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Chamber and committees

Meeting date: Wednesday, January 29, 2020

Meeting of the Parliament 29 January 2020

Agenda: Recognising Scotland in Europe, Portfolio Question Time, Scotland’s Future, Points of Order, Business Motions, Decision Time, Right to Full Care to Die at Home


Recognising Scotland in Europe

Good afternoon, everyone. The first item of business is a debate on motion S5M-20625, in the name of Fiona Hyslop, on recognising Scotland in Europe.

This debate is a direct consequence of Scotland being removed from the European Union against the clear majority view expressed by the people of Scotland in 2016. Most important, it is an opportunity for this Parliament to stand firm in solidarity with all the EU citizens—230,000 of them—who live in Scotland. Those citizens will be most immediately and directly affected by the United Kingdom leaving the EU on Friday.

The Parliament has repeatedly voted to express its opposition to Brexit in any form and I believe that we must do what we can to demonstrate publicly our regret at what is about to happen on Friday. We need to give a practical demonstration of the sense of loss that so many of us in this chamber and beyond will feel when we are no longer members of the EU.

The Scottish Government, for its part, has determined to fly the European flag at St Andrew’s house and Victoria Quay routinely—except where we are marking other specific occasions—in solidarity with EU citizens who are living here. Some, of course, will seek to criticise our actions as purely symbolic but, at times of uncertainty and disruption, the value of symbols and what they represent matter.

The Parliament has, in the past—

Will the cabinet secretary give way?

Will the cabinet secretary give way?

No, I am not giving way.

The Parliament has, in the past, flown different flags in solidarity with different peoples at different times. I have lost count of the number of times that EU citizens in Scotland have thanked me for the way in which the Scottish Government and members of this Parliament have stood up publicly for their post-Brexit rights here in Scotland and in the rest of the UK.

Flying the European flag is a concrete and visible expression of the value that we place on the contribution that the 230,000 EU citizens who live and work here in Scotland make to our country. That contribution is beyond question.

Does the cabinet secretary recognise that there are values within this Parliament, some of which are on the mace at the front of the chamber, that are to do with how this Parliament works and that this debate is much more about those values than it is about flags?

I will cover those points later in my speech.

Our simple message to those EU citizens who are living here in Scotland is that we want them to stay. Scotland is their home as it is our home and we want them to feel welcome. In the coming days, weeks and months, we will stand in solidarity with them at this time of great uncertainty.

Flying the European flag is one way for the Parliament to give practical expression to those views. This is the human dimension of Brexit. Families—many of whom have been settled here for years—now feel uncertain about their futures. They deserve our support, at this moment in particular, in their place—in their national Parliament. EU citizens are our citizens. Almost 3,000 of my constituents are EU citizens. When people say that we should debate health, education or housing instead, they forget that EU citizens are our constituents and they are our teachers, our doctors and our nurses; they build our houses and they care for our vulnerable, and our services will suffer without them.

It is worth reflecting on the fact that, regardless of Brexit—

On a point of order, Presiding Officer. I do not know whether the same is true of other parties, but my party has no back-bench speakers in this debate. I would have thought that it would be very much in order for the cabinet secretary, who is leading the debate on behalf of the Government, to take some interventions from back benchers. [Interruption.] She took an intervention from a front bencher—do members not know that Liz Smith is a front bencher?

That is not a valid point of order. [Interruption.] Mr Findlay, please be quiet. It is not a valid point of order. It is up to the speaker whether to take interventions. The format of the debate was agreed on by the business bureau with all parties.

It is worth reflecting on the fact that, regardless of Brexit, the UK will remain a member of the Council of Europe. The European convention on human rights, which is overseen by the council, is embedded in every action that we take in the Parliament.

The European flag was first adopted by the council in 1955. It was only in 1985 that the then European communities adopted the flag. Therefore, even after Brexit, we will maintain an important relationship with the European flag. The aims of the Council of Europe speak directly to the values on which this Parliament is based: a joint endeavour to build peace and prosperity together while respecting democracy, human rights, the rule of law and diversity. Why should we publicly distance the Parliament from that institution?

Holding this debate today to seek to give a direction to the Scottish Parliamentary Corporate Body is not a step that we have taken lightly and—[Interruption.] Liz Smith made a point and I am trying to address it.

On a point of order, Presiding Officer. Can I have some clarification on the motion? I read the motion in the Business Bulletin and it was about giving a direction to the corporate body. Is the Government trying to interfere with the Parliament to direct the corporate body to change its mind?

The corporate body is part of this Parliament, and this Parliament is now debating items that are relevant to the corporate body.

That is the point that I was coming to.

Holding this debate to seek to give a direction to the Scottish Parliamentary Corporate Body is not a step that we have taken lightly and I agree that it should not happen regularly; I would resist that. However, it is not the first time, so it is wrong to say that it is unprecedented. On 6 December 2007, a motion from the Labour Party, which was supported by the Conservatives and the Liberal Democrats, instructed the corporate body to set up the Calman commission. It was opposed at the time by the minority Scottish National Party Government.

On a point of order, Presiding Officer. I must be a little bit deaf, or maybe I am misunderstanding what the Government has suggested. Did it suggest that the Parliament instructed the previous corporate body to overturn the decision?

The content of any speech is up to the cabinet secretary. If she wishes to repeat that point, I am sure that you will hear it clearly if other members in the chamber will so allow.

I have said it a few times now, so I am quite happy for the member to read the Official Report to understand the precedent that I am talking about. It is not one that should be used—[Interruption.]

I am about to finish speaking. Presiding Officer, with grace, I seek a few moments to complete what I have to say.

I am one of the few members in this Parliament who has served on the Parliamentary Bureau and I know the importance of seeking to reach cross-party consensus within the institution of Parliament—and, above all, on the corporate body. [Interruption.]

Excuse me, cabinet secretary.

The cabinet secretary is coming to a close. There should be no more interventions.

The role of the Presiding Officer in reading the mood of parliamentarians across the chamber is key.

The Scottish Government has always accepted that the corporate body’s decision to change the policy was made with the aim of being non-political. However, and I say this with the greatest of respect to the members of the corporate body who reached that decision, I do not believe that their decision reflects the views of the Parliament as a whole. Nor do I believe that the decision could be non-political, whatever outcome had been reached. On that basis, I believe that it is appropriate for all of the Parliament to be given the opportunity to express its views, just as it did on the Calman review set-up.

I stress that, to avoid this situation, the Government sought to find a compromise; unfortunately, that was unrealised.

Parliament should send a clear and symbolic signal that, even after Friday, we want to maintain strong bonds with our European friends and neighbours; to continue to share the same fundamental values; and to show what their citizens—our constituents, who live in Scotland and who will continue to be valued and respected—mean to us.

I move,

That the Parliament notes that the European flag has been flown at Holyrood since 2004 as a symbol of membership of the family of European nations; recognises that Scotland and the UK will continue to be represented within the Council of Europe, and that the UK’s exit from the European Union will not change this; notes that the European flag was originally the flag of the Council of Europe and affirms Scotland’s commitment to the aims of the Council of Europe to build peace and prosperity together, while respecting common values of democracy, human rights, the rule of law and diversity; recognises the importance of continuing to fly the European flag as a sign of support and solidarity with those EU nationals who have made Scotland their home, and directs the Scottish Parliamentary Corporate Body to ensure that the European flag continues to fly daily at the Parliament building.

On a point of order, Presiding Officer. If the Parliament were to agree to the motion, it would be overturning a decision of the corporate body—I think, for the first time. If that were to be the case, would it not be tantamount to a vote of no confidence in the corporate body? Has the Presiding Officer had any indication of what members of the corporate body might do in that situation?

That is not technically a point of order. However, I refer the member to the terms of the Scotland Act 1998. If he feels very strongly about such matters, he may write to the Presiding Officer.

Before we move on, I say to members that I understand that feelings can run high when we discuss certain issues, but I am not at all content when I hear rudeness from members on any of the benches. I would appreciate it if members would bear that in mind.

I call Liz Smith to speak to and move amendment S5M-20625.2, for up to five minutes.


I would like to focus my comments on my experience as a former member of the corporate body. However, first, let me apologise to the carers who are in the Parliament today with whom I was due to have a meeting at quarter to 2, which I had to cancel.

As Willie Rennie said in the chamber yesterday evening, those of us who are committed Europeans and who voted remain in 2016 would far rather that the EU flag was still one of the three principal flags that are flown outside the Parliament building, the others being the Scottish and UK flags. However, we lost that argument and, for all the reasons that have been rehearsed in the chamber so many times in recent months, as democrats, we accept that the UK voted to leave the EU. Indeed, it is now a fact that we will shortly leave the EU—that is important in relation to the decision that has already been made by the corporate body.

I remind members that, as is set out in the Parliament’s standing orders, the corporate body has a very specific role, which is entirely different from those of other bodies in the Parliament. It is there to make decisions on a wide range of issues that relate to the management of this place—whether they concern budgets, staffing, accommodation or the use and security of parliamentary resources and facilities—and it carries with it significant responsibilities that are reflected in the duties of its elected members.

Corporate body members do not sit to make political decisions. Instead, they are elected by the whole Parliament—usually, but not necessarily, drawn from each of the political groups that are represented in it—to make impartial decisions that are for the collective benefit of all of us in the Parliament. On that basis, the corporate body has impartial relationships with other parliamentary bodies, such as the Parliamentary Bureau and the Conveners Group, which have responsibility for the day-to-day political business of the Parliament.

Corporate body members frequently deal with complex and sensitive issues, including situations in which national security issues come into play, and they can often be party to private and confidential information that is not always available to other members of Parliament. As a result, members will appreciate that it is vital that there is full trust and confidence that, in its work, the corporate body will act impartially on behalf of all members rather than on behalf of the political parties that are represented in the Parliament.

Of particular importance here are the terms of section 21 of the Scotland Act 1998, subsection (3) of which states:

“The corporation shall provide the Parliament, or ensure that the Parliament is provided, with the property, staff and services required for the Parliament’s purposes.”

Subsection(4) states:

“The Parliament may give special or general directions to the corporation for the purpose of or in connection with the exercise of the corporation’s functions.”

Liz Smith has made important points. However, the critical and fundamental one is that the architecture of these institutions was put together with great care, with a focus on the idea that the Parliament should not be within the control of the Government. The corporate body and the bureau were put in place to do precisely what Liz Smith outlined and, importantly, the decisions that she mentioned were put beyond party politics. Is that not what would be undermined by what the motion proposes?

I absolutely agree with Daniel Johnson. The issue is one of collective responsibility, which is exactly the basis on which the recent decision about the European flag was made. I do not believe that it is either appropriate or acceptable to reverse that decision. Indeed, to do so sets a dangerous precedent that would serve to undermine the relationship between the corporate body and the rest of the Parliament, as well as with the effective workings of Parliament.

Having seen it at first hand, I genuinely believe in the importance of consensus in the role of the corporate body. However, in a highly political situation such as this one, it is the role of all of Parliament to make a decision either way. That happened with the motion that instructed the corporate body to set up the Calman commission, which Liz Smith’s party was part of—the Presiding Officer at the time had no choice, for the reasons that Liz Smith has explained, but to carry out the views of the Parliament. Such occasions have been few and far between, but the member is wrong to say that the current one is unprecedented.

I completely disagree. I am not wrong: the corporate body’s decision was not overturned in the case of the Calman commission. The SPCB was given an advisory suggestion about the extra support that was required for the general workings of the Parliament, and the situation then was all about that—I have the document here.

Let me address those who have petitioned to ensure that the EU flag continues to fly outside the Parliament. I respect your views, as I respect those of people who believe that the flag should be removed. Yet, the issue before the Parliament is not our thoughts about the UK's withdrawal from the EU but about whether members of the Parliament are prepared to undermine the corporate body, which we elect and which can be overridden by any Scottish Government that happens to get a sufficient number of MSPs to support its decision. We are aware of the dangers that such a precedent could present.

Those issues define the Scottish Conservative Party’s thinking in the debate, and I believe that many members of other parties agree with us. However, another issue is the public’s rightful expectations of their MSPs as they sit in Parliament, which ensure that they are accountable for spending taxpayers’ money. The public can see that the Parliament has ahead of it six committee debates, nine Opposition business days, eight stage 1 debates, 13 stage 3 debates and 88 legislative consent motions. I do not believe for a minute that the public either want or expect us to be spending time debating what flags fly outside the building. They want us to sort out our schools, our hospitals and our criminal justice system and to get on with addressing the issues that really matter to them in their daily lives. Not only has the Government lost its way when it comes to looking after our public services, it has lost its way when it comes to supporting the conventions of the Parliament. In short, this debate should not be happening.

I move amendment S5M-20625.2, to leave out from “the importance of continuing” to end, and insert:

“that decisions about flag protocol on the parliamentary estate are rightly reserved to the Scottish Parliamentary Corporate Body (SPCB); recognises that the SPCB has already made a decision on this matter; believes such action to be unprecedented and deleterious to the norms of this Parliament, and regrets that parliamentary time is being used to debate flag protocol when such time is limited and could, more rightly, be spent on debating issues such as health, justice and education.”


The debate is unfortunate. First, it is a fact that we are leaving the EU, which is a decision that I regret but is now unavoidable. Secondly, there is an attempt to frame the debate as a kind of test of our commitment to EU citizens. Many of us are concerned about the EU citizens who live in Scotland and we need to provide reassurance that they are welcome and valued; that needs to take place in a meaningful way. Thirdly, this is the first time I can recall the Parliament being prepared to overturn a decision that was made by the SPCB. We have to ask ourselves what that means for the governance of the Parliament.

If the vote is won by a small margin and it changes the decision of the SPCB, that will set a precedent for a narrow vote to overrule the corporate body and there is a clear risk of the Parliament beginning to direct and politicise the corporate body. We elect members from each political party to serve on the corporate body and they are expected to leave their politics at the door when they take on the role and make decisions in good faith for the benefit of the Parliament and all of its staff.

Will the member take an intervention?

Yes, although I am very short on time.

When a former Labour MSP lodged a motion on the subject, proud Europeans such as our colleague David Stewart and Alex Cole-Hamilton were able to support that motion. Why could that not be the case today?

I am aware of the motion that was previously lodged and I understand that members have a range of views across the Parliament, but the corporate body is elected to represent the Parliament and made its decision in good faith. I have concerns about the Parliament being prepared to overturn that decision and undermine our colleagues on the SPCB.

I recognise that there is a certain logic to the decision. The Scottish Parliament flies flags of unions that we are members of and, by the weekend, we will no longer be a member of the European Union. I have heard the case that it is a Council of Europe flag, which was adopted by the EU, but that does not reflect the reality of how the flag is universally recognised or acknowledge that the Council of Europe often adapts the flag to distinguish it for its own use. The proposal to fly the EU flag on Europe day brings the Scottish Parliament’s policy into line with the Scottish Government’s flag policy for Scottish Government buildings in Scotland.

We should respect the independence of the corporate body and respect the decision of its members, a decision that was unanimous until it became a political football. We are not talking about a Government building, which arguably has a political identity, or about a building that is owned by one political party that can exert its will over the operations of Parliament.

We are a responsible and respected elected Parliament, and the neutrality of the institution is important. There will be an important role for the Parliament to play in fostering European and international relationships, recognising the work of the Presiding Officer’s office and the international office. As parliamentarians, we all have a role to play in welcoming migrants to Scotland and valuing their contribution, and we should be focusing on how we do that. The immigration policy that was published this week could be an example of where we can work together to make a positive difference.

I have regard to the argument that challenges whether this debate is the best use of parliamentary time. Although it is a short debate, it has still absorbed the resources of the Parliament in the week that we are leaving the EU. This is a time when we should be focusing on the real challenges that Scotland faces as a consequence of the decision to leave the EU, and I do not believe that that is encapsulated in a debate about whether to fly a flag.

If, after today, the EU flag stays up outside the Parliament, does it really matter? I do not believe that the flying of the flag will define our future relationship with Europe and, although the flag reflects our relationship in law, it is not illegal for us to continue to fly it. What is problematic is the way in which this debate politicises the decision, undermines the status of the corporate body and questions its ability to act independently of Parliament, and leaves the institution open to accusations of political motive. Those are the issues that we need to reflect on.

I move amendment S5M-20625.1, to leave out from “as a symbol of membership” to end and insert:

“in recognition of membership of the European Union; continues to welcome and value EU citizens who have made their home in Scotland and the huge contribution that they make; recognises the importance of the future relationship within the family of European nations and the important role that the Scottish Parliament has in fostering that; notes the explanation brought forward by the Scottish Parliamentary Corporate Body (SPCB) as to why it took the decision to stop flying the flag of the European Union, and recognises that such decisions are best made by the SPCB operating on a non-partisan basis.”


I appreciate the argument that decisions about operational matters on the parliamentary estate should not be politicised, but we are now long past that option. There is no way—and there was never likely to be any way—to make the binary choice between keeping the European flag up and taking it down without that choice being political. The flag is a political symbol and what we, as the democratic voice of the Scottish people, do with it has significant symbolic meaning. It sends a message—more accurately, it sends a variety of messages, depending on people’s political persuasion, their citizenship status and a number of other factors. The Greens believe that the European flag should continue to fly, and we will vote for that today.

The European flag is not just about the European Union.

Will the member take an intervention?

I will take just one intervention, because I have only four minutes.

I asked for a ministerial statement this week, so that the Cabinet Secretary for Justice could come to Parliament to talk about the state of the police under the Scottish National Party and seek solutions. That request was refused for lack of time. Instead, we are debating flags and symbolism. Does the member feel any shame or embarrassment that he and his party think that that is more important than the funding and resourcing of Police Scotland?

I am sure that Mr Kerr enjoyed that moment of self-indulgence. I will come on to the Conservatives’ hypocrisy shortly.

The flag that we are debating is the European flag, not just the flag of the European Union. It was originally, and remains, the flag of the Council of Europe, which we remain part of. That organisation, which predates the European Union, plays an important role, particularly in relation to the European convention on human rights, which members of the Conservative Party often suggest that we should just get rid of. We might be leaving the EU on Friday, but we are not leaving the Council of Europe, and it is important that we continue to acknowledge and value our membership of that organisation.

In addition, continuing to fly the flag will send an important message to European citizens in Scotland. The past four years have been an unpleasant experience for them, and a great many feel utterly abandoned by a Westminster Parliament and Government that they previously had respect for. European citizens have been made to feel unwelcome, and discrimination and hate crime have risen across the UK. People who have lived here for decades are being asked to provide proof of their right to continue doing so just to access basic services.

Symbols matter, and, for many of the 237,000 EU citizens who live in Scotland, our decision to continue to fly the flag, which is a statement of our continued commitment to a common European future, matters a great deal.

I do not have a huge amount of interest in flags. Unsurprisingly, I have no affinity for the union flag, but I do not feel a particular affinity for the saltire, either—that is not what motivates my politics. However, if continuing to fly the European flag can provide some visible reassurance to European citizens that the Parliament continues to stand up for them and that we are still their representatives as much as we are anyone else’s, so be it. That alone is a good enough reason for me.

Will the member give way?

No, I am afraid not.

I hear the concerns of people outside the chamber who are frustrated that Parliament’s valuable time—even just half an hour of it—is being given over to a debate about flags. They are right to have those concerns, and they are considerably more sincere than those who are making similar points in the chamber today, whose parties absolutely wanted the debate to happen precisely so that they could make political capital out of it. The Scottish Government has opened itself up to justified criticism for bringing forward this debate despite not having brought forward a single debate on our schools for more than two years. I have been vocal in my criticism of its failure to do so.

However, we should be totally honest: the Tories are delighted that the debate is taking place. They really wanted it to happen. The Tories reckon that they stand to benefit politically from a failed attempt to make the European flag over this building come down, just as it is likely that the Greens and the SNP will come out of the debate well with people who feel a strong sense of European identity, with EU citizens and with others. With respect, I am not sure whether anyone will particularly notice Labour’s position. The only real losers are the Liberal Democrats—the party of Europe. Unless they are about to make a significant U-turn, they are set to vote with the Conservatives to take the flag down.

Will the member give way?

I am just about to round up. I have already gone over my time.

I did not want to have this debate, and I am not the only one, but there was never likely to be any way other than a full vote in Parliament to make a binary decision on something that symbolises such a defining issue of our era. We should reflect on that—the collective failure of our processes—and we should resolve to ensure that debates about flags do not become a recurring feature, regardless of whose partisan interests they serve. That truly would be a failure.

Today, given where we are, the other Greens and I will cast our votes for a symbol of internationalism, of common endeavour, of solidarity and of Scotland’s continued commitment to our European future. We will vote to keep the European flag flying over this Parliament.


It is a matter of deep regret to me that Parliament is having this debate on the Government’s motion and that we have just been subjected to that contribution from Ross Greer.

It is a matter of deep regret not because I do not believe in the partnership of European nations or the values that underpin it; I can safely say that I am a Liberal Democrat precisely because of my party’s internationalist outlook. I joined the party all those years ago because of the long-standing commitment of Liberals to European integration and to arguing for the benefits of pooling and sharing with our European partners. That is why, in 2016, I campaigned hard and with conviction to remain, it is why I was distraught at the outcome of the referendum and it is why I was proud of the leading role that Liberal Democrats played in making the case for a people’s vote.

I worked in Brussels for five years, including in the European Commission. I remain a loyal member of the Royal Brussels British Football Club, which currently sits top of ABSSA division 1 and is eyeing another title, for those who might be interested. I can credibly argue that the UK’s membership of the EU brought me and my now wife together, as we met in Brussels when we both worked there in the mid-1990s.

Therefore, I find no argument with the aspects of the motion that speak of a shared, passionate and enduring commitment to the aims of the Council of Europe, and of

“democracy, human rights, the rule of law and diversity”.

Sadly, though, that is not what the motion is really about. It is not about the Council of Europe or, indeed, the European family of nations.

The Scottish Parliament has flown the European flag since 2004 to reflect our membership of the European Union. That is the reason, that has been the justification and that is why today’s motion is so politically charged. Removing the flag does not make the Parliament anti-European, just as leaving it up does not make us pro-European. The flags are a statement of legal fact, not political desire.

I have had the privilege of serving on the corporate body since 2011. Having been elected twice by members, I genuinely consider it an honour and take seriously my responsibilities as an SPCB member, as I know my colleagues do, too. We work together collegiately and constructively, often on difficult and sensitive issues. We recognise that the decisions that we make could affect the reputation of the Parliament or, indeed, of MSPs. We make our decisions while being aware of the political environment in which we operate and with the aim of protecting the political neutrality of the SPCB and the Parliament as an institution.

We agreed to lower the European flag on 31 January, to reflect the legal position that Scotland, as part of the UK, would no longer be a member of the EU. Does that prospect fill me with joy? Absolutely not. Will I continue to make plain my opposition to Brexit and my belief that it is an act of self-harm? Members had better believe it. However, I also believe that, as MSPs, we have a duty to protect the neutrality and reputation of this institution.

SNP ministers will be free to continue to argue that Brexit makes the case for indyref 2. I will disagree, and we will have those debates in this chamber. Meanwhile, with everything else that is going on in Scotland, the spectacle of this Parliament debating flag policy will strike many people as bizarre.

However, it is more serious than that. By seeking to direct the SPCB, this Government is moving into uncharted territory and sending a dangerous message about the lengths that it is prepared to go to in order to get its own way. It risks calling into question the role and neutrality of the SPCB and opening the door to future decisions being second-guessed by ministers. For partisan reasons, future Governments of a different political colour might seek to impose their will on this institution. With this decision, we risk giving them permission to do as they please. I do not believe that Fiona Hyslop or MSPs across this chamber want that, and I am not sure what Alex Neil will make of it.

By wrapping not just ourselves but this Parliament in a flag, that is what we risk doing. I urge colleagues not to support the Government’s motion this afternoon.