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.