European Union (Withdrawal) Bill

– in the Scottish Parliament on 12th September 2017.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

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

Photo of Michael Russell Michael Russell Scottish National Party

Twenty years ago today, celebrations were taking place in this city and across the country. The day before—11 September 1997—the people of Scotland had voted overwhelmingly for devolution. They had voted for a different Scotland, served by a restored Scottish Parliament.

The people who were celebrating that day did not represent only one party or one strain of opinion, and the campaign to secure that vote was cross party and of no party.

As Scottish National Party chief executive at the time, I worked as one of three campaign directors, alongside my Lib Dem and Labour colleagues. We made common cause with many from outside politics who, for many years, had believed in a better, democratic Scotland.

It is in that spirit that I make this statement today. As with that campaign 20 years ago, this is not a party matter. It concerns all of us who care about the future of this country. Then, we joined hands to try to create a better future for Scotland. Today, we must show the same unity in defending the Parliament in which we sit and its role and duty to serve all the people of this country.

In 1997, the proposition that was put to the people of Scotland was clear. The UK Government’s white paper, which was published in advance of the 1997 referendum, set out the areas for which it promised that

“the Scottish Parliament will be responsible”.

Those areas included law and home affairs, the environment, agriculture, fisheries and forestry, higher education and research.

Since this Parliament was established, the range of policy matters that are our responsibility has increased. Initial expansions that gave the Parliament greater responsibility for transport were followed by the Calman and Smith processes, which expanded our competence—albeit in a limited way—into areas such as taxation and welfare.

That progressive and dynamic development and expansion of devolution has been good for the Parliament and good for everyone who lives and works in Scotland. It has made a difference to people’s lives.

As the First Minister said yesterday in her speech to mark two decades since the devolution referendum,

“After devolution we were able to look, not just south, but all around us, to our fellow European nations and to countries across the globe. And we could contribute our ideas, learn from others and then put those ideas into practice here in Scotland. Far from narrowing our vision, devolution has widened our horizon.”

However, the Scottish Parliament’s ability to contribute ideas, widen horizons and make progress for each and every citizen is now under threat.

In the European Union (Withdrawal) Bill, the United Kingdom Government proposes that it should, for the first time since 1999, take powers for and to itself in relation to devolved policy areas in Scotland. It proposes to alter, permanently, the fundamental principle of devolution, as approved by three quarters of the Scottish people in the referendum 20 years ago—that is, the principle that what is not reserved is devolved.

We do not believe that that would be good for the people of Scotland. We do not believe that the hill farmers of Argyll, in my constituency, would be better served by policy on less favoured area support being made in London, where such support will never be needed and where knowledge of its vital nature is scanty or non-existent. We do not believe that ambitions for cleaner air and a greener Scotland should be undermined by UK ministers who have very different environmental priorities and who have championed deregulation at every opportunity. We do not believe that the needs of Scottish families who are in crisis will be better understood by those who have constantly undermined the welfare state.

That is why the legislative consent memorandum that was lodged today in the name of the First Minister indicates that we are not willing to bring forward a legislative consent motion at this time. We cannot recommend to the Parliament that it should consent to the bill as presently drafted. That is exactly the same position as the Welsh Government has taken, albeit that its procedures are slightly different. The Welsh Government will today lodge its relevant memorandum in the name of Wales’s First Minister.

I will explain some of the detailed reasons for that stance. The present constitutional arrangements in the UK mean that all the UK’s legislatures—the UK Parliament just as much as the Scottish Parliament—must act in accordance with EU law. In relation to agriculture, for example, the Department for Environment, Food and Rural Affairs has at present no greater power than the Scottish Government has to act incompatibly with EU law.

The bill would fundamentally alter that position. It would make the UK Parliament and Government the sole successor to the EU, so that all matters that are currently decided co-operatively among 28 EU member states and Governments would be unilaterally decided by only one: the UK Government. The bill does not provide for a single new decision-making power for any of the devolved legislatures. Everything goes to London, and it is for London to decide what ultimately happens to those powers.

This is not a debate about whether we should leave the European Union. The position of the Scottish Government—indeed, the position of the people of Scotland, as expressed in last year’s referendum—is clear on the matter: we do not want to leave. However, the bill is not an opportunity to veto Brexit; such a legal power does not exist. Moreover, we have frequently made it clear that, despite our wish to maintain EU membership, we recognise our obligation to prepare Scotland as best we can for what might transpire. Brexit will be such a dramatic and damaging upheaval to the UK’s legal systems and to our laws that it is imperative that we do everything that we can to prepare responsibly for the consequences.

Nevertheless, certain choices in the bill, such as ending the effect of the European charter of fundamental rights, will make the process even more damaging than it needs to be. The Law Society of Scotland warned last week that the UK Government

“should reconsider the removal of the Charter of Fundamental Rights from UK Domestic Law and take stock of concerns which are held by many about the potential for erosion of human rights which may occur”.

It is already clear that the Governments of these islands have a lot of work to do to make sure that some stability and continuity can be achieved on exit day, and they will have to work together if that is to be done most effectively. The bill makes that much more difficult, not least because it appears to represent a deliberate decision by the UK Government to use the process of Brexit as cover for taking powers in areas of policy that are clearly within this Parliament’s responsibility.

I will be entirely clear about this. It is not a logical or essential part of any withdrawal bill to place new limitations on the Scottish Parliament’s powers, on the National Assembly for Wales’s powers or on the powers of the Northern Ireland Assembly, but that is what the bill does.

Clause 11 contains a new limitation on devolved competence that is of extraordinary scope. While the bill lifts from the UK Government and Parliament the requirement that they are currently under to comply with EU law, clause 11 will impose on the Scottish Parliament a new limitation that will be tied to EU law as it happened to exist at the date of withdrawal. In areas of Scottish devolved responsibility that are vital to our country’s success, such as agriculture, the environment, fisheries, forestry, research and justice co-operation, the Scottish Parliament will have no say over what comes back from the EU on withdrawal or what is done with those important policy areas afterwards.

I will give an example that I have taken directly from the House of Commons briefing paper on the bill, which uses the common agricultural policy to illustrate what that approach would mean for the Scottish Parliament. The paper notes:

“It is an important part of the law on agriculture, a devolved matter, but one which devolved Ministers will not be able to amend ... If the UK left the EU and did not legislate to the contrary, agriculture would fall within the competence of the Scottish Parliament”.

However, the report notes:

“While this can be changed for England, or for the UK, by the UK Parliament, devolved legislatures and Ministers will not have the power to modify the type of EU law ... that makes up the CAP.”

The system of farming subsidies, as it has been developed over the past 18 years to meet particular Scottish need, is only one example. Many other areas of present devolved competence would be put beyond this Parliament’s powers, including the high standards of environmental protection that the EU has given us, our approach to food standards, the protection of our unique food and drink products, the operation of family law across national boundaries and the recognition of qualifications in our health professions. There is a long list that consists of more than 100 areas in which EU competences intersect with our competences.

The damage caused to the devolution settlement by clause 11 would not end when the process of EU withdrawal ended. As I have indicated, it would permanently change the way in which the Parliament’s legislative competence is assessed. The UK Government also wants the inclusion of clause 11 to ensure that it can impose UK-wide frameworks following Brexit and then, in some cases, trade off Scottish rights, privileges and protections in lowest-common-denominator trade talks. Agriculture and fishing are particularly at risk from that approach.

Last December, we set out in “Scotland’s Place in Europe” our clear acceptance that common approaches to some matters will be needed across the UK when the UK withdraws from the EU, but as we and the Welsh Government have repeatedly made clear, those common approaches, the areas that they cover and the way in which they operate must be agreed and not imposed. With clause 11 in place, agreement could never be reached, since the price that the UK Government demands for an agreement would in effect be the reservation of each matter, which would put it and the terms and operation of any framework beyond this Parliament’s powers.

The UK Government’s approach is not about UK frameworks; it is about UK Government frameworks, which are decided on, operated by and controlled in the UK Government. Returning powers to the Scottish Parliament along the lines of the devolution settlement that is set out in the Scotland Act 1998 would not prevent the agreement of such frameworks. In fact, it would enable that agreement, because mechanisms exist for the two Governments to agree a common or co-ordinated approach—for example, legislation in both Parliaments or in the UK Parliament, with our consent; memoranda of understanding; concordats; and the administrative agreement of common goals.

All those existing mechanisms are based on the existing and well-understood principles of devolution. Regrettably, the bill’s approach to UK-wide frameworks suggests a fundamental shift in the UK Government’s approach to such relations with the devolved nations. I will again quote from the House of Commons briefing paper on the bill. It warns that, for the devolved nations, Brexit will not bring back control. It says:

“The retention of common frameworks could be seen as an effective centralisation of power”.

Power should be devolved according to the current settlement; it should be divided between the Parliaments in accordance with the principles that are set out in the devolution statutes and—incidentally—the strident promises of the leave campaign.

In its recent publication “Securing Wales’ Future”, the Welsh Government made interesting suggestions about decision-making frameworks at the European level. It said that they should replicate the codecision making that presently exists at EU level, with the four nations of the UK being equal partners in the process. We are keen to explore those ideas but, whatever the outcome, there must be a collaborative rather than a divisive approach if there is to be any prospect of success.

The Scottish Government stands ready to negotiate and agree any common approach with the UK Government and the other nations of the UK that proves necessary. Our only condition is that the UK Government must observe constitutional due process and enter into discussions on the basis of respect for the founding principles of devolution, as endorsed by the Scottish people in 1997. Unfortunately, it does not seem to wish to do so.

Equally unfortunately, the bill is problematic in other areas, which must also be changed. For example, it gives UK ministers and Scottish ministers powers—so-called Henry VIII powers—to correct deficiencies in law that are caused by EU withdrawal. Of course, Henry VIII was never a king of Scotland, but he did invade the country in the campaign that is now known as the rough wooing. It might not be entirely unfair to use the same term about the UK Government’s approach now.

The version of those powers that is to be given to the Scottish ministers is limited in its scope and application compared with what is to be given to UK ministers. That is no bad thing in principle, except that an entire category of the laws that the bill covers—directly applicable EU instruments—is given to the UK Government alone to correct. That includes directly applicable EU laws in policy areas that are the Scottish Parliament’s responsibility. That is not just a technical point, because the pieces of legislation in question include significant items. The UK Government would have the unilateral power, by delegated legislation, to change laws in areas of policy that are this Parliament’s responsibility without any reference to this Parliament or to the Scottish Government that is accountable to it. That suggests that not only is the UK Government’s approach to EU withdrawal designed without the appropriate respect for devolution but that it—wittingly or unwittingly—subverts devolution.

The only appropriate way to divide powers between the Governments is this: powers in relation to policy areas that are devolved must be for devolved ministers and devolved legislatures. Thereafter, there will be space, time and, I say, willingness to agree on co-operation over the shared use of powers in a way that respects this Parliament’s responsibility to hold to account those who make decisions in devolved areas.

Our position on those powers in the bill is therefore the same as our position on agreeing common approaches across the UK. We recognise the need for some way of making the current body of EU law workable after Brexit; we have as much of an interest in that as the UK Government does. We stand ready to use such powers in order, so far as we can, to promote stability following the process of withdrawal, but the approach that the UK Government has taken to the bill is preventing that necessary and essential co-operation and co-ordination.

We agree with Opposition parties that powers that broad will require greater scrutiny from this Parliament. We therefore commit to working with the Parliament and its committees to agree a set of principles and a process that will ensure that the instruments that are made under the bill receive the appropriate scrutiny.

I look forward to the Parliament’s scrutiny of the bill and of the legislative consent memorandum, which the First Minister lodged today. The Finance and Constitution Committee, the Delegated Powers and Law Reform Committee and members across the chamber will have a strong role to play in that, as the bill will affect the powers and policies that we all want to be used to improve our constituents’ lives. I also look forward to giving evidence to those committees and to making sure that the public understand exactly what the proposed EU withdrawal should mean for their Scottish Parliament and—more important—their daily lives from Shetland to Stranraer and from Eoligarry to Eyemouth.

The First Ministers of Scotland and Wales made all that clear to the UK Government when the bill was published, and that built on extensive engagement in the two weeks before, when we were finally given an opportunity to see, but not to change, what was proposed. Thereafter, in our meetings and phone calls with the First Secretary of State, the Secretary of State for Exiting the European Union and the Secretary of State for Scotland, the Deputy First Minister and I have explained in detail the consequences of the bill’s approach for the devolution settlement. We have sought to establish a shared understanding of those issues and to build a way forward that allows the Scottish and UK Governments to proceed to the essential work of discussing common frameworks and the programme of corrections to our laws that will be necessary. We have explained that it is the UK Government’s unnecessary policy choices, as set out in the bill, that have hindered progress.

Therefore, the Scottish Government still cannot recommend that Parliament should give consent to the bill, and we have set out the reasons in detail in the legislative consent memorandum. We have also been clear about what we expect and require the consequence of withholding consent to be—namely, that the UK Government must make the necessary changes to the bill.

The UK Government has contended that its proposals are the only ones that will avoid the chaos that would arise if no frameworks or legislative structures were in place on Brexit day. That will not happen. We will ensure that it does not happen. If the UK Government is not prepared to make the appropriate amendments, this Government will consider, as the Welsh Government has confirmed it is considering for the Assembly, the options that are available for rapid legislation in this Parliament to allow us to prepare devolved laws for the shock of Brexit.

That route is not our first choice, however, because a better way forward is still available. As the two First Ministers announced after meeting in Edinburgh last month, the Welsh Government and the Scottish Government will publish a set of suggested amendments to the bill that would, if made, turn the bill into one that we could recommend to the Parliament. Those amendments would remove the unnecessary new limits on devolved competence and rearrange the regulation-making powers so that they properly respected the well-established principles of devolution and the scheme in the Scotland Act 1998 and subsequent Scotland acts, as well as ensuring that the Scottish and Welsh Parliaments had the appropriate role in holding to account their Governments as they made the required decisions to prepare the UK’s legal systems for EU withdrawal. We therefore stand ready to work with all parliamentarians in all the Parliaments to bring forward and seek to have accepted those amendments.

The issues that I have outlined, which are covered in much more detail in the legislative consent memorandum, are not arcane constitutional points. We are talking about the role and duty of the devolved Parliaments to help to improve the lives of the citizens they serve. We are talking about the difference that this Parliament has made and can make, and a diminution of its ability to do that. The proposals from the UK Government would cut across, impede and diminish what we do, day in and day out, to serve everyone who lives in Scotland. We cannot allow that to happen.

If there are members in the chamber who have influence with the UK Government, I ask them to use that influence to secure the changes that the Scottish Government and the Welsh Government seek. If any members believe that the right approach is to support the UK Government in actions that go directly against 20 years of the settled will of the Scottish people and the effective operation of devolution by all the parties here, let them say it and be judged accordingly. I think that the vast majority of our constituents would find it astonishing if there were any members elected to the Scottish Parliament who, when faced with such a challenge to the principles of devolution and the powers of the Scottish Parliament, would not put them and the people of Scotland first. Let us therefore hope that we can speak as one on these matters.

The Presiding Officer:

There will now be about 40 minutes for questions. I encourage all members who wish to ask a question to press their request-to-speak button.

Photo of Jackson Carlaw Jackson Carlaw Conservative

I thank the minister for sending me an advance copy of his statement, and I welcome his acceptance of, in his words, the

“progressive, dynamic development and expansion of devolution”, which

“has made a real difference to people’s lives.”

All of that has occurred under Governments led by Labour and by Conservatives since 1997.

Unsurprisingly, Scottish Conservatives challenge the construction placed on the actions and motives of the UK Government now and the ceaseless hyperbole of a so-called power grab, which the UK Government has repeatedly and expressly stated is neither desired nor intended. I understand that the Scottish Government is ever in want of a grievance, but surely not now, so I welcome the absence of that rhetoric in the statement that has just been delivered.

The practical issue at hand is a bill to ensure that arrangements are in place, not at some distant point but in the immediate hours after the UK has withdrawn from the EU in March 2019. Whatever our wishes about the outcome of the vote that the vast majority of us campaigned for last June, we have a duty to prepare for the UK’s departure from the EU.

Last week, in the programme for government debate, I made it clear that Brexit is not politics as normal. If there is a genuine concern matched by an equally genuine resolve to address and overcome this—and the statement and the First Minister’s memorandum suggest that there may be—the Scottish Conservatives here at Holyrood will play our part. The minister challenged this side directly, and in that spirit I respond by saying that both I and Adam Tomkins stand ready to meet bilaterally with the Deputy First Minister and Mr Russell to explore the concerns further, to understand the various remedies and positions and to work where we can to do all that we feel able to do to secure an LCM that the Scottish Government will have confidence in placing before this Parliament.

Will the minister and the Government therefore accept our offer—accepting their offer, I suppose—to move beyond the positioning today and to add further process to substantiate the endeavour shared by us all of securing both an orderly exit from the EU and a substantial and coherent future additional settlement of responsibilities for this Parliament?

Photo of Michael Russell Michael Russell Scottish National Party

I welcome that suggestion warmly, and I can say immediately that of course I commit myself and the Deputy First Minister to meeting with Mr Carlaw and Mr Tomkins to discuss those matters. That is a significant step forward and I am grateful for it.

There is a way through on the matter. The Welsh Government and ourselves have worked hard to consider what the right approach is. We do not have a monopoly of wisdom, and clearly there may be other issues to consider. In the spirit of the statement that I have made, I absolutely welcome Mr Carlaw’s offer and I commit myself to having that discussion as early as possible. Let us see whether we can speak as one Parliament. That would be a major step forward for all of us.

Photo of Lewis Macdonald Lewis Macdonald Labour

I thank the minister for sending me an advance copy of his statement, and I welcome his willingness to work with all parties across the Parliaments and Assemblies of the United Kingdom to seek to protect the devolution settlement and to mitigate the impact of Brexit on those we represent.

The minister is right to say that people of different parties and none campaigned 20 years ago for devolution, but it is also true to say that a Labour Government brought those proposals forward and did so to bring Government closer to the people of all the nations and regions of our United Kingdom and to make our shared democracy stronger.

The bill as it stands seeks to overturn the basic principle of devolution established by Donald Dewar in the Scotland Act 1998 and endorsed by the referendum 20 years ago, namely that what is not reserved is devolved. Mr Russell has talked about amendments that he has discussed and agreed with Labour ministers in Wales. I welcome that work and he will be aware of the amendments that will be proposed by Labour colleagues to address the devolution aspects of the bill at Westminster. Will the minister confirm that if those amendments are passed and the principles of the devolution settlement are protected, a legislative consent motion will then be brought forward by his Government?

The bill would also take away powers from all our Parliaments, including the House of Commons, and place those powers in the hands of ministers. Does the minister accept that, if the bill is amended, simply transferring unaccountable powers in devolved areas from UK ministers to Scottish ministers would not be enough and that, therefore, work to increase the scrutiny powers of the Parliament in relation to those new powers would be all the more essential?

Photo of Michael Russell Michael Russell Scottish National Party

On the second point, I absolutely agree. I indicated in my statement that we do not regard those powers as acceptable; there needs to be a framework of scrutiny, and I indicated that we would be more than willing to enter into that discussion.

On the first point, I certainly think that it is significant that, last night in the House of Commons, the reasoned amendment that was proposed by Labour, and which contained substantial reference to the issue of devolution, was backed by SNP members and by a range of others. That gives me considerable hope, as does my experience of working with the Government in Wales, particularly with Professor Mark Drakeford, to whom I pay great tribute. He has become a close colleague during the past year. That work will allow us to centre on what can be achieved.

When we are in the chamber, it is sometimes easy to make a great deal of our differences—and there are differences, not least on ultimate destination. However, on this matter, there is a huge correspondence of interest in getting this right. Working with Labour and other colleagues in this Parliament, and working with parties across the board in Wales and—it is to be hoped—some parties in Northern Ireland and the House of Commons, I hope that we can make substantial progress towards making sure that the proposals as presently drafted do not go forward.

I confirm to the member that, were the clear aims that we have set with the Welsh Government and the amendments to be achieved, that would create the circumstances in which a legislative consent motion would become possible. It is not possible at the moment because those changes have not been made. In fact, the UK Government has not made a single change referring specifically to devolution, as Ken Clarke pointed out in the House of Commons last night.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

Will the minister confirm whether the Scottish Government was involved in drafting any of the UK Government papers that directly impact on devolution, such as those on science or civil justice? Would the minister be prepared to be part of any future UK negotiating team and to work to get the best deal for Scotland?

Photo of Michael Russell Michael Russell Scottish National Party

I am afraid that we have not been involved in the drafting of any of the papers. As members are aware, I made that point forcefully in a letter that I sent to David Davis last week and which was released to the press. It is completely unacceptable that papers on devolved matters are being submitted within the process without the courtesy of seeking the involvement of the Scottish Government. The papers are normally shown to our civil servants 24 to 48 hours before they are published and there is no opportunity to change them or to comment on them in any way; they are essentially just delivered.

Obviously we want to take part in the discussion on the issues, and that will become more and more crucial as and when stage 2 of the negotiations starts in Brussels.

On involvement with UK structures, Professor Drakeford and I have indicated to the UK Government that we think that there is a role for the devolved Administrations, through the joint ministerial committee process, to fit into the monthly cycle of negotiations. We can see a place in which that would work and we want to continue to discuss that.

It is well known that there has been no JMC since February. I should probably say now, in case the information has been passed to other people who might wish to use it, that, strangely enough, an invitation arrived this very lunch time to a JMC that will take place on 16 October. We will accept that, so there will have been only 8 months and one week between JMCs.

We could fit into a monthly cycle as part of the negotiating cycle and, of course, we stand ready to give information about what is crucial to Scotland in the negotiations.

Photo of Adam Tomkins Adam Tomkins Conservative

I welcome the minister’s positive response to Jackson Carlaw’s question. Like the minister, I think that a deal can and should be done to enable the withdrawal bill to pass with the Scottish Parliament’s consent. In that spirit, when does the minister think that he will be able to share with members the sort of amendments that he considers to be desirable, particularly as regards future UK common frameworks after Brexit?

Photo of Michael Russell Michael Russell Scottish National Party

I would be happy to share those amendments once they are finally agreed between ourselves and the Government of Wales. We are very close to that. If the member will bear with me, I will be happy to provide those as soon as we possibly can and to start to discuss how they might move forward. I am sure that the member has substantial influence with his colleagues south of the border, so if he were to use that influence to promote the amendments, we would find that very useful. We undertake to make sure that the amendments are made known and, if there are views from Mr Tomkins and others on how they can be improved, we will be happy to listen to those and will arrange to meet and discuss them.

Photo of Daniel Johnson Daniel Johnson Labour

One of the great strengths of the Scotland Act 1998 is its simplicity. Schedule 5 sets out clearly which powers are reserved, with the presumption being that all others are devolved. The withdrawal bill will not directly amend the Scotland Act 1998, which means that the conflict might be not just one of principle but one of law. Does the Scottish Government consider that that might be the case? Has it taken legal advice on the status that the bill might take? Would it consider a legal challenge to the withdrawal bill if it proceeds unamended?

Photo of Michael Russell Michael Russell Scottish National Party

It is not appropriate for ministers to say whether they have taken legal advice, but clearly we consider these matters in every possible way, including from the standpoint of the law. Equally, it would be foolish for me to comment at any stage until we have either ruled in or ruled out legal action.

I believe that the matters that we are discussing today are matters of politics and it is a political approach that I outlined in my statement.

I think that the bill is defective; if the political approach changed—if there was an acceptance, as the member says, of the basic simplicity of the devolved settlement of those things that are not reserved being devolved—that would produce a political solution to these matters. I am looking for that political solution.

Photo of Ross Greer Ross Greer Green

The repeal bill is a power grab not simply for the UK Parliament but for the UK Government over the people of these islands and their elected representatives. The Greens will certainly not be supporting legislative consent for the bill; we believe that the Scottish Parliament and the Scottish Government must hold themselves to a higher standard. If the repeal bill is not adequately amended at Westminster, will the Scottish Government commit to appropriately and democratically restricting the powers that it will be given and to do so, where possible, with the collective agreement of this Parliament?

Photo of Michael Russell Michael Russell Scottish National Party

Yes, of course I will make that commitment. It is a matter of concern to us all. Even ministers should not wish to exercise untrammelled power of that nature. It is important that we ensure that proper scrutiny and proper restriction are in place.

I am hopeful that we will secure the amendments that we seek. It is quite important to understand the nature of the amendments. There will be a group of amendments, I hope—I am given additional hope by the approach of the Conservative front-bench members this afternoon—that will be agreed between us and the Welsh Government with, I hope, cross-party agreement in Wales. That group of amendments will form a core that might attract support across the House of Commons. That would be very helpful.

There will be a range of other amendments from other parties. The procedures of the House of Commons are arcane and strange to those of us who work in a modern Parliament, but I understand that last night there was an unseemly rush at the end of the second reading of the bill to make sure that amendments were put on the table. People jostled each other in order to get them there because it is the order of those amendments that in some way determines how they should be taken.

We will, in a calm, professional and modern way, put forward our amendments—until they get to the House of Commons, after which they will presumably be treated just like anything else. However, I hope that those amendments will attract support across the parties. Indeed, if the Conservatives in this chamber are able to persuade their colleagues elsewhere, perhaps there will be a unanimity of view, which would be helpful.

I make the commitment to the member that we have no desire to exercise powers without proper scrutiny and that we will, of course, work right across the chamber and with the committees to make sure that there is that proper scrutiny. It is a major issue for the Westminster bill as well.

Photo of Tavish Scott Tavish Scott Liberal Democrat

We on these benches will certainly work with Mr Russell and his Government on strengthening, not weakening, devolution. I hope that he and this Parliament would expect a guarantee from the UK Government that everything that is devolved remains devolved. The amendments that are planned need to be achieved in such a way, including the frameworks, which should rightly be agreed across all Governments.

Mr Russell said in his remarks that the process of Brexit was a cover for taking powers. Does he accept that that assumes a constitutional conspiracy within the United Kingdom Government that I do not believe is the reality? This is a UK Government that cannot sort itself out on its Brexit negotiating position, never mind work out what its position is in relation to Cardiff, Belfast or Edinburgh. In that context, how does the minister plan to make sure that the amendments pass? Will he ensure that that guarantee, which I believe this Parliament should have, is provided without any further delay?

Photo of Michael Russell Michael Russell Scottish National Party

I am trying to maintain a generous and conciliatory mood, so I will not give in to the temptation to attack the UK Government for its lack of organisation. I will let the member’s point speak for itself.

The reality of the situation is clearly that we want to ensure that when the amendments are discussed among the parties, there is an agreement on who will vote for them. Therefore, to that extent, I put the question back to the member. I hope that his colleagues at Westminster will support the amendments—in both houses, should they require to go to a second house—and I hope that all parties will feel similarly that there is an interest in supporting them. The SNP is certainly in that position, although we do not nominate members to the House of Lords, so if the amendments come to the House of Lords, we will require other people to support them. We know that there will be interest from Labour, Liberals, the Green MP, and, I hope, perhaps increasingly even the Conservative Government itself, which would guarantee that the amendments are passed.

Photo of Christina McKelvie Christina McKelvie Scottish National Party

Given that the European Union (Withdrawal) Bill makes little provision for EU nationals, does the Scottish Government agree that the UK Government’s plans to create a national register of EU nationals is divisive, alienating and deeply disturbing? Does the Scottish Government also agree that, instead of taking 111 devolved powers away from this place, the UK Government should devolve immigration powers here to allow us at least to treat EU nationals in this nation with some respect?

Photo of Michael Russell Michael Russell Scottish National Party

I very much agree with the member. I should pay tribute to her on the issue. At the weekend, I spoke to Lord Dubs, who has played a crucial role in relation to the issue of refugee children, and he paid tribute to a number of people who have been involved with him in Scotland, including Christina McKelvie. He is grateful to her and to the Scottish Government for the work that is being done. He is an inspirational figure, and we should all learn from him.

The issue of EU nationals is troubling. There was some sign of progress in the papers from the UK Government and it seemed that there was an intention to try to get a settlement with the EU on EU nationals. There was some evidence of growing together, but that has been put into reverse by the leak of the Home Office paper on the issue. Whether the leak was deliberate or accidental, it is very difficult to reconcile the progress that appeared to be being made on EU nationals in the negotiations with that paper, which would be utterly unacceptable to the vast majority of us. The UK Government needs to clarify its position. If its position is to try to get an agreement with the EU on the basis of the papers that are being exchanged, it is not there yet but progress is being made; but if the position is to use the Home Office paper as the basis for an immigration policy, that would be utterly unacceptable.

I certainly agree with the member that a devolved migration policy is more needed than ever. I am heartened by the approach of a range of business and other organisations that have moved to that position. For example, the Scottish Chambers of Commerce and the Scottish Trades Union Congress have made that point. A devolved migration policy applies in other places, such as Canada and Australia. Such a solution would allow us to address our particular problems, including the problem of depopulation. In my constituency, we have a substantial problem with that, which can be resolved only by attracting people into the area. That is why many of us have been so pleased that Argyll has taken more Syrian migrants than anywhere else. A proper migration policy for Scotland, and one that is devolved to Scotland, would be of great importance, and I hope that the UK Government will find its way towards that. Regrettably, the Prime Minister, a former home secretary, has a narrow view of migration; I think that we should take a much more generous view.

Photo of Rachael Hamilton Rachael Hamilton Conservative

Despite some thinking that the European Union (Withdrawal) Bill is all about attacking the principles of devolution, it means that laws and rules will continue to apply. The truth is that the bill follows the spirit of devolution and the laws that created the Scottish Parliament 20 years ago. The bill keeps the current position to provide certainty for individuals and businesses while we discuss future arrangements. Does the minister believe that the Scottish Government should provide as much certainty and continuity as possible for people and businesses across Scotland as we leave the EU?

Photo of Michael Russell Michael Russell Scottish National Party

I believe that we should provide as much certainty as possible but, with the greatest respect to the member, it is not the Scottish Government that is creating the uncertainty; it is the UK Government. I do not want to fall out with the member. [


.] I hear members groaning—they expect me to fall out with people, but I am trying very hard not to.

The members on the front bench alongside Rachael Hamilton have taken a positive step forward, so I hope that she will endorse that and recognise that we clearly have a genuine difference on whether the bill respects the principles of devolution. I think that if the member was to read it in its entirety, she could not but conclude that it does not respect the principles of devolution. However, let us agree to differ on that and see whether we can find some way to make progress on the matter. That is the position of those alongside the member on the front bench, and I hope that it will now be her position as well.

Photo of Pauline McNeill Pauline McNeill Labour

We in the Labour Party will of course seek to protect the principle of the devolution settlement that what is not reserved is devolved. That is the spirit of the devolution settlement and, frankly, it is being undermined by the European Union (Withdrawal) Bill as it stands. In the minister’s statement, he talked about what would happen should there be progress—let us hope that there is—and the Parliament gets to the stage at which it has some scrutiny job to do over the bill. He talked about the co-decision procedure that is used by the EU, which would be an interesting framework for the UK and the devolved nations. How much detail has been gone into on that and have there been any direct discussions with the UK Government on whether it would sign up to such a framework?

Photo of Michael Russell Michael Russell Scottish National Party

It has been difficult to have detailed discussions with the UK Government because it has not really given the opportunity for such discussions. However, I indicated my considerable interest in the paper that the Welsh Government published. It has thought through many of the issues.

Our position is that we want those structures of co-decision making—the term is important and I am glad that the member has used it—to be replicated as closely as possible. There are a number of different ways in which that could happen. The Welsh paper, for example, considers qualified majority voting. There are some issues in that.

My discussions with UK ministers on the matter have tended to be brief because UK ministers have usually said that they could not imagine circumstances in which any Westminster department would agree to co-decision making. Well, they have to imagine that. If we are going to make the situation work, a shared framework on, for example, agriculture—that appears to be one of the policy areas in which the UK Government wishes to have a shared framework, although we have no confirmation of that—that worked on the principle of co-decision making among the countries would be a step forward, because we would then genuinely be able to influence and be part of decisions. However, a structure that simply said, as tends to be the case with the JMC, that all meetings are held in London, that they are always chaired by a UK minister, that the agenda is always set and that there are no votes would not be a framework to which we could agree.

Progress is being made in that the Welsh have been thinking. We have been thinking, too, and supporting some of their thoughts. We want the UK Government to engage in that. It is unfortunate that Northern Ireland does not at present have a Government and an Assembly. We hope that those will be restored and that, when they are, they will add to that thinking. The Northern Irish have experience of being able to gather decision making in circumstances in which there is considerable disagreement and polarisation.

I am hopeful that we can reach agreement, but it will have to be on the basis of something new, not simply repeating what already exists at Westminster.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

I am glad that the minister is taking the opportunity to make the statement to Parliament. I am also glad about the spirit in which the questions have been put and answered.

On a wider perspective, item 3 in the terms of reference for the joint ministerial committee (EU negotiations) states that it will

“provide oversight of negotiations with the EU, to ensure, as far as possible, that outcomes agreed by all four governments are secured from these negotiations”.

Will the minister confirm that there has been an opportunity to be so involved, what opportunities have been provided to the Scottish Government and whether the UK Government has provided the appropriate level of respect to the Scottish Government and to the Parliament in that regard?

Photo of Michael Russell Michael Russell Scottish National Party

Alas, I cannot confirm that that has been the case. I wish that it had been. The two principal terms of reference of the JMC(EN) were, as the member says, oversight of negotiations preceded by seeking to agree the article 50 letter. We did not see the article 50 letter in any form. I think that the meetings stopped in February because there was a fear that the UK Government would have to show us the article 50 letter, so that did not happen.

I remain ever hopeful that things will change and get better and I hope that there is now an opportunity to move to that oversight. The committee has not met since 8 February so, clearly, we have not been able to have any oversight of the first three rounds of negotiations. I make it clear, as I know Mark Drakeford would, that, in each round, there has been an opportunity to talk to David Davis about what is taking place. In one round, it happened somewhat after the round; in the second round, it happened during the round; and, in the third round, it happened after the round. However, those opportunities are not consultations. They are not discussions of what issues are coming up or of positions; they are, in fact, Mr Davis saying what has happened and putting his own spin—I suppose that must be the word—on it.

We need a proper chance to discuss in advance. We know what the issues will be, what the process of negotiation is and what each round will consist of. That would focus the discussion in the monthly cycle and allow the position that we have taken to come to the table. The UK Government may be pleasantly surprised on some occasions that we have a correspondence of position. We do not have such a correspondence on EU nationals, and we published papers separately on that. However, there is always the possibility that we will find areas on which our insights are useful and helpful. For example, I suspect that Mark Drakeford and I might have noticed that Gibraltar was not mentioned in the article 50 letter and said, “Why don’t you do something about it?”

We stand ready to get involved in that process but, so far, it has not happened.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

Has the minister received any assurances that, should the UK Government not take cognisance of the concerns that have been raised by the Scottish and Welsh Governments, UK-wide frameworks in certain areas will not be imposed by Westminster?

Photo of Michael Russell Michael Russell Scottish National Party

I have not received those assurances. Quite clearly, were we not able to consent to the bill, the proper procedure would be that the UK Government would withdraw the areas of the bill in question. We have no indication that that would happen. We are in uncharted waters—which is where we seem to have been for the past 12 months—and we will wait and see what happens.

I would have hoped that the opportunity that exists over the next few weeks to get the approach right will mean that we can get to that stage. The clock is ticking on this, so we need to know from the UK Government what it intends to do. I hope that the discussion that we intend to have with the Conservative Party in this Parliament will be part of that process.

Photo of Donald Cameron Donald Cameron Conservative

Given the spirit of cross-party working that has been emerging between my party and his in the past hour, will the minister undertake to share his draft amendments with my party’s front bench in private before they are published?

Photo of Michael Russell Michael Russell Scottish National Party

Mr Cameron appears to be in something of a rush on this, I have to say. I am quite willing to do so, but I would want to make sure that my colleagues in Wales were content with that process. I want to take this process forward as speedily as we can and with as much confidence and trust in each other as is possible, and with the ability to talk about these things in a way that is not necessarily going to send us all running to the newspapers.

I have considerable time for Donald Cameron. We spend time together in Argyll on a variety of issues, and the point that he makes is one that I understand. Let us see whether we can build the trust that would allow such things to happen.

Photo of Richard Lochhead Richard Lochhead Scottish National Party

I welcome the minister’s statement and his commitment to stand up for the interests of this Parliament and Scotland.

In terms of funding, Scotland potentially faces a triple whammy as a result of the UK’s approach to Brexit: first, as a result of the fact that we are leaving the EU, which means that it will lose EU funding; secondly, due to the fact that it seems increasingly likely that we will have to pay Scottish taxpayers’ money towards compensating the EU for our leaving; and thirdly, because, if the UK Government grabs responsibility for a number of key sectors in Scotland, those key sectors will lose out on funding in the post-Brexit future, because of that Government’s different spending priorities. Does the minister agree that Scotland faces a real possibility of such a triple whammy?

Photo of Michael Russell Michael Russell Scottish National Party

I agree. I think that the financial issues of withdrawal, which are many and varied, have not been properly explored by the UK Government. There are essentially three major areas in terms of withdrawal. One is workforce, and I think that, increasingly, companies and public bodies are beginning to understand the crippling effect that the lack of EU migrants will have—often, that lack is caused by people simply not wanting to stay, given the circumstances that they now face.

The second area is regulation. There is a cat’s cradle of vital and important regulation. For example, more than 90 per cent of food standards regulation is EU regulation, and there are huge issues there.

The third area is money, and it is one of the most difficult to bottom out, because, as Mr Lochhead knows, given his vast experience of agriculture, there are various levels of support—there is support for agriculture and rural development, there is support in the form of infrastructure funding and there is support for the education sector, in relation to, for example, support for additional college places—the list goes on. There are serious financial issues that need to be addressed in a short time because, although guarantees have been given up to 2020, that is not a long time, and those guarantees do not exist in absolute beyond 2020. There are severe financial problems facing a range of organisations. That is one of the reasons why we have to ensure that we understand what is happening and that we have in place the frameworks that we need in order to cope with that.

However—I am not trying to be divisive, but I have to say this—there are some issues in all that that cannot be coped with. For example, it will be impossible for some organisations to find labour, because it simply will not exist for the work that they do. Some 60 per cent of the abattoir sector comes from the rest of the EU, as does 95 per cent of the veterinary staff in abattoirs. It would not be possible to replicate or replace that. It is important to recognise that. It could not be done in a year or in five years—it is a generational issue if anything. That is a reality that we are facing, and it is why the only sensible step at the moment is to ensure continued membership of the single market and the customs union. If we are able to guarantee the continuity of the four freedoms, we have a chance of coping with those issues; otherwise, we do not.

Photo of James Kelly James Kelly Labour

This is clearly a difficult political situation, and there is obviously support in the Parliament for the minister to take forward appropriate discussions with other parties, the devolved Administration in Wales and the UK Government. How will the minister keep Parliament updated on the progress of those discussions?

Photo of Michael Russell Michael Russell Scottish National Party

I will be very happy to do so. I seem to be a regular at certain parliamentary committees and I will be happy to continue with that. I will continue to make statements and of course I will be open to questions in the chamber—or two sets of questions, if that is possible to do.

I will also be happy to have discussions with individual members. I have made clear from the beginning that I am happy to talk to members about their particular concerns and to share information with them. At each level, I will be happy to do so.

I echo what James Kelly has said: the potential for us to work together to resolve this situation is the important thing. There will perhaps be unusual ways of doing that that we have not done before, but we have to keep close contact between all the parties.

Photo of Ash Denham Ash Denham Scottish National Party

The Brexit negotiations have shown that we need a radical shift in how intergovernmental relations are managed between the UK and the devolved nations. What does the minister see as the best way forward?

Photo of Michael Russell Michael Russell Scottish National Party

In June, Professor Drakeford and I authored a letter together to David Davis that laid out proposals for the joint ministerial committee on European negotiations and which accepted that the experience had not been satisfactory for any of the partners. Anybody who has been at the JMC as a minister will know that it is not a deeply enriching experience. The whole JMC structure has not worked for a long time; indeed, all the academic and parliamentary study of the JMC has drawn attention to the fact that it cannot bear the weight that is put upon it.

Unfortunately, we have had no response to those suggestions, but there are positive, constructive suggestions coming from Wales and from Scotland, and it would not take much to try to get it working properly.

In response to an earlier question, I said that the JMC does not operate on anything like a basis of co-decision making. That is one way in which we could move. The JMC has met outside London only once—in Cardiff at the end of January this year—and even that meeting was run by the UK Government. It is always chaired by the UK minister. The balance between the delegations is always pretty astounding. JMC(EN) without the Northern Irish has meant that

Professor Drakeford and I have usually faced eight or 10 UK ministers. The balance can be even more dramatic, as Alasdair Allan knows when he goes to the JMC Europe where there can be 10, 15 or—as on one occasion—20 UK ministers with only myself and Rhodri Morgan. That was not really an equity of arms.

There are ways by which we can reform the JMC structure, but there has to be a willingness to talk, and we cannot create a new multilateral structure by bilateral negotiation. The way in which things are going at present is by bilateral negotiations between the UK Government and the devolved Administrations; it needs to develop into a multilateral negotiation, and today we have a t least an indication of a meeting with the JMC. That is a small move forward, but it needs to get a move on.

Photo of Jamie Halcro Johnston Jamie Halcro Johnston Conservative

Despite the minister’s objections to the process of leaving, can members be assured that the Scottish Government is planning seriously for a future outside the EU? With the UK Government stating that we will be outside the customs union, can the minister confirm that work to internationalise Scottish business will focus beyond the EU market on which the new innovation and investment hubs seem to be targeted currently?

Photo of Michael Russell Michael Russell Scottish National Party

I do not think that the member is fully conversant with the difficulties of being outside the customs union; perhaps he has swallowed too willingly the explanations from Liam Fox about the wonderful new world that exists out there.

There is no evidence of any description that the internationalisation of business will answer those questions, partly because business is already internationalised. The most successful country in Europe with regard to internationalising business is Germany, which is at the very heart of the European Union. I caution the member about believing the spin that has come from Liam Fox.

Our belief is that continued membership of the customs union and the single market is the sensible way forward. We published that belief last December, before the member was in this chamber. We continue to believe that that is the right thing to do, and there are many who have come to that opinion. We will continue to push that forward as the solution.

Businesses, and others, talk to us all the time about what lies ahead, but many of them look at it with complete trepidation. As I have indicated, if one is involved in workforce, funding or regulation issues, there are no simple answers, and simply and blithely talking about the internationalisation of business perhaps shows that the member does not yet understand that.

Photo of Ivan McKee Ivan McKee Scottish National Party

I thank the minister for his work in standing up for Scotland on this important issue.

Can he provide an update on the joint working between the Scottish and Welsh Governments on the matter?

Photo of Michael Russell Michael Russell Scottish National Party

We meet representatives of the Welsh Government regularly. Yesterday, I was with Professor Drakeford, who attended our standing council, and I attended the Welsh standing council in May. Professor Drakeford and I have also met with other ministers present—we met in July along with the Lord Advocate and the Welsh law officer—and there are regular discussions between civil servants.

As I said in my statement, the Welsh legislative consent memorandum is published today alongside ours—they are very similar, although the processes are slightly different—and we will both bring forward amendments. There continues to be an identity of interest. That is what our approach is based on, as we both believe that that is the wrong thing to happen.

I am heartened by what I have heard in the chamber today. We have moved a step forward—it might go into reverse, but I hope that it does not. I made the commitment to meet those members who have asked for discussions and we will take that forward. If the same thing is happening in Wales—I hope that it is—perhaps some opportunities exist that we did not know about as little as an hour and a half ago.