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Chamber and committees

Meeting date: Wednesday, September 16, 2020

Meeting of the Parliament (Hybrid) 16 September 2020

Agenda: Portfolio Question Time, Sustainable Aviation beyond Covid-19, Business Motions, Parliamentary Bureau Motions, Decision Time, Museum for Human Rights


Contents


Portfolio Question Time


Justice and the Law Officers

The Deputy Presiding Officer (Lewis Macdonald)

Good afternoon. I remind members that social distancing measures are in place in the chamber and across the Holyrood campus. I ask members to take care to observe the measures over the course of today’s business, including when entering and exiting the chamber.

The first item of business is portfolio question time. In order to enable all the questions to be answered, I would appreciate short and succinct questions, and answers to match.


Transparency Rules (Compliance)

1. Andy Wightman (Lothian) (Green)

To ask the Scottish Government, further to the commitment made by the Lord Advocate in April 2018 regarding raising proceedings against companies and Scottish limited partnerships for failure to comply with their statutory duties to provide information to Companies House, what progress there has been and whether there have been any convictions. (S5O-04581)

The Lord Advocate (Rt Hon James Wolffe QC)

Companies House is recognised by the Crown Office and Procurator Fiscal Service as a specialist reporting agency. Since April 2018, the COPFS has continued to work with Companies House to facilitate the reporting of alleged offences by Companies House to the COPFS.

Since September 2018, 13 charges under section 451 of the Companies Act 2006 against 11 individual accused have been reported by Companies House to the COPFS. Of those 13 charges, fewer than five have been marked for summary proceedings. Of those that have been marked for summary proceedings, fewer than five have resulted in a conviction, and some are still subject to live criminal proceedings. I express myself in that way because, in order to meet its obligations under data protection law, the COPFS does not provide statistical information for groups of fewer than five.

As at 10 September 2020, Companies House has not reported any charges to the COPFS under the Scottish Partnerships (Register of People with Significant Control) Regulations 2017, and, accordingly, no proceedings have been raised under those regulations.

Andy Wightman

We can be fairly certain that thousands of companies in Scotland are committing offences by not filing documents in time. Many of those companies are Scottish limited partnerships, some of which are known to have been involved in nefarious activities. The Lord Advocate says that there has been continuing engagement. I welcome that and the fact that 13 charges have been reported.

I understand that the Crown Office will consider criminal proceedings only when a report has been made by, in this case, Companies House. However, does the Lord Advocate agree that it is in the public interest for Companies House to report potential breaches to the Crown Office as soon as possible, in order that he can consider proceedings? Many dodgy companies are just being struck off by Companies House with no opportunity, as far as I can see, for proceedings, investigations or anything else to be launched by the Crown Office.

The Lord Advocate

It is, of course, for Companies House to decide whether and when to report alleged crimes to the COPFS. The COPFS continues to liaise with Companies House on specific cases that are reported to the Crown. There is also more general liaison, which includes advice to Companies House about the evidential requirements of Scots law in this area. There are a number of practical difficulties that affect the enforcement of such offences, including difficulties in identifying an individual offender against whom there is corroborated evidence and who can be made subject to the jurisdiction of the Scottish courts.

The United Kingdom Government has consulted on corporate transparency and on the law on limited partnerships. The COPFS has contributed to that consultation process. In particular, it has invited consideration of measures that would support the enforcement of those particular offences.


Sheku Bayoh (Public Inquiry)

2. Mark Ruskell (Mid Scotland and Fife) (Green)

To ask the Scottish Government what progress has been made on establishing the public inquiry into the circumstances surrounding the death of Sheku Bayoh. (S5O-04582)

The Cabinet Secretary for Justice (Humza Yousaf)

Since the announcement of the terms of reference in May, my officials have been working with Lord Bracadale and his team to put in place all of the resources that are needed to make an effective start to proceedings before announcing the formal setting-up date for the inquiry. The key appointments of the secretary, solicitor and senior and junior counsels to the inquiry have been made. Work continues on the appointment of assessors and identification of suitable premises. I continue to liaise closely with Lord Bracadale and will provide Parliament with further updates in due course.

Mark Ruskell

I thank the cabinet secretary for that update, but I ask him to confirm—[Inaudible.]—potential misconduct proceedings that were promised to the family by the Lord Advocate in the event of there being no criminal proceedings against the officers that were involved in the detention and restraint of Sheku Bayoh. It would appear that the Crown Office has not passed the file on to Police Scotland, and to wait a further three to four years for proceedings to be considered would be intolerable for all involved.

Humza Yousaf

I suggest to Mark Ruskell that he should write to the Lord Advocate on those matters. My job is to instruct the setting up of the public inquiry that will examine the facts of the tragic death of Sheku Bayoh. It will do so in a public, transparent way, and therefore, if there are issues as a result of the public inquiry, it will be possible to examine them fully thereafter. However, I suggest that Mark Ruskell raises those issues with the Lord Advocate directly.


Justice System (Young People)

3. Keith Brown (Clackmannanshire and Dunblane) (SNP)

To ask the Scottish Government what analysis it has done on the role of poverty and trauma in the lives of young people who enter the justice system. (S5O-04583)

The Cabinet Secretary for Justice (Humza Yousaf)

We have undertaken and supported a range of analysis, including research into the background of those in HM Young Offenders Institution Polmont and Scotland’s secure care centres.

In May 2018, we published evidence on the links between childhood adversity and criminality, and the independent care review highlighted the need to end poverty. The evidence shows that understanding the impact of trauma and providing the right support can have a hugely positive impact. In Scotland, we have seen a dramatic change in the youth justice sector, including an 87 per cent reduction in the number of under-18s in custody between 2006 and 2019. We are committed to continuing to reduce those numbers, develop trauma-informed approaches and reduce child poverty.

Keith Brown

The cabinet secretary will be aware that Clackmannanshire, in my constituency, has significant challenges related to poverty and levels of adverse childhood experiences. Despite the often ill-informed comments about young people that we see in the media, not one person under the age of 18 has been sentenced to imprisonment or admitted to secure residential care since 2015. Does he agree that the whole-system approach that was developed by the youth justice service in Clackmannanshire is effective and delivers better outcomes for our young people?

Humza Yousaf

The member raises an exceptionally important point. Some fantastic efforts have been made by the local stakeholders in turning young people’s lives around, and I pay tribute to all those involved in that vital work in the member’s constituency and across Scotland. Those efforts minimise the number of future victims. We forget that when we invest in rehabilitation, whether of young people or not-so-young people, everybody wins. Society wins because there are fewer victims of crime.

Since 2011, we have seen major sustained reductions in the number of young people who are being referred to court and sentenced to custody. We are committed to learning from good practices in areas such as Clackmannanshire and applying that across Scotland. We are confident that the whole-system approach gives us a sound method and we remain determined to make even more progress.

I am delighted that the member raised that local issue and I know that many other local authorities will look towards Clackmannanshire for that good practice.


Hate Crime and Public Order (Scotland) Bill

4. Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)

To ask the Scottish Government, in light of concerns regarding the term “likely” in relation to hatred being stirred up in section 3 of the Hate Crime and Public Order (Scotland) Bill, whether it is reviewing that phrase. (S5O-04584)

The Cabinet Secretary for Justice (Humza Yousaf)

Christine Grahame will have heard last week’s very good debate. I thought that the tone of the debate, across the chamber, was good. Before the debate, I promised to listen to all the stakeholders involved, including those who are critical of the bill and who want to see the bill amended. Those people are being listened to and will continue to be listened to.

I am looking at all sections of the bill and I can confirm that I am of course looking at the stirring-up offences, which include the “likely” threshold in regard to the stirring up of hatred. That is one area that is being explored. I hope to come to the Parliament with an update shortly.

Christine Grahame

The cabinet secretary is right to say that there is broad support across the chamber for the principles of the bill. However, that phrase causes concern. Will the cabinet secretary consider the essential requirement for, or ingredient in a crime, which is intent, or mens rea? In my view, “likely to” does not meet that test.

Humza Yousaf

I am listening carefully to the comments that have been made about the stirring-up offence. If I may make a counter-argument, we have had a racial stirring offence for almost 35 years. The threshold for that offence is behaviour that is threatening or abusive or insulting—there is that additional threshold—but it is based on not only intent, but the potential for or likelihood of stirring up hatred.

That law has operated in Scotland for nearly 35 years with almost no controversy. We can look to that example. The protection that we hope to provide for other vulnerable groups with other protected characteristics is broadly based on the racial stirring-up offence. It is not a mirror, but it is based on that.

Notwithstanding all that I have said, I am exploring that area. The Liberal Democrats in particular pushed me on that and I have committed to come to the Parliament well in advance of the Justice Committee taking oral evidence. I will do that, and I will look closely at that issue.

Liam Kerr (North East Scotland) (Con)

I agree with the cabinet secretary that we had a good debate last week. Following revelations at the weekend that the Hate Crime and Public Order (Scotland) Bill has received the largest number of written responses in the history of devolution, and that the Justice Committee was not aware of that when it agreed its timetable for the bill, does the cabinet secretary now consider that it would be sensible to rethink the approach to the stirring-up part of the bill? That would ensure that the other parts could be sufficiently scrutinised and legislated on to tackle the pernicious hate crime that we all wish to address.

Humza Yousaf

I thank Liam Kerr for the tone of his question. I understand his arguments about timing. I hope that he will understand the counter-argument, which was best articulated by Victim Support Scotland. If we delay the bill beyond this parliamentary term, those who need its protections the most—at a time when the atmosphere for minority groups can be febrile and hostile—will wait even longer.

My commitment is to come to the Parliament as soon as I can, and before the oral evidence stage at the Justice Committee, with some proposed changes. It is for the Parliament to decide the timetable for the bill. I am beholden to the Parliament.

The first part of Liam Kerr’s question was about this being the most controversial bill, and about the 2,000-plus submissions on the bill. It is not my job to avoid criticism; my job is to make decisions that can be extremely difficult and to ensure that we have legislation that is both effective and protects people’s rights. I go back to the quote by the American author Elbert Hubbard:

“To avoid criticism, do nothing, say nothing and be nothing.”

Our job is not to avoid criticism. Our primary aim as legislators is to pass good legislation that protects people and also protects their freedom of speech.

Liam McArthur (Orkney Islands) (LD)

I thank the justice secretary for that confirmation that he has responded to my call in last week’s debate for him to come forward ahead of the Justice Committee’s stage 1 oral evidence with proposed changes to the Hate Crime and Public Order (Scotland) Bill, and particularly to part 2 of the bill.

The cabinet secretary has referred on a couple of occasions to coming to the Parliament as soon as possible. When and how does he intend to come back to the Parliament with those proposals?

Humza Yousaf

Those are decisions for the Parliamentary Bureau to take. I suggest that the correct approach would be for me to make another ministerial statement. That would give as many members as possible the opportunity to ask questions and to scrutinise what I propose. If the Justice Committee wished me to come to the committee thereafter, I would be more than happy to do that.

I would have to speak to the business team, who would speak to the Parliamentary Bureau, and get agreement from parties across the chamber. I intend to do that as soon as I can, to give the Justice Committee as much time as possible in advance of its taking oral evidence.


Domestic Abuse and Stalking Charges (Statistics)

5. Angus MacDonald (Falkirk East) (SNP)

To ask the Scottish Government what its response is to the statistical publication “Domestic abuse and stalking charges in Scotland 2019-2020”. (S5O-04585)

The Cabinet Secretary for Justice (Humza Yousaf)

First, I reiterate the message that I, the First Minister, the Chief Constable of Police Scotland, the Lord Advocate and many others across the Government have—I hope—been clear about before and throughout the pandemic: domestic abuse and stalking will not be tolerated in our society. That is particularly the case during these unprecedented times when there is potentially greater danger for victims. Regardless of local restrictions, our response remains unchanged and we encourage victims to come forward and seek help.

The “Domestic abuse and stalking charges in Scotland 2019-2020” publication provides an early indication that Scotland’s new domestic abuse laws are encouraging victims to come forward and report those crimes, while providing police and prosecutors with greater powers to target those who engage in coercive or controlling behaviour towards their partners or ex-partners.

It is worth recognising that an offence that might previously have been reported as an isolated stalking charge may now, where appropriate, be included as part of a course of conduct of domestic abuse under section 1 of the Domestic Abuse (Scotland) Act 2018. It is also worth noting that the domestic abuse publication covers the period up to the end of March 2020 and does not reflect the full Covid lockdown period. However, we remain committed to tackling all forms of gender-based violence and will introduce legislation to the Parliament on domestic abuse protective orders within this parliamentary session.

Angus MacDonald

We know that such crimes can have a devastating impact on those affected. How many police officers and staff have been trained to identify signs of coercive and controlling behaviour? Can the cabinet secretary outline how the new domestic abuse bill will build on those protections?

Humza Yousaf

The training of police officers was an integral part of making sure that we got the Domestic Abuse (Scotland) Bill right. There would have potentially been unintended consequences if we had enacted the bill before that training had taken place. More than 14,000 police officers and staff across Police Scotland completed the domestic abuse matters training. Further to that, training of around 700 domestic abuse champions will sustain change, identify and address good and poor practice, and support and offer guidance to their peers.

As I mentioned, and as announced by the First Minister in the programme for government, the bill that we are looking to introduce will impose restrictions on a suspected perpetrator of domestic abuse, including removing them from the home that they share with the person at risk and prohibiting them from contacting or otherwise abusing the person at risk while the order is in effect. The bill will also facilitate, where appropriate, processes for changes to be made to social housing tenancy agreements to help victims stay in their own homes by giving powers to remove perpetrators from tenancy agreements.

Those measures are intended to further protect people at risk of domestic abuse and enable them to take steps to address their long-term safety, particularly in relation to housing. We look forward to introducing the bill shortly and I hope that it will command the support of the Parliament.


Quarantine (Country Exemptions List)

6. Richard Lyle (Uddingston and Bellshill) (SNP)

To ask the Scottish Government what account it takes of the impact on people who have booked holidays when determining which countries to add to its list of those where people must self-isolate for 14 days when they return. (S5O-04586)

The Cabinet Secretary for Justice (Humza Yousaf)

I am sympathetic to the impact of border health measures on holidays. I know that Richard Lyle will understand, however, that our overarching priority must be to protect public health. Decisions on additions to and removals from the country exemptions list are based on the latest evidence available about the numbers of cases, transmission, the importation of risk, in-country controls and a range of other factors. We are continuously keeping the list of country exemptions from the quarantine requirements under review.

The measures are based on the risk to public health from international travel. That means that the list of exempt countries can change relatively quickly because the situation in a country can change at short notice. As the First Minister and I have said previously, our advice to people right now has to be that they should think very carefully about non-essential foreign travel, given the gravity of the situation that the world is facing.

Richard Lyle

I agree with the cabinet secretary’s comments. However, several of my constituents have been refused total refunds for their holidays, which they cancelled due to the destination country being added to the 14-day self-isolation list overnight.

Companies say that they can refund only for actions taken by the United Kingdom Government and not for actions taken by the Scottish Government. Does the Consumer Rights Act 2015, or any Scottish law, cover my constituents? If not, why not?

Humza Yousaf

I will make a couple of comments in response to that. First and foremost, we strive for four-nations alignment where we can get it. In the vast majority of cases, we manage to get significant alignment, but I am afraid that, in a certain number of cases, we will not. That will not be for any malicious reasons; it will be because the data on in-bound transmission in cases in Scotland may be different from the picture in Wales, Northern Ireland or England, for example. It is certainly for understandable reasons—where we do not manage to align, there is no concern at my end.

On the detail of the member’s question, the operation of any air service is a matter for the individual airline. Quarantine requirements and, indeed, Foreign and Commonwealth Office advice do not prevent an airline from operating any flights, and the Scottish Government does not have the power to prevent flights from operating. Passenger rights in relation to aviation are covered by European regulations, which, in the United Kingdom, are overseen by the Civil Aviation Authority. Further information on passenger rights is available on the CAA’s website.

Although the regulation of consumer protection is the responsibility of the UK Government, under the Scotland Act 2016, the Scottish Government has taken on responsibility for consumer advice and advocacy. The Scottish Government funds a consumer service that provides clear, practical advice on all consumer issues. The member’s constituents may therefore wish to contact Advice Direct Scotland. Its contact details are online.


Domestic Abuse (Scotland) Act 2018 (Non-harassment Orders)

7. Linda Fabiani (East Kilbride) (SNP)

To ask the Scottish Government how it continues to monitor the issuing of non-harassment orders by sheriffs under the Domestic Abuse (Scotland) Act 2018. (S5O-04587)

The Cabinet Secretary for Justice (Humza Yousaf)

The 2018 act makes it mandatory for the court to consider in every case whether to impose a non-harassment order to protect the victim. It also provides that, where such an order is not made, the court is required to explain the basis for that decision.

The 2018 act has a statutory reporting requirement under which the Scottish ministers are required to publish a report on the operation of the act three years after its commencement. That report will include information on the number of non-harassment orders made by the courts in domestic abuse cases. That information is being monitored closely so that it can be included in the report, which will be published shortly after April 2022.

Linda Fabiani

Last year, a similar parliamentary question was asked in the chamber, and I was pleased that there was agreement to look into the matter. However, I continue to hear reports of an apparent reluctance by the courts to issue NHOs, despite the clear presumption in the 2018 act. Is the cabinet secretary aware of that? Is that, in fact, the case? How are the Scottish Government, the Crown Office and Procurator Fiscal Service and the Lord Advocate addressing the matter?

Humza Yousaf

I thank Linda Fabiani for her persistence in raising the issue, because it is important. I know that, when the Domestic Abuse (Scotland) Bill was going through Parliament, she took an active interest in standing up for victims of domestic abuse.

I have considered the matter. We are closely monitoring the numbers, and the report is due to be published in April 2022. I can say that we have seen the number of non-harassment orders increase, which gives me confidence. Will it increase to the level that I would like to see? I will take that away and look at it again.

If Linda Fabiani can provide, perhaps offline, evidence—even anecdotal evidence—I would be more than happy to progress that with my colleagues in the Crown Office and the judiciary.

At this point, I must, of course, underline that decisions about non-harassment orders are ultimately for the judiciary to decide on and I am not seeking and would not seek to influence that. However, clearly, it is an issue of intense focus and interest for us, which we are monitoring closely.


Craig McClelland (Public Inquiry)

8. Neil Bibby (West Scotland) (Lab)

To ask the Scottish Government whether it will reconsider its position on holding an inquiry into the circumstances that led to the murder of Craig McClelland, following the decision by the Lord Advocate not to conduct a fatal accident inquiry. (S5O-04588)

The Cabinet Secretary for Justice (Humza Yousaf)

My sympathies—and, I expect, those of all members—remain with the family of Craig McClelland.

I am aware that Craig’s family requested a full review of the Lord Advocate’s decision not to hold an FAI into the circumstances of his death. That review has concluded that there was no basis for overturning the original decision. The decision on whether to hold an FAI is, of course, one that is solely for the Lord Advocate to take, and is taken independent of the Government.

As for any further inquiry that it might fall to the Scottish Government to instruct, as I have said previously I do not believe that holding a full public inquiry would be appropriate. There has been a criminal prosecution, followed by two independent reports and two follow-up reports by the independent police and prison inspectorates, which have prompted significant change and additional safeguards within the home detention curfew regime.

Neil Bibby

No family should go through what Craig McClelland’s family has gone through, and no one should have to bear the pain of losing someone so cruelly, or to endure the intransigence of a system that prevents them from getting the answers that they need.

Now that the Lord Advocate has made his decision, it is down to the Scottish Government—and to it alone—to decide whether there will be an independent public inquiry. The Government has previously opposed the holding of such an inquiry, and has opposed a change in the law that would make the holding of fatal accident inquiries mandatory.

In the light of the Lord Advocate’s decision, will the cabinet secretary reconsider the Government’s position? Does not the cabinet secretary agree that it will be difficult for people to have confidence that lessons have been fully learned when the family of Craig McClelland does not have such confidence?

Humza Yousaf

Neil Bibby is absolutely right to advocate on behalf of Craig McClelland’s family, whom—as he will know—I have met on a number of occasions. I say to Mr Bibby that any decision by me, or by the Scottish Government, on the holding of a public inquiry was not necessarily related to whether there would be an FAI, which is a separate decision that it is ultimately for the Lord Advocate to make.

As I said in my earlier answer, there have been a criminal prosecution and a number of reports examining the HDC regime. There have since been changes to that regime. At the time of Craig’s tragic murder, about 300 people were out on home detention curfew; the figure is now closer to 80. The HDC regime has therefore been significantly tightened, and it has been improved.

Along with other partners, I wrote to Craig McClelland’s family to answer about 34 questions that they had to ask at the time. If there are further questions for the Scottish Prison Service, the Government or any other party, I am sure that they will seek to respond to them. However, at this stage I do not think that a public inquiry is either needed or appropriate.


Constitution, Europe and External Affairs

The Deputy Presiding Officer

I remind members that questions 4 and 5 have been grouped together, as have questions 6 and 8.


Scottish Information Commissioner

1. Beatrice Wishart (Shetland Islands) (LD)

To ask the Scottish Government what recent discussions it has had with the Scottish Information Commissioner. (S5O-04589)

The Minister for Parliamentary Business and Veterans (Graeme Dey)

The most recent discussion that I, as Minister for Parliamentary Business and Veterans, had with the commissioner was in a telephone call on 21 May. My officials held a catch-up meeting with the commissioner and his management team on the same day, and they continue to engage with his office regularly.

Beatrice Wishart

The Scottish Government’s track record on compliance with freedom of information requests was already shaky, but in his recent report the Scottish Information Commissioner found that different rules were applied to requests from people with a platform. Further, in introducing emergency legislation, Scottish ministers tried to reduce public access to information. Staff were also subsequently taken out of the Scottish Government’s FOI unit. Transparency is more important now than it ever has been, so will the minister commit to complying with the legislation and fully staffing that unit?

Graeme Dey

The commissioner’s recent report noted clearly the improved performance of the Scottish Government in that regard. Beatrice Wishart is right to say that staff from the FOI unit were redeployed to other areas of Government. I make no apologies for that; we were and we continue to be in a pandemic, so roughly half the staff from that unit were deployed to other duties. They are gradually returning. We will staff up, but I say, to be clear, that the priority of the Government is, first and foremost, that we deal with the pandemic.

Dean Lockhart (Mid Scotland and Fife) (Con)

The Public Audit and Post-legislative Scrutiny Committee recently raised concerns that the Scottish Government is using social media such as WhatsApp to avoid freedom of information legislation. Can the minister confirm to Parliament that that is not the case?

Graeme Dey

That is not the case.


Brexit (Impact on Fisheries)

2. Michelle Ballantyne (South Scotland) (Con)

To ask the Scottish Government what talks it has had with the European Union regarding the potential impact of Brexit on Scotland’s fisheries. (S5O-04590)

The Cabinet Secretary for the Constitution, Europe and External Affairs (Michael Russell)

Scottish ministers and officials meet their EU counterparts regularly to promote Scottish fishing interests and other priorities and, in line with the democratically expressed wishes of the people of Scotland, to reiterate our firm opposition to Brexit.

Of particular concern is the grossly reckless “no deal or low deal” approach that is being taken by the United Kingdom Government, which would devastate the interests of the Scottish seafood sector and our coastal communities, and put at risk almost £700 million-worth of seafood exports to the EU.

Michelle Ballantyne

The Scottish Fishermen’s Federation has said that negotiating with the EU for anything other than the UK being a fully independent coastal state would be a “colossal betrayal”. Does the cabinet secretary agree that foreign affairs is a reserved matter and, therefore, that any interference by the Scottish National Party in the EU negotiations undermines the devolution settlement, thereby putting Scotland’s fishing industry at risk?

Michael Russell

I am not negotiating with the EU. Every discussion that I ever have, or which the First Minister and others have, is predicated on that. However, to hear a Tory MSP talk about the undermining and gross betrayal of anybody is rich, on a day when the actions that the UK Government is demonstrating at Westminster are to destroy completely the devolution settlement. Michelle Ballantyne should be in the chamber apologising to members, not making assertions.

Liam McArthur (Orkney Islands) (LD)

As the cabinet secretary will be aware, Brexit poses a real threat to the ability of the catching and the processing sectors to recruit the workers whom they need. Unfortunately, fishing crew do not feature in the UK immigration shortage of labour list.

What discussions is the Scottish Government having with UK counterparts about how the pressures that are facing the fishing sector might be met through regional variations, in order to allow specific needs in different parts of the UK to be met?

Michael Russell

Liam McArthur makes a good point. Of course, Ben Macpherson, who has been dealing with migration issues, said last week that he is finding it impossible to get a discussion or a meeting with UK ministers. That is the reality of how the UK treats Scottish interests in such matters.

Liam McArthur is also right to reflect on the fact that it does not matter how much fish we can catch if we cannot process it, sell it or get it to market: it becomes irrelevant. What he described is typical of the short-term thinking of Brexiteers—in particular, the Brexiteers who run the UK and Scottish Conservative parties.


UK Withdrawal from the European Union (Continuity) (Scotland) Bill

3. Liz Smith (Mid Scotland and Fife) (Con)

To ask the Scottish Government what its position is on whether the scrutiny provisions proposed for the Scottish Parliament in relation to the UK Withdrawal from the European Union (Continuity) (Scotland) Bill are adequate. (S5O-04591)

The Minister for Parliamentary Business and Veterans (Graeme Dey)

The Scottish Government considers that the scrutiny procedures chosen for the power in section 1(1) of the bill represent a good balance between allowing for effective and thorough scrutiny of use of the power and ensuring that there is sufficient flexibility to allow the Government, where appropriate, to respond quickly where legislative changes are required.

Liz Smith

The minister will be aware that at the Finance and Constitution Committee meeting on 26 August, Professor Aileen McHarg of Durham University and Professor Michael Keating of the University of Aberdeen both expressed their concern that between the original bill and the current bill, the default position changed from use of affirmative procedure to use of negative procedure. Can the minister explain why that is the case, and say whether he agrees with the two witnesses that the change reduces the scope for scrutiny in the bill?

Graeme Dey

I am aware of a range of views on the issue. I am certainly aware that there have been calls for an enhanced affirmative procedure to apply, where provision is made that amounts to substantial policy considerations, or something similar. That would be difficult to operate in practice, given how subjective that test is and how difficult it would be to divine. In effect, applying it would involve a subjective assessment of whether a provision meets the test, which could open the door to speculative legal challenges in which it could be argued that a different procedure should have applied.

We think that we have an appropriate, proportionate, workable and effective solution. [Interruption.] I hear the Conservatives disagreeing. They have every right to disagree and they can do so during the committee process. However, we believe that we have a pragmatic and practical solution. I look forward to parliamentary scrutiny of the issue.


European Union Laws

4. Maurice Golden (West Scotland) (Con)

To ask the Scottish Government whether, following the end of the transition period, it will want Scotland to keep pace with all new European Union laws. (S5O-04592)

The Minister for Europe and International Development (Jenny Gilruth)

It will not be possible to align with every new EU law. Some will operate properly only in the EU, some will be in reserved areas and there might be practical or resource constraints in relation to others. However, we intend to seek the closest relationship possible with the EU, and the UK Withdrawal from the European Union (Continuity) (Scotland) Bill will provide the basis on which to do that by secondary legislation. We will seek to align wherever it makes sense for Scotland to do so, because we share the values that are set out in the Treaty on European Union, which are respect for human dignity, respect for human rights, freedom, equality, democracy and the rule of law.

Maurice Golden

On the basis of current structures, what formal role will the Scottish Government have in influencing the direction or content of future EU laws?

Jenny Gilruth

Maurice Golden should remember what our constituents voted for in 2016. They did not vote to leave the European Union. They did not vote for a power grab from Westminster on the Scottish Parliament’s powers. They did not vote for a Tory Government, and nor would they endorse a hard Brexit. The Scottish Government will fight to maintain Scotland’s international reputation in the teeth of a United Kingdom Government that is now, by its own admission, intent on breaking international law.

It is clear that the continuity bill threatens the Tories, so terrified are they that we would dare to seek to rejoin the European Union, but rejoin we will. In the meantime, we will keep pace with the high international best practice standards that are represented by EU law, because that is what the people of this country voted for, and Maurice Golden should remember that.


European Union Laws

5. Dean Lockhart (Mid Scotland and Fife) (Con)

To ask the Scottish Government what role it will have in influencing the direction or content of future European Union laws that it plans to keep pace with under the proposed terms of its EU continuity bill. (S5O-04593)

The Minister for Europe and International Development (Jenny Gilruth)

The Scottish Government has always had to work hard at influencing EU laws in less formal ways, as the United Kingdom is the member state. To that end, Scottish Government officials and ministers will continue to engage with their counterparts where possible.

Mr Lockhart raises a relevant and welcome point. The best way in which to influence the direction and content of future EU laws is to be a full, equal and independent member of the EU. The partnership approach of the EU is in clear contrast to the utter contempt that the member’s Westminster Tory colleagues continue to display towards the people of Scotland, which is one reason why support for independence is now the majority position in Scotland.

Dean Lockhart

The minister talks about a separate Scotland joining the EU. Does she therefore plan to keep pace with the EU stability pact, which requires member states to have a budget deficit of no more than 3 per cent of gross domestic product? If so, can the minister explain where the £10 billion of spending cuts will be made in Scotland in order to keep pace with that fiscal requirement, given that, under the Scottish National Party, Scotland has the highest fiscal deficit of any western economy?

Jenny Gilruth

The continuity bill does not require Scotland to align with any or all EU measures; instead, it allows us to assess on a case-by-case basis, applying our judgment and common sense, whether aligning is in Scotland’s best interests. The democratic accountability will always remain with the Scottish Parliament. In assessing whether to align with any given EU measure, we will look at a range of factors such as the practical implications, economic and social benefits, the costs and resource implications and any impact on Scotland’s future re-accession to the EU.

The premise of Mr Lockhart’s question was about how Scotland can best have influence. As I have told him, the answer is that we can do so by being a full, equal and independent member of the EU.

Alex Rowley (Mid Scotland and Fife) (Lab)

The Tories seem to be having a good chuckle to themselves on the issue of Brexit. I speak to many constituents who are concerned that we will have much-reduced environmental standards and poorer food standards—are they right to be concerned?

Jenny Gilruth

Alex Rowley is correct in saying that our constituents have extreme reservations about that. I do not know about his inbox, but I have been inundated by concerned constituents who are worried about food standards, for example, and they are right to be concerned. This is a power grab on the Scottish Parliament’s powers, but we have made it clear that the Scottish Government will not stand for it and that we will challenge it and work against those measures at every possible opportunity.

The continuity bill allows us to keep pace with those high standards. That is not something that the Conservatives should be threatened by, unless they do not want to keep up with—[Inaudible.]—high standards.


United Kingdom Internal Market Bill

6. Maureen Watt (Aberdeen South and North Kincardine) (SNP)

To ask the Scottish Government what its position is on whether the United Kingdom Government’s proposed United Kingdom Internal Market Bill will take powers away from Scotland. (S5O-04594)

The Cabinet Secretary for the Constitution, Europe and External Affairs (Michael Russell)

Yes, there is no doubt about that. The legislation is fundamentally inconsistent with the devolution settlements and their operation since 1999. It would centralise power in the UK Government and UK Parliament and would cut across devolved powers by imposing a blanket constraint on devolution and the democratically elected members here. It would reserve state aid and give UK ministers sweeping new powers to allocate funding in devolved areas in Scotland without the oversight or consent of anybody in Scotland.

UK ministers talk of a power surge to devolved Administrations, but that is very misleading—the new powers that the UK has listed are already devolved. The bill makes it clear that state aid is to be removed from being a devolved power to become a reserved power. It also grants greater powers to UK ministers to bypass devolved decision making. The bill is, without a doubt, the biggest threat to devolution since 1999, and we will vigorously oppose it at every turn and in every way possible.

Maureen Watt

I thank the cabinet secretary for that full and clear answer. The European single market rules recognise and allow for policy objectives, such as the health benefits of minimum unit pricing, alongside market economic considerations. Can the cabinet secretary advise whether the Scottish Government has received any confirmation that that would be the case under the UK Government’s internal market plans? If he has not, is he concerned about what may happen under the legislation when minimum unit pricing comes up for review?

Michael Russell

It is absolutely clear that any and all of the decisions of the Scottish Parliament can be overturned or undermined by the internal market legislation. I noticed the evidence that was being given to the Finance and Constitution Committee this morning in relation to taxation. The Tory members are sitting in the chamber, giggling away at themselves, because they know that their jacket is on a shoogly nail on those matters and that the people of Scotland are looking at them as people who wish to damage and destroy the institution to which people in Scotland elected them, and they will not take kindly to that.


United Kingdom Internal Market Bill

8. Ruth Maguire (Cunninghame South) (SNP)

To ask the Scottish Government what its latest engagement has been with the United Kingdom Government regarding the United Kingdom Internal Market Bill. (S5O-04596)

The Cabinet Secretary for the Constitution, Europe and External Affairs (Michael Russell)

At the meeting of the joint ministerial committee on European Union negotiations on 3 September, I made clear the Scottish Government’s opposition to the UK Government’s initial internal market proposals and called for them to be withdrawn in light of significant concern raised by members of the Scottish Parliament and stakeholders across Scotland in response to a consultation, whose results the UK Government has not been prepared to publish.

Since the bill was published, we have continued to make clear our intention to oppose the bill in every way possible. Following that, the Cabinet Secretary for the Economy, Fair Work and Culture wrote to the Secretary of State for Business, Energy and Industrial Strategy, Alok Sharma, setting out in detail the economic grounds on which we consider the provisions in the bill to be unnecessary. The letter highlighted the way in which the mutual recognition model that is set out in the bill cuts across the democratic choices of devolved Parliaments and raises serious concerns about the way in which future trade deals that are made by the UK could impact on lower standards, as has already been indicated by the UK dropping public health priorities in pursuit of a trade deal with Japan.

We have been clear with the UK Government that the common frameworks programme that we have engaged in in good faith over the past two years is what is needed to manage the practical and regulatory impact of the United Kingdom leaving the European Union, as was always envisaged, and, as I have said, the alternative proposals that are being put forward by the UK Government present a significant threat to devolution and to the roles and responsibilities of this Parliament and the Scottish Government, and to the everyday lives and expectations of the people of Scotland.

Ruth Maguire

Widely and correctly, the bill is seen as being incompatible with devolution, bad for business and consumers, dangerous to the environment and an impediment to necessary and effective devolved public health measures. What action will the Scottish Government take to stop the Conservative Government in London unilaterally and arbitrarily imposing its will on Scotland against the wishes of the Scottish Parliament and the Scottish citizens who sent us here?

Michael Russell

The bill is being vigorously opposed at Westminster in the House of Commons. It would be good to think that all elected Scottish representatives were standing up for Scotland and that, therefore, one could look across the chamber at the Scottish Conservatives and ask whether they are prepared to stand up and defend devolution. Alas, they will, regrettably, be found wanting on that matter.

When the bill goes to the House of Lords, we expect there to be vigorous opposition there, not least because the bill also breaches international law, as the UK Government admitted. We have not and will not rule out other actions, because the bill is wrong and should not pass, and we will do everything that we can to ensure that it does not pass or come into effect. We will do everything that we can to ensure that it does not undermine the will of the Scottish people.


Trade Negotiations

7. David Torrance (Kirkcaldy) (SNP)

To ask the Scottish Government what engagement it is having with the United Kingdom Government regarding the European Union exit trade negotiations. (S5O-04595)

The Cabinet Secretary for the Constitution, Europe and External Affairs (Michael Russell)

The Scottish Government has frequent discussions at official level with the UK Government in relation to the EU exit negotiations, as I said earlier. However, despite the Scottish Government’s best efforts since the beginning of the Brexit process, the UK Government continues to refuse the meaningful engagement that is necessary to ensure that the UK position identifies, protects and promotes Scotland’s interests.

Given the way in which the UK Government has consistently ignored the wishes and interests of the people of Scotland, including in the extraordinary decision to end the transition period during a global pandemic, the case for Scotland becoming an independent and equal member of the EU, as my friend Jenny Gilruth said this afternoon, has never been stronger, nor has it ever been better supported in Scotland.

David Torrance

Does the cabinet secretary agree that the UK Government has shown complete contempt for the devolved nations and that the actions of the Tories are hugely damaging to Scotland’s interests and threatening to our economy?

Michael Russell

I cannot think of a better statement with which to end this session. I entirely agree with it.

Alex Rowley (Mid Scotland and Fife) (Lab)

This morning, the Finance and Constitution Committee heard that there is a threat that the Scottish national health service, as well as other public services, could be included in future trade deals. Given that level of threat, will the cabinet secretary make representations to the UK Government on that matter, because that is just another threat to devolution?

Michael Russell

I say to Mr Rowley, you bet I will. I make those representations all the time and will continue to make them. Without doubt, despite what the UK Conservative Government or the Scottish Conservatives say, the United Kingdom Internal Market Bill is a major threat to devolution, and there is nothing that the Scottish Parliament does that is not threatened by it. It is certainly more than likely that public services such as the national health service will be assaulted by the bill.

The Deputy Presiding Officer

That concludes portfolio questions. My apologies to the members who could not be called.