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UK Referendum on EU Membership: Justice and Security

– in the Scottish Parliament on 1st November 2016.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is a debate on motion S5M-02203, in the name of Michael Matheson, on the United Kingdom referendum on European Union membership: impacts on justice and security in Scotland.

Photo of Michael Matheson Michael Matheson Scottish National Party

I welcome the opportunity to open the debate.

In the recent referendum, the people of Scotland supported continued membership of the European Union. People in every local authority area in Scotland voted to remain in the EU. The Scottish Government and a clear majority in this Parliament support continued membership of the EU. I acknowledge that some of us voted to leave the EU, and that is a reality that we must address by listening and responding to the concerns behind that vote.

However, it is important to emphasise that justice matters in Scotland, including civil, criminal and family law, are largely devolved. Scotland has always had its own separate and independent justice system and agencies. Over the past 40 years of EU membership, EU law has become woven into the fabric of that system. Our independent justice agencies and legal professionals engage directly and extensively with their EU counterparts. Even though those arrangements benefit individual victims, families, businesses and communities here in Scotland and elsewhere in the EU, we find ourselves—against the views of the people of Scotland—in a position in which those arrangements are under serious threat.

Justice and security measures are essential to how we operate as a modern society and how we engage with other nations. EU membership gives us access to the single market and to the laws and mechanisms that are necessary to facilitate that market operating for the benefit of people and businesses. Individuals and companies gain access to buyers and sellers of goods and services across national borders, and people have their rights as employees or consumers recognised and protected. In the event of any disputes, cross-border commercial contracts can be enforced throughout the continent.

That legal infrastructure supports the economy and affords opportunities for growth. With 500 million consumers, the EU is the world’s largest single market. As well as supporting the single market, EU membership and justice and security measures make us safer and support the international co-operation that is vital to combat cross-border crime and terrorism.

There will be people who will argue that leaving the EU will create new opportunities for co-operation or that we can use alternative mechanisms, but we already know that those arrangements are less effective, slower and more costly than the benefits that we already have from full EU membership. That is not just my view; it is the view of the justice agencies and professional bodies that operate those arrangements on a daily basis.

I want to talk in more detail about some of the specific practical measures that would be put at risk if Scotland was no longer a full participant in EU justice and home affairs matters. Leaving the EU puts at risk a range of co-operation across both civil and criminal law, including police co-operation, which assists in tackling organised crime and helps to make the people of Scotland safe and to live and work across the EU. For example, Europol is central to the fight against organised crime and terrorism. It plays a key role in facilitating and supporting the efforts of Police Scotland and other key partners in implementing our serious organised crime strategy.

I recently visited Europol in The Hague and was briefed by the director and his team on the resources and support that are available to help to confront the growing threat from organised crime and terrorism. Europol supports more than 18,000 cross-border investigations each year and provides invaluable support to law enforcement agencies across Europe. Whether in tackling human trafficking or tackling money laundering, we must show solidarity with our friends across Europe. Now is not the time to walk away, particularly with the increase in online threats. We must work together to face those challenges and safeguard our communities in Scotland.

Photo of Douglas Ross Douglas Ross Conservative

The cabinet secretary moved on from saying that we need to discuss

Europol to saying that we are walking away. Does he accept that we are not walking away? The home affairs minister, Brandon Lewis, said to the UK Parliament yesterday that he will report to it shortly on the future of the engagement between the UK and Europol. We are not walking away. That will be announced shortly.

Photo of Michael Matheson Michael Matheson Scottish National Party

Douglas Ross should have listened to what I said. I said that now is not the time to walk away. He should also be aware that the regulations need to be signed up to by January. Investigations take months in planning and months to execute. The UK’s delay and dithering on the matter is putting such joint investigations at risk. The UK Government needs to move forward on the Europol regulations as quickly as possible to ensure that we minimise that particular risk.

We would like to ensure that we maintain the other aspects of cross-border co-operation that take place in Europe. I know that some members will say that alternative arrangements for cross-border co-operation could be taken forward through Interpol, for example. However, those arrangements do not offer the same levels of opportunity for co-operation or sharing of information as currently exist and should be acknowledged as sub-optimal when they are compared with continuing membership of Europol.

Many other things may be affected, such as Eurojust, which facilitates cross-border investigations and prosecutions, and the European criminal records information system, which facilitates the sharing of EU-wide convictions in the state of residence against individuals, to name but two.

I want to turn to the European arrest warrant in particular. Serious and organised criminals take no account of borders. An ability to pursue effectively individuals who commit serious crime, apprehend them and bring them to court is vital. It is also important for the protection of the Scottish public that Scotland, along with the rest of the UK, does not risk becoming viewed as a safe haven by those who seek to escape justice. Interested agencies and professional bodies in Scotland are unanimous about that risk.

Indeed, when an opt-out was under consideration in 2013. the then Lord Advocate and the present Lord Advocate, who was then the vice-dean of the Faculty of Advocates, gave oral evidence in support of European arrest warrants to the House of Lords. The Association of Chief Police Officers in Scotland, the Crown Office, the Faculty of Advocates, Justice Scotland and the Law Society of Scotland, as well as the Scottish Government, have all advised the UK Government of their strong support for the instrument.

When Theresa May was Home Secretary, she said that the European arrest warrant and other EU justice and security measures are

“practical measures that are necessary to protect us from serious criminals and terrorists.”

However, in the Westminster Parliament and now in the UK Government, there are those who actively oppose European arrest warrants. We should be clear that, if we leave the EU without putting successor arrangements in place, the advantages of speed and the streamlined process that the European arrest warrant provides and which benefit all parties will be lost.

The repeal of the EU’s justice measures will also impact on the civil aspects. In its evidence to the Scottish Parliament European and External Relations Committee inquiry into the implications of the EU referendum for Scotland, the Law Society of Scotland noted that many aspects of reserved and devolved law have been influenced by EU law, and that rights and opportunities have been afforded to individuals and business under EU law. These aspects include civil justice, company law, consumer law, employment law, environmental law, mental health and disability law, equality and human rights and family law.

I would like to highlight cross-border commercial impacts and the potential impact on family law. When a family has links to more than one EU member state, there are benefits of cross-border rules. The Brussels II regulations cover cross-border matrimonial matters, parental responsibility and international parental child abduction. The regulations are the main instrument for families who are involved in cross-border divorce or family proceedings. We have yet to establish with the United Kingdom Government what our relationship with the EU in family law will be in future and it is important that we continue to engage with other EU member states to ensure that our citizens do not find themselves at a disadvantage.

On the commercial side, recent changes to EU rules on jurisdiction and the enforcement of court judgments came into force last year. The UK Government opted into the regulations at an early stage, acknowledging the importance of a streamlined regime for resolving cross-border disputes at a commercial level.

The Scottish Government’s top priority is to ensure that justice and home affairs measures are given the status that they merit during the Brexit negotiations, and to achieve as developed and seamless levels of co-operation as possible with EU partners in future. I am also determined that we ensure effective engagement and communication with agencies and professional bodies that use and understand the justice and home affairs measures in Europe, as well as with victims groups, consumer groups and academics, to help build the best possible evidence to inform Scotland’s contribution to the negotiation process.

I take this opportunity to ensure that our message is heard loud and clear. Scotland voted as a whole to remain in the EU and we want to maintain the benefits of continuing collaboration and co-operation between our justice system and those of other member states. I understand that the Lord Advocate will be in Brussels later this month to meet EU justice stakeholders to ensure that Scotland’s prosecution interests are protected.

The collaborative justice board of key justice leaders has established an EU sub-group, which will work to ensure that the interests of Scotland’s separate and independent justice system are represented and protected in the post-EU-referendum negotiations. Officials will engage directly with the Law Society of Scotland and the Faculty of Advocates, recognising the implications of EU membership and the referendum outcome for our legal professionals and those who rely on their services.

We will continue to engage with our UK Government counterparts to ensure that Scotland’s interests are represented and that we are able to influence that where possible. The UK Government must recognise our interests in this matter and engage with us as full partners. We are not content to be simple consultees in this matter: we must be centrally involved as partners in the process, not treated as bystanders.

We in the Scottish Government and this Parliament are looking to protect Scotland’s interests generally, as well as arguing for the least damaging impact from the EU referendum for the UK as a whole. This is significant to the security and safety of all the people of Scotland. I hope that our aim will be supported by all members in the chamber.

I move,

That the Parliament acknowledges the result of the UK referendum on EU membership in Scotland; recognises the continuing importance of EU membership to Scotland; acknowledges the benefits to the justice system of EU-wide cooperation and the extent to which the current Scottish justice system is shaped and informed by EU law, as well as the benefits to Scotland’s mixed legal system, which includes civilian elements; notes that any repeal of the EU justice and law enforcement measures will have an impact on the effectiveness of law enforcement and an increase in costs in law enforcement procedures due to the lack of harmonised systems and standards already established; acknowledges the pivotal role played by EUROPOL in facilitating and supporting the international cooperation necessary to combat cross-border crime and terrorism; resolves to promote Scotland’s willingness to continue to collaborate with European partners, and calls on the UK Government to ensure that Scotland has a role in the decision-making, as well as full involvement in all negotiations between the UK Government and the EU, to protect Scotland’s independent justice system.

Photo of Douglas Ross Douglas Ross Conservative

I welcome the opportunity to open the debate for the Scottish Conservatives. As this is the first justice debate in Parliament for a couple of weeks, I want to take the opportunity to put on record the Scottish Conservatives’ and, I am sure, the entire Parliament’s best wishes to Constables Deborah Lawson and Robert Fitzsimmons, who were deliberately knocked down in Glasgow a week past Sunday. PC Lawson suffered multiple fractures and PC Fitzsimmons was also taken to hospital. Events such as those remind us of the bravery of our officers, which they show day in and day out. Although such events are, thankfully, rare, we must never forget that for us to live safely our officers must be dedicated to their task. It is clear that Deborah Lawson and Robert Fitzsimmons are certainly that. We wish them both a speedy and full recovery.

Just last week, Prime Minister Theresa May reiterated that

“the country is facing a negotiation of tremendous importance”.

She continued by saying that

“It is imperative that the Devolved Administrations play their part in making it work.”

It is therefore both right and sensible to determine with stakeholders the repercussions of Brexit for Scotland’s justice system. It would be remiss to suggest otherwise, given that we have, as the cabinet secretary said, a separate and unique legal system within the United Kingdom. I note that the Scottish Parliament’s Culture, Tourism, Europe and External Relations Committee, as well as respected organisations including the Faculty of Advocates and the Law Society of Scotland, have already embarked on this sizeable undertaking.

Let us be very clear, however: it is the UK Government that is negotiating our withdrawal from the European Union. As the cabinet secretary mentioned in his opening remarks, the UK leaving the EU framework will impact on civil and criminal justice in Scotland, and on policing.

Photo of Douglas Ross Douglas Ross Conservative

I will take interventions from several members, but on this occasion I will not take an intervention from Mr Stevenson because I can already tell him what his intervention will be. It will be to ask me three very random questions to which he has three very random answers. I have a lot to get through. I have sat through many debates in the chamber in my short time as an MSP, and I have got his measure very quickly. I will carry on, if I may.

No one is under the illusion that Brexit will be easy. Together with her Cabinet, the Prime Minister has repeatedly acknowledged the challenges ahead.

The Faculty of Advocates has emphasised that

“it appears to us inconceivable that it will be possible to review all that law, and determine what to keep and what to remove, in time for the last day of the UK’s membership of the EU.”

I seek to reassure those who are concerned about the transitional arrangements that, as and when we repeal the European Communities Act 1972, we will convert the body of existing EU law into British law.

I further commend the Law Society of Scotland, which has already met Secretary of State for Scotland David Mundell.


.] I will take an intervention from Ms Ewing if she wishes to stand up and get involved rather than speaking from a sedentary position. I will give Ms Ewing time to put her card in.

Photo of Annabelle Ewing Annabelle Ewing Scottish National Party

Would Douglas Ross care to define this new concept of “British law”.

Photo of Douglas Ross Douglas Ross Conservative

I apologise. Clearly in the fluster for Ms Ewing to get her card in she was also not prepared for that. I meant “UK law”. I apologise if that has offended in any way and I clarify that for Parliament.

I was saying that I further commend the Law Society, which has already met Secretary of State for Scotland David Mundell, for underscoring the importance of ensuring stability in law post-Brexit, and for emphasising that

“Specifically in connection with legal matters changes will require to be carefully thought through.”

I really believe that the UK Government has exhibited judiciousness towards the negotiations so far, unlike those—[


.] We already hear Mr—the minister for removing Scotland from the EU is the Cabinet position; Mr Russell—mumbling away there. I look forward to his mumblings later today.

We have already heard from the SNP that it is not looking towards what the UK Government is doing and that it is looking only at its own way forward. We need to be mindful that the UK is negotiating with a union of 27 other members. The Institute for Government points out that they will play a

“crucial role in informal negotiations” and

“will almost certainly have to individually ratify any final agreement.”

For Mike Russell—there is the name—to have stood up in the chamber last week and denounced the UK Government for “reaction, inaction and confusion” was quite simply childish and, I must say, amateurish. The SNP has not been proactive in its approach, as it would have us believe. [


.] Their laughter tells us everything that we need to know.

The SNP has not been proactive in its approach; it has been pre-emptive. Four months ago, after the outcome of the EU referendum was announced, the First Minister almost immediately attempted to embark on a public relations tour of European member states, only to be respectfully reminded by the German Government, the Danish Minister for Foreign Affairs, the Czech Government, the Estonian foreign affairs ministry and none other than the President of the European Council, that in such self-aggrandisement she had stepped well beyond her remit.

Together with her cohort of Cabinet colleagues, the First Minister has once again started to agitate for independence, fanning the flames of Brexit, as a cause célèbre for the SNP’s relentless obsession with separation. In the meantime, they have neglected the powerhouse Parliament that we have here that we were all elected to, and have neglected to use the unprecedented powers that we have. In fact, in just four months, which have included the summer recess, we have had no less than three statements in the chamber on Brexit, and today’s debate is the sixth such debate. Since 24 June, we have had a running commentary from the SNP on the European Union, and it has even launched a consultation on a second referendum bill.

Photo of Douglas Ross Douglas Ross Conservative

It is no surprise that Mr Russell wants to come in on that.

Photo of Michael Russell Michael Russell Scottish National Party

I am just wondering about consistency. Douglas Ross opened his speech by saying that it is “right and sensible” to have the debate to consider the implications of Brexit, but he has contradicted himself within six minutes.

Photo of Douglas Ross Douglas Ross Conservative

I am happy to contribute to the debate on behalf of the Scottish Conservatives, and we will discuss the issue, but the Scottish Government has allocated its time to this—

Photo of Michael Russell Michael Russell Scottish National Party

The member said it was “right and sensible”.

Photo of Douglas Ross Douglas Ross Conservative

If Michael Russell wants to intervene again, he can stand up rather than speak from a sedentary position.

Michael Russell rose—

Okay—I will give way.

Photo of Michael Russell Michael Russell Scottish National Party

The words that the member used were “right and sensible”.

Photo of Douglas Ross Douglas Ross Conservative

The point that I am making is that we have had three statements on the European Union referendum and six debates in the chamber, when we should be debating policing and the national health service, which the First Minister struggled with at First Minister’s question time last week. Government time in the chamber has been dominated by Brexit issues. People in Scotland want the Government to focus on the bread-and-butter issues and to get those right, rather than try to pick fights and fan the flames of its own separation agenda.

As yet, not one piece of proposed legislation has been introduced to Parliament for scrutiny since the May elections, which tells us everything that we need to know about the Government’s priority.

I need not remind members that the developments that are unfolding around us mark a huge constitutional change, but it seems that far from advocating Scotland’s interests in the negotiations, the SNP is advocating only on its own behalf. That is a great shame, because that approach detracts from the task at hand. As my amendment points out, it is clear that Scotland as part of Great Britain has benefited from pan-European co-operation on justice and home affairs, particularly in policing and criminal justice and through participation in the 35 opt-ins that were negotiated by the UK Government. The UK has already opted out of almost all EU substantive criminal law, but we have benefited from access to agencies such as Europol, as the cabinet secretary said, as well as information-sharing measures including the Schengen information system, the customs information system that is used in trafficking and drugs cases, and the Prüm decisions, which provide access to police databases on fingerprints and DNA. The European arrest warrant has also helped to facilitate and expedite extradition proceedings, with 48 extraditions to Scotland and 367 from Scotland since January 2011. Those are sensible measures that demonstrate the importance of pan-European collaboration and co-operation in criminal justice. That has been brought to bear by the work of the Scottish crime campus at Gartcosh. As Police Scotland has pointed out, that work is often underpinned by

“the exchange of information and intelligence with other nations”, which is

“achieved through close working relationships with institutions such as Europol and Interpol”.

The cabinet secretary has expressed concern about the uncertain status of the UK’s future involvement in Europol beyond May 2017. The Scottish Government rightly argues that Europol has played an effective role in providing analytical support, enabling law enforcement and information exchange and producing a threat assessment. However, as I said in my intervention, the UK Government home affairs minister mentioned to the UK Parliament yesterday that it would be updated on that very shortly.

I am not here to be a spokesman for the UK Government: the cabinet secretary has his own channels of communication for that. However, he will no doubt be aware that Home Secretary Amber Rudd has confirmed that the UK Government will be

“having discussions about how to continue some form of involvement within the agencies of the EU that help to keep us safe.”

David Davis MP, the Secretary of State for Exiting the European Union, also recently emphasised in relation to Europol that

“the aim is to preserve the relationship with the European Union on security matters as best we can ... we are across that, and of course we are aiming to maintain it.”—[

Official Report, House of Commons

, 5 September 2016; Vol 614, c 46.]

Let us not forget—as my colleague Liam Kerr will shortly emphasise—that there are many other mechanisms for co-operation on matters of security and policing, which should not be overlooked.

Our amendment looks at the wider issues of security. In my own area of Moray, our communities in Kinloss and Lossiemouth play a vital role in the security and protection of the entire United Kingdom. Lossiemouth is eagerly awaiting the arrival—

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

On a point of order. Douglas Ross may inadvertently have described himself as the member for Moray. He said, “my own area of Moray”. Could the Presiding Officer invite him to properly describe himself as a member for the Highlands and Islands?

The Presiding Officer:

Mr Stevenson has made a point, but it is not a point of order. Mr Ross—you have plenty of time.

Photo of Douglas Ross Douglas Ross Conservative

Thank you, Presiding Officer. That is another bit of time wasted in Parliament by Mr Stevenson. I said,

“In my own area of Moray”.

I live in Moray; I was born and bred in Moray; I think that I can class it as “my own area”. I represent, and am proud to represent, Moray as part of the wider Highlands and Islands region. I will mention Moray as “my own area” whenever I like.

As I was saying when I was so rudely interrupted, Lossiemouth is eagerly awaiting the arrival of new Boeing P8s and, having been lucky enough to have flown in one recently, I know what a huge investment that is for Moray—if I am allowed to say that—for Scotland and for the United Kingdom on defence infrastructure.

It is clear that this will ultimately be a bespoke agreement between an independent sovereign United Kingdom and the European Union rather than a binary choice. It presents an opportunity to engage and to implement measures that foster Europe-wide co-operation and best serve the interests of the United Kingdom and Scotland. This is an opportunity, not an obstacle. That is what needs to inform our thinking over the months ahead.

Democracy is not about re-running the vote until you get the result that you want; democracy is about respecting the outcome of the vote once and for all. Post the Brexit referendum, the UK Government is working to deliver the best possible deal for the entire country. I sincerely hope that the SNP will support the UK Government’s work on that over the coming months across all the devolved portfolios, rather than run a grievance, grumble and gripe campaign that self-servingly promotes the SNP agenda to the detriment of Scotland’s interests.

I move amendment S5M-02203.2, to leave out from “the result” to end and insert:

“the vote to leave the EU; recognises the benefits to the justice system of European cooperation and the extent to which the current Scottish justice system is shaped and informed by EU law, as well as the benefits to Scotland’s mixed legal system, which includes civilian elements; notes the international cooperation necessary to combat cross-border crime and terrorism; resolves to promote Scotland’s willingness to continue to collaborate with European partners and seek a continuously strong relationship with Interpol, as well as play a pivotal role with international partners such as NATO and the Five Eyes intelligence network; supports the UK playing a key role in the UN Security Council through its permanent seat, and calls on the Scottish Government to positively engage in shaping the UK’s negotiating strategy for leaving the EU.”

The Presiding Officer:

I call Claire Baker. I let all members know that there is plenty of time in the debate to take interventions.

Photo of Claire Baker Claire Baker Labour

This is a welcome opportunity to discuss the impact of Brexit on our justice system in Scotland and the security of communities.

Those who advocated leaving the European Union argued that it would make Britain safer, in the context of an uninformed and depressing debate over immigration. Many of us who argued for the UK’s continued membership of the EU put forward the case that leaving would, in fact, threaten our security and weaken our justice system. Nothing that I have heard following the vote in June has caused me to revise that opinion.

Over the past decade, we have made vital progress in our security systems, collaborating with forces across Europe as a member of the EU. We have had no information either from those who argued for Brexit or from the UK Government about what plans will be made to secure the progress that has been made through European co-operation on justice and security. It has not been detailed There is no detail on how the potential for greater collaboration—and that potential has undoubtedly existed while Britain has been in the EU—can be taken forward once we are outside the EU.

We risk being isolated at a time when there is an even greater need for co-operation. It is therefore right that the Scottish Government has provided the opportunity to discuss these vital matters, and I welcome that opportunity. We have heard that Brexit means Brexit, but little beyond that. In Scotland, we may not all agree on what the right response to Brexit is, but at least we are having a vibrant debate on what the options might be and ideas are being suggested.

The lack of detail and strategy from UK ministers can only increase anxiety over what the final impact will be, not least on justice and security. There is additional complexity, as many of the areas are devolved or are unique to Scotland. In recognition of that, our amendment today calls for work to be undertaken to determine the full extent of the impact that leaving the EU will have on our separate legal system, in order to ensure that Scotland’s interests are protected and to fully inform the negotiation process.

Photo of Michael Matheson Michael Matheson Scottish National Party

The member raises an important point, which is that it is essential that the UK Government recognises the unique nature of the Scottish justice system and gives it its rightful place in the negotiations. In addition, it is important for the Scottish Government to be involved in that process. The member has identified that in her amendment, which we will support at decision time.

Photo of Claire Baker Claire Baker Labour

I am pleased to hear the cabinet secretary say that.

It is important that we recognise the separate and unique nature of the Scottish legal system. It is also important that the UK Government is well aware of the different implications that there might be, and it is incumbent on us to be clear about what those implications are. I note that the briefing from the Scottish Parliament information centre highlights the fact that a specific group has been set up within the justice department to consider the impact of Brexit on the justice system, and that Police Scotland has established a working group. However, I would need to be confident that those groups have the specific skills and expertise that they need to understand the legal implications of Brexit, and would appreciate further detail on how that work can be taken forward. I do not want us to have to consider emergency legislation or deal with unintended consequences as a result of the decision.

EU membership has strengthened our justice system in the modern world. Through the Extradition Act 2003, the Scottish Government and the UK Government brought in measures to ensure that prisoners from other countries in the EU can either be returned to their country of origin at the conclusion of their sentence or serve their sentence in that country. That can only be beneficial for security and justice in Scotland. Figures suggest that the average extradition process takes 97 days; for non-EU states, the process takes approximately 10 months. The European arrest warrant has led to the arrest of individuals who are responsible for sexual offences and murders in Scotland. We simply do not know what the impact of leaving the European Union will be on the UK’s inclusion in a system that has been vital in returning criminals whose offences have impacted seriously on communities in Scotland. The briefing from the Law Society says:

“Following a withdrawal from the EU it is possible that, without the trust and mutual recognition between EU Member States that underpins the European Arrest Warrant, the process for the surrender of individuals will be more expensive, complex and time consuming and would require a new treaty to underpin any alternative arrangements. Extradition proceedings would become more prolonged and, in custody cases, create significant additional cost.”

At the moment, there are no assurances that the legislative provisions that underpin those arrangements will remain in place or be replicated after Brexit, or about how offenders would be repatriated.

We also recognise the importance of being part of Europol, and we can see that that becomes even more important if we consider the changing nature of crime, with threats from organised crime, human trafficking, child sexual exploitation, cybercrime and terrorism. We are in the regrettable situation of urging the UK Government to accept a new Europol regulation by January in order to ensure continuing membership, while facing restricted membership following Brexit. Notwithstanding all the reassurances from ministers who are involved in issues around exiting the EU, it is worrying to hear senior police officers warn that, after we leave the EU, it will be more complex to achieve the things that they can achieve now, because we will have restricted membership of Europol and no influence over decision making.

The current director of Europol is a British police officer, Rob Wainwright. He has said that the UK could face becoming a second-tier member and that, alarmingly, our access to the Schengen information system could be revoked, all of which will negatively impact on our ability to address human trafficking, among other issues.

It is also important to note the impact on civil justice matters, which is set to be significant. Rules on cross-border family law cases impact on divorce proceedings, custody cases, judgments on access and maintenance support. Those regulations are all hugely important for families who are affected by those issues and provide protection for children who are at risk of parental abduction. It is also worth mentioning the regulation on the taking of evidence, which simplified the rules on the taking of evidence in one country for direct use in another country.

What will Brexit mean for all those areas—a return to complex negotiations, or the use of consular or diplomatic routes? Can we retain those mechanisms when we are no longer a member of the EU? There must be clarity on these significant issues.

Even before Brexit, the UK Government indicated its wish to withdraw from the European convention on human rights. Not every judgment of that court has been lauded in this chamber, but any objective analysis would surely conclude that the convention has been of enormous importance in securing and improving human rights throughout Europe, and indeed in assisting the promotion of human rights throughout the world.

Membership of the convention is a condition of EU membership. The Conservative Party’s extraordinary desire is that we should leave the convention, and Brexit makes that all the more likely. It shows just how far the Tories have regressed that they wish to abandon an institution that Winston Churchill played a key role in establishing.

So much for the Tories posturing as the party of law and order, when a constitutional crisis resulting from their own internal party disputes threatens the future of European action on justice and security, ultimately putting communities in Scotland at risk of being less safe—it will not make them safer. Crime knows no borders and is increasingly international and serious. Organised crime in Scotland is often connected to activity not just throughout the UK but throughout Europe and European Governments and justice agencies require to work together to counter it. We have made the progress in that area through our membership of the EU, but such progress will only become harder and less effective as a result of Brexit. Despite that, we hear very little from the UK Government about how it will mitigate the impact of Brexit. That is not good enough for communities across our country. They want to be safer from terrorism and the actions of serious and organised criminals. They want a legal system that recognises the international nature of personal relationships and business transactions and which can deliver justice swiftly. Leaving the EU puts all of that at risk. Although the situation has not been created by the Scottish Government, the cabinet secretary needs to continue to challenge the UK Government to protect the vital mechanisms that our justice system relies on. The Scottish Government’s priority must be a deal that protects co-operation and the interests of us all—a deal that protects vulnerable people and maintains the UK’s position as a partner in dealing with crime. It must be a deal that fully responds to the unique aspects of Scots law and its interwoven relationship with EU justice matters.

I move amendment S5M-02203.1, to insert after “European partners”:

“; calls on the Scottish Government to undertake a full analysis of the impact of leaving the EU on Scotland’s independent justice system, to protect against any unforeseen consequences and to fully inform the negotiation process".

Photo of Joan McAlpine Joan McAlpine Scottish National Party

I am pleased to speak about this important topic. It is perhaps an aspect of Brexit that, to date, has not been given the attention that it merits, so I am pleased that the Government is highlighting it by bringing it to the chamber today.

The Law Society of Scotland has submitted written evidence to the Culture, Tourism, Europe and External Relations Committee on the implications of leaving the EU for its members, their clients and the services that they provide. The Law Society’s submission outlines in stark, plain language the scale of the challenge faced by the legal profession and its clients. The cabinet secretary has alluded to some of the aspects of law that the Law Society has pointed to; I will quote them in full. They are:

“Civil Justice, Company law, Competition law, Consumer law, Criminal law, Employment law, Environment law, Equality law, Family law, Financial services, Human rights law (through the Charter of Fundamental Rights), Immigration law, Intellectual Property law, Mental Health and Disability law.”

I expect that other members will focus in detail on aspects of national security and criminal law—as the cabinet secretary and others have already done—so I will not do so here, except to say that it is absolutely clear that the safety of our citizens will be threatened if the extensive networks of co-operation on crime fighting, crime solving and intelligence gathering are damaged.

I want to look at justice in so far as it relates to the European single market, which is so important to the prosperity of us all. In the realm of business, the Law Society points out that EU law has relevance for employers—examples are the working time directive and the posted workers directive. European law impacts on business innovation, which is a key building block of economic prosperity—inventors, for example, benefit from the European unitary patent.

European law underpins the European single market that the UK Government appears determined to leave. The law is designed to ensure fairness and equity for those operating in the market. Producers are protected with laws on food and environmental standards. Procurers of services are protected by laws designed to prevent corruption and favouritism. Exporters have the common commercial policy. Small and medium-sized enterprises, as well as large corporations, have recourse to the late payments directive. Moreover, a key aspect of the single market is the legal right to set up a business in another member state—an aspect of the acquired rights of European citizens that we are all, apparently, going to be stripped of when the great repeal axe falls.

The helpful SPICe briefing for today’s debate details a number of legal provisions in the 1997 Amsterdam treaty that are essential to the smooth functioning of the single market. One example is the insolvency regulation of 2002, which allows insolvency proceedings to be brought in the most relevant member state. The 2009 Lisbon treaty took that further. Under article 81, the EU is expected to “develop” judicial co-operation in civil and commercial matters with cross-border implications, particularly when that is

“necessary for the proper functioning of the internal market.”

Previous UK Governments clearly thought that that was of benefit to businesses.

Even though it had the right to opt out of many justice aspects of the Lisbon treaty, the UK opted in to the European small claims procedure, which means that businesses can apply for cross-border small claims. We now have European enforcement and payment orders, which create a fast-track procedure for the enforcement of cross-border orders for uncontested claims.

Post Brexit, our businesses face real headaches with dispute resolution. What will happen, for example, to the Rome I and Rome II regulations on the law applicable to contractual and non-contractual obligations? The London law firm Slaughter and May produced a “Brexit Essentials” briefing, which notes that, post Brexit, the UK will have to replace European arrangements for dispute resolution or face the prospect of its courts’ judgments becoming less effective across Europe. It says:

“Without a replacement, international parties might be persuaded to nominate an EU Member State (rather than the UK) as the forum for their disputes if a pan-European judgment was important to them or, alternatively, switch to arbitration”.

The effect of Brexit on justice matters will also have a direct and, I believe, detrimental impact on Scotland’s standing and influence. Scotland is a separate jurisdiction, with a system of law that is as independent as that of any other nation in Europe. The treaty of union of 1707 protects Scottish law, as we all know. Our completely separate legal system, with its own civil and criminal law, courts, legal profession and prosecution service is a source of great pride, and, of course, most police and criminal justice matters are devolved under the Scotland Act 1998.

Because of that long-standing legal independence, Scottish legal institutions are recognised in Brussels. The Crown Office and Procurator Fiscal Service, to use one example, participates in the UK Government’s Eurojust oversight board. Police Scotland has a presence in the Europol liaison office in the Hague, which was well illustrated today when the cabinet secretary described his trip to it. Losing that recognition will mean a reduction in Scotland’s international influence, which is one of the things that the First Minister identified as a priority in her mission to protect Scotland’s status in Europe. That is why I support the motion. The development of European law has fundamentally been about collaboration between states and jurisdictions. In Scotland’s case that has enhanced the influence of our justice system and our standing as a country, albeit one that is a sub-state of the United Kingdom.

Scotland, in matters of justice, is already in many ways an independent country, but one that collaborates effectively across borders thanks to EU structures. As the motion demands, we must have full involvement in all negotiations between the UK and the EU to protect out independent justice system and, crucially, all those individuals, organisations and businesses who depend on its effective functioning.

The Deputy Presiding Officer:

We have quite a bit of time in hand, so we can have speeches of seven minutes. Is that not excellent news?

Photo of Margaret Mitchell Margaret Mitchell Conservative

Presiding Officer, t he motion seeks to assess the impact of Brexit on justice and security issues. It is important to stress that it would be complete folly and totally impractical for the UK, before article 50 has been formally initiated, to set out its negotiating position on any aspect of Brexit, including justice and security issues. This debate can serve little purpose other than to provide a superficial assessment of the impact of Brexit on the various areas of security co-operation that exist between the UK and the EU at present.

As the Prime Minister has repeatedly stated, we can be sure that

“there are going to be lengthy negotiations over the course of the two years and more” and that the UK Government will

“deliver on the vote of the British people to leave the European Union” and will be

“ambitious in its negotiations to negotiate the best deal for the British people”.

Photo of Margaret Mitchell Margaret Mitchell Conservative

Please allow me to make some progress, Mr Stevenson.

It is also not in doubt that it makes sense for EU states to continue to co-operate with the UK after we withdraw because it is simply in their best interests to do so. It is for that very reason that EU states currently co-operate on operational law enforcement issues with countries outside the EU. Put another way, what do Albania, Australia, Canada, Colombia, the former Yugoslav Republic of Macedonia, Iceland, Moldova, Montenegro, Norway, Serbia, Switzerland, Liechtenstein, Monaco and the USA all have in common? They are all non-EU countries with operational agreements with Europol. In fact, it is widely acknowledged that America has more officers working in Europol than do most EU member states.

Photo of Joan McAlpine Joan McAlpine Scottish National Party

Does Margaret Mitchell agree with David Armond, the deputy director general of the National Crime Agency, who said:

“whatever measure we negotiate will be less of a solution or suboptimal compared to the arrangements we currently have”?

Photo of Margaret Mitchell Margaret Mitchell Conservative

Absolutely not. Why should it be? We are in a unique position. We are not following a deal that has been made with other countries; the arrangements are already in place. Why should they be any less when we leave, when it would be in everyone’s best interest to continue them?

Frontex, the EU border agency, is another example of an EU agency that has a working relationship with non-EU states—no fewer than 17 of them, and it is in negotiation with a further seven. Despite the UK not being part of Schengen, it still co-operates with Frontex on issues such as human trafficking.

On a more routine basis, security co-operation exists for airlines’ passenger name records, which are shared between the EU and countries such as the United States of America, Canada and Australia. Suffice it to say that there is no shortage of ways in which non-EU states co-operate with the EU on security issues at present, and that will continue to be the case post Brexit.

During the EU referendum, some argued that their principal reason for voting remain was that they believed that the UK is safer in the EU, rather than on the outside. However, that fails to take cognisance of the tragic recent events in Europe, including the Paris bombings, the atrocities in Brussels and, in Germany, the organised harassment of women in Cologne. All of that took place against the background of—and was interrelated with—the migration crisis that was engulfing the EU.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

The former director general of MI5 said that claims that the UK is safer outside the EU are “nonsensical and spurious”.

W ill Margaret Mitchell comment on that?

Photo of Margaret Mitchell Margaret Mitchell Conservative

She is entitled to her opinion, but it is difficult to know how she could reach that conclusion, given the unpalatable truth that Europe has lost control of its external borders. To answer Mr MacGregor’s specific point, I believe that that situation has provided the opportunity for extremists and potential terrorists to hold EU passports.

While the Scottish Government has wallowed in predictions of gloom and doom about every possible aspect of Britain leaving the EU, there are two obvious advantages of Brexit from a justice and security point of view. The first is the potential for the UK to take back control of its borders, and the second is that Euro judges will no longer be able to prevent the UK from deporting dangerous terrorists. Furthermore, the UK will remain a member of NATO. Major General Julian Thompson, who spent more than three decades—

Photo of Margaret Mitchell Margaret Mitchell Conservative

I have been very generous with interventions.

The Deputy Presiding Officer:

You have time if you wish—it is up to you.

Photo of Margaret Mitchell Margaret Mitchell Conservative

You do not know how much more I have to say, Presiding Officer.

The Deputy Presiding Officer:

I still have plenty of time—it is up to you.

Photo of Claire Baker Claire Baker Labour

Does the member recognise that many of her claims are indeed just claims and assertions? She can give no guarantees on any of the issues around Europol membership and European arrest warrants. That is exactly the point of the debate—we are all hugely concerned about the impact of Brexit in that area, yet Margaret Mitchell seems oblivious to those concerns.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I regret that Claire Baker has joined the SNP in continually believing that her glass is only half full. She seeks to find problems where none currently exist and where there is no evidence that they will exist in the future.

Major General Julian Thompson, who spent more than three decades in the Royal Marines and commanded British forces in the Falklands conflict, has pointed out that the benefits of being a member of NATO far outweigh those of being a member of the EU. With regard to defence against terrorists, he states that information sharing between the security services of the Anglosphere five eyes alliance between the UK, US, Canada, Australia and New Zealand is particularly beneficial for UK security due to the trust that has been established over decades of working with those agencies. In addition, the sharing of tactical intelligence with EU countries can still be established case by case.

In conclusion, according to the UK’s former intelligence chief Sir Richard Dearlove, the UK currently provides more intelligence to the EU than it gets back. He has said:

“Britain is Europe’s leader in intelligence and security matters and gives much more than it gets in return. It is difficult to imagine any of the other EU members ending the relationships they already enjoy with the UK.”

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

One would be forgiven for thinking that this had ceased to be the Parliament of Scotland if the Conservative amendment is anything to go by. I remind Douglas Ross and his colleagues that the Parliament is here to represent the people of Scotland first, last and always. The people of Scotland spoke loud and clear: we want to remain part of the European Union. Dare I say it, remain means remain.

In the past few months since the referendum, the lack of a plan for Brexit from the UK Government has been quite astounding. It is becoming increasingly likely that the UK Government’s lack of preparation will result in Scotland being dragged out of the EU with a hard Brexit.

The prime minister can repeat, “Brexit means Brexit” over and over again, but if the day comes when Scotland ceases to be a member of the European Union, we need to know that every possible action to protect the interests of the Scottish people has been taken.

Photo of Graham Simpson Graham Simpson Conservative

Does Fulton MacGregor accept that Scotland is not in fact a member of the EU, as the UK is the member state?

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

Scotland is known to be a country; it is a country and as a country we voted to remain. That is what this Government and this Parliament are trying to respect.

That means that the Prime Minister must engage in constructive dialogue with the Scottish Government and that the Scottish ministers must be involved in negotiations with the EU. Over the past few months, the message from the Prime Minister and the UK Government is that they have no interest in listening to the Scottish Government. I therefore welcome the First Minister’s renewed commitment that she will do whatever it takes to protect Scotland’s interests.

There are not many areas for any Parliament to discuss that are as important as justice, and it is crucial that Scotland’s voice is heard during the Brexit negotiations. Scotland has always had an independent justice system, as other members have highlighted, and there must be measures in place to ensure the security of Scotland post Brexit.

It deeply concerns me that the current arrangements between law enforcement agencies in Scotland and the rest of the EU are under threat. We regularly see the successes of those agencies in tackling organised crime, particularly surrounding child sexual exploitation, human trafficking and cybercrime, and I was glad to hear Douglas Ross mention the work of the crime campus in Gartcosh, which is in my constituency.

This year, Police Scotland was involved in an operation with the Romanian authorities to halt the trafficking of individuals for sexual exploitation, resulting in eight victims being taken into care and the arrest of those involved. It is imperative that Scotland continues to be involved in detecting and stopping large scale, cross-border criminal activity. Douglas Ross mentioned Interpol, which is an important part of maintaining Scotland’s security, but I am left wondering, despite what Margaret Mitchell said, whether his proposal to amend the Government motion to remove any mention of Europol is an acceptance by the Conservative party that, unless stopped, its hard Brexit policy will see an end to the UK’s and Scotland’s co-operation in combating cross-border crime. Ms Baker alluded to those concerns, too.

The ability to share information quickly and to co-ordinate operations with other law enforcement agencies using Europol is key to detecting, disrupting and detaining criminals throughout Europe.

I will briefly touch on the European arrest warrant. There is great risk that exit from the EU would result in that fantastic system being unavailable to police and prosecutors in Scotland. That would result in an increase in cost and time in bringing criminals to justice. There is also the impact on victims of crime, who would be subjected to months or years of uncertainty.

The Prime Minister must take her head out of the sand and start discussing these serious issues. Her Government has outlined no meaningful plans and, to date, Nissan seems to know more than anyone else about the Brexit plans. The concerns are very real, entirely justified and felt the length and breadth of Scotland. The Prime Minister must now invite the Scottish ministers to be fully involved in all discussions and negotiations.

That was a bit shorter than I thought that it would be.

The Deputy Presiding Officer:

It is always the case that the speeches get shorter when we have time in hand, Mr MacGregor. I do not know why.

Photo of Jenny Marra Jenny Marra Labour

I do not belittle the importance of Brexit and its consequences. Indeed, it is one of the biggest political issues of our time. However, I agree with Douglas Ross: the continual debates in this chamber since the vote on 23 June are taking focus away from issues that are pertinent to our communities and from the effect that the cuts are having up and down this country.

As I stand here, a debate is going on in one of Dundee’s communities about the closure of a local police station, which, it has been admitted, is being driven by a cost-saving agenda and will take police officers out of the very community where they have served for years. I beseech the Government: once its programme of debates on the UK referendum on EU membership has ended, can we get back on to the bread-and-butter issues that members in this chamber are keen to discuss and that this country’s citizens want to hear us discuss?

I turn to the motion and the amendments. Most striking in the Conservative amendment is the list of organisations that they are keen to rely on for intelligence. It cites NATO and the five eyes intelligence network. Although I do not belittle the importance of those agencies in our security and crime agenda, I have to say that the list seems very weak and lacking without the mention of Europol and the incredible work that it does.

Photo of Douglas Ross Douglas Ross Conservative

I will reread very carefully in the

Official Report what the member was saying about NATO being very weak, but would she concede that I mentioned Europol and the implications of what the UK Government is planning to do with Europol as part of my speech? It is not as though we ignored Europol.

Photo of Jenny Marra Jenny Marra Labour

If Douglas Ross cares to read the

Official Report

, he will find that I did not say that. I said that the list seems weak without Europol being mentioned on it, because it plays a central role in crime prevention in this country. He need only speak to the crime prevention agencies in this country that are working on child protection, human trafficking and the prevention of internet paedophilia to learn exactly that.

In January—in just a few weeks’ time—the UK Government must indicate whether it is willing to accept a new regulation on Europol. To put it in simple terms, we need to decide whether we will ask to continue with the Europol system, which has evolved to be more and more crucial in European policing co-operation and in preventing and tackling cross-border crime.

It is only about three years since I attended, in a committee room upstairs, the human trafficking summit that the Scottish Government and the Lord Advocate organised—I think that you were there, too, Presiding Officer. We listened to a key contribution from Europol on how Scotland would take forward its anti-human-trafficking efforts. Europol is integral to the work that Police Scotland’s national human trafficking unit is currently undertaking. We all know that human trafficking is a cross-border crime and that cross-border policing and prevention operations are becoming more and more important. To cease such work and our involvement in such networks will enable cross-border criminal networks to thrive, as the structure for a co-ordinated response is destroyed.

That is one of the many reasons why I voted to remain in the European Union and it is one of the reasons why the UK Parliament must and should have a vote on the Brexit negotiations. The wishes of voters across the UK must be respected, but at the end of the negotiation we must extricate ourselves from the EU with the best arrangements for our citizens, for whom security and crime have always been a top priority.

For that reason, I am pleased that Michael Matheson has been to The Hague to find out more about Europol operations and Scotland’s place in them. The European counter-terrorism centre, the European migrant smuggling centre and the European cybercrime centre, all of which were established at Europol, are crucial to crime prevention and detection in Scotland. Just before this year’s referendum, Europol helped Police Scotland and the Romanian police to dismantle a Romanian organised crime network, which was trafficking Romanian victims to Scotland for sexual exploitation.

Europol also supports the effective operation of the European arrest warrant, which is crucial in Scotland, as members said. I have read that Police Scotland has arrested 301 offenders under the arrangements and that 43 offenders have been returned to Scotland to face justice. Such traffic in both directions makes citizens safer.

Photo of Joan McAlpine Joan McAlpine Scottish National Party

The member has raised important points in her speech. Does she agree that they illustrate the importance of our debating the subject in the Parliament?

Photo of Jenny Marra Jenny Marra Labour

It is important to debate the subject, but, as I said at the start of my speech—and I think that this was clear to Ms McAlpine and other members—we are continually having debates on Brexit and we must balance the need for such debates with the need to debate issues that are current in our communities.

The amendment in Claire Baker’s name is one of the most important to have been lodged in such a debate, because there is clearly a need for, as the amendment puts it,

“a full analysis of the impact of leaving the EU on Scotland’s independent justice system, to protect against any unforeseen consequences and to fully inform the negotiation process”.

As all members know, Scotland’s justice system and Scots law are unique and will require specific consideration in the Brexit negotiations. It is only right that the Scottish Government does the preparatory work in advance, to mitigate the impact of surprises and unforeseen consequences. We do not want to discover loopholes in the law when we are months or years out from the Brexit negotiations. We need the work to be done now, to prevent that from happening.

I am happy to support the Labour amendment.

Photo of John Finnie John Finnie Green

I think it is very important that we debate the subject. As we heard from Jenny Marra, justice is a top priority for our citizens, and an obligation is placed on any state, however it is configured, to see to the security of its citizens and provide justice for them. Key to that is collaborative working, and that is what the European project was about. It was not about setting aside the unique nature of Scots law; it was the mix that was important.

In my view, the clear motivation for the European Union referendum was disengagement from that sort of approach. That has led to alienation and, in some respects, disrespect for the United Kingdom and, by default, Scotland, and I think that it has put security at risk. It has been gesture politics and we continue to hear gesture politics.

We have been there before—I think that only the cabinet secretary has briefly alluded to this—when it came to the Lisbon treaty, which was agreed in 2009. A final decision on United Kingdom participation in 133 justice and police co-operation measures required to be taken no later than 31 May 2014. A convoluted process was involved in that, but nonetheless there was a five-year window following the Lisbon treaty and there was ample opportunity for the UK Government to engage with the devolved Administrations on whether to exercise the block opt-out. After the Lisbon agreement, the arrangements were that it was possible to come in on an individual basis but, for the measures that were agreed before it, a block opt-out had to be exercised.

The important point there was that, despite letters from the Scottish ministers as far on as in April and August 2012, there was very little action. It was clear that the Scottish Government’s position was that some elements that were part of the pre-2009 agreement were defunct and had limited impact. However—it is a big however—there were other significant measures, which have continually been alluded to, including the investigation of cross-border crimes, measures to bring serious organised criminals to justice and the European arrest warrant, Scotland’s experience of which has been entirely positive.

What is at risk if we do not have that approach? I will miss out the names, but examples were given to those of us who were on the Justice Committee at that time. The Deputy Presiding Officer, Christine Grahame, and my colleague Margaret Mitchell will be familiar with this. We heard about a murder case in which the individual was arrested within a day of the extradition request being issued and was swiftly returned to Scotland. Importantly, the warrant allowed the seizure of clothing and other property before it could be destroyed, which would have affected the evidential value, and it led to a successful prosecution.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I join John Finnie in supporting the European arrest warrant, but he said that it had been wholly successful. Even as somebody who supports the warrant, I note that some legitimate concerns have been raised about the proportionality test for those extraditions. Further work will need to be done in that area, without detracting from the support that is rightly given to the warrant itself.

Photo of John Finnie John Finnie Green

The member makes an interesting point but, if it is a numbers game, it has to be seen that it is 5 million people versus the entire population of the remainder of the EU, so it does look disproportionate.

The important thing is the speed and efficiency with which action was undertaken.

Another example that we were given involved a violent attack and a murder in 2012. The individual was arrested through the European arrest warrant system within five hours of the issue of the arrest warrant, but also—importantly—by direct contact between the Scottish and Polish authorities under the European judicial network. We need to consider not simply the police operations, which are very important for all the reasons that we have heard, but the value of co-operation at the judicial and prosecutorial level.

There was support from the Scottish ministers, the police, the prosecutors, legal professionals, academics and the House of Lords European Union Select Committee inquiry, which took the view that the benefits of opting out of defunct or ineffective pre-Lisbon measures did not justify the risk of losing those measures that are essential in tackling cross-border crime.

The most telling aspect of what we learned at the time, when the Presiding Officer was convener of the Justice Committee, was that the UK ministers did not consult the Scottish ministers or the Scottish justice agencies on the matter. Although 35 of the measures were ultimately opted back into, I would hate to think that we are about to see that model again. If we did see it, that would be bad news for law enforcement, the judicial network, our civil law and our contractual law, and it would be good news for those who seek to circumvent the law—most commonly criminals. The benefits of the European arrest warrant are well understood.

The issue of taking evidence was raised by my colleague Claire Baker, and there have been developments in that field both in this jurisdiction and elsewhere—another opportunity that could be lost.

The briefing from the Law Society of Scotland, for which I am grateful, talks about stability in the law and says:

“The primary objective of judicial security and police cooperation is the safety of the citizen, as a guiding principle there should be no change to the law which would prejudice the safety and security of the individual.”

We simply do not know. At the moment, lots of guessing is taking place. Going back to the Lisbon agreement, the concern was that, if that had not been concluded in time, we needed reassurance in Scotland about the potential gap in legislation. I think that a big gap is potentially opening up.

The Scottish Green Party will support the Labour Party’s amendment, because we think that it is important that there is analysis. It is also important that we consider the issue of transitional arrangements. For any piece of legislation, we know what has happened in the past and we can perhaps agree what is going to happen in the future; all the complexity is in the transition.

The Scottish Green Party will support the Scottish Government’s efforts to ensure the following for people living in Scotland: that their democratic wishes are respected; that they have access to a quality legal system that co-operates with others; and that their security is assured, which is best achieved by conflict resolution. We believe that all those things are being put at risk by Tory recklessness.

Photo of Gil Paterson Gil Paterson Scottish National Party

I must say that I am a bit disappointed that Jenny Marra suggested that the Parliament should not be discussing Brexit, but that we should leave it to the Tories.

Photo of Gil Paterson Gil Paterson Scottish National Party

Well, that is what I took from what you said.

The Deputy Presiding Officer:

If the member wants to take an intervention, it might be better if he did that; otherwise, what Jenny Marra is saying is not on the record—he is having a wee conversation with the air.

Photo of Gil Paterson Gil Paterson Scottish National Party

Of course I will. I am sitting down.

Photo of Jenny Marra Jenny Marra Labour

I thank the member for giving way. If he reads the

Official Report

, he will discover that that is not what I said. I said that it is perfectly legitimate and important for the Scottish Parliament to discuss Brexit, which I said is one of the most important political issues of our time. However, I said that we need to balance that with issues that are affecting our communities every day, up and down the country.

Photo of Gil Paterson Gil Paterson Scottish National Party

I thank Jenny Marra for her intervention. I thought that her speech was otherwise very good, but it came across to me that she was saying we should sit down and let the big boys and girls get on with it.

I would like to set the scene by quoting from the Tory amendment. Tory members are asking the Parliament to acknowledge

“the vote to leave the EU”.

Let us get one thing clear: the Scottish Parliament acknowledges the vote of the people of Scotland, who voted to remain. I will not acknowledge any time soon, while I am in this chamber, a vote to leave the EU.

Photo of Douglas Ross Douglas Ross Conservative

I am sure that a lot of people will be worried because Mr Paterson does not recognise the result. However, does he agree that it was a fair, democratic decision across the United Kingdom and that the question was about whether the United Kingdom should leave the European Union? Does he also agree that, although Scotland voted to remain, in some constituencies the vote was very close? In Moray, where I reside, there was a difference of 122 votes between the vote to leave and the vote to remain. The simple picture that is painted by Mr Paterson and his colleagues is not quite true for all of Scotland.

Photo of Gil Paterson Gil Paterson Scottish National Party

My point is that, before the referendum, the Tories were out there telling us all to remain, yet it seems to me that they are very good at making surrender speeches and hoisting the white flag. They became complete converts to Brexit, in my view.

Thanks to the Tory members putting their party disunity before the best interests of the people, Scotland faces uncertain times, including for our distinct justice system and the wider way in which we engage with other EU members on security. It is interesting that the Tories want to protect the union but ignore the act on which the union was formed. The United Kingdom is meant to be a union between Scotland and England, and it is right that, regardless of what one of those equal partners says, its views and democratic will should be considered and not ignored.

In common with other areas, justice and parts of the security system are devolved under the Scotland Act 1998. The implications of the Brexit process mean that Scotland cannot be treated as a simple consultee or stakeholder. The powers that the Scottish Parliament has will be affected and, as I mentioned earlier, we are meant to be an equal partner.

It needs to be highlighted that the Scottish Government and our justice agencies are working within the restricted security powers of this Parliament. With our current powers and the new powers, there will always be a ceiling beyond which the Parliament cannot go. In my view, the powers above that ceiling are the ones that will ultimately unlock Scotland’s potential to engage with European and international partners, which will allow the Government and the Parliament to make decisions to ensure that all our foreign justice and security policies are aligned with our objective for Scotland of being an outward-looking and prosperous nation.

We have a unique and independent justice system. If Scotland is not formally part of the negotiation process with the result that we cannot put forward our concerns to the wider EU, our interests in such matters might not be fully protected. With the advent of the internet, the speed of globalisation and the fact that all forms of transport are available on our doorstep, it has never been more imperative that Scotland works as part of the wider EU community to fight crime and protect our citizens.

As part of the EU, the UK is a member of Europol, so Scotland’s police and justice agencies work co-operatively with other member states on vital operations such as combating human trafficking, child sexual exploitation and cybercrime. When criminals are identified, Europol—on behalf of us all—issues European arrest warrants. Such warrants have brought about the arrest by Police Scotland of 301 offenders, 43 of whom have been returned to Scotland to face justice.

It is my understanding that, under new arrangements, the UK has until 2017 to accept a new regulation, and that failure to do so would mean that the UK’s—and therefore Scotland’s—membership of Europol would come to an end.

Photo of Liam Kerr Liam Kerr Conservative

Would Gil Paterson care to tell the chamber how many non-EU countries Europol has co-operation arrangements with?

Photo of Gil Paterson Gil Paterson Scottish National Party

I am sure that Mr Kerr will tell us. I ain’t going to kid him on and say that I know what the figure is.

I do not need to tell members how disastrous the ending of our membership of Europol would be for information sharing on some of the more serious crimes. If the Prime Minister will not listen to the elected Scottish Parliament and end the uncertainty, maybe she will listen to the member for Edinburgh Central.

The Scottish Government has a duty to respond to the democratic wishes of the people of Scotland, and it will take all possible steps to protect Scotland’s interests. If we find that our interests cannot be protected in a UK context, independence must be one of the options that Scotland has the right to consider.

I commend the cabinet secretary’s motion to Parliament.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I associate myself with Douglas Ross’s remarks about PCs

Lawson and Fitzsimmons and echo his wish for them to have a speedy recovery.

Last week, I participated for the first time in the now weekly debates on Brexit and I now have the second opportunity to do so in as many weeks. As I suggested in last week’s debate on the environment and climate change, I do so willingly and enthusiastically but against the backdrop of the fact that, as Jenny Marra said, there is no lack of issues in the wider justice and policing field that are unrelated to Brexit that must be the focus of our attention as well. Not a week goes by without further concerns being raised about the situation that Scotland finds itself in following the centralisation of the police force. The courts and the judicial system are under great pressure and, as the Justice Committee heard last week, that is not helped by the Scottish Government’s decision to close sheriff courts.

Tomorrow, we will turn our attention in the chamber to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, which is a blunt and rushed piece of legislation from a Government that showed insufficient respect for the Parliament, civil liberties and the complexity of an issue on which it had taken its eye off the ball.

That is not to diminish in any way the challenges that are presented by the Brexit vote. As I did last week, I attribute the lion’s share of the blame for that to the Tory party for its failure to deal with its internal dissension. The decision was inward looking and a backward step.

Claire Baker made a valid point about the debate that led up to the Brexit vote, which was tarnished by the focus on immigration. It is regrettable that Margaret Mitchell, for whom I have the utmost respect, was at times in danger of reprising some of the argumentation that we heard in that debate. For the record, it should be recalled that the 7/7 bombers were British citizens and the bombers in Paris and Nice were French and Belgian citizens.

That reminded me of a quote from Professor Malcolm Anderson, the emeritus professor of politics at the University of Edinburgh. He said:

“There is a significant difference between ‘feeling secure’ and ‘being secure’: although people may feel more secure if ‘we take back control of our borders’ and have British border police checking on all foreigners coming into the UK, their security may in reality be better protected by the free movement of persons in the EU conjoined to close cooperation between police and security forces in partner countries.”

To turn to the concerns that have been raised, I do not think that anybody disputes—this is implicit in the Tory amendment—that justice and policing is one of the areas in which closer co-operation and collaboration have worked and should continue to work. The excellent SPICe briefing is striking in demonstrating the incremental nature of building co-operation. That is highly appropriate in such a sensitive area, where public assurance is needed. That probably reflects the point that John Finnie made about seeking collaboration and co-operation in an area in which very distinct legal systems are brought together.

Looking ahead, there is obviously a lack of clarity about what precisely Brexit will mean and how, if at all, the situation can be salvaged through new agreements or falling back on other existing treaties. Brexit seems to me to open up uncertainty, delay and obstacles that are wholly unnecessary in return for little or no benefit.

I turn to policy specifics in criminal justice and policing. Collaboration has allowed mutual recognition of criminal judgments and judicial decisions, and has provided the underpinning for the European arrest warrant, which other members have referred to.

In the earlier conversation with John Finnie, I was not talking about proportionality in terms of numbers; I was talking about it more in terms of the thresholds. The thresholds that trigger extradition, possibly from the UK to other member states, have appeared to some lower than they are the other way round, and that is worthy of further discussion.

Photo of John Finnie John Finnie Green

I understand and recognise that, but that simply further evidences the need for international dialogue and co-operation.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I thank John Finnie for that intervention, with which I whole-heartedly agree.

The collaboration has allowed the exchange of information between law enforcement agencies and judicial bodies.

At best, we have been promised restricted access to Europol and Eurojust. The exchange of intelligence, assessments of risk and joint action to combat the threat of serious and organised cross-border crime as well as terrorism are not best served by the route that we are currently going down.

On civil justice, collaboration and co-operation have allowed the determination of which member state courts have jurisdiction over civil or commercial cases. On cross-border family law cases, which are increasingly characteristic—that reflects the make-up of our societies in the 21st century—collaboration and co-operation allow for the determination of which court is responsible for divorce, custody and access; ensure the recognition and enforcement of decisions in other countries; and, as Claire Baker intimated, allow some sort of redress where a partner has taken a child across a border against the wishes of the other partner.

Collaboration and co-operation also allow maintenance rules to be agreed, and they streamline and speed up the insolvency and small claims processes in commercial law. Nothing of what the UK Government has promised to date seems to offer anything like as good a deal.

UK citizens have the prospect of no longer being protected by the decisions of the European Court of Justice. I recognise that that been a bit of a bête noire for many in the right-wing press and politicians alike, but it is and always has been a bulwark in the safeguarding of the rights of EU citizens against an unwieldy state in recent decades.

The SPICe briefing fairly recognises Scotland’s separate legal system and all that it entails, which means that specific Scottish issues will arise in relation to negotiations with the EU in the field of justice. That needs to be acknowledged, respected and reflected in what follows the vote in June. As I said earlier, there is no lack of issues that are in urgent need of addressing with regard to justice and policing in Scotland and I hope that we will have an opportunity to turn to those in due course.

Dealing with the mess that has been created by the failure of the Tories to deal with divisions in their own party is something that we could have well done without but, in the context of where we now find ourselves, I am happy to confirm that the Scottish Liberal Democrats support the motion and the amendment in the name of Claire Baker.

Photo of Gordon Lindhurst Gordon Lindhurst Conservative

Today we find ourselves again debating the potential consequences for Scotland that are supposedly due to our imminent departure from the European Union.

I have previously mentioned in the chamber the stated objective of Police Scotland, which is to continue to protect the Scottish public irrespective of the politics that are being played out. I welcome the preparatory action that was announced by Assistant Chief Constable Steve Johnson of Police Scotland ahead of the start of formal negotiations.

There is no doubt that there will be areas of discussion during the negotiations between the EU member states and the UK Government, but justice and security is an area in which the UK, including Scotland, is particularly strong and the issues at stake are not negotiable. We are talking about people’s lives and wellbeing rather than tariffs and trade. It is, always has been, and will continue to be in the interests of all sides to adopt a reasonable and responsible approach in the months and years ahead.

Security is one area in which co-operation spans borders. Threats to Europeans have come into sharp focus in the recent past, as was mentioned by my colleague, Margaret Mitchell. The UK’s familiarity with counterterrorism goes back decades to the extent that we have security services that are the envy of the world. Of course, countries today do not always work on their own. Modern-day trends show that terrorists disregard geographical limits and operate in cyberspace.

However, and as Richard Walton, the former head of the Metropolitan Police Service counterterrorism command pointed out just after the EU referendum,

“Our security does not depend on engaging with the institution of the EU”.

Rather, the EU institutions and their agencies are but one platform from which information is shared and the practice will continue outwith the EU’s structure. EU member states depend upon the vital information that UK agencies pass on to keep other EU citizens safe. My colleague Margaret Mitchell already quoted from that particularly striking comment by Richard Dearlove, who ran MI6 from 1999 to 2004, and he continued:

“If a security source in Germany learns that a terrorist attack is being planned in London, the Bundesamt für Verfassungsschutz ... is certainly not going to withhold the intelligence from MI5 simply because the UK is not an EU member”.

I ask my parliamentary colleagues to give our European allies some credit for reasonableness and intelligent thought. They will not simply refuse to discuss matters on a reasonable basis.

Photo of John Finnie John Finnie Green

Does the member accept that history is peppered with lots of instances in which difficulties have arisen because security services, notably those in the US, have not shared information?

Photo of Gordon Lindhurst Gordon Lindhurst Conservative

The member makes a good point but that has, of course, happened even within the United Kingdom and Scotland. It has carried on happening in spite of whatever efforts have been made to ensure proper information sharing. However, I take his point; it is important that security services share information and that should, and no doubt will, continue.

Let us bear this matter in mind when we consider other areas of crime and justice. As a result of the establishment of the principle of freedom of movement, member states have co-operated more fully in justice matters, as, for example, has already been mentioned over the European arrest warrant. If we look at its use in Scotland, we see that, in 2015 for example, there were 78 extraditions from Scotland under an EAW and the conclusion of court proceedings but only nine took place into Scotland in the same year. Whether the UK remains party to the EAW post-Brexit may or may not be a matter for discussion, but it is clear that co-operation to expedite extraditions for criminals who have crossed borders is as much a priority for the EU member states, if not more so, as it is for Scotland.

In areas that the UK has opted into, including in civil justice, negotiations will no doubt take place on how matters develop going forward. Scotland, with a different legal system, as has already been noted, from the rest of the UK, may be affected differently and will be involved, as it always has been, in adding its voices to the discussions. The Scottish Government has previously noted its backing for the mutual recognition of court judgments, but it has also been supportive of UK opt-outs on justice and home affairs measures which it considered

“would not have correctly translated into Scots private law”.

Scaremongering about the consequences of Brexit on the judicial system in Scotland is entirely premature. The European Union is not a nation state. It relies upon the pre-existing and continuing to exist national legal systems, such as the system that we have in Scotland. That will not change when we leave the EU. Leaving the EU will of itself not alter one of the many acts of Parliament or regulations that have effectively transposed EU rules or regulations into our law.

There may be much work to be done in the negotiations on leaving the EU, but the UK and Scotland add a great deal of value in the area of justice and security. I am certain that EU member states will recognise both that and the moral imperative of working together to keep our people safe, irrespective of the political set-up through which we relate to each other. As a witness said, giving evidence today to the Economy, Jobs and Fair Work Committee, we are in danger of becoming obsessed with Brexit. Meantime the nationalist Government sits there gripped by Brexitis. However, I retain hope for the SNP, as hope indeed springs eternal.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

At the outset, I want to touch on a couple of comments that have been made by other members.

In his opening comments, Douglas Ross spoke about being right and just; seven minutes later, he was complaining about the number of EU debates in the chamber. Liam McArthur and Jenny Marra also touched on the number of debates. I am quite sure that one debate a week is not overly excessive; I do not imagine that anybody could accuse the Scottish Government of being overly excessive by having one debate a week. Certainly, in any other debate that takes place in the chamber, it is entirely up to members to choose the issues that they want to raise.

Liam McArthur rose—

I ask the member to give me two seconds.

If members want to introduce an EU element into their contribution, that is entirely up to them. I do not think that having one debate a week can be considered overly excessive.

Douglas Ross rose—

I will take Mr McArthur, because he was in first.

The Deputy Presiding Officer:

I call Douglas Ross. [


.] Sorry, which one is it?

Photo of Liam McArthur Liam McArthur Liberal Democrat

Thank you for the recount, Presiding Officer.

I hear what Stuart McMillan says. Expressed in that way, the situation perhaps does not sound unreasonable, but in a Parliament that has three sitting days a week and where the total number of debates is relatively limited, we have had a significant proportion of Brexit debates. That does not diminish the importance of the issues that we are discussing, but the result is that, over the eight weeks or whatever it is since we returned after the summer recess, we have not had an opportunity to debate other issues because of the Government’s dominance in determining the Parliament’s agenda. It is perhaps getting to the point where—

The Deputy Presiding Officer:

This is getting to the point where it is more of a speech than an intervention, Mr McArthur.

Liam McArthur rose—

No—do not get up again, please.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I thought that you said that we had plenty of time, Presiding Officer.

Photo of Liam McArthur Liam McArthur Liberal Democrat

It was in the interests of helping.

The Deputy Presiding Officer:

As always, but it was still more of a speech than an intervention.

We go back to Mr McMillan.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

I quite enjoyed Mr McArthur’s speech, but we will have to agree to disagree on that particular point. I am sure that if the population of Scotland felt that the Parliament was not considering the implications of Scotland and the rest of the UK leaving the EU, whether in relation to justice or any other issue, they would be rather angry and very disappointed. No doubt, we as politicians and the Parliament would be laughed out of court by many people across Scotland. It is imperative that the Parliament has the opportunity to discuss the full range of implications of Scotland leaving the EU. It is an opportunity for members to put issues on the record so that the Scottish and UK Governments can consider them, particularly when it comes to the negotiations on our actually leaving the EU.

There is no doubt that Brexit will have differing impacts throughout the UK, which as we know is a multi-jurisdictional state. In Scotland, there will be a specific impact on justice. The UK, as an EU member state, is the entity that signs up to EU treaties and individual EU justice measures. However, Scotland has always had a separate legal system within the UK, with its own civil and criminal law as well as its own courts, legal profession, police forces and prosecution service. In addition, most police and criminal justice matters are devolved under the Scotland Act 1998, as are most aspects of civil law.

Given that Scotland has a separate legal system, specific Scottish issues will arise in relation to negotiations with the EU in the justice field. Safeguarding our independent justice system demands that Scotland is involved in all negotiations between the UK Government and the EU, and is not just a consultee.

The consequences of Brexit are unclear. Much will depend on the outcome of the future negotiations. Consequently, current reactions to the decision to leave the EU may, by their nature, involve elements of speculation and are subject to change. Although there are differences of opinion, there are arguments that the new arrangements have the potential to be more complicated, expensive and time consuming than the existing regime.

There are important questions about what Scotland’s role will be in the process, given that Scotland has its own legal system with its own civil and criminal law, as well as its own courts, legal profession, prosecution service and police force. Although the Scottish Government does not have international relations powers—which rules out our having international treaties with the EU—it is permitted to observe and implement international obligations, including under EU law.

Claire Baker stated that “Crime knows no borders”, which is a fact that every single member in the chamber needs to recognise. It appears likely that Brexit will have a vast impact on the remaining areas of EU police and criminal justice policy, such as mutual recognition of judgments, exchange of information and participation in EU agencies.

As regards the EU agencies, the UK will, like other non-EU countries, be able to enter into agreements to co-operate with Europol and Eurojust. However, as the director of Europol, Rob Wainwright, has recently made clear, such agreements do not allow the UK to have direct access to databases, to lead investigation teams or to take part in the management of those agencies. We have to remember that Europol and Eurojust have had British directors.

The importance of the exchange of information and intelligence was recently stressed by Assistant Chief Constable Steve Johnson, who has responsibility for organised crime and counterterrorism in Police Scotland. We have heard various examples from members about how co-operation across the EU has helped Scotland and justice. Europol plays an important role in helping to keep our citizens safe from organised crime and terrorism, and it helps to make our communities safer places to live and work in.

The European arrest warrant is an essential tool in the fight against crime and terrorism in the EU. More than 500 cases have been heard in Scottish courts since 2011 as a result of the European arrest warrant, and nearly 400 people have been extradited from Scotland under the warrant to face courts elsewhere in Europe. That is a perfect example of how working together with our friends and allies in Europe helps to keep us safer. It is unacceptable that that has been put at risk thanks to the irresponsible actions of the Tory Government.

Those who use the Paris and Brussels attacks to claim that Brexit is safer are not only being populist in the worst way but plain wrong. Internal security is not linked only to Schengen borders. The attacks in Paris in November 2015 and in Brussels in March 2016 were carried out by European terrorists. They all had European passports. The main problem that Europe has to face right now is internal. To protect our own security, we should work on preventing radicalisation and the recruitment of European citizens by terrorist organisations.

Closing the UK’s borders even tighter would not change anything. In a globalised world where capital, humans and merchandise can go nearly anywhere, it is not feasible to fight alone. All security experts agree: we need to move towards a systematic exchange of information, and our secret services need to work hand in hand with one another.

Rob Wainwright, the director of Europol, confirmed that the UK would be more vulnerable to attacks and organised crime if Brexit were to happen. Access to Europol databases, participation in Eurodac, which is the European fingerprint database, and use of the passenger names record—all are tools that come under European law. Countries that are not members of the EU can contribute under an opt-in system. However, no one has the answer for certain, and the issue remains blurry, obscured by uncertainty about post-Brexit terms. The UK Government must confirm that it will do everything that it can to ensure that vital cross-border co-operation on law and order continues.

The Scottish Government has a duty to respond to the democratic wishes of the people of Scotland, and it will take all possible steps to protect Scotland’s interests. We must also keep all our options open, which in the first instance means exploring options that would allow different parts of this multinational UK to pursue different outcomes.

Photo of Lewis Macdonald Lewis Macdonald Labour

There are few better examples of how the European Union has changed and developed in recent years than in the field of justice and security.

The EU began life as a customs union and free trade area and grew into a single market. Its focus was at first an economic one. However, as Joan McAlpine said, if a single market covering so many separate jurisdictions was to work, the need for a common approach by the law courts in those jurisdictions to an ever wider range of issues quickly became clear. Once that was acknowledged, it made sense to develop ever greater judicial co-operation, not only on issues affecting trade and investment but increasingly across the field of civil law.

The very real threats faced by all European countries since the turn of the millennium, which many members have mentioned today, have made the case for co-operation on policing and criminal justice unarguable—in particular, in fighting international crime and terrorism.

Membership of Europol, as opposed to talking to it from outside, allows even closer partnership working among police forces in EU member states than working through Interpol alone. That is bad news for criminals and good news for law enforcement.

The same applies to Eurojust, which, as the cabinet secretary said, co-ordinates the work of the prosecuting authorities across boundaries to a degree that simply does not happen with countries outwith the EU. Most obviously of all, it also applies to the European arrest warrant, which transcends national boundaries so that fugitives from justice can be caught and returned to stand trial in the country from which they had fled far more quickly than can be achieved under extradition agreements with other countries around the world. John Finnie gave some very good examples of that, and Claire Baker also spoke about it.

All those areas of co-operation and others were supported by every party of government in both Scotland and the UK before the Brexit referendum, and supporting them remains in the national interest today.

It is deeply concerning that ministers in the current Tory Government have not yet signed up to the new powers that have already been agreed for Europol, which are due to come into force in May next year. As long as we are in the European Union, we should surely take advantage of its benefits, and co-operation across the police forces in Europe is surely one of those benefits. If nothing else, I hope that the Scottish Tory party will support that sign-up today and use this opportunity to urge its colleagues elsewhere to take the necessary steps to maintain full membership of Europol for as long as we are members of the EU.

I am sorry that Douglas Ross is not in the chamber at the moment, because he was keen to tell us that a UK minister is to make a statement on the issue shortly. I hope that either he or one of his colleagues will tell us that they want that UK minister to stand up in the House of Commons and pledge to sign up to the new powers for Europol so that we can enjoy those benefits over the immediate period ahead. Perhaps we will hear something on that later on this afternoon.

Photo of Lewis Macdonald Lewis Macdonald Labour

Of course, although I would far rather give way to a member of the Conservative front bench.

Photo of Michael Matheson Michael Matheson Scottish National Party

I note that Mr Ross is not present.

One of the central points about making a decision on Europol is the time and resources that are necessary to put in place joint investigation teams. The delay on the part of the UK Government means that officers in Police Scotland who are seeking to engage with other EU states through Europol are already finding that other member states are saying that, because the UK might not be a member of the organisation come the end of next April, they are not prepared to start to engage in that discussion at this point. That is why we need a quick decision on the matter, rather than delay.

Photo of Lewis Macdonald Lewis Macdonald Labour

Mr Matheson makes a strong point. I note that Mr Ross has returned to his seat. Perhaps we will now hear that the Conservative front bench in the Scottish Parliament believes that the UK Government should sign up to Europol’s new powers, which have already been negotiated. Mr Ross has an opportunity to make that clear today, if he so wishes.

As we have just heard, the Scottish Government has already made that case, and that is welcome. Of course, however, we also need to hear from Scottish ministers how they propose to take forward the issues beyond that of Europol’s new powers, and what they are proposing to their UK counterparts as the basis for our future co-operation with EU member states.

As a number of members have said, Scotland has continued to exist as a separate jurisdiction with our own system of law and justice through hundreds of years of economic and political union with our nearest neighbours. It is, therefore, essential that the Scottish Government engages fully in the formulation of the United Kingdom’s approach to negotiations in the justice field, not least in order to ensure that what is ultimately agreed recognises Scotland’s distinct position.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

Does Lewis Macdonald agree that having these debates creates an opportunity for the Scottish Government to listen to the issues and the concerns of all members, so that, when it has conversations with the UK Government, it can put those views forward?

Photo of Lewis Macdonald Lewis Macdonald Labour

Yes, that is vital. As Jenny Marra said, we are talking about one of the most significant political events of our lifetime, and it is vital that the Parliament fully considers the issues. However, as Jenny Marra also said, it is equally important that the Parliament and the Government maintain a clear focus on the areas for which they are directly responsible in our communities. I hope that we will have those debates in this Parliament as well.

With regard to the formulation of the Scottish Government’s approach to negotiations with UK ministers, it is important that there is wide consultation about the implications of Brexit, about the needs of the justice system and about how best to deliver what the justice system needs, given the political context that has been set by the referendum. We have heard something about that consultation from Mr Matheson today, but I hope that we will hear more at the close of the debate not only about the various stakeholders whom ministers have consulted but about what the Scottish Government has concluded from those consultations and what it will propose to UK ministers in order to protect Scotland’s relationships in Europe. After all, there are plenty of thorny issues for ministers in both Governments to address.

The word “bespoke” has been much used by Tory ministers. However, UK participation in European justice arrangements is already bespoke. The Treaty of Lisbon allows the UK specifically to opt into or out of most of the arrangements, more or less at will. Of course, as we know and as we heard today, UK Governments of all parties have opted into some of the critical arrangements.

It was concerning to hear some of the Parliament’s Tory members today appearing to make light of some of the vital forms of co-operation that have been supported by Tory ministers in the past. We can only hope that, in the UK Government, wiser counsel will prevail, because some of the things that all parties have signed up to in the past remain just as important today.

However, even if wiser counsel prevails in Theresa May’s Cabinet, the issue becomes just how difficult, destructive and time consuming it will be to keep the arrangements that we have already signed up to while we leave the EU itself. It has been said that co-operation on policing and the courts is not confined to EU member states. Norway, Iceland and Switzerland are members of the Lugano convention, for example, which supports the enforcement of judgments in the civil courts; there are plans to extend a form of the European arrest warrant to Norway and Iceland; and other countries, such as the United States, Canada and Australia have co-operation arrangements with Europol, Eurojust or both.

However, as with access to the single market—of which Norway, Iceland and Liechtenstein are members—third-party agreements do not allow external partners to decide the rules of engagement or play a full part in the policy process. If we were to join Margaret Mitchell’s long list of external partners of Europol, for example, police officers here would, as Stuart McMillan said, lose access to some of the powers that they currently have. In particular, Scottish, English, Welsh and Northern Irish forces would no longer be able to provide senior managers for Europol to influence the organisation’s direction.

All of that has serious implications for the police and the courts in Scotland and throughout the UK. We need to know from UK ministers whether and how they propose to retain the benefits of our existing European arrangements on justice, and at what cost. We need to know from Scottish ministers what proposals they will make to UK ministers in the justice field and what scope there is for continuing Scottish engagement with European partners. Those are not abstract issues; they impact directly on people’s lives. That is why we need to focus on what can be done now and in the longer term to protect the victims of crime and the integrity of our justice system.

Photo of Liam Kerr Liam Kerr Conservative

Security is one of the fundamentals of society and we need not be internationalists to accept that the chamber should note that international co-operation is necessary to combat cross-border crime and terrorism and should promote Scotland’s willingness to continue to collaborate with European partners.

The United Kingdom must seek a continuously strong relationship with the agencies that keep our people safe.

We must go further, though. Emblazoned above the steps of Britannia royal naval college in Dartmouth are the words:

“It is upon the Navy, under the good providence of God, that the Wealth, Prosperity and peace of these Islands and of the Empire do mainly depend”.

That is as true today as it was 211 years ago this week, when the British fleet prevailed at Trafalgar, which all but ended Napoleon’s ambitions to invade these islands.

Photo of John Finnie John Finnie Green

Does that include having an aircraft carrier but no aircraft that can go on it?

Photo of Liam Kerr Liam Kerr Conservative

I will come to the defence of these islands shortly.

Napoleon’s ambitions were ended as Britain was protected by her best bulwarks: her impregnable floating wooden walls. The walls long ago ceased to be wooden, but they do exist. They exist in our place as part of the United Kingdom at the top table of NATO; in our place as a permanent member of the United Nations Security Council, which allows the UK’s voice to be heard on a global stage alongside China, Russia and the United States of America; in our membership, as the UK, of the vital five eyes intelligence network with the USA, Canada, Australia and New Zealand; in maintaining as the UK a well-resourced Government Communications Headquarters, which has foiled seven serious terror plots in the UK in just one year; and, of course, in the UK’s Royal Navy, Army and Royal Air Force, which, through the UK Government’s strategic defence and security review, we have pledged to support by spending a minimum of 2 per cent of Britain’s gross domestic product on defence in every year of this UK Parliament, with at least a 0.5 per cent rise in defence spending every year. We commit more to common European security than any other NATO member does other than the United States.

As we sit here today, just down the road in Barrow-in-Furness people are cutting steel for the wooden walls of the 21st century: HMS Dreadnought and her sister boats, which are to be based at Faslane and built to carry the next-generation Trident replacement weapons system. They will ensure not only the future security of this country but the economic security of the surrounding area, as they will secure more than 6,000 jobs at the Faslane base alone and many more in the surrounding area.

Let us not forget the order for eight new type 26 frigates for the Royal Navy, which the UK Government has guaranteed will be built on the Clyde and which will create hundreds of jobs for the local population. Where our amendment calls for our security to be preserved, this is what we resolve: the maintenance of those great cornerstones as part of the United Kingdom—I stress the word “united”.

A divided Europe is bad not just for this continent or this island but for the world, and that is why, despite Michael Matheson’s suggestion that we will be walking away post-Brexit, the United Kingdom will be Europe’s closest ally and friend. It is why France and Great Britain signed the Lancaster house treaty in 2010, as a result of which the two countries hold regular joint exercises and collaborate on next-generation military technology. It is why, since 2002, as part of combined task force 50 and operation enduring freedom—Horn of Africa, British ships have sailed with our NATO, European and other allies off east Africa to protect the world’s shipping from piracy. It is why we see a Europe that is sheltered and protected through NATO as our best defence against the key threats that we face collectively in 2016. As the Prime Minister has said, security co-operation existed long before the EU and it will exist long after it.

For many of our European cousins, especially those to whom war or occupation is not a page in a history book but a lived experience, seeing ancient enemies sitting around a table under a common flag must be a sight that they prayed for and never thought to see. However, let us look at what is happening in Europe. Only last month, the President of the European Commission, Jean-Claude Juncker, announced to the European Parliament that the time had come for a joint European military headquarters and battle group to be formed—a permanent EU facility for a joint European defence force, which would cede UK command and control of our military to Brussels.

Stuart McMillan brought up the attacks in France. The French and the Belgians are still arguing about intelligence sharing between them—the French accuse the Belgians of allowing home-grown terror to grow unwatched and untapped in the communes of Brussels, while the Belgians accuse the French of refusing to share vital information that might have led to them intercepting the Paris and Brussels bombers before they struck. One French intelligence chief said:

“The Belgians just aren’t up to it.”

Our security depends on Scotland’s membership of the United Kingdom. If Scotland separated from the United Kingdom, would it commit to spending 2 per cent of GDP on defence? Would it commit to joining NATO if NATO insisted on Scotland allowing nuclear submarines in its waters? If Scotland separates from the United Kingdom, it will not be part of the five eyes network, have a permanent seat at the UN Security Council or automatically benefit from the treaties and alliances on defence and security that the UK has signed with other sovereign nations.

It is clear that the security of our nation depends on our membership of the United Kingdom, allied to, working with and supporting our European partners. It does not depend on membership of the European Union. Our amendment acknowledges the good in the Government’s motion, but we go further. We ask the Parliament to acknowledge the greater value to our security of being part of the United Kingdom and call on the Scottish Government to positively engage in shaping the UK’s negotiating strategy for leaving the European Union.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I gently disagree with Liam Kerr. The person who really defeated Napoleon was a guy called George Scovell, who was Arthur Wellesley’s code-breaker. George Scovell broke Napoleon’s le grand chiffre, and thus, in the peninsular wars in 1812, the man who became Lord Wellington knew exactly what Napoleon’s plans were.

In the modern world, perhaps the use of, access to and protection of data will be equally important, and important things on the European stage relate to that. Government Communications Headquarters was the home of public key cryptography: Crookes and Clifford Cocks were the original inventors, although now its invention is attributed to the 1977 Massachusetts Institute of Technology patent in the name of Rivest, Shamir and Adleman. The secrecy of GCHQ meant that the UK was denied the commercial advantage and intellectual approbation of the world for inventing the software and algorithms that continue to protect our data to this day.

If we cut ourselves off from the world in the way that it appears will be the case, we will not be in a position to develop the means to make and to break cryptography. When we are dealing with crime, we need to be able to break into the codes and encryptions that criminals use and we need to produce robust protections for our data, because that is the very basis of our national security.

Rather than involving the old arguments about hardware, the future will be much more about fighting cyberwars and cybercrime. With people from around the world coming to our universities to share their intellect and their ideas, we are in a position to develop the kind of protections that we need. However, with the cutting of ties to European institutions and the setting up of barriers to the free movement of people, we will not have the intellectual and multinational capacity to fight the world in the internet.

The internet de facto knows no boundaries; it creates commercial, intellectual and cultural opportunity, but it also creates threats to which we need to respond. The internet is a place with fewer rules than we would probably put in place if we developed it from scratch today. It enables people to create spoof emails, it enables phishing attacks by spoof websites and, with wi-fi moving into domestic things such as fridges and lights—the internet of things, as that is now called—it creates further vulnerabilities that require international collaboration.

Only last week, an attack by a bot infected many pieces of domestic equipment and wi-fi via the internet, and it brought down the domain name server that allows people to access Twitter. Some of us might think that having Twitter off the air for four or five hours is probably a very good thing. However, that attack is indicative of the threats that will exist in the future from the activities that can take place on the internet.

We must not pretend that the world of the future is one where barriers will be more controllable than they were in the past; they will be more permeable than at any time in recent history.

Terrorism is not a new thing. The Metropolitan Police special branch was founded in 1883 in response to the Irish republican brotherhood—a domestic terrorist organisation in the United Kingdom, which included Ireland at that time.

International terrorism existed then, too. In January 1911, Winston Churchill attended the siege of Sidney Street, where Latvian revolutionaries—who had been conducting a series of bank raids—had holed themselves up. Special branch and the Army were there to dig them out. Churchill claimed that there were lead bullets in his astrakhan coat from peering from behind the wall to see what was going on and getting himself shot at—whether that is true is perhaps a matter for debate.

In more recent times, we had the Balcombe Street siege in London in 1975, which again involved Irish terrorism. We had the Baader-Meinhof gang in Germany and the red brigades in Italy, both of which were entirely domestic. Terrorism crosses boundaries, but it can also grow in communities that are not socially adept at responding to changes.

We have just been through the fifth referendum organised by central Government. The first was in 1975, although there was also a referendum on the League of Nations in 1934. That one was organised by the churches, but everyone in the UK voted. We are now discussing the impact on the justice system of the most recent referendum. Let us go back and think about what that referendum was about.

The question on the ballot paper was a simple one: should the United Kingdom remain a member of the EU or should it leave? That was all. It was not a referendum on immigration, the single market or the European convention on human rights. In fact, the question that we were asked made no reference to matters of justice, the economy or a wide range of other areas. Therefore, we should not read into the result the idea that it tells us that we should leave the single market or unsign the European convention on human rights, which—as Claire Baker reminded us—was very much the brainchild of Winston Churchill, who was at that time a distinguished Conservative member and former Prime Minister. We cannot look at the vote and decide what it means.

Margaret Mitchell told us that we should not reveal anything about our negotiating hand. I predict that, if we go into the chamber where the negotiations take place with a blank sheet of paper, we will come out with a blank sheet of paper.

Photo of Mary Fee Mary Fee Labour

In closing for Scottish Labour, I welcome the opportunity to debate the serious consequences of the referendum on EU membership and I reiterate our support for the Scottish Government throughout the negotiations to protect our shared interests and in particular the national interests of security and justice.

The Government motion spells out clearly the benefits that we have come to expect from being part of the European Union, from membership of Europol and the European arrest warrant scheme to consumer protection laws and family law regulations. We will support the motion tonight, and I am pleased that the Government has indicated that it will support our amendment, which

“calls on the Scottish Government to undertake a full analysis of the impact of leaving the EU on Scotland’s independent justice system”.

We know that, throughout the upcoming negotiations, the Scottish Government will be a serious and willing partner in protecting our interests, and the Prime Minister and her army of Brexiteers must respect that.

We heard earlier from Claire Baker, Jenny Marra and Lewis Macdonald, who all share a deep concern for our membership of Europol and Eurojust. As Jenny Marra said, Scotland has a unique justice system, and we must ensure that it is protected and that there are no unintended consequences. Police Scotland needs our support to continue with cross-border investigations and to access the shared resources that enable us to fight cybercrime, drug smuggling and selling, terrorism and human trafficking. Those crimes and their perpetrators do not recognise or respect borders or legal jurisdictions.

Prior to the referendum in June, many security experts warned of the potential dangers of retreating from Europol, Eurojust and other cross-border agencies and agreements. Rob Wainwright, the director of Europol, warned in the days leading up to the vote on 23 June that leaving the EU would result in Britain becoming “a second-tier member”, which would risk the shared resources that police forces across the UK use. He pointed out that, last April, the UK became the first non-Schengen nation to gain access to the Schengen information system after negotiating a special deal, noted that British police now use the database daily and commented that it could take years to strike a new agreement.

Philipp Amann from Europol commented that British police will find it

“more complex to achieve the same that they can achieve now” after leaving the EU. We know that the Cabinet Secretary for Justice recently met the director of Europol, and we extend our support to encourage the Home Office to accept Europol’s new and expanded remit.

One of the problems with the EU result is the uncertainty. Until the Brexiteers show any sense of direction or give any kind of plan, the rest of the country will continue—rightly—to demand answers.

Scotland has a unique position in the UK, given our different legal system, so the SNP Government must be clear in advance of any negotiations what its goals and objectives are and lay those out to Parliament. We need to know which aspects of EU law our justice system uses and what impact the Scottish Government would expect to see if we were to lose those powers. As a Parliament, we must unite and speak with one voice to ensure that we do not put our security at risk.

As a former Home Secretary, Theresa May knows that Brexit will put key protections at risk and make it harder for Police Scotland and the security services to do their jobs. We must ensure that our country’s security is not jeopardised by this Tory gamble.

On civil justice, I ask the Scottish Government to inform the Parliament how it plans to secure protections on human rights, maintenance rights and cross-border family law.

The previous UK Labour Government made hugely significant strides in protecting our rights through the Human Rights Act 1998. We now have the hard right in the Tory Government determined to strip away those rights and leave many people more vulnerable and at risk.

Labour helped many single parents to receive the support that they needed through the Child Support Agency and, with a more diverse society, many more families involve parents of different nationalities. In the unfortunate event of the disintegration of a family unit, it would be a tragedy for a family to lose out on maintenance support if one parent were forced to leave the UK.

There are still many complex issues to arise from the EU result and, for the Scottish Government, lots of strenuous negotiations will take place with a Tory Government that appears to be willing to risk many safeguards and our citizens’ human rights.

When people were asked to vote in the EU referendum, many were misled by the arguments of the leave campaign, which sought to split communities and families on issues of immigration and EU contributions. Scottish Labour is committed to maintaining our access to the single market and to the criminal justice mechanisms that protect Scotland and the UK.

No matter how the country voted, nobody voted to put our security and justice systems at risk. Now the challenge is for the Scottish and UK Governments to work together to minimise any impact that Brexit will have on our people’s security.

I reiterate our support for the Government motion and ask members to support Claire Baker’s amendment.

Photo of Oliver Mundell Oliver Mundell Conservative

I close the justice debate for the Conservative Party as an unapologetic Brexiteer, a proud Scot and—yes—a committed unionist. Nothing that I have heard in this chamber today has shaken my underlying optimism and belief in the boundless capacity, skill and potential that our legal and criminal justice system has to cope with the challenges ahead, and to overcome them. Maybe I have more confidence than the Scottish Government, but Scotland is not too wee to make a success of Brexit in terms of the justice portfolio and more widely.

However, if we are to achieve that, we need to stop dithering and to start looking for and putting in place the correct transitional measures, and exploring the opportunities that exist. That is a task not just for the UK Government, but for the Scottish Government—in particular, within the justice portfolio because, as Mary Fee eloquently said, Scotland has a separate legal system. The SNP is trying to pull the wool over the eyes of the people of Scotland: its saying that considerations about what is best for the Scottish legal system would be left to Westminster to decide is a little bit pathetic when responsibility for that is devolved to this Parliament.

What we need from ministers are principled goals and objectives on how we take matters forward for the Scottish legal system and criminal justice in our country. I am sure that Mike Russell will fill us all in and show the UK exactly how it is done.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Margaret Mitchell said that we should not reveal the UK negotiating hand to any degree. Is Oliver Mundell taking a different view in relation to Scotland?

Photo of Oliver Mundell Oliver Mundell Conservative

Yes, I am. The Scottish Government is in a different position from the UK Government, which will have to go into a room with 27 other member states and make the case on behalf of the whole United Kingdom. The role of the Scottish Government—it can make a real difference for the people of Scotland on this—is to set clear goals and objectives on which it wants the UK Government to deliver, so that people beyond this Parliament can assess whether the deal that is done delivers for people in Scotland.

Photo of Oliver Mundell Oliver Mundell Conservative

I want to make a little progress first. I am prepared to come back to the member

I think that we have been shown the way. I have sat through the whole debate and heard countless members refer to the Law Society of Scotland’s briefing paper. It is a sad indictment of this Parliament that we are relying on professional bodies to identify the issues and provide the bulk of information and detail on them, while we hear the same speech over and over again, as members trot out lists of grievances and problems without offering constructive solutions.

Maybe I will be surprised during the cabinet secretary’s closing speech: we might hear constructive suggestions that we can take forward. However, we have heard no such suggestions yet, after a miserable month—

Photo of Oliver Mundell Oliver Mundell Conservative

I want to make a little more progress.

We have had a miserable month of hearing from people that everything is awful, and that if only people would listen to them things would suddenly and miraculously be fixed. However, while the Scottish Government has been running round like Chicken Licken, telling the people of our country that the sky is going to fall in, business people, professionals and hard-working people in our country have shown how to get on with their day jobs, without blinking or buckling.

I think more than ever that the SNP’s contempt for Brexit is driven not by genuine concern that the European arrest warrant or Europol systems are under threat, but by self-interest, as Douglas Ross said. If the SNP is to have a credible voice, stand up for the people of Scotland and speak out on legitimate concerns about the future of the justice system, it needs to acknowledge the complexities in the electorate—some of which might get in the way of its slow march towards independence.

For a start, the Brexit debate has broken seemingly unbreakable alliances in the separatist movement, thereby revealing that for a great many people who passionately believe that Scotland should go it alone, that means leaving behind not just the United Kingdom but the European Union. I find it bizarre—I am sure that many members agree—that I feel compelled to speak out on behalf of SNP voters who voted to leave the EU, as I did, and whose views are being completely discounted as the Government pushes ahead with independence as its priority, instead of listening to people’s legitimate concerns about the European Union.

Photo of Gillian Martin Gillian Martin Scottish National Party

How many SNP supporters have been in touch with the member to ask him to speak for them today?

Photo of Oliver Mundell Oliver Mundell Conservative

I have a nice simple answer to that: two. I want to get back to my day job, but instead I find that SNP supporters—

Photo of Oliver Mundell Oliver Mundell Conservative

Well, it is quite unusual for SNP supporters to want to speak to a Conservative MSP. I think that most people would acknowledge that. I find it odd.

Photo of Oliver Mundell Oliver Mundell Conservative

I am still responding to the previous one. I want to get on with my day job and push the issues that matter to constituents in Dumfriesshire, instead of focusing only on issues to do with Brexit.

Although Jenny Marra and Liam McArthur will probably want to dissociate themselves from many of my remarks, I agree with them on their points about the need to focus on the issues that matter. Quite frankly, the Scottish Government’s record on some of the issues relating to justice is very poor. We are hearing about the closure of police stations, including eight in Dumfries and Galloway.

This is about proportionate use of time. If we were hearing something new and different, or constructive suggestions about how to take the process forward, it might be worth our while to have this series of debates. Instead, however, we seem to be in a loop, making the same tired arguments that were hashed out during the referendum process.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

Third time lucky. I thank Mr Mundell for taking the intervention.

Surely he can agree that, with the plethora of issues that are being raised because the UK is leaving the European Union, it is imperative that members of this Parliament have an opportunity to have their say and to raise issues and concerns. He has mentioned the concerns of the two SNP voters who have, apparently, contacted him. This Parliament is one of the platforms at which issues can be raised; it is imperative that it has the opportunity to do that so that the Scottish Government can then talk to the United Kingdom Government about them.

Photo of Oliver Mundell Oliver Mundell Conservative

I agree, but like Stuart McMillan’s colleague Gil Paterson, I think that this is about proportionality. How much time do we want to spend talking round and round on the same issues without making any positive suggestions or moving the debate substantially forward? It is essentially the same debate that we have been having on the EU. In its motion, the Government has cut out the word “environment” and inserted the word “justice”. The debates are not taking matters forward. We have the same minister coming to the chamber to answer the questions on each of the topics. As members have said, it is becoming a bit like groundhog day.

Stewart Stevenson raised an interesting point about ignoring his own party. Here in Scotland, people want the relationship to change. He said that the result shows nothing, that we cannot read anything into the question that was on the ballot paper and that the referendum does not answer lots of things; however, it shows one thing. It shows that people in Scotland want our relationship with the EU to change. Instead of talking about the benefits of allowing Scottish courts—

Photo of Oliver Mundell Oliver Mundell Conservative

Yes—but 38 per cent vote not to remain. If the cabinet secretary wants to intervene, I will be happy to let him.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

You have to close, please, Mr Mundell.

Photo of Oliver Mundell Oliver Mundell Conservative

More than a million voters in Scotland voted to leave. I know—as I have said before—that the SNP wants to airbrush them out of history, but that is more voters than put a cross next to its party leader’s name on the second vote—

The Deputy Presiding Officer:

You must close now, Mr Mundell.

Photo of Oliver Mundell Oliver Mundell Conservative

In short, rather than hearing that the EU is a utopia, that everything that it ever did was great and that it has a divine right to exist, I want to hear from Scottish Government ministers—

The Deputy Presiding Officer:

Mr Mundell, you must close.

Photo of Oliver Mundell Oliver Mundell Conservative

I want to hear from Scottish Government ministers what their detailed plans are for justice and—

The Deputy Presiding Officer:

Mr Mundell, I ask that when I say that you must close, you close, please.

I call Mike Russell. You have up to 11 minutes, Mr Russell.

Photo of Michael Russell Michael Russell Scottish National Party

Thank you, Presiding Officer. I start by genuinely commending Oliver Mundell for his speech. He certainly lifted the debate beyond the depths to which it had sunk with his party, because he addressed the key issue. I want to be quite genuine about this: I am a passionate believer in the EU and will not resile from that, just as I acknowledge the position that he took in saying before the vote that he wished us to leave the EU. That is an advance on some of his colleagues, who are now rewriting the history of their position on the matter.

I am a solid believer in the EU, and if Oliver Mundell had been in Parliament to hear me argue for it before the election, he would have heard the same thing as he has heard after it.

We have had half a century of peace in Europe. That is a remarkable achievement. The EU has prevented war and it has been economically beneficial for the whole of these islands. We have only to look at the UK’s positions before accession and afterwards to see the remarkable effect that it had. That cannot be denied. It has been an enormously positive force for social protection and human rights, and can continue to be so.

I could go through all the advantages, and I would be happy to do so in a debate. However, I also want Mr Mundell to acknowledge—because I am dealing seriously with his points, as they need to be dealt with—the democratic imperative to which the Government is responding from the Scottish electorate, which will be a difference between us. The Scottish electorate voted 62 per cent to 38 per cent to stay in the EU. We are responding not just to the mandate that we had in the election in May, in a manifesto in which we specifically said that Scotland’s being removed from the EU against its will could trigger an independence referendum, but to the mandate in the referendum, and we are responding to Parliament in preparing the options. We will come to the chamber with the preferred option, as the First Minister has said, but it must be informed by debate, discussion and research. That is one of the purposes of these debates.

Photo of Oliver Mundell Oliver Mundell Conservative

Does Mike Russell accept—and was it not implicit when Nicola Sturgeon toured the television studios and in comments that she has made several times on the issue—that, although the SNP manifesto talked about

“a material change in circumstances”, there also needs to be a material change in the fundamental level of support for the proposition of independence for the SNP to have a mandate in Parliament to take that forward?

Photo of Michael Russell Michael Russell Scottish National Party

We have not yet brought an independence referendum bill to Parliament. When and if we bring the independence referendum bill to the chamber, we will confront the issue of support. The manifesto specifically referred to Scotland—[



Presiding Officer, it is rather difficult to have a serious debate when the member who is sitting beside Mr Mundell keeps waving his hands in the air. It would be useful if we could address the serious points that Mr Mundell raised, and to which I am responding. Mr Mundell raised the level of the debate, for which I pay him tribute.

When and if the referendum bill comes to Parliament, we will discuss support. However, that was in our manifesto and there is a commitment to honour the decision of Scottish voters. In addition, Parliament has asked us to address the matter, which is why we are having these debates.

I regret that the tone among Tory members has been, “Why are we bothering with these debates?” They are vital and we would have been criticised had we not offered Parliament the opportunity to consider, debate and discuss the key devolved areas in the context of Brexit in order to ensure I understand, in undertaking the task of representing Scotland in the negotiations, the issues about which members are concerned.

I am now worried, because it appears that the mainstream voice of the Tories on justice is not Mr Mundell, who spoke very well, but Margaret Mitchell. That should worry every member of this Parliament. Margaret Mitchell was the original Brexiteer before the election and is now the Brexiteer who is speaking for the Tories on justice matters. However, I think that saner counsels on justice may prevail. We must recognise the real issues that are at stake and—I say this with the greatest respect to Margaret Mitchell—they are not the issues that she raised. The issues that Liam McArthur, Claire Baker and the cabinet secretary raised are the real issues in the debate.

I will briefly go through those issues. Brexit puts at risk a range of co-operation across both civil and criminal law—in police co-operation that exists for tackling organised crime, in helping to keep our citizens safe and, which is vital, in helping people to live and work across the EU. Liam McArthur drew attention to terrorism, but he went on to draw attention to the family court issues and the commercial law issues that are the bread-and-butter issues for doing business in and living in countries across the EU.

People take advantage of those legal systems and protections day after day. Labour members also drew attention to those. Unless we are in a position to ensure that those legal systems and protections can continue as they are, the disruption will come not in matters of security and terrorism, because those are often matters of domestic activity and protection. The disruption will come when individuals cannot get resolution in commercial disputes, when they cannot sign and enforce contracts, and when they cannot get resolution in matters of family law, divorce and difficult personal matters. There is no reason why those matters should be disrupted. That is at the core of the debate, which is about a series of choices.

We hear from the born-again Brexiteers that, in some senses, what happened was inevitable—it had to happen and the changes had to take place—but that is absolutely not true. We must now consider the balance of advantage. Where does the advantage lie? Is there any great advantage in not being part of, or being only an associate part of, the legal arrangements in question, or is there greater advantage in being part of them? The European arrest warrant is a very important case in point. There are countries outside the EU that have negotiated their own arrangements—Norway and Iceland are examples—but it has taken them far longer to negotiate and set up those arrangements, and the system operates in a much less satisfactory way for those countries. Parliament has heard repeatedly about cases in which it has been possible for action to be taken almost instantly. That is not just because of the procedures that exist; it is to do with the ability of individuals to co-operate.

The fact that Eurojust’s prosecutors sit in the same building as those of the International Court of Justice means that they can build and develop relationships that allow justice—not just family and commercial justice, but criminal justice—to be well served. Why would we disrupt those arrangements? Any weakening of those arrangements will cause disruption.

Photo of Oliver Mundell Oliver Mundell Conservative

I thank the minister for his kind comments. I will be slightly less kind in reply. I think that he is doing just what I said: identifying issues. We have still not heard a single constructive suggestion about how the Scottish Government is going to protect the rights that he is talking about.

Photo of Michael Russell Michael Russell Scottish National Party

The constructive suggestion that I am putting to Mr Mundell and other members is that we should first recognise the difficulties that exist instead of sweeping them under the carpet and saying that they do not really matter to us. We should then consider what structures we could put in place to avoid those difficulties.

We will bring to Parliament—the First Minister has committed herself to doing this—our preferred alternative, although the better alternative would have been not to have gone down this route in the first place. The best alternative would be not to be in the position that we are in.

Photo of Oliver Mundell Oliver Mundell Conservative

Does not Mike Russell accept that that ship has now sailed?

Photo of Michael Russell Michael Russell Scottish National Party

That ship has 62 per cent support in Scotland; it has majority support. That is the voice of our constituents, who are saying that they did not want what happened to happen.

Photo of Oliver Mundell Oliver Mundell Conservative

There is a big difference between saying that the majority of people in Scotland did not want to leave the EU—I accept that that is the case—and saying that 62 per cent of people in Scotland want to disrupt the Brexit process and back the Scottish Government’s plan to stir up tensions.

Photo of Michael Russell Michael Russell Scottish National Party

I do not regard representing the issues and interests of the people of Scotland as stirring up tensions. If the Tory party understands representing the interests of the people of Scotland to be stirring up tensions, no wonder Tory members are so bad at their day job, because it is their day job to protect the interests of their constituents and of Scotland. That is what the Scottish Government will do. On our watch, we will never let down the people of Scotland. [


.] Their vital interests lie in making sure that whatever settlement is reached ensures that their life is not disrupted in terms of prosecution or of the protections that come from the European arrest warrant and from the arrangements on family law and commercial law.

We have an opportunity to make sure that we develop a distinctive position—that is what this series of debates is about. Members who criticise the debates are trying to walk away from their responsibilities. I encourage them to stick with their responsibilities, because it is only through these debates and the discussions that we are having that we will formulate the robust position that Scotland must have to get not the best—unfortunately, the best appears to be eluding us at the moment—but as much as we can for Scotland in the discussions ahead.