United Kingdom Government’s Approach to Negotiations with the European Union

– in the Scottish Parliament on 4th March 2020.

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Photo of Christine Grahame Christine Grahame Scottish National Party

The next item of business is a statement by Michael Russell on the United Kingdom Government’s negotiating mandate. The cabinet secretary will take questions at the end of his statement; there should therefore be no interventions or interruptions.

Photo of Michael Russell Michael Russell Scottish National Party

I want to provide an update on the publication, last Thursday, of “The Future Relationship with the EU: The UK’s Approach to Negotiations”, and on the negotiations process itself, which began on Monday this week.

There is no doubt that, if the intentions in the Government’s document are turned into reality, they will result in the people of Scotland being worse off financially, cut off practically and turned off politically from the European mainstream. The document reveals beyond peradventure that the UK Government is now in the hands of ideological extremists.

Photo of Michael Russell Michael Russell Scottish National Party

Yes, extremists like that.

Mark Drakeford, Wales’s First Minister, summed up the position for many of us when he said last week:

“Over the last three and a half years, we have taken every opportunity to speak to UK ministers about the specific concerns we have on protecting and promoting the Welsh economy, providing evidence and proposals. The UK government has chosen a very different course. The mandate they have published means that Wales’ vital interests are not represented in these negotiations. When the UK government begins these negotiations next week—the most important in 50 years—it will be doing so on its own.”

As for Wales, so for Scotland.

Let me first tell members the extent of the devolved Administrations’ involvement with the document. I set this out in more detail than usual, to dispel any suggestion from the UK Government that we had a meaningful role in shaping its approach.

We received what was clearly a virtual final draft on the morning of Friday 21 February. That sharing, at least, looked like progress. However, the draft did not include the section on justice and security.

I am grateful to all the officials who worked tirelessly over the weekend to produce a detailed response, which I approved late on Sunday 23 February and which went back to the UK Government in my name on the morning of Monday 24 February.

At 8.30 am on Tuesday 25 February, there was a conference call between the UK Government and the devolved Governments. We were assured that our concerns were being taken seriously. However, when we saw the final document, a mere hour and a half or so before it was presented to the House of Commons, two days later, there had been some minor, cosmetic changes but the substance and the tone had, if anything, been hardened.

The devolved Governments are, once again, being managed, not engaged.

The joint ministerial committee on European Union negotiations last met on Tuesday 28 January, in Cardiff. At the conclusion, the three devolved Governments made it clear that they needed to see the legal texts and working papers that were part of the process of producing the negotiating mandate. That did not happen. The JMC has not been convened since then.

Consequently, we have not agreed the way in which the devolved Governments will be involved in the second-stage negotiations. Nor have we agreed how we would reach a common mind on any issue to be negotiated, although there is a proposal from me on the table of a three-room structure.

Not only has the final mandate now been published, the negotiations have started. Not only is that contrary to the terms of reference of the JMC(EN), it is contrary to the devolution settlement, because it is devolved issues such as agriculture, environment and fisheries that will be at the heart of the negotiations.

As the legally and politically responsible body, this Parliament and this Government must be involved in deciding what stance to take. My elected ministerial colleagues are keen to have those discussions and I am sure that this Parliament is keen to see the discussions take place—clearly, the unelected David Frost is not.

As I said, the section in the paper on justice and security was not shown to us. We saw it only in the final published paper. It, too, is unacceptable in tone and substance. The UK Government must respect and take full account of the Scottish legal system—our separate courts, prosecution system and police. To fail to do so would be a breach of not just convention and the devolution settlement but the basic premise on which the UK is founded, which includes protection for our legal system.

Our representations to the UK Government over the past three and a half years have been clear that Scotland did not vote for Brexit, but that democratic fact has been ignored, even when we have offered compromise. Indeed, in the introduction to the published mandate, the UK Government adds insult to injury by explicitly referring to the “unique characteristics” of the crown dependencies, such as Jersey and Guernsey, while completely rejecting any need for a similar approach to the ancient nation of Scotland.

The Scottish Government does not believe that Boris Johnson has any mandate, in any part of the UK, for a form of Brexit that was regarded as being on the lunatic fringe of politics even during the June 2016 referendum. That form of Brexit, which the UK now regards as optimum, is a Canada-minus deal—the most basic of free trade agreements. Undoubtedly, that will mean new barriers and borders, trade-inhibiting rules of origin, customs difficulties and heavy regulatory requirements.

The approach will have a severe impact on many of Scotland’s most important sectors. For example, the Scottish seafood industry, which in 2018 exported to the EU produce worth £696 million, will be severely disadvantaged by it. Scottish food producers will suffer and there are real concerns among the farming community about food standards. Elsewhere, even though services account for around 75 per cent of the Scottish economy, Scotland will be shut out of key EU services markets if the Prime Minister’s ambition is realised.

Although the UK document makes no attempt to quantify the economic impact of the UK Government’s approach, already-published Scottish Government modelling indicates that, if the UK Government secured a basic free trade agreement of the type that it is pursuing, Scottish gross domestic product would be 6.1 per cent, or £9 billion, lower by 2030 than it would be if the UK retained full EU membership. That is equivalent to £1,610 per person. The UK Government has also made it clear that it is prepared to walk away without a trade deal, which would raise that figure to £12.7 billion, equivalent to £2,300 per person.

In contrast, the UK-US negotiating mandate that was published on Monday attempts to quantify the potential economic impacts of a post-Brexit trade deal with the US, suggesting that such a deal could boost the UK economy by 0.16 per cent over the next 15 years. That would in no way make up for the damage caused by the UK’s approach to the EU negotiations. It is a distraction. Very significantly, previous UK Government modelling from 2018 suggests that there would be damage for the UK as a whole from its current approach.

Back in 2017, my then UK counterpart David Davis said that a comprehensive free trade agreement and a comprehensive customs agreement would

“deliver the exact same benefits”—[

Official Report


House of Commons

, 24 January 2017; Vol 620, c 169.]

that we have with EU membership. That was then, and is now, nonsense, but tragically it may soon be very expensive nonsense, with the price being paid by every one of us.

The impacts of the UK Government’s approach will not be simply about numbers. The loss of freedom of movement means that our citizens will have curtailed opportunities to live, work, study, travel and retire abroad, and it will lead to a serious long-term shortfall in the number of workers needed in our economy. We also know that the impact will be worst for those people who can afford it least, such as the disabled and people in remote areas.

We are also likely to be less safe. We now know that the UK is not seeking membership of Europol or Eurojust, or participation in the European arrest warrant or the European investigation order. There is no guarantee that the alternative arrangements that the UK proposes will be agreed to and, even if they are, those arrangements are likely to be much less effective than those that we currently enjoy. Those EU tools help to keep people safe and secure by facilitating rapid information sharing and effective co-operation between police and prosecutors in the prevention, investigation and prosecution of crime.

The UK Government is also lukewarm about the UK’s participation in EU programmes such as Erasmus+ and horizon 2020, and it has actively abandoned involvement in other cross-border programmes such as creative Europe. We are told by the UK that devolved Governments will not be allowed to take up individual membership of any European programme if the UK does not join as a third party. “Allowed” is a significant word. That is how the UK Government sees the rights of the devolved Governments—matters for which permission can be given or withheld.

The Scottish Government does not intend to allow that situation to continue. We reject the published mandate as it is, we will make it clear that if the UK Government attempts to speak on matters of devolved competence, it does not speak for us, and we will ask the Scottish Parliament not to agree actions or agreements if they have not been discussed with us.

We will also shortly introduce the continuity bill, which will give the Parliament and our Government powers to keep pace with European regulation, and we will do so confident in our right to take those actions in areas that are devolved. The extent to which devolved law aligns itself with the law of the EU is a decision for the Scottish Parliament to take, not the UK Government.

We will, of course, always be willing to discuss the negotiating position on devolved matters, if that discussion is meaningful and respects the devolved settlement. We will intensify our work to ensure that Scotland gets the right to choose its own future, and we invite every member in this chamber to endorse that right and help to obtain it. The delivery of that right is not the delivery of independence—it is simply the basic confirmation of democracy. No one speaks for us, and no one speaks about us, without us.

We are now entering an even more difficult phase of the Brexit process, which, if handled in the way that the UK Government proposes, will have severe negative impacts for the vast majority of people in Scotland. I continue to urge the UK Government to move back from its aggressive rhetoric and ideological obsession with delivering a very damaging hard Brexit, and I urge members to speak up for Scotland and to put differences aside to do so. The time and the threat demand that response from all of us.

The Deputy Presiding Officer:

The cabinet secretary will now take questions on the issues raised in his statement. I intend to allow up to 20 minutes for questions.

Photo of Murdo Fraser Murdo Fraser Conservative

I thank the cabinet secretary for the advance copy of his statement. Given his recent announcement, I take the opportunity to wish him well on his upcoming retirement from the Parliament and whatever he chooses to do thereafter. However, we still have another year of this to get through, so I will turn to the substance of his statement.

When we are dealing with such serious matters, throwing around ludicrous hyperbole such as references to “the lunatic fringe” does him no favours at all. The irony of this Government referring to others as “ideological extremists” will not be lost on many observers.

Despite all the manufactured outrage, the cabinet secretary at least acknowledges that the Scottish Government and other devolved Administrations did have advance sight of the UK Government’s approach to negotiations prior to publication. Despite what the cabinet secretary claims, the mandate for that approach to negotiations rests on both the 2016 referendum result and the outcome of the UK general election in December. However, he gave the game away at the end of his statement: for the Scottish Government, it is all about independence. That is all that it has ever been about, and any pretence of trying to work constructively with the UK Government has been abandoned.

In an effort to make some constructive progress, I will ask the cabinet secretary a question. At the weekend, the French Government indicated that it was demanding full access to our fishing waters as a precondition for trade discussions. Does the Scottish Government support the stance of the UK Government in refusing that demand, or is it still the policy of the Scottish Government that we should remain members of the hated common fisheries policy?

Photo of Michael Russell Michael Russell Scottish National Party

I thank Murdo Fraser for his kind words, and I assure him that I have plenty to do in the next year—I will be very busy. I commend to him the approach that I am taking, which is to choose my words carefully, make sure that I stand up for Scotland, defend the interests of the people whom I represent, and not take a position that causes damage to them as a result of what the UK is planning.

I notice that Murdo Fraser did not, in a single moment or word, refute the statistics that I put to members in the chamber. The economic damage that will be done and the way in which devolved competence is being undermined were not disputed. We just heard a reversion to the tired old question, so I will tell him the answer to that question: I will stand up for the rights of Scottish fishing communities and the fishing industry across Scotland. The best way in which the UK could do likewise is to work with the Scottish Government in the negotiations that are currently under way, and not sideline the Scottish Government in those negotiations.

Fishing is a devolved competence, and the lack of recognition of that, and the lack of willingness to work on that basis, is what will do immeasurable damage to the fishing communities that I represent. It is time that Mr Fraser thought of the people of Scotland, and not Boris Johnson and the UK Government.

Photo of Alex Rowley Alex Rowley Labour

I join Mr Russell in making clear that the actions and behaviour of the UK Government in its approach to Brexit are totally and utterly unacceptable. I hope that all members in the chamber agree that it is not acceptable for Mr Johnson and his advisers to approach Brexit in such a way, and that we will send a clear message that this Parliament supports this Government and the Welsh Government in having their voices heard in the negotiations.

The devolution settlement must be adhered to.

The level of economic damage that will come from the current approach is concerning not only to us and the Welsh Government, but to many of the regions of England, as expressed by regional leaders and mayors. Does the cabinet secretary agree that the best way to change the approach is to unite all the nations and regions that are expressing similar concerns? Rather than treat it as an issue that just affects Scotland, we should bring together all interested parties across the UK in order to build a campaign of unity that is in the best interests of the people of Scotland and the United Kingdom.

Photo of Michael Russell Michael Russell Scottish National Party

I am grateful to Mr Rowley for his much more positive and constructive contribution. I agree that there are likely to be very severe problems right across England as a result of the UK Government’s approach.

I am a democrat, and there is an issue of democracy here. The people of England, in the majority, voted for Brexit. I do not believe that they voted for—[


.] Mr Rowley has got there before me. I was about to make the point that they did not vote for the type of Brexit that the UK Government is pursuing, and I hope that that will be made very clear by their representatives.

I am not saying to the UK Government that it does not have a mandate for Brexit within the UK as a whole; I am saying that it must recognise the mandate within Scotland and within Northern Ireland for it to recognise that there are different points of view and to work with everybody to get a better deal than the one that it seems to want to put on the table.

This is an extremely long process. Those of us who have been involved in it more or less since the referendum in 2016 recognised some major problems, one of which was the failure of Theresa May ever to sit down with the people that Mr Rowley is talking about across these islands and ask, “How could we get an agreement?” The whole process has been poisoned by that.

I will work with anybody to make sure that the current form of Brexit does not happen, but I believe that there is a solution for Scotland, and avoiding that solution will not serve the people of Scotland well.

The Deputy Presiding Officer:

We have 15 minutes and 10 members want to ask questions, so I ask for succinct questions and answers, please.

Photo of Annabelle Ewing Annabelle Ewing Scottish National Party

On page 4, the UK Government’s negotiating mandate appears to recognise the need to respect the separate legal systems of Scotland and Northern Ireland but, on page 25, it makes reference to the “UK’s legal system” and the need to avoid constraining it. Does that contradictory language give the cabinet secretary confidence that the UK Government will recognise and respect Scotland’s distinct legal system during negotiations?

Photo of Michael Russell Michael Russell Scottish National Party

The member is absolutely right. That is a major area of concern, as I indicated in my statement. It is an area of concern that will have an impact on every citizen in Scotland. The UK Government’s approach goes against the founding principles of the UK. One cannot believe in the union and then play fast and loose with the documents that underpin it. In this case, severe damage will be done to the Scottish legal system in a range of areas, including the independence of the prosecutor, without consultation and without the involvement of Scotland. That cannot be allowed to happen.

Photo of Adam Tomkins Adam Tomkins Conservative

In his statement, the cabinet secretary made the big claim that the mandate is

“contrary to the devolution settlement”.

I think that that claim is completely without foundation. Does the cabinet secretary not agree that there is not a single provision in any of the Scotland Acts that is countermanded by any provision in the mandate that was published last week?

Photo of Michael Russell Michael Russell Scottish National Party

No, I do not. I understood that Mr Tomkins had moved to consider strategy—that strategic approach appears to have failed already. Obviously, I do not agree with Mr Tomkins. There are many areas in which the mandate cuts across the devolution settlement, and I named several of them in my statement. [



As ever, Mr Tomkins is reduced to shouting from the sidelines, which, of course, is what the Tories do. [


.] What they should be doing in Scotland—[



The Deputy Presiding Officer:

Stop, everybody. I want to hear the answer. I want questions and answers, so do not heckle.

Photo of Michael Russell Michael Russell Scottish National Party

If I may give the Tories in Scotland some helpful advice, they should stop tying themselves to Boris Johnson’s apron strings and stand up for the people of Scotland. The more they shout from the sidelines, the less the people of Scotland will trust them, and trust in them is at an all-time low anyway.

The Deputy Presiding Officer:

You are still heckling, Mr Tomkins. I know that you understand the meaning of the word.

Photo of Maureen Watt Maureen Watt Scottish National Party

The loss of freedom of movement that will result from the UK Government’s current stance will have a huge impact not only on those who value our close connection with Europe, but on vital immigration, including in my constituency, where food processors and others rely on migrant workers.

Will the cabinet secretary outline his view on the UK Government’s points-based immigration system that will replace freedom of movement?

Photo of Michael Russell Michael Russell Scottish National Party

The recommendation for a points-based system has been opposed not just by the Scottish Government, which has put forward constructive alternatives; it has been opposed by virtually every significant employer and trade body in Scotland, all of which know what damage it would do.

I heard a moan coming from a Tory member when freedom of movement was raised. I hope that it did not come from Mr Carson. As a farmer, Mr Carson must know what damage the ending of freedom of movement would do to the agriculture and food industries in Scotland. The damage that it would do is clear.

That is being said by NFU Scotland and widely across the country. It is impossible for Tory members just to put their heads in the sand and pretend that it is not happening. That would be an economic disaster. Bodies that are in no sense radical, irresponsible or mad nats are saying absolutely clearly that that would be awful for them. However, all that the Tories can do is sit and moan when the facts are presented to them.

Photo of Claire Baker Claire Baker Labour

The cabinet secretary has set out the predicted outcomes of the UK Government’s approach. I agree on the extent of the damage that that approach would cause to Scottish business, particularly if we end up with no trade deal. Is work being done to prepare for no trade deal? Although that is the outcome that we all want to avoid, is consideration being given to what support might be needed for businesses or investment in port infrastructure, for example?

Photo of Michael Russell Michael Russell Scottish National Party

Claire Baker raises a good point. We have some experience of preparing for no deals, of course. That is expensive experience that has absorbed a great deal of bandwidth and money. However, we continue to be involved in that work, and we continue to prepare for no deal. As we have seen from aggressive statements in the House of Commons and elsewhere, some Tories would welcome no deal, which is extraordinary. We are absolutely determined that we will do our best to ensure that its effects would be mitigated in Scotland but, as I have said from this position often before, we will not be able to totally overcome them. That is the reality of no deal, which would be an even worse disaster.

Photo of James Dornan James Dornan Scottish National Party

The negotiating mandate seeks to place Scotland and the rest of the UK as far from the EU as possible. Has the cabinet secretary been given any explanation from the UK Government about why it is so intent on creating a situation in which there is as little alignment as possible?

Photo of Michael Russell Michael Russell Scottish National Party

Where the UK Government is now is simply the result of an illogical extension of an extension of the red lines that it signed on to very early on. If people are utterly obsessed with the issue of the European Court of Justice and its jurisdiction, for example, they eventually get to the ludicrous position at which they cannot accept its jurisdiction in anything and, when they look at entirely reasonable, helpful and important issues such as the regulation of road transportation in Europe, they will not take part in such consideration because they do not want the European Court of Justice’s jurisdiction. Therefore, they will have to set up their own body, and then consider some sort of alignment and hope that it works.

The UK Government has found itself in a nonsense, Alice-in-wonderland position, but it continues to espouse it. It is important that we say that that will lead to and is leading to disaster, and that the emperor has no clothes. The Scottish Tories may see some wonderful raiment around Boris Johnson, but I see nothing at all.

Photo of Ross Greer Ross Greer Green

The Greens share the Scottish Government’s immense frustration at the UK Government’s attitude towards schemes such as horizon 2020 and Erasmus+, which have brought immense benefits to Scotland. Does the Scottish Government believe that the UK Government has a legal basis for its stated position of seeking to exclude Scotland from such schemes if unilateral attempts were made to participate in them? Is the Scottish Government considering such unilateral attempts to stand up for Scotland’s best interests?

Photo of Michael Russell Michael Russell Scottish National Party

Yes, I am actively considering that. I know that there is very strong support for Erasmus+ in Scotland as a whole and that there is support for it in the other devolved areas, as well. We want to see that moving forward. There should be no question but that, if the UK Government decides not to participate in that for whatever reason—we have argued for some time that its analysis is deeply flawed—the option should exist for the devolved Administrations to take up that issue. In addition, the resource that is currently applied to that should be divided among the devolved Administrations for them to be able to make the decision with the same amount of money. The principle of no detriment should apply to that as well as to all other Brexit matters, and I want that to happen. However, if there is a dog-in-the-manger attitude from the UK Government that means that it says, “We’re not taking part, and we’re telling you that you’re not taking part, either,” we will resist that to the ultimate.

Photo of Willie Rennie Willie Rennie Liberal Democrat

The cabinet secretary and I share deep concerns about Brexit and the economic damage that it will cause; there is no doubt about that. However, as we have discussed before in considering the

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, it would be helpful to keep pace with EU regulations to smooth trade and relations with our European neighbours. How will the cabinet secretary ensure that, in doing so, that does not hinder trade, regulations and relations with the rest of the United Kingdom?

Photo of Michael Russell Michael Russell Scottish National Party

Mr Rennie makes a good point. It is important that that happens, and we do not believe that any of the proposals would do that. As we know, it is possible to be able to operate effectively across borders—that is what trade involves. People tend to trade with their nearest neighbours. We want to put together a system to keep pace that enhances our ability to keep the best and also ensures that we can continue to operate with everybody, including our closest neighbours.

The point that Mr Rennie makes can be addressed constructively during the development of the continuity bill. As he knows, I believe that when all bills are introduced in the Parliament they can be developed—they do not arrive perfect or fully formed. If the Liberal Democrats are keen to take part in developing the bill, I look forward to working with them on that matter. I would be happy to work with Mr Rumbles—I have rarely said that before in my life.

Photo of Angela Constance Angela Constance Scottish National Party

In his interactions with the UK Government and others, has the cabinet secretary seen or heard any explanation of why the negotiating mandates pay far less attention to the needs of Scotland and, in contrast, more to those of Jersey, Guernsey and the Isle of Man, despite our clear and strong democratic preference to remain in the EU? So much for a partnership of equals.

Photo of Michael Russell Michael Russell Scottish National Party

I understand Ms Constance’s point—indeed, I have made the same point myself—but I do not want to diss my friends from Jersey, Guernsey and the Isle of Man, whom I often see at meetings of the British-Irish Council. Those islands have fought well and valiantly for their rights, but they are in a different position from us—for example, they are not part of the JMC process.

It puzzles me that there is such a determination to ensure that Scotland—absolutely uniquely—should have nothing. Looking across these islands, we can see that Wales voted for Brexit—that is regrettable, but it is true. Northern Ireland voted against it, but it has a very special set of circumstances. England voted for it, which many people regret, but that is how it voted. Scotland voted against Brexit absolutely clearly, and by a big majority, and yet, uniquely, it is to receive no special treatment at all. That issue should be addressed not only by this chamber. I would have thought that the Scottish Conservatives would also wish to address it, but perhaps this is the problem: they are Scottish Conservatives, and they just do not recognise how important Scotland should be to them.

Photo of Elizabeth Smith Elizabeth Smith Conservative

On that theme, in his statement the cabinet secretary referred a great deal to all the costs to the Scottish economy of the Brexit process. When will the Scottish Government publish an updated assessment of the costs that would be incurred to the Scottish economy should we ever be an independent country and suffer the trade problem of a hard border with our most important partner, which is England?

Photo of Michael Russell Michael Russell Scottish National Party

I have to say to Liz Smith, with whom I have done a lot of good work and of whom I am fond—I hope that that does not damage her career, or even her personal life—that that question was not worthy of her. I say that very nicely. We have published a great deal of material on that subject, and will continue to do so. If anyone can look at the current situation and say to me, “Oh, Scotland would still be better off not making its own decisions”, I would suggest that they are not reading or thinking about the information, and they are certainly not thinking about their constituents.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

Does the cabinet secretary a gree that, irrespective of whether Scotland continues in EU programmes, devolved areas such as the Erasmus programme should be a matter for the Scottish Government and the Scottish Parliament and not for the UK Government?

Photo of Michael Russell Michael Russell Scottish National Party

There is absolutely no doubt that the decision on which programmes we participate in should be one for us, and that resources to allow our participation should be part of the discussions on how we move forward financially. There have been no such discussions. I have seen nothing from the UK Government on how it intends to support the so-called shared prosperity fund, for example. Of course such decisions should be for us to make.

The Deputy Presiding Officer:

That concludes questions on the statement.