Meeting of the Parliament

Meeting date: Tuesday, December 11, 2018

Official Report 1164KB pdf

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Topical Question Time

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Article 50 (European Court of Justice Ruling)

To ask the Scottish Government what its response is to the ruling by the European Court of Justice that the United Kingdom can unilaterally revoke article 50. (S5T-01392)

The court’s ruling is a hugely important decision that provides clarity at an essential moment. People in Scotland overwhelmingly voted to remain in the European Union, and that continues to be the best option for Scotland and the UK as a whole. Thanks to the efforts of Scotland’s parliamentarians—let me name check them: Andy Wightman, Ross Greer, Joanna Cherry, Alyn Smith, Catherine Stihler and David Martin—and Jolyon Maugham and the legal team, we now know beyond doubt that remaining in the EU is not only the best option but one that can clearly be achieved, and the Scottish Government believes that it should be.

It is a very important ruling by the ECJ. Will the cabinet secretary join me in congratulating the Scottish politicians involved on securing clarity on at least one aspect of Brexit? Does he agree that, in the light of the ECJ ruling and given the total chaos that exists at Westminster, it is time for politicians to use the ECJ ruling to find a way to end this Brexit madness and the potential of a no-deal scenario?

I do. It is very difficult to find words that adequately express the sense of chaos and dismay at Westminster and the sense of dismay in the country at large. I have just met some stakeholders who confirmed to me that investment by them and others will simply not take place, because there is just no idea about what is going to happen next.

The ruling makes clear that there is a route to revocation of the article 50 notification. It states that

“the revocation ... must ... be unequivocal and unconditional”.

A second EU referendum including the option to remain in the EU would provide such a way forward.

We have always said that remaining in the EU would be the best outcome. Of course, we have offered compromise after compromise, particularly in the form of membership of the single market and customs union, and those continue to be options that would minimise the damage of Brexit to Scotland. However, we need to decide how to move forward and to be clear about that, and the ruling provides much-needed clarity. I have name checked those who have been involved and I pay tribute to them. Quite clearly, it was not an easy decision for many of them to be involved, and many of us wondered what the outcome would be. Now that we know, we should use it.

Given the chronic leadership vacuum that exists over Brexit at Westminster and the serious damage that is being forced on our country, what is the Scottish Government’s view on whether a way forward can be found that can command a majority in the House of Commons? Does he believe that the time has come to put the people in charge and let them democratically decide their own future through a people’s vote?

One of the most extraordinary things in this process has been the sight of the Prime Minister rampaging up and down the country—well, in Scotland, within half an hour’s travel of Glasgow airport, which for her counts as rampaging up and down the country—and now going off to the continent to talk to people, but never saying that the people who count are the voters. That is what now needs to happen. The people of Scotland have already been clear. They voted overwhelmingly in 2016 to remain in the EU, and that remains the best option.

At this juncture, with the chaos that we have seen and the leadership vacuum that the member mentioned, a second referendum would clearly offer the opportunity for Scotland’s views to be respected rather than ignored, as they have been throughout this disastrous process. For that to happen, it would seem clear that the current Prime Minister needs to get out of the way. She is insisting on pursuing her deal even though it would make Scotland and the UK poorer, as would be the case in circumstances where there was no deal.

The deal has been rejected by this Parliament and by the National Assembly for Wales, and it would have been rejected by the House of Commons had the Commons been given a chance to vote on it. Even the House of Lords had to suspend its debate. It is absolutely clear that the Prime Minister is not going to lead anybody anywhere. What we need is an expression of popular will, which can now come about through the so-called people’s vote.

There are three supplementary questions.

First, I, too, thank my fellow petitioners—Joanna Cherry, Ross Greer, David Martin, Jo Maugham, Alyn Smith and Catherine Stihler. I also thank our legal team—Aidan O’Neill QC, David Welsh QC, Maya Lester QC and Elaine Motion, chair of Balfour + Manson. Finally but not least, I thank the many members of the public who contributed to our crowdfunder.

The Court of Justice says that the UK can revoke the article 50 notification unilaterally and that the purpose of such a revocation is to confirm the EU membership of the member state concerned under terms that are unchanged. The Advocate General for Scotland, on behalf of the United Kingdom Government, consistently opposed the action for a year. Can the cabinet secretary recall a Government in the past going to such lengths and such expense to oppose the right of the people to find out their legal rights?

No. It is difficult to find a parallel—but then, it is difficult to find a parallel for this entire UK Tory Government, which is unique in how it has operated and, in particular, is uniquely antidemocratic.

I repeat my tribute to the people who took part in the case. Andy Wightman and his colleagues have done an important task, which at the beginning did not seem to be possible but has proved to be so. They have all contributed enormously to this process.

The important thing now is to look forward from this. A route has been opened up and, as Andy Wightman said, it is a route to withdrawing notification and remaining on the same terms, which is extremely important. In those circumstances, I again urge the UK Government to take that clear step.

Three things struck me about this curious judgment. First, it is very much rooted in state sovereignty, that is to say in the sovereignty of the United Kingdom state.

Secondly, the court said, in paragraph 66 of its judgment, that the member state could revoke notification given under article 50 to leave the European Union, if the wish to do so was

“expressed through its democratic process”.

Does the minister accept that there has been no democratic expression in the United Kingdom that article 50 should be revoked?

The third thing that struck me when I read the judgment was that the notice to revoke must be given

“in accordance with”

the member state’s

“constitutional requirements.”

The court uses the phrase several times in its judgment, notably in paragraph 73.

The minister said that the judgment adds clarity. It seems to me that it does the very opposite. Has he taken advice on what the UK’s constitutional requirements would be in revoking notice given under article 50? Are we talking about a ministerial power to be exercised under the prerogative? Are we talking about the requirement of an act of the UK Parliament? Does the minister consider that we would need a fresh referendum for those requirements to be complied with?

It is extraordinary that the member, who I acknowledge is a very clever man, requires to question the basics of democracy every time he gets up to speak in this chamber. What we have heard is sophistry. That is all it is.

The reality is that there is a way out of this enormous mess. It is a way that the member might have welcomed, given that he has claimed—and I do not doubt his claim—that he voted to remain. It clears up the mess that his party at Westminster has made.

I do not regard the judgment as “curious”; I regard it as telling us something that we probably already knew but which it is useful to have confirmed, albeit that that has taken an awfully long time, because of the actions of the UK Government, as Mr Wightman said. It is absolutely clear that there should be a democratic expression of will, and it is absolutely clear that the constitutional requirements should be met. That is not a surprise. The democratic expression of will could be a resolution of the Parliament, of course. It might be an encouragement to have a people’s vote—if the member is encouraging that, I am glad to hear it.

If the UK Parliament and the people of these islands—the people of these four countries—say that they do not want to leave the EU, that is enough for me. I think that they should be allowed to say that.

Does the cabinet secretary agree that the ECJ decision simply means that the UK Parliament is sovereign on the question of Brexit? Can he say whether meetings with the UK Government are scheduled? I realise that there is not much time left before the Christmas holiday period. Finally, does he think that, in light of various events of the past few months, the arrangements that were set out in “Scotland’s Place in Europe” in 2016 require some revision?

On the member’s final point, we have constantly developed, revised and built our arguments. That is the right thing to do. However, I think that the basic thesis is correct, which is that, if the UK Government were to accept a compromise, we believe that the compromise that we proposed is the best alternative to leaving. That remains the case.

Given the mess that there is now at Westminster and the way in which the Prime Minister and the Tory party have led on the matter, I suspect that a people’s vote is now the clearest and best way to move forward. However, “Scotland’s Place in Europe” argued a strong case, and that case still stands.

Discussions are taking place about a joint ministerial committee meeting to be held before Christmas, but there is no confirmation of that at the moment. I am not entirely sure what would be discussed in that meeting, as I am not entirely sure what the Prime Minister is resolving by going to talk to people who have already said that there will be no renegotiation. However, we are, of course, always willing to have a conversation.

I cannot say that I am fond of the sovereignty of the UK Parliament. Devolution is a careful balancing act in which the devolved Parliaments of these islands dance around the concept of the sovereignty of the UK Parliament. However, it was interesting to see yesterday that Liam Fox was apparently denying the sovereignty of the UK Parliament because, apparently, only the Government matters. In those circumstances, we have to say that it is the Tories’ understanding of democracy that is at fault. That was demonstrated beyond any doubt by the question from Professor Tomkins.