questions anywhere in the United Kingdom, because that has been done for us by the European Union. Brexit means that we take back control of those issues. [Interruption.] Those are the issues that we should have been debating, instead of this reckless and unnecessary legislation.
Thank you. [Interruption.] Excuse me. It is very difficult to hear if members yell.
It was not worth listening to.
Mr Swinney! No one is above the chair in this chamber.18:37
It is always depressing to follow Boris Johnson, Presiding Officer.
This bill has gone through Parliament at breakneck speed. From the outset, if we are honest, many of us have not been comfortable with how it has been handled and rushed. We do not think, despite the minister’s claims to the contrary, that the bill has had the scrutiny that it deserves from members or, indeed, the wider community, who will be affected by it.
However, we are where we are. While expressing those concerns and the caveats that we have raised from the outset of the process, we will give cautious support to the bill at decision time. I echo the minister’s words about the commitment given by the staff of the Parliament. They always go beyond the call of duty. I particularly single out Madeline Grieve of our Labour staff, who has done a power of work for us on this.
This was, and still is, an avoidable situation. If we cast our minds back to December, we were assured by David Mundell, the Secretary of State for Scotland, that the UK Government would make changes to its bill in the House of Commons in order to address concerns about the impact of the European Union (Withdrawal) Bill on devolution. He said:
“We have been very, very clear. The committee stage of this Bill is about listening, it’s about adapting to issues that have been brought forward ... We have listened ... and we will bring amendments forward to clause 11”.
He also said:
“It’s going to be amended because Scottish Conservatives have come forward with practical amendments to the Bill.”
Adam Tomkins himself said that the bill needed to be amended to comply with the devolution settlement. The Finance and Constitution Committee of this Parliament unanimously called for the EUWB to be amended in the House of Commons to resolve those outstanding issues, but no amendment was tabled. On 16 January, the Labour Party tabled amendments in the House of Commons that would have protected the devolution settlement and established a dispute resolution procedure. However, every Scottish Tory MP traipsed through the lobbies and reneged on their commitments. It looks as though it is not only the Scottish fishermen who have been deceived by the Tory party.
Today, the issue still lies in the House of Lords, and while I am frustrated that it lies there, in the hands of the unelected, I am hopeful that we will see some common sense prevail, the devolution issues resolved and a dispute resolution process put in place, because we want this to work. We want devolution to work. We want everyone involved to make the retention of jobs and our trading relationships across Europe a top priority. We want to build prosperity that we can share more equally. We believe that a customs union with the EU allows us to do that, but, of course, we also see areas in which common frameworks should be developed with our neighbours on this island.
Yesterday, I and my UK Parliament colleague Keir Starmer met the Scotch Whisky Association. We agree with it that there are areas where cross-Europe and UK-wide framework agreements make business and regulatory sense. One example is labelling. The SWA has worked hard for years to ensure that consistent EU rules on production and labelling are in place and enforced. That has helped the sector to grow and succeed as a major exporter to many EU and global markets. It is in the interest of businesses, their employees, trade unions and communities and of the respective Governments to take common approaches that are developed in a respectful and collaborative manner. Let us end the frustrating stand-off and get on with it.
Throughout this process, Labour has sought to play a positive role. However, at times, we have had to drag information from the minister and the Government, and at other times, we have had to act to rein in the minister’s ambition to grab powers from this Parliament and take them into ministerial offices.
Members across the chamber have tried their level best to make this messy bill better but we should not easily forget that it is the Tories who have got us into this mess, and time is running out for them to get us out of it.18:41
I am unclear on the timing of speeches, Presiding Officer.
You have four minutes.
You have one minute.
I will have to disappoint Mr Findlay and go on for just a little more than a minute.
I think that, fundamentally, Parliament has done its job in this process—a process that we did not wish to face and one that is, inevitably, imperfect.
We should not be here at the stage 3 debate rehashing debates about competence or about whether the bill is an emergency bill. We have already agreed to the emergency procedure, and we have already agreed to the general principles. Parliament has decided that the bill should be considered. Frankly, if its competence is ultimately challenged, I want the Scottish Government to defend the bill robustly once we have passed it.
Instead of rehashing that debate, let us recognise the work that has been done since the introduction of the bill. Under extraordinary time pressures, we have maximised committee scrutiny as much as humanly possible. We have maximised the chamber debating time with innovations to the emergency procedure. We have shifted the balance in the bill, taking some power that would have gone to Government and ensuring that it goes to Parliament instead, and we have made significant changes to the contents of the bill.
Both Mr Kelly and the minister are right that that could not have been done without the support of a great many people—the committee clerks, the legislation team and a great many others, including our own teams in our party groups. I know that, across the parties, our teams have worked hard not just to put forward our own propositions but to try to achieve consensus.
Indeed, some of the most important changes that we have achieved in the bill have been done by cross-party agreement. That is the way that this Parliament was supposed to work in the first place. We were never built to be a Parliament like the bear pit of the House of Commons, with two sides opposing each other, two swords’ lengths apart. This Parliament was always supposed to be about trying to cultivate some cross-party agreement. We often fail on that, and our politics often falls back into tribal lines. However, on this occasion, we have managed, where possible, to achieve agreement with the Government on some significant issues of policy, and to push the Government beyond its comfort zone on a few points.
As a result, serious regulation-making powers in the bill have been restricted, both in timescale and in scope, and major improvements have been made in relation to environmental principles, social rights, scrutiny and challenge. Those not only improve the bill as introduced, but they clearly improve on the UK legislation that ultimately we would have been forced to accept—if not for the introduction of the continuity bill, we would have given the UK Government a pretext to impose the UK legislation on us without legislative consent.
Over the months and years to come, we will no doubt disagree on many issues. We will disagree when Conservatives such as Adam Tomkins, who voted remain because he knew the damage that the Brexit crisis will cause, chant “Take back control!” We will disagree with some Labour members of the Scottish Parliament, who promise a deal that will secure the exact same benefits of membership of the single market but who are not willing to commit to freedom of movement as one of those fundamentally important benefits of being in the single market. I will disagree with those in the Scottish National Party, for example, who have never supported international agreement on the control of fish stocks and who seek to achieve changes in that regard that I will not be able to support.
There will be a great deal on which we disagree, and—fundamentally—I will disagree with those who say that we should give up the ghost and give up the principled position for which the clear majority of people in Scotland voted. We should respect how they voted. We should oppose Brexit. We will disagree on that, too.
However, I am delighted that there has been enough of a measure of agreement on changes that were necessary to the bill. It is a better bill that we will pass than the one that was introduced, and I will vote for it.18:45
This Parliament is stronger for having people such as Adam Tomkins in it. He brings a wealth of experience and a hinterland—as people in other walks of life call it—that is important. But—there is a “but”; boy, is there a “but” after that speech—Adam Tomkins’s speech was one of the worst that I have ever heard in this Parliament, because at no time did he do the decent thing and say why we are here. Many of us have raised that issue, from the time when the minister had to introduce the bill.
Most of us would rather not be here having this debate at all. Most of us would rather not be leaving the EU. We hear people make great claims about how great it will be when we leave. My daughter is 26 years old. Her whole generation does not think that Brexit is right. It is not just my daughter; her first cousins, who live in the south-west of England, do not think that it is right. For that generation, in particular, this is a bad day, and it will be a bad day next March when we leave the European Union.
However, that is why we are here. We are here because the United Kingdom vote on Brexit happened and because the Governments across the UK have yet to reach agreement. I profoundly hope that the continuity bill will become redundant at some stage and that we will see no more of it.
However, when will agreement be reached on frameworks? I took heart from the First Minister’s language in London—I think last week—when she talked about consent not being unreasonably withheld. I hope that the UK Government moves towards that position. Much earlier today, Michael Russell mentioned the amendment in the House of Lords that Lord Mackay of Clashfern has tabled, which proposes mechanisms that involve a member of each Government in the United Kingdom. Lord Mackay is a serious person, who knows his way around the constitution—written or unwritten—of this country, and he is looking at ways in which the withdrawal bill can be made better. I wish that people in his party in London would take such proposals forward.
I make a couple of final points. First, the minister rightly made much of the people who have helped all members to get to where we are today. He commented on the ingenuity of some amendments. I have to confess that the ingenuity of most amendments—certainly those in my name—was the result of the brilliance of the clerks of this Parliament in interpreting my unbelievably inexact language and translating it into something that, in some cases, and probably quite worryingly, will subsequently become law. I particularly thank the clerks on Bruce Crawford’s committee and those who work in our parliamentary offices, who did a heck of a job in no time at all, including Matthew Clark and my staff, who stayed up as late as everyone else did, working to make all this happen.
As other members said, stage 2 was intensely challenging. However, having been through many stage 2s in this Parliament, I can say that it was one of the better stage 2s that we have had. More members turned up—although some did not—and the minister took a lot of the arguments on section 13, which was the cause of so much concern in the early stages of the bill. He did that in a productive way, sometimes because he lost the vote—Michael Russell would be the first to accept that in the Parliament that we have—but on other occasions by coming back with amendments at a later stage. I think that members of all parties can take credit for the way in which the bill was amended.
Finally, whatever happens in the coming weeks on frameworks and in the coming months on other aspects of the UK Government’s negotiations with Brussels, this Parliament will have a huge workload after March 2019 and during the transition period over the subsequent months. I trust that we are all ready for that, because we will certainly need to be.
We move to the open debate, with speeches of four minutes.18:50
Normally, members state at the start of their remarks how pleased they are to speak in a debate. I must say that, today, for me, that is not the case. We do not want to be having this debate. We did not want Scotland and the UK to face the economic and social uncertainty and costs that Brexit will bring. We did not want to have to spend considerable time and resources in this place debating the UK’s and Scotland’s withdrawal from the EU, which is a distraction from our work in moving Scotland forward.
We would have preferred the UK Government not to have pressed forward with the European Union (Withdrawal) Bill without our amendments to it, which were necessary to protect the devolution settlement. We would have preferred to have reached a negotiated solution with the UK Government on the form of common frameworks. We all agree that those frameworks are necessary, but they must be based on consent and not just consultation. I hope that there is scope to reach agreement on that in the coming days and weeks.
However, that is the situation that we find ourselves in, and we have to make the most of it. The continuity bill is required to put in place the necessary legislation to ensure that devolved matters are decided on in the Scottish Parliament. The bill will ensure legal continuity of the powers over devolved matters and will prevent their being exercised by Westminster. That is important on a number of levels. First, it supports the enshrining of the devolution settlement, which is the basis of all the work that we do in this place. The principle is that what is not reserved is devolved. The bill prevents the setting of a precedent of devolved powers being controlled from Westminster under the guise of Brexit or in any other way.
Secondly, it is important to recognise that the matters that we are debating and the law that we will pass today do not involve some dry legal argument about the constitution, but potentially have very real consequences for people across Scotland. The Health and Sport Committee has heard of the risks to our Scottish national health service of being dragged into a UK-wide trade deal in the post-Brexit world. There is a risk that the distinctive Scottish approach to delivering healthcare, which is different from the increasingly marketised service provision in England, will be compromised in that process. There is a risk that public health measures that we have taken or hope to take to place restrictions on harmful products such as alcohol, tobacco and the foods that are at the root of our obesity epidemic will be constrained to protect multinational commercial interests as part of trade deals. In that area and on many other issues that are critical to the people of Scotland, the bill is intended to provide some protection by resisting steps to move the power to legislate in those devolved areas to another place.
The way in which the bill has been progressed through its stages by the minister and his team deserves commendation. The sheer number of amendments and the length of debate at stages 2 and 3 make it clear that everyone has had their chance to make their case and that sufficient time has been made available to scrutinise the bill.
The bill is necessary to protect the powers of the Parliament. It is the backstop that provides some protection for us from the Brexit chaos that is consuming the UK Government. It was necessary to introduce the bill at this time to ensure that those safeguards are in place in sufficient time.
We should not lose sight of the bigger picture. By intent or by omission, the actions of the UK Government represent a significant risk to the devolution settlement. It is our duty and our responsibility as members of the Scottish Parliament to protect that settlement. I expect that, shortly, we will pass the bill by a significant majority. We will show that the Scottish Parliament, representing the Scottish people who elected us, is standing up for Scotland and making sure that their voice is heard. I urge members to vote for the bill.18:53
The bill is not one that the Scottish Conservatives ever wanted to see. We made it clear from the start that we consider it to be unnecessary and beyond the powers of the Scottish Parliament. Nevertheless, we have engaged fully in the legislative process. At stage 2, my Conservative colleagues and I lodged a long list of carefully considered amendments that sought to improve the bill. Although the Finance and Constitution Committee rejected the majority of those amendments, I am pleased to say that, in a number of cases, our amendments were accepted.
We saw a similar pattern this afternoon, at stage 3, when we made serious attempts to improve the bill, although we remain very concerned about aspects of it. It is our view that the bill will simply be bad law, although it is better than it was when it was introduced.
Throughout the process, we have heard from the Scottish National Party Government that the devolution settlement must be respected, and we heard that again from the cabinet secretary at the start of the debate. However, that self-same SNP Government has ignored the opinion of the Presiding Officer of the Parliament that the bill is beyond the Parliament’s powers.
We have also seen the SNP Government rush the bill through Parliament as emergency legislation, which has meant that, despite the best efforts of the Finance and Constitution Committee and, indeed, all the members here today, it has simply not been given the level of scrutiny that it deserves. Neither has there been the opportunity for external stakeholders to have their views heard. The bill has been treated as emergency legislation when there is no emergency—we are not due to leave the EU for another year.
Will the member give way?
I am sorry, but I have only four minutes.
You can take the intervention if you wish. I can give you a little extra time.
Well, if I have a moment, I will give way.
I am grateful. Mr Fraser knows that he has successfully improved the bill, and I have supported some of his amendments. However, he says that the bill still fails to respect devolution. Does he acknowledge both that there is nothing in our rules that has been broken in this process or in the introduction of the bill and that the UK Government has still to failed to come up with any changes to its legislation that are acceptable to this Parliament?
You will get your time back, Mr Fraser—be patient.
Thank you, Presiding Officer. I say to Mr Harvie that, although nothing in our rules might have been broken, the Presiding Officer has made a ruling on legality that the Scottish Government has ignored. It is not respecting the Scottish Parliament when it does that.
We have heard a lot from the Scottish Government on the subject of what it calls “power grabs”. However, let us be absolutely clear on one point: every single one of the powers that we are now talking about is one that the SNP wants to see retained in Brussels and not devolved at all. If the SNP had its way, we would be re-entering the EU and every single one of the powers that it claims is the subject of a power grab would be returned in its entirety to the EU. When SNP speakers complain about powers being retained at Westminster, they need to be honest with the Scottish people, because, in fact, they want every single one of those powers to be sent back to Brussels and not exercised here at Holyrood.
Will the member give way?
I am sorry; I just do not have time. The minister will have a chance to have his say later.
I should say that that includes powers over fishing, which the SNP wants to see retained in Brussels under the common fisheries policy.
We are quite clear about what we want to see. We believe in devolution. We believe in subsidiarity. We believe in powers being exercised at the lowest possible level. However, we accept that, for the UK domestic market to work, common frameworks need to be agreed. We need a situation in which, for example, Scottish farmers can sell their produce freely across the whole of the UK because we have common standards on food quality and labelling. That is why common frameworks are important, and it is why the immediate unrestricted devolution of all the powers coming from Brussels simply does not make sense on any level. Even the SNP accepts, in principle, the need for common frameworks. The key difference between the Scottish Government’s view on that and the UK Government’s view is that the Scottish Government is now demanding a right of veto on the terms of those common frameworks—as they affect not just Scotland but Wales, Northern Ireland and England, too. It is no surprise that the UK Government finds that prospect difficult to accept.
Let me close by reflecting on why we are where we are. Ever since the Brexit referendum result, we have seen the SNP flailing around, trying to find a political message to drive up support for a second independence referendum. It thought that the outcome of the EU referendum, with Scotland voting a different way to the rest of the UK, would lead to a public clamour for independence—but that simply has not happened. There is no evidence whatsoever of any public sympathy for the SNP’s position. The default public view on Brexit—even from those who voted to remain in the EU—seems to be, “Let’s just get on with it.” The desperate shrieking about power grabs that we hear from SNP politicians and the introduction of this bill are all about one thing and one thing alone: stoking a constitutional grievance against the UK Government to promote a second independence referendum.
For that reason, every unionist politician in this chamber should stand together in rejecting it. I say to my colleagues in Labour and the Liberal Democrats that they should not be fooled by what they hear from the SNP. They should not vote with them in support of this wrecking bill. They should stand with us—with the unionist majority in Scotland and with those who are against a second independence referendum—and vote down this bad law.
Thank you, Mr Fraser. I gave you more than your time back.18:59
I, too, thank all the parliamentary and committee staff as well as my own party group staff, including Madeleine Grieve, for all their support and hard work during the bill process.
The continuity bill’s passage through the Parliament over the past several weeks is entirely without precedent. Brexit is also entirely without precedent. Never before have we had to transpose EU law into Scots law in this way. Never before have we considered legislation of this kind—a failsafe to protect the devolution settlement—and in such a short space of time.
We are in uncharted territory. The bill is not normal and it is not perfect, but it is necessary. If no agreement can be reached with the Tory Government on its withdrawal bill, if the withdrawal bill cannot be successfully amended in the House of Lords and if the dispute over devolution and the authority of this Parliament cannot be resolved through agreement and consensus, we must be prepared to act. As members have said, we must be prepared to put forward an alternative. The continuity bill is necessary because it is our alternative, and I am prepared to support it at decision time.
It is no secret that I and many others have reservations about various aspects of the bill. We have made the case for transparency, restraint and enhanced parliamentary scrutiny consistently throughout the process. At every stage, we have been clear that the regulation-making powers that the bill confers on ministers must be tested. At every stage, we have sought to amend the bill and improve it.
The bill before us this evening is not the bill that was first introduced. It has evolved and has been refined. Today, we agreed to amendment 47, in my name, which will place new reporting requirements on ministers covering employment rights, health and safety and consumer protection. We agreed further amendments on environmental standards, and we have built in requirements for transparent reporting and additional scrutiny throughout. We have also agreed that the powers in section 13—easily the most controversial section in the bill—will be subject to the affirmative procedure, and we have recognised the role of the Parliament in making provisions corresponding to EU law following exit day. None of that makes the bill perfect, but it makes it better. It goes some way towards addressing the concerns that members have expressed about our concentrating too much power in the hands of ministers.
Even now, we may find that the provisions in the bill are not implemented and that this contingency legislation remains a contingency, when the intransigence of the Tory Government comes to an end, common sense prevails and an agreement on the withdrawal bill is reached, it is amended and the continuity bill becomes redundant. However, if the Tory Government will not amend its withdrawal bill to take account of the concerns that have been expressed by every one of the parties represented in the Scottish Parliament, we will have no option but to put in place our alternative continuity arrangements. That will mean empowering ministers to act while ensuring that they are fully accountable to this Parliament.
My Labour colleagues will cautiously support the bill on the basis that, as Neil Findlay said, the bill has been improved. We also recognise the benefits of negotiation and the need for an agreement to be reached between the UK Government and the devolved Administrations. The solution to the impasse that we face could be non-legislative. It could be in the form of—as has been mentioned in the past few days—a sunset clause or so-called standstill agreements in which the appropriate powers are devolved but the Governments agree not to diverge until a common framework is agreed.
Just as the Parliament has scrutinised the bill closely and won assurances that there will be further scrutiny in the future, so, too, must this Parliament have a role in scrutinising the negotiations and any deal that is agreed. However the negotiations unfold, this Parliament must not be sidelined or marginalised by either Government.19:03
When the Scottish Government introduced the continuity bill, the Presiding Officer, as the neutral chair of our Parliament, declared that it was beyond the competence of our Parliament and that, if it was passed, it would not be law. The Lord Advocate, who is the Scottish Government’s senior law officer, advised the Government that, in his view, the bill was competent and would be lawful if it was passed. At that point, the Scottish Government should have recognised that, since there is legal dubiety about the bill, to say the least, it would have been wiser not to have introduced it in the form that it did. However, it was introduced, it progressed through stages 1 and 2 and we now have the final and important stage 3 vote.
The Presiding Officer’s ruling—it is not advice; it is his ruling—that the bill is not competent cannot simply be ignored now that we are at the stage 3 vote.
Will the member take an intervention?
No, I will not. I want to make this point. I am not finding it particularly easy, but it is a point that I want to make.
If the Parliament passes this bill tonight, after 30 days it will be sent to Her Majesty for royal assent. The Presiding Officer has made it clear that, if we pass the bill at stage 3, it will not be law.
I want to make it absolutely clear that I am not commenting on anyone else’s decision to vote on the bill one way or the other. As MSPs, we all know that we must take individual responsibility for the way that we individually vote in our Parliament. However, I believe that the bill will be referred to the Supreme Court, and the likelihood is that it will be found to be illegal—beyond the competence of our devolved Parliament. [Interruption.] This is not funny—it is a serious point.
I believe that our devolved Parliament’s reputation will be greatly damaged because of that referral to the Supreme Court, and it will be damaged unnecessarily. Furthermore, I am not the only one who believes that. I will not ignore our Presiding Officer’s ruling and I want no part in voting for what I believe to be an illegal bill, which is why I will vote against the bill at decision time.19:06
The UK’s continuing bungled attempts to negotiate withdrawal from the European Union have, indeed, been a sight to behold—the very unedifying spectacle of a weak and divided UK Government lurching from crisis to crisis. Not content with lowering our international standing at every possible opportunity, it approached negotiations with the EU27 armed only with the much-derided cake strategy.
The UK Government then decided to introduce at Westminster its EU withdrawal bill, which was drafted in such a way as to put it on a collision course with a constitutional crisis at home.
That is the situation that the Scottish Parliament now finds itself in. The conclusion that must be drawn is that the UK Government either wants to roll back devolution or simply fails to understand devolution properly. Neither is good.
After all, this is a UK Government that, despite repeated explanations, simply cannot seem to grasp the sheer enormousness of the gulf between the meaning of the word “consult” and the meaning of the word “consent”. Those words might be indistinguishable from one another in Whitehall, but in Edinburgh we can see that there is a clear and understandable difference: it is the difference between devolution as we know it and an assault on Scotland’s Parliament.
The Scottish Government, faced with the mounting prospect of a no-agreement scenario, really had no viable alternative. It has done what any sensible and responsible Government would do, and has embarked on contingency planning in the shape of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.
It is to the credit of the Scottish Government that it has engaged with all the constructive criticism of the bill. The Finance and Constitution Committee, on which I sit, has waded through more than 200 amendments over hours and hours, even though many of those that were lodged by the Conservatives—who are making noises from their seats, at the moment—were not designed to improve the bill, but were wrecking amendments that were meant to derail it.
The minister has listened to the debates and criticisms, and has adapted the bill accordingly. Many constructive amendments have been accepted through that process. I believe that the bill is stronger and better as a result.
I am glad that the Conservatives’ trivial party-political games did not succeed in derailing the bill, because Scotland is watching. It did not approve of what I was seeing, which was gleeful schoolboy antics, at a time when Scotland’s future and the living standards of millions are on the line.
It is certainly not for the Tories to decide whether to hand back the powers of this Parliament when devolution is the settled will of the Scottish people. In this entire circus that we call Brexit, from the offices of Whitehall and the committees and debates of Westminster to the negotiating rooms of the EU, Scotland is but an afterthought, if it is even thought of at all. This Parliament is the only place where Scottish interests are put first, and that is what we are here to do. The Tories should learn that lesson.
The UK Government should not be afraid or unwilling to engage with the devolved nations. The fact that it is not able to do so means that we must act on our own behalf, so this Parliament should make no apologies for this legislation—if the bill is passed this evening—and for standing up for Scottish interests.
I am disappointed, but not surprised, to see that the Tories have once again fallen in behind their Westminster bosses. Their repeated platitudes about “bringing powers home”, “taking back control” and “speaking for Scotland” ring very hollow when they are so eager—happy, even—to serve up the powers of this Parliament on a silver platter. I made that very point in the chamber one year ago to howls of outrage from Conservative members—yet here we are, with the Tories again showing their true colours.
I am very pleased to support the bill this evening.19:11
As other members have done, I want to thank the parliamentary staff, particularly the clerks and support staff on the Finance and Constitution Committee and all the party staff. I also pay tribute to MSPs for scrutinising the bill, which, as Neil Findlay said, has gone through Parliament at breakneck speed.
Let us be honest: this is not the ideal way to deal with legislation, and there have been some shortcomings in the process. However, as Tavish Scott pointed out, we agreed to the emergency process, and there was therefore a responsibility on Parliament and parliamentarians to do the job properly. I believe that, on the whole, we have done so.
It is important to recognise that it is the disarray in the Tory party that has brought us here; the same disarray has created this European crisis. We should not forget that we ended up with an EU referendum because David Cameron tried to placate people within the Tory party who were unhappy about the EU policy that the Government of the time was pursuing. That drove us to the situation on 23 June 2016, when the country voted for Brexit. David Cameron did not think that that was going to happen; he thought that he could gamble and get away with it.
We are still seeing, right up to this day, the divisions in the Tory party and the failure of Tory MSPs, Tory MPs and Tory Government ministers to get agreement on clause 11 of the withdrawal bill, and it has put the Scottish Government in the position of having to introduce emergency legislation. We had some reservations about the bill at stage 1; however, although it is by no means perfect, Scottish Labour will certainly be supporting it, because it gives us protection of the devolution settlement, instead of our having to face the dangerous clause 11 power grab.
The bill has some serious implications. For a start, Mr Rumbles’s speech shows that there is division in the Liberal group, too. I have to say that I would not fancy being the chief whip on that group.
Mr Rumbles is the chief whip. [Laughter.]
However, as Mr Rumbles pointed out, we have reached the end of the process, and we still have differing legal opinions from the Presiding Officer, the Lord Advocate and legal experts. There is a danger that the issue will end up in court, which is regrettable and not, I am sure, something that Parliament wants.
I do not always agree with James Kelly, but he is making a good point. Does he agree that Mr Rumbles’s argument is not really so strong because lots of bills and acts have been challenged in the courts?
That is true, but I still accept that the issue is potentially a difficult one for Parliament, in that it could end up in the courts. In addition, we potentially have two competing sets of legislation in the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and the European Union (Withdrawal) Bill at Westminster. That will create a real sense of crisis, which is a problem.
As Neil Bibby said, the bill has evolved. We support it from the point of view of protecting the devolution settlement.
Will James Kelly take an intervention?
I am sorry; I do not have enough time.
Important changes were made in relation to the regulations that were set out in the bill and section 13. Too much power would have been in the hands of ministers, with not enough in the hands of Parliament. That has been redressed somewhat throughout the process.
Important amendments relating to the environment and animal sentience have also been agreed, and Anas Sarwar’s amendment on health and social care was important. The bill has evolved.
Fundamentally, this is not an ideal situation to be in, but Labour will support the bill because, ultimately, we support protecting the devolution settlement and we will not support a situation, which is still advocated by the Tories at Westminster, that undermines that settlement. We will support the bill, come decision time at half past 7.19:16
I pay tribute to Mike Rumbles for his moving and principled speech. He said that he would vote against the bill not for party political reasons but because of the respect that he has for the Parliament, the Presiding Officer and the concept of legislative competence. If only his words would shake other parliamentarians from their stupor.
I want to concentrate on two points: the keeping-pace power and the complexity of having different legal regimes for devolved and reserved areas.
Section 13 has undoubtedly been improved. To be frank, it could not have started off much worse. The minister has acknowledged that it has conferred a very broad power, but it remains a striking political choice by the Government that goes well beyond what is in the UK bill. It is simply not necessary. We already have the ability to make primary legislation, and the Government can make secondary legislation in devolved areas. That power exists, and we can quickly legislate in whatever way we like. We do not need the power in section 13. It remains an extraordinary and audacious attempt to accrue power to the Executive.
Let me give one example of the legal complications of the UK European Union (Withdrawal) Bill sitting alongside the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. If both are passed, we will work across devolved and reserved areas with 16 different definitions of the law. We will have EU-derived domestic legislation, direct EU legislation, retained EU law, retained case law, retained domestic case law, retained UK case law, retained general principles of EU law and devolved EU-derived domestic legislation—I could go on. That is a recipe for disaster.
More potently, the Scottish Government’s very own bill policy memorandum says that the bill will add complexity and presents “serious logistical challenges”. The Scottish Government underplays that. The bill is a constitutional and legal horror show of epic proportions. I am sure that it is welcomed with glee by the legal profession, but by no one else. [Interruption.]
Please. I would like to hear Mr Cameron.
That has not been helped by the fact that the bill is emergency legislation. I have no hesitation in continuing to decry that disgraceful decision. We simply have not had enough time. The fact of the matter is that the bill has had insufficient scrutiny and debate, and there has been nowhere near enough time to discuss something that will have major constitutional ramifications. We had to rush through hundreds of amendments at stage 2. That tells us everything that we need to know about the Government’s attitude. Even today, we had 64 amendments, and we had only a few hours to get through them all. That has had absurd results. We saw a situation in which the Scottish Government moved Mr Greene’s amendments, and there have been assertions about what happened in the Delegated Powers and Law Reform Committee. That is what happens when we legislate with undue haste. We are making a mockery of ourselves. [Interruption.]
Despite my disappointment with the way in which the process has been carried out, I pay tribute to the clerks, the parliamentary staff and everyone who has been involved in getting things together for each stage of the bill process, which has involved late nights and early starts. The individuals concerned have gone above and beyond the call of duty, and I thank them for that. Stage 2 especially was convened heroically by Bruce Crawford. In the spirit of generosity, I thank the minister for conceding to some of our amendments.
However, it remains our intention to vote against the bill. If it is to be passed by the Parliament, it is of course preferable that it is passed in a better state than it was originally in. I am confident that that is the case, but the fundamental facts remain. If, as is likely to happen, the bill is passed, we will put on to the statute book legislation about the constitution that is of dubious legality—I emphasise that it is a matter of legality—that has been rushed through the Parliament and which will complicate the Brexit process, not simplify it.
Bruce Crawford rose—
Members: Give way!
The member is closing. Sit down, Mr Crawford.
There has been much talk about the devolution settlement. One does not protect that settlement by defying the Presiding Officer on legislative competence, by railroading the bill through Parliament on the false pretence that it is some kind of national emergency or by imperilling negotiations between our Governments at a critical time by passing this wretched, reckless and lamentable legislation.
I call Michael Russell to close for the Government. You have until decision time, if you wish.19:21
Thank you, Presiding Officer.
I will start on a personal note by giving another set of thanks. I have reserved this until the very end. I thank my bill team, in particular. There is a tradition in the civil service whereby, if you get caught in a photograph in the press, you have to buy people cakes. I intend to buy the members of my bill team a very large drink tonight, because they have managed to help me out on every possible occasion. They have also helped out individual members, particularly with amendments, and I am grateful for the work that they have done over the past two weekends in getting the bill to the good state that it is in now. [Applause.] They will be embarrassed by this, but I also thank my private office, my constituency office and my parliamentary office staff, all of whom have supported me in what has been an unusual month.
It has also been unusual because I have lived to my 65th year—
Well, I am not yet 65, and I am looking forward to Mr Findlay celebrating my 65th birthday, which he will probably do by burning me in effigy, but that does not matter too much.
That was last year.
He will build a better effigy this year.
I have lived to my 65th year to find myself described in terms that are usually applied to punk rockers. Gordon Lindhurst said that the actions that I was taking in the bill had about them
“the whiff of anarchy and lawlessness”.—[Official Report, Finance and Constitution Committee, 13 March 2018; c 7.]
I have long aspired to have that said about my actions, and now it has happened. [Interruption.] My friend Roseanna Cunningham finds that remarkable, but that was said at stage 2—it is in the Official Report.
Tonight, the mild-mannered Mr Cameron used the phrase “horror show” along with the words “disgraceful”, “mockery”, “defiance” and “railroading” among many others. I really think that the Scottish Tories should calm down. They should also think about language, because they keep talking about a “good Brexit”. There is no such thing as a good Brexit. Perhaps we can mitigate the damage that Brexit will do. Through membership of the single market and the customs union, we might be able to maintain some essential links, but for our agriculture, health, higher education, hospitality and environmental sectors and for employees and ordinary citizens—although this is perhaps not the case for millionaires—there is no good Brexit.
It is not possible to dissemble on such matters or to fail to tell the truth. Brexit is the wrong thing for Scotland and for everyone who lives in Scotland. What I find hardest to take in all of this is that people who knew that up to and on 23 June 2016 have not forgotten that—they know that that is still true—but now they are saying the opposite for purely party-political reasons. They are going to damage Scotland absolutely irrevocably for a long period of time because they are doing things that they know are wrong. I ask members to let that sink in: they are doing things that they know are wrong.
What can we do? I hope that, together, as much as we can—I have worked hard over the past few weeks to achieve a consensus in this chamber—we will, first of all, defend the democratic rights of the people of this country, which means, at this stage, defending devolution. We should insist that the UK Government listens to and recognises the views of Scotland and the need for differentiation. We should find ways to preserve our membership of the single market and the customs union as the least-bad option, and we should never give up on the obligation to observe the mandate of the 2016 referendum, in which Scotland rejected Brexit.
Those are things that we should do, and we could do, together. What we should not do is pretend that Brexit will be good for Scotland. It will not. We should not shrug resignedly and say, “Well, there’s nothing can be done,” because there are things that can be done. We should not connive with or enable those who wish to reverse devolution as a way of getting Brexit, because that is what we have seen over the past four weeks.
That is a big issue, because, up until the past four weeks, the Tories have tried to defend devolution and I have worked with some of them on that. However, their actions over the past four weeks—their continued actions and their rhetoric—are those of a party that has decided to roll back devolution and obstruct anything that defends devolution.
The UK Government has been well aware that we are on course to pass the bill at stage 3 tonight. I am curious to know whether it has, at any point, indicated the remotest hint of a clear proposal for changes that it will make to its EU withdrawal bill that are compatible with devolution. Is there any movement that we should be aware of from the UK Government that shows that it is remotely interested in the devolution settlement?
I will try to be helpful in this situation, and what I would say is this: today starts a new chapter in this story. I am addressing the issue that Mr Harvie raises by saying this. I hope that, by the end of this evening, the Scottish and Welsh Parliaments—the Welsh Parliament has already decided, and the Scottish Parliament will decide in a few moments—will be armed with an alternative to the way in which the United Kingdom Government wishes to treat devolution.
We will not go naked into the Westminster negotiating chamber any longer. We will have an ability to negotiate on the basis of an alternative that we have put in place ourselves. We can and will make the bill work if we have to. We will protect the key issues that we have focused on in the bill—I gave that commitment earlier this evening. Now, the ball is firmly in Westminster’s court. If it wants to come to the table and discuss these issues—I hope that it does—it will know that we have the alternative and that we are able to operate it. Let us now see what takes place.
Will the minister take an intervention?
No, I will not.
It has been a long three and a half weeks. It has been a long few months as the possibility of the bill became more and more likely. However, there is much still to be done, and there is a key message that needs to go out from this chamber: Brexit is bad for Scotland. We need to go on making that point, because it is the basic point.
We need to stop the damage that Brexit is likely to do to Scotland, and we need to make it absolutely clear that those people who seek to impose Brexit on a country that did not vote for Brexit are the people who are doing down Scotland, damaging Scotland and damaging every sector of Scotland. By their works you will know them, and the works are the works of the Tory party.