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UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill

– in the Scottish Parliament on 1st March 2018.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

Following this morning’s motion to change business, we now move on to consideration of motion S5M-10735, in the name of Michael Russell, on treating the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill as an emergency bill.

Photo of Michael Russell Michael Russell Scottish National Party

On Tuesday, I came to the chamber to make a statement about why the Scottish ministers consider it necessary now to introduce the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, despite the continuing passage at Westminster of a bill with similar intent. Yesterday, the Lord Advocate came to the chamber to make, for the first time, a statement on the senior law officer’s reasons for respectfully considering the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill to be within the legislative competence of the Scottish Parliament, despite the Presiding Officer deciding not to grant it a positive certificate. Today, despite the weather, I am here to set out the Government’s reasons for seeking to have the bill considered under the emergency procedure. I will, in a moment, move the motion seeking Parliament’s approval for that approach.

The timetable proposed for dealing with the bill is not, as has been the case with previous emergency bills, to deal with all stages in one day. Some of us are old enough to remember that procedure being used to restore tolls on the Erskine bridge, for example. The emergency procedure has been used only very sparingly since then, and Parliament is rightly sparing in its approval of its use. However, I am proposing to Parliament today that we should consider the bill as an emergency measure over the next three weeks, starting with the stage 1 debate next Wednesday, then stage 2 the week after that and stage 3 the following week.

Photo of Tavish Scott Tavish Scott Liberal Democrat

I am grateful to the minister for setting out the process that he plans to follow. Does he accept that one of the main arguments is about adequate scrutiny of the measures that we are considering? Particularly in relation to stage 2, would it not be better that those deliberations were heard in committee rather than in a plenary session of the whole Parliament?

Photo of Michael Russell Michael Russell Scottish National Party

I make it clear that I am laying out the timetable as we wish to see it and as it is contained in the motion. However, I am committed to working with those who are willing to support the bill and take it through, and to find ways to meet their concerns—for example, for increased scrutiny at stage 2—to see whether there can be an enhanced role for committees in that scrutiny. I am very keen, as I will say in a moment, to see maximum scrutiny of the bill and I will work with all the political parties to achieve that. I would be happy to meet the Liberal Democrats and others to do that.

Photo of Adam Tomkins Adam Tomkins Conservative

If the minister really is keen to ensure maximum scrutiny of the bill, as he has just said, why make it an emergency bill at all?

Photo of Michael Russell Michael Russell Scottish National Party

I am about to deal with that point, as the member knows.

First and foremost, it is entirely fitting that a bill that is about defending the interests and powers of the Scottish Parliament—perhaps to a greater extent than any bill that we have ever considered—should be scrutinised, and if we are so minded, approved at all stages by the whole Parliament. However, scrutiny of the bill will extend, as it must, beyond the chamber.

I have committed to making myself and my officials available to the Parliament in committee and in plenary, and to parties and relevant groups throughout the period. I will work tirelessly to make sure, in so far as I am able to do so, that the maximum possible scrutiny of the Government’s proposals takes place, and that the Parliament and its committees are informed and engaged throughout. If changes and developments in the timetable emerge as a result, I will welcome them and will work on them.

On Tuesday, echoing the Presiding Officer’s words and his published views on the bill, I observed that this is a “novel” situation. In normal times, such a bill would follow a normal timetable, but these are not normal times. Consequently, after much serious consideration, the Welsh and Scottish Governments have concluded that if the continuity bills are to defend the principles of devolution during the Brexit process, an emergency timetable is necessary if they are to achieve their purpose.

The Welsh and Scottish Governments sought to avoid introducing such bills. We continue to negotiate seriously and in good faith with the UK Government in an effort to secure an agreement regarding the European Union (Withdrawal) Bill that would allow our bills to be withdrawn or, if they have been enacted, to be set aside, but the timetable for the process is being driven not by us, but by the timetable at Westminster for the withdrawal bill. It is likely that the third reading in the Lords will take place in early May, and that the bill will be submitted for royal assent shortly thereafter.

It is essential that the continuity bills in Wales and Scotland become law before the withdrawal bill does. In the absence of an agreement about a common UK approach, and in defence of devolution, this Parliament must prepare itself to assert—if it has to—the right to legislate on the consequences for devolution of withdrawal from the EU. To do so, we must put in place the necessary safeguards and stopgaps, and our continuity bill is at the heart of that process. Without it, we will be defenceless and our negotiating position as a Government will be severely weakened. We must not only have options and choices; we must be seen to have options and choices. I hope that all parties in the Parliament will back the position that I am laying out, so that there is a united Scottish voice. [

Interruption

.] I said “a united Scottish voice”, not “a noisy Scottish voice”.

In addition, the timetable that we propose is necessary, because if no agreement can be reached on the withdrawal bill—I hope that that does not come to pass—and our Parliament chooses not to consent to it, the UK Government and Parliament must be given the time to do what they have to do in response to that decision. They must amend the withdrawal bill to remove the provisions that are not consented to; they must also amend it so that it can work with two continuity bills. If we get to that stage, that would be a constructive alternative way forward. It would not be the best way forward, but it would be a possible and workable way forward.

The rational and thought-through approach that has been proposed by the Welsh and Scottish Governments is rooted in the devolved settlements that are supported by our fellow citizens and which are the established constitutional order of these islands. It is unfortunate that, to date, the UK Government has not shown a willingness to be as constructive and collaborative as the Welsh and Scottish Governments—

Photo of Neil Findlay Neil Findlay Labour

If the European Union (Withdrawal) Bill is amended to deliver some or all of the elements of the continuity bill, what will happen then? Will there be another bill?

Photo of Michael Russell Michael Russell Scottish National Party

I have made it clear—on Tuesday, in discussion and in response to a question from Mr Harvie—that, in those circumstances, the chamber could decide what to do, but my view would be that the continuity bill would no longer be necessary and should therefore not be enacted or, if it has already been enacted, should be taken away. I do not anticipate any circumstances in which there is a partial bill on either side. Because of the timetable that exists for challenging the bills, which I outlined to Mr Findlay earlier today and which am happy to outline to all members, I think that that is a very unlikely eventuality; indeed, I think that it will not happen. However, it is quite obvious that we must use the emergency procedure if the bills are to fit together.

It is unfortunate that, to date, the UK Government has not shown a willingness to be as constructive and collaborative as Wales and Scotland, but we will go on trying to change that situation. We will never tire of sensible negotiation.

I am confident that this Parliament can give the bill the scrutiny that it deserves in the next three weeks. I am happy to continue the discussion across the chamber and with parties in order to achieve that—the approach is by no means inflexible. The Parliament and its committees have already held a large number of evidence sessions and debates on the European Union (Withdrawal) Bill, on which the continuity bill is modelled. The Delegated Powers and Law Reform Committee and the Finance and Constitution Committee have produced interim reports on that bill that are of the highest quality. The Parliament is, therefore, already familiar with the approach and structure of the continuity bill. It knows about the issues raised in the bill, and I will ensure that the briefing material on the bill and on the process of negotiation is made available as required—I have made that commitment to the Labour Party today.

We all understand the scale and gravity of the task on which we are now engaged. Brexit has thrown us all sorts of responsibilities that we did not vote for, did not seek and did not want, but we must not allow ourselves to be overwhelmed by them or succumb to the temptation, by doing nothing, to allow them to prevail.

I and the Government stand ready to help Parliament with the scrutiny of the bill in any and every way that we can. Even more important, I am sure that the Parliament stands ready to defend the interests of the people of Scotland by ensuring the good governance that cannot come from diminishing devolution and which can come only from respecting and building on the work that we all do in the chamber on behalf of our fellow citizens. Sometimes—especially now—that requires us to do new things in new ways. So be it.

I move,

That the Parliament agrees that the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill be treated as an Emergency Bill.

Photo of Adam Tomkins Adam Tomkins Conservative

The core problem with the motion that the minister has just moved is that there is no emergency. Members do not need to take my word for it, as that is exactly what the Lord Advocate told Parliament yesterday. He came to the chamber and said that the reason why, in his view, the bill is within the Parliament’s legislative competence is that none of its material provisions can come into force until after the United Kingdom has left the European Union. We know that that cannot happen for another 13 months.

Yesterday, the Lord Advocate said that we have a year and a month to legislate. Today, Mr Russell said that we have three weeks to legislate. It strikes me that one does not need to be a professor of constitutional law to spot the glaring and manifest inconsistency in what the Scottish National Party is saying.

Our starting position is that emergency legislation should be avoided wherever possible, because emergency legislation denies effective parliamentary scrutiny. Since the withdrawal bill was published, there have been cries from across the chamber that the devolution settlement must be respected—indeed, those are cries that we have participated in and joined. However, today it is the SNP that is treating the Parliament with disdain in seeking to rush though controversial legislation, significant elements of which may well be beyond our competence altogether. That is not respecting the devolution settlement and it is not respecting this Parliament.

The Government policy memorandum that accompanies the bill says that the bill will

“add to the complexity of the post-exit position” and

“present serious logistical challenges.”

On that we agree: the bill will add complexity and it will pose significant challenges, which are two further reasons why it should not be fast-tracked. On Tuesday, we said that the continuity bill was unwelcome and unnecessary. We stand by that statement and today we add to it: the bill is unwelcome, unnecessary and dangerous. It is when we legislate in haste that we legislate in error. This is an invitation from the SNP to make bad law and an invitation from the SNP to make law badly. To those invitations, we on these benches say: no thank you.

Photo of Patrick Harvie Patrick Harvie Green

Has Adam Tomkins used the same indignant voice with David Mundell, the minister in the Government that has repeatedly failed to make the UK bill remotely acceptable or compatible with devolution?

Photo of Adam Tomkins Adam Tomkins Conservative

It is not David Mundell who is trying to railroad unconstitutional constitutional legislation through this Parliament. It is the SNP—supported by the Scottish Green Party, as usual.

As we heard earlier this week, it is unprecedented for any Scottish Government, of any political colour, to press ahead with a bill over the advice of the Presiding Officer that the bill is beyond competence. That fact alone should make us pause. By ploughing on regardless, we risk bringing our Parliament into disrepute and—it seems to me—we are going out of our way to invite all-but-inevitable challenge in the courts.

Let us look briefly at the bill that we are being asked to fast-track. Even to a lawyer, the bill is far from clear-cut. First, there is the vexed issue of competence. The Lord Advocate and the Presiding Officer focused on the compatibility of the bill with EU law in their respective statements about competence, but that is not the only legal limit on our law-making powers. It is also the case—and again this goes to the core of respecting the devolution settlement—that we may not make law relating to matters that are properly reserved to the United Kingdom Parliament.

Section 6 of the bill provides for the legal status of the principle of the supremacy of EU law, yet among the matters that the Scotland Act 1998 reserves to the UK Parliament are international relations and relations with the European Union and its institutions. How is a provision on the principle of the supremacy of EU law not one that relates to the reserved matter of the European Union and its institutions? That is precisely the sort of matter that requires detailed, careful parliamentary scrutiny, with the help and assistance of the testimony of independent expert witnesses, all of which is a feature of our ordinary legislative process, which will be cut by a decision today to fast-track the bill.

It is not just scrutiny of the bill’s competence that will be curtailed. Scrutiny of the bill’s content will also be curtailed, and that content is not exactly straightforward. Let us take an example. Section 5 provides:

“to the extent that there is a right of action in Scots law immediately before exit day based on a failure to comply with any of the general principles of EU law ... there is, on and after exit day, an equivalent right”.

Fine. Among the general principles of EU law is the doctrine of state liability—that is to say, the right of all of us to sue for damages for a sufficiently serious breach by a public authority of its legal obligations. Yet section 8 provides:

“There is no right in Scots law on or after exit day to damages in accordance with the rule in Francovich.”

Francovich is the name of the case in which the European Court of Justice invented the doctrine of state liability. Therefore, section 5 preserves the right to sue public authorities for damages, and section 8 takes it away. There is a manifest and straightforward incompatibility between two provisions in the bill—which, by the way, is not mirrored in the European Union (Withdrawal) Bill, because section 5 is one of the provisions in the continuity bill that go out of their way to distinguish themselves from the withdrawal bill.

We are asked to consider, in haste, legislation that the Scottish Government does not understand, that has been badly drafted and that is manifestly incoherent. We are being invited to make bad law, and we are being invited to make it badly. No, thank you.

Photo of Neil Findlay Neil Findlay Labour

The actions of this Parliament impact on the lives of our citizens from John o’ Groats to the Mull of Galloway, and the implications of our decisions in passing bills can be huge for people and communities.

We must all therefore take our individual and collective responsibility very seriously indeed.

This Parliament has established practices, conventions and standing orders, which are designed to protect our democracy and to ensure that the laws that we pass are subject to proper and in-depth scrutiny and, where necessary, amendment, to make them as effective and workable as possible.

Although members who sit in this chamber are in a privileged position, we do not sit inside a political bubble that is disconnected from the outside world. The public have rights in our system. They have the right to be consulted on decisions that will affect them. They have the right to submit their views and lobby their MSPs for change. They have the right to petition and to submit evidence, and their evidence can significantly change a bill.

However, in the case of the bill that we are talking about, that process will either not happen or be severely curtailed by a truncated parliamentary timescale of just a few weeks.

We should not ignore our history. Rushed legislation, as we know, is often bad legislation, and there have been many examples of that over the years. The Scottish Government and the minister tell us that the legislation has to be passed within a short timescale, but they failed to explain why there is such a rush. The Government tells us that the crucial stage 2 of the process will be taken in the chamber, not in committee. We have serious reservations and concerns about that. Having such a vital stage of a bill taken in a full and, at times, rowdy chamber, with all its distractions, is a poor replacement for the in-depth, focused scrutiny and the ebb and flow of detailed committee work.

Photo of Patrick Harvie Patrick Harvie Green

I do not think that any of us would imagine that the situation is perfect or can be made perfect, but does Mr Findlay accept that, if we fail to take responsibility for examining, debating and passing Scottish legislation in this chamber, we will leave the UK Government with a perfect excuse to impose something upon us that all of us across this chamber have decided is unacceptable?

Photo of Neil Findlay Neil Findlay Labour

I certainly have some sympathy with that view, but I want to ensure that we do things as best we possibly can when we have that opportunity. We would want stage 2 to take place as normal in the more effective committee room setting. No MSP would be excluded from that process.

The situation should, of course, be entirely avoidable. David Mundell and Ruth Davidson ratted on a commitment given to this Parliament and to the Welsh Assembly that all powers that would ordinarily be devolved will be devolved following Brexit. I understand that there are 25 areas of disagreement. It is my view that, in the interests of openness, transparency and accountability, those 25 areas of disagreement should be published so that we know what the dispute is all about. That is not an unreasonable request.

What I find most depressing is that, even at this stage, the two Governments cannot bring themselves to find their way to an agreeable solution or process, with independent adjudication if necessary, where no one has a veto and the decision of that adjudication is accepted. Surely, rather than have to go through these constitutional contortions, ministers from both sides should be able to step up to the plate and get it sorted.

I want to ask a few questions of the minister. If the European Union (Withdrawal) Bill lacks clarity and is ambiguous, as he has said, and if the continuity bill seeks to replicate it, does that leave us with an ambiguous, opaque bill too? The continuity bill states that the Government can determine exit day. Is the Government suggesting that exit day in Scotland would be different? If not, why is it in the bill? If the bill is passed, does the minister expect clause 11 of the withdrawal bill to be removed? If the aim is to legislate before the EU withdrawal bill is on the statute book, has the Government factored in provisions to deal with any legal challenge by anyone that might scupper that timescale and that objective? Finally, given the Parliament’s workload, does the cabinet secretary believe that the Scottish Government and the Parliament have the capacity to deliver the huge volume of work required to enact the legislation?

That is just a small selection of the very serious questions that need very serious answers.

Photo of Patrick Harvie Patrick Harvie Green

I certainly agree with Mr Findlay’s final comment that there are very serious questions about the process and that they need very serious answers, but we will be able to begin that process only if we pass a resolution today to designate the bill as an emergency bill.

The bill is absolutely necessary as a response to the Brexit crisis, which is not of this Parliament’s choosing and not of the choosing of the people in Scotland whom we represent. It is a crisis that has been brought about entirely by the Conservative Party. Whatever our attitude to Scotland’s constitutional debate, a fact that should be relevant across that divide is that the UK Government now appears to be at war with itself, incompetent and in the grip of delusional, hard-right ideologues—people who are willing to put their own interests ahead of the national interest, and who are willing to inflict serious damage on the economy, and even put the peace process in Northern Ireland at risk for their pet political project.

Their European Union (Withdrawal) Bill at Westminster is a direct assault on the devolution settlement. The UK Government has already missed far too many opportunities to repair that bill to achieve something that deserves to gain the consent of either this Parliament or the Welsh Assembly. Members of this Parliament from across the political spectrum must now take responsibility for introducing legislation that safeguards our law, including social and environmental protections that have been built up in the European Union; that protects the devolution settlement; and that ensures that Parliament—not the Government—is in control of the process.

I make that point in relation to both minority Governments. Neither the Government at UK level nor that in this Parliament represents a majority, and so parliamentary control must mean the majority in Parliament and not the minority in Government.

Photo of Johann Lamont Johann Lamont Labour

G iven that Mr Harvie’s party sits on the Parliamentary Bureau, will he make a commitment to consider all ways in which we might scrutinise the bill fully—not just in the chamber, but in committee?

Photo of Patrick Harvie Patrick Harvie Green

I absolutely give that commitment. Many such discussions have already taken place. As I said in the chamber the other day, the first time that it was suggested that emergency legislation might be necessary, I made the points very clearly that the maximum speed that our standing orders allow would be entirely unacceptable and that, whether or not a lead committee is formally designated, committees should take evidence from external witnesses and the Government. I am pleased that that will happen in at least two committees. I know that others are considering their work programmes over the coming weeks and are trying to fit in opportunities.

None of us is capable of achieving perfection from the chaotic constitutional crisis that the Conservative UK Government has created. However, we are capable of improving the situation. If we do not have this Scottish alternative to the withdrawal bill, we will leave the UK Government in a position in which it will be able to force an unacceptable bill on us and fatally undermine the devolution settlement. There can be no doubt that this is an emergency situation and that the continuity bill must be treated under the emergency procedures. However, it is far more significant than any previous emergency bill, so I agree with Johann Lamont and others that we must maximise the scrutiny that is possible within the time available.

We will also take action to improve the continuity bill. My colleague Caroline Lucas has worked with Opposition members of Parliament from across the political spectrum at Westminster to improve the legislation there. We will seek to do the same here, putting forward positive ideas, and I urge the Scottish Government to work constructively with Opposition proposals to change and improve its bill.

However, we will certainly support the resolution to designate the bill an emergency response to an emergency situation.

Photo of Tavish Scott Tavish Scott Liberal Democrat

Next week’s stage 1 debate will be on Brexit, the Tory Government at Westminster and the powers of this Parliament. Today is about the process, the legislation and the scrutiny of that legislation.

However, I will make just one point on Brexit. I say to Mr Tomkins that, for many of us, leaving the EU is an emergency. For many of us, the issue is also about pressure on the UK Government. We should not be here. It is not this Parliament that should be dealing with this legislation, but we are having to do something to make sure that the powers of this Parliament are protected, which is the purpose of the continuity bill.

I am grateful to the minister for what he has said on stage 2. We can overdo the point about the process and we can overdo parliamentary arguments about why legislation should be properly scrutinised. However, arguably, those arguments have never applied more than in this case. That is why there have been—I suspect from all parties—requests of the Government and the Parliamentary Bureau to make sure that the legislation is scrutinised properly and fully at stage 2.

This is a profoundly important bill, which was especially apparent when the Lord Advocate made his case yesterday. These are fairly different times, in which we have one legal view from our Presiding Officer and a different one from our Lord Advocate. Just to compound the complexity of the issue, the Welsh Government and the Welsh Assembly have taken a view on a continuity bill that is consistent with the view of our Government here in Scotland, and a Welsh Presiding Officer who has had to make a ruling on the legislative competence of that legislation.

There are a number of aspects that are profoundly important. I agree with Adam Tomkins that external advice from external experts—people who would wish to give a view both on the legality of the bill’s measures and on the different legal interpretations—is profoundly important. We do not all live for the next submission from the Faculty of Advocates but on this kind of issue—given the importance of what we are considering—it and many other organisations will have important things to say. Although the Lord Advocate answered a few hypothetical questions yesterday, he certainly was not keen to answer others. Nevertheless, I sense that plenty of our legal friends across Scotland will be pretty keen to give voice to their thoughts on the bill.

How much that matters will be for Parliament to consider, and that is why Patrick Harvie, Johann Lamont and many other members—certainly those on my side of the chamber—feel very strongly that the bill should be considered at stage 2 in committee. That is particularly important.

The bill is about putting pressure on the United Kingdom Government. The timetable is incredibly tight—that is certainly true. The other side to considering the bill in committee is that it allows for a full examination of that timetable. That is a profoundly important point in terms of Parliament’s ability to actively and properly scrutinise legislation.

We on the Liberal Democrat benches want to make sure that stage 2 is taken in committee. We understand the importance of the measures that are being put in front of us. We want to make sure that the timetable is set out in a way that ensures that Parliament takes a full and appropriate role.

Photo of Joan McAlpine Joan McAlpine Scottish National Party

I am pleased to speak today in support of this continuity bill being treated as an emergency bill. It is vital that the bill is passed ahead of the European Union (Withdrawal) Bill, which contains measures that amount to the greatest attack on this Parliament’s powers since it was established.

When Scotland’s first First Minister, Donald Dewar, addressed the opening of this reconvened Parliament, he said:

“we reach back through the long haul to win this Parliament, through the struggles of those who brought democracy to Scotland”.

Donald Dewar is seen by many as the architect of devolution, but in that tribute he explained that it had many architects. He may have been thinking in particular of the late John P Mackintosh, whose life is commemorated in a display outside the chamber today.

Donald Dewar was also paying tribute to the many people whose names are now unknown who laid the foundation stones of this place—not physically, but through their ideas, their actions and, perhaps more important, their ambitions for their country.

The UK Government’s determination to diminish the powers of this Parliament using the withdrawal bill is more than a constitutional assault. This Parliament is the voice of the Scottish people and any attack on it seeks to silence the Scottish people. We cannot allow that to happen.

Devolution has seen the people of Scotland embarking on a democratic journey and, since 1999, we have made considerable progress along that road. The proposals in the UK Government’s withdrawal bill do not just stop Scotland’s people moving forward in their journey; they put us into reverse.

The Culture, Tourism, Europe and External Relations Committee is the secondary committee on the bill and, despite the tight timetable, committee members are keen to conduct some scrutiny of the bill and have already discussed ways in which we can do that. The timetable is tight, but it is a timetable that has been forced on this Parliament by the UK Government and the tin ear that it has shown on devolution.

The Conservative Party originally opposed the establishment of this Parliament and paid the price at the ballot box, but in recent years there has been consensus across this Parliament, including from the Conservatives, on the importance of maintaining the settlement that Dewar achieved.

The Culture, Tourism, Europe and External Relations Committee’s report on “Determining Scotland’s future relationship with the European Union” was published in March last year after extensive evidence gathering. It concluded:

“We believe that any power currently a competence of the EU that is to be repatriated after Brexit and which is not currently listed in schedule 5 of the Scotland Act 1998 should be fully devolved, alongside a funding mechanism, resulting in no detriment to Scotland.”

That conclusion was supported by all members of the committee, including Conservative colleagues. Perhaps they were reassured by evidence given to the committee by David Mundell, the Secretary of State for Scotland, who told us:

“I am not looking to take away any powers that are currently exercised by the Scottish Parliament or the Scottish Government.”—[

Official Report

,

Culture, Tourism, Europe and External Relations Committee

, 22 February 2017; c 32.]

However, taking powers away from the Scottish Parliament is exactly what the UK’s withdrawal bill does.

Mr Mundell failed to lodge the Commons amendments to stop that power grab, although he had promised to do so. He should have known the consequences of his inaction and his false promises.

The UK Government is taking a sledgehammer not just to Donald Dewar’s devolution settlement, but to the hopes, aspirations and efforts of the many generations whose struggles brought democracy to Scotland and brought this Parliament into being. That, in my view, is an emergency and it demands an emergency response.

Photo of Maurice Golden Maurice Golden Conservative

The continuity bill is not an emergency bill. Indeed, as it stands, the Lord Advocate was unable yesterday to make a convincing argument that the bill is even within the competence of the Scottish Parliament. I say that on three counts.

First, the continuity bill cannot be brought into effect now because it trespasses on EU law. The eventual effect of the bill, if it is enacted, may not impinge on EU law following the UK’s withdrawal but, as of today, that means that the legal competence of the bill is outwith the auspices of the Scottish Parliament. The question of competence, when it comes to compatibility with EU law, is a matter of current legal validity, not future effect.

That is the key point of legal analysis on which the Presiding Officer has relied in coming to his decision, and I think that he is correct.

Secondly, we contend that EU law continues to be relevant to the competence of this Parliament irrespective of whether the UK is a member of the EU. The continuity bill implies that the Parliament, as a public body, can be constrained by EU law only for as long as the United Kingdom is a member state of the European Union. However, the Westminster Parliament, when creating this Parliament, legislated to confirm that the applicability and associated constraints remain irrespective of the status of the United Kingdom.

Photo of Patrick Harvie Patrick Harvie Green

Honestly! Is the member genuinely suggesting that it was the intention of the UK Parliament to bind this Parliament to treaties from which the UK had withdrawn? Is that really his suggestion?

Photo of Maurice Golden Maurice Golden Conservative

That is what the law says. Mr Harvie should get up to speed with that. [

Interruption

.]

Photo of Maurice Golden Maurice Golden Conservative

The third reason why the bill is outwith this Parliament’s competence is that this Parliament cannot legislate on reserved matters. The bill sets out provisions on the principle of supremacy of EU law, and we contend that that relates to reserved matters, thus confirming that the bill is outwith this Parliament’s competence.

Therefore, we have established that the continuity bill is outwith this Parliament’s competence, and I am confident that the Supreme Court would agree with that analysis if required in due course.

I turn briefly to whether the bill should be considered as an emergency bill. The Scottish Parliament’s guidance on bills defines an emergency bill as

“a Government Bill that needs to be enacted more rapidly than the normal timetable allows”.

The continuity bill cannot have effect until March 2019, so that criterion cannot be met. It is worth remembering that half of the previous uses of emergency legislation procedure responded to court cases, another two responded to situations in which obvious legislative loopholes would have been created had the bills not been passed, and one ensured passage of the budget. The present case does not respond to a court case and no major loopholes would be created in existing legislation if the bill was passed in due time by the correct procedure.

That is why pushing through the continuity bill is a concern in terms of the full parliamentary scrutiny that is required in order that we pass full, efficient and proper law. Creating an emergency aspect for the bill will not allow that and Parliament will not be served.

Photo of Johann Lamont Johann Lamont Labour

I am very concerned about this debate, not least because 1 million people who voted to leave the European Union do not seem to be factored into any of our debates about Europe just now. That is something that we need to think about. I say that as someone who voted to remain.

In this debate I am not speaking particularly from my party position; I am trying to think through the issues as a parliamentarian, because it is important that we come to this highly unusual set of circumstances with our minds open to the arguments that are being presented on all sides and a willingness to test the arguments rather than close them down.

I am troubled by a number of things. I seek reassurance that we are not setting an unwise precedent. I accept that the issues around Brexit are unprecedented and that it would have been difficult to predict that our country would find itself in this position. On balance, I accept the need for Government to explore options to protect the devolution settlement.

However, we cannot protect this Parliament by being tempted into being cavalier with the procedures that underpin it and have embedded it as an institution. I am concerned that the Presiding Officer has ruled that the bill is not competent. That must matter, and if it does not matter, what is the purpose of the Presiding Officer having the authority to rule in that regard? We should not take the proposed step lightly.

Further, I am concerned by the compressed consideration of the bill. We are told that the emergency procedure is required, but if we can step away from our usual processes in the interests of the Parliament, we should not be constrained by a definition of “emergency procedure” that could not have imagined the circumstances in which we find ourselves.

Frankly, I do not think that it is for a Government minister to indicate that all stages of the bill should be taken in the chamber so that all members can be involved. That is not a Government job. Also, I do not accept that such an approach constitutes proper scrutiny. I do not pretend to have a full grasp of all the issues that are explored and tested in the Parliament as part of its daily work. I am happy to delegate to committees responsibility to explore and test ideas for me. I can then reflect on a committee’s conclusions at stage 1. We cannot cross-examine in the chamber. We cannot generate a dialogue. However, that is what we need.

Photo of Patrick Harvie Patrick Harvie Green

Is the member at all reassured by the fact that the Finance and Constitution Committee is planning to take evidence not only from external witnesses but from the Government and is holding open the option of doing so at every stage of the bill?

Photo of Johann Lamont Johann Lamont Labour

I am reassured. I contend—let me go slightly further than Tavish Scott went in this regard—that stage 1 is the critical stage, at which the opportunity is afforded to voices outside the Parliament to draw conclusions on the general principles of the bill.

I was struck yesterday by the Lord Advocate’s tone and thoughtfulness, and—to be fair—none of us would argue that Professor Tomkins has no awareness of the relevant issues. However, I was struck by how distant I felt from the arguments, altogether. I want the Government argument and the arguments of those who do not support the bill to be tested. There was unanimity on the problem that the bill seeks to address. Why do we not have unanimity on the need for the bill itself?

That is the job of the parliamentary process. Only by serious scrutiny can we draw conclusions about which matters are substantial and which are simply to do with party considerations. We need to know the difference between the two.

On balance, I accept the argument that the bill should be introduced. However, I seek a commitment that the Parliament will explore the role of the Presiding Officer in the certification of bills—if not now, then at some point in the near future.

I also make a plea that the introduction of the bill and its designation as urgent does not mean that the timetable is collapsed in a way that overly restricts scrutiny and precludes witnesses who are external to this Parliament from being heard. If the bill is controversial and is to end up in court, it will be in the interests of the Parliament to be shown to have taken its scrutiny role seriously at every stage.

I say in all seriousness to the Government minister who has already provided some helpful words and to parliamentarians around the chamber that, if our mission is to protect the Parliament, we must not act to undermine it.

Photo of Ivan McKee Ivan McKee Scottish National Party

Sometimes, life deals us a bad hand. We have to struggle on bravely through trials and tribulations and put a brave face on it. We have to admire the tenacity of those who face up to adversity and all that life can throw at them, turning up for work each day and trying to make the most of it.

Members on the Scottish Tory front bench find themselves in such a position at the moment, faced as they are with the shambles of Brexit. Remainers to a man and woman, they are faced with a situation that is not of their making. They are marching in a direction that they know is mistaken, to the beat of a drum that is irregular at best and often incoherent, in the knowledge that those directing traffic have no idea what is around the next corner and far less idea about how to deal with it. If that is not bad enough, they have a leadership that sometimes looks as though it is deliberately sabotaging their efforts. It is as though they are being sent to the crease only to find that their bat has been broken by the team captain.

A Tory party in disarray over Europe is nothing new. Tory members were promised by no less an authority figure than the Secretary of State for Scotland that all would be well, that clause 11 of the European Union (Withdrawal) Bill—

Photo of Jamie Greene Jamie Greene Conservative

On a point of order, Presiding Officer. I thought that the debate was about the competence of whether the bill should be treated as an emergency bill, but I have not heard a single word about that from Ivan McKee. Will he come to his point on that matter?

The Presiding Officer:

I thank Mr Greene for his point of order. I have to say, Mr McKee, that I was thinking along the same lines as Mr Greene. Please address the central point of the motion on the emergency procedure.

Photo of Ivan McKee Ivan McKee Scottish National Party

I was of course addressing the remarks that were made earlier by Maurice Golden.

Tory members were promised that clause 11 of the European Union (Withdrawal) Bill would be safely amended in time for leaving the House of Commons at the end of last year, but it was not to be. We now find ourselves in March and the clock is ticking. Commitments made by members of the UK Government are seen to be of little value, so members of the Tory front bench troop into the TV studios to defend the indefensible, trying to spin their way out of the mess that someone else created and continues to create each day.

I move to the specifics of the bill that we are debating today and to its intent and timing. Why is such a bill necessary, and why is it necessary now?

In politics, as in life, trust is an essential commodity. In an environment in which trust has been built up over time, actors can behave accordingly by cutting some slack and understanding where there is give and take, secure in the knowledge that working together to find a common solution is in everyone’s interest. However, that trust has been destroyed—possibly deliberately—so it is no surprise that we find ourselves in this position. Little communication has taken place on the fundamental issues to do with Brexit and how they will affect Scotland, so it is no surprise that considerable doubt exists as to the good will and intent to find a solution that protects the Scottish devolution settlement.

Photo of Neil Findlay Neil Findlay Labour

I do not know whether another SNP member will speak in this debate, but surely one member of the SNP back benches has something to say about the concerns about scrutiny in this building, or is it the case that SNP members are whipped so hard that none of them can ever express any concern?

Photo of Ivan McKee Ivan McKee Scottish National Party

I am coming on to address the issue of timing, but we are where we are because of the actions of the UK Government. The bill has to go through in time to protect the devolution settlement—that is the reality of it.

The Scottish Tories, and Mr Findlay, know fine well that the Scottish Government has waited until the last possible date before introducing the continuity bill. Leaving it any longer would mean that it could not be enacted prior to the passing of the European Union (Withdrawal) Bill, which is an essential prerequisite for the continuity bill to take effect as intended. The way in which the Scottish Tories are arguing against the emergency procedure suggests that they know that all too well but have no desire for the protections that are offered by the continuity bill to be put in place.

The bill is necessary to protect the powers of this Parliament. It is the backstop that provides us with some protection from the Brexit chaos that is consuming the UK Government. The timing of the bill being introduced now is necessary to ensure that those safeguards are in place in sufficient time.

We should also not lose sight of the bigger picture. By intent, or by omission, the actions of the UK Government represent a significant threat to the devolution settlement. It is our duty and our responsibility as members of the Scottish Parliament to protect that settlement, and that is what we will have the opportunity to do over the coming weeks by passing this emergency bill.

The Presiding Officer:

I am conscious that we are tight for time, but there is also a great deal of interest. I ask Mike Rumbles to make his remarks very short and to stick to one minute or so.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Standing orders state:

“Unless the Parliament decides ... on a motion of the Parliamentary Bureau, Stages 1 to 3 of an Emergency Bill shall be taken on the same day.”

That is because, by convention, an emergency bill, which is intended to fix an immediate problem in Scottish law that cannot wait, has all-party support. Evidently, there is not all-party support for the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and there is not an immediate issue that cannot wait.

By seeking to introduce this as an emergency bill, the Government ensures that all the stages must be taken by a committee of the whole Parliament. That is a problem, as we do not have the ability to call witnesses and examine evidence. We could have handled the matter differently and suspended standing orders to allow stage 2 to be taken by a committee. That would have been the better route to have chosen.

I will reluctantly vote for this motion today, but only on the basis that the Finance and Constitution Committee takes formal evidence from witnesses on the bill before we get to vote in the chamber at stage 2.

The Presiding Officer:

Thank you for keeping your remarks brief, Mr Rumbles.

Photo of Claire Baker Claire Baker Labour

We wish that this bill was not before us and that an emergency process was not necessary. The preferred outcome would be a European Union (Withdrawal) Bill from the UK Government that the devolved Governments and Parliaments could support, so why are we in this regrettable situation?

There are shared serious concerns about the UK Government’s approach. So far, the assurances that the issues would be fixed have been hollow. Make no mistake: the Conservative Government is the reason why we are facing the situation today, and its failure to respond sufficiently to the concerns of the Scottish Parliament and the Welsh Assembly is deeply disappointing and brings us to the response that has been brought forward today in order to work to safeguard our laws.

However, how can MSPs be confident in the legislation? When we look at the positions of the Presiding Officer and the Lord Advocate, we see legal uncertainty. It seems inevitable that the legislation will end up in the Supreme Court.

We will work constructively on the bill, but we cannot ignore the challenges that we face in dealing with such significant legislation as an emergency. As members will know, it is rare for us to deal with emergency legislation, and I do not think that it has happened in a situation similar to the one that we face now.

The bill has been rushed. It is important that MSPs can fully engage with the process and have confidence in our considerations. Our business manager has made a request to the Parliamentary Bureau for MSPs to be properly supported and informed, because the bill is complex and we face a number of different outcomes.

This afternoon, MSPs have made clear the importance of scrutiny and have asked what opportunities there will be for members to exercise that. We have concerns about stage 2 in particular. In ordinary circumstances, stage 2 provides an opportunity for debate, compromise and consensus building all taking place in the setting of a committee room. Members will recognise that that is a much different atmosphere from the one that we often experience in the chamber. Scrutinising legislation in a committee often gives us time for more considered reflection than does the sometimes heightened atmosphere that we experience in the chamber.

Is it possible for members to have greater clarity over the division between the two Governments, which Neil Findlay mentioned? It would be helpful to have greater understanding of where the points of disagreement are between them. There seems to be a level of agreement that frameworks are necessary, but it is important to have greater transparency, which would help us to make a judgment on the legislation that we are about to examine.

The situation is far from ideal. We face an extremely truncated legislative process, which is, frankly, unacceptable, but we accept that we are left with little choice. The UK Government’s failure to resolve the situation is the latest test that we have seen to the devolution settlement. This time, the risk to the devolution settlement comes from the Conservative Party—the so-called defenders of the union. Devolution is the settled will of the Scottish people and Labour has been consistent in supporting devolution, defending devolution and making the case for devolution. We have had to lead the charge at Westminster with amendments to attempt to fix the UK bill as a result of the lack of resolve, initiative and political will that has been shown by the Conservative Government.

I urge the UK Government and the Scottish Government, along with the Welsh Government, to strain every sinew to find a solution in the short time that we have, so that we can avoid having to proceed with the bill that is before us. I accept that the Scottish Government’s bill is necessary, but it is a challenging and problematic piece of legislation that we are having to deal with.

Photo of Donald Cameron Donald Cameron Conservative

We are confronted today by a narrow but fundamentally important Issue, which is whether the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill should be treated as an emergency bill. The short answer is no, for several reasons.

First, there is a convention that emergency legislation is required to deal with emerging events that require an instant reaction from Parliament. The very first act of this Parliament was, in fact, emergency legislation—I am sure that there are members who will recall passing the Mental Health (Public safety and Appeals) (Scotland) Act 1999, which was introduced to close a gap in legislation that was identified by a court decision. Five other acts that originated as emergency bills followed the same pattern. With one exception, which was a budget bill, all were specific bills that responded to unique, ad hoc events—often court decisions—that required urgent legislation. With respect, the situation in which we find ourselves in relation to the bill before us in no way fits with that tradition. Further, as Mike Rumbles said, there is also a tradition that emergency bills achieve consensus. Given the diversity of opinion that has been expressed today, that cannot be said to exist in this case.

Secondly, there is a question over timing. The bill is not remotely an emergency. The legislation cannot have effect until after the United Kingdom leaves the European Union. That point was central to the Lord Advocate’s argument yesterday on the bill’s competence. He said that the bill was within competence precisely because it would not take effect until after Brexit happens.

Photo of Donald Cameron Donald Cameron Conservative

I am sorry; I do not have time.

What the Lord Advocate said about the legislation being an urgent practical necessity was in relation to the operation of the law after withdrawal, namely 29 March 2019, which is a year away. The urgency in this situation is not in the coming weeks but in the aftermath of Brexit day next year.

The third reason to reject the motion, which is the most important one, concerns the role of this Parliament and all of us within it. The issue of emergency legislation is not an arcane debate about rules of procedure—it is not about navigating the dry, technical pages of the standing orders, dusted off so that lawyers and pedants can have some fun—it goes to the very purpose of what we do as a legislature. The continuity bill represents fundamental constitutional legislation. It is about the powers of the Parliament, as the minister just said. It is perhaps the most sweeping legislation that has been presented to this Parliament in terms of what it seeks to achieve, by ensuring that EU law is carried over into Scots law.

Photo of Patrick Harvie Patrick Harvie Green

I assure the member that the only people who are having fun in this situation are expensively educated idiots like Rees Mogg and Boris Johnson.

The Presiding Officer:

Mr Harvie, the members you named are not members of this Parliament, but I still urge you to be respectful to everybody you describe in this chamber. [

Interruption

.] Order.

Mr Cameron, I will allow you an extra minute, but I will first let Mr Harvie finish his question.

Photo of Patrick Harvie Patrick Harvie Green

Thank you, Presiding Officer. I certainly offer those gentlemen the respect that they deserve.

The Presiding Officer:

Mr Harvie, that is quite enough. Mr Cameron, please continue.

Photo of Donald Cameron Donald Cameron Conservative

I certainly regret taking that intervention, Presiding Officer.

If there is one area in which we should not legislate in a hurry, it is the constitution. The Scottish Government’s policy memorandum says that relying on the bill alone following the withholding of legislative consent will add complexity and present serious logistical challenges. We also have the unprecedented scenario that you, Presiding Officer, have taken the view that this bill is outwith legislative competence and is thus unlawful and beyond our powers. If any bill requires proper, detailed and measured scrutiny, it is this one.

Photo of Donald Cameron Donald Cameron Conservative

I do not have the time.

How long does the proposed timetable give us? It gives us a day a week over three weeks—in other words, three days. That is three days for the bill to be assessed by this Parliament’s many committees; for the bill to receive due scrutiny from MSPs; and for the bill to be debated, amended and critiqued. Such a timetable is patently insufficient.

My appeal is to MSPs of all political stripes, but especially to the conveners and deputy conveners of every committee of this Parliament, the Deputy Presiding Officers and those MSPs who prize their role as parliamentarians just as highly as their role as party politicians: whatever their view of the conduct of the UK Government or the Scottish Government in the current negotiations, whatever their view on common frameworks and internal markets and whatever their view on the rights and wrongs of Brexit—and however passionately those views might be held—the fact is that today’s motion is about how we as a Parliament legislate. It goes to the core of what we do, how we do it, the precedents that we set and the people whom we represent.

The devolution settlement is a precious and finely balanced thing, and we all share the belief that it needs to be protected. However, as parliamentarians, how can we possibly protect it by curtailing our well-worn procedures and rushing through legislation on the constitution of dubious legality by treating this issue as some kind of national emergency?

I urge the chamber to vote against the motion.

Photo of Michael Russell Michael Russell Scottish National Party

I have to say that I regret the Conservative view, because we as a Government have been endeavouring to work with the Conservatives to find a way through a very difficult—[

Interruption

.] I am going to treat this very seriously, and I hope that Conservative front-bench members will do the same.

We have been trying very hard to work with the Conservatives in this Parliament and in the UK Parliament to find a way of defending the Scottish Parliament and its powers. We have done that across the parties; I will not go into any detail, but we have met regularly with all the parties and hope to continue to do so. I therefore regret not only the tone but the attempt to create a false division. There is no doubt that there is an emergency. In my summing up, therefore, I will deal with two issues: first, the question whether this is an emergency; and, secondly, the very serious questions that a number of members have raised about this Parliament’s procedures.

This is an emergency under almost any definition that we might wish to apply. It is an emergency as far as the timing is concerned. The UK Government’s withdrawal bill was published on 13 July last year, and on 19 September last year, the Welsh and Scottish Governments brought forward their amendments. However, we had nothing in writing from the UK Government with regard to an amendment to the bill until the second half of February this year. We have shown extraordinary restraint in the process of negotiation to try to get the change that in November and early December the UK Government accepted it wanted to bring forward. That amendment has still not been tabled. I agree with Tavish Scott that Brexit itself is an emergency, but this is also an emergency with regard to the way in which the UK Government has treated the two other Governments that are engaged in the process—regrettably, there is no Government in Northern Ireland—by refusing to accept that it has a responsibility to bring matters forward timeously.

This is also an emergency under the definition set out by Donald Cameron. He used the terms “unique” and “ad hoc”, but Brexit is a unique set of circumstances, and the ad hoc circumstance that has brought us here is the impending failure of those negotiations, despite the good efforts of the Welsh and Scottish Governments to try and get change.

The third point about the emergency is the most ridiculous of all. On the argument that the bill could be introduced now but should be introduced sometime after March 2019, we could not, under the definition that we have heard, bring emergency legislation on the matter to this chamber even on 28 March 2019, because that would still be in anticipation of our leaving the EU. In other words, we could only bring it after we had left. What a ridiculous point of view. [

Interruption

.] I am sorry—I have hardly any time to get through this. I will just say that we have been endeavouring to get a solution, and we will continue to work to do so.

Before I turn to some points of detail, I want to address the very serious points that have been raised about the procedures of the Parliament. Neil Findlay asked, quite legitimately, whether anyone on the SNP benches was concerned about scrutiny. I am concerned about it, which is why I wish to have as wide a debate as possible and to move as firmly as possible with the Labour Party and the Liberal Democrats

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Does the minister agree that Parliament could suspend standing orders to allow a committee—whichever is appropriate—to look at the bill at stage 2, so that we would have a proper process?

Photo of Michael Russell Michael Russell Scottish National Party

I accept that that is possible and I am happy to discuss that proposal with the Liberal Democrats and Labour in order to get even better scrutiny. I accept that the scrutiny is not perfect—I said so in my introductory remarks and on Tuesday. Nothing is set in stone. If we accept that this is emergency legislation, we can have those conversations. I want to ensure that scrutiny is as thorough as possible.

Johann Lamont also made a telling point about the stage 1 process, which needs to be considered in relation to external input.

We are in this situation through no fault of our own or of the Welsh Government—we have both taken exactly the same position. I do not speak for my Labour colleague there, Mark Drakeford, but I am sure that he is also concerned about issues of scrutiny. We will do everything possible to accommodate the concerns and to be part of changes. However, this is an emergency, which will require a process that is not as intense as we have in other circumstances.

I will deal with some of the areas for consideration in relation to the bill. Neil Findlay asked about the 25 areas of disagreement; I am happy to discuss with Mr Drakeford and the UK Government how we could present those, but as much information as possible should be given on the process of negotiation. I hope that during the bill process, we will be able to address some of the specific issues that Mr Findlay has raised. For example, exit day is in the bill because the UK Government could change the date of exit day, so unless our bill also included that where it deals with devolved powers, we might be left with an inflexible date. Therefore, our date will go in lockstep, but we need the ability to react to the UK Government.

Neil Findlay asked about clause 11; the answer is that it would go—it would be redundant, so it would not be required. With regard to the number of statutory instruments, both Governments have estimated that there would be about 800 to 1,000. If the bill was to come into operation as intended, to work alongside the UK bill, there would be a division of labour. It is perfectly possible that we would be able to divide up that workload equitably and fairly and would find ourselves doing no more than we already anticipate.

Photo of Neil Findlay Neil Findlay Labour

On that very important point, does the minister expect the recess to be cancelled?

Photo of Michael Russell Michael Russell Scottish National Party

Even with the withdrawal bill, we would be in the same situation. I hope that it will not be necessary to cancel Mr Findlay’s trips to exotic parts, but you never know. To be fair, I have to point out that Brexit is a Tory manufacture, and therefore the workload that we are talking about has not been brought about by me or by anybody else. However, we will have to deal with that workload, and we do not anticipate that it will be substantially more weighty than the workload that we already face.

I could address a range of other issues, but we will address them during the bill process—we will find every possible way to do that. Nobody wishes to be in these circumstances; I wish that we could wind the clock back so that we were not involved in this complete nonsense of a process that is being incredibly badly mishandled by Conservative ministers and the Conservative Government. However, regrettably, we are where we are—as Ivan McKee indicated—and we have to move forward.

I hope that the chamber can support the motion. I give a solemn and firm undertaking that I have not only heard but listened to the concerns about scrutiny. We will work with the other parties to make sure that we address as many of those concerns as we possibly can.

The Presiding Officer:

That concludes the debate. I will move straight to the question.

The question is, that motion S5M-10735, in the name of Michael Russell, on treating the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill as an emergency bill, be agreed to. Are we agreed?

Members:

No.

Division number 1 UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill

Aye: 86 MSPs

No: 27 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 86, Against 27, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill be treated as an Emergency Bill.