Meeting of the Parliament

Meeting date: Wednesday, January 25, 2017

Official Report 995KB pdf

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Supreme Court Judgment (Article 50)

The next item of business is a statement by Michael Russell on the United Kingdom Supreme Court judgment on the triggering of article 50. The minister will take questions at the end of his statement, so there will be no interventions while he is speaking.

14:40  

At the outset of this statement, I make it clear that the Scottish Government welcomes yesterday’s ruling by the Supreme Court that article 50 cannot be triggered without an act of the Westminster Parliament. That ruling comes as a stinging rebuke to the UK Government on its stubborn refusal to accept the previous, unanimous court ruling that an act of Parliament is required before formal notification of the decision to leave the European Union. Instead, it tried to plough on regardless towards a hard Brexit, hoping to bypass parliamentary scrutiny.

Effective UK parliamentary scrutiny is now enabled, but parties and members at Westminster will have to rise to that challenge. The Scottish National Party is more than ready to do that. Once the UK Government publishes its article 50 bill, the 50 SNP MPs in the House of Commons—[Interruption.] I am sorry to understate the number. There are, of course, more than that—far more than the one Tory from Scotland who sits in the House of Commons. The SNP MPs in the House of Commons will lodge a range of amendments to clarify the UK Government’s approach to triggering article 50. Some of those amendments will seek to amend the bill so that the UK Government must first secure unanimous agreement from the joint ministerial committee—the UK’s equal partners—on the triggering of article 50.

In July last year, the Prime Minister assured the First Minister that article 50 will not be triggered

“until … we have a UK approach and objectives for negotiations”.

That was in line with Theresa May’s clear and unambiguous view of how the United Kingdom should operate. The UK, she said, should be a country

“in which Scotland, Wales, Northern Ireland and England continue to flourish side-by-side as equal partners.”

Of course, that sentiment was expressed by all the better together partners during the 2014 referendum. Taking the Prime Minister at her word, we will seek to enforce that via the Westminster bill when it is brought forward. I am sure that that will be welcomed with equal cheers from the Tory benches.

There was another aspect to the judgment that has made one thing crystal clear: this whole process, and the determination of the UK Government to pursue a disastrous hard Brexit, is revealing much about the way in which power is exercised in the United Kingdom and who exercises that power. Yesterday, the Supreme Court considered the arguments that were put forward in interventions by the Lord Advocate and the Counsel General for Wales on the devolution implications of triggering article 50. We are obviously disappointed with the Supreme Court’s ruling on the legal enforceability of the Sewel convention, but let us be clear about what the judgment actually said. Notifying the intention to leave the EU will have significant consequences for devolved matters and the powers of the Scottish Parliament and Scottish ministers. The court explicitly accepted that. In so doing, it made it obvious that the Sewel convention is triggered by a UK bill authorising the article 50 notice. The court has ruled that the operation of the convention is a political, not a legal, matter, and is therefore outside the court’s remit. That position was urged on the court by the UK Government, which also resisted any and all efforts to give real teeth to the Scotland Act 2016 provisions on the Sewel convention. The UK Government has at least been consistent in its position that under no circumstances should its action be questioned by judicial authority.

The Tories may wish to reflect on the wisdom of gloating on that point. Rather than a defeat for the Scottish Government, yesterday’s ruling exposed the inadequacy of the Smith commission process—[Interruption.]—and the belief that writing Sewel into law would represent a new status for the Scottish Parliament.

It is a defeat for the Tory architects—that includes the Tory constitutional spokesman—of the Scotland Act 2016. The defeat goes wider than that. As one commentator—Kenny Farquharson of The Times, who I am sure will be surprised that I am citing his tweets—noted, yesterday’s ruling

“on rights of Holyrood are a deep disappointment. There was an opportunity ... to recognise new reality of a changed UK.”

He also wrote:

“this is a depressing moment for those of us who’ve consistently backed home rule for Scotland within a reformed UK.”

Yesterday’s ruling demonstrates how empty were the assurances that we are a partnership of equals and that the Scotland Act 2016 would represent a new UK settlement. The UK Government merely reinforces the old view—the supremacy of Westminster and its immunity from constraint by law or courts or respect for this Parliament. We can expect to see more of that as Brexit proceeds; we already see that attitude in proposals for UK-wide regimes, overriding existing devolved competence.

Last year, the Tory Secretary of State for Scotland boasted in a speech about what he called “new realities” that the Sewel convention was “now written in law”. However, in its submission to the Supreme Court, the UK Government left that position far behind and made it clear that its law—Mundell’s law, Tomkins’s law—was not worth the paper that it was written on.

Instead of crowing on Twitter, the Conservatives, led by their constitutional spokesperson, should abjectly apologise to the people of Scotland and to those who believed that their promises in 2014 would lead to a genuine change in the status of Scotland’s Parliament and Scotland within the UK.

The reality is that, up until now, the UK Government has in practice always accepted that a change to devolved competence requires the consent of the Parliament. The UK Government’s guidance and this Parliament’s standing orders are clear that the Sewel convention applies where a bill

“contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers.”

Attempts to argue the opposite would overturn—indeed, they are in danger of overturning—nearly 20 years of accepted practice under different political Administrations both north and south of the border. That fatally undermines the protections—perhaps on Burns day I should say “the boasted advantages”—given to the Scottish Parliament and Government in the devolution settlement.

It is clear that the Sewel convention will be engaged by a bill that changes the law on devolved matters or the competence of the devolved institutions. Therefore, once the UK Government Bill is published, and in line with this Parliament’s standing orders, the Scottish Government will publish a memorandum setting out the implications for devolved matters and the powers of the Parliament and Scottish ministers. As things stand, in that memorandum we will be unable to recommend that the Parliament give its consent to a bill giving the UK Government the power to trigger article 50.

We will use next week’s joint ministerial committee meeting to continue to press for the sensible compromise outcomes that are set out in the paper that we published in December 2016. However, it is becoming clearer by the day that Scotland’s voice is simply not being heard or listened to in the UK. The claims about Scotland being an equal partner are being exposed as empty, diversionary rhetoric by the facts.

Last week, the Prime Minister unilaterally announced, without any notification or negotiation, that she intends to take the UK out of not just the EU but the single market and, indeed, the customs union. That announcement pre-empted a meeting of the joint ministerial committee at which the possibility of the whole of the UK remaining in the single market was due to be discussed as one of the options in the Scottish Government’s Europe paper.

Indeed, the Prime Minister also made her announcement before one of the UK’s negotiating partners—the Welsh Government—had even published its proposals for the way forward. How can a unified UK approach be agreed when the Prime Minister does not even bother to wait to hear the position of one of the constituent parts of the UK before pronouncing? Now the very foundations of the devolution settlement that are supposed to protect our interests, such as the statutory embedding of the Sewel convention, are being shown to be worthless.

The Scottish Government has done all that it can to seek compromise and reach accommodation with the UK Government on the terms—[Interruption.] They are still not listening, Presiding Officer. The Scottish Government has done all that it can to seek compromise and reach accommodation with the UK Government on the terms of the UK leaving the EU. We have recognised that there is a mandate for England and Wales to leave the EU, but there is no such mandate in Scotland.

We were the first Administration anywhere in the UK to produce detailed and pragmatic proposals on how to respond to the challenge of Brexit. It is for the UK Government to show similar pragmatism. It is time for it to compromise, and it is time for it to listen and to respect the views of others.

It is becoming increasingly clear that the UK Government’s approach to Brexit is not just about the question of EU membership but about the kind of country that we want to live in. Do we want to have our future direction determined by an increasingly right-wing, reckless, hard-Brexit Tory party that is determined to turn its back on Europe despite the threats to jobs, prosperity, rights and freedoms, or is it better to take the future into our own hands? Is it better that we determine the kind of Scotland, the kind of Europe and the kind of world that we want to live in?

Those are the questions that all of us should start asking ourselves today. The actions of the UK Government are making those the key questions of this whole process. It is closing down the options for Scotland instead of working with us to find the right way forward for everyone.

Thank you. Members who wish to ask questions should press their request-to-speak buttons. There will be about 20 minutes for questions.

I thank the minister for early sight of his statement. If it is to be believed, I have made more law for Scotland than the whole of this Parliament, given that it has been 10 months since Parliament last debated a bill. When the Government plays the man and not the ball, that is always a sure sign that it knows that it has lost the argument.

It was always going to be the case that the UK Parliament would be fully involved in the Brexit process. The question in yesterday’s case was much narrower: do UK ministers have the legal power to trigger article 50, or is fresh legislation needed to confer that power upon them? It is a complex question of law that split the 11 justices of the Supreme Court.

Where the court was unanimous, of course, was in throwing out the entirety of the Scottish Government’s argument that this Parliament has a legal right to be consulted on a matter that is plainly reserved to Westminster. The UK, not Scotland, is the member state of the European Union and it was the UK as a whole, not its nations severally, that took the decision, by referendum, to withdraw from the European Union. That matter is not devolved, and nothing in the vow, the Smith commission or the Scotland Act 2016—in any of them—has ever suggested that it should be.

The Sewel convention, to which the minister referred, provides that the Westminster Parliament will not normally legislate on devolved matters without our consent. That convention can surely have no application to a bill that does nothing more than to confer on UK ministers the legal power to give effect to June’s referendum result by triggering article 50, for the simple—and, I should have thought, really rather obvious—reason that the UK’s membership of the EU is not, and never has been, devolved to this Parliament.

The SNP has spent the past seven months trying and failing to stoke grievance about Brexit; now it seems that its ambition has been reduced to stoking new grievance about the Sewel convention. Last week, the Prime Minister explained how she wants “the freest possible trade” with the European Union and “the greatest possible access” to the European single market. Instead of complaining about a court judgment that has gone against it, when will the Scottish Government get on board and help to make Brexit a success for all of us?

It is regrettable that the Tory constitutional spokesperson did not address the issues that were raised either in the statement or in the judgment, so let me address them yet again.

I am sure that Professor Tomkins is perfectly capable of making bad law; however, he does not understand how bad the law that he made is. He was a key Tory adviser on the matter and on the Scotland Bill, and he was involved in the Smith commission process. The commitment was clearly given—[Interruption.] I know that Tory members do not like the reality of what is happening in Scotland, but they will have to face that reality. Their policy has been dictated by Westminster; it has not been made in Scotland for their constituents, whom they are letting down every shout that they give out in this chamber.

The Smith commission made an agreement and made it clear in the heads of agreement that

“The Sewel Convention will be put on a statutory footing.”

It is clear that, in the circumstances that we are now in, the Smith commission proposal is not worth the paper that it is printed on. The reality is not just that it is not effective, but that the UK Government argued against its being put on a statutory footing in the court case.

There is no doubt that, at the end of the day, that is a matter for the Presiding Officer and Parliament, but Parliament’s standing orders are clear that the Sewel convention applies where a bill contains provisions “applying to Scotland” and which are for devolved purposes,

“or which alter that legislative competence of the Parliament or ... the executive competence of the Scottish Ministers”.

Paragraph 130 of yesterday’s judgment confirms that the legislative competence of the Parliament will be altered. In those circumstances—[Interruption.] Shouting from the sidelines is an odd way to argue a legal case—it is very strange—but that is what we are hearing from Professor Tomkins. It is a fact that

“Facts are chiels that winna ding.”

Even at this very late day, I hope that the Tories will get on board with Scotland rather than trying to stay on board with Theresa May.

I am grateful to Mr Russell for advance sight of his statement.

Mr Russell was right in his peroration to decry a reckless Government that is committed to turning its back on our neighbours despite, as he put it,

“the threats to jobs, prosperity, rights and freedoms”.

He will know that the people of Scotland have voted against abandoning our neighbours precisely because we understand the threats that come from isolationism and turning our backs on our closest friends and trading partners. The Scottish people do not want to turn our backs on Europe or the rest of the UK. [Laughter.] I am sorry that SNP members do not find that to be a serious point; it certainly is serious.

When Mr Russell talks of “closing ... down options”, is he abandoning his Government’s commitment to work together across parties and across the UK, despite the recklessness of the Tory party? Will he reject isolationism in all its forms?

In the spirit of the joint working that we saw in Wales and, indeed, in Parliament last week, and in recognition of the clear need for change, will the Scottish ministers now support Scottish Labour’s calls for a constitutional convention across the UK, and put the national interest and the public interest ahead of party interests?

For the record, I reject isolationism in its entirety, but that is not what we are discussing.

To use the words of the slogans that used to be shouted on marches, I say as positively as I can to Lewis Macdonald, because I want to work with the Labour Party on the matter: what do you want and when do you want it? The reality is that people cannot sit for ever saying that they want everything out of the situation and that they are not prepared to make a decision. Unfortunately, that is where the Labour Party finds itself.

I do not wish to see any barriers to trade within these islands. I stand with the person who said:

“We want to buy your goods and services, sell you ours, trade with you as freely as possible”.

I stand, on this rare occasion, with Theresa May, because that would happen with independence and if we remained in the single market. All our proposals are predicated on working and trading with both the UK and the EU. I am sure that Lewis Macdonald has read in great detail several times the proposals in our paper. That is precisely what it says.

If the Labour Party will work with us to achieve the best solution, I will be happy to work with it, but unfortunately—I know that the Labour Party hates this—it will have to make a decision. It will have to decide whether it really wants to see Scotland as part of both the customs union and the single market, working and trading freely with the 27 EU member states, and part of the UK single market. Our paper says that that is entirely acceptable. Therefore, trying to make a difference between us on the matter is wrong, and it is untrue that there is a difference. Please work with us and support us to get our paper implemented, rather than splitting with us on it.

It would be good to have slightly tighter questions and answers.

The UK Government suggested during the Smith commission process that putting the Sewel convention into statute was a huge breakthrough, but in court it argued that it did not change anything. Does the minister agree that that means that the UK Government’s claim that the Scotland Act 2016 made the Scottish Parliament at Holyrood

“the most powerful devolved Parliament in the world”

was a deception?

In the cause of brief answers: absolutely.

Is it not manifestly opportunist—having demanded week after week for months on end that the Prime Minister make clear her intentions on the single market—to protest, when she does exactly that, that it is a disgrace, on the facile basis that every last person in the UK had yet to express their view? The “stinging rebuke” yesterday by the vote of 11 to zero was to the Scottish Government. Surely the stinging rebuke that will follow will be in response to the SNP’s determination to create further uncertainty and constitutional division with its paranoid thrice-daily threats of another independence referendum, while ministers repeatedly ignore the business of Scotland for which this devolved Parliament and Government actually have a responsibility.

It appears to me that the “business of Scotland” is in very safe and competent hands. [Laughter.] Ah! Well, it is interesting that that is what the people of Scotland believe, too, if elections and opinion polls are anything to go by. Tory self-delusion is not unknown; it continues to this day.

Can I just make it clear that the remarkable terms of Jackson Carlaw’s question need to be thought about? What he was apparently arguing for was that his constituents and this Parliament should be at the back of the queue, were it to be the case that “every last person” was consulted. I do not think that the Scottish Parliament is “every last person”. The Prime Minister said on the record that she would engage with the devolved Administrations. Engagement does not mean publishing her position and going on to say what it is 48 hours before the negotiating committee that she has set up has even had a chance to meet. That is not the right way to proceed. However, if the attitude of the Tories to this Parliament and to Scotland is that we are “every last person”, it is little wonder that people look at them and think, “They’re not really for us.”

The minister quoted in his statement the Prime Minister’s statement that article 50 would not be triggered

“until … we have a UK approach and objectives for negotiations”.

In addition, the Scottish Conservatives made it very clear previously that, after the EU referendum, the overriding priority was to stay in the single market. Can the minister tell me whether the Scottish Conservatives have offered him any suggestions about keeping Scotland in the single market? Have they now abandoned that position in favour of their Westminster Tory bosses’ hard-right, hard-Brexit position, despite the obvious disastrous economic consequences?

It is very obvious from the Prime Minister’s speech last week and from the actions of the UK Government that they are determined to have the hardest of Brexits. Fortunately, the position in the Scottish paper remains, after a great deal of work by the devolved Administrations, that there will be continued discussion among officials. Clearly, that paper’s first option—that the UK should remain in the single market—was knocked out of the water by the Prime Minister’s refusal to consult the joint ministerial committee. However, the other parts of that paper remain in play and are strengthened by the very good Welsh paper that was published on Monday. It is absolutely remarkable that the Prime Minister made her decision not just 48 hours before the JMC meeting but even before the Welsh paper had been published, despite the UK Government’s knowing that it was about to be published. Incidentally, it is a joint paper developed between Labour and Plaid Cymru. I have to say that it is a very good paper—and that it is all the better for being a joint paper.

Given all those circumstances, it is quite clear that the UK Government is determined to have a hard Brexit. I am equally determined, along with colleagues in the other devolved Administrations, to maintain membership of the single market. That view is held widely, if not unanimously, across the devolved Administrations, and we will continue arguing and fighting for that.

I seek assurances from the minister that he will continue to focus on arguing Scotland’s case with the UK Government, difficult though that is. Will the minister gave his assurance that he will continue to use his offices and his time to influence the opportunities that arise for Scotland to have more say on policies in the UK on immigration, fisheries and the economy, which the majority of people demand from their ministers?

I continue to use my good offices and every ounce of energy that I have to try to influence the position of the UK Government on the matter. I am happy to give that assurance to Pauline McNeill because it happens to be the absolute truth. The difficulty in so doing should not be underestimated—especially the difficulty in so doing with the rhetoric that is coming from the UK Government and because of its actions.

I will continue to do my very best, but it is absolutely right that I tell this Parliament the facts of the matter, and the reality of the way in which the UK Government is responding. I am fulfilling that obligation, as well.

Like colleagues, I thank the minister for advance sight of his statement.

The Greens, like the Scottish Government, are disappointed in the outcome of the Supreme Court ruling. We were promised during the independence referendum that Scotland would be an equal partner in this union and that our voice would be listened to, yet it is clear that the Scotland Act 2016 did not live up to those promises. The permanence of this Parliament is meaningless if it can be overridden at will.

It is increasingly clear that the Scottish Government’s significant compromise proposals have been dismissed out of hand by a Westminster Government that did not even wait for equivalent proposals—[Interruption.] You know, Presiding Officer, if my party had led this country into the mess that it is in, I would be a little bit more sheepish in this chamber than certain members have been today.

The minister has pointed out that options are fast closing for Scotland. Can he confirm the timetable on which an independence referendum bill will be introduced? It is becoming increasingly clear that we must put Scotland’s future in Scotland’s hands.

I thank the member for that. His remarks about those who are responsible for the mess that we find ourselves in are very accurate indeed. Unfortunately, being sheepish is not a Tory trait.

Arrogance.

Arrogance, as my colleague says, is much more like it. [Interruption.] That arrogance continues with the laughter from the Tory front bench.

I cannot give the member that timetable. He will not be surprised about that, but let me put it in this way: the options that we have placed on the table are being closed down not because of any actions by the Scottish Government but by the Westminster Government, so in a sense the timetable for what goes ahead now lies with that Government. If it is prepared to operate in the way that it has promised, and if it is prepared to debate and discuss and to look seriously at where we are going, that will dictate one timetable; if it is not prepared to do so, that will dictate another.

I ask for brief questions and brief answers, please.

I understand that our SNP colleagues at Westminster will table 50 amendments. What assurances has the minister had that they will avoid a race to the bottom, with the UK Government trying to attract business to the UK by offering lower taxes, lower wages, less regulation and reduced workers’ rights? [Interruption.]

The cackling laughter from some members on the Tory benches probably says it all. It is quite clear that that is entirely what it is intent on achieving.

The SNP group at Westminster, along with others I am sure, will work hard to avoid that—as this Parliament must, because the obligation to defend Scotland in those terms will lie with this Parliament. It should be willing to pick up that challenge and to work to ensure that that does not happen.

I thank the minister for an advance copy of his statement. I gently suggest that he is missing the opportunity from yesterday’s judgment. The Westminster Parliament can now influence the Brexit process in a way that the Conservative Government was previously hotly contesting it could. That means that we can build the case for a Brexit deal referendum, so that the British people can reject the Brexit deal that the Conservatives compile if it would be damaging to our country. The minister said that his MPs will table 50 amendments. Will he support a Liberal Democrat amendment for a Brexit deal referendum?

Last time that was mentioned in the chamber, two weeks ago, a very good point was put to—I think—Tavish Scott, who was asked whether the Liberal Democrats would recognise in any such referendum a Scottish vote that opposed leaving the UK, and the answer appeared to be no. That does not appear to be very liberal or very democratic, and it is certainly not responsive to Scotland. I do not really think that the way in which the Liberal Democrats are approaching this smacks of any seriousness at all.

I would be happy to sit down with Willie Rennie again to discuss how we take the issue forward. However, on the basis that forcing the issue would not win the support of the House of Commons as far as we can see—it would not be likely to win any support apart from that of the Liberal Democrats—it is important to try to go with the flow and to find effective actions rather than ineffective ones.

Figures published earlier today show that almost two thirds of Scotland’s trade is with the rest of the UK—that is four times more important than our relationship with the rest of the EU single market. Contrary to what the minister has said today, the SNP’s proposed differentiated approach would result in a trade barrier between Scotland and the rest of the UK, and the terms of that trade barrier would be negotiated in Brussels, not here. Can the minister explain how the SNP’s prioritisation of the EU single market at the expense of our domestic market is in the best interests of Scotland; or does he agree with the former leader of his party, Gordon Wilson, when he said:

“Demanding a European settlement for Scotland ... is simply pointless posturing”?

Well, I had anticipated that question, because it seemed the most obvious one. I have to say that it is not a very sensible question at all. The reality of the situation is that during the entire 2014 referendum campaign, and on every occasion in this chamber since then, we have made it clear that it is not a matter of either/or, and we would wish to trade with the rest of the UK as the rest of the UK wishes to trade with us. If Mr Lockhart had read the proposals—and clearly, from his question, he does not appear to have done so—he would have seen that they envisage a customs union of this island; there would be no new barriers.

Perhaps the Tories should focus more closely on the unravelling of some of the statements that they have made about what would happen in Ireland. A very serious situation is developing there, in which it is now obvious—according, for example, to a very senior EU official yesterday—that the issue of customs barriers remains.

It is perfectly possible to envisage a situation in which there is flourishing trade north and south of the border, but the question also shows a misunderstanding of what that trade is. If Mr Lockhart looks at today’s figures, he will see that a substantial part of it is in electricity. In those circumstances, are we suggesting that the wires come down across the border? That is simply nonsense. It is time that the Tories grew up and started to ask questions that mean something, as opposed to questions that mean nothing. [Applause.]

Presiding Officer, I speak as one of the 1 million Scots who voted for Brexit for progressive reasons. [Interruption.] Like, I hope, everyone else in this chamber, I am very keen to ensure that the Brexit negotiations are handled well, with a successful outcome.

In order for that to happen, there has to be recognition and acceptance in the UK Government that although we are, at the moment, one member state, we are four nations and there are four legislatures in the UK. Therefore, if the UK Government wants a successful outcome—as regards the acceptability of the deal to the whole of the UK—it will have to take cognisance of the views of Scotland, Wales and Northern Ireland as well as of England.

Has the time not now come—because the important point is about where we go from here—for the Scottish Government, along with the Welsh Government and whoever is representing Northern Ireland, to demand of the UK Government that all four nations and their legislatures should have an inside track in the negotiations? Unlike what Mr Tomkins said, many of the subjects—

Please finish, Mr Neil.

I am just finishing. Many of the subjects under discussion, such as agriculture, fishing and many others, are as devolved as they are partially reserved. Therefore, there is a deep vested interest for every nation in being on the inside track and represented in those negotiations.

Presiding Officer, it was very interesting to note the cheers from the Tory benches when that question started; there were no cheers when it ended. [Interruption.] Of course my friend, Alex Neil, is absolutely right: if those negotiations were to proceed without the deep involvement of the devolved Administrations, that would be yet another failure by the UK Government, so I take the point on board. I hope that it was not only I who was listening, but that the Tories here were listening, the Tories at Westminster were listening—much more importantly, because the Tories here do not influence what is happening—and the UK Government was listening. They might do everything that they can to try to divide us in Scotland, but there is a unity of purpose about what we need to have, as Alex Neil has just expressed.

Thank you. I am afraid that time is too tight this afternoon to take any more questions. My apologies to those members I could not call.