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Section 35 — Short title and commencement
Tobacco and Primary Medical Services (Scotland) Bill: Stage 3
4:00 pm

Alasdair Morgan (Scottish National Party)

We move to group 8, on the commencement of part 2. Amendment 46, in the name of Jackie Baillie, is the only amendment in the group.

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Jackie Baillie (Labour)

I lodged amendment 46 in response to the cabinet secretary's letter to all members indicating that a challenge to part 2 has been lodged with the European Commission. Whether or not members agree with part 2—we know the Tories' position on it—the challenge is to be regretted, as it will have the effect of preventing the immediate implementation of the bill. In fairness, the cabinet secretary said in her letter that she would reflect on the outcome of the Commission's process before considering how to proceed. The purpose of amendment 46—which I contend is tightly written in relation to part 2—is to ensure that that part of the act is not introduced until the Commission's process is finished.

I understand that the cabinet secretary may have considered lodging a similar amendment. I am sure that she will tell me that there are unintended consequences to amendment 46. Perhaps, after that, I can respectfully invite the cabinet secretary to set out clearly how she intends to deal with the referral to the Commission.

I move amendment 46.

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Nicola Sturgeon (Scottish National Party)

I thank Jackie Baillie for lodging amendment 46—I know that she is trying to be helpful and I am grateful to her for that.

I wrote to the Health and Sport Committee on 18 January, advising it that the European Commission was looking into part 2 in relation to EU procurement rules and had asked the UK Government, as the relevant member state Government, for information. A copy of that letter is in the Scottish Parliament information centre. We have worked closely with the UK Government in responding to that inquiry, and I emphasise to the chamber that I am confident that the proposals in part 2 do not infringe European procurement law. We have provided a robust response to the Commission in support of that view.

The effect of amendment 46 would be that part 2 could not be commenced while the Commission was pursuing its inquiry. I agree with that in principle. In my letter to the Health and Sport Committee, I gave a commitment that I would have regard to any response from the Commission in planning the commencement of part 2. Indeed, if the bill is passed today, there will be the usual four-week standstill period for royal assent, and the general rule is to allow at least two months to pass after royal assent before commencement. Therefore, there is an initial window of at least three months during which there will be no commencement of the provisions anyway. We hope that we will hear back from the Commission within that period. Although there is no obligation on the Commission to respond within that time, I understand that it aims to respond to such inquiries within 10 weeks. If the Commission has closed the case by that stage, there will be no problem; if it has not, I will continue to have regard to the Commission's position in planning commencement. I give an undertaking to update Parliament on the position before any decision is made to commence. I am sure that Parliament appreciates that it is not in the Government's interest to commence legislation prematurely while there are outstanding inquiries that may result in proceedings being taken.

I do not believe that the amendment is necessary. Further, as Jackie Baillie anticipated, there are reasons why including it in the bill would be problematic. First, Parliament would be including something in the bill that implies that it thinks that the bill is unlawful, which is problematic because Parliament cannot pass bills that are unlawful. Secondly, and more fundamentally, the amendment would leave the door wide open to anyone who wanted to stop the provisions ever coming into force, because all that they would have to do is keep raising spurious complaints with the European Commission. It would also set an unhelpful precedent for future legislation.

Given the assurances and undertakings that I have given the chamber, and the unintended consequences that I have outlined, I ask Jackie Baillie not to press the amendment. If she does so, I ask members to vote against it.

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4:15 pm

Jackie Baillie (Labour)

I am content with the clarification from the cabinet secretary. It was important to have that placed on the record. As that has been done, I seek leave to withdraw the amendment.

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