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Chamber and committees

Meeting date: Tuesday, April 24, 2018

Meeting of the Parliament 24 April 2018

Agenda: Time for Reflection, Business Motion, Topical Question Time, Negotiations on the European Union (Withdrawal) Bill, National Plan for Gaelic, Point of Order, Decision Time, Show Some Heart (Jayden Orr Campaign)


Negotiations on the European Union (Withdrawal) Bill

The Presiding Officer (Ken Macintosh)

The next item of business is a statement by Michael Russell on an update on negotiations on the European Union (Withdrawal) Bill. The minister will take questions at the end of his statement.


The Minister for UK Negotiations on Scotland’s Place in Europe (Michael Russell)

Thank you, Presiding Officer; with your permission I will update Parliament on the negotiations that have been taking place between the Scottish Government, the Welsh Government and the United Kingdom Government on the EU withdrawal bill.

The negotiations have become particularly intense over the past few weeks. The joint ministerial committee on European Union negotiations met on 8 March and the JMC plenary met on 14 March. I spoke to David Lidington on the phone on 29 March, on 6 April and again last Saturday. I met David Lidington and Mark Drakeford last Monday and I spoke to Mark Drakeford several times in March and on Friday and Monday. I also wrote to Mr Lidington on Friday, and my officials have been in almost constant contact with Welsh and UK officials in the past month. I expect to meet Mr Lidington and Professor Drakeford again next week.

Accordingly, much effort has gone into—and will continue to go into—seeking and, if at all possible, achieving an agreed approach to the problems that the EU withdrawal bill and Brexit process have presented for the devolved Administrations.

Whenever this Parliament discusses Brexit, we should remember that the people of Scotland voted overwhelmingly to remain in the EU. There were majorities for remain in every single local authority area. The Scottish Government remains as committed as ever to EU membership.

This week we have had yet more evidence of the unfolding disaster and confusion that is Brexit. The Prime Minister’s refusal to countenance continued membership of the customs union, despite the evidence from her own Government of the damage that that will cause, is a result of the internal tensions in her party and has nothing to do with the best interests of any part of the country that she is meant to serve.

What is terrifying and appalling is that jobs, living standards and even the Good Friday agreement are all secondary concerns for the hard Brexiteers who now have the whip hand in Downing Street and, it seems, for those Tory ministers who put their jobs before the livelihoods and future of their fellow citizens.

I know that many people were strongly of the view that, because of our country’s democratic opposition to Brexit and particularly the hard Brexit that is currently favoured by the UK Government, this Parliament and this Government would have been entirely justified in taking a political decision to have nothing to do with the EU withdrawal bill.

As I told the Parliament in a previous statement, there was no consultation on the content of the bill prior to our seeing it in finished form. Moreover, when we saw the bill, it was clear that what was envisaged was nothing less than a crude power grab on the powers of the Scottish people as exercised by this, their Scottish Parliament.

However much we disagree with leaving the EU, legal preparations must, regrettably, be made for EU withdrawal. That is what the withdrawal bill seeks to achieve. Even if we were able to avoid Brexit at the 11th hour, that would still be case. Therefore, the huge, time-consuming task of ensuring that the statute books of the UK and Scotland can function properly following EU withdrawal is a necessary one.

This Scottish Government has risen to the task. Working with others—different political parties, Governments of different political persuasions and communities and interest groups across Scotland—we have all striven to achieve a better, more acceptable bill.

We have undertaken that work with only one absolute red line, which is this: all the preparations for Brexit can and must be done in a way that builds on and is consistent with the principles of devolution—principles that were endorsed overwhelmingly by the people of Scotland in the 1997 referendum.

That cannot come as a surprise to anyone. We have repeatedly made the point over many months. We said it in December 2016, in “Scotland’s Place in Europe”. We made the point in private to the UK Government before the withdrawal bill was even introduced, and we set it out in detail in September 2017 in the legislative consent memorandum for the bill.

On that issue, the Scottish Parliament has spoken as one, and its voice has been heard more powerfully because of that unity. In its interim report on the bill, the Finance and Constitution Committee unanimously called the bill’s approach

“incompatible with the devolution settlement in Scotland”.

It warned that clause 11, in particular, would

“adversely impact upon the intelligibility and integrity of the devolution settlement in Scotland”

and was

“a fundamental shift in the structure of devolution in Scotland”.

Let me focus on the precise words of the committee’s report for a second. What does it mean, to say that the UK Government’s approach is

“incompatible with the devolution settlement”?

Well, it means that clause 11 subverts the principles of that settlement—principles that have given the people of Scotland a stable and effective Parliament for nearly 20 years, supported by all parties in this place, and that, throughout that time, have secured good government under different Administrations and in response to many political challenges. At the very heart of those principles is this non-negotiable truth: changes to the devolution settlement require the agreement of the Scottish Parliament. That is the foundation stone of section 30 of the Scotland Act 1998, under which orders that adjust the list of matters reserved to the UK Parliament must be approved not simply in Westminster, but here as well.

The Scottish Government intends to protect that essential principle of devolution but, before I before I turn to how we will do so, I want to indicate the matters on which we have made negotiating progress—and I am pleased to say that there are quite a few of them. I pay tribute to the work of David Lidington and Mark Drakeford, to our respective officials and to those in this Parliament who have supported and helped the process, which has been strengthened by having substantial cross-party support. I thank a number of members of the House of Lords—especially Lord Hope of Craighead and Lord Mackay of Clashfern, who have shown a keen interest in the matter and have worked hard on it, as have Jim Wallace, David Steel and Dafydd Wigley.

Mark Drakeford and I, in our conversation yesterday, confirmed that we would continue, going forward, to work together on these and on all the other Brexit issues and concerns we have in common. Together with the UK Government, we are agreed that there is an important and difficult job to be done in preparing our laws for EU withdrawal. We are agreed that, ideally, it would be done on a UK-wide basis, through co-operation and collaboration between the Governments of these islands. We are agreed that, on leaving the EU, it could make sense for there to be common frameworks applying across the UK in some areas that were formerly covered by common EU rules. Where such frameworks are in Scotland’s interests, the Scottish Government is ready to discuss them. We have identified 24 areas in which we should be able to work together with consent from all the Governments involved. The Secretary of State for Scotland has also said—both to the UK Parliament and here—that frameworks should not be imposed on the devolved Administrations. We agree with that as well. Taken together with the principles of devolution, those points are the basis of something that this Government could consider recommending to Parliament.

However, the key sticking point remains—as it always has been—clause 11 and the insistence of the UK Government on its right to take control of devolved powers. Let me set out to Parliament where we are at present on that issue. Tomorrow, we expect the UK Government to publish further amendments to clause 11. We have given them serious and respectful consideration but we, as a Government, are absolutely and unanimously clear that we cannot support any proposal that would enable the powers of the Scottish Parliament to be constrained without the agreement of the Scottish Parliament. The UK Government’s latest proposals continue to give Westminster the power to prevent the Scottish Parliament from passing laws in certain devolved policy areas. While we expect the amendments to include the addition of a sunset clause, the restrictions on our use of such powers—our powers—would last for up to seven years. The UK Government says that that ban—or legal constraint—needs to be in place to prevent the Scottish Parliament from legislating on devolved matters, such as farming or fishing, while framework discussions are taking place. However, it has never proposed—and has indicated that it could not accept—such a legal constraint for England. Any constraint placed on the UK Government will, therefore, be purely voluntary.

Given the seemingly endless political uncertainty at Westminster, who can say what a future Prime Minister or UK Government will choose to do? However, during the period of restraint, the Scottish Parliament would lack the ability to ensure that our laws in those areas—environmental protection, for example—could keep pace with EU law. During the same period, Westminster politicians—or those who might replace them, of whatever political or constitutional hue—would have a totally free hand to pass legislation that would directly affect Scotland’s fishing industry, our farmers, our environment, our public sector procurement rules, the safe use of chemicals and our food safety—the list is long, while our Parliament’s hands would be tied.

It is also worth noting that although discussion and political agreement might have reduced the number of areas that might be subject to such restrictions to 24, under the UK Government’s proposals there will be nothing in the withdrawal bill that limits possible restrictions in those areas. Again, we are being asked to take that on trust. How could we recommend giving consent to a bill that would place Scotland in such a vulnerable position in these uncertain political times?

We understand that, in an effort to allay our concerns, the UK Government might also propose a further political commitment to the effect that it will not normally make such regulations without the consent of the Scottish Parliament. However, that would not form part of any legislative amendment. In any event, if we agreed to that, the terms of the UK Government’s approach mean that it would still be for the UK Government and, ultimately, the House of Commons to determine what was normal and what was not. It would also be for Westminster to decide whether the Scottish Parliament was acting reasonably on any occasion on which it opted to withhold consent. In that respect, we cannot forget that the UK Government has gone out of its way during the Brexit process to remind people that it can legislate on any matter at any time. Indeed, in relation to the Sewel convention, the UK Government lawyers told the Supreme Court:

“Whether circumstances are ‘normal’ is a quintessential matter of political judgment for the Westminster Parliament”.

Let me cut to the chase. Notwithstanding the more benign language that is now being used, the effect of the UK Government’s latest proposals remains that the Scottish Parliament’s powers could be restricted for a period of up to seven years without its consent. That is not something that the Scottish Government could recommend that the Parliament approves.

However, there is still a way forward. In fact, there are two possible ways forward, which I have outlined to David Lidington. The First Minister has today outlined them to the Prime Minister. The first is to simply remove clause 11 from the bill. The Scottish and UK Governments could then agree on equal terms not to introduce legislation in devolved policy areas while negotiations on frameworks were taking place. In that way, the Scottish Government is offering exactly the same “certainty” that is being offered by the UK Government. We could do so, as we have indicated, within a written and signed document that showed that neither side would unreasonably withhold agreement.

We believe that if such a voluntary agreement is good enough for Westminster, it should also be good enough for Holyrood. That solution would also demonstrate equity of treatment, which would be in keeping with the repeated assurances that were made to the people of Scotland during and after the 2014 referendum, and as part of the 2016 referendum campaign.

If the UK Government rejects that reasonable proposal, we have another one: we could agree to abide by the present system. In that system, any regulations that would prevent the Scottish Parliament from legislating on devolved matters for a temporary period of time must be introduced only when that is agreed to by the Scottish Parliament. That means that amendments to clause 11 must make it clear that absolute Scottish Parliament consent is required. There must be no override power for UK ministers in the withdrawal bill. That would be consistent with the way in which other order-making powers are currently exercised and with the devolution settlement. That proposal is one that we have repeatedly made to the UK Government.

Those are practical and workable solutions to the issue that would ensure that the necessary preparations for Brexit could be made across the UK, while protecting devolution. They are both on offer. By continuing to work with the Welsh and UK Governments, we can make progress on them but, in the end, it will be for this Parliament to make the final decision. It is the Scottish Parliament that will give or withhold legislative consent to the UK Government’s withdrawal bill.

Later this week, following the lodging at Westminster of the UK Government’s amendments, the Scottish Government will lay in Parliament a supplementary legislative consent memorandum, in which we will spell out in detail the Scottish Government’s remaining concerns about the bill and suggest the options that I have outlined as a way forward. It will express our wish to come to an agreement with the UK Government, but it will also make it clear that if clause 11 is not removed, or if the necessary changes to clause 11 are not made, we will not recommend that Parliament consents to the withdrawal bill as a whole. It will also set out our view on other clauses, indicate what we could accept if agreement can be reached and outline how we intend to proceed with the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, which we will defend vigorously in the courts.

At the end of that process, this Parliament will decide how it wants to proceed. It will then be for the UK Government and the UK Parliament to respond to that decision. They will have to do so by the third reading of the bill in the Lords, which will be the last opportunity to make any substantive changes to it in Westminster. That is what is required by our constitution, and no less an authority on the matter than Professor Tomkins, in this chamber, described the Sewel convention as

“a binding rule of constitutional behaviour: breach it,”

he warned,

“and there will be a high political price to pay”.—[Official Report, 23 January 2018; c 74.]

Indeed. It would be an outrage if the UK Government decided to use what the people of Scotland did not vote for—Brexit—to undermine what we did vote for: devolution. The UK Government has no mandate to undermine the powers of this Parliament and therefore the Scottish Government will do everything that we can to protect the devolution settlement that people voted for so overwhelmingly more than 20 years ago.

We want to agree with the UK Government and move the issue on so that we can spend time on the substantive and dangerous challenges that Brexit presents more and more pressingly to this nation, but we cannot agree at any price and certainly not at the price of undermining this Parliament and the essential work that it does for all the people of Scotland.

Adam Tomkins (Glasgow) (Con)

I thank the minister for early sight of his statement. It is deeply disappointing that he has come to the chamber without a deal today. As he knows, we on the Conservative benches have been critical of the process around clause 11 since last summer, but the United Kingdom Government has, in recent weeks, stepped up the pace, listened to the concerns that were raised and come forward with a new offer that it will publish tomorrow. However, it would appear that, for narrow political reasons, the Scottish National Party once again says no. That, it seems, has nothing to do with the matter at hand and everything to do with the SNP’s obsession with a second referendum on independence.

Will the minister confirm two points? In his statement, the minister claimed that he is still working together with the Welsh Government. Has he been informed of the view of the Welsh Government on the proposed new amendments to clause 11, or has it kept him out of the loop? Last September, Mr Russell said:

“we cannot envisage a situation in which Scotland would be content and Wales would not be, or vice versa.”—[Official Report, Finance and Constitution Committee, 20 September 2017; c 25.]

Has anything changed or is that still his position?

Secondly, is it not the case that the minister was, in fact, prepared to sign up to the deal today but was overruled last week by the First Minister? Is not it the case that he was prepared to give consent, but she refused?

Michael Russell

I will respond to three points and not just to the two questions. On the first point, there is nothing narrow about standing up for the powers of this Parliament—that is what we were all elected to do. The heart of this matter is very simple and the issue at stake has been boiled down to its irreducible minimum, which is that we can consent and move forward by consent or we can be refused the opportunity to consent. The offer is on the table and I have made it very clear that there are two options, either of which we would accept; I make that absolutely clear—we would accept either of them. However, there has to be a decision by the UK Government to respect the devolution settlement. That is non-negotiable.

On the two points, first it is up to the Welsh Government to say what its position would be. I have discussed these matters, over a range of days and opportunities, with Mark Drakeford. As I said in my statement, the thing that we agreed last night—at 25 past 5 last night, when I was on a Caledonian MacBrayne ferry on the way back from Mull—was that no matter the decision of either Government, which we are entitled to make, we would go on working together on the key issues from Brexit that confront both Administrations. There are some things that rise above the narrow political advantage of the Tories on Brexit, and one thing that rises above it is the work that the Welsh Government and we will do to defend the devolved settlements—and we will go on doing that together.

As for the final question, clearly Mr Tomkins is not close to what has taken place, because anyone who is close to what has taken place knows precisely that the situation as I left it with David Lidington in our conversation on Saturday is that we cannot move forward on the basis of lack of consent for the Scottish Parliament. I stand foursquare behind that position and, as I indicated, so does the entire Government—there is no crack in that. Either every member of this chamber stands foursquare behind that, or we would have to ask what they are doing here.

Neil Findlay (Lothian) (Lab)

All through this process, Scottish Labour has worked with others to bring about a resolution to the disagreements around the devolution of powers after Brexit, because we believe in devolution. In the House of Commons, Lesley Laird tabled amendments that would have resolved the situation but, disgracefully, Tory MPs were whipped to oppose them. Early on in the process, we proposed stand-still agreements and a sunset clause, but the minister was dismissive of that approach until he and the First Minister went on to propose the very same thing.

All along, we have taken the minister at face value. My colleagues and I have worked with him on the continuity bill. Up until today, he has shared information and the latest developments in negotiations but, today, alas, there have been no phone calls, texts or briefings—nothing. All we have to go on is the statement.

I acknowledge and welcome the progress that has been made on a range of issues. As we have asked for all along, it is clear that the three Governments have worked constructively to find compromise on some of the key issues, and welcome progress has been made. However, ultimately, we do not have an agreement. I ask, again, whether the Scottish Government’s position is shared by the Government of Wales. Is there no agreement there either? What will happen if the Scottish Government’s continuity bill is struck down by the Supreme Court? Where will that leave us? What scope is there for further last-minute progress?

To pick up on Mr Tomkins’s point, which I did not know about until today, the body language and lack of real language between the minister and the First Minister suggest that a deal—

Members: Oh!

Neil Findlay

I see that now they are all pals. That would suggest that there was potentially a deal to be struck, and that the minister wanted to sign it but was kiboshed by the First Minister. Is it the minister’s opinion that the Scottish Government should have an absolute veto at all times? I hope that the minister and the First Minister are not playing political games in another round of constitutional politicking, because that would be a betrayal of the good faith that we have invested in the process. To paraphrase the minister’s statement, it would be an outrage for the Scottish Government to use the devolution that the Scottish people voted for to pursue the independence that they did not vote for.

Michael Russell

I am grateful to see a new side of Neil Findlay today. I did not realise that he was a man of such sensitivity that his antennae could tell him instantly what the state of the relationship is between myself and the First Minister or, indeed, anybody else. I can assure him that the relationship with the First Minister seems fine to me, and I think that it seems fine to her, too.

The reality of the situation is clear. We need to know from Mr Findlay—it did not arise in his question, no doubt because he was too busy carefully staring at us to work out whether the First Minister and I were inching together or inching apart—whether he will stand up for the rights of the Scottish Parliament and oppose the imposition—

Neil Findlay

We do it every time.

Michael Russell

If he is indicating that he is willing to do so, I am very glad about that, because I want to continue to work with everybody on those issues. Notwithstanding the more benign language that is sometimes used in Westminster, the core issue is very clear. Will the Scottish Parliament consent, or will it not be asked for its consent? Will those restrictions last for seven years, or will we have a voluntary working together?

As far as the Supreme Court is concerned, we will vigorously defend our legislation, which the member voted for, I am glad to acknowledge. Members voted for it by 95 votes to 32. We believe that that legislation is not only justifiable but necessary, and we will stick with it.

We will go on working with the Government of Wales. I repeat the conversation that I had with Mark Drakeford last night: whatever the decision of the Government of Wales and whatever the decision of the Government of Scotland, we will continue to stand together on the issue of defending devolution, and we will continue to ensure that our interests are defended in this process. We will go on doing that, and I am sure that Neil Findlay will not wish to drive us apart from the Labour Government in Wales.

Patrick Harvie (Glasgow) (Green)

I have repeatedly said how sceptical I am about whether the UK Government will back down from its power-grab approach. Unlike some MSPs, who seem to be eager to sign off on a deal that undermines devolution, I believe that MSPs of all political parties should be resolute. Members of this Parliament should not undermine the Parliament or go along with a Brexit power grab that would do so.

The minister said that

“The UK Government has no mandate to undermine the powers of this Parliament”

and that is absolutely right, but surely there is now a bigger question. With all that we now know about the Cambridge Analytica scandal, about anonymous Tory donors channelling their money through the Democratic Unionist Party and back again in order to avoid transparency rules, and about whistleblowers’ revelations about illegal co-ordination between different parts of the leave campaign, is not it time to say that the entire EU referendum result is in question, and that there is no safe mandate for the UK to leave the European Union?

Michael Russell

I have the greatest sympathy for that point of view. [Laughter.]

It strikes me that all that hollow laughter from the Tories has a nervous air. They have been caught out about a shabby and unpleasant campaign, the result of which does not have—this is vitally important—the agreement of the people of Scotland. It might come as a surprise to the Tories, but this is Scotland’s Parliament. One or two Tory MSPs supported Brexit, which was a reasonable and honourable position, but the day after the result, some Tory members who had been clamouring to stay in the single market and the customs union were running away from that as fast as possible. That does not strike me as principled politics and it does not strike me as them being honest to the people whom they represent. Patrick Harvie was absolutely correct to raise those issues.

However, it is important that—as the SNP Government has tried to do from the beginning—we separate our ensuring that the statute book is prepared for a Brexit that I hope will not happen, from our opposing Brexit. We continue to oppose Brexit, but we also continue to try to get the statute book in the right condition, so that it is ready. We stand ready to do so on the terms of the proposals that I have laid out here today.

I commend anybody who has influence with the UK Government—I do not know whether anybody has; it strikes me that the Prime Minister does not listen to anybody but herself—to make sure that they understand that we are happy to accept the two offers and that that will conclude the matter.

Tavish Scott (Shetland Islands) (LD)

I also thank the minister for the advance copy of his statement.

In selling his approach, Mr Russell has made much of his close working relationship with his Welsh counterpart and with the Welsh Government more generally. He has stressed it time and again today. It now seems that the Welsh Government will accept the UK Government’s amendments tomorrow. What will the minister do in those circumstances? What is now the difference between Cardiff and Edinburgh?

Michael Russell

I know that Mr Scott likes hypothetical questions. He had a reputation for them in a previous parliamentary session.

I go back to what I said in my statement about my discussions with Mark Drakeford:

“Mark Drakeford and I, in our conversation yesterday, confirmed that we would continue, going forward, to work together on these and on all the other Brexit issues and concerns we have in common.”

That is the answer to Tavish Scott’s question: we will continue to do that, no matter the position that either Government takes.

That will also be true no matter the position that either Parliament takes. In my statement, I also stressed that the decision on the supplementary legislative consent memorandum will come to this Parliament and that it will be for Parliament to take a position on it. We will lay out in greater detail the things that I have mentioned today, then Parliament will have a choice.

I also indicated early in my statement that I expect to meet Mr Lidington and Professor Drakeford next week, when we will continue with our discussions. In our meetings, the view has also been taken that if we could get the Northern Ireland Assembly up and running—if we could overcome the historic mistake of the Tories of relying on Democratic Unionist Party votes, which has made that ever more unlikely—we might also be able to have four nations sitting at the table trying to find a way forward on the basis of consent. I repeat: “on the basis of consent.” That is the issue that we are addressing, and the issue that needs to be resolved.

Bruce Crawford (Stirling) (SNP)

Can the minister please confirm that I have the correct understanding of what he has set out in his statement? Am I correct in thinking that the UK Government is proposing a different set of rules for the UK to the rules for here at Holyrood in regard to some areas of devolved powers?

Am I also correct in thinking that the UK Government is proposing that Holyrood be bound by UK statute to not act on those devolved powers for at least seven years, while the UK Government would not be similarly constrained, and that it has asked us to trust it that it would not seek to change any devolved powers in those areas?

Does the minister believe that his proposal upholds a central principle of devolution—which is what this is all about—that Holyrood should always give its consent to changes in devolved powers that are proposed by the UK Government?

Michael Russell

Bruce Crawford has put things pithily and succinctly, as ever. That is exactly the situation. We are being asked to agree to something and to accept legislative constraint being put upon us in those areas for a period of seven years, while there will be no equivalent legislative constraint put on the UK Parliament or Government. That is exactly what the UK Government is saying.

Although I am a very trusting individual, I think that in those circumstances, trust should go both ways. We are saying that if that is the relationship that the UK Government wants to have, it should trust us and we will trust it. That is—I would have thought—a reasonable way to move forward. If it trusts us and we trust it and we write that down—we are quite prepared to put it in a written agreement—we will have a basis for moving forward. I think that most people would say, “That’s how a deal should be done. Do it.”

Jackson Carlaw (Eastwood) (Con)

There is clearly a heightened atmosphere, but I implore ministers to do all that they can to work until the very last minute to secure an agreement—and not, I say frankly, on the basis of the late and random proposals being made now but on the basis of the working amendment that is on offer.

The minister has spelled out this afternoon the concessions that the UK Government has made, but he has not spelled out what concessions the Scottish Government has made. Will he do so?

Given that the minister’s previous statement, and Ash Denham’s and Stuart McMillan’s interventions on it, were all based on the lock-step approach with Wales being fundamental to challenging the impression that there is anything here to evidence a constitutional obsession in the Scottish Government, what will ordinary Scots now make of the fact that if Wales agrees, it is Scotland alone that will stand against an agreement that will clearly be in the interests of the whole United Kingdom?

Michael Russell

Jackson Carlaw started well with an appeal to reason, but he did not finish very well. I think that ordinary people will look at this Parliament and say that they elected its members to stand up for Scotland. That is what we are here for. They will see some members who are prepared to stand up for Scotland, and who are prepared to say that the people who voted for the devolved Parliament have the right to be listened to, and that the people who did not vote for Brexit have the right to be listened to.

I think that people will also look at us and say that we are a Government that is offering a compromise, because the compromise that is being offered is absolutely clear. [Interruption.] The compromise is absolutely clear—we are prepared to restrict voluntarily how we operate and the powers that we have, as long as the UK Government agrees to its own voluntary restriction. We will then both have given up substantive amounts in order to reach a fair agreement about how we will operate. That is a massive concession.

At the beginning of the process, as I said in my statement, we would have been quite entitled, given how we had been treated, given how the legislation came about, and given what is in it, to throw up our hands and say that enough is enough, and that we will not be treated in that way. However, I have to say that we have, painstakingly and over many months, worked on the issues. We got, eventually, to the list of 24 after a lot of work. We got, eventually, acceptance of the principles on which we would draw up that list, and we have now got to the stage at which there is a very clear choice.

I agree with Jackson Carlaw that we should not hype the matter up as Adam Tomkins did at the beginning. Let us keep it nice and calm. [Laughter.] Some Tory members cannot do that, but I can, so let us try to keep this nice and calm. [Laughter.] I am afraid that some of the Tories are not up to the challenge, so I will give it a third shot. Let us keep this nice and calm. We have made the offer of a choice. The UK Government now has the opportunity to respond to it. Members of that Government are usually calmer than the Scottish Tories, so I urge them again to be calm, to look at that choice and to come to the voluntary agreement that we need.

The Presiding Officer

I urge all members and the minister to be succinct with the next few questions and answers.

Joan McAlpine (South Scotland) (SNP)

The minister has made it clear that the Scottish Parliament could be prevented from legislating in a wide range of devolved areas for, shockingly, up to seven years. What impact could that have on vital Scottish interests, particularly in the context of trade deals being struck after Brexit?

Michael Russell

The topic of trade deals is clearly very much on people’s minds—the much talked about but fortunately so far never-eaten chlorinated chicken comes to mind. In relation to a range of food safety issues, measures could simply be imposed on Scotland and we would have no possibility of resisting them. The same applies to areas such as environmental issues, the administration and development of agricultural policy and fishing.

The issue applies to a whole range of things, which gives us serious cause for concern, and that is only with the present UK Government. It is always foolish to say that things could not get worse, as my experience in politics is that they often can. Can members imagine a Boris Johnson Government? Can members imagine a Rees-Mogg Government? I know that that sounds ridiculous, but we live in a very bizarre world. Can members imagine what that type of Government might want to do and would be able to do because the Scottish Parliament could not prevent it from doing that? If that does not concentrate minds in this chamber, I do not know what would.

James Kelly (Glasgow) (Lab)

What would be the legal standing of the supplementary LCM that the minister proposes if the challenge in the courts to the continuity bill is successful?

Michael Russell

I would want to seek opinion on that question, because I am not in a position to give a legal opinion, and I do not think that I should do so. We will proceed to defend the continuity bill, as we believe that it is entirely within the competence of the Parliament. We will bring forward the supplementary legislative consent memorandum, which will go to the Finance and Constitution Committee, of which Mr Kelly is a member, where I am sure there will be a searching examination of it. It will then be up to the chamber to decide what to do. However, I do not really want to give Mr Kelly a legal opinion. I know that he can get some of those closer to home, but I really should not do that.

Stuart McMillan (Greenock and Inverclyde) (SNP)

The minister indicated that this is not the end of the process. What remaining opportunities are there for the UK Government to put the situation right and amend its bill to ensure that it respects the Scottish Parliament?

Michael Russell

There remains time for the UK Government to do so in the House of Lords at the third reading, which I understand is presently scheduled for the middle of May, although of course that timetable can always slip. We would have liked to have resolved the issue earlier, but we cannot resolve it on the basis of the present discussions. We have made substantial progress and there has been give on both sides, but there is a fundamental point, and we cannot work our way around fundamental points, although the UK Government keeps trying to do that. There is a fundamental point that we have to address and so we are placing it here very carefully. However, we could resolve the issue this afternoon. The First Minister has written to the Prime Minister and has set out the choice that we think needs to be made. If the Prime Minister were to come back and choose either of the options, the issue would be resolved. There is time to do that, and I hope that we are able to do it.

Maurice Golden (West Scotland) (Con)

Did the First Minister overrule the minister on making a deal?

Michael Russell


Ash Denham (Edinburgh Eastern) (SNP)

The statement revolved around the significant issues that remain over clause 11, but the minister outlined that there has been progress on other areas of the withdrawal bill. Will the minister say what those areas are and whether the approach now meets the approval of the Scottish Government?

Michael Russell

I just addressed a range of those areas in my statement and I will not go back through them, but in the conclusion to my statement I said that we will bring forward a supplementary legislative consent memorandum later this week. It will outline those matters in more detail and will indicate what we propose to do about them.

It is right to focus on the issue of clause 11, and I would encourage people to do that. Everything else is secondary in these circumstances—clause 11 is the issue that still requires to be resolved, so we need to focus on clause 11 and find a resolution to it.

Neil Bibby (West Scotland) (Lab)

I welcome and acknowledge the progress that has been made, but I have to express disappointment and frustration that, all these months later, we still do not have a deal.

The minister will know that I have pressed the case for the use of standstill agreements and sunset clauses. He will recall that Nicola Sturgeon and Carwyn Jones wrote jointly to offer a sunset clause as a potential solution to clause 11.

The Presiding Officer

Ask a question, please, Mr Bibby.

Neil Bibby

We now see a sunset clause on the table, but the minister appears to be objecting to it lasting up to seven years. Will the minister clarify whether he has a specific objection to it being up to seven years and, if he does, what timeframe would be acceptable to the Scottish Government?

Michael Russell

It is a combination of the time and the lack of consent that is the issue. A sunset clause is obviously useful to have and we have never opposed it, but we have been doubtful about it because the issue of consent is more important. The issue of consent remains at the centre of these concerns.

The member says that he is frustrated that there is no solution. I am frustrated that there is no solution. To be entirely blunt about it, I could probably do without commuting backwards and forwards to London to have these discussions. I could probably do without late Saturday afternoon discussions with David Lidington. I am frustrated too, but my job is to make sure that I do not sell the pass. The pass here is to make sure that we defend the Scottish Parliament and the devolution settlement. I absolutely will not sell the pass on those issues.

Ivan McKee (Glasgow Provan) (SNP)

I thank the minister for the statement updating us on the negotiations. A key point, however, remains: we cannot give up on the single market and the customs union, despite the Tories’ best attempts. Will the minister continue to fight for a differentiated solution for Scotland that will protect jobs, living standards and our economy?

Michael Russell

Yes, I will. The single market and customs union issue is vitally important. I am pleased to see that the position of the Labour Party has moved towards keeping the customs union, and I think that there was some indication in Emily Thornberry’s contributions over the weekend and yesterday that further movement was possible. I welcome that, because I think that single market and customs union membership is absolutely vital.

Of course, the UK Government knows that, because it has its own figures. In undertaking an analysis, as we have done, the UK Government has come to the conclusion that, of the three options that exist—single market and customs union membership, a Canada-plus type of deal and a World Trade Organization-rules deal—single market membership, even though it would mean that people would be worse off, would be a far, far better option than the other two. Those are facts and they are known to the UK Government.

The most astonishing thing is that a Government that knows those things—ministers who know those things—is proceeding with a fantasy about some advantages that will exist in free trade deals elsewhere, when the figures show that those would be minuscule when compared to the advantages of the existing customs union.

I saw the trade secretary tweeting about it at the weekend. The trade secretary knows from those figures that the advantages that will be produced by those free trade agreements are nothing compared to the disadvantages of leaving the customs union. Frankly, I find that—there is only one word for it—disgusting.

Graham Simpson (Central Scotland) (Con)

Last year, Mike Russell told the Finance and Constitution Committee:

“we cannot envisage a situation in which Scotland would be content and Wales would not be, or vice versa.”—[Official Report, Finance and Constitution Committee, 20 September 2017; c 25.]

Is that still his position?

Michael Russell

Mr Simpson is asking a question that was asked about four questions ago. I respectfully suggest that he catches up. It is very strange that the Tories are so concerned with Wales; I cannot remember Tories being concerned for Wales ever before—how odd.

The reality of the situation is that it is up to the Welsh Government and the Welsh Parliament to make their decision. Mr Simpson is a member of the Scottish Parliament, I remind him, and it is up to the Scottish Parliament to make our decisions.

I return to a point that I have made many times, which I will make again. It is absolutely clear from the discussion between me and Mr Drakeford yesterday. As I said, I was speaking from a CalMac ferry from Mull. I will read the point again. We confirmed—[Interruption.] If the Conservatives do not like the answer, they should not ask the question so often.

We confirmed

“that we would continue, going forward, to work together on these and on all the other Brexit issues and concerns we have in common.”

That was my answer 20 minutes ago, it was my answer 10 minutes ago and it is my answer now. If Mr Simpson comes back to it tomorrow, it will be my answer then.

Clare Haughey (Rutherglen) (SNP)

I thank the minister for the information that he has provided. What assurances has the Scottish Government received from the UK Government about how the devolved Governments will be consulted?

Michael Russell

Clare Haughey has returned to the nub of the matter, which is that there could be consultation, but there certainly will not be a role for decision making. In other words, we might be asked our opinion, but, if our opinion does not match with what the UK Government wants, it will not matter. That is not how we can do business—it is not how any member of this Parliament should be able to do business. We should be able to stand there as equals, discussing these issues with other Administrations and ensuring that we come to a common mind on them. That is mature politics and that is what we should be doing.