The next item of business is stage 3 proceedings of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list, the revised supplement to the marshalled list and the groupings. The division bell will sound and proceedings will be suspended for five minutes before the first vote of the afternoon. The period of voting for that first division will be 30 seconds. Thereafter, there will be a voting period of one minute for the first vote in a group.
Members should now refer to the marshalled list of amendments.
It is imperative that Brexit—that is to say, the United Kingdom’s withdrawal from the European Union—does not inadvertently undermine the integrity of the United Kingdom as a union of four constituent nations. Indeed, Brexit should deepen and strengthen our precious union.
The United Kingdom common frameworks that we will need in policy areas such as agricultural support, public procurement and environmental protection will, if they are designed properly, lead to a new post-Brexit era of shared government in the United Kingdom, with the United Kingdom Government and the devolved Administrations working together in the common interests of all of the nations of the UK. That is exactly as it should be.
The Scottish Parliament and the National Assembly for Wales will become even more powerful as a result of Brexit. A suite of powers—all of which, by the way, the Scottish National Party-Green alliance would rather say no to; they would rather they are held in Brussels—will come here. They include, but in no sense are restricted to, powers over aviation, carbon capture, the marine environment, maritime issues, energy— including renewable energy—flood risk, water quality, forestry, cross-border healthcare, roads, transport, and voting rights.
Amendment 14 seeks to ensure that the operation of those new powers does nothing to undermine, impede or restrict the operation of the United Kingdom domestic market as it operates now. Those last words are important. The amendment imposes no new restriction on the Scottish Parliament or the Scottish ministers. It takes nothing away from our legislative competence or ministers’ executive competence.
The amendment seeks to define and understand our precious union and the domestic market broadly. Of course, commerce and trade—the free movement of goods, capital, services and labour—are at the heart of it. Free trade was the reason why the union was established 311 years ago in 1707 and it is the reason why Scotland has prospered in the three centuries since. However, it is not just about trade. Our union is a social and cultural union, too. Again, my amendment recognises that and seeks to protect all of it.
Scottish Conservative amendments at stage 2 tried in a variety of ways to protect the union, by making this bill subject to the European Union (Withdrawal) Bill, for example, the Scotland Act 1998, or both. We fully expected the SNP-Green alliance to vote down those amendments, as they will presumably seek to vote down this amendment today. That is par for the course—they do not believe in the union; they want to terminate it. However, the Scottish Labour Party voted with the SNP-Green alliance at stage 2 to defeat our union-protecting amendments. Labour did not want the bill to be subject to the Scotland Act 1998; it voted against that proposition. It did not want the bill to be subject to UK legislation on Brexit; it voted against that proposition. It wanted exactly what the SNP wants—namely, for the bill to give the nationalists licence to use Brexit as an excuse for undermining the union, chiselling away bit by bit at Scotland’s rightful place at the heart of the United Kingdom.
Labour’s amendment to my amendment, which is amendment 14A, in the name of Neil Findlay—a member of Parliament who could not even be bothered to turn up for any of the stage 2 debates—reinforces our view that the Scottish Labour Party is increasingly untrustworthy on the union.
Mr Findlay’s amendment would time limit the requirement to act compatibly with the UK’s domestic market to six months, or to the coming into force of the common framework, whichever is earlier. That would hand the SNP a veto, with no checks and no balances. All the SNP would have to do is hold out for six months, refusing to sign up to any UK common framework and, thereafter, it would be free to act in any way it liked, quite regardless of the UK’s legitimate interests in preserving its market integrity. For a nationalist, that is no problem, but I have no idea what a so-called party of the union is doing putting such a reckless proposition to the Scottish Parliament, and we will not support it.
Mr Findlay will get to speak in this debate and I look forward to hearing how he will justify his refusal to turn up at stage 2 and his amendment to my amendment. I will respond to his points when I sum up.
The final amendment in this group is amendment 49, in the name of Tavish Scott, which we will support. The power to keep pace with European law post-Brexit that is provided for in section 13 is an extraordinary power—indeed, it is an extraordinary power grab by Scottish ministers—and Tavish Scott’s amendment 49 would be an important and valuable constraint on its exercise.
I commend my amendment 14 and amendment 49, in the name of Tavish Scott, both of which we will vote for. We will not support Labour’s attempt to shore up the nationalists’ ambitions to use Brexit to undermine the integrity of the United Kingdom.
I move amendment 14.
Before I move amendment 14A, I ask the minister to take a few minutes to advise Parliament what his intentions are if clause 11 of the European Union (Withdrawal) Bill is amended in the House of Lords and the Government has to introduce legislation here to repeal the continuity bill. What happens to all the amendments on the environment, animal rights, human rights and so on—the protections that we have put in? Will there be another process for us to incorporate those into law or will they be cast aside in a process that to many people might look like a political game and a waste of time? It is incumbent on the minister to advise Parliament now and to advise all members in writing what would happen in that scenario. Finally, how will this Parliament scrutinise any deal that might be done between the Scottish Government, the UK Government and the Welsh Government?
I am happy to say to Mr Findlay that I recognise the importance of the point that he raised. There are elements in the bill, such as the protections for the environment, the charter of fundamental rights and the points about employment that Labour raised, that are different from what is in the withdrawal bill at UK level and which, if the circumstances that he described prevail, might require further legislation.
I commit myself to two things. One is to have consultation with other parties on how we can protect those elements if we reach those circumstances. If the member will write to me about that, I will expand on that to try to find the areas in the bill on which we can find agreement and ensure that, in the event—which is by no means certain—that the bill does not proceed because of an agreement with the UK, we are able to provide those protections, which are extremely important.
Professor Alan Miller indicated earlier this week that he thought that the position that we are taking on the charter of fundamental rights is a far better one, as is our position on the environment and other things.
I commit myself to consulting parties and to responding to the member—and to finding a way to provide those protections should we require to do so.
Amendment 14A seeks to amend the Tory wrecking amendment. It is our view that any Brexit legislation must take account, and meet the needs, of the different nations and regions of the UK, and it must respect the devolution settlement. As such, it is of great importance that any steps to protect the UK’s domestic market are not seen to be at the expense of devolution, or incompatible with it.
Amendment 14 is unacceptable for two reasons: it places no time limit on the restrictions that are proposed and it seeks to make them exclusive to Scotland’s Government. It is in the interests of both the rest of the UK and Scotland that equality is achieved between the regions of the UK with regard to this process. I lodged my amendment as a means to address that, and to ensure that reciprocal arrangements are put in place.
We must ensure that other Governments within the UK have an equivalent commitment that will last until common frameworks are agreed. After that point, the commitments would no longer be necessary. That process would ensure that the intent of amendment 14 is met, while making it effective and in line with the spirit of devolution.
If the Tory amendment is agreed to, policy innovation might be curtailed, because any Scottish Government would be prevented from deviating from practices elsewhere in the UK—practices that are deemed to distort the UK market. For example, we could not introduce public health levies, the smoking ban or the plastic bag tax. That would go against the spirit of devolution and the interests of our people and our democracy.
We will not be supporting Tavish Scott’s amendment 49, because we believe that the existing wording is more appropriate.
Mr Findlay has missed the point of my amendment 14, which is that it protects the domestic market as it operates before exit day. All the examples that he gave were examples of devolution that worked before exit day, and they would continue to work with devolution after exit day. He does not understand the amendment in front of him.
I absolutely do understand the amendment. What Mr Tomkins does not understand is that any of those initiatives could not happen in the future—similar initiatives could not happen. When he was in one of the many other political parties that he has been in over the piece, I am sure that Mr Tomkins agreed with devolution. Now that he is in the Tory Party he just does what his paymasters tell him.
I move amendment 14A.
I sense that there is more politics today than there was last week at stage 2, Presiding Officer.
The continued operation of the UK single market is important to businesses and individuals in Scotland after exit day. New powers are being allocated to the Administrations of the UK: extensive order-making powers are being proposed for ministers in all those Administrations, and in many cases the same powers will be exercised in four different places at the same time.
Every party in this chamber believes that there should be UK frameworks. The Scottish Government is constantly appalled that it has not been consulted properly. My amendment 49 encourages Parliament to make sure that the Scottish ministers lead by example, in that they consider the impact of their proposals on the operation of the UK single market. The amendment puts reference to the importance of that market in the bill.
At stage 2, Adam Tomkins moved amendments to create “protected fields”, in which the UK minister would have the power of veto over Scottish ministerial action. That set up the UK minister as judge, jury and executioner on policy areas that everyone agrees should be part of a UK-wide framework. If the four Administrations are co-operating, I argue that it should not be for one of them acting alone—in this case the UK ministers—to veto proposals.
If Adam Tomkins’s intention is to protect the operation of the UK single market, it is a natural extension to support Neil Findlay’s amendment, which makes it clear that all four Administrations should be given equivalent and reciprocal commitments.
Parliament has had a lot of time for Adam Tomkins and his background and knowledge as a professor of constitutional law, and I certainly have a lot of time for him. However, today, he seeks to insert a section into a bill before the introductory section that sets out the purpose of the bill itself. That strikes me as being pretty close to parliamentary showboating. Mr Tomkins is a serious lawmaker but he should not have moved such an amendment in this area. I will move amendment 49 on that basis.
After last week’s 11 hours of Finance and Constitution Committee meetings, I did not intend to speak in the debate. However, having sat down and read more closely Adam Tomkins’s amendment 14, I felt that I had to get my feet and make a few points.
Adam Tomkins knows that I fully respect how he makes an argument and puts across his points, and we have worked closely together on issues around clause 11 of the EU withdrawal bill. However, I believe that amendment 14 is an attempt to put this and any future Scottish Government in a policy box and to restrict its choices. He might not mean to do that, but if we look, in particular, at subsection (3)(a) of amendment 14, we see a very wide power that is open to very wide interpretation. The amendment states:
“For the purposes of this Act, the exercise of any power so as to impede or obstruct the United Kingdom domestic market includes, but is not limited to, the making of any enactment—” a very wide power to give any future UK Government, which gets worse as it continues:
“that would result in regulatory divergence materially damaging the ability of individuals, corporations or entities based in Scotland to trade, contract” and so on. That is a very wide power.
I am grateful to Mr Crawford for his kind words.
The bill is called a continuity bill. The opening words of my amendment 14, as Mr Crawford will have noticed, seek to preserve in the United Kingdom, post-Brexit, the operation of the domestic market as it operates now, pre-Brexit, so that there is continuity between the situation now and the situation in the future: no more and no less. There is no greater ambition in amendment 14 than that. That is fully consistent with the purpose—or the alleged purpose—of the continuity bill, which is to provide for continuity. Will Mr Crawford not accept that?
I will take Adam Tomkins at his word—because that’s the sort of guy I am. However, although I do not often agree with Neil Findlay—I think that I have never agreed with him before, actually—on this occasion, he is right. This is not just about what has gone before; it is also about what the Scottish Parliament can do in the future.
What if we did not already have in place the minimum pricing legislation and the anti-smoking legislation? What about changes to future income tax rates—which the Tories argue will in some way undermine Scotland’s relationship with the rest of the United Kingdom right now, before we even pass this bill? What about differential support in agriculture, which already exists but probably could not exist in the future if amendment 14 were to be agreed to?
Can we set different business rates that would have a different impact to those in the rest of the UK? Landfill tax might be different—we have chosen not to make it different at this stage, but we may in the future choose to set a different level for Scotland. The current land and buildings transaction tax could be diverged from in the future. The Tories have argued that those policies are damaging to Scotland and damaging to the internal market.
If we leave the European Union—I hope that we do not—there may well be an argument that Scotland should have power over VAT, because it is EU legislation that prevents our having power over VAT. If Scotland decided to have a different VAT rate from that in the rest of the UK, amendment 14 would undermine the Scottish Parliament’s ability to do that.
I understand that Adam Tomkins wants to prevent the undermining of the UK internal market, but the argument is flawed and I believe that his amendment 14—whether inadvertently or deliberately—would undermine the devolution settlement. Adam Tomkins is very good at, and plausible in, putting across his arguments, but in the case of amendment 14—
T his year, I will have been an elected member for 30 years—I know that I am beginning to look it, one way or another. I have seen a lot of volte-faces from the Tories, especially on local government. The way that they stand up for local government now and the fig leaf that they put on themselves in relation to it is in stark contrast with how they behaved in the past in relation to local government.
There is a phrase—an accusation—that is sometimes levelled at those of us who support the idea of Scottish independence, but which should on this occasion be levelled at Adam Tomkins: he is stoking constitutional grudge and grievance. That is the basis of what he is trying to do with amendment 14.
I cannot support any of the amendments in the group. Of the three, the most reasonable—at least at surface level—is amendment 49, in the name of Tavish Scott, which would require ministers to make
“a statement on their assessment of the impact of the draft instrument on the operation of the single market”.
We need clarity about what terms such as “single market”, “internal market” and “domestic market” really represent, but it might be thought reasonable that such an assessment should be made.
However, the implication of the proposed approach is that it would be the Scottish position—the position that would be proposed by a Scottish Government and endorsed, I presume, by the Scottish Parliament—that would create regulatory divergence. If there is regulatory divergence, it is the result of multiple positions that are not the same, so to blame one position rather than another and to say that divergence is because of a Scottish instrument, rather than a UK instrument that applies elsewhere, is, to me, to make an unrealistic assessment. It is unrealistic to say that a Scottish draft instrument is entirely responsible, or to estimate the proportion of divergence for which the Scottish instrument, as opposed to measures elsewhere, is accountable.
I still think that in fulfilling the proposed obligation, the Scottish ministers would find it to be an impossible task to disentangle the proportion of divergence that had resulted from actions that were taken in Scotland.
Fundamentally, though, the argument goes deeper in relation to amendments 14 and 14A—in particular, amendment 14, in the name of Adam Tomkins. I think that we all accept that common frameworks will be necessary in some areas—whether in respect of the current devolution settlement, post-Brexit devolution, if it happens, or if, one day—oh, happy day!—we were to be developing with our neighbours the same relationships as other independent countries have with one another.
Common frameworks will probably still be necessary, but common frameworks must be based on consent, and consent must be active, it must be entirely voluntary and it must be capable of being withdrawn at any time. To pass legislation that would restrict our ability to withdraw consent for a common framework would be entirely at odds with that basic principle. It is a principle that those of us who support independence should be concerned about; it is also a principle that those of us who believe in preserving and strengthening the union should be concerned about, because if there is to be an approach that is aimed at delivering genuine common frameworks, with genuine consent, assent and affirmation on all sides, Adam Tomkins is going the wrong way about it.
I will be brief. I declare an interest, as a farmer, because my example is about farming.
The UK single market is vital to our farmers. Let me give one example. We export more than 80 per cent of our beef, and 90 per cent of that goes to England and we receive a premium in that market. Any restrictions on that trade would be disastrous for our farmers.
Farming is just one example. All Scottish trade depends to a large extent on the UK single market, so it is equally important for all our traders that the UK single market be protected. Therefore, I expect wide support for amendment 14.
I want to make two brief points. I am aware of the briefing that has taken place on amendment 14. Like many other members, I have full respect for Professor Tomkins, but I have to say that I found his contribution to be utterly depressing. It served his party rather than the serious debate that we are having today.
It is not appropriate to suggest that the problem with which we have to wrestle is whether Neil Findlay attended a committee meeting. I say to Professor Tomkins and other members who are considering supporting amendment 14, that the biggest strength of the United Kingdom is that the people of Scotland see their friends across the border as people with whom they wish to work and co-operate, and not as folk from whom they want to be separate. The strength of the United Kingdom is that the people of Scotland see that they are stronger and not weaker in it. We therefore should not see amendment 14 as some kind of litmus test of our commitment to the United Kingdom.
My second point is further to the comments that Neil Findlay made to the minister. I realise that we are dealing with stage 3 amendments, but I would be grateful if the minister could respond to this. It took Parliament two years to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The plan seems to be that, if we can get a deal with the UK Government, we will repeal right away the act that the continuity bill will become. That undermines the integrity of the work that has been done on the continuity bill in the past few weeks.
I seek a commitment from the minister that he is already in discussions with the parliamentary authorities and party leaders about the scenario in which a deal is reached, in order to ensure full scrutiny of that deal and that the committees of the Parliament have the opportunity to have a full and detailed look at how the continuity bill has changed the landscape.
We are no longer where we were at the beginning of the process, when emergency legislation was first mooted. It is a matter of credibility that Parliament should not take weeks and give people huge amounts of work to do to on amendments in producing legislation, only to turn round after a statement from the minister and say, “That’s okay—we’ll repeal the legislation.” I would be grateful if the minister, when summing up on the amendments, would indicate what his plans are in that respect.
I will address that point immediately. I have addressed it with Neil Findlay, but I am happy to do so with Johann Lamont. I appreciate the work that has been done in scrutinising the proposed legislation, and I will say more about that later. The work of all parties has improved the bill, and that will be clear this afternoon; it is clear from the number of amendments that we have accepted from members of all parties to improve the legislation. Clearly, there would need to be scrutiny in circumstances in which the Government came to the chamber and said that, under the act—there is a provision on that, which has also been changed during the process—we did not wish to proceed with it.
I accept that the bill has changed the landscape, and I hope that it has done so positively. We have pointed to areas in which there need to be change and divergence. An example of that is the protection of environmental principles, on which we have moved forward as a result of the hard work of a number of members, to whom I pay tribute. They include Claudia Beamish, Tavish Scott and Mark Ruskell, who have all been involved in that process.
There have also been changes in relation to protections on employment rights, which Neil Bibby, James Kelly and Neil Findlay have been engaged with. Later, we will consider an amendment relating to health, which Anas Sarwar has engaged with. There have been areas in which we have improved the bill and issues that we have raised. I give the same commitment that I gave to Neil Findlay. We will come back to the Parliament and discuss with the other parties the ways in which we can take those things forward. Neil Findlay agreed to write to me on the issue. I am happy to sit down with him and talk those things through, and we will come back to the chamber with recommendations.
Let me deal with the amendments in the group, which I must say are thought-provoking. However, in the case of Professor Tomkins’s amendment 14, the thoughts that it provokes are not entirely positive. The idea that Mr Findlay and I would unite happily as the bogies in favour of independence is so unlikely as to be the work of fantasy, and I do not often fantasise about Mr Findlay.
Indeed, and I hope that that first time does not arise.
In those circumstances, Professor Tomkins’s argument is ludicrous.
Given that amendment 14 comes from a professor of constitutional law, it is important to say that it is littered with undefined and imprecise concepts. One asks oneself why a professor of constitutional law would come to the chamber with an amendment that cannot possibly operate. Could it possibly be because he wants the amendment to be a blockage to the operation of the bill? I simply ask the question. For example, the meaning of “UK single market”, which appears in the heading but not in the body of the amendment, would be contested. There is a precise meaning for the EU single market, but there is no definition of a UK single market because that is not the right term. There is an internal market, but it is not a single market within the European definition. Do we want the lawfulness of regulations to be dependent on—to take another example—whether a court considers that they would impede “cultural activity and behaviour”? I am sure that not even my distinguished friend the Cabinet Secretary for Culture, Tourism and External Affairs would endeavour to define that phrase in a way that the courts would be happy with.
However, while the language in amendment 14 is imprecise, the intention is precise enough. If this is—as it might be—the manifesto for making Ruth Davidson the First Minister in 2021, it is absolutely clear what the Tories want to do: to make every action of this chamber subject to a decision of the UK Government. If that is their manifesto, I think that the only thing that Ruth Davidson will go on to win will be “The Great British Bake Off”.
Amendment 14 is also unnecessary, since, as Tavish Scott indicated, every party in the chamber—including the Scottish Government—is seeking agreement on frameworks that would support the highly integrated markets that exist across the UK. Mr Harvie is right: even in the case of independence, there would be a requirement and a need to have frameworks operating so that we could move forward in a way that is productive for all of us. That is one of the principles that we agreed with the UK and Welsh Governments when we began discussing those frameworks.
Let me just finish making this point.
Regrettably, there is only one Government in these islands that seeks to separate itself from a single market—and it is not this one.
The minister has alluded to the point that I was about to make. Does he agree that if we were eventually to embark on a course to independence, we would in no way wish to impede the freedom of movement of people throughout these islands in the way that those in the UK Government wish to impede it throughout Europe?
I entirely agree with that. Freedom of movement is not only productive and helpful; it is essential for a whole range of sectors in Scotland. Impeding it in that way would be very destructive.
I turn to Neil Findlay’s amendment 14A. I think that it is proposed in the right spirit and that it agrees with the issues of equity, which is important. It is very tempting to have the opportunity to vote twice against the Tory amendment: once to support Mr Findlay and once to vote against the whole thing. I see that temptation, but I will not commend amendment 14A to the chamber. The bill is not the place in which to resolve the questions that face these islands about the complexities of governance after Brexit should it take place. The place to resolve such questions is at the negotiating table between Governments, and in putting those agreements to the Parliaments across the UK.
I spend most of my life sitting at negotiating tables—as does Mr Findlay’s friend and colleague Mark Drakeford—and I will be very happy to do so again. I was about to say that, last August, the Welsh Government put forward a set of proposals on adjusting the governance in these islands. It came up with new ideas and I was very enthusiastic that they should be discussed. However, nothing has happened.
This afternoon, in the House of Lords, there will be consideration of the devolution clauses in the withdrawal bill. There is an amendment from Lord Mackay of Clashfern, with whom I have had the great privilege of discussing these issues in recent days. I know that he will say the same in the House of Lords this afternoon. I do not agree entirely with his amendment but he, too, is tackling the issue of how there should be different relationships and whether there should be what we might call a council of ministers for the isles. Even distinguished, thoughtful Tories—real experts in matters of constitutional politics—are looking at how such things should be adjusted.
Therefore I cannot recommend supporting either the amendment from Professor Tomkins or, unfortunately, that from Mr Findlay.
In any event, the bill is about what happens—what will need to happen—if we cannot come to an agreement. I have been clear from the beginning that we will seek its repeal if we come to an agreement that is approved by this chamber. I stress that point: provision in the bill could never bring about that agreement.
I turn to amendment 49, which is in the name of Tavish Scott. How could we be tied in the use of our powers in the bill to the concept of
“the single market in goods and services within the United Kingdom” if there is no definition of that? In any case, there is already divergence. An example of that is the minimum unit pricing for alcohol.
If we were to apply a definition of the single market as it appears to exist—even though it does not exist in the UK—we would be in breach of that definition in some areas. Indeed, when we come to issues such as environmental protection and employment protection, we would find ourselves in considerable trouble.
I understand what the member is trying to do but, unfortunately, it would not be possible to do what he seeks. I admire how Tavish Scott’s amendments had a greater success rate than almost any other set of amendments at stage 2 but, on this occasion, I cannot accept his amendment.
The bill is about asserting the Parliament’s right to legislate. At the heart of Adam Tomkins’s amendment 14 is the abdication of that right to legislate. We cannot support his amendment now; we would never support it. I recommend that members vote against the amendments in group 1.
It is important to start with an understanding of why it is important to protect the union post-Brexit, not only for the United Kingdom but for Scotland. Scotland trades more than four times as much with the rest of the UK as it does with the whole of the EU.
The Labour Party sometimes talks about having a jobs-first Brexit. More than four times as many jobs in Scotland’s economy depend on trade with the rest of the United Kingdom as depend on trade with the whole of the European Union. Therefore, it is imperative that, right at the top of the Brexit process, we in Scotland combine to protect Scotland’s rightful place at the heart of the United Kingdom. My amendment seeks to do that—no more and no less.
Of course, amendment 14 is written in general terms. The proposed new section belongs at the beginning of the bill rather than being buried somewhere in the middle of it. Some people have criticised me for putting it too soon in the bill and others have criticised me for not putting it soon enough.
It is a continuity provision in a continuity bill. I noticed that Mr Crawford was completely incapable—or perhaps unwilling—to respond to my rather elementary point that my provision would change nothing, but simply safeguard that which needs to be safeguarded after Brexit. No element of my amendment, if it is read in good faith, would make impossible, unlawful, illegal or difficult a smoking ban or differentiated tax rates between Scotland and the rest of the United Kingdom. However, not all contributors have sought to read it in that light.
Mr Findlay’s contribution was absolutely extraordinary for two reasons. First, he said that he could not support my amendment because it focused on the “Scottish Ministers”. The whole bill focuses on Scottish ministers; that is entirely the problem. The bill, if passed, would empower Scottish ministers—not ministers of the Crown, Welsh ministers or anybody in Northern Ireland—to do any number of huge and extraordinary things post-Brexit, none of which we should be permitting.
Secondly, Mr Findlay said that he wanted to put a time limit on the extent to which the Parliament protects the union. I do not want to put a time limit on that. The union has endured for three centuries and it should endure for three more. I do not want to put a clock on that. It is extraordinary that Mr Findlay, who is representing the Scottish Labour Party, wants to timeline the protection that this Parliament gives to the union.
Less than a month ago, Presiding Officer, you explicitly and unequivocally stated your view that the bill fell outwith the Parliament’s legislative competence. In the three weeks in which this legislation has been rushed through, we have, at times, lost sight of that hugely significant point.
However, the fact remains that, for the first time in the history of this institution, the Scottish Government has proceeded in defiance of you, the Presiding Officer, and your expressed view that the bill falls outwith the scope of our powers. This is an historic moment. If the bill passes into law, the Parliament will be rubber-stamping legislation in direct contradiction of the very person—in fact, the only person—who is not just asked but compelled to give their view on legislative competence.
That concept, it is said, lies
“at the heart of the scheme of devolution to which the Act gives effect”— that is, the Scotland Act 1998—and anything outside competence “is not law”. Here we are, turning that carefully calibrated scheme on its head.
The Presiding Officer gave one reason why the bill falls outwith the Parliament’s competence and, at stage 2, we provided other examples. We highlighted section 33 and schedule 1 as well as section 17(2) as instances of provisions that, in our view, lie outside the Parliament’s legislative competence.
Amendment 18, in my name, attempts to assist the Government. It provides in section 1, which is an overarching provision dealing with the bill’s purpose and effect, a safety mechanism to protect the Government and save it from itself. It ensures that the bill does not provide Scottish ministers with any powers that could be used in a way that would contradict the Scotland Act 1998—specifically section 29 of that act, which makes provision for the Parliament’s legislative competence.
The bill is holed below the waterline in many places as far as legislative competence is concerned. Amendment 18 provides a legal lifeboat for the Government, and I urge the minister to swim for it.
I move amendment 18.
The Tory obsession with boats today is rather interesting. We have seen the Tory MP for Aberdeen South throw fish from a boat in the Thames, and now we have Donald Cameron urging me to get into the water and swim towards the Tories. I will resist that blandishment.
Amendment 18 is, regrettably, another amendment from the Scottish Conservatives that is ostensibly directed at making provision on the face of an act of the Scottish Parliament that ministers must act within devolved competence, but it is actually an amendment to tell us to behave ourselves.
We discussed a range of similar amendments at stage 2. The reasons for rejecting the amendment are in line with the reasons that I gave at stage 2, one of which Mr Findlay has indicated. I believe that all those amendments from the Tories were rejected, and I urge members to reject amendment 18.
The issue of the bill’s legislative competence has been given a full airing in the scrutiny process that we have been engaged in. Moreover, the Scotland Act 1998 makes specific provision for the situation that we are in. We are satisfied that the bill is within the competence of the Scottish Parliament for the reasons that the Lord Advocate has set out.
No. I want to make some progress.
There is no need to put in this bill—or in any other bill—provisions that say that ministers must exercise their powers according to the Scotland Act 1998. We are doing so. There is no question of ministers being able to use the powers in a way that does not accord with the devolution settlement.
I heard the argument put on several occasions at stage 2, and we do not need it to be put again, as it was resoundingly defeated at stage 2. I believe that only the Conservatives backed it at stage 2, and I presume that that is where we will be on the matter in a moment.
There is a legal constraint on the Scottish ministers whenever they exercise any powers under an act of the Parliament. The Scotland Act 1998 tells us what is and is not within competence, and we would not support littering the statute book with such unnecessary provisions, which are, as I have said, designed only to remind the Government of what the Tories want us to do.
Given the Scottish Government’s cavalier attitude to the concept of legislative competence, the amendment remains completely necessary. The Scottish Government has real and grave problems with the bill’s legislative competence. My amendment would allow the Scottish Government to exercise powers in a way that was within competence and in a manner that was conversant with the devolution settlement. I press amendment 18 and ask for support for it.
Amendment 15 would toughen up the phrase “may have regard to” in the bill and would provide a more serious test that would give clearer guidance for retained EU law.
The amendment proposes that courts and tribunals must have regard to future European judgments that are relevant to their considerations. The Scottish court would retain the right to assess the significance of such judgments. If the withdrawal agreement between the UK and the EU says that there will be close regulatory alignment between the EU and the UK—as many of us hope there will be—a court or tribunal in Scotland would be encouraged by the provision to pay close attention to the determined meaning of the EU regulation.
The amendment would mean that it would be perfectly acceptable for a court or a tribunal, having been guided to consider EU judgments, to decide that none has significant relevance to the matter before it. My amendment would help courts to understand exactly what is expected of them and would help in the event that the UK had a relatively good withdrawal agreement with the EU on regulatory alignment.
I am grateful to the minister for his suggestions on how I could improve the wording of the amendment that was lodged at stage 2.
I move amendment 15.
As Tavish Scott said, amendment 15 relates to group 3, which is on the status of judgments of the European Court of Justice and their impact post-exit day. As he suggested, he seeks to tighten up the provision in question by replacing the word “may” with the word “must”. However, at the same time, he seeks to introduce a relevance test, which would leave it open to the court to decide whether to give consideration to such judgments. Therefore, I do not believe that amendment 15 would have a material impact on the bill as it is currently drafted. That being the case, we are content with the current wording of section 10.
I welcome amendment 15. Tavish Scott raised the issue that it addresses at stage 2. Although we understood the point, we thought that it was important to tidy up his amendment. His proposed provision would give a clear steer to courts and tribunals on their obligation to have regard to decisions of the Court of Justice when those decisions were relevant. Importantly, it would retain the courts’ discretion in that regard, which is the point that Mr Kelly made, but it would improve the situation, because they would be able to apply the duty in a flexible and proportionate way. For that reason, I recommend that members vote for Mr Scott’s amendment 15.
My amendments seek to replace the word “appropriate” with the word “necessary” and to remove the phrase “the Scottish Ministers consider”. We believe that the use of “necessary” instead of “appropriate” and the removal of “the Scottish Ministers consider” would result in a more objective process than the one that is provided for in the bill.
We recognise that it will be necessary to adapt retained EU law to enable it to work appropriately in Scotland. That should be the case on or after exit day. In order for that to be done within the timeframe available, we must confer some powers on ministers. However, my amendments seek to ensure that the use of those powers is “necessary” rather than simply “appropriate”.
We can all agree that the process should be above party politics and that it should be as representative as possible. That being the case, it is clear that we must make sure that any deficiencies in the bill are open to reasonable challenge. By replacing “appropriate” with “necessary” and removing any reference to “Where the Scottish Ministers consider”, we can achieve that. It is not sufficient to allow what ministers consider to be appropriate to guide the process; the public deserve and expect what is necessary to be done. My amendments would address a democratic imbalance and make ministers more accountable to Parliament.
We reject amendment 23, as it seeks to reverse a position that was previously agreed to at stage 2.
I move amendment 19.
This group contains a large number of amendments that are aimed at the regulation-making powers in the bill. Many of the issues that are covered by the amendments and, indeed, the wording of some of the amendments themselves were considered and rejected at stage 2.
Let me start by setting out the considerable changes that have already been made to the bill with the aim of tightening the scope of, and increasing the scrutiny of, those regulation-making powers. I know that those are matters of concern to Parliament. I understand that concern, and the Scottish Government has responded to it.
The Delegated Powers and Law Reform Committee made a specific recommendation about the equivalent powers in the EU withdrawal bill. It recommended that the test should be in two parts: the power should only ever be available where a test of necessity is met, and once that test is met, ministers should be empowered only to make the provision that they consider appropriate. Therefore, “necessary” and “appropriate” sit together. We have included that test of necessity in the continuity bill. It is not in the EU withdrawal bill. Under the continuity bill, Scottish ministers will be able to use the main fixing powers only where it is necessary to do so, with a test of necessity in the bill.
On introduction, the bill already reflected the recommendations of the Parliament’s committee that is dedicated to the scrutiny of statutory instruments. At stage 2, a number of amendments were made to the scope of those powers. The bill contains an exhaustive list of types of deficiency, and those had tests of necessity added to them by Opposition amendments at stage 2. For example, the type of deficiency that is described in section 11(2)(d) now exists only where it is “necessary” to
“make provision ... in connection with”
“arrangements which ... no longer exist” as a result of Brexit.
Those are both substantial and meaningful additional restrictions on the use of the powers in the continuity bill.
The position in the bill is the product of concessions that have been made by the Scottish Government and amendments that were made by the Finance and Constitution Committee at stage 2. When that committee finished its consideration of the bill in the chamber, late at night last week, I gave a commitment that the Government would return at stage 3 with a proposal to reverse any of the changes only if doing so was required to keep the bill operable—in other words, if the changes would prevent the bill from being able to do its job of preparing our laws for EU withdrawal.
Neil Findlay’s amendments 22 and 29, unfortunately, would do that. They would replace that second test that I described—that of allowing “appropriate” provision to be made once the test of necessity is met—with a further test of necessity. That is not what the Delegated Powers and Law Reform Committee recommended, and it would actually make the powers, in effect, impossible to exercise.
Sometimes, the type of provision that is required to address a deficiency in devolved law will require a choice to be made—for example, about which domestic body will take on a function that is currently exercised by the EU, or about how to adjust a reference to an EU instrument so that it continues to work after withdrawal. Having to make that choice might be necessary, and the bill already requires that, but having to choose the best options from a range of them could never be necessary.
Neil Findlay’s amendments 19 to 21, 26 to 28 and 45 also seek to constrain ministerial discretion in a way that could not work. They remove references to the Scottish ministers considering things to be necessary before the powers can be used, but they beg a question: if not the Scottish ministers, who will exercise these important powers? The tests of necessity and appropriateness and all the other legal tests in the bill will have to be considered to have been met by someone, and that someone will of course be the Scottish ministers. It will be the Scottish ministers’ judgment and discretion that are scrutinised when the regulations come before Parliament for scrutiny, and it will be the Scottish ministers who will be held to account. It could never be otherwise.
I mentioned at stage 2 the Government’s desire to make sure that the right balance is struck. As part of that balancing exercise, I actually commend to the Parliament Jamie Greene’s amendments 31 to 34. They make four further changes to the substance of the power in section 13, changing the word “appropriate” to the word “necessary”. That brings section 13 into line with changes that were made to sections 11 and 12 at stage 2.
Those amendments also address a concern that was raised at stage 2 by Graham Simpson, who suggested use of the word “operable”. We consider that use of the word “necessary” represents a higher test and should address that concern, particularly given the other amendments that the Government has lodged and supported in respect of the keeping-pace power.
As I said, I committed at stage 2 to seek to reverse any amendments that were made at that stage only if, after carefully considering them, I concluded that their effect was to render the bill or part of it inoperable. I have concluded that there is only one such amendment, and I seek the Parliament’s support in adjusting the position back. Amendment 23 proposes to change the word “necessary” back to “appropriate” in section 11(2)(f)(ii), but not in any of the other parts of the test. That is the one area where we believe that the deficiency has to be described by reference to the standard of appropriateness.
The provision is concerned with a deficiency in law that arises where retained EU law does not contain any functions that should be kept after withdrawal. The test was amended at stage 2 so that it referred to a lack of functions
“which it is necessary to retain”.
However, that could not work, because leaving the EU could arguably leave many functions, which we might all wish to retain, unnecessary. There could be functions that we would all be desperate to see kept going but which, being strictly not necessary, had to be disposed of because of the amendment that was made at stage 2. For example, if there was an annual report that had to be submitted to the European Commission on a matter of environmental concern, keeping that function going after withdrawal could never be said to be necessary by the tests in the bill, but it might be appropriate to decide that the function of receiving the annual report should be conferred, instead, on the Scottish Environment Protection Agency. Amendment 23 would allow such changes to be made; without it, we could be bound in law to eliminate functions that we want to keep. Taken with Jamie Greene’s amendments, which we support, it would mean that the same scheme applied across sections 11, 12 and 13.
I stress again that we have not lodged amendments to seek to reverse the new word “necessary” in sections 11(2)(c), 11(2)(d), 11(2)(e) or 11(2)(g), because we accept those changes. If the Parliament votes for my amendment 23 and Jamie Greene’s amendments 31 to 34, the result will be a strong set of logical limits on the ministerial powers in the bill that will be applied consistently across the bill’s provisions and which will have been strengthened at stages 2 and 3.
I invite the Parliament to reject amendment 54, which, in relation to the publication of a statement by ministers, would remove the words
“in such manner as Scottish Ministers consider appropriate”.
That is the same wording that is used in the EU withdrawal bill. I repeat that we do not think that the removal of those words would add anything at all to the bill. The Scottish ministers will be responsible for publishing those statements and, of course, they would have to do so in an appropriate manner.
I urge the Parliament to vote for amendment 23, which I will move, and for amendments 31 to 34, and to vote against the other amendments in the group.
My amendments 31 to 34 relate to section 13, which gives Scottish ministers the power to make provision corresponding to EU law after exit day. It has perhaps been one of the most contentious areas of the bill, and we spent many late hours in the chamber debating it at stage 2. As it stands, the bill has sections that would allow the Scottish Government to continue to implement new EU law, directives and regulations after exit day—after the UK has left the EU and after the transition period has ended. It is quite reasonable to assume that we might see a situation whereby Scottish ministers will choose to implement EU laws, without having any representation in the European Parliament, no Scottish MEPs, no representation in the Council of the European Union and no Scottish representation in the European Committee of the Regions.
If the bill is passed today, Scotland would be a rule taker rather than a rule maker and the principle of no legislation without representation would simply disappear. The Scottish ministers want to implement laws when our only influence on them would be through lobbying efforts in Brussels and Strasbourg. That position is simply unacceptable to Conservative members. Section 13, it stands, is nothing more than a back-door attempt to create regulatory divergence and conflict in the UK. A cynic might say that the Scottish National Party wants additional powers to adopt any EU regulations that it sees fit to help Scotland meet the criteria of the acquis communautaire, in what seems to me a desperate attempt to align itself with Brussels. This Parliament should never forget that the SNP wants to rejoin the EU and hand all those powers back to Brussels. My amendments, to replace the word “appropriate” with the word “necessary”, are therefore important.
The power to pass EU law into Scots law after exit day should be used only out of necessity, not when Scottish ministers consider it “appropriate”. What is appropriate to me might be different from what is appropriate to the minister, the Parliament or, indeed, the country. However, there might be circumstances in which it is necessary to transpose EU regulation—for example, to maintain frameworks in which Scotland and the UK continue to participate after exit or when it makes logical sense to do so.
I am making my closing comments.
My proposal means that Scottish ministers would still have the power to make changes, but must do so out of necessity alone and not for subjective reasons. If the provision is agreed to unamended, the Scottish Parliament will simply be handing ministers a blank cheque.
I say to all members that it does not matter whether they voted remain or leave; what is important is that the bill does not attempt to undermine the result of a UK-wide referendum on the European Union, nor should it be a back-door excuse for the SNP to hand powers back to Brussels.
I am a little puzzled by Jamie Greene’s speech because, if I heard the minister correctly, he said that he will accept amendments 31 to 34. I also agree with Jamie Greene’s amendments. They are consistent with the amendments that we debated at stage 2. I appreciate his arguments, so I think that his speech was perhaps out of line with the fact that Parliament will probably agree to his amendments in a couple of minutes.
I also support the minister’s amendment 23, given that the change that was needed at stage 2 by my amendment means that section 11(2)(f)(ii) is protected by a test of reasonableness that is mentioned at the start of section 11(2). I take the minister’s argument on that.
I certainly support Neil Findlay’s amendments. I note the minister’s concerns about them, but much of the Parliament’s concern has been about the need to restrict appropriate ministerial discretion and allow a more objective test to be in the bill. I agree with the argument that Neil Findlay made on that point.
I am not sure what is more surprising: Jamie Greene’s anger at his amendments being accepted, or the speed with which Conservative members—who, a couple of years ago, said how important it was to protect our place in Europe and that being a member of the European Union was a good thing—have become angry at the fact that some of us still think as they did.
I accepted in general terms the two basic arguments that were put forward at stage 2.
No, thank you.
I accepted in general terms the change of language, but I also indicated that, where the Government thought that it was important, for technical reasons, to revisit some of those specific areas, I would be open to that argument. I am pleased that the minister has found it necessary to do that in only one place, and I accept his amendment.
In most instances, I did not accept the arguments that Neil Findlay made when he moved his stage 2 amendments, which were about ministers having the ability to consider something—in other words, that the views of ministers would have a role, and that there would not just be an objective test. I fear that if we had gone down that road, we would have ended up with a number of potential lengthy and significant legal challenges to ministers taking action to introduce instruments and regulations because somebody felt that they had not met an objective test, when that objective test had not been defined in the legislation. If there is to be an objective test, how it is to be met must be clear. I still take the view that it would not have been clear if we had gone down the road suggested by Neil Findlay’s amendments.
The amendments in this group are technical amendments to tidy up the bill following amendments agreed at stage 2, and to make some minor improvements. The amendments are minor.
Amendments 24, 25, 30, 35, 40 and 42 reflect the intention of amendments agreed by the Finance and Constitution Committee at stage 2 to prevent the main powers in the bill being used to establish new public authorities. Tavish Scott raised the issue at stage 2. Accordingly, the bill is being amended to ensure consistent prohibitions on doing that and to remove unnecessary references to the power.
Amendment 36 takes out the word “broadly” so that section 13 matches the changes that the committee agreed to sections 11 and 12 concerning the modification of rights and protections. If I remember correctly, Mr Dean Lockhart was successful with his amendment on the word “broadly” at stage 2.
Amendments 57 and 64 take up a Law Society of Scotland technical suggestion to use the standard definition of “enactment” in the Interpretation and Legislative Reform (Scotland) Act 2010. I am grateful to the Law Society of Scotland for its interest in this bill. It has commented on each stage and although I have not agreed with all its comments, some of them have been very useful. We are happy to welcome this suggestion.
Amendment 46 is a minor clarification of the consultation requirement in section 15. The requirement to provide reasons for considering it necessary to make provision to prevent, remedy or mitigate a deficiency applies only to a consultation on proposed regulations under section 11(1).
Amendments 55 and 59 correct minor typographical errors in the wording of the two provisions to which they refer.
I recommend that members agree to these amendments.
I move amendment 24.
As the minister said, these are largely minor technical or correcting amendments. A number of amendments in this group effectively streamline changes made at stage 2. Amendments 57 and 64, in the name of the minister, provide welcome clarity in relation to the definition of an “enactment” for the purpose of the bill. I join the minister in thanking the Law Society of Scotland for its invaluable input and interest in the bill. Given that the amendments are largely minor and technical, my Labour colleagues and I are minded to support all the amendments in the minister’s name.
I support amendments 25 and 30, which stop new public authorities from being created under section 11 or section 12. Many of us argued at stage 2 that if ministers want to establish a new quango to keep pace with EU law, they should introduce primary legislation so that Parliament can decide whether such a new body is required or whether its functions could be dealt with by existing bodies. The minister’s amendments extend that to sections 11 and 12. I am grateful to the minister for accepting that argument. Like Neil Bibby, I support the other technical amendments in this group.
I say to the Conservative chief whip, Maurice Golden, that it is usually the Liberal Democrats who cannot sort out how they are voting on an amendment, so I have utter sympathy for him at this moment.
I hope that amendment 37 in some ways helps Patrick Harvie in relation to the debate that we had on the first group of amendments. At stage 1, I spoke about the need for Governments across the UK to co-operate. Scottish ministers should consult the other three Administrations prior to taking action to keep pace with EU law under section 13 after exit day. Every political party has spoken about the need for those framework agreements and co-ordination across the UK as powers are allocated from March 2019.
Amendment 37 says that, in the event that every one of the other three Administrations specifically asks the Scottish Government not to make a particular regulation to keep up with UK law, that regulation cannot proceed. However, if ministers wished to make such a regulation, given that background, the proposal would have to be made through primary legislation. The Parliament would therefore be able to look at the proposal in detail and we could consider why the other Administrations were opposed to it. The Parliament would be able to hear from businesses, business interests, environmental groups and other stakeholders. We would be able to protect the working of the UK internal market that other members have mentioned from action by a single Administration.
Amendment 37 represents what I would describe as a federal idea of co-operation, and it is in direct contrast to the Conservative approach, which puts control of these issues entirely in the hands of UK ministers.
Amendment 61 makes the commencement of section 13, which was the section of most concern to members prior to stage 2, subject to the affirmative procedure, requiring a vote in Parliament. It must be preceded by a report from ministers setting out clearly their justification for using the powers in section 13.
The bill is being dealt with through a truncated scrutiny process, so amendment 61 allows Parliament to consider further, at a later date and therefore with due consideration, the keeping-pace powers that are being sought by ministers. It reflects the concern that has been expressed through the amendments that Mike Rumbles has lodged to remove section 13 from the bill, which were intended to repeat the amendment that was debated at stage 2. Those amendments make it clear how important it is for all of us to accept that section 13 powers are extensive and, in that sense, special. It is why section 13 has been singled out by amendments at stage 2, and further amendments today, to restrict the powers that ministers have under section 13.
Today, at stage 3, I ask the Parliament to consider locking the commencement of section 13 behind an affirmative process that would allow every member of this Parliament to vote on it after due consideration in the months ahead.
I welcome amendment 41 from the minister, which replicates an amendment that I moved at stage 2. The amendment would make sure that all section 13 orders were subject to the affirmative procedure. I recognise that the minister has significantly changed his position since stage 1.
Ash Denham’s amendment 38 requires ministers to report on section 13 powers, and I support that.
I move amendment 37.
I have lodged a number of amendments in this group to deal with section 13 powers, which are extensive powers. I see Neil Findlay smiling at me, because he got in seconds before I did at stage 2 to lodge a similar amendment. Amendments 2 and 4 are points of detail that ought to be agreed by members across the chamber, and amendment 3 will be pre-empted by amendment 40.
The minister’s amendment 41 would make all of the section 13 powers subject to the affirmative procedure, and I welcome that improvement.
Amendments 2 and 4 simply tidy up the wording to remove the duplication that would otherwise exist in section 14(2).
I am pleased that section 13 powers will be locked behind an affirmative procedure. That means that every MSP will get the opportunity to vote for them or to reject them whenever they come before us.
My amendment 1 repeats an amendment that was lodged at stage 2 to remove section 13 from the bill completely. It was important at stage 2 and it is important today to show just how significant the powers in section 13 are and how very careful ministers must be in exercising them.
Amendment 38 responds to concerns that members expressed at stage 2 about the Scottish Government’s ability to renew the keeping-pace power. The minister gave a commitment that any proposal by the Government to renew the power would be accompanied by details of how the power had been used up to that point. That would ensure that the Parliament was fully informed about the use to which the power had been put when it was considering any proposal to renew the power for a further period.
Amendment 38 would require annual reports to be prepared on the use of the keeping-pace power. It would require reports to be laid before the Parliament as soon as possible after the end of each year. That would mean that, if the Scottish Government proposed to renew the keeping-pace power, the Parliament would be able to consider and scrutinise the ways in which the power had been used before it made its decision.
As we know, the amendments in this group concern the keeping-pace power. I recognise, as I have done since the bill was introduced in the Parliament, that concerns about the power are honestly and strongly held by members across the Parliament. I have spent a lot of time talking about those concerns and reflecting on them—before stage 2, during stage 2 and again now.
Let me say at the beginning that I continue to believe that it will be necessary to have a power of this sort, to help us to smooth the transition from implementing EU law under section 2 of the European Communities Act 1972 to legislating without having the structure of the 1972 act sitting behind so many fields of law. The keeping-pace power is a practical, useful power to have. It will therefore come as no surprise that the Government will not recommend that the Parliament agree to amendment 1, in the name of Mike Rumbles, which would delete the power entirely.
Yesterday, during stage 3 of the Forestry and Land Management (Scotland) Bill, Mike Rumbles mentioned the power in section 13 of this bill and suggested that ministers do not know what to do with such powers. Let me give him three examples of how the power might be used—I have used these examples in other places, but some members might not have heard them.
The first example is to do with fish disease. I speak as a former environment minister. European lists of fish diseases are constantly updated because, as new fish diseases occur, it is important that the aquaculture sector knows about them and can react to them. Our having a keeping-pace power simply means that, when the list is updated in the EU, it can be updated without primary legislation in this Parliament—a minor but exceptionally important thing to do.
The second example, which also relates to the environment, is about invasive species. There is a real danger from invasive species across the whole of Europe. If changes are made to the regulations in that regard, it is important that our domestic law changes, too, without primary legislation.
The third example is to do with animal health, which is an area in relation to which we have discussed and continue to discuss the need for a framework. That framework needs to be updated with information from elsewhere.
All those examples are comparatively minor uses of the power, but they are of vital importance to the sectors concerned. There is a need for a keeping-pace power, and there are places where that need can be reflected.
We have adjusted the power since the bill was introduced—Mr Scott referred to that. Let me indicate how the power has been adjusted. The changes that were made at stage 2, the changes that have been debated today and the changes that will be made by amendments in this group should be—I hope—sufficient to address members’ concerns and result in a keeping-pace power that is proportionate, usable, flexible and subject to the most appropriate standard of scrutiny in the chamber and committees of this Parliament.
The Government has always accepted that the power should be sunsetted. At stage 2, Murdo Fraser presented the committee with what he called a “menu” of choices on the length of time for which the power should be capable of being renewed. I cannot express great enthusiasm for à la carte legislating, but I think that the result that was reached at stage 2 was a fair one. The initial period for which the power will be available is now three years, with annual renewal thereafter. Because of another amendment that was agreed to at stage 2, renewals cannot keep the power in force for longer than five years in total.
The effect of the amendments was well summed up by Patrick Harvie in the committee. If, as we approach the end of the five years, the Government—whatever Government it is—takes the view that the power is a good and necessary one, and if it can demonstrate that by pointing to examples of its use, it can return to the Parliament with a bill—primary legislation—seeking the power’s enactment. That sounds right to me. As I have said, the power is intended to smooth the transition between one approach to legislating and another during a period of enormous uncertainty over precisely what we will be legislating for.
At stage 2, Tavish Scott was successful with an amendment that removed the ability to use the power to set up public authorities. Another amendment at stage 2, which meant that the urgent procedure could not be used for section 13 regulations, was successful. The Government has accepted those amendments and has not sought to reverse them.
Earlier today, during stage 3 consideration, we accepted a number of amendments that were lodged by Jamie Greene, which replace tests of appropriateness in section 13 with tests of necessity, bringing the tests in section 13 into line with other tests in the bill.
That brings me to the amendments in the group, which contain the final set of changes that I think are required to address Parliament’s concerns. My amendment 41, taken with Mr Rumbles’s amendments 2 and 4, which I will support, will ensure that all regulations that are made under the keeping-pace power are subject to the affirmative procedure as a minimum. That means that the Parliament will be given a positive vote on every proposal to use the keeping-pace power to change devolved Scots law, corresponding to a change in EU law.
The Government also supports Ash Denham’s amendment 38, which would give statutory form to a commitment that I made at stages 1 and 2. We would only ever seek the renewal of the keeping-pace power where we were able to demonstrate to Parliament its usefulness and appropriateness. Ash Denham’s amendment therefore requires us to lay before Parliament annually a report on the uses to which the power has been put, which is a process that was suggested in a different context at stage 2. That means that Parliament will be fully informed about any proposal to renew the power and will be able to scrutinise in the round the uses to which the power has been put.
I cannot recommend that Parliament accept Tavish Scott’s amendments 37 and 61. Amendment 37 would give the UK Government, the Welsh Government or any part of the Northern Ireland Executive, acting together, an effective veto over a power held by the Scottish Government and Parliament. In line with the memorandums of understanding, we keep other Administrations well advised when our legislation touches on matters that are within their responsibility. Although I recognise and respect the concerns that lie behind amendment 37, a veto is unnecessary and surely cannot be right.
Amendment 61 would make the commencement regulations to bring the keeping-pace power into force subject to the affirmative procedure. I believe that that, too, is the wrong approach. Commencement regulations are not usually subject to procedure, for good reasons of principle and practice. Parliament makes the decision whether a delegated power should be conferred at the point when it agrees the inclusion of that power in primary legislation. At that point, Parliament will have the opportunity to scrutinise the Government and debate the proposal to confer the power. It would not be useful, or indeed sensible, to have that debate once again using subordinate legislation procedure or to use the setting of the commencement date as, in effect, a proxy for the substantive question.
I have set out the Government’s reasons for seeking Parliament’s approval of the power as well as the significant package of changes that were made to the power at stage 2 and that are being made today at stage 3. I hope that that will be enough to satisfy Parliament that the power is being taken for good reasons and that, if the bill is passed later today, it will confer on the Government a flexible and practical power but one that is no more flexible than is necessary and one in which the Parliament is centrally involved at every step. I therefore recommend that members vote for amendments 2, 4, 38 and 41 and against the other amendments in the group.
At stages 1 and 2, my Labour colleagues and I made no secret of our reservations about section 13, which is widely regarded as the most controversial section. I have made that point on a number of occasions, as have committee witnesses, and the minister has accepted it previously and again today. Although the minister has not changed his view that section 13 is necessary, I acknowledge his remarks on it today and during the stage 2 proceedings.
The minister has accepted the need for “scrutiny and restraint” in relation to section 13, and he has been clear that the power must be “properly used” and “limited”. Those remarks have provided some reassurance, as has the Scottish Government’s openness to amendments in the area. As the minister said, at stage 2, Murdo Fraser’s amendments 169 and 173, which limited the timescales within which section 13 powers can be exercised, were accepted. Today, I welcome amendment 38, in the name of Ash Denham, which introduces regular reporting on the use of section 13 powers. I also welcome Tavish Scott’s amendment 37 and the minister’s amendment 41, which makes the use of section 13 powers subject to the affirmative procedure.
Section 13 still grants significant and far-reaching regulation-making powers to the Scottish ministers. Throughout the process, I have made clear my concerns about the section. I would prefer it not to be in the bill at all. However, if it is to be in the bill, we should ensure that it goes ahead with the maximum parliamentary scrutiny and that checks and balances are built into the bill. For those reasons, I am minded to support all of the amendments in the group, if they are moved.
Section 13, on the power to make provision corresponding to EU law after exit day
, has been one of the most problematic sections. Initially, it sought to concentrate power over regulations in the hands of ministers and away from Parliament. I would have preferred to see the whole section removed—indeed, Labour submitted such an amendment at stage 2 but it was not accepted by the Parliament, and the amendments that have now been lodged by parties across the Parliament have diluted and put much more control and restraint on ministerial powers. For that reason, we will support those amendments and reject moves to hoard powers in ministerial hands at the expense of Parliament.
I put on record that, as Mike Rumbles knows, during the stage 2 debate I misinterpreted comments that he had made earlier. I apologise to him for doing so. T he wider point that all of us should acknowledge—Mr Rumbles is right to remind us of it—is that the powers in section 13 are extremely significant and that, by approving them, we will do something that should trouble us all, including ministers.
We should be troubled by the situation that we face, and I do not believe that that situation, which will be coming at us through the Brexit crisis in the coming years, will be manageable if we delete section 13 altogether. That would be unreasonable. Members from other parties who took part in the stage 2 process know that I voted for a number of significant restrictions to those powers and others in the bill. All Opposition parties have managed to achieve changes that strike the appropriate balance, and I am grateful that the ministers are not seeking to reverse all of those but have accepted that a balance needs to be struck.
Mr Russell has clearly said that, in a much shorter timescale, the Government will be able to return and ask Parliament to change that provision if necessary. The Government will not have the comfort of knowing that those powers will be there for an extended period of time. I think that we have got the balance about right, given the deeply imperfect and wrong situation that we have to face.
I will talk briefly about Tavish Scott’s amendments in this group. I understand the case that he makes for something closer to a federal relationship. As long as we are part of the UK, a case can be made for something that feels more like such a relationship between the Governments of these islands. However, I see no appetite at all for that elsewhere. It takes more than one—in this case, more than two—to tango. If we have an Administration in Northern Ireland that does not even exist and another at the UK level that is a minority Government, I see no reason why a letter from a secretary of state—or even a resolution of the Westminster Parliament—should block this Parliament from taking action that, by a majority, we consider needs to be taken or should be supported. Therefore, I am afraid that I do not support amendment 37.
The minister knows that I have been open to amendment 61. I listened to his comments and I am still not clear why the minister thinks that that amendment is unworkable. It requires an affirmative procedure for the regulations that would bring section 13 into force, and only a one-month period between the laying of a report about such issues and the laying of the regulations. Given that I do not anticipate that he wants to lay regulations bringing that section into force within a month from now, that seems reasonable.
I have listened to the minister, but, if he wants to intervene and give me a clearer reason for not supporting amendment 61, I will listen to him. However, I am currently tempted to support that amendment because I have not heard a clear reason for its being unworkable. I understand that it might be inconvenient for the minister—
I hoped that I had made a cogent case for rejecting amendment 61. Although I am not unsympathetic to it, I believe that it places the issue of the commencement date in yet another piece of subordinate legislation as a proxy for the substantive argument.
Normally, a substantive argument, not a commencement date, is the subject of subordinate legislation. I consider that that is the right thing to do, but there are occasions when all the parties in the chamber will differ. If Mr Harvie differs on that matter, I understand.
I take Patrick Harvie’s point. On amendment 61, if I caught the minister right, he said that such an approach was not usually used. However, he has also said that we are not, in any possible context, in the usual circumstances—and I entirely agree with him. I hope that Patrick Harvie and other colleagues across the chamber accept the argument that the amendment would add an extra layer of accountability. I appreciate that that would be uncomfortable for the Scottish ministers, who consider that they have gone far enough already, but, this afternoon, Parliament is making the argument that amendment 61 adds to the scrutiny process.
On amendment 37, I take the minister’s and Patrick Harvie’s point. If that section were a veto, I would not support it either. They need to listen to the other part of the argument that I made. If ministers considered that they had made the right case for an important policy change, the amendment would allow them—indeed, it would encourage them—to introduce primary legislation in that policy area, which Parliament could then scrutinise. All that I have sought to argue for in section 30 is a level of scrutiny and parliamentary accountability. I consider that to be consistent with the concerns of members across the chamber about the whole of section 30, which, as the minister rightly said, is a very different beast to the one that we started with three weeks ago. On that basis, I press amendment 37.
Amendment 39, which is supported by Colin Smyth, would oblige Scottish ministers “to have regard to” environmental and animal welfare guiding principles when exercising the regulation-making powers in sections 11(1), 12 and 13(1). The regulation-making powers would enable Scottish ministers to ensure that devolved EU law continues to operate effectively, to comply with international obligations and to keep pace with developments in EU law after UK withdrawal.
It is important that the continuity bill make explicit reference to the five guiding principles that are included in my amendment 39. Although the general principles are included in the Charter of Fundamental Rights of the European Union, the guiding principles are not enshrined in the same way. I stress that proposed subsection (4) is worded to take account of principles that have not been through the European Court of Justice. Ministers should have regard to such principles whether or not there is case-law precedent. They are vital in focusing minds on environmental decision making and have real application in Scotland.
I will give some quick examples. The precautionary principle ensures that we do not take action when there is doubt. It was used in discussion about emerging evidence that fish-farm chemicals can damage burrowing animals’ nervous systems in the food chain, and can damage marine ecosystems in the longer term.
The principle that preventative action should be taken to avert environmental damage has delivered action on air pollution and air quality. Glasgow City Council just this week referred to preventative action in its plans for the first low-emission zone and retrofitting of buses.
Ensuring that environmental damage is rectified at source is the third principle. It is essential in preventing, for example, eutrophication that is caused by animal waste entering our water courses, which causes burns and rivers to become overly rich in minerals and nutrients, and thereby to become overgrown with water plants and, likely, to be depleted of oxygen.
The polluter-pays principle has real importance for our communities as well as for our environment. In 2013 the Court of Session’s ruling on opencast coal mining sites ensured that former mines are maintained by the Scottish Coal liquidators, in order to prevent further environmental damage. It also ensures that the cost of such things is not met by public money. The Dalquhandy opencast site, in my region, is a clear beneficiary of that principle, in respect of forced restoration.
Finally, there is the recognition that animals are sentient, on which Colin Smyth will say more.
For years, EU directives and treaties have focused our minds on air, marine and terrestrial environmental issues. It is fundamental that those be enshrined in our laws through the continuity bill.
I also speak in support of Mark Ruskell’s amendment 56. A duty to consult is essential for guiding principles and governance in relation to the environment. It is an important obligation because it relates to compliance with the law and to effective implementation of it. The timescale in the amendment is also valuable.
I have already highlighted the significance of the guiding principles in my remarks on my amendment 39 through some examples; there are many more that I do not intend to rehash.
I support amendments 39 and 56.
I move amendment 39.
We might be leaving the European Union, but we are certainly not leaving our environment. Amendments 39 and 56 are vital because they would save and retain the important guiding principles that have protected our environment and animal welfare in recent years.
Not only would they protect the principles as they exist at the moment, but they provide a foundation to build on progress and to build future policy and future laws that will protect our environment for the decades to come.
I thank colleagues across the Labour and Liberal Democrat parties and I thank the minister for the constructive negotiations that we have had in developing amendments 39 and 56. This is what mature politics looks like. There are no wrecking amendments in this group—there are only amendments that will stop our environment being wrecked.
Claudia Beamish outlined the importance of the principles in amendment 39. For me, the principle of animal sentience is absolutely vital. We see animals as sentient beings and not simple commodities to be traded across boundaries.
The principles are part of our everyday work. In the Environment, Climate Change and Land Reform Committee on Tuesday, our entire debate about salmon conservation was dominated by our interpretation of the precautionary principle. That is the right thing, and it should continue.
Amendment 56, in my name, would ensure consultation on how we interpret the principles after withdrawal. It would bring clarity about the functions that public bodies have in monitoring and regulating our environment. It would also ensure, I hope, that there is not a governance gap, on withdrawal.
The role of the European Court of Justice is particularly important in that regard. We should think about how instrumental the ECJ has been in driving action on air quality across the UK. Anyone who has followed the debates on low-emission zones over the past couple of days will realise just how important it is that we have an independent body that can hold public bodies, including Government, to account.
I note comments by Ruth Davidson in today’s
, backing environmental courts. Although the Tories were not involved in cooking up my amendment 56, I certainly hope that Ms Davidson and the Tories will support it as the best way of delivering environmental courts in Scotland. We need to put the matter out to consultation and drive the argument forward.
At stage 2 I lodged amendment 3, which proposed that the principle behind article 13 of the Treaty on the Functioning of the European Union, which recognises the sentience of animals, be included as one of the general principles of EU law. Tavish Scott and Mark Ruskell lodged similar amendments. At the time, I did not press my amendment, because the minister committed to working with me and others on proposals for stage 3. Claudia Beamish’s amendment 39, which I support, is the outcome of those discussions with the Government, so I want to record my thanks to MSPs from across the chamber, the minister and Scottish Government staff for their work in getting us to the stage at which amendment 39 could be lodged and—I hope—agreed with full cross-party support.
Amendment 39 would create a clear statutory underpinning for a number of vital issues, but I want to speak briefly about proposed subsection (3)(e) in the amendment, which relates to animal sentience. As I have said, the principle of animal sentience is currently enshrined in law in article 13 of the Treaty on the Functioning of the European Union; it is vital that it be protected as we move forward.
The sentience of animals is well established—the science is conclusive and the principle is implicitly recognised in other legislation. However, there is no space for complacency or, indeed, for legal ambiguity. Although the Animal Health and Welfare (Scotland) Act 2006 works to achieve aims that are based on the principle of animal sentience, that principle is not explicitly mentioned in that act: indeed, the scope of the legislation is narrow, and it does not cover free-living wild animals, animals that are used in scientific procedures or anything that is done in the normal course of fishing. Crucially, it applies to individuals who are responsible for animals, whereas article 13 applies to Government policy.
We must make it clear that we, as a Parliament, recognise the sentience of animals, and we must provide an unequivocal statutory basis for that principle. I therefore urge members to support amendment 39, which has been lodged by Claudia Beamish and which I support.
First, I make it clear that the Conservatives agree with the guiding principles on the environment and animal welfare. However, the codifying of EU law in the continuity bill would, in my view, ultimately be superfluous. International law already obliges us to apply the guiding principles as long as Scotland is a member of the UK, which is signatory to international treaties, and to which we are bound.
On that basis, then, there is, for me, no reason to have constructed amendments 39 and 56, which have just been spoken to.
Surely Maurice Golden will agree that some international laws are more or less robust than EU law, but that it is EU law that has set out the guiding principles—and, through the charter of fundamental rights, the general principles—for our laws in Scotland. It will of concern if he does not acknowledge that and does not consider supporting amendment 39.
Again, let us be clear: EU law is, in this respect, undefined. I will articulate that particular point. Article 191 of the Treaty on the Functioning of the European Union mentions the principles only once, but it neither defines them nor elucidates what they mean for people who reference EU law.
Furthermore, article 191 states that
“Union policy ... shall” take
“into account the diversity of situations in the various regions of the Union” and that those principles shall be subject to the European Court’s interpretation. It strikes me, therefore, that amendments 39 and 56 are ultra vires, as the European Court would be outwith our jurisdiction and interpretation of application of the guiding principles—which are undefined—could lead to the risk of environmental harm or, at the very least, to unwanted changes to environmental practices in Scotland.
With regard to the principles, I will, in the interests of time, provide one example. The precautionary principle was established through the Montreal protocol and was latterly codified by legally binding treaties—the Rio declaration and the Kyoto protocol. The UK is signatory to those treaties, so the principle comes within our auspices and falls within our competence with regard to our adhering to and dispensing environmental law in Scotland.
Let us now consider the EU. On 2 February 2000, a communication from the European Commission on the precautionary principle stated:
“in practice, its scope is much wider, and ... may be inconsistent with the high level of protection”.
Therefore, we would be leaving ourselves open by agreeing to the amendments without a definition. We do not know how the precautionary principle, undefined, would be applied. Are we looking at non-preclusion, a margin of safety, the best available technique or a prohibitory approach with respect to that application? We would be left wide open.
Amendments 39 and 56 represent bad law that is constructed badly and are, thus, entirely in keeping with the rest of the bill. There is no clarity, and a governance gap has been created. However, we support the rationale behind the amendments and recognise that the members have the best intentions. Therefore, we will support them.
That is what we call throwing a googly at the end.
Once again, we have heard a Conservative colleague condemning for several minutes amendments that we will all, ultimately, I am pleased to say, support.
Amendments 39 and 56 are really important. We know that environmental policy has been one of the things that Europe has been good at. We also know—we would be foolish to ignore it—that some of the people who are leading the Brexit charge in the UK Government are, for example, avowed climate-change deniers. They have been hostile to environmental policy on a range of issues and are ready to frack the country as much as they can. We need to ensure that our legislation passes the test of protecting the country against that agenda. The UK legislation monumentally failed that test, so I am very pleased that the continuity bill will not fail it.
I am also pleased that, after a stage 2 process in which three political parties brought different approaches to try to reach essentially the same outcome, they had the chance to sit down alongside the Government and figure out how to get agreement on the principles and on the actions that the Government needs to take to avoid a governance gap arising in relation to our environmental policy in Scotland. I am grateful to everyone who has put in the work over the past wee while to reach that point.
As the minister mentioned in the debate on the first group of amendments, there will be aspects of the legislation that will need to be maintained even if the minister eventually reaches agreement with the UK Government—I am not convinced that that is possible—and asks the Scottish Parliament to repeal the legislation after we have passed it. I cast cold water on that scenario, but if it happens, aspects of the legislation will need to be carried over—the guiding principles in question, on environment and animal welfare, being one. Now that we are agreeing on the matter across the parties, that needs to be preserved in our approach to the Brexit crisis, regardless of what happens to the legislation in the negotiation between the two Governments.
I am pleased to agree to amendments 39 and 56 in the names of Claudia Beamish and Mark Ruskell, and I am grateful to them, to Colin Smyth and to Tavish Scott for working with the Government to refine their stage 2 amendments to ensure that appropriate regard can be paid to the guiding principles on environment and animal welfare. The amendments and a number of other groups of amendments have been the product of hard work between my officials and members. As Mark Ruskell said, that is how mature politics works.
As I said last week during stage 2, the purpose of the continuity bill is to ensure overall continuity of law rather than to make changes to our legislative or policy framework. However, the amendments that relate to the environment have allowed us to focus our attention on how the Government will best ensure that we are doing everything in our power to continue to maintain, protect and enhance our environment. That is a central concern of my friend and colleague Roseanna Cunningham.
The bill will already ensure that the precautionary principle, as a general principle of EU law, will continue to be part of Scots law. I said last week that I would ensure that the explanatory notes to the bill are amended to clarify that, and I have already shared with Ms Beamish, Mr Ruskell and other members draft wording that seeks to do just that.
Amendment 39 seeks to ensure that ministers will have regard to the guiding principles on the environment and animal welfare when they use the regulation-making powers under sections 11(1), 12 and 13(1) of the bill. Although all EU legislation that is rolled over through the bill will already have been informed by the principles, as part of the EU’s policy development and decision making, amendment 39 will ensure that we consider the principles when we make regulations to correct deficiencies or to keep pace with EU law, including when ministers exercise the powers to rectify or alter duties or powers of public authorities.
Amendment 56 supports the Scottish ministers’ clear commitment to carry through not just the letter of EU environmental law, but its spirit. Rightly, the scope of that discussion goes much wider than the bill. Amendment 56 will ensure that we consult on how the environmental principles can continue to guide future policy and legislation, and on how we can continue to have effective and appropriate environmental governance following the UK’s withdrawal from the EU.
Amendment 56 does not include a commitment to consult on animal welfare principles because of discussions that are under way at Westminster. The UK is rightly considered to have some of the highest animal welfare standards in the world, and its strong tradition of developing legislation to prevent animal suffering goes back to 1822. The concept that animals are sentient and can experience emotions such as terror and fury, as well as being able to suffer physical and mental pain, was implicitly recognised in Scottish legislation more than a century ago. There is a clear understanding of animal welfare needs in more recent legislation that has gone through the Scottish Parliament—for example, the Animal Health and Welfare (Scotland) Act 2006.
The Scottish ministers have already agreed, in principle, to allow a bill that would introduce a duty for UK Government ministers to have regard to the welfare needs of animals as sentient beings to apply, in due course, to Scottish ministers, through a legislative consent motion. Following a recent consultation, we look forward to the introduction of a Westminster bill that includes such a requirement. If we need to take further action, it will be taken.
Amendments 39 and 56 make it clear that when we interpret the principles post-EU withdrawal, we will continue to consider how they are interpreted at EU level by the European courts, thereby ensuring that our understanding of the principles continues to be informed by EU case law.
We have always made clear our intention to continue to protect and enhance Scotland’s environment, and to ensure that we are equipped to continue to play a leading role in addressing global challenges to our environment. Amendments 39 and 56 will embed our commitments in law, and represent a different approach to the one that has been taken by the UK Government, in which no equivalent legislative commitments have been agreed in consideration of the withdrawal bill. As a former environment minister, it gives me particular pleasure to have made such progress on the continuity bill.
For those reasons, I recommend that members vote for amendments 39 and 56.