We turn to stage 3 proceedings on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the groupings of amendments. I remind members that, as usual, for the first division of the afternoon the division bell will sound and proceedings will be suspended for five minutes. The period of voting for each division after that will be one minute. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group.
I want to set out the reasoning for lodging my amendments. I will try to keep my remarks on each group short and to the point, because I am conscious that this will be a long day.
My amendments throughout stage 3 speak to the fact that, fundamentally, it is for the Parliament to legislate. I welcome the changes that have been made at stage 2, particularly with regard to limiting the duration, which the keeping pace power should continue, but I remain concerned that the process of leaving the EU should not open the door to bypassing parliamentary procedure.
When the Parliament decides to delegate powers, there should be clear, good reasons for doing so, and it is important that the limits of that delegation are clearly defined. In doing so, we reinforce the principle that delegated powers should never be used as a substitute for policy development. The question that we have to ask is whether the powers in section 1 of the bill are appropriate or whether they should be limited by being available only to ensure that existing standards in retained EU law keep pace with evolving standards.
While it might be reasonable to accept that keeping pace with EU law might not always be practical through the creation of primary legislation, there is no doubt that there is a difference between refining retained EU law to keep pace and keeping pace with new policy developments in future EU law where there is currently no equivalent in retained EU law. Amendment 4 therefore seeks to ensure that the principle that delegated powers should never be used as a substitute for policy development is followed.
The Cabinet Secretary for the Constitution, Europe and External Affairs’s recommendation, in his response to the Delegated Powers and Law Reform Committee—I believe that it went to the Finance and Constitution Committee as well—that the wording in section 1(2)(f)(ii) be altered, suggests that the amendment is unnecessary and unhelpful, because the Government wishes to have greater flexibility to deal with unforeseen circumstances. However, the current wording, “appropriate to retain”, confers wider powers, as the definition of appropriate does not limit policy making by delegation. I will listen with interest to the cabinet secretary’s position on why it is appropriate—no pun intended—to deal with unforeseen circumstances that lead to new policy by enabling it to be dealt with by delegation rather than in the bill.
Amendments 5 and 6 relate to sub-delegated powers. The current wording in section 1, which would enable the Scottish Government to delegate powers to a public authority or the authority’s nominee to make regulations or provide funding, does not meet the test of the principle of delegated powers, as it neither limits the delegated authority nor defines it; rather, it opens the back door to creating new policy, enabling the incorporation of future EU laws into our domestic laws through delegated powers. The lack of clarity on the necessity to enable sub-delegation is a significant issue.
In relation to amendment 8, I am of the view that those powers are not an appropriate vehicle to make new regulations.
I move amendment 4.
We will support Michelle Ballantyne’s amendments in the group. As we have just heard, amendments 4, 5 and 6 are based on recommendations of the Delegated Powers and Law Reform Committee. Amendment 8 would preclude the keeping pace powers being used to
“make provision implementing significant new policy developments in EU law.”
The amendment overlaps with my amendments 47 to 51, but is not inconsistent with them; they address the same underlying concerns about the inappropriate use of secondary legislation to implement significant new policy developments. To that end, we will support amendment 8.
I thank all those who have worked with the Government to try to improve the bill since its introduction. The bill today is significantly better than when it was introduced. I do not find it difficult to say that—that is the purpose of parliamentary scrutiny. I am glad, for example, that we have been able to look at the issue of purpose, which we will come to later on, and issues of delegation, which Alex Rowley raised in the early part of stage 2, and we have considered issues that have been raised on reporting and consultation, which Liam McArthur raised.
By dint of discussion, looking at drafts and working together, we have amendments on which we can agree. Regrettably, Michelle Ballantyne has never raised with me the issues that she mentioned in her contribution, so I am slightly surprised that she has a new-found and certainly intense interest in the functioning of delegated powers. I will not accept her amendments and I will give my reasons for that in a moment.
I pay tribute to Dean Lockhart, who discussed some possible amendments with me, although other amendments then appeared, which is entirely his right. Some of his amendments are carry-overs from stage 2. There could be a debate about that because those amendments were significantly rejected at stage 2, and we have to ask ourselves why that was. Perhaps that would save us time.
Amendment 4 seeks to remove the current wording in section 1(2)(f)(ii) and replace it with wording similar to that in section 1(2)(a). I acknowledge that the functions or restrictions that may be conferred or imposed under section 1(2)(f) would have to make sense in the Scottish context, but there is an awkwardness in the wording of amendment 4 and the implications of the amendment are unclear from the perspective of a positive power to confer functions or impose restrictions, whereas the wording in section 1(2)(a) makes sense where it is, as it is being applied to something omitted from regulations. The cut-and-paste job has not worked. It is less clear that it makes sense when applied to a positive power. I am concerned that the proposed drafting of amendment 4 could cause considerable difficulties by adding awkward and unnecessary complications.
The wording “appropriate to retain” that is currently in section 1(2)(f)(ii) offers flexibility to deal with unforeseen circumstances, and given the continued unforeseen circumstances that we find ourselves in as a result of Brexit, which is supported by Michelle Ballantyne, maintaining that flexibility is important and sensible.
It is completely unclear whether amendments 5 and 6 are intended to work together or as alternatives. I am therefore unclear on exactly what Michelle Ballantyne hopes to achieve by lodging them. Whether taken together or separately, the effects of amendments 5 and 6 would, as is the case with amendment 4, be to remove the flexibility needed to deal with uncertainty. The uncertain nature of Brexit and what might yet come leads to section 1(3) in its current form being necessary and expedient as it will allow the Government, with the support of members—many of the changes that we will agree to in the bill require the support of other parties—to ensure that where the power is used, it is workable at an operational level. That is the essence of sub-delegation—making sure that whatever happens the legislation that arises is workable at an operational level.
In the absence of such a provision, the Government would become involved in complex workarounds and arrangements, or it would even have to resort to primary legislation, but that would be wholly disproportionate. That would not otherwise have been the case if section 1(3) was available to us in the form currently provided.
Let me give a hypothetical example. It might be more appropriate for that power to be exercised independently of political control when a body or regulator would be required to make a substantial number of technical corrections to standards. However, without section 1(3) in its current form, the section 1(1) power simply could not be used.
In another example, in agreeing to either or both of those amendments, the Parliament is deciding that the power to give a Scottish public authority the power to provide funding to others where that might be appropriate without passing primary legislation cannot be used.
I do not believe that stage 3 is the time to introduce that type of uncertainty over the scope of the power or of workable legislation. To be clear, the Government will support the amendments in Liam McArthur’s name that are to be taken in group 5. I am aware that members of the Delegated Powers and Law Reform Committee did not have the benefit of considering the changes that those amendments will bring about when writing its report. However, if they are agreed to, when they are considered alongside the bill’s existing provisions, members of the Delegated Powers and Law Reform Committee should be assured that any regulations that are made under that power will be subject to thorough scrutiny. Scrutiny was at the heart of the discussions that I had with other members. Therefore, I must urge members not to support amendments 4, 5 or 6, as they undermine the flexibility that is inherent in the essential purpose of the bill.
Amendment 8 in Michelle Ballantyne’s name seeks to restrict the scope of the power under section 1(1), so it
cannot be used to make provisions implementing significant new policy developments. That is contrary to the recommendations that were made by the Delegated Powers and Law Reform Committee, of which Michelle Ballantyne is a member. Dean Lockhart said that the amendments promoted the decisions because the committee said in its report that it recognises
“that it would be difficult in law to exclude significant new proposals from the scope of the keeping pace power”.
The difficulty of specifying what is meant by “significant” in that context was debated at stage 2, as people will have different views as to what is significant. Therefore, such a proposal would inevitably lead to uncertainty and likely challenge.
Members across the chamber have worked together, as I have said, to produce a package of amendments which, when considered as a whole, ensure a robust role for the Parliament in scrutinising the Government’s proposals for lodging regulations. Those will be debated further throughout the stage 3 debate, but what is important in the context of group 1 is that those amendments ensure the continued workability of the central power in the bill. Amendment 8 is unacceptable to the Government for those reasons and we cannot support it.
Mike Russell is correct that I did not have any meetings with him about those amendments, but they were all back and forth from the Delegated Powers and Law Reform Committee’s report and he has responded to those, so they are not new. He has seen that committee’s thoughts on those amendments. We had not had time to hear the Government’s position on them, and I felt that it was important to lodge them as amendments at stage 3.
The cabinet secretary’s response was about new policy, not about retained EU policy. It is completely wrong to commit the Parliament’s hands to taking on policies without it being able to properly scrutinise and control them. The cabinet secretary is saying that there will be scrutiny but, ultimately, the Scottish Government, whichever party might be elected to it, will have the power to implement new EU policy in Scottish policy. I do not believe that that is the correct way to go.
I will press amendments 4, 5, 6 and 8. Members in the chamber should think carefully about the consequences that might come down the line in terms of being able to take on board policy that the Parliament has not devised and does not control.
The Presiding Officer:
We will suspend for five minutes so that I can summon members to the chamber and allow members who are joining us remotely to access the voting app.
15:34 Meeting suspended.
15:43 On resuming—
The vote is now closed. If any member believes that they were not able to vote, please let me know by making a point of order.
The Presiding Officer:
The result of the division is: For 25, Against 90, Abstentions 0.
Amendment 6 disagreed to.
We move to group 2, on the section 1(1) power and the purpose of maintaining and advancing standards. Amendment 7, in the name of Angela Constance, is grouped with amendments 22, 23 and 30.
Tom Arthur will move the amendments in place of Angela Constance.
I am grateful for the opportunity to speak to amendments 7, 22, 23 and 30 in the name of Angela Constance. I take the opportunity to congratulate her on her appointment to Government and to wish her the best in her new role.
The amendments follow on from stage 2 amendments 6 and 10, also in the name of Angela Constance, which were debated but not moved. Those earlier amendments were intended to provide greater clarity in the bill about what the section 1(1) power is for, when it would be used and how it had been used. Ms Constance expressed the view that those amendments would provide ministers with a direction as to the use of the power, and that they would improve transparency and accountability.
However, Ms Constance also made clear that sufficient flexibility must be maintained to deal with future uncertainties. It is clear from the deliberations at stage 2 that there is a strong view that putting a purpose in the bill would provide more certainty, predictability and clarity for businesses, public agencies and others.
That is what amendment 7 now does. It gives ministers the direction and steer that was felt to be missing from the bill as introduced. If agreed, amendment 7 will require ministers to, among other things, have due regard to how the use of the section 1(1) power would
“contribute towards maintaining and advancing standards in relation to environmental protection, animal health and welfare, plant health, equality, non-discrimination and human rights and social protection.”
Amendment 7 also retains a necessary element of flexibility. It does not impinge on the generality of the power, which was known to be a concern for the Government at stage 2, and it ensures that ministers are not prevented from using the section 1(1) power in other ways.
Amendments 22 and 23 will ensure that, when they report on the use of the power, ministers must set out how it has contributed, is contributing and will contribute to maintaining and advancing standards in those areas. That was the intention of amendment 10 at stage 2. Amendments 22 and 23 will now ensure that reporting covers both the previous uses of the power and any expected future uses.
Amendment 30 is a technical amendment to ensure that a report on future uses of the power is not required once the power itself has expired.
I thank Angela Constance and members from across the chamber who came together to ensure that amendments 7, 22, 23 and 30 are flexible enough to be workable while still improving the bill and providing for greater clarity and transparency. I urge members to support all these amendments.
I move amendment 7.
I join Tom Arthur in congratulating Angela Constance on her reappointment as a minister and wishing her well in that important role. I also thank her for the work that she has done in collaboration with me, Patrick Harvie, Alex Rowley and others to lodge the amendments. She lodged similar amendments at stage 2, recognising that, although the bill had been improved by that stage to expand the underlying principles, there was still a gap regarding the overall purpose.
As Tom Arthur said, providing that degree of clarity and certainty reflects what the Parliament has heard from a variety of stakeholders. The amendments lodged by Angela Constance address those concerns very effectively. I thank her for her work on that and I thank the Government for working collaboratively with members across parties to make this important improvement to the bill. Scottish Liberal Democrats will be happy to support these amendments.
I will briefly make some comments similar to Liam McArthur’s. At stage 2, a great many members, including Angela Constance—who I also congratulate on her reappointment to Government—had similar concerns. However, I think that we came forward with a wee bit of a scattergun approach to the different changes that we wanted to see, with
Angela Constance’s amendments on purpose, Liam McArthur’s on scrutiny and accountability, and some of my amendments.
In the absence of agreement on those wider issues of purpose and scrutiny, I would still say that the amendments that I proposed at stage 2 were necessary, as they provided for shorter reporting periods and a few other changes. As it was not clear at stage 2 that we would get any consensus on those wider issues, I am pleased that we agreed to those amendments in my name. However, I am happy to have them reversed now at stage 3—in a later group—given that we have achieved consensus. I thank Liam McArthur, Alex Rowley, the minister and Angela Constance, who lodged the amendments in this group.
Having that consensus develop throughout the bill has been an important process. I am pleased that we have managed to shape the bill into a better one than it was when it was introduced. That being the case, I will not oppose the Government’s amendments that reverse my stage 2 amendments when we reach them. I will happily support the amendments in group 2, as well as the later ones on scrutiny.
I also congratulate Angela Constance on her very recent appointment.
Amendment 7 refers to a number of important areas in which keeping pace powers may be used. In his supporting remarks, Tom Arthur referred to the policy intention of maintaining the highest standards in Scotland. We totally agree with that. In fact, Scotland and the rest of the UK already have some of the highest standards in the world in these areas, and we agree that that should continue to be the case.
However, the standards have to be appropriate for Scotland. Simply copying and pasting future EU laws is not the best way of doing that. That was made clear by NFU Scotland, when it said in its briefing paper that that would reduce the capacity of Scottish ministers to introduce policies that are genuinely fitting to Scotland’s unique environmental and agricultural context.
The Law Society of Scotland’s briefing also made it clear that these are future EU laws, in relation to which we have no influence or input, and they would be adopted without any scrutiny from the Parliament or consultation with key stakeholders.
That is the point: clarity of purpose is not the same as parliamentary scrutiny. The Finance and Constitution Committee heard substantial evidence that those powers would turn the Scottish Parliament into a passive rule-taker.
For those reasons, we will not be able to support amendment 7. However, if it passes, we will support the consequential amendments 22, 23 and 30, which introduce additional reporting requirements in these areas.
Thank you. I concur with what has been said, although I do not agree with Dean Lockhart. By working together, we have achieved a better bill. The cabinet secretary has been willing to ensure that there is proper scrutiny for the Parliament with amendment 7 and the other amendments. Through cross-party working with the Government, we will have secured a better bill at the end of the day.
I would not want Mr Lockhart’s remarks to imply that the bill does not have wide support among stakeholders. It does. Any bill will have criticisms of small parts of it; those are things that a Government should listen to, and many of those have been addressed in the process that has been referred to and that we have gone through. However, the bill has very widespread support, and indeed the only support that it does not have is from the Conservative Party and one independent member, who is sitting in the gallery. The bill has the support of the Parliament, as I hope we will prove later today.
It has support because it relates to the issue of the high European standards that we have and how we manage to continue to observe those. I would be very happy if we were in there making rules, and in the ideal situation, we will be in there making rules. However, when we are being dragged out of Europe against our will, which the chamber has—[
.]—A member says “Yawn, yawn.” The reality of the situation is that we are being dragged out against our will. There are no ifs or buts. If anybody today thinks that that is a good idea, they should go and look at the queues of lorries in Kent.
I would have thought that even the most hardened Conservative might blush a little at the chaos that is already taking place.
The bill, proportionately and carefully, with the agreement of the Parliament—[
.] All the Conservatives can do is scream and shout, because they certainly cannot deliver a functioning country. We clearly do not have that at the moment. [
.] No, I will not give way—we hear too much from Brexiteers. They have created chaos and I am not prepared to listen to them for a moment longer.
Let us now focus on what the amendments in group 2 do. Extraordinarily, the Tories are even going to vote against those amendments. That is astonishing. They are going to vote against amendment 7, which was agreed among the parties to improve the bill in the light of concerns about scrutiny.
Amendment 7 allows ministers to take account of new circumstances and to propose what is in the best interests of the people of Scotland, but it gives the Parliament, quite clearly, a whip hand in making sure that that is done properly and proportionately.
Amendment 7 provides a clear steer on the use of the power—ministers “must have due regard” to the purpose stated in the amendment. It will be open to ministers to use the power in other ways to benefit Scotland, just as it will be open to ministers to use powers other than in section 1(1) to contribute to the purpose.
There will be no constraints on organisations of any sort in that regard. Indeed, when the Cabinet Secretary for Environment, Climate Change and Land Reform addresses the role of ESS later in the process, I am sure that she will provide information and reassurance to the member. However, I would never dare to trespass on her area of responsibility. I am not going to start doing that now, so, I will allow her to respond to that point.
To return to my area of responsibility, amendment 7 covers matters that members feel strongly about; members do not feel so strongly about other matters. The amendment does not preclude anyone or any organisation from having a say.
Amendments 22 and 23, which provide that we must also report on how we are meeting the purpose in section 1(1), will strengthen the bill.
I am sorry but, having tried to please Mr Ruskell, I now going to have to disappoint him. If the Parliament supports these amendments, amendment 19, in the name of Mark Ruskell, which we will come to later when we debate group 5, will not be necessary, given that the aim of that amendment will have been met.
I am obliged to Angela Constance for the time that she has afforded to getting this right over the past few weeks. I am very pleased that she is returning to Government. I have some experience of working with her and I know how talented she is. I am quite certain that the work that she has done on the bill will also be lasting testimony to the work that she has done when not in Government.
I ask the Parliament to support amendments 7, 22, 23 and 30. I ask the Conservatives to think of the will of the people of Scotland, not of their own selfish party interests.
It is disappointing but not surprising that the Conservatives are unable to support amendment 7, but I welcome the caveated commitment to supporting the consequential amendments, should amendment 7 be agreed to.
I will therefore press amendment 7.
Amendments 45 and 46, in my name, seek to restrict the duration of the section 1 keeping pace powers and are similar to amendments that were agreed to during the debate on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill a couple of years ago.
As currently drafted, the bill allows the keeping pace powers to be extended for a period of 10 years, that is, potentially not only beyond the next parliamentary session but beyond the next two, depending on when those powers were first exercised. Requiring such powers to last for a decade is yet another example of executive overreach in the bill.
In the future—certainly less than a decade from now—the Scottish Parliament should be able to reassess the legislation and consider whether it is still required and appropriate. It should be able to decide whether a more appropriate piece of successor legislation should be introduced. That is why Scottish Conservatives have suggested a maximum period of six years for the duration of the powers, to be divided into an initial period of three years, with a maximum extension of an additional three years.
I understand the rationale behind Michelle Ballantyne’s amendment 42, but imposing an arbitrary date for the use of the powers would not work in practice. Scottish Conservatives will therefore not support amendment 42.
I move amendment 45.
Amendments 45 and 46, in Dean Lockhart’s name, seek to alter the duration of the section 1(1) power, reducing the period during which the power to align would be available. Similar amendments were rejected at stage 2. The attempt to lower the initial duration of the power from six years to three and the overall potential duration from 10 years to six disregards agreements reached at stage 2. I feel that there was a broad consensus that, having listened to concerns about the bill’s initial sunset period, a sensible compromise was reached, through amendments lodged in my name. Section 3, as amended, will afford the incoming 2026 Parliament the opportunity, in its first year, to decide whether the power to align remains necessary. It will also ensure that the power is available throughout the 2021 session of Parliament. It will therefore provide a measure of stability, which is what is sought by introducing the power. I was pleased to see that in the stage 2 report, the Delegated Powers and Law Reform Committee welcomed those changes. The Government therefore cannot and will not support Dean Lockhart’s amendments 45 and 46 and I urge members to vote against them.
I am glad that Michelle Ballantyne will not move amendment 42, which is neither necessary nor practicable. It would remove flexibility and it takes no account of parliamentary dissolution, the pre-election period or the on-going disruption caused by the pandemic. If it is not moved, it need not bother us.
My amendments in the group seek to address the central and fundamental concern about the bill, which is that it seeks to transfer to the Scottish ministers unprecedented powers to legislate by way of secondary legislation. The Finance and Constitution Committee referred to those powers as substantial Henry VIII powers, and it heard evidence that the breadth of the provisions in the bill is not justified.
When it comes to parliamentary and stakeholder scrutiny of the powers, the Law Society of Scotland rightly pointed out that the bill
“only offers a choice between affirmative and negative resolution procedures”,
neither of which is appropriate for the implementation of significant new policies or significant changes in Scots law, with the negative procedure being the default position.
My amendments 47 to 51 seek to introduce additional parliamentary and stakeholder scrutiny of the keeping pace powers in very limited circumstances, when a relevant committee of the Parliament considers that appropriate. Amendment 47 seeks to introduce a sifting mechanism that would apply only when the Scottish ministers proposed an instrument that
“reflects a significant change in EU law or policy ... would constitute a significant change to Scots law, or ... would constitute a significant change in the policy of the Scottish Ministers”.
In those very limited circumstances, the relevant committee of the Parliament would have the right to propose that a higher level of scrutiny be applied to the proposed changes, including the use of the affirmative or super-affirmative procedure, or to decide that such significant changes should not be made by regulation.
Amendment 48 sets out the additional scrutiny that would be required in the event that the committee decided that the super-affirmative procedure should apply, and it includes requirements whereby the Scottish ministers would have to publish impact assessments and undertake stakeholder consultation, all of which the Parliament could and should reasonably expect when a significant change of policy or a significant change in Scots law is being proposed.
Amendments 49, 50 and 51 are complementary in nature and reflect concerns that the Law Society of Scotland has raised since the bill’s introduction. In its submission, the Law Society said that
“the normal rule must be that” the exercise of the keeping pace power
“is subject to affirmative procedure ... except in minor cases”.
That is not the case in the bill as it is currently drafted. We have reflected the Law Society’s concerns by seeking to apply the affirmative procedure not in all cases but in very limited circumstances in which instruments are proposed by the Scottish ministers that would require a significant change in EU law or policy, a significant change to Scots law or a significant change in the policy of the Scottish ministers.
The Parliament recently held a very important debate on the scrutiny of the powers that it will have in a post-Brexit environment. The overwhelming feedback from parliamentary committees was that more scrutiny powers will be required. If the amendments in my name are not accepted, it will be possible for significant changes of policy and significant changes to Scots law to be introduced by the Scottish ministers without any meaningful parliamentary or stakeholder scrutiny.
We will support Michelle Ballantyne’s amendments 9 and 10 in this group. Although they overlap with my amendments, they cover similar concerns about a lack of scrutiny.
I move amendment 47.
Mr Lockhart has covered very well the issues that my amendments try to cover. It is wrong to think that everybody out there who is doing business and living their lives is watching every move that is made in this Parliament. Scottish statutory instruments are passed on a daily basis when the Parliament sits, and sometimes even members do not really know what they are voting for. If we are to pass a bill that retains EU law, it is absolutely imperative that we have safeguards that enable people to understand what is being passed by the Parliament. Changes should not slip through without businesses and people who will be affected by them being aware that they are happening.
Therefore, my amendment 10 seeks to require the Government to lay before Parliament an explanation of what is to happen. It also provides for consultation rights, so that people who would be affected by the laws in question would have a chance to feed in and say how they would be affected, as well as what we as a Parliament should be concerned about and should be thinking about. I think that that is only reasonable, and it is an appropriate level of scrutiny.
In my amendment 9, I have not been too officious in relation to the number of days. I have allowed some flexibility with the 40 days. Where it fits in—it is tied to amendment 10—is that it would require the super-affirmative procedure to be used when a new policy was being introduced and there was no current equivalent in EU retained law. I think that that is really important from a scrutiny point of view. We will not be doing right by the people of Scotland or businesses in Scotland if we do not ensure that that happens.
Some of the amendments in the group relate to concerns that were widely shared and that I reflected on at stages 1 and 2, particularly in relation to a possible sifting mechanism. However, it was in the context of a bill that was fundamentally weaker than the one that we are going to pass that I made those arguments. We now have agreement on how to reflect the purpose of the bill and the powers in it, as well as a much stronger framework for the publication and approval by the Parliament of a policy statement and stronger reporting requirements. That context having changed, I no longer see the need for the amendments in the group, so I will not support them.
On amendment 47, which was lodged by my colleague Dean Lockhart, I think that it is important to emphasise the exchanges at the Finance and Constitution Committee on 26 August, when Professor Aileen McHarg of the University of Dundee and Professor Michael Keating of the University of Aberdeen both expressed their concerns that, between the original bill and the current bill, the default position changed from use of the affirmative procedure to use of the negative procedure.
“an appropriate, proportionate, workable and effective solution.”—[
, 16 September 2020; c 14.]
However, he could not substantiate that opinion when it came to explaining why the default position had changed from use of the affirmative procedure to use of the negative procedure. In relation to ensuring that there is effective parliamentary scrutiny in situations of EU policy changes or legal changes, that matter continues to concern me, and I think that it should concern all members as we consider the current group of amendments.
I will address that point from Liz Smith head-on at the start of my remarks on the group. The Finance and Constitution Committee made those remarks in the light of its stage 1 consideration of the bill. At stage 2, there were further discussions about what the appropriate powers would be. As a result of that, there were extensive negotiations with the parties that were concerned about the matter and had lodged stage 2 amendments, in order that we should get the right solution. That is what the parties that were involved believe that we have, as Patrick Harvie made clear.
To quote a stage 1 criticism of a bill that has changed at stages 2 and 3 does not appear to me to be entirely relevant. What is relevant here—I want to call a spade a spade—is that the Tories do not wish to have the bill. We know that from the passing of the first continuity bill, when they changed the law at Westminster to prevent the will of this Parliament being fulfilled. Now they do not want the second bill, but they are being a little bit more subtle in going against it. There have been partial quotes from past discussions on the bill and partial quotes from people who have given evidence, and all of that comes together to present the Tories as the champions of scrutiny in this Parliament.
Unfortunately, I have to make it plain that that is not the case. The reality of the situation is that, when there were problems with the bill—as there were—the Government accepted them and discussions took place to try to deal with them.
I highlight again the direct quote from the Law Society of Scotland, which said that
“the normal rule must be that” the exercise of the power
“is subject to affirmative procedure ... except in minor cases”.
The legislation that the cabinet secretary is bringing forward does exactly the opposite. Does he not recognise the concern that the Law Society of Scotland expressed?
The member is misrepresenting the case. The power is not going to be used in a vast number of hugely significant cases, and, when there are significant cases, the bill now addresses those very clearly. Indeed, the arch critic of the approach in the chamber was Mike Rumbles, and I am pleased to say that we have lodged an amendment that he regards as acceptable, which will guard against the problems that the member has raised.
Everybody is content with the bill except the Conservatives. Why would that be? It would be either because the Conservatives are and always have been stalwart champions of Scottish democracy or because they have become, to a man and woman—even to a man and a departed woman such as Michelle Ballantyne, who is up in the gallery—staunch Brexiteers. Staunch Brexiteers do not like the reality of trying to remain close to Europe.
I notice that Ruth Davidson is scowling at me about that. Ruth Davidson is a person who wished to be in the single market and the customs union—
Of course, Presiding Officer. Let me attend to the bill, as long as members are not scowling at me any longer.
Each amendment in the group is unnecessary, unwieldy and unhelpful. Dean Lockhart’s amendments provide for a sifting mechanism and a super-affirmative procedure that are no less cumbersome and onerous than those that were proposed in the similar stage 2 amendments.
Although amendment 47 contains some technical deficiencies, it is because of the unacceptable burden on the use of the power that members should object to it. There appear to be no exceptions to the arduous procedure that is provided for, which is a mechanism that the DPLRC considers it would be “disproportionate to apply”. There is the reality of a recommendation.
The super-affirmative process that is to be provided for by amendment 48 takes no heed of the debate at stage 2. Given the significant amendments in Liam McArthur’s name in the next group, which the Government intends to support, the weighty burden represented by amendments 47 and 48 simply cannot be supported.
Michelle Ballantyne’s amendments 9 and 10 open the door not only to uncertainty but to speculative legal challenge, as do Dean Lockhart’s amendments 49 to 51. It is surprising that, at stage 3, we are still having to debate the unsatisfactory use of terms such as “significant” in these types of amendments, which will quite clearly mean different things to different people, as is acknowledged—[
] No. That is acknowledged by the DPLRC in its stage 2 report, which was published on 11 December.
As I said, a group of members from across the chamber came together to work constructively and collaboratively on amendments that encompass the purpose, consultation, policy statement and reporting. They have done the hard work on the bill, and they have changed it, following the objections that were made at stage 1, into a bill that they wish to support.
I ask members to reject the burdensome, technically deficient and, frankly, wrecking amendments in the group and instead support the later amendments in the names of Angela Constance and Liam McArthur, as well as the amendments in my name, which provide for some necessary tidying up as a result.
The cabinet secretary’s main line of argument against the amendments in this group is that the additional reporting requirement and the requirements to set out a policy statement will be sufficient to allow Parliament and stakeholders to scrutinise the use of the powers. I fundamentally disagree, as do the Law Society of Scotland, NFU Scotland and other stakeholders.
Reporting requirements do not give Parliament or stakeholders any real powers of scrutiny when significant changes such as the ones that I described are being introduced. Reporting requirements mean only that the Parliament has a passive role in receiving updates from the Scottish ministers instead of being able to demand proper levels of scrutiny, impact assessments and stakeholder feedback. As a result of the legislation, stakeholders will have no opportunity to provide meaningful input into significant new laws and policies that are being introduced by the Scottish ministers.
For those reasons, I will press my amendments 47 to 51.
The Presiding Officer:
The result of the division is: For 28, Against 90, Abstentions 0.
Amendment 10 disagreed to.
There are many amendments in the group, so I apologise if it takes a bit of time to walk through them.
The purpose of my amendments is to increase transparency in use of section 1(1) powers and to strengthen the role of the Scottish Parliament in that process. That reflects an amendment that I lodged at stage 2 and a concern that was highlighted by various members about powers that the bill will vest in ministers to keep pace with EU legislation and standards.
There is strong cross-party agreement that such significant powers need to be accompanied by robust mechanisms for ensuring that they are used responsibly and that ministers are properly accountable for their decisions. That cross-party recognition of the need for a better balance to be struck is important. I am very grateful to Angela Constance, Patrick Harvie and Alex Rowley, as well as the cabinet secretary, for working with me following stage 2 to develop a way to address those concerns.
To that end, the amendments in my name in the group offer a suite of changes that would strengthen the requirements for Scottish ministers to openly and publicly account for how they use the powers, and would provide a greater role for the Scottish Parliament in that process.
Section 4A of the bill requires Scottish ministers to publish a statement of their policy on the factors that are to be taken into account when considering whether to use the power to align. Amendments 12 and 13 would add to the required content of that policy statement so that ministers would also have to set out the approach that they intend to take and the process that they will follow in deciding whether to use the power to align. That would mean that ministers would have to set out their approach to important matters such as consultation of stakeholders, and that the policy statement would therefore act as the transparent guiding framework within which ministers would use the power.
Amendment 18 would give the Parliament a significant role in development of that policy statement. First, it would require that ministers lay the statement in draft form for at least 28 days, and that they
“have regard to any representations” made about that draft during that period. Secondly, ministers must thereafter lay a copy of the statement for approval by the Parliament, accompanied by an explanation of how ministers
“have had regard to any representations”.
It allows that within 28 days of its being laid, the Parliament can resolve that the statement not be approved. If that were to be the case, the Government would be prevented from publishing the statement and would instead have to lay a revised version for approval.
Although the expectation is, of course, that ministers will use the power in accordance with the terms of the policy statement, I recognise that there might be circumstances—I hope, very rarely—in which it is judged necessary to use the power either before a policy statement is approved and published, or in some way that is not in accordance with the policy statement. My amendments do not seek to prevent the Government from acting in such a way, but amendment 21 would require it to account for its actions by making a statement explaining why it considers there to be good reasons for doing so.
Amendment 15 would require that when the Government has felt it necessary to act other than in accordance with the policy statement, it must review the policy statement. That point was made by Patrick Harvie.
Similarly, amendment 32 is concerned with the Parliament’s ability to have its say on how the Government plans to align with EU law. It would require that the Government’s report setting out its intended uses of the power be laid before the Parliament in draft form before it is finalised, and that the report be laid in draft form within two months of the end of the previous reporting period.
Amendment 31 is consequential and would delete the earlier timing requirement. That would give the Parliament an opportunity to express its views on the intentions, and it would provide an important extra layer of scrutiny and oversight. The amendment would require ministers to have regard to those views before finalising the report and, furthermore, to set out how they have done so when they finalise the report.
Amendment 32 also deals with the circumstances in which the Parliament might feel that primary legislation is a more appropriate vehicle than regulations. That issue has been of particular interest to a number of MSPs, particularly my colleague Mike Rumbles, who has been working with the cabinet secretary to introduce further safeguards in that respect. That is very welcome.
My amendments represent a genuinely collaborative effort—cross-party and between the Parliament and the Government—for which I am very grateful. I believe that they would put in place a workable solution that would provide transparency and accountability, and would provide public confidence in the process of ensuring that Scotland continues to keep pace with the highest environmental standards and protections.
I move amendment 12.
However, I will move amendment 16, because it would strengthen the way in which the statement was laid. The amendment would require slightly stronger approval of the statement when it comes to the Parliament.
I have lodged amendment 20 because it is important that we understand the implications of regulations that are introduced, particularly the social benefits that might result and the costs that might be incurred as a result of having to implement them. I would like the Government to explain what alternative approaches that have been considered that could deliver the same or more ambitious outcomes for the people of Scotland. It is not necessarily the EU that can define the best ways to do things; Scotland can do that for itself.
Amendment 26, which I will move, would require that the report identify the parliamentary procedure that ministers expect to apply.
I welcome Liam McArthur’s work on the matter and the strong cross-party agreement behind his amendments.
I will briefly explain why I have lodged amendment 19. It is disappointing that the European principle of animal sentience has not been included in the bill. At stage 2, I moved amendments to part 2 of the bill seeking to retain that principle, but they were defeated, with the Government returning to the argument that animal welfare laws from more than 100 years ago are somehow still sufficient.
One year ago, Roseanna Cunningham told the Environment, Climate Change and Land Reform Committee that the Scottish Animal Welfare Commission was considering the principle further. However, as yet there has been no conclusion to that work and no report from it. There is a lack of clarity as to whether Liam McArthur’s amendments would actually deliver that detailed consideration by a specific date.
Amendment 19 is a belt-and-braces amendment: it acknowledges that the Government wants more time to consider definitions of animal sentience, but would also require it to consult and report to the Parliament within one year.
This is the lengthiest group that applies to the part of the bill for which I am responsible, and covers the policy statement, reporting and explanatory statements.
With respect to the amendments on the policy statement, I am grateful to Liam McArthur for the constructive way in which he has approached developing his amendments, and am happy to support them. Strong will from the Parliament will be needed, because the policy statement will be the key document that will guide and define how ministers approach use of the power.
Taken together, Liam McArthur’s amendments will do the following. First, they will require that the policy statement contains detail of the approach that ministers intend to follow in deciding whether to use the power. That will enable the Government—as part of the policy statement—to set out the approach that it intends to take to consultation.
Secondly, the amendments set out the process that must be undertaken to consult the Parliament on, and seek its approval for, the draft policy statement. If the Parliament is unhappy with what the Government says on consultation, or anything else, it could resolve not to approve the policy statement.
Thirdly, the amendments will require ministers to make an explanatory statement accompanying regulations that are made in advance of the policy statement being agreed, and which are not in accordance with the policy statement. That statement will explain why that is considered necessary and would bring the issue to the Parliament’s attention for appropriate scrutiny, but would not prevent the Government from acting, when necessary.
Liam McArthur’s amendments will achieve more clearly and in a more rounded and balanced way what Michelle Ballantyne’s amendments 52, 16 and 17 seek to do. Amendment 52 would require ministers to publish an additional statement, but there is no express provision allowing that additional statement to be revised.
Amendment 17 would require ministers to lay draft statements, but amendment 18 achieves that in a clearer and more comprehensive way.
Amendment 16 seeks to make it clear that ministers cannot use the power to align until statements have been approved. There are some severe technical deficiencies with the amendment. It is unclear, for example, how it will relate to section 4A(3), which provides that
“It is not necessary for a policy statement to have been published ... before the power under section 1(1) may be used.”
However, more fundamentally, unlike Liam McArthur’s amendment 21, amendment 16 fails to recognise that a situation might arise in which it is in Scotland’s best interests to use the power. Michelle Ballantyne has said that she intends to press the amendment; I think that it represents the worst of all worlds.
I turn to reporting. Section 7 requires ministers to report on use of the power. Voting on amendments at stage 2 produced a rather confused set of provisions. Amendments 24, 25, 27, 28 and 29, which are in my name, will in essence tidy up the bill and address those anomalies.
Amendment 24 will remove an overlapping duty on ministers to report on intended uses of the power.
Amendment 25 will remove some unnecessary wording.
Amendment 27 will omit the duty on ministers to lay a first report setting out intended use of the power within two months of that power taking effect. That will avoid clashes with the Scottish Parliament elections.
Amendment 28 will tidy up the definition of “first reporting period”.
Amendment 29 will alter the reporting requirements so that they are in a yearly rhythm, which is in step with the European Commission’s annual work programme.
I am happy to support Liam McArthur’s amendment 32 and consequential amendment 31. Amendment 32 will strengthen the Parliament’s role in relation to how the Government intends to use the power to align with EU law, and makes specific provision in relation to circumstances in which people might feel that primary legislation is more appropriate.
Mike Rumbles and others have expressed their views on that point. Indeed, Mike Rumbles had objections to the first continuity bill as well as specific objections on the point in this bill. I thank him for the discussion that we have had, and am happy to confirm to him that amendment 32 addresses his concerns, as he has acknowledged. It will allow the Parliament the opportunity to set out a clear view that certain matters should not be the subject of secondary legislation, and will force the Government to have regard to those views and respond specifically to them. It will not—because it would not be appropriate to do so—force any Government to create primary legislation. However, it will remain open to the Parliament to annul or not to approve secondary legislation if it does not agree with it, and to create its own primary legislation when it feels that that is right.
There has always been a role for primary legislation in the bill—particularly in areas of major innovation in which I would not expect the Government to create secondary legislation. I am very happy to confirm that through my support for amendment 32. I hope that the Parliament will agree.
I cannot support amendment 53 in the name of Dean Lockhart. It would introduce—as many of his amendments would—an unhelpful procedure that would tie the Government up in endless rounds of reporting, and would essentially stymie effective use of the power. Amendment 53 is unnecessary, because Angela Constance’s amendments 22 and 23 will require ministers to report on how past and future uses of the power contribute to achieving the purpose that is set out in amendment 7. Ministers will have to report on any uses of the power that have been under active consideration but have not been implemented.
Liam McArthur’s amendments 15 and 21 will require that if ministers bring forward legislation that is not in accordance with the policy statement, they must not only make a statement explaining why they have done so but must review the policy statement itself. That, too, makes amendment 53 unnecessary.
Amendment 26, in the name of Michelle Ballantyne, would require ministers to report on which parliamentary procedures should apply. It would, in some cases, be premature for the Government to indicate which procedure would be most appropriate, because a particular measure might be at an early stage of development. The report will be an anticipatory report: for that reason it would not be appropriate to require that that information be included in the report.
Michelle Ballantyne’s amendment 20 duplicates something that the bill already requires, which is that when ministers use the power, they must make a statement explaining the instrument, saying why there are good reasons for it, saying what the law was previously and explaining the effect on retained EU law. They must also make statements on the effect of the instrument on equality legislation, human rights, employment and health and safety. Ministers must explain the financial implications of the instrument and must say whether there has been a consultation.
There is vast crossover between the terms of amendment 20 and what we have already agreed in our consideration of whether alternative approaches could deliver equivalent outcomes. That is exactly the sort of issue that will be addressed in the Scottish ministers’ policy statement, which will, if Liam McArthur’s amendment 18 is agreed to, have to be approved by the Parliament.
Amendment 19, in the name of Mark Ruskell, deals with animal sentience. Some people hold to a misunderstanding that all species of animals are sentient beings. That seems to have led to some confusion as to what it means to implement the sentience principle.
Whether a particular animal is sentient is a matter of scientific fact and evidence, not of principle. It is widely accepted that vertebrates such as mammals, fish, reptiles and birds are sentient, but that that is not true for the majority of invertebrates. The sentience principle is an obligation to have regard to the welfare needs of sentient animals when we develop policy and legislation. Amendment 19 is not necessary for us to do that.
As I said when I supported Angela Constance’s amendment 7, that amendment will require the Government to have due regard to the purpose, which is—among other things—to
“contribute towards maintaining and advancing standards” of animal health and welfare when the power is used to align with EU law.
Angela Constance’s amendments 22 and 23 will require ministers to report, in each reporting period, on how use of section 1(1) has contributed or continues to contribute, or is expected to contribute, to achieving the purpose that is provided for by amendment 7. The amendment does not impinge on the generality of the power, whereas amendment 19 would. Amendment 19 attempts to imply that this one matter is more important than all the others in relation to which the power to align can be used.
Nonetheless, I appreciate amendment 19 and say to Mark Ruskell that the Scottish Government will consider, and report on, how section the 1(1) power can be used to maintain and advance welfare standards for sentient animals. Therefore, considering what amendments 7, 22 and 23 will achieve, and the fact that the Scottish Animal Welfare Commission has a remit to report annually on how the welfare of sentient animals has been addressed, I urge the member not to press amendment 19.
I ask members to support the amendments in my name and I commend Liam McArthur’s amendments. I am grateful to the members who have worked hard to come together in supporting the amendments and I ask Mark Ruskell, Michelle Ballantyne and Dean Lockhart not to move the amendments in their names.
Amendment 53 would introduce a reporting requirement in limited circumstances where the Scottish ministers decided not to exercise the keeping pace powers. The amendment goes beyond the others in this group and would give the relevant parliamentary committee the power to request a report by the Scottish ministers on the non-use of those powers, but only if the committee considered that a significant change in EU law or policy had not been followed. The reasoning behind the amendment is that it would provide the Parliament and stakeholders with a better understanding of where and why Scots law is aligned—or not aligned, as the case may be—with future EU law.
With regard to the other amendments in the group, we will support Liam McArthur’s amendments and Michelle Ballantyne’s amendments 16, 20 and 26, but not amendment 17. We are unable to support the cabinet secretary’s amendments in the group as, in large part, they seek to reduce the reporting requirements that were agreed at stage 2.
I support anything that allows Scotland to trade more easily with our neighbours, and that includes this bill. However, I was genuinely concerned that the bill as drafted, and before any amendment at stage 3, allowed the Government to use regulations for keeping pace powers when, for major change, it should use primary legislation. As we all know, regulations cannot be amended, so that would make it difficult in the Scottish Parliament to do anything else. I lodged amendments at stage 2 to prevent that from happening, but I did not press them. I was particularly taken by Alex Rowley’s comment at stage 2 that he thought that I had gone a bit too far; I recognised that.
I want to give credit where credit is due, and I give that credit to Mike Russell, the cabinet secretary. He has worked really well with everybody, including me, to reach a consensus on the very important issue of the power of the Parliament vis-à-vis the power of the executive. Over the years, it has been my experience that executives or Governments of any party tend to want to use regulations quite extensively, when other arrangements might be more appropriate.
The cabinet secretary engaged with me and other colleagues. As a result, subsection (6) of the new section that amendment 32, in Liam McArthur’s name, would insert, really tackles the issue. It ensures that if the Parliament feels that changes should be made by primary legislation, it can say so formally to the Scottish Government, and the Scottish Government must respond to that statement. Mike Russell is quite right that no Parliament can force a Government to introduce primary legislation on something. However, if the Parliament spoke and said that the Government should do that, I would be very surprised if any Government turned around and said to the Parliament that it would not and would instead proceed with laying regulations.
The provision in amendment 32 is a pragmatic and very good compromise. It achieves the objectives, and I have not seen a better example of everybody working together to do that. I want to compliment the cabinet secretary on his willingness to reach agreement across the board.
The cabinet secretary has pre-empted, as he is definitely entitled to do, much of what I wanted to say, which will make this a shorter contribution. The difficulty with Mark Ruskell’s amendment is that this is not the place for it. In the proposed new section, “Purpose of maintaining and advancing standards”, which Ms Constance’s amendment 7, would insert, there are five different sectors to be dealt with—“environmental protection”, “animal health and welfare”, “plant health”, “equality” and “social protection”—all of which must be reported on, but Mr Ruskell is seeking a special report on animal sentience, which I do not think is appropriate in this bill, although it might be appropriate elsewhere.
Amendment 7 would also require ministers to
“have due regard to the purpose”— that is, animal welfare, which is significant. Also, amendments 22 and 23 require ministers to report.
Mr Ruskell’s approach would require a stand-alone consultation—although he does not say who is to be consulted or how it is to be gone about—on animal sentience alone. I do not think that that is appropriate.
Finally, as the cabinet secretary mentioned, the Scottish Animal Welfare Commission has a role to play. It is early days for the commission—it was established only in September 2019. I have looked at its minutes. Its previous meeting was in December 2020, and I see that it has joined the European Forum for Animal Welfare Councils. One of the commission’s objectives is to consider the welfare of sentient animals. I think that we should give it time to breathe and report. Its duty is, of course, to look at how devolved policy is meeting the welfare of such animals. I note that Mr Ruskell said that amendment 19 is “belt and braces”. I do not think that we need that.
I am always willing to take Christine Grahame’s advice on the wearing of belts and braces.
I thank all those who have contributed to the debate on this group. First of all, I offer an apology to Michelle Ballantyne, Dean Lockhart and Mark Ruskell for not addressing their amendments in my opening remarks—I hope that they will appreciate that I had quite a bit of ground to cover.
I welcome Michelle Ballantyne’s comments when she talked about not moving a number of her amendments. However, we cannot support those that she has indicated that she will move, for many of the reasons that the cabinet secretary has outlined, not least because they duplicate the amendments in my name or are unnecessary because of my amendments, which I hope will be agreed to.
On Mark Ruskell’s amendment 19, I very much find myself in the same place as Christine Grahame—that is, I am sympathetic to the principle underlying it. However, for the reasons set out by the cabinet secretary and echoed by Christine Grahame, we cannot support it.
I am grateful to a number of members, particularly Patrick Harvie, Angela Constance and Alex Rowley, for their help and support in progressing the amendments, but I am especially grateful to the cabinet secretary for the way in which has engaged with me. As he said, the amendments are about improving transparency and accountability and underpinning the Parliament’s legitimate scrutiny and oversight functions in relation to the significant powers that the bill will invest in ministers. That is right and proper.
It has been a genuinely collaborative, cross-party effort between the Parliament and the Government. It is a signal of the festive season of goodwill to all men and women that we find Mike Russell and Mike Rumbles in unison on the bill. There is no finer way to end my contribution than that.
I press amendment 12.
Amendment 12 agreed to.
Amendment 52 not moved.
Amendment 15 moved—[Liam McArthur]—and agreed to.
Amendment 16 moved—[Michelle Ballantyne.]