European Union (Withdrawal) Bill: Update

It is not typical that a minister comes to the chamber to tell members that he or she regrets the introduction of legislation, but that is the situation in which I find myself today. I regret that the Scottish Government now feels compelled to introduce the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. I regret it because it is about preparing for an event—the United Kingdom’s leaving the European Union—that I do not wish to happen and which is, of course, contrary to the wishes of the people of Scotland, 62 per cent of whom voted to remain in the EU. I also regret it because it never needed to come to this.

It is important to set out how we have reached this situation and what are the options that are now before us. When the UK Government published its European Union (Withdrawal) Bill in July 2017, it was no surprise that its approach to devolution was careless and lacking in understanding. After all, since June 2016 the devolved institutions, including this Government and this Parliament, have been denied any meaningful input to the Brexit process, despite the clear and agreed terms of reference of the joint ministerial committee (European Union negotiations), of which I am a member.

There was no consultation on the content of the European Union (Withdrawal) Bill prior to our seeing it in finished form two weeks before its publication. That was contrary to all good and established practice with bills that will require legislative consent from the Scottish Parliament. We would have been justified, when the European Union (Withdrawal) Bill was published, in walking away from such a boorach, but instead—in this, I pay tribute to all the parties in this Parliament—as a Parliament, we have put in a great deal of time, resource and effort to trying to make it a workable piece of legislation to which we could all agree.

No matter how much we oppose Brexit, a withdrawal bill is—we have always made this clear—a proper and necessary step: our laws must be prepared for the day when the UK leaves the EU. If we were to do nothing, laws about matters such as agricultural support and the rules that ensure our high food standards would fall away entirely, and many others would stop working as they were intended to work.

However, the European Union (Withdrawal) Bill, which has now been passed by the House of Commons despite amendments that were tabled by the Scottish and Welsh Governments and by the Opposition parties, would allow Westminster to take control of devolved policy areas in order—according to the UK Government—to allow UK-wide arrangements or frameworks to be put into place after Brexit. Before I address the detail, it is important to stress that fundamental point. The whole debate is about the existing powers of this Parliament in relation to policy areas including farming, fishing, justice and the environment, for which this Parliament already has responsibility.

Therefore, the discussion about the way forward is not an abstract or arcane one. First and foremost, it is about protecting the devolution settlement that the people of Scotland voted for so decisively in 1997. However, it is also about the best way to run important national and local services—for example, our health service. It is about the best way to provide agricultural support, such as with the less favoured area support scheme payments that are essential in Scotland but are not used in England; the best way to devise procurement rules that are tailored to Scottish needs and Scottish business; and the best way to protect and enhance our particular environment—consisting, as it does, of large areas of coast and sea.

At present we have in these islands a unitary but not uniform market. With the freedom to innovate, we have made world-beating climate change legislation, we are in the process of implementing minimum unit pricing for alcohol and we have been able to tailor business support to specific business need.

We have always been clear that we accept in principle the need for UK-wide frameworks on some matters. We have worked constructively with the UK and Wales Governments to investigate those issues and explore how such frameworks would work. However, the key priority for us is to ensure that those are always in Scotland’s interests—as members would expect.

Accordingly, what is covered by any UK frameworks, how they are governed and any consequent changes to the devolution settlement must be made only with the agreement of the Scottish Parliament. It is simply not acceptable for Westminster unilaterally to rewrite the devolution settlement and to impose UK-wide frameworks in devolved areas without our consent. That is why we and the Welsh Government have been working so hard to ensure that the European Union (Withdrawal) Bill both protects devolution and does the job that it is supposed to do.

Opposition to the European Union (Withdrawal) Bill as it is currently drafted extends far beyond the Scottish and Welsh Governments. This Parliament’s Finance and Constitution Committee concluded unanimously that clause 11, which constrains devolved powers, is

“incompatible with the devolution settlement”

and, importantly, that clause 11 is not

“necessary to enable the agreement of common frameworks”.

In the House of Lords, the former head of the UK civil service called the treatment of Scotland, Wales and Northern Ireland in the European Union (Withdrawal) Bill “indefensible”. Lord Hope, a former deputy president of the Supreme Court and the convener of the cross-bench peers, even described the bill’s approach to devolution as having “a touch of Cromwell” about it. He has also retabled the joint Scottish and Welsh Government amendments for consideration during the Lords stages of the bill.

The Scottish Parliament’s first Presiding Officer, Lord Steel, described how the European Union (Withdrawal) Bill threatens Scotland’s

“stable and sensible form of government.”—[Official Report, House of Lords, 30 January 2018; Vol 788, c 1426.]

Faced with such an array of views from all parties, the UK Government accepted that the European Union (Withdrawal) Bill must change. It is regrettable that despite its promise, it has failed to table an amendment in the House of Commons, although last week it finally put a proposal on the table for the Lords. However, that new amendment would still allow the UK Government unilaterally to restrict the Scottish Parliament’s powers through an order made in the UK Parliament, without requiring the consent of either the Scottish Parliament or Government. Under the latest proposition, which was set out publicly by David Lidington yesterday, the UK Government would decide whether the Scottish Parliament’s powers in relation to any area that is currently covered by EU law should be constrained.

As a result, the new proposal remains unacceptable to the Scottish and Welsh Governments. UK ministers insist that we have nothing to worry about because they will consult the devolved Administrations before deciding whether to constrain the powers of the Scottish Parliament. However, the track record on consultation is not encouraging: the UK Government has failed to meet similar commitments to Scotland in relation to the whole Brexit process.

It is impossible to take seriously the UK Government’s argument that it needs to constrain the powers of the Scottish Parliament for economic reasons. It is, to be frank, risible that UK ministers, who are pursuing an economically disastrous hard Brexit, say that they must reserve the right to impose UK-wide frameworks in devolved areas for reasons of economic stability.

Despite all that, there remains a basis on which to reach agreement, and the Scottish Government remains committed to that objective. The Scottish and Welsh Governments will meet UK ministers next week to continue to discuss the changes that must be made. We will suggest amendments to the UK Government’s proposals that would make them work with, not against, devolution.

However, as a Government, we recognise the reality of the position in which we find ourselves. If the UK Government does not change its position, we will be faced with legislation to which we cannot recommend that the Scottish Parliament gives consent. In that situation, we believe that the constitutionally correct position, consistent with the devolution settlement, would be for the UK Government to remove from the European Union (Withdrawal) Bill matters that are not consented to, and for this Parliament to make its own provisions in those matters. That is why we believe that it is incumbent on the Scottish Government to provide an alternative means of ensuring legal certainty and continuity in areas of policy that are within the competence of this Parliament, in the event that the UK leaves the European Union. That is what the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, which we have introduced today, will do.

Similar steps are being taken by the Welsh Government, which published its own very similar continuity bill earlier today. My Welsh counterpart, Mark Drakeford, has just made a statement to the National Assembly for Wales, setting out his Government’s proposals. The continuity bill will, if passed, retain our EU-derived law and give the Scottish Government and Parliament the powers that they need to keep those laws operating. It will assert this Parliament’s right to prepare our own statute book, so that the same rules and laws will apply as far as possible after withdrawal.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill has been introduced today to ensure that it can be put in place prior to the final passage of the European Union (Withdrawal) Bill. That will be essential if this Parliament decides not to give the Westminster bill legislative consent.

The Minister for Parliamentary Business has, accordingly, written to you, Presiding Officer, proposing an emergency timetable, which will be put to the Parliamentary Bureau and which I hope Parliament will agree to later this week. That timetable proposes that all stages of the bill take place in plenary session, which will enable all MSPs to participate. Members will also be able, if their committees so chose, to take evidence on the bill, and I will make myself available to any such committee at any time. The period of scrutiny will be shorter than normal, but there needs to be intense examination of the proposals, and the Scottish Government will do everything that it can to enable that.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is contingency planning. It provides a sensible scheme for preparing devolved law for withdrawal from the EU. However, if the UK Government’s European Union (Withdrawal) Bill can be agreed, and if this Parliament consents to it, our continuity bill will be withdrawn. Even if the continuity bill is passed by this Parliament, it contains provisions for its own repeal. If a deal can be reached with the UK Government, we would be able to come to Parliament with a proposal to give consent to the European Union (Withdrawal) Bill, and to repeal this one.

Presiding Officer, let me turn, finally, to your statement on the bill’s legislative competence. The Parliament will, I am sure, wish to know that the Presiding Officer has said that, in his view, the provisions of the bill are outwith the legislative competence of the Scottish Parliament. He is entitled to that view, but we respectfully disagree. Indeed, I understand that the Welsh Presiding Officer has reached a different view from the Scottish Parliament’s Presiding Officer, and has issued a certificate of legislative competence.

Scottish ministers are satisfied that it is within the powers of this Parliament to prepare for the devolved legislative consequences of the decision by the UK to leave the EU. We do not agree with the Presiding Officer’s view that it is “incompatible with EU law” to legislate in anticipation of what is to happen when EU law no longer applies. EU law itself envisages that a member state may withdraw from the EU in an orderly manner that is conducive to legal clarity and certainty.

Under the Scotland Act 1998, we can introduce bills to Parliament only when we are satisfied of that. For the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, the Deputy First Minister has made a statement to that effect. As the ministerial code makes clear, any such statement must have been cleared with the law officers. I confirm—the ministerial code allows me to do so—that the Lord Advocate is satisfied that the bill is within the legislative competence of the Parliament. Accordingly, the Lord Advocate will provide a written statement to that effect later today and, subject to Parliament’s agreement, he will make an oral statement in the chamber on the bill tomorrow and be open to questions on it. To be clear about what that means, I say that the Presiding Officer’s statement on legislative competence does not in any circumstance prevent the Scottish Government from introducing or progressing a bill.

By triggering article 50, the UK Government has put the UK on a path that leads out of the European Union. As I have set out, we have a duty to protect and preserve the areas of EU law that are within the responsibility of this Parliament. If we do not make those preparations now and we cannot agree to the UK’s withdrawal bill, we would have to wait until we had already left the EU, and EU law had stopped applying in Scotland, before this Parliament could take any necessary precautions. That would be an unacceptable basis on which to invite Parliament to do essential preparation.

Article 50 has been triggered. Without a drastic change of circumstances—which, of course, many of us still hope for—it is, regrettably, more than likely that the UK is leaving the EU. The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is a necessary response to that fact.

We recognise that the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is novel, but we should not be surprised that an event such as EU withdrawal is giving rise to novel legal situations. This is the first time since the reconvening of the Scottish Parliament in 1999 that a Government has introduced a bill for which the Presiding Officer has not been satisfied as to its legislative competence. We recognise that, and we are mindful of what a serious moment this is.

However, the fundamental point cannot be escaped: the issue is too important for it to be either my decision, or that of the Presiding Officer, whether the bill is passed. All of us in this chamber have a duty to debate the issue over the coming weeks. All MSPs can listen to the arguments, and then we can all collectively decide whether the bill should become law. It will be a decision not of the Scottish Government but of this, our national Parliament. That is how it should be, and that is why we are introducing the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

I began this statement by saying that I regret having to introduce the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, and I still do; I regret what appears to be the unfolding disaster of Brexit. In my active front-line political life, which has lasted for more than 30 years, I have never known a time of greater instability, nor a time in which it has been harder to predict what lies ahead. However, the core issue for this Parliament is simple: our primary duty is to serve the people of Scotland and to protect their interests. It is our obligation—indeed, it is our duty—to protect the devolution settlement for which the people of Scotland voted. That is what we are endeavouring to do, despite all the difficulties.

I welcome the cross-party agreement that there has been on that substantial point and I hope that it can continue, despite the pressures on it. It is in that spirit that I have made this statement to Parliament today.