UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill: Stage 3

– in the Scottish Parliament on 21st March 2018.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

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.

The Presiding Officer:

Amendment 14, in the name of Adam Tomkins, is grouped with amendments 14A and 49.

Photo of Adam Tomkins Adam Tomkins Conservative

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.

Photo of Adam Tomkins Adam Tomkins Conservative

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.

Photo of Neil Findlay Neil Findlay Labour

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?

Photo of Michael Russell Michael Russell Scottish National Party

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.

Photo of Neil Findlay Neil Findlay Labour

How does the minister intend to provide Parliament with the opportunity to scrutinise any deal that is proposed?

Photo of Michael Russell Michael Russell Scottish National Party

I have previously said that we will provide the opportunity for scrutiny of any deal. Nothing will be agreed unless this chamber agrees to it.

Photo of Neil Findlay Neil Findlay Labour

Okay.

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.

Photo of Adam Tomkins Adam Tomkins Conservative

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.

Photo of Neil Findlay Neil Findlay Labour

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.

The Presiding Officer:

Try to keep the discussion to the issues at hand, rather than individuals.

Photo of Tavish Scott Tavish Scott Liberal Democrat

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.

Photo of Neil Findlay Neil Findlay Labour

My apologies—I said that we would not be supporting amendment 49, but we will be.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

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.

Photo of Adam Tomkins Adam Tomkins Conservative

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?

Photo of Bruce Crawford Bruce Crawford Scottish National Party

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—

Photo of Neil Findlay Neil Findlay Labour

I wonder what the Tory argument would be if the legislation related to local government. If there was an attempt to restrict it, they would be the first people to say that that was centralisation of power.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

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.

Adam Tomkins is always very good at sounding plausible, but on this occasion he has been found out on amendment 14, so I encourage members not to agree to amendment 14.

Photo of Patrick Harvie Patrick Harvie Green

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.

Photo of Tavish Scott Tavish Scott Liberal Democrat

Mr Harvie has made an entirely fair point, which is why amendment 49 would involve all the Administrations and Governments of the United Kingdom. That would deal with exactly the point that he has made.

Photo of Patrick Harvie Patrick Harvie Green

Amendment 49 merely requires that

“the Scottish Ministers must make a statement on their assessment of the impact of” their

“draft instrument”.

Photo of Tavish Scott Tavish Scott Liberal Democrat

There are other amendments to come.

Photo of Patrick Harvie Patrick Harvie Green

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.

Photo of Peter Chapman Peter Chapman Conservative

I will be brief. I declare an interest, as a farmer, because my example is about farming.

To be honest, I cannot understand why any member of this Parliament could vote against amendment 14, in the name of Adam Tomkins. I also support Tavish Scott’s amendment 49.

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.

Photo of Johann Lamont Johann Lamont Labour

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.

Photo of Michael Russell Michael Russell Scottish National Party

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.

Photo of Neil Findlay Neil Findlay Labour

There is always a first time.

Photo of Michael Russell Michael Russell Scottish National Party

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.

Photo of Michael Russell Michael Russell Scottish National Party

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.

Photo of Patrick Harvie Patrick Harvie Green

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?

Photo of Michael Russell Michael Russell Scottish National Party

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.

Photo of Neil Findlay Neil Findlay Labour

He says that with no hint of irony.

Photo of Michael Russell Michael Russell Scottish National Party

Last year, the Welsh Government

I missed that point from Mr Findlay, but I will take an intervention from him.

Photo of Neil Findlay Neil Findlay Labour

The minister says that with no hint of irony whatsoever. We want him to get back to the negotiating table and get things sorted out, so he should get there.

Photo of Michael Russell Michael Russell Scottish National Party

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.

Photo of Adam Tomkins Adam Tomkins Conservative

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.

The Presiding Officer:

I call Neil Findlay to wind up, and to press or withdraw amendment 14A.

Photo of Neil Findlay Neil Findlay Labour

I have nothing to add; we have made our position clear. Both speeches by Mr Tomkins have shown him up for what he is. Clearly, he takes his orders from the Prime Minister’s office; he has nothing to add.

The Presiding Officer:

Okay, Mr Findlay.

Photo of Neil Findlay Neil Findlay Labour

The Tories are trying to depict themselves as the champions of devolution. Today, they have been shown up for everything that they are.

I press amendment 14A.

The Presiding Officer:

The question is, that amendment 14A be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division. This is the first division of the day, so there will be a five-minute suspension.

15:19 Meeting suspended.

15:24 On resuming—

We move to the division on amendment 14A.

Division number 1

For: Baillie, Jackie, Baker, Claire, Beamish, Claudia, Bibby, Neil, Cole-Hamilton, Alex, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Grant, Rhoda, Gray, Iain, Griffin, Mark, Johnson, Daniel, Kelly, James, Lamont, Johann, Lennon, Monica, Leonard, Richard, Macdonald, Lewis, Marra, Jenny, McArthur, Liam, McNeill, Pauline, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, Tavish, Smith, Elaine, Smyth, Colin, Stewart, David
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Balfour, Jeremy, Ballantyne, Michelle, Beattie, Colin, Bowman, Bill, Briggs, Miles, Brown, Keith, Burnett, Alexander, Cameron, Donald, Campbell, Aileen, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Coffey, Willie, Constance, Angela, Corry, Maurice, Crawford, Bruce, Cunningham, Roseanna, Davidson, Ruth, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Fraser, Murdo, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Golden, Maurice, Gougeon, Mairi, Grahame, Christine, Greene, Jamie, Greer, Ross, Halcro Johnston, Jamie, Hamilton, Rachael, Harper, Emma, Harris, Alison, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kerr, Liam, Kidd, Bill, Lindhurst, Gordon, Lochhead, Richard, Lockhart, Dean, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Mason, Tom, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Scott, John, Simpson, Graham, Smith, Liz, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Alexander, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Tomkins, Adam, Torrance, David, Watt, Maureen, Wells, Annie, Wheelhouse, Paul, White, Sandra, Whittle, Brian, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 28, Against 100, Abstentions 0.

Amendment 14A disagreed to.

The question is, that amendment 14 be agreed to. Are we agreed?

Members:

No.

Division number 2

For: Balfour, Jeremy, Ballantyne, Michelle, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Corry, Maurice, Davidson, Ruth, Fraser, Murdo, Golden, Maurice, Greene, Jamie, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Kerr, Liam, Lindhurst, Gordon, Lockhart, Dean, Mason, Tom, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Scott, John, Simpson, Graham, Smith, Liz, Stewart, Alexander, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Baillie, Jackie, Baker, Claire, Beamish, Claudia, Beattie, Colin, Bibby, Neil, Brown, Keith, Campbell, Aileen, Coffey, Willie, Cole-Hamilton, Alex, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Dugdale, Kezia, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Fee, Mary, Findlay, Neil, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Grant, Rhoda, Gray, Iain, Greer, Ross, Griffin, Mark, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnson, Daniel, Johnstone, Alison, Kelly, James, Kidd, Bill, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, Macdonald, Lewis, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Marra, Jenny, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McArthur, Liam, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, McNeill, Pauline, Neil, Alex, Paterson, Gil, Rennie, Willie, Robison, Shona, Ross, Gail, Rowley, Alex, Rumbles, Mike, Ruskell, Mark, Russell, Michael, Sarwar, Anas, Scott, Tavish, Smith, Elaine, Smyth, Colin, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, David, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 31, Against 97, Abstentions 0.

Amendment 14 disagreed to.

We move to group 2. Amendment 18, in the name of Donald Cameron, is the only amendment in the group.

Photo of Donald Cameron Donald Cameron Conservative

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.

Photo of Neil Findlay Neil Findlay Labour

We believe that amendment 18 is unnecessary and, indeed, unworkable, because, as Mr Cameron knows, the Parliament cannot legislate in contravention of the Scotland Act 1998. For that simple reason, we will not support amendment 18.

Photo of Michael Russell Michael Russell Scottish National Party

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.

Photo of Michael Russell Michael Russell Scottish National Party

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.

Photo of Michael Russell Michael Russell Scottish National Party

No.

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.

The Presiding Officer:

I call Donald Cameron to wind up and to press or withdraw amendment 18.

Photo of Donald Cameron Donald Cameron Conservative

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.

The Presiding Officer:

The question is, that amendment 18 be agreed to. Are we agreed?

Members:

No.

Division number 3

For: Balfour, Jeremy, Ballantyne, Michelle, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Corry, Maurice, Davidson, Ruth, Fraser, Murdo, Golden, Maurice, Greene, Jamie, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Kerr, Liam, Lindhurst, Gordon, Lockhart, Dean, Mason, Tom, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Scott, John, Simpson, Graham, Smith, Liz, Stewart, Alexander, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Baillie, Jackie, Baker, Claire, Beamish, Claudia, Beattie, Colin, Bibby, Neil, Brown, Keith, Campbell, Aileen, Coffey, Willie, Cole-Hamilton, Alex, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Dugdale, Kezia, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Fee, Mary, Findlay, Neil, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Grant, Rhoda, Gray, Iain, Greer, Ross, Griffin, Mark, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnson, Daniel, Johnstone, Alison, Kelly, James, Kidd, Bill, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, Macdonald, Lewis, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Marra, Jenny, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McArthur, Liam, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, McNeill, Pauline, Neil, Alex, Paterson, Gil, Rennie, Willie, Robison, Shona, Ross, Gail, Rowley, Alex, Rumbles, Mike, Ruskell, Mark, Russell, Michael, Sarwar, Anas, Scott, Tavish, Smith, Elaine, Smyth, Colin, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, David, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 31, Against 97, Abstentions 0.

Amendment 18 disagreed to.

We move to group 3. Amendment 15, in the name of Tavish Scott, is the only amendment in the group.

Photo of Tavish Scott Tavish Scott Liberal Democrat

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.

Photo of James Kelly James Kelly Labour

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.

Photo of Michael Russell Michael Russell Scottish National Party

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.

The Presiding Officer:

I invite Tavish Scott to wind up and to press or withdraw amendment 15.

The Presiding Officer:

The question is, that amendment 15 be agreed to. Are we agreed?

Members:

No.

Division number 4

For: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Cole-Hamilton, Alex, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McArthur, Liam, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Rennie, Willie, Robison, Shona, Ross, Gail, Rumbles, Mike, Ruskell, Mark, Russell, Michael, Scott, Tavish, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza
Against: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rowley, Alex, Sarwar, Anas, Scott, John, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian

The Presiding Officer:

The result of the division is: For 74, Against 54, Abstentions 0.

Amendment 15 agreed to.

We turn to group 4. Amendment 19, in the name of Neil Findlay, is grouped with the amendments that are listed in the groupings paper.

Photo of Neil Findlay Neil Findlay Labour

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.

Photo of Michael Russell Michael Russell Scottish National Party

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”

EU

“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.

Photo of Jamie Greene Jamie Greene Conservative

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.

Photo of Jamie Greene Jamie Greene Conservative

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.

Photo of Tavish Scott Tavish Scott Liberal Democrat

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.

Photo of Patrick Harvie Patrick Harvie Green

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.

Photo of Patrick Harvie Patrick Harvie Green

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 Presiding Officer:

I call Neil Findlay to press or withdraw amendment 19.

The Presiding Officer:

The question is, that amendment 19 be agreed to. Are we agreed?

Members:

No.

Division number 5

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 59, Against 69, Abstentions 0.

Amendment 19 disagreed to.

Amendment 20 moved—[Neil Findlay].

The question is, that amendment 20 be agreed to. Are we agreed?

Members:

No.

Division number 6

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 59, Against 69, Abstentions 0.

Amendment 20 disagreed to.

Amendment 21 moved—[Neil Findlay].

The question is, that amendment 21 be agreed to. Are we agreed?

Members:

No.

Division number 7

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 59, Against 69, Abstentions 0.

Amendment 21 disagreed to.

Amendment 22 moved—[Neil Findlay].

The question is, that amendment 22 be agreed to. Are we agreed?

Members:

No.

Division number 8

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 58, Against 68, Abstentions 0.

Amendment 22 disagreed to.

Amendment 23 moved—[Michael Russell].

The question is, that amendment 23 be agreed to. Are we agreed?

Members:

No.

Division number 9

For: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Cole-Hamilton, Alex, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McArthur, Liam, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Rennie, Willie, Robison, Shona, Ross, Gail, Rumbles, Mike, Ruskell, Mark, Russell, Michael, Scott, Tavish, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza
Against: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rowley, Alex, Sarwar, Anas, Scott, John, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian

The Presiding Officer:

The result of the division is: For 73, Against 54, Abstentions 0.

Amendment 23 agreed to.

Amendment 24, in the name of the minister, is grouped with the amendments shown in the groupings. If amendment 40 is agreed to, I cannot call amendment 3 in group 6.

Photo of Michael Russell Michael Russell Scottish National Party

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.

Photo of Neil Bibby Neil Bibby Labour

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.

Photo of Tavish Scott Tavish Scott Liberal Democrat

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.

The Presiding Officer:

The question is, that amendment 24 be agreed to. Are we agreed? We are agreed. [

Interruption

.]

Sorry, I beg your pardon. I did not hear a no. Please shout loudly.

The question is, that amendment 24 be agreed to. Are we agreed?

Members:

No.

Division number 10

For: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Beattie, Colin, Bibby, Neil, Bowman, Bill, Briggs, Miles, Brown, Keith, Burnett, Alexander, Cameron, Donald, Campbell, Aileen, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Coffey, Willie, Cole-Hamilton, Alex, Constance, Angela, Corry, Maurice, Crawford, Bruce, Cunningham, Roseanna, Davidson, Ruth, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Dugdale, Kezia, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Fee, Mary, Findlay, Neil, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Fraser, Murdo, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Golden, Maurice, Gougeon, Mairi, Grahame, Christine, Grant, Rhoda, Gray, Iain, Greene, Jamie, Greer, Ross, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harper, Emma, Harris, Alison, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnson, Daniel, Johnstone, Alison, Kelly, James, Kerr, Liam, Kidd, Bill, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lochhead, Richard, Lockhart, Dean, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, Macdonald, Lewis, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Marra, Jenny, Martin, Gillian, Mason, John, Mason, Tom, Matheson, Michael, McAlpine, Joan, McArthur, Liam, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Neil, Alex, Paterson, Gil, Rennie, Willie, Robison, Shona, Ross, Gail, Rowley, Alex, Rumbles, Mike, Ruskell, Mark, Russell, Michael, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Alexander, Stewart, David, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Tomkins, Adam, Torrance, David, Watt, Maureen, Wells, Annie, Wheelhouse, Paul, White, Sandra, Whittle, Brian, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 128, Against 0, Abstentions 0.

Amendment 24 agreed to.

Amendment 25 moved—[Michael Russell]—and agreed to.

Section 12—Complying with international obligations:

Amendment 26 moved—[Neil Findlay].

The Presiding Officer:

The question is, that amendment 26 be agreed to. Are we agreed?

Members:

No.

Division number 11

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Hepburn, Jamie, Hyslop, Fiona, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Rowley, Alex, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 58, Against 68, Abstentions 0.

Amendment 26 disagreed to.

The question is, that amendment 27 be agreed to. Are we agreed?

Members:

No.

Division number 12

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 58, Against 69, Abstentions 0.

Amendment 27 disagreed to.

Amendment 28 moved—[Neil Findlay].

The question is, that amendment 28 be agreed to. Are we agreed?

Members:

No.

Division number 13

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 59, Against 68, Abstentions 0.

Amendment 28 disagreed to.

Amendment 29 moved—[Neil Findlay].

The question is, that amendment 29 be agreed to. Are we agreed?

Members:

No.

Division number 14

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 57, Against 69, Abstentions 0.

Amendment 29 disagreed to.

Amendment 30 moved—[Michael Russell]—and agreed to.

Section 13—Power to make provision corresponding to EU law after exit day:

Amendments 31 to 34 moved—[Jamie Greene]—and agreed to.

Amendments 35 and 36 moved—[Michael Russell]—and agreed to.

The Presiding Officer:

We turn to group 6. Amendment 37, in the name of Tavish Scott, is grouped with the amendments shown in the groupings. If amendment 5 is agreed to, I cannot call amendment 41, as it will be pre-empted, and if amendment 40 is agreed to, I cannot call amendment 3.

Photo of Tavish Scott Tavish Scott Liberal Democrat

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.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

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.

Photo of Ash Denham Ash Denham Scottish National Party

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.

Photo of Michael Russell Michael Russell Scottish National Party

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.

Photo of Neil Bibby Neil Bibby Labour

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.

Photo of Neil Findlay Neil Findlay Labour

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.

Photo of Patrick Harvie Patrick Harvie Green

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—

The Presiding Officer:

Mr Harvie, the minister will not have a chance to wind up. Mr Scott will wind up on this section, so, if you wish to hear from the minister—

Photo of Patrick Harvie Patrick Harvie Green

I was merely indicating that, if the minister wanted to intervene, I would accept an intervention, but he has not offered one.

Photo of Michael Russell Michael Russell Scottish National Party

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.

Photo of Patrick Harvie Patrick Harvie Green

I finish my comments on group 6 by merely saying that, although I understand why amendment 61 feels uncomfortable to ministers, is not unworkable.

The Presiding Officer:

I call Tavish Scott to wind up and to press or withdraw amendment 37.

Photo of Tavish Scott Tavish Scott Liberal Democrat

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.

The Presiding Officer:

The question is, that amendment 37 be agreed to. Are we agreed?

Members:

No.

Division number 15

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 59 , Against 69, Abstentions 0.

Amendment 37 disagreed to.

Amendment 1 not moved.

After section 13:

Amendment 38 moved—[Ash Denham]—and agreed to.

The Presiding Officer:

We turn to group 7. Amendment 39, in the name of Claudia Beamish, is grouped with amendment 56.

Photo of Claudia Beamish Claudia Beamish Labour

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.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

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

Scotsman

, 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.

Photo of Colin Smyth Colin Smyth Labour

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.

Photo of Maurice Golden Maurice Golden Conservative

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.

Photo of Claudia Beamish Claudia Beamish Labour

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.

Photo of Maurice Golden Maurice Golden Conservative

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.

Photo of Patrick Harvie Patrick Harvie Green

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.

Photo of Michael Russell Michael Russell Scottish National Party

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.

The Presiding Officer:

I invite Claudia Beamish to wind up and to press or withdraw amendment 39.

Photo of Claudia Beamish Claudia Beamish Labour

I am delighted to press amendment 39.

Amendment 39 agreed to.

Section 14—Scrutiny of regulations under sections 11, 12 and 13:

Amendment 2 moved—[Mike Rumbles].

The Presiding Officer:

The question is, that amendment 2 be agreed to. Are we agreed?

Members:

No.

Division number 16

For: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Baillie, Jackie, Baker, Claire, Beamish, Claudia, Beattie, Colin, Bibby, Neil, Brown, Keith, Campbell, Aileen, Coffey, Willie, Cole-Hamilton, Alex, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Dugdale, Kezia, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Fee, Mary, Findlay, Neil, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Grant, Rhoda, Gray, Iain, Greer, Ross, Griffin, Mark, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnson, Daniel, Johnstone, Alison, Kelly, James, Kidd, Bill, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, Macdonald, Lewis, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Marra, Jenny, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McArthur, Liam, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, McNeill, Pauline, Neil, Alex, Paterson, Gil, Rennie, Willie, Robison, Shona, Ross, Gail, Rowley, Alex, Rumbles, Mike, Ruskell, Mark, Russell, Michael, Sarwar, Anas, Scott, Tavish, Smith, Elaine, Smyth, Colin, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, David, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza
Against: Balfour, Jeremy, Ballantyne, Michelle, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Corry, Maurice, Davidson, Ruth, Fraser, Murdo, Golden, Maurice, Greene, Jamie, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Kerr, Liam, Lindhurst, Gordon, Lockhart, Dean, Mason, Tom, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Scott, John, Simpson, Graham, Smith, Liz, Stewart, Alexander, Tomkins, Adam, Wells, Annie, Whittle, Brian

The Presiding Officer:

The result of the division is: For 96, Against 31, Abstentions 0.

Amendment 2 agreed to.

Amendment 40 moved—[Michael Russell].

I remind members that, if amendment 40, in the name of the minister, is agreed to, I will be unable to call amendment 3, due to pre-emption.

Amendment 40 agreed to.

Amendment 4 moved—[Mike Rumbles].

The question is, that amendment 4 be agreed to. Are we agreed?

Members:

No.

Division number 17

For: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Baillie, Jackie, Baker, Claire, Beamish, Claudia, Beattie, Colin, Bibby, Neil, Brown, Keith, Campbell, Aileen, Coffey, Willie, Cole-Hamilton, Alex, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Dugdale, Kezia, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Fee, Mary, Findlay, Neil, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Grant, Rhoda, Gray, Iain, Greer, Ross, Griffin, Mark, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnson, Daniel, Johnstone, Alison, Kelly, James, Kidd, Bill, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, Macdonald, Lewis, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Marra, Jenny, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McArthur, Liam, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, McNeill, Pauline, Neil, Alex, Paterson, Gil, Rennie, Willie, Robison, Shona, Ross, Gail, Rowley, Alex, Rumbles, Mike, Ruskell, Mark, Russell, Michael, Sarwar, Anas, Scott, Tavish, Smith, Elaine, Smyth, Colin, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, David, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza
Against: Balfour, Jeremy, Ballantyne, Michelle, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Corry, Maurice, Davidson, Ruth, Fraser, Murdo, Golden, Maurice, Greene, Jamie, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Kerr, Liam, Lindhurst, Gordon, Lockhart, Dean, Mason, Tom, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Scott, John, Simpson, Graham, Smith, Liz, Stewart, Alexander, Tomkins, Adam, Wells, Annie, Whittle, Brian

The Presiding Officer:

The result of the division is: For 97, Against 31, Abstentions 0.

Amendment 4 agreed to.

I remind members that, if amendment 5 is agreed to, I will be unable to call amendment 41 due to pre-emption.

Amendment 5 not moved.

Amendment 41 moved—[Michael Russell].

The question is, that amendment 41 be agreed to. Are we agreed?

Members:

No.

Division number 18

For: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Baillie, Jackie, Baker, Claire, Beamish, Claudia, Beattie, Colin, Bibby, Neil, Brown, Keith, Campbell, Aileen, Coffey, Willie, Cole-Hamilton, Alex, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Dugdale, Kezia, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Fee, Mary, Findlay, Neil, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Grant, Rhoda, Gray, Iain, Greer, Ross, Griffin, Mark, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnson, Daniel, Johnstone, Alison, Kelly, James, Kidd, Bill, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, Macdonald, Lewis, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Marra, Jenny, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McArthur, Liam, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, McNeill, Pauline, Neil, Alex, Paterson, Gil, Rennie, Willie, Robison, Shona, Ross, Gail, Rowley, Alex, Rumbles, Mike, Ruskell, Mark, Russell, Michael, Sarwar, Anas, Scott, Tavish, Smith, Elaine, Smyth, Colin, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, David, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza
Against: Balfour, Jeremy, Ballantyne, Michelle, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Corry, Maurice, Davidson, Ruth, Fraser, Murdo, Golden, Maurice, Greene, Jamie, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Kerr, Liam, Lindhurst, Gordon, Lockhart, Dean, Mason, Tom, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Scott, John, Simpson, Graham, Smith, Liz, Stewart, Alexander, Tomkins, Adam, Wells, Annie, Whittle, Brian

The Presiding Officer:

The result of the division is: For 97, Against 31, Abstentions 0.

Amendment 41 agreed to.

Amendment 6 not moved.

Amendment 42 moved—[Michael Russell]—and agreed to.

We turn to group 8. Amendment 43, in the name of Jamie Greene, is grouped with amendment 62.

Photo of Jamie Greene Jamie Greene Conservative

At stage 2, I lodged amendment 227, which included a new reporting requirement. In essence, it required Scottish ministers to lay before Parliament a report that detailed how many deficiencies in retained devolved EU law had been identified and how many regulations under section 11 would be laid before us as a result of that. I am pleased to say that, after much deliberation, that amendment was agreed to at stage 2. It provided for a welcome piece of scrutiny.

As often happens between stages 2 and 3, there has been discussion on how to further improve the bill. I discussed with the bill team some proposals to strengthen that reporting process, and thereafter I lodged amendment 62. The problem is that the first line of the amendment says, “Leave out section 36A”. However, section 36A, which was inserted by another amendment that I lodged at stage 2, contains a much wider provision on a review of the entire act. It places a duty on ministers to lay a report before Parliament. Again, that was agreed to by consensus at stage 2.

I am afraid that, if amendment 62 were to be agreed to, section 36A would be taken away. In retrospect, I feel that it is an important section, and one that has consensus. This is really a consequence of the haste of the process that the bill has gone through. I thank the civil service team that has worked with me in recent days—indeed, in recent minutes—to see whether we could find a compromise but, as amendment 62 stands, with the wording “Leave out section 36A”, I am unable to support it.

I therefore appeal to the minister to respect the status quo with regard to the amendments that were agreed to, by consensus, at stage 2; that includes the insertion of section 36A and the wording that I previously suggested on the issue of reporting. I appeal to the minister not to move his amendments if I do not press mine. If the minister insists on moving his amendments, I appeal to members not to support them.

I move amendment 43.

Photo of Michael Russell Michael Russell Scottish National Party

A genuine difficulty has arisen for Mr Greene. As he said, his amendment 62 relates to the reporting requirements in the bill. At stage 2, there was a range of proposals on reporting, including one from Mr Golden. It was accepted at stage 2 that we would endeavour to bring together those reporting requirements so that the bill would work better. As I understand it, given the fast-developing situation this afternoon, there are two problems that Mr Greene has identified. First, he is concerned that his amendment 62 does not cover the identification of reporting and the number of deficiencies being provided in advance, as his original amendment did at stage 2. I am happy to give a commitment on the record that that information will be provided in advance.

Until a few moments ago, I had hoped that that would be sufficient to address Mr Greene’s concerns. However, I understand that there is now another objection in that, as he said, his amendment 62 would remove section 36A, which calls for a general review of the act. I want to see whether I can help with that problem, too. It is up to any committee to review any act and, in this case, I would expect the Finance and Constitution Committee, for example, to be willing to review the eventual act. If one of Mr Greene’s two possible objections is about the number of deficiencies that are identified in advance, I will commit to the information about those deficiencies being provided in advance—there would be no difficulty in doing that. If the other issue is about there being no specific mention of a review, I would be very happy—although I cannot tell parliamentary committees what to do—to encourage a review of the eventual act by the Finance and Constitution Committee or any other committee at an appropriate time. Clearly, that is because I would like to keep reviewing the issues of Brexit.

In all those circumstances, amendments 43 and 62 would create a cogent and coherent system of reporting. That is why we wanted to make a change and why we agreed to have negotiations. I do not know how it happened, but it is clear that at some stage Mr Greene has lodged amendments that he now disagrees with. That happens, but I think that what my amendments propose is the best way forward and I therefore wish to move them.

The Presiding Officer:

I invite Jamie Greene to wind up and say whether he will press or withdraw his amendments.

Photo of Jamie Greene Jamie Greene Conservative

It is not the case that we have changed our minds. As the minister is aware, there was an earnest discussion between the Conservative group and his bill team on the wording of my amendments, which we worked together to improve. There is much to be welcomed by the Conservative group in the additional wording in amendment 62 around the mechanisms and how the minister will report to the Parliament. However, the problem is the inadvertent addition of the line that seeks to remove an entire section of the bill that we added at stage 2 on a consensual basis. I think that section 36A should remain, so I am disappointed that the minister has chosen to move his amendments.

Photo of Patrick Harvie Patrick Harvie Green

He is much taller than me, Presiding Officer, but let us say nothing more about that.

I am trying to understand the situation with Mr Greene’s amendments, because they seem a little puzzling. Earlier, Jamie Greene was very angry at the minister for accepting one of his amendments and now he is arguing against his own amendments in another group. It would have been helpful if he had got in touch with all members and all political parties to discuss any concerns that he had with the amendments. We have looked at amendments 43 and 62 and I think that they will improve the bill compared with where we were at stage 2. Can he try to be specific about what has changed since he lodged amendments 43 and 62?

Photo of Jamie Greene Jamie Greene Conservative

I am very happy to provide that clarification.

I agree with Mr Harvie about the additional wording in the amendment that was proposed to us by the bill team, and I was happy to lodge amendment 62 on that basis. The deficiencies arise from the removal of the wider review of the bill, which is in section 36A. In the new section that would be inserted by amendment 63, the reporting that the minister will have to do relates only to sections 11 and 17 of the bill—I stand to be corrected if that is not the case. Under my original section 36A, which was discussed at great length at stage 2 and which possibly had the support of Mr Harvie, the entire bill would be reviewed—not just sections or parts of it. We throw up our hands and say that, had that been spotted earlier, I would not have lodged the amendment. I apologise for that. As it stands, I would like to keep section 36A in the bill, because it is important that we ensure that Parliament reviews the entire bill and not just bits of it, as the minister proposes.

The Presiding Officer:

Does the member wish to press or withdraw amendment 43?

The Presiding Officer:

The member wishes to withdraw amendment 43. Are we agreed?

The Presiding Officer:

The question is, that amendment 43 be agreed to. Are we agreed?

Members:

No.

Division number 19

For: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Baillie, Jackie, Baker, Claire, Beamish, Claudia, Beattie, Colin, Bibby, Neil, Brown, Keith, Campbell, Aileen, Coffey, Willie, Cole-Hamilton, Alex, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Dugdale, Kezia, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Fee, Mary, Findlay, Neil, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Grant, Rhoda, Gray, Iain, Greer, Ross, Griffin, Mark, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnson, Daniel, Johnstone, Alison, Kelly, James, Kidd, Bill, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, Macdonald, Lewis, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Marra, Jenny, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McArthur, Liam, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, McNeill, Pauline, Neil, Alex, Paterson, Gil, Rennie, Willie, Robison, Shona, Ross, Gail, Rowley, Alex, Rumbles, Mike, Ruskell, Mark, Russell, Michael, Sarwar, Anas, Scott, Tavish, Smith, Elaine, Smyth, Colin, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, David, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza
Against: Balfour, Jeremy, Ballantyne, Michelle, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Corry, Maurice, Davidson, Ruth, Fraser, Murdo, Golden, Maurice, Greene, Jamie, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Kerr, Liam, Lindhurst, Gordon, Lockhart, Dean, Mason, Tom, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Scott, John, Simpson, Graham, Smith, Liz, Stewart, Alexander, Tomkins, Adam, Wells, Annie, Whittle, Brian

The Presiding Officer:

The result of the division is: For 97, Against 31, Abstentions 0.

Amendment 43 agreed to.

Section 14A—Additional scrutiny of proposed regulations:

Amendment 7 not moved.

The Presiding Officer:

We turn to group 9. Amendment 65, in the name of Graham Simpson, is grouped with amendments 66, 44 and 44A.

Photo of Graham Simpson Graham Simpson Conservative

I will speak to amendments 65, 66, and 44A as the convener of the Delegated Powers and Law Reform Committee. The committee agreed unanimously to lodge the amendments at its meeting yesterday morning. Presiding Officer, I thank you for agreeing at that late stage to accept them.

The amendments are all concerned with ensuring that Parliament is able to apply effective and proportionate scrutiny to regulations that are made under the bill.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

As Mr Simpson will be aware, since our committee meeting yesterday, David Torrance and I have withdrawn our support for those amendments as a consequence of receiving information that was not available at the time of the committee meeting.

Photo of Graham Simpson Graham Simpson Conservative

The member changed his mind, but I said that we were unanimous at the meeting, which we were. I am sorry that the member has raised the issue, but I will address that in my summing up.

The amendments relate to section 14A as amended at stage 2. Amendment 44 seeks to replace the section. Section 14A and amendment 44 provide different approaches to the creation of a sifting process, whereby a parliamentary committee—my committee in the case of amendment 44—can decide that the procedure attached to a Scottish statutory instrument made under sections 11, 12 or 13 is incorrect, and that a different procedure should be attached. The committee has a longstanding interest in the issue. The idea of Parliament having a role in the setting of the procedure for regulations is one that the committee recommended in its report on the EU withdrawal bill.

When the committee met yesterday morning, it could see the merits in the approach taken in section 14A. It provides that regulations made under sections 11, 12 and 13 should be subject to a pre-laying sifting process of 15 days, during which a committee of Parliament can decide that the procedure attached to regulations should be different from the one proposed by Scottish ministers. Section 14A(7) provides that Scottish ministers are required to change the procedure attached to the regulations if a committee has made such a recommendation.

In that regard, section 14A is a welcome improvement on the approach taken in the EU withdrawal bill, under which ministers are not bound to proceed in accordance with the decision of the Parliament.

Amendment 44 would replace the section with a new section 14A and would put in place a new sifting process while retaining some of the section’s features, such as the binding nature of the committee’s recommendation. The crucial difference in approach is that the sifting process would take place once the amendment had been laid. That would mean that, if an instrument is subject to the negative procedure, that could be changed to the affirmative procedure, if that is what the committee recommended, within 20 days of laying.

Amendment 44 would also establish a new process at proposed new section 14A(10) that would allow instruments to be categorised as urgent and therefore not subject to the sifting process. When it looked at that provision yesterday, the committee accepted that there might be a need for such an urgent procedure, but it was not otherwise persuaded by the new approach that is taken in amendment 44. Specifically, the committee was concerned about the loss of the pre-laying period for scrutiny that is provided for in section 14A. The committee was concerned that undertaking the process during normal scrutiny of an instrument would damage the quality of parliamentary scrutiny—this is the important point—because members will be using the first 20 days of scrutiny to consider whether the right procedure has been attached to an instrument rather than considering the content of the instrument. Changing the procedure would not mean restarting the clock so that there would be a new 40-day period for scrutiny once the instrument was subject to a higher level of scrutiny. The instrument would continue to progress through the same 40-day period while being subject to a different procedure. The change in procedure could also be accompanied by a change to the instrument, which would make parliamentary scrutiny even more challenging in the reduced time period.

The committee was also concerned about the effect of amendment 44’s proposed new sections 14A(6), 14A(7) and 14A(8). They provide that the resolution of the Delegated Powers and Law Reform Committee changing the procedure attached to a negative instrument implies that the instrument has been revoked and that nothing further may be done under the regulations. The committee was concerned about the absence of public notice of such a revocation and the impact that that might have on those affected by the relevant law. How would those who are affected know that the instrument had been revoked?

With those concerns in mind, the committee considered that section 14A as amended at stage 2 was preferable, subject to the addition of the urgent procedure that is provided for in amendment 66. The committee agreed yesterday to encourage Parliament to retain that approach.

Amendments 65 and 44A amend section 14A and amendment 44 to provide for the sifting process that I have described to apply to regulations made under section 19. Section 19 provides Scottish ministers with a power in relation to fees and charges. The bill provides that the first exercise of this power—[

Interruption

.] I wonder whether Mr Arthur could stop chattering. It is rather distracting.

The Presiding Officer:

Members should please pay attention when they are in the chamber.

Photo of Graham Simpson Graham Simpson Conservative

T he bill provides that the first exercise of this power is subject to the affirmative procedure. Subsequent exercises of the power are subject to the negative procedure, although there is no limit on what those subsequent exercises of the power can do.

The committee has been of the view that the affirmative procedure is appropriate for the first use of the power and that it should also be applied to future exercises of the power. It is quite conceivable that future exercises of the power will provide for significant and material increases in fees and charges and it would seem appropriate for regulations providing for such increases to be subject to the affirmative procedure. Equally, the scrutiny applied to regulations should be proportionate. Therefore, it would be more appropriate for regulations that provide for less significant increases in fees and charges to be subject to the negative procedure.

Accordingly, the committee agreed yesterday to lodge amendments to apply the sifting process to regulations made under section 19 so that Parliament can take an informed view of the appropriate scrutiny procedure to attach to an instrument based on its content.

I move amendment 65.

Photo of Ross Greer Ross Greer Green

Graham Simpson has covered the principles of the arguments that we are making, so I will not repeat them. Suffice to say that I was very happy that at stage 2 Parliament, through the committee, agreed that it should be us as a Parliament who decide collectively the appropriate level of scrutiny for the changes that will be made through the process. Specifically, that means that it should be Parliament, through our committees, that decides what kind of instrument should be used.

I lodged amendment 44 to define a more workable process. It addresses some of the valid concerns that were raised at stage 2. People did not disagree with the principle—we all agreed with that—but there were concerns about how workable we could make the process.

Fair concerns were raised that the 15-day pre-laying scrutiny period that was originally proposed would cause significant delays for instruments coming through, particularly negative instruments making very minor changes, of which we are all expecting a substantial volume at certain points in the process. We found a solution to that, which was to extend the scrutiny process by extending the 15 days to 20 days within the DPLR Committee’s existing 20-day scrutiny period. Given the relationship between scrutiny of what form of instrument should be used and scrutiny of the substance—how they dovetail—we believe that to be an appropriate solution.

Members will notice that there is a new provision in amendment 44—this is also addressed by amendment 66—that specifies that the urgency provisions in section 13(1) can override the sifting arrangements. That was intended in the original section 14A, but it was not explicit. Making it explicit is an improvement.

It is an improvement that is safeguarded. I do not think that any of us are particularly comfortable with the urgency provisions, but we recognise their necessity. My amendment to section 31, which was agreed to at stage 2, gives Parliament the opportunity to suspend those urgency powers if it believes that they have been used inappropriately. This is a safeguarded process.

There were areas where we disagreed with some of the concerns raised. I did not believe that it would be appropriate to remove the super-affirmative procedure; that option should be available to committee. It is ultimately for a committee’s judgment whether that procedure is appropriate.

I hope that members will recognise that we have taken the principle that was agreed to at stage 2 and created a more workable process for it through amendment 44.

Photo of Neil Findlay Neil Findlay Labour

We support the amendments in this group as they provide for enhanced scrutiny of regulations by this Parliament. We note the letter and the comments by the convener of the Delegated Powers and Law Reform Committee on the amendments and we support the establishment of the sifting procedure, whereby a committee has a say and can change the process, and the enhanced scrutiny provided by the use of the affirmative procedure and the increase in the number of days.

I understand that where fees and charges are minor, the negative procedure would be more appropriate.

The Delegated Powers and Law Reform Committee takes the role of this Parliament in scrutinising legislation very seriously and these changes are about standing up for Parliament over ministers.

Photo of Daniel Johnson Daniel Johnson Labour

I will speak briefly in support of these amendments. In the stage 1 debate, I said that if we are seeking to protect devolution, the issue is as much about how power is exercised as about what powers we have. The proposals that Ross Greer and the committee have brought forward to enact and implement a sifting procedure are sensible. They do just that. They will ensure that the powers that ministers exercise that were previously exercised democratically in the European Union are exercised democratically in this Parliament, which is very important. For those reasons, I support the amendments.

Photo of Michael Russell Michael Russell Scottish National Party

As Ross Greer indicated, I accepted at stage 2 the principle that, given the exceptional circumstances of Brexit, the Scottish Parliament should have a strong role in determining the procedure under which Brexit-related statutory instruments should be scrutinised. I also emphasised the need to ensure that such a sifting process, which we accepted, would be flexible and proportionate enough to allow the Government to plan its legislative programme with an appropriate degree of certainty.

The whole business of this legislation is to find a middle way between Brexit itself and the great burdens that it places upon this Parliament and country—the people of this country did not vote for it—and the time available. We have to find a way through; therefore, striking a balance is the issue.

I am pleased to acknowledge that, in our opinion, amendment 44 from Ross Greer, which has replaced the amendment that he lodged at stage 2, strikes the right balance. I am grateful to him for developing an approach that preserves the role of Parliament in determining whether an instrument has been laid under the appropriate procedure while making the provision more workable in practice. We went through hard negotiations to achieve that, but, in the end, we have an amendment that works. That is why it was lodged in due time.

The specific issue that Ross Greer’s amendment 44 addresses is the need to align the sifting process with the Delegated Powers and Law Reform Committee’s other scrutiny functions once an instrument has been laid. That ensures that the timescales for laying and scrutinising subordinate legislation remain manageable. The amendment also ensures that there is an option to disapply the sifting process in genuinely urgent cases. I believe that that is a sensible provision to include, albeit one that I hope we will not have to use.

Finally, members will want to be aware that Ross Greer’s stage 3 amendment puts in place a much stronger framework for parliamentary control than the equivalent provision in the withdrawal bill, which gives the UK Parliament only an advisory role. For those reasons, I welcome amendment 44 and encourage members to vote for it.

Members will note that Graham Simpson sent a letter to the Presiding Officer yesterday, proposing an alternative approach. He wishes to retain the pre-laying sift approach that Ross Greer proposed at stage 2, but I believe that that would be a mistake. It would require a 15-sitting-day sift to be allowed for all statutory instruments developed under the bill before they could be laid, regardless of their significance. That is disproportionate and would make planning the programme of subordinate legislation required as a consequence of Brexit being imposed on us extremely difficult and potentially unmanageable. Building in a 15-day pre-laying period, along with the possibility of every instrument being upgraded to the enhanced affirmative procedure, would make the scheduling of the already complex programme of legislation required lengthy and, ultimately, very difficult for the Government and Parliament to predict or plan for.

Let me give members two facts on that. First, 15 days for 300-plus instruments equates to 900 more weeks in a timetable that we already know and that is already bearing down upon us. Secondly, as Ross Greer has indicated, the 20-day period is an extension and not merely for considering whether sifting should take place. I respectfully disagree with Graham Simpson’s letter on that issue. The 20-day period can, of course, be used for that consideration as well.

Ross Greer’s new approach, via amendment 44, is an efficient, flexible and proportionate approach without any loss of parliamentary control. In fact, it increases parliamentary control and addresses the objections of the Delegated Powers and Law Reform Committee. I encourage members to oppose Graham Simpson’s amendment 65.

The Delegated Powers and Law Reform Committee has also lodged amendment 44A, which seeks to apply the sifting procedure to section 19, which is the

“Power to provide for fees and charges” in connection with the functions of Scottish public authorities. That would ensure that section 19 instruments were also subject to the sifting procedure. Members may not know that I have been in correspondence with the committee about the matter and have pointed out that the model for fees and charges in the bill is proportionate and reasonable. Its initial use will be subject to the affirmative procedure, so members will be absolutely in charge, and subsequent adjustments—which will be, in the greatest part, very minor—will be subject to the negative procedure.

The financial memorandum sets out, in paragraphs 20 to 22, the guidance for calculating fees and charges, and it notes that bodies that are sponsored by the Scottish Government must comply with the processes that are set out in the Scottish public finance manual. As the fees and charges regime that is set out in the bill builds on standard forms and the fees and charges that are levied will be calculated in the standard way, as they are now—because, of course, it is a continuity bill—according to the robust governance and guidance that is set out in the Scottish public finance manual, the Government’s view is that the provision in the bill is appropriate and sufficient. I therefore encourage members to oppose amendment 44A.

The Delegated Powers and Law Reform Committee has also lodged manuscript amendment 66, helpfully recognising the urgency that can exist even if amendment 44 is not agreed to. I would support that on a contingent basis, but I strongly recommend that members support Ross Greer’s amendment 44, which was arrived at after great negotiation and is fully respectful of the stage 2 process and all things flowing from it. Amendment 44 would provide a better solution to the difficult circumstances that this Parliament finds itself in.

Photo of Graham Simpson Graham Simpson Conservative

I thank everyone who has spoken on this group of amendments. Mr Russell talks about striking a balance, and that is what we are trying to do.

I commend Ross Greer for lodging amendments on this matter in the first place. He is trying to ensure effective scrutiny, and he is to be congratulated for that. That is what the Delegated Powers and Law Reform Committee, of which I am the convener, is all about. Yesterday was the very first opportunity that the committee had to look at amendment 44. I saw the wording over the weekend but, as far as I know, the committee had not seen it. Yesterday was our first meeting since the amendment was lodged, so it was the first opportunity to consider and discuss it—and discuss it we did.

We came to the conclusion that amendment 44, in Ross Greer’s name, would have the unfortunate effect of not allowing enough scrutiny time to deal with Scottish statutory instruments. I said earlier that the committee was unanimous on that point; however, the situation changed. The deputy convener changed his mind, as did one of his colleagues. Unfortunately, that appears to have happened as a result of some strong-arming by ministerial colleagues. [

Interruption

.]

The Presiding Officer:

Order—let us listen to Mr Simpson.

Photo of Graham Simpson Graham Simpson Conservative

It is a most unfortunate episode—[

Interruption

.]

Photo of Stuart McMillan Stuart McMillan Scottish National Party

Mr Simpson will be aware that the discussion that we had in private session yesterday was very thorough—we agree on that. However, Mr Simpson will also be aware that some important information was withheld from the committee during our discussion. As a consequence, the initial decision that I and my colleague took was very much not based on the full facts. That information should have been presented to every member of the committee—[

Interruption

.]

Photo of Graham Simpson Graham Simpson Conservative

The so-called pertinent information was that I had had a telephone conversation with Mr Russell on Friday in which he told me that the Government planned to back a further amendment. I had not seen the wording of that amendment—I have covered that point. My conversation with Mr Russell consisted of Mr Russell telling me what he proposed to do. Clearly, the time and place to deal with that as a committee was when the committee met, and that is what we did yesterday. That is the position.

I move amendment 44A.

The Presiding Officer:

The question is, that amendment 65 be agreed to. Are we agreed?

Members:

No.

Division number 20

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stevenson, Stewart, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 60, Against 68, Abstentions 0.

Amendment 65 disagreed to.

Amendment 66 moved—[Graham Simpson]—and agreed to.

Amendment 44A moved—[Graham Simpson].

The question is, that amendment 44A be agreed to. Are we agreed?

Members:

No.

Division number 21

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 59, Against 69, Abstentions 0.

Amendment 44A disagreed to.

Amendment 44 moved—[Ross Greer]—and agreed to.

Section 15—Consultation on draft proposals:

Amendment 45 moved—[Neil Findlay].

The Presiding Officer:

The question is, that amendment 45 be agreed to. Are we agreed?

Members:

No.

Division number 22

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 59, Against 69, Abstentions 0.

Amendment 45 disagreed to.

Amendment 46 moved—[Michael Russell]—and agreed to.

Section 16—Explanatory statements: appropriateness, equalities etc:

Amendment 8 not moved.

The Presiding Officer:

We move to group 10. Amendment 47, in the name of Neil Bibby, is grouped with amendments 50 and 52.

Photo of Neil Bibby Neil Bibby Labour

I will speak to amendment 4 and I will speak in support of amendments 50 and 52, in the name of the minister, which are on the same issue.

Before the bill’s stage 2 proceedings in the extended meeting of the Finance and Constitution Committee last week, I lodged a number of amendments for consideration, the purpose of which was to ensure that any regulation-making powers that are granted to the Scottish ministers as a result of the bill would not remove or weaken EU-derived rights and protections in relation to five key areas: employment, equalities, health and safety, consumer standards and the environment.

There is real concern that Brexit could undermine the rights and protections that we currently enjoy as members of the European Union. Let us be clear that that cannot and should not be allowed to happen. Although I did not move my stage 2 amendments, the minister gave a commitment to find a way of addressing at stage 3 the concerns that I and others, including Patrick Harvie, had raised.

The amendments in group 7 and this group are a result of that process and of constructive dialogue with the Scottish Government and Mr Harvie, which I welcome.

My amendment 47 would expand section 16, which is on explanatory statements, so that when the Scottish ministers lay an instrument or draft, they would be required to make a statement explaining what effect if any it would have on

“rights and duties relating to employment and health and safety” and

“matters relating to consumer protection”.

The sifting process that a number of members and the Scottish Government have envisaged would be informed by those explanatory statements and would help to determine the best level of parliamentary scrutiny to apply to any instruments or drafts that are laid.

Some members may recall concerns at stage 2 about whether similar amendments encroached on reserved areas. My stage 3 amendment therefore makes it clear that the requirement to make such an explanatory statement applies in so far as any effect is within devolved competence. For clarity, devolved competence is defined as being

“within the meaning of section 54 of the Scotland Act 1998”.

The amendments in the group place an additional reporting requirement on the Scottish ministers, covering rights and duties in relation to employment, health and safety and consumer protection. The amendments therefore enhance scrutiny and provide further assurances to those who are rightly concerned with safeguarding EU-derived rights and protections.

I move amendment 47.

Photo of Michael Russell Michael Russell Scottish National Party

I thank Neil Bibby for lodging amendment 47, which sensibly strikes the right balance between ensuring that we have powers that are sufficiently flexible for the task ahead of us and ensuring that, when we use the powers, we do not forget to be mindful of the important values that are set out in the amendment.

With the amendments in the group, the section 16 explanatory statement will become a powerful tool in ensuring that Parliament can give the appropriate amount of scrutiny to any instrument that is before it. The statements will cover matters such as equalities, employment rights, health and safety and consumer protections as well as setting out the purpose and effect of each instrument. Some of the matters that are covered are at least to a significant extent reserved. It is of course unlikely that any instruments that are laid by the Scottish ministers could have any effect on those matters. However, it is possible that devolved provision might have a peripheral effect on such matters, so it is right that the explanatory statement should explain the position if that is the case.

Given the specific focus of amendment 47 on those matters, it is appropriate that it makes clear that the statement applies only

“so far as it is within devolved competence ... for the instrument to have any such effect”.

That is the right way of ensuring that every instrument receives the scrutiny that it deserves.

My amendments 50 and 52 are consequential on Mr Bibby’s amendment 47. They ensure that the bill treats the elements of the statement that are required by amendment 47 in the same way as the other elements of the statement that are set out in section 16.

I therefore recommend that members vote for all three amendments in the group: 47, 50 and 52.

Photo of Patrick Harvie Patrick Harvie Green

Much like the earlier discussion on the different approaches that political parties took in relation to the environmental arguments at another point in the bill, again on the issue of explanatory statements, we had two proposals at stage 2 that very much tried to achieve the same essential objective. I lodged an amendment that was modelled on one that was discussed in the UK Parliament in relation to the European Union (Withdrawal) Bill. Neil Bibby lodged an amendment that had greater specificity in the way that it was framed. There has been some discussion on the issue, and I know that Neil Bibby and colleagues in his office have worked hard alongside the Government. I am pleased that there is agreement on how the bill should deal with that wider set of social rights. I am glad that the minister will accept amendment 47 and I will certainly vote for it.

I would like to make one other point, which is on the wider agenda of rights, not all of which are covered in the bill. The minister knows that I considered lodging an amendment relating to the UN Convention on the Rights of Persons with Disabilities, but that I concluded that there was no appropriate place for it to fit in the bill. As the minister knows, that convention interacts with EU law, and the UK Government has signed it but has not implemented it domestically. I ask the minister to say whether the Scottish Government continues to endorse that convention. Will he write to the Parliament at some point when the question has been considered to say whether legislative implementation in domestic law will be necessary in relation to that convention?

Photo of Michael Russell Michael Russell Scottish National Party

I am happy to give the member that assurance. The matter fits well into the process that I was challenged about by Neil Findlay and Johann Lamont, and it should be considered as part of that process as one of the things to which we need to have special regard as we move forward.

Photo of Patrick Harvie Patrick Harvie Green

I am very grateful for that. I will support Neil Bibby’s amendment.

Amendment 47 agreed to.

The Presiding Officer:

We turn to group 11. Amendment 48, in the name of Donald Cameron, is grouped with amendments 51 and 53.

Photo of Donald Cameron Donald Cameron Conservative

I hope that I can be very brief. The purpose of amendment 48 is to ensure that when instruments are laid during a period of recess, the Scottish ministers will be held accountable for that and must explain why it has occurred. During stage 2, the minister stated that

“we need to recognise that it is almost inevitable that we will need to lay some of our instruments in recess”—[

Official Report, Finance and Constitution Committee

, 14 March 2018; c 85.]

and that it would be appropriate for the bill to set out more about what should happen in that instance. As a result of that, I did not move an amendment that made provision for recess, and the Scottish Government has suggested a reworded version that is in amendment 48 in my name. I welcome that constructive engagement.

Amendments 51 and 53 are technical amendments.

I move amendment 48.

Photo of James Kelly James Kelly Labour

Amendments 48, 51 and 53 are all sensible and require the Government to provide an explanation when instruments have to be laid during recess. That is a reasonable precaution for this or any future Government. We will support all the amendments in the group.

Photo of Michael Russell Michael Russell Scottish National Party

The amendments add a welcome safeguard to the bill. As I said at stage 2, in response to Donald Cameron’s original amendments, regulations under the continuity bill will be made against a very hard deadline that is out of our control and a backdrop of uncertainty. In those circumstances, it is appropriate for the bill to set out more about what should happen when regulations under its main powers need to be laid during recess, and the amendments achieve that. I thank Mr Cameron for working with us to lodge them. I recommend that the chamber votes for amendments 48, 51 and 53.

Amendment 48 agreed to.

Amendment 49 moved—[Tavish Scott].

The Presiding Officer:

The question is, that amendment 49 be agreed to. Are we agreed?

Members:

No.

Division number 23

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 59, Against 68, Abstentions 0.

Amendment 49 disagreed to.

Amendment 50 moved—[Michael Russell]—and agreed to.

Amendment 51 moved—[Donald Cameron]—and agreed to.

Amendment 52 moved—[Michael Russell]—and agreed to.

Amendment 53 moved—[Donald Cameron]—and agreed to.

Amendment 54 moved—[Neil Findlay].

The question is, that amendment 54 be agreed to. Are we agreed?

Members:

No.

Division number 24

For: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian
Against: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy, Yousaf, Humza

The Presiding Officer:

The result of the division is: For 59, Against 69, Abstentions 0.

Amendment 54 disagreed to.

Section 19—Power to provide for fees and charges:

Amendment 9 not moved.

Section 21—Scrutiny of regulations under sections 19 and 20:

Amendment 55 moved—[Michael Russell]—and agreed to.

Section 22—Relationship to other powers:

Amendment 10 not moved.

After section 26:

Amendment 56 moved—[Mark Ruskell]—and agreed to.

Section 27—Interpretation: general:

Amendment 57 moved—[Michael Russell]—and agreed to.

The Presiding Officer:

We turn to group 12. Amendment 58, in the name of Ivan McKee, is the only amendment in the group.

Photo of Ivan McKee Ivan McKee Scottish National Party

The purpose of amendment 58 is to provide more clarity on the meaning of “exit day”. It is concerned with how the bill works at the point at which the UK leaves the EU. The issue was discussed at stage 2, when concern was raised that the possibility existed that Scottish ministers could somehow set a different date for exit in the continuity bill than that which would apply in the UK Government’s European Union (Withdrawal) Bill. That was never the intention, but a mechanism must be put in place to ensure that if the date set in the UK bill were to change, the date in the continuity bill would reflect that change.

The Finance and Constitution Committee agreed to Neil Findlay’s stage 2 amendment to the definition of “exit day”. That replaced Scottish ministers’ ability to set exit day in regulations with a definition in the bill, namely

“the day that the United Kingdom leaves the EU.”

I am grateful to the minister for working with me on amendment 58, which gives more detail about what that means. It links the definition in the bill to the point when EU treaties stop applying to the UK

“as a consequence of UK withdrawal” from the EU. That will ensure that the bill’s legal effect is tied to the legal process by which Brexit will take place. It will remove nothing from Neil Findlay’s previously agreed amendment, but will augment and expand on it. It will ensure that, however the UK leaves the EU, whatever is provided for in the withdrawal agreement will be reflected in the continuity bill. I urge members to support my amendment.

I move amendment 58.

Photo of Adam Tomkins Adam Tomkins Conservative

When the continuity bill was introduced, section 28 provided:

“‘exit day’ means such day as the Scottish Ministers may by regulations appoint.”

Ministers then explained that they did not really mean that, because they did not want to appoint a day for exit day. An amendment was agreed to at stage 2, so that section 28(1) now reads:

“‘exit day’ means the day that the United Kingdom leaves the EU.”

That is entirely appropriate, that is how it should be and nothing more needs to be said.

Contrary to what Mr McKee has just said in defence of amendment 58, his amendment would complicate the matter unnecessarily; it would make the matter less clear and not more clear. All that needs to be said is what is currently said in section 28(1):

“‘exit day’ means the day that the United Kingdom leaves the EU.”

Therefore, amendment 58 should be strongly resisted.

Photo of James Kelly James Kelly Labour

I rise to oppose amendment 58 in the name of Ivan McKee. There were concerns at stage 1 about how the drafting of the definition of “exit day” left its interpretation in the hands of Scottish ministers. The issue was addressed at stage 2 following an amendment from Neil Findlay, which made it clear that exit day is when the UK leaves the EU. That is a clear definition.

Ivan McKee’s amendment refers to the Treaty on European Union and the Treaty on the Functioning of the European Union, which adds confusion and potential conflict. The clear definition that we have is legally watertight and should remain. Therefore, I oppose amendment 58.

Photo of Michael Russell Michael Russell Scottish National Party

I will deal with Mr Tomkins’s point first. I cannot imagine why this amendment should be strongly resisted, and I am not sure that anybody, let alone Scottish fishermen, would believe a word that the Tories say about exit day these days.

I am surprised by the Labour Party’s position, because we accepted and were very helpful with Neil Findlay’s stage 2 amendment. As I said during stage 2, I thought that we might need to make some small technical changes to it. Amendment 58 reinforces Neil Findlay’s amendment and makes the changes that are necessary so that we fully understand the issues to do with EU treaties. That is entirely consistent with making it as clear as possible that we are not setting exit day—exit day is set elsewhere.

We do not want exit day. I would rather not have exit day, but if we are going to have it, it has to be tied down very clearly. It is tied down in both Neil Findlay’s amendment and amendment 58. Therefore, I urge the chamber to support amendment 58.

The Presiding Officer:

The question is, that amendment 58 be agreed to. Are we agreed?

Members:

No.

Division number 25

For: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Beattie, Colin, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, Finnie, John, FitzPatrick, Joe, Forbes, Kate, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Gougeon, Mairi, Grahame, Christine, Greer, Ross, Harper, Emma, Harvie, Patrick, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Johnstone, Alison, Kidd, Bill, Lochhead, Richard, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Derek, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Matheson, Michael, McAlpine, Joan, McDonald, Mark, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Neil, Alex, Paterson, Gil, Robison, Shona, Ross, Gail, Ruskell, Mark, Russell, Michael, Somerville, Shirley-Anne, Stevenson, Stewart, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Torrance, David, Watt, Maureen, Wheelhouse, Paul, White, Sandra, Wightman, Andy
Against: Baillie, Jackie, Baker, Claire, Balfour, Jeremy, Ballantyne, Michelle, Beamish, Claudia, Bibby, Neil, Bowman, Bill, Briggs, Miles, Burnett, Alexander, Cameron, Donald, Carlaw, Jackson, Carson, Finlay, Chapman, Peter, Cole-Hamilton, Alex, Corry, Maurice, Davidson, Ruth, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Fraser, Murdo, Golden, Maurice, Grant, Rhoda, Gray, Iain, Greene, Jamie, Griffin, Mark, Halcro Johnston, Jamie, Hamilton, Rachael, Harris, Alison, Johnson, Daniel, Kelly, James, Kerr, Liam, Lamont, Johann, Lennon, Monica, Leonard, Richard, Lindhurst, Gordon, Lockhart, Dean, Macdonald, Lewis, Marra, Jenny, Mason, Tom, McArthur, Liam, McNeill, Pauline, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Rennie, Willie, Rowley, Alex, Rumbles, Mike, Sarwar, Anas, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Elaine, Smith, Liz, Smyth, Colin, Stewart, Alexander, Stewart, David, Tomkins, Adam, Wells, Annie, Whittle, Brian

The Presiding Officer:

The result of the division is: For 68, Against 59, Abstentions 0.

Amendment 58 agreed to.

Section 31—Scrutiny of regulations in urgent cases:

Amendments 11 and 12 not moved.

The Presiding Officer:

We move to group 13. Amendment 16, in the name of Murdo Fraser, is grouped with amendment 17.

Photo of Murdo Fraser Murdo Fraser Conservative

Amendments 16 and 17 deal with the question of regulations being introduced by Scottish ministers in what are described in the bill as “urgent cases”. As drafted, section 31 provides that such regulations shall

“cease to have effect at the end of the period of 28 days ... unless ... the regulations are approved by resolution of the Scottish Parliament.”

Therefore, section 31 grants powers to ministers to make emergency powers that will have immediate effect but will be required to be approved by Parliament. If that is not done, the regulations would cease to have effect.

My amendments 16 and 17 do not object in principle to ministers having that power, but I feel that the period of 28 days to get parliamentary approval is simply too long. At issue is proper parliamentary scrutiny of ministerial powers.

At stage 2, I moved amendments that suggested that the period of 28 days in section 31(4) be reduced to 14 days. That would still have given Scottish ministers the power to make regulations in urgent cases, but it would require that they be approved by Parliament within 14 days, which struck me as a reasonable period that strikes a balance between the need for parliamentary scrutiny and the freedom of ministers to act in urgent cases.

At stage 2, the minister said that he wanted to consider the matter further, so I agreed not to press my amendment. His officials subsequently came back with a suggestion that the Government would be prepared to reduce the 28-day period to 21 days. That seems to be a reasonable compromise, so as a seeker of consensus at all times, I have lodged amendment 16, which seeks to reduce to 21 days the period that is set out in section 31(4). A consequential amendment—amendment 17—will bring section 31(5) into line with that proposal.

I move amendment 16.

Photo of James Kelly James Kelly Labour

I support amendments 16 and 17, which relate to scrutiny in urgent cases. Murdo Fraser’s reasonable point is that a 28-day period is too long, bearing in mind that we are talking about urgent cases, so a 21-day period seems more reasonable. The Government also has the option of seeking parliamentary approval prior to that time. I urge Parliament to support both amendments.

Photo of Michael Russell Michael Russell Scottish National Party

Members in the chamber—and those outwith it who might still be observing—might regard this outbreak of consensus as unique. Indeed, it might almost be a step too far that Murdo Fraser, James Kelly and I agree on an amendment, but so be it.

I thank Murdo Fraser for allowing me the time to reflect on the time period in the provision. As I indicated at stage 2, I saw no great harm in his amendments. Indeed, it was never intended that the time period had to be 28 days—less time could be taken—but a 21-day period strikes, I think, the correct balance. It allows a reasonable period of time; it allows Scottish ministers to make instruments of reasonable certainty and it gives Parliament the opportunity to scrutinise such instruments and to schedule a vote, if necessary. I was not convinced that 14 days could have achieved that balance, so I am grateful to Murdo Fraser for promoting this proposal. I think that a period of 21 days is about right, and I recommend that Parliament agree to Murdo Fraser’s amendments 16 and 17—which are words that I never thought I would hear myself say.

Amendment 16 agreed to.

Amendment 17 moved—[Murdo Fraser]—and agreed to.

Section 31A—Suspension of effect of section 31:

Amendment 59 moved—[Michael Russell]—and agreed to.

The Presiding Officer:

We turn to group 14. Amendment 60, in the name of the minister, is the only amendment in the group.

Photo of Michael Russell Michael Russell Scottish National Party

Amendment 60 is a short and practical amendment that I hope can be supported across the chamber.

I have often pointed to section 37, and the ability to repeal the legislation, as evidence of the Government’s good faith in seeking agreement over the withdrawal bill. I have also said that, if that does not prove to be possible, the second-best option involves both Governments working together to make sure that the continuity bill and the withdrawal bill can work together in Scotland in as complementary a way as possible; indeed, the bills have been designed in that way. I have explained on a number of occasions that, subject to a limited number of policy differences, the bill has been carefully drafted to mirror equivalent provisions in the withdrawal bill. Amendment 60 is further evidence of our good faith in seeking that outcome.

Amendment 60 will allow the power with regard to ancillary provision in section 32

“to make provision in consequence of, or in connection with” the withdrawal bill, when it is passed, and any other legislation that is also aimed at preparing our laws for the consequences of EU withdrawal. At each stage of the bill process, members have raised concerns about what would happen if the withdrawal bill were to be amended in a relevant way after the continuity bill passed through the Scottish Parliament. I remember Tavish Scott raising the issue at stage 1 and Murdo Fraser asking probing questions about it during committee scrutiny. The issue was also highlighted by the Delegated Powers and Law Reform Committee. Amendment 60 responds to those genuine concerns. Agreement to the amendment would mean that, in such a situation, we could come to Parliament with regulations making provisions that would ensure that, despite such amendments, the two bills would still be able to work together.

We have no information to suggest that that might happen, but amendment 60 would mean that if the operation of the two bills together, in some unanticipated way, proved to be awkward or required some fine tuning in order for it to work best, we would be able to come to Parliament with a proposal, in regulations, to address that.

I must stress that it remains the case that any exercise of the powers would be required to be consistent with the policy that has already been given effect in the bill, as the power must be exercised for the purpose of giving full effect to the bill.

At stage 2, Liam Kerr amended the ancillary provisions power so that, unusually, it requires ministers to be satisfied that the use of the power is “necessary” before making provision under it. We will not seek to reverse that at stage 3, and the same limitation will apply to the power when it is used for the new purpose. Ministers will have to be satisfied, and the test will have to be applied, that making provision of the sort that is envisaged by amendment 60 is necessary before they can put anything to Parliament.

Amendment 60 is sensible and modest and is aimed squarely at the serious practical difficulties that Parliament might face under a possible scenario over the next 18 months in trying to prepare Scotland’s devolved laws for the consequences of Brexit.

I move amendment 60.

Photo of James Kelly James Kelly Labour

In evidence to the Finance and Constitution Committee at stage 1, Michael Clancy of the Law Society of Scotland made the point that it is important that continuity legislation that is passed in the Scottish Parliament needs to be consistent with the appropriate clauses of the European Union (Withdrawal) Bill at Westminster. That was a relevant point so, from that point of view, I am sympathetic to the minister’s amendment 60.

However, I am also aware that the Delegated Powers and Law Reform Committee has expressed concerns about the overarching reach of amendment 60 in granting too much power, and the potential for the Government to use too much power. Although I am convinced by the case that the minister has made, I ask for reassurance that the powers will not be overreached.

Photo of Michael Russell Michael Russell Scottish National Party

I am happy to give that assurance. I have read what the convener of the Delegated Powers and Law Reform Committee has said and drawn attention to.

As I said, amendment 60 was lodged directly in response to concern that was raised by members and by the Law Society of Scotland—I take that point from James Kelly. They made good points. Brexit will be complex, and we have always wanted to go with a single statute, because we recognise that operating two acts has potential problems.

However, if the two pieces of legislation have to be operated together, they need to operate together well. In our view, amendment 60 is limited in the same way as the other ancillary powers are—perhaps more so—but I am happy to give James Kelly the assurance that he seeks. It is the very limited right to address the concerns that members and the Law Society of Scotland have raised that is being sought in the ancillary provision.

The Presiding Officer:

I take it that you are pressing amendment 60.