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European Union (Withdrawal) Bill

– in the Scottish Parliament on 15th May 2018.

Alert me about debates like this

Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is a debate on motion S5M-12223, in the name of Michael Russell, on the European Union (Withdrawal) Bill, which is United Kingdom legislation. I call Michael Russell to speak to and move the motion.

Photo of Michael Russell Michael Russell Scottish National Party

When Donald Dewar spoke at the opening of the Scottish Parliament—the re-opening, as he himself acknowledged—on 1 July 1999, he talked of it being

“a new stage on a journey begun long ago and which has no end.”

Presiding Officer, you were there to hear that speech; so was I, so were the First Minster and the Deputy First Minister sitting on the front bench today, so were Tavish Scott and Mike Rumbles, and so were lain Gray and Elaine Smith. Twenty-six members of this present Parliament were, so to speak, in at the beginning, though the beginning was actually a culmination of a long campaign and struggle that was fought—again in Donald Dewar’s words—to achieve

“the day when democracy was renewed in Scotland”.

Of course, I and all the others on the Scottish National Party benches disagreed then with Donald Dewar about the final destination of that journey, just as we disagree with others here today on that matter. However, that was not the important thing on that opening day and it is not the important thing today. The important thing was, and is, to acknowledge the progress that had, and has, been made; and to accept that, on this journey together in a Parliament of minorities—a journey that the Scottish people told us to take and which they voted for by an overwhelming majority—we should find a way to secure tangible gains for our country, no matter our vision of where we want to end up. That is our duty, because this Scottish Parliament belongs to the people of Scotland—not to us as parliamentarians, nor to this Government or any Government. As elected members, we hold this place and our powers in trust for the generations that voted for them, this generation and the generations to come. They decide on journey and end point, not us.

Over the past 19 years, this Scottish Parliament has in the greatest part been good for Scotland. The powers of this Scottish Parliament have been used by Administrations of different political complexions to improve the lives of many—hopefully, most—of the people living in Scotland, often in response to some of the most serious challenges that they face.

Every one of us in the chamber has played a part in that, from securing free personal care for the elderly to abolishing tuition fees; from establishing world-leading climate change legislation to delivering equal marriage; from putting in place the United Kingdom’s first smoking ban to agreeing that, for the health of our nation, we should introduce minimum unit pricing for alcohol; and from eliminating business rates for small enterprises to supporting innovative and profitable renewable energy generation.

We have, and we use, those powers because we enjoy an established system of government called devolution. It might not be able to secure everything that all of us want, but devolution, which was put in place in 1999 and strengthened by subsequent agreement with Westminster, has made our system of governance robust enough to withstand expected and unexpected challenge and difficulty. It has been robust enough to withstand a global financial crash and to resist, at least in part, the misguided and damaging policy of austerity.

Now it is our job to ensure that it is not cast aside because of a Brexit that Scotland did not vote for and which can only be damaging to our country. Today, the challenge of Brexit—or rather the challenge of the proposed power grab by the UK Tory Government under the guise of delivering Brexit—puts our devolved settlement at risk.

The Secretary of State for Scotland, who, incidentally, also heard Donald Dewar’s opening remarks as a member of this Parliament, dismissively described the issues that we are debating today as

“dancing on the head of a pin”.

Presiding Officer, it is not “dancing on the head of a pin” to insist that 20 years of stable devolution that has delivered good things for our fellow citizens be protected.

Photo of Pauline McNeill Pauline McNeill Labour

As one of—[

Interruption

.] I apologise to Mike Russell for the delay. My card was not in the console.

As one of the 26 members Mike Russell talked about, who were members in the first session of Parliament, I wonder whether he agrees that Donald Dewar was the champion of devolution and that, unlike the Welsh model, the Scottish model was designed to state which powers were reserved. Does he agree that that was deliberate and that any attempt to change it would definitely undermine what all of us and Donald Dewar chose to try to achieve in those days?

Photo of Michael Russell Michael Russell Scottish National Party

I would agree with that. It is a good point. The reserved model of devolution, which is not precisely the same as the Welsh model, is one that requires us to defend it and to consent when there are changes. I will come to that point.

As I said, it is not “dancing on the head of a pin” to insist that 20 years of stable devolution that has delivered good things for our fellow citizens be protected, nor to demand the powers that we use for the benefit of Scotland, which have been agreed by the people of Scotland.

On one view, the vulnerability of the principles of devolution to the UK Government’s approach to Brexit should not surprise us. That Government cannot answer even the most basic of questions on issues such as the customs union with just months to go before a withdrawal agreement must be signed. It has dismissed this Parliament’s views on wider Brexit issues such as the single market and the triggering of article 50, and it has acted recklessly towards prosperity and peace in Northern Ireland. The reality of the past 23 months is that Theresa May has seemed concerned only about trying to keep together the warring factions of her party, regardless of the impact on jobs, living standards or devolution.

In contrast with the division at Westminster, there has been consensus in this chamber over the need to protect the Scottish Parliament’s powers. The Scottish Government has always acknowledged that we must prepare our laws for withdrawal. In line with the clear majority of people in Scotland, we do not want to leave the European Union, but we accept that legal preparation for Brexit is required, and the UK Government, for its part, recognises that it is required to get our consent to its European Union (Withdrawal) Bill.

The Scottish Parliament has spoken powerfully on that point. In its interim report in January, the Finance and Constitution Committee unanimously agreed that the bill was

“incompatible with the devolution settlement in Scotland.”

Therefore, the committee could not recommend consent.

Photo of Michael Russell Michael Russell Scottish National Party

Not at the moment, please. I want to make some progress.

Clause 11 was not an accidental clause. The provisions encapsulate the current UK Government’s view of the type of devolution that it wants to see operating: devolution that operates only by the grace and favour of Downing Street.

To be fair, the UK Government eventually responded to the unanimous view of the Scottish Parliament and the Welsh Assembly and the view of many others by making changes, but the newly reformulated clause still makes it clear how the UK Government sees power being exercised on withdrawal from the EU and how it views the Scottish Parliament—and that view is unacceptable. It would abandon the way in which we have all operated for almost two decades and break our devolution settlement.

Photo of Adam Tomkins Adam Tomkins Conservative

Will the minister explain why, contrary to his view, the United Kingdom Government’s view is acceptable to the Labour Government in Wales?

Photo of Michael Russell Michael Russell Scottish National Party

That is probably a question for the Labour Government in Wales, but I would hazard a guess that one of the factors is that Scotland voted to remain in the EU and Wales voted to leave it. Perhaps Tory members might want to reflect on that.

The UK Government wants to take a power to restrict the competence of the Scottish Parliament, and it wants to be able to exercise that power even in the face of an explicit decision by the Scottish Parliament that it should not do so This is not about the sovereignty of the Westminster Parliament or giving effect to the Sewel convention; it is about the UK Government—not the UK Parliament—being able to adjust for the first time the terms on which devolution operates through delegated legislation, and being able to do so without the consent of, or against the wishes of, the Scottish Parliament.

There are existing and effective powers under the Scotland Act 1998 that allow the competence of the Scottish Parliament or the Scottish Government to be adjusted. None of them operates in the way that is set out in the UK Government’s new clause. Every single one of them requires changes to be passed by both the UK Parliament and the Scottish Parliament, and every single one of them requires proper democratic consent to be sought and received. That is real consent, not presumed consent. A section 30 order to adjust the list of reserved matters and therefore the boundaries of devolution, for example, requires to be passed by the Scottish Parliament. It cannot become law without the consent of the Scottish Parliament and the country that it affects. Thirty orders have been passed under section 30 since the Parliament was established. All were the product of agreement and all were passed in the Scottish Parliament and at Westminster. Even the section 30 order for an independence referendum was able to secure the support and win the consent of both Parliaments.

The UK Government says that it would not normally make such regulations without our consent, but those words do not appear in the legislation. The legislation is drafted on the basis that proceeding with regulations—even without consent from the Scottish Parliament, and even if the Scottish Parliament has unanimously voted against them—will be normal. We are being asked to consent to that legislation.

Moreover, the amendments to the new clause that the House of Lords has now agreed to say that the powers of the Scottish Parliament can be constrained for up to seven years, whether the Scottish Parliament agrees, does not agree or makes no decision at all.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Is the minister aware that it may be even worse than that for fishing? The white paper that was leaked last week suggested that the powers over fishing would be retained at Westminster beyond the seven years. That is bitterly disappointing to fishermen in my constituency and across Scotland. Is that how the Government feels, too?

Photo of Michael Russell Michael Russell Scottish National Party

It is indeed. Stewart Stevenson is right, of course. It is possible to permanently remove powers in primary legislation within that period.

Apparently, the purpose of the constraint is to enable discussion to take place on the establishment of common UK frameworks, but there is no need to impose an unprecedented, unequal and unacceptable new legislative constraint. We have already agreed that there may be the need to establish such frameworks in certain areas and, in keeping with the spirit and principles of devolution, we agree that those frameworks should be the product of negotiation and agreement between the Governments and Parliaments. We also agree that, pending the establishment of common frameworks, both Governments should maintain existing EU law regimes across the UK.

The Secretary of State for Scotland has said that frameworks should not be imposed but, as the Finance and Constitution committee reported,

“this commitment that common frameworks will not be imposed is contradicted by the ‘consent decision’ mechanism created by the UK Government’s amendments ... which would allow the UK Government to proceed with regulations without the consent of the Scottish Parliament.”

The committee made the key point that the devolution settlement can function effectively only if there is mutual trust between all the UK’s Governments—that is, if the substantial political agreement between Governments is given effect by political means. The answer, therefore, is to proceed through reciprocal political commitments. That was the view of all parties on the committee, except the Conservatives.

Today, in the motion, the Scottish Government asks Parliament to withhold consent to the European Union (Withdrawal) Bill as it stands. This will not be the end of the process—this Parliament’s offer is still on the table. However, agreeing to the motion will mean that the bill must be adjusted, either so that it can command the consent of this Parliament, or to reflect the terms of the legislative consent motion. If the motion is agreed to today, that will be the will of this Parliament.

What cannot happen, Presiding Officer, is what the UK Government seems to want to happen.

Photo of Michael Russell Michael Russell Scottish National Party

No, I am sorry—I want to conclude.

The UK Government wants to ignore the reality of devolution and drown out what this Parliament says, but not even it can pretend that no motion has been agreed to; nor can it pretend that this Parliament is failing to face up to its responsibilities to enable the statute book for which it is responsible to be prepared. We are doing that—we have done it through the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and we are doing it through this process today.

It would be serious and unprecedented were the UK Government to impose legislation on this Parliament. Such an action would be noted here and across Europe. If there is a failure after today’s vote to adapt the bill to devolution, it will be the UK Government that would be breaking trust and the rules, not us.

Donald Dewar began his famous speech in 1999 by looking at the mace that was in front of him then and is in front of us now. It has inscribed on it the first words of our founding statute:

“There shall be a Scottish Parliament.”

Twenty years ago, those were words of aspiration; a statement of constitutional intent. Now, they are words of constitutional reality and resolve: there is a Scottish Parliament, and its voice must be heard.

Donald Dewar cautioned us in his speech that the Scottish Parliament was “Not an end”, but

“a means to greater ends.”

Today we are called on—for the first time—to protect those means by refusing to accept changes to them to which we have not agreed; to protect those means so that we can go on achieving the best ends for Scotland that we can; and to protect those means because the people of Scotland themselves chose them, and they chose us to protect them.

Accordingly, Presiding Officer, I move the motion in my name,

That the Parliament notes the legislative consent memorandums on the European Union (Withdrawal) Bill lodged by the Scottish Government on 12 September 2017 and 26 April 2018, and the reports of the Finance and Constitution Committee of 9 January and 10 May 2018, and, because of clause 15 (formerly 11) and schedule 3, which constrain the legislative and executive competence of the Scottish Parliament and Scottish Government, does not consent to the European Union (Withdrawal) Bill.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

I speak in the debate in my capacity as the convener of the Finance and Constitution Committee.

It is fair to say that the debate marks the end of a long journey for the committee, since the introduction in the House of Commons of the European Union (Withdrawal) Bill last July. The debate may mark the end of the legislative consent memorandum process in the Scottish Parliament, but it marks only the end of the beginning of the legislative process that any Brexit outcome will presage.

Photo of Neil Findlay Neil Findlay Labour

It is on that particular point.

Photo of Neil Findlay Neil Findlay Labour

Bruce Crawford said that we are at

“the end of the legislative consent motion process”.

The Scottish Parliament information centre has confirmed to us that another legislative consent motion might have to come after this one. Is the member aware of that?

Photo of Bruce Crawford Bruce Crawford Scottish National Party

It is always possible that the House of Commons will adjust the bill. If that happens, the Scottish Parliament will have to consider its response to that. I am going on the situation as it stands.

In January, the committee set out its initial position on the bill in our interim report, following completion of the bill’s passage through the House of Commons. Since then, we have continued to take evidence on the bill, as it has evolved in the House of Lords.

Our final report on the bill considers the changes that have been made in the context of whether the recommendations that were set out in our interim report have been addressed. Although the committee’s position on our interim report was unanimous, it has not, unfortunately, been possible to achieve the same outcome for our final report, in that Conservative committee members have dissented from some of the committee’s conclusions.

However, I thank all my fellow committee members for the positive and collaborative way in which they have approached all aspects of scrutiny of the bill, including our final report. I also thank the committee’s adviser on constitutional issues, Christine O’Neill, for the expert advice that she has provided throughout the scrutiny process, and to the clerks, who have carried out their jobs in their usual assiduous way.

The committee acknowledges that there are parts of the bill to which changes have been made that address concerns that the committee raised in its interim report. Let me briefly mention a couple of those. The committee welcomes the amendment that has been made that will afford the same protection to the Scotland Act 1998 as had previously been afforded in the withdrawal bill to the Northern Ireland Act 1998.

The committee also welcomes the non-Government amendments, including those that were agreed in the House of Lords to keep the Charter of Fundamental Rights of the European Union as part of “retained EU law”. Similarly, the committee welcomes the progress that the Governments have made in identifying areas that might be subject to common frameworks.

Nevertheless, the committee continues to have significant concerns about the bill. It recognises that, despite some progress having been made, there remain fundamental differences between the Scottish and UK Governments, relating principally to what was originally clause 11 and schedule 3, the process for agreeing common frameworks and the powers of UK ministers in devolved areas.

The committee has not come to a conclusion on consent, either for or against, on any part of the bill except for what was originally clause 11 and schedule 3. On the then clause 11, it is worth re-iterating the committee’s unanimous conclusion in our interim report, in which we stated that

“Clause 11 represents a fundamental shift in the structure of devolution in Scotland”.

Since then, the UK Government has replaced clause 11 with new clause 15, which places a different restriction on the legislative competence of the Scottish Parliament. The new clause 15 would not allow the Scottish Parliament to modify law in an area of retained EU law, where the modification is of a kind that the UK Government has “specified in regulations”. Such UK regulations would be subject to a mechanism whereby consent of the Scottish Parliament would be sought. However, even were a decision to be made by the Scottish Parliament to refuse consent, that would not prevent the UK Parliament from approving the relevant regulations. I suggest that that approach would not normally meet a common understanding of “consent”. As Abe Lincoln observed:

“No man is good enough to govern another man without the other’s consent.”

In addition to the new clause 15, the UK Government has produced a proposed intergovernmental agreement and memorandum of understanding. Both are intended to provide non-statutory commitments on behalf of the UK Government. The proposed agreement states that the UK Government commits to making regulations through “a collaborative process” and that the UK Parliament will “not normally” be asked to approve clause 15 regulations without the consent of the devolved legislatures.

The UK Government has also made a non-statutory commitment not to introduce legislation that would modify retained EU law applying in England in areas that are covered by the clause 15 regulations.

From the committee’s perspective, it is not clear why the UK Government should be subject to voluntary constraints while the devolved Governments would be subject to statutory constraints. The approach of the UK Government suggests that it does not trust the devolved Governments.

The committee’s view is that the devolved settlement cannot function effectively without mutual trust among all the Governments across the UK. Accordingly, the committee proposes that the constraints that would be placed on the Scottish Government should be the same as constraints that would be placed on the UK Government. In other words, the two Governments should agree to commit to a non-legislative political constraint not to introduce legislation in areas where common frameworks are likely to be needed. The committee also notes that that approach remains the outcome that is preferred by the Welsh Government. The approach would genuinely represent a partnership of equals.

The new clause 15 is also intended to provide a mechanism to allow for the creation of common UK frameworks. However, the non-statutory approach that the committee recommends would mean that clause 15 would not be necessary to enable the agreement of common frameworks.

It is worth re-iterating the committee’s position, in our interim report, on common frameworks, which was to welcome

“the commitment from the UK Government that common frameworks will not be imposed. The Committee strongly believes that both the process for agreeing common frameworks and the actual content must be arrived at through agreement and not imposed.”

That remains the committee’s position. However, the committee considers that the commitment that was made by the Secretary of State for Scotland, that common frameworks will not be imposed, is contradicted by the consent decision mechanism that the UK Government’s new clause 15 will create.

It is fair to say that the bill’s linguistic gymnastics to define a consent decision would have provided Nadia Comaneci with a perfect 10. Clause 15 would allow the UK Government to proceed with regulations without the consent of the Scottish Parliament. The committee’s view is that a solution to that impasse should rest on both Governments making reciprocal political commitments. That would allow the discussions on common frameworks to proceed, and it would provide the clarity and certainty that are needed.

I will comment briefly on the powers that are proposed in the bill for UK ministers to legislate in devolved areas without the consent of the Scottish Parliament. In our interim report, we stated that we were deeply concerned about the lack of any statutory provision in the bill for UK ministers to seek the consent of the Scottish ministers or the Scottish Parliament to legislate in devolved areas. That concern is accentuated by the fact that the Sewel convention does not apply to subordinate legislation. The committee remains deeply concerned about those provisions, which it considers cut across the devolution settlement.

The committee has tried hard to fulfil a constructive role throughout our scrutiny of the withdrawal bill. That approach has continued in our final report, in which we have sought to offer a positive solution to the current impasse. We consider that the current situation can be resolved through emphasis on mutual trust and respect. Currently, however, those are sadly lacking.

The committee recommends that reciprocal political commitments be included in the proposed intergovernmental agreement as a means to emphasise mutual respect, and to enable progress to be made. That would represent a genuine commitment to a partnership of equals among the constituent parts of the UK. We do not discount the possibility that the two Governments may yet be able to reach agreement on alternative ways to break the current impasse, but that is our proposed solution.

Regardless of that, without a solution, and given the fundamental differences that exist between the Scottish Government and the UK Government, the committee recommends that the Scottish Parliament not consent to clause 15 and schedule 3 of the bill.

Photo of Adam Tomkins Adam Tomkins Conservative

We have debated the European Union (Withdrawal) Bill numerous times in the chamber. Members will recall that, throughout the debate, the Scottish Conservatives joined parties across the Parliament in arguing that clause 11 of the bill as introduced was not fit for purpose and needed to be replaced. It was not fit for purpose because, as the Minister for UK Negotiations on Scotland’s Place in Europe and Pauline McNeill said, it turned one of the pillars of devolution upside down.

All powers that are not expressly reserved to Westminster are devolved to us in Scotland. The original clause 11 failed to respect that principle, and that was our reason for arguing that it needed radical change. That change has now been delivered by a UK Government amendment that was agreed to without division at the report stage in the House of Lords.

The new clause 11—now clause 15 of the bill as amended—ensures that all powers that are repatriated from the European Union following Brexit that fall within devolved competence will come to Scotland unless they are expressly held in reserve. That is as it should be. That is the fundamental change to the original clause 11 that we called for, that the Scottish Government called for and that the Parliament’s Finance and Constitution Committee unanimously called for.

Peers right across the House of Lords have recognised that, as has the Labour Government in Wales. Mark Drakeford, the key minister in the Welsh Government, said about the amended clause 11:

“This is a deal we can work with which has required compromise on both sides. Our aim throughout ... has been to protect devolution”.

Comparing the original clause 11 with its amended version, he said:

“London has changed its position so that all powers and policy areas rest” with the devolved Administrations

“unless specified to be temporarily held by the UK Government. These will be areas where we all agree common, UK-wide rules are needed for a functioning UK internal market.”

Photo of Bruce Crawford Bruce Crawford Scottish National Party

I accept the points that Mark Drakeford made and that Adam Tomkins just made. Does Mr Tomkins accept that, in the letter that he sent in April, Mr Drakeford suggested that the Welsh Government’s preferred option was the one laid out by the Finance and Constitution Committee

?

Photo of Adam Tomkins Adam Tomkins Conservative

The fact is that the Welsh Government has compromised, the United Kingdom Government has compromised, and the only Government that has not compromised is the Scottish Government. That is the reality.

In the House of Lords, both Labour and Liberal Democrat peers spoke strongly in support of the amended clause 11. Lord Steel said that

“this is really quite a good deal.”—[

Official Report, House of Lords

, 2 May 2018; Vol 790, c 2154.]

Lord Wallace of Tankerness called it

“a considerable advance with much better arrangements”.—[

Official Report, House of Lords

, 2 May 2018; Vol 790, c 2138.]

Those experienced, measured and senior politicians are among the founding fathers of devolution. If the deal is good enough for them, it should be good enough for us, too, and we should give it our consent today.

The disagreement on clause 11 has more than once been characterised as dancing on the head of a pin. Some have unkindly described it as the dullest constitutional crisis in history. Last week, Mike Russell compared it to the Schleswig-Holstein problem. Only three people understood the Schleswig-Holstein problem, and one of them went mad, so the minister had better be careful.

If we strip the current disagreement back to first principles, we can perhaps more easily see what the argument is about. There are two principles at the root of the matter. First, Brexit must be delivered compatibly with our devolution settlement. Leaving the European Union in no sense means that we can somehow return to the constitution of 1972. Secondly, Brexit must not be allowed to undermine the integrity of the United Kingdom or, in particular, the integrity of the UK’s internal market. That is not just in the UK’s interests; it is in Scotland’s interests. Scotland, let us remember, trades four times as much with the rest of the United Kingdom as it does with the whole of the European Union. Brexit absolutely cannot be allowed to result in the creation of new trade barriers between Scotland and the rest of the UK.

Those two principles are not unionist principles; they are principles on which both unionists and nationalists can and do agree. Neither are they Conservative principles; they are matters that unite us all, left and right alike. I could not have supported a withdrawal bill—or, for that matter, a continuity bill—that failed to respect either of those principles. I did not support the original clause 11 because it fell foul of the first principle, that Brexit must be delivered compatibly with devolution.

Photo of Adam Tomkins Adam Tomkins Conservative

Not at the moment.

I did not—and still do not—support the SNP’s continuity bill because it falls foul both of that principle and of the principle that the integrity of the UK’s internal market must be safeguarded. However, the amended clause 11—or clause 15, as the bill stands today—adheres to both of those fundamental principles. That is what Mark Drakeford, David Steel and Jim Wallace, among many others, have all said, and it is why we, on the Conservative benches, think that this Parliament should now give its consent to the European Union (Withdrawal) Bill.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Adam Tomkins referred to my colleagues in the House of Lords, but I want to make it clear that I and my Liberal Democrat colleagues here will support the Scottish Government’s motion, because we do not want anyone to construe that we would give our consent to the UK Government’s bill to leave the European Union in the first place.

Photo of Adam Tomkins Adam Tomkins Conservative

The cat has been let out of the bag. The Liberal Democrats’ position here has nothing to do with ensuring that Brexit is delivered compatibly with devolution and everything to do with trying to reverse Brexit itself.

Set in the context of those fundamental constitutional principles, let us delve into the detail of the amended clause. I said a few moments ago that the first thing that it does is ensure that all powers falling within devolved competence that are repatriated from the European Union after Brexit will come to this Parliament. There is no Westminster power grab—the powers will come here. This Parliament will become significantly more powerful as a direct result of Brexit. We will have new powers over energy, including renewable energy; over aviation and noise pollution; over the marine environment, forestry and land use; and over environmental impact, carbon capture, water quality and a range of further powers.

The only exception to that is where regulations are made temporarily to hold a power in reserve in order to ensure that that power does not inadvertently undermine or jeopardise the integrity of the UK and its internal market. All parties, including the SNP, agree that those powers should be exercised in accordance with UK-wide common frameworks. However, it is not just the existence of UK-wide common frameworks that all parties, and all Governments, have agreed to; it is the subject matters and the policy areas where those common frameworks will be needed that all parties—including the SNP—have agreed to.

The amended clause will hold in reserve only powers that the SNP has already agreed should be exercised subject to a UK-wide common framework. Those powers—each and every one of them—are all powers that we, in this Parliament, cannot currently exercise. Not a single power is being taken away from us as a result of the withdrawal bill. We cannot exercise those powers at the moment, because they are not held here—they are held in Brussels. That, of course, is where the SNP/Green alliance would prefer them to remain. This whole argument is about powers that the SNP has already agreed should be exercised subject to a UK-wide common framework and that are currently exercised by Brussels. For those reasons, it is, frankly, baffling that we are where we are today.

We should, long since, have moved on. There is serious work ahead, and we should be getting on with it. We should be negotiating and agreeing common frameworks. We should be preparing our statute book for exit day and beyond. We should be turning our minds to how we want to exercise the new powers that are coming to us. We should be thinking about what sort of regime of agricultural subsidy or fishing support we want in Scotland. How do we keep food prices low but ensure, at the same time, that farmers and crofters are properly supported? How do we want to tailor and adapt European standards of environmental protection so that they match Scotland’s needs and priorities more accurately? In short, how do we rise to the challenges that Brexit undoubtedly presents and, at the same time, take advantage of the new opportunities that it affords us in policy areas that we have not been able to develop for ourselves for more than 45 years?

Those are big questions—much bigger than the constitutional dancing on pinheads to which we are being treated again today—and it is time to move on and address them. Let us give our consent to the withdrawal bill and get on with the job at hand.

I move amendment S5M-12223.1, to leave out from “, and, because of” to end and insert:

“; agrees with the Welsh Government and Liberal Democrat peers that the amended Bill respects the devolution settlement, and, because it provides people and businesses in Scotland with certainty and devolves further powers to the Scottish Parliament, consents to the European Union (Withdrawal) Bill.”

Photo of Neil Findlay Neil Findlay Labour

I offer a bit of friendly advice to Mr Tomkins in mental health awareness week: he needs to get a more sensitive gag writer.

If there is one lesson to come from all the debate over the past year, it is that—no matter what the reason or the country, or how simplistically people try to present it—extricating any state, or part of a state, from a political and economic union of which it has been a member for even just 40 years, is a very complex, tortuous, time-consuming and difficult thing to do.

If we look at the negotiations around clause 11—now clause 15—alone, we can see the extraordinary amount of time, effort and, when it comes down to it, money that has been spent. Very important though the negotiations are, I am sure that we would all rather have seen that amount of time and effort being put into ending child poverty, addressing the inadequacies in our mental health services and building homes for people sleeping on the streets of our cities and towns today—some of them just yards from this Parliament.

I say that, because this situation was there to be avoided. There was, and is, no need for the stalemate in which we have found ourselves to have come about. All that it needed was for the Tories and David Mundell, the Cabinet’s least influential and most irrelevant member, along with Ruth Davidson and Adam Tomkins, to deliver the amendments to clause 11 that they said they would—nothing more and nothing less. Their failure to deliver is what has taken us to today’s position. The blame lies largely in their court.

Photo of Murdo Fraser Murdo Fraser Conservative

On 26 April, Lesley Laird, who is the shadow Scottish secretary, welcomed the deal between the Welsh Government and the UK Government and called on the Scottish Government to follow suit. Who speaks for the Scottish Labour Party these days? Is it Mr Findlay and his colleagues or the shadow Scottish secretary, Lesley Laird?

Photo of Neil Findlay Neil Findlay Labour

Lesley Laird moved amendments in the House of Commons that would have resolved this situation, and your lot were whipped to vote against them. That is how we got to this situation, Mr Fraser.

The Presiding Officer:

Mr Findlay, please do not say “your lot”.

Photo of Neil Findlay Neil Findlay Labour

The stakes here are high. Workers across a range of sectors need a clear legislative and regulatory framework to work to, and businesses, exporters and importers need it to plan ahead. The national health service and public services all need certainty for long-term planning—yet, instead of certainty, all we have is confusion.

From the initial 101 areas of dispute on creating common frameworks, I am pleased that progress has been made and we are down to 24. Then again, maybe the number is not 24, because, according to Mr Mundell, that number may increase again. That is not certainty—that is more uncertainty, in areas that would ordinarily be devolved to this Parliament under the reserved powers model of our devolved settlement.

We cannot and will not support those powers being repatriated to anywhere other than this Parliament and then consent sought to create the common frameworks and regulations. That is absolutely consistent with the Scottish Labour Party’s long-held commitment and support for devolution. Labour was central to establishing the Scottish Constitutional Convention, which—we should not forget—the Tories and the SNP boycotted. Labour representatives, some in this Parliament, did the heavy lifting, working across parties with the Liberals, the Greens and civic society, at times having to compromise but, in the end, agreeing a workable model for Scotland’s Parliament.

Since then, despite the many huge ups and downs of that process and under huge pressure at times, we have stood resolute in the defence of the devolution settlement and the constitutional change that people voted for in such big numbers in 1997. We have defended devolution at every turn and from every attack, wherever it has come from, and now we seek to strengthen it as we take post-Brexit powers over areas that are critical to the development of the fair, just and progressive society that we want to create, such as public procurement. We want to use this Parliament’s powers to deliver a public procurement agenda that ends discrimination and blacklisting, addresses zero-hours contracts, promotes sustainability and delivers fair pay and jobs. Taking those powers and, crucially, using them is not some theoretical exercise for Mr Tomkins’s constitutional law students—it is crucial if we are to deliver the democratic socialist society that we want to see and which he used to want to see.

In the Commons, Labour sought to improve the bill, but the Tories voted down our amendments. In the Lords, Labour lords voted for amendments to make a bad bill better—a bill that the Tories themselves have described as “not fit for purpose”. The Welsh Government, with a different devolution history and legal system, has worked to negotiate a system that it believes will work for it; that is its right and, indeed, it is evidence of devolution at work. However, it has made it clear that it will continue to work with Scottish Labour and the Scottish Government to try to improve on the deal that it has struck.

At the weekend, Richard Leonard reached out in good faith to all parties to seek talks to end the impasse. Parties in this Parliament have worked together before. On this very important matter, we believe that they can do so again. I am pleased that the minister has indicated that he is supportive of that approach. We are serious about trying to find a solution to this situation and I hope that UK ministers are, too. Just as I was getting to my feet, we had an indication from David Lidington that he appears to be open to those discussions. We are up for it and it appears that Mr Russell is up for it, so let us encourage the Tories to get David Lidington on board and to get round the table and start negotiating.

I move amendment S5M-12223.2, to insert at end:

“, and calls on both the UK and Scottish governments to convene cross-party talks in an attempt to broker an agreed way forward.”

Photo of Patrick Harvie Patrick Harvie Green

I echo the thanks to my fellow committee members and to everybody who has contributed to the committee’s work on this issue. I welcome the unity that appears to be being shown. It appears that Green, Labour, SNP and Liberal Democrat MSPs will stand together tonight in defence of the Parliament that we campaigned for together 20 years ago.

The Conservatives—the party that campaigned against the creation of this place—had given the general impression over those 20 years that they had accepted how wrong they were and had come to accept the existence of this Parliament. What has become glaringly obvious since the Brexit crisis began is that they still cannot accept the legitimacy of the distinct political will that exists in Scotland. It has been expressed in elections to this Parliament and in the 62 per cent remain vote two years ago—the Conservatives are ignoring both.

I think that everybody knows that I do not see much merit in the Conservative party’s politics, which I consider to be broadly despicable. However, I can still admit that I had thought that some Tory politicians were basically rational and decent people whom I could respect, despite their promoting a political ideology that I detest. I have therefore been astonished by the speed at which they have abandoned reason and thrown in their lot with the Brexit extremists. In doing so, they are ignoring not only the views of the people whom they represent on the question of Europe itself, they are also ignoring every objective assessment of the country’s best interests in favour of the delusional ramblings of their party’s extremist fringe and those further right whose support they seek to win back.

As well as all that, the other aspect of Scotland’s political will that the Tory position ignores is the desire to have a Parliament here in Scotland that makes decisions on the same basis as was set out 20 years ago—a model that has developed over that time, but has never moved away from the principle that what is not reserved is devolved. Let us remember that the most recent development of devolution involved a commitment, eagerly welcomed by Adam Tomkins and his colleagues, to give the principle of legislative consent a statutory basis. We were sceptical of that promise and unconvinced that it had any substance in law, but even I didn't imagine that, just months after passing the most recent Scotland Act, they would tear up the whole idea and utterly overturn the principle of consent.

I understand that our Education and Skills Committee has been looking at consent education for young people. That is all well and good, because it is an important issue that needs to be addressed. However, the person who is most clearly in need of consent education is the Secretary of State for Scotland. If the idea of consent is to be at all meaningful, consent must be freely given or withheld without coercion or threat; it must freely revocable—able to be withdrawn at any time—and, most important, the idea of consent must be respected. If the UK Government proceeds with its apparent threat to legislate in this area without our consent, it will have entirely justified our rejection of the bill and proved that it cannot be trusted on the principle of legislative consent.

I turn to the Labour amendment. I honestly cannot see a great deal of value in it. There have been cross-party talks here at Holyrood, organised by the Scottish Government, and Neil Findlay and I both participated. I was not aware that there had been any innovative new proposals from Labour, and I am still in that position after hearing Mr Findlay’s speech. Would another series of meetings involving UK ministers actually force them to relent? Would they change their position? I doubt it.

Photo of Neil Findlay Neil Findlay Labour

Yes, we have had cross-party discussions with the Scottish Government, but we have never had cross-party discussions when the UK Government was at the table. Would it not be good for us to show a united front in putting forward some ideas to break this logjam? Surely Mr Harvie would want that.

Photo of Patrick Harvie Patrick Harvie Green

I do not object to the idea of more meetings, and if Mr Findlay wants there to be more meetings, I will come along, but I am entirely sceptical that the UK Government will relent and change its position, and that is what needs to be changed. I see no evidence that it is about to change.

That seems to me to be more like the magical thinking of those who are on the Labour front bench at Westminster, who have also given up on the country’s best interests and seem positively supportive of abandoning our European future. They are rightly scathing about a UK Government that cannot even make its mind up about customs arrangements nearly two years after its self-induced Brexit crisis began, but the Labour leadership seems only to offer the idea that, if it was at the negotiation table, the inherent problems and contradictions of Brexit would evaporate, and it would simply get a better deal. That is magical thinking, and today’s amendment seem little different. Whatever. If Labour members want to cling to the idea that one more round of meetings will somehow persuade Mundell, Lidington and co to relent and abandon their position, then fine.

The critical point is that we must all—everyone who believes in the legitimacy of this Parliament and the distinct political will of the people we represent—stand together in defence against the withdrawal bill. Those who worked together to create the Scottish Parliament must now unite to stop the demolition squad, led by Ruth Davidson and Theresa May. If we can unite on that in the final vote tonight, we will be doing our jobs.

Photo of Tavish Scott Tavish Scott Liberal Democrat

I will let Adam Tomkins into a rather badly kept secret: the Liberal Democrats are in favour of staying in the European Union. He probably was at one time, too, and we will not change our view on that one iota, no matter how much shouting there is from members on my right. Adam Tomkins talked about the powers of the Scottish Parliament being built up over many years. Jim Wallace and David Steel, among many others, were heavily involved in that. They are also Europeans to their fingertips. However, here is the difference between Jim Wallace and David Steel and the Tories: Jim Wallace and David Steel were in favour of devolution, not against it, all those years ago. We do not need any lectures from the Tories on who was for devolution and who was against it.

As Bruce Crawford accurately described, it is disappointing that the Governments have not yet reached agreement. Much more must happen between our Governments, and with some urgency. We should be clear: the Welsh Government and the peers in the House of Lords have said that further change is necessary.

The UK Government must learn the internal lessons from this on-going farce. We have consistently argued that the UK needs a strong dispute resolution mechanism that will underpin a mature partnership between the different parts of the UK. That is something that the UK and Scottish Governments should have already agreed, but we seem as far away from that as ever.

Liberal Democrat MSPs do not believe, on balance, that the Scottish Parliament should give consent. As has been reflected in the debate, there has been some movement on the clauses that have been discussed, but there has not been enough. We want the Scottish and UK Governments to continue to work for an agreement. People deserve much more than Trump-style diplomacy from London.

Two years after the UK voted to leave the EU and just nine months before the formal departure, everything has happened, but nothing has happened. Today’s debate is very secondary to the turmoil within the UK Government. If a UK Cabinet cannot reach an agreement on its negotiating position over the future relationship with the EU, is it any surprise that it has not reached agreement with the devolved nations within the United Kingdom?

Brexit and the loss of the single market are bad for the UK and bad for Scotland. Our country will be poorer, our workforce will be weaker and our future prospects will be less secure. My colleagues will not support that. We will not hand power to the Brexiteers and the right wing of the Conservative Party, or to a Prime Minister who may be in office, but who is certainly not in power. We will make the case for the people to have their say on what the final Brexit offer is, even if others will not.

Last week demonstrated the real nature of the internal Tory negotiations. The Tories cannot even agree among themselves. Last night, Tory back benchers trooped into Downing Street, and the worst Prime Minister in living memory seems to have said, “Don’t blame me.” She has set up not one but two competing Cabinet committees on her customs union dilemma. Johnson and Gove have branded her position crazy, but calling the Prime Minister crazy does not constitute a sacking offence in the modern Conservative Party—it is merely a contribution to the debate. A war cabinet used to face the enemy, but a Conservative war cabinet now faces each other. There is battle after battle, not against the EU but blue on blue: Hammond versus Johnson, Gove versus Clarke, Mundell versus—no, that is not fair; I cannot imagine David being against anyone.

The UK Government—surely now the worst in living memory—will not achieve an agreed position before the June EU summit. The chance of any substantial package being agreed before October is absolutely nil. Scotland, Wales and Northern Ireland are an irrelevance to London, not because the Tories have given up on being unionists—no, of course not—but because a fight to the death over Europe trumps everything else. No Prime Minister—by which I mean a competent one with a vision for Britain’s future; that is not Theresa May—could square Ken Clarke, Nicky Morgan and Anna Soubry with Rees-Mogg and his right-wing, hard-line, over-the-cliff Brexiteers, yet Theresa May is still the occupant of number 10.

Photo of Oliver Mundell Oliver Mundell Conservative

I am struggling to see how the member’s views square with those of his Liberal Democrat colleagues in the House of Lords. A completely different argument seems to be being put forward in Scotland, while Liberal Democrats in the House of Lords are saying that this is a good deal.

Photo of Tavish Scott Tavish Scott Liberal Democrat

The amendments in the House of Lords—on the single market, the customs union and the charter of fundamental rights—are fundamentally important to our future. They are what Liberal Democrats believe in, and that is why they did what they have done in the House of Lords.

The question for the Conservative group in this Parliament and for the Tories down in London—the Scottish Tory MPs who all claim to speak for Scotland—is this: will they back those Lords amendments or will they not? We are about to find that out.

What the UK needs now is opposition. I agree with Richard Leonard about taking a cross-party look at the Scottish position, with the involvement of the UK Government. That seemed to be the point that he and Neil Findlay were making and that Patrick Harvie rather missed. However, Richard Leonard also needs to carry that weight in London. Frankly, Labour should be 20 points ahead of the Tories in the opinion polls, but, sadly, it does not appear that Jeremy Corbyn is a great fan of the EU or of the single market. If Jeremy Corbyn saves a Tory Prime Minister in the coming House of Commons votes on Europe, he will have sold out the very young people of our country who he claims are his bedrock support. That should not happen.

What of those Tory MPs and MSPs? Most of them used to back the EU single market and customs union—there are plenty of quotes illustrating that—but they do not back them now. The hard Brexit line about mythical trade deals across the world is the new nirvana, but that cannot be.

The big question for those Tories is: do they support the withdrawal bill as it has been amended in the Lords on the single market, the customs union, and the charter of fundamental rights? We are about to find that out. That is the situation that confronts this country.

This is not a constitutional crisis. In July, the Supreme Court will determine which of the two Governments’ legislation can stand. It is working under our devolution laws and the constitution. It will do that and it will give the certainty that should have been given by politicians but was not.

We are where we are on the EU, on Brexit and on the devolved powers of the devolved nations—which, frankly, is that we are going round in circles. We have a Tory Government that is obsessed with itself, not with the people living across the nations of the UK. No wonder people are fed up with it.

The Presiding Officer:

We move to the open debate. Before I call Ash Denham, I say to members that there is plenty of time for interventions. I also encourage members, where possible, to use other members’ full names—even members of Parliament in Westminster. Please use their full names, as it is a bit more respectful.

Photo of Ash Denham Ash Denham Scottish National Party

In international relations, there is something known as the rational actor theory, which is that states will always act in their own best interests. The theory can sometimes be used to predict how states will act in certain situations.

International relations and politics are often about predicting behaviour and detecting red-line issues in order to move towards agreement, so that a solution can be reached whereby both sides feel they have got what they needed. It might be a round of trade negotiations in which the positions of each side—far apart at the beginning—slowly inch closer and closer until the distance between them is not so great any more. It may involve crafting a convoluted form of words so that the real meaning is diluted enough to be palatable and to satisfy both sides.

The latest proposals from the UK Government, which I am sure were painstakingly drafted and redrafted, at first glance looked much more like something that the Scottish Parliament could sign up to. However, when examined closely, the promise that they held disintegrated, like a dried rose handled carelessly, into sad, tiny fragments that will not go back together.

That is the problem that we have. We have a state with extremely asymmetric power relations between the devolved Governments and the UK Government that is facing a huge challenge in the shape of Brexit. Instead of harnessing the power of the Scottish Parliament and the Scottish Government to put all hands to the pump—to make lighter work of it across these islands—the UK Government seems intent on breaking the pump so that it does not work for anyone.

Rational actor that it is, the Scottish Government is acting in its own and this Parliament’s best interests, and the UK Government—one has to assume—thinks that it is acting in its own best interests. Consequently, we are at an impasse.

The UK Government’s proposals, although not of the blanket nature that they were previously, still retain the power to restrict the Scottish Parliament’s legislative competence. They now—ludicrously, in my view—incorporate a mechanism by which the consent of the Scottish Parliament will be sought when the UK Government proposes that regulations be changed although the UK Government can make regulations once this Parliament has made a consent decision even if that is a decision to refuse consent. Instead of the devolution settlement being respected, we are now in a position where the UK has seemingly gone out of its way to mock the idea of consent. Out in the real world, if we ask someone what they think of an explicit refusal being taken as a consent decision, it becomes clear just how far down the rabbit hole the UK Government has taken us.

There will be a legislative constraint on the Scottish Government but there is only a voluntary one on the UK Government. The proposals would—uniquely and for the first time ever—give UK ministers the right to use secondary legislation to alter the devolved competences of the Scottish Parliament. The UK Government wants the Scottish Government and this Parliament to trust it in this process. As the player with the greater power, it has the perfect opportunity to show trust, to demonstrate good will, to recreate or reset intergovernmental relations and to put devolution on a firm footing at this important time, but it has not done that. It asks us to trust it but, throughout the process, it has failed to show that it is worthy of this Parliament’s trust.

Indeed, the Finance and Constitution Committee said:

“It is not clear to the Committee why the UK Government should be subject to only voluntary constraints while the devolved governments should be subject to statutory constraints”.

It also said:

“the devolved settlement cannot function effectively without mutual trust between all of the governments across the UK.”

Consequently, the committee’s view is that clause 15—formerly clause 11—should be removed from the bill and that the solution to the impasse is one that involves reciprocal political commitments, with both Governments signing up to respect and trust each other. If that approach were taken, trust could be rebuilt from the fragments that remain. However, as it stands, only one Government is acting rationally. Listening to the voice of this Parliament and removing clause 15 is in the UK’s best interests, and I sincerely hope that that is recognised this evening. The UK Government should show the leadership that is required.

To present this situation as a continuum with a Government at each end, as the Conservatives have done today, and to suggest that, if both Governments just compromise a bit more, all will be well is a fundamentally flawed analysis. This is not a trade negotiation. We cannot compromise over a founding principle of devolution. Either we have a proposal that respects it or we have one that does not. The committee’s view is that clause 15 does not respect it; therefore, as a committee, we recommend that this Parliament does not consent.

Photo of Maurice Golden Maurice Golden Conservative

I put on record my complete support for the establishment of this Parliament, even if I was not old enough to vote for it let alone be a representative in the first session, as Michael Russell reflected. Both I and my Scottish Conservative colleagues respect and back to the hilt the devolution settlement.

Of course, as we prepare to leave the EU, we need to ensure that we are ready for the post-Brexit world. That is exactly what the UK Government is doing through the EU withdrawal bill—it is seeking to ensure that the United Kingdom continues to run smoothly.

The initial plan was for all returning powers to be managed by the UK Government until the establishment of long-term frameworks. Quite rightly, this Parliament stood united against that. We all considered the plan to be unnecessary in its scope and inconsistent with the devolution settlement. However, the UK Government has proven itself to be acting in good faith by making major concessions and reducing the number of temporarily retained powers to 24 in total.

Photo of Christine Grahame Christine Grahame Scottish National Party

“Who have we got?”—that is not very courteous. Mr Harvie, please.

Photo of Patrick Harvie Patrick Harvie Green

Maurice Golden asks us to believe that the UK Government is acting in good faith, which I suspect is a big part of this disagreement: his party trusts the process whereas a lot of us do not. Does he not understand that, if the UK Government proceeds and legislates anyway, without this Parliament’s consent, that will have proven our side of the argument to be right and his side wrong?

Photo of Maurice Golden Maurice Golden Conservative

I am sorry, Presiding Officer. I should have said, “Who do we have?”, which would have been more grammatically correct, I believe. [

Laughter

.]

I believe that the solution to all of this is to negotiate, to get around the table and to do the best deal that will work for Scotland and the UK. One thing that is crystal clear is that we must have consistent regulations that will apply across the UK while long-term solutions are agreed—for example, we must maintain a consistent food labelling regime rather than diverge into multiple systems, which would hurt consumers and businesses alike.

The rest of the powers that are returning from Brussels will come straight to this Parliament. That is a clear sign of the UK Government’s commitment to devolution, which has already seen significant new powers over taxation and welfare devolved from Westminster to Scotland. The UK Government’s approach to the returning powers is both reasonable and respectful of devolution, as is evidenced by the fact that the Welsh Government, which was opposed to previous proposals, has now endorsed it. Mark Drakeford, the Welsh Cabinet Secretary for Finance and Local Government, was very clear on that point in saying that the Welsh aim had been “to protect devolution” and that that had been “achieved”.

Of course, that would be a temporary measure: the powers would reside with the UK Parliament for no longer than two years, and the regulations coming from them would last for a maximum of five years. The irony of the SNP crying foul over that five-year period is that it will have taken it longer to take responsibility for the already devolved welfare powers. The SNP should focus on the real issue, which is securing the long-term frameworks that will be needed to give business certainty, to safeguard jobs and to keep our economy running.

To do that, we need common, UK-wide frameworks on certain policy areas, which is a point on which the UK Government and the SNP readily agree. Michael Russell said as much last year, when he accepted that some common frameworks were needed. He was absolutely right about that, because the UK market underpins much of Scotland’s prosperity. It accounts for more than £45 billion of trade—almost four times as much as our trade with the EU—and 500,000 Scottish jobs.

The UK and Welsh Governments have shown themselves to be willing to negotiate and agree a deal. Unfortunately, the SNP has shown that it is not yet ready fully to move past the stage of political posturing. In March, we were told that the sticking point in negotiations was down to one word: “agree”. If only the UK Government would amend the withdrawal bill to say that the Scottish Parliament would “agree” to frameworks and how they were governed, a deal could be done, the SNP said. Michael Russell declared:

“It’s as simple as that.”

Well, the amended clause now contains the word “agree”, but the SNP still will not accept it. We were also told that the lack of a sunset clause was holding up negotiations. The UK Government has included one, but there is still no sign of agreement from the SNP.

Time and again, the UK Government has engaged, given ground and tried to reach a deal, but, time and again, the SNP has moved the goalposts. Even at this late hour, it is not too late for it to put party politics aside, get back to the negotiating table and strike the deal that Scotland needs. The Scottish Conservatives stand ready to offer it whatever assistance we can to help it to do that—if the SNP is willing.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

The first First Minister of this Parliament stated:

“There shall be a Scottish Parliament.”

He followed that by saying, “I like that.” If the bill that became the Scotland Act 1998 were to be drawn up today by a Conservative Secretary of State for Scotland, I wonder whether they would be able to say the same.

At the weekend, our second First Minister, Henry McLeish, was reported as saying that

Tory ministers will use a ‘power grab’ to ‘trample over Scotland’ and strike trade deals with Donald Trump.”

That is the President Trump that Foreign Secretary Boris Johnson was cooing over last weekend as he tried to encourage the UK to ditch what he described as

“the lunar pull of Brussels”.

Boris Johnson also described one of the trade options that the UK Government was considering as “crazy”.

We can see why the UK Government would rather have powers over areas such as fishing, farming and the environment, to name just a few of the devolved areas. It would like to be able to make new deals with others, including President Trump, thereby raising the ugly prospect of the transatlantic trade and investment partnership on a global scale. We can also see why Dr Kirsty Hughes and Dr Katy Hayward, eminent scholars in their fields, said:

“Devolution has been seen more as an irritation than as a central concern in planning Brexit.”

The former clause 11, which is now clause 15, skews the power balance between the Scottish and UK Parliaments to a degree that is just not acceptable. Members on this side of the chamber see it as a power grab that undermines the Scotland Act 1998, while the Secretary of State for Scotland sees it as

“preserving the current boundaries of devolved competence”, by which he means, “Know your place and don’t reach for anything more.”

We need a level playing field. We need the trust and open communication that the two institutions should have between them, and that can be achieved only if there is a balance of power between them. In a poor attempt at a compromise, the UK Government has given a political commitment—that phraseology is important—that it will “not normally” use the clause 15 regulations without the consent of the devolved Parliaments. Frankly, that means nothing. That commitment by the UK Government would be voluntary, and it has been repeated so many times at committee that it has almost become the norm. The new clause 15 would place a statutory constraint on the Scottish Parliament while the commitment to wield that power wisely would be only a voluntary vow, especially if it were to be used for something that we disagreed with. We all know how reliable vows are.

The secretary of state, David Mundell, does not want

“an administration in one part of the UK to effectively have a veto on issues that affect the whole of the UK.”

He said that without a hint of irony. He does not recognise that that is exactly what the UK Government is doing to Scotland and Northern Ireland with Brexit. It is also glaringly clear that the UK Government is using the withdrawal bill in the same way that a sledgehammer might be used to put in a nail.

Crucially, the secretary of state has repeatedly refused to rule out overruling a decision of this Parliament if it decides to withhold consent. It is clear that he does not want to indulge in speculation on a hypothetical scenario. However, by 5 pm tonight, it will no longer be a hypothetical scenario, as we will know exactly where this Parliament stands on the issue. The secretary of state will then have to tell Scotland what he and his Government will do next.

Every member will welcome the work that has been done to improve the UK Government’s withdrawal bill. Every member wants the bill to be fixed so that this Parliament can sign up to it and so that we can work in the best interests of our constituents over the next couple of years, given the huge uncertainty and anxiety that are being caused by Brexit. The fact that the Conservatives in this Parliament stand alone in their position is telling. They have a Government in London that they must adhere to instead of representing their constituents.

The two reports that were published by Scottish Parliament committees last week were positive contributions to the debate. Last Tuesday, the Delegated Powers and Law Reform Committee produced a well-balanced report. I refer members to paragraphs 96, 97 and 98. Paragraph 96 states:

“This report has been agreed at a time when there continues to be uncertainty about which bill or which combination of bills will be relied upon.”

The Finance and Constitution Committee was sometimes divided in its “Report on European Union (Withdrawal) Bill Supplementary LCM”, with the Conservatives ploughing a lonely furrow or being “utterly isolated and exposed”, as Adam Tomkins might have said. However, the report’s position is clear, particularly in paragraphs 30, 75, 83, 96 and 97. The committee unanimously agreed paragraph 30, which highlights that

“the UK Government has given a political commitment that it will not normally use the clause 11”— now clause 15—

“regulations without the consent of the devolved parliaments.”

The call in paragraph 75 for clause 11—now clause 15—to be removed from the bill is therefore understandable, and it is disappointing that the Conservatives disagreed with that position, which was taken to defend this Parliament.

Paragraph 83 highlights the committee’s unanimous view that

“the Committee remains deeply concerned about the lack of any statutory provision ... for UK Ministers to seek the consent of Scottish Ministers or the Scottish Parliament to legislate in devolved areas”.

Given that unanimous view of a parliamentary committee, how can the Parliament place any trust in UK ministers doing the right thing by this Parliament?

The UK population heard the “strong and stable” mantra about Brexit, but it is clear from what has happened since the referendum that the Brexit process is anything but “strong and stable”: it is more fast and loose. How can this Parliament, therefore, place any trust in a political commitment?

Harold Wilson once stated:

“A week is a long time in politics.”

The Brexit process is proving to be a saga of epic proportions, with an ending in sight but yet to be written. Further, politicians come and go, so a political commitment given now might become different when the Westminster political actors change, as they surely will.

I urge all members to trust this Parliament, to support this Parliament and its powers, to reject the power grab that is in play and to please support the motion in the minister’s name.

The Deputy Presiding Officer:

Members will notice that I am being a little generous with speeches because there is time in hand and we are not having many interventions. You can have another 30 or 40 seconds for your speeches.

Photo of Neil Bibby Neil Bibby Labour

Although there has been much debate about the hugely important issues of the customs union, the single market and the Northern Ireland border, the Brexit debate in the Scottish Parliament has been dominated by our response to the UK Government’s withdrawal bill. Brexit is entirely without precedent, and so is the withdrawal bill. As we know, the bill would ensure that the European Communities Act 1972 was repealed after more than 45 years, it would transpose all EU law into UK law, and it would grant UK and Scottish ministers substantial new powers to shape the post-Brexit statute book.

However, today’s debate is not just about the purpose of the withdrawal bill; it is also about the challenge to the devolution settlement that the bill presents, particularly with the old clause 11—now clause 15. It is about whether we are willing to grant consent to a bill that would constrain, as the Scottish Government states in its motion,

“the legislative and executive competence of the Scottish Parliament and Scottish Government”.

My Scottish Labour colleagues and I are not willing to grant that consent, because this is about safeguarding devolution and defending the principle that this Parliament may legislate in all areas that are not explicitly reserved under the Scotland Act 1998.

Bruce Crawford earlier provided a summary of the Finance and Constitution Committee’s latest report. There are three points that I want to echo from that report. First, both the DPLR Committee report and the Finance and Constitution Committee report found overwhelming evidence that the old clause 11 represented a

“fundamental shift in the structure of devolution” that was incompatible with the devolution settlement. The Scotland Act 1998—the founding statute of this Parliament—makes it clear that changes to competence should be made only with the explicit consent of the Scottish Parliament. Although I acknowledge and welcome that clause 11 has been amended and that it has been the subject of ongoing negotiation, Scottish Labour cannot accept it in its current form.

Secondly, the Secretary of State for Scotland has given a political commitment that the UK Government will not bring forward legislation to modify “retained EU law” covering England where clause 15 regulations apply for as long as those regulations are in force and are constraining devolution. However, it is not clear why the UK Government should be subject to its own voluntary constraints while the constraints on this Parliament would be statutory. I continue to see no reason why there cannot be so-called stand-still agreements based on “mutual trust and understanding”. In that case, the Governments would agree not to bring forward legislation in areas where common frameworks are needed, which would in turn negate the need for clause 15 powers to be used.

Finally, and on that point, the committee recommended that the intergovernmental agreement could provide an alternative. The agreement could be amended to include clear commitments from all the Governments not to legislate where a common framework is likely to be needed. and it would represent a political solution to a constitutional dispute.

I accept that the Conservative Government may not have set out with the intention of weakening devolution or potentially sidelining the Scottish Parliament, but the withdrawal bill could well do that. To be fair, I note that the Scottish Conservatives realised from the very beginning that the scope of the powers that it would grant to ministers was unacceptable, so they stood with the other parties in demanding action and recognising that the bill could not proceed unchecked and unamended. Now, however, they are willing to accept a compromise that the UK Government has offered Scotland that is based on amendments that do not go far enough, and which does not adequately address the concerns about the new clause 15 that are shared by every other party in this Parliament and by the Finance and Constitution Committee.

Conservative members are right to say that the Welsh Government has got a deal that works for Wales, but I remind them and Parliament again that the Welsh Government’s preferred option is that the Governments of the UK work together to find a common approach in which there are no legislative constraints. That is Scottish Labour’s preferred option, too, and it should be the preferred option of every member of this Parliament, including Scottish Conservative members.

Even at this late stage, I appeal to the Scottish Conservatives to use their influence to try to make the UK Government see sense. If there is genuine willingness among the ranks of the Conservative Party to agree a workable solution, it can come back with further proposals.

I would prefer the dispute over the content of the withdrawal bill to be resolved through dialogue. Today, we are not in a position to consent to it, which is a matter of regret. We have reached an impasse that neither the Scottish Government nor the UK Government seems able to resolve. The time has therefore come for this Parliament to step forward and assert itself. The time has come for representatives from all sides in Parliament to be represented in talks with the Scottish and UK Governments’ ministers in order to ensure that a workable solution is reached. The Scottish Parliament, and not just the Scottish Government, must be heard, so there must now be a cross-party push to find a way forward and break the deadlock. That is the responsible thing to do. We must look at alternatives and reach a deal.

I will vote for the Labour amendment not only to indicate our dissatisfaction with the EU withdrawal bill, but to call for talks to be continued on a cross-party basis. The deadlock is not insurmountable and there is still time for the withdrawal bill to be amended in the UK Parliament. Where there is a political will, there is a way; a solution can still be agreed if all the parties that are represented in the chamber have the will to find it.

Photo of Emma Harper Emma Harper Scottish National Party

I a m pleased to speak in the debate. I am a member of the Finance and Constitution Committee, and last Thursday we published our report on the supplementary legislative consent memorandum on the European Union (Withdrawal) Bill. I thank the other members of the committee, the clerks and everyone who has participated in the committee’s work.

Our committee concluded that there is still time for the UK Government to bring forward the changes that are required to the withdrawal bill. The committee’s view, with the exceptions of its three Conservative members, is that the

“differences could be resolved through an emphasis on mutual trust and respect amongst governments across the UK.”

Our committee convener Bruce Crawford has said:

“There is scope for a reasonable solution to be found. If there is parity and both governments are treated equally, and both are bound by political agreement, then this can be amicably resolved.

The Secretary of State for Scotland said he trusted the Scottish Government, and I welcome that, but it is time for his trust to be put into practice.

And for that reason, our Committee has reached the conclusion that Clause 11”— which is now clause 15—

“and Schedule 3 of the EU (Withdrawal) Bill should be removed and for reciprocal political commitments to be included in the Inter-Governmental Agreement.”

I am interested in protecting the provenance of our Scottish brand and the provenance and quality of our products fae farm tae fork, so during the committee’s evidence-taking I was keen to explore the issue of protected geographical indication status for our specialist food and drink, not just from Scotland but from across the UK. There are only 65 products with such protected status in the UK, and they are crucial. They include Scotch whisky, Scotch beef, Scotch Iamb, Scottish wild salmon and Scottish farmed salmon, to name just a few.

We have already heard from elsewhere that the United States is pressuring the UK to drop geographical name protections after Brexit in order to allow supermarkets to import cheap American imitations. That is not just a problem for Scotland. I am sure that the people of Cornwall do not want cheap imitation pasties that were made in Kentucky to be labelled “Cornish” any more than we in Scotland want to see cheap whisky that was made in an industrial factory in Chicago to be labelled “Scotch whisky” or artificially smoked fish from Alabama to be labelled “Arbroath smokies”.

Across the world, Scottish produce is kent for its provenance and quality. I recently met the president of Dumfries and Galloway Chamber of Commerce, Tom Armstrong, who recently visited China. He told me that China wants the products of Scotland. It values the Scottish brand, and it wants high-quality produce that is grown, nurtured and procured with the best standards. Scotland is known for that. It is crucial that we protect and support Scottish producers, from wee jam makers such as Galloway Chillies, which makes chilli preserves in Galloway, to upland sheep farmers such as Annanwater, which specialises in slow-grown lamb, hogget and mutton. Those small one-woman and one-family businesses are similar to others across Scotland, and many of them might go out of business if the UK makes trade deals that lower standards and protections, and which pursue cheap lower-quality products, including chlorinated chicken and hormone-injected beef.

Common frameworks need to be agreed and absolutely not imposed; we absolutely cannot impose common frameworks on the food producers, farmers, crofters and growers who contribute so much to the economy of Scotland.

In closing, I want to talk about trust. In 2013, in an effort to pay common agricultural policy payments more fairly, the EU paid an additional £190 million to the UK Government for Scottish hill farmers to bring their payments up to the average per hectare payments of all the other EU countries. The EU and the Scottish Government trusted the UK Government to pay the £190 million to the Scottish hill farmers, but it did not do so; it decided to give only £30 million to Scottish farmers. Michael Gove promised a review of that money for Scottish hill farmers, but he has broken that promise.

Photo of Peter Chapman Peter Chapman Conservative

Emma Harper speaks about money from London to the Scottish Parliament. Will she comment on how the Scottish Government gets on with paying out money to farmers north of the border?

Photo of Emma Harper Emma Harper Scottish National Party

Will Peter Chapman confirm that the UK Government will not override the Scottish Parliament on common frameworks?

When we consider trusting the UK Government, we need to remember the three Ws: the Windrush generation, WASPI—women against state pension inequality—and welfare cuts.

Bruce Crawford quoted the wise words of the US President Abraham Lincoln. I will do so, too. He once said:

“The people when rightly and fully trusted will return the trust.”

I find it hard to see why our farming and food-producing folk should trust the UK Government with legislative common frameworks for agricultural support, animal welfare or food geographical indications. I trust my Government and support its motion on not consenting to the withdrawal bill.

Photo of Murdo Fraser Murdo Fraser Conservative

When we previously debated a legislative consent memorandum on the EU withdrawal bill, the position of the Scottish Conservatives was very clear and, indeed, it reflected the stance that the whole Parliament took at that time. We felt that the bill, as presented, did not properly reflect the devolution settlement, so we agreed that the Scottish Parliament should not consent to it.

A lot has changed in the intervening period. The UK Government has made substantial concessions, which have meant that our previous concerns about the bill have been addressed. Therefore, our position now is that Parliament should consent to the bill.

We previously identified that there were some 111 powers under discussion that would normally fall to be devolved when they were returned from the EU. All but 24 of those will now be directly devolved back to Scotland.

It has also been agreed that the remaining 24 powers will be subject to common frameworks, which are to be agreed across the whole United Kingdom. Legislative powers in those areas will be held by Westminster only on a temporary and time-limited basis. We will ensure that, for example, food-labelling regulations will continue to be applied uniformly across the UK rather than allowing regional deviation, and will thereby protect the UK domestic market.

On this morning’s “Today” programme, the Brexit minister who is sitting on the front bench refused to accept that there is such a thing as the UK single market. That will come as news to everyone who is involved in UK-wide trade.

Photo of Michael Russell Michael Russell Scottish National Party

That is not just my opinion. Professor Drew Scott, for example, has written an article about the issue, which points—[

Interruption

.] I know that the Tories hate experts, but they should have a reality check. “Single market” has a precise definition as it exists in the EU. There is undoubtedly a unitary market in the UK, but there is not a uniform one. [

Interruption

.] Clearly, as the Conservatives do not like to hear any information, there is no point talking at all.

Members:

Hear, hear.

Photo of Murdo Fraser Murdo Fraser Conservative

Producers in Scotland want to know that there will be seamless trade across our major market, which is the rest of the United Kingdom. That is what we are trying to protect.

Our previous concerns were in line with those that were expressed by the Welsh Government. Indeed, Mr Russell, as the responsible minister, previously made it clear that there was no difference between the views of the Scottish and Welsh Governments. He said:

“we are working very closely with Wales, and we cannot envisage a situation in which Scotland would be content and Wales would not be, or vice versa.”—[

Official Report, Finance and Constitution Committee

, 20 September 2017; c 25.]

He has also talked about how the Scottish and Welsh Governments “worked in lockstep” and how they were in “exactly the same position”.

What does the Welsh Government say now about the amended European Union (Withdrawal) Bill? On 24 April, Mark Drakeford—the Welsh Cabinet Secretary for Finance and Local Government, who is Mr Russell’s counterpart—said when welcoming the changes to the withdrawal bill, that

“This is a deal we can work with which has required compromise on both sides. Our aim throughout these talks has been to protect devolution and make sure laws and policy in areas which are currently devolved remain devolved and this we have achieved.”

As Adam Tomkins has told us, he went on to say:

“London has changed its position so that all powers and policy areas rest in Cardiff and Edinburgh, unless specified to be temporarily held by the UK government. These will be areas where we all agree common, UK-wide rules are needed for a functioning UK internal market. London’s willingness to listen to our concerns and enter serious negotiations has been welcome”.

There is a stark contrast between the warm language from the Welsh Government—it started in exactly the same place as the Scottish Government, but it recognises the changes that have been made to the withdrawal bill and the huge steps that the UK Government has taken to find compromise—and the carping tone we have heard from the SNP this afternoon.

We continue to see SNP representatives trying to misinterpret the effect of the amended European Union (Withdrawal) Bill, because it is abundantly clear that the withdrawal bill will not affect any power that is currently devolved to the Scottish Parliament. It applies only to EU retained law—that is, powers that are currently exercised at EU level.

There is no “Westminster power grab” as the SNP claims. There is no question that, for example, genetically modified crops and fracking could be imposed on Scotland against the wishes of the Scottish Parliament—although in both those areas the Scottish Government has got its policy badly wrong and should be listening to science and evidence, rather than to superstition and scaremongering. If there were any doubt about that, the Welsh Government’s statement makes it clear that the current devolved powers will in no way be affected by the European Union (Withdrawal) Bill. It is ludicrous to suggest otherwise.

We should not forget that, in relation to all the powers that we are talking about under EU retained law, the SNP wants to see every single one of them returned to Brussels at the first opportunity, and not devolved at all. The European Union (Withdrawal) Bill is about delivering substantial additional powers to the Scottish Government, and it should be welcomed for that reason.

While the UK Government delivers additional devolution, the First Minister writes hysterical newspaper articles claiming that the UK Conservatives are intent on “demolishing devolution”. Yet, it is the SNP—not the Conservatives—that opposes devolution of powers to the Scottish Parliament and wants to see them being returned in their entirely to Brussels.

There is only one explanation for the overblown rhetoric that we have heard from the SNP and for its attempt to ramp up a grievance agenda, in the light of the reasonable stance that has been taken by the Welsh Government so far. This has nothing to do with good government and nothing to do with devolution: it is all about trying to drum up support for a second independence referendum. No member of any party that claims to support the union should have anything to do with this nonsense. It is a crying shame that we have here, today, members of the Labour Party and of the Liberal Democrats, who claim that they believe in the United Kingdom, aligning themselves with the separatists in the SNP. They are ignoring the stance that has been taken by the Welsh Government, ignoring the stance that has been taken by members of the Labour Party in the House of Commons and the House of Lords, ignoring the comments from the likes of David Steele and Jim Wallace in the House of Lords, and they are giving succour to the nationalists. They should be ashamed of themselves.

If Parliament is serious about devolution—if it really wants more powers—it should reject the political posturing of the SNP and give consent to the bill.

Photo of Alex Neil Alex Neil Scottish National Party

It is a pleasure to follow the unifying voice of Murdo Fraser.

Just for the record, I do not want to give the powers back to the EU.

Right from the start of the process on the withdrawal bill, the Conservatives have been asking privately and publicly whether SNP ministers wanted a deal. There has never been any doubt in my mind whatsoever that SNP ministers have acted in good faith and have tried everything to get a reasonable deal for Scotland.

The question is, do the Tory ministers at Westminster actually want a deal? When Damian Green was there, I was fairly confident that the answer to that question was yes. Although his successor David Lidington, who masterminds the Tory negotiations on the matter, is a very nice man whom I have met—

Photo of Alex Neil Alex Neil Scottish National Party

I will in a minute.

David Lidington nevertheless does not understand devolution or Scotland. In particular, the thing that the Tories have never got to grips with is that, although the United Kingdom is one state, we are four nations. Therefore, Northern Ireland decides what is right for Northern Ireland, Wales decides—rightly—what is right for Wales, Scotland decides what is right for Scotland and ministers in London decide what is right for England.

I will now take the intervention.

The Deputy Presiding Officer:

Ms Davidson, please do not remain standing while you wait to make an intervention.

Photo of Ruth Davidson Ruth Davidson Conservative

I was not quite sure how long Alex Neil was going to be. My apologies.

The Deputy Presiding Officer:

None of us is, Ms Davidson. On you go.

Photo of Ruth Davidson Ruth Davidson Conservative

I understand the concern, Presiding Officer.

Alex Neil asked whether we are sure that the UK Government wanted a deal. Yes, we are. That is why it did a deal with the Welsh Government. It is also why it amended and re-amended the deal that was on the table. How much did his Government move in the process?

Photo of Alex Neil Alex Neil Scottish National Party

I am sure that the member will listen intently. I am about to explain to her why what is on the table is unacceptable. It is unacceptable for two fundamental reasons.

Despite what Murdo Fraser and Adam Tomkins say about the 24 powers that are coming back from Brussels to the UK, under the Scotland Act 1998, it is very clear that those 24 powers relate to devolved responsibilities; they are not part of the reserved list in schedule 5 to the 1998 act. As devolved responsibilities, like all the others, they should come back directly to this Parliament; they should not come back to this Parliament via a number 9 bus at Westminster. It is our responsibility to manage and run those 24 devolved responsibilities.

I have two other important points to put on the record. The first is that, if someone looks at those 24 powers, they will see that they matter. They matter to Scotland. The equivalent powers matter to England, they matter in Wales and they matter in Northern Ireland. We are not dancing on the head of a pin. We are talking about powers that could have a real impact, depending on how they are used in the economy of the entire United Kingdom or the economy of any part of the United Kingdom.

Photo of Alex Neil Alex Neil Scottish National Party

I will in a minute.

The second point that must be recorded is that we all have a common objective. We all agree on the need for common standards in certain matters over the entire United Kingdom. That is not the issue; the issue is how we agree those standards. What is the process for agreeing what those common standards should be?

Photo of Oliver Mundell Oliver Mundell Conservative

The member appears to make a pretty compelling case for common frameworks. I am interested in why he feels that the deal does not deliver that process.

Photo of Alex Neil Alex Neil Scottish National Party

I am just about to explain. First, the powers relate to devolved responsibilities and, if they are going to be taken by Westminster, that should be done with our agreement, as per all the legislative agreements that went before the withdrawal bill.

The second point, which is very important, is that UK ministers in London have two ministerial heads: they have a United Kingdom head for non-devolved matters and an English head to cover their responsibility for England in devolved matters. What is on offer means that, in effect, those ministers will be the final arbiter of what happens with the 24 powers. As they represent England, they cannot be described as fair or neutral arbiters. We need a fair and neutral arbiter when there is a dispute. There might not be many disputes at the end of the day, but the current provision, under which we can make a formal presentation to the House of Commons, is totally inadequate.

Photo of Alex Neil Alex Neil Scottish National Party

No, I need to finish the point.

The current provision is inadequate because of the arithmetic of the House of Commons, where 85 per cent of the members represent constituencies in England. We cannot expect a legislator in the House of Commons who represents an English constituency, no matter how reasonable they are, to vote against their own self-interest.

Therefore, to break the impasse, we require an agreement that there needs to be some neutral arbiter, when and if there is a dispute. Perhaps it could be a committee that is chaired by somebody who is agreeable to all four Administrations, but we cannot reasonably describe the two-headed ministers in London or the House of Commons as uninterested parties, neutral arbiters or people who do not have a vested interest in a particular point of view. That is a fundamental weakness of the proposals.

There is a way through the impasse. We all want a way through it. It does not do anybody any good to have an avoidable fight. This fight is avoidable, but reason must reign in London and, at the moment, that is not the case. For ministers in London to say to the Scottish people that they will ignore the letter and spirit of the 1998 act by changing it so that they do not require the Scottish Parliament’s express approval for what happens in Scotland is, to be frank, for them to treat the people and this Parliament with a total lack of respect.

Privately, some of the Tory members probably have a lot of sympathy with what everyone else is saying. Members should make no mistake: Labour and Liberal members are genuine devolutionists and they fought hard with the Tory party to try to prevent independence from happening in 2014. Scottish National Party members are clearly in favour of independence, but when genuine devolutionists who will fight tooth and nail against independence unite with us on the matter, it sends a loud and clear message to the Tory Government in London that it is high time that it not only saw reason but made an effort to implement it as well.

Photo of Daniel Johnson Daniel Johnson Labour

I am assuming that I do not get an Alex Neil six minutes.

The Deputy Presiding Officer:

There is time in hand, Mr Johnson. Do not be naughty.

Photo of Daniel Johnson Daniel Johnson Labour

I will see how far I get.

This debate has almost been two debates. We have had a debate that has sought to look at areas of common ground and how we might actually make some progress, but we have also had a debate in which people have been all too eager to point fingers and cry betrayal. It is important to have the former debate, not the latter, because what is at stake is devolution.

Mike Russell opened the debate well by setting out the achievements of devolution. We have achieved a great many things in this place, but I think that he missed one of the greatest achievements of devolution, which is that it has been stable and robust, but it has also been dynamic. The strength of devolution is marked by the lack of disputes of this kind, because having a dispute is not always how such issues resolve themselves in nation states that have multiple levels of governance and multiple legislatures.

One thinks of the United States of America, which has a form of federal government that has been marked by disputes between the state and federal levels, whether over the use of the National Guard at the University of Alabama to ensure that all citizens could have access to that state university, or over the new deal, which was blocked by federal Government initially and spearheaded by state Governments. The United States is a country that has been marked by dispute, but that has not been the nature of devolution here.

We must protect the clarity that the reserved-devolved model has given us, and that is what is at stake today. We must reflect on the powers that are coming from the EU. That the 24 powers would ever be up for consideration was never conceived; indeed, Brexit was not conceived when the powers were set out in the Scotland Act 1998. There were reserved powers, with everything else being devolved, but there were also European powers, separately provided for, and the status of those powers—whether they were devolved or reserved—was essentially not considered.

When we look at the nature of those powers, we see that they are very much about market regulation—we have heard about that from Alex Neil, Emma Harper and Maurice Golden. The reason why we need resolution and common frameworks is clear, so the argument is not necessarily about devolution or whether we need common frameworks. Rather, it is about how we arrive at a conclusion when there is dispute and no agreement between Governments. The problem with the legislation as it stands at Westminster is that it defaults to decisions being made by the UK Government. Yes, in the first instance, consent is sought, but if that fails the decision of the UK Government is what stands.

The mistake that is being made by some members is to assume that the debate is simply about the categorisation of powers. We have heard from Adam Tomkins that it is simply about dancing on the head of a pin. It is not, and to say that it is is to make the mistake of believing that the debate is only about where powers lie. That is important, but there are three important considerations. One is where powers lie, but the second is the direction in which power flows—whether it is top down or bottom up—and the final consideration is how we can come to agreement when there is disagreement. That is fundamentally important.

Murdo Fraser accuses Labour and the Lib Dems of betraying the union. I say to him that we are doing no such thing. The real betrayal of the union is by those who invoke constitutional crisis and threaten devolution itself, because the union relies on the devolution settlement. It is really that simple, and it is his party that is putting the union at threat.

Fundamentally, it comes down to a division over trust—there is a lack of trust from the Scottish Government—and a fundamental lack of understanding of devolution from the UK Government. The UK Government has failed to understand not just how devolution works but the importance of devolution to Scottish people, because it is the Scottish Parliament that Scottish people see as the natural locus of power in Scotland. There has been a fundamental failure to recognise that point. However, the Scottish Government has failed to demonstrate any form of trust at all. There has been an assumption that there would be bad faith in the process.

Photo of Patrick Harvie Patrick Harvie Green

Can Daniel Johnson point to any action of the UK Government throughout the Brexit crisis that shows that it deserves to have trust placed in its word? Does he accept that, if the UK Government legislates without our consent through the bill, it will absolutely have justified the lack of trust that I personally feel?

Photo of Daniel Johnson Daniel Johnson Labour

I agree with Patrick Harvie that if the UK Government legislates without consent through the bill, that would demonstrate a lack of trust.

The UK Government has moved, but we must move it further. As my colleague Neil Bibby set out clearly, we must find a political settlement and solution, and that is possible. The powers have been exercised in a complicated way through European frameworks, which use byzantine procedures in the Council of Ministers and the European Commission, with qualified majority voting. Surely a mechanism for reaching agreement between four nations is easier to find than one for reaching agreement between 27. A political solution can and must be sought, and that is why Labour Party members stand behind the proposal for multi-party talks to find that solution and mechanism.

Ultimately, devolution is not static. It has changed and evolved—even through crisis, when a party in this Parliament sought to use its majority to break up the United Kingdom and seek independence. It was through agreement—the Edinburgh agreement—that the way forward was found. It is, in a sense, remarkable that the UK Government came to an agreement over such a fundamental issue. It is a shame that it has forgotten that culture of consensus as a means of finding solutions and ways forward through the devolution settlement.

No one will thank us for grandstanding. As Neil Findlay pointed out, this is a distraction from the real problems that we were sent here to solve, such as tackling inequality and poverty and securing good work for all Scots. We must end the uncertainty, and both Governments need to get back round the table to find a mechanism for dealing with the frameworks. We all agree that that must be found.

Photo of Christina McKelvie Christina McKelvie Scottish National Party

We have heard today that the chaotic muddle that is Brexit is set to take away a lot more than jobs and trade. Without the removal of the clause formerly known as 11, we will enable Theresa May’s Government to begin dismantling the very framework upon which this Scottish Parliament was reconvened. What is not reserved is therefore devolved—that is the agreement.

Like a cut that begins with a trickle and develops into an arterial gush, the damage that is Brexit is leaking and spreading. Scotland alone has 134,000 people in jobs supported by EU trade. Skilled EU nationals are leaving these shores every day. I know many of them, including those in the health and social care sectors—people whom we need greatly in those areas. A hard Brexit could lead to a loss of 8.5 per cent of gross domestic product in Scotland by 2030, which is equivalent to £2,300 per individual. That is a remarkable impoverishment, with unthinkable consequences for individuals, families and our society as a whole.

On top of that insult comes the potential for real constitutional attack. We are facing a blatant and highly alarming attempt to begin withdrawing the very powers for which the Scottish Parliament was reconvened. David Mundell has repeatedly refused to say that the UK Government would not overrule a decision of the Scottish Parliament to withhold its consent on the withdrawal bill.

Photo of Adam Tomkins Adam Tomkins Conservative

Will Christina McKelvie please identify even a single power that this Parliament currently has that is under threat of being taken away by the withdrawal bill?

Photo of Christina McKelvie Christina McKelvie Scottish National Party

All of them, because, quite frankly, I do not trust those people with any of them. Under the current UK Government proposal, we could for the first time ever see the powers of the Scottish Parliament change without the consent of this Parliament. As Patrick Harvie pointed out, the definition of consent in the proposals is a very interesting one, and not a definition that I understand. Is this Mrs May’s strategy for dismantling the devolved powers that we have worked so hard to retrieve, I wonder?

The Scottish Government is not opposed to UK-wide frameworks when they are in Scotland’s best interests. We know that. What we will not tolerate is being ignored, punished and kicked to the side by those who want imperial control.

We need trust and respect—qualities that are in very short supply in the UK Government and, in many cases, in this chamber—and we need to agree to proposals, not have them imposed upon us. That is the important point: they are being imposed upon us—not for us, but against us.

This is arguably the most serious attack on Scottish democracy since this Parliament was reconvened nearly 20 years ago, on what was a proud day for many of us. We all worked long and hard to make devolution work, and it has largely been successful. We have made Scotland a better place and behaved with wisdom, justice, compassion, integrity—well, some of us have—and, mostly, dignity. In doing so, we have won national and international respect as a Parliament. We should never do that down; it is something in which all of us in this chamber can take justifiable pride.

The Scotland Act 1998 that created this place opened with the now-famous words:

“There shall be a Scottish Parliament”.

Those words are immortalised on the mace that sits in front of us today. They were not just an aspiration; they were a promise to our people, a statement that old wrongs would be righted, and a declaration of intent that our new democracy would be modern, civilised and forward thinking and that we would be the keeper of our own house.

The words that brought this Parliament into being most assuredly did not say, “This shall be a Scottish Parliament subject to the whims of convenience of politicians in London who can strip away its powers for their own ends whenever it suits them, without consent”. That is not what those words say. We are not going to surrender what we have achieved. We are not going to hold the door open while Mrs May and her acolytes trample all over this place and threaten to close us down if we do not behave ourselves and do what we are told. It sounds a bit dystopian, but I never thought that it would become normal to tell someone with a terminal brain tumour that they were fit for work. I did not think, either, that a family that used a small front bedroom to keep dialysis equipment for its young son would ever be told to pay a bedroom tax. It is dystopian—and I do not trust the Conservatives with my country.

I did not think, either, that that family would have to face those tragedies and trials in the way in which we are having to face them today. EU law provides us with protections and employment rights, equality rights, the right to belong to any religion or none and the right to a safe home, and it provides us with food and livestock standards that cover the quality and provenance of the meat and other food that we eat. The UK Government seems to be rubbing its hands with glee while pondering which EU laws to delete or withdraw. The lack of any commitment in this bill to the charter of fundamental rights tells us everything that we need to know. The UK Government asks us to trust it. How can we do that when we see that it does not actually trust us? The door could soon be open to fracking, genetically modified crops and eating chlorinated chicken—nothing that I want to see.

I can never accept this attack on our freedom, our democracy or our right to do what is in the best interests of our nation—the nation of Scotland. I am confident that this Parliament feels the same. We will defend ourselves against anybody who undermines the powers of this Scottish Parliament. Call that defiance if you will, Presiding Officer, but, in “The Philosopher and the Wolf”, Mark Rowlands reminds us:

“In the end, it is our defiance that redeems us”.

With belief and resolution today, let us redeem ourselves, support the motion and tell the UK Government, in a manner that demands that respect, to get back to the table and talk to us.

Photo of Donald Cameron Donald Cameron Conservative

This motion is being debated today in tandem with the equivalent motion in the Welsh Assembly, just before the third reading of the withdrawal bill in the House of Lords tomorrow. Wales and Scotland were, of course, meant to present a united front. It was claimed that both Governments shared an “identity of purpose” and stood together. The minister was quite clear that he could not

“envisage a situation in which Scotland would be content and Wales would not be, or vice versa.”—[

Official Report

,

Finance and Constitution Committee

, 20 September 2017; c 25.]

However, it has not quite worked out that way. The Welsh Government has not played ball. It has quite reasonably concluded that the present deal protects devolution and it has signed up to it. Mark Drakeford, the Labour Welsh minister, said this afternoon:

“We have defended and entrenched our devolution settlement. We have provided for the successful operation of the United Kingdom after Brexit. We have provided a good deal for the Assembly and a good deal for Wales.”—[

Record of Proceedings

,

National Assembly for Wales

, 15 May 2018.]

The deal is good enough for Mr Drakeford, but not good enough for Mr Russell—I wonder why?

Photo of Michael Russell Michael Russell Scottish National Party

For completeness, we should also mention something else that Mark Drakeford said this afternoon. He said that it was right for Wales to back down while Scotland fights on, because Wales voted leave and Scotland voted remain.

Photo of Donald Cameron Donald Cameron Conservative

If that is the excuse, of course the minister must accept it.

There has been much talk about the devolution settlement. In the House of Lords debate last week, Lord Hope, the most senior Scottish judge in that legislature, made an important point when he counselled against elevating the Scotland Act 1998 beyond its status. He said:

“the purist argument—that of principle—does not really apply here ... We are dealing with a different, rather more subtle, situation in trying, as the Minister said, to create a functioning internal market with what has come back to us from Europe.”—[

Official Report

,

House of Lords

, 2 May 2018; Vol 790, c 2169.]

Other commentators have said the same thing. The 1998 act is not some sacred text that operates in a vacuum, not least since it never envisaged Brexit.

Photo of Donald Cameron Donald Cameron Conservative

No. I would like to make some progress.

In that sense, I suggest that the amended clause 11 is no more and no less than another step in the evolution of devolution. Its amendment rightly addressed the significant concerns that many people, including members on these benches, had about its original form. It is now more targeted and proportionate. It is built on the principle of collaborative working, balanced against the responsibility of the UK Parliament—not the UK Government—to act when there is an impact across the UK in the interests of the UK as a whole. In so doing, the bill will protect the UK internal market and the many jobs and businesses that depend on it. Anyone who votes against consent tonight should bear that in mind.

On the other hand, the demands of the SNP would lead to any devolved Administration having an absolute veto on matters that have serious implications for the whole of the UK. It is that which truly threatens devolution.

The clause puts some of the hyperbole into perspective, not least the blood-curdling accusation that the Scottish Conservatives want to completely demolish devolution. What? It was a Conservative Government that extended devolution so significantly in 2016. It was a Conservative Government that enacted the recommendations of the Smith commission and was responsible for the transfer of powers over income tax and welfare a mere two years ago.

As for the “power grab” sloganeering, it is sad to see the minister stooping that low. Not one power of Scottish Parliament is being removed. In no way will Parliament stand diminished as a result of the bill. Instead, it will be enhanced.

Photo of Donald Cameron Donald Cameron Conservative

I am sorry, but I do not have time.

It will have 111 additional powers, of which only 24 will require a UK common framework, which even the SNP accepts is necessary.

The actual dispute here is about the temporary solution that is necessary while permanent frameworks are being established. The amended clause 11 does not seek to construct everlasting constitutional foundations; it is merely a temporary fix.

While I am talking about power grabs, let me turn to the greatest irony of all. The SNP would prefer every power that is coming back to the UK and Scotland to be returned to Brussels. Let us imagine the scene. An independent Scotland rejoins the EU and the Scottish Government comes to the chamber to explain that each and every one of those 111 powers has to be automatically surrendered to Brussels. There would be no question of consent. The powers would be swiftly gathered in, packaged up and transferred to the EU, to languish in some dusty Brussels corridor, in the hands of the European Commission.

Photo of Gillian Martin Gillian Martin Scottish National Party

Does the member not agree that one aspect of his job is to make sure that whatever comes back from the UK to this Parliament that affects Scotland should scrutinised and voted on by the people who have been elected to this Parliament?

Photo of Donald Cameron Donald Cameron Conservative

The member’s own Government accepts that there is a need for common frameworks in certain areas of what comes back from EU retained law.

The fact is that we would see devolution in reverse if the SNP returned all those powers to Brussels. The SNP has perpetuated many myths during this sorry saga, but the power grab myth is the greatest sham of all. What the SNP demanded, the UK has agreed to. The SNP demanded recognition that powers would be presumed to sit at a devolved level, and that was conceded. The SNP demanded that co-decision making was imperative, and it was conceded—the amended clause 11 sets out a collaborative approach. The SNP demanded a sunset clause, and it was conceded. The UK Government has made concession after concession, with absolutely no movement from the Scottish Government in return. Again, I wonder why.

I respect Mike Russell. He is a pragmatic politician who, I believe, would have done a deal had others not intervened. For the SNP, it is not about identity of purpose; it is about the politics—it always is—and the politics point in only one direction. As ever, the SNP’s eyes are on a different prize. This is just the latest move by the SNP in its game of constitutional chess—its latest gambit aimed at agitating the Scottish population towards a different outcome.

This is a sad day. It is sad because the issues that are at stake could easily have been resolved if trust had been maintained. It is sad because once-principled unionist parties prefer a short-term strike to a long-term deal in the interests of devolution. It is sad because, once more, we are debating in the chamber matters of the constitution at the expense of practical everyday issues that affect the lives of those whom we are privileged to represent.

Photo of Richard Lochhead Richard Lochhead Scottish National Party

I confess that I am one of the oldies, in that I was here in 1999 for the fanfare of the opening of the Scottish Parliament. Since then, every time that I have spoken in debates about powers for the Scottish Parliament, it has always been about new powers coming to the Scottish Parliament, and we have talked about the vision, the imagination and the ambition in what we can do with new powers to build a better Scotland. Therefore, it is very regrettable and sad that I have to speak today about a threat to take powers away from the Scottish Parliament. We should all be clear that today is a really important day in the history of devolution, and I hope that as many of us as possible will stand together and defend our Parliament when it is under threat.

The people of Scotland went to the polls in the June 2016 EU referendum and voted to remain, but parts of the UK voted to leave, so we are leaving the EU. However, I suspect that the 38 per cent of Scots who voted to leave did not appreciate that, by voting to leave the EU, they would perhaps contribute to, or enable the UK Government to deliver, a threat to the powers of the Scottish Parliament. Indeed, it is ironic that people voted to leave to decentralise power away from Brussels to the UK, but that that vote is now leading the UK Government, under the guise of Brexit, to potentially centralise powers from the Scottish Parliament back to London. That is an irony that the Scottish Parliament should tackle.

I have no doubt whatsoever that people across the country who are watching the debate, or hearing about it in the news, will expect members of the Scottish Parliament to stand together in the national interest and protect the powers of the Scottish Parliament, because devolution is under threat. What started as a debate about the need for UK frameworks following Brexit has resulted in the UK Government wanting to be able to negotiate in devolved areas without the consent of the Scottish Parliament—the undermining of devolution.

There is a good case for common frameworks in the 24 policy areas in which the UK Government says that it might want to legislate, because we all accept that there should be, and it makes sense for there to be, UK common frameworks—we share the same islands and some of the same priorities on many of the issues. However, we have moved into new ground. The UK Government wanting the ability to legislate and tackle devolution is something completely different. Adam Tomkins stood up and said that those UK frameworks are very important, so that we do not undermine the UK’s integrity or jeopardise the UK’s internal market. To me, that is just a euphemism for the UK Government wanting the ability to put the brake on Scotland doing anything differently from the rest of the UK in devolved areas.

The UK Government says that it will not impose regulations in the 24 areas, but the Finance and Constitution Committee makes a very good point in paragraph 51 of its report, which states:

The Committee’s view is that the commitment that common frameworks will not be imposed is contradicted by the ‘consent decision’ mechanism created by the UK Government’s amendments to Clause 11 which would allow the UK Government to proceed with regulations without the consent of the Scottish Parliament.”

In this debate, it is important to look closely at the 24 areas in which the UK Government potentially wants to regulate without the consent of the Scottish Parliament. Those areas include agricultural support; genetically modified organisms; animal welfare; environmental quality, waste packaging and product regulations; fisheries management and support; food labelling; and nutritional health claims, composition and labelling. Those are just some of the 24 areas in which the UK Government might, judging by its track record, want to take a different policy position from the Scottish Parliament.

We are talking about powers coming back from Brussels to the UK. Those powers were negotiated by the UK in Brussels, with Scottish ministers in attendance, for many years. For nine years, I attended those negotiations in Brussels and I found that there was often resentment towards devolution from many of the UK secretaries of state. They did not like the Scottish Parliament and the Scottish Government adopting policy positions that were perhaps not flavour of the month with the party in power at UK Government level.

If we look at fishing, for example—an area that the UK Government might want to regulate without the consent of the Scottish Parliament—there was an issue to do with the UK Government supporting the privatisation of the fish quota. Just think about that for a second—the privatisation of billions of pounds-worth of the Scottish fish quota. It would be open for anyone across the world to buy up, denying opportunities for our fishing communities to fish their own waters. Furthermore, the UK Government top-slices the UK quota before it is divvied up between the devolved nations and the rest of the UK—a double benefit for fishermen south of the border. The fact is, as Alex Neil highlighted, UK ministers often have to wear two hats.

There is also the issue of agricultural support, on which the UK Government regularly takes a position in relation to EU regulations that there must not be direct support for Scottish farmers or the rest of the UK farmers. We continue to have direct support for farmers in Scotland only because the UK was outvoted by the rest of the EU member states. Members should ask themselves—what will the position be post-Brexit, when we are not protected by the EU?

To summarise, I believe that the UK Government wants to have the option of regulating in the 24 areas without the consent of the Scottish Parliament in order to stop Scotland doing something different and doing what we were elected to do. Adam Tomkins and the Conservative Party have created this new category of devolved powers. We have the devolved powers that we have at the moment—apparently, they are being protected. Then there are the reserved powers, which, according to the Scotland Act 1998, will stay with the UK Government. Now the Conservatives say that there is a third category of powers, over the issues that are devolved but which used to be decided by Europe, and that they should stay with the UK Government or the UK Government should have the ability to regulate on them.

The point is that within the UK, the 24 powers—including on fishing and farming—are devolved. There is not a third category. Once those powers come back from Brussels to the UK, they are devolved—that is why they should come to this Parliament. I urge all parties to stand together and protect the Scottish Parliament and protect devolution today. It is a shame that the Conservative Party is not getting behind this. When it comes to devolution, the Conservative Party seems at best lukewarm; at worst, it is only political expediency that leads the Scottish Conservatives to support devolution in this country.

For the rest of us, we can stand together—we can get behind this Parliament. We can get behind each other to protect devolution in this afternoon’s vote, and I urge members to do that for the sake of Scottish democracy.

Photo of Gillian Martin Gillian Martin Scottish National Party

A fundamental responsibility of members of this Parliament is to ensure that its powers cannot be diminished without the consent of the people of Scotland. The withdrawal bill, to which we are asked to give our consent, gives that power over to the UK Government and aims to press ahead, even if that consent is not given today.

The withdrawal bill, as amended, would grant to UK ministers the ability to restrict the powers of Scottish ministers. It would, uniquely—for the first time ever under devolution—give UK ministers the right to use secondary legislation to alter the devolved competences of the Scottish Parliament. That affects each and every one of us.

I am deeply concerned about the lack of any statutory provision in the withdrawal bill for UK ministers to seek the consent of Scottish ministers or the Scottish Parliament to legislate in devolved areas. That ultimately undermines the competence of our Parliament and it goes against the constitution.

No one is arguing that there should not be UK common frameworks, but their formation should result from a joint negotiation between Parliaments, not an imposition of one Parliament’s will over the others. We should have the right to vote on whether we accept the frameworks, when and if they affect devolved areas, as we have done for 20 years. Take agriculture—Richard Lochhead mentioned agriculture in his speech, to the point where I should just say, “What he said.” However, 85 per cent of Scottish agricultural land is classed as being within a less favoured area, which takes into account the challenging geographical conditions that face many of Scotland’s farmers and crofters.

We know that the UK Government has confirmed that all UK farmers will continue to receive the current level of EU subsidies until 2024, but there are still so many questions to be answered about a replacement. If a less favoured area support-type scheme was unable to continue, the impact on rural Scotland would be devastating.

Photo of Gillian Martin Gillian Martin Scottish National Party

No, thank you.

A month ago, I asked whether the UK Government had carried out an impact assessment on the withdrawal of LFASS from the Scottish agricultural sector and the answer was no. Further, the recent delay by the UK Government of its promised review of how EU convergence uplift payments are distributed does not inspire confidence in common frameworks being entrusted solely to Whitehall. If the Scottish Parliament grants its consent to the EU withdrawal bill, we cede power over the formation of frameworks for agricultural support to a Government that neither understands nor prioritises rural Scotland.

Fisheries are devolved, and decisions that affect the regulation of Scottish waters and vessels should be made in Scotland, for obvious reasons that have been outlined by many of my colleagues. As Stewart Stevenson said when he intervened on the minister, a recently leaked Westminster fisheries paper showed that the UK Government intends to retain a veto over international negotiations. That suggests that the UK Government is intent on imposing arrangements on Scotland. When it comes to a Brexit negotiating point, I just do not trust the UK Government to prioritise fishing over, say, the car industry.

Photo of Gillian Martin Gillian Martin Scottish National Party

No, thank you.

For that reason, I think that the interests of the Scottish fishing industry would be best served by the Scottish Government being front and centre as those frameworks are negotiated, not waiting for a top-down edict that we cannot vote on in this Parliament.

I am also concerned that the withdrawal bill sets a precedent for other Brexit-related UK legislation, particularly the trade bill. Regardless of the precedent, if we consent today, we also cede power on procurement decisions. With EU procurement arrangements being out of the window, what could that mean as Liam Fox ties himself in knots courting the favour of Donald Trump over trade? A relaxation of procurement laws could well be tied up in a trade arrangement with the US that could see our public services adversely affected. Could that impact on NHS Scotland? I do not want us to be unable to scrutinise and vote on those bills, and the Conservatives should be standing alongside us all on that.

The UK Government has refused to rule out the weakening of food and drink standards through trade deals. The result of that might be the influx of low-grade products, as Emma Harper mentioned. Ross Finnie of Food Standards Scotland said that

“it will be difficult for Scottish stakeholders’ voices to be heard, or for the needs of businesses or consumers in Scotland to be given priority”.

The reservation of those powers to Westminster would prevent his organisation from operating effectively.

Our Government is prioritising tackling obesity and alcoholism. Reservation to the UK of policy and legislative frameworks on food standards and labelling mean that Scotland will not have the competence to regulate in this area to improve public health.

We all know about the issues around Scotch whisky and the EU protected food name schemes that are in operation at the moment. There are still no answers in that regard, either.

We can see that there is a direction of travel that I do not think is particularly good for Scotland. Why, therefore, would we want to relinquish any of our legal ability to legislate on devolved areas and why would we accept new frameworks without the ability to vote on them?

Bruce Crawford is right to say that we are being asked to trust the UK Government when it does not trust devolved Governments. The UK Government should take clause 15 and schedule 3 out of the withdrawal bill and respect the constitution and the people of Scotland. Let us not forget that the people of Scotland did not vote for any of this, but they might feel a lot better about the situation if they knew that their Parliament was representing them in a devolution settlement that they most definitely did vote for.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

We move to the closing speeches. I remind all members that, if a member has taken part in the debate, they should be present for the closing speeches.

Photo of James Kelly James Kelly Labour

I thank the Finance and Constitution Committee officials and clerks, and the witnesses, for the work that has been done on producing the committee report, which is the platform for this debate.

This is an important part of the process. However, it is not the end of the process. That is why, tonight, Labour has said that it will support the Government motion signalling that Parliament will not give its consent to the legislative consent motion on the EU withdrawal bill, but has also lodged an amendment urging cross-party talks involving Mr Russell and David Lidington.

Over the months, on this crucial issue we have had a number of debates that have centred on the allocation of powers and how disputes have been resolved. Here is where we have got to on the issue of clause 11, which has now become clause 15. While there was real frustration—shared by even the Conservatives—about the original clause, in that the list of powers would be taken to a UK level rather than devolved to the Scottish Parliament, the latest proposal from the UK Parliament tries to resolve that but does not deal properly with dispute resolution. If there were to be a dispute over powers, under retained EU law, that had been taken temporarily into the UK Parliament, and the Scottish Parliament had not consented to that, that would have to be resolved on the floor of the House of Commons and the Scottish Parliament would not have a vote on it. Ministers would have a say, but not a vote. That would create a power imbalance, and that is the fundamental issue that Labour, the Liberal Democrats, the SNP and the Greens have with the proposal that has been put forward.

From that point of view, it is important to recognise a point that Neil Findlay made: the motion that is before us today is only one that expresses a view; it is not the end of the process. Therefore the proposal for cross-party talks, which has been positively received by Mike Russell—there has also been some positive indication from David Lidington—should be explored.

Patrick Harvie, who I know is very exasperated by the whole process, is perhaps too keen to reach the end. It is important to bring all the parties into the process. Alex Neil made a very—

Photo of Patrick Harvie Patrick Harvie Green

As James Kelly knows, I have not said that we will oppose Labour’s amendment. I am sceptical that another round of talks will offer anything. What does Labour expect to happen as a result of those talks? If the UK will not relent and reverse its position, what else is there?

Photo of James Kelly James Kelly Labour

This debate has been very useful, in that we have had some practical suggestions. Alex Neil was right to point out that if we have a situation in which Labour and the Liberal Democrats, who both opposed independence, and the SNP and the Greens, who both supported it, can get round the table and explore the issues with the UK Government, there will be a potential way forward.

Neil Bibby made a powerful contribution that put forward the case for an intergovernmental agreement. We also heard from Alex Neil on the possibility of a committee of the regions, or of the different Parliaments, which could resolve disputes. Those suggestions show that there are still possibilities out there that could be explored by cross-party talks. I urge Patrick Harvie to take that on board.

Daniel Johnson was right to point out that Mike Russell’s contribution emphasised the merits of devolution. If that could be handled correctly, there would be an opportunity not only to protect the devolution process but to enhance it. If we can get the common frameworks right and have them set up in such a way that they are agreed by both Governments, we can ensure that the powers that will come to this Parliament will enhance devolution.

Neil Findlay quoted the example of procurement, which gives us a very powerful opportunity to ensure not only the fairer awarding of public procurement contracts in Scotland but the implementation of policies that would help to grow the Scottish economy fairly.

There is an onus on all parties in the chamber to send a signal tonight not only that the settlement that is currently on the table is not acceptable, but that we will not give up on that. As we move forward with the cross-party talks, there will be a real opportunity to influence the process of the final House of Lords and House of Commons consideration of the withdrawal bill. We have a duty to ensure that that happens. Not to do so would see us heading down a disastrous route on which we would end up in the courts and in a potentially chaotic situation, which would not serve well the people who sent us to this Parliament.

Photo of Jackson Carlaw Jackson Carlaw Conservative

I will start on a note of agreement with Mike Russell. When the whole process began, neither of us hoped or expected that this is where we would be this afternoon, but it is indeed where we are. I refer back to the contribution of the Scottish Conservatives during this whole exchange. Even Mike Russell might have expressed some surprise, back in September, when he asked for support from all sides of the chamber and found it forthcoming from us. We accepted that the withdrawal bill as published was unacceptable. We listened, and we have worked in an effort to reflect and represent the concerns of the Scottish Government. Our whole objective has been to get to a point at which the Government would feel able to recommend to the Parliament approval of an LCM.

We noted the various requests that the Scottish Government made, and we believe that changes have been achieved. I do not see Bruce Crawford in the chamber, but, when he spoke on behalf of the Finance and Constitution Committee, he referred to the fact that changes to the withdrawal bill had been achieved, and I respect the fact that he did so. We also explained that the negotiation had to take account of other factors, too. In the most recent debate that we had on the issue, I tried to explain that it was a quadrilateral rather than a bilateral discussion and that the UK Government and other parts of the UK were concerned that, in the frameworks that had to be established, there needed to be a process of agreement that took account of the fact that the expectation that the Scottish Government could exercise a veto over what would ultimately be decided was not an acceptable outcome.

It is important to emphasise that, despite the way in which some might wish to characterise it, our responsibility as Scottish Conservatives is not simply to represent the UK Government’s view but to offer a considered reflection on the UK Government’s position. That is why, throughout the whole process—even in the new year—we expressed frustration about the lack of progress and the failure to put an alternative clause 11 on the table. However, we now believe, as do the Welsh Assembly Government, Labour peers in the House of Lords and Liberal Democrats in the House of Lords—I am not sure whether the Liberals have consulted their two Scottish MPs in the House of Commons on whether they share their views; some doubt has been expressed that that is the case—that the changes that have been achieved reflect many of the requests that Mike Russell made.

Photo of Jackson Carlaw Jackson Carlaw Conservative

I may in due course.

Mr Russell said that the problem was with the word “agree”. Clause 11 was changed to become clause 15, which expressly uses the word “agreement”. He talked about the need for a sunset clause; a sunset clause is now there. He talked about the need for there to be co-decision making, and that is what the process of the new clause was designed to achieve.

In his opening speech, Mr Russell gave a rather sentimental introduction about the origins of devolution, to which everyone would lend their support, but I disagree with the conclusions that he drew thereafter. Adam Tomkins set out in detail our analysis of the bill as amended, and specifically of the amendments that have been made and the effect that those changes would have. He quoted Mark Drakeford, and I heard what Mr Russell said in response to the Labour Party about Mark Drakeford. He seemed to say that the Government in Wales was now more determined to achieve Brexit than it was to stand up for the principles of devolution, which I thought was both ungenerous and unfounded. I do not believe that that is the case at all. I believe that, through the course of negotiations, the Government in Wales came to believe—just as David Steel, Jim Wallace and Labour peers in the House of Lords did—that the agreement that had been arrived at was reasonable.

Neil Findlay said that the source of the problem was the fact that David Mundell, Ruth Davidson and David Lidington had failed to achieve a new clause 11. They said that they would achieve a new clause 11 and they did. It is one that the Labour Party in Wales supports and that no Labour peer in the House of Lords spoke against. Tavish Scott gave a long list of all the things that Liberal peers spoke against in the House of Lords, but they did not speak against the particular provisions that we are discussing this afternoon, which makes a nonsense of his argument—it almost disproves the point that he made.

Photo of Jackson Carlaw Jackson Carlaw Conservative

I will come back to Mr Scott in a moment.

Photo of Jackson Carlaw Jackson Carlaw Conservative

I have a queue. I will give way to Mr Findlay first.

Photo of Neil Findlay Neil Findlay Labour

Can Mr Carlaw tell us why, when Labour put forward proposals in the House of Commons that would have resolved the problem and saved us from having all these discussions the Tories got whipped to vote against those proposals? Mr Carlaw is turning to Mr Tomkins so he can ask him what the answer is, as he does not know.

Photo of Jackson Carlaw Jackson Carlaw Conservative

It was exactly the same as what happens in this Parliament at stage 1 of the bill process, when amendments are not considered but are then considered at the report stage—that is exactly what happened. We are now at a point at which Labour in the House of Lords and Labour in Wales agree but Mr Findlay does not. One is led to the conclusion that the Labour Party in Scotland sees the politically expedient argument but not the principled argument for devolution.

We have also heard arguments in the debate about a power grab, but we have just passed the Social Security (Scotland) Bill within the past fortnight, which arose as a result of new powers being transferred to this Parliament. Further, Derek Mackay produced a budget, which we opposed, that increased taxes because of new powers that the Westminster Government transferred to this Parliament. As a result of the Westminster withdrawal bill, there will be the most enormous transfer of powers to Scotland as we leave Europe. The bill is not a power grab but a power transfer to the Scottish Parliament.

I enjoyed Tavish Scott’s entertaining constituency association lunch speech from last Saturday, and I am sure that the six of them around the table all found it very amusing, but Mr Scott had nothing at all to say about the debate that we are having this afternoon. We have heard all manner of arguments this afternoon, and we heard from Alex Neil again about the whole misunderstanding of what we are being asked to do. We are being asked to approve a bill that says that no one member state can unilaterally change the existing arrangements being transferred—[

Interruption

.] No, the bill does not give the UK Government the power to unilaterally change the arrangements; the bill says that, until the frameworks are agreed, when the powers come back from the European Parliament to the Westminster Parliament, no one country within the four member states can unilaterally change those arrangements.

We have been through an extended debate over the past few months. However, I ultimately believe that, as has been suspected, the Scottish Government is actually more motivated to produce further grievance to justify an argument for fighting for independence. I am surprised that the midwives of that argument have turned out to be Tavish Scott and Mr Findlay—shame on them. This afternoon, we should recognise that there is a whole argument to be had going forward about how we best represent Scotland’s interests in the discussions that are going to take place. My single worry is that Mr Russell’s and the Scottish Government’s actions will have undermined the confidence and trust in Scotland’s voice in those framework discussions as they proceed—that would be the tragic outcome of this afternoon. We should support the LCM and allow Scotland to proceed.

The Deputy Presiding Officer:

I call Michael Russell. Can you take us to just before decision time, please, minister?

Photo of Michael Russell Michael Russell Scottish National Party

I doubt whether there has ever been so much concern expressed for the people of Wales by the Scottish Conservatives—or, indeed, by any Conservatives. It is a charity that was extended this afternoon even to the Lib Dem peers and, finally, to the Lib Dem MPs. The only people whom the Scottish Conservatives do not appear to be concerned about are the people of Scotland, the vast majority of whom voted for devolution in 1997, against—let us remember—the express wishes of the Scottish Conservatives. That is the problem in this debate: the Scottish Conservatives have form in being against devolution, and they have shown that form again this afternoon.

I confirm to the Tories that I did—and still do—want the process of negotiation to lead to an agreement, but not any agreement and not at any price. What we are being asked to do this afternoon is accept any agreement at any price—or, rather, any Tory price. I also confirm my agreement to the Labour amendment. I wrote to Richard Leonard yesterday, indicating what I would do at the conclusion of today’s debate. If this chamber chooses to confirm that it will not give legislative consent, I will write to David Lidington this evening, asking him to come to the Scottish Parliament and meet the parties, including the Conservatives, in order to sit down and to find, if it is possible, some new ways forward.

Some ideas have been mentioned in the debate that are worth exploring. Alex Neil drew a very good distinction between UK Government frameworks and UK frameworks. Although some of the proposals—for example, a way in which there could be a committee of ministers that arbitrated—have already been raised in the House of Lords and have been defeated there, it would be worth exploring those issues. We will support the Labour amendment at decision time, and I will immediately act upon Parliament’s decision today.

However, let us suppose for the sake of argument that, at the end of the day, the Tories impose their will on this Parliament. What would that mean? If we stand back and look at what it would mean, we understand the enormity of the situation. What is being proposed is that the Tories in London, using the votes of the Democratic Unionist Party, will hand the power of veto over the decisions of this elected Parliament and Government to the Scottish Conservatives—to a minority within this chamber. That would be the effect of what took place, because, for seven years, the Conservatives would be able to veto anything that we chose to do. That anti-democratic action would benefit only the Conservatives. They would use the votes of the DUP to, in essence, muzzle this Parliament, and that is not a price that we should pay.

Why would they do that? Why would the UK Government and the UK Tories offer that prize to the Scottish Conservatives? We heard the answer this afternoon: it would be in exchange for fanatical support for Brexit. These people were opposed to Brexit. On the day after the referendum, Ruth Davidson demanded that we continue in the single market and the customs union, but we heard from the Tories not a single word of criticism of Brexit this afternoon, nor will we hear that, because the way to success in the Conservative Party in Scotland is to be an extreme born-again Brexiteer. Of course, the person who takes to that extremism like a duck to water is Murdo Fraser, as he showed this afternoon in his extreme view of Brexit.

That is regrettable, because it is doing damage to the very people whom they exist to serve. We heard an example of that from Peter Chapman. At the very moment when he was speaking up for Brexit, the people to whom he is apparently closest—the people at NFU Scotland—were issuing a press release talking about the on-going uncertainty of Brexit and the damage that it would do to the agriculture community. In fact, this is not a victimless crime. While the Tories attempt to grab power in this Parliament, people, interests, organisations and businesses are suffering the chaos of the Tory Brexit, and it is being backed by the Scottish Tories.

We heard a range of misconceptions from the Tories this afternoon. There were too many for me to go through them all in detail, but I will deal with three of them. The first was that no present powers in this Parliament would be affected. That is wrong. I will name just three that would be affected off the top of my head: environmental protections, agricultural subsidy and protected geographical indications.

The second misconception was that this debate involves dancing on the head of a pin and is not about real issues that touch people’s lives. Food standards are affected—Ross Finnie’s letter last week indicated that very strongly. Chemicals are affected—an example of that is my constituents in Mull trying to stop neonicotinoids coming into their water supply. Public procurement, which leads to thousands—probably hundreds of thousands—of jobs in Scotland, is affected.

Thirdly, we heard the misconception that clause 11 is fine—that there are no difficulties and it does not give rise to a threat of any description. The words “not normally” are apparently the parachute that saves us all, but those words are not in the legislation. They have already been rubbished by the Advocate General, and the normality in the new clause 11 is the overriding of the Scottish Parliament. That is what the legislation says.

Daniel Johnson talked about what is at stake in devolution, and he was right to do so, because a great deal is at stake. What we have is undoubtedly the worst challenge to devolution that we have had since 1999. Devolution is not, of course, just about us. We should remember something that the consultative steering group on the Scottish Parliament paid attention to. It said:

“the Scottish Parliament should embody and reflect the sharing of power between the people of Scotland, the legislators and the Scottish Executive”.

Devolution is about how we all work together for the benefit of Scotland.

I have looked at the words of each of our First Ministers as they put forward their vision to be elected as First Minister. Earlier, I quoted Donald Dewar’s remarks on the opening of the Parliament. Let me quote each of the other First Ministers.

Photo of Michael Russell Michael Russell Scottish National Party

No. I want to finish.

On 26 October 2000, Henry McLeish said:

“The Parliament is about politics and, of course, we will have our political differences ... However ... our ultimate aim is the same: the best interest of our fellow Scots”.—[

Official Report

, 26 October 2000; c 1172.]

That is what devolution is about.

On 22 November 2001, Jack McConnell said:

“On the day of the 1997 referendum, Scots voted yes yes because they wanted better politics and better government and because they believed that a Scottish Parliament would focus on their priorities”.—[

Official Report

, 22 November 2001; c 4153.]

That was devolution.

On 16 May 2007, Alex Salmond said:

“It is a Parliament of minorities where no one party rules without compromise or concession ... The Parliament will be about ... intelligent debate and mature discussion.”—[

Official Report

, 16 May 2007; c 24.]

That is devolution.

Photo of Michael Russell Michael Russell Scottish National Party

Because we can always do better. We can always aspire to do better, as we do. I have argued this afternoon for what we have and how we use it, and I thought that Mr Findlay wanted me to do that.

On 19 November 2014, Nicola Sturgeon said:

“Those whom we represent expect us to give our very best, and we—all of us—must ensure that we do not disappoint them. They expect to see us debate vigorously, but they do not want us to divide ... let us work together to create a future for Scotland that is worthy of their dreams and their trust.”—[

Official Report

, 19 November 2014; c 23.]

Photo of Michael Russell Michael Russell Scottish National Party

No, I will not.

Nicola Sturgeon talked about

“a future for Scotland that is worthy of their dreams and their trust”, not the demands, the narrow interests or the Tory party factionalism of the UK Government or the demands of Ruth Davidson that she and her fellow members be able to veto what an elected Government and an elected Parliament decide. Nicola Sturgeon talked about

“a future for Scotland that is worthy” of the dreams and the trust of the people whom we are here to serve: the Scottish people. They would not forgive us if we gave away the powers that we are trying to use to improve Scotland.