In opening the debate on my committee’s inquiry into the article 50 withdrawal negotiations, I thank everyone who submitted written evidence and provided oral evidence and those who met the committee during its visit to Brussels last September. I thank committee members for their diligence and our clerks for their hard work.
If one thing has emerged from our inquiry, it is the influence that the European Union has on the process of negotiations. The EU 27 decided the sequence and substance of negotiations. They decided that the first phase would cover citizens’ rights, the border on Ireland and the money. They decided that the second phase would cover transitional agreements and the identification of an overall understanding of the framework for the future relationship. They stipulated that there would be no final agreement on the future relationship until the United Kingdom was outside the EU. The EU calls the shots and has done from the start.
Another key observation is that the EU is an organisation based on law and agreed process—the only practical way to get agreement from so many different states. That can appear cumbersome, inflexible and slow to those people who are on the other side of the table, but that is the way that the EU operates and, as we have already observed, it is calling the shots. That has an impact on time, which is running out. Michel Barnier, the EU negotiator, told the committee in September that the negotiations must be finished by November this year to allow time for the legal text of the withdrawal agreement to be finalised and translated into all EU languages. It must then be ratified in the European Council and the European Parliament.
The first phase of the negotiations took seven months from June to December and, even today, those commitments still need to be translated into an agreed legal text. The second phase—on transition and the future framework—must be completed to a similar deadline. The European Council says that negotiations on transitional agreements can start only after the Council agrees the negotiation directives on the matter in January. We must then wait until late March for it to adopt guidelines on the negotiations on the future framework. That leaves barely six months for completion.
What has been achieved to date? The December joint report from the EU and UK Government negotiators indicated that both parties had reached a common understanding on the protection of EU and UK citizens, which is good. One of the most powerful evidence-taking sessions that we had was with representatives of the Fife Migrants Forum, who spoke of the uncertainty that they and their families had suffered. That personal testimony demonstrated the human cost of the withdrawal process.
The second area of agreement relates to Ireland and Northern Ireland. The joint report says that the commitments and principles that it outlines
“must be upheld in all circumstances, irrespective of the nature of any future agreement between the European Union and United Kingdom.”
It also states that any future relationship must be compatible with the overarching requirements of protecting north-south co-operation and the UK’s guarantee of avoiding a hard border. The joint report continues:
“In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the internal market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.”
The committee heard from the consul general of Ireland, who said that Ireland’s priorities were to
“protect the gains of the Northern Ireland peace process, including by protecting the Good Friday agreement in all its parts and avoiding a hard border on the island of Ireland … minimise the impact of Brexit on trade and the economy, and maintain a close trading relationship between the UK and the EU, including Ireland”.—[
Official Report, Culture, Tourism, Europe and External Relations Committee,
21 September 2017; c 1-2.]
The third area of agreement relates to the financial settlement. We do not know the ultimate cost of the settlement for leaving the EU and we might not know it for many years to come.
The December joint report is a must read, and it must be read with the European Council’s guidelines that were agreed on 15 December, which state that the second phase can progress only if all commitments that are undertaken in the first phase are respected in full and translated faithfully into legal terms as quickly as possible. We still need the first phase to be translated into that legal text that both sides can agree. In stipulating that, the EU—as it has throughout this process—is setting the terms of the negotiations.
Mr Barnier has been very successful in achieving the terms of his negotiating mandate so far. Therefore, we should look carefully at the December guidelines to see the EU roadmap for the second phase. The EU is very organised. That became clear to us in our meetings in Brussels in September. At every step, the EU has been prepared and has published directives setting out the next move. Many have contrasted that with the UK approach, which was illustrated today in the leaked letter from David Davis to the Prime Minster in which he warns that British businesses are suffering because the EU is preparing for the possibility of a no-deal scenario. The response of the EU Commission spokesman to the leak can best be described as wry. At a press conference, he said:
“We are ... surprised that the United Kingdom is surprised that we are preparing for a scenario announced by the UK Government itself.”
We have also recently learned that 130,000 UK businesses face up-front VAT bills for goods imported from the EU. The UK Government has hurriedly promised to mitigate any impacts, but the Treasury says that it is too early to say whether the UK would remain in the EU VAT area, which is perhaps another example of UK unpreparedness.
I will try to be optimistic for a second. The European Council has reconfirmed its desire to establish a close partnership with the UK, and that is good. However, it stresses that the future relationship can be finalised only once the UK becomes a third country. The EU is ready to engage in preliminary discussions to identify what it calls
“an overall understanding of the framework for the future relationship.”
That understanding would then be elaborated in a political declaration accompanying, and referred to in, the withdrawal agreement.
To be clear, there will be no final trade agreement before the UK leaves the EU. There will, hopefully and maybe, be a political declaration on the framework of that future relationship.
When Michel Barnier spoke to us in September, he identified two options for the UK. One option would be a Norway-style arrangement, but the UK has rejected that, along with membership of the single market and the customs union. The other option outlined to us by Mr Barnier would be a Canada-style agreement, which does not include services to any significant degree. However, even that will take time. The first phase of negotiations between the UK and EU took nine months and resulted in 15 pages of a written, though not final, agreement. The comprehensive economic and trade agreement, CETA—the Canada free trade deal with the EU, which the UK says falls short of its desired outcome—amounts to 1,598 pages and took seven years to conclude, so you can draw your own conclusions from that.
My committee commissioned Dr Tobias Lock of Edinburgh law school to look at the processes for agreeing the transition, the article 50 agreement and the new relationship treaty. Among the legal and political constraints that he describes the EU as being under, he highlights the principle of most favoured nation status.
Dr Lock explains that the CETA agreement contains a clause according to which the EU and Canada must grant most favoured nation status to each other in the highly regulated field of services. That means that each party must treat service suppliers of the other party no less favourably than it treats service suppliers of any other country. Hence, if a future agreement between the EU and the UK was to treat the UK more favourably than Canada, the EU would have to accord the same favourable treatment to Canada. The same applies to South Korea and its agreement with the EU. The UK may seek a bespoke agreement, but there are many legal and political constraints on the EU—some deriving from its own treaties and procedures and others deriving from its international agreements—that will restrict the kind of agreement that can be reached.
To conclude, 2018 could be a year in which harsh realities blow away the magical thinking that has dominated so much of the discourse on this side of the channel in relation to Brexit. The constraints are many and leave little room for flexibility and imagination.
That the Parliament recognises the evidence gathered to date by the Culture, Tourism, Europe and External Relations Committee on the first phase of the Article 50 withdrawal negotiations, and notes the European Council Guidelines agreed on 15 December 2017 that set out the position of the other 27 Member States of the European Union in relation to the second phase of the negotiations, which will be related to transition and the framework for the future relationship.
I wish Parliament a happy new year and welcome Neil Findlay to his new position. We have form in facing each other across the chamber, but I am hopeful of a fresh start in 2018. I look forward to working with Mr Findlay in the same constructive way as I work with his Welsh Labour colleague, Mark Drakeford.
I thank the committees of the Parliament for their hard work in scrutinising the work of the Scottish Government and the UK Government on Brexit. Since the day of the referendum, the Culture, Tourism, Europe and External Relations Committee has worked exceptionally hard to study, understand and bring forward thoughts on Brexit. The convener would probably agree that, when she took the convenership just after the 2016 elections, she was looking forward to immersing herself in cultural matters. She has been immersed in not much other than Brexit since then and has done it exceptionally well.
I thank the Finance and Constitution Committee. I will come briefly to its report, which I expect will be debated later this month in the chamber. Its work has been intense, too, since it took on the constitutional remit after I had had, I think, two meetings as convener and given it up. The political experience of Bruce Crawford and the intellectual rigour of Adam Tomkins have brought an important dimension to the subject.
I mention two other committees that have engaged in the issue. In the Rural Economy and Connectivity Committee, Edward Mountain has twice had the problem of having myself and Fergus Ewing giving evidence to him in the same meeting—I am not sure that there will be a third occasion. It has certainly been interesting. I also commend the careful approach of Graham Simpson and his team in the Delegated Powers and Law Reform Committee on the issue of the European Union (Withdrawal) Bill.
At the weekend, the First Minister pointed out that Brexit represents an enormous challenge for Scotland in 2018. In political and economic terms, Brexit is like a black hole, sucking in energy and resource that would be far better used elsewhere. I disagree profoundly with the Prime Minister when she said in her new year message that
“most people just want the government to get on and deliver a good Brexit”.
That is wrong on many counts. Most people are now apprehensive and concerned, particularly about the ability of the UK Government to deliver anything. Secondly, most people are astonished at the waste and profligacy of the process, which is absorbing all the energy of the UK Government and more. I think that most people are fully aware that there is and can be no such thing as a good Brexit.
The Prime Minister is also wrong when she talks about securing a Brexit that would work for the whole of the UK. The Brexit red lines that she has set out indicate the type of Brexit that she and the UK Government seem to wish, which would be deeply damaging to Scotland in terms of people, regulation and money.
It would be damaging in terms of people because freedom of movement is essential in Scotland, particularly in rural Scotland. Ending freedom of movement would cause enormous damage in almost every part of Scotland. Just before Christmas, I visited Stoddart’s the meat processors in West Lothian. Thirty per cent of its staff are EU nationals and they occupy a range of skilled and unskilled positions in the company. The company is unable to recruit others, although it has tried everywhere. That is simply one company out of many. Freedom of movement has been tremendously successful for Scotland. As anybody who knows about freedom of movement is aware, it is not unlimited migration.
There are huge issues in terms of people, and there are huge issues for citizens of this country who want to travel to Europe and who value their European passport. I do not care whether it is blue, pink or purple, but I do care that it allows freedom of access right across the EU, and that, of course, will end.
Secondly, on regulation, the uncertainty that is being caused is extremely worrying, not just for business but for almost every organisation in Scotland, and it is leading to an exodus of jobs and investment. Thirdly, there is the issue of money, which will touch home in almost every part of Scotland, too, through infrastructure spending, social fund spending and of course agricultural and fisheries spending. Those matters are completely unresolved, and even Michael Gove’s announcement at the Oxford farming conference last week did not indicate any detail.
There are concerns aplenty, and we have to express them in this chamber and find our way through and round them. The debate gives us an opportunity to express Scotland’s priorities at this time, faced with those challenges.
I believe that there are three priorities for the Parliament at the moment. The first is to secure changes to the European Union (Withdrawal) Bill. I am pleased that the Finance and Constitution Committee was absolutely unanimous about that today. There have to be changes, not just to clause 11 but to other parts of the bill, if any progress is to be made, before the Scottish Government can lodge a legislative consent motion and before the Scottish Parliament can approve such a motion. It is therefore regrettable that I have to tell the chamber that I had a conversation on the phone with David Mundell just before lunch today, and that he confirmed that the UK Government will not bring forward an amendment at the report stage of the bill. The UK Government says that it is not ready to bring forward such an amendment, and it is now suggesting that it may bring such an amendment at the House of Lords stages.
That is unacceptable. Negotiation will continue and I am not giving up on that negotiation, but clearly the Scottish Government and the Scottish Parliament have to prepare themselves for circumstances that would otherwise be a cliff edge. I will therefore, later this week, bring forward more plans to address the issue of the continuity bill, as suggested by the Finance and Constitution Committee, which wishes to know more about the timescale for that bill and the intentions behind it.
The Secretary of State for Scotland has confirmed to the minister this afternoon that the UK Government will not be able to bring forward an amendment at report stage in the House of Commons. Did he also confirm to the minister that it is still the UK Government’s intention to bring forward amendments to enable the Scottish Parliament to give its consent to the legislation before it is passed by Westminster?
Indeed, and I think that I indicated that but, as the book of Proverbs puts it,
“Hope deferred maketh the heart sick”.
We have spent six months discussing bringing forward that amendment, and no amendment has been brought forward. Indeed, the UK Government instructed and whipped its members to vote down such an amendment at the committee stage. There is some depression about that, but I have indicated that I will continue to work with the UK Government. In congratulating David Lidington on his appointment, I also indicated that he should address that as a matter of urgency, because it is now a matter of urgency.
The second issue that we should address is our own red lines, which I believe are increasingly the issues of the single market and the customs union. Without those, we cannot deliver the minimum that Scotland needs. That was the unanimous view of this Parliament immediately after the European referendum. They are needed more greatly than ever, and we will publish more detail on that shortly. We look to engage the whole of the Parliament in discussing how those issues can be taken forward. There are different interpretations of them, and of the outcomes of them, but we need to secure what the single market and the customs union have secured for Scotland in recent generations.
Thirdly, if the UK continues to negotiate with the EU, it is essential that Scotland is involved in and consulted on the negotiations. I pay tribute to Damian Green, who worked hard to get the joint ministerial committee off the ground again and who understood the process. That is one of the issues that we addressed at the most recent JMC and it now needs to be brought forward by his successor, so that there is a clear means of constant contact and consultation as those negotiations go forward.
I will be very much in listening mode today. There are many issues that need to be addressed, and if they are brought to this chamber the Scottish Government will engage with them. We will also continue to discuss those matters with other parties, as we have done until now, and I want to do that. However, it is essential that the Scottish Parliament and the Scottish Government are involved in all aspects of Brexit, and that our views are respected.
The First Minister was right when she said this week that no Brexit would be better than a bad Brexit. It is increasingly clear that, for Scotland, no Brexit is better than any Brexit presently being negotiated or brought forward by the UK Government. This is going to be a difficult year for Scotland. The Brexit process brings us many challenges. I hope that the Parliament can show unity and resolve in protecting Scotland during that time—that is, after all, its duty.
Thank you, Presiding Officer. I, too, wish you the best for 2018.
I apologise to the chamber. I am afraid that I am in my third day of enduring a chronic migraine, which means that most members are just a blur to me. I hope that they are there, and that I will be vaguely aware if any of them tries to intervene. I have persuaded myself that it is the thought of today’s debate on Brexit that has stimulated this attack.
I thank Joan McAlpine, who convenes the Culture, Tourism, Europe and External Relations Committee, on which I sit. She detailed the evolving canvas of evidence in the 18 months since the referendum in which the United Kingdom voted to leave the European Union. Because the situation has been a changing feast and it continues to evolve almost daily, today’s debate is an opportunity for us to take stock of where we are.
In looking at all the facts and figures, as one does, I discovered that my Eastwood constituency voted to remain by the largest margin of any UK seat held by the Conservatives. Of course, I pay tribute to my own powers of persuasion with my electorate for the fact that they fell in behind my campaign for us to remain in the EU.
My view has not changed at all. In the conversation and on-going negotiation on our exit from the EU, it is important for those of us who are engaged and who seek to support the negotiation to obtain the best possible terms for that exit but not to pretend that, in some substantive way, we have changed our view on whether it represents a better future for the UK than the one that was otherwise available. I suppose that the only things that might have changed that or that might change public opinion further are some of the speeches that were made by the President of France and by Mr Juncker and others in the second half of 2017, in which they sought to change even further the political integration arrangements in Europe. I do not know but, had those points been made during the referendum in 2016, they might not have influenced some of those who wished to leave and might have emboldened some who were undecided not to vote to remain. I do not support what some in Europe now see as on-going and further political integration.
The work of the committee has been to hear from a series of people among whom, it would be fair to say, it would be rare to find any who has seen a positive or uplifting outcome for Scotland or the UK as a consequence of Brexit. In essence, we could summarise the evidence that we have heard as saying that Brexit is not a good thing—which was the position that most of those who gave evidence held before the referendum—and that it will be bad for Scotland.
I will say one thing to counteract some of the pessimism that we have heard. The evidence sessions have taken place as negotiations have gone on and, when the committee was in Brussels in the late summer, it was instructive that, when we met privately with officials on both sides—I cannot go into detail, because the discussions were private—as professionals, both sides demonstrated a more pragmatic on-going discussion and delivery of progress than was the case in the more theatrical political environment in which most of us operate.
We were told then that it was very unlikely that the test of there having been sufficient progress would be met in October, and that both sides fully expected that that test would be met in December. We were told that the issue of citizens’ rights would most likely be resolved eventually with an agreement that protected both the interests of European citizens here and those of Scottish and UK citizens in Europe. We were told that the issue of Ireland would probably be resolved—although I feel that it will be impossible to do so finally until we get to the conclusion of phase 2, because much of it depends on the future trading arrangements that we would have—and that the stumbling block would probably be the issue of finance, which, for a long time, seemed to be the case.
However, the committee also heard that the budget resolution would involve the United Kingdom paying as much as £100 million or €100 million. The reality is that we have arrived at an interim agreement on the issue of European citizens. We were told that European citizens were queueing up to leave the United Kingdom as a result of the uncertainty of Brexit, but we now know that the number of EU nationals in Scotland rose by 10 per cent in the 12 months after the Brexit vote. There are now 219,000 European nationals here. There has not been an exodus. Undoubtedly, people will have left because of uncertainty, but the net position is that there are now more EU nationals in Scotland than there were before the referendum took place.
Our responsibility in the chamber is to be as pragmatic and realistic as we can be. That is not to say that we think that we are in the process of negotiating a position that is superior to the one before; rather, we must do all that we can to work to negotiate the best possible deal and judge that finally in the analysis of what has been achieved.
I would like to say something directly to Mr Russell. Perhaps we have been ambiguous about this, but let us be clear: clause 11 of the European Union (Withdrawal) Bill is not acceptable to Scottish Conservatives. I understand the reasons that the Secretary of State for Scotland has given today, but I am not entirely persuaded that the UK Government could not have done more. I do not blame the secretary of state. The urgency of the resolution of that point has been made very clear to officials. They have protested that there has not been sufficient time, but they could have done more to ensure that there was sufficient time to get to a final agreement. However, the secretary of state has given the assurance that the UK Government will table amendments to clause 11, because we wish to work to ensure that the Scottish Parliament is finally in a position to support an LCM that the Scottish Government supports.
We undoubtedly face long and turgid negotiations that will sometimes involve taking three steps forward and two steps back or two steps forward and three steps back. Ms McAlpine detailed perfectly accurately and reasonably the difficulties that we expect to face. However, we start from the position of being a member of the European Union and therefore with equal regulatory frameworks from which we need to negotiate future separate arrangements. I believe that we will succeed in doing that. Obviously, I do not know at this stage what the final shape of the agreement will be, but our responsibility is not to be theatrically lurid all the time. I will miss Mr Macdonald, who has been an oasis of calm in representing the Labour Party on the issues. He will be replaced by a radical edge of rhetoric from Mr Leonard and Mr Findlay, which I look forward to hearing. I hope that, beyond all of that, we can ensure that the Parliament’s contribution is to work to get the best possible deal and then to judge the deal when we see what it is.
I thank my old chum Mr Russell for his very warm welcome and his wishing us a happy new year. I reciprocate that. I am sure that we will work together on many issues over the coming weeks and months, and I am sure that we will work together on exposing the Tories’ shambolic handling of Brexit.
I am very sorry that Mr Carlaw is feeling poorly today. It is rather unusual for someone to get a migraine prior to a speech by him; people usually get migraines during or after his speeches. However, we wish him a speedy recovery.
The reality is that extricating the country from a political and economic union that we have been a member of for around 40 years is self-evidently very complex and difficult. The negotiations will be long, arduous and torturous at times, but they have to succeed for our economy, our jobs, the environment, our consumers and all our citizens who live here, wherever they originally came from.
As with any negotiations, if people enter into them on good terms with mutual respect and a positive attitude, things are much more likely to go better than if they go into them with a belligerent, ill-judged and what often looks like a clueless approach. The latter typifies the UK Government strategy to date—18 months have passed since the referendum and progress has been painfully slow. The UK Government has failed to make the progress required. Brexit minister David Davis’s bluff and bluster have not taken him very far. We are barely off the starting blocks, and it is likely to be March before we even see any beginning to the detailed discussion on the terms of the transition phase, never mind what happens thereafter. If the Prime Minister and David Davis think that the past 18 months have been tough, they should just wait until they see what will come when they get down to the detailed negotiations on the million and one things that will require to be agreed.
As the excellent committee paper prepared by Dr Lock of the University of Edinburgh sets out, the legal issues around Brexit are multifaceted and very complex. For lawyers specialising in EU and constitutional law, the next few years will be like having Christmas and winning the lottery every day. There are many ways to win the EuroMillions jackpot, and this might be one of them for EU and constitutional law firms.
Although the process of withdrawal plays out in the media every day, the legality of Brexit will cause the most headaches across the board. Dr Lock says in his paper that negotiating with the EU is not like negotiating with a sovereign nation. Some of the outcomes will have to be ratified by qualified majority voting, others by the European Council or by individual countries. There is the role of the European Parliament to consider—it might veto an agreement. There might be legal challenges, which could come from a number of fronts, in the European Court of Justice. There must also be a meaningful vote in the House of Commons. All those are very real and practical hurdles, and that does not even include the legislative consent motion issue here. The multitude of hurdles will prove difficult to overcome.
Just as we said that it was fanciful for the Scottish Government to claim to be able to negotiate an exit from a 300-year-old union with England in two years, it is nonsense to believe that Brexit can be negotiated in a similar timeframe. Therefore, a stable and sensible transition period is essential to give business certainty and to protect jobs and people’s rights. The transition period, in which single market and customs union rules would apply, should be time limited, which would provide continuity and retain access to the single market for businesses.
We accept that freedom of movement will end, but we want to see a fair and well-managed immigration system that ends the exploitation of labour and safeguards human rights; we also want to ensure that all the rights of EU citizens who live here are protected. Those issues have been raised repeatedly by a wide range of organisations that gave evidence to the committee, including the Food and Drink Federation Scotland, trade unions such as Unison, and councils such as North Ayrshire.
We want a deal that protects workers, consumers and our environment and that builds a new co-operative relationship with our friends and colleagues across the continent and beyond, reflecting the concerns raised by, for example, the Church of Scotland in its very good written evidence to the committee. That stands in contrast to—I would not put Mr Carlaw in this boat—some on the Tory far right who see Brexit as an opportunity for the UK to become an insular, isolationist, deregulated economy rid of every bit of progressive legislation that has ever come our way.
Those of us who are on the progressive end of politics must be very vigilant and forceful, because we cannot allow the Tories to negotiate away our hard-won rights, or to take us over a cliff edge. However, we live in a democracy, and we accept the will of the people—just as we accepted the will of the people in 2014.
We want devolution to work and we want to protect the interests of the country and working people, so I will work closely with the cabinet secretary on the LCM and, of course, on the role of the devolved Governments.
Labour’s objective in the negotiations is to retain the benefits of the customs union and the single market while negotiating that new relationship with our European neighbours. We believe that that can be achieved if there is a change of attitude, good will and determination to secure a deal that is in our national interest and the interest of all other states.
I wish a happy new year to all my colleagues in the chamber except for Tavish Scott, who will shortly celebrate new year with his constituents at Up Helly Aa, rather than celebrate it conventionally, on 1 January.
My constituents are exceptional, too, as, perhaps more than others elsewhere, they are taking a keen interest in the negotiations on the UK leaving the EU. That is because they, rather differently from most people in Scotland, can see a local benefit from our doing so. That benefit is from our exploitation of our escape from the common fisheries policy and the regaining of control over fishing opportunities in our waters out to 200 miles.
I referred to my opposition to the common fisheries policy in my first speech in Parliament in 2001, which was made on the day following my first swearing in, and members have heard me speak on that subject on many occasions since.
We only gain meaningful benefit from being outside the CFP if the exit negotiations deliver certain other matters of importance to our fish-catching sector. Catching more fish means little if we lose the opportunity to add value to an increased weight of fish through increasing our processing activity. Yes, skippers would be able to land the increased amount of fish directly to European Economic Area ports, which would probably mean Norway, and thereby make a gain. However, the bigger prize—and the bigger industry right now—is onshore, on our shores. It can flourish, and the entrepreneurial spirit is strong, but it needs fair and, essentially, timely access to export markets. Some products, such as the Cullen skink Scotch pie that I sent to David Davis for Christmas, are products that are designed for delivery by time-variable means such as the post. I hope that he enjoyed the pie as much I enjoyed one for my lunch on the same day. Other products, such our world-famous langoustines, halve in value if they arrive even four hours late.
Tariff barriers are currently less critical with the fall in the value of the pound, but if the pound recovers its previous exchange rate, they might again be an important matter. Access to market is what matters, yet we see no sign that that has a high-enough priority in the negotiations.
We have greater, if substantially less than full, clarity on migration. Our fish processing industry’s future depends on people from many nations coming and, crucially, being able to settle here. About half of the migrants who have come to the north-east in recent years have made a permanent relocation. It is not simply seasonal recruitment, but permanent employment. Alasdair Allan’s evidence to the committee suggested that 46 per cent of people in fish processing in the UK are EEA nationals, and we know that 70 per cent of workers in north-east fish processors have been migrants. They add huge value to the local and national economies, particularly in the north-east, which is an area of high employment where recruitment has long been difficult. They also enrich and strengthen our culture, substantial as it already is.
The Cabinet Secretary for Rural Economy and Connectivity, Fergus Ewing, told members that the UK minister Michael Gove has a sympathetic ear to the issues around fishing and fish processing, and Mr Gove’s connections to the north-east of Scotland underpin his understanding. However, for the UK, the industry is a very minor part of the economy, and I share the concern of others that it will end up as a bargaining chip and that benefits that we expect will be traded away.
I listened with great interest to Jackson Carlaw, who is in soft focus for me today because I do not have my glasses—I have no migraine but no glasses. However, the secrecy, the exclusion of the devolved nations’ Governments and Parliaments from the development of post-Brexit policy and rules, and their exclusion from the negotiation itself feed a paranoia, justified or not, about possible outcomes. It also has the practical effect of reducing the resource that can be applied to the shared interests of all the nations of the UK—for clarity, I include England when I say that—in what is the greatest challenge to our future in my lifetime. I am pleased to note the consensus that has been referred to already that we cannot yet—I repeat, yet—give our consent as a Parliament to the UK Brexit bill.
However, the prospect of cutting off migration is the one that is worrying me most. Historically, the Scots are probably the greatest migrants in the world. The cities of Warsaw, Krakow and Gdansk each have areas in them called Nowa Szkocja, or New Scotland, which is a testament to our outward migration in the late 1600s. Indeed, a Scot was the mayor of Warsaw on four occasions. The 2011 census says that there are 55,000 Poles in Scotland. They are our largest immigrant group.
Countries around the world would not exist in their present form without our citizens; Canada is the most obvious example. In my own family, as in others, it continues. A niece, born in Edinburgh, is now a Swedish citizen because of Brexit. Her brother will shortly be a Dane.
Leaving the EU and thus leaving the common fisheries policy, while remaining in the single market and retaining free movement of people, ticks most of the boxes for most of my constituents, as it does for Scotland as a whole and as it will do for all the nations of the UK.
I wish everybody a happy new year.
Although it is a new year and we are here to focus on the Culture, Tourism, Europe and External Relations Committee’s inquiry into article 50 withdrawal negotiations, once again we are hearing the same old message from the Scottish National Party: independence, independence, independence. In 2017, the SNP lost 21 seats and close to 500,000 votes. If there was a clear indication that the public did not want a second referendum, that was it.
I thank Ivan McKee for that intervention. I have no need to tell him who has mentioned the independence referendum—it was across the newspapers yesterday and this morning in the words of his own First Minister.
We know that SNP members do not listen, and they obviously do not read the papers. Education, health and affordable housing still lack much-needed attention, and yesterday—not two weeks after we had seen in the new year—the First Minister brought a second independence referendum back to the forefront of the SNP’s agenda. The SNP’s answer to Brexit is independence. That is a crying shame and shows a real lack of ambition by the First Minister and the SNP—rant over.
Since the committee’s inquiry started in September last year, negotiations have been fast, furious, challenging and even frustrating. I have no need to remind members that article 50 simply sets out a process by which the UK, as the leaving member state of the EU, follows agreed negotiating guidelines that cover phase 1 of the withdrawal process. Phase 1 focused on issues related to citizens’ rights, the financial settlement and Ireland, on which the committee heard evidence. I thank the clerks for their hard work, and I thank those who gave evidence. I also thank our convener and our deputy convener, Lewis Macdonald, who will be missed. I welcome Neil Findlay to the committee.
In December 2017, the European Council was satisfied that sufficient progress had been made on the aforementioned priority areas. That gave the green light for discussions regarding the UK’s future relationship with the EU, and guidelines were adopted that focus on the possibility of transitional arrangements. In the Prime Minister’s Lancaster house speech, she suggested that the UK would need an implementation phase before its new relationship with the EU was fully realised.
That ask was accepted, and, on 20 December 2017, the European Commission published a draft negotiating mandate for the transition. The mandate says that the EU would accept a transitional arrangement in which its laws should apply to the UK
“as if it were a Member State” but that the UK would not be able to
“participate in the decision-making or the governance of the Union”.
That means that the UK will not get a say on new EU laws but will have to abide by them. It will also have to accept the four freedoms of the single market and the jurisdiction of the ECJ.
In Scotland, we must concentrate on what is best for our people, businesses and organisations following our departure from the EU on 29 March 2019. Unfortunately, in this chamber politics is polarised. The First Minister has raised the possibility of an independent Scotland, but what business and organisations need is certainty. Transitional arrangements are what businesses are looking for to prepare them for our future relationship with the EU.
It is also important to note, as a number of members have done, that the Parliament’s Finance and Constitution Committee has recommended that changes be made to the withdrawal bill before the Parliament can recommend that it be given legislative consent. It has been acknowledged that clause 11 of the bill
“represents a fundamental shift in the structure of devolution in Scotland”.
I accept what Mike Russell said about his phone call to the Secretary of State for Scotland, but David Mundell has recently given assurances that the bill will be amended at a later stage, and its consideration at Westminster is due to resume in the next few weeks. Therefore, I hope that we can look forward to a shift. I welcome the cross-party progress that has been made so far and hope that work will continue on reaching agreement on a common UK framework for returning powers to the Scottish Parliament.
As Dr Kirsty Hughes said in her submission to the committee, later this month or next, the Prime Minister is expected to set out in more detail—probably in a speech—the sort of future relationship that her Government would like to see between the UK and the EU27. The EU27 are then expected to agree their position and guidelines for talks on a future trade and wider relationship with the UK at their summit on 22 and 23 March. Once they have done that, talks on a future trade deal and a wider security relationship can get under way.
The aim is to complete talks on the withdrawal agreement and on an outline framework for the future relationship by the autumn of 2018, so—allowing time for ratification on both sides—time is very tight indeed. The UK Government and the Scottish Conservatives are clear in their view that working together to get the best deal for Scotland and for the UK is the way forward. However, it is the Scottish Government—in particular, Nicola Sturgeon, the First Minister of Scotland—that repeatedly wants to disrupt the Brexit process by threatening to hold an independence referendum. Yesterday, we were all reminded that all that the Scottish Government wants is independence—at any cost. The SNP will dismiss the hard work that has been done so far, saying that it is not enough, and it will attempt to hold another independence referendum. In the meantime, uncertainty among Scottish business will increase, confidence in Scottish business will all but disappear and the Scottish economy will suffer.
If I have learned one thing from the Culture, Tourism, Europe and External Relations Committee’s inquiry, it is that we have only scratched the surface of some of the major issues that Brexit will raise. I will focus on some of the issues that were flagged up during our evidence sessions—in particular, the session that we held on the role of the European Court of Justice and other legal matters, which we, as a Parliament, have not looked at in any great detail so far.
The role of the European Court of Justice is one of the most contentious matters in the Brexit discussions, and it is one that we need to take a serious and considered look at, because I believe that it has been fundamentally misunderstood and misrepresented in the lead-up to the EU referendum—if it was discussed at all during that period—and in the discussions that we have had since then. To do that, we need to look at the kinds of cases that the ECJ deals with and how that affects us, how directives and laws are formed and the problems that we could potentially face.
In September, we took evidence from a panel that included representatives of the Faculty of Advocates and the Law Society of Scotland as well as Professor Sir David Edward, who is a former judge on the ECJ. He outlined why the body is vital and the kind of work that it deals with. He said:
“British companies will still want to send their employees to other European countries ... Those employees will want to live in the country to which they are sent with their families ... Some will find themselves on the wrong side of local bureaucracy and some will separate; they will need to know which courts will grant a divorce and which will decide on the financial settlement, the custody of children and problems of cross-frontier access. Such issues are what the jurisdiction of the ECJ is designed to solve, for ordinary people in ordinary, day-to-day situations. It is not just about trade disputes. That is the most important point to understand in the whole of this discussion.”—[
Official Report, Culture, Tourism, Europe and External Relations Committee
, 14 September 2017; c 2.]
Cases that the ECJ deals with are not always necessarily about the UK versus another state, which is often how it is made out. The day-to-day reality is that an issue can be raised in one jurisdiction that is enforceable in another.
In November last year, I visited Westminster with the Justice Committee to meet our counterparts there and a number of other committees. Although this issue deviates slightly from the direction of the work that we undertook in the Culture, Tourism, Europe and External Relations Committee, it is important to mention it. One of the Westminster committees that we met was the House of Lords EU Justice Sub-Committee, which has undertaken detailed work on the implications of the UK leaving the EU for EU citizens here and UK citizens abroad as well as on how that will impact family law, individuals and businesses. That committee has held evidence sessions and has produced a number of important detailed reports that I urge all members in the chamber to look at because they highlight the sheer scale of the issues that we face and go into greater detail than we have been able to cover in the Scottish Parliament.
The reports also cover matters that the public was not generally made aware of when the decision was made to leave the EU. An important point to remember in that regard is that it is not as though we have all been sitting here, helplessly subject to the directives and laws that have come from the EU, because the UK has played an important role in helping to develop those very laws. That issue has been raised by Lord Thomas of Cwmgiedd, a former Lord Chief Justice, in terms of current work to develop law for the digital sphere, where, as members of the European law commission working together with the American law commission, we have a key role. Lord Thomas has said that
“one of the very big issues that the Committee may wish to think about in due course is how we, in a relatively small jurisdiction set between two very large jurisdictions, the United States and the European Community, will have an influence on the fashioning of the law for this new marketplace once we leave the Community ... This is a very, very large topic; it is the future development of our law that is sometimes lost sight of in the debate.”
There are also issues with current legislation that is based on EU directives, such as the Data Protection Bill. That aspect was raised by Lord Hope of Craighead, a former Deputy President of the Supreme Court, who illustrated the problem by saying that
“the law enforcement directive—it goes right through the Bill, which is designed to give effect to it ... The problem for individuals will be that, after we leave the European Union, we will have no direct access to the court if an issue comes up as to the meaning of the directive ... this deprives the individual, including a corporation as much as anything else, of the right to have a ruling that will apply not only to itself but to trading partners in the EU. That is a real deficit that is apparently being built into legislation that will be part of our law after we leave.”
Those are big issues on their own, without our looking at other fundamental problems. How will mechanisms for our security and safety, such as the European arrest warrant, continue to operate? Again, Lord Thomas addressed that issue when he said that
“the European arrest warrant operates in a fundamentally different way. Unlike treaties, it is premised upon judicial co-operation. It is very difficult to see how, if an instrument operates on that basis, it can do so without some body at its apex to determine the rules by which it works ... there is a total lack of debate about the two very different approaches to the problems of the relationship between two judicial systems: the treaty-based mechanism and the one based on co-operation.”
So, where do we go from here? Will we have that overarching body to determine those issues? Will its decisions be binding? Will they be enforceable? We know that the ECJ will continue to have a role in citizens’ rights for eight years, but what about beyond that? How will we deal with trade disputes? Right now, there are more questions than answers and, with complex questions like those, that is extremely worrying, given that there is less than a year for those key issues to be agreed.
Michael Clancy of the Law Society of Scotland said in evidence to the Culture, Tourism, Europe and External Relations Committee:
“We, and the UK Government, have to be careful about simply identifying the initials CJEU and saying that that is something that we do not want in any circumstances. We have to be much more circumspect.”—[
Official Report, Culture, Tourism, Europe and External Relations Committee,
14 September 2017; c 18.]
We should be and need to be open minded about the ECJ. However, given that Theresa May has continually pandered to the hard right of her party, my fear is that it is already too late.
Fourteen months or so from now, Britain will leave full membership of the European Union and its various institutions. We are now honouring the result of the 2016 referendum and are preparing for that outcome by discussing and negotiating future relationships through agreement in the coming months and years, so we have a relatively short time in which to conclude how the agreements should be shaped.
We cannot allow that to be driven by the hard Brexiteers in Theresa May’s Cabinet—those who think that the colour of their passport is a significant issue and that changing it is a benefit of leaving the EU. Rather, I hope that the more sensible Tories in their party will muscle in, take the Brexiteers on and ensure that there is a coalition of the parties that see a bigger picture and see that we must all work together in the interests of the country. In the withdrawal process, it is up to all of us to make sure that, despite our various disagreements, the subsequent arrangements aim to safeguard the economic interests of the UK and of all the parts of the UK—be it Scotland, Wales, Northern Ireland or indeed any region of the UK. All their interests must be served.
The Culture, Tourism, Europe and External Relations Committee has done this Parliament a great service with the work that it has done. I am sure that I am not alone in finding that following the unfolding of the Brexit story in the daily news is hard work, and I have certainly found the reports that the committee has put together quite exceptional.
The paper that was written by Tobias Lock is also worth a read, if members have not already read it. He says, among other things, that it is highly unlikely that a deal will be fully completed by 2019. In practical terms, he has suggested that the transition phase is likely to have “two broad objectives”. The first is
“to allow for detailed negotiations”, although that is
“Provided that the ... withdrawal agreement outlines the future framework” in broad terms, as other members have said. The second is
“to allow time for government, businesses, and individuals to make practical preparations for the new relationship”, which will be easier said than done.
The European Council has made it clear that it envisages a status quo transition, during which the UK will have to comply with EU trade policy and customs tariffs—it will have to collect EU customs duties and do everything associated with that. According to Dr Lock, European Council guidelines seem not to cater for a phased approach to transition. Many questions remain about the full implications for the UK in the transition period, and we will need to return to that regularly.
In my view, the transition period will therefore prove to be a key part of moving to the final stages. Whatever final agreements we reach, as I said, the UK must consider all parts of the country, including Scotland, Wales and Northern Ireland, and ensure that their different needs are taken account of in our arrangements on trade, our relationship with the single market and all the other important aspects. Like others, I am sure, I await with interest the detail in phase 2 of how such an agreement will honour the Good Friday agreement.
The member mentioned the single market and the transition arrangements. I agree that it is important that we wait for information, but is it not also important that we have from the outset a certain sense of where we are headed? Is it the member’s view that that should be membership of the single market?
As I have said in setting out my views, we must ensure that, whatever the final arrangements are, we have the best arrangements for Scotland, Wales, Northern Ireland and all parts of the UK. That is what we are discussing going forward.
I have already raised in this Parliament many times an excellent report by the House of Lords that highlights the asymmetrical structure of devolution in the UK. The reason for that structure is that there are clearly different problems to solve, and I mentioned one of them a moment ago—the border with Northern Ireland. In going forward, I hope that the Government will recognise that Scotland relies heavily in its NHS and its public services on immigration and freedom of movement, and therefore—[
.] Apologies, Presiding Officer. I hope you did not hear that. [
I apologise to members; I hope that they did not hear any of that.
I will try to compose myself.
Scotland relies heavily on immigration but—and I have argued this previously—I do not believe that we require the devolution of immigration to construct a policy that recognises that different parts of the United Kingdom need different things.
Jackson Carlaw has made a significant contribution. I recognise the work that he and Adam Tomkins are doing to represent Scottish interests to the UK Government. That shows that there is hope that we can work together. I have fought for the integrity of the Scotland Act 1998 all my political life. I believe that what is not reserved is devolved. We should all uphold the integrity of the act.
Brexit is the most significant political issue of our time. There are hard times ahead for ordinary people, who are trying to follow what we politicians are doing. They faced a decade of austerity after the banking crash and we know that, as we move forward with Brexit, there will be many problems to solve. Let us remember the people we are working for and come to an arrangement that works for them.
As a member of the committee, I congratulate the convener on her opening speech, which summarised very well the issues that the committee has been dealing with, which form the theme of today’s motion. I thank my colleagues on the committee and the clerks for all their work over the past 18 months, during which they have dealt with an enormous subject that is full of complexity. Its impact on Scottish society and the Scottish economy is difficult to grasp.
It is quite incredible to think that this is the first parliamentary debate of 2018. We have, quite rightly, chosen the subject of Brexit because it is the biggest subject facing Parliament and Scotland. The fact that this is 2018 means that we are now in our final full year as a member of the EU, if the UK Government gets its way. That is quite significant: we are only weeks away from entering the final 12 months of membership for Scotland and the UK. Of course, as the convener pointed out, Barnier said to the committee that he needs a deal to be wrapped up by November 2018, which is even closer—it is only a few months away. That shows the scale of the challenge that the country faces and of the responsibility on the UK Government to show more leadership and make sure that Scotland and the UK get a good deal.
As parliamentarians going around our constituencies, and as committee members hearing from witnesses, we have met with continuing common themes. The first is uncertainty: people simply do not know what is going to happen in future. The second is their real concern about the hard Brexit that the UK Government seems to be pursuing—people have been flagging up the prospect of a no-deal scenario.
We in Parliament must keep at the forefront of our minds the fact that 62 per cent of Scots voted to remain in the EU. Many people across the UK—even some people in Scotland—voted to leave the EU because of misplaced patriotism or some false hopes that they were persuaded to adopt by the leave campaign and which have been exposed as false over the past 18 months. However, even those who voted to leave the EU did not vote for a hard Brexit, and they certainly did not vote for a no-deal scenario.
Many businesses and ordinary people in the country are concerned about living standards and the future state of the Scottish economy. I have spoken to many businesses in my constituency in the past few months and they are extremely concerned about what is happening. Many of those businesses are export orientated, and many rely on the overseas workers who work in factories in Moray, as happens in other parts of Scotland. Those businesses tell me that many EU citizens are deciding to leave the country and go back home and that fewer inquiries are coming from overseas people who want to work in Scotland. That is a real concern for the business community as it plans ahead.
Many of those businesses will not speak out for obvious reasons, but they are concerned about what is happening. The implications for trade are severe indeed, especially from the horrendous prospect of a no-deal scenario. A hard Brexit or no-deal scenario are seen as ticking time bombs by the business community in Scotland, and we should all view them that way. It is unfortunate that the UK Government is doing so little to defuse those ticking time bombs.
The convener mentioned the David Davis letter, which was quite astounding. On the one hand, we have Philip Hammond, the UK Chancellor of the Exchequer, putting aside £3 billion in last November’s budget to prepare for a no-deal scenario; on the other hand, we have a letter of alarm going from David Davis to the Prime Minister in the past couple of weeks—a letter in which he expresses alarm that the EU is planning for a no-deal scenario, with all the dangers that that presents to the UK economy and to the country. What else does the UK Government expect when it is planning for a no-deal scenario itself?
The Scotch whisky industry is another industry that is quite close to my heart. Shortly after the referendum in June 2016, the Scotch whisky industry was quite relaxed—surprisingly relaxed—about the impact of Brexit on it. However, we have moved from that situation to the situation today in which it is very concerned, given the lack of progress on reaching any kind of deal with the EU and the prospect of leaving the single market and the customs union. The industry has now issued seven asks as part of its campaign. It wants a
“comprehensive customs agreement, minimising cost and complexity”, which it says is essential. It talks about potentially devastating arrangements for imports and exports and the impact that those could have on the industry.
The press release that has been issued by the port of Rotterdam has also caused alarm. It got some headlines in the UK press, but it should have got a lot more. The port of Rotterdam is setting alarm bells ringing about the impact of Brexit on EU trade not just for other EU countries but in relation to the fact that many goods come from the EU to the UK through the port of Rotterdam. The press release talks about congestion in Europe because of the lack of preparation and the need to hire 100 more customs officers to work in Rotterdam. It talks about delays in getting clearance for goods that are exported and imported through Rotterdam. The port is basically flagging up the potential for absolute chaos in relation to trading agreements and arrangements.
As we sit here debating the issue in early 2018, we are only a few months away from when the EU wants to have a deal in place. That just shows the lack of preparation that there has been. I urge the Scottish Government to continue to keep all the options on the table. There are real concerns out there. One relates to the potential for a transition period. The fishermen and the farmers are being told that there will be a transition period, and some industries will be able to stay within the customs union and the single market. However, others, such as fishermen, will be able to get out of the EU in March 2019. Quite clearly, the UK Government is cherry picking, and there is no basis whatsoever to think that its approach will be supported by the rest of the EU.
In terms of keeping options on the table, the SNP is not facing the same constraints as the Labour Party, which is worried about UKIP making inroads into the housing estates in England, and it is not facing the same constraints as the Conservative Party, which is interested only in maintaining the unity of the Conservative Party. The SNP and the SNP Government continue to put Scotland first, and that is what they should do. They should keep all the options on the table to get the best deal for Scotland.
Like my colleagues, I would also like to thank our committee convener, our committee clerks, all those who have submitted evidence, and those who have hosted us for committee visits, both here in Scotland and in Brussels. It has been invaluable in recent months to hear first-hand from those who are already experiencing this process.
Scrutinising the Brexit process has been a deeply dispiriting experience. Hearing directly from individuals, families and organisations affected by the UK Government’s handling of the process cannot have filled any of us with confidence that a positive outcome is remotely possible.
In phase one of the negotiations alone, we have seen so much uncertainty and stress caused by the Conservative Government’s shambolic approach. It knew full well that the EU would accept nothing less than proper guarantees on EU citizens’ rights, yet we saw month after month of the UK Government dragging its feet, refusing to offer that guarantee, and even trying to rescind some of the rights of EU citizens living here.
In that time, we heard from those citizens who felt that they had to leave Scotland as they did not feel welcome here any more. I accept Jackson Carlaw’s point about those who have come here since, but for a Government’s actions to have resulted in anyone feeling that they need to leave the country—as some have—should be something that fills us all with shame.
I have spoken to EU citizens who have already faced discrimination based on their nationality—in the job market, from landlords, and even from the national health service. The most striking piece of evidence that our committee has gathered so far was not from a Government minister or a representative of business interests, but from a mother, originally from Romania, who had made a life here for her family. She felt that EU27 citizens, such as her family, were being treated like dogs that the UK had bought for Christmas and did not want any more. That has been a shameful way to treat anyone, not least UK residents who have actively chosen to make their lives here.
I welcome the phase 1 agreement, although not how long it has taken us to reach it. There is now less than a year left for the UK Government to negotiate its future relationship with the EU before it needs to begin ratification. Delaying the inevitable concessions has used negotiating time that the UK side simply could not afford to squander.
Phase 1 was far simpler than what is to come. It is hard to see how a minority Government can reconcile its own hard Brexit fringe with the commitments that have been made to avoid a hard border in Ireland, along with what is necessary to reduce the inevitable economic damage that we will sustain by leaving. This is an opportunity for the progressive opposition to step up and ensure that the UK moves towards a softer Brexit position, at the least retaining our membership of the single market and of the customs union. I hope that the Labour Party can join those of us who have been working consistently for that shift. Following the line of a Tory hard Brexit does not live up to the Corbyn mantra of working for the many and not the few. The only people who will benefit from such an approach are a very few disaster capitalists and outside corporate interests.
We should be in no doubt that the next six months will be far more challenging than the last. Phase 2 is where rhetoric will have no alternative but to collapse in the face of reality. The UK has committed itself to ensuring no hard border between Northern Ireland and the Republic, which means continued alignment with the rules and regulations of the single market. However, the Tory Government is also intent on leaving the customs union, a policy aimed at ensuring that the UK can strike its own international trade deals. Even accepting at face value the fanciful suggestion that a technological solution can ensure no hard border—despite the UK being outside of the customs union, which is not realistic in the unique circumstances of Northern Ireland and its border—the UK will quickly find itself under pressure to diverge from and undermine the rules of the single market.
As soon as the UK attempts to negotiate a trade deal with the US or any other major economy, regulatory standards will be targeted for removal. We know this already from the EU-US negotiations for the transatlantic trade and investment partnership, which proved so unacceptable that they failed after eight years. The US has been very clear: it considers EU regulations such as REACH—the framework on chemicals that involves extensive registration, testing, data gathering and, crucially, the precautionary principle—to be a barrier to trade. In the US, on the other hand, it is still legal to buy and sell asbestos. Regulations on animal welfare, on minimum ageing for whisky, on hormones and growth enhancers in beef production, on sanitary processing of meat—that is banning chlorinated chicken, for those of us not familiar with the industry—on the use of certain pesticides in agriculture and on subsidies to farming under the common agricultural programme are all considered by the US to be barriers to trade. The list goes on and on.
In all those instances, the EU offers stronger protections for the public and the environment than the United States. The US tried to undermine many of those standards in the TTIP negotiations, and that was with the EU representing a trading bloc of greater economic power than the US economy. The UK negotiating alone with the US will be at a severe disadvantage. That was made very clear to us on one of our first committee visits to Brussels, where US trade negotiation tactics were explained: they appear with a draft and tell the other side, “It will be signed” because, in most instances, they are the far more powerful bloc and they get their way. Just last week, a US under-secretary for trade stood beside Michael Gove and lobbied for the UK to drop EU protections for the sake of trade with the US.
At every opportunity, the US will attempt to undermine the regulatory standards that we inherit from our EU membership. However, if we want to continue to trade freely with the EU and maintain a genuinely open border in Ireland, we will have to maintain those standards—we cannot have it both ways. When we leave the EU, the Government’s policy on leaving the customs union will mean that we will also lose every trade deal negotiated by the EU. We will be left isolated. As has already been noted, some of the most recent deals, such as CETA, took eight years to negotiate. We will leave the EU far sooner than eight years from now. It will be a huge effort just to maintain a worse trading relationship with the EU than we have at present, let alone negotiate new trade deals with other countries.
It is hardly a secret that the Brexit process has, so far, been far from a triumph for this new global Britain. Without a hard dose of reality quickly, it will get much worse and make the prospect of a no-deal Brexit ever more likely. That is not in Scotland’s interests, and it is not in the UK’s interests. It is what we should all be working to avoid.
I welcome the new year across the chamber and I say to Stewart Stevenson, who is sadly not here, that I can exclusively reveal that he got something wrong today—probably for the first time in his whole parliamentary career. Up Helly Aa is not about Christmas for Shetland; it is about our connections to Scandinavia. I will be happy to give him a lengthy treatise on that on a later occasion.
I also welcome Neil Findlay to the front bench. It is great to see him joining the establishment of politics. We will watch that with great entertainment. His jousts with Mr Russell will no doubt be good fun for the rest of us, although they will be nothing for me compared to watching him have to be nice to the Tories on Brexit. I must confess that, at times, it is a little hard to tell the difference between the Tory front bench and the Labour front bench on Europe, particularly after one or two of today’s speeches.
Jackson Carlaw is doing well with his migraine, but his interpretation of the Macron speech was a bit wide of the mark. The President of France spotted the opportunity that has been created by the fact that there is now no British foreign policy and advanced the case that, for example, the French language could soon be the most spoken across the globe. If that is not spotting an opportunity, I do not know what is, but it comes about because of the UK Government’s failure to spot what is happening.
That is entirely true. The Shetland fishing industry—or, rather, the fishermen themselves—do not support staying in the European Union but, as Mr Stevenson rightly set out, the fish processing industry needs access to the single market. It needs membership of the customs union as well and does not need the tariffs that we will get with a hard Brexit. I take Mr Findlay’s point but, in politics, some of us have to stand up now and again for things that we believe in. I believe in the European Union and wish that we were staying in it, not leaving it.
As the UK Government reshuffle continues, politics—but certainly not the country—observes Tory Brexiteer promotions and how that affects the balance of that most disunited of Governments. We are in the final nine months of the EU-UK negotiations. The Prime Minister has spent two days not on defining her Government’s position on our future but on a reshuffle that appears to be anything but a reshuffle. She could have had a two-day Cabinet meeting to thrash out an agreed position, but we can only conclude that that will never happen on Europe. The reshuffle could have heralded the back of Messrs Johnson, Davis and Fox. Why should they be replaced? Because, with them, a Tory Cabinet can never unite on the most important aspect of the UK’s future: the type of trading relationship that the Government envisages will govern our relationship with the EU.
In Florence last year, the Prime Minister sought to say that she wanted to build bridges with the EU—or, rather, to replace all the bridges that she had previously burned—and to forge a close working relationship like the one that we used to have before she set fire to all the bridges. Today, we learned that the Brexit secretary is appalled that EU planning is under way for the eventuality that negotiations fail. Who can blame Mr Barnier? The UK Government response is a David Davis letter helpfully leaked to the
Financial Times saying that the impact of there being no deal could jeopardise existing contracts that British businesses have won and force such businesses to relocate to the continent.
What does Mr Davis expect? Or is this the start of an aggressive anti-EU public stance that has been simmering under the surface for the past 18 months? The hypocrisy of David Davis criticising the EU for planning for no deal takes a bit of believing on the day that the Prime Minister has considered appointing a specific minister in his department whose only job would be to plan for no deal. In the speeches that the Prime Minister has made on Brexit, she always cites the possibility of no deal.
Late last year, we found out that the UK Government had produced no assessment worth the paper it was redacted on of the sector by sector, industry by industry impact on the economy and businesses of the UK Government’s approach. No wonder the UK Government does not know what its approach is. It does not want that objective assessment because it will fall so short of what Brexit campaigners promised voters that, in the House of Commons vote later this year, MPs might just muster the courage to say no.
The chancellor wants regulatory equidistance or, rather, the same EU rules to continue. Take pharmaceuticals. It now appears that Philip Hammond is not alone. Other UK ministers are worried not only by the loss of thousands of jobs as the European Medicines Agency moves from London to Amsterdam, but by the industry’s open call for the UK to remain within that regulatory regime. Here is the rub for the Prime Minister: that will keep the UK under the indirect jurisdiction of the European Court of Justice, despite ending the court’s role in the UK being a Theresa May red line. The agreement on citizens’ rights also means a continuing role for the ECJ, despite all the protestations to the contrary.
Some other red lines are blurring too. Boris Johnson, speaking as the Foreign Secretary, said Brussels could “go whistle” for any British money. However, we will now pay at least £40 billion for leaving the EU. So much for the £350 million per week that would go to the NHS—based on the accident and emergency figures for Scotland that were announced today, we could do with some of that.
The one certainty about article 50 is uncertainty. Last year, in this Parliament, article 50 author Lord Kerr of Kinlochard, said:
“I find it odd that we chose to trigger the procedure without having a clear idea of where we were going to go.”—[
Official Report, Culture, Tourism, Europe and External Relations Committee,
5 October 2017; c 2.]
Indeed. Lord Kerr went on to observe that the Prime Minister’s Florence speech ruled out the Norwegian trade relationship model and a Canada-style deal. She refuses to say what will be the long-term permanent, relationship between the EU and the UK following Brexit. We are now offered another speech and another speech. Well, let us hear what that relationship will be.
Lord Kerr added:
“When David Davis says … that we will enjoy the exact same benefits as we did when we were members of the single market and customs union,”
—that sounds a bit like Jeremy Corbyn, by the way—
“Michel Barnier is right to say that that is impossible”.—[
Official Report, Culture, Tourism, Europe and External Relations Committee,
5 October 2017; c 8.]
So, there we have it. The only objective conclusion is that the UK is heading later this year for no deal. I oppose that—but then, I oppose leaving the EU altogether. There will therefore be a test of the 650 members of Parliament in London. If MPs were to vote against such a deal before Christmas, we would remain a full EU member—that is a legal fact. There would be space to reassess. If the Government loses that vote, the Conservatives will fall. If the DUP support the Tories at that point, despite the impending crisis that would befall the Irish border, who knows what will happen?
In those circumstances it is inconceivable that the rest of the EU would insist that the UK should leave on 29 March 2019. Instead, in that classic and merciful way that predominates in grown-up politics in Europe, a way would be found to suspend article 50, which would be in the EU27’s interests. At that point, the UK would have to ensure that the people of this country were given a choice.
I concur with what the convener of the committee, Joan McAlpine, said about everyone who has assisted the committee in its work thus far.
I thought that Jackson Carlaw’s speech was useful and helpful in terms of the wider debate that has taken place in Parliament. Unfortunately, it contrasted with the tone of his colleague Rachael Hamilton’s speech.
Conservative speakers have been quite consistent in their defence of their UK Government; I understand that their position is that they will defend that Government to the hilt, and they are certainly entitled to do so. However, leaving the EU is a serious business that will have serious effects on our economy and on everyone who lives here or who wants to live here and to make a contribution to Scotland and the rest of the UK.
As things stand, there is no take 2; we are leaving the EU. Whether we like it or not, we have to get the best possible outcome from talks. Our constituents deserve that.
Among all the ever-confusing information that is in the public domain, there are a few very important points. First, the guidelines that were agreed at last month’s European Council meeting showed that the EU27 are looking for clarity from the UK on the end-state relationship that it wants with the European Union. I am sure that I am not alone in agreeing with the EU27 about that: I, too, would like clarity on the end state, because it will have a long-term effect on Scotland and my constituents. The end state will be what we have to live with, do business in and foster social relationships under for some time to come.
Nobody is asking that all the cards be placed on the table, which would clearly give the upper hand to the EU27 in further negotiations. However, we know what we are leaving but have absolutely no idea what the destination will be. That creates huge uncertainty and fosters a situation of fear and trepidation. As James Carville—Bill Clinton’s election strategist—continually highlighted during the 1992 United States presidential election, “It’s the economy, stupid”. Joan McAlpine spoke in her speech about some of the financial elements that will be absolutely crucial going forward in that respect.
Another point is the situation in which Northern Ireland will find itself. It is clear that some type of special arrangement between Northern Ireland and the EU is being created, which I welcome, so there is no logical reason why Scotland should be prevented from having such an arrangement. Some people will say that we voted as the UK to leave the EU, so we have to get on with it. However, Scotland and Northern Ireland both voted to remain, with England and Wales voting to leave. Why can one “remain” part of the UK have a special arrangement but the other—Scotland—cannot?
My second substantive point is about respecting the decisions that were made in phase 1. The paper that was commissioned by the Culture, Tourism, Europe and External Relations Committee and published by Dr Tobias Lock laid out in clear terms that the European Council has agreed that sufficient progress has been made to move on to the second phase of article 50 negotiations, and said that
“negotiations ... can only progress ... as long as all commitments undertaken during the first phase are respected in full and translated ... into legal terms”.
That is important, because of the confusion from UK Ministers after phase 1 was agreed.
There is also the situation in respect of the end state. Dr Lock said that the UK’s new relationship with the EU
“would have to be founded on one or more international agreements between the EU and the UK”, which can be signed only when the UK is no longer a member of the EU—in other words after 29 March 2019. The fact remains, however, that the UK Government needs to provide clarity about its long-term aims and ambitions for the UK. No deals can be signed until the UK is out of the EU. If the UK Government wants a positive relationship with the EU when it leaves—which would be in the best interests of both sides—it is crucial that clarity be brought in respect of that end state. We need to remember that the UK is leaving the EU: it has not been thrown out, so it is incumbent on the UK to show leadership and to give clarity on its ambitions for everyone who lives in the four UK nations.
My final point is about the European Union (Withdrawal) Bill. On 2 November 2017, the Secretary of State for Scotland attended the Culture, Tourism, Europe and External Relations Committee. In answering a question from Jackson Carlaw, he stated:
“We should all rally round and try to get the best possible deal. It is clear to me that all the other countries involved will be significantly pursuing their own interests. We need to pursue our own interests and we need to do it in as united and as cohesive a way as possible.”—[
Official Report, Culture, Tourism, Europe and External Relations Committee,
2 November 2017; c 11.]
The Minister for UK Negotiations on Scotland’s Place in Europe, Michael Russell, had some discussion with Jackson Carlaw earlier. If we accept the secretary of state’s comments and consider his reply to be valid, can any of the Conservative members in the chamber say why all 113 amendments to the bill that were laid by Scottish National Party MPs were rejected by the UK Government? They included 38 amendments that had been jointly worked on by the Scottish and Welsh Governments.
I have looked at the amendments and accept that some of them were consequential, but some were amendments that would safeguard this Parliament’s authority over devolved matters. Some would have prevented the UK Government from amending the Scotland Act 1998 and the Government of Wales Act 2006 without prior consent from the Scottish and Welsh ministers. Such amendments and others were rejected by the UK Government, which looks like a rolling back of the powers of the devolved institutions. That is despite the secretary of state’s having said, later in the meeting that I mentioned, in response to a question from me:
“I hope that we can have a united and cohesive approach. That is in our best interests—for everyone in Scotland and the UK. The amendments to the withdrawal bill are part of that process.”
“I believe that the Scottish Government is seeking a constructive role.”—[
Official Report, Culture, Tourism, Europe and External Relations Committee,
2 November 2017; c 22.]
If the UK Government genuinely accepts that the Scottish Government is being constructive, why did it reject every amendment that was laid by the SNP, including amendments that had been worked on jointly with the Welsh Assembly Government? Many of the amendments, which were to protect this Parliament’s powers and responsibilities, were supported by SNP, Labour, Liberal Democrat and Green MPs.
Phase 1 of the article 50 process has been agreed, but has not yet achieved or delivered. Phase 2 will be much tougher. If it genuinely believes that the UK should have a unified position, the UK Government needs to step up to the plate, open its ears to others in these islands, accept that there are different aspects of economic and social life in all the parts of the UK and try and build consensus. A consensus of the Conservatives, the DUP and UKIP is not a consensus that I would be proud of or wish to support.
It has been a year and a half since the United Kingdom decided to leave the European Union. In that time, we have been faced with a number of obstacles. That was always going to be the case. Any major constitutional change of this scale has a unique set of challenges that will undoubtedly test a nation’s resolve.
When the UK first joined the European Economic Community, as it was known then, the new-found trading benefits that saw our southern ports grow and which massively boosted their regions saw a reorientation in which cross-channel focused trade headed southwards, which equally took its toll on the northern regions of these islands.
Indeed, the European project itself did not come easy to member states: the experience of the 1970s tells us so. A centralised approach to the Europe-wide industrial sectors was not an apolitical exercise, because even then national Governments were reluctant to let go. In practice, at the time, many nations sought to preserve their industries, one against another, and although customs barriers were removed, the psychological barriers were not. In the midst of a recession, Governments then fought to hang on to their national privileges, subsidies and protectionist barriers.
Those differences of opinion over the economic ideology of the European Union remain today. There are on one side people who see it as a neoliberal panacea for building a bold and free multistate economy, and on the other side are people who prefer the road of wider socioeconomic redistribution and see the EU as a means with which to do that. It is not as simple as being in or out, so perhaps it is the “In or out of what?” question that caused more than a million Scots to mark a cross in the leave box. One EU member state is seeking to do what no other has done before—to leave and make it work.
I am pleased that the UK and the EU have made what is widely acknowledged and accepted as being sufficient progress on the first phase of talks. That progress will ensure that there is a distinct set of circumstances in Northern Ireland that will be respected by both sides. There has never been any desire to resort to a hard border between the north and the south, but anyone who has any real experience of the troubles will know that the matter is about much more than simple trade and customs borders. The deep and complicated historical difficulties merit a distinct solution, in my view, and to suggest otherwise is churlish and simplistic. As we start the second phase of negotiations, it is in everyone’s interests to tackle those difficult issues one by one and to find a mutually acceptable solution.
When I look back at 2017, my view is that much of the debate was often wasted on partisan politics, which got in the way of finding any common ground in tackling the issues around our exit from the European Union. However, we are about to enter the second phase of talks, so my hope is that the tone of discourse becomes more practical and constructive. I disagree with Mike Russell that it is a waste of Government, political or even civil service time. A profoundly important and difficult decision was made by the British people, and its delivery merits the attention of both Governments.
On a positive note, however, I believe that Conservatives have some common ground with the Scottish Government: I believe that there is a clear desire for a pragmatic deal on trade, which will be of benefit to all the UK. We both recognise the immense contribution that European migrants have made to Scotland, and to the rest of the UK, and we both want to build a constructive and positive relationship with Europe that goes beyond simply being trading partners or even historical political unions.
As someone who lived and worked in a number of European countries before I got into politics, my experiences of Europe are very personal, but my career shift has taught me that, as politicians, we are used to telling voters before elections that if they vote a certain way the outcome might be disastrous. As democrats, it is our duty to move on from campaign rhetoric, to accept the outcome of that vote and to do our best to make it work.
Could things have been pre-empted differently? In my view, yes—perhaps they could. Before the EU referendum took place, clearer plans could have been set out as to what should or could happen if a vote to leave was the result. Perhaps the result to leave came as a surprise to many people, and it will no doubt be among the contents of many future political autobiographies. I respect the fact that there are diametrically opposed views on Brexit even today. That said, whatever the outcome of the negotiations, we must work together to ensure that trade with Scotland’s largest market—the UK domestic market—is not disrupted.
Now is not the time for petty point scoring. Today’s debate, for the most part, reaffirms my faith—I hope not my naivety—that this Parliament will work constructively with the UK Parliament to deliver the best outcome that we can achieve as we enter this new era of politics in Europe.
It was very salient. I thank Stuart McMillan.
In closing, I say that I agree with that. Mike Russell reflected that in his opening comments, in which he acknowledged the work that Damian Green had done in setting up the JMC, and expressed the hope and desire that the new minister will continue that. I have every faith that the JMC will continue to work with Governments in all parts of the United Kingdom as we move forward. I hope that all members and parties will approach those discussions constructively.
I thank Joan McAlpine and the Culture, Tourism, Europe and External Relations Committee for bringing Brexit back to the Parliament today.
It is important that we debate the issue in this Parliament as the Brexit shambles rumbles on to its next chapter. It is also important to remember the catalogue of chaotic events that led us to where we are today. A Prime Minister won an election that he did not expect to win, and as a consequence had to call a referendum that he did not expect to lose. When he lost the referendum he lost his job, and a new Prime Minister who had supported the remain vote got the job of delivering the decision to leave. She, in turn, called an election that she could not lose, but in which she managed to lose her majority. She now finds herself in hock to a party that is committed to leaving, but that represents a part of the UK that voted to remain, and is four-square opposed to any borders in or around the island of Ireland, which is a circle that cannot be squared while meeting its requirement of a hard Brexit.
The latest episode is that of the leaked letter from David Davis. For the record, I must say that I am not surprised that the EU is surprised that the UK Government is surprised that the EU is preparing for an outcome that the UK Government has itself advanced, and continues to do so. Let us be clear that having no deal is the worst possible option, and the pretence—for political reasons—that it is anything else does nothing except to trash the last vestiges of credibility that the UK Government still has.
We have an official Opposition that has adopted Schrödinger’s Brexit as its official policy position: that is, being both in and out at the same time—being in favour of having all the benefits of the single market without being in it, and being as close as possible to the single market without actually recognising that we need to be in it to get the benefit of it. However, going by his stumbling performance on the radio this morning, at least the Scottish branch office manager understands that being in the EU is not a requirement of single market membership, which is something that the UK Labour leader seems unable to grasp. To be fair, Labour’s policy of creative ambiguity is one that may well get it through. By the time that anyone gets around to opening the box to see whether its Brexit position is alive or dead, it will be too late. So, on both sides there is lack of clarity and direction.
We heard from Joan McAlpine that the committee’s work in investigating the article 50 withdrawal negotiations found that the control and influence that the EU has over the negotiation process are profound. The EU designed the framework in which the negotiations will take place, in regard to both the first phase—covering the Irish question, finance and EU citizens’ rights—and the upcoming second phase. At every stage, the EU has been prepared and clear in its objectives, in contrast to the UK Government. The second phase can take place only if all measures agreed in the first phase are written in legal terms and translated into all member languages—a process that, as we heard, has hardly begun. That includes the UK guarantee of avoiding a hard border on the island of Ireland.
Negotiations must be finished by November 2018 to allow time for ratification in the European Parliament and the Parliaments of 27 member states, which is something in which this Parliament has no say and in which the UK Government tried to stop the Westminster Parliament having a say. As has been made clear, there will be no final trade agreement before the UK leaves the EU.
Let us take stock of where the UK Government is at this stage: there is no clarity on objectives, no route through the mess of contradictory red lines and political needs and wants, and no skills to negotiate a deal, or even to understand what is possible in that regard. Even if all those were in place, there is no time to deliver on any of it. Where it will end up, time will tell, but, month by month, we move closer to an exit date that is now barely 15 months away.
The transition that will follow, which is perhaps designed to kick the can down the road, will not delay the UK’s exit from the EU. However, when we have no idea where we are going, buying time is perhaps the only logical option.
Meanwhile, the Brexit process consumes all the time, focus and resources of the UK Government to the extent that the Prime Minister cannot even manage a reshuffle without it descending into a chaotic parody. The Prime Minister is so weak that she invites ministers in for them to tell her what job they want to do, and not the other way round.
Let us face reality. There is no such thing as a good Brexit. Brexit will hurt Scotland’s economy, cost Scotland jobs and growth, hurt our standard of living, place in great uncertainty the future of people from other EU countries who have made Scotland their home, and limit our freedom of movement to live and work in other EU countries—but at least we will have blue passports.
The committee’s work has made clear the truth of what we suspected all along. The UK Government is stumbling through the process without direction or clarity. The episode will not end well. Our job in the Scottish Parliament is to stand up for the people of Scotland and to clearly state that, whatever the question is, a hard Brexit is not the answer, that the people of Scotland did not vote for Brexit, that they do not deserve to have the shambles that there is visited upon them, and that membership of the single market and the customs union is essential to the future of Scotland. That is what we should continue to argue for.
I am very pleased to be able to take part in this Culture, Tourism, Europe and External Relations Committee debate. Members of other committees—Mike Russell has noted them—have also spoken in the debate, not least members of the Finance and Constitution Committee, whose views are particularly pertinent, given their recent report on the European Union (Withdrawal) Bill, as reported in today’s news. The Environment, Climate Change and Land Reform Committee, which is my committee, likewise has a significant interest in Brexit, given the raft of environmental legislation and policies that currently sits in Brussels.
In late November, the Environment, Climate Change and Land Reform Committee went to Brussels to meet EU officials and the missions of other countries, including those of Norway, Switzerland and Canada, to discuss various matters. Two immediate observations struck me on that visit. First, no one should underestimate the enormity and complexity of what we are trying to achieve by disentangling ourselves from the EU, not least in the face of the ideological purity with which the EU views its fundamental principles and the diversity of views that 27 member states inevitably possess. My second observation was that, notwithstanding all of that, the EU is a pragmatic beast that will endeavour to reach a practical outcome for both itself and the UK.
The second point was amply demonstrated by the accord that was reached between the Prime Minister and the EU President last month. As we all know, the UK and the EU concluded that sufficient progress had been made to advance to the second stage of negotiations. Agreements have already been reached on some of the most controversial questions—namely, on citizens’ rights, the Irish border and the financial settlement. In short, the UK Government has likewise confronted, listened to and acted on many of the legitimate issues that MSPs have grappled with, and it has reached agreement with the EU about them.
The Prime Minister has always been acutely aware of the concerns that have been raised here and in Westminster regarding EU citizens’ rights. Accordingly, a negotiated settlement with the EU has now been achieved to ensure the protection of the status of EU citizens post-Brexit.
Many people today and at other times have raised concerns about the Irish border. The Prime Minister has restated the principle that there should be no hard border between Northern Ireland and the Republic.
Those are a few examples, but I am confident that, when the Scottish Parliament and the Westminster Parliament raise proper and legitimate concerns in the future, the UK Government will listen and act when it comes to further negotiations.
What transpired in Brussels in December represents significant and substantial progress. From that, we can take heart that, likewise in the future, trade agreements that require to be negotiated will be resolved in due course. That may not be easy—in fact, it will certainly not be easy—and it will take time, but I am sure that a deal will be struck in the end.
I echo Jackson Carlaw’s views on the European Union (Withdrawal) Bill. Clause 11 requires urgent and substantive change. It does not respect the devolution settlement, and it is no surprise that it has deeply troubled MSPs of all political stripes. I welcome that that has been recognised by the UK Government, and I know that it is committed to respecting the devolution settlement. We on these benches will continue to take a constructive and pragmatic approach to help the SNP and the UK Government to reach a solution.
Mairi Gougeon mentioned the role of the ECJ. Four years ago, I had a unique experience as an advocate when I appeared before the ECJ to act—somewhat surprisingly—for the Scottish Government. I lost, unfortunately.
The Lord Advocate was my senior, but I will not blame him. The serious point is that the vast number of cases that come to the court are between member states and the Commission and, often, large companies. There are relatively few cases involving individuals, but I take the member’s points about the implications for those individuals who are affected, and she is absolutely right to say that the court has a role in family disputes.
A fundamental principle of EU law is that an individual can rely on their EU legal rights and seek redress in domestic courts. If the withdrawal bill achieves its aim of importing EU law into UK law, that will continue. Our courts routinely decide matters with reference to international law, where that is relevant. I believe that that will apply to ECJ jurisprudence, too.
Since I have been a member of this Parliament, we have taken part in a number of Brexit debates. We should not downplay its importance—it is a critical moment in our history that requires proper discourse—but every time the issue is discussed, it seems as though it is only the members on my benches who talk about the positive future for Scotland outside the EU and the opportunities that exist.
I am sorry, but I do not have the time.
Before Mr Russell reaches for his playbook of character taunts about our being unalloyed optimists—will it be Pollyanna, Pangloss or Mr Micawber today, I wonder?—let me deal with that issue head on. I am an optimist but, more important, I am a realist. Without doubt, the most realistic outcome in this situation is a negotiated deal that will allow us to get on with delivering a Brexit that will benefit the people of Scotland.
I very much welcome today’s debate and the work of the Culture, Tourism, Europe and External Relations Committee in taking forward its inquiry into the article 50 withdrawal process. I look forward to working closely with committee members in the coming year. I am sorry to disappoint some members in the chamber, but I will be joining the committee, not Neil Findlay, and taking part in its debates.
This afternoon’s debate has been a serious, wide-ranging discussion. It takes place in an ever-evolving landscape, as the committee convener, Joan McAlpine, set out. The process of exiting the EU is, first, highly regrettable and, secondly, the most challenging set of circumstances that we have faced in many years, but we must do the best that we can in the interests of our constituents. The complexity is not to be underestimated, and I appreciate the work of members of this Parliament—whether committee members, Government ministers or party leaders—to try to achieve the best set of circumstances possible for Scotland and the UK.
There are many opportunities for disagreements, accusations, political posturing and misrepresentation, but I hope that that does not hinder our ability to work together in the best interests of jobs, our economy, our legal system—as highlighted by Mairi Gougeon—human rights, the environment and all the areas that the decision will affect.
It is imperative that, while the debates continue, we focus on ensuring that we play an active part in securing the best possible deal for our constituents, with the security of jobs and the economy at its heart.
I acknowledge the concerns about how Scotland’s interests will be sufficiently protected. As Michael Russell said, Scotland must be involved and consulted. Although the UK Government is leading the negotiations, we depend on the work of this Parliament, the Scottish Government, the Secretary of State for Scotland and the JMC to ensure that as many of the clear benefits of EU membership as possible continue within the reality of leaving the EU.
It is not surprising that the Finance and Constitution Committee has concluded today that the European Union (Withdrawal) Bill is incompatible with devolution, and it is imperative that the Secretary of State for Scotland brings forward changes to the disputed part of the bill, regardless of future promises.
I turn to the work of the committee. I do not underestimate the challenges that there are, and have been, in monitoring and scrutinising the article 50 withdrawal negotiations and their implications for Scotland. I hope that the new year will bring greater clarity to our understanding of the impact on specific sectors and the significant implications for our economy and jobs.
At the end of last year, GMB Scotland published a report that it commissioned from the Fraser of Allander institute, which made an important point. It said:
“Most independent analysis has concluded that Brexit will weaken the UK’s (and Scotland’s) growth prospects in the long-run. But the implications could look quite different for particular sectors and companies and much will depend upon how policymakers respond.”
The process will require flexibility and, when necessary, a robust response from Government on supporting sectors that might need additional focus and others that might be able to exploit new opportunities, as Stewart Stevenson described. It is difficult to see beyond the challenges in the anticipated new tariffs and changes to the labour market but, as the Fraser of Allander report recognises, much will depend on the future policy responses of Government, and we must be prepared to respond positively. As part of the solution, the Scottish Trades Union Congress is calling for investment plans that are determined by employers and unions to be established for sectors that are most likely to be affected.
Persistent criticisms of the withdrawal process include the lack of clarity over negotiations, the limited ability of Parliament to scrutinise the decisions that are being made and whether those decisions are in the interests of the country, along with the lack of preparation by the UK Government for the impact of withdrawal. Those criticisms are all valid.
At the end of 2017, the talks between the UK Government and the European Union finally moved forward with the conclusion of phase 1. As outlined by Ross Greer, some issues of concern were addressed, especially with the guarantees to secure the rights of EU citizens in Scotland along with the rights of Scots living abroad. We know the value of EU migrants to our country, whose contribution is not just the £4.4 billion that they make towards our gross domestic product but their contribution to our way of life and our society.
Although those guarantees are welcome for those whom they cover, there are still concerns about the skills shortages that Scotland could face in the future. There are an estimated 115,000 EU nationals in employment in Scotland, which represents 4 per cent of the Scottish workforce. Farmers have warned of produce rotting in fields because of a lack of people to harvest it. We have many skilled EU nationals working in our health and social care sectors and, with an ageing population, the demand will only grow. Therefore, we must ensure that we have an immigration system that works for our economy, as Pauline McNeill argued earlier in the debate. Previously, I was on the cross-party working group that looked at post-study work visas, building on Jack McConnell’s fresh talent initiative. We need to ensure that we can find workable solutions and a new immigration policy that accommodates the needs of our economy.
As soon as one hurdle is cleared in the negotiations, we quickly approach another. Dr Tobias Lock’s recent briefing paper for the committee outlines the complexity of the negotiations and the decision-making process and highlights the tension between the political and the legal processes. While politicians are occupied with the political debate, we can often forget that a tightly bound legal process governs what might be politically achievable.
We must work to retain the benefits of the single market in a way that supports our economy. We must look for a transitional period to be put in place that ensures that the jobs of those working in the Scottish economy are protected in any outcome. To crash out of the EU without such a deal would be disastrous and would risk causing the most harm to the most vulnerable in society.
The committee has heard about the impact of Brexit uncertainty. Trade unions report that Brexit is being used to justify low pay offers in the private sector. The STUC has raised concerns about Brexit leading to increased austerity and has emphasised that pressure must be put on the UK Government to maintain and improve workers’ rights, health and safety provisions and wider social protections post-Brexit. Evidence shows the importance of retaining the Human Rights Act 1998 and of remaining a signatory to the European convention on human rights.
Today’s debate is a staging post in the work of the committee. I have welcomed the opportunity to reflect on its progress so far and on the challenges ahead.
Thank you, Deputy Presiding Officer. I would like to start by thanking Joan McAlpine and the Culture, Tourism, Europe and External Relations Committee for bringing this debate to the Parliament this afternoon. I think that it has been a useful start to the year’s proceedings.
In the same spirit in which I think Joan McAlpine gave her speech and that we heard from Michael Russell, Neil Findlay and Jackson Carlaw, I would like to be positive—or at least to start positively—and say that we start 2018 in a much better position than we started 2017 when it comes to Brexit, debating Brexit and thinking about Brexit.
At this time last year, there had been no progress at all, even on phase 1. Now, as we have heard, phase 1 has been completed satisfactorily. At this time last year, the SNP was talking only about a differentiated deal for different parts of the United Kingdom, which, in my judgment and the judgment of a lot of members, would have been disastrous for Scotland and indeed for the whole of the UK. At this time last year, the UK Government had not even begun to set out what its negotiating position would be, and we now have a very clear set of negotiating positions from the UK Government that were set out amply by the Prime Minister both in her Lancaster House speech in January last year and again in Florence in September. There is much to be positive about.
On phase 1, we have not merely a conclusion but a conclusion that I think we should welcome, particularly with regard to the statements around Northern Ireland. It is incredibly important that there is full regulatory alignment between Northern Ireland and the Republic of Ireland, so that the north-south elements of the peace process can continue.
It follows from that thathat is incredibly important that there is close regulatory alignment between Ireland—and therefore the whole of the EU—and the whole of the UK. Just as at this time last year we were opposing the SNP’s proposals for a differentiated deal for Scotland, so too would we oppose any proposals for a differentiated deal for Northern Ireland. What goes for Northern Ireland must go for Great Britain too—it must go for the whole of the United Kingdom. If that means that there needs to be close regulatory alignment post-Brexit between the United Kingdom—all of it—and the European Union, then that, in my judgment, is all to the good.
I am going to come to the European Court of Justice in a few moments, because I want to respond to a number of remarks that were made by Mairi Gougeon in what I thought was a really important contribution to this afternoon’s debate, although Donald Cameron stole some of my thunder, which is why I rudely intervened on him.
We have also, I think, seen a much more constructive approach between the Scottish Government and the United Kingdom Government in the last three or four months than we did in the first half of 2017. For my part, I warmly welcome that.
In a few days’ time, we will debate formally in this Parliament the Finance and Constitution Committee report that was published today on the European Union (Withdrawal) Bill. I am the deputy convener of that committee, so in that debate I will have to play a role as deputy convener. Let me take that hat off for a moment and just speak as a Scottish Conservative member of this Parliament about the withdrawal bill.
I am deeply frustrated and disappointed that the United Kingdom Government has not yet brought forward the amendments that it knows it needs to make, particularly—but not only—to clause 11 of the withdrawal bill, in order to obtain this Parliament’s consent. It is imperative that the legislation is passed by Westminster in order to secure a smooth Brexit and it is imperative that the legislation is passed by Westminster with this Parliament’s consent.
Both the Scottish Government and the United Kingdom Government want that and it does not have to be difficult. We have been talking, publicly and privately, about a series of solutions to the clause 11 problems for months. A solution around common frameworks and respect for the devolution settlement is on the table and it is not beyond the wit of either Government to ensure that thathatlution is accelerated and brought forward sooner rather than later. We had hoped and, indeed, been led to expect that the problem would have been fixed by report stage in the House of Commons. It is frustrating that it is being kicked into the House of Lords.
However, I remain optimistic—I said that I was going to start out positive and I am still going to be positive. I remain optimistic that a solution to the problem will be found and, indeed, I think that—to all intents and purposes—the solution has already been found. I certainly pledge myself and, on behalf of everybody on the Scottish Conservative benches, I pledge my party to continue to work with the Scottish Government, Scottish Government ministers and the United Kingdom Government to ensure that we get that solution sooner rather than later.
I want to turn to some of the points that have been made during the debate, particularly those that Mairi Gougeon made in her really interesting and, in some respects, excellent speech about the European Court of Justice. The ECJ will continue to play a role in UK law in all the jurisdictions of the UK after Brexit in the manner that Donald Cameron described, but the ECJ is also part of the problem—it is partly why so many people in the UK voted to leave the EU.
For 50 years, the European Court of Justice has not enforced the rule of European law; it has enforced what it wants European law to become. I was a remainer—I still am; I voted to remain in the EU and, if I could vote again, I would still vote to remain in the EU, but I would vote to do so despite and not because of the ECJ.
I am afraid that I do not have time.
Time after time, in all sorts of fields—from citizenship to the free movement of goods to competition law—the European Court of Justice has deliberately gone out of its way to bend the rules of European law so that they do not say what the nation states of the EU said that they should say in the treaties. If the ECJ had not done that, we might not be in quite the predicament that we are in at the moment. That is the only negative point that I want to make.
I want to end on a positive and to endorse the view that a number of members from across the chamber—including, in particular, Donald Cameron and Jackson Carlaw—have expressed: we must be pragmatic as we move forward. We must mitigate the risks of Brexit and we must not be naive or complacent about what those risks are, but there are also opportunities to seize. An issue that we have not yet heard enough about in this Parliament is what kind of fisheries policy we want to pursue for Scotland post-Brexit. One way or another—regardless of whether it is subject to a common framework—that will be our choice. Another issue that we have not heard enough about is what kind of agricultural regime we want to pursue for Scotland—what kind of agricultural subsidies do we want for our farms and crofts? Those are questions that we have not had to think about for the past 50 years because they have been thought about for us by the EU.
As well as mitigating the risks, we must seize the opportunities that exist. If we can do that constructively together, across the political divide, we will get the Brexit that we all deserve.
I agree with Adam Tomkins, who was keen to make a positive contribution. So am I; therefore I will get my negativity out of the way immediately. I recommend that Rachael Hamilton give up on her absolute obsession with the union. She is a woman who is utterly obsessed by the union and cannot make a speech without the union being absolutely at the centre of it. I commend to her that she give up that approach in 2018 and try to widen her horizons, which are terribly narrow.
I now come to the positive part of my speech. It has been a better debate. Adam Tomkins was right to say that the debate has been much better than the one that we were having 12 months ago. However, I will make absolutely clear the Scottish Government’s position on differentiation, because it is not precisely as Adam Tomkins described it. Our position is that membership of the single market and membership of the customs union are essential for the future of Scotland. It would be preferable for every part of the UK to be in the single market and the customs union, and I take the point that Mr Tomkins made about regulatory alignment across the UK. That issue is being presented in an interesting but difficult way. I will come back to that point in a moment, because it relates to an issue that arises from what Mairi Gougeon and Donald Cameron said about the law, which revealed an interesting divergence of view between the political culture in the UK and the political culture in Europe.
However, if regulatory alignment is not possible—if it is not delivered by the Prime Minister—differentiation will be essential, as a minimum. I do not want there to be any misunderstanding about that. We cannot envisage circumstances in which Scotland would be separated from the single market and the customs union in the way that is being talked about. That would be disastrous.
Jackson Carlaw, Donald Cameron and Adam Tomkins made generous speeches on the issue of clause 11. I hope that the debate has been a better tonic to Jackson Carlaw than any migraine tablet. Its high standard will undoubtedly have resulted in his forgetting the pain that he is suffering. His statement that clause 11 is “not acceptable” to the Scottish Conservatives, Donald Cameron’s point that change to clause 11 is “urgent” and Adam Tomkins’s honest view that clause 11 must be changed and his disappointment that it has not yet been changed are very helpful. I just hope that they are being listened to.
The necessity here is action, and we must see action. A clause must be negotiated—it cannot be imposed—and we stand ready to negotiate. If that does not happen—I repeat what I said in my opening speech—we will move to a continuity bill. I am happy to discuss that at a future date; indeed, it is referred to in the Finance and Constitution Committee’s report.
We will have to see what transpires over the next few weeks, but the clock is ticking. I see this afternoon that the Scotland Office does not believe that an amendment to clause 11 can be rushed. My definition of “rushed” does not mean six months after the publication of the bill. I think that the timescale has been more than adequate. Indeed, there was a perfectly good amendment on the table that was drafted by us and the Welsh Government. There are only a few more weeks when the bill will be in either the House of Commons or the House of Lords, so some urgency needs to be applied. I look to David Lidington, in particular, to bring that urgency.
Let me comment on Neil Findlay’s speech. I agree substantially with what he said—which is something that I never thought I would hear myself say in the chamber. Clearly, life is going to change from now on, either for Mr Findlay or me or for both of us. I disagree with one or two things that he said, but I am not going to labour those at the moment. The issue of the single market and the customs union might come between us, and I cannot understand why there should be freedom of movement for capital but not for workers—we will have to address that issue. However, Mr Findlay highlighted the central dilemma of the difference between the political systems that exist in the UK and in the EU. David Allen Green, the legal commentator, drew attention to that some time ago, and I have thought about it a great deal since I read his first comments.
The issue is that, in Europe, there is a political discussion, then a legal solution and the law is then applied. That is particularly true in the negotiations, where a very legalistic approach is taken. However, the UK political system is based on politics continuing, with political fudges and ways in which we try to get the best out of a circumstance and never tie anything down completely. The problem is that those two approaches are incompatible. At the end of the day, when we write down the agreement, it must be legal; we cannot fudge the agreement. That is undoubtedly what we are going to see in the Northern Irish situation, because we cannot fudge the agreement about what is inside a lorry when it crosses the border—that must be absolutely clear.
As time goes on, we will find innumerable issues that will have to be resolved with legal clarity, which is why Mairi Gougeon’s speech was important. Like Adam Tomkins, I commend her speech. However, I do not agree fully with the interpretation of the problems in the ECJ that was presented by Adam Tomkins. An honest assessment of the ECJ would bring him to an interesting conclusion. The argument is always that the ECJ is against the UK and that it judges all the time against the UK. I am not saying that that is Adam Tomkins’s argument, but it was a leave argument that the ECJ was prejudiced against the UK and that the UK always lost cases. In fact, although the UK lost about 75 per cent of the cases brought against it by the EU, France lost 90 per cent of its cases. The reason for that is that the EU brings cases when it thinks that it is going to win, not when it thinks that it is going to lose. In fact, the UK brings cases and wins them. For example, it has won cases against France on agriculture issues and has won cases that the City of London has gained advantage from because the rest of Europe has been found to be out of step.
The tabloid view of the ECJ and its horrors was rightly worked against in the evidence that David Edward and others gave to the Culture, Tourism, Europe and External Relations Committee. Mairi Gougeon was absolutely right to draw attention to that in the debate, because, despite Donald Cameron’s optimism about the way in which things will operate, the people who will suffer from the UK’s withdrawal from the ECJ are individuals who require the Brussels convention on family law in order to live their lives. They will find it harder to rely on those European systems.
There have been one or two other exciting and memorable events in the debate but none, as Tavish Scott pointed out, as monumental as Stewart Stevenson getting something wrong. It was an epoch-making moment that Tavish Scott drew attention to in his speech, but Stewart Stevenson missed it because he was not in the chamber. I therefore have pleasure in repeating it. I commend Neil Munro and the Para Handy stories to Stewart Stevenson, although I am sure that he has them by memory. Indeed, Neil Munro was probably his great-uncle. [
.] There is one story about the fact that the two new years are kept at Cairndhu, and two new years are also kept at Burghead. That is where I think the confusion has arisen, because that is also a fire festival. However, the old new year is not part of Up Helly Aa; it was perhaps a ceremony that arose from the Christmas celebrations, but it is not a new year celebration. I think that we will all remember this afternoon for the error by Stewart Stevenson, though Mr Findlay has another reason to intervene.
I am sorry to be negative, but Mr Findlay contradicts himself. There was a time when, according to Mr Findlay, I could get nothing right. In all these circumstances, I think that Mr Findlay has, unfortunately, shot himself in the foot.
It has been a more positive and more memorable debate. Ivan McKee’s description of the process as having previously been in an episode of a soap opera was a wonderful contribution. However, at the heart of it, the dilemma that we are going to face during the year is this: we face a very hard process. I do not believe that there are good things to be had from it—I must be honest about that—and the Scottish Parliament is going to have to work together on it. The debate has perhaps been a slightly encouraging start, but there is a long way to go.
Today’s debate has reflected the many different ways in which the economy, the institutions and the cultural life of Scotland and the
United Kingdom are intertwined with those of our nearest neighbours and with the European Union itself. The work of the Culture, Tourism, Europe and External Relations Committee over the past 18 months has shown that the Brexit process and the creation of a whole new set of relationships outwith the EU will be complex and difficult and will throw up unintended and unexpected consequences.
That is confirmed, too, by the report that Dr Tobias Lock prepared for the committee on the processes for agreeing a transition, negotiating a future relationship and reaching a final agreement. As well as being huge undertakings in themselves, those processes risk drawing attention and resources away from the many other challenges that Governments and Parliaments face every day.
It was remiss of me not to pay tribute to the member for his contribution while he was a spokesperson on Brexit for the Labour Party, when I worked with him, as well as for the contribution that he is now making in the committee. I wanted to put that on the record.
It is very kind of Mr Russell to do so, and I thank my fellow committee members who have made such comments in the course of today’s debate. In case I do not have time at the end of my speech—given your attention to such matters, Presiding Officer—I also thank Joan McAlpine, the convener, and all the members of the committee for the hard work that they have done, especially given the work that I know lies ahead.
I, too, congratulate the member on his contribution to the committee and, indeed, the forensic approach that he has taken to all our inquiries, which has made such a difference to some of the reports that we have produced.
This is in clear danger of turning into an even more consensual contribution than deputy conveners of committees are wont to make, but I very much thank the convener for those comments.
In the work that the committee has done over the period, we have discovered layer upon layer of complexity in the Brexit process. For example, in September, we went to Brussels to discuss with Michel Barnier the question of transitional arrangements, and we discovered at that time that, although he was ready to talk about transition, the United Kingdom Government had not yet asked him to do so and no formal request for such transition had been made. However, we have now reached that point. There will be a negotiation on transition and the transition will run from March 2019 to the end of the current multiannual financial framework period, which the UK is now fully committed to funding, and therefore to the end of December 2020.
As Mr Barnier told us in September, that means that, in a transitional period—an implementation period, if you will—the United Kingdom will continue to be subject to EU law and all regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will continue to apply, as will the jurisdiction of the European Court of Justice, the rules of the single market and the customs union and the freedom of movement of people, goods, capital and services. Britain, in other words, will continue to have the obligations of a member state without the powers of one.
As Lord Kerr of Kinlochard told the committee, a transition offers a stay of execution in that the rules of engagement for British businesses in Europe will continue over the next three years instead of only the next 15 months, but it is too soon to know whether that deferral will help to mitigate the impact of Brexit on the British economy. It is too soon to know that because transition will be useful only once we know what it is that we are going to transition to. The committee has pursued that issue.
Just before Christmas, the UK Government discussed what kind of relationship it wants to see between Britain and Europe. However, it has not yet spelled out its potential desired outcome. The reports that emerged spoke of “aiming high” for “a bespoke agreement”, but they did not say what that agreement would look like. Working to achieve a bespoke agreement surely has to start with a clear view of the intended outcome, which we do not yet have—at least not in the kind of detail that would allow an international treaty to be negotiated and agreed.
Like others elsewhere, the committee also pursued the question of what detailed sectoral analysis had been done of the impact of Brexit. As others have been, we were forced to conclude that no such analysis exists. It is difficult to understand how anyone can aspire to design a bespoke agreement without knowing the desired outcome. As Tobias Lock highlights in his report, a new treaty will need all member states to ratify it in line with their own constitutional arrangements—and the agreement with Canada last year showed just what a tortuous process that can be.
We have a duty to seek to understand the positions that are taken by both parties and what they might mean, and that goes to the heart of the debate. As things stand, the UK Government’s red lines rule out freedom of movement, the jurisdiction of the ECJ and substantial financial contributions to the EU while ruling in regulatory divergence and an independent trade policy. As Michel Barnier told the European Council last month, those red lines mean that the UK cannot have a trade relationship on the model of the EEA, the Swiss bilateral agreements, the association agreement between the EU and Ukraine or the customs union between the EU and Turkey. If that is the case, a bespoke deal must surely mean something more like the third-party trade agreements that have been reached with countries such as Canada and South Korea, which have much less access than we enjoy today, particularly where services are concerned.
As Michel Barnier emphasised to us in September, the balance between rights and obligations means that Britain cannot have the same access to the single market as Norway but only the obligations of Canada. It will be for the committee this year and next year to establish just what UK ministers are seeking to achieve and what they think a bespoke agreement actually means.
It is also important to make the point that, if the single market is indivisible, there cannot be one set of rules governing access to the single market and the customs union for Great Britain and another set of rules for Northern Ireland. The convener has quoted the UK Government’s commitment at the end of phase 1 to protect the Good Friday agreement and to see no return to a hard border, with
“full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.”
If Northern Ireland is to be fully aligned with all or most of the rules of the single market and the customs union, the rest of the United Kingdom must also be. Adam Tomkins’s closing remarks on those matters were in line with much of the evidence that the committee has heard recently. The choices that need to be made are the reason why clarity about the objective that is being pursued by the UK Government matters so much, and it will continue to be of critical importance to the work of the committee and the Parliament as a whole.
On the one hand, there are the red lines, which imply that Britain will diverge from European standards, leave the customs union and seek separate trade agreements with third countries. On the other hand, commitments given on Ireland can be delivered only by continued alignment with single market regulation across a wide range of areas, continued access for Irish citizens in the UK to European justice and free movement across the Irish border and the Irish Sea. That is the choice that the United Kingdom will have to make this year. Either we seek a future aligned with Europe, protecting access to the single market and maintaining existing rights and obligations, or we set out in a quite different direction.
The Scottish Parliament must continue to scrutinise the actions of UK and Scottish ministers in dealing with those matters and must seek to ensure that the right choices are made in the months ahead.
At the conclusion of the debate, I will step down as the deputy convener of the committee. With your indulgence, Presiding Officer, I therefore thank Dr Katy Orr and the clerking team as well as all those who have supported the committee’s work. I also thank my fellow committee members. A good job has been done so far in difficult circumstances, but there is clearly still a big job to be done.