European Union (Withdrawal) Bill: Update

– in the Scottish Parliament on 27th February 2018.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

T he next item of business is a statement by Mike Russell, which is an update on the European Union (Withdrawal) Bill. The minister will take questions at the end of his statement, so I encourage all members who wish to ask a question to press their request-to-speak buttons now.

Photo of Michael Russell Michael Russell Scottish National Party

It is not typical that a minister comes to the chamber to tell members that he or she regrets the introduction of legislation, but that is the situation in which I find myself today. I regret that the Scottish Government now feels compelled to introduce the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. I regret it because it is about preparing for an event—the United Kingdom’s leaving the European Union—that I do not wish to happen and which is, of course, contrary to the wishes of the people of Scotland, 62 per cent of whom voted to remain in the EU. I also regret it because it never needed to come to this.

It is important to set out how we have reached this situation and what are the options that are now before us. When the UK Government published its European Union (Withdrawal) Bill in July 2017, it was no surprise that its approach to devolution was careless and lacking in understanding. After all, since June 2016 the devolved institutions, including this Government and this Parliament, have been denied any meaningful input to the Brexit process, despite the clear and agreed terms of reference of the joint ministerial committee (European Union negotiations), of which I am a member.

There was no consultation on the content of the European Union (Withdrawal) Bill prior to our seeing it in finished form two weeks before its publication. That was contrary to all good and established practice with bills that will require legislative consent from the Scottish Parliament. We would have been justified, when the European Union (Withdrawal) Bill was published, in walking away from such a boorach, but instead—in this, I pay tribute to all the parties in this Parliament—as a Parliament, we have put in a great deal of time, resource and effort to trying to make it a workable piece of legislation to which we could all agree.

No matter how much we oppose Brexit, a withdrawal bill is—we have always made this clear—a proper and necessary step: our laws must be prepared for the day when the UK leaves the EU. If we were to do nothing, laws about matters such as agricultural support and the rules that ensure our high food standards would fall away entirely, and many others would stop working as they were intended to work.

However, the

European Union (Withdrawal) Bill

, which has now been passed by the House of Commons despite amendments that were tabled by the Scottish and Welsh Governments and by the Opposition parties, would allow Westminster to take control of devolved policy areas in order—according to the UK Government—to allow UK-wide arrangements or frameworks to be put into place after Brexit. Before I address the detail, it is important to stress that fundamental point. The whole debate is about the existing powers of this Parliament in relation to policy areas including farming, fishing, justice and the environment, for which this Parliament already has responsibility.

Therefore, the discussion about the way forward is not an abstract or arcane one. First and foremost, it is about protecting the devolution settlement that the people of Scotland voted for so decisively in 1997. However, it is also about the best way to run important national and local services—for example, our health service. It is about the best way to provide agricultural support, such as with the less favoured area support scheme payments that are essential in Scotland but are not used in England; the best way to devise procurement rules that are tailored to Scottish needs and Scottish business; and the best way to protect and enhance our particular environment—consisting, as it does, of large areas of coast and sea.

At present we have in these islands a unitary but not uniform market. With the freedom to innovate, we have made world-beating climate change legislation, we are in the process of implementing minimum unit pricing for alcohol and we have been able to tailor business support to specific business need.

We have always been clear that we accept in principle the need for UK-wide frameworks on some matters. We have worked constructively with the UK and Wales Governments to investigate those issues and explore how such frameworks would work. However, the key priority for us is to ensure that those are always in Scotland’s interests—as members would expect.

Accordingly, what is covered by any UK frameworks, how they are governed and any consequent changes to the devolution settlement must be made only with the agreement of the Scottish Parliament. It is simply not acceptable for Westminster unilaterally to rewrite the devolution settlement and to impose UK-wide frameworks in devolved areas without our consent. That is why we and the Welsh Government have been working so hard to ensure that the

European Union (Withdrawal) Bill both protects devolution and does the job that it is supposed to do.

Opposition to the

European Union (Withdrawal) Bill as it is currently drafted extends far beyond the Scottish and Welsh Governments. This Parliament’s Finance and Constitution Committee concluded unanimously that clause 11, which constrains devolved powers, is

“incompatible with the devolution settlement” and, importantly, that clause 11 is not

“necessary to enable the agreement of common frameworks”.

In the House of Lords, the former head of the UK civil service called the treatment of Scotland, Wales and Northern Ireland in the

European Union (Withdrawal) Bill

“indefensible”. Lord Hope, a former deputy president of the Supreme Court and the convener of the cross-bench peers, even described the bill’s approach to devolution as having “a touch of Cromwell” about it. He has also retabled the joint Scottish and Welsh Government amendments for consideration during the Lords stages of the bill.

The Scottish Parliament’s first Presiding Officer, Lord Steel, described how the

European Union (Withdrawal) Bill threatens Scotland’s

“stable and sensible form of government.”—[

Official Report, House of Lords,

30 January 2018; Vol 788, c 1426.]

Faced with such an array of views from all parties, the UK Government accepted that the

European Union (Withdrawal) Bill must change. It is regrettable that despite its promise, it has failed to table an amendment in the House of Commons, although last week it finally put a proposal on the table for the Lords. However, that new amendment would still allow the UK Government unilaterally to restrict the Scottish Parliament’s powers through an order made in the UK Parliament, without requiring the consent of either the Scottish Parliament or Government. Under the latest proposition, which was set out publicly by David Lidington yesterday, the UK Government would decide whether the Scottish Parliament’s powers in relation to any area that is currently covered by EU law should be constrained.

As a result, the new proposal remains unacceptable to the Scottish and Welsh Governments. UK ministers insist that we have nothing to worry about because they will consult the devolved Administrations before deciding whether to constrain the powers of the Scottish Parliament. However, the track record on consultation is not encouraging: the UK Government has failed to meet similar commitments to Scotland in relation to the whole Brexit process.

It is impossible to take seriously the UK Government’s argument that it needs to constrain the powers of the Scottish Parliament for economic reasons. It is, to be frank, risible that UK ministers, who are pursuing an economically disastrous hard Brexit, say that they must reserve the right to impose UK-wide frameworks in devolved areas for reasons of economic stability.

Despite all that, there remains a basis on which to reach agreement, and the Scottish Government remains committed to that objective. The Scottish and Welsh Governments will meet UK ministers next week to continue to discuss the changes that must be made. We will suggest amendments to the UK Government’s proposals that would make them work with, not against, devolution.

However, as a Government, we recognise the reality of the position in which we find ourselves. If the UK Government does not change its position, we will be faced with legislation to which we cannot recommend that the Scottish Parliament gives consent. In that situation, we believe that the constitutionally correct position, consistent with the devolution settlement, would be for the UK Government to remove from the

European Union (Withdrawal) Bill matters that are not consented to, and for this Parliament to make its own provisions in those matters. That is why we believe that it is incumbent on the Scottish Government to provide an alternative means of ensuring legal certainty and continuity in areas of policy that are within the competence of this Parliament, in the event that the UK leaves the European Union. That is what the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, which we have introduced today, will do.

Similar steps are being taken by the Welsh Government, which published its own very similar continuity bill earlier today. My Welsh counterpart, Mark Drakeford, has just made a statement to the National Assembly for Wales, setting out his Government’s proposals. The continuity bill will, if passed, retain our EU-derived law and give the Scottish Government and Parliament the powers that they need to keep those laws operating. It will assert this Parliament’s right to prepare our own statute book, so that the same rules and laws will apply as far as possible after withdrawal.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill has been introduced today to ensure that it can be put in place prior to the final passage of the European Union (Withdrawal) Bill. That will be essential if this Parliament decides not to give the Westminster bill legislative consent.

The Minister for Parliamentary Business has, accordingly, written to you, Presiding Officer, proposing an emergency timetable, which will be put to the Parliamentary Bureau and which I hope Parliament will agree to later this week. That timetable proposes that all stages of the bill take place in plenary session, which will enable all MSPs to participate. Members will also be able, if their committees so chose, to take evidence on the bill, and I will make myself available to any such committee at any time. The period of scrutiny will be shorter than normal, but there needs to be intense examination of the proposals, and the Scottish Government will do everything that it can to enable that.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is contingency planning. It provides a sensible scheme for preparing devolved law for withdrawal from the EU. However, if the UK Government’s European Union (Withdrawal) Bill can be agreed, and if this Parliament consents to it, our continuity bill will be withdrawn. Even if the continuity bill is passed by this Parliament, it contains provisions for its own repeal. If a deal can be reached with the UK Government, we would be able to come to Parliament with a proposal to give consent to the European Union (Withdrawal) Bill, and to repeal this one.

Presiding Officer, let me turn, finally, to your statement on the bill’s legislative competence. The Parliament will, I am sure, wish to know that the Presiding Officer has said that, in his view, the provisions of the bill are outwith the legislative competence of the Scottish Parliament. He is entitled to that view, but we respectfully disagree. Indeed, I understand that the Welsh Presiding Officer has reached a different view from the Scottish Parliament’s Presiding Officer, and has issued a certificate of legislative competence.

Scottish ministers are satisfied that it is within the powers of this Parliament to prepare for the devolved legislative consequences of the decision by the UK to leave the EU. We do not agree with the Presiding Officer’s view that it is “incompatible with EU law” to legislate in anticipation of what is to happen when EU law no longer applies. EU law itself envisages that a member state may withdraw from the EU in an orderly manner that is conducive to legal clarity and certainty.

Under the Scotland Act 1998, we can introduce bills to Parliament only when we are satisfied of that. For the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, the Deputy First Minister has made a statement to that effect. As the ministerial code makes clear, any such statement must have been cleared with the law officers. I confirm—the ministerial code allows me to do so—that the Lord Advocate is satisfied that the bill is within the legislative competence of the Parliament. Accordingly, the Lord Advocate will provide a written statement to that effect later today and, subject to Parliament’s agreement, he will make an oral statement in the chamber on the bill tomorrow and be open to questions on it. To be clear about what that means, I say that the Presiding Officer’s statement on legislative competence does not in any circumstance prevent the Scottish Government from introducing or progressing a bill.

By triggering article 50, the UK Government has put the UK on a path that leads out of the European Union. As I have set out, we have a duty to protect and preserve the areas of EU law that are within the responsibility of this Parliament. If we do not make those preparations now and we cannot agree to the UK’s withdrawal bill, we would have to wait until we had already left the EU, and EU law had stopped applying in Scotland, before this Parliament could take any necessary precautions. That would be an unacceptable basis on which to invite Parliament to do essential preparation.

Article 50 has been triggered. Without a drastic change of circumstances—which, of course, many of us still hope for—it is, regrettably, more than likely that the UK is leaving the EU. The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is a necessary response to that fact.

We recognise that the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is novel, but we should not be surprised that an event such as EU withdrawal is giving rise to novel legal situations. This is the first time since the reconvening of the Scottish Parliament in 1999 that a Government has introduced a bill for which the Presiding Officer has not been satisfied as to its legislative competence. We recognise that, and we are mindful of what a serious moment this is.

However, the fundamental point cannot be escaped: the issue is too important for it to be either my decision, or that of the Presiding Officer, whether the bill is passed. All of us in this chamber have a duty to debate the issue over the coming weeks. All MSPs can listen to the arguments, and then we can all collectively decide whether the bill should become law. It will be a decision not of the Scottish Government but of this, our national Parliament. That is how it should be, and that is why we are introducing the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

I began this statement by saying that I regret having to introduce the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, and I still do; I regret what appears to be the unfolding disaster of Brexit. In my active front-line political life, which has lasted for more than 30 years, I have never known a time of greater instability, nor a time in which it has been harder to predict what lies ahead. However, the core issue for this Parliament is simple: our primary duty is to serve the people of Scotland and to protect their interests. It is our obligation—indeed, it is our duty—to protect the devolution settlement for which the people of Scotland voted. That is what we are endeavouring to do, despite all the difficulties.

I welcome the cross-party agreement that there has been on that substantial point and I hope that it can continue, despite the pressures on it. It is in that spirit that I have made this statement to Parliament today. [

Applause

.]

The Presiding Officer:

The minister will now take questions.

Photo of Adam Tomkins Adam Tomkins Conservative

I thank the minister for early sight of his statement and Mr Findlay for even earlier sight of what was likely to be in it. In the Scottish Conservatives’ view, the bill is both unwelcome and unnecessary, but I will start with where we agree. We all agree that withdrawal from the European Union will require a significant rewriting of large parts of our statute book. We all agree that the European Union (Withdrawal) Bill, which undertakes that task, is deficient and requires to be amended to bring it into line with devolution in the United Kingdom.

We also—all of us—have welcomed what until now has been the constructive and mature approach adopted by both the Scottish and the United Kingdom Governments in the negotiations to fix the withdrawal bill so that it is fit for purpose. A fix is within reach. Both Governments have compromised and have indicated that agreement is close. We are not there yet, but it is close. That is the climate of constructive, serious engagement in which the Scottish National Party now introduces a continuity bill, and that is the reason why we, on the Conservative benches, consider its introduction today to be both unwelcome and unnecessary.

In the light of that, I ask the minister the following specific questions. First, what reassurance can he give the chamber that his Government’s continuity bill will help and will not hinder the speedy resolution of the negotiations with the UK Government on amending the withdrawal bill? Secondly, what can he say about the way in which the SNP has shared its proposals for a continuity bill with the UK Government and, indeed, with Opposition parties—although perhaps I should ask that question of Mr Findlay—in advance of its publication? Mr Russell repeated in his statement, a few minutes ago, his familiar complaint that the UK Government did not consult him on the withdrawal bill. In evidence to the Finance and Constitution Committee, Mr Russell told me that he would share the continuity bill with UK ministers in advance of its publication. Did he do so, or is that another broken promise?

Finally, the continuity bill is plainly a constitutional matter. When legislating on the constitution—if, indeed, it is within our legal competence to do that at all—we should proceed carefully and not in haste, yet the bill is to be fast tracked. How can the minister think that fast tracking constitutional legislation through the Scottish Parliament is an appropriate way in which to proceed?

Photo of Michael Russell Michael Russell Scottish National Party

I thank Adam Tomkins for those questions and will give him the positive answer, first of all.

I give him a reassurance that we will continue to seek a resolution with the UK Government, but we are in a position that the Welsh Government is also in. If we do not take this contingency step today, it will be too late to take it. We should be commended for our restraint in holding off for so long. We have held off because we have endeavoured to get a resolution, but the clock is ticking and we must introduce the bill now if we are to have any prospect of putting it in a way and in a timescale that are complementary to the parts of the European Union (Withdrawal) Bill at Westminster that relate to reserved matters. That is how the bill will operate.

If the bill is passed and given royal assent, and if it comes into operation, it will deal with devolved issues whereas the UK bill will deal with reserved issues. The bill is constructed as it is so that it can fit in neatly with those concerns. We are now at the stage at which we must introduce it. I accept that we should take our time in so doing, but we must get the bill in place so that the two bills can move together. That is what we are endeavouring to do.

On the matter of our sharing the bill’s proposals, I accept that trust between us and the UK Government is at a low ebb. If members doubted that, they should have read David Lidington’s speech on Monday and the press coverage over the weekend. Having gone to the JMC on Thursday and having been assured of the UK Government’s good will and then having been denounced on the front pages of

The Daily Telegraph and in David Lidington’s speech on Monday, I find that there is perhaps not a trusting relationship.

I am glad to say that a copy of the bill is now in David Lidington’s hands. Perhaps he will look at it and consider whether the best next stage is to have a conversation about the small but significant gap that still exists in negotiations—not just between me and him, but between the Welsh Government and him—on the issue of agreement, as I have indicated. We cannot simply be consulted on our powers; we must agree or consent to the proposed changes. That is a small matter, and I urge Mr Tomkins to urge his colleagues in the Tory party to take that small step.

Photo of Neil Findlay Neil Findlay Labour

I t hank the cabinet secretary for his statement and offer my apologies for my appalling keyboard skills—mea culpa.

The Government’s handling of the whole Brexit process has been shambolic from the beginning. The latest development lies squarely with the failure of David Mundell and Ruth Davidson, as the Scottish Tory leader, to deliver on commitments that were given to resolve issues around the devolution of powers from the EU. Mr Mundell and Ms Davidson gave clear commitments that outstanding issues around the transfer of powers would be resolved in the House of Commons and they then whipped every Scottish Tory MP to vote against Labour’s amendment, which would have delivered exactly that. The failure to resolve those matters in the House of Lords and David Lidington’s wholly unhelpful speech yesterday have simply exacerbated the situation and played into the hands of the SNP, for which Brexit is another ploy in its political strategy.

Scottish Labour delivered on the devolution demands of the Scottish people, and we will defend any attempts to undermine them from wherever they come.

Given that we have only just had sight of the Presiding Officer’s statement, I am seriously concerned that the Welsh Government is able to present a competent bill to the Welsh Assembly but that is not the situation here. We want to find a workable solution to that situation, so will the cabinet secretary agree to urgent cross-party talks that will bring in the Presiding Officer, the Government and parliamentary legal officers to find a way through this?

If the Presiding Officer cannot sign off the bill, what precedent will be set if the Government proceeds? The cabinet secretary says that he can introduce the bill, but what will happen thereafter? How will the Government ensure that full parliamentary scrutiny will take place within such a truncated timescale? What background work has been done to date on the practicalities of the bill and on the huge amount of work that would have to be done thereafter? What additional budget would be required to ensure that the Scottish Government had the personnel and the capacity to deal with the consequences of passing such a bill?

Scottish Labour supports the objective of the Scottish and Welsh Governments, but we want to ensure that the proper parliamentary scrutiny takes place and that the situation is not exploited by parties for their own narrow party political advantage.

Photo of Michael Russell Michael Russell Scottish National Party

The only moment that I have ever felt that the changes that I brought in to the college system as the Cabinet Secretary for Education and Lifelong Learning were perhaps a little more radical than I had expected was in the failure of Neil Findlay to take a keyboard course that would allow him to send emails in a competent fashion. However, there are many such courses and I am sure that we will find the college to give him one.

I will address Neil Findlay’s concerns in so far as I can. This afternoon, the Lord Advocate will issue a statement and, tomorrow, he will be available for questioning in this chamber. I hope that some of the legal questions that Neil Findlay has asked about will be resolved in that way. I am quite willing at any time to sit down and have cross-party discussions about the bill, but that would be a question of whether the Presiding Officer and others wished to do so.

We are where we are. This afternoon, the Presiding Officer issued a statement. Some information from the Welsh Presiding Officer has come to hand in the past few minutes, summarising the legislative competence issues, which I am happy to provide to Neil Findlay. Clearly, there is a difference of opinion on the matter. The way to test that difference of opinion is to introduce the bill, as we are allowed to do, and to have the Parliament consider passing it.

As Mr Findlay knows—I have explained this to him—the timescale is an issue. We must ensure that the bill goes through Parliament before the European Union (Withdrawal) Bill goes through Westminster. The two bills are complementary. We do not have a great deal of flexibility, so we have tried to ensure that the whole chamber and Parliament’s committees are engaged in the process. I understand that a lead committee and a subsidiary committee might scrutinise the bill, but if other committees wanted to examine the position that I and other ministers are taking, they would be welcome to do so.

We will work as hard as we can with all the parties across the chamber to take forward and outline the issues and to answer the questions. I hope that questions will continue to come from Labour, the Tories, the Greens and the Liberals. We will do our best to go forward together as a Parliament.

Photo of Patrick Harvie Patrick Harvie Green

The introduction of this bill is an absolutely necessary response to the Brexit crisis and to its incompetent mishandling by a UK Government. Members of this Parliament know very well that the UK Government is already eyeing up the opportunities that it sees from deregulating and breaking the promises that it has made on our social and environmental protections—a great many of which fall within the competence of this Parliament, not the UK Parliament. It falls to the responsibility of this Government and our Parliament as a whole to stand up against that. Unlike Mr Russell, I suggest that the gap between what the UK Government is offering and what should be acceptable is not a small one but requires major change from the UK Government.

I am pleased that we will see more than the minimum level of emergency legislation scrutiny. The first time that it was suggested that emergency legislation might be used, the minimum scrutiny necessary would have been wildly inadequate. There will now be nearly a month between the bill’s introduction and stage 3. That time must give all of us the opportunity—in this chamber and in our committees—to consider the implications and the contents of the bill. This should be about parliamentary control, not Government control.

In that context, will the minister tell us what he means when he says that,

“if the European Union (Withdrawal) Bill can be agreed, and if this Parliament consents to it, our continuity bill will be withdrawn”?

Will he commit that the continuity bill will not be withdrawn without this Parliament’s prior agreement to its withdrawal? We should not be left in the position where it is consent to the withdrawal bill or nothing.

Photo of Michael Russell Michael Russell Scottish National Party

Yes, I make that commitment. In fact, the Government could withdraw a bill without consent only up until stage 1; thereafter, the consent of the Parliament would be required.

I am grateful for Mr Harvie’s points, many of which I agree with. I will make an additional point, which may be helpful to him. In drafting the bill, we have had to mirror the European Union (Withdrawal) Bill as closely as possible to make them fit together. However, there are one or two differences. I know that Mr Harvie will very much approve of one of them, which is the reintroduction of the European charter of fundamental rights through the Scottish bill, copies of which were made available a few moments ago. We can do some things in the Scottish bill to improve the current situation, and we are open to doing others within the necessary timescale that we have set out.

Photo of Tavish Scott Tavish Scott Liberal Democrat

I thank the minister for the courtesy of early sight of his statement.

It is certainly unfortunate that the Governments of the UK have not agreed. That is not good. This is a sensitive and delicate process, which strikes at the heart of government, not just in Scotland but throughout the entire UK. It is also not satisfactory that we have no legal agreement on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

I am sure that the Scottish Government will want to expand on the legal basis for its position. Will the Government ensure that, beyond the Lord Advocate’s statement tomorrow, there will be further opportunities for members of the Scottish Parliament to fully scrutinise the Lord Advocate’s opinion?

Given what the minister said about meetings next week, and given the introduction of the continuity bill today, what does the minister expect from those meetings?

Photo of Michael Russell Michael Russell Scottish National Party

I cannot speak for the Lord Advocate but I am sure that he will want to ensure that there is continued dialogue and that he is available to have that dialogue. He will be open to questions tomorrow, and I am sure that his statement later today will begin to lay out the basis of his opinion.

The member asked what I expect to take place next week. I believe that the UK Government is likely to publish its amendment to the withdrawal bill, without agreement from the devolved Administrations, on or around 12 March. That is an action that I am not going to criticise, and I hope that the UK Government will not criticise our action in introducing the continuity bill, because we are all taking the steps that we need to take, given that there might not be an agreement.

I hope that that does not distract from the process of trying to get an agreement. However, we are conscious that we must put in place contingencies, and if the UK Government is putting in place the contingency of an amendment to its withdrawal bill to which neither Wales nor Scotland has agreed—and that is the situation—I think that we are more than entitled to introduce and move forward with our own continuity bills, while recognising that dialogue needs to continue.

That is where we are. I made that clear in my statement and in my response to Mr Tomkins. I make it clear to Mr Scott. We will continue to have discussions and we will endeavour to do that next week—at the moment we are seeking the right time to do that next week.

Photo of Joan McAlpine Joan McAlpine Scottish National Party

The minister said that the

European charter of fundamental rights is included in the continuity bill, although it is excluded from the UK’s withdrawal bill. I welcome that. Will the minister give more detail on how the inclusion of the charter in the Scottish bill will help victims of discrimination and others whose rights will be affected post-Brexit?

Photo of Michael Russell Michael Russell Scottish National Party

The UK Government has said that its view is that the protections that are afforded by the European charter of fundamental rights are guaranteed within existing UK law. Many people do not believe that to be true, and many people believe that many of the rights that are given in the charter will be diminished or eroded as a result of its removal. I tend towards that view. Therefore, I want to see the charter maintained.

There are many things that the charter does, in stating rights, that are useful and helpful to individual citizens in many circumstances.

I think that lots of us have considerable fears about the possibility of substantial erosion of human rights in the workplace and other rights as a result of leaving the EU. I have to say that reassurances to the contrary from Michael Gove do not make me feel a great deal better.

Therefore, I think that it is better to have a belt-and-braces approach, and having the charter of fundamental rights in the bill is the right thing to do. I am sure that the Lord Advocate will be happy to expand on how that is to be done. Members now have a copy of the bill and are able to see the intentions in the drafting; I am sure that the Lord Advocate will want to answer questions on that.

Photo of Jackson Carlaw Jackson Carlaw Conservative

Since the minister first brought the issue to the Parliament in September, we have been working with him and others to find a way forward that will allow both Governments to agree. Can he confirm that it is the Government’s preferred option—and not just an option—that it should continue to work with others to secure an agreement that will enable the Government to recommend the acceptance of a legislative consent motion by this Parliament and thereafter to withdraw the Scottish bill that is being progressed?

Photo of Michael Russell Michael Russell Scottish National Party

Very simply, yes. That is the preferred option. I take Mr Harvie’s point that the consent of the Parliament will be required to withdraw the bill, but that is the preferred option. That is what I said in my statement and it is what I continue to say.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

Can the minister confirm that in his statement he said that the new proposal from the UK Government to amend the European Union (Withdrawal) Bill includes a provision to “consult” the devolved Administrations before any devolved powers are constrained?

Can he also confirm today that the Scottish Government will never recommend consent to a bill that gives the UK Government the unilateral right to grab whatever powers it chooses in the areas of EU law? Does he agree that the UK Government either agrees with the principles of devolution as established after the referendum in 1997 or it does not, and that there is no middle road, there is no third way and there is no fudge with regard to protecting the powers of the Scottish Parliament as well as the interests of the Scottish people?

Photo of Michael Russell Michael Russell Scottish National Party

I have always found it virtually impossible to disagree with Bruce Crawford, and on this occasion no one could put the proverbial cigarette paper between us on that issue. There is no question of us agreeing to any diminution of the Parliament’s powers.

I heard the same point put very forcefully by Mark Drakeford at the JMC last week. He made it clear that he could not envisage circumstances in which the First Minister of Wales went to the National Assembly of Wales and told it that powers that it had had since the start of devolution were to be taken away unilaterally, and that, although there had been a consultation during which the Welsh Government had said that it did not want the powers taken away, they were going to be taken away anyway.

I cannot imagine the First Minister of Scotland agreeing to that. In fact, I know that she would not.

Photo of Claire Baker Claire Baker Labour

I share the minister’s preference for an agreement with the UK Government on an amendment to the withdrawal bill that protects the devolution settlement. Given that the ruling from the Presiding Officer contradicts the Lord Advocate, the alternative that we are faced with is not straightforward.

Next week the Scottish and Welsh Governments will meet the UK ministers to discuss the amendment, while the Parliament’s focus will be on the passage of this bill. How will the Parliament be informed of the debate and the detail around the amendment while we are focusing on the legislation that has been introduced?

Photo of Michael Russell Michael Russell Scottish National Party

I think that it will be possible for us to look both ways while we focus on ensuring that we take this issue forward, because the encompassing issue is the same: the necessity of having in place arrangements for that infinitely regrettable moment that the UK Government seems hell-bent on achieving—leaving the EU, which is beyond all common sense or reason.

However, we are focused on that moment and on having our law in a suitable state for it. It is possible for us to try a twin-track approach, because the outcome has to be the same: we have to have the statute book in the right way. In order to get it in the right way, either we can have a legislative consent motion, so that the UK bill covers both devolved and reserved matters, or we can have two bits of legislation, one of which deals with devolved matters and one of which deals with reserved. That is the choice, that is what we are trying to work our way towards and, in the end, that is the decision that will have to be made.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

I note the comments made today by Welsh First Minister Carwyn Jones about protecting devolution. Will the minister outline how he intends to work with other devolved Administrations to ensure that the powers that already lie in Cardiff and Holyrood are not diminished?

Photo of Michael Russell Michael Russell Scottish National Party

We have been working very closely with the Welsh Government, and I want to give my thanks to Carwyn Jones and Mark Drakeford in particular for the very close relationship that we have built up. Mark and I have spent a considerable amount of time in quite a lot of different places over the past year or so, trying to take these issues forward, and we will continue to do so.

It is a matter of great regret that there is no Parliament or Assembly in Northern Ireland at the present time. I think that the voice that we should be hearing from Northern Ireland would be significant in this debate. There would be a difference of opinion there. At the very start of the JMC(EN) process, the Northern Irish members were Martin McGuinness and Eileen Foster. Those two people provided a balanced view and they contributed very importantly to the proceedings of the JMC(EN). That came to an end after the collapse of the Administration, as a result of which only civil servants have been present at the JMC(EN) from that side of the house, and it has not been the same.

It would be great to have the Northern Ireland Government back, as it would provide a significant input. However, we will continue to work very strongly with Wales—our interests in these matters are identical. We cannot and will not accept a diminution of devolution.

Photo of Donald Cameron Donald Cameron Conservative

We have heard a lot in recent months from all quarters about the need to respect the devolution settlement—a sentiment that the Scottish Conservatives fully endorse. How can the minister be satisfied that the continuity bill that he proposes today respects that settlement, not least in light of the Presiding Officer’s statement that the bill is outwith the legislative competence of this Parliament?

Photo of Michael Russell Michael Russell Scottish National Party

I hesitate to bandy legal opinion with an advocate who is far better qualified to argue the case than I am, but I call in my defence the Lord Advocate, who may slightly trump Mr Cameron in that respect. I use the word “trump” in the old sense, not the new sense—I would never suggest that.

Our introduction of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is a perfectly legitimate and reasonable step to take. I note that, in the Presiding Officer’s opinion, he accepts that it is a perfectly legitimate and reasonable step to take. Having said that, there is a genuine difference of opinion between the Lord Advocate’s view and the Presiding Officer’s view. The Welsh Presiding Officer has taken a view that is much more in accordance with the Lord Advocate’s view. In those circumstances, there is absolutely nothing wrong with moving in the way that we propose. Indeed, as I indicated in my statement, it is the right thing to do democratically, because it will allow the Scottish Parliament to make the decision.

There are one or two Tory members who are muttering about the prospect of this chamber making the decision, but I assume—unless they do not like basic democracy—that that is worth doing. Therefore, the ideas in question will be put to the test and we will have a vigorous debate at stage 1, stage 2 and stage 3, to which I look forward.

Photo of Richard Lochhead Richard Lochhead Scottish National Party

Given that the current Conservative UK Government poses the biggest threat to Scottish devolution since the Parliament was reconvened in 1999, and given the enormity of the issues at stake for Scotland and our economy, I offer my support to the minister’s proposal to bring the continuity bill to Parliament, but I ask him to pay attention to negotiations across the Irish Sea. I know that he will want to support the spirit of the Good Friday agreement and to pay close attention to whether the UK Government is willing to give special trade arrangements to Northern Ireland that could place the Scottish economy at a competitive disadvantage if we are not given a deal on access to the European market.

Photo of Michael Russell Michael Russell Scottish National Party

I certainly think that the issue of Ireland and the Irish border is not only vitally important but will loom very large in considerations this week. As ever, Brexit is a fast-moving issue. This week, we heard from David Lidington and Jeremy Corbyn on Monday. While one speech was deeply unacceptable, the other one indicated a move in the right direction, as I have said publicly.

A variety of things are happening today, including the introduction of continuity bills in Wales and Scotland. Tomorrow, we will get from the EU the draft legal text that will deal with the Northern Irish situation, among others. I suspect that that will be a very problematic moment for the UK Government, particularly if one believes that the Northern Irish border is akin to the border between Camden and Islington or Camden and Westminster, which is such a mind bogglingly stupid thing to have said that it is impossible to believe that a UK Foreign Secretary actually said it.

That issue will arise tomorrow, and it appears that, towards the end of the week, the Prime Minister is to make a speech about her ideas for the next stage of the EU negotiating process; as those ideas appear to be based on a set of proposals that the EU has already rejected, it, too, might lead to some interesting conclusions.

We will continue to take forward what we believe is the correct approach in this very sensitive and difficult time, but of course we support a peaceful resolution of the situation in Northern Ireland—a resolution that supports the Good Friday agreement, but which does not also create circumstances in which Scotland would be actively disadvantaged. We say that not for pro forma reasons, but because the same must be true of how we work with others.

The Presiding Officer:

Five members still wish to ask a question. I am conscious of time, but with the assistance of the minister and members—in other words, I am asking for brevity—we will get everyone in.

Photo of Daniel Johnson Daniel Johnson Labour

The continuity bill is clearly no ordinary Government bill. It has been introduced by the Government but it seeks to protect the interests of this Parliament. Therefore, I am sure that the minister will agree that maintaining cross-party confidence in it is vital.

In that context, given the Presiding Officer’s decision regarding competence, will the minister commit to a formal cross-party body similar to established bodies such as the Parliamentary Bureau and the Scottish Parliamentary Corporate Body being used to manage and oversee the bill’s passage, rather than its being the purview of a particular minister or, indeed, the Government?

Photo of Michael Russell Michael Russell Scottish National Party

No. I think that that is an impractical solution, because I cannot imagine what such a body would be or how long it would take to set up. The Parliamentary Bureau and the other institutions are established by law and are part of the Scotland Act 1998. I therefore do not think that Mr Johnson’s solution is a practical one.

However, I do not want to be difficult. As I indicated in my answer to Neil Findlay, I am keen for cross-party discussion and work to continue and I am happy for that to be as broad and deep as members wish it to be. I am therefore happy for us to endeavour to work as a Parliament to make sure that the bill is taken forward. However, it is a Government bill and, as I remember from my days on the Parliamentary Bureau, the law requires a bill to be defined as a Government bill or as another bill. The bill is a Government bill, and I think that it is a bit late to change horses midstream in that regard. In the circumstances, we will work closely with other MSPs and other parties. I put it on the record that I want to do so.

Photo of Christina McKelvie Christina McKelvie Scottish National Party

Can the minister confirm that what is at issue in the dispute over the European Union (Withdrawal) Bill is what happens to the existing powers of the Scottish Parliament and that this is not, as has been suggested by others, a new powers bonanza?

Photo of Michael Russell Michael Russell Scottish National Party

Absolutely. I used the phrase “existing powers” in my statement, and Christina McKelvie is correct that the issue is not about additional powers or new powers but about the powers that we have, which would be very much undermined by the process that the UK Government is going through. We are talking about defending the existing powers of this Parliament, which should—I say this in light of the question from Daniel Johnson in particular—unite all of us in finding a way to work together to defend them.

Photo of Ivan McKee Ivan McKee Scottish National Party

Does the minister agree that it is ridiculous for the UK Government to cite risks to economic stability as a reason to override the devolution settlement, given the huge damage that its own secret analysis shows will be done to Scotland’s economy by the hard Brexit that it is pursuing?

Photo of Michael Russell Michael Russell Scottish National Party

I agree; I simply add that the real issue in terms of what is at risk is an attempt by the UK Government to present as existing something that does not exist. There is no single market in the UK, as the UK Government has presented it. There is a uniform market—we all trade together—but we have different arrangements when those are required and when the powers of this Parliament or those of the Welsh Assembly make that necessary. Minimum unit pricing is a classic example of that. We should therefore recognise that the UK market is not unitary but uniform, and our work should proceed accordingly.

Photo of Neil Bibby Neil Bibby Labour

The minister will be aware that Professor Alan Page of the University of Dundee has suggested that so-called standstill provisions, in which the UK Government and the devolved Administrations agree not to exercise powers in the absence of a common framework, might offer a temporary solution to clause 11. In light of the latest developments, has the minister given any further consideration to Professor Page’s suggestion of standstill provisions and does he now consider them a pragmatic alternative to clause 11 that could potentially negate the need for a continuity bill?

Photo of Michael Russell Michael Russell Scottish National Party

I am familiar with Professor Page’s standstill proposal, but I think that even he was going a little cold on it because there are some substantial problems with it. That type of voluntary restriction on the powers of Parliaments would work only if everybody was working together, but we have seen no indication that the UK Government would do that. Indeed, what would happen when we needed to exercise our powers, for example, when dealing with certain agricultural issues such as an outbreak of agricultural disease? The standstill idea seems attractive, just as sunsetting seemed an attractive idea, but there are some substantial difficulties with it. I talked very briefly to Professor Page about it and I would always be happy to do so again. However, I think that the option is not as realistic as it appeared to be when it was first suggested by Professor Page in the evidence that he gave to—I think—the Finance and Constitution Committee.

Photo of Alex Neil Alex Neil Scottish National Party

Given the Lord Advocate’s very welcome ruling, will the minister give a guarantee that if the UK Government or any other body mounts a challenge to the legality of the continuity bill in the courts, the Scottish Government will fight any such challenge tooth and nail to ensure that we can pass the legislation legitimately?

Photo of Michael Russell Michael Russell Scottish National Party

I do not think that I should commit the Scottish Government or the Lord Advocate to legal action. The question sounds to me like the type of question that the Lord Advocate will be well placed to answer tomorrow. However, I cannot imagine the position that we have taken weakening in any way—the member can draw his own inference from that.

The Presiding Officer:

Thank you. That concludes the statement and questions.