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

Overview

This Bill aims to ensure that when the UK leaves the European Union (‘Brexit’), Scottish law continues to function without any interruptions or gaps. Scottish law is also known as 'Scots law'.

The Parliament agreed to treat this as an emergency Bill. This is a Government Bill that needs to be enacted more quickly than normal.

The Bill does 3 main things. It: 

  • keeps the European Union (EU) laws in Scots law for areas that have been devolved to Scotland 
  • gives Scottish Ministers the power to make sure these devolved laws work effectively after Brexit 
  • gives Scottish Ministers the power to make sure devolved laws can keep pace with developments in EU law after Brexit

You can find out more in the Explanatory Notes document that explains the bill.

Why the Bill was created

With the withdrawal of the UK from the European Union, this Bill will ensure continuity in Scottish law. This applies to the areas of law that are devolved to Scotland, like the environment and food standards. 

On 13 July 2017, the UK Government introduced the European Union (Withdrawal) Bill (EUWB) in the UK Parliament. The EUWB sets out proposals to facilitate the UK's departure from the European Union (EU) by: 

  • repealing the European Communities Act 
  • converting existing EU law into UK law on the date of the UK’s exit from the EU (scheduled for March 2019)
  • creating temporary powers to allow UK (and devolved) Ministers to deal with any deficiencies, so that the legal system continues to function effectively

You can find out more in the Policy Memorandum document that explains the bill.

The Bill at different stages

'Bills' are proposed laws. Members of the Scottish Parliament (MSPs) discuss them to decide if they should become law.

Here are the different versions of the Bill:

The Bill as introduced

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill as introduced

The Scottish Government sends the Bill and the related documents to the Scottish Parliament.

Bill is at ScottishParliament.SC.Feature.BillComponents.Models.BillStageModel?.DefaultBillStage?.Stage_Name stage.

Stage 2 – Changes to detail

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill with Stage 2 changes

Second version of the proposed law with changes from Members of Scottish Parliament (MSPs).

Bill is at ScottishParliament.SC.Feature.BillComponents.Models.BillStageModel?.DefaultBillStage?.Stage_Name stage.

Stage 3 – Final changes and vote

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill as Passed

Third version of the proposed law that the MSPs voted on and passed.

Bill is at ScottishParliament.SC.Feature.BillComponents.Models.BillStageModel?.DefaultBillStage?.Stage_Name stage.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Government Bills

These are Bills that have been introduced by the Scottish Government. They are sometimes called 'Executive Bills'.

Most of the laws that the Scottish Parliament looks at are Government Bills.

Hybrid Bills

These Bills are suggested by the Scottish Government.

As well as having an impact on a general law, they could also have an impact on organisations' or the public's private interests.

The first Hybrid Bill was the Forth Crossing Bill.

Members' Bill

These are Bills suggested by MSPs. Every MSP can try to get 2 laws passed in the time between elections. This 5-year period is called a 'parliamentary session'.

To do this, they need other MSPs from different political parties to support their Bills.

Committee Bills

These are Bills suggested by a group of MSPs called a committee.

These are Public Bills because they will change general law.

Private Bills

These are Bills suggested by a person, group or company. They usually:

  • add to an existing law
  • change an existing law

A committee would be created to work on a Private Bill.

Bill stage timeline

The Supreme Court has ruled that some of the things this Bill sets out to do are not within the powers of the Scottish Parliament. Because of this, the Bill cannot become law in its current form.

Find out more in the parliament research on this ruling.

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill as introduced

Related information from the Scottish Government on the Bill

Scottish Parliament research on the Bill 

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given.

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener (Bruce Crawford)

Good morning and welcome to the eighth meeting in 2018 of the Finance and Constitution Committee. I remind members to switch their mobile phones to a mode that will not disturb proceedings.

The only business on our agenda today is evidence on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, which was introduced last week. We will hear from two panels of witnesses this morning. The first panel consists of Michael Clancy, director of law reform at the Law Society of Scotland; Dr Kirsty Hughes, director of the Scottish Centre on European Relations; Professor Aileen McHarg from the University of Strathclyde; and Professor Alan Page, professor of public law at the University of Dundee. I welcome you all to the committee.

Professor McHarg, you say in your written submission that the bill falls within the competence of the Scottish Parliament. For the benefit of the Official Report, will you explain to the committee how you arrived at that view?

Professor Aileen McHarg (University of Strathclyde)

The dispute as to competence between the Lord Advocate and the Presiding Officer—the Welsh Presiding Officer takes the same view as the Lord Advocate—boils down to the question as to whether it is competent for the Parliament to anticipate the possibility of deviating from European Union law while the constraint under section 29(2)(d) of the Scotland Act 1998, which contains the obligation to legislate compatibly with EU law, remains on the statute book. The Presiding Officer takes the view that it is not competent on the basis that it would anticipate an expansion of competence, but the Lord Advocate and the Welsh Presiding Officer take the view that, because any effect of the bill is postponed until such time as we will no longer be bound to comply with EU law, the bill’s provisions would not be exercising a competence in advance but would rather be taking necessary measures to ensure an orderly withdrawal from the EU.

My submission was made jointly with my colleague Dr Chris McCorkindale, and we took the view that the bill is within competence. On the point about how to interpret the Scotland Act 1998, we recognise that there is room for disagreement at the point where we make a judgment about whether a bill is within competence and whether the postponed effect is relevant. That depends on how we approach interpretation. If we were to approach it literally, we might well say that postponed effect does not save the bill, but if we interpret the Scotland Act 1998 in light of its context and purpose, there is a case for saying that the postponed effect does make a difference.

What is the purpose of the requirement that the Parliament legislates compatibly with EU law? What is the context in which that provision was enacted? The context is one of continuing membership of the EU and the purpose is to ensure that the Scottish Parliament does not breach the United Kingdom’s obligations under EU law. On that point, the issue is arguable.

We found the tipping point to be in the Lord Advocate’s argument that it is not contrary to EU law to make provision for withdrawal, on the basis that article 50 of the Treaty on European Union provides a mechanism for withdrawing from the EU and that mechanism anticipates a staged, orderly withdrawal. Therefore, as part of that process, making adjustments to domestic law in anticipation of the day after we leave the EU is compatible with EU law. In Parliament last week, the Lord Advocate made the point that, if it was incompatible with EU law to anticipate leaving the EU, the European Union (Withdrawal) Bill itself would be contrary to EU law.

Professor Alan Page (University of Dundee)

I find it difficult not to regard the issue of whether the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is compatible with EU law as a nice argument but one that is a red herring. People have found it convenient to latch on to it, but it does not take us much further forward with regard to the issue between the two Governments.

From the outset, my view has been that, if Parliament has the power to give effect to EU law within devolved competence, which it undoubtedly does, I cannot see any possible objection to Parliament providing for that law within devolved competence to continue to have effect when the UK leaves the EU, nor can I see any difficulty about Scottish ministers taking power to adjust that law so that it continues to function properly once the UK has left the EU. That is the easy bit of the issue. The difficult bit is to work out what is within devolved competence and what is reserved. That is what the argument has been about from the very beginning in relation to this matter.

The Convener

As no other witness wants to say anything at this point, I will bring in Ash Denham.

Ash Denham (Edinburgh Eastern) (SNP)

Thank you, convener. I am interested in the difference of opinion between the Presiding Officers of the National Assembly for Wales and the Scottish Parliament. How have we ended up in a position where two Presiding Officers of devolved legislatures have completely different views on the issue?

Professor McHarg

The devolution settlements have differences, of course, and there may be differences between the bills—I have not seen the Welsh bill yet. However, I do not think that those are the reasons why their views differ. The reason why they differ is that, when a minister or a Presiding Officer makes a competence statement, they are not saying that they are absolutely, 100 per cent certain that the bill is within competence or, conversely, that it is beyond competence. They are making judgments in areas in which there is genuine uncertainty—as there is on the temporal question, because it has not been addressed by the courts. We have had relatively few cases decided by the courts. Where there is no definitive answer, there is obviously scope to view the balance of arguments differently and take different views.

A competence statement means, “On the balance of arguments, I think that the bill is within competence” or, “On the balance of arguments, I think that the bill is beyond competence”. It is perfectly understandable that two Presiding Officers might reach different conclusions on the vires of a bill.

Professor Page

Lord Hope said—rather dismissively—that the Presiding Officer had just an opinion, with the final decision resting with the UK Supreme Court. He was talking as a member of it at that time. It is an opinion that is arrived at in the Presiding Officer’s professional judgment on the basis of the advice that they receive, but it is not definitive or conclusive.

Ash Denham

Thank you.

Adam Tomkins (Glasgow) (Con)

I completely agree with Professor Page. The focus in the statements by the Presiding Officer and the Lord Advocate last week on the narrow question of EU competence is one important part of the question of the competence of the bill, but that focus misses an equally or perhaps even more important part, which is to do with the division between reserved and devolved powers. What are your opinions on that issue? I put that question particularly to the lawyers, including Michael Clancy. For example, how is it within the competence of this Parliament to legislate for a different exit day from that which is provided for in the withdrawal bill? Legislating for international relations, including relations with the European Union, is clearly reserved to the UK Parliament.

Michael Clancy (Law Society of Scotland)

We have made it quite clear in our submission to the committee that that is a bone of contention between the two bills. In essence, because the European Union (Withdrawal) Bill in the UK Parliament has already been amended to identify 29 March 2019 at 11 pm as the exit day, one might wonder why the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill has a provision that allows for Scottish ministers to ordain exit day according to section 28 of the bill.

That presents us with a difficulty because, for one thing, under the withdrawal bill, UK ministers can change the exit day. The date of 29 March 2019 was chosen because it is two years after the notification, as required under article 50, of the UK’s intention to withdraw. Under article 50, it is on that date that the treaties will cease to have effect, subject to any agreement that is made. There is therefore a particular difficulty if we are going to be thinking about a moving target. I am not saying that there will be a moving target but, in any event, it is fair to say that there is a significant risk of a lack of clarity if there is an ordained date under the withdrawal bill yet, under section 28 of the continuity bill, Scottish ministers were to ordain another day by regulations, on the assumption that the bill passes and gets royal assent.

Professor McHarg

We have to think about what function the term “exit day” performs in the bill. It does not perform the function of saying when the UK will cease to be a member of the EU, nor does it perform the function of saying when EU law will cease to apply. It is a provision for the operation of the continuity provisions in the bill and it is a provision that governs the length of time for which the ministerial powers will apply. It could have been called something else, in which case the issue would not have arisen about whether it relates to our relationship with the EU. Clearly it cannot, because that would be outwith competence.

We have to read those words in the context of the statute and consider their purpose. We also have to read the bill in the light of the competence constraints on the Parliament, and the courts are, of course, directed to read the legislation as narrowly as possible to keep it within competence.

Professor Page

I was going to add to that, “where conflicting interpretations are possible”. If no conflicting interpretation is possible, section 1(1) does not come into play. The question was a good one.

Adam Tomkins

Would you like to offer an answer to it?

Professor Page

I am attracted by the answer, “Yes, I agree.”

Dr Kirsty Hughes (Scottish Centre on European Relations)

I want to make a general comment about the reserved-devolved constitutional stand-off. It is clear that Brexit, and the process of Brexit, is in general disrupting or even undermining our constitutional settlement. I am not talking only about the issue that is under discussion today. There has been much discussion, as there needs to be, about the situation in Ireland and Northern Ireland, and about the Good Friday agreement. Just as the devolution settlement was drawn up in the context of EU membership, so was the Good Friday agreement. We are in exceptional territory politically as well as legally.

I will be happy to say more about this if that would be helpful, but it is quite hard to conceive of any Brexit that does not put those constitutional challenges in front of us. There may be one, but it will certainly not happen given the path that the UK Government is currently on, and arguably it will not happen given the Brexit policies of the Opposition parties at Westminster or other parties. That is also worth saying at this point as regards the broader context.

09:45  



Adam Tomkins

Can I offer the panel one other example to chew over? There is provision in section 6 of the continuity bill that concerns the on-going status in Scots law, post-Brexit, of the principle of the supremacy of EU law. Is the panel satisfied that that provision is within the Parliament’s legislative competence as regards devolved and reserved matters?

Professor Page

You said that it was one to chew over, and I am certainly happy to do so.

Adam Tomkins

We have not got much time for chewing, I am afraid, Professor Page.

Michael Clancy

I go back to the point about exit day. Aileen McHarg is quite correct in that it is, notionally, a day on which the provisions of this bill would come into effect. However, we have a commencement provision for that. The explanatory notes relating to exit day, at paragraph 119 on page 18, say that

“Section 28 allows the Scottish Ministers to appoint ‘exit day’, the day on which a number of provisions and powers in the Bill will come into effect. The day appointed will be the day on which the UK ceases to be a member of the EU.”

Therefore if the EUWB date of 29 March 2019 holds, we already know what the date of leaving will be and the bill should reflect that. However, what is in the continuity bill may be predicated on a belief in the Scottish Government that the date of 29 March will not be the date of exit.

Adam Tomkins

It is worth noting that that is what the explanatory notes say, but it is not what the bill provides in section 28.

Michael Clancy

Yes.

The Convener

I should say, for completeness, that the clerk has just handed me a note from yesterday’s Delegated Powers and Law Reform Committee meeting, at which the minister said that he would consider lodging an amendment to the bill to match up with the UK exit day, so there is obviously a recognition that there is an issue there and he is prepared to consider it.

Professor McHarg

I think that the provision on the supremacy of EU law is within devolved competence. We are talking about affecting only matters that are within devolved competence. I assume that Adam Tomkins’s concern is about potentially changing the hierarchy of laws so that EU law would override previous UK legislation. However, of course, this Parliament can do anything that it likes to previous UK legislation that falls within devolved areas, so that must include the ability to subject it to the supremacy of EU law.

Adam Tomkins

Professor McHarg, do you consider that this Parliament has that competence now? We are not talking about whether it would have it after exit day but about whether it has it now, because it is now that we are being asked to make this law.

Professor McHarg

That goes back to the point that I started at, which is that the temporal question of when competence takes place is arguable. If there is no potential inconsistency with EU law, that temporal question becomes redundant. However, assuming that, at some point, it can legislate on this matter—whether it be now or post-Brexit, which, of course, depends on how the withdrawal bill is enacted—I think that there would be no objection, in principle, to this Parliament providing that EU law takes supremacy over legislation from whichever Parliament enacted as of exit day.

Adam Tomkins

I have just one final supplementary question on the basis of what you have just said, which was fascinating. What authority would you cite in favour of the proposition that the temporal point is redundant in those circumstances?

Professor McHarg

It is redundant in the circumstance that there is no breach of EU law: it is simply that. I would not cite any authority—simply logic. If there is no breach of EU law, section 29(2)(d) of the Scotland Act 1998 does not bite.

Adam Tomkins

Thanks.

The Convener

Patrick, I hope that we have not missed the moment for your supplementary.

Patrick Harvie (Glasgow) (Green)

It was just a very minor point following up on the questions that Ash Denham raised about the different judgments that have been made about the competence of the Scottish and Welsh bills. I am aware that some people have reacted to the events of the past week or so as though the opinions given by the Presiding Officer and the Lord Advocate are somehow definitive rulings.

Panel members have said that there is space for disagreement and that different approaches can be taken to those questions and I want to be clear about that. Is it fair to say that there is no single approach to those questions and the balance of the arguments that could lead to the conclusion both that the Welsh bill is competent in Wales and that the Scottish bill is not competent here? Is it the use of fundamentally different approaches that gives rise to those conclusions or judgments, or is there any way of reaching both of those conclusions consistently?

Professor Page

I find what has been said both by the Presiding Officer and by the Lord Advocate to be unsatisfactory. In their written submission, Professor McHarg and Dr McCorkindale made the point that having those judgments moves the quality of debate in this institution on, in the sense that Parliament and the MSPs—you, in committees—can talk about the issues, but I am not sure that you actually have anything with which to debate effectively the question of legislative competence. I only glanced at the Welsh Presiding Officer’s opinion, but I have to say that I thought that it was fuller, more comprehensive and more closely argued than what I saw from either the Lord Advocate or the Presiding Officer of this Parliament. I do not know whether that answers your question.

Patrick Harvie

Neither do I.

Professor McHarg

To try and answer Mr Harvie’s question, I say that it is potentially the case that different conclusions could validly be reached and could be endorsed by the courts, because there are two different devolution settlements. The terms of the Government of Wales Act 2006 and of the Scotland Act 1998 are different. For the time being, they take a fundamentally different approach to the division of competence. There may be differences of detail in the two bills that make a difference, but I do not think that those are what the differing opinions that have been given by the two Presiding Officers turn on. I think that their differences turn simply on differing approaches being taken to an issue that has not been definitively settled.

James Kelly (Glasgow) (Lab)

We are in uncharted territory, in the sense that we have a difference of opinion from the Lord Advocate and the Presiding Officer, which puts MSPs in a difficult position. Bearing that in mind, as well as the public interest in the matter, what does the panel think of the Law Society of Scotland’s suggestion that both the Presiding Officer and the Lord Advocate should publish their legal advice in full?

Michael Clancy

I agree with that suggestion.

James Kelly

Now that you have kicked off, can you expand on your reasoning for that?

Michael Clancy

Characteristically, law officers do not show their working, as it were, when giving advice. The Presiding Officer is supported by an extremely skilled and able team of lawyers in the office of the solicitor to the Scottish Parliament, and he will have received the best advice that they could provide. The Lord Advocate is also supported by an extremely skilled and well-qualified set of lawyers in the Crown Office, and he too will have received the best advice that they can provide. The Law Society has taken the view not to comment on the competence issue, because it is ultimately a matter for the Supreme Court to decide, if the bill passes and if it is referred there.

Our view of asking both the Lord Advocate and the Presiding Officer to explain their thinking is based on the idea that there should be an element of transparency about the question and that we should be able to see the rationale that led to the statements by Mr Swinney and by Mr Macintosh. I know that it would be an extraordinary set of circumstances in which law officers—or, I would expect, Presiding Officers—would provide their advice, but these are extraordinary circumstances.

I can think of only two examples in the past where law officers have disclosed the advice that they have provided. The first involved Lord Hardie when he was Lord Advocate and was in connection with the bill that became the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, which was the first bill enacted and published by the Scottish Parliament. There is a point in the Official Report where Lord Hardie gives in the Parliament chamber the background to his advice on the bill. The other example that I can remember is when Lord Goldsmith gave some idea of the advice that he had given in connection with the Iraq war.

Professor Page

I said previously in answer to a question that I thought that both the Presiding Officer’s statement and the Lord Advocate’s statement were incomplete. I am therefore sympathetic to the suggestion that has been made about explanations. Normally, if the Presiding Officer says that a bill is outwith competence, that is a very good reason for the Parliament simply declining to consider the bill any further and that is what has happened to date with every member’s bill in respect of which a negative statement has been made. That is not happening with the continuity bill; the decision is to go on and consider it, notwithstanding the Presiding Officer’s advice. However, I think that it is entirely within the legitimate expectations of members of the Scottish Parliament that they should have a full view of the basis on which the differing views have been taken, which they do not have at the moment.

James Kelly

Does any other panel member want to comment on that? No.

Given that the bill, if passed, could be challenged in the courts, what can the Parliament do during its process of consideration and scrutiny of the bill to minimise the risk of any legal challenge?

Professor Page

The Parliament will want to satisfy itself fully that the bill is within competence and the only way in which it can do that is by interrogating the statements that have been made more fully than has hitherto been the case.

James Kelly

Does any other panel member have a comment on that? No.

The Convener

Ivan McKee has a supplementary question.

Ivan McKee (Glasgow Provan) (SNP)

Good morning, panel. I have a short supplementary question to clarify for me and perhaps others Adam Tomkins’s point about the dates. As far as I can see, the intent is clear in the continuity bill that the exit date that it refers to is the same as the date that is referred to in the withdrawal bill. I assume that the date is referred to in the continuity bill in the way that it is because there may or may not be a change to the date in the withdrawal bill and, however small that likelihood is, that has to be provided for so that the legislation is coherent. If there is a perceived issue there, is it not just a technical drafting issue? How should that be handled in the wording of the continuity bill to ensure that there is no scope for making the argument that Adam Tomkins has made, which is that the continuity bill is stepping outside the devolved remit by suggesting that the Scottish Parliament has some say in when the exit date is?

Professor Page

I think that that is right, but it also illustrates one of the difficulties with proceeding in this way. How do we make sure that complementary bills match up with each other? If a bill is passed by this Parliament and a bill is passed by the Westminster Parliament, how is that done? The intention here is to cater for the possibility that the exit date that is set in the withdrawal bill is changed. This Parliament can then change the date in this bill.

10:00  



Ivan McKee

I am not a lawyer, but I assume that this is not the first time that a piece of legislation has referred to something in a different piece of legislation.

Professor Page

That is not quite what I was referring to. I am referring to the underlying strategy of having complementary bills—a UK withdrawal bill and a Scottish continuity bill. On the face of it, that is a perfectly defensible idea. Why should you not do that? One question that you might like to ask, though, is, why, in that case, there have been so few such bills. How many bills can you identify that have been complementary bills? One reason why there have been so few is that it is extraordinarily difficult to get the legislatures to engage properly so that they produce the same result. There are two different legislatures legislating and no guarantee that what comes out at the end will match up.

The Convener

Yes, but we have never been in circumstances like these before.

Professor Page

You were, back in 2002.

Ivan McKee

Again, I am not a lawyer, so I am treading carefully here, but is that situation not the case now with respect to EU law, when national legislatures pass laws that refer to EU law?

Professor Page

There is no problem with the EU—

Professor McHarg

Sequencing is the problem. When it comes to the implementation of EU law, there is a completed text, so legislatures know what it is that they are implementing.

Ivan McKee

Right, so this shows that they are both—

Professor McHarg

The trouble is that, in this case, both bills are going through their parliamentary passages. We know that the legal continuity bill has been written to closely mirror the withdrawal bill to try to ensure that it works, and that means that it retains some elements of the withdrawal bill that have been criticised. It is perfectly possible that, as the withdrawal bill continues to go through the House of Lords, those elements are changed, in which case the legal continuity bill will cease to work in parallel with the withdrawal bill. Alternatively, this Parliament might make changes to the legal continuity bill that introduce new differences between it and the withdrawal bill. The fact that they are being done in parallel causes the problem with trying to maintain coherence.

Michael Clancy

Mr McKee asked whether the issue in relation to section 28 was just a technical one. It would be possible to leave out

“such day as the Scottish Ministers may by regulations appoint”

and insert

“29 March 2019 at 11:00 p.m.”,

because clause 14(1) of the EUWB says

“‘exit day” means . . . 29 March 2019 at 11.00 p.m.”.

However, even that bill makes provision for that date to be changed. Clause 14(5) states:

“A Minister of the Crown may . . . amend the definition of ‘exit day’ in subsection (1) to ensure that the day and time . . . in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”.

That is in order to take account of any further negotiations.

Ivan McKee

Can that not just be referred to in the continuity bill?

Michael Clancy

You could do that—you could refer to clause 14, which will become section 16 if the EUWB passes—but clearly the Scottish Government has taken the view that it wants the bill to be as comprehensive as it can make it.

Building on Aileen McHarg’s point about these two bills working in parallel, I have been sitting through the process in the House of Commons and the House of Lords, and it is absolutely the case that a significant number of amendments are being proposed by members in both those houses. To give you an idea of what is envisaged, there are 80 groups of amendments still to go for passage of the EUWB, which has been allocated 10 days—working on 11—in the House of Lords and five days at the report stage. That corresponds to 10 days at stage 2 and five days at stage 3. Although the Law Society may have proposed a significant number of the amendments in those groups, members are free to propose amendments as they see fit. As Lord Keen has said, the UK Government is in listening mode and, therefore, one expects that there will be amendments at report stage. If there are no Government amendments at the report stage, I expect that the members who are proposing amendments at the moment will seek to force them on to the bill.

If one is a Scottish minister, one has to be fleet of foot because, by the end of the process, the withdrawal bill could end up as quite a different measure from how it appears at the moment. It is not just the withdrawal bill, because the Trade Bill that is currently in the House of Commons makes amendments to the withdrawal bill. I could go on but I will not.

Ivan McKee

With regard to the specifics of tying up the dates, it sounds as though there is a technical solution that could work.

The Convener

I am sorry, Ivan, but it was supposed to be a supplementary question and it has gone a fair bit beyond that. There are other members who want to ask about the competence issue, but we have moved into the detail.

Neil Bibby (West Scotland) (Lab)

My question on competence has been covered.

The Convener

We move on to the necessity issue.

Willie Coffey (Kilmarnock and Irvine Valley) (SNP)

I want to ask the witnesses for a comment or two on the timing for the Scottish Government bill. Clearly, there is one view that there is an urgency attached to it and that we need to do it now, but there are alternative views that the process does not need to be so urgent or that we do not need the bill at all. What are the advantages or otherwise of the bill being introduced now, and what would be the risks of leaving it to the last minute or not introducing it at all?

Professor McHarg

The reason for treating the continuity bill as an emergency bill is to ensure that it is enacted before the withdrawal bill is enacted. There are two different reasons for that, depending on what happens with the withdrawal bill.

The Scottish and Welsh Governments’ assumption is that, if the devolved legislatures do not grant consent to the withdrawal bill, the provisions of the bill that affect devolved competence will be withdrawn and there will be gaps in relation to continuity provisions for devolved areas and ministerial powers to correct deficiencies. If there is a gap, the possibility arises of invoking the exception to the Sewel or legislative consent convention, which says that consent is normally required. We do not really know what “normally” means, but it is reasonable to say that one situation in which it would be legitimate to dispense with consent is in circumstances of necessity. For example, last November the UK Parliament passed a budget bill for Northern Ireland because it was necessary that that legislation be enacted and the absence of the Northern Ireland Assembly meant that devolved consent could not be given. In a situation in which there is a possibility of a legal gap being left for devolved competence in Scotland and Wales, there is the risk that the UK Government could say that the absence of consent from the devolved Parliaments has to be ignored.

The alternative arises if the withdrawal bill goes ahead in its current form, because that would place restrictions on devolved competence in a number of different ways. If clause 11 is enacted in its current form, that would prevent this Parliament from legislating in the future on retaining EU law. As was pointed out yesterday at the Delegated Powers and Law Reform Committee, schedule 3 of the withdrawal bill would amend schedule 4 of the Scotland Act 1998 and add the withdrawal act, as it would be, to the list of enactments that are protected from amendment by this Parliament. The Scottish Parliament would not be able to go its own way on continuity because that would all be covered by the withdrawal bill. The necessity and urgency are tactical.

Dr Hughes

There is an urgency on both the issue of continuity and the Brexit talks in general. We are moving towards the target of a full withdrawal agreement, including an outline framework on the future relationship, by autumn 2019 and perhaps it is pertinent to think of what the EU chief negotiator Michel Barnier said recently when the European Commission introduced its draft withdrawal agreement text, which was that now is the time for texts rather than for more speeches.

I do not know whether you want to come on to this in the detailed discussion, but we have not yet talked much about the common frameworks, whether there is consultation or agreement and how those frameworks would run, which are highly problematic questions. If we are going to establish common UK frameworks in some areas of agriculture and fisheries at the same time as we are negotiating a new relationship with the EU in those areas, there will also be a sequencing issue. The UK Government is extremely late in coming to any position on that future relationship. We are expecting the EU draft trade guidelines this morning, or perhaps lunch time. We are in an extraordinary political and legal process of negotiation that is not entirely consistent in terms of policy positions and therefore democratic accountability. I do not anticipate that the outcome of the process will be that Scotland and the Scottish Parliament will have a say in trade policy in the way that Wallonia does, for example, but there are interactive questions between the common frameworks and future UK positions. There is a broader urgency, which also speaks to the urgency of the continuity bill.

We could still be facing no deal territory, but if there is a deal, a withdrawal agreement and implementation bill will be introduced in the autumn. That may also cut across some of the two withdrawal bills, just to add to the complications that we have already been discussing. Transition arrangements—assuming that there are such arrangements—will be part of the withdrawal agreement, which is not likely to impact on the actual EU exit date per se, but will have an impact on timing and sequencing.

Michael Clancy

I have a quick remark about the need for proper scrutiny. There is a tension between emergency legislation, which restricts time, and the opportunity for scrutiny. The balance between speed and scrutiny can be problematic. We need to be very careful, given that in effect there is a period of three weeks to pass the bill; by any stretch of the imagination it is a significant bill with many moving parts, all of which could cause difficulties in the future.

I asked my colleague Nicola Whiteford to look at how many emergency bills had been passed by the Parliament since its inception and she found that eight such bills have been passed. The average time between introduction and enactment of emergency bills has been about eight days—that was the case in the very first emergency bill, which I mentioned earlier. Each emergency bill was focused on a single issue. That is why we must be cautious about applying an emergency procedure to such a significant measure.

The Convener

We understand that, but the Parliament has already decided that that is what it what it wants to do. Willie Coffey’s question was about the sequencing of events elsewhere and whether that meant that the continuity bill was reasonable at this stage. Have I got that right, Willie?

Willie Coffey

Yes. I was asking about the significance of dealing with the continuity bill now, as opposed to waiting until around exit day or not doing it at all. What are your views on that?

10:15  



Professor Page

It is about putting pressure on the UK Government and saying, “We are deadly serious about this issue”, with a view to either having the withdrawal bill amended as the Scottish Government would like to see it amended or, in the event that the provisions to which objection is taken are not excised from the bill, filling the gap that is left—the legal continuity bill would, at least in theory, fill that gap. Which of those things, if any, is going to happen is impossible to predict at the moment.

Murdo Fraser (Mid Scotland and Fife) (Con)

Given that we are taking evidence from the Law Society of Scotland, I remind members that I am a member of the society, although I am not currently practising.

On timing, I want to pick up on a couple of points that Michael Clancy made in his exchange with Ivan McKee on the interplay between the legal continuity bill and the EUWB at Westminster. The Scottish Government has said that the legal continuity bill is emergency legislation and it wants it on the statute book before the EUWB completes its parliamentary passage. From what you were saying, Mr Clancy, is there an inherent risk in that approach? The EUWB is likely to be subject to significant change. How can we complete the passage of the continuity bill and make it truly complementary to the EUWB, if the EUWB might be subject to further change?

Michael Clancy

It might be subject to further change; that is up to the UK Parliament. Amendments that are passed in the Lords might, through the process of ping-pong between the House of Lords and the House of Commons, be rejected by the House of Commons and not make it into the final bill that is put forward for royal assent. There is an inherent doubt in that.

In the process that is currently going on, there are six days of committee stage and five days of report stage, which in effect will take until after Easter. By the time the ping-pong is done, we will be into May or even June. At each stage, there will be the possibility of amendment. There is a risk that there will have to be some amendment to the legal continuity bill as a result of what happens to the EUWB.

I take the point that the Parliament has agreed that there should be emergency legislation. I was not trying to argue that the legal continuity bill should not be considered as emergency legislation; I was simply making the point that speed and scrutiny are two things and the fact that there might have to be some amendment to the legal continuity bill is yet another issue to be considered.

Professor McHarg

On the impact of amendments to the withdrawal bill, I think that we have to distinguish between two different scenarios. There is the scenario in which a lack of symmetry between the two bills—there already is a lack of symmetry, in some respects—is a problem, in so far as it causes complexity.

There might be a different scenario, in which amendments to the withdrawal bill cause problems of effectiveness or workability. Those changes would be more problematic. Changes might be made to the withdrawal bill that render the approach that is taken in the continuity bill unworkable—as opposed to amendments that increase the complexity that arises from there being different approaches in devolved and reserved areas. The latter kind of complexity is a problem in itself, but to my mind it is things that are done that will mean that the continuity bill simply will not work that are more serious.

Murdo Fraser

Mr Clancy’s point was that the Scottish Parliament might complete the passage of the continuity bill but that, with subsequent changes to the withdrawal bill, we might subsequently have to revisit that legislation. Do you have a view on that?

Professor McHarg

There are regulation-making powers are there not? Mr Clancy, am I right in thinking that there is equivalence to the powers in clause 17 of the withdrawal bill? There are certainly some regulation-making powers. Section 34—

Michael Clancy

Yes, section 34 of the legal continuity bill says:

“Schedule 2 contains consequential, transitional, transitory and saving provisions.”

We would have to look at the issues a bit more closely in order to give a definitive opinion, but I think that it would be possible to change some aspects by virtue of regulations. However, as Professor McHarg has pointed out, if an amendment to the EUWB creates a significant change that causes a knock-on effect for the legal continuity bill, that creates an enormous difficulty for the functioning of the measure. There are also the time issues that affect this bill. If it is passed in this Parliament, it will then be sent to the law officers, who might take a different view about its future.

The Convener

I am not saying that anyone on this committee supports this position, but is the inevitable conclusion of that argument not that ministers should take more powers for regulation in order to deal with that potential situation, which would leave less time for scrutiny?

Michael Clancy

It would leave less time for scrutiny.

The Convener

But that flexibility would allow ministers to sort things out if the problem that has been described were to emerge, would it not?

Michael Clancy

Yes.

Murdo Fraser

I read the Law Society’s submission last night. It highlights a large number of areas of concern in relation to which you believe that the bill requires amendment. The introduction says:

“the Scottish Government should be permissive with suggestions to improve or clarify the bill as it passes through the Parliament.”

Clearly, your view is that the bill requires substantial amendment in order to be fit for purpose and to be good law.

Michael Clancy

In some respects.

Murdo Fraser

Under the emergency legislation procedure, the deadline for lodging amendments is this Friday. Does that give the Parliament time to create good law and ensure that the bill gets the proper scrutiny that it requires from all of those who might be interested in it? Is that sufficient time for amendments to be properly drafted, lodged and considered?

Michael Clancy

I have drafted some amendments, and I think that other people who have been thinking about amending the bill will have been doing that since the bill was introduced. I have every confidence that the Parliament will rise to the occasion and that members will give the bill the proper scrutiny that it requires and amend the bill if it needs amendment.

Neil Bibby

Here at stage 1, we are discussing the necessity for the legislation and the principle of legislating on this issue. The reason for legislating is that there is no agreement on the withdrawal bill. However, the Parliament and the public do not know what the areas of disagreement are between the UK Government and the Scottish Government—reportedly, there are 25 of them. Yesterday, at the Delegated Powers and Law Reform Committee, Michael Russell said that he could not publish those areas because he did not have agreement from the UK Government. Do you think that that is an acceptable and sustainable position? Do you agree that the Parliament and the public should know at this point what the areas of disagreement are, given that they are the reason for this legislation being introduced?

Professor Page

I would agree with that. That follows on from what has been said previously in relation to opinions of the law officers and the Presiding Officer. There is a massive imbalance or asymmetry of knowledge surrounding this process. An intergovernmental negotiation has been conducted behind closed doors and there have been various statements in the press that may or may not be well founded.

I have said previously that, as an outsider, it is impossible to know what is going on. I wonder to what extent members of this Parliament are better informed. We started with 111 EU powers that intersected with the devolution settlement. Where have we got to in relation to that? What are the 25 outstanding ones? That is what the argument is about. It is not satisfactory, but it suits the minister to say, “I can’t say because I need to get agreement from the others,” and, “Oh, yes, Friday is the date for amendments”; and the final comment might be “Sadly, I couldn’t get it to you in time.” None of that is good enough.

Professor McHarg

As a general point, the intergovernmental negotiation of amendments to bills affects the normal legislative process quite significantly. If amendments are agreed to and therefore made to the withdrawal bill, I imagine that the UK Government will be extremely resistant to any attempt to amend them as the bill completes its passage through the UK Parliament. I agree that this is not a desirable situation to be in. I would like to know more about what is going on. However, it is not surprising in the context of intergovernmental negotiations. This is what happens: they sideline Parliaments and empower executives.

Dr Hughes

I agree with what Alan Page said. I think that transparency is highly desirable and democratic. As people have said this morning, in the quite extraordinary circumstances that Brexit is creating and in this particular constitutional stand-off, transparency is certainly desirable. I do not mean to keep referencing the approach of team Barnier, but what they have done since last summer has involved an extraordinary degree of transparency in publishing negotiating documents and positions. That has been enormously helpful for both sides in understanding this extremely difficult and, in my view, damaging process.

Michael Clancy

From the very beginning we have advocated that there should be a whole-of-governance process that should include not only the UK Government and the devolved Administrations but civic society generally. I can say only that Kirsty Hughes is absolutely correct, because the website that the European Commission has set up for its task force on article 50 negotiations allows us to see all the documents in quick order, although some of them are rather more truculent than others—if we look at an agenda of a meeting, we might see that it is not exactly what we would understand to be a full agenda. It is very important that there should be as much transparency as possible, which is unfortunately not the case at the moment.

Adam Tomkins

I think that the question that I wanted to ask in this section of our discussion has already been covered by Professor McHarg. It was a question about the extent to which all this talk about exceptional circumstances, abnormal circumstances and so on means that, in effect, the Sewel convention no longer applies to the passage of the withdrawal bill, because the Sewel convention applies only in normal circumstances. However, I think that Professor McHarg has already covered that. Thank you.

Professor McHarg

I do not think that that is exactly what I said, but nice try.

Adam Tomkins

In that case, would you like to clarify it for the record? The question is to what extent the members of the panel think that the Sewel convention continues to apply to the withdrawal bill, given that the minister said last week, when he moved the motion, that the continuity bill should be fast tracked because

“this is a ‘novel’ situation. In normal times, such a bill would follow a normal timetable, but these are not normal times.”—[Official Report, 1 March 2018; c 29.]

In my view, that seems to be a concession by the Scottish National Party that the Sewel convention no longer applies to the withdrawal bill.

10:30  



Professor McHarg

It depends on how we understand “normal”. As Adam Tomkins will know, conventions are normative statements and are not descriptive statements. Descriptively, we are of course in abnormal times, but that does not necessarily mean that, as a normative statement of a constitutional rule, the “normally” exception to the Sewel convention can be invoked.

There is little discussion and little experience of what that “normally” exception means under the Sewel convention, but in my view it can either be invoked in circumstances of necessity—which may arise if there is a potential gap on the statute book in relation to the continuity of EU law in devolved areas, although we are not there yet—or in circumstances where a devolved legislature is clearly attempting to abuse its powers. In Harry Calvert’s work on the constitution of Northern Ireland, which I am sure you are familiar with, he talks about the legitimacy of overriding the predecessor of the Sewel convention in circumstances where the Northern Irish Parliament was abusing its powers, in the context of discriminating against the Catholic minority. You can make an argument for reading the “normally” exception in those two circumstances, but it is important to say that “normally” is a normative statement, not a descriptive one, so the fact that we are in unusual times does not necessarily, by itself, justify overriding devolved consent.

Professor Page

I assume that the convention continues to apply, if only because the possibility has not been ruled out that this Parliament will consent to the European Union (Withdrawal) Bill. We have not reached a definitive conclusion on that yet, or at least that is my understanding, so I think that it continues to apply for the moment.

James Kelly

I have a question on timing. Bearing in mind the Scottish Government’s argument for treating the bill as emergency legislation, it needs to be passed before the withdrawal bill is passed at Westminster. I know that there are some disagreements about that, but if we accept that for the minute, and note that we have already agreed to process the bill as an emergency bill—bearing in mind the points that have been made about the importance of scrutiny and the fact that, as Michael Clancy has said, it will be at least May or June before the withdrawal bill is passed at Westminster—is there not a case, within the confines of still treating the continuity bill as an emergency bill, for at least extending the timetable into April, to allow more transparency and scrutiny, and to give MSPs proper time to consider the significant issues that are at stake?

Professor McHarg

You would have to bear in mind the four-week period between the Parliament passing the bill at stage 3 and its gaining royal assent. I cannot comment in detail on how the parliamentary timetable works, but that four-week period has to be taken into account.

James Kelly

Is there not a similar process at Westminster?

Professor McHarg

No.

Michael Clancy

No. Once a bill has passed both houses of the UK Parliament it goes on to receive royal assent without the need for any four-week lying period during which law officers check it or may have a view on it. That is a significant distinction between the ways in which UK legislation and Scottish legislation work.

James Kelly

Bearing that in mind, and building on your earlier answer, can you give an indication as to what you think the timetable would be for the passing of the withdrawal bill at Westminster?

Michael Clancy

I think that I had indicated that there would be 10 days for the committee stage—we are already at day 4, so there are six days left—before going on to five days for the report stage. That takes us through the Easter period and well into April, and then in May there is a recess, so things might have to be done quickly. The ping-pong between the houses is the essential issue here, and that can be a long ping-pong or a short ping-pong.

How that would work is that members of the House of Commons would seek to make amendments to the bill, which may or may not be agreed to by the House of Lords. They could take a little while to get through; one estimate is that the EUWB might be law by the end of June.

Ivan McKee

Are you saying that, although it could be the end of June, it could be a lot earlier if things go smoothly?

Michael Clancy

Yes.

Ivan McKee

What is the panel’s reflection on the discussion between the Scottish and UK Governments? We have heard that it has come down to whether one word should be “consent” or “consult”. That is probably a simplistic way to put it, but that line has traction. It might sound in the public realm as if the Governments are very close and coming closer together, but in reality the issue is much more fundamental and substantial because it comes down to the devolution settlement and which Government has authority to legislate in particular spheres. Do you agree that, if that fault line remains, that means there is a fundamental distance between the two parties?

Professor Page

There certainly is a difference between “consent” and “consult”—there is no question about that. However, going back to what we said earlier about the complete lack of transparency surrounding the process, we know that what has been described as a “considerable offer” has been made by the UK Government and rejected by the Scottish Government, but we do not know what that offer is: we have not seen it or any form of words. As we said earlier, apart from recognising that there is still a fundamental disagreement, it is very difficult to get any sense of the source of the disagreement, what exactly it is about or where it lies.

Ivan McKee

If that distinction remains and the parties have not agreed on which of those two words to use, is that really the fundamental issue?

Professor Page

The bottom line is that the Scottish Government insists—and has insisted from the outset—that any common frameworks or those powers that are governed by common frameworks should be a matter for agreement between the two Governments or between the two legislatures. That is the “agree” part of your formula, and that is clearly different from the UK Government saying, “This is what we are going to do. We will consult you about it, listen to what you say and then go ahead anyway.”

Dr Hughes

There is obviously a big difference between “consent” and “consult”. If that discussion was opened up as Professor Page has said, to have a serious and substantive discussion of how common frameworks and the decision-making process would work, that would be more illuminating and more democratic. It does not necessarily have to be a stand-off between saying, “We are going to consult through the existing joint ministerial committee structures,” and saying, “You are demanding a veto and we are not going to give it to you.”

We would have to look at intermediate procedures. Professor Michael Keating made that point in a blog that he wrote some time back. The single market at the EU level has developed complex procedures for how to agree common EU frameworks, including qualified majority voting. However, it would be a completely new constitutional step for something like that to be established in the UK, so I am not particularly suggesting that. I am trying to show that there are gradations, which would be quite complex and constitutionally challenging to set up. It seems that we are, instead, in the realms of a rapid and messy compromise—or no compromise—that is being debated largely behind closed doors. The issue is not only the distinction between two words but the potential to consider what arrangements there could be to draw some graduated line between them.

Professor McHarg

I think that Mike Russell said last week that the UK Government will publish its amended text next week. It will be easier to comment once we have seen that, although it remains to be seen whether that happens.

Emma Harper (South Scotland) (SNP)

Good morning, everybody. It is interesting that you bring up the point about agreement versus consultation, Professor Page. That is important.

I am interested in the parliamentary scrutiny under the continuity bill compared to that under the withdrawal bill. Does the continuity bill go further in allowing parliamentary scrutiny of subordinate legislation? Will we have a greater ability to scrutinise if it progresses?

Professor McHarg

The answer to that is yes. There are two ways in which the scrutiny provisions are better than they are for devolved issues under the withdrawal bill.

In the first place, the legal continuity bill provides for a super-affirmative procedure for some types of regulation. That would require that regulations be laid in draft for 60 days rather than 40 days and that there be mandatory consultation with the Parliament and other interested parties. Therefore, there is a heightened scrutiny provision.

The other way in which scrutiny is improved is that the explanatory statement requirements, which were added to the withdrawal bill in the House of Commons but, under that bill, apply only to UK ministers, are applied in the continuity bill to devolved ministers.

Those are the two improvements in scrutiny provisions. There are also changes to the scope of the powers. They are subject to a necessity test, at least in part, and there are more substantive constraints that place limits on how the provisions can be used.

Professor Page

Bear in mind the fact that the withdrawal bill says nothing about the scrutiny that should be applied to the exercise of powers by the Scottish ministers. In effect, it leaves that question to the Scottish Parliament. I am not aware that anything has been said about what the Scottish ministers propose in the event that they end up exercising powers under the withdrawal bill rather than under the continuity bill. However, one would expect what is proposed in the continuity bill to apply to the exercise of powers under the withdrawal bill if that is the position in which we end up. In other words, this is the first sight that we have had of the kinds of scrutiny that might be applied regardless of which bill the powers are exercised under.

Michael Clancy

I will pick up on the point that Aileen McHarg made about the regulation-making power. It is improved in part, but let us look at section 11 of the continuity bill, which talks about dealing with deficiencies in devolved EU law when it is transposed—deficiencies such as mentioning EU agencies.

If ministers consider that there is a failure or deficiency and that it is necessary to make provision,

“they may by regulations make such provision as they consider appropriate for that purpose.”

However, if

“it is necessary to make provision for the purpose of preventing”

the deficiency or failure, it must be the case that the Scottish ministers make such provision as is necessary for that purpose. The issue of necessity has to flow through to both aspects. We talked about that when we considered the EUWB. The same point arises for ministers of the Crown under clause 7 and for the Scottish ministers under schedule 2 of that bill. The issue is still to be picked up on.

Professor Page

I disagree with that. We are agreed on question number 1 and that it can be necessary to make changes, but what changes are appropriate? It would be perfectly possible to separate those two things.

Michael Clancy

I take the point, but it is also a discretion for the Scottish ministers to make the necessary arrangements, and that might need to be considered.

10:45  



The Convener

Okay. We are not in a debate, so we will move on.

Emma Harper

I am just trying to be clear that the continuity bill will have an advantage in that it will allow further scrutiny of secondary legislation, whereas the withdrawal bill does not have that provision.

Professor McHarg

Yes, but it will also create additional delegated powers. There is an entirely new delegated power in terms of keeping pace with post-exit developments in EU law. That is something to bear in mind. The powers that have been taken across from the withdrawal bill are narrower, but that is balanced by the entirely new power.

Professor Page

A criticism of the withdrawal bill is that it involves a massive arrogation of powers enabling ministers to make laws at the expense of Parliament, which is justified by the scale of the challenge that is faced. Exactly the same criticism can be made of the continuity bill in relation to the powers that are being taken by the Scottish ministers to deal with the challenge.

Patrick Harvie

I have a question.

The Convener

I will come to you in a moment, Patrick, but I must bring in Alexander Burnett first, because he has not had an opportunity to ask his question yet.

Alexander Burnett (Aberdeenshire West) (Con)

My brief question is on cost and is probably for the minister. Does the panel have any views on the cost of the legislation and whether there is any precedent for a bill to be passed in the absence of such detail?

Professor Page

No.

Alexander Burnett

You are shaking your heads. Does that mean that there is no precedent?

Professor McHarg

No—I have no view on that.

Alexander Burnett

What about Dr Hughes?

Dr Hughes

I do not have a view on that.

Alexander Burnett

It was a brief question.

Patrick Harvie

I have some questions on scrutiny under the powers that will be created by the bill. We can make a comparison with the withdrawal bill and we can judge the bill on its own terms, asking whether we can improve what is proposed.

Would it be reasonable to suggest that, as well as specifying particular types of regulation that ought to be subject to the affirmative rather than the negative procedure or the super-affirmative rather than the negative procedure, there ought to be some kind of sifting mechanism for Parliament to require Scottish ministers to publish a draft of an instrument and for Parliament to decide whether a measure needs to be bumped up from negative to affirmative or from affirmative to super-affirmative?

Professor Page

Yes.

Michael Clancy

Yes.

Professor McHarg

Yes.

Patrick Harvie

Would that be best done by a specific sifting committee, or should the job be given to subject committees of this Parliament? Would the process be any different from simply lodging a motion to annul a negative instrument, thereby requiring greater discussion of the instrument?

Professor Page

What is crucial—this was referred to yesterday—is the scale and timing of the subordinate law-making programme that allows us to know what is being talked about and roughly when. Possibility number 1 is to have a committee that is responsible for looking at that programme and saying which instruments deserve a heightened degree of scrutiny, possibly in consultation with subject committees. Another possibility is to leave it all to subject committees. However, I suggest that a dedicated committee would be the right way to go about it.

Michael Clancy

Yes, it would probably be best to have a dedicated committee that would be focused on the instruments. The instruments will have a different character from the ordinary instruments that members will come across in other contexts.

From the very beginning of the process, we have been talking about the important issue of proper consultation on the draft orders, and time is now getting very short. For UK ministers to wait until the EUWB becomes law before starting consultation on draft orders is a waste of time, because departments are drawing up draft orders even as we speak. I would address the same point to the Scottish ministers to ensure that there is proper consultation on the draft orders as soon as possible.

Patrick Harvie

Is that regardless of what happens with this bill or with the withdrawal bill?

Michael Clancy

Yes.

Dr Hughes

Can I make an additional point? It follows on from what has just been said and applies to both the withdrawal bill and the continuity bill.

As a number of the Westminster select committees have said, simply transposing EU law will not work very well in many cases, not least in the environmental area, unless we have the appropriate regulatory structures and agencies as well. There are major timing questions around how to establish those and decide how they will function during the transition period. If there is a deal, there will, we presume, be a transition period, but that is currently being debated as lasting until December 2020, which is a very short time.

Patrick Harvie

I have a couple of other points on scrutiny. In section 31, the power is created for ministers to introduce regulations under urgent cases without prior approval by Parliament—an instrument would subsequently be laid before Parliament, which would be required to pass a resolution. Is that adequate, or is there a case for giving Parliament an emergency brake on that power, to suspend it if we feel that it has been misused? Should we instead perhaps require a time limit between the making of an order and its being laid before Parliament, which I do not think is included at the moment?

Michael Clancy

The Law Society has criticised the analogous provision in the EUWB, because it will give ministers a significant amount of power. It would be useful to discover what would be considered to be an “urgent case”. The provision in section 31(2) is for cases when

“Ministers consider that, by reason of urgency, it is necessary to make the regulations without”

their “being subject to” affirmative procedure. What are the parameters of that “urgency”?

The Convener

It could perhaps be because of an unexpected change to the withdrawal bill.

Michael Clancy

That might be a reason, convener. That is very perceptive of you: you might suggest it as an amendment. However, once we start describing “urgency”, it would become a matter of what has not been included in the list.

Patrick Harvie

Another area of concern is section 17, which gives Scottish ministers the ability to consent to regulations that are made by the UK Government. Should that consent power lie with Scottish ministers or with the Scottish Parliament?

Professor Page

I have already said in my written submission that I think that that power, or that attempt to fetter the powers that would be granted by the withdrawal bill to UK ministers, is open to objection. We need merely to imagine the converse situation, in which an amendment to the withdrawal bill is passed that says that all the powers that the continuity bill proposes to confer on Scottish ministers should be subject to the agreement of UK ministers. How would this Parliament react to that? I think that those powers should be subject to the consent of the Scottish ministers—and in some cases the Parliament, as well. However, as I said, I think that the way to achieve that is by amendment of the withdrawal bill, rather than by trying to use the vehicle of the continuity bill.

Patrick Harvie

If the continuity bill is passed by the Scottish Parliament and it includes provision for consenting UK-made regulations that touch on devolved areas, is there a reason why that consent should be given by ministers alone, without the consent of the Scottish Parliament?

Professor Page

That would vary from case to case. One can imagine cases in which you would want parliamentary consent, as opposed to ministerial consent alone. I do not see why not.

Patrick Harvie

I cannot think of any cases for which ministerial consent alone would be enough. Can you?

The Convener

I am sure that the minister will be able to speak to that.

Professor Page

I am not going to object to heightened scrutiny.

Patrick Harvie

Okay. Unless anyone else wants to comment on that, I will move on to questions on EU principles.

The Convener

Before you do that, I think that Neil Bibby has a question on the detail.

Neil Bibby

My question is on the power in section 13 to use secondary legislation to incorporate new EU law, on which we have touched. Professor Page’s submission states that an approach in which ministers take such a power is

“a potentially major surrender by the Parliament of its legislative competence, and one which under the Bill as introduced may be extended indefinitely.”

I am concerned by that comment. What do you mean by

“major surrender by the Parliament”?

Professor Page

The approach would simply leave to ministers the discretion to decide which EU instruments to give effect to in Scotland. At that point, Scotland and the UK will no longer be a member of the European Union. Frankly, I would be astonished if we were to surrender—I chose the word “surrender” deliberately—the competence of this Parliament not just to Scottish ministers but to institutions in whose deliberations we would have absolutely no voice. If we are going to do that, the matter should be properly discussed, argued and decided. That is my objection to—or, rather, my surprise about the provision.

Neil Bibby

Thank you. The Government has said that there are similarities between the continuity bill and the withdrawal bill. The approach might concern people who are concerned about parliamentary scrutiny and legal certainty.

What are the other witnesses’ views on the appropriateness of the power in section 13? Could the section be interpreted as a power grab by the Scottish ministers? Why should the period when the power can be exercised be extended after five years, as is proposed?

Professor McHarg

The obvious analogy to draw is with the power in section 2(2) of the European Communities Act 1972, which gives ministers the power to implement EU obligations by secondary legislation. As Alan Page said, that approach will be much harder to justify if we are not a member of the EU. If the provision is simply a way of allowing ministers more easily to implement changes that they think are desirable, it is quite hard to justify. However, if we get into a situation in which, as a consequence of whatever deal we negotiate for withdrawal, we actually have to keep pace with developments in EU law in certain areas, some kind of keeping-pace power will be much more justifiable.

As with much of this stuff, it really depends on the post-Brexit constitutional landscape and the relationship with the EU. What those look like will affect the justifiability of the power.

Dr Hughes

The provision provides for rather a bizarre situation. Let us consider the European Economic Area. Norway has been called a “fax democracy”, and its own review of the operation of the EEA said that there is a major democratic deficit. As Professor Page has said, at least in the EEA there is some ability to comment on EU law, although it is really rather minor compared with the ability of an EU member state, in that regard.

On the other hand, Scotland would not be obliged—depending on what the final Brexit deal says—to implement EU law, so I suppose that doing so would be optional and one could pick and choose. However, why should the Scottish Government and not the Scottish Parliament decide that?

As I said, at the moment we are heading for a free trade agreement, with perhaps a Canada-style deal. What would happen if Westminster were to vote for a comprehensive customs union with the EU? Would that cover agriculture and fisheries? What if we were to add the single market to that? That would transform the context of this debate. At best, it is a rather curious or, at worst, a strange power to give to the Scottish Government but not to Parliament.

11:00  



The Convener

Is that sortable? The situation might be unusual, but if such circumstances were to arise, the Government might say that it had to agree with Parliament on the legislative process to be used. It would then have to agree with Parliament whether secondary or primary legislation would be required for the change.

Michael Clancy

The provision allows for the Scottish ministers, by regulations, to make—

The Convener

I am suggesting that if that provision were to be amended—

Michael Clancy

If the provision were amended, I would advance—in response to Mr Harvie and Mr Bibby—that Parliament would have to have the central role. If, in the future, once the UK has left the EU, the Scottish ministers wish to adopt provisions in EU regulations and other aspects of EU law, the appropriate way to do that would be to have regard to the EU legislation and then to introduce Scottish legislation that matches it in the appropriate respects, provided that that is within devolved competences. That could be done today—let us say with the EU Succession Regulation (EU 650/2012), to which the UK has not opted in. We could create law in Scotland that looks like the succession regulation. That would be where I would park the matter.

The Convener

Does Professor Page want to say any more on that?

Professor Page

No. I think that there is consensus that the provision is a thoroughly bad idea.

The Convener

Fair enough. Patrick Harvie has a question on a different subject. If I have got things right, this will be the final question, unless there are any supplementaries.

Patrick Harvie

The start of section 5 of the continuity bill sets out that

“The general principles of EU law and the Charter of Fundamental Rights are part of Scots law on or after exit day”.

That is one of the areas of difference between the continuity bill and the withdrawal bill.

We have seen significant debate at Westminster about the extent to which the withdrawal bill is acceptable and, in particular, the extent to which some of the environmental principles of EU law should be specified and set out, in relation to matters such as the polluter pays principle, the precautionary principle and issues of animal welfare and sentience. Is the approach in the continuity bill clear and adequate in saying merely that the general principles and the charter will apply? Does it need to—or is there a case for it to do so—go into more detail about what the principles are and how they should apply?

Professor McHarg

The starting point is to highlight that the important difference between the two bills is probably not about direct incorporation of the charter of fundamental rights, because there is an argument that the rights that are contained in the charter—in so far as they are justiciable—are incorporated by the withdrawal bill anyway. It is—arguably, at least—really a question of accessibility rather than of substance.

However, there is a very important difference between the bills in relation to section 5(2), which for Scotland and devolved matters would retain “a right of action” based on

“failure to comply with ... the general principles ... or the Charter”

of fundamental rights. That is missing from the withdrawal bill: that is, to my mind, the much more significant issue. Without a right to bring actions based on charter rights, the charter’s being incorporated will not make a huge amount of difference.

Patrick Harvie

In relation to the principles of EU law, section 5(3) says that section 5(1)

“applies in relation to a general principle of EU law only if it was recognised as a general principle of EU law by the European Court in a case decided before exit day”.

Is it the case that some things are so widely regarded as being general principles of EU law that they have never been brought in a case? Do we need to specify what we mean by those principles, or can we rely on that definition to have full effect?

Professor McHarg

Subsidiarity?

Professor Page

In response to Patrick Harvie’s initial question, I was sympathetic to the idea that there is a case for elaborating on or explaining what we mean by the general principles. On the question that he has just asked, it is highly unlikely that there are general principles that have not been recognised in judgments of the Court of Justice of the European Union.

Michael Clancy

In our submission, the Law Society says that we believe that it would be helpful if the Government were to set out which general principles are to be retained in Scots law. We enumerated fundamental principles including proportionality, subsidiarity and so on. However, I agree with Alan Page that it is unlikely that there is a general principle of which we are not aware.

Professor Page

Patrick Harvie’s first question went further, in that he talked about principles of environmental law and so on, which will need to be separately provided for: I do not think that they would be covered by the idea of the general principles of EU law.

Patrick Harvie

Finally, there is a flipside to the argument. Michael Clancy just mentioned subsidiarity. Even though we might say that that principle has never been applied as rigorously or as clearly as was intended, I would still regard it as a loss if we did not have it recognised at some level. However, does it make any sense for it to be recognised in Scotland but not at UK level? Does subsidiarity mean anything if it does not apply throughout the UK? How could it apply at only one level of government?

Professor McHarg

Well, we have more than one level of government in Scotland—

Patrick Harvie

Just about.

Professor McHarg

Subsidiarity could be invoked by local authorities to protect their spheres of competence. I do not know whether it has been used in that way. At EU level, it is about the relationship between EU law and member states. The principle is that decisions should be taken at the lowest appropriate level, so it is potentially more broadly applicable, but that would probably require some creativity on the part of our courts after Brexit.

Patrick Harvie

Thank you.

The Convener

Thank you very much. That concludes this session, which has been very good and has covered a lot of ground. I am very grateful to our witnesses for coming along at short notice.

I suspend the meeting for about 10 minutes, to allow for a change in witnesses, after which we will hear from the minister.

11:07 Meeting suspended.  



11:17 On resuming—  



The Convener

For our second evidence session today on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, we are joined by Michael Russell, the Minister for UK Negotiations on Scotland’s Place in Europe. He will be supported by a range of officials: Alison Coull, Graham Fisher, Luke McBratney and Jenny Brough. I will not read out what they all do as I am trying to save some time. Nevertheless, I welcome them to the meeting.

Mr Russell, I invite you to make an opening statement.

The Minister for UK Negotiations on Scotland’s Place in Europe (Michael Russell)

I really have no statement to make. I think that everyone knows my position on the bill by now; I am quite happy to respond to any questions that members have.

The Convener

We will cover three main areas: competence; the necessity of the bill; and the detail of the bill.

Can you explain why, in the light of the Presiding Officer’s statement on legislative competence, it remains the Scottish Government’s view that the bill is within competence?

Michael Russell

I will invite my colleagues to go into some of the legal detail if you wish, but I thought that the previous panel—which I watched with great interest—expressed the issues very well. There is a genuine difference of opinion—in an atmosphere of respect—between the view of the Presiding Officer and the view of the Lord Advocate. The Lord Advocate has indicated what the Scottish Government’s view is, as is his function and as he is entitled to do under the ministerial code. There is also a range of other views. The Welsh Presiding Officer has a view on the bill that has been presented to the Welsh Assembly, and I heard the members of your previous panel give differing views.

Those who framed the Scotland Act 1998 anticipated this circumstance. Although the circumstance is unique, it was not unanticipated that there could come a time when there was a difference of opinion between the Government and the Presiding Officer. Indeed, there has been academic study of the matter: in 2017, McCorkindale and Hiebert considered the issue in a very interesting paper in the Edinburgh Law Review.

In circumstances in which there is a disagreement—as there is at the moment—the Government is permitted and entitled to bring in its bill, which is what has been done. The debate will no doubt continue. Unsurprisingly, I side entirely with the advice that the Government has had from the Lord Advocate—I think that some of that was well explained by others today. Professor Tomkins has taken a different view, and is supporting the view of the Presiding Officer. We move forward on that basis.

In terms of the central issue of compatibility with EU law and the necessity that is laid upon us, it is, in a logical sense—I was struck by Professor McHarg’s appeal to common sense—difficult to understand how we could fail to legislate in this way, up to and including on the afternoon of 29 March 2019. Failing to do so would place us in an unreasonable position, but that is the implication of those who set themselves against our position on the particular issue of competence.

The debate is a genuine one, and it will continue. Obviously, it will have to be conducted between lawyers, experts, laymen such as myself and others.

Ash Denham

Earlier this morning, we spoke about the incompatibility argument. The Lord Advocate advanced that argument last week, when he said that, if the Scottish continuity bill is incompatible with EU law—because it contemplates a post-Brexit scenario and departure from EU law—the same would apply to the UK’s withdrawal bill. However, if you watched the earlier session, you will have seen Professor Page say that he thought that the issue hinges on the question whether the Scottish Parliament has the power to enact the continuity bill. He said that, if it does, the bill is within competence. What is your view on that?

Michael Russell

I believe that the Scottish Parliament has the power to enact the legislation, and that is where I stand.

Professor McHarg, I believe, drew attention to another telling point that the Lord Advocate made. Provision is made for the orderly withdrawal from the EU of a member and, therefore, actions that are taken to facilitate that orderly withdrawal cannot be contrary to EU law, because provision is made for those circumstances. As one of the legislatures of these islands, we are in that position.

However, there are differences of opinion on that matter, and my weighing in again to repeat the opinion of the Lord Advocate and the advice that I have had from him does not take us very far. There will continue to be a difference of opinion on the matter right through this process, and we will have to live with that.

The situation was allowed for in the Scotland Act 1998. That is an extremely important point. The people who framed the 1998 act clearly anticipated that it was a possibility, which means that we are, essentially, operating with a rule book. We are doing what we are allowed to do. At the end of the day, there might or might not—again, there will be a difference of opinion on this—be a reference to the Supreme Court. I hope that that does not happen but I would also say that I did not want to be in this position. I made that clear last week in the chamber and I make it clear again today. I would rather not be in this position, but this is the position that we are in and, therefore, we accept it.

Ash Denham

We are in this position because the UK Government has still failed to move that extra bit forward. If it did so, it is obvious that the Scottish Government would consider withdrawing the continuity bill. In The Times yesterday, a UK Government spokesperson said that they did not think that the UK Government would move in that regard. How likely do you think it is that it will do so?

Michael Russell

Fortunately, I do not undertake my negotiations on the basis of what The Times, The Scotsman or The Herald publishes on its front pages. If I did so, I would be blown by every wind that blows.

Our position is clear. On Sunday, I said in a television interview—I was in Colintraive, speaking through a blizzard—that, no matter the circumstances, I would continue to negotiate, and that the basis of that negotiation would involve respecting the devolved settlement, which requires our consent in terms of the frameworks. The words “consent” and “agreement” are important. That remains my position. Tomorrow afternoon, Mark Drakeford and I will be at the joint ministerial committee (European Union negotiations), and we hope to bring further ideas and thoughts to bear on the issues. We will continue to have that conversation.

Adam Tomkins

Did you hear what Professor Page had to say about the issue of competence and compatibility with EU law being, in his words, something of a “red herring”. Do you want to reflect on that?

Michael Russell

I heard what Professor Page said. I want to reflect on it, but probably not instantly, as I want to study what he said. We take into serious consideration the views of experts in this field, and your views, too. Your exchange with the Lord Advocate last week was significant, and we understand how significant the issue is. I do not know whether either of my legal colleagues would like to reflect on what Professor Page said, but we will certainly consider it. I heard his views.

Adam Tomkins

I want to press you on two specifics. We all understand that acting compatibly with EU law is not the only constraint on our legislative competence. We are also required to act only within devolved competence and not to trespass on reserved functions, as provided for in schedules 4 and 5 to the Scotland Act 1998.

A couple of specifics in the continuity bill have been raised as examples of provisions that appear, at least on one reading, to trespass on reserved functions. The provision in the bill that enables Scottish ministers to set a different day from 29 March 2019 as exit day is one example, and the whole of section 6, which provides for limitations to the on-going status of the principle of the supremacy of EU law in Scots law after exit day, appears to be another. They are examples of provisions in the bill that trespass on reserved competence and, therefore, it is incompetent for this Parliament to pass them.

I asked the Lord Advocate about that last week, but he declined to answer with any level of specificity. Are you or your officials prepared to walk me through the reasons why, in the Scottish Government’s view, those provisions, and others like them, are within and not outwith competence?

Michael Russell

Let me deal with the overall question and then I will deal with the specific items. I will ask Alison Coull to talk about section 6, which she is better qualified to do than I am.

The overall principle is that we do not believe that the bill relates to reserved matters—that is our clear position. For example, an objection has been raised that the bill relates to reserved matters and international relations, including relations with the EU, but it does not. It is about domestic law. The international relations reservation contains an express exception concerning the implementation in domestic law of international obligations under EU law. That is what the bill does: it is designed to deal with the implementation in devolved areas of the UK Government’s decision to leave the EU. The purpose of the bill is to make provision within the legislative competence of the Scottish Parliament that is consequential to the decision of the UK to withdraw, so our view is that it is within competence.

On the specifics that you raised, I very much feel that we are damned if we do and damned if we don’t when it comes to exit day. It was a huge issue in the passage of the withdrawal bill through the House of Commons. There was strong pressure to put the date itself into the bill, so the date was put in, and then a group of people from the other side of the argument swept in and said that it should not be there.

The compromise in the provision—it might have been Michael Clancy who quoted it in evidence to the committee—is that it gives the date, but it also gives ministers the power to amend the date. I am more than willing to look at an amendment that does exactly the same sort of thing, as I confirmed to the Delegated Powers and Law Reform Committee. The convener referred to that earlier. It is not our intention—indeed, we do not believe that we have the ability—to set a different date. We are not in that business. I do not believe that the bill is outwith competence but, if it is possible to improve it in that way, we will do so.

Adam Tomkins

The ability to move the date is a function that is reserved to ministers of the Crown.

Michael Russell

We recognise that reservation quite easily because we are not endeavouring in the bill to make a power to set a date, including a different date. We accept that that date will be set by the UK Government. We come down to a dispute on the head of a pin as to whether the date could be changed. I recognise that the date will be set by UK ministers and that we will not set it. We are not endeavouring to shove it into the bill somewhere—oops, we said 2029, rather than 2019. That is not what we are into. I give you my assurance on that. We will endeavour to bring an amendment.

Perhaps Alison Coull would address the competence of section 6.

Alison Coull (Scottish Government)

I will briefly cover exit day, too. Our position, which the Lord Advocate perhaps addressed, is that we are required to act compatibly with EU law and, in exercising the power in relation to exit day, we would need to do so in a way that fitted in with the exit day that exists under the treaties. Currently, that is 29 March 2019. As the minister said, we are looking at whether we can make the position clearer.

11:30  



On the supremacy of EU law, our position is that that is part and parcel of the approach of bringing the whole range of EU law into domestic law as part of the preparations for exit. Like the general principles, the charter and the incorporation and saving of retained EU law, it is one of the EU law concepts that we have to deal with, and we have to say what our position is. We are seeking to do the same as the UK Government is seeking to do in its bill, which is to say that, basically, the supremacy of EU law applies in the same way as it currently does to the law that we bring across.

Adam Tomkins

I understand the policy intention, but I still do not understand how the Scottish Government considers that this Parliament legislating on that is compatible with the provision in schedule 5 to the Scotland Act 1998 that reserves “international relations”, including relations between the UK and the EU and its institutions. The Court of Justice is one of those institutions. The doctrine of supremacy relates directly to the relationship between UK legal systems and that EU institution. In your view, how can the provision not trespass on that reserved function? That is what I do not understand.

Michael Russell

I ask Luke McBratney to address that issue to see whether we can provide additional information that will assist.

Luke McBratney (Scottish Government)

It is important to look at what section 6 would do, were it to be enacted. Although it is about the supremacy of EU law, it would no longer be about the relationship between EU law as part of the supranational legal order and our domestic law, because the UK would have ceased to be a member state of the EU.

As the Lord Advocate made clear, the continuity bill can take effect only after the UK withdraws and, after withdrawal, section 6 will become a set of principles about what the former principle of supremacy will mean, in the context of Scots law, to us as part of the UK, which will be a country that used to be a member state.

Adam Tomkins

I understand the position, but I think that there is a grave issue around whether the provision is competent.

Michael Russell

We will have to agree to differ on that. We believe that the arguments that we have put forward mean that it is competent, and the Lord Advocate contends that it is competent. I am quite happy to consider further questions on that issue—in writing, for example—to see whether we can answer them for you.

Adam Tomkins

Thank you.

James Kelly

As you outlined, minister, there are different positions on legal competence. There is a view from the Presiding Officer and a view from the Lord Advocate, which is supportive of the Government. As you said, there is the potential for us to end up in the courts, which would be regrettable and which none of us wants. You also said that discussions are on-going between legal officers, and the hope is that we can get some legal resolution.

However, that puts members in a difficult position because we are in uncharted territory. Unfortunately, the debate on competence has become part of the consideration of the bill. I perfectly understand that it is not the Government’s normal policy to publish legal advice, but would you take on board the view of the Law Society of Scotland that, given the public interest, there is a case for both the Presiding Officer and the Lord Advocate publishing their legal advice in order to inform these discussions?

Michael Russell

I heard the Law Society’s evidence and I understand its view. However, we have already taken an exceptional step, as permitted by the ministerial code, with the Lord Advocate indicating the reasons why the Government—and I stress that I am talking about the Government—has taken the action that it has taken and why we believe that the bill is within competence. Indeed, he went further in going to the chamber and answering questions from members on those matters. That is an exceptional step to take.

The Government’s view is not that we should move into completely uncharted waters and set what we think would be a difficult and dangerous precedent by publishing or giving further legal advice. Therefore, it is not our intention so to do.

I understand where the Law Society is and I understand where you are, but we do not believe that there would be benefit in publishing such advice. That is where we stand.

James Kelly

Do you accept that MSPs are in a difficult position here? Part of the debate has become about whether the legislation is legally competent. From Scottish Labour’s perspective, we understand why you are bringing the bill forward, and we support that in principle. However, we are in a difficult position with regard to the legal advice. It is important for MSPs across the chamber to have as great an understanding as possible of the two different positions.

Michael Russell

We have indicated clearly, in publication, in statements and again this morning, why the Scottish Government believes that the bill is competent, and we have given legal reasons to indicate why we believe that. The Presiding Officer has published his statement. There was no limit to his statement: he was able to publish as much or as little as he wished to. He has said in his published statement why he believes that the bill is not competent. We have heard distinguished scholars give their opinions on the matter this morning. With the greatest respect, the matter will never be definitive. There is a difference of opinion on the matter. It could be definitive only if it was tested in the courts. The Lord Advocate has indicated that, if the view that he has taken was defective, so too would be the position in relation to the UK bill.

With the greatest respect—and I am not trying to be difficult—I cannot give you any comfort on that at all. The Lord Advocate has taken exceptional steps. The Presiding Officer has published a lengthier statement than I believe he has ever published before. There are other contributors to this. That is where we are.

The Convener

How do I want to express this? There is disagreement currently, and I suspect that, even if the Lord Advocate, the Scottish Government and the Presiding Officer published in full what their legal advice was, that disagreement would still exist.

Michael Russell

I agree.

The Convener

We might have more text to read, but it would not change the context in which MSPs have to make their decision.

Michael Russell

I suspect that, if the archangel Gabriel were to come down and define what legal advice he would give, there would still be a dispute about it. I do not think that publishing the legal advice would produce the clarity that people wish for.

Adam Tomkins

I agree with you about that, minister. Legal advice to Governments should be published only in very exceptional circumstances. Nevertheless, there is a possible alternative. You said that you could not offer any comfort to Mr Kelly, but I wonder whether you will consider this. The Lord Advocate could refer the competence of the bill directly to the Supreme Court, because he is a law officer who is able to do that under the terms of the Scotland Act 1998. His equivalent, the Counsel General for Wales, has done that with a Welsh statute that was referred by the Government of Wales to the Supreme Court in order to test its vires. If the Scottish Government is so confident about the Lord Advocate’s legal advice, will it refer the competence of the bill directly to the Supreme Court?

Michael Russell

I cannot make a commitment one way or the other, although I think that what you suggest is highly unlikely to happen. One reason for that is that we are confident in the advice that we have had from the Lord Advocate that the bill is entirely within competence, so we do not believe that the bill needs to be tested in that way. You would not expect me to give such a commitment at this meeting, and I think that it is highly unlikely to happen, but I have heard what you have said and, no doubt, the Lord Advocate has heard it, too.

Neil Bibby

It has been said that legal advice should be published only in very exceptional circumstances. However, the ministerial code makes provision for that if ministers believe that it is in the public interest, and the Law Society has said that it believes it is. Have you received any legal advice from anyone other than the Lord Advocate?

Michael Russell

I am not at liberty to give that information. Ministers do not talk about the legal advice that they are given. I and other ministers regularly give that answer around this table.

I do not think that we should become totally hooked on this question. The Lord Advocate has taken the steps that he is entitled to take in exceptional circumstances, which are laid out in the ministerial code. Because we recognise the exceptional nature of the circumstances, that is what has happened. Moreover, he has made himself available for questioning in the chamber on the issue, which is absolutely unique. That is a considerable contribution to understanding the situation. Still, I agree with the convener that the publication of any amount of legal advice is unlikely to change things.

Neil Bibby

You said that you are not at liberty to say, but the ministerial code states that, in exceptional circumstances, legal advice can be published if ministers believe it to be in the public interest.

Michael Russell

I am not in a position to say, and I will not be giving any information on that, because I believe that I am bound by the ministerial code.

The Convener

We will leave the issue of competence and move on to the area of necessity.

Willie Coffey

Minister, I ask you to make a comment or two about the overall timing of the Scottish bill. There is a view that the matter is urgent and that time is moving fast and is running out. However, there is another view that we perhaps do not need to legislate until later on, until the last minute or at all. Will you outline the Scottish Government’s view of the advantages of introducing the bill now and the risks if we do not act now?

Michael Russell

In a moment, I will ask Graham Fisher to come in, because that question was asked yesterday at the Delegated Powers and Law Reform Committee and he provided a written explanation. I think that all members are to receive it. It was sent to the convener of the Delegated Powers and Law Reform Committee, who undertook to circulate it, but I do not know whether it has been circulated yet.

The Convener

The committee received it not long ago, so it is about to be circulated.

Michael Russell

I will ask Graham Fisher to give the legal detail, but suffice it to say that we understand that we require the bill to be passed and receive royal assent before the UK bill is passed and receives royal assent.

Michael Clancy laid out the timetable to which the UK Government is operating. It is worth saying that that timetable has slipped and continues to slip. The original deadline for the UK bill was the end of last year, but there were difficulties with it in the House of Commons. The House of Lords timetable is for 10 days at the committee stage. It is on day 4 and we understand that the timetable is already slipping, so it might take longer. There is then a report stage to be had. We do not believe that the UK bill is likely to be ready for royal assent until some time in early May at the earliest.

That is the timescale. Scottish bills require to have a month’s lying time—as I suppose we might call it in old parlance—once they are passed, during which time, as Professor Tomkins indicated, there could be a challenge to the bill. If we add the period of royal assent and work back from that, it appears that this is the last possible moment to introduce the bill.

We have held off. We restrained ourselves very much by saying that we wanted to get a resolution through negotiation. Alongside our Welsh colleagues, we have brought legislation to the respective chambers at the very last moment at which we felt that we could do so. That is where we are.

Were we to lodge a legislative consent motion—the procedure is slightly different in Wales and Scotland—that would have to be done before the last amending stage of the UK bill, which is the report stage in the House of Lords. Therefore, that would require to be done some time in the second half of April and certainly after Easter.

Graham Fisher might want to indicate the issues. It is probably important to quote from the letter.

Graham Fisher (Scottish Government)

It is partly a marginal issue but, further to the issues that the minister just outlined and to which he spoke before, on the need to amend the withdrawal bill in the event that the Parliament refuses a legislative consent motion and in view of the practical legislative work to prepare for Brexit that will follow on and will need some settled position between the two bills, there are some more technical reasons buried in the detail of the withdrawal bill that relate to the potential interaction of the two bills.

Paragraph 19(2)(b) in schedule 3 to the withdrawal bill will amend the Scotland Act 1998 and will make the withdrawal bill, if it passes into law, a protected enactment under the 1998 act so that it cannot be amended or modified by an act of the Scottish Parliament. That may come to have some bearing on the continuity bill’s operation. Along with the timing issues that were adverted to by the minister and the witnesses from whom the committee heard earlier this morning, that is one of the reasons for the urgency and the pace at which the bill is being dealt with.

Willie Coffey

If the LCM was refused and we did not have the continuity bill, where would that leave us?

Michael Russell

It would depend on whether the constitutional conventions were being observed. As Professor Tomkins said, there is a question about the use of the words “normal” and “normally”. However, normally, the sections of the bill to which we could not consent would be removed from the bill. That would create considerable difficulties and is a strong reason for having something to take their place in order not to have a legislative cliff edge. That intention is positive. We have said regularly to stakeholders across Scotland, particularly businesses, that we do not want to see a legislative cliff edge but want to put something in place to prevent that from happening.

11:45  



Adam Tomkins

Last week, Tavish Scott asked that question of the Lord Advocate and the Lord Advocate politely declined to answer it on the basis that he considered it to be speculative. However, given that we are considering the general principles of legislation and need to look forward, I hope that you will not rest on that but will give a substantive answer, minister.

My question is a direct follow-up to Willie Coffey’s question. If the devolution provisions—for want of a better term—of the withdrawal bill are removed because Holyrood or Cardiff Bay declines to give consent, if the continuity bill is enacted by the Scottish Parliament and if—I know that this is my third if—it is challenged in the Supreme Court and the Supreme Court strikes it down, is it not the case that Scotland would have no legal ability whatsoever to correct its statute book to make it meaningful and ready for exit day?

Michael Russell

I know that the Lord Advocate did not want to speculate, but speculation is the stuff of politics—if you are a politician, you are more willing to speculate. I do not think that that can happen chronologically; the lacuna is in the question.

I will outline the timescales involved. There is a very helpful chart that we can provide to the committee, which shows the timescales of the passage of the bills.

The UK bill is likely to be passed and gain royal assent in the middle of May, roughly speaking. Let us assume that the bill is passed as it currently stands, there is no legislative consent and the UK Government does not remove those provisions. As you indicated, Mr Tomkins, that is a possibility, because there could be an argument that these are not normal times and so on, and the bill could remain intact. Even if the provisions were removed and the bill was passed, one of two things would happen. If the continuity bill were to be challenged in the courts—I hope that it will not be—and it was found to be competent, then it would be in place. If the continuity bill were found to be incompetent, I would be highly surprised if the UK Government did not say to itself that it had to have something in place.

However, the chances of that scenario happening are infinitesimally small. It is much more likely that the continuity bill will be passed and will sit happily with the withdrawal bill; that, at an earlier stage, we will reach agreement on the UK bill; or that the UK bill will be passed unchanged, in which case the constitutional crisis will deepen. The set of circumstances that Mr Tomkins describes is almost impossible to envisage happening. I would never say that it is impossible—never say never—but I think it is very unlikely.

Murdo Fraser

We had a discussion with our earlier witnesses about the need for the continuity bill to be complementary to the withdrawal bill. That is where timing becomes important, because the Scottish Government wants to see the continuity bill proceed as emergency legislation and Parliament has agreed to that; therefore, it will be completed and on the statute book before completion of the withdrawal bill. The withdrawal bill is subject to change at later stages, which could mean that we will end up with a lack of complementarity. Could the rush to legislate lead to bad law and gaps in our legislation?

Michael Russell

I do not believe so. With respect, I suggest that we are not rushing to legislate but are legislating out of necessity, as I have indicated.

The reality of the situation can be found in two possible approaches. First, this is not where we want to be. We are still endeavouring to reach an agreement with the UK Government on the overall UK bill. That agreement may still be reached and, if it is, the question will not arise. Secondly, we would wish to be able to study carefully any ambiguities that arise and find ways in which to correct them. That is not an impossibility. It has happened in other legislative circumstances, and we would study those carefully.

In the legal continuity bill, we have made some changes that we hope will improve the process; we do not think that it will be, by any means, impossible to operate under the two bills. Such an approach has happened quite often in European legislation, with careful decisions having to be made about what lies in one area and what lies in another. We will be prepared for that situation.

I have never maintained that this is the ideal situation, but I am confident that, with thought and care, the situation can be taken care of and there will be no incompatibility. A great deal of work has gone into ensuring that the bills complement each other, so that there is a workable solution. We think that we have found that workable solution. However, I stress again that the bill is not our first option.

Murdo Fraser

If subsequent amendment is required, will it be done by regulation or by another piece of primary legislation?

Michael Russell

I am not saying that amendment will be required, but, if amendment were required, that would be a matter for full, frank and open exchange with the entire Parliament. I do not anticipate that that situation will happen; I anticipate that we will find an orderly and proper way in which to conduct business through the two bills, dealing with people who make such judgments every day. Alison Coull might add to that, because she is one of those people whose judgment we trust in these matters.

Alison Coull

As the minister said, there is a timing issue. At the moment, the legal continuity bill is complementary to the UK bill, albeit with some different choices.

There is a risk, which Murdo Fraser identified, that the UK bill will be amended after the legal continuity bill has been passed. I think that there is a relatively small risk of that causing the sorts of problem that you suggested might arise, simply because most of the amendments that are being discussed relate to things on which we have already made a different choice—that is where some of the pressure comes from.

On what we would do if such an issue arose, we have ancillary powers under the bill. They might not work in all cases, but they provide a potential mechanism for sorting out small rubs that subsequent amendments to the UK bill might create.

Michael Russell

Does Luke McBratney want to comment?

Luke McBratney

It is important to note that, although there has been considerable disagreement between the UK and Scottish Governments over a lot of things, there has been absolute unity of purpose since the beginning—it was set out in December 2016, in “Scotland’s Place in Europe”—from both Governments in recognising the need for a task to be done to avoid a cliff edge. In relation to the anticipated use of the withdrawal bill, there has already been discussion and arrangement at official level on how co-operation between the two Governments might work. The two Governments share the ambition of avoiding the cliff edge; the dispute so far has been about precisely how to go about doing that.

Michael Russell

That is an important point. I had my first discussion about a withdrawal bill with Ben Gummer, who was then a Cabinet Office minister in the previous Administration. I think that that was some time in December 2016.

We do not want the UK to leave the EU—no one can be in any doubt about my position on Brexit—but we have recognised the need to have a set of laws that avoid chaos and confusion. That remains our view. We are still trying to avoid chaos and confusion, and we will continue to do so.

Murdo Fraser

Professor McHarg, who was on the previous panel, said that the urgency is “tactical”. Is it not the case that this is more about politics than it is about the law? Is it more about your negotiating position in relation to the UK Government than about improving the law of Scotland?

Michael Russell

No. I indicated in my answer to Mr Coffey, Graham Fisher indicated in his earlier answer and I indicated in the letter that has been circulated to you the legal reasons why the sequencing must take place as it is taking place.

The Convener

Quite a few members want to come in.

Ivan McKee

I thank the minister and his officials for coming to talk to us.

I asked the previous panel where we are with the political negotiations and, more fundamentally, what lies behind them. We talk about the difference between “consent” and “consult” and about how much ground the Scottish and UK Governments have given on frameworks and so on, and we can talk about the legalese, but the reality at the core is whether the Scottish Parliament keeps the powers that it has or loses the ability to legislate in areas in which it rightly legislates under the devolution settlement.

Can you tell us where we are with the discussions with the UK Government? Will you also reflect on the fundamental principle and the reality of there not being much give and take when it comes to that principle?

Michael Russell

I sometimes feel like someone in Palmerston’s description of the people who understood the Schleswig-Holstein question: one had gone mad, one had died and the other had forgotten it. This set of things is very, very complicated; I ask you to allow me to be as general as I can, because everybody would fall asleep were I to go into the extraordinary and excruciating detail.

The heart of the issue is how a bill that requires legislative consent is prepared. Officials in both Administrations would usually have regular contact to make sure that the bill would be operable with regard to legislative consent, but that has not applied in the case of this bill. I have said that I had a conversation, probably in December 2016, with the then Cabinet Office minister who was responsible for the bill, Ben Gummer—the person with responsibility kept changing between him and David Davis. It was proposed that Ben Gummer would discuss with ministers and officials what the bill was to look like, but that did not happen.

In January 2017 at the JMC plenary in Cardiff, I raised the bill with the Prime Minister and said that an early indication of content and timescale would be helpful. The bill had been discussed—members will remember that the so-called great repeal bill had been announced at the Tory party conference in 2016. The bill was clearly in preparation—we had been told that—and at that stage the intention was to introduce it in May. In January and February, we said that the issue was getting close to the wire and that we needed to see the bill and have a conversation about it. In April, the general election was called, so no bill could be introduced at that time, although the commitment continued. The election took place on 8 June and shortly thereafter it was indicated to our officials in discussions that the bill was likely to be published in early July. We did not see any details until the last day of June or the first day of July, when our officials were shown a copy of the bill. It was immediately obvious that we could not agree to the bill as drafted, primarily because of clause 11, which takes to Westminster all the intersection of powers between European competence and devolved competence, with a process in which Westminster can or cannot divvy them up or pass them out.

I went to London on, I think, 3 July and spoke to David Davis at some length. I indicated the situation and we entered into a process of discussion. The Welsh Government was in exactly the same position. Later in July, at a meeting in Cardiff between the law officers, ministers and officials, we agreed to start work on amendments, because we wished to be constructive. Little progress was made on amendments until November, when the Prime Minister and the First Minister met, despite our joint amendments being published in September when we made it clear that we objected to withdrawal but were dealing with the technicalities.

Around November, there was an indication that there would be changes, given the strength of views across Scottish civic society, which included concerns from the Conservative Party in Scotland, the Welsh Assembly—members of which were unanimous—and others who were involved. In early December at a meeting in St Andrew’s house, Damian Green and David Mundell gave a commitment to John Swinney and me that there would be amendments, and that was confirmed by the JMC. However, there was not much progress; no amendments were tabled in the House of Commons. There was a commitment to do so at report stage, but that did not happen. We began to see movement only in February. Damian Green stopped being First Secretary, David Lidington came in with a learning period, and there was an acceptance that, rather than the approach of taking the whole lot of powers, there would be a smaller group—in essence, clause 11 would be turned on its head.

The progress was very welcome, but the basic issue of consent by the devolved Administrations to anything that happens to their powers has still not been agreed. We have had detailed deep dives, as they are called, into areas of possible frameworks—we have always said that we can agree on the principle of frameworks—but the issue of consent or agreement, which is central to respect for the devolved settlement, has still not been agreed.

I am sorry that that answer took so long, but we are now up to date. There is another meeting tomorrow.

12:00  



The Convener

That was one of your short answers.

Michael Russell

For which I am renowned.

James Kelly

It is becoming clear that there is a complexity to the bill and that there are going to be at least proposals for amendments. We heard that from the Law Society of Scotland this morning, and there was discussion in the previous evidence session about sections 13 and 17. Bearing in mind the timetable for amendments, which is that they must be lodged by Friday and will be considered on Tuesday, the complexity of the bill and the potential volume of amendments, is there not a danger that scrutiny will be compromised because of the pace that we are moving at, that the end product will not be as good as it could be and that that will potentially give some exposure to a legal challenge?

Michael Russell

We are between a rock and a hard place. Of course one would want there to be as much scrutiny as was physically possible during that period. I am very grateful to the imagination and flexibility of the Parliamentary Bureau, parliamentary staff and the Presiding Officer for devising a way in which we can have a chamber discussion next Tuesday about possible amendments and then the proper process for amendments. I offer my apologies to this committee for the fact that it will be required to meet in the evening, but I know that the convener will ensure that pizza and other things are available to you all.

Members: Oh!

The Convener

Forgive me, but, if anything, it will be Stephens bridies.

Michael Russell

I indicated to Mr Coffey and Graham Fisher indicated in a letter to the committee that there is a necessity to consider the bill within a timescale. We are more than willing to respond to amendments and are more than willing to be receptive to things. For example, on the discussion of the issue of the exit date, I think that we can just accept that we are going to find an amendment; if it is acceptable, I do not think that it will take an awful lot of effort and debate to agree to it. Perhaps we will restrict ourselves to the things that will require substantial debate. However, I am afraid that there is no other comfort that I can offer Mr Kelly. As I said, the legal reason that Graham Fisher has given and the reasons that we have indicated mean that we have to observe the timescale that we have.

Luke McBratney

It is also relevant to the committee’s consideration that the continuity bill already reflects a number of the recommendations made during scrutiny of the withdrawal bill in this Parliament and in Westminster. To that extent, the different policy choices in the continuity bill already deal with the criticisms of the withdrawal bill. A good example is the inclusion of a test of necessity before the main powers in the bill can be used. The form of the test of necessity that we have gone for was first raised in a report by the House of Lords Delegated Powers and Regulatory Reform Committee. Both the Delegated Powers and Law Reform Committee of the Scottish Parliament and this committee recommended in their interim reports on the withdrawal bill that it should include such a test. That test is now in the continuity bill.

Michael Russell

That was the subject of substantial discussion at the Delegated Powers and Law Reform Committee yesterday. The Official Report—and, I am sure, a summary of it by the Scottish Parliament information centre—will indicate the changes that have been made.

James Kelly

Obviously, that is good legal practice, but the counter to that is that, as we have discussed, the withdrawal bill still has some way to go in terms of progress, and there is a danger of inconsistency between the end product of that and the end product of the continuity bill.

Michael Russell

We have indicated how we believe that that will be dealt with.

The Convener

Neil, do you have a question on this area?

Neil Bibby

Yes. We are at stage 1 and we are discussing the principle of legislating. The areas of disagreement with the UK Government are what is driving the continuity bill—they are the reason for introducing it. It has been suggested that there are 25 areas of disagreement. Given the timescales, the Parliament and the public need to know what those areas are. You said at the Delegated Powers and Law Reform Committee yesterday that you could not publish those areas of disagreement but that you hoped that they would be published before stage 2. The continuity bill is obviously a piece of legislation that could have potentially significant consequences, but we have a truncated process for it. I do not think that we have the luxury of being able to wait. Why do you think that it is acceptable for the areas of disagreement to be published ahead of stage 2 but not at stage 1?

Michael Russell

Neil Findlay asked me the same question yesterday and, with respect, I will give you the same answer. I cannot unilaterally decide to publish it. I have already spoken to my Welsh counterpart and I will speak to him again today. I know that he has no objections to that publication. I will raise it at the meeting tomorrow, and officials have been asked to ensure that it will be raised.

I hope that we will then be able to publish the entire list of 111 areas and indicate what progress has been made on each of them. Nothing has been agreed, because nothing is agreed in such discussions until everything is agreed. However, progress has been made, and there are issues of importance.

I would stress, as I stressed to Mr Findlay, that this is also about principle. It is not simply about particular powers; it is about ensuring that, whatever powers this Parliament has, they cannot be taken away or hijacked by another Parliament without the consent of this Parliament. That has been well put by the Welsh. Carwyn Jones, the First Minister of Wales, has made it very clear that he cannot go to the National Assembly of Wales and say, “These are powers that I have traded away because they have simply been asked for.” I am sure that our First Minister could not do that either.

We should not lose sight of that issue of principle, but we will also try to provide as much detail as possible. Members will have had a note from me last night on some of the issues in the bill. It is my intention to keep informing members before each stage, as I was asked to do again by the Labour Party, and I will provide anything I possibly can. I want to ensure that the issue is agreed tomorrow, and I will endeavour to do so.

The Convener

I want to press you on a point. With regard to that principle, are you saying that whether it is 111 powers, 25 powers or one power, if it is not done by consent and agreement, the Scottish Government will have issues with it?

Michael Russell

Yes—as would the Welsh Government. We have both made that clear.

Neil Bibby

I think that we should know what progress has been made by the Scottish and UK Governments in their negotiations. The expert panel that we heard from earlier agreed that the public and the Parliament should know what progress is being made and what agreements have been made.

You said that you could not tell us that because you did not have permission from the UK Government, but presumably you did not have permission from the UK Government for introducing the continuity bill.

Michael Russell

I think that if the list is in the joint ownership of the three Governments as a result of work that has been done, it would be utterly wrong of me to say something ex cathedra. I have taken a position that, for example, if I am given the UK Government analyses, I will publish them. The UK Government knows that and therefore it has not given them to me. I do not think that I can ex cathedra say anything else, but I am endeavouring to ensure that they are published. I will continue to do so and I hope that I will have a result out of that.

The Convener

We now move into areas of detail.

Emma Harper

I will ask the same question that I asked the previous panel, which was whether there is an improvement in terms of parliamentary scrutiny of secondary legislation in the continuity bill compared with the withdrawal bill. The Law Society’s submission recommended

“that the Scottish Government immediately commence a programme of consultation on the draft subordinate legislation which will be needed under the bill.”

Alan Page and Aileen McHarg answered that the ability to scrutinise secondary legislation would be better with the continuity bill.

Michael Russell

I will ask Alison Coull to respond on that, but let me make a point on what the DPLR Committee asked for. In its report on the UK withdrawal bill, the committee recommended that

“the powers should only be available where Ministers can show that it is necessary to make a change to the statute book”.

We made that change in sections 11 and 12.

The committee recommended that

“UK Ministers should only be able to legislate in devolved areas with the consent of the devolved administration.”

We made that change in section 17.

The committee recommended that an explanatory statement should accompany each instrument. We made that change in section 16.

The committee asked the Government to consider whether the Scottish ministers should be able to use a made affirmative or an urgent procedure for their instruments. We made that change. It also asked us to consider whether Scottish ministers should have ancillary powers. We made that change. We responded very positively to ideas about changing scrutiny.

Yesterday, in evidence to the DPLR Committee, I said that if members wish to see changes to the criteria in the bill for ensuring that a procedure is super-affirmative or affirmative, I am willing to consider changes to those criteria. We have to have a criteria-based system for making that decision. We cannot do it in a random way; we have to decide clearly why an instrument is super-affirmative, why another is affirmative and why others are negative. If I remember correctly, the super-affirmative procedure is to do with a new power or a new body. What is the third criterion? Luke McBratney is always very good on the third one when I get to that stage.

Luke McBratney

The enhanced affirmative procedure is available where a regulation is to establish a new Scottish public authority, give a function to a newly established Scottish public authority or remove a current EU function without replacing it.

Michael Russell

That was absolutely perfectly done.

There are criteria there. If another criterion seem sensible, we will consider adding it. I am very keen that we have clarity of criteria applied in these circumstances.

Alison Coull

We have committed to consult as widely as we possibly can, including on draft instruments. The point was made that we should be starting that consultation now. I have a bit of difficulty with that, to be honest, because we do not actually know what the destination is. It would be very difficult to draft instruments to deal with the position. The UK Government has not published any draft instruments and has not started any consultations. We have done a lot of work to identify where there are EU references that will need to change, but we quickly run into deciding what is the choice that we are making. At this point, it is almost impossible to know what that choice would be, because we do not have the withdrawal agreement and we do not have agreement.

Luke McBratney

The continuity bill, unlike the withdrawal bill, contains a statutory requirement for consultation in certain circumstances. When the enhanced procedure applies—when one of the three criteria that the minister indicated is met—the Scottish ministers must consult on the proposal before laying the regulations and must provide a copy of the consultation to the Scottish Parliament at that point. The Scottish Parliament then gets 60 days, rather than 40 days, to scrutinise the regulations. When the regulations are laid, the Scottish ministers must include in the explanatory material a report on that consultation, an indication of the consultation responses that they received and an indication of any changes that they made as a result of that consultation. Unlike in the withdrawal bill, a statutory process for consultation is built into the continuity bill.

Michael Russell

I will give you an example that I think will illustrate the point and help to set it at rest—it also indicates the work that we are doing. I have met on several occasions the health sector, and the pharmaceutical sector in particular. We know that there is a strong desire to continue with the European Medicines Agency. We know that the UK Government has now indicated that it wants to do that. We also know that that has never been done in circumstances where a country is outside the EEA. It would be very difficult for us to consult on a draft instrument on that, but we are in regular dialogue with the sector about what it wants and how it wants it to be done.

Patrick Harvie

I want to continue this theme of scrutiny. I recognise that people have argued for specific criteria and for laying out in the bill where a negative, affirmative or super-affirmative procedure would be used. Is it reasonable—and is the Government open to the argument—that an additional criterion ought to be parliamentary will and that some mechanism for sifting through the Government’s draft instruments ought to come to Parliament, either to a single committee or to subject committees, for Parliament to decide whether a particular measure ought to be escalated up the ladder of scrutiny procedures?

Michael Russell

We are not absolutely resistant to the idea of a sifting committee. The difficulty would be that, given that this is a very pressured process, it would add to the process. You would not have to deal with the ones that are already dealt with under the super-affirmative process because they could not be put up the ladder. The issue lies in the affirmative area and in the negative area. I would want it to be criteria based. If an additional criterion was to be parliamentary will, I would want to see how that was defined and how it would operate.

I am not absolutely resistant to that in any way. I want there to be as much scrutiny as there can possibly be. The criteria-based system placed in the bill is very helpful because it guides everybody as to what the situation should be. Perhaps instead of a sifting committee there should be a procedure for objecting on the grounds of criteria not being met or whatever, and for making decisions. I am nervous about putting in another process that will hold things up even further, given the nature of all this.

12:15  



Patrick Harvie

I absolutely take the point about the pressure of time, and as you have argued in other contexts, there is no perfect way through the constitutional crisis that Brexit represents. However, it is in the Government’s interests to ensure that the instruments that it brings forward are capable of gaining parliamentary support. If one way of doing that is to ensure that, for example, Parliament is satisfied that there has been enough consultation, that will be in the interests of seeing the thing through efficiently and to an agreeable outcome.

Michael Russell

I am speculating aloud here, which is probably a bad idea, but I wonder whether there is a role for a process of objecting to the Parliamentary Bureau so that such matters are handled as part of the business. I am very happy to discuss that.

Patrick Harvie

You are open to exploring this area.

Michael Russell

Absolutely.

Patrick Harvie

I want to ask about two other areas. First, section 31 relates to the situation of urgent cases requiring regulations or orders to be introduced prior to parliamentary approval. In what situations might such an urgent case arise?

I am told that, according to Scottish Government guidance, Scottish statutory instruments must be laid before the Scottish Parliament as soon as practicable after making. In practice, that means that SSIs are generally laid on the second working day after making, which allows the required 24 hours for SSI registration. Separate to that, our standing orders say that if SSIs are not received within three days, the DPLR Committee is required to determine whether an instrument should be drawn to the Parliament’s attention

“on the grounds ... that there appears to have been unjustifiable delay”.

Do you intend to stick with that timing and the expectation that instruments will be laid that quickly? If so, should the bill not set that out as a requirement?

Michael Russell

Given that it already exists as a requirement, I do not think that it is necessary to restate it. However, I make the commitment that that would be my intention.

I ask Luke McBratney to answer the wider question about SSIs.

Luke McBratney

The need for the urgent procedure arises principally because of the deadline that everybody is working to. Unless something dramatic happens, the UK will leave the European Union on 29 March 2019, and the principle-fixing powers will expire two years after that. Everyone accepts that, by then, some changes will need to be made to keep the laws effectively functioning, but the precise scenario under which the UK will leave the EU is still not clear with regard to either the ultimate relationship between the EU and the UK or the terms of any transitional deal, and that might not become clear until quite late in the process.

The urgent procedure was taken by the UK Government in the withdrawal bill, and the Delegated Powers and Law Reform Committee recommended that the Scottish Government consider whether it should have a similar procedure in the Scottish Parliament. The procedure has been taken in anticipation of situations in which something might need to come to the Parliament very quickly, either because the change required has become clear only at the last minute or because substantial lead-in preparation is required—for example, to ensure that a public body is set up in time to assume functions on exit day.

The minister and the accompanying documents to the bill give the commitment that the procedure will be used only when absolutely necessary. Under it, regulations must be laid before the Scottish Parliament as soon as practicable after they are made. The minister has already said that, as far as we are concerned, that means the existing requirement for them to be laid, as is normal, within two sitting days, and they will cease to have effect unless the Parliament approves them within 28 sitting days of their being made. In every single case where an instrument is made under the urgent procedure, the Parliament will be involved in the decision on whether it remains in force.

Patrick Harvie

I accept the basic argument that there might be circumstances in which the power is necessary. At the same time, however, it is a very significant step to give ministers the ability to change the law and then ask for parliamentary approval afterwards. Is there anything under the bill as it stands that would prevent that from happening, say, during a parliamentary recess, which would mean a significant delay before Parliament had the opportunity to make the decision?

Michael Russell

No, there is not. That is an important point, and I think that we should reflect on it.

I said yesterday and I say again today quite clearly that the power is there because a backstop and safeguard is required. It is certainly not our intention to use it and we hope not to do so. However, you make an important point about the parliamentary recess.

Luke McBratney

In the situation that Mr Harvie describes, the procedural requirement about 28 sitting days would kick in when the Parliament returned from recess.

Michael Russell

We will look at that now, as a matter of urgency.

Patrick Harvie

Thank you.

I have one more question about parliamentary scrutiny. Section 17 gives Scottish ministers the power to give or refuse consent for regulations made by UK ministers that touch on devolved areas. Again, will you give examples of the kind of regulation that we are talking about and why that consent should be given by the Scottish ministers rather than by the Scottish Parliament?

Michael Russell

Yes. The process that we are engaged in through the UK withdrawal bill gives ministers such powers, subject to parliamentary scrutiny. That is precisely what we are saying in the legal continuity bill. We are extending the simple principle that it is for this Parliament to decide what happens in devolved areas. Ministers’ actions are subject to scrutiny and, of course, control by the Parliament. The proposed approach simply regularises the position; we do not want UK ministers to be able to do things without any supervision, of any description at all, which is the position that we were facing. The solution is to say that UK ministers can do something, but what they do will not have legal effect. Of course, the Scottish ministers are subject to scrutiny on the powers, whereas UK ministers were not.

Patrick Harvie

What would be the mechanism by which Scottish ministers would seek the Parliament’s approval for the giving or withholding of consent in such circumstances?

Luke McBratney

Section 17 is, at least in part, a response to this committee’s recommendations in its interim report on the withdrawal bill. In paragraph 129 and the following paragraphs, the committee made clear that it would support the proposal that the Scottish and Welsh ministers’ consent should be required for instruments made in the situations that we are talking about. In paragraph 131, the committee said:

“The Committee also emphasises the need for parliamentary scrutiny of Scottish Ministers’ proposals prior to consent being given to UK Ministers.”

The Scottish Government and the parliamentary authorities are currently in discussion about how that might work under the withdrawal bill, and the Scottish Government expects that any agreement that is reached will be equally applicable to provisions in the Scottish legal continuity bill in relation to Scottish ministers’ consent to UK regulations.

Patrick Harvie

That is welcome reassurance, but I am still wondering whether the Government is open to giving that reassurance some substance in the bill.

Michael Russell

Yes, but I think that we are close to seeing the outcome of the discussion with the Parliament about what the procedure should be. Remember that the provision says to UK ministers, “You can’t do this”, but that does not mean that we have done it. We would still have to do something, to have the equivalent effect, and that would be subject to scrutiny.

Patrick Harvie

I want to come on to the EU principles—

The Convener

Let us sort out the details of the bill. We will come back to the principles if there is time.

Alexander Burnett

Minister, thank you for the update that you provided and for saying that you intend to provide an update in advance of each stage of the bill.

We have not been updated on the financial cost of the bill or the required secondary legislation. In paragraph 16 of the financial memorandum, the Scottish Government commits

“to sharing with the Scottish Parliament information about the anticipated level of legislation required ... and the financial implications”.

Can you update us on that and say what updates we can expect before the bill reaches its final stage?

Michael Russell

The costs that will be incurred are, of course, the result of the UK’s decisions, not of our decisions. We must ensure that we can draw on the resource that the UK is making available to meet the additional costs of Brexit. I think that there was a £3 billion allocation in the budget, so we are looking to see how we can access that. If additional costs are incurred—I expect that they will be—we expect the costs of Brexit to be borne by the UK Government and funding to be made available to us.

The financial memorandum makes it clear that there are considerable areas of uncertainty in the matter because of the lack of certainty from the UK Government, but we will continue to work to pin that down. We will provide information on that as we are able to do so; we have provided some in the financial memorandum and will go on doing so.

Jenny Brough might want to make points about finance.

Jenny Brough (Scottish Government)

No—what the minister says is exactly the case. At present, the bill is a framework that provides for continuity of law, but we do not yet know what end state we are preparing for. Undoubtedly, some regulations that will be made under the bill will have financial implications. We have committed to providing more information on that, but at this point, as we have said in the financial memorandum, we simply do not know the scale and content of the secondary legislation that will be needed. We will continue to look at that.

Michael Russell

We are, of course, happy to continue to keep members updated. If members who have influence with the UK Government can ensure that it unties the purse strings to ensure that some of the money that it has allocated for Brexit comes to Scotland, that will be welcome. The bill makes particular provisions that we are required to make on the detail of expenditure, but they are, in essence, backstop provisions.

Alexander Burnett

Are you saying that we should not, by the bill’s final stages, expect a clear indication of costs?

Michael Russell

The UK Government has given no clear indication of the costs of its withdrawal bill; the costs that we will incur will flow from its costs, so we will be able to give such an indication only when the UK Government has given one. My position is no different from what it would have been if we did not have a continuity bill, because the UK Government has not indicated the costs.

The Convener

Neil, do you still want to ask about section 13?

Neil Bibby

Yes. Section 13 will introduce a ministerial power to incorporate new EU law. As you will, I think, have heard, I asked the panel of expert witnesses for their views on that. Professor Page said that the power is “a thoroughly bad idea”. In his written evidence, he also said that it would be a

“major surrender by the Parliament”.

That concerns me greatly. Does it concern you and will you reflect on the evidence from the expert panel?

Michael Russell

It would concern me if that were true, but I do not believe that it is. I am surprised by that reaction for two reasons. First, there was a widespread expectation that, when the UK’s withdrawal bill was introduced, those powers would be in it for simple technical reasons. They would not be exercised outwith the supervision of any Parliament—they would absolutely be exercised under parliamentary scrutiny—but there are technical reasons why we want continuity of law. I will give you a couple of them.

One of the reasons might apply to whatever solution is found north and south in Ireland. We might, for example, find that Northern Ireland operates regulatory alignment with the EU on agriculture. If we were to put in place arrangements with Northern Ireland, we would have to have regulatory alignment of certain agricultural issues ourselves. The continuity bill would merely allow us to do that. We thought that that power would exist throughout the UK. The provision says that there will, in certain circumstances, be technical reasons why we need to incorporate new EU law.

It is also possible that we would want to ensure that the regulations that would follow from our signing up to the European Medicines Agency, if we were to do that, would continue to operate. The regulations would be dynamic: if our drugs were being approved by the agency and we were to allow the regulations to atrophy in any way, we would not be part of the process and our drugs could not be approved. One of the great fallacies of the leave movement was that a dynamic UK-only medicines approval agency would somehow produce remarkable results. It turns out, as pharmaceutical companies could have told us from day 1, that that will not happen because the UK is only 3 per cent of the market and the companies would go for that approval only after getting approval from everybody else—the EU and the US.

The measure is largely technical. It will also lapse—unless Parliament decides that it should not. There are policy areas such as food standards and some areas of environmental standards in which we would be required to incorporate new EU law. Let me use an example from my constituency. If we are to continue to sell live shellfish in Europe, we will have to continue to observe food regulations, otherwise we will not be able to do it.

Far from section 13 being as described, it is a technical measure. It is subject to parliamentary scrutiny and control and it is sunsetted. In the circumstances, it is a thoroughly reasonable thing to do. The provision also exists in the Welsh bill. I do not recognise the description, and I do not think that it is the innovation that people think it is.

12:30  



Murdo Fraser

In its evidence, the Law Society raised a number of concerns about the detail of the bill. Time does not permit me to go through them all, but I want to mention section 5, which states:

“The general principles of EU law and the Charter of Fundamental Rights are part of Scots law on or after exit day”,

subject to various qualifications that are contained in various subsections. However, the bill does not specify what those general principles or fundamental rights are. Are you able to tell us what the Scottish Government believes them to be?

Michael Russell

In the explanatory notes, examples are given of what the general principles are. All of us, when considering legislation in committees, have been in the position in which the more specific we are in laying out general principles, the more likely we are to leave something out or to include something else. The general principles are understood—perhaps Luke McBratney should make the case.

It is possible—this relates to the question that Patrick Harvie asked about environmental principles—to give more examples, if that would be helpful, but it is impossible to define absolutely every single general principle in the legislation, because that would be dangerous.

Luke McBratney

The European charter of fundamental rights is an instrument and it is incorporated in the bill. I do not think that there will be any difficulty in working out which aspects of the charter will continue to apply, given the tests in section 5. On the general principles, we have taken the same approach as that which has been taken in the withdrawal bill—reference to the general principles is sufficient, and questions that arise about what is meant by a general principle, or whether a general principle applies, will continue to be questions for the courts to resolve, as is the case at the moment.

Paragraphs 30 to 32 in the explanatory notes give more detail about what the Scottish Government understands the general principles to be, and how their incorporation under section 5 would work. As the minister indicated, we are content to consider whether we can expand that explanatory material over the next two weeks.

Patrick Harvie

The minister said that he will give more consideration to whether the explanatory material needs to be expanded over the next two weeks. Would it be expanded in a policy statement or by amendments to the continuity bill?

Michael Russell

We are taking the same approach as that which has been taken in the UK bill on the matter, because of the difficulty of defining everything. The point that I am making is that the explanatory notes contain items, and it might be useful for them to contain other items. For example, I listened to your exchange on environmental principles. I am very sympathetic to those points, and I would like to mention those principles in the explanatory notes, so that there is no doubt that we believe them to be included in the general principles. That would be useful. However, if we try to name every single principle, we will run into considerable problems.

Patrick Harvie

There has been significant debate at Westminster about the withdrawal bill and the extent to which environmental principles, such as precaution and the polluter pays principle, as well as animal welfare and animal sentience, should be included either in that legislation or elsewhere. To what extent do you feel that that argument is relevant to the continuity bill, and needs to be addressed?

Michael Russell

The argument needs to be addressed, but it cannot be addressed by adding a very long list to the bill. It can, and should, be addressed by illustrating what the principles are and including some of them in the bill. I am happy to have that debate.

Patrick Harvie

The other question that I put to the previous panel was about section 5(3), which states:

“Subsection (1) applies in relation to a general principle ... only if it was recognised as a general principle of EU law by the European Court in a case decided before exit day”.

Is it enough to say that it needs to be a principle that was recognised in a “case decided”, or is it the case that there might be general principles that are recognised but not referred to in a specific case?

Michael Russell

I heard the panel’s response to that too, and I have to say that I agree with it. I do not think that it is possible to have in cases general principles that are not established as such, or that have not yet been recognised as such. It is a necessary definition that has to be applied.

Patrick Harvie

Thank you.

Adam Tomkins

I am baffled by that set of answers, including that last one to Patrick Harvie. How your answer to Patrick Harvie’s question is compatible with section 13 of the bill, I do not know. However, on the point about general principles, is it the Scottish Government’s view that subsidiarity is a general principle of EU law?

Alison Coull

Yes.

Adam Tomkins

Is it the Scottish Government’s view that the principle of subsidiarity applies only to the relationship between member states and the EU, or is there a general principle of subsidiarity that also applies to the relationships between the Scottish Government and the UK Government, and between local authorities and the Scottish Government? That is the sort of clarification that we need if section 5 is to have any meaningful effect—if it is enacted at all.

Alison Coull

That may be an example of why it is not a good idea to choose which general principles are frozen. We are trying to take across all the general principles that are currently recognised by the European Court of Justice. The definition of general principles is that they have to have been recognised by the Court of Justice. There will be room for argument about how those general principles will apply in a new context in which we are not a member state, but it would not be right to prejudge the set of general principles that we want to bring across into domestic law on leaving the EU.

Michael Russell

I will bring in Luke McBratney.

Luke McBratney

It is important to be clear about the distinction between the approach of the continuity bill to the general principles and the approach of the withdrawal bill to the general principles. The withdrawal bill would incorporate the general principles with the same tests, as they have been recognised by the Court of Justice, on and after exit day, but it would exclude them as the basis of a right for action. The continuity bill does not exclude them, but provides for greater continuity of law, in that an existing right of action will continue to be available after withdrawal.

The other qualification in the continuity bill that is relevant to Professor Tomkins’s question is that the general principles are incorporated under the continuity bill only to the extent that they relate to anything to which sections 2, 3 and 4 apply. The general principles will be retained as part of Scots law after exit day in relation to the devolved retained EU law that will be incorporated under the continuity bill.

Adam Tomkins

All that—especially the critical difference between how the withdrawal bill deals with the general principles and how section 5 of the continuity bill deals with the general principles—is just an invitation to litigate, is it not? The Scottish Government seeking to retain that right of action is a positive encouragement to litigate, litigate and litigate again in the Scots courts on, for example, the applicability of the old doctrine of subsidiarity to the relationship between local authorities and the Scottish Government, because of the way in which section 5 has been drafted but not defined.

Luke McBratney

It is not an invitation to litigate in any situations in which litigation is not already possible.

Michael Russell

It is very firmly our view that that is a necessary and important right, but it is not in any sense—I repeat: not in any sense—an invitation to litigate.

Adam Tomkins

Good luck with that.

The Convener

This has been a complex and difficult area to deal with. I very much appreciate the tone of respect in which the committee and the Government have carried out this process this morning. We have seen the committee working at its best. I thank our adviser, Christine O’Neill, and the witnesses whom we had earlier for their advice on such short notice. We will move to stage 2 next week.

Adam Tomkins

That is, provided stage 1 is passed.

The Convener

That is absolutely right. I have already been warned by the deputy convener to bring my sleeping bag for stage 2 next week.

Meeting closed at 12:38.  



What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:

  • bring a section or sections of a law that’s already been passed, into force
  • give details of how a law will be applied
  • make changes to the law without a new Act having to be passed

An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

Delegated Powers and Law Reform committee

This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.

It met to discuss the Bill in public on:

6 March 2018:

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

Video Thumbnail Preview PNG

Stage 1 debate transcript

The Presiding Officer (Ken Macintosh)

The next item of business is a debate on motion S5M-10817, in the name of Michael Russell, on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill at stage 1.

14:11  



The Minister for UK Negotiations on Scotland’s Place in Europe (Michael Russell)

When I came to the chamber last week, I spoke of my regret that the Government had had to take the step of introducing the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. Today, as we consider the general principles of the bill at stage 1, I regret that the circumstances that led the Government to take that step still persist. We have yet to reach agreement with the United Kingdom Government on satisfactory amendments to the European Union (Withdrawal) Bill in advance of a further meeting of the joint ministerial committee (European Union negotiations) tomorrow, and the meeting of the JMC (plenary)—in which the Prime Minister and the First Ministers are involved—that is scheduled for 14 March.

Last week in the chamber, the First Minister set out the crucial issue of principle that divides the Scottish and Welsh Governments from the UK Government: that the consent of the Scottish Parliament should be required for any changes to our powers. I go into tomorrow’s meeting of the JMC(EN), as the First Minister will go into next week’s meeting of the JMC (plenary), still working imaginatively and co-operatively to achieve the agreement that remains our aim. I will of course keep Parliament fully informed of developments—indeed, I sent a note to all members last night, which included information on where things stood.

Mike Rumbles (North East Scotland) (LD)

On the matter of this Parliament’s powers, why does the Henry VIII power in section 13 of the continuity bill give ministers the power, for 15 years, to make regulations that would create new public authorities without MSPs having the ability to amend ministers’ proposals in any way whatever? Is that not an assault on the powers of this Parliament?

Michael Russell

We have made very considerable changes to the powers as recommended by the UK Government. When I appeared before the Delegated Powers and Law Reform Committee yesterday, I made it clear that we had met almost in their entirety the objections that it raised with us last year on the Government’s bill. I point out to Mr Rumbles that this is a stage 1 debate. If he wishes to lodge an amendment to the continuity bill at stage 2, which will take place next week, so that the matter can be considered by the Parliament, he will have the opportunity to do so. I will defend the powers in the bill with my usual vigour, and I am sure that Mr Rumbles will argue against them with his usual vigour.

We are now at the first key milestone in the passage of the continuity bill through the Parliament, but although today’s debate is the first key milestone, it is far from the first parliamentary activity on the bill since its introduction last week. In addition to my statement on 27 February, the Lord Advocate made a statement on the issue of legislative competence on 28 February. We then had a very full and—for the most part, I think—interesting and constructive debate on the emergency bill procedure and timetabling on 1 March, even as the snow closed in all around us. During that debate, the Government was rightly challenged on its plans on how to maximise scrutiny of the bill, given the circumstances and timeframes within which we are operating. Mr Rumbles challenged the Government vigorously on that issue.

I hope that members are now aware of the arrangements that are proposed for what I think is a novel and, I hope, highly effective procedure for stage 2. It will allow maximum participation by members in the chamber so that they can offer their views on proposed amendments, and it will allow for the in-depth scrutiny by an expert committee of individual amendments that is a feature of normal stage 2 proceedings. Indeed, that committee—the Finance and Constitution Committee—was challenging and detailed in its scrutiny of the bill this morning.

I hope that members are satisfied with that approach, and I pay tribute to the imaginative way in which the bureau, the committees, the Government and the Parliament’s officials have worked together co-operatively to develop new procedures to meet these unique circumstances.

Jamie Greene (West Scotland) (Con)

The minister hopes that members are satisfied with the approach, but does he think that one evidence session with one witness is absolutely sufficient to duly scrutinise this bill? I am not satisfied with that, and I suspect that many other members are not satisfied, either.

Michael Russell

Mr Greene needs to look at what has happened. There has not been one evidence session with one individual; indeed, this morning, the Finance and Constitution Committee closely questioned a panel for an hour and a half. I, too, have appeared before committees; I believe that I am appearing before four or five committees next week, and others are doing the same. I ask the member to consider whose responsibility this is—it is the UK Government’s responsibility for pursuing Brexit.

Members: No.

Michael Russell

Tory members might have great difficulty in taking responsibility for their Westminster colleagues, but they have—and should face up to—that responsibility.

With regard to committee scrutiny, I pay tribute to the rapid mobilisation of the committees of this Parliament to examine the bill and provide the chamber with detailed insights from their perspectives. Yesterday, as I have said, I gave evidence to the Delegated Powers and Law Reform Committee in an interesting session, and the convener has now written to the Presiding Officer with comments that have been distributed and which are now available to every member. The Government will, of course, be considering carefully our response to the committee’s points. I should say that we also provided the committee yesterday with detailed information on certain specific questions, and we will continue to do that.

Johann Lamont (Glasgow) (Lab)

Will the minister give way?

Michael Russell

No, I want to make some progress.

I noticed this morning that the Scottish Parliament information centre has issued a note of yesterday’s meeting that summarises the evidence. A range of things is being done to help the chamber consider the bill and to meet the objections that have been raised. Next week, I will have evidence sessions with the Environment, Climate Change and Land Reform Committee, the Equalities and Human Rights Committee and the Culture, Tourism, Europe and External Relations Committee, and I will also return to the Finance and Constitution Committee. I look forward to all those sessions, which are signs of the Parliament’s seriousness of intent in considering the continuity bill and that the maximum possible scrutiny is being applied within the timeframe.

For the remainder of my remarks, I want to concentrate on the purpose of the bill and its major provisions. I am sure that the chamber is well aware of the Scottish Government’s view on leaving the European Union. I find it difficult to overstate my own fears about the damage that is being done to the UK and Scotland through this process—a process that we did not vote for—in almost every aspect of our political, social and economic life.

However, the Scottish Government has always accepted that necessary steps have to be taken to prepare for withdrawal and that the Scottish Government and Parliament have a responsibility to play their full part in those preparations in areas for which we have legislative competence. Hence we have engaged with the UK European Union (Withdrawal) Bill—and hence we have introduced the continuity bill. As section 1(1) sets out, its purpose is

“to make provision ... for ensuring the effective operation of Scots law (so far as within devolved legislative competence) upon and after UK withdrawal.”

Neil Findlay (Lothian) (Lab)

Several times now, the minister has been asked to publish the 25 areas of contention, but he has said that there is no agreement in that respect. Previously he published 111 areas on which discussion was going to take place. As a way out of this, will he publish the 86 areas where there has been agreement?

Michael Russell

I want to be very accurate about this, because yesterday the member asked me this question, which I answered, and this morning Mr Bibby asked me the same question, to which I gave the same answer. I will put this on the record: I spoke to my Welsh counterpart on a range of issues two days ago as well as today. I raised the issue of publication; I will raise that issue again tomorrow at the JMC(EN); and my officials, too, have raised the issue. I wish to publish, I intend to publish and I hope that, tomorrow, we will agree to publish. I have given that answer twice now, but I put it on record for a third time. I hope that we will have that list published as soon as we possibly can and certainly well before stage 2.

Let me make some progress. As I have said, section 1(1) provides

“for ensuring the effective operation of Scots law (so far as within devolved legislative competence) upon and after UK withdrawal.”

It achieves that by doing three things. It saves all domestic devolved law that relates to the EU, and separately incorporates into domestic law EU law that is directly applicable in devolved areas. It gives Scottish ministers the necessary powers to ensure that that law continues to operate effectively after the UK has left the EU, and it gives Scottish ministers the power to ensure that Scotland’s laws keep pace with developments in EU law.

The first two are familiar to members from the withdrawal bill, which has been extensively scrutinised by committees of the Scottish Parliament. Today, I will highlight some differences from the approach in that bill.

In saving currently applicable EU law, the continuity bill has two main differences from the withdrawal bill. First, it retains for devolved matters the European charter of fundamental rights, which will not be retained under the withdrawal bill. The Scottish Government considers that the charter is an important source of law and protections, and that certainty and continuity of law, and the principles that apply to that law, should continue to be the same on and after exit day. Secondly, the Scottish Government considers that the general principles of EU law should have the same status after exit day as that which they had before. To achieve certainty and continuity there should, after withdrawal, be the ability to bring an action based on the general principles of EU law. The withdrawal bill does not allow such actions.

Johann Lamont

I seek the cabinet secretary’s guidance and advice on the issue of scrutiny. I understand that he is seeking a deal with the UK Government. What will be the standing of this legislation if a deal is achieved? What opportunity will there be for Parliament to scrutinise that deal given that we do not know where the areas of dispute lie?

Michael Russell

I have indicated that I wish to publish further information; I have just given that commitment for the third time and I am happy to give it again. Last week, I also gave a commitment to Patrick Harvie that, if we were likely to reach an agreement, we would come to the chamber and ask members for their views on the matter, particularly on whether we should proceed with the bill, which we do not think we would want to do if we reach an agreement. I made that commitment last week and I repeat it today.

Let me try to make some progress. Turning to the powers to fix deficiencies of retained EU law following withdrawal, the Government acknowledges that criticism has been made of the scope of the equivalent parts of the withdrawal bill. However, despite that criticism, the Government shares the view of the Delegated Powers and Law Reform Committee on the withdrawal bill. It said:

“The Committee reluctantly accepts that the unprecedented task of modifying domestic legislation to preserve the statute book on leaving the European Union, and the short timeframe in which it is to be done, necessitates broad powers. In any other circumstances the conferral of such wide powers would be inconceivable, but the Committee accepts that in these circumstances the taking of wide powers is unavoidable.”

However, to address some of the points raised by the committee, important changes have been made to what is in the withdrawal bill, as I indicated to Mr Rumbles. Most significantly, the power will only be able to be used when it is necessary to address a deficiency. Once the threshold that has been defined in the bill has been reached, it will be for ministers to decide the appropriate fix for that deficiency, but there is a higher initial test for the power to be applicable. Additional limits are built into the powers. For example, it will not be possible to be use them to modify the Equality Act 2006, the Equality Act 2010, or the Scotland Act 1998.

In addition to the normal negative and affirmative procedures, the bill includes an enhanced version of the affirmative procedure in which the powers are used to create a new public body, transfer functions to a new public body or abolish an existing function. The Scottish Parliament is given 60 days rather than 40 days to consider the order. Scottish ministers must also consult on the proposals and report on that consultation to the Parliament.

Mike Rumbles

The crux of the matter is very simple. You are taking powers to yourself and out of the hands of the Parliament for 15 years. Parliament will only be able to say yes or no. It will not be able to do its job of legislation. That is my point.

Michael Russell

I have just quoted to the member the view of the Delegated Powers and Law Reform Committee about the exceptional nature of the circumstances that are not of our making. I do not wish to leave the EU. Many people in this chamber do not wish to leave the EU. We would be happy not to have to do this. However, in the circumstances that have been created, we must make a reasonable response, and we have made sure that that response will be scrutinised more by this Parliament than the response of the UK Government will be. We are open to further discussion, debate and amendments. I have made that clear, and I look forward to debating in detail the amendments that are lodged, within the confines of the fact that this is a job that has to be done. I do not want to see it done. I would rather not leave and Mr Rumbles would rather not leave, but within the confines of what has to be done, we have some pressures upon us.

There are two aspects of the powers that I also want to mention. First, the bill allows ministers to fix deficiencies in EU law that is directly applicable in devolved areas. Members will be aware that one of the criticisms of the UK bill is that it would allow only UK ministers to fix such deficiencies. Secondly, the bill requires UK ministers to seek the consent of Scottish ministers if they wish to exercise their powers in the UK bill in devolved areas. Again, that point was made by the Delegated Powers and Law Reform Committee and the Finance and Constitution Committee. It also illustrates how the continuity bill has been drafted to work alongside the UK bill. Our intention remains to work closely with the UK Government on the necessary secondary legislation flowing from Brexit, whatever the eventual primary legislative arrangements. That would include consenting to UK-wide orders touching on devolved matters, where that is the best course of action. Any such proposals would be subject to the scrutiny of the Scottish Parliament.

The final aspect of the bill that I want to touch on is the keeping-pace power in section 13. There are likely to be fields where we will want, at least in the short term, to maintain regulatory alignment with EU rules. That will mean choosing to keep pace with developments in a particular field of regulation after UK withdrawal; for example, continuing to apply new and developing rules about food safety, which are updated regularly and without which many people, such as those in my constituency who export live shellfish, would not be able to operate.

The Scottish Government is clear that that approach is part of a coherent continuity of law and therefore a power properly in the bill. The power will be sunsetted after five years, with the possibility of extension by affirmative order. Given the considerable uncertainty about events, the Government considers that that is a prudent approach. The discussion of any extension will take place against the backdrop of any longer-term arrangements that will then be in place, including agreements with the EU for market access, and with the knowledge of the actual use that has been made of the power over that period.

I am aware of criticisms of that provision and I am happy to discuss possible changes to address them, but I believe that it is a crucial power in minimising disruption from Brexit and providing a coherent continuity of law over the next few years. We hear a great deal about regulatory alignment, and there needs to be something in the bill that allows that to take place.

I said at the start of my remarks that I remain regretful that we still need to carry on with this bill. I should also say that that regret is now mingled with some admiration for the way in which many members of this Parliament have reacted to what are challenging circumstances and continue to react to them. Those circumstances are not of our making, but we need to make the best of them. I am confident that the bill will receive extensive scrutiny in the time available. The Government should and will find that a challenging process, and we will face up to it. The first step is taken today. I therefore invite the Parliament to agree to the general principles of the continuity bill in the motion in my name.

I move,

That the Parliament agrees to the general principles of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

The Presiding Officer

Thank you. I call Bruce Crawford to speak on behalf of the Finance and Constitution Committee.

Bruce Crawford (Stirling) (SNP)

On a point of order, Presiding Officer. I do not think that I am actually speaking on behalf of the Finance and Constitution Committee in this debate. My name was put in as a speaker on behalf of the Scottish National Party.

The Presiding Officer

Aha! [Laughter.]

Bruce Crawford

I do not mind speaking just now.

The Presiding Officer

As you are speaking on behalf of the SNP, I will move to the first Opposition speaker, if you do not mind, and I will come back to you later. I call Adam Tomkins to open for the Conservative Party.

14:28  



Adam Tomkins (Glasgow) (Con)

I am happy to give Bruce Crawford’s speech, if he wants to swap—but perhaps not.

The Scottish Conservatives will vote against the stage 1 motion on the bill this evening because the bill is unnecessary, seriously flawed, ill thought through and incoherent—errors that are compounded by the reckless speed with which the Government is railroading the bill through Parliament. Even worse, the bill is incompetent. Our very own Presiding Officer has told us so, but the SNP carries on regardless of the views of the Presiding Officer, the rule of law and the devolution settlement—which, in its rhetoric, the SNP claims to champion but which it tramples over in its actions.

I will start with why the bill is unnecessary. We all agree that there needs to be legislation to give effect to the democratic decision of the British people in June 2016 to leave the European Union, and we all agree that the legislation needs to make provision to correct and update the statute book so that it hangs together and makes sense in a post-Brexit world. We also all agree that the legislation must respect the foundations of the United Kingdom’s constitution, including the devolution settlements in Wales, Scotland and Northern Ireland—where we hope the settlement is soon to be restored. Nobody can seriously think that leaving the European Union means that we will somehow revert back to the constitution of 1972, which was the year in which the UK joined the EU.

Leaving the European Union means, among other things, that this Parliament will get even stronger. Already one of the most powerful devolved legislatures in the world, the Scottish Parliament will inherit a fresh suite of powers when we leave the European Union, none of which SNP members actually want, despite their mocking. They do not want powers over Scottish agriculture, environmental protection, fisheries, state aid and public procurement—no, they want all those powers to remain in Brussels.

The legislation to do all this—to give effect to the referendum result and to correct the statute book so that it makes sense post-Brexit—is, of course, the European Union (Withdrawal) Bill, which has passed the House of Commons and is now in the House of Lords. We all agree that that bill is flawed and needs to be amended so that it achieves its objectives fully in accordance with our devolution settlement. This Parliament has been unanimous on that point, and the UK Government has listened and has undertaken to amend the bill.

That amendment does not go quite far enough for the SNP. However, we learned at the weekend that we are now just a single word away from agreement between the Governments. Yet, now, both the negotiations at Government level and the all-party consensus in this Parliament have been placed in jeopardy by the SNP’s so-called continuity bill. I say “so-called” because the reality is that it is no such thing. It is designed not to create continuity but to sow the seeds of confusion, even chaos. It is not a legal continuity bill but a legal confusion bill—a wrecking bill. It threatens to wreck the negotiations and it certainly wrecks the consensus that has existed in this Parliament.

The bill’s own policy memorandum says that it will “add to the complexity” of Brexit and “present serious logistical challenges”. Those are not my words but the Scottish Government’s words, and they rather give the game away. It seems that the Scottish Government is no longer all that interested in doing a deal with the UK Government on the withdrawal bill. The SNP is reverting to the stance that it first took on Brexit—the stance that cost the nationalists 40 per cent of their MPs and 500,000 votes in June’s general election. It is the stance that tries to maximise the complexity and challenges of Brexit in order to sow the seeds of constitutional division.

That the bill is seriously flawed and ill thought through is not just my view; it is the view of a number of expert witnesses who gave evidence this morning to the Finance and Constitution Committee. Professor Alan Page of the University of Dundee said that he has

“considerable doubts over whether the Bill”

constitutes

“an effective solution to the challenge the Scottish Parliament will face”

in preparing the devolved laws for the UK’s withdrawal from the EU. That, he says, is

“for the simple reason that the Bill does not resolve—indeed cannot resolve—the critical question ... of which EU competences are devolved and which are reserved”.

The answer to that question can be determined only by Westminster legislation, which is why we, on these benches, say that the right vehicle is the European Union (Withdrawal) Bill, not this wrecking bill.

The Law Society of Scotland is equally critical. It rightly draws our attention to the way in which the bill introduces wholly new categories of law such as retained devolved EU law, which will

“make it more difficult to be certain about the law”.

How ironic it is, then, that legal certainty is one of the general principles of EU law that the bill seeks to preserve in Scots law, in section 5. The reality is that this is a bill for legal uncertainty, legal confusion and legal chaos—the very opposite of legal certainty. The bill fails to meet the tests that are set by the general principles that it seeks to preserve. We are some way through the looking glass here—Mike Russell in Wonderland.

The Law Society is critical of section 4, which seeks to save rights and obligations that are derived from EU law in Scots law after exit day, arguing that the bill needs to specify which rights and obligations are meant. The Law Society is also critical of section 5, which seeks to safeguard the general principles of EU law in Scots law after exit day, arguing that the bill needs to explain which general principles are referred to.

Patrick Harvie (Glasgow) (Green)

Will the member give way?

Adam Tomkins

No, I will not give way to Mr Harvie after his disgraceful interventions in last week’s debates on the issue.

The Law Society warns that, even if that were done, inconsistencies between section 5 and the withdrawal bill “might create complications”. On that issue, the Law Society is politely pulling its punches, because we know that that provision has been designed by the SNP to go out of its way to create complications.

The Law Society is similarly critical of section 6, on the principle of supremacy, and of section 10, on the interpretation of retained devolved EU law, pointing out that, rather embarrassingly for the Government, section 10 fails to reflect what was agreed between UK and EU negotiators last December regarding the on-going jurisdiction of the Court of Justice on matters pertaining to citizens’ rights. There will be a lot for the Finance and Constitution Committee to amend on Tuesday, assuming that the bill passes stage 1 tonight—which, of course, it should not.

I said at the beginning of my speech that the bill is unnecessary, seriously flawed, ill thought through and incoherent. I have dealt with the first three of those charges. I turn now to the charge of incoherence, which I think is the most serious one.

Last week, the Lord Advocate was asked a number of questions about what will happen if the bill is passed by this Parliament but is thereafter found by the Supreme Court to have been passed incompetently. He declined to answer such questions, because, he said, they were speculative. However, when considering the general principles of legislation, as we are this afternoon, it is wise to consider their likely effects and their possible consequences.

Here is one scenario. Let us suppose that there is no agreement on clause 11 of the withdrawal bill and that this Parliament presses ahead with stages 2 and 3 of the continuity bill. The Scottish ministers have said that it should follow that the devolution provisions of the withdrawal bill would then be removed from it. However, I think that that is highly unlikely for the very reason that the Lord Advocate would not concede last week. The continuity bill, if passed, is much more likely than not to be challenged in the Supreme Court—I think that we all know that. If it is struck down, and if the devolution provisions of the withdrawal bill have been removed, there will be no lawful means whatever of correcting the Scottish statute book so that it makes sense post-Brexit. No sensible UK Government could allow that risk to be run.

Michael Russell

That is, of course, theoretically possible, although, as I indicated to the member this morning, I think that it is highly unlikely. In his questioning at the committee this morning, the member indicated that the UK Government would be likely to ignore the Sewel convention in these circumstances. Is he saying that the Sewel convention is about to be suspended by the UK Government? That would be a very considerable and difficult step to take.

Adam Tomkins

Absolutely not, because the Sewel convention was suspended by Mike Russell last week. I will quote to him exactly the section of his speech last week that suspended the Sewel convention. He is not quite as clever as he thinks he is, and he does not quite know what he is doing.

“What of Sewel?” I hear members cry. The UK would have to remove the devolution provisions from the withdrawal bill if we did not consent to them, would it not? No, because, contrary to the advice of the Scottish Conservatives, this Parliament decided last week to fast-track the bill. Emergency legislation is the very opposite of normal. As has been pointed out many times, the Sewel convention applies normally; it does not apply in exceptional or abnormal circumstances.

Last week, in moving the motion that the bill be fast-tracked, the minister, Mr Russell, said:

“this is a ‘novel’ situation. In normal times, such a bill would follow a normal timetable, but these are not normal times.”—[Official Report, 1 March 2018; c 29.]

There we have it: the minister’s own admission, repeated three times in a single sentence, that the Sewel convention no longer applies, meaning that the UK Parliament is now free to legislate on EU withdrawal even if we do not give our consent to the withdrawal bill. Those were not my words but the minister’s words.

Michael Russell

Will the member give way?

Adam Tomkins

I am in my last 30 seconds.

Far from safeguarding the interests of this Parliament, the bill and the way in which it is to be considered—in haste—have completely undercut and, indeed, betrayed the interests of this Parliament. The SNP is playing games with the constitution and does not even understand the rules.

Until the introduction of the continuity bill, this Parliament had more leverage than many observers may have realised. The House of Lords would, I think, have found it very difficult to give the withdrawal bill a third reading if we had declined to consent to it. That leverage has now been traded away. We are not in “normal times”, the Sewel convention does not apply, our voice is diminished and the hand of the UK Government is vastly strengthened, all thanks to the SNP. That is great negotiating—well done.

14:39  



Neil Findlay (Lothian) (Lab)

I wish that we were not here, debating this bill. I wish that the Scottish secretary, David Mundell, and the Tory leader, Ruth Davidson, had fulfilled the commitments that they gave to this Parliament, to the UK Parliament and to the people that we represent. I wish that the Tories had not made such a mess of the process of devolving powers to this Parliament. They have failed miserably, and, instead of recognising that and doing something about it, they are digging an even bigger hole for themselves.

In the House of Commons, Labour’s shadow Scottish secretary, Lesley Laird, moved an amendment that would have removed the EUWB’s proposed restrictions on the ability of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly to legislate on devolved matters and provided for new, collaborative procedures for the creation of UK-wide frameworks for retained EU law.

However, every compliant and subservient Scottish Tory MP was whipped to troop through the lobbies to trample all over the devolution settlement. In the House of Commons, Mundell said:

“I know that”

Lesley Laird

“does not like it, but the Bill is going to be amended not at the behest of the Labour party’s incoherent approach”—

there is a distinct lack of self-awareness there—

“but because Scottish Conservatives have tabled practical amendments.”—[Official Report, House of Commons, 6 December 2017; Vol 632, c 1020.]

Ruth Davidson and Mr Tomkins told us that it would all be resolved in the House of Commons. Then they told us that it would all be fixed in the Lords. What happened to those amendments? Where are they? Did they appear during the parliamentary process? No, they did not, and by 10 January, just a month later, the full extent of the Tory shambles was exposed: there were no amendments, no agreement on devolved powers and no dispute resolution process. There was nothing except a constitutional stand-off that was playing straight into the hands of the nationalists.

Will Mr Tomkins tell us who instructed Tory MPs to vote as they voted? Was it the Prime Minister, Ruth Davidson or Mr Mundell? I will give way to the member if he is willing to tell us—and the public—what role his leader in Scotland played. Did she issue instructions or did she just follow instructions?

Not even Mary Berry could deliver a bigger custard pie to Ruth Davidson than the Tory party is delivering on this. If the Tories had supported Labour’s amendment, there would be full transparency over areas of disagreement and there would be a dispute resolution process.

There is not a word of apology from the great Professor Tomkins. Is it not telling that the man who lectures people on constitutional law could not even take an intervention from teeny-weeny little Patrick? [Interruption.] Professor Tomkins is exposed for what he is—

The Presiding Officer

Just a minute, Mr Findlay.

I am conscious that passions are running quite high this afternoon, but a couple of members have already strayed into rather personal terms. Please keep the proceedings as formal and proper as is correct.

Neil Findlay

As things stand today, only the cabinet secretary and his counterparts in the UK and Welsh Governments know what the issues are. The rest of us are in the dark about what we are being asked to vote on.

In the debate last week, I asked for the issues of contention to be published. I lodged a parliamentary question, I asked at the Delegated Powers and Law Reform Committee and I ask again today. It is unacceptable that we cannot see what is causing the current stand-off.

We have to go back in the history of devolution to get to the heart of why the Scottish Labour Party gives its cautious support to the principles of the bill. I stress that our support is not unconditional and that we will seek to amend the bill. There is no blank cheque for the Government on this. We have serious concerns about the timetabling, the rushed nature of the bill, the limited time for consultation, the rights of the people that we represent to shape the bill’s content and the powers that the bill seeks to place in the hands of ministers.

We have concerns about how the bill’s introduction has been handled and about the Government’s selective use of challenge to the Presiding Officer’s ruling. Members will recall that, in the previous session of the Parliament, the Labour Party challenged the Presiding Officer’s ruling on whether this Parliament had legislative competence over areas of the Tory Trade Union Bill. What happened then? Did the Scottish Government bring in the Lord Advocate to support the position that it and we held? No. SNP members cheered to the echo when my friend James Kelly was excluded from the chamber for challenging the decision. The hypocrisy and double standards are there for everyone to see.

If we go back into the recent history of devolution, older members will recall that, when the Scottish Constitutional Convention was formed, it was Labour, the Scottish Trades Union Congress, the Liberal Democrats, the Green Party, the Communist Party and the churches that came together to work co-operatively and to do the heavy lifting. There were long debates and compromise all round to deliver the blueprint for a new Parliament.

Members will notice that that list had two significant omissions—the Tory Party and the Scottish National Party, both of which were completely hostile to devolution. Therefore, when we hear David Mundell, Ruth Davidson, Nicola Sturgeon and Mike Russell claim to be the defenders of the devolution settlement, we have to take their claims with a gritter full of salt.

The SNP exists to end devolution. It wants to use Brexit as another means of creating division between Scotland and the rest of the UK in order to advance its overall policy objective. We can contrast that with the Welsh Labour Government, which has introduced a continuity bill because it wants devolution to work. We do, too.

We will support the continuity bill. We want those powers coming from Brussels that would ordinarily be devolved to be exercised by this Parliament, and we will move amendments to the bill on a range of issues. Despite our reservations about the bill and the whole process, we have a duty to try to make the bill as good as it possibly can be.

I ask that Ruth Davidson and Mike Russell get their people back around the table and get the matter sorted. Let us get back to discussing the issues that the people that we represent see as a priority—their jobs, the economy, their living standards, the health and social care service, their children’s education and how we can build a future for all our people.

14:46  



Patrick Harvie (Glasgow) (Green)

I agreed with some of what Neil Findlay had to say, even if occasionally his judgment let him down—and I am big enough to say so. [Laughter.] I am certainly happy not to repeat any disgraceful slurs about members in other places who think that an issue as complex as the Irish border, for example, is no more complicated than the London congestion charge. However, I note that Professor Tomkins questioned the intelligence of a member of this Parliament unimpeded, Presiding Officer. I wonder whether he will reflect on that.

Today’s discussion at the Finance and Constitution Committee covered the competence of, necessity for and content of the continuity bill. I will mostly address the content of the bill and the changes that we need to make to improve it.

However, I will briefly talk about competence. As we have been told, there is clearly room for disagreement around the interpretation of issues relating to competence. These are judgment calls, not definitive rulings. With the greatest respect, Presiding Officer, it seems to me that, when we look at the range of views that are being expressed, we can see that the view that the continuity bill is not competent does not appear to be gaining ground.

I do not consider that we can take that interpretation of competence as a reason not to take action, because the bill is necessary. Should we do nothing and leave ourselves with a legal cliff edge? Of course not—no one would say that. Should we trust the word of the UK Government? It has broken its word repeatedly throughout the process; I am afraid that it has failed too many times already for us simply to trust that it will reach an acceptable agreement in the time available.

Should we introduce the continuity bill and then have the minister continue to negotiate with the UK, or introduce the continuity bill and then pass it? Neither of those options is perfect, but if we leave ourselves without the option of passing the continuity bill we would simply hand a victory to those within the UK Cabinet for whom Professor Tomkins had no hostile or harsh words and who are fundamentally opposed to devolution and to respecting the right of the people of Scotland to govern themselves on matters that are already devolved under our devolved powers model.

Johann Lamont

I am sure that Patrick Harvie must share my concern that this Parliament is perhaps being used as a bargaining chip in a negotiation that is happening elsewhere. Does he consider that the continuity bill should continue regardless of whether a deal is done? What role should this Parliament have in scrutinising any deal, should one be secured?

Patrick Harvie

In my view, the gap between where the UK Government currently is and what would be acceptable—certainly, to me—is so significant that I find the likelihood that the UK Government will give sufficient ground for us to reach an acceptable agreement to be vanishingly small. However, after we vote for the bill to pass stage 1 tonight—as I hope that we will—it will be for the whole Parliament to decide whether we consent to its withdrawal in those circumstances.

Mike Rumbles

Will the member take an intervention?

Patrick Harvie

I need to move on.

One of the reasons why legislation in this Parliament is a preferable route, from my point of view, is that it gives us the opportunity to move beyond arguments about what the UK Parliament ought to do with its legislation and to make changes to and improve legislation here. I will advance arguments on that, based on the broad principle that power should sit with the majority in Parliament, not with a minority Government. Both Governments in this situation are minority Governments; neither has a mandate for unilateral action.

Mike Rumbles

Will the member take an intervention?

Patrick Harvie

I will if it is very brief.

Mike Rumbles

Is Patrick Harvie satisfied with section 13 of the bill, which takes powers away from this Parliament for a period of 15 years? It gives those powers entirely to ministers and takes the decision making away from us.

Patrick Harvie

I am not going to say that I am satisfied with the detail of any section until I have seen everyone’s amendments, including those that Mr Rumbles lodges.

I would like to make some progress by addressing the specific changes that I think are necessary. The minister talked about the range of scrutiny measures that will be available for subordinate legislation—the negative, affirmative and super-affirmative or enhanced affirmative procedures. There is a case not only to have some definition of the issue in the bill, but for Parliament to be in a position to decide that a measure currently requiring the negative procedure should get the affirmative procedure or, indeed, that consultation is necessary and that the enhanced procedure should be used. That decision should be available for Parliament to make through some form of sifting mechanism, whether that is conducted by an independent committee or by our subject committees.

Section 17, to which the minister also referred, is about the ability of Scottish ministers to consent to measures taken by UK ministers on devolved matters. Clearly, such measures must require parliamentary consent and not merely ministerial consent. The Government has given us some verbal reassurance that parliamentary consent will always be needed. I believe that there is a case for putting that in the bill, so that ministers are never able to consent to UK measures on devolved matters without Parliament’s agreement.

Finally, the opportunity for ministers to effectively pass laws in urgent cases—to change laws and then ask for Parliament’s approval afterwards—is a massive new power. Again, I think that we need to improve the parliamentary scrutiny of that, by means of an emergency brake—a period between the making and the laying of an instrument—or measures to prevent it from happening during a parliamentary recess.

I do not have time to go into detail on the submission by Scottish Environment LINK, which highlights the gaps that will exist in domestic law in place of EU environmental principles. The ability to take action on those issues would be better under the bill than under the UK legislation, but that needs to be spelled out more clearly in the bill, as do measures to close what Scottish Environment LINK describes as the “environmental governance gap”.

I hope to advance arguments for changes to the bill that will address all those matters, and I give an absolute assurance to others that the Greens will have an open mind on amendments, from whichever political party, that seek to improve and strengthen parliamentary scrutiny of the powers that are created under the bill.

14:54  



Tavish Scott (Shetland Islands) (LD)

We will vote for the bill at stage 1, because the Scottish Parliament is where we are. We want the Governments of the nations of the United Kingdom to agree on the powers that should be in Edinburgh, Cardiff, Belfast and London. It is disappointing that the opening speech from the Conservatives this afternoon did not start from the basis that there is a need for an agreement. Indeed, the briefings to the press this week suggest that agreement is further away, rather than closer.

Adam Tomkins’s speech masqueraded as a parliamentary assessment of the bill; instead, it was really a political justification for the Tory position, which is about not the future of the nations of the United Kingdom but unity in the Tory party.

I see that Ruth Davidson is laughing—if anyone should know about unity in her party, she should. She is working hard in that regard. If she wants to stand up and say what her position is, she can go right ahead.

Ruth Davidson (Edinburgh Central) (Con)

If Tavish Scott wants to talk about unity, can he remind us how his enormous group of five MSPs voted on the recent budget?

Tavish Scott

Is that it? I will tell Ruth Davidson what we did: we voted for our constituents, and she should do the same on Europe. If the Tories started putting their constituents first on Europe, we would not be where we are today.

I share some of Neil Findlay’s concerns about the bill. As I am sure that the Government would expect, we will lodge amendments in a number of areas. The one aspect of Adam Tomkins’s speech that I could take involved concerns over parliamentary scrutiny and how this Parliament can keep a check on what any Government of any political persuasion will do in the future. To a large extent, those concerns involve section 13 of the bill.

A truncated approach is being taken, which is concerning given the complexity of the bill. We have only a little time to consider the bill and to reflect on the evidence that any of the parliamentary committees receive. We are particularly concerned about section 13 because of the sweeping powers that it gives ministers. Those ministers might not include Mike Russell; indeed, there may be few members present today who will be sitting on the front bench in 15 years’ time. I do not think that we should lightly consider giving ministers a power for the next 15 years without requiring them to come back to Parliament on the actual power itself.

Michael Russell

I want to make it clear that the proposal is for five years, with renewal available after scrutiny. As I indicated in my opening speech, that scrutiny would involve consideration of how the power had been used. I will return to the issue when we have a debate about it, because there are strong reasons for having some continuity. That principle has been supported by Liberal Democrats in the UK Parliament because of the need for regulatory alignment.

Tavish Scott

I will offer Mr Russell a couple of reasons as to why there is a better way to handle the situation. I am sure that he is true to the point that he made in his opening remarks about accepting a different way to approach the issue, so I hope that he will accept these points.

First, with section 13, Michael Russell is encouraging Parliament to accept EU regulations post-March 2019 without having any influence at all over what they are. He and I do not want to be in that position, but that is the position that we would be in, and that cannot be a good way to proceed.

Secondly, we want to ensure that changes are compatible with European law. The way to do that is to ensure that portfolio ministers introduce in the Scottish Parliament the measures that they judge to be appropriate to enable us to keep pace with what is happening in Europe. To defeat that line of argument, Mr Russell and his colleagues will have to do more than just say that there are stakeholders who have concerns, as today’s letter from the Delegated Powers and Law Reform Committee says. They will need to set out the range of those concerns, the range of those stakeholders and the range of legislation that would be brought forward. We are all aware of how many instruments come from Brussels to the UK Parliament and the devolved Parliaments of the United Kingdom every year. Nevertheless, to go with the power that is in section 13 without considering what it means in practice is neither realistic nor appropriate.

We cannot have that power in isolation. The minister has rightly made much of the need to collaborate and come to agreement with Cardiff—which it has done with the bill because, we are told, it is the same as the bill that has been introduced in Cardiff—with Belfast, when the Government in Belfast is back in place, and, indeed, with London. In other words, Administrations around the UK have to agree. However, section 13 makes no reference to the other Administrations in the UK.

The minister has made an argument on issues such as animal health and, as a member for a rural constituency, I know that there is a real logic to having consistent animal health regulations across the UK—those members who had to deal with BSE and its aftermath will agree with that. If we are to maintain a single market, there should be something in section 13, if it is to be in any way appropriate, to require agreement and discussion with the other Administrations of the United Kingdom to achieve exactly that. That is why I want to finish with the letter that the Delegated Powers and Law Reform Committee wrote to the Presiding Officer earlier, which sets out what was discussed in respect of that particular section.

The letter states:

“The Minister explained that this power had been included in the Bill in response to concerns raised by stakeholders”.

I simply ask, as Neil Findlay did when he asked for clarification on the powers, that the Government set out who those stakeholders are, so that committees can properly look into that.

The letter goes on to say that the minister

“had been surprised that a similar power had not been included in the European Union (Withdrawal) Bill.”

That does not make it right to have such a power in London, for the very reasons that we have been discussing.

When the minister is considering a better way to achieve what he wants to achieve in section 13, my proposal to him is that the best way of the lot would be to ensure that this Parliament deals with primary legislation on the very measures that we all seek—and need—to address, but to do that in a way that allows for full and proper parliamentary scrutiny.

The Presiding Officer

We come now to the open part of the debate. Before I call Bruce Crawford, I call Graham Simpson to open on behalf of the Delegated Powers and Law Reform Committee.

15:01  



Graham Simpson (Central Scotland) (Con)

I am speaking as convener of the Delegated Powers and Law Reform Committee.

Like the European Union (Withdrawal) Bill, the continuity bill confers wide powers on ministers and consequently is of great interest to my committee. The tight timetable for considering the bill has imposed significant restrictions on the ability of the committee to thoroughly scrutinise the bill. As convener, I find that unacceptable, but we all take our jobs seriously, and my fellow committee members—my impressive deputy convener Stuart McMillan, Alison Harris, David Torrance and the ever entertaining Neil Findlay—will scrutinise the bill as thoroughly as the limited time allows.

The committee took evidence on the delegated powers in the bill from the minister at its meeting yesterday. We sought to answer the questions that we always seek to answer on all bills. Is it appropriate to confer these powers on the Scottish ministers? Are the powers appropriately framed? Do the powers match the policy intention as expressed in the delegated powers memorandum? Are the powers subject to an appropriate level of parliamentary scrutiny?

Having taken that evidence, the committee agreed to draw a number of the powers to the attention of the Parliament and wrote to you, Presiding Officer, this morning. Normally, we would do a detailed report, as we did with the UK bill, and that is what should be happening here. I am not going to cover all the powers mentioned in that letter, but I want to highlight some of them. In some cases, we welcome how the Scottish Government has responded to concerns that the committee had about similar powers in the European Union (Withdrawal) Bill. In other cases, we note the Government’s intention to bring forward amendments to respond to concerns raised by the committee. There is a remaining category of significant powers, which I want to draw to the Parliament’s attention.

First, section 11 of the bill confers a wide power on the Scottish ministers to correct

“(i) a failure of retained (devolved) EU law to operate effectively, or

(ii) any other deficiency in retained (devolved) EU law”.

The committee has already considered evidence in connection with similar powers in the European Union (Withdrawal) Bill. In its report on that bill, the committee concluded that

“the powers should only be available where Ministers can show that it is necessary to make a change to the statute book, even if they cannot show that the particular alternative chosen is itself necessary.”

The committee therefore welcomes the fact that the continuity bill has restricted ministers’ powers to making changes that are necessary rather than appropriate.

Section 13(1) is described as a

“Power to make provision corresponding to EU law after exit day”.

The Government’s delegated powers memorandum describes the power as giving

“Scottish Ministers the ability to ensure that, where appropriate, devolved law in Scotland keeps pace with post-withdrawal developments in EU law.”

The committee noted that that is a “very significant power” that

“would potentially allow delegated powers to be used for a wide range of circumstances that may otherwise be considered appropriate to be done by primary legislation.”

The committee queried whether the power

“was appropriate to the purpose of this particular Bill”

and whether

“there was the same urgent need for such a power and, therefore, whether it was appropriate to include such a power within a bill being treated as an emergency bill.”

The minister said that the power has been included

“in response to concerns raised by stakeholders and that he had been surprised that a similar power had not been included in the European Union (Withdrawal) Bill.”

He explained that the power

“was needed for practical reasons”

and

“to ensure that, where appropriate, certain areas of law could keep pace with EU law.”

He suggested that

“environmental law and food safety law were areas in which there may be a desire to use this power to keep pace with EU law. In his view, this power was appropriate for inclusion”.

The committee has not taken a definitive view on that.

The bill allows the Scottish ministers to set an exit day by regulations. That power does not provide any limits on the date that can be fixed. I asked the minister why the bill does not just say that exit day is the day on which the UK leaves the EU, since that is the factual situation. He said that

“the power would not be used to set a date for exit day that was different to the one for the UK”,

but pledged to amend the bill in response to that point, which is to be welcomed.

In addition to exploring the delegated powers in the bill, the committee asked the minister and his officials for a legal explanation as to why the bill has to be subject to the emergency procedure, and the minister committed to providing that explanation. The committee has not yet had the opportunity to consider that response.

We will follow the progress of the bill over the next two weeks, but we should have had longer.

15:06  



Bruce Crawford (Stirling) (SNP)

The debate is an important occasion—perhaps more important than most. It is also somewhat unique, in that the vast majority of MSPs, if not all, strongly wish that it was not taking place. Certainly from a personal perspective, I am deeply dismayed that it has proved to be necessary for the Scottish Government to introduce this emergency bill.

However, I have reached a clear personal view that it is without doubt a necessity that the bill is before us for debate today. Quite simply, it is necessary for the Parliament to be in a position, if all else fails, to protect the powers that were invested in it following the successful devolution referendum of 1997 and the Scotland Act 1998. That act, which was cleverly constructed and delivered by Donald Dewar, enabled the creation of the first Scottish Parliament in more than 300 years.

The debate is therefore about more than just the potential impact of clause 11 of the European Union (Withdrawal) Bill or the continuity bill. I well recall the sheer joy of the opening day in July 1999 and the beginning of a new democracy in Scotland. Today’s debate, almost 19 years later, is about defending that very democracy, which so many people fought so long and hard to create. The debate is about protecting the precious democracy that Donald Dewar and many others allowed to flower in 1999.

Let us recall clearly that the only party that is represented at Holyrood that campaigned against the creation of this institution was the Tory party. Of course, there were notable exceptions—some Conservatives supported the Parliament—but the establishment of the Conservative Party was bitterly opposed to it. I am far from convinced that the tone and attitude of today’s UK Tory party to the Scottish Parliament are much changed from what they were in the past. I sincerely hope that I will be proved wrong in my scepticism, and that an agreement will be reached that will mean that the continuity bill will become an historical irrelevance.

I had certainly hoped previously that agreement would be arrived at and that the Secretary of State for Scotland would be able to deliver on his promise to sort clause 11—albeit that it would be much later than under the originally envisaged timescale. However, that hope has been all but dashed by the tone and attitude that have been adopted recently by the Minister for the Cabinet Office, David Lidington. We can only assume that he is closer to the leadership of the UK Tory Government than is the rather forlorn figure of the Secretary of State for Scotland, who has, it appears, promised more than he can deliver. I have to say at this point that I disagree with Neil Findlay, who characterised the Tory Government’s position as being like a custard pie. On this occasion, it is much more like an Eton mess. I ascribe that line to Ash Denham, as not as many members laughed at it as I expected. [Laughter.]

In the near future, we will know whether agreement can be found. However, I, for one, am not prepared to take a chance on that. There are no guarantees, and I will take some convincing that any of the promises that have been made for the future are deliverable. That is why the backstop of the continuity bill is so important, and why I will vote for its general principles at decision time.

Today, the majority of Tories here at Holyrood are supporters of devolution. They clearly demonstrated that by supporting the Finance and Constitution Committee’s position in declaring clause 11 of the withdrawal bill to be incompatible with the devolution settlement. I ask those same Tories today, if they are not prepared to support the general principles of the bill at decision time, and if agreement cannot be reached, whether they will vote with those who would protect this Parliament and refuse consent to the withdrawal bill, because their decision day may be coming very soon.

Jeremy Balfour (Lothian) (Con)

We all want to protect this Parliament. What will Bruce Crawford’s view be if, in due course, the Supreme Court says that the continuity bill is illegal and cannot go ahead? How will that protect the Parliament?

Bruce Crawford

That point has already been addressed by Mike Russell, but I will say this to Jeremy Balfour: I have to ask him and the rest of his colleagues whose side they will be on. Will they protect democracy in Scotland, and this Parliament, or will they take the Tory party line from London? That is the question that will be coming their way very shortly.

In closing, I will outline my position on competence. First, I do not disrespect the position that has been adopted by the Presiding Officer. However, I will put this simply: I choose to agree with the position of the Lord Advocate, who is Scotland’s top law officer. I use the word “choose” deliberately, because the matter is about who we are as parliamentarians and what we choose to believe. As Patrick Harvie said earlier, the Finance and Constitution Committee heard this morning that there is space for disagreement on the matter. It is therefore not as simple as asking who is right and who is wrong, in terms of the finer points of law.

In taking my view, I am reminded of the words of Donald Dewar from the opening of the Scottish Parliament and the birth of a new democracy on 1 July 1999, when he said on that fantastic day:

“This is about more than our politics and our laws. This is about who we are, how we carry ourselves.”

Therefore, when we come to decision time, let us all remember the last of those words. I urge members to support the general principles of the bill and to vote to protect this Parliament and democracy in Scotland. We owe it to the memory of the people who fought so long and hard to bring this Parliament into existence to protect its powers: we should do the right thing.

15:13  



Christina McKelvie (Hamilton, Larkhall and Stonehouse) (SNP)

It is my belief that the UK’s leaving the EU will be the greatest act of political self-harm of our time. We have not yet properly seen the damage that is unfolding, but I believe that it will, when it comes, be immense.

The purpose of the continuity bill is abundantly clear. It will be a vital declaration of protection for every individual in Scotland, and it will preserve and defend our devolution and our very democracy. It will mitigate the impact of Brexit on this Parliament, on the Scottish Government and on Scottish society—although, sadly, it cannot save Scotland completely.

Johann Lamont

Can I assume from what Christina McKelvie has said that she thinks that the bill should continue, regardless of whether there is a deal?

Christina McKelvie

The bill is in place today in order to ensure that we get a deal. [Interruption.] If we do not get that deal, we have to protect the Scottish Parliament. I also have to say that neither David Mundell nor David Lidington give me any reassurance that we will get a deal, so we need the continuity bill in order to protect this Parliament’s power and its place in our nation. Let us make no mistake: the very ethos behind the reconvening of the Scottish Parliament is now under threat, which would have horrified Donald Dewar.

Theresa May does not seem to know from one day to the next what she is trying to put in place; she has no idea and is riddled with contradictions. She wants Brexit, but she does not want a hard border in Ireland. I am sorry to say that those are mutually exclusive positions. She cannot have a UK imperialist cake and eat from the EU cake. She needs to recognise that there are 27 other countries in a long-established entity that want to protect their own interests rather than indulge the UK’s.

While Theresa May continues her lament for British imperialism, we need to make sure that we understand what she might do next—which will be no mean feat. The message that we got last week was that if the Scots will not do what they are told, she wants the ability to pull back devolution, tell us that we have all been bad children and put us on the naughty step—perhaps forever. She cannot decide what to do about anything, and totally rejects any concept that might irritate her Brexit fanatics including Jacob Rees-Mogg, Boris Johnson and the Democratic Unionist Party, but that does not mean that she will not act. It means only that she will almost certainly make the wrong decisions. In some senses, she is as much a hostage as Scotland. Her position is dictated to her by others; she is the proverbial puppet on a string.

Brexit is not just about economics and trade—I am fed up of hearing about those—but is also about the profound impact on our rights. Leaving the EU will deprive us of the benefits that have been guaranteed to us by the EU through the European charter of fundamental rights, which came into effect in December 2009. The charter guarantees a far wider range of rights than the UK’s Human Rights Act 1998. For example, it prohibits all discrimination based on sex, race, colour, ethnic origin, religion, disability, age and sexual or gender orientation. It also guarantees access to healthcare and provides the valuable environmental protections that we all need.

I am profoundly concerned that people who voted for Brexit did not realise that they were voting to limit or lose altogether our rights at work, including reasonable working hours and holiday leave, rights under the European Court of Justice, rights to pregnancy and maternity leave and a host of other protections that seem set for the bonfire of EU regulation that will follow Brexit.

Vernon Bogdanor, who is a professor of government at King’s College London and author of “Brexit and our unprotected constitution”, said:

“Last autumn, two employees sued foreign embassies for unfair dismissal, failure to pay the minimum wage and holiday pay, and breaches of Working Time Regulations. One embassy claimed immunity under the State Immunity Act but the Supreme Court overruled.”

We could lose those rights. Opportunities to access that additional power of justice will vanish on Brexit day, which makes me angry and alarmed. Brexit will reduce the rights and protections that are given by the European courts. People will lose their automatic EU right to healthcare elsewhere in Europe on the same terms as the local population—a broken leg in Benidorm will become an extremely expensive business.

The Conservatives’ notion that there is no threat is utter fantasy, since their leader seems to have no idea what rights to guarantee or how to do so. Human, consumer, children’s, employment, equality and disability rights are just some of those that will be lost post-Brexit. I am not inclined to assume that the outcome will be in line with our current deal. As John Major remarked last week, there can be no Brexit outcome that will be as good as the package that we already have by being in the EU. I hear nothing from the Conservatives that gives me reassurance; what I hear gives me a lot of anxiety and an ever-increasing sense of doom.

What does give me reassurance is our Lord Advocate and his detailed, considered and thought-out determination. Further, as my colleague Michael Russell highlighted last week, we might ultimately not need the continuity bill, but he has also made it clear that the legislation needs to be put in place fast to avoid the danger of the unguided rickety Westminster train passing a bill when it is too late for us to do anything to protect the position of the Scottish Parliament. That would leave a Westminster Government able to decide suddenly to repeal the entire devolution package, and we could see Scotland being spun back under Westminster’s rule and silenced. That is unthinkable. We must have the continuity bill, so I urge my colleagues to support the general principles of the bill at 5 o’clock.

15:19  



Jackson Carlaw (Eastwood) (Con)

I start with a word in defence of the reputation of Mary Berry. I say to Mr Findlay that, were she to bake it, it would be a custard tart and not a custard pie. She currently has a series on BBC One about her classic recipes for people who find cooking challenging. He would do well to watch it; I only wish that she had a series on Brexit for him to watch, as well.

Neil Findlay

Will the member take an intervention?

Jackson Carlaw

I will maybe do so a little later. I fear that there is not much that Neil Findlay can tell me about baking.

I remain an optimist. When Adam Tomkins and I look at the same glass of water, he will see it half empty and I will probably see it half full. Neither of us is right or wrong, so I want to be slightly more generous and say that I continue to believe that it is the endeavour of ministers to secure an agreement that will render the continuity bill unnecessary. Why do I want to continue to believe that? It is because the Deputy First Minister and Mr Russell have both told me that that is the case. That is why I think that the preferable option is that an agreement is struck and so the bill does not proceed.

It is worth going back to September when Mr Russell came to the chamber and sought the support of us all, in looking at the European Union (Withdrawal) Bill that had been published, and accepting—as we subsequently all did, as Mr Crawford acknowledged—that clause 11 is unacceptable. There was unanimous consent across Parliament that that is so, and that an amendment was needed. Conservative members have joined others in the chamber in their frustration that such an amendment has not yet been developed—for changes of ministers, or whatever reason—and that discussions have not yet led to a conclusion.

However, it is not fair that—as some members have characterised the situation and as others might like to characterise it—there has been absolutely no progress in the negotiations: rather, they have led to significant progress between the two Governments. We remain obstructed on a key point, which the First Minister identified in Parliament last week as revolving, in essence, around a fundamental and hugely important clause, and a particular word—whether this Parliament gives its consent or is consulted on the frameworks, and on disagreements within the frameworks, that might arise. I would like to come back to that point.

I hope that in the discussions that will take place this week and ahead of—or, at the very latest, on—14 March, when the Prime Minister and the First Minister will, I hope, meet as scheduled, an agreement that builds on the work of both Governments can be found to resolve the debate that remains over that fundamental clause, so that the continuity bill need not proceed. Although I believe that that is the objective of ministers, I do not believe that it is necessarily the objective of all members. Patrick Harvie, for example, expressed again today his naked and unvarnished prejudice against Westminster, and there is a desire among some members not to see agreement but to see the “legal confusion” bill, as Mr Tomkins called it, as the preferred option.

Patrick Harvie rose—

Jackson Carlaw

Perhaps I will give way in a minute. I do not think that Mr Harvie is alone; some SNP members also feel that way. Even on the front bench, Roseanna Cunningham, through her exhortations, her expostulations and her body language during the debates has given the impression that she would prefer no agreement to be reached and for the continuity bill to be the preferred route forward for the Scottish Government.

The Deputy First Minister and Cabinet Secretary for Education and Skills (John Swinney)

I take Mr Carlaw back to where his speech got accurately to the problem in the negotiations. On resolution of the problem, it has to be considered whether it can be resolved in a fashion that protects devolution or undermines it. That is what the SNP Government is concerned with advancing. Does Mr Carlaw accept that the United Kingdom Government must also determine on that question?

Jackson Carlaw

I will come to that point. There are 111 powers in question. It is not unreasonable to say that they are powers that the SNP prefers, in principle, would never again cross the channel to these isles, but would instead be left permanently in Brussels’s hands, and not in the hands of this Parliament or Scottish Government ministers. Those 111 powers have been narrowed down to a series of powers that require to be covered by framework agreements.

On consent and consultation, I understand the anxiety of the Scottish Government about the word “consultation”, but I hope that it can understand the anxiety of others about the word “consent”. “Consent” implies a veto, and not just one veto, but three—those of Wales, Northern Ireland and Scotland.

The Westminster Government, which is charged with the sovereign responsibility of protecting the single market across the UK, on which so much depends, cannot agree to an arrangement whereby any one of four parties could exercise a veto over something as fundamental as the internal working of the single market across the UK. Therefore, it cannot and will not agree to the word “consent”. Urgent talks are taking place this week and in the run-up to the meeting on 14 March, but it must be understood by Scottish Government ministers that the word that they are seeking is as unacceptable to the UK Government as the word that the UK Government has used to date is to them. Therefore, both sides must approach the final discussions with the greatest possible imagination, and must resolve to reach agreement.

John Swinney

Does Mr Carlaw acknowledge that the constitutional structure of the UK is fundamentally different because of what the UK Parliament has legislated for with devolution? His argument is that, ultimately, there is no role for the Scottish Government to exercise proper devolved competence, where that competence has been legislated for in the Scotland Acts. We have a right to protect that.

Jackson Carlaw

I have not said that. I have said that the agreement that must be reached over the next few days must be one that both Governments engage in. They must understand that there are wider issues at play. The Westminster Government cannot and will not accept the prospect of our arriving at a point at which any one of four Governments could paralyse the internal market in the UK by refusing to give consent to something as fundamental as animal welfare rights across the kingdom.

My fundamental concern is that the continuity bill is adding confusion and consuming the narrative that is needed for agreement to be reached. I believe that those discussions should be the primary focus of all ministers in Scotland and at Westminster over the next 10 days. It is urgent that the issue be resolved. Otherwise, as Adam Tomkins said, the devolution settlement, which we all want to be protected, will be undermined inadvertently by actions that I think could be far reaching in their consequences for this Parliament.

15:27  



Alex Neil (Airdrie and Shotts) (SNP)

I start by agreeing with Jackson Carlaw on two fundamental principles, with which I think that everybody in my party agrees. The first principle is that getting an agreement between the Scottish Government and the UK Government would be the best solution for everybody. As a back bencher, I was under the impression that that was the direction that everybody was trying to head in. The second principle is that we all agree that, whatever those arrangements are, they should not pose any threat to the integrity of the UK single market. That does not apply only in a devolved settlement. I would argue that, if and when Scotland becomes an independent country, we would need arrangements between an independent Parliament in Edinburgh and the Westminster Parliament to protect the integrity of the UK single market.

Therefore, it is in the interests of everybody on our side of the argument as well as of everybody on the Conservatives’ side of the argument to try to get agreement, but there is a problem. Until last weekend, I thought that everybody was striving for the same objective that Mr Carlaw wants and that we want: to reach an agreement and to do so in the next few days, because time is beginning to run out. However, I then saw a Downing Street briefing—which did not appear in only one or two newspapers; it is clear that it was a fairly wide briefing—that said that the Tory UK Government was intent on “freezing” the powers of the Scottish Parliament, which meant not devolving the outstanding 25 powers. It is clear that that briefing was given fairly universally, and it must have been given by people who do not share the same objective that Jackson Carlaw and I share. That briefing does not help the situation one iota.

During his speech, Jackson Carlaw suggested that it might have been a change of ministers that was responsible for the delay. I presume that he was referring primarily to the loss of Damian Green, who I think got this, and who was replaced by David Lidington, who, to be fair, has no experience of such matters in his ministerial background. My worry is that this is not just about a change of ministers. That briefing on Sunday suggested a change of policy by the UK Government, which has dug in its heels and decided that we are not getting the 25 powers.

This is where I come to Adam Tomkins’s speech, in which he referred to contradictions and incoherence. I say to Mr Tomkins that there is incoherence in his own position, and it lies, as he pointed out in his speech, in the fact that the Scottish Tory group and party signed up to the unanimous decision taken by this Parliament that, after Brexit, all 111 powers currently in Brussels should be devolved to the Scottish Parliament, where they belong. I thought that we had unanimous agreement on that point, but it would appear that we do not.

This is all about those outstanding 25 powers. The bill is nothing to do with whether people voted for or against Brexit; it is about Brexit’s implications for the Parliament’s powers.

Johann Lamont

Will the member give way?

Alex Neil

I will, in a minute.

It is very clear to me that there is a way forward if everybody is prepared to be reasonable and if there is no change in policy in the way that there might have been in London. Basically, we need to agree on two things, the first of which is that the outstanding 25 powers be repatriated along with the other 86 from whence they came under the law on devolution. Those powers are devolved; they belong to this Parliament; and they should come back here.

In return, however, we need to give reassurance—and this is where, I think, Jackson Carlaw has got it wrong when he suggests that the word “consent” means “veto”. I am sure that the minister will clear this up in his winding-up speech, but I do not think that that is what he intended, and I do not think that it is the correct interpretation. However, there has to be a quid pro quo in the form of some kind of dispute resolution procedure. If it is believed that a particular measure taken by a devolved Government—or a Westminster Government—is going to adversely affect the integrity of the UK single market and if agreement cannot be reached politically on the matter, it must be resolved, eventually, through some agreed dispute resolution procedure.

I do not for the life of me know why that poses such a major problem to the UK Government. I am old enough, unfortunately, to remember the original devolution bills that were presented by the Wilson and Callaghan Governments. They contained no tax-raising powers, but there was a proposal for a joint exchequer board; moreover, the fiscal framework signed by Mr Swinney two years ago includes a joint fiscal committee, the purpose of which is to iron out differences without having to go to the Supreme Court as final arbiter. If the UK Government still genuinely intends to reach agreement, as I am absolutely convinced that our party and Government do—I know that Mr Tomkins thinks otherwise—all reasonable people should be able to come together and reach an agreement that we can all sign up to. That, at the end of the day, is what the Scottish people want.

With your permission, Presiding Officer, I will take Ms Lamont’s intervention.

The Deputy Presiding Officer (Christine Grahame)

I am afraid not. I think that Ms Lamont is actually down to speak. Are you, Ms Lamont?

Johann Lamont

No.

The Deputy Presiding Officer

In that case, I will allow the intervention, because I would like to hear what you have to say.

Johann Lamont

I have been mesmerised by the member’s contribution.

Mr Neil says that there is come and go on this question, but is he concerned by the suggestion being made by some that the bill’s purpose is to protect Scotland from Brexit? On that reading, it is more than simply a bargaining chip to encourage the UK Government to come back to the table.

The Deputy Presiding Officer

Briefly, Mr Neil.

Alex Neil

My view is very simple. The purpose of the bill is to protect the devolved settlement, full stop. It has nothing to do with Brexit per se. It is about protecting the devolved settlement. If the kind of solution that I have outlined is implemented, it will do exactly that.

15:35  



Claire Baker (Mid Scotland and Fife) (Lab)

It is fair to say that this is unlike any stage 1 that I have participated in during my time in Parliament. We usually have a few weeks in committee to hear important evidence, a chance to question the minister and the time to consider a detailed report, which is then recommended to Parliament. With this bill, we have not had the time to pause or catch our breath. That leads to legitimate concerns about effective scrutiny. No one wants the Parliament to pass poor legislation that can lead to more problems than solutions and can have unintended consequences that can cause future difficulty.

I appreciate that efforts have been made to address some of my concerns. A number of committees, including my own, are taking evidence on the bill this week and next week. I understand that the official report will concentrate on the committee evidence sessions to ensure that they are available to all members as soon as possible. It has also been helpful to consider the evidence previously taken by the Finance and Constitution Committee on the UK Government’s EU withdrawal bill.

I welcome the minister’s commitment to providing briefings but, so far, they have largely been a summary of information that we already know. I hope that we get more substance in the future. We have the policy memorandum, but the Government needs to be more transparent about where the points of contention with the UK Government are. I recognise that the minister wants agreement from other partners on this, but MSPs would benefit from knowing more about where the disagreement lies. The UK Government’s assurances are unconvincing, but we need to know more detail about the dispute.

I am most grateful to the Law Society of Scotland for its briefing in advance of the debate. It identifies a number of areas in which greater clarity is required. The bill before us mirrors the EU withdrawal bill but, as the Law Society identifies, it replicates many of the issues that affect the EU withdrawal bill. The Law Society describes the Scottish bill as sharing the challenges of being complex, often difficult to interpret, and sometimes lacking clarity. We should take this opportunity to alter the bill and look at ways of improving it.

Today’s report from the Delegated Powers and Law Reform Committee echoes some of the issues highlighted by the Law Society. Section 13.1 of the bill is described by the Law Society as

“a significant power to implement laws in Scotland corresponding EU Law even if that EU Law is effective after exit day.”

The committee has questioned whether it is not more appropriate for that to be done through primary legislation. I note that the minister has today said that it is appropriate for the power to be in the bill, but I anticipate that we will return to that at stage 2. There are serious concerns that parliamentary scrutiny would be lacking in areas where it is necessary.

In highlighting section 10, “Interpretation of retained (devolved) EU law”, the Law Society identifies one of the challenges of this whole situation when it argues that section 10 does not reflect what was agreed in the 2017 joint agreement in December. The Brexit process is very fluid, but it is important that the legislation is accurate. Perhaps the minister could comment on those points in closing.

It should not be necessary to have the continuity bill before us, but the task that we have today is to agree the general principles. Does it achieve what it sets out to do? It aims to provide continuity for EU law that is currently operating in devolved areas, to give ministers powers to ensure that devolved law continues to operate effectively, and grants powers to enable devolved laws to keep pace with EU law after exit. It is one stop on the Brexit journey, but we should not forget that accepting this principle was a small victory, giving a degree of continuity and recognising the strong ties with our legal, social and environmental laws. Whether those measures are achieved through this bill or the UK bill, they are essential and need to be supported.

The bill before us is as much about context as content, and the consequences of pursuing the bill are much wider than the legislation. This is probably the first time that Parliament has considered a bill on which, although there is a great deal of disagreement, there is agreement that it would be better if the bill became redundant. The next few weeks are crucial if an agreement is to be reached.

One of my first roles as deputy convener of the Culture, Tourism, Europe and External Relations Committee was to meet representatives from the House of Lords committee, along with Welsh committee colleagues, to share our serious concerns about clause 11 and its implications for the devolution settlement.

It is clear that the withdrawal bill as it stands is not compatible with devolution, does not respect the devolution settlement and could not command the support of the devolved Parliaments. However, the UK Government’s intransigence has led us to this position. There was acceptance that there needed to be changes to the bill, but they have not been forthcoming. The Conservatives are incoherent on the issue. Reaching stage 1 on the continuity bill cannot be a surprise, as the issue has been unresolved for months. The lack of action from the Conservative Government brought Labour at Westminster to propose amendments to introduce a presumption of devolution, a principle that is widely accepted. In not accepting Labour’s amendments, the UK Government said that it would propose its own amendments to protect the devolution settlement. However, it has delayed, prevaricated and come up short, meaning that no deal has been reached and time is now running out. I therefore urge the UK and Scottish Governments to work as hard as they can to reach an agreement.

The Law Society argues that there is a public interest in the Scottish Government and the Scottish Parliament publishing the legal advice that they have received on the legislative competence of the continuity bill. These are exceptional circumstances, as the Parliament is prepared to advance with a bill that does not have the confidence of the Presiding Officer. It is a matter to be taken seriously and one that I believe justifies sharing the legal advice.

15:40  



Tom Arthur (Renfrewshire South) (SNP)

This year marks the 20th anniversary of the passing of the Scotland Act 1998, an act that gave effect to the overwhelming wishes of the Scottish people as expressed in the devolution referendum of the preceding year. As such, it carries with it a weight and political legitimacy that is perhaps more normally associated with a written constitution. Although devolution has been and remains a process, the existence of the Scottish Parliament is the settled will of the Scottish people.

For my own and subsequent generations—I say this as the first member to speak in the debate who was not old enough to vote in the devolution referendum—this Parliament has been and remains a permanent fixture of adult life. It is the centre of Scottish civic and political life; indeed, that view is held by a majority of people in Scotland, as reflected in surveys of public opinion. Consequently, any proposed changes to the competences of this Parliament are of a fundamentally different category to any other matter that comes before us in this place for consideration.

As things currently stand, the UK Government’s European Union (Withdrawal) Bill presents a challenge to the powers and legitimacy of the Scottish Parliament that are unprecedented in the 19 years since it was reconvened. That the powers of this Parliament are under threat is not in dispute. The Parliament’s Finance and Constitution Committee reported with unanimity that the proposals contained in clause 11 of the withdrawal bill as introduced by the UK Government are

“incompatible with the devolution settlement in Scotland”

and fail

“to fully respect the devolution settlement.”

It remains the case that the best way to remove this threat to Scotland’s devolution settlement is for clause 11 to be amended to the satisfaction of the Scottish Parliament and legislative consent to be subsequently granted for the withdrawal bill. That represents the most efficient and elegant solution to the current constitutional impasse. However, that can be achieved only if the UK Government grasps that the debate fundamentally concerns a matter of principle, namely that decisions regarding powers devolved to this Parliament must remain with this Parliament.

Daniel Johnson (Edinburgh Southern) (Lab)

Will the member give way?

Tom Arthur

I want to make a wee bit more progress.

An agreement should be achievable. However, the actions of the UK Government since June 2016 do not give cause for optimism. Meetings of the JMC have often been irregular; assurances of a joint approach ahead of article 50 were shown to be hollow, with the UK Government’s position presented to the devolved Governments as a fait accompli; and amendments proposed by the Scottish and Welsh Governments that would have allowed legislative consent were dismissed by the UK Government. From that long, dismal sequence of repeated rebuffs, it is clear that the UK Government does not view the UK as a “partnership of equals”, as Theresa May once described the relationship between the UK and the devolved Governments. Rather than Scotland being invited to lead the UK, the UK Government now seeks to impair the Scottish Parliament’s ability to lead Scotland.

Although time does remain for an agreement between the Scottish and UK Governments to be reached, we are running out of track, as the withdrawal bill will shortly enter its concluding stages at Westminster. It is therefore incumbent on the Scottish Government and Scottish Parliament to make preparations for all eventualities.

The introduction of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill represents a correct and proportionate contingency measure in the event that agreement is not reached. It is correct in that it will enable legal continuity post-Brexit and safeguard the powers of this Parliament. It is proportionate in that it contains a mechanism for its own repeal should agreement on clause 11 be reached between the Scottish and UK Governments.

I come to the timing of the introduction of the continuity bill. Had it been introduced prematurely, the Scottish Government would no doubt have been criticised, with perhaps some justification, for attempting to prejudge the outcome of negotiations with the UK Government. However, the bill has been introduced as late as reasonably possible when account is taken of both the four-week lying period prior to royal assent that the bill would face if enacted and the earliest date that the withdrawal bill could be passed at Westminster.

Presiding Officer, as this is a stage 1 debate, we are being invited only to approve the general principles of the continuity bill. However, I wish to state that I recognise the legitimate concerns of members regarding scrutiny. I therefore welcome the work of both the Delegated Powers and Law Reform Committee and the Finance and Constitution Committee, which is already under way. I further welcome the formal role for the Finance and Constitution Committee at stage 2. This process is, of course, not ideal, but nothing in the entire Brexit process can be described as ideal.

This is a bill that I would rather we were not required to consider. I voted remain, along with the majority of my Renfrewshire South constituents and the overwhelming majority of the Scottish people. Being stripped of our European Union citizenship against our will is an offence to democracy in Scotland. To be faced with a UK Government seeking to strip powers from this Parliament is intolerable.

The Finance and Constitution Committee was clear that

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

The clause is “incompatible with” and

“fails to fully respect the devolution settlement”,

and the committee is not in a position to recommend legislative consent on the withdrawal bill. The fundamental issues that led to the committee reaching those conclusions have not, as of yet, been resolved.

If, ultimately, we must withhold legislative consent, we will require our own legislation to safeguard this Parliament’s powers and ensure the stability and continuity of our laws after Brexit.

It is on that basis, and with regret that we find ourselves in this situation, that I support the general principles of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

15:47  



Maurice Golden (West Scotland) (Con)

In 1997, the people of Scotland voted to establish a new Scottish Parliament. Like Tom Arthur, I was not old enough to vote in that referendum, but I have the utmost respect for the institution that it created.

Neil Findlay

Will the member give way?

Maurice Golden

I would like to make some progress, Mr Findlay.

It is the Parliament that have we the honour of serving in. It is a Parliament that should ensure that Scotland prospers. It is a Parliament that respects the law that created it and which acts in accordance with both customary and codified legal practice.

What we have before us today, Presiding Officer, is a bill that fails in every respect. It is outwith the competence of this Parliament, it is poorly constructed, it will not be properly scrutinised, it risks Scotland’s prosperity and it is a salacious attempt to launch a second independence referendum campaign.

Michael Russell

The member said a moment ago that the Government had breached the law with this bill. Could he explain that more fully? According to the law as it stands and the practice of this Parliament, the Government is quite entitled to bring in this bill, even if there is no statement from the Presiding Officer. What law has been breached? If no law has been breached, perhaps he will withdraw that allegation, as it would be untrue.

Maurice Golden

The bill is outwith the competence of the Parliament, and if the minister reads the Official Report, he will see that I did not make the remarks that he suggests. However, this is a bad law that is badly constructed and which will end badly for Scotland.

If the SNP is prepared to ride roughshod over the Presiding Officer and the devolution settlement in this case, what is to stop it doing so again? Just last year, Nicola Sturgeon tried to force through another independence referendum against the will of Scots. It was only when the Scottish electorate sent a clear message to the SNP at the general election that she was forced to take a pause on a new independence referendum. When will that pause be over? The truth is that the SNP is using wildcat legislation on Brexit as a dry run for forcing an emergency second independence referendum bill.

Michael Russell

Will the member give way?

Maurice Golden

I would like to make some progress—[Interruption.]

The Deputy Presiding Officer

Please sit down, minister.

Maurice Golden

As a result, this is not a serious bill of law from a sober-minded Government; it is a Scottish National Party pamphlet masquerading as legislation. It is a classic piece of SNP theatre: take an issue, stir up grievance and force a confrontation with the UK Government.

The Minister for Social Security (Jeane Freeman)

Will the member give way?

Tom Arthur

Will the member give way?

Maurice Golden

Scotland, along with the rest of the UK, is leaving the EU. [Interruption.]

The Deputy Presiding Officer

Please sit down, Mr Arthur. I would like to hear what the member has to say, please, even if you disagree with it—that is democracy. Please proceed, Mr Golden.

Maurice Golden

Scotland, along with the rest of the UK, is leaving the EU and we must be prepared. There is a mechanism already in place to make sure that we are—the UK Government’s withdrawal bill.

There are challenges to overcome, which have been recognised, before this Parliament can grant its consent, but progress has been and is being made when the British and Scottish Governments sit down, talk and tackle the issues head on. That is the way in which we ensure that Scotland and the rest of the UK benefit from Brexit. That is the way in which we ensure that this Parliament secures new powers. That is the way in which we ensure that the interests of the Scottish people are served.

A barrel load of powers will be devolved to Scotland. That is something that I welcome.

Jeane Freeman

Will the member give way?

Clare Haughey (Rutherglen) (SNP)

Will the member give way?

Maurice Golden

I give way to Clare Haughey.

Clare Haughey

I thank the member for taking the intervention. Can he list the new powers that are coming to this Parliament?

Maurice Golden

Aviation noise and 85 other powers will be coming. We could publish them if Clare Haughey’s Government had not decided to block that.

A barrel load of powers are coming. If we compare the two Governments, we see that the UK Government is committed to giving more powers to this Parliament than the SNP Government is. The SNP Government is hell-bent on answering to its European masters—the Brussels bureaucrats who want to give away all of Scotland’s powers.

We are presented with a continuity bill, but it offers no continuity, only chaos. We are told that it must be treated as emergency legislation, but no matter how much the SNP claims that to be true, there is no emergency. It will be more than a year before the UK leaves the EU, and yet the SNP would have us believe that we must steamroller the bill through Parliament in a matter of weeks.

Michael Russell

Will the member give way?

Maurice Golden

I am in my last minute.

Why the rush? There is only one reasonable answer to that question—to avoid scrutiny. Whenever a Government tries to avoid scrutiny, it cannot be said that it is acting in the public interest. What does it have to hide? Again, there is only one reasonable answer to that question—it wants to hide the fact that it does not want negotiations with the UK Government to be successful.

I will end on a more positive point. Cool heads must prevail. There is no time for putting party before country with constitutional games. [Interruption.]

The Deputy Presiding Officer

Calm down, calm down. I would like to hear the speaker’s concluding words, even if other members would not. Have you concluded, Mr Golden?

Maurice Golden

Not quite yet, Presiding Officer.

The Deputy Presiding Officer

One more sentence, Mr Golden.

Maurice Golden

An avenue is open to the SNP to secure a good deal for Scotland, but this bill puts it at risk. The SNP must get round the table with the UK ministers, discuss, debate and do a deal. That is what Scotland needs and that is what the SNP Government must deliver.

15:54  



Stuart McMillan (Greenock and Inverclyde) (SNP)

I will try to take us back to the real world, after that speech.

I reluctantly welcome the bill and will vote for its progress at 5 pm this evening. I will explain why I said “reluctantly”. This Parliament is in a situation that is not of its own making. If the UK Government were not acting like a petulant child, an agreement to safeguard the powers of this Parliament would be reached. However, a power grab is well and truly under way.

Our constituents need to realise that by introducing the legal continuity bill, the Scottish Government is trying to deal with the crisis that is being wrought on this Parliament and Scotland by the Westminster elite who are again marching to the beat of the Democratic Unionist Party drum, alongside the 60-plus Tory MPs who have a vision of a hard Brexit.

It is clear that the UK is in crisis and is being mismanaged. The lack of detail and vision thus far from the Prime Minister about the UK when it is out of the EU shows her contempt for the entire UK population. When the unelected House of Lords becomes the voice of reason at Westminster—with its Constitution Committee warning in January that although the UK Government’s European Union (Withdrawal) Bill is necessary to ensure legal continuity after Brexit, it has fundamental flaws in its current state—it is obvious that the UK is up a creek on a piece of scrap wood, without a paddle or even a boat.

That is why the Scottish Government’s continuity bill is necessary. It aims to bring stability to the Scottish economy post-Brexit. This Parliament has often heard about the need for stability and planning on a wide variety of issues. We hear that from the Opposition parties, year after year. The business community wants such stability, to help it to plan, pre and post-Brexit.

That is a commonsense approach. It is also the approach that was called for by representatives of the British Irish Chamber of Commerce, whom members of the Culture, Tourism, Europe and External Relations Committee met just over a month ago in Dublin. The business community in Ireland is looking at what is required to assist the Irish economy. It is planning, as best it can, so that it can deal with the fallout from Brexit. The UK Government, on the other hand, is dithering overall while attempting a power grab at the expense of this Parliament.

Our Parliament’s influential Finance and Constitution Committee published a unanimous report on the withdrawal bill. In paragraph 39 of that report, it said:

“The Committee is of the view that Clause 11, as currently drafted, is incompatible with the devolution settlement in Scotland.”

In paragraph 40, the committee said that “a Continuity Bill”, with

“a reduced timetable for parliamentary scrutiny”,

was “highly likely”.

The committee’s report was published on 9 January, and the work to produce it was undertaken in 2017, so it should have come as no surprise to anyone, let alone any member of this Parliament, that a continuity bill would be introduced if the UK Government continued to treat Scotland as a second-class citizen.

In paragraph 36 of its report, the committee said:

“The Committee welcomes the recent progress which has taken place ... and notes the recent statement ... by the Secretary of State for Scotland that the UK Government intends to table amendments to Clause 11.”

The amendments are not here. They were not tabled in the Commons and thus far they have not been tabled in the Lords. It was a shame that Mr Tomkins, in his speech, tried to defend his colleagues down in London, because when he and I were at a meeting in London only a month ago, he was defending this Parliament and defending Scotland.

That the UK Government has reneged on its position will come as no surprise to some people but is clearly embarrassing for some members of this Parliament. If—even at this late stage—the UK Government tables amendments to its bill that are agreeable to the Scottish Government, the Scottish continuity bill can be removed, as the Scottish ministers have indicated. If the continuity bill has already been passed, section 37 will be enacted, as Mr Russell again made clear when he gave evidence to the Delegated Powers and Law Reform Committee yesterday.

Mr Russell’s evidence yesterday was helpful, and his letter to the DPLR Committee last night, which followed up points that were raised in the committee, was useful and demonstrated the Scottish Government’s level of engagement with the emergency procedure.

Some people think that the emergency procedure is unnecessary. They are entitled to their view. However, as the minister indicated in his letter, the withdrawal bill is scheduled to be passed in May so that secondary legislation can start to be made and laid in Westminster, to make full use of the period before the UK is due to leave the EU. It is therefore a commonsense approach for the Scottish Government to work in tandem with that process to ensure that this Parliament is not left behind. I am quite sure that there would a wall of noise from Opposition members if the Scottish Government did not act in Scotland’s interests in this matter. Therefore, it is absolutely necessary for the bill to be dealt with as emergency legislation.

Secondly, as I touched on earlier, the continuity bill should not have been a surprise to anyone. Indeed, the Finance and Constitution Committee highlighted the possibility of the bill coming. In addition, the Scottish Government has shown a huge amount of patience towards the UK Government and given it ample time to get its act together to amend the European Union (Withdrawal) Bill. The fact that the Welsh Government has also introduced a continuity bill—the Law Derived from the European Union (Wales) Bill—shows that this is not just a Scotland versus Westminster issue; it highlights the arrogance with which the UK Government treats Scotland and Wales in this unequal UK.

The differing legal statements from the Lord Advocate and the Presiding Officer have clearly opened up a line of questioning from all those with an interest in the continuity bill. Professor Aileen McHarg, Dr Christopher McCorkindale—

The Deputy Presiding Officer

You must conclude there, Mr McMillan. Thank you very much. I will take the same approach with everyone from now on.

16:00  



Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

Ironically, the best advice in an emergency is to never panic. The SNP has reversed that advice and allowed its panic to invent an emergency. We should be absolutely clear that this is not an emergency; it is the SNP deliberately trying to railroad through legislation and create a crisis where there is none.

Ash Denham (Edinburgh Eastern) (SNP)

Will the member take an intervention?

Rachael Hamilton

I will, but I will first make a little bit of progress.

It is the result of a muddled SNP Government. First, it is still battling with the reality that the United Kingdom has voted to leave the European Union. The SNP will cry that Scotland did not vote to leave. Neither did I, but here I am accepting the democratic decision.

Ash Denham

The member’s speech is a combination of the comments that I have heard from Conservative members so far today. I am very much enjoying the attempt to characterise the continuity bill as solely being an SNP construction. Will the member explain why the Welsh Government, which is a Labour Administration, is doing exactly the same thing?

Rachael Hamilton

It is clear that we all want the devolved powers to come back to the Scottish Parliament, as the Welsh Government wants its devolved powers to come back to the Welsh Assembly. However, the Welsh have a different devolution settlement from ours. Their situation is different; we cannot compare apples and pears.

The SNP seems to have a funny attitude to democracy. It has spent months claiming that devolution itself is under threat and months claiming every insult and injury. That is nonsense. The SNP has insisted that it wants a deal with the UK Government, and the UK Government has co-operated by making movement in the negotiations. I send Mike Russell every good wish for tomorrow’s JMC (European Union negotiations) meeting—I genuinely hope that the negotiations go well. However, after all the gnashing of teeth and energy spent in negotiations, introducing emergency legislation now beggars belief; it makes every SNP claim ring hollow.

SNP members will take any chance to say that Holyrood is being treated with contempt. What could be more disrespectful than rushing through emergency legislation? In doing so, it ignored the Presiding Officer’s ruling. By ignoring the rules that define and defend our democratic process, the SNP can never again claim any credibility on protecting devolution.

Once again, we have an SNP Government that will force through legislation to get what it wants—and what this SNP Government wants more than anything else is a second referendum on independence. For once, the SNP must drop its ideological obsession and work together—as it says it wants to—with the UK Government to get the best out of Brexit.

Until the continuity bill came before us, we were agreed that respecting the devolution settlement that was created more than 20 years ago and protecting the integrated UK internal market were crucial. My colleagues and the SNP were even making progress on that front. This Parliament was united in its focus to deliver the best Brexit for Scotland. We had what people want: constructive working between Scotland’s two Governments. Mike Russell concluded that a withdrawal bill is necessary. He said:

“our laws must be prepared for the day when the UK leaves the EU.”—[Official Report, 27 February 2018; c 56-57.]

Christina McKelvie

Rachael Hamilton said that the Governments were working together and they were doing what people want them to do. I know that my constituents want to remain in the EU, so what does she mean by that?

Rachael Hamilton

The vote was not about Scotland leaving the EU but about the UK leaving the EU.

The bill, however, shows a retraction in the sentiment for working together—a step back from that constructive progress—and we should be clear that that was a choice made by the SNP. That choice has the potential to undo all that we have been working towards together—respecting the devolution settlement and protecting the integrated UK internal market on which our prosperity hangs.

This bill, as presented, threatens both those key objectives. I was pleased to hear the words from Jackson Carlaw and Alex Neil committing to achieving common objectives. Let us take the example of food labelling. We have to protect the needs of Scottish food producers and we must work with the UK Government and the other devolved Administrations to ensure that their markets are not affected by divergence, and that may require a common framework.

At the same time, the bill may be superfluous, because it cannot work before Brexit, as James Wolffe told the Scottish Parliament. He said:

“The bill does nothing that will alter EU law or undermine the scheme of EU law while the UK remains a member of the EU.”—[Official Report, 28 February 2018; c 21.]

As we all know, rushed legislation will not get the best Brexit for Scotland. Rushed legislation, for which this SNP Government is famous—take the Land Reform (Scotland) Act 2016—never achieves what it sets out to do. Nor, as has been mentioned many times today, does it allow this Parliament to fully scrutinise the bill making a mockery of what we are elected and made responsible for. This emergency bill is a means to bypass parliamentary scrutiny and make the Scottish Parliament simply a rubber-stamping process for what the SNP demands, no matter how unnecessary or damaging it may be.

The reasons why this bill cannot be delivered are simple: it is unnecessary and rushed, damages Parliament, belittles our role as parliamentarians and is a result of the SNP’s desire for constitutional chaos. The fact that we are leaving the EU in 2019 means that the powers will not come to the UK Government or the Scottish Government before that time, which cements the fact that the SNP’s true intention behind the bill is to damage the Brexit process, undermine the Scottish Parliament and further its mission to break up Britain.

16:07  



Fulton MacGregor (Coatbridge and Chryston) (SNP)

As usual with the Tories, it is all talk and no action. Almost every Tory in this Parliament promised to stand up for Scotland and the interests of the people they claim to serve but, when the time came for action, they voted against proceeding with this legislation that will ensure that our Parliament is not stripped of powers when the day comes for the UK to leave the EU.

I, like the vast majority of members in this Parliament and at the UK level, campaigned to remain and, like others, I maintain my opinion that it would be better for Scotland to continue as a full member of the European Union. However, I also accept that, until the people of Scotland are given another opportunity to vote for independence, there is little I or anyone else can do to overturn the decision of the people of England to leave the EU. It is incumbent on all of us, as elected representatives, to fight for the best possible outcome for our constituents, and ripping Scotland out of the single market and the customs union would be a disaster. That is not just my opinion; it is what the leaked Brexit analysis for the Prime Minster said.

It is important to note that the Finance and Constitution Committee recently agreed unanimously that the Brexit bill, in its current form, is unacceptable to this Parliament and that legislative consent should be withheld, branding the bill

“incompatible with the devolution settlement in Scotland”.

Specifically, the UK Government has identified policy areas where the clause 11 restrictions would have effect in Scotland, such as, but not limited to, environmental regulation, licensing of fracking, land use and public sector procurement. It is good to hear that the Welsh Assembly has taken a similar view to ours and is calling for a similar bill to be sped through there to prevent a crisis on exit day. Regardless of what Rachael Hamilton says, it is a similar situation.

As it stands, the withdrawal bill would give UK ministers wide powers to make legislation in devolved areas, and make devolved ministers’ secondary powers narrower in scope than those of the UK ministers and subject to constraints, such as a requirement for UK Government consent, that would not apply to UK ministers' powers. Additionally, the bill outlines that Westminster would no longer be required to legislate consistently with EU law but that devolved legislatures would.

The amendments that the Scottish Government put forward in response included bringing devolved ministers’ powers into line with the UK, protecting devolution statutes from amendment by secondary legislation under the withdrawal bill and requiring UK ministers to seek devolved ministers’ consent before using secondary legislative powers in devolved areas.

The Scottish Government has made clear that the continuity bill is a back-up plan and, like Alex Neil, I believe that 100 per cent. Its preference is to support Westminster’s Brexit bill, once an agreement is reached to drop the restriction on competence under clause 11. Furthermore, the Government has repeatedly indicated that it is possible to establish UK-wide frameworks through co-operation, and not when imposed by the UK Government with no respect for the devolution settlement.

Therefore, it would be an abdication of responsibility if everyone in this chamber sat back and hoped that the Prime Minister and the Secretary of State for Scotland will be willing or able to make the necessary changes to allow this Parliament to reasonably grant consent.

The Tories oppose the introduction of this bill while simultaneously agreeing that the Parliament could not possibly grant legislative consent to the Brexit bill as it stands. Their contradictory stance would have Scotland in a crisis situation when the time comes to leave the EU, with hundreds of laws relating to agriculture, fisheries and environmental protection suddenly disappearing. It is time for Ruth Davidson to show the leadership that she claims she can exert by getting her Scottish Tory MSPs and MPs to do what it says on the tin and stand up for Scotland.

EU agriculture policy covers market regulation, rural development, food law, animal health and quality policy for agricultural products. Without the passage of the continuity bill, withdrawal would create a major legislative and policy gap in those areas, leaving many aspects of the agricultural industry in flux. For example, payments are currently made to Scottish businesses under the common agricultural policy programme of voluntary coupled support to help beef and sheep farmers maintain the social and environmental benefits that their livestock bring. If the Tories have their way, we will leave those farmers with no domestic support post-Brexit. Therefore, the Scottish Parliament needs the jurisdiction to continue reviewing legislation that is specific to the interests of Scotland.

The continuity bill ensures that, as far as possible, EU laws that are currently in place will continue to be in force the day we leave the EU, providing our industries with stability and protection. It will also require UK ministers to seek devolved consent from Scottish ministers before making devolved legislation, preventing the obvious power grab coming from Westminster. Further, the bill provides a keeping-pace power to allow Scotland’s laws to continue and, where appropriate, to align themselves with EU law after withdrawal, and it gives the Scottish Government an enhanced role in scrutinising proposals for changes to laws as a result of withdrawal.

It is important to note that, despite the emergency treatment of the bill, which is highly justified, given the urgency of passing it before the withdrawal bill is passed, the bill is still being intensely scrutinised, and the Minister for UK Negotiations on Scotland’s Place in Europe has offered to provide evidence to committees in the coming weeks, as he said earlier.

Finally, our fundamental rights as citizens are currently protected by EU law and, consequently, they are at risk due to Brexit. I think that it is particularly telling that Westminster chose not to include the European charter of fundamental rights in the withdrawal bill. That lets us know exactly what EU withdrawal will mean for rights and equality in the UK. Although the Tories might be fine with disregarding the rights of their constituents, we in the rest of the Parliament are committed to enshrining such protections in domestic law prior to our exit from the EU.

I urge the chamber to agree the general principles of the bill. I ask the Tory MSPs to go against their whip and stand up for those they represent.

16:12  



Neil Bibby (West Scotland) (Lab)

As others have said, the Scottish Parliament should not be having this debate. Despite differences about the UK leaving the EU, there has been a consensus across all parties in the chamber about the role and status of the Scottish Parliament and a common determination to protect it and its powers. However, as Neil Findlay has said, the handling of the withdrawal bill by the UK Government has been nothing short of a disgrace. It is a shambles. The fact that even the Scottish Conservatives argued for changes in the bill is testament to how bad the process has been up to now.

What is at stake here is not injured pride or bruised egos. What is at stake is the right of this Parliament to exercise in full its jurisdiction over those policy areas that have been agreed as being devolved and to have full authority on how decisions will be made on those devolved powers that are transferred back from the EU once the UK leaves. It is, therefore, a matter of profound disappointment and regret that we are having this debate. As Neil Findlay also said, the Scottish Labour Party believes that the Tory UK Government should, as a matter of urgency, bring forward amendments to its bill so that we can avoid having to consider other alternatives.

In the meantime, the challenge for us is to consider what those alternatives might be. The conflicting legal opinions that have been expressed by the Presiding Officer and the Lord Advocate illustrate the complexities of the issues and highlight the potential for this bill to be challenged in the courts. We are in uncharted territory, and it is not comfortable to be in a situation in which this Parliament disagrees with advice from its Presiding Officer.

Bruce Crawford

It is of course the case that any legislation that we pass in the Scottish Parliament can be challenged in court at any time.

Neil Bibby

I accept that, but we are not discussing just any legislation, and it is not usual for us to receive advice from the Presiding Officer that a piece of legislation is not competent.

We need to tread carefully and make sure that this unprecedented bill is being rigorously tested for competence, content and effect. Probably more so than for any other bill ever scrutinised by the Parliament, we need to demonstrate that it is not a political stunt or an overreaction to an incompetent and intransigent Tory Government.

As a starting point, it would be helpful if both the Presiding Officer and the Scottish Government were to publish their respective legal advice. The Law Society of Scotland has said that it would be in the public interest. This is an exceptional bill and these are exceptional times, and in these exceptional circumstances it is surely in the public interest that the relevant legal opinion is put into the public domain. The ministerial code makes it clear that that is allowed in exceptional circumstances. The Parliament should be able to reflect on the arguments both for and against the competence of the bill.

The Parliament is being asked to give legislation that is entirely without precedent the maximum scrutiny in limited time. In those circumstances, it is incumbent on the Scottish Government to co-operate with the Parliament and to provide the assurances that members require, before making an informed decision about the bill, particularly at stages 2 and 3. I asked the minister this morning about the 25 areas of disagreement over competence between the UK Government and the Scottish Government, which we are to understand are one of the principal reasons why the bill has been introduced, but the Parliament and the public still do not know what those 25 areas are. The minister hopes to provide that information in advance of stage 2, and he will raise the issue at the meeting of the joint ministerial committee tomorrow, as we heard earlier. However, as I told the minister this morning, I can see no reason why we should not have that information now, and before us today.

It is not just Scottish Labour members who are saying that. In evidence to the Finance and Constitution Committee this morning, Professor Alan Page described the Scottish Government’s position as not satisfactory, and Dr Kirsty Hughes said that having knowledge of those 25 areas would be desirable. I therefore ask the Scottish Government to reflect on its position and to publish that information to the Parliament and, more importantly, to the public.

As has been discussed, section 13 of the continuity bill empowers the Scottish ministers to make provision corresponding to EU law following our exit. There has already been considerable debate about that section, which hands significant powers to the Scottish ministers. It would allow the Scottish Government to implement laws in Scotland that correspond to EU law even if that EU law takes effect after exit day.

There has been a lot of debate about that, and we heard evidence about it at the Finance and Constitution Committee this morning. The Law Society says that the section lacks clarity. Also earlier today, Professor Aileen McHarg of the University of Strathclyde alluded to the confusion about whether it is a keeping-pace power or whether it is included in the bill for some other reason that would be harder to justify. Another witness, Professor Page, warned that it amounts to a potentially major “surrender” by the Parliament of its legislative competence, and called it a “thoroughly bad idea”. We should take heed of those serious warnings.

The UK Government’s withdrawal bill has been rightly described as a power grab, not just because of its dispute with the devolved Administrations but because it could also allow the Executive to sideline the UK Parliament. Just as the role of Parliament must be respected by the UK Government, so too must the role of this Parliament be respected by the Scottish Government. The minister must listen and address the concerns that have been expressed about that section in particular as we go forward, and I was pleased to hear Patrick Harvie say that the Greens are open minded about amendments in that area.

Like other Labour members, I have reservations about the bill, about its rushed nature, about the limited time available for consultation and about the power that it would put in the hands of ministers rather than in the hands of the Parliament, but I will support the bill at decision time today.

We are in uncharted territory. Fundamental principles underpinning the devolution settlement are at stake. Doing nothing is not an option. If the UK Tory Government will not amend the European Union (Withdrawal) Bill to take account of the concerns expressed by all parties, we must be prepared for that.

16:18  



Kate Forbes (Skye, Lochaber and Badenoch) (SNP)

I am never sure whether to declare this, but I probably ought to say that I am the parliamentary liaison officer to the Cabinet Secretary for Finance and the Constitution.

In last Thursday’s debate, Johann Lamont commented that we have a tendency to forget the 1 million people in Scotland who voted to leave the EU. As a democrat, I have some sympathy with that view, not because I necessarily agree with those people but because I have a responsibility to represent my constituents. I am therefore pleased that this debate can unite all voters, because I also agree with Alex Neil that it is not about Brexit but about protecting the existing powers of this Parliament and the devolution settlement that people in Scotland voted for decisively in 1997—I will not tell anyone what age I was then.

As a democrat, I think that this Parliament is responsible for representing the wishes and aspirations of the people of Scotland. We have a responsibility to protect our country’s interests and freedoms and to advance policies and strategies that make Scotland safer, fairer and more prosperous.

I also happen to think that that is what all of Scotland’s 59 MPs of different parties should be doing, including the Secretary of State for Scotland, along with the Prime Minister. None of them should need to be convinced or persuaded to respect the devolution settlement, to honour their promises or to provide satisfactory answers on the economy, the long-term rights of EU nationals or the future border arrangements in Ireland, to name just three issues.

The challenge for all MSPs in dealing with the fallout from the Brexit vote is the sense of powerlessness, despite the best determined efforts of the Scottish Government. That Government has published several papers on Scotland’s place in Europe and its public analysis has been far more comprehensive than that of the Government that is tasked with negotiating our future.

The Cabinet Secretary for Finance in the Welsh Assembly summarised the entire predicament by saying that clause 11 “rolls back devolution.” He went on:

“It says that, for an indefinite period of time and to an extent that the UK Government cannot explain to us, powers that we have had since the start of devolution will be taken back to Westminster and, at some future date, eked back out to us.”—[Official Report, Finance and Constitution Committee, 4 October 2017; c 8.]

Mr Tomkins and others have said that the bill is unnecessary, and perhaps it would be if his colleagues would get their act together, respect the fears in this Parliament and across Scotland and Wales for the devolution settlement and face up to the responsibilities of furthering the interests of this country and not undermining them.

There has been and continues to be an option for the UK Government to resolve what is unanimously accepted as being unacceptable. There were promises that Brexit would lead to more powers for Scotland, followed by promises to accept amendments to protect the devolution settlement. Regrettably, despite those promises, the UK Government first failed to lodge an amendment in the House of Commons and, although it has finally put a proposal on the table, that amendment would still allow the UK Government to restrict the Scottish Parliament’s powers unilaterally through an order made in the UK Parliament. It is that, and not the continuity bill, that is putting everything in jeopardy.

The continuity bill will come into effect if the Scottish Parliament decides not to grant consent to the European Union (Withdrawal) Bill. The critical point is that not to have the continuity bill would be to abandon our collective responsibility—the responsibility of anybody who has ever been elected to the Parliament and those who will be elected in the future—to represent and further the interests and freedoms of the people of Scotland.

Tavish Scott mentioned the need for some UK-wide frameworks. The Scottish Government has always been clear that it accepts in principle the need for UK frameworks on certain matters, but what those frameworks cover and how they are governed must be decided only with the agreement of the Scottish Parliament. Under the devolution settlement and the terms of the way in which the nations of the UK operate together, it is not acceptable to rewrite that settlement and impose UK-wide frameworks in devolved areas without consent.

I finish where I started. There are disagreements about the rights and wrongs, the risks and benefits and the pros and cons of Brexit, and those will continue. However, this debate is about the cross-party agreement, inside and outside the chamber, that we have a responsibility as members of the Scottish Parliament to represent and further the interests of Scotland and we will not sign away that responsibility, no matter how temporarily.

16:24  



Joan McAlpine (South Scotland) (SNP)

Bruce Crawford hit the nail on the head when he asked the Scottish Conservatives whose side they are on. He generously conceded that the Scottish Conservatives are now supporters of the Scottish Parliament, having been on the wrong side of the campaign to establish it in 1997. That campaign resulted in 74 per cent of people voting in favour of reconvening the Scottish Parliament, which is worth reflecting on when we consider the destruction that has been wrought on this country and, indeed, the whole of the UK, by 52 per cent of people across it voting to leave the EU.

Jackson Carlaw was deserving of Mr Crawford’s generosity. In his speech, he said that he wanted the two Governments to reach an agreement. However, although his tone was conciliatory and measured, it concerned me that he equated the desire that the devolved Governments should consent to this intervention in their power with the desire for a veto. In my view, to describe consent as a veto is to coat the word in a veneer of hostility. I could not help noting that Michelle Ballantyne also used the word “veto” today, when she and I conducted an interview with ITV Border this morning. That suggests to me that, as Alex Neil said, a very hostile briefing that is deeply confrontational to devolution is emanating from the UK Conservatives.

I do not think for a moment that Jackson Carlaw is hostile to devolution or to this Parliament. As a member of the Culture, Tourism, Europe and External Relations Committee, he signed up to the conclusion of our Brexit report. I have quoted it before and make no apologies for doing so again. It said:

“We believe that any power currently a competence of the EU that is to be repatriated after Brexit and which is not currently listed in schedule 5 of the Scotland Act 1998 should be fully devolved, alongside a funding mechanism, resulting in no detriment to Scotland.”

Of course, that has not happened.

Michelle Ballantyne (South Scotland) (Con)

Ms McAlpine has said very clearly that she does not think that consent constitutes a veto. If the Scottish Parliament, the Northern Ireland Assembly or the National Assembly for Wales did not give consent to something, what would she call that?

Joan McAlpine

I would call that not giving consent.

Let me turn to the justification that the Scottish Conservatives have advanced for this act of vandalism against this Parliament. They repeatedly suggest that only by staging this power grab can they ensure that free trade will continue across the UK. However, as the minister, Michael Russell, said to the chamber last week:

“There is no single market in the UK, as the UK Government has presented it. There is a uniform market—we all trade together—but we have different arrangements when those are required and when the powers of this Parliament or those of the Welsh Assembly make that necessary.”—[Official Report, 27 February 2018; c 73.]

As the minister noted, there is considerable diversity in the UK right now, between corporation taxes in Northern Ireland and income and property taxes here, and with the ban on fracking here, alcohol minimum pricing here and, critically, our refusal to open up the Scottish national health service to market principles as has been done in England.

The European single market that the Tories are set on leaving has a single set of rules that are interpreted and enforced by member states, with the European Court of Justice being the final arbiter. That allows divergences and, as long as states fit into the overall structure, trade can be maintained. The Scottish Government considers that there are likely to be fields in which, at least immediately following the UK’s withdrawal, its policy will be to voluntarily maintain regulatory alignment with EU rules. That will mean choosing to keep pace with developments in a particular field of regulation after the UK’s withdrawal. If the UK chooses otherwise, we will be allowed to do that. The EU single market gives a huge amount of flexibility to Parliaments such as ours while allowing fair and free trade across the borders of various member states.

The critical point is that the EU single market has an entire set of institutions and bodies that are dedicated to its maintenance and that are jointly controlled by the member states. There is currently no mechanism like that in the UK. If the JMC process is a mechanism, goodness help us all, because that has clearly not delivered anything like respect for the devolution settlement.

That is why we face the dilemmas that we face now. We must construct a series of frameworks to govern how we can make law. Central to that will be either this bill or one from the UK Government. Thus far, the UK Government has produced many warm words, which are welcome, but little concrete action. This Parliament’s Finance and Constitution Committee concluded unanimously that clause 11 of the withdrawal bill was incompatible with the devolution settlement, yet it still stands.

It is obvious that there is potential for many of the areas that are currently controlled by the EU to be viewed very differently by the Scottish Government and the UK Government in absolute terms and in interpretation. One pertinent example is the cultivation of genetically modified organisms, which is regulated at the EU level under the deliberate release directive as, from 2015, it has been possible to restrict the cultivation of such crops. In Scotland, we have enjoyed the benefits of that and, along with 19 member states, have ended the cultivation of GMOs. The Welsh and Northern Irish Governments joined us in doing that, but England did not, so where will we stand post-Brexit? I wish that I or the UK Government could answer that question.

The Deputy Presiding Officer

I am afraid that you must conclude.

Joan McAlpine

That is just one reason why we need to preserve the powers of this Parliament.

The Deputy Presiding Officer

You must conclude. Please sit down.

16:30  



Mike Rumbles (North East Scotland) (LD)

Several members have made much about protecting the powers of our Parliament through this bill. That is the intention of the bill, which is why I will support its general principles in the stage 1 vote tonight. However, our job as MSPs is to scrutinise the detail of the bill, as the devil is always in the detail and—oh boy!—there is a devil in the detail of this bill.

We should be protecting the powers of our Parliament, yet section 13 takes power away from our young Parliament and delivers it to ministers. Subsection 13(3) states:

“Regulations under subsection (1) may make any provision that could be made by an Act of the Scottish Parliament.”

I cannot believe that giving ministers the power for up to 15 years to create, for instance, new public authorities, with MSPs only being allowed to say yes or no, is protecting the powers of our Parliament. Section 13 undermines the powers of this Parliament and fundamentally shifts powers from the Parliament to ministers. I ask all those MSPs who have said that the bill is about protecting the powers of the Scottish Parliament to read section 13 in full if they have not already done so, although I hope that most of us have.

Unless section 13 is removed from the bill at stage 2 or stage 3—I will certainly lodge amendments if other members do not—MSPs like myself, who are genuinely concerned about protecting the powers of the Parliament, will not be able to support it at stage 3.

Patrick Harvie

Neither Mike Rumbles nor I wished for the Brexit crisis to come about, but we recognise the extraordinary legislative heavy lifting job that will be required if we are taken out of the European Union. Is it Mike Rumbles’s view that that can be done entirely with primary legislation and not with any order-making powers?

Mike Rumbles

It can be done with both. What we must not see over the next 15 years is our powers of primary legislation being taken away. That is the whole point of section 13.

Stuart McMillan

It is only for five years.

Mike Rumbles

No, it is for 15 years—read the bill properly. Five and five and five makes 15 years, and we will only be able to say yes or no.

16:33  



James Kelly (Glasgow) (Lab)

Like many members in the debate, I sympathise with the view that it is regrettable that we are having to consider the continuity bill. That is essentially, as many members have pointed out, as a result of the failure to resolve issues around the European Union (Withdrawal) Bill—in particular, on clause 11.

There is a general view in the Scottish Parliament that powers that will come from the EU that relate to the Scottish Parliament should reside here. That is the issue that has been debated around the withdrawal bill and which has—regrettably, because of internal differences in the Conservative Party—not been resolved. As Neil Findlay pointed out, we heard a number of statements before the turn of the year from Conservative politicians in Scotland saying that the issue could be resolved and that they would work constructively to table amendments. However, when the time came, 10 January 2018 passed with no amendments having been tabled, which has precipitated the crisis that we have today.

From the point of view that the devolution settlement is under threat and that the Government’s purpose for introducing the continuity bill is to protect that devolution, we support the general principles. However, I will have a wry smile about the number of SNP members who have made speeches championing devolution. This time last year, we debated a second independence referendum in which the speeches of those members were about ripping up the devolution settlement.

A number of issues have been raised during the debate. One challenge is about legislative competence and the fact that the Presiding Officer’s legal advice is different from that of the Lord Advocate, who has issued his certificate in support of the Government’s position. Members from across the chamber have picked the legal advice that suits their political argument; Christina McKelvie favours the Lord Advocate’s position and Rachael Hamilton favours that of the Presiding Officer. The situation puts MSPs in difficult and uncharted territory. With the exception of Sandra White’s member’s bill, this is the only occasion when the Presiding Officer has not issued a certificate of legislative competence, and it is obviously serious that his view is different from that of the Lord Advocate. It is important that we try to resolve the issue during the process, because we do not want to end up in the courts. As Neil Bibby pointed out, it is not normal for the Presiding Officer or the Government to publish legal advice, but given the gravity of the situation, both should consider publication, in this instance.

Claire Baker was right to point out the challenges around scrutiny and transparency. It is already clear from the debate that the bill is complex and that a lot of amendments will be lodged at stage 2. The deadline for amendments is Friday and the stage 2 debate will be held next Tuesday, which is only six days away. That truncated process is a concern. In addition, calls have been made repeatedly—during the debate and at the committee meetings that Mr Russell attended—for publication of the 25 areas on which the Scottish and UK Governments disagree in respect of the powers that should be passed to the Scottish Parliament. It is difficult for members to formulate appropriate amendments when matters that are central to the debate are not fully transparent and before MSPs.

Stuart McMillan

Does James Kelly agree that no MSP should have been surprised by the continuity bill being introduced, because of the actions and inactions of the UK Government?

James Kelly

I have made that point, but now that we are in the process, we parliamentarians have a challenge in how to work our way through the issues. If we stick to the timetable over the next two weeks, there are issues about legislative competence, and serious challenges for scrutiny and transparency.

Mike Rumbles has raised concerns about the regulations that are to be passed to ministers under section 13, and there are concerns that too much power would be put in the hands of ministers.

Patrick Harvie spoke about section 17 and consent with regard to subordinate legislation. Graham Simpson raised the issue of retained EU law and the potential that it could undermine legal certainty.

Section 28 and the ambiguity around the “exit day” definition has also to be addressed: I know that the minister has said that he is committed to doing that.

The continuity bill presents for Parliament extremely difficult challenges relating to legislative competence, scrutiny and other issues. Having listened to the debate, I agree with Alex Neil and Neil Findlay: the Tories face a real challenge—that of resolving their internal differences and helping to come up with a solution. Otherwise, we will find ourselves in a position in which, as parliamentarians, we will have to navigate a very difficult parliamentary process, around which there are legal issues. Even if the bill is passed, it could end up in the hands of the courts, which nobody wants. We want a solution to be found that keeps the devolved powers where they should be—in the Scottish Parliament.

16:40  



Donald Cameron (Highlands and Islands) (Con)

We are generally used to having at stage 1 a consensual debate in the chamber. It is usually the stage at which parties tend to avoid head-on confrontation by agreeing to the general principles of a bill so that it can be scrutinised in more detail at stages 2 and 3, when the technical specifics of amendments are debated. That is not the case today. The Conservatives will be voting against the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

I begin with legislative competence. The Presiding Officer has deemed the bill to be beyond the competence of this legislature, but he has been ignored by the Scottish Government, which is charging on regardless, for the first time in the history of the Scottish Parliament. The significance of that should be lost on no one.

The devolution settlement is enshrined in the Scotland Act 1998, which is a remarkable and historic document. It is the act that gave birth to this institution—this Parliament. Tom Arthur and Bruce Crawford talked about it, and I agree with what they said about its special nature, although I disagree with many of the conclusions that they drew. The architects of that legislation, who carefully designed it, who understood the nuances of devolution and who calibrated the delicate balance between reserved and devolved authority and the sensitivities involved, created something of wonder. The act is not perfect—no act is—but it has led to remarkably little litigation and legal controversy.

The concept of legislative competence is paramount to that. Section 29 of the Scotland Act 1998 says:

“An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.”

The Supreme Court has said that that provision lies

“at the heart of the scheme of devolution to which the Act gives effect.”

Anything that is outside competence “is not law”—that is a simple, basic, raw fact—and, as we all know, Presiding Officer, the act provides for you to give your ruling on legislative competence.

Joan McAlpine

Given the context of his remarks, would Donald Cameron like to comment on the remarks of Lord Hope, the former deputy president of the Supreme Court, who said that the European Union (Withdrawal) Bill had “a touch of Cromwell” about it?

Donald Cameron

Conservative members are on record as saying that clause 11 of the withdrawal bill is not fit for purpose. I do not dispute that, at all.

However, the Scotland Act 1998 expressly provides for the Presiding Officer to give his ruling on competence. In fact, it does not merely provide for that; it mandates it—it is compulsory. It states that the Presiding Officer “shall” give his view. Why should you give your view, Presiding Officer? Is it a courtesy or a mere convention, or could it be the case that legislators saw the need for the leader of this Parliament—the person who has been elected by us all to head up the institution; the Presiding Officer—to be the guardian of what this Parliament legislates on?

Bruce Crawford

Will the member take an intervention?

Donald Cameron

No. I want to make progress.

According to the Supreme Court, the sections in question are

“designed to ensure that the Scottish Parliament confines itself to the defined areas of competence”.

Section 31 is entitled, “Scrutiny of Bills”. It could not be plainer. The Presiding Officer’s ruling on legislative competence is about scrutiny; it is about examining and auditing the legislation that is introduced here. Presiding Officer, you are the gatekeeper. Last week, you stated unequivocally and explicitly that the continuity bill falls outside legislative competence. Despite that, the Scottish Government is ploughing on regardless, and is turning the Scotland Act 1998 on its head by obstinately persisting with the bill in a way that is both unnecessary and unprecedented.

Bruce Crawford

Does Donald Cameron accept that the architects of the 1998 act were clever enough to make sure that it was designed such that it is within the capacity of the Government of the day to introduce a bill for discussion in Parliament despite a ruling from the Presiding Officer that it is outwith competence? That is the situation that we are in today.

Donald Cameron

The explanatory notes to the 1998 act say that that is something that the Parliament should take into account in the passage of a bill.

The Lord Advocate can set out the legal views of the Government, as he did last week, but there is absolutely no procedural requirement for him to do so. Again, that was unprecedented.

However, not content with those new departures, the Scottish Government goes further and faster. Last week, we were told that the continuity bill was to be emergency legislation, which goes against the grain of every emergency bill that has been passed so far. That remains a disgrace, and every party in Parliament other than the Conservatives was complicit in a decision that has landed us with a farcical timetable, in which fundamental legislation on the constitution has to be considered in the space of a mere three days.

Patrick Harvie

Will the member give way?

Donald Cameron

I am sorry, but I do not have the time.

Labour and the Liberal Democrats might piously express concern today, but they voted for the bill and for the timetable. We have also previously heard complaints from the SNP about not having enough time to read the Brexit impact papers or about the House of Commons not having time to debate amendments on the UK bill, but have there been any complaints about a three-day timetable for one of the most radical constitutional bills that has come before this Parliament? There has been not a whisper from SNP members. That is not respecting the devolution settlement; it is discrediting it. It is not defending the Scottish Parliament; it is attacking its very foundations.

Turning to the detail of the continuity bill, I note that the Scottish Government’s policy memorandum says that the bill will “add ... complexity” and “present serious logistical challenges”. No formal consultation was possible prior to its introduction, but if ever there was a need for consultation or for detailed oral or written evidence from professional bodies, the third sector or the vast array of people and members of the public who could be affected, this was it.

There are serious concerns that the bill goes beyond the UK bill on, for example, the EU charter of fundamental rights. The continuity bill would incorporate directly into Scots law the charter as it applies to devolved matters, but it is excepted from incorporation in the UK bill. The Law Society of Scotland has argued that where the bill takes a fundamentally different approach,

“the Scottish Government should be permissive with suggestions to improve or clarify the bill as it passes through the Parliament.”

I hope that the Government has taken note of that.

Alex Neil

I want to ask Mr Cameron the core question that is at the heart of where the Tory party is. What, today, is Tory party policy? Is it still to transfer the 25 outstanding powers back to this Parliament, or is it to keep them at Westminster?

Donald Cameron

I will come to that in a moment. [Laughter.] I will, I will, I will.

The Law Society of Scotland has noted that the bill would introduce new categories of law such as “retained (devolved) EU law” that

“may make it more difficult to be certain about the law.”

In its briefing, SPICe says that it is not clear which rights will be captured by section 4. There is also currently in the UK bill no clause that is comparable with section 13, which has already been mentioned and which would give ministers the power to make regulations to ensure that, where appropriate, Scots law on devolved areas can continue to keep pace with EU law after the UK has left the European Union. The 15-year period that is set out in that section is of grave concern; Mike Rumbles was absolutely right to suggest that it undermines this Parliament.

All those points—there are others that I am sure we will come to in the bill’s later stages—point to the fact that the continuity bill does not complement or coincide with the UK withdrawal bill. It has to be acknowledged that it is something quite different, and that it has all the makings of a constitutional and legal minefield. I sense every lawyer in the land rubbing their hands in glee. So many issues, so little time.

Indeed, the real tragedy—Jackson Carlaw was right about this—is the timing of the continuity bill. Negotiations are at a crucial and delicate stage, with the two Governments close to agreement, but with an important issue to determine. At such a sensitive moment—the very moment when it is most critical that trust be maintained between Governments—what happens? Out of nowhere, the SNP gives us this bill.

In answer to Alex Neil’s point, in that case, everyone agreed that clause 11 was unfit for purpose, accepted the need for common frameworks and was striving to reach an agreement. However, the bill drives a coach and horses through that.

Neil Findlay

Will the member give way?

Donald Cameron

No.

Neil Findlay

Come on!

Donald Cameron

No.

The UK Government has made a big concession in relation to immediate devolution of powers. It made a major move towards the SNP and marked a substantive change in position. The SNP faced a choice: either it could focus in good faith on the discussions that are coming to a head, or it could continue to play games with the constitution.

There we have it. The bill is outwith Parliament’s powers, the Presiding Officer has been defied, and Parliament has been stripped of time to scrutinise the bill adequately. What a mess!

We will have no truck with the SNP’s game playing. We will oppose this irresponsible law making. We will support a sensible deal on Brexit that will bring more powers back to Scotland. Above all, we will oppose this wretched wrecking bill at decision time.

16:50  



Michael Russell

I am conscious that a number of themes have emerged this afternoon and I want to treat them carefully. However, I will start, as I often do, with a quotation. It is from John Maffey, the UK ambassador to Ireland during the second world war. He said, rather wryly, while looking at Ireland, its difficulties and the language that was being used, “Phrases make history here”, which also happens to be the title of a very good book of Irish political quotations.

John Maffey meant that we have to be careful in difficult circumstances. We have to make sure that we do not make those circumstances worse, and that we try to use accurate and careful language to describe where we are so that we can make progress. I say that because I am concerned about the language that has come from the Tory front bench, as well as from some of the back benchers. I want to make it clear that difficulties are being caused by that language and its inaccuracy.

During the weekend, Ruth Davidson said in an interview on television—I did the subsequent interview but I was in the middle of a snowstorm while she was indoors—that the SNP Government had “rammed through” emergency legislation. Members in this chamber voted 86 to 27 in a democratic vote, so those words cannot be used accurately.

Secondly, Rachael Hamilton said that “rushed legislation” is always bad legislation and pointed to the example of the Land Reform (Scotland) Bill. I was on the committee that scrutinised that bill. There were two years of consultation, and nine months between the passing of the bill and royal assent. I understand that Rachael Hamilton does not like the Land Reform (Scotland) Act 2016. She does not like land reform, like many of the members who are sitting around her. They feel threatened by land reform; I wonder why. The reality is that that legislation was not rushed.

Adam Tomkins’s account of this morning’s meeting of the Finance and Constitution Committee and the evidence from the Law Society could, at the very least, be challenged simply by looking at the video of that evidence being given. There was a very constructive discussion on a range of issues. Other evidence was given, too. It was not simply the Law Society turning up and saying “Woe is me!”; there were many discussions.

For example, there was discussion of section 5, on general principles of EU law and the charter. The bill takes clear steps to improve the position in the UK bill, keeping the charter in Scots law. Indeed, in other evidence, in exactly the same session this morning, Professor Aileen McHarg clearly pointed out that there are in the bill effective remedies to the problems raised by Professor Tomkins. It is extremely important to present such issues accurately.

I regret Donald Cameron’s use of language. He used the word “disgrace” and described the Liberal Democrats as pious; that does not help when we are trying to discuss the issue carefully. The nadir was, of course, Mr Golden, who used the words “illegal” and “wildcat legislation”. Strangely enough, those words appeared in a press release from Mr Cameron earlier today. Clearly there has been some collusion over the choice of words. The bill is not illegal. It anticipates exactly the circumstances that we are in, and there are remedies for those circumstances.

It is really important that I make clear the point that phrases make history. If, in difficult times, we are going to debate and discuss the resolution that we must find, let us do so with accuracy, rather than what we have heard this afternoon.

Let us also not mis-tell our history. Of course we all took different positions at various times in the Constitutional Convention, and all of us did different things. Mr Arthur and Mr Golden were too young to vote in the 1997 referendum, but I ran the campaign for the SNP; I also ran the yes-yes campaign jointly with Andy Myles from the Liberal Democrats and Jack McConnell from Labour. We therefore had parties working together in that campaign.

However, let us move on to the key question, which is not necessarily about what we did in previous referenda, but about what we do now. That is the very important point that Bruce Crawford raised. What do we do now? Do we keep the interests of devolution and the devolved settlement at the forefront of our minds—

Adam Tomkins

What about the bill?

Michael Russell

—or do we keep something else at the forefront of our minds, whether it be shouting, as in the case of Professor Tomkins, or party advantage? Let us look at that question very carefully.

I will turn to some of the issues of detail before I come to the point that I want to conclude on. I have made it clear from the beginning of this process, and will go on making it clear, that I am open to discussion and debate on the issues of detail. Of course the bill is open to amendment; I indicated that to Mr Rumbles at the start of the process and I make it clear now. If there are defects in any of the bill’s sections that members are passionate about—clearly, Mr Rumbles is passionate about section 13—amendments can be lodged and discussed in the normal way. I again pay tribute to the Parliamentary Bureau and all those involved, as we have developed a system that will allow that amendment process to happen and—I hope—happen well.

However, I am also happy to argue for section 13. I have to say that the wording is directly drawn from the existing provisions in EU law, in the European Communities Act 1972.

Daniel Johnson

Will the minister give way?

Michael Russell

No, I have to make progress. I am sorry.

We therefore believe that the power in section 13 continues to be appropriate in certain circumstances. However, if we have to define those circumstances more closely and if the Parliament wishes to have constraints on them, it is entirely legitimate for members to lodge amendments that we can debate and discuss, as I hope that we will.

A range of other issues have been raised in the debate that can be addressed in evidence at stage 2, or even during stage 3, and I have shown my willingness to discuss the bill with any individual member or any committee. We therefore have a range of ways of dealing with the bill’s detail. We should do so using accurate language and with a determination—no matter people’s views on whether we should be here with the bill—to try to get the best legislation possible.

The heart of the issue was seen in succeeding speeches this afternoon: one from Mr Carlaw, and one from Alex Neil. I commend both those speeches, although I disagree with Mr Carlaw and I agree with Alex Neil. I fear that Jackson Carlaw might have unwittingly taken us backward, rather than forward, in the debate on the bill, whereas Alex Neil tried to take us forward. Alex Neil will recognise that as a case of “respice, prospice”—something that he talks about often as the motto of his old school. Kate Forbes and Neil Findlay made exactly the same point.

Tomorrow, we will have to address the substantive issue of whether we can get an agreement and whether the UK Government has dug itself into a position where it cannot accept the basic principle—Kate Forbes made this point—not to sign away the Scottish Parliament’s responsibilities. Mark Drakeford has made that point about devolution and Kate Forbes quoted him on it.

If the UK Government is determined not to accept that basic principle of devolution, there cannot be an agreement. However, as Alex Neil indicated, there is the possibility of finding in the middle some way in which we can all accept the devolved settlement. The devolved settlement cannot be wished away. If the UK Government wishes to alter the devolved settlement, it must come with primary legislation to do so. However, as Alex Neil indicated, it is possible to find some way of coming to an agreement that accepts the devolved settlement.

I was concerned about Adam Tomkins’s presentation of the Sewel convention. It had eerie echoes of Jacob Rees-Mogg on the issue of the Irish border, blaming the EU and not the Brexiteers. I make it absolutely clear that the Sewel convention should apply and should go on applying, and I hope that nobody in this chamber believes otherwise. If there is any attempt to argue, as appeared to be the case, that in some sense we have sold the pass on the Sewel convention, let me put that firmly and clearly to rest: do not blame the victim for the crime.

The reality is that the Sewel convention applies and should apply. It would be an extreme step—of the type that I hope was not anticipated by Mr Carlaw in his speech—if that convention were to be abandoned by the UK Government—[Interruption.] Mr Tomkins simply keeps shouting. I have tried to indicate that I think that that is an inappropriate way to deal with these issues. The appropriate way to deal with them is to have the type of debate that he was involved in this morning at the Finance and Constitution Committee, where there was constructive debate. I do not know what he had for his lunch, but clearly it did not agree with him.

I finish by simply saying this. I will go into tomorrow’s discussions in London, as I know Mark Drakeford will—I spoke to him at lunch time today—hopeful, positive and purposeful. However, we will be judged in the end by the chambers to which we report. The judgment will come on the key issue that Kate Forbes spoke about. Have we made sure that we stand up for and do not trade away the responsibilities and rights of this Parliament? Have we found weakness within ourselves that does not allow us to do that?

I believe that we should stand up for the rights of this Parliament, because that is standing up for the rights of the people of Scotland. When I go in to negotiate, I will be absolutely determined to find a way to get an agreement.

The Presiding Officer (Ken Macintosh)

That concludes the debate.

Financial resolution

A financial resolution is needed for Bills that may have a large impact on the 'public purse'.

MSPs must agree to this for the bill to proceed.

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Financial resolution transcript

The Presiding Officer (Ken Macintosh)

The next item of business is consideration of motion S5M-10784, in the name of Derek Mackay, on a financial resolution for the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

Motion moved,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, agrees to—

(a) any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act, and

(b) any charge or payment in relation to which Rule 9.12.4 of the Standing Orders applies arising in consequence of the Act.—[Derek Mackay.]

Vote at Stage 1

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Vote at Stage 1 transcript

The Presiding Officer (Ken Macintosh)

The first question is, that motion S5M-10817, in the name of Michael Russell, on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill at stage 1, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
White, Sandra (Glasgow Kelvin) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Swinney, John (Perthshire North) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Smyth, Colin (South Scotland) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Sarwar, Anas (Glasgow) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rennie, Willie (North East Fife) (LD)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
McNeill, Pauline (Glasgow) (Lab)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Findlay, Neil (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Ewing, Fergus (Inverness and Nairn) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Bibby, Neil (West Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Scott, John (Ayr) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Greene, Jamie (West Scotland) (Con)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Corry, Maurice (West Scotland) (Con)
Chapman, Peter (North East Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Carlaw, Jackson (Eastwood) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)

The Presiding Officer

The result of the division is: For 94, Against 30, Abstentions 0.

Motion agreed to,

That the Parliament agrees to the general principles of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

The Presiding Officer

I point out that, because this is the emergency bill procedure and the Parliament has agreed to the general principles of the bill, stage 2 amendments should be lodged by 2 pm this Friday, 9 March.

The next question is, that motion S5M-10784, in the name of Derek Mackay, on a financial resolution for the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
White, Sandra (Glasgow Kelvin) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Swinney, John (Perthshire North) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Smyth, Colin (South Scotland) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Sarwar, Anas (Glasgow) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rennie, Willie (North East Fife) (LD)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
McNeill, Pauline (Glasgow) (Lab)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Findlay, Neil (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Ewing, Fergus (Inverness and Nairn) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Bibby, Neil (West Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Scott, John (Ayr) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Greene, Jamie (West Scotland) (Con)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Corry, Maurice (West Scotland) (Con)
Chapman, Peter (North East Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Carlaw, Jackson (Eastwood) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)

The Presiding Officer

The result of the division is: For 94, Against 30, Abstentions 0.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, agrees to—

(a) any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act, and

(b) any charge or payment in relation to which Rule 9.12.4 of the Standing Orders applies arising in consequence of the Act.

The Presiding Officer

That concludes decision time.

MSPs agreed that this Bill could continue

Stage 2 - Changes to detail 

MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.

Meetings on changes

Documents with the changes considered at this meeting:

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First meeting on changes transcript

The Convener (Bruce Crawford)

Good evening and welcome to the ninth meeting in 2018 of the Finance and Constitution Committee. I ask all members who are in attendance, as well as officials and so on, to make sure that their phones will not interfere with proceedings.

The only item of business on our agenda is scrutiny of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill at stage 2. I welcome to the meeting the Minister for UK Negotiations on Scotland’s Place in Europe, Mike Russell, and his officials, as well as non-members of the Finance and Constitution Committee.

Members will be aware that we have a substantial number of groups of amendments to consider. Although, at this stage, I do not intend to impose time limits on contributions, I am mindful of the need to ensure that sufficient time is allowed for consideration of all the amendments, including those in the later groups, so members and the minister are asked to keep their contributions as concise as possible. In addition, I am aware of the demands on members and the minister, and I am particularly aware of the duty of care towards parliamentary staff and Government officials, so I propose that we aim to finish the meeting at around 10 o’clock. However, I will allow the meeting to go beyond that time if it is judged that that is required.

Members will also be aware that the Parliament has agreed to extend the deadline for consideration of stage 2 so that, if needed, we will have the opportunity to continue stage 2 proceedings tomorrow morning. The clerks have issued a revised agenda and we will meet tomorrow morning at 8 am. The stage 2 proceedings will be the only item on the agenda and we will consider the scheduled legislation at our meeting on 21 March. All of that means that we have at least eight hours at our disposal to consider amendments.

Members should not put their identification cards into the consoles. I have already seen some members doing that—I know that it is a habit that they will want to continue. Members should not press the request-to-speak buttons, either. Instead, the microphones will become active as they would normally do in a committee meeting. In other words, members should behave as if this was a committee meeting.

Section 1—Purpose and effect of this Act

The Convener

Amendment 58, in the name of Liam Kerr, is grouped with the other amendments that are shown on the groupings paper.

Liam Kerr (North East Scotland) (Con)

Thank you for allowing me to attend the meeting, convener.

My three amendments in this group are entirely a function of the need for clarity. It is imperative that the bill expresses precisely what it is for, what it intends to do and how it intends to go about it.

The concept of legal certainty is not merely promoted by me; it is one of the fundamental principles of European Union law. According to the European Court of Justice, the law must be certain, clear and precise, and the implications of each law must be foreseeable. Legislation must be worded so that it is clearly understandable by those who are subject to it. It is with that guiding principle in mind that I lodged amendments 58, 60 and 65—and, indeed, all the amendments that I will speak to tonight.

Amendment 58 proposes that the word “prospective” in section 1, page 1, line 7 be deleted. That would clarify that withdrawal from the European Union is not prospective and that the United Kingdom is withdrawing from the EU. That is important. It is about being specific, right at the top of the bill. We need to recognise that the UK is leaving the EU, and section 1(1) needs to make that explicit.

There is good legal reason for such an approach in so far as the bill will have effect only once we leave the EU. It cannot be acceptable that the very first section in the bill should countenance any doubt on that. Let me be clear: the word “prospective” countenances doubt. It does not mean “has not happened yet but will do so”. According to the “Oxford English Dictionary”, it means “likely to happen at a future date”, which is not the same. The word “prospective” should be deleted.

Amendment 60 is also intended to provide clarity of expression. As currently drafted, section 1 speaks in hypotheticals, whereas my view is that it should be clear. Is a provision made under the bill enforced before the relevant date? I presume that the draftsman will consider that at the time. It is surely far preferable to talk in absolutes when an absolute truth exists. A provision made under the bill either is or is not incompatible with EU law. Amendment 60 seeks to make that clear.

Amendment 65 follows the same logic. I do not understand—and worse, I do not think that those who are subject to it will understand—why the caveat is necessary. Something either is or is not within the legislative competence of the Scottish Parliament. That is the test against which it should be judged, and it is not helpful to set up a hypothetical whereby someone must hypothesise that it would be legislatively competent if it were contained in a particular place.

Besides that, there is a question over whether the bill is legislatively competent. If the Scottish Parliament passes the bill, it will become an act of the Scottish Parliament. Anything that could be hypothesised to be contained in it or made under it would become part of devolved legislative competence, even though the act’s devolved legislative competence could be challenged. Clarity is required, and amendment 65 would achieve that.

I move amendment 58.

Murdo Fraser (Mid Scotland and Fife) (Con)

I have lodged two amendments in the group—amendments 59 and 64—and I will talk to them in turn.

Amendment 59 would insert at section 1, page 1, line 11 the declaratory statement:

“A decision by the Supreme Court that any or all provision of this Act is outside the legislative competence of the Scottish Parliament must be complied with.”

The amendment is largely self-explanatory and would simply provide clarity in relation to the Supreme Court’s role. As members are aware, the Presiding Officer of this Parliament has expressed his opinion that the bill does not fall within this Parliament’s competence, but that view is disputed by the Lord Advocate, acting on behalf of the Scottish ministers. It is therefore possible—indeed, likely—that the dispute will end up in the Supreme Court, which will have the responsibility for ruling on the matter.

Amendment 59 would make clear beyond any doubt that, should the Supreme Court rule that the act is outwith the competence of this Parliament, that ruling must be complied with. That would apply to the act as a whole or any part of it that was so affected by a ruling of the Supreme Court.

Some members might argue that amendment 59 states the obvious. Nevertheless, it is important that there is in the bill an acceptance of any decision that is made by the Supreme Court, so that there are no subsequent disputes—legal or political—about the legality of the legislation.

I move amendment 59.

I lodged amendment 64 to try to bring clarity to the operation of the bill. I follow a similar line of argument about how the bill is drafted to the one that Liam Kerr put forward. Section 1(3) says:

“‘the relevant time’, in relation to any provision of this Act or any provision made under it”—

in other words, the date on which any provision of the act will come into effect—will be the date when the EU law in question

“ceases to have effect in Scots law as a consequence of UK withdrawal.”

That seems to be an unnecessarily complex way of addressing a fairly simple issue. The European Union (Withdrawal) Bill at Westminster provides that the date on which we are leaving the EU is 29 March 2019, at 11 pm. It is clear that it is at that point that EU law will cease to have effect across the UK, including in Scotland. That, therefore, is the date that should be referred to in section 1(3).

Another date may be agreed—for example, because of transitional arrangements that are put in place. In that case, there is provision in the withdrawal bill for a minister to amend the date of 29 March 2019, and that right of amendment is reflected in my amendment 64. Not to agree to the amendment would potentially create some uncertainty as to the date on which the provisions in the bill that is before us will come into effect. My view is that it is simpler and more accurate to tie the effective date in the bill to the date in the withdrawal bill to ensure that there is complementarity between the two bills, and that is the reason behind amendment 64.

The Convener

It is not necessary for members other than the member who speaks to the lead amendment in the group—in this case, Liam Kerr—to move amendments during the debate on the group. I will ask members to move other amendments at the relevant time.

Alexander Burnett (Aberdeenshire West) (Con)

My amendment 61 replaces the words “relevant time” with the words “exit day”. That is identical to amendment 62, and amendment 63 is required following those two amendments. The effect of the three amendments is to clarify that the bill will apply from exit day.

The bill has a slightly curious structure for defining when its provisions will begin. Section 1(2) says that the bill will have no effect

“until the relevant time”,

but then section 1(3) defines

“the relevant time”

as whenever a provision of the bill is no longer incompatible with EU law

“as a consequence of UK withdrawal.”

There is, therefore, some ambiguity. A provision no longer being incompatible with EU law as a consequence of the UK leaving the EU is not quite the same thing as the UK actually leaving the EU. In theory, those could be two separate times. We could leave the EU but leaving EU law as a consequence of leaving the EU might be pegged to a different date.

In other words, at present, the moment at which the bill kicks in is not the exit date. Instead, we are left with the vaguer definition of the moment at which a provision ceases to be incompatible with EU law. That sounds theoretical, but there is a much tighter definition elsewhere—for example, in section 2—and the equivalent sections of the withdrawal bill are significantly tighter in linking all its provisions to exit day. There is a reason for that, which is that it is far clearer. The continuity bill should be clear that its provisions begin on exit day. Amendments 61 and 62 clarify that up front, and amendment 63 removes section 1(3), which becomes redundant.

My next amendment in the group is amendment 203, which seeks to define exit day as 29 March 2019, which is when the UK will leave the EU. Section 28 provides a definition of “exit day”, but it is open to interpretation, saying only that exit day is whenever the Scottish ministers say. That is completely divorced from any legal, political or constitutional reality, and there is no case for it whatsoever.

Because the entire bill follows from that definition, any number of questions could follow if it is not changed. Could ministers define exit day as being after the UK has actually left? Could ministers define it differently from the definition in the rest of the UK? I hope that the minister will address those questions in his comments. My amendment 203 therefore brings the definition that is used in the bill into line with that which is used in the withdrawal bill. As a consequence of amendment 203, I support Donald Cameron’s later amendment to delete section 28 in its entirety.

My amendment 229 seeks to insert a number of lines:

“The Scottish Ministers must by regulations repeal any provision of this Act which is incompatible with—

(a) the European Union (Withdrawal) Act 2018, or

(b) the Scotland Act 1998.”

As a consequence, I propose in my amendment 230 that, in section 37 on page 24, line 29, we leave out “subsection (1)” and insert “subsections (1) and (1A)”. The intent of those two amendments is to place on ministers a duty to repeal any part of the future act that is incompatible with either the withdrawal bill or the Scotland Act 1998.

The courts are the ultimate arbiter of what is compatible between acts, and they are the only mechanism for deciding on conflicts. However, any court action is time consuming and expensive. We would directly put into the bill a process for establishing what would happen if the bill conflicted with the existing legislation, particularly the withdrawal bill, because we still consider that to be the right mechanism to prepare the Scots statute book for exit. The SNP claims that it still wants a deal to do so shortly, and it supports that, too. The Scotland Act 1998 defines the Parliament’s rights, and the amendment would ensure that ministers would repeal any part of the bill that was incompatible with the two acts.

18:00  



Gordon Lindhurst (Lothian) (Con)

I refer to my entry in the register of members’ interests as a practising advocate.

My amendments 66, 67, 72 and 74 relate to the position of the Scottish Parliament bill that we are considering in relation to the Scotland Act 1998, which is an act of the United Kingdom Parliament. The 1998 act established the Scottish Parliament and prescribed its powers. In particular, section 29 of that act sets out the Parliament’s legislative competence. I need not go into the detail of that section save to mention subsection (1), which provides that any act of the Scottish Parliament that is outside its legislative competence “is not law”.

The purpose of amendment 66 is not to alter the meaning of the particular subsection that it relates to; rather, its purpose is simply to modify the wording to make it entirely clear by express definition rather than by reference.

Amendments 67, 72 and 74 must be read in the context of the whole bill. If amendment 68, which was lodged by my colleague Adam Tomkins, were to be accepted and section 1 were to be left out altogether, that would deal with the issue that is raised by section 1, which is addressed by my amendment 67. However, in the event of section 1 being passed as part of the act, it is vital that its grand title—“Purpose and effect of this Act”—should be clearly set in the legal context that it finds itself in: namely, the Scotland Act 1998. My amendment 67 makes it clear that the bill is to be read and given effect subject to the 1998 act. Only if it is so read and given effect to could the bill ever be within the competence of the Scottish Parliament—although I make no concession that it would be even then.

The whole of section 29 of the 1998 act—not just the provisions about EU law—applies to the bill. In that context, it is important, by way of explanation, to note the limited extent of the Lord Advocate’s statement on the competence of the bill in dealing, as it does, with very limited issues of EU law. In his answer to a parliamentary question, the Lord Advocate said:

“The legislative competence of any Bill is determined by applying the relevant legal tests. The principal question in relation to the competence of the Bill arises under section 29(2)(d) of the Scotland Act 1998—namely, whether the Bill is incompatible with EU law.”—[Written Answers, 27 February 2018; S5W-14945.]

As the Lord Advocate said, in his view, that is the “principal question”. Even in that statement, he did not say that it was the only question. I am sure that he would concede that, if his comments were to be widened out to cover all relevant options, the whole of section 29 of the 1998 act applies, not just that specific part. Indeed, there are many other sections of the 1998 act that are relevant in the context of the bill.

The prospective nature of the bill, the Presiding Officer’s comments on it and its failure to meet the test for legislative competence will be familiar to the committee. My colleague Liam Kerr has touched on the need for law to be precise, clear and certain. I would add to his comment that that is a requirement not only in EU law but in human rights law, which the Scottish Parliament will still be subject to after UK withdrawal from the EU.

There is a whiff of anarchy and lawlessness about how the bill is drafted. Indeed, as drafted, the bill might be considered questionable on an objective reading when measured against the standard of the rule of law itself. It is, of course, the rule of law that underpins our civilisation.

My amendment 67 would deal both with the undesirable reality and also with any appearance of that, as would, in particular, amendment 214, in the name of Adam Tomkins, which would leave out section 33.

I associate myself, in particular, with the other amendments of like nature in this group, which are amendments 78, 80, 82, 88, 97, 104, 105, 112, 114, 143 and 161 to 163. I do not need to go into those amendments.

My final amendments in the group—amendments 72 and 74—likewise seek to remove any shadow of doubt that the provisions of the bill operate, and are intended to operate, in the legal framework within which we operate as a civilised society under the rule of law.

Adam Tomkins (Glasgow) (Con)

I associate myself with Gordon Lindhurst’s remark that there is a whiff of anarchy and lawlessness around the provision that we are debating. It is incompatible with the rule of law, which is one of the fundamental building blocks on which the United Kingdom constitution is based, including the devolution settlement. For that reason, if for no other, section 1 should be deleted from this bill.

I have 13 amendments in this group. In the interests of time, I propose to discuss them in three sub-groups rather than going through all 13 separately. I will first consider amendment 68, then amendment 214, and then amendments 215 to 225.

Amendment 68 seeks to omit section 1 from the bill. In a series of powerful and well put together contributions this evening, we have already heard a whole list of reasons why section 1 is not fit for purpose. There are two approaches that one could take to the problem. One could go through the section line by line and seek to delete individual words, as Liam Kerr’s amendment 58 seeks to delete the word “prospective”, or one could take a holistic view and say that the section as a whole is not fit for purpose. That is the view that I took when lodging amendment 68.

Section 1 is titled “Purpose and effect of this Act”. The problem with section 1 is that it does not accurately capture either the purpose or the effect of the legislation. The true purpose of the legislation is, if not to obstruct Brexit, then at least to make the course of Brexit manifestly more complicated and difficult. That is the purpose of the legislation, and that is not reflected in section 1.

The effect of the legislation is to create unnecessary legal complexity and confusion, to complicate the statute book and to make the operation of the statute book manifestly more complex post-Brexit than it is now. Section 1 should be removed because it fails accurately to record either the true purpose or the true effect of the legislation that we are considering this evening.

Paragraph 5 of the explanatory notes that accompany the bill says that the legislation seeks to ensure

“certainty, stability and predictability for the people who live and work in Scotland”.

However, the true purpose and effect of the legislation is the opposite of that. This bill will ensure uncertainty, instability and unpredictability for the people who live and work in Scotland.

At paragraph 4 of the policy memorandum that accompanied the publication of the bill a fortnight ago, there is a quotation from the Scottish Government’s comments about legislative consent with regard to the UK Government’s European Union (Withdrawal) Bill:

“the Scottish Government accepts that proper, responsible preparations should be made for withdrawal, including preserving a functioning legal system.”

I welcome those comments by the Scottish Government and I agree with them, but the bill does no such thing. In fact, it does the opposite. The bill does not provide for responsible preparations; it provides for irresponsible whatever the opposite of preparations is. It does not preserve a functioning legal system; it goes out of its way to make the legal system more difficult to function after Brexit than it is now.

At paragraph 7 of the policy memorandum accompanying the bill, the Scottish Government talks about

“maintaining a functioning system of devolved laws”

and

“ensuring that laws operate effectively”.

I agree that we need to maintain

“a functioning system of devolved laws”

and I agree that we should ensure so far as we are able that

“laws operate effectively once the UK has left the EU”,

but the bill will do the opposite. It will sow the seeds of confusion and complexity. For that reason, if we are to have a provision at the beginning of the bill that seeks to record the bill’s purpose and effect, it should do so accurately.

There are some things in the policy memorandum that I agree with. The policy memorandum states at paragraph 12:

“The Scottish Government has always accepted that there are advantages to being able to prepare for UK withdrawal across the UK‘s legal jurisdictions using a single statute.”

I agree with that; the whole of the Conservative Party agrees with that. That is why we think that the bill is unnecessary and why section 1 should be removed.

I move to amendment 214, which seeks to remove section 33 from the bill. The concerns here are rather different. This is an issue that goes directly to the question of legislative competence.

We know that the Presiding Officer has given an opinion that the bill is outwith legislative competence because, in his opinion, it violates the requirement in section 29(2)(d) of the Scotland Act 1998 that this Parliament may not legislate incompatibly with EU law. I should say that we know that there are two views on that point, and that the Lord Advocate and the Scottish Government have taken a different view about the compatibility of the legislation with EU law. I do not intend to rehearse those arguments at the moment.

There are other constraints on our legislative competence, including that we may not legislate on reserved matters provided for in schedule 5 to the Scotland Act 1998 and that we may not modify certain protected enactments listed in schedule 4. Included in those protected enactments that we may not legislate to modify is the Scotland Act 1998. There are some exceptions—there are some provisions of the Scotland Act 1998 that we do have the legislative competence to modify—but we do not have the legislative competence to modify either section 29 or section 57. Section 33 of this bill provides that section 29 and section 57 of the 1998 act are to be amended. Those provisions are manifestly outwith legislative competence.

Members may know that that matter was debated in the chamber this afternoon. In response to the point I put to him, the minister cited paragraph 7 of schedule 4 to the Scotland Act 1998, which, in his view, means that section 33 is within legislative competence and not outwith legislative competence. Paragraph 7 provides that

“this schedule does not prevent an act of the Scottish Parliament ... repealing any spent enactment”.

My view is that that exception does not apply to section 33 for two reasons. The first is that we are not talking about an enactment: we are talking about provisions. The second is that the provisions—section 29 and section 57 of the Scotland Act 1998—will not be spent. That is a core point. It goes to the heart of the issue on which the Scottish Government rests its case for the continuity bill.

18:15  



The Scottish Government rests its case for the continuity bill on the assumption that section 29(2)(d) of the Scotland Act 1998 will empty itself of all content and meaning once the United Kingdom leaves the European Union, and that it will no longer mean anything in language or in law to say that the Scottish Parliament may not enact legislation that is incompatible with EU law.

The mistake that the Scottish Government has made—I am sure that it is an honest mistake—is to assume that that is correct and that it follows that any enactment that refers to EU law and the legislative competence of this Parliament will be spent on exit day. I think that that is a wildly optimistic reading of the word “spent” and is an issue that the courts—if the matter ever came before the courts—would take a very different view on. My view is therefore clearly and unambiguously that section 33 of this bill is outwith the competence of the Scottish Parliament not for the reasons that are identified in the Presiding Officer’s statement but for other reasons—that section 33 of the bill is incompatible with schedule 4 to the Scotland Act 1998.

The final sub-group of amendments in my name in this grouping—amendments 215 to 225—concern various paragraphs of schedule 1 to the bill that, again, fall foul of the requirement in schedule 4 to the Scotland Act 1998 that the Scottish Parliament may not legislate to modify certain provisions of that act.

Paragraph 4(2) of schedule 4 to the Scotland Act 1998 lists the various provisions of that act that the Scottish Parliament may modify, by way of exemption to the general rule that we may not modify any provision of the Scotland Act 1998. My amendments seek to save all of the provisions that are listed in schedule 1 to the bill that fall within the list of exceptions. However, paragraphs 4, 5, 7 to 9 and 11 to 16 of schedule 1 to the bill do not fall within the list of excepted provisions and are therefore provisions of the Scotland Act 1998 that the Scottish Parliament has no legislative competence to amend. They are all incompetent.

The Scottish Government might not see them this way, but with my amendments I am seeking to help the Scottish Government by making the bill compatible, rather than incompatible, with the restrictions on legislative competence with which any Parliament that respects the rule of law—which Gordon Lindhurst spoke about so eloquently a few moments ago—must surely respect.

Jamie Greene (West Scotland) (Con)

I start by thanking the parliamentary staff who are attending the meeting this evening, and all those who have assisted in getting us to this stage in very tight timescales. I am very concerned about the manner in which we are debating a considerable number of amendments to such an important bill, which will have a far-reaching constitutional effect. I will speak to amendments 73, 204 and 231 and others in the group.

Amendment 73 would amend section 3. It seems like a very minor wording change from “if” to “and only if”, but the amendment is about adding clarity to the incorporation of devolved direct EU legislation, which is perhaps a new term for us. The current phrasing describes direct EU legislation as devolved

“if it were contained in an Act of the Scottish Parliament ... within the legislative competence of the Scottish Parliament.”

That phrasing allows for ambiguous reading of what could be categorised under it because of the word “if”, alone. In order to avoid any legal misinterpretation, I propose to insert the words “and only if”. That would specify that functional implementation of retained devolved EU law, as contained within a Scottish act of Parliament, falls within the competence of the Scottish Parliament, as outlined in the Scotland Act 1998 and the agreed devolution settlement.

Amendment 204 would amend section 28. I propose to leave out subsection (1), which relates to the meaning of “exit day”.

There should be a definitive point at which the UK is no longer part of the European Union but, by transitive property, that should mean that there is only one date, on which Scotland also will no longer be a member of the European Union. That date is not for Scottish ministers to decide, nor should it be open to any ambiguity. The definition of the date of our exit should be in keeping with the date for which the European Union and the UK Government legislate, and to which the UK Government agrees, but the aim and language of section 28(1) will allow the date on which Scottish ministers perceive Scotland to leave the European Union—if at all—to be different from that on which the other parts of the UK leave.

The definition of “exit day” should be removed in favour of the one in Alexander Burnett’s amendment 203, which I support and which would tie Scotland’s departure from the EU to that of the rest of the UK, as accepted by the EU. As it stands, that date is defined as 29 March 2019 at 11 pm. That might seem to be a small point, but we seek to tidy up the language in the bill, so I hope that members agree that that is sensible.

Amendment 231 would amend section 37, and says:

“This Act or provisions of this Act must be repealed if deemed to be unlawful by a relevant court.”

That is a very important point that is related to the wording of Murdo Fraser’s amendment 59.

We are all aware that there is discussion about the legal competence of the bill; the Presiding Officer does not believe that we have the remit to legislate in this way. Therefore, it is entirely uncontroversial and, indeed, sensible to suggest that should “a relevant court” decide that the bill is outside Parliament’s competencies, or that its entirety or any part thereof is in any way illegal, the bill—or, at least, the parts of it that are deemed to be unlawful—should be repealed. I like to think that Parliament would repeal any law that was deemed to be unlawful, but in the interest of certainty, it would be best that we ensure that we do not keep on the statute book legislation that a court has deemed to be unlawful.

I turn to comments that my colleague Adam Tomkins made. On amendment 68, I echo his comments on removal of section 1. In the few bills that we have passed in my experience of legislating in Parliament, ministers have sought to avoid including purpose and effect in the great level of detail that there is in this bill. I point to my experiences with the Islands (Scotland) Bill in the Rural Economy and Connectivity Committee. We argued strongly for purpose to be added to the bill for two reasons: to set expectations among people outside Parliament as to what we seek to achieve through the bill, and to provide clarity on the purpose of the law.

Section 1(1)(b) implies that one of the primary purposes of the bill is to ensure

“the effective operation of Scots law … upon and after UK withdrawal.”

The implication of that is that Brexit somehow poses a risk to the ability of Scots law to continue effectively after withdrawal. Nowhere does the policy memorandum indicate what risks there are to Scots law after withdrawal. Indeed, none is clearly defined and in no debate or discussion has anyone been able to explain what the risks are. I would be interested to hear the minister address that matter, which is why I strongly support Adam Tomkins’s amendment 68.

Amendment 214 would remove section 33. Any references to changes to the Scotland Act 1998 cause me concern. Taking into account that there are different views about why section 1 might not be competent—the Presiding Officer’s and my learned colleague Adam Tomkins’s—I am minded to strongly agree with its removal. Those are all my comments on the amendments in the group.

Jackson Carlaw (Eastwood) (Con)

I am resisting the temptation to refer to the convener as “Presiding Officer”, given our surroundings. That might just be a premature mistake on my part. Who can tell?

My amendments are lodged in the spirit of a champagne glass of constructive reflection for the minister to dwell upon, and I know that he will seek to embrace them in that spirit. The committee will regret the fact that, unlike Professor Tomkins, I am not a professor of law, so my exposition on my amendments might be slightly less erudite in its delivery and—to use a word that is favoured by the minister—I might prospectively end up being slightly briefer. We will see.

The effect of amendments 78, 80 and 82 would be to ensure that the devolved rights that exist as a consequence of the European Communities Act 1972 are secured in Scots law in a way that also respects the devolution settlement and the Scotland Act 1998.

Section 4 sets out what will be secured and saved after exit day in devolved rights, liabilities, restrictions, and so forth, and amendment 78 would make it clear that all those rights are subject to the Scotland Act 1998. The reason for that is simple. The way in which the bill has been introduced is a challenge to the assumptions and conventions that underpin devolution. A bill has, for the first time ever, been introduced despite the opinion of the Presiding Officer, as was referred to by Professor Tomkins. The bill contains many provisions that store up questions about what is, or what might not be, devolved. Amendment 78 would make it clear that the specific devolved rights that are recognised in Scots law by virtue of the European Communities Act 1972 are all subject to the Scotland Act 1998.

Amendments 112 and 114 are not wholly dissimilar. They make it clear that the definition of “retained (devolved) law” is in line with the Scotland Act 1998. Colleagues will note that section 10 sets out how it is to be interpreted. Section 10(8) defines “devolved jurisdiction” further as

“jurisdiction in relation to matters that are within the legislative competence of the Scottish Parliament”.

Section 10(9) sets out what “retained (devolved) case law” means. In both cases, the committee, the minister and the Government should be far more specific. Amendments 112 and 114 would define the legislative competence of the Scottish Parliament as outlined in the 1998 act, and nothing beyond that.

As I said, my amendments have been lodged in a spirit of constructive reflection for the minister, and I can see that he, like everybody else who is watching the proceedings, is riveted by the prospect.

The Convener

That might have been the shortest discussion so far.

Jackson Carlaw

I might lose support because of that, but we shall see.

Donald Cameron (Highlands and Islands) (Con)

I also record my thanks to you and your committee, convener, as well as to the legislation team for their Herculean efforts in getting to where we are tonight.

I will speak to amendments in three sub-groups: I will speak first to amendments 88 and 97. They are amendments to section 5, which deals with general principles of EU law. My amendments seek to refer explicitly to the legislative competence of Parliament, as set out in the Scotland Act 1998, for the very real reason that we have already seen severe difficulties with the concept of legislative competence, given that the Presiding Officer has taken the view that the bill is outwith competence and the Lord Advocate has taken a different view.

Given those difficulties, it is important that we place explicitly in the bill the concept of legislative competence. It is a vital principle that sits at the heart of the devolution settlement, and we ignore it at our peril.

18:30  



As members will know well, the Scotland Act 1998, which established this Parliament, sets out that concept in section 29. I will not waste time by going through it, but it is useful to make an observation on Adam Tomkins’s point about modifying certain enactments that are set out in schedule 4 of the act, which appears in section 33 of the continuity bill. With the greatest respect to the Government, I say that it has a serious problem in relation to competence. I do not think that its get-out—that those are spent enactments—will work for it. Section 33 is entitled “Repeal of spent references to EU law etc”, and there is much to be said for Adam Tomkins’s points in that regard.

That said, I have lodged amendments 88 and 97 because, ultimately, no area of the continuity bill should attempt to supersede the Scotland Act 1998 and the concept of legislative competence. Therefore, it is imperative that we include references to legislative competence in relation to the general principles of EU law, so that that is explicit in the bill.

I turn to amendments 143 and 161 to 163, which would amend section 12 and section 13. In effect, they seek to enshrine a different element of the Scotland Act 1998—what I have previously referred to as the delicate balance that that legislation creates between reserved and devolved matters. Amendment 143 makes explicit

“provision in relation to matters that are reserved under schedule 5 of the Scotland Act 1998.”

Amendment 161 again makes explicit

“provision in relation to devolved and reserved matters.”

Amendment 162 makes explicit the relation to reserved matters, and amendment 163 refers to

“matters not devolved to the Scottish Parliament”.

I observe that it is imperative that those points, too, be made explicit in the bill.

Amendment 205 refers to the exit-day provision in section 28. If the committee agrees to Alexander Burnett’s amendments to tie the phrase “exit day” to the meaning that appears in the UK withdrawal bill, section 28 would become obsolete and could be deleted. Alexander Burnett gave several reasons for that approach. I submit that if the UK Government can determine exit day, that day should be used. It would be a recipe for chaos if we were to have two exit days, or if there were to be the ability to define a different exit day. I suggest that my amendment 205 be accepted by the committee for that reason.

Maurice Golden (West Scotland) (Con)

In the interests of time, I will speak to my amendments 104 and 105 together, because the arguments for—ideally—the committee accepting them can be combined.

Amendment 104 would add

“as provided for in the Scotland Act 1998”

to section 6, on “Principle of the supremacy of EU law”, at line 10 of page 5. I will shortly come on to why that extra line is distinctly important.

Amendment 105 deals with section 7, on “Challenges to validity of retained (devolved) EU law”. It seeks to insert, in line 17 of page 5:

“where the regulations are—

(i) within the legislative competence of the Scottish Parliament, and

(ii) exercisable by the Scottish Ministers within devolved competence,

in accordance with the Scotland Act 1998.”

I believe that those two amendments should be accepted by the committee based on two main arguments. The first is the critical importance of the Scotland Act 1998—I will go on to explain that—and the second is the issue of timing with respect to the purpose and the effect of the bill. I will be making those arguments not as a result of my own legal competence, which is—unfortunately, on this occasion—limited to international law and the supranational jurisdiction, but I urge the committee not only to read the law but listen to experts in reading the law.

On the critical importance of the 1998 act, as we will all be aware, the UK Supreme Court has made it clear that section 29 of the 1998 act, which lays out the principle of legislative competence, is at the heart of the scheme of devolution to which the act gives effect. In other words, it goes to the very core of the devolution settlement that founded this Parliament. I believe that we cannot allow a bill that trespasses on such a vital element of Scottish devolution to pass.

In the interests of time, I will not give the full quotation, but Tobias Lock, who is a senior lecturer at the University of Edinburgh law school, told the Scottish Parliament’s Culture, Tourism, Europe and External Relations Committee:

“In contrast, section 29 of the Scotland Act 1998 limits the powers of this Parliament. The question of compatibility with EU law is one that must be asked in relation to legislation that is introduced in the Scottish Parliament but it does not have to be asked in relation to legislation that is introduced in the Westminster Parliament.”—[Official Report, Culture, Tourism, Europe and External Relations Committee, 8 March 2018; c 27.]

That demonstrates the fundamental importance of section 29 and the fundamental importance of legislative competence to the bill that we are considering. I would hope that the committee is convinced that the Scotland Act 1998 is critical to ensuring that the bill is acting in accordance with current legal and legislative competence.

The issue of timing is important in terms of the amendments that I have highlighted. It will clarify—should it need to be clarified in the future—any challenge to the competence of the bill.

As we are aware, the Presiding Officer and legal experts have suggested several reasons why the bill could be contrary to the 1998 act. Two of the foremost individuals in this area—Christopher McCorkindale, who is lecturer in law at the University of Strathclyde, and Aileen McHarg, who is professor of public law at the University of Strathclyde—wrote about the issue for the UK Constitutional Law Association. They have analysed the Presiding Officer’s legal argument; in the interests of time, I will abridge their views. In essence, they say that the delayed effect of the bill is irrelevant to its legal validity, and that that undermines the core argument for the bill. Their point is supported by the Supreme Court’s judgment in the famous 2012 case of Imperial Tobacco Ltd v The Lord Advocate, which I will abridge. It acknowledged that

“the exercise to be undertaken was in essence no different from that which was applicable in the case of any other United Kingdom statute.”

Therefore, the description of the 1998 act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation. The statute must be interpreted like any other statute. Therefore, we have to ensure that the bill is within competence and is acting within the framework of the Scotland Act 1998. My amendments would ensure that this attempt at legislation does not contravene the 1998 act. I urge the committee to support the amendments.

James Kelly (Glasgow) (Lab)

Amendment 55, in the name of my colleague Neil Findlay, relates to the definition of “exit day” in section 28. The section seeks—perhaps it is an unintended consequence—to place the power for defining “exit day” in the hands of Scottish ministers. That does not seem to be a logical or correct thing to do in the sense that the power for defining “exit day” obviously lies at UK level, so we seek to take that reference out and make it clear that the date should be when the UK leaves the EU.

We have not set exit day to be a specific date, as we want to give some flexibility on that. We do so on the basis that there might well be transitional arrangements in place for the period after the original date. We hope that there will be, as transitional arrangements would give the advantage of access to the single market and customs union before the leave date. Amendment 55 avoids any confusion and is a sensible way forward.

I indicate support for amendments 58 and 60, in Liam Kerr’s name. As Liam Kerr said, they bring some clarity to the proposed legislation. However, I oppose all other amendments in the group, because they are not necessary and do not add anything to the sum of the legislation.

Patrick Harvie (Glasgow) (Green)

I thank members for their various efforts. I do not intend to talk about the amendments that seem to me to be wrecking amendments, or those that come from a mischievous motivation, but there are some that deserve brief comment.

In particular, we have just heard some quotes from the evidence of committee witnesses, which Mr Golden called “abridged”. However, I suggest that some of those witnesses might feel that they have been quoted heavily out of context. The committee has access to the full written submissions, as well as the oral evidence that we heard. [Interruption.]

The Convener

Please let the member continue.

Patrick Harvie

Members of the committee have access to the full written and oral evidence from those witnesses.

I have a couple of brief points. Some of the proposals on the issue of competence and Murdo Fraser’s suggestion of an additional line referring to decisions of the Supreme Court seem to raise some possible unintended consequences. In particular, Murdo Fraser’s amendment would risk creating a separate status for decisions of the Supreme Court in relation to different categories of Scottish legislation. I am not sure whether that is the intention but, if that amendment has any purchase, that would be its meaning. It seems more likely that it will have no effect; therefore, it is not needed.

In relation to Liam Kerr’s objection to the word “prospective”, it is clearly the case that the UK Government is fully committed to its current reckless and destructive course of action, but that does not require the rest of us, whether members of this Parliament or those who we represent, to abandon hope that rational thought will resume. The suggestion that that word be removed from the bill is a matter of political posturing, rather than anything else.

18:45  



Liam Kerr

Will Mr Harvie take an intervention?

The Convener

There are no interventions, Mr Kerr. You will have a chance to wind up in a moment. Please continue, Mr Harvie.

Patrick Harvie

Finally, in relation to the suggestion that there is “a whiff of anarchy” about this—

Adam Tomkins

On a point of order, convener.

The Convener

There are no such things as points of order at committee, Mr Tomkins.

Patrick Harvie

My final comment, convener, is that in relation to the suggestion that there is “a whiff of anarchy” about this situation, I simply reflect on the fact that there are more toxic odours about the political landscape of this country at present, and I am not troubled by this one.

The Convener

There are no points of order, and I wanted Patrick Harvie to finish his point. There are points of clarification, and I understand that Mr Tomkins wants to raise one.

Adam Tomkins

Thank you, convener. What is the position with regard to whether we may intervene on each other’s speeches, including the minister’s, in these debates?

The Convener

This is not a meeting of the Parliament; it is a meeting of the committee and I am going through a normal committee process. Those who have spoken to amendments, such as Liam Kerr, will have a chance to wind up, but there are no interventions in a committee process at this stage.

Ash Denham (Edinburgh Eastern) (SNP)

While there may be some constructive amendments this evening, amendment 68 is not one of them. Section 1 is clearly important in setting the overall purpose, context and intended effect of the bill. Taking it out is simply an attempt to wreck the bill.

The Minister for UK Negotiations on Scotland’s Place in Europe (Michael Russell)

Thank you, convener, and members of the committee. This is clearly going to be a long evening, but I am grateful to every member who is here. I am, in a sense, pleased to be here and I make that point. I hope that it will prove to be a constructive evening’s work and I say at the outset that that is the approach that I will be taking for the Scottish Government. I pay particular thanks to the committee and Parliament staff for their work. This has been a taxing time.

People who have sat through the past hour—we have been going for an hour now—would be surprised if they were to see a caption that said that there was

“a whiff of anarchy and lawlessness”

about the process in which we are engaged, or that what we are trying to do is

“incompatible with the rule of law”.

I repeat the point that I made several times in the chamber earlier: we should endeavour to use accurate language that helps us to go forward, rather than language that makes things difficult and more awkward. I also endorse Patrick Harvie’s point about members quoting evidence in such a way that I, certainly, did not recognise the burden of the evidence that was given by the individuals spoken about. No doubt members will wish to reflect on that.

The bill can be improved, and during the evening there will be many opportunities to improve it. I will be looking for opportunities to do so and I will consider all suggestions seriously. Although I have said from the start that we want to see agreement reached over the withdrawal bill, we are realistic. We may ultimately have to rely on this continuity bill for our preparations. We are realistic, too, about the complexity and importance of those preparations. We, and the Scottish Parliament, must get them right. Continuity of law on EU exit is essential if we are to rescue anything at all from the chaos of Brexit.

Let me turn to the amendments that address the definition in the bill of “exit day”. The members of both the Delegated Powers and Law Reform Committee and the Finance and Constitution Committee expressed concerns about the potential use of the power in section 28, and I made a commitment to address those concerns.

I should be clear about the Scottish Government’s position, because I think that there have been misapprehensions—to say the least—about our reasons for seeking that power. We have never claimed that either the Scottish Parliament or the Scottish Government would be able to influence or effect in law the date on which the UK leaves the EU. Would that that were so, but it is a reserved matter—one with the most profound devolved consequences but a reserved matter nonetheless. We cannot, alas, prevent Brexit by this bill and we cannot delay it by this bill. We have never claimed that a different day for Brexit could apply in law in Scotland compared with the rest of the UK, despite a number of speakers making that point. The power for the Scottish ministers to appoint an exit day for the purpose of the bill could only ever be exercised with reference to the purpose of the bill, which is to deal with EU withdrawal.

However, the date of Brexit, as things stand, is not yet set in stone. The UK Government accepts that, which is why it has taken a power in its own withdrawal bill to alter the date to reflect any agreement that might be reached between the UK Government and the European Council about a different time or date of withdrawal. That flexibility is required.

The Scottish Government therefore cannot accept the amendments in the name of Alexander Burnett, Murdo Fraser and Donald Cameron, as they would tie us to a definition that is contained in a bill that has not passed the UK Parliament and which has already been subject to repeated amendment. To do so would be to renounce this Parliament’s ability to legislate for itself rather than to assert that power. The bill has to work within its own terms.

Similarly, amendment 204, in the name of Jamie Greene, would remove the ability to set exit day at all, without replacing it. It is not clear to the Scottish Government why he has removed section 28(1) and left in place subsections (2) and (3), which rely on subsection (1). It is therefore technically deficient.

We are, however, happy to accept amendment 55, in the name of Neil Findlay. I am sorry that Mr Findlay is not here to hear that—he would be as surprised as Mr Kelly looks at this stage. Amendment 55 preserves the necessary flexibility. It makes it clear to the members concerned that exit day will mean the actual day of exit, whenever that might take place. My officials are considering whether any adjustment is needed to the wording of that amendment to ensure that it properly reflects the legal arrangements for the UK’s prospective withdrawal from the EU, so as to ensure that it would operate clearly and effectively across the various provisions of the bill that depend on the term. If any such further minor adjustments are required to the provision, I commit to discussing them with Mr Findlay, Mr Kelly and other members in advance and lodging the appropriate amendments at stage 3.

The rest of the amendments in this group relate to the question of the legislative competence of the bill. That is clearly an important issue for the Parliament to consider, so I welcome the opportunity that these amendments provide to further discuss some of the factors that the Government believes make the bill within competence.

I propose to start with Adam Tomkins’s proposal, in amendment 68, to remove section 1 from the bill entirely. Let me say at the outset that we do not consider that the competence of the bill is dependent on section 1. As the Lord Advocate has set out, the competence of the bill will be assessed according to its overall purpose and the relevant legal context. I will not repeat the Lord Advocate’s reasons for concluding that the bill is within the competence of the Parliament, including, crucially, that it is not incompatible with EU law. However, we think that section 1 is important in setting the overall purpose and context as well as the intended effect of the bill, which will guide the courts in interpreting its effect.

Amendment 58, in the name of Liam Kerr, seeks to remove the word “prospective” from the provision that says that the purpose of the bill

“is to make provision—

(a) in connection with the prospective withdrawal of the United Kingdom from the EU”.

The word “prospective” simply acknowledges the overall context of the bill, which is that we are required to make preparations for continuity of law prior to withdrawal, rather than when withdrawal has happened. I therefore think that the word “prospective” is right here in the description of the purpose of the bill. The definition in the online edition of the “OED” is:

“Characterized by looking into the future; forward-looking, anticipatory; having foresight or regard for the future”.

We think that the word “prospective” is accurate in this regard.

Of Liam Kerr’s other amendments, amendment 60 seeks to amend section 1(2) so that it refers to any provision of the bill that “is” incompatible with EU law, rather than, as the wording now is, any provision that “would . . . be” incompatible with EU law if it were in effect before the relevant time. Our view is that no provision of the bill is incompatible with EU law. The conditional language is correct in acknowledging the risk of incompatibility were the provisions to be in effect before the relevant time. That is why their effect is postponed to the relevant time—so they could never be incompatible.

On amendment 65, a number of provisions throughout the bill contain provisions that are intended explicitly to confine the operation of the bill’s provisions to Scots law on devolved matters, although that would have been implicit anyway under the Scotland Act 1998. The words that amendment 65 seeks to remove in this one instance are intended simply to reflect the fact that not all of the devolved Scots law that we are dealing with is contained in an act of the Scottish Parliament. Some of it might be in Westminster acts, subordinate legislation or rules of law. It is correct to say that whether that law is devolved should be judged by reference to whether it could have been included in an act of this Parliament. That is why we have those words.

Amendment 66, in the name of Gordon Lindhurst, on the definition of EU law has exactly the same effect as the current wording in the bill. The amendment defines EU law with reference to section 126(9) of the Scotland Act 1998, and the current wording already does that. With respect, I do not see how his suggestion improves it.

Amendment 59, in the name of Murdo Fraser, seeks to ensure that the Scottish Government complies with any decision of the Supreme Court that the continuity bill as enacted is outside competence. One of Alexander Burnett’s amendments seeks to require the Scottish ministers to repeal any provision of the bill as enacted that is incompatible with the UK bill or the Scotland Act 1998. Jamie Greene has a similar amendment that would require repeal of the bill as enacted.

We have discussed the competence issue at length. The Scottish Government is confident that the bill is within the legislative competence of the Scottish Parliament, but in the event that it was referred to the Supreme Court and found to be unlawful, which we believe is unlikely, the Scotland Act 1998 is clear on the effect of that. Section 29 of the 1998 act says that any act that is outside the competence of the Parliament is not law, so we could not repeal it, because it would not be law anyway. I recommend that the members who have made the proposal look at what section 29 says. There is no need to put in statute a provision that requires ministers to comply with the law or to repeal legislation that is found not to be lawful.

The other amendments that have been lodged seek to insert provision throughout the bill to specify that its effect must be read with reference to the Scotland Act 1998. Those amendments are also unnecessary. All the legislation that goes through the Scottish Parliament must be read with reference to that act—it tells us what is and what is not within competence. That is how the question should be answered. We could not support littering the statute book with duplication or irrelevant provisions of that nature.

Adam Tomkins seeks to remove the consequential amendments to the Scotland Act 1998 in section 33 and schedule 1 that remove spent references in EU law. Those amendments are included in the bill because, although the majority of the provisions that are repealed are enactments that are protected from modification by paragraph 4 of schedule 4 to the Scotland Act 1998, the repeals do not—as I said earlier today—fall foul of section 29(2)(c) because paragraph 7(1)(b) of schedule 4 expressly allows the repeal of spent enactments, and the provisions in question will all become spent following EU exit. Adam Tomkins might not agree with that, but that is the legal position as we see it. The bill does not need to make the amendments in question, because they will have no effect following EU exit, but it is responsible superintendence of the statute book to do so. This is a tidying-up exercise.

I therefore encourage members to resist amendments 58 to 68, 72 to 74, 78, 80, 82, 88, 97, 104, 105, 112, 114, 143, 161 to 163, 203 and 204, 214 to 225 and 229 to 231, but I encourage them to vote for amendment 55.

The Convener

I invite Liam Kerr to wind up.

Liam Kerr

In winding up, I simply say that clarity, certainty and understandability must be our guiding principle. With my amendments 58, 60 and 65, I seek nothing other than such clarity. Maurice Golden said that it was unfortunate that he had a grounding only in international law. I start from the premise that says that law should be understandable by those who are governed by it. The lawyers among us have had it drilled into us for years that we must always dispense with legalese, obfuscation and confusion. Therefore, we must seek to achieve clarity, and Maurice Golden should not be embarrassed to have a grounding only in international law.

With regard to amendment 58, Patrick Harvie talked about the word “prospective”. I am delighted to hear that Patrick Harvie accepts my point. In his view, through the use of that word, the bill seeks to import the uncertainty that I seek to remove. There is not uncertainty about whether the UK will leave the EU. Whether we like it or not, there is to be a withdrawal. As Mr Russell quite rightly says, we must have accurate language. He is right.

Mr Russell went on to talk about amendment 60. He talked about postponing things to the relevant time so that there is never any incompatibility in the first place. I assume that he is correct, but his approach is utterly confusing, which is my point. We must clear up that sort of thing.

My amendments would not prejudice the meaning of the bill—far from it; they seek to clarify and improve it. That is why I intend to press amendment 58 and to move amendments 60 and 65.

The Convener

I did not want to interrupt proceedings when we were in the middle of a discussion. Further to the point that Adam Tomkins raised, I will ask the clerk to clarify why I made the ruling that I made so that everyone is fully aware of what the situation is.

James Johnston (Clerk)

The debate on a group is the only opportunity that members have to comment on any of the amendments in it. The guidance on public bills, which is an aide-mémoire to the standing orders, states that members should therefore ensure that their speeches relate to all the amendments in the group on which they wish to comment. While the calling of speakers in a debate is at the discretion of the convener, members should generally assume that they will be called only once in each debate.

19:00  



The Convener

I hope that that makes that position clear. We will now move on to the voting process for that group.

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 58 disagreed to.

Amendment 59 moved—[Murdo Fraser].

The Convener

The question is, that amendment 59 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 59 disagreed to.

The Convener

If amendment 60 is agreed to, I will not call amendment 61 because it will have been pre-empted.

Amendment 60 moved—[Liam Kerr].

The Convener

The question is, that amendment 60 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 60 disagreed to.

Amendment 61 moved—[Alexander Burnett].

The Convener

The question is, that amendment 61 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 61 disagreed to.

Amendment 62 moved—[Alexander Burnett].

The Convener

The question is, that amendment 62 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 62 disagreed to.

The Convener

If amendment 63 is agreed to, I will not call amendment 64 because it will have been pre-empted.

Amendment 63 moved—[Alexander Burnett].

The Convener

The question is, that amendment 63 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 63 disagreed to.

Amendment 64 moved—[Murdo Fraser].

The Convener

The question is, that amendment 64 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 64 disagreed to.

Amendment 65 moved—[Liam Kerr].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 65 disagreed to.

Amendment 66 moved—[Gordon Lindhurst].

The Convener

The question is, that amendment 66 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 66 disagreed to.

Amendment 67 moved—[Gordon Lindhurst].

The Convener

The question is, that amendment 67 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 67 disagreed to.

Amendment 68 moved—[Adam Tomkins].

The Convener

The question is, that amendment 68 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 68 disagreed to.

Section 1 agreed to.

Section 2—Saving for devolved EU-derived domestic legislation

The Convener

Amendment 69, in the name of Neil Bibby, is grouped with amendments 70, 75, 79, 81 and 83.

Neil Bibby (West Scotland) (Lab)

I echo what other members have said and put on record my thanks to all the Parliament and committee staff, as well as our own MSP and party staff, who have supported us in this process.

I will speak to amendments 69, 70 and 79 in my name and refer to the other amendments in the group. As we know, the bill is complex and far-reaching. It is therefore important that the content of the bill is tested and, where necessary, clarified. That is what I hope to achieve with my amendments, which, as members may be aware, were proposed by the Law Society of Scotland.

Amendments 69 and 70 are probing amendments at this stage. Their purpose is to clarify the meaning of the word “passed” as used in section 2. The definition of “devolved EU-derived domestic legislation” in section 2 appears to include any enactment that has effect immediately before exit day. However, it is not clear that the definition extends to a bill that is passed by the Scottish Parliament but which has yet to receive royal assent; nor is it clear that an enactment that is in force before exit day but which applies afterwards is included, or that an enactment that is yet to be commenced is included. I therefore invite the minister to clarify whether the relevant section should apply to enactments that are passed or to enactments that have passed and commenced, and to explain whether the Government believes that there is a case for an amendment.

Amendment 79 is also a probing amendment, which seeks to clarify that the enforcement of rights that is referred to in section 4(1) is subject to section 7. Section 7 deals with the challenges to the validity of retained EU law. Again, I invite the minister to address those points and to explain that issue.

I note the Conservative amendments in the group. Clearly, across the chamber, members recognise the need for greater clarity in the bill. However, we all have to be satisfied that that is the intention and effect of the Conservative amendments 75, 81 and 83, and we must all be satisfied that amendments 75, 81 and 83 are necessary. In that regard, we will consider what Alexander Burnett and Liam Kerr say on those amendments.

I reiterate that the Labour amendments in my name in this group are constructive probing amendments that have been lodged to seek or provide clarity. I ask the Scottish Government and other members to give those amendments full consideration.

I move amendment 69.

Alexander Burnett

Amendment 75 would insert the words “in writing” after “notified” in section 3, page 3, line 9. The effect of the amendment would be to ensure that, where the bill wants to save EU law in the form that it was in immediately before exit day, it covers only decisions that are notified in writing. As the bill is drafted, people need only be informed.

Across the public sector, there are different definitions of what being informed means. There are some aspects of the public contracting of companies in relation to which the publication of information in an official journal, such as the Official Journal of the European Union or The Gazette, is deemed to be enough for the Government to have informed people about what is happening. However, elsewhere, and in this bill, there is more specific provision, particularly around consultation and regulations, which ensures that ministers take certain actions to inform Parliament or the subjects of law what is going on. Some of that information is passed on in an oral form, particularly where the Parliament is involved.

My amendment seeks to clarify exactly what is being saved from EU law. As the bill is drafted, devolved direct EU legislation that is operative immediately before exit day is saved after exit day, and section 3(4)(b) spells out what that means for people named in decisions. It says that the law is saved if

“it has been notified to that person before exit day”.

Again, that is too vague. The word “notified” could mean almost anything and, in theory, there might be situations in which somebody has been notified informally of a decision before exit day. After exit day, the legitimacy of that decision will clearly be called into question, and amendment 75 simply seeks to end that ambiguity. It would mean that any person or organisation that is specified in any decision will be subject to that after exit day only if they have been notified in writing before exit day.

Liam Kerr

Amendment 81 asks that we leave out from “any” to “jurisdiction” in line 35 and insert

“a court or tribunal administered by the Scottish Courts and Tribunals Service”.

Again, the amendment is simply about clarity and the ability to understand. It is presumably not beyond the ability of any draftsman to set out clearly what is meant by

“any court or tribunal in the United Kingdom exercising devolved jurisdiction”.

That is an objective category but, as drafted, it is complicated and difficult to isolate. Furthermore, section 4(5) seeks to define “devolved jurisdiction”, or what the specific court or tribunal would be exercising, as

“matters that are within the legislative competence of the Scottish Parliament.”

As the bill process is demonstrating, the question of legislative competence is not a fixed absolute. That means that the cross-reference at section 4(3)(b), which is phrased as an absolute, is not an absolute. Accordingly, in order to be clear about which body must be the judge of that to which section 4(1) applies, I have lodged amendment 81 to introduce objectivity in this provision.

19:15  



Amendment 83 is also about clarity. Section 4(1) sets out various things that are recognised immediately prior to exit day and which are expected to apply and be followed after exit day. Again, that is quantifiable. Either something applies after exit day or it does not. It is not appropriate that there is such a degree of ambiguity that any litigator, pursuer, defender or suchlike must trawl through, at great cost to themselves or to the taxpayer, reams of legislation and/or case law to establish whether it applies. No doubt, if it were appropriate, the other side or the opposition would contend for a different interpretation. If it is identifiable, identify it.

While we are there, let us look at section 4(1)(b), which demands that, to be applicable post-act, the provisions should be “enforced, allowed and followed” immediately before exit day. That begs the question whether that is a conjunctive construction and whether the provisions are enforced. To go off at a slight tangent, what happens if a provision has never been litigated to be enforced? Does it mean “enforced and allowed”, in which case we have to ask, “Allowed by whom?” and “What is allowed?” Does it mean “and followed”? If so, what happens if a decision was a one-off and the ratio decidendi was never used again? Alternatively, is the phrase a disjunctive phrase? The use of the word “and” suggests the former, but which is it?

Amendment 83 simply seeks to remove the ambiguity and room for doubt. If section 4(1) wants provisions to continue, let them be identified. If section 4(1) is argued to be sufficiently clear to identify an exhaustive list, let us have that exhaustive list. Members might wish to note that my authority for this amendment derives from the Law Society’s briefing note, which asks specifically that ministers explain exactly what the rights in section 4 relate to.

Michael Russell

I thank members for their amendments. I am conscious that, as Neil Bibby said, his amendments are probing amendments, which were suggested by the Law Society. I want to be clear in my answers to Neil Bibby and I will endeavour to do so.

I am happy to confirm that the effect of the bill is to save EU-derived domestic legislation whether or not that legislation is in force on exit day. As long as it has been enacted and falls within the categories that are described in section 4(2), it is saved with whatever effect it has at the point of exit day. The bill takes the same approach on this as the UK bill. That is appropriate, because EU-derived domestic legislation has been enacted or made by the domestic authorities having gone through a domestic scrutiny process. In contrast, section 3, which incorporates direct EU legislation, brings that legislation into the domestic legal system only if it is actually enforced. I know that that is a complex set of issues, but there is a difference there. In relation to acts of the Scottish Parliament, the bill defines what is meant by “passed” in section 27(2); it means when the bill is enacted by receiving royal assent. That makes the position clear.

Alexander Burnett’s amendments raise the question of when an EU decision that is directed to a particular person would be brought into domestic law. The bill provides that that happens only when the decision is notified to the person to whom it is addressed. That is because the drafting is the same as the equivalent provision in the UK bill. The bills reflect EU law, which provides that such decisions take effect only when notified. The notification specified consists of the sending of a registered letter with acknowledgement; that makes Alexander Burnett’s amendment unnecessary, as the point is already dealt with.

I note that Neil Bibby’s amendment 79 is trying to probe how effective the remedies will be under the bill, given the terms of section 7. Section 4 is already subject to section 7. The answer is that the rights of action that section 7 prevents will generally not be appropriate after EU exit, because at present only the Court of Justice can declare an EU instrument to be invalid. I set out more detail on that in my letter to the Delegated Powers and Law Reform Committee last week. The remedies that we are bringing forward are still effective, as individuals will be able to take action against Scottish ministers and public authorities for action that they take while acting within the scope of retained EU law.

I was not entirely clear what lay behind amendment 81. Liam Kerr has given some indication. It appears to provide, as a result of his drafting of the amendment, that the only rights that would be saved would be those recognised by courts administered by the Scottish Courts and Tribunals Service. That does not take account of the role of the Supreme Court in the Scottish legal system, which is the reason why section 4 refers to

“any court or tribunal in the United Kingdom exercising devolved jurisdiction”.

In essence, Liam Kerr’s amendment makes that less clear.

I turn to amendment 83. It would not be appropriate for the saving of legal rights and so on to be dependent on whether they appear in the list published by ministers. It is a question of law and the continuity of law. Once again, section 4 takes the same approach as the UK bill. We have stressed this because we are trying to ensure that the bills do not diverge too far, so that they are complementary.

I recognise the general uncertainty about exactly which “rights, powers, liabilities” are saved under the bill. That is a feature of the exercise that the UK Government is engaged in here, in having to transplant a whole legal system. Ultimately it will be a matter for the courts to determine what the rights and powers were at exit day, as it is presently a matter for them to determine what they are now. That is inherent in the exercise of providing for continuity of law. It is how both the UK and the Scottish bills operate. That is the reality of where we are.

I hope that I have provided some clarity on the probing amendments. There is clarity on what is meant by “passed”, and there is clarity on the differences that apply between section 3 and section 4(2). I hope that I have made clear how amendment 79 is addressed, and there is further information on that in my letter to the DPLR Committee.

In those circumstances, I hope that Neil Bibby is satisfied with those explanations and will not press his amendments to a division. I hope that Liam Kerr and the other members recognise that his proposals would make the bill more complex and less easy to understand.

Neil Bibby

As I said, my amendments 69, 70 and 79 are probing amendments that the Law Society of Scotland encouraged the Parliament to consider. The minister’s response to those amendments is now a matter of record. In advance of stage 3, we will consider the minister’s remarks and whether sufficient clarity has been provided.

I share the minister’s view that amendment 75, in the name of Alexander Burnett, is not necessary. I also share some concerns about the potential unintended consequences of Liam Kerr’s amendments at this stage.

I will not press the amendments in my name.

Amendment 69, by agreement, withdrawn.

Amendment 70 not moved.

The Convener

Amendment 71, in the name of Adam Tomkins, is grouped with the other amendments as shown on the groupings paper.

Adam Tomkins

Thank you, convener. I apologise if I called you “Presiding Officer” earlier. That was an inadvertent promotion on my part and one that I am not yet permitted to make.

There are 12 amendments in this group, all of them from members of the Scottish Conservative Party and 10 of them in my name. Collectively, the amendments in the group seek to make the bill subject to the withdrawal bill that is, as we know, currently going through the House of Lords, having already been passed by the House of Commons.

In each of my 10 amendments in the group, I seek to do that with a provision that “corresponds”—the word that is used in the Scottish Government’s explanatory notes, which accompany the bill—to the provisions in the withdrawal bill. The purpose and, I hope, the effect of my amendments in the group is to ensure that that correspondence is watertight.

Partly in defence of the indefensible way in which this Parliament has been invited to scrutinise the bill, the minister, Mr Russell, said to the Finance and Constitution Committee on 7 March:

“A great deal of work has gone into ensuring that the bills complement each other”—

that is to say, the continuity bill and the withdrawal bill—

“so that there is a workable solution.”—[Official Report, Finance and Constitution Committee, 7 March 2018; c 43.]

On 27 February, in the chamber, Mr Russell said:

“In drafting the bill, we have had to mirror the European Union (Withdrawal) Bill as closely as possible to make them fit together.”—[Official Report, 27 February 2018; c 66.]

I am taking Mr Russell at his word in this instance. I am accepting that there is a desire on the part of the Scottish Government to mirror the provisions of the European Union (Withdrawal) Bill and to make sure that the withdrawal bill and the continuity bill work together as closely as possible. I am accepting that there is good will on the part of the Scottish Government to make the two pieces of legislation fit together as closely as possible and that there is a desire on the part of the Scottish Government to ensure that the bills complement each other so that there is a workable solution to the undoubted problem of fixing the statute book—both the reserved and the devolved—so that it coheres, hangs together and makes sense after exit day.

The force of each of my amendments in the group is to help the Government to achieve what it has said—in its explanatory notes, in evidence to the committee and in the chamber—is its policy ambition. I will explain what each of my amendments does.

Amendment 71 is an amendment to section 2, which is on

“Saving”

in Scots law of

“devolved EU-derived domestic legislation”.

That is a mouthful, but it is not my mouthful. That provision in the bill corresponds to clause 2 of the withdrawal bill. Amendment 71 seeks to ensure that the operation of section 2 of the continuity bill is subject to the withdrawal bill so that there is full and complete correspondence between the two, which is the Government’s stated policy ambition.

Amendment 77 is an amendment in like terms to section 3, which provides for the incorporation of devolved direct EU legislation. It corresponds to clause 3 of the withdrawal bill. Again, my amendment 77 seeks to ensure that the operation of section 3 of the continuity bill is subject to the withdrawal bill so that there is full and complete correspondence between the two pieces of legislation, which is what the Government says its policy intention is.

Likewise, amendment 84 is an amendment in identical terms to section 4 of the bill, which is concerned with the saving for devolved rights under section 2(1) of the European Communities Act 1972. It corresponds to clause 4 of the withdrawal bill, and my amendment 84 seeks to ensure that the operation of section 4 of the continuity bill is to be read and given effect subject to the withdrawal bill to ensure, again, full and complete correspondence. This is all designed to make the bill more workable than it would otherwise be.

19:30  



My amendment 106 is an amendment to section 7. That section contains provision on future legal changes to the validity of retained devolved EU law, and it corresponds to paragraph 1 of schedule 1 to the withdrawal bill. Amendment 106 seeks to ensure that the operation of section 7 should

“be read and given effect subject to”

paragraph 1 of schedule 1 to the withdrawal bill—again, in order to give effect to the Government’s stated policy ambition of ensuring that the two pieces of legislation correspond exactly with one another.

Amendments 132 and 133, which I will deal with together, would amend section 11 of the continuity bill, which corresponds to clause 7 of the withdrawal bill and provides for a whole suite of ministerial powers, which we will discuss in substance later, that would enable Scottish ministers to deal with deficiencies in the statute book arising from UK withdrawal. Again, my amendments seek to ensure that both section 11 of the continuity bill and any future regulations made under it should

“be read and given effect subject to the European Union (Withdrawal) Act 2018”—

as it soon will be—and to any competent regulations made by UK ministers under that legislation.

Amendments 146 and 147, which are also in my name, relate to section 12 of the continuity bill—clause 8 is the corresponding clause in the withdrawal bill—which is the power of Scottish ministers to comply with international obligations. Given that international obligations and relations are reserved to the UK Parliament, it is particularly important that any provision in the continuity bill that gives effect to the power of Scottish ministers to comply with international obligations is subject to and read compatibly with the equivalent power in the withdrawal bill, which is what my amendments 146 and 147 seek to ensure.

Amendment 201, which is in my name, is an amendment to section 19: “Power to provide for fees and charges”. It is the equivalent of paragraph 1 of schedule 4 to the withdrawal bill. Again, the amendment seeks to ensure that there would be no incompatibility between the two bills by sewing them up together.

In case that is not enough and, in my desire to help the Government to ensure that the legislation is compatible and not incompatible with the withdrawal bill, I have inadvertently overlooked a provision in the bill, I have proposed the addition of a new section through amendment 226. It provides:

“This Act and any regulations made under it are to be read and given effect subject to the European Union (Withdrawal) Act 2018 and any regulations made under that Act.”

You might describe that as a belt-and-braces approach. The minister might accept amendment 226, in which case we could consider whether we would need to press amendments 71, 77, 84, 106, 132, 133, 146, 147 and 201, although I make no commitment in that regard.

My final point in support of the amendments in my name in this group is, again, a quote from the Government’s policy memorandum, which, in some respects, is a very helpful document. Paragraph 12 states:

“The scale of the task that is required to ensure a functioning statute book means that governments across the UK need to work closely together to ensure effective withdrawal arrangements that reflect the interests of all.”

Again, I find myself in complete agreement with the Scottish Government. The amendments in my name in this group seek to ensure that that is done in law and not just claimed as a matter of political rhetoric.

I move amendment 71.

The Convener

I call Jackson Carlaw to speak to amendment 76 and the other amendments in the group. I hope that you can keep up your good record.

Jackson Carlaw

Thank you, convener—I am doing my best to remain optimistic and cheerful. I keep looking to the minister in the hope that he will crack a smile on his savage visage at some point during the proceedings, as he absorbs all the good advice that is being received.

I potentially accept that amendment 76 is a niche amendment but, in the limited circumstances in which it might apply, it is nonetheless important and worth considering.

The effect of the amendment would be to ensure that, if the UK Parliament allows non-English case law to be part of the interpretation of EU law and English law, Scots law will do, too.

Section 3 sets out how devolved law will be saved into Scots law. Section 3(5) notes that that applies to law

“only in the form of the English language version of that legislation, and ... does not apply to any such legislation for which there is no such version”.

It is clear that that covers the vast majority of EU law, because all primary and secondary law and all directives up to the exit date will have been published in English. However, other languages are sometimes used for the interpretation of EU law. The Court of Justice of the European Union is the ultimate arbiter of what EU norms are, but it does not, as a matter of course, compare languages to see what meaning they might suggest in interpreting law and in creating case law. Different languages can furnish different interpretations—I have been caught out by that myself on a number of occasions—and that is not reflected in the bill as it stands.

Even if those occasions are relatively rare, as I said at the outset, it is important that, as we save existing EU law into Scots law, the bill makes provision for that flexibility. That is why the withdrawal bill, in its current drafting, has added into the equivalent section the phrase

“does not affect the use of the other language versions of that legislation for the purposes of interpreting it.”

The simplest way of making similar provision here is to say that the bill will match any provision that is made by the UK Parliament. That is for the simple reason that, if it makes sense for both Scots and English law to take the English language version of EU law to save, it makes sense to have the same ground rules on interpretation.

I listened with care to Adam Tomkins’s contribution in support of the other amendments in the group. All of that seemed to be very erudite and convincing, and I am happy to add my support to his profound contribution in that regard.

The Convener

He will be absolutely delighted by that.

I invite Graham Simpson to speak to amendment 113 and the other amendments in the group.

Graham Simpson (Central Scotland) (Con)

I do not think that I can be quite as cheery as Jackson Carlaw.

Jackson Carlaw

Ever.

Graham Simpson

That is true. However, I will do my best.

The intent of amendment 113 is to ensure that the bill reflects the final agreement between the UK and the EU. Section 10, which is about the “Interpretation of retained (devolved) EU law”, sets out what applies and what no longer applies. Courts would no longer be bound by EU law and would no longer be able to send cases to the European Court of Justice, but they could

“have regard to anything done”

by the EU or at an EU level. The section also sets out how that would be decided in accordance with devolved case law and mentions

“having regard ... to the limits ... of EU competences”,

as just before exit day. Therefore, there is a principle for what is retained and a mechanism for judging it.

We know a lot about what the UK and the EU want, and we have seen successive phases of negotiations starting to give some clarity about what the future relationship will be, but there are still questions and matters to agree. That is only to be expected when the negotiations still have to run their course.

The bill, as drafted, takes no account of that, and the consequences could be quite serious. As a hypothetical example, let us say that a transition period was agreed in the negotiations and that there was an agreement on which EU rules the UK would follow and which we would not follow in that transition period. I presume that there would have to be some agreement on how that was policed. That, in turn, would affect what body of EU law was respected, how it was interpreted and whether a court or tribunal could factor in EU decisions.

In the text of the December agreement, there is a good example of a reserved matter with clear importance for devolved courts. It says:

“the Agreement establishes rights for citizens following on from those established in Union law during the UK’s membership of the European Union; the CJEU is the ultimate arbiter of the interpretation of Union law. In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date. The Agreement should also establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it. This mechanism should be available for UK courts or tribunals for litigation brought within 8 years from the date of application of the citizens’ rights”.

That is quite a long quotation and there is not much punctuation.

The reason for amendment 113 is that, at this stage of the negotiations, there is a lot that we do not know about how we will interpret retained EU law. That is a completely natural consequence of the negotiations, but the bill tries to pre-empt that, so we need to be cautious. Amendment 113 would counter that by ensuring that section 10 was subject to the negotiations.

James Kelly

I oppose all the amendments in the group. The thrust of most of them is to seek to give undue legal effect to the withdrawal bill. As Mr Tomkins pointed out, it is right that the continuity bill mirror the appropriate parts of that bill, but I am not convinced about the arguments that he makes about giving legal effect to it. There has been a breakdown in the political position and it is clear that legislative consent for the EU withdrawal bill would not be supported, so it would not be correct to give legal effect to parts of that bill.

Patrick Harvie

I also oppose the amendments in the group. Rather than comment on each of them individually, I will reflect on the broad thrust of Adam Tomkins’s argument that the group is about the need for compatibility between the Scottish and UK legislation and his reference to the quotation about the value of Governments working closely together on the process.

It is worth while simply putting on the record for members who might not be aware of it that the Secretary of State for Scotland has decided to leave it until we are in the midst of this stage 2 process—in fact, just about half an hour ago—to bother sending to the Presiding Officer, committee conveners and party leaders in the Parliament the text of his amendments and a letter setting out his reasons. That is the context: the interest that the UK Government is showing in achieving compatibility with devolution or a respectful working together throughout the Brexit crisis.

Michael Russell

There is no doubt that the amendments in this group largely cut across the bill and its intention by making it subject to provisions in the UK bill. As Mr Kelly and Mr Harvie indicated, that would defeat the object of the bill, which is to ensure that we have stand-alone provision to deal with devolved law in the event that the Parliament is unable to give legislative consent to the relevant parts of the UK bill. It makes no sense to tie the continuity bill to the UK bill in that way.

Mr Harvie indicated that compatibility is addressed by ensuring that the two bills can do the same thing in different spheres, sometimes in the same way. That is entirely different from what Professor Tomkins’s amendments would do. They would make the continuity bill subject to the withdrawal bill. Even if we were to accept at face value his earnest and, he claims, helpful ambition, his amendments would not achieve any greater compatibility than we already have; they would, however, achieve subservience.

It will be a matter for the UK Government and the UK Parliament to table appropriate amendments to their bill, to reflect the outcome of the legislative consent process. It remains our preference to deal with the exercise of ensuring continuity in the statute book in the UK bill. We are working to achieve agreement with the UK and Welsh Governments to allow that, and to enable the Scottish Parliament to agree that the continuity bill is no longer necessary.

19:45  



Let me deal quickly with Jackson Carlaw’s amendment 76. I am afraid that Mr Carlaw has not read the continuity bill in enough detail, because the last line of section 3(5) does what he claims he wants to do in amendment 76. Section 3(5) states:

“but paragraph (a) does not affect the use of the other language versions of that legislation for the purpose of interpreting it.”

If the committee agrees to Jackson Carlaw’s amendment, it would simply be adding, again, to what the bill already does.

Graham Simpson’s amendment 113 makes the interpretation provision in the bill subject to the terms of the withdrawal agreement. We have, of course, been pressing for EU citizens to have certainty in relation to their position. The agreement that was reached on EU citizens’ rights in phase 1 of the negotiations was long overdue. We do not have the same aversion to a continuing role for the European courts as the UK Government, which has held up agreement on the matter.

However, the continuity bill is intended to deal with the immediate issues around the continuity of law. There will be—because the UK Government has said so—a separate UK bill to implement the withdrawal agreement when that is achieved. Mr Simpson is wrong to claim that it is within the gift of the Scottish Government to enable references from the Scottish courts to be made to the European courts after exit day. As the Advocate General for Scotland indicated when the House of Lords debated similar amendments last week, those matters are to be dealt with as part of the implementation of the withdrawal agreement. We accept that provision is to be made in the withdrawal bill, in accordance with the Scotland Act 1998, to enable us to implement the withdrawal agreement in devolved areas, including further legislative consent, as required. Let us hope that, when we consider that withdrawal agreement and transition bill, we do not end up going through the same process that we have gone through with the withdrawal bill. There needs to be respect for proper processes and the devolution settlement.

I hope that the committee will reject the amendments in the group. They neither meet the stated intention of their proposers, nor do anything to assist the continuity bill to operate effectively.

Adam Tomkins

I thank all the members who have spoken in the debate on what is an important group of amendments. I want to respond to two of the more extraordinary comments that the minister made.

The first was that amendments in the group cut across the continuity bill. They do not cut across the continuity bill in any way; they support it and help make it more likely to be upheld in the courts in any future legal challenge than is currently the case, given that it is badly drafted. What the amendments in the group avowedly do is cut across the claims that are made for the bill in paragraph 20 of the Scottish Government’s policy memorandum, which says that, as drafted, the bill will

“add to the complexity of the post-exit position”

and will

“present serious logistical challenges.”

The amendments in the group are designed to reduce the complexity that the bill adds to the post-exit position and dilute the serious logistical challenges that the bill has been designed to present.

What an extraordinary thing for the minister—such an ardent remainer—to have said on subservience. The read-and-give-effect formulation that is used in the majority of the amendments in my name in the group is lifted directly from section 2(4) of the European Communities Act 1972, which, as the minister might recall, provides that even acts of the sovereign United Kingdom Parliament must be read and given effect subject to the obligations of EU membership. If we are talking about subservience, what we have here is an ardent remainer claiming that the United Kingdom is subservient to the European Union, as the law of this country currently states. The idea that we should have legal provisions that require legislation to be read and given effect subject to other legislation is not subservience; it is legal continuity and legal certainty, and it is compatible with the British constitution and the rule of law.

The Convener

The question is, that amendment 71 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 71 disagreed to.

The Convener

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

Members: No.

The Convener

This is a procedural issue. As far as this process is concerned, when we reach the question on a section, opposition may be noted but there can be no vote. Conservative members’ opposition is therefore noted.

Section 2 agreed to.

Section 3—Incorporation of devolved direct EU legislation

Amendment 72 moved—[Gordon Lindhurst].

The Convener

The question is, that amendment 72 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 72 disagreed to.

Amendment 73 moved—[Jamie Greene].

The Convener

The question is, that amendment 73 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 73 disagreed to.

Amendment 74 moved—[Gordon Lindhurst].

The Convener

The question is, that amendment 74 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 74 disagreed to.

Amendment 75 moved—[Alexander Burnett].

The Convener

The question is, that amendment 75 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 75 disagreed to.

Amendment 76 moved—[Jackson Carlaw].

The Convener

The question is, that amendment 76 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 76 disagreed to.

Amendment 77 moved—[Adam Tomkins].

The Convener

The question is, that amendment 77 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 77 disagreed to.

The Convener

The question is, that section 3 be agreed to. Are we agreed?

Members: No.

The Convener

Conservative members’ opposition is noted.

Section 3 agreed to.

Section 4—Saving for devolved rights etc under section 2(1) of the 1972 Act

Amendment 78 moved—[Jackson Carlaw].

The Convener

The question is, that amendment 78 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 78 disagreed to.

Amendment 79 not moved.

Amendment 80 moved—[Jackson Carlaw].

The Convener

The question is, that amendment 80 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 80 disagreed to.

The Convener

Amendment 81, in the name of Liam Kerr, has already been debated with amendment 69. I ask Liam Kerr whether he wishes to move amendment 81.

Liam Kerr

Before I answer, convener, am I able to make a winding-up statement?

The Convener

No.

Liam Kerr

The minister provided some interesting food for thought on the issue and, on that basis, I will not move the amendment.

Amendment 81 not moved.

Amendment 82 moved—[Jackson Carlaw].

The Convener

The question is, that amendment 82 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 82 disagreed to.

Amendment 83 moved—[Liam Kerr].

The Convener

The question is, that amendment 83 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 83 disagreed to.

Amendment 84 moved—[Adam Tomkins].

The Convener

The question is, that amendment 84 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 84 disagreed to.

The Convener

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

Members: No.

The Convener

Conservative members’ opposition is noted, but there will be no division.

Section 4 agreed to.

The Convener

At this juncture, we will have a 10-minute suspension.

19:57 Meeting suspended.  



20:12 On resuming—  



Section 5—General principles of EU law and Charter of Fundamental Rights

The Convener

Amendment 85, in the name of Adam Tomkins, is grouped with the amendments that are shown on the groupings paper. Members will note that there are a number of possible pre-emptions in the group. I will remind members of a pre-emption when I call the relevant amendment.

Adam Tomkins

The group that we now turn to is concerned largely with section 5, which makes provision for the continuing effect in Scots law, after exit day, of the general principles of EU law and the Charter of Fundamental Rights of the European Union. They are dealt with in the continuity bill differently from how the UK Government proposes to deal with them under the withdrawal bill.

The fourth of the amendments in my name—amendment 85—seeks to divorce the bill’s treatment of the general principles from its treatment of the charter. That is because

“the general principles of EU law”

is a term of art that is understood very widely and clearly by EU lawyers, although it has generated significant confusion among people who are not schooled in EU law. The general principles of EU law are a concept: they are an unwritten and uncodified source of law in the EU. They are enforced by the European Court of Justice and have in EU law’s legal order an effect that is equivalent to the provisions of treaties.

The general principles are a concept, whereas the charter of fundamental rights is a legal instrument: it is a document. In our view, it is much cleaner and neater to make separate provision in the bill for the general principles and the charter of fundamental rights. The UK withdrawal bill does that—it treats the general principles in one way and the charter in another. The merging or blending of the two is an innovation in the continuity bill that we think is untidy and incoherent, for the reason that I have just outlined—namely, that the general principles are a concept and the charter is an instrument or document.

20:15  



We see no reason why the legal position with regard to general principles in Scots law after exit day should be any different from the legal position with regard to reserved law or UK law after exit day. Therefore, the force of my amendments with regard to the general principles—that is to say, amendments 85, 89 and 91—would be to amend the continuity bill so that it reflects what the withdrawal bill already says will be the legal position of the general principles in domestic law.

I understand that there is a policy difference between the UK Government and the Scottish Government on that score, and I understand that the amendments would reverse the policy of the Scottish Government, but that is because—I say respectfully—I disagree with the policy of the Scottish Government about what the legal position should be with regard to the general principles of EU law in Scots law after exit day.

Where I agree with the Scottish Government is with regard to treatment of the charter of fundamental rights. Therefore, in addition to amendments 85, 89 and 91, which deal with the general principles, I have lodged amendment 98, which would provide that the charter of fundamental rights would continue

“to have the same legal authority in Scots law on and after exit day as it had on the day before exit day.”

As a Parliament, we are free to legislate on human rights differently from how the United Kingdom legislates on human rights. We are not free to modify the Human Rights Act 1998, because that is a protected act under schedule 4 to the Scotland Act 1998—a provision that we have already had cause to debate this evening. However, we are free to legislate for additional human rights protections that will pertain in Scotland and in Scots law in addition to those that are already provided for in the Human Rights Act 1998.

We see the force of the argument that there is good reason to maintain the position of the charter of fundamental rights in Scots law after exit day. Therefore, my amendment 98 would introduce a new section that would sever treatment of fundamental rights from treatment of the general principles, and would ensure that section 5, on the general principles, was compatible with the withdrawal bill and that a new section on the charter of fundamental rights would maintain the current position and legal authority in Scots law of the charter of fundamental rights on and after exit day. We think that that is the right balance for the bill to adopt.

Such would be the force of my amendments in the group.

I move amendment 85.

Jackson Carlaw

I have listened to my colleague Adam Tomkins and can say that my amendment 86 builds on his in the sense that it would clarify which general principles of EU law would be saved into domestic legislation. Section 5 sets out that the general principles of EU law and the charter of fundamental rights will be saved into Scots law after exit day.

I understand that “general principles” has a widely accepted meaning—there is a specific set of principles that are described by that phrase—but it is not spelled out what those general principles are.

In section 5(4), there is a right to change

“those principles ... by or under this Act or by any other provision of Scots law from time to time”.

As the Law Society of Scotland has said, and as we believe, it would be helpful if the Government could identify what general principles it considers will be retained in Scots law.

There is, I understand, some debate about how the charter of fundamental rights fits into the general principles of EU law, with the charter sometimes being seen as written law and the general principles as unwritten law. However, as amendment 85 would not change the wording of the rest of section 5(4), that should not be an issue.

Amendment 86 would tidy up the bill and make the principles specific. The phrasing of the amendment would do exactly that, and makes clear that Scots law would include the following principles: subsidiarity, which states that national Parliaments can do things better than or equal to the European Union; equality before the law; proportionality, which involves regulating the powers of EU institutions to ensure that they are limited to those that are necessary to achieve the goal; and legal certainty.

Amendment 86 seeks to offer clarity and to give a concise definition of the principles that we will be saving into domestic legislation.

Liam Kerr

My amendment 87 seeks to remove yet more ambiguity by deleting section 5(1)(b). Section 5(1) seeks to ensure that the general principles of EU law and the charter are part of Scots law after exit day. The first qualification that is put on that is that those things

“have effect in EU law immediately before exit day”—

which, presumably, is answerable one way or the other.

The second qualification is that the general principles that are being retained—which, as Jackson Carlaw has just said, are unclear at present—

“relate to anything to which section 2, 3 or 4 applies”.

The first question is what “relate” means. How strong does an association have to be for it to be a relationship? We are talking about porting an entire principle of EU law into our body of law, and we are doing it based on a subjective term such as whether or not it relates. I have just looked up the “Oxford English Dictionary”, in which “relate” is said to be about whether something is causally connected. Do we prefer that definition, the lesser one that says “have reference to”, or perhaps the midway one of “concern”? There is a difficulty with the word “relate”.

Moreover, we are then asking whether the general principles and the charter relate to sections 2 to 4, which, in turn, do not define anything particularly clearly or state what they refer to, but are themselves full of ambiguities, caveats and cross-references. Where there is ambiguity there is uncertainty, litigation and cost. It is therefore my view that the prudent draftsperson would simply state the intent that the general principles of EU law and the charter will be part of Scots law after exit day if they were effective immediately before that. That is what I understand the intent of the legislation to be, so let us say so.

Dean Lockhart (Mid Scotland and Fife) (Con)

I have lodged amendment 90 in order to address what may be an oversight regarding the application and operation of section 5, which, as we have heard, deals with the circumstances in which the general principles of EU law and the Charter of Fundamental Rights of the European Union will continue to have effect in Scots law after exit day.

Section 5(2) relates to a right of action continuing and provides that

“to the extent that there is a right of action in Scots law immediately before exit day based on a failure to comply with any of the general principles of EU law or the Charter, there is, on and after exit day, an equivalent right based on a failure to comply with any of the retained (devolved) general principles of EU law or the retained (devolved) Charter”.

My amendment 90 seeks to extend that principle to ensure that any pre-existing defences that are available in Scots law as a result of general principles of EU law or the charter will remain available after exit day. If we make such a provision in respect of a right of action, it is important to extend it to defences that should remain part of Scots law after exit day.

If I can, I will provide important examples to give some details of the defences to which amendment 90 would apply and which would continue to exist in Scots law after exit day.

Article 48 of the charter deals with the presumption of innocence and the right to a defence. It provides that

“Everyone who has been charged shall be presumed innocent until proved guilty according to law”

and that

“Respect for the rights of the defence of anyone who has been charged shall be guaranteed”

under the charter.

Article 47 relates to providing everyone with

“a fair and public hearing”

and provides that

“Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”

Those are just some examples of where it will be important to extend the provisions on the general principles of EU law and the charter, where applicable, after exit day.

Under section 5(2), the bill retains pre-existing rights of action. My amendment 90 would extend the provision to the defences and the other rights that I have mentioned.

Jamie Greene

Section 5 is important. It has been prominent to me, as I sit on the Equalities and Human Rights Committee, which is one of the committees that took evidence on that part of the bill, and I hope that its evidence taking will help to inform the Finance and Constitution Committee in its voting on the amendments.

I will speak to amendments 92 and 95, which are in my name, and perhaps comment on some of the other pertinent amendments that have been discussed and that are coming up.

I add my support to Adam Tomkins’s comments on the approach to the separation of the general principles and the charter. My understanding—I bow to his superior legal knowledge—is that there is no framework in the United Kingdom that deems a separation of the general principles and the charter to be unlawful.

Our framework came into effect as a result of the 2007 treaty of Lisbon, which included an opt-out for two member states—the United Kingdom and the Republic of Poland. The treaty was ratified by the UK Parliament in 2008. That is important because protocol 30 of the Treaty on the Functioning of the European Union, which is, in effect, a modern-day version of the treaty of Rome, states, in article 1(1):

“The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.”

Article 2 of that protocol reaffirms that the charter does not create legislation in the UK unless our domestic legal systems account for it. That is a key point, because amendment 92, which I lodged because of evidence taken by the Equalities and Human Rights Committee, seeks to remove section 5(2)(b)(ii).

The Equalities and Human Rights Committee had only one evidence-taking session on the continuity bill and only one witness: Dr Tobias Lock. I do not want to be accused of misquoting or paraphrasing, so I will read out his comments that are relevant to this issue, not his entire contribution. He said:

“The charter also offers slightly different remedies from those under domestic law. The charter comes with the primacy of EU law and, in an extreme case, it can be used to lead to the disapplication or non-application of an act of the Westminster Parliament, which is a remedy that does not exist under domestic UK law. The best that someone can get under the Human Rights Act 1998 is a declaration of incompatibility, which does not have any immediate legal effect on a case.”—[Official Report, Equalities and Human Rights Committee, 8 March 2018; c 3.]

Dr Lock noted that it could be problematic if the two Governments took parallel approaches. That being said, Adam Tomkins seeks to address that issue in his amendment, which I support.

My amendment aims to bring across existing devolved retained powers to Scotland but, under our current framework, we could not bring over the parts of the charter that do not apply, as per the treaty of Lisbon. If the Scottish Government wants to formally and legally apply the charter in Scotland, that should be dealt with by the methodology outlined by Adam Tomkins.

I turn to amendment 95, which is pertinent to section 5. It provides that Scottish ministers must

“within 6 months of the day of Royal Assent make a statement setting out the general principles of EU law that they consider are part of Scots law by virtue of subsection (1).”

20:30  



I will explain two points in relation to the timing of the provision and its rationale. The timing is important because, if the minister must come to Parliament within six months of royal assent, it is very likely that that will be before exit day. Although there is disagreement on the definition of exit day, we can assume that he will have to do that before exit day.

That is important because, as Adam Tomkins mentioned, “general principles of EU law” is an ambiguous term in many ways. It is a concept. When we look at how to decide which of the laws of the 40 years of the EU that we want to transpose into Scots law in our domestic legal system, it seems that there is a need to use in the bill a term that has a wider meaning. My worry is that, as an unintended consequence of using the current term, we run the risk of allowing for quite a wide-spanning interpretation of what the general principles of EU law are and which EU laws we seek to transpose. The Scottish Government needs to define beyond reasonable doubt what can and cannot be extrapolated from EU law and brought into Scots law.

My amendment 95 will put a legal duty on the Scottish Government to outline, within six months of the passing of this bill, what it considers to be applicable general principles of EU law. That can be done in a ministerial statement, at which questions can be taken from MSPs, or by another process that the Parliament deems fit for the minister to present those principles.

I hope that the amendment is helpful. It takes no power away from the Scottish ministers but will help them to come to Parliament to answer some of the many questions that will undoubtedly be raised by members during the six months after the bill passes, which will be before exit day.

It also allows MSPs to hold the minister to account on which of the retained devolved EU laws the Government wishes to bring forward and, more importantly, on how the general principles will be impacted by the passing of any further EU legislation or the ratification of any treaties after exit from the EU, which the Government also wants to deal with in the bill. The minister will know that I am not trying to change his approach but am merely asking that the legislation be allowed proper scrutiny.

Adam Tomkins seeks to decouple general principles of EU law and the charter, and I add my support to that.

In the interest of brevity, I will move on to some of the other amendments.

The Convener

You have had seven minutes.

Jamie Greene

I will be very brief. I would like to add my support to amendments 85 and 86. With regard to amendment 85, in my view it should not be the Scottish ministers’ prerogative to decide those factors. There is a grey area between devolved and reserved matters, and the symmetry between the UK and Scottish Governments is very important.

Finally, I have no doubt that there is much good intention behind Neil Bibby’s amendment 199, but I am concerned about its wording. It lists five areas that he wishes to make provision for. It would, in effect, stop the Scottish Parliament from removing or weakening any rights related to employment, equality, health and safety, and so on.

The amendment says that those protections arise from devolved retained EU law. Is it entirely clear that each of the elements in the proposed subsections are devolved retained law, or are some of them reserved matters? Because of that question, I have concerns around the wording of the amendment. I hope that finance committee members will look carefully at the wording of the amendment to make sure that it will have no unintended consequences that give the Scottish Parliament the ability to change matters that are not within the competence of this Parliament.

Claudia Beamish (South Scotland) (Lab)

I will speak to my amendments 1 and 2. As introduced, the continuity bill retains general principles of EU law on the basis of European Court of Justice rulings. However, it does not, in my understanding, explicitly reference the status of EU environmental principles. I welcome the minister’s sympathy for those principles, as stated to this committee previously.

Committee members and others present know well the significant role that EU law has played in influencing our domestic environmental law, and there is certainly concern that those principles should be preserved. I believe that amendments 1 and 2 are robust amendments. Other amendments that are relevant in this context are those of Tavish Scott on public duties and those of Mark Ruskell, all of which are in the next group. Labour will support those amendments. I appreciate that they are in the next group, but I am unable to speak on that group.

Amendment 1 clarifies that all the existing principles of EU law will be retained within Scots law, whether they originate in case law of the European Court, in EU treaties, directly in EU legislation or in directives. Amendment 2 makes clear that the key environmental law principles in article 191 of the Treaty on the Functioning of the European Union are retained.

The cabinet secretary will be aware that the SNP’s Westminster counterparts supported amendments that sought to replicate the functions of EU environmental principles in the context of the withdrawal bill in the House of Commons. My amendment seeks to ensure alignment in Scotland, preserving the positive influence that the EU has had.

There seems to be no comprehensive list of general EU principles. The cabinet secretary will be aware that some of these principles, such as the precautionary principle, are already considered to be general principles of EU law. That is in the charter of fundamental rights. It would be helpful if the cabinet secretary could clarify which EU case law is relevant here.

Other principles—the guiding ones such as on preventative action—are not guaranteed in the same way by existing case judgments. It is not enough to have those in the explanatory notes, as highlighted this morning in the Environment, Climate Change and Land Reform Committee.

I understand that the Scottish Government argues that the guiding principles guide only EU policy and legislation, not that of member states. However, I would argue that, as at least 80 per cent of our own environmental law has been guided by those important principles, any definition of continuity—and I stress that word, as it is in the name of the bill—should mean that they continue to have a guiding role in Scots law.

Colin Smyth (South Scotland) (Lab)

Amendment 3, in my name, aims to ensure that the principle of animal sentience is retained as part of the continuity bill, complementing amendments 1 and 2 from my colleague Claudia Beamish. Animal sentience recognises that animals are aware of their own feelings and emotions, and that policies should be developed to respect that. Evidence for animal sentience has been available for over 60 years and the topic now has over 2,000 studies to its name. Those studies outline the economic, social and environmental benefits of treating animals as sentient beings.

I do not believe that existing legislation in Scotland enshrines the principle of animal sentience. There is no explicit reference in the Animal Health and Welfare (Scotland) Act 2006. There is only a mention at section 48 of physical and mental suffering. There is no mention of it in the explanatory notes for the act. The act applies to individuals who are responsible for protected animals in Scotland, whereas article 13 of the Treaty on the Functioning of the European Union applies to Government policy. The 2006 act also does not cover free-living wild animals or animals that are used in scientific procedures, even though the animals in those categories are demonstrably sentient.

It is well established that the protection of animals as sentient beings is a matter of considerable public concern, as we saw with the public outcry following the rejection of the initial amendment on article 13 that was tabled at Westminster. I therefore argue that there is a strong case and public support for recognising sentience and a requirement to have regard to animal welfare.

Graham Simpson

Amendment 94 is a probing amendment that is designed to test the assumptions underpinning section 5, based on evidence taken on the bill and comparison with the withdrawal bill.

There are three parts to it. The first is an understanding of the charter. The UK Government says that it did not include the charter because it applies only to EU law, so it is implicit in all EU law, and because it reaffirms existing rights and principles of EU case law and does not create any new rights. It therefore did not need to be explicitly mentioned in the withdrawal bill. Though it applies to EU law, it does not apply to every circumstance.

At the moment, we therefore already have a split as to what law the charter applies to. The continuity bill would be adding a third—devolved law. Tobias Lock, who was a witness to the Finance and Constitution Committee last week, covered that in his evidence. I do not intend to quote him out of deference to the convener. Everyone was there and heard what he said.

My second point is on exactly what is kept or not kept. Section 5(3) says that a general principle counts only if it is in case law before exit day. Section 5(4) says that retained general principles in the charter can be modified “from time to time”. The principles are frozen at the moment of exit unless we decide not to and, presumably, the right to action changes with that. It presumably follows from sections 5(1) and 5(2), but it is not explicit.

The final point is that schedules to the European Union (Withdrawal) Bill state:

“There is no right of action ... after exit day”.

They say that a “court or tribunal” may not “quash” any law on the basis that

“it is incompatible with any of the general principles of EU law.”

I understand that that is to do with the design of the EUWB and which EU law it saves and where. The continuity bill clearly states the opposite. The amendment would bring the two bills back into line and is aimed at teasing out the minister’s position on that, so that we can understand it.

Although I completely respect the Government’s wish to save EU law and to retain the general principles in the charter, it all prompts a number of questions that the minister might wish to address later. Does he recognise the depiction of legal complexity that witnesses gave and the different abilities to pursue cases in different jurisdictions of the UK? If so, has he made any assessment of whether that would leave the Scottish Government more liable for claims than the UK Government and create a perverse incentive to pursue cases in Scotland or, even, sudden extra liabilities? Has that specific interaction been part of his discussions with the UK Government? What are the areas of EU law that section 5 saves that explain the difference from the withdrawal bill? Can the minister confirm that the right to action would change in line with any modifications to the general principles? If so, should that be made explicit?

Donald Cameron

Amendment 96 is the mirror image of amendment 86, in the name of Jackson Carlaw, which he spoke to earlier. I lodged the amendment in order to clarify which general principles are to be included in the bill. The amendment addresses a point that was made by the Law Society of Scotland, which identified the issue and said:

“it would be helpful if the Government could identify what general principles it considers are retained in Scots law.”

Given that there are several legal principles at stake, I submit that the Law Society’s point is a good one and it is important that that is duly clarified in the bill. It is vitally important that a specific and unequivocal list of general principles is included. The principles outlined are identical to those that Jackson Carlaw spoke to earlier, so I do not intend to go through each of them. However, I suggest to members that it is important that the principles are outlined explicitly in the bill.

Patrick Harvie

I have a couple of brief comments on other amendments before I come to amendment 127, in my name.

Although I am not entirely persuaded about the general approach that Adam Tomkins has taken with his amendments, perhaps the minister could comment on amendment 98 during his contribution to the debate. I am only guessing at this stage, but I assume that the minister will resist the amendments. If the other amendments in Adam Tomkins’s name are rejected by the committee, would amendment 98 on its own be harmful? Would it add something with the form of words that says:

“The Charter of Fundamental Rights continues to have the same legal authority”?

If that is additional without the other parts, which rejecting the cluster of amendments would take away, would there be a problem with that from the Scottish Government’s perspective? I would be interested in the minister’s comments on that.

20:45  



I am grateful for the opportunity to touch on the amendments that were lodged by Claudia Beamish, Colin Smyth and others, in relation to the environmental principles, the principle of animal welfare and sentience and the wider principles of EU law. There has been some discussion in the committee about that and about the extent to which those principles need to be set out in some degree of detail. In giving evidence to the committee previously, the minister has seemed to be not yet convinced about but somewhat open minded to giving some movement on that issue.

A number of what I think are helpful and constructive approaches have come from different political parties—the Labour members whom I have mentioned, but also Green and Liberal Democrat colleagues. Those positive ideas about ways in which some of the principles should be set out are helpful suggestions for amendment of the bill. If the Government is going to resist all of those, the minister will clearly be expected to give some specific commitments about how he intends to address the questions that those amendments raise.

Finally, amendments 127 and 140, in my name, and the amendments in the name of Neil Bibby touch on issues that have some similarities. They do not have complete unity of purpose, but there are some clear similarities. I will, again, be interested in the Government’s response to those. I have framed mine with reference to amendments that were debated in connection with the withdrawal bill.

In particular, I highlight amendment 25 to the withdrawal bill, which was debated on 12 December 2017. It sought to restrict the ability of regulations to

“remove or reduce any protections currently conferred upon individuals, groups or the natural environment ... prevent any person from continuing to exercise a right that they can currently exercise”

or

“amend, repeal or revoke the Equality Act 2010 or any subordinate legislation made under that Act.”

As I understand it, some of the equalities issues were dealt with separately from that amendment, which fell, but it was supported by Labour members, my colleague Caroline Lucas and SNP members in the House of Commons debate. That is why I decided to use that form of words. It is clearly an approach that the SNP, Greens and Labour agreed was a useful contribution to the UK bill, and I hope that it will be seen by all of those political parties—and, perhaps, even others—as a useful contribution to this bill.

Neil Bibby

I wish to speak to amendments 128, 141 and 199, in my name, and in support of the amendments in the group that were lodged by Claudia Beamish and Colin Smyth. The purpose of the amendments is to protect those EU-derived rights that fall within devolved competence.

The minister is on record as stating that the continuity bill will, if passed, retain EU-derived law and give both the Scottish Government and the Scottish Parliament the powers needed to keep those laws operating. Labour shares that objective with the minister. However, we are clear that there must be checks and balances throughout the process.

Section 11, on page 9, deals largely with the restrictions that will be placed on Scottish ministers in relation to their regulation-making powers. Regulations made

“under subsection (1) may not—

(a) impose or increase taxation,

(b) make retrospective provision,

(c) create a relevant criminal offence”.

They may not

“modify the Scotland Act 1998, or ... the Equality Act 2006 or the Equality Act 2010”,

or

“remove any protection relating to the independence of”

the judiciary.

Amendment 128 makes clear that regulations made under section 11(1) may not

“remove or weaken any right or protection arising from devolved retained EU law”

relating to employment rights, equalities rights, health and safety rights, consumer standards or environmental standards and protections. Those are important rights and standards that must be protected.

Through amendment 141, I seek to apply the same proportionate constraints on the regulation-making powers in section 12 in relation to the compliance with international obligations. Amendment 199 would add a new part to the bill after section 17, which would make it clear that regulations must not be used to remove or weaken protections or EU-derived rights.

My amendments 128, 141 and 199 are not the only amendments that aim to safeguard EU-derived rights and protections. As has been mentioned, amendment 98, in the name of Adam Tomkins, on which he made important points, specifies:

“The Charter of Fundamental Rights continues to have the same legal authority in Scots law on and after exit day as it had on the day before exit day.”

Patrick Harvie’s amendments 127 and 140 seek to safeguard protections for individual groups and the natural environment. Those are welcome amendments, but I believe that my amendments would be the most comprehensive way of ensuring that the Scottish ministers cannot dilute EU-derived rights and protections.

I indicate my support for the amendments lodged by Claudia Beamish and Colin Smyth. Claudia Beamish’s amendments 1 and 2 would ensure that, for the purposes of the bill, the environmental principles that are enshrined in the Treaty on the Functioning of the European Union are retained in Scots law. Those environmental protections received support from all Opposition parties in the UK Parliament, and I hope that they will have the support of the Scottish Government today. Colin Smyth’s amendment 3, which would retain the principle of animal sentience, is complementary to amendments 1 and 2.

The amendments in the group lodged by me, Claudia Beamish and Colin Smyth protect workers, consumers and the environment. The amendments protect the rights and protections of the people whom we represent, and I hope that committee members will support them.

Ivan McKee (Glasgow Provan) (SNP)

I will comment on amendments 127 and 140, and amendments 128 and 141. I can understand where the members who lodged those amendments are coming from, but we should look at what is actually written in the bill. It is stated clearly that the power to make regulations can be used only where there is a deficiency, and section 11(2) lays out the criteria for deciding where there is a deficiency. If there is no deficiency, the power does not exist.

Amendments 127, 128, 140 and 141 would put in place tests that would make the power very difficult to use. They would set the bar too high and risk making the power unusable, which defeats the whole purpose of having it. That is my concern, and I will be interested to hear what the minister says.

Murdo Fraser

I have a brief comment on amendment 128. I listened with great interest to Neil Bibby’s arguments in proposing it, but my difficulty is that all the powers it refers to are currently reserved. It is therefore difficult to see how the Scottish ministers would have the capacity, even if they wanted to, to do any of the things that are referred to in amendment 128.

I do not think that Mr Bibby has the opportunity to wind up on amendment 128, which is unfortunate. We are maybe relying on the minister to enlighten us.

The Convener

As no one else wishes to speak, we will rely on the minister right now.

Michael Russell

Section 5 is a complex one that deals with a range of different issues, some of which spill over into the next group of amendments from Tavish Scott and Mark Ruskell. Some of what I say now will therefore be relevant to our next discussion, so I would be grateful if members could bear with me.

Patrick Harvie asked a specific question on amendment 98. He defined my intention correctly: I will not be encouraging support for it because we believe that it would add to the complexity. Provision is already made in the bill to exactly the same effect in section 5(1), and the amendment would omit the remedy. That is a vital issue in what the Conservative amendments are attempting to do.

Amendments 86, 95 and 96 are directed at requiring the bill or the Scottish ministers to specify what the general principles of EU law are. We consider them to include subsidiarity, proportionality, legal certainty, legitimate expectation, non-retroactivity, fundamental rights, equal treatment, prohibition of abuse of law, good administration and the precautionary principle.

The purpose of the bill is to convert EU law as it stands at the point of exit and to ensure continuity of the position as it exists on exit day. We do not think that it would be appropriate to prejudge the position in relation to which general principles have been recognised at the point of exit. That would be a matter for the courts to determine in a particular case, based on their assessment of European case law.

The explanatory notes set out some of the main general principles that the Scottish Government understands are currently part of EU law. Of course, we can commit to adjusting the explanatory notes to set those out more fully, without being exhaustive, given that the general principles could continue to develop prior to exit day.

Amendments 85, 89 to 94 and 98 are a series of amendments that try to bring the bill into line with the approach in the UK Government’s bill to the general principles of EU law and the charter. However, they do so by removing the provisions that incorporate the general principles and the charter and by removing the remedies that are associated with incorporation. I make special mention of Liam Kerr’s amendment 87 and say that we should all be confident that the phrase “relate to” is effective. It is a clear and well-used legislative phrase and means that the scope of section 5 is limited. I do not think that there is any dubiety on that. Regrettably, I have to say that, each time that I hear an amendment from Liam Kerr that seeks to clarify, it actually makes the wording more confusing.

The general principles of EU law and the charter have rights of action associated with them. It would be wrong to remove them, which, in effect, is what the Tory amendments seek to do. I therefore encourage members to resist all the amendments that are directed at removing the charter and individual rights and remedies from our law.

Amendments 1 to 3 would have the effect of extending the definition of what is meant to be a general principle of EU law, which would change the current legal effect of the law that we seek to bring into the domestic system. The general principles of EU law are those that have been recognised by the Court of Justice. Significantly, the general principles can be used as a basis for legal action and, unlike the UK Government’s bill, this bill preserves and continues those rights through section 5(2).

There are, of course, other principles that are set out in the treaties, direct EU legislation and EU directives, including the specific principles that are mentioned in amendments 2 and 3 in relation to environmental law and animal welfare. They are important, but they are not intended to create legal rights in the same way as the general principles that have been recognised by the European courts. Any EU environmental or animal welfare legislation that is brought into domestic law through this bill will have been informed by all the EU’s environmental and animal welfare principles. We are continuing to consider how best to enshrine our commitment to the EU environmental and animal welfare principles in light of the UK Government’s decision to exit the EU.

I need to address whether we can take further steps to do that in light of what I have said and also of what I said at the Environment, Climate Change and Land Reform Committee this morning. I have thought very carefully about that. I want to define what we are already doing, what we can do in this bill and what we can commit to as we go forward. That will be of relevance to the items that are to be raised in the next group, too. Once I have done that, I will address some of the points that Patrick Harvie and Neil Bibby raised, which are similar to those points but on different areas.

As I tried to clarify this morning, I am happy to amend the explanatory notes to the bill to clarify that the precautionary principle is a general one of EU law and will therefore be covered by the provision in section 5 that the general principles will continue to be part of Scots law. Under section 5, the charter of fundamental rights will be similarly incorporated, including—this is crucial—article 37, which provides that

“A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”.

What more can this bill do? At present, the environmental principles are used to inform EU policy development and legislation on environmental matters. As such, all EU legislation will be rolled over through the continuity bill and will become part of retained, devolved EU law, which will already have been informed by those principles. Similarly, where we are taking powers in this bill to correct deficiencies or to keep pace with EU legislation, we will make necessary changes to law that has already been informed by those principles.

21:00  



However, to make sure that we are clearly committed in the bill to considering the environmental principles when seeking to make such changes, I commit today to work with members to lodge amendments at stage 3 that would require us to consider EU environmental principles and the principles of animal sentience when exercising the powers under sections 11, 12 and 13.

What more can we do in the future? The EU environmental principles guide the union in developing policy on the environment and, by extension, they guide environmental legislation in Scotland. That connection for future policy development will be lost when the UK exits the EU, so we need to consider carefully how we take forward this Government’s clear intention that those principles will continue to sit at the heart of Scotland’s approach to environmental policy, regardless of our future relationship with the EU.

That will likely require changes to our current law that cannot be made in the continuity bill. However, having discussed the issue with the Cabinet Secretary for Environment, Climate Change and Land Reform, I confirm that we will work with others to lodge amendments at stage 3 that commit us to consult on proposals on how best to ensure that the environmental principles continue to inform future policy and law in Scotland.

I am making clear commitments, and I hope that they are being clearly understood.

On the wider point that the amendments raise, given that the purpose of the bill is to convert EU law as it stands at the point of exit and to ensure continuity of the position as it exists on exit day, it would not be appropriate to use the bill to change the definition of what is understood as constituting a general principle of EU law.

Amendments 127 and 140, in the name of Patrick Harvie, would supplement the list of things that the powers cannot be used to do. They would prevent them from being used to remove or reduce protections currently conferred on individuals and groups; protect rights that are currently exercisable; and prevent them from being able to increase burdens on individuals and businesses. Those are all laudable aims, but they could move us into the realm of doing what I have suggested would be very difficult to do—that is, to use the bill to change the definition of what is understood as constituting a general principle of EU law.

I need to apply the same commitment that I have made on the issues of environmental principles and the principles of animal sentience to this issue, too. That also applies to Neil Bibby’s amendments 141 and 199. I cannot use the bill to make substantial policy changes, but I hope that I can find ways to make the commitments that both Patrick Harvie and Neil Bibby want in a way that is consistent with the bill. However, we should bear in mind that that does not—Murdo Fraser raised this point, and I am sure that he did so helpfully—cover reserved areas. We must be very careful that we do not find ourselves in that position.

I understand the motivation for the amendments, and I desire to deal with the areas raised. I can make commitments specifically on environmental issues; I can also make commitments to find a way to ensure that the purpose of the amendments from Patrick Harvie and Neil Bibby is dealt with at stage 3, and to work with the members to do so. However, those amendments would create circumstances in which the bill would be in difficulty.

Therefore, I encourage members to vote against amendments 85 to 87, 89 to 93, 94 to 96 and 98, and I encourage members not to move amendments 127, 128, 140, 141 and 199 on the basis of the commitments that I have made. I can return to those commitments when we come to the very similar provisions in the next group, but I have made them clear now for the avoidance of doubt.

The Convener

I call Adam Tomkins to wind up, and to press or seek to withdraw amendment 85.

Adam Tomkins

This has been a lengthy and a full debate on an important set of amendments to a very important provision in the bill—section 5, on the general principles of EU law and the charter of fundamental rights. I will make five brief points summarising the most salient aspects of the debate.

The withdrawal bill and the amendments in my name to the continuity bill seek to end the role of the EU general principles in domestic law, or Scots law, because the general principles of EU law are created, generated, expanded, defined and developed by the European Court of Justice.

One of the significant reasons for voting to leave the European Union was dissatisfaction across the political spectrum with the uncontrolled and uncontrollable expanse of the jurisprudence of the European Court of Justice. That is why we should look at the general principles in one way and at the charter of fundamental rights in another. The charter is a legal document that the ECJ can and does interpret but cannot rewrite, whereas the general principles of EU law can be rewritten—and are rewritten by the ECJ almost weekly. There is, therefore, a good reason in jurisprudence for being sceptical of and for wanting to limit the role of the general principles in our legal system post-Brexit. That is the first point that I want to make.

My second point is that to have in Scots law different rules on the role of the general principles from the rules in the rest of the UK under the withdrawal bill, as would be the case if the continuity bill were to be enacted in its current form, would simply make our administrative law unnecessarily complex. There is no good reason for doing that—there is no positive to be gained, but there are negatives to be risked. There is no reason for making Scots administrative law more complex in terms of its relationship with administrative law south of the border.

For example, to have the doctrine of proportionality—which we all accept is a general principle of EU law—play a role in Scots law that it will not play in English law would simply make the administrative laws of the UK’s legal systems unnecessarily complex. No good reason has been put forward by any member—or, indeed, by the minister—for why that should happen. In my view, it should not happen.

The third point that I want to make is that I fully endorse amendment 86 in the name of my colleague Jackson Carlaw, which reflects the evidence that the Finance and Constitution Committee heard last week—I think—from the Law Society of Scotland. The Law Society will seek a definition of the general principles of EU law being included in the bill, if my amendments are unsuccessful.

Nevertheless, I add this note of caution. Even if we define in the bill what we think the general principles are—even if we say that they are subsidiarity, equality, proportionality and legal certainty—there will still be significant legal uncertainty about what those terms mean. For example, is subsidiarity to be understood as a general principle that says that power should be exercised in Scotland at the lowest possible level? Does it apply to the relationship between local authorities and the Scottish Parliament or between local authorities and the Scottish ministers, or is it a principle that applies only between a member state of the European Union and EU law, which is how subsidiarity has been understood by the European Court of Justice? Therefore, even if we were to identify, in the bill, subsidiarity as a general principle of EU law that we want to continue in Scots law, we would need to lodge further amendments at stage 3, seeking clarification of exactly what is meant by subsidiarity.

The fourth point that I want to make is one that I made in the chamber in one of our earliest debates on the continuity bill. The minister was unable to respond to the point on that occasion, and I am disappointed that he has overlooked it in his remarks this evening. There is a straightforward and manifest conflict between section 5 as it is currently drafted and section 8. Section 8 seeks to end the role in Scots law, after exit day, of the ruling in Francovich v Italy. That is a case in which the European Court of Justice created a doctrine of state liability that is avowedly based on a general principle of EU law—namely, effective judicial protection and legal effectiveness. If we have, on the one hand, its continuing applicability—including causes of action—in sections 5(1) and 5(2) and, on the other hand, a clear rule that says that the Francovich ruling will have no role to play in Scots law going forward, there is a clear incoherence and inconsistency in the bill that will have to be teased out, tested and ruled on, in the end, by the courts.

The final point that I want to make is addressed to Patrick Harvie. I am gravely concerned that the minister seems to think that the precautionary principle—which, I know, Mr Harvie wants to safeguard in Scots law—is a general principle of EU law. The minister did not cite any legal authority in favour of that proposition, and I must tell Mr Harvie that I know of no legal authority in support of that proposition. I may have overlooked it—it may be that some recent decision of the Luxembourg court says that the precautionary principle is now a general principle of EU law—but I doubt that for the simple reason that the precautionary principle is not a general principle but one that applies particularly in the context of scientific and environmental regulation.

The whole point of the general principles of EU law is that they apply right across the spectrum of EU law. That is why they are called “general principles”. If the minister thinks, or has been advised, that the precautionary principle, which is a specific element of European environmental law, is somehow captured by section 5, if I were Mr Harvie I would not rely on that without wanting to dig a long way down to understand whether that is really the case.

The Convener

If amendment 85 is agreed to, I cannot call amendments 86, 87 and 88 because they will have been pre-empted.

The question is, that amendment 85 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 85 disagreed to.

Amendment 86 moved—[Jackson Carlaw].

The Convener

The question is, that amendment 86 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 86 disagreed to.

Amendment 87 moved—[Liam Kerr].

The Convener

The question is, that amendment 87 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 87 disagreed to.

Amendment 88 moved—[Donald Cameron].

The Convener

The question is, that amendment 88 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 88 disagreed to.

Amendment 89 moved—[Adam Tomkins].

The Convener

The question is, that amendment 89 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 89 disagreed to.

Amendment 90 moved—[Dean Lockhart].

The Convener

The question is, that amendment 90 be agreed. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 90 disagreed to.

The Convener

I remind members that, if amendment 91 is agreed to, I cannot call amendment 92 because it will have been pre-empted.

Amendment 91 moved—[Adam Tomkins].

The Convener

The question is, that amendment 91 is agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 91 disagreed to.

Amendment 92 moved—[Jamie Greene].

The Convener

The question is, that amendment 92 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 92 disagreed to.

21:15  



The Convener

If amendment 93 is agreed to, I cannot call amendments 1 to 3 and 94 to 97 because they will have been pre-empted.

Amendment 93 moved—[Adam Tomkins].

The Convener

The question is, that amendment 93 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 93 disagreed to.

The Convener

I call Claudia Beamish to move or not move amendment 1.

Claudia Beamish

In view of the minister’s remarks about stage 3, I will not move amendment 1. I will not move amendment 2 for the same reason.

Amendments 1 to 3 not moved.

Amendment 94 moved—[Graham Simpson].

The Convener

The question is, that amendment 94 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 94 disagreed to.

The Convener

I call Jamie Greene to move or not move amendment 95.

Jamie Greene

In the absence of any reference to the amendment in the minister’s summing up, I will not move the amendment.

Amendment 95 not moved.

Amendment 96 moved—[Donald Cameron].

The Convener

The question is, that amendment 96 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 96 disagreed to.

Amendment 97 moved—[Donald Cameron].

The Convener

The question is, that amendment 97 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 97 disagreed to.

The Convener

The question is, that section 5 be agreed to. Are we agreed?

Members: No.

The Convener

Conservative members’ opposition is noted.

Section 5 agreed to.

After section 5

The Convener

Amendment 4, in the name of Tavish Scott, is grouped with amendments 5, 6, 20 and 21.

Tavish Scott (Shetland Islands) (LD)

Convener, can I say how well you are doing in trying circumstances? I also have a word for Mr Tomkins. In his winding up, he said that he had five points to make. He did not understand that, like me, the convener was thinking that he would struggle to make BBC1 at 9 o’clock to watch “Shetland” tonight. Mr Tomkins needs to bear such things in mind when he judges how many points to make in a winding-up speech—before Murdo Fraser tweets accordingly.

Amendment 4 places an obligation on Scottish public authorities to apply the environmental principles that are set out in the amendment and, when carrying out their duties and functions, to have regard to a number of environmental considerations. Although not limiting the area of a court’s consideration, the amendment also makes a specific provision that allows Scottish courts to make declarations of incompatibility whenever a provision of primary or secondary legislation is incompatible with the environmental principles that the minister mentioned earlier. The bill as drafted does not explicitly retain EU environmental and animal welfare principles, although it retains the charter of fundamental rights, which was referred to earlier, in terms of environmental protection. I am grateful—as, I am sure, other members are—to Scottish Environment LINK for setting out the argument to the committee last week in written evidence and in briefings to members.

The minister sent a letter to the Environment, Climate Change and Land Reform Committee setting out the Scottish Government’s view on how the principles can be dealt with. He led some evidence on that a moment or two ago, and I will look to what more he wishes to say in respect of both my amendments and Mark Ruskell’s amendments in due course, but I hope that he also recognises that amendment 4 provides a useful backstop that the committee might want to include at this stage.

Mark Ruskell’s amendments 5 and 6 make it explicit that the environmental and animal welfare principles in articles 11, 13 and 191 of the Treaty on the Functioning of the European Union are translated into Scots law. Amendment 4 perhaps does that in a unified way for all those articles, so I am happy to move it.

I move amendment 4.

Mark Ruskell (Mid Scotland and Fife) (Green)

I am happy to speak to the four amendments in my name in the group. They are amendment 5, on the principle of animal sentience; amendment 6, on the environmental principles; amendment 20, which attempts to clarify who will exercise functions and powers in relation to environmental regulation; and amendment 21, which attempts to create a requirement for consultation on what could be an emerging governance gap.

I will not repeat all the arguments that I made for the amendments six or seven hours ago in the chamber, but I would like to reflect briefly on some of the points that the minister raised, I think about 10 hours ago, in the Environment, Climate Change and Land Reform Committee this morning.

I acknowledge the point, which the minister made several times, that the principles that we are debating tonight have in effect been saved into current legislation and will indeed be rolled over through the continuity bill, but we need to reflect on why that is the case. The principles guide policy development and create good laws. In relation to animal sentience, there is a requirement not just on the European Union but on member states to have

“full regard to ... welfare requirements”

when formulating and implementing policy.

The principles are not just about where we have come from and where we are now in our policy. They are also about where we are going.

I heard what the minister said about a stage 3 amendment and how the guiding principles can perhaps be applied going forward. I say to him that I would like to see the principles applied, particularly in relation to how we will keep pace with European Union laws in the future.

Another point that the minister made this morning was that the bill is about saving European Union laws and not about introducing new definitions. I agree with that. Tempting as it was to bring forward a new version of the animal sentience provisions and a new, improved version of the article 13 provisions in the Lisbon treaty, I recognise that this is not the place to do that. However, it is about saving the important principles that we have, which have been guiding our policy development for many years.

I turn to the other amendments in the group, including those that have already been discussed. The main difference with my amendments is that I am attempting to disapply the case law requirement. There is some uncertainty about whether the principles have been fully and adequately tested in EU case law. If the minister can assure me that all the principles have been tested in EU case law—I note Mr Tomkins’s comments about the previous group of amendments—I will be interested to hear that, as well as whether there are references for the case law. Let us prove whether the principles have been tested to destruction in EU case law.

Amendment 21 identifies that we could be heading for an EU governance gap, particularly in relation to the provisions of the ECJ. I know that the UK Government is, sensibly, consulting on the governance gap and has offered to extend the consultation to Scotland. I will be interested to hear the minister’s views on that. It might make amending the bill unnecessary if he was to accept that offer.

Finally, with amendment 20, which attempts to create a list of who will carry out the functions and what they will be, I am again looking for clarity from the minister. Creating such a list seems an obvious thing to do. It could even be wrapped up in the governance gap consultation, which could consider the appropriate bodies to take on the functions. We need to sort that out ahead of withdrawal. If there is a commitment on that, I will consider whether to move amendment 20. I may seek to withdraw it if I get a rational response that that will happen.

Neil Bibby

Scottish Labour is minded to support the amendments in the group in the name of Tavish Scott and Mark Ruskell, which are similar to the amendments in the name of Claudia Beamish and Colin Smyth in the previous group.

Mark Ruskell’s amendments make it clear that the environmental and animal welfare principles from the Treaty on the Functioning of the European Union will be translated into Scots law. His and Tavish Scott’s amendments in the group, as a whole, set out practical ways of ensuring that environmental safeguards remain in place and that deficiencies that arise from withdrawal are addressed through consultation. I am therefore happy to support the amendments in the group if they are pressed.

Patrick Harvie

Once again, I am grateful to members for ensuring that we have a range of amendments and a range of options to consider in this critical area. Like my colleague Mark Ruskell, I commend the briefing from Scottish Environment LINK, which says:

“If the Bill is to deliver on ‘providing for continuity of law including environmental protections in EU law’, as stated in the Bill’s Policy Statement, EU environmental and animal welfare principles need to be explicitly referenced in its provisions.”

Later, it says:

“the Bill falls short of translating these commitments into legislation.”

It is pretty clear to most people who have been part of the movement towards higher environmental standards not just in these islands but throughout Europe that the European Union has been a critical driver of that process, and I think that that is true of people across the political spectrum. Obviously, I think that my party colleagues in green parties throughout the EU have made a contribution to that, but it has been the case right across the political spectrum as well.

The European Union and its institutions and body of law have been critical in raising the standards, and I think that most of us understand that the Brexit ultras who are currently in control of the UK Government are the self-same people who have spent years writing articles and making speeches about how much they look forward to a bonfire of the regulations, and the idea that some sort of wild-west free-market agenda will be imposed instead of the strong environmental protections that we have achieved. The same goes for the social protections that have been achieved in the European Union.

Again, I commend those who lodged the amendments in the group. I want to hear something very positive from the minister about what he intends to do. I would like the amendments to be agreed to, but if he wants to persuade the committee to do something different from that, he needs to have a clear proposal about what is going to be different in the bill that will achieve the objectives.

On amendment 21 specifically, the suggestion that the Government should consult on what has clearly been identified as a governance gap is perfectly reasonable. If amendment 21 is agreed to and the minister was to come back at stage 3 and say, “Two months is too short a timescale, so we’d like to tweak it,” I suspect that the supporters of the amendment would be perfectly willing to discuss what the timescale should be. However, there is a clear case for including a commitment to have that consultation in the bill, as well as the other issues that are raised in the group.

Michael Russell

I thank Claudia Beamish and Colin Smyth for not moving their amendments in the previous group. I want to make the same assurances to Tavish Scott and Mark Ruskell that I made to them, and perhaps to add some more, because some other issues are being considered here.

I will deal with one or two specific issues and then go on to the more general issue. Mark Ruskell asked about case law. I think that it is dangerous to disapply case law in these circumstances, but we need to be clear about what that case law is. I will certainly look at using the explanatory notes, for example, to provide additional information on case law and other ways to do that. Also, I am happy to look at the applicability to public bodies as an extension to what we are discussing.

21:30  



I understand that the Cabinet Secretary for Environment, Climate Change and Land Reform is going to the meeting of the ECCLR Committee, on which Mr Ruskell sits, to talk specifically about governance next Tuesday, and I will be there with her. I know that she will want to consult on the issues of governance, because it is absolutely right that that happens. If Mr Ruskell can wait until that meeting, I have an assurance that those issues will be covered.

Let me now address the issues that Patrick Harvie raised, before going into specific commitments. As he knows, I am a former environment minister. Like him, I am sceptical about what he calls the “Brexit ultras”. I am not convinced, for example, that the current Secretary of State for the Environment and Rural Affairs in the UK Government is a born-again green—not even a pale green—and I am certain that his wish to deregulate will apply to social protections as well. I have dealt with that individual more than once over the past few years and I stand by what I say; indeed, I have debated these issues with him.

I am absolutely determined that these matters should not be weakened and I need to find a way to achieve that. Patrick Harvie asked me to convince him that I could, and I repeat the assurances that I have made and will expand on them in exactly the same way as I did in the previous group. I told the Environment, Climate Change and Land Reform Committee this morning that we will amend the explanatory notes to the bill to clarify what the bill does.

The precautionary principle is a general principle of EU law. There is clearly a difference of opinion on that between me and Professor Tomkins, which is not unusual, even this evening. We will amend the explanatory notes and the issue will be covered by the provision in section 5 that the general principles will continue to be part of Scots law. Under section 5, the European charter of fundamental rights will be similarly incorporated and, again, I quote article 37, which provides that

“A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.”

That is what the bill does.

What more can we do? At present, the environmental principles are used to inform EU policy development and legislation. As such, all EU legislation, which will be rolled over through the bill and become part of retained devolved EU law, will already have been informed by those principles. Similarly, where we take powers to correct deficiencies and to keep pace, we will be making necessary changes to law that has already been informed by the principles.

However, I make this key commitment: to make sure that our clear commitment to considering the principles is on the face of the bill, which is what is asked for, I will work with members to lodge amendments at stage 3 that require us to consider the EU environmental principles and animal sentience when exercising the powers under sections 11, 12 and 13. Because of Mr Ruskell’s amendment 20, I will include in that the issue of local authorities and public bodies, which I think also tackles something that Tavish Scott raised. We will look at that issue and we will make a commitment to do so in the bill.

What do we do next? As I said earlier, the environmental principles currently guide the EU in developing policy and, by extension, guide environmental legislation. We stand to lose that—it is one of the many things that we will lose through Brexit—and we need to look at how to take the issue forward, certainly in relation to governance, and by consulting on how to carry the principles forward to ensure that they inform future policy and law.

The Cabinet Secretary for Environment, Climate Change and Land Reform will also confirm that that consultation will take place and that we will include that in the bill. In our discussions over the next week I want to ensure that we also include the issue of environmental governance. Nobody is avoiding that issue, but we clearly need to get ourselves to a position from which we can do that. I have indicated what the bill can do, and I have intimated what it will do, what more it could do and what we can commit to for the future.

I turn to the issue of keeping-pace powers, which will become an issue for further discussion. I know that there is a desire to limit those powers and to increase scrutiny. I will support the limitation and scrutiny of those powers, but I will not support the idea of dispensing with them because, as I indicated to the Environment, Climate Change and Land Reform Committee this morning, there are areas in which they will become exceptionally valuable. For example, there are issues to do with the list of fish diseases, as a number of members will understand—I know that Tavish Scott will, because he is familiar with aquaculture. The list of fish diseases requires to be updated because it applies across Europe; it is updated by European legislation. Unless we were able to apply the keeping-pace powers to such matters, we would find ourselves without the ability to move forward as quickly or in as determined a way as we ought to.

At this morning’s meeting of the Environment, Climate Change and Land Reform Committee, I used the examples of animal health and invasive species. There is a variety of areas in which practical application of the environmental principles in the work that we do as MSPs requires us to use the keeping-pace powers. Because environmental law is such a large part of what we deal with, and because it is an area that I believe will be under threat from the UK Government, it is essential that we have the ability to exercise those powers.

I have indicated what our commitments are. I commit to doing the work that we require to do to lodge the necessary stage 3 amendments next week, and to work with the members concerned in doing so. I hope that that is sufficient to reassure members that we have a genuine intent in that respect, but we need to get this right.

Tavish Scott

I have three very brief points. I hear what the minister said about the keeping-pace powers. That is a debate for later on this evening—or some future point. All that Mr Russell has just said about the weight of environmental legislation and regulation that flows from Europe reinforces the point that it is necessary to make sure that however Parliament chooses to allow ministers to keep pace is subject to the most exacting of scrutiny, for the very reasons that he has given. That argument could be made from my side of the debate as well as from the minister’s.

I hear what Mr Russell says about the commitments that he has made in relation to next Tuesday’s meeting of the Environment, Climate Change and Land Reform Committee and to working with members across Parliament on amendments that would give effect to what we all seek to achieve. That is a sensible and progressive approach to the issue.

I indicate that, if agreement cannot be reached, I give notice that I will seek to lodge my amendment again at stage 3. However, I take Mr Russell’s point that there is a lot to be gained by working with members—external organisations, which have very strong views on the subject, should also be involved—to develop amendments that will shape the bill in the right way to achieve the effect that we all want.

Therefore, I seek leave to withdraw amendment 4.

Amendment 4, by agreement, withdrawn.

Amendments 5 and 6 not moved.

Amendment 98 moved—[Adam Tomkins].

The Convener

The question is, that amendment 98 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 98 disagreed to.

Section 6—Principle of the supremacy of EU law

The Convener

Amendment 99, in the name of Liam Kerr, is grouped with amendments 100 to 103.

Liam Kerr

Amendment 99, in my name, reverts to the principles that I elucidated at the outset. The law must be certain, clear and precise, and the implications of each law must be foreseeable. Legislation must be worded so that it is clearly understandable by those who are subject to it. Therefore, my amendment proposes to leave out the words

“devolved enactment or rule of law”

and to insert

“law made by the Scottish Parliament”.

There is a fundamental problem with the bill as drafted because, in relation to retained EU law, it is difficult to interpret to what law the principle applies.

Notwithstanding the ambiguity over the interplay between section 6 and any retained EU law, clarity will be immeasurably improved if my amendment is agreed to. Section 6(1) would then read:

“The principle of the supremacy of EU law does not apply to any law made by the Scottish Parliament passed or made on or after exit day.”

That is clear, concise and comprehensive.

That clarity is also required in section 6(1) at line 38. Although I appreciate that Mr Russell has struggled to keep up with the force of my argument thus far, he will no doubt be pleased to note that amendment 100 is based on an argument raised by the Law Society.

Section 6(1) states:

“The principle of the supremacy of EU law continues to apply ... to ... any devolved enactment or rule of law passed or made before exit day”.

A bill in the Scottish Parliament is passed when it is approved at the end of stage 3. There is then a holding period of normally four weeks before it can be submitted by the Presiding Officer for royal assent; during that period, it may be referred to the Supreme Court and the European Court of Justice. It is only on receipt of royal assent that it becomes enacted—in other words, it absolutely categorically becomes active only at the point of enactment. Prior to that, it is open to challenge. Thus, section 6(1) as drafted could apply to a “rule of law” that has been passed but not enacted and thus could be challenged.

There is a further issue, in that section 2(1) says that certain domestic legislation, “as it has effect” in law before exit day, will continue to do so. Section 6(1), by referring to legislation that has been “passed or made”, apparently dispenses with the requirement for the “rule of law” to be in force or operative—that is, to be in effect. Given that section 6(1), and what follows, relates directly to section 2—among others—insofar as it accepts some things from that which section 2 saves, all sections ought properly to mirror each other in the enactment status of that which they seek to govern. Certainty would therefore be obtained by the use of “enacted” rather than “passed or made”, and I urge the committee to agree to amendment 100.

My argument for amendment 102 is identical to that which I set out for amendment 99. Certainty, clarity and precision—to say nothing of comprehensibility—require nothing less than that that amendment be agreed to. To my mind, amendment 102 is a simple amendment; clarity would be immeasurably improved by removal of the words

“devolved enactment or rule of law”

and the simple insertion of

“law made by the Scottish Parliament”,

so that the section would read

“disapplication or quashing of any law made by the Scottish Parliament passed or made”—

or “enacted”, if the committee agrees to my amendment 100—

“before exit day.”

I turn to amendment 103. My point in leaving out the words “passed or made” and inserting “enacted”, as per amendment 100, stands. A bill of the Scottish Parliament is passed when it is approved at the end of stage 3; it does not come into effect until receipt of royal assent—that is, enactment. Clarity requires that the word “enacted” be inserted, which would lead to certainty. I urge the committee to agree to amendment 103.

I move amendment 99.

Donald Cameron

Amendment 101 is my only amendment in the group. I lodged it to address the Law Society’s concern about the approach that is taken in section 6(1), which it has stated has no obvious intended effect, or is, at the least, unclear. The Law Society has asked whether section 6(1) is

“merely a declaratory sub-section or”

whether

“it simply paves the way for the retention of the principle in section 6(2)”.

In essence, amendment 101 questions the purpose of section 6(1). My observation is that it is a declaratory provision—it simply states something and has no legal effect. If that is correct, I submit that we must say that. Therefore, my amendment expressly says that

“subsection (1) is only a declaratory provision.”

21:45  



James Kelly

I oppose all the amendments in the group. There seems to be a legal difference of opinion. I listened carefully to Liam Kerr’s argument, bearing in mind that he has an element of legal expertise.

Murdo Fraser

An element?

James Kelly

I will give Liam Kerr some fulsome praise: I respect his legal expertise. However, his arguments did not convince me that his amendments would have any added legal or practical effect. I oppose those amendments and Donald Cameron’s amendment 101.

Michael Russell

One of the core requirements of EU membership is the principle of the supremacy of EU law. In the event of any conflict with domestic law, domestic law must give way. Section 6 reflects the same approach as the UK bill in not applying that principle after EU exit. Similar to the UK bill, section 6 is intended to make clear that the principle of supremacy will not apply to any domestic law that is

“passed or made on or after exit day.”

Although the principle of supremacy will end for new laws after exit day, it is considered necessary to make it clear that that has no impact on the way in which our existing laws work.

The bill, therefore, sets out that, in relation to any pre-exit domestic law, the principle of supremacy will continue to apply, so far as relevant to the relationship to retained EU law. Remaining silent in the bill, or taking a different approach, would risk changing the law and creating uncertainty about the bill’s meaning and effect.

Liam Kerr’s amendments seek to remove from the scope of the provision rules of law—for example, the common-law devolved Westminster acts and subordinate legislation—which would just leave laws made by the Scottish Parliament; by that, I take it that he means acts of this Parliament. I am not sure why he has proposed that, because it would add more confusion. The principle of the supremacy of EU law applies to all those things, as well as to enactments.

Donald Cameron’s amendment 101 seeks to provide that the removal of the principle of the supremacy of EU law is declaratory only. I am also not sure why he lodged that amendment. The principle of the supremacy of EU law is a significant legal principle that is currently part of our legal system. On leaving the EU, despite previous suggestions to the contrary, it is for the Scottish Parliament to determine how EU law is to be retained and applied in devolved areas. It might be argued that, once we leave the EU, it will be sufficiently clear that the principle cannot apply to any future domestic law. However, that cannot be assumed. Similar to the UK Government, we consider that it is necessary to make the provision clear in the bill. Section 6(1) has substantive legal effect, rather than being declaratory. Donald Cameron’s amendment would have the opposite effect and would cast doubt on the position.

I observe with a wry smile—which will confirm to Jackson Carlaw that at least I have a smile—that, having been accused of actions that are incompatible with the rule of law, I note the report by the Bingham centre, which is a very distinguished centre, on the matter. On the equivalent provisions in the UK bill, the report said:

“the objective of clause 5(1) to (3), namely to give retained EU law priority over pre-exit, but not post-exit domestic law, is not merely ‘a sensible one’, it is required by the Rule of Law.”

Therefore, I ask members to vote against amendments 99 to 103.

Liam Kerr

I have proposed a number of amendments that are designed to add clarity, reduce uncertainty and ensure applicability. I lodged amendments 99 and 102 because I believe that, as drafted, the bill is unclear. Why should the bill say

“devolved enactment or rule of law”

when, in my view, clarity could be given by simply replacing that with

“law made by the Scottish Parliament”?

Section 6, “Principle of the supremacy of EU law”, is fundamental and one of the key sections that we need to get right. In that regard, I concede that the minister makes a fair point in saying that perhaps my amendments have not gone as far as they need to. I am sure that he concedes that my points are equally of value. On that basis, I think that there is more to be done with amendments 99 and 102, so I will not press amendment 99 or move amendment 102 at this stage.

I turn to amendments 100 and 103. This is a technical point, but it is a valid one. We must use words that have meaning. If we use words that could have meaning, or ascribe to words a meaning where another is absolutely appropriate or necessary, that is folly. The reality is that “passed or made” means one thing and “enacted” very clearly means another. Also, section 6 relates to section 2 and other sections. If something different is intended, which would seem very odd, it must be clearly stated. If the same intent is required in all sections, the same word should be used.

If members feel disquiet about my analysis—I note with sadness that I failed to convince James Kelly—perhaps they will be more convinced by the Law Society, which makes exactly the same point in paragraphs 2 and 3 of its briefing note, on page 8.

I commend amendments 100 and 103 to the committee. I will not press amendment 99 or move amendment 102. I commend to the committee amendment 101, in the name of Donald Cameron, because his view that section 6 is merely declaratory, which should be stated, is important.

Amendment 99, by agreement, withdrawn.

Amendment 100 moved—[Liam Kerr].

The Convener

The question is, that amendment 100 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 100 disagreed to.

Amendment 101 moved—[Donald Cameron].

The Convener

The question is, that amendment 101 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 101 disagreed to.

Amendment 102 not moved.

Amendment 103 moved—[Liam Kerr].

The Convener

The question is, that amendment 103 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 103 disagreed to.

Amendment 104 moved—[Maurice Golden].

The Convener

The question is, that amendment 104 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 104 disagreed to.

The Convener

The question is, that section 6 be agreed to. Are we agreed?

Members: No.

The Convener

Conservative members’ opposition is noted.

Section 6 agreed to.

Section 7—Challenges to validity of retained (devolved) EU law

Amendment 105 moved—[Maurice Golden].

The Convener

The question is, that amendment 105 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 105 disagreed to.

Amendment 106 moved—[Adam Tomkins].

The Convener

The question is, that amendment 106 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 106 disagreed to.

The Convener

Before we move to the next group, I want to suspend the meeting for about five minutes; we will have a break. I intend to close the meeting after we have considered the group entitled “Grounds for exercise of various regulation-making powers”.

21:54 Meeting suspended.  



22:05 On resuming—  



The Convener

After discussion with the clerks, I have decided that we will, because I need to have in mind the duty of care to staff—it is not just about members—deal with the next three groups of amendments. We will finish with the group entitled “Interpretation of retained (devolved) EU law: status of decisions of the European Court after exit day”. To deal with the group following that one would take us well past 11 pm and probably close to midnight, so I think that it will be fair to take just the next three groups. I am giving members early indication of that.

Amendment 107, in the name of Maurice Golden, is grouped with amendments 108 and 109.

Maurice Golden

Amendment 107 would amend section 7 at page 5, line 24. It would insert at the end of the section:

“As soon as practicably possible after the end of each quarter of the year the Scottish Ministers are to—

(a) lay before the Scottish Parliament, and

(b) make publicly available by such means as they consider appropriate,

a report on the number of challenges made to the validity of retained (devolved) EU law under this section.”

The rationale behind it is that it would require ministers to report regularly on how many challenges to the validity of retained devolved law there have been.

Section 7 sets out the right to challenge what is or is not retained in Scots law after exit day. It puts down caveats on that from the European Court, saying that before exit day, an instrument is no longer valid to ministers. However, it also says, in section 7(2)(b), that challenges are not valid if they are

“of a kind described, or provided for, in regulations made by the Scottish Ministers.”

That, in turn, is subject to subsections (4) and (5), which state that regulations can ensure that a challenge that would have been against the EU is instead

“against a Scottish public authority”

and that the regulations must be

“subject to the affirmative procedure”.

Mike Russell’s amendments 108 and 109, which will add a new section after section 9, go further and add the need for consultation before regulations are made. There is some provision for scrutiny of the regulations; that is welcome, but there is clearly still scope for new regulations to be made, with broad understanding of what is going on.

I have a quotation from the Law Society of Scotland—for clarification, I will, after Patrick Harvie’s rather ill-advised comments about what I quoted earlier, read out the full quotation. Patrick Harvie said that the committee had received written submissions in relation to all those quotes. Although that may be the case, I quoted from a committee report, I reported a quote from a legal journal, and I also reported a quote from the Supreme Court. Although I am not party to the papers that the committee has received, I very much doubt that the Supreme Court has submitted written evidence to the committee, although I am sure that the Supreme Court holds it in high esteem.

The Law Society said:

“To the extent that the devolved rights or principles of EU law which are saved in sections 4 and 5 fall within retained (devolved) EU ... law, the saving appears to have limited effect because of section 7(1) which provides:

‘There is no right in Scots law on or after exit day to challenge any retained (devolved) EU law on the basis that, immediately before exit day, an EU instrument was invalid.’

We note that regulations under section 7(2)(b) will describe the types of challenges which will be permitted to the validity of the retained (devolved) EU law. It would be helpful were Scottish Ministers to detail the potential content of such regulations.”

Amendment 107 would help to achieve that by requiring quarterly publication of the number of challenges that are made. That simple step would help us to understand the impact that saved law was having. I urge committee members to look at the law, to put their politics aside and, for once, to help to improve the bill for the good of Scotland and the Scottish Parliament.

I move amendment 107.

Michael Russell

My amendments 108 and 109 are a response to a request from the Delegated Powers and Law Reform Committee on a point that was raised initially by its convener, Graham Simpson. They will convert the scrutiny procedure for regulations under section 7(2)(b), which allows domestic court challenges to EU instruments on validity grounds after exit day, to an enhanced 60-day scrutiny procedure following consultation, like that which will be used in other cases under the bill. We accept that that is sensible because the regulations might create significant outcomes in the courts.

Although I thank Maurice Golden for lodging amendment 107, I encourage him not to press it. If he does so, I invite the committee not to support it. The items will be a matter of public record, so to create a further requirement to report on the public record would be unduly onerous. I am sure that ministers will keep Parliament informed about uses of powers. The committee will be able to scrutinise uses of powers, and the additional scrutiny procedure will add an extra dimension. The requirement in amendment 107 is, therefore, redundant.

James Kelly

I support Maurice Golden’s amendment 107. It makes sense in terms of transparency because it would require challenges to be reported every quarter. I note that the minister said that the information will be made public, but specifying a requirement to do so in legislation would assure us that it will be delivered.

I also support the minister’s amendments 108 and 109, which set out important aspects in relation to new regulations that come forward, particularly in relation to consultation. The minister has clearly taken steps to address the concerns about the lack of consultation in relation to some of the regulation powers.

I support all the amendments in the group.

The Convener

As no other member has indicated that they want to speak at this point, I call on Maurice Golden to wind up.

Maurice Golden

I will be very brief. Amendment 107 is all about transparency and improving scrutiny. Ultimately, it represents an improvement that will help the validity of retained devolved EU law under section 7.

The Convener

The question is, that amendment 107 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 107 disagreed to.

The Convener

The question is, that section 7 be agreed to. Are we agreed?

Members: No.

The Convener

Conservative members’ opposition is noted.

Section 7 agreed to.

Section 8—Rule in Francovich

The Convener

Amendment 7, in the name of Tavish Scott, is in a group on its own.

22:15  



Tavish Scott

I enter the Francovich area with some trepidation. I feel like very junior counsel with Adam Tomkins sitting here—even more junior than Donald Cameron feels in such moments.

The Francovich principle is an instrument for driving ever better standards of governance and output in the public sector. It dates from 1991 and has been extended over the past 25 years to cover states, public authorities, agencies, local government and, recently, the private sector. The principle is that if any of those bodies have been in breach of European Union law and an individual or corporate body has suffered thereby, that individual or body has a remedy, in that the courts can impose damages proportionate to the losses suffered as a result of poor governance. Without that remedy, people are left with judicial review, which is expensive and lengthy and does not provide damages. Francovich is a piece of what has been coined “people’s law”—it is designed to give ordinary people the chance to obtain redress. It has been part of the Scottish legal landscape for 25 years by virtue of our membership of the European Union. We should take the opportunity to retain what we can of it for the future and to continue it, as part of the bill.

I move amendment 7.

Neil Bibby

Scottish Labour and I support amendment 7, which was lodged by Tavish Scott with the support of my colleague Mary Fee, on the rule in Francovich. The amendment would ensure that the right in Scots law to damages in accordance with the rule in Francovich continues on or after exit day. Under EU law, since Francovich, member states have been obliged to make good any loss or damage caused to individuals by breaches of Community law for which member states can be held responsible.

We have been clear that leaving the EU must not mean any dilution of people’s rights, including the rights of workers, small businesses and others protected by that rule. Our concern is that without a specific provision on Francovich, an important strand of legal protection could be lost. We will support amendment 7, so that Francovich can be absorbed into Scots law.

Patrick Harvie

I am open to supporting amendment 7 and will listen with care to what the minister has to say. If the minister is not able to convince the committee to reject the amendment, but still wishes to discuss further tweaks or changes at stage 3, all members, including those who support amendment 7, should be willing to listen. However, at the moment I am open to supporting the amendment.

Adam Tomkins

The Scottish Conservatives do not support amendment 7 for two reasons. One is that there is no reason for the continuity bill to differ from the withdrawal bill in relation to Francovich. The second and more important point is that, in relation to damages from public authorities, including the state and the Government, there has been significant change in our legal systems in the United Kingdom over the past 20 or more years since the Francovich decision. That has happened not just because of Francovich but because of changes in the common law both in Scotland and in England and Wales and because of the impact of the Human Rights Act 1998, which has increased the availability of damages against public authorities, including the Government.

The reality is that, irrespective of what the bill or any other enactment says about the on-going status of the specific rule in Francovich, public authorities find themselves increasingly liable for damages for a variety of reasons under a variety of causes of action. That common-law development will continue after Brexit, just as it has continued during the 46 years of the UK’s membership of the European Union, irrespective of what the bill or any other legislation says about the specifics of Francovich. That is the core of the issue.

Michael Russell

Members have a difficult choice to make and I want to explain carefully why the Government does not recommend support for amendment 7. I understand the desire of many members to ensure that there is as little change as possible to the rights of individuals after Brexit—I did not seek and do not want that, so I have sympathy with that position.

The Scottish Government recognises the importance of the principle in Francovich, which allows damages to be claimed against the state for failures in implementing EU law. That is why the bill ensures that that important principle is retained when the claim arises before exit day. The bill does not require the claim to have been raised in the courts before exit day, which, as I am sure members will appreciate, would have been a significant loss to claimants of rights that had accrued before exit.

As Mr Tomkins indicated, the withdrawal bill takes a different approach to rights that have accrued before exit day. Under that bill, those accrued rights would be lost at that point if a claim had not actually been raised in the courts. It is interesting to note that, in the House of Lords last week, the Advocate General for Scotland recognised that that was a problematic approach and indicated that the UK Government may have to consider allowing Francovich damages for claims that have arisen before exit day, which is the provision that we are making.

However, Mr Scott’s amendment 7 goes further by continuing the right to claim damages after exit day. In other words, Francovich damages could apply whether the claim arose before or after exit day. In general, we have sought to carry over all existing EU law, including the charter and general principles of law and the associated remedies. We have taken the view that the existing right to Francovich damages is inextricably linked to EU membership and the obligations of the UK as a member state of the EU. The purpose of Francovich damages is to provide a remedy to those who are disadvantaged by the failure on the part of a member state to properly implement EU law and, to some extent, to make an example of member states that fail in their obligations. Although it is for national courts to apply their own criteria, the Court of Justice of the EU has a central role in providing national courts with guidelines and indications for the application of the criteria. After exit day, the UK will cease to be a member state of the EU. I regret that, but that will be the case if we reach exit day.

Given that Francovich damages are inextricably linked to membership of the EU and the implementation of EU law, it is difficult to see what the rule would mean and how it could work effectively in relation to retained EU law. There will be no jurisdiction for the ECJ, no supervision of implementation and no ability to make an example of the state. I reiterate that, unlike under the UK bill, any person will be able to raise such an action in relation to implementation failures of the Scottish ministers prior to exit day.

I cannot support amendment 7 for the reasons that I have given. Of course I have sympathy with people who object to the changes that are taking place; I, too, wish that they were not taking place. However, it is very difficult to see how amendment 7 could operate, given the terms and conditions of its operation.

Tavish Scott

I am struggling slightly to understand the argument that, once the UK leaves the European Union, ministers wish to continue to have powers in respect of regulations and the laws that the EU passes, yet they do not wish to continue to have the Francovich process. That does not seem to be a consistent approach. In that context, I do not see why amendment 7 would be resisted.

I understand some of the other arguments that have been made, but it seems to me that we should not lightly throw away a system of judicial rule and a convention in Scots law that have been in place for 25 years and which specifically benefit ordinary workers and businesses—people who have been wronged and who do not have the big money that is necessary to take on large public agencies.

On that basis, particularly given the first point, on which I genuinely struggle with the minister’s argument, I will press amendment 7.

The Convener

The question is, that amendment 7 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Bibby, Neil (West Scotland) (Lab)

Against

Tomkins, Adam (Glasgow) (Con)
McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 7 disagreed to.

The Convener

The question is, that section 8 be agreed to. Are we agreed?

Members: No.

The Convener

Conservative members’ opposition is noted.

Section 8 agreed to.

The Convener

The question is, that section 9 be agreed to. Are we agreed?

Members: No.

The Convener

Conservative members’ opposition is noted.

Section 9 agreed to.

After section 9

Amendment 108 moved—[Michael Russell]—and agreed to.

The Convener

I was taken by surprise there.

Amendment 109 moved—[Michael Russell]—and agreed to.

Section 10—Interpretation of retained (devolved) EU law

The Convener

Amendment 8, in the name of Tavish Scott, is grouped with amendments 110 and 111. If amendment 8 is agreed to, I cannot call amendment 110 or amendment 111, because of pre-emption.

Tavish Scott

Amendment 8 would toughen up the bill where it says “may have regard to” and provide a more serious test, to give clearer guidance in relation to retained European Union law. It proposes that courts and tribunals “must” have regard to future European judgments. Scottish courts, of course, would retain the right to assess the significance of such judgments. That is in proposed new subsection (2) of section 10, which the amendment would introduce.

Proposed new subsection (2A) would require courts and tribunals to have regard to any withdrawal agreement that is signed. The example that Lord Pannick gave in the House of Lords—I seem to be reading the Lords proceedings more often than not these days—which forced a similar change to the UK bill, concerned regulation of medicinal products. If the withdrawal agreement between the UK and the EU were to say that there will be close regulatory alignment between the EU and the UK, as many members hope that it will, a court or tribunal in Scotland would be encouraged by the proposed new provision to pay close attention to the determined meaning of EU regulation.

Proposed new subsection (2B) provides that it is perfectly acceptable for a court or tribunal, having been guided to consider EU judgments under subsection (2A), to decide that none has significant relevance to the matter before it.

On that basis and in that spirit, I hope that the committee will consider agreeing to amendment 8.

I move amendment 8.

Adam Tomkins

The convener will be pleased to hear that I will be very brief in speaking about section 10, which corresponds to clause 6 of the European Union (Withdrawal) Bill.

There is no reason for there to be any difference between the two bills in respect of the issue that section 10(2) deals with. Section 10(2) provides:

“A court or tribunal exercising devolved jurisdiction may have regard to anything done on or after exit day by the European Court, another EU entity or the EU.”

Amendments 110 and 111 would amend the provision, so that it would read:

“A court or tribunal exercising devolved jurisdiction need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.”

That is also provided for in clause 6 of the withdrawal bill.

I lodged the amendments in the interests of consistency between the two bills, in the interests of legal certainty and in the interests of ensuring that the provisions really correspond with each other—as opposed to the Government claiming, wrongly, that they do.

James Kelly

I support amendment 8, in the name of Tavish Scott. The ability to interpret retained EU law accurately is important. Amendment 8 would enhance the bill and provide greater clarity.

I do not support amendments 110 and 111. I heard what Adam Tomkins said about making the continuity bill consistent with the withdrawal bill, but I am not convinced that his amendments make any difference. I will be happy with the wording of section 10 if it is amended by amendment 8.

Patrick Harvie

I, too, see merit in Tavish Scott’s amendment 8.

On the suggestion that we change “may” to

“need not ... but may do so if ... appropriate”,

I am not convinced that simply saying, “This is what the UK bill does,” is a strong argument. In my interpretation of the provision as Adam Tomkins proposes to amend it, I think that some criteria would be required to determine what would make such an approach “appropriate”. The bill is clearer as it stands, and I would take some persuading to accept the changes that Adam Tomkins proposes.

Michael Russell

I will deal first with Adam Tomkins’s amendments 110 and 111, which would amend section 10(2) so that instead of providing that domestic courts and tribunals “may” have regard to decisions of the European Court or other EU entities or the EU, it would provide that our courts “need not” have regard to anything done by the European Court or other EU entities or the EU but “may” do so if it is “appropriate to do so”. That would align the provision exactly with the relevant provision in the withdrawal bill—a developing theme this evening.

22:30  



The amendments would not alter the substance of the provision. We consider that the drafting of section 10(2) is more straightforward, in that it clearly emphasises from the outset the positive intention that the domestic courts can have regard to future EU judgments. It is very odd to provide for something in the negative—that something “need not” have regard to something. I therefore urge the committee to reject amendments 110 and 111.

Tavish Scott’s amendment 8 puts me in more of a quandary, for two reasons. The first is that, as a general principle, requiring courts to do things tends to be a difficulty for the courts themselves, because they like to have discretion. Secondly, there are one or two issues with the drafting of the amendment to which I have to take exception—for example, the phrase should be “retained devolved EU law” rather than “retained EU law”. However, I do not want to rule out absolutely at this stage what amendment 8 proposes. If Mr Scott will agree to discuss it with officials and me between now and stage 3, I think that we could find a way to toughen the provision without necessarily removing every discretion from the court. I also think that we would be able to phrase that in a way that would fit with the bill. I am not unsympathetic to making that happen and to toughening the provision, but we need to do it in a way that works for the bill.

Tavish Scott

I thank Patrick Harvie and James Kelly for their observations on amendment 8 and their support for it. I accept the minister’s offer to look closely at how we can give effect to what amendment 8 seeks to achieve. On the basis of the minister’s offer, I seek to withdraw amendment 8.

Amendment 8, by agreement, withdrawn.

Amendment 110 moved—[Adam Tomkins].

The Convener

The question is, that amendment 110 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 110 disagreed to.

Amendment 111 not moved.

The Convener

I call Jackson Carlaw to move or not move amendment 112.

Jackson Carlaw

I have stuck it out this long, convener, so I will move amendment 112.

The Convener

You mean that you did not want to put me off my stride again.

Amendment 112 moved—[Jackson Carlaw].

The Convener

The question is, that amendment 112 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 112 disagreed to.

Amendment 113 moved—[Graham Simpson].

The Convener

The question is, that amendment 113 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 113 disagreed to.

Amendment 114 moved—[Jackson Carlaw].

The Convener

The question is, that amendment 114 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 114 disagreed to.

The Convener

The question is, that section 10 be agreed to. Are we agreed?

Members: No.

The Convener

Conservative members’ opposition is noted.

Section 10 agreed to.

The Convener

That brings the committee’s consideration of the bill to a close for this evening. We will commence consideration again at 8 am in the chamber. I thank all members and the minister for their participation. I particularly thank the staff for bearing with us.

Meeting closed at 22:34.  



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Second meeting on changes transcript

The Convener (Bruce Crawford)

Good morning, and welcome to the 10th meeting in 2018 of the Finance and Constitution Committee. I see that we all look bright-eyed and bushy-tailed. It is good to see you all.

Section 11—Dealing with deficiencies arising from UK withdrawal

The Convener

We continue our consideration of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. Amendment 115, in the name of Dean Lockhart, is grouped with other amendments as shown in the groupings paper. Members will note from that there are a number of pre-emptions in group 10. I will remind members of any pre-emption as I call the relevant amendment.

Dean Lockhart (Mid Scotland and Fife) (Con)

Amendment 115 is my only amendment in group 10. I will be supporting amendments 9, 14 and 22, and I will speak to amendments 11 to 13, 15, 119, 138, 206 and 212.

Amendment 115 seeks to clarify the scope and application of section 11. As other members highlighted yesterday, section 11 confers wide-ranging powers on Scottish ministers to pass regulations in a number of areas without the approval of Parliament. Specifically, section 11(1) empowers Scottish ministers to make such regulations as they consider appropriate in the following circumstances:

“Where the Scottish Ministers consider—

(a) that there is, or would be—

(i) a failure of retained (devolved) EU law to operate effectively, or

(ii) any other deficiency in retained (devolved) EU law,

arising from the withdrawal of the United Kingdom from the EU, and

(b) that it is necessary to make provision for the purpose of preventing, remedying or mitigating the failure or other deficiency”.

Section 11(5) provides that regulations to be made by ministers

“may make any provision that could be made by an Act of the Scottish Parliament.”

Amendment 115 follows the concerns raised by the Law Society of Scotland about the scope and the application of those powers. First of all, according to the Law Society,

“what constitutes a failure in the retained EU law to operate effectively”—

as mentioned in section 11(1)(a)(i)—

“is not clear and could be open to argument or subjective opinion (despite the examples of deficiencies in section 11) because the deficiencies in section 11 are neither exhaustive nor limited to deficiencies of the same kind”,

which makes the provision very difficult to interpret.

The Law Society explained that section 11 adds further uncertainty. It said:

“section 11(11) broadens the category of deficiency”

that ministers may address

“by providing ‘a failure or other deficiency arising from the withdrawal of the United Kingdom from the EU includes a reference to any failure or other deficiency arising from that withdrawal taken together with the operation of any provision, or the interaction between any provisions, made by or under this Act.’”

The operation and scope of section 11 is unclear.

To address those concerns, amendment 115 proposes to insert a new subsection into the bill that says:

“The Scottish Ministers must by regulations subject to the affirmative procedure define what, for the purposes of this Act, constitutes a failure of retained (devolved) EU law to operate effectively.”

The purpose of my amendment is threefold: to introduce further legal certainty on the scope and the operation of the powers conferred on ministers; to introduce further legal certainty about what would constitute

“a failure of retained (devolved) EU to operate effectively”;

and to introduce parliamentary scrutiny to the exercise of those powers by ministers.

I invite the minister in his remarks on group 10 to address the Law Society’s concerns about the powers being conferred on ministers by section 11, which could be used and implemented without the scrutiny of Parliament. I also ask that the minister provide examples of what he might consider

“constitutes a failure of retained (devolved) EU law to operate effectively.”

I move on to the three amendments in the names of another member that I am formally supporting: amendments 9, 14 and 22. Those amendments propose to change the test applied for the use of the powers by ministers to pass the regulations that I have mentioned. As the bill is currently drafted, ministers would be able to “make such provision” using those regulations “as they consider appropriate” to deal with deficiencies arising from the UK withdrawal from the EU. The key words are “as they consider appropriate”. Amendments 9, 14 and 22 would change that test so that ministers are only able to make such provision by regulation as “is necessary” to deal with deficiencies arising from the UK withdrawal from the EU.

Those amendments address concerns raised by the Law Society that the legislation as currently drafted would allow ministers to make provisions in whatever manner they consider appropriate, which is a subjective test and one that would be wide ranging. To address the issue, the Law Society has suggested an amendment that Scottish ministers should make only such regulations as are “necessary”, which is an objective test, rather than “appropriate”, which is a subjective test.

Amendments 11 to 13, 15, 119, 206 and 212, in the names of other members, are based on a similar rationale. They all change the existing tests in the relevant parts of section 11 from the subjective test of “appropriate” to the more objective test of “necessary”. In my winding-up remarks, I would like to address those amendments in more detail.

I move amendment 115.

Neil Bibby (West Scotland) (Lab)

As Dean Lockhart has said, there are multiple instances throughout part 3 where Scottish ministers could be permitted to exercise significant regulation-making powers. Those powers are far reaching and can be exercised as Scottish ministers consider appropriate. My concern, and the concern of many others, is that the bill as it is presently drafted places too much power in the hands of the Scottish Government and not enough power in the hands of the Parliament.

Amendments 116 to 119, 124 and 135 to 138, in my name, are an attempt to address those concerns. Instead of mandating the Scottish Government to use regulation-making powers where ministers consider it appropriate, the Scottish Government would be mandated to use regulation-making powers where necessary. That is the focus of not just my amendments in this group, but the amendments by Tavish Scott, which are supported by Neil Findlay, and those by Dean Lockhart.

The powers in the bill must be tested. The requirement for ministers to use the powers granted to them by the bill has to be tested. That is what my amendments, and a number of amendments from colleagues across the chamber, seek to do. The bill should not permit the use of those regulation-making powers where it is not necessary. Two of my amendments—amendments 119 and 138—closely resemble amendments 9 and 22, in the name of Neil Findlay. Those amendments were lodged separately but would have a similar effect. James Kelly will speak to those amendments.

It is necessary to adapt retained EU law so that it functions in Scotland on and after exit day, and it is necessary to confer new powers on Scottish ministers to manage that transition. However, the bill must not marginalise or be a vehicle for bypassing the Scottish Parliament. The powers available to ministers must therefore be limited to converting EU law into Scots law, and must not extend any further unchecked and without proper scrutiny.

I hope that members will consider supporting my amendments in this group.

James Kelly (Glasgow) (Lab)

I will speak to amendments 9, 14 and 22, in the name of Neil Findlay, which I will later move on behalf of my colleague.

In essence, the amendments make the wording in two sections tighter and clearer by replacing the phrase “as they consider appropriate” with “as they consider necessary”. That tighter wording provides greater legal clarity and is more concise with respect to the regulation-making powers, which ties in with points that Neil Bibby made.

With regard to the other amendments in the group, I support the amendments in the name of Neil Bibby and Tavish Scott.

Tavish Scott (Shetland Islands) (LD)

Amendment 10 is one of a series of amendments that seek to restrict the use of ministerial room for manoeuvre in establishing new regulations. I will move the amendment in the spirit of remarks by Dean Lockhart, James Kelly and Neil Bibby.

The addition of the words “have reasonable grounds to” by amendment 10 and amendment 16 will toughen the tests, make them justiciable and narrow ministerial discretion.

Amendments 11 to 13 and 15 seek to toughen the test for ministerial action. Given the areas that we are discussing, that seems an appropriate course of action. I accept that the minister earlier explained that a test of “necessary”, which has to be met before “appropriate” provisions can be proposed by ministers, has been placed in section 11(1)(b). That debate has just been spoken to by Mr Kelly.

My amendments seek to place a test of “necessary” on to all the deficiencies referred to in paragraphs (c), (d), (e), (f) and (g) of section 11(2). I want to constrain the room for ministerial manoeuvre without recourse to Parliament. Ministers will have to make the case, before they can use those extensive new powers, that their remedy is “necessary”. That seems a fair test.

My only other observation is that it seems to me that amendment 9 suggests that some members do not accept that there is a test of “necessary” in section 11(1)(b) that ministers must meet before they can consider any “appropriate” action. I have said that I accept that the “necessary” has been put there. I have an amendment in a later group to ensure that ministers must report how that test is met, which, again, will be an important check in the system, and I will move that amendment on that basis.

Jamie Greene (West Scotland) (Con)

I will speak to my amendment first, as the other amendments are similarly themed. Mine perhaps stands out as being slightly different.

My amendment 134 and Neil Bibby’s amendment 135 differ in what they are seeking to achieve, in that although Neil Bibby’s amendment is heading in the right direction in terms of wording, I would like to go further with mine.

In my view, section 12(1), as currently drafted, is worrying. The proposal seems to imply that the responsibility for identifying a breach, or even what might be a breach, of the United Kingdom’s international obligations that arises from withdrawal from the EU would lie subjectively with the Scottish Government. From my understanding, that subsection could be used by Scottish ministers to introduce or change regulations as they see fit to ensure that international obligations are met.

I cannot be the only MSP who is concerned about conferring that power on the Scottish Government. Doing so would undermine, in effect, the independence of not just our but any judicial system by adding an overtly political element. I do not believe that it is for the Scottish Government to make decisions about another Government’s international obligations, nor do I believe that it is the Scottish Government’s position to decide which treaties the UK Government is or is not adhering to. International treaties are enforced by the relevant courts, domestic or otherwise. For example, the European Commission is legally defined as the guardian of treaties, but, as the executive branch of the EU, it still must refer cases to the European Court of Justice or a court of first instance and it is bound by the judgments thereof.

My amendment places the responsibility for identifying breaches of treaties on relevant courts rather than ministers. It allows Scottish ministers, however, to make provisions that they see as appropriate for dealing with such breaches as have been identified by courts.

The new phrasing mirrors the current practice in the tripartite relationship that exists between the UK Supreme Court, the UK Parliament and the Human Rights Act 1998. For example, the Supreme Court can issue a declaration of incompatibility when it finds that an act of Parliament is incompatible with adherence to the 1998 act, and the UK Parliament would then make necessary changes to ensure that its act was compatible.

My amendment would enshrine into law that any dispute must be brought before the relevant court responsible for enforcing international obligations. All that I am proposing this morning is that we do not deviate from international practice in adding additional powers to the Scottish Government.

08:15  



To turn to some of the other amendments in the group, I fully support amendment 115, in the name of Dean Lockhart, for the two reasons that he outlined. One is that it provides additional legal certainty; the other is that it will increase the ability of Parliament to scrutinise via the affirmative procedure. Many of the other amendments in this group, including those lodged by Labour, are welcome, in my view. Again, they add more objectivity.

The phrase “the Scottish Ministers consider” is used throughout the bill and I think that it is not just the view of MSPs that it should be replaced; we have had evidence from the Law Society that should be taken into account. Those are my only comments on the group.

The Convener

Liam Kerr will speak to amendment 206 and other amendments in the group.

Liam Kerr (North East Scotland) (Con)

Section 30(1)(b) sets out a sweeping provision that any power to make regulations that are

“incidental, supplementary, consequential, transitional, transitory or saving”

will be allowed,

“as ... Ministers consider appropriate.”

Section 32 repeats that form of words in a mopping-up section that will give broad powers of regulation, and again, it is expressed that the provision will be allowed where ministers consider it “appropriate”. That is too broad. It will give the Scottish ministers powers to make legislation as “appropriate”, which is subjective. I listened to Dean Lockhart praying in aid the Law Society of Scotland and seeking to interpose the objective test of “necessary”. I associate myself with his remarks, which apply equally to my amendments.

I also acknowledge Neil Bibby’s comments about placing too much power in the hands of Scottish ministers through use of the word “appropriate”. The bill should not permit the use of such powers where that use is not necessary.

Regulations, in this case, should be brought in only when they are required. My amendments 206 and 212 would tighten the definition and place the necessary checks on executive power. In anticipation of the ministerial response, I point out that this is, of course, going further than the European Union (Withdrawal) Bill, as is entirely appropriate because the Scottish Parliament has a single chamber, and the House of Lords brings an extra level of scrutiny to regulations in Westminster. Our particular set-up means that we have to be especially cautious about extensions of executive power. That caution is what amendments 206 and 212 seek, so I hope that the committee will look favourably on them.

Adam Tomkins (Glasgow) (Con)

I will speak briefly on amendments in the group that are in the name of Opposition members who are not Scottish Conservatives. Obviously, the Scottish Conservatives will support the Scottish Conservative amendments, but we will also, for two reasons, support all the other Opposition amendments in the group, which are in the names of Neil Bibby, Tavish Scott and Neil Findlay.

First, amendments 116 to 118, 124 and 135 to 137, all in the name of Neil Bibby, and amendments 10 and 16, in the name of Tavish Scott, would all have the same effect, which would be to reduce excessive ministerial discretion.

The minister is fond of reminding members that we must be careful with language, but he constantly uses the unnecessary and hyperbolic rhetoric of the phrase “power grab” when he describes the withdrawal bill. There is a power grab in the continuity bill, but it is not a power grab from Westminster to Holyrood or the other way round; it is a power grab from the Scottish Parliament to the Government. We must be equally alive to both the appropriate balance of power between the executive branch and the legislature, and the devolution settlement. If we are to respect the constitution, we need to be alive to the issue of the separation of powers as well as to devolution and its appropriate settlement.

That is an element of the rule of law, which Gordon Lindhurst spoke about eloquently yesterday evening. For that reason, the Scottish Conservatives will support the amendments that I have mentioned, because they would reduce excessive ministerial discretion.

The second sub-group of amendments in the group contains amendments that would delete the word “appropriate” and replace it with the word “necessary” in a number of different provisions, principally sections 11, 12, 30 and 32, about which Liam Kerr has just spoken. Again, the minister has made great play of the fact that, in his view, one of the significant differences between the withdrawal bill at Westminster and the continuity bill in the Scottish Parliament is that ministerial powers can be used in the Scottish Parliament only when necessary, whereas ministerial powers at Westminster can be exercised when appropriate. Through our support of these Opposition amendments, we are encouraging the minister to be consistent rather than inconsistent, as he currently is, about the matter.

We also support the amendments for the constitutionally important reason that was outlined by Liam Kerr: we need to recognise that the Scottish Parliament is a unicameral Parliament, and not a bicameral Parliament like Westminster. The constitutional function of the House of Lords is to act as a check on what happens in the House of Commons. We have no equivalent of the House of Lords in Scotland. Therefore, we need to be even more alert than our friends and colleagues in Westminster have to be about ensuring that ministerial discretion is appropriately tailored. For that reason, we will support all the amendments that seek to remove from the bill the word “appropriate” and replace it with the word “necessary”.

Patrick Harvie (Glasgow) (Green)

I am slightly uncomfortable suggesting that I might have reached the same conclusion as Adam Tomkins; however, I have reached it for very different reasons. It strikes me as odd that he spent a good part of yesterday evening telling us that the most important thing is to have consistency with the UK legislation, but now he tells us that the minister should have consistency with his own arguments, rather than with those that are being made down south. For very different reasons, I do not think that we should follow the UK legislation in lockstep. I am judging the matter on its own terms. It seems to me that there is a good case for replacing the word “appropriate” with the word “necessary”. When he responds to the group of amendments, I would like the minister to be very clear in separating the different arguments.

I have more concerns about the amendments that seek to remove the role of ministers in reaching a view about what they consider should be done, and which would instead apply an objective test. It is not clear to me who would assess and determine that objective test. During the debate on the continuity bill, there has been, on a great deal of matters, what has been described to us as room for difference of opinions and room for disagreement on questions such as the competence of the continuity bill.

I want to ensure that we avoid a situation in which ministers reach a view that regulations are “necessary” and must be brought to Parliament, but are unable to do so, or the issue becomes mired in whether an objective test, which has not been well defined in the legislation, has been met, and whether ministers have the legal right to lay the regulations before Parliament.

We will have really important discussions later about the level of scrutiny of regulations. I hope that there will be cross-party support for beefing up the system and ensuring that Parliament will control the level of scrutiny that it wishes to provide, so that Parliament can hold ministers to account for the significant powers that they will acquire under the bill, if it is passed.

I would be very concerned if we were to leave ourselves in a position in which we are simply unable to debate, or begin scrutiny of, something because legal doubt has been raised over whether ministers have the right to lay a resolution for discussion, because of an ill-defined objective test.

I ask the minister to respond separately to these points: the question of replacing “appropriate” with “necessary”, and the question of whether the trigger for laying an instrument can be based on what ministers consider.

Willie Coffey (Kilmarnock and Irvine Valley) (SNP)

Amendments 11 to 15 from Tavish Scott and Neil Findlay could make it almost impossible to exercise the powers in question. It seems reasonable to retain the word “appropriate” rather than replace it with a specific requirement to establish necessity. I can imagine a number of situations in which a policy direction might not actually be clear, so I think that it is better to enable flexibility to be applied.

In my view, therefore, amendments 11 to 15 could at best weaken the bill and at worst make it inoperable, at least in some circumstances. Rather than it being an example of excessive discretion being applied, it seems to me—I am mindful of Patrick Harvie’s comments—an example of excessive inconsistency for this bill, in comparison with the equivalent bill in the UK Parliament.

The Minister for UK Negotiations on Scotland’s Place in Europe (Michael Russell)

It is appropriate that we come to section 11 first thing this morning. The issues of proper scrutiny and the way in which ministerial power can be exercised or restrained are crucial in consideration of a range of issues that we will discuss this morning.

At the outset, I want to indicate clearly that I am absolutely aware of the importance of ensuring that anything that is done under the continuity bill involves maximum scrutiny, and that ministers are aware of the special powers that the bill will give.

We have to ask why the bill will give special powers. It is because of the circumstances that have been created by the United Kingdom’s Brexit process. That is why the powers exist in the withdrawal bill: there is a major job of work to be done, and it cannot be done using the tools that are currently to hand. If we are devising new tools to undertake this job of work, they must be appropriate and necessary, they must be able to be scrutinised, and they must be able to be trusted.

We have looked carefully at the UK bill and we have strengthened the powers of this Parliament, compared with the way in which the equivalent powers will be overseen, scrutinised and controlled by the Westminster Parliament. I am pleased by that inconsistency—to use Patrick Harvie’s term—because it exists because we have been listening and continue to listen.

I will make a general point that applies to this and subsequent debates this morning. I will accept a range of amendments that strengthen this Parliament’s powers, but I will not accept all the amendments, for reasons that I will give about those particular amendments. I am not resisting the principle of ensuring stronger scrutiny and more restraints on ministerial power, but that does not equate to my accepting all the proposals, some of which are inoperable or would be difficult to operate.

I do not think that we should be in lockstep with Westminster. I have always believed that we should do better than Westminster if we possibly can. That is what we will try to do.

I also point out to Patrick Harvie that the central problem in legislation is the way in which objective tests are enforced or scrutinised. There is no way around it: if legislation has an objective test and the objective test is not met, redress exists through the courts. That is the legal situation that we have. We should outline the objective test and ensure that it is applied and can be scrutinised closely by the Parliament. That is exactly what we should be doing and what we are trying to do.

I believe that the tests should be toughened, and I will try to find ways to toughen them in section 11 and subsequent sections, but I stress that it is not possible to accept all the amendments. Therefore, when I accept some amendments, I am doing so on the basis not of favouritism but of practicality and striking the balance between scrutiny and control and getting the job done.

Let me start with Dean Lockhart’s amendment 115. By requiring regulations to define

“a failure of retained ... EU law to operate effectively”

arising from EU withdrawal, the amendment would require an intervening set of further regulations to be made, which would complicate the already difficult process of adjusting domestic law to Brexit.

08:30  



The members who now support Brexit and intend to make it even more difficult for the Scottish Parliament to adjust to Brexit really need to consider their position. The amendment would delegate more power to ministers, which they have criticised elsewhere. Although

“failure of ... EU law to operate effectively”

might be a relatively wide concept, the power here is limited by the context of EU withdrawal, and by the test of whether it is a necessity to make provision

“preventing, remedying or mitigating the failure”,

which we have added to the bill as another safeguard.

Neil Bibby’s amendments 116 to 119, 124 and 135 to 138 would adjust the main legal tests for what deficiencies can be remedied, and how international obligations can be implemented. They would remove references to ministerial judgment of whether the law fails to operate properly or whether there is another deficiency or breach of international obligations, so that only provision that is objectively necessary would be permitted. I am sympathetic to that, but sections 11(1)(b) and 12(1)(b) already make careful provision to require that it is “necessary”—I stress that word, which is in the bill—to make provision

“preventing, remedying or mitigating the failure or ... deficiency”.

However, that allows sensible, practical and appropriate solutions to be made without the need to ensure that they are absolutely necessary. In that context, the test would be unclear because we would apply it twice in different circumstances, which would leave a lot to be worked out by the courts. The word “necessary” is in sections 11(1)(b) and 12(1)(b) and there is an objective test.

That issue runs through many of the amendments in the group. We are drawing the boundary carefully, because we are drawing on the House of Lords Delegated Powers and Regulatory Reform Committee’s report, which we accepted and have implemented. Members have talked about consistency: I note that the House of Commons has not accepted or implemented that report. We are also acting on the specific recommendations of committees here in Holyrood in going further than the UK bill.

The same issue applies to amendment 9, in the name of Neil Findlay. I am sympathetic, but for the same reason of enabling sensible and practical provision to be made in the midst of the crisis that Brexit has caused. If we go further than we already have, the ability to deal with that crisis will become diminished. There is a judgment to be made and, if it is made by ministers, it is subject to the bill, the chamber and the legal process, which are all in there.

There is a related point on amendments 11 to 13 and 15, in the name of Tavish Scott, and amendment 14, in the name of Neil Findlay. The amendments seek to replace “necessary” with “appropriate” in the detailed heads of what is a deficiency in describing EU arrangements or structures that are no longer relevant as a consequence of leaving the EU. That sounds apt in the context of the UK leaving the EU because—this is a key point—it might be “necessary” to retain some of those structures or arrangements, but not “appropriate” to retain the existing EU structures or arrangements. The intention is to have the power available to vary and adapt structures to new circumstances. If we use the word “necessary”, we might find ourselves unable to do so.

By contrast, I am happy to support amendments 10 and 16, in the name of Tavish Scott, which provide that ministers must “have reasonable grounds” to consider that various matters apply in what is listed as a deficiency. That will help to clarify where we might be and where we are going.

I cannot accept amendment 134, in the name of Jamie Greene, which would require a court to identify a breach of a UK international obligation before section 12 regulations can be made, rather than leaving that identification to ministers. I believe that Jamie Greene’s interpretation of the bill is wrong. The power will be exercised in the same way as it will in the rest of the UK, so the massive criticism that he made of exercising the power would have to apply to the UK, too. In fact, we have included additional safeguards. Primary legislation would have to be made in those circumstances in order to avoid a breach, which would greatly reduce the utility of the power in the special circumstances of Brexit.

I cannot support amendments 206 and 212, in the name of Liam Kerr, which would adjust the powers to make

“incidental, supplementary, consequential, transitional”

provision in regulations, such that ministers would have to consider provision “necessary”. The normal formulation in which such provisions would be included in a normal bill would be to allow such provision where appropriate or expedient, as well. That change would limit the provision that could be made in regulations and in the ancillary power in the bill to less than the standard latitude for even a normal ancillary power. For a bill of this nature, in which it is, given the range of material that the bill might have to cover, important to have wide ancillary powers available, it would greatly harm the practical flexibility of those powers to cover unforeseen eventualities if such a power was unavailable. In its report on the European Union (Withdrawal) Bill, the Delegated Powers and Law Reform Committee raised no issues about the equivalent power in that bill, which uses an appropriateness test, but instead suggested that the Scottish ministers should be given a similar power in the continuity bill.

My position is this: I am happy to accept amendments 10 and 16, and I have indicated that it is my intention to accept further amendments on scrutiny and other similar powers.

However, I cannot accept every amendment in the group, because many of them would either restrict the bill unduly or create circumstances in which the requirements of the bill would be undermined in a way that would make it impossible to fulfil the bill’s obligations to make the changes that are being forced upon us.

We have tried hard to improve those elements of the bill, compared to the UK bill, and we will continue to do so. I hope that members will accept that we are moving in the right direction and navigating a careful course through a range of competing demands.

Dean Lockhart

I will make three general points before turning to the minister’s response to the amendments. My first point relates to scrutiny—an issue that has been raised by a number of members. The debate surrounding section 11 powers is an important example of the fundamental concerns that members have expressed about the level of scrutiny of the bill that the Parliament has been afforded. Many of the amendments in this grouping were suggested by the Law Society of Scotland in its submission on the bill.

If the minister is unable to accept the Law Society’s suggestions on legal certainty and on tests being applicable to the use of these wide-ranging ministerial powers, providing a full explanation of why those recommendations and amendments cannot be accepted, we have concerns about how the bill will work in practice. The minister has acknowledged that the bill gives ministers—in his words—“special powers”. If that is the case, there is all the more need for proper, full scrutiny of the legislation. I accept that the minister is listening to members, but the process is short and there is not long for a listening exercise.

My second general point is that the proposed amendments are designed to address what Adam Tomkins referred to as a power grab by ministers under section 11. During the debate on the amendments, we have heard cross-party consensus—from Neil Bibby, James Kelly and Tavish Scott as well as from colleagues in my party—on the concerns about a power grab, and it is worth reflecting on some of those comments. Neil Bibby said rightly that the bill should not be a vehicle for bypassing the Scottish Parliament. Tavish Scott highlighted that the amendments will act as an appropriate check on the wide-ranging powers that would otherwise be conferred on ministers. Liam Kerr highlighted his concerns about the extent and wide-ranging nature of the powers.

My third point relates to the overreach in section 12(1). Like Jamie Greene, I am worried about the current wording of the section and how it may impact international treaties that the UK is party to. Jamie Greene’s amendment 134 highlights, inter alia, the critical role that is played by the judicial system in the interpretation of international treaties, and it is somewhat disappointing that the minister was unable to accept that amendment.

I turn to the minister’s response to the amendments. The minister has acknowledged that the bill confers “special powers”, and some of the amendments are designed to specify how those special powers will work. It is disappointing that the minister is unable to accept my amendment 115, as it is designed to address concerns that have been raised by the Law Society precisely on the issue of how the special powers will be exercised by the Scottish ministers. If special powers are being conferred by the legislation, there is a case to be made for special provisions being made that will define and regulate how those powers are used by ministers, especially if that is outside the scrutiny of the Parliament.

Likewise, it is disappointing that the minister proposes to retain the use of the subjective test of appropriateness in a number of areas rather than the objective test that has been proposed by the Law Society in its submission.

The minister has agreed to two amendments and has suggested that others may be accepted under further consideration. My question, which relates not only to this group of amendments but to others, is whether we really have time to discuss, review and vote on a further iteration of amendments based on submissions that have been made not only by members but by stakeholders and a number of experts. That is perhaps a question that we can come back to when we discuss later groups.

The Convener

The question is, that amendment 115 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 115 disagreed to.

Amendment 116 moved—[Neil Bibby].

The Convener

The question is, that amendment 116 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)
Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 116 disagreed to.

Amendment 117 moved—[Neil Bibby].

The Convener

The question is, that amendment 117 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)
Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 117 disagreed to.

Amendment 118 moved—[Neil Bibby].

The Convener

The question is, that amendment 118 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)
Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 118 disagreed to.

The Convener

If amendment 119, in the name of Neil Bibby, is agreed to, I cannot call amendment 9, because there is a pre-emption.

Amendment 119 moved—[Neil Bibby].

The Convener

The question is, that amendment 119 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)
Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 119 disagreed to.

Amendment 9 moved—[James Kelly].

The Convener

The question is, that amendment 9 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)
Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 9 disagreed to.

The Convener

Amendment 120, in the name of Adam Tomkins, is grouped with amendments 121, 122, 123, 148, and 150 to 154.

Adam Tomkins

The amendments in my name in this group are probing amendments. I do not intend to press them at stage 2, but I do intend to revisit the substance of the matter at stage 3.

The amendments seek to square the circle in respect of the demands and requirements of the devolution settlement. Ever since the publication of the withdrawal bill, the Scottish Conservatives have been consistently of the view that the bill does not respect the devolution settlement and needs to be amended. We signed up unanimously to the Finance and Constitution Committee’s recommendation that clause 11 of the withdrawal bill be removed or replaced. Those are strong words and we meant them—I am sure that every member of the committee did, too.

08:45  



We have also been four-square behind the United Kingdom Government in insisting that Brexit does not inadvertently—or, indeed, deliberately—lead to the break-up of the United Kingdom or to the disintegration of the UK’s domestic market. There are competing legitimate demands from the UK and Welsh Governments on the one hand and from the Scottish Government on the other hand, and it has always seemed to us that both sides need to be satisfied in legislating for the United Kingdom’s smooth withdrawal from the European Union.

We know that there have been several months of negotiations between the UK Government and the Scottish and Welsh Governments and the Northern Irish Executive on the issue. We also know that another round of those negotiations is taking place this afternoon, when the First Minister meets the Prime Minister in London. Those negotiations have made significant and substantial progress, and the UK Government has tabled an amendment to clause 11 of the withdrawal bill that goes a considerable distance towards satisfying the requirements of the Scottish and Welsh Governments and the Finance and Constitution Committee’s recommendations in its interim report.

The UK Government amendment does not go all the way and the deal is not yet done, but progress is significant in what others have termed—I do not particularly like this phrase—the “deep dive”; that is, the examination of the issues for which there is a need for a legislative or non-legislative common framework across Great Britain or the whole of the United Kingdom to ensure that the powers that are exercised by Governments at all levels, including by ministers of the Crown, are not exercised in a manner that is inconsistent either with the constitutional arrangements of the devolved UK or with the imperative that the integrity of the UK’s domestic market is not unduly disrupted by the Brexit process.

In all of that, there has been significant agreement across the political parties, including between the Scottish Conservatives and the Scottish Government. Mr Russell’s letter to all MSPs of 12 March raises a number of issues that we continue to agree with and, indeed, welcome. For example, Mr Russell says:

“the Scottish Government has consistently made clear that we are not opposed to common frameworks where these are in the best interests of Scotland and are ready to work with the UK Government to agree where these may be required.”

I unambiguously welcome and thank Mr Russell for saying that—indeed, he has said that many times. It is welcome that the Scottish Government has recognised throughout this entire process that there is a need for UK common frameworks. At the same time, Mr Russell says in his letter that a challenge with the UK Government’s amendment to clause 11 of the withdrawal bill, which has been tabled in the House of Lords, is that it does not specify—or seek to specify—the areas in which there will be a need to ensure that repatriated powers are not exercised in a manner that could threaten the integrity of the UK’s domestic market.

To be candid, it has always been my view that it would be in the interests of both Governments, and in the interests of the United Kingdom, for the withdrawal bill to specify the areas in which there is likely to be a need for a common framework. I have always been of the view, and I continue to be of the view, that it would be in the public interest and in all our interests for that to be not just on the record—which it now is, thanks to the disclosures by the Cabinet Office last week—but in primary legislation. That is what my amendments in this group seek to do. In a sense, they seek to cut through and, I hope, solve the current impasse between the UK and Scottish Governments on the consult/consent issue. I will be very interested to hear what the minister has to say about that in due course.

My amendments say that there should be a number of “protected fields”—that is my language, not the UK Government’s language. The minister might have a number of objections to that language, but, for want of a better form of words, there should be a number of protected fields, by which I mean fields in which it would be irresponsible to exercise repatriated powers in a manner that would risk undermining, threatening or jeopardising the integrity of the UK’s domestic market. When power is to be exercised in one of those protected fields, the amendments require the Scottish ministers to act in a way that is consistent with a common framework.

In the debate that we had in the chamber yesterday afternoon, the minister made great play of the fact that I said that common frameworks need to be “agreed, not imposed”. Those are not my words but the words of the Secretary of State for Scotland, and that is the view of the United Kingdom Government. The secretary of state said that in evidence to the Scottish Affairs Committee in the House of Commons last year, and he repeated it to the Finance and Constitution Committee here a few weeks after that. It is the position of the secretary of state that common frameworks need to be agreed, not imposed, and that is reflected in the force of my amendments.

I recognise that my amendments are deficient, which is why I am not going to press them to a vote. I will revisit them and hope to bring them back at stage 3. The reason why they are deficient is that they were drafted before the Cabinet Office published the list of powers that—again, I am using jargon that has been used in the intergovernmental negotiations—sit in the various buckets.

In the Cabinet Office’s view, there is one bucket of powers for which immediate devolution presents no problem, there is another bucket of powers for which there is a requirement for some sort of non-legislative framework, and there is a third bucket for which there is a requirement for a legislative framework. We do not yet know how much disagreement there is between the UK Government and the devolved Administrations about which powers sit in which buckets, because we have had publication and transparency from only one side of that argument so far. Perhaps the minister will want to reflect on that in a few moments.

Clearly, if we embark on this direction of travel, the list of protected fields that we put into legislation will need to reflect the agreement—if there is an agreement—between the UK Government and the devolved Administrations about which powers sit in which buckets; in other words, which are the protected fields—the fields in which it is important that repatriated powers are not used in a manner that seeks inadvertently or, indeed, deliberately, to undermine, jeopardise or threaten the integrity of the UK’s domestic market.

In my view, the best place for these provisions to appear—the minister and I may be in agreement here—would be the withdrawal bill. I am not sure that they fit perfectly in either section 11 or section 13 of the continuity bill, but, as I said, the amendments are designed to be probing amendments. I realise that the situation is fluid, so they are designed to test the extent to which the Scottish Government and the Finance and Constitution Committee—which might have something to say, given that we wrote about the issue extensively in our interim report on the withdrawal bill a few weeks ago—think that such a solution might work in either bill to square the circle of the need to recognise the demands of the devolution settlement and the need to recognise that repatriated powers must not be used in a manner that inadvertently or deliberately seeks to undermine or threaten the integrity of the UK’s domestic market.

I move amendment 120.

Jamie Greene

My comments follow on very nicely from the salient points that Adam Tomkins made about section 13 and his amendments in the group. I will set out the narrative of our amendments in the group. The principal rationale behind them is that nothing in the bill should undermine the structures of the United Kingdom or its internal market. That is what our amendments seek to achieve. Amendments 148 and 154, in my name, contain similar wording, so I will cover them together.

Section 13 is interesting. My interpretation of section 13(1) is that it gives Scottish ministers the power to subjectively cherry pick, after the UK leaves the European Union, which EU decisions, regulations, legislation or directives they would like to make provision for by regulation. The minister is welcome to comment on whether he thinks differently.

Section 13(2) says that

“the Scottish Ministers may ... omit”

any EU directive or regulation

“which has no practical application in ... Scotland”.

Unfortunately, subsection (2) fails to define who will decide whether such EU legislation has any “practical application in ... Scotland”. It is worth members bearing in mind that the wording in section 13 as it stands is that all of this will take place after the UK leaves the EU.

At the Equalities and Human Rights Committee last week, I questioned Tobias Lock on the issue, and my understanding is that he thought that no non-EU country proactively incorporates EU legislation, regulations or directives into domestic law in the way that is proposed in section 13. There may be sensible reasons why the Scottish Government wants to do so, but the practice is certainly unprecedented.

As we know, the UK Government is engaged with the European Union in many quite complex negotiations that will have an impact on all the nations in the UK for many years to come. It is imperative that, as a Parliament, we do not agree to provisions in the bill that could be used to undermine the UK Government in its negotiations with the EU.

If the bill is passed, it will apply not just after exit day—it will be live during any potential transitional period. I accept that the Scottish Government may wish to hold back on regulating in specific devolved retained areas until after the deal with the EU is finalised; it should be allowed to do that, where necessary. However, it is entirely possible that section 13, as drafted, will allow the Scottish Government to make regulations that could inhibit the UK Government’s ability to do the trade deals and create the common frameworks that will be required.

Perhaps when the minister comments on this group, he could clarify the intention behind section 13 in relation to the adoption of EU legislation after the UK has left the EU. What does he seek to achieve? What benefit is he looking for?

James Kelly

I note that Adam Tomkins has indicated that he will not press amendment 120 or move his other amendments in the group, and that they are probing amendments. In a sense, he is using this exercise to test the arguments and seek the views of other committee members.

Amendment 120 would allow UK ministers to withhold consent, which I think would undermine the devolution settlement. I agree with the principle of having UK-wide frameworks. However, those frameworks must be set up on a consensual basis, and I do not think that there should be enshrined in the bill a principle that would allow UK ministers to withhold their consent. I hope that Mr Tomkins will bear that in mind when he considers whether to bring back at stage 3 amendments that are similar to those in this group.

Patrick Harvie

Like James Kelly, I acknowledge that Adam Tomkins does not intend to press his amendments in the group to a vote. Implicit in Adam Tomkins’s remarks was the assumption that the way to achieve common frameworks is about where power is placed—where authority and the ability to make law or regulations is placed between the two Governments—and, in effect, that it is to bind the hands of this Parliament and Government. That is not the way to achieve common frameworks, but the way to achieve imposed frameworks. We do not simply need warm words in a statement from the currently incumbent Secretary of State for Scotland; we need the law to be clear and for common frameworks to be the emergent result of action in multiple jurisdictions.

09:00  



When I was elected to the Parliament, one of the first pieces of legislation that I was involved in as a committee member was on charity law. Both Parliaments were legislating on charity law at about the same time, because it was recognised that that required to operate across the UK, or at least across Great Britain, where many charities operate in multiple legal jurisdictions and have the same identity and employment structures. We did not want to create barriers that would make that impossible. That did not require one Parliament to legislate for everybody—it required co-operation and co-ordination. The language that was used for the result was not “common framework”, but in effect that is what it was. That is the way in which we should be looking to achieve common frameworks, where they are necessary.

I commend Jamie Greene on his creativity with amendments 148 and 154. The suggestion that we should agree to amendments that say, in effect, that the Scottish Parliament and Scottish Government can have any policy that they like as long as it is Tory policy, and any Brexit that they like as long as it is the hardest of Tory Brexits, is extraordinary. The UK Government had to produce an entire bill to achieve something that we all agreed was fundamentally incompatible with devolution. Jamie Greene has managed that in just three lines. It is clearly unsupportable, but as a work of perverse art it is impeccable. Well done!

Michael Russell

I found it difficult to follow the summary of amendments 148 and 154, but let me deal with them first. I agree entirely with James Kelly’s overall view that some of the amendments imply the undermining of the devolved settlement, but I will come to Professor Tomkins’s subtle amendments shortly, because I want to treat them very seriously.

Patrick Harvie’s example of the charity law legislation was very good, and I tell him frankly that I will use it again, because it illustrates very clearly how, when there are different dispensations, that can work. However, let me deal with Jamie Greene’s amendment 148, which would require the Scottish Government to sit on its hands, essentially, until it was told things by the UK Government. Then the Scottish Government would act, but it would discover that the UK Government had changed its mind, because the amendment would bind this process not even to something that we know or understand, but to UK Government policy, which even a sympathetic observer would agree changes from time to time without us or anybody else being told.

Amendment 148 would also bind us to

“the negotiating lines of the UK Government in their negotiations”.

The UK Government has said repeatedly that it does not intend to publicise its negotiating lines, so that would bind us to a secret protocol that we do not know and could not find out, but which we would have to observe at all times. That is, frankly, and with the greatest of respect, nonsense. Both of Jamie Greene’s amendments are nonsensical and should not detain us.

Let me turn to Professor Tomkins’s very subtle amendments. They are, I think, a clever attempt to probe what the positions of the Scottish and Welsh Governments are in some matters. I use the word “sophistry” as a compliment to Professor Tomkins, because the amendments are well thought through. However, Professor Tomkins’s description of where the present situation lies in terms of buckets of powers is defective in a key regard, which is that there is no lid on those buckets. There is nothing to say what we have put in those buckets so that we can agree to that and move on.

The key issue here is that the UK Government could put other things in those buckets at any time, and without any consultation, and we would simply have to accept it. It could fill—to the brim—the bucket of all the powers that the Scottish Parliament has, and we could do nothing about it. It is not the issue of what is in the buckets that is a matter for discussion and negotiation—indeed, Professor Tomkins’s amendment 121 already includes things that have been moved to other buckets without consultation—but, as Mr Kelly indicated, the issue of the powers of the Parliament, the devolved settlement and respecting that settlement as it operates.

“Agreed, not imposed” was what Professor Tomkins said yesterday. He now says that those were not his words, but those of the Secretary of State for Scotland. I accept that: they are both his words and those of the secretary of state. However, they are not yet the words of the UK Government—and that is the problem. First, it is a problem that the secretary of state, who is a minister of the UK Government, is using them while the UK Government is not. It is also a problem because the amendment, as presented to the House of Lords this week, is based not on agreement but on imposition. Until that changes, there cannot be an agreement.

However, to give Professor Tomkins some credit, I think that there are elements in his amendments that would help in the negotiating process. They would certainly include the fact that ministers of the Crown would not act where the Scottish Government and the Scottish Parliament had the clear competence and were acting in that competence, and that any actions would have to be taken by agreement. I find those elements useful. If Professor Tomkins is not moving his amendments, I would be very happy to have a discussion about them later. It would be better to have them in a withdrawal bill than in other legislation, but I would be happy to discuss that.

I return to Jamie Greene’s points. As the negotiating lines of the UK Government are in a sealed box, I am not prepared to set policy on the basis of something that somebody else has put in a sealed box, or in a bucket.

Adam Tomkins

I thank all members who have contributed to the debate on the group, and particularly the minister for his reflections on my amendments—although I am not sure that I will take “sophistry” as the compliment that he perhaps intended. “Subtle” I will take as a compliment, and “well thought through” I certainly will; I will think about the buckets and lids.

First, I will respond to what James Kelly said. I am sure that this is my fault; perhaps what I said in introducing the amendments was unclear. There is no sense in which the amendments in my name in this group would “undermine the devolution settlement”, to use James Kelly’s words. In amendment 120, the consent of a minister of the Crown would be required in order to safeguard the integrity of the UK. I would have thought that, as a member of the Labour Party, James Kelly would have not just understood that but supported it, rather than criticised it. It is the responsibility of ministers of the Crown and of the UK Government—of whatever political colour—to safeguard and protect the integrity of the UK. That does not mean that there is, in any sense, any imposition here by UK ministers on devolved Administrations.

If there is a way of making amendment 122 clearer, I ask members to advise me. To my mind, it says perfectly clearly that

“a United Kingdom common framework has been agreed between the devolved administrations and the United Kingdom Government”,

so ministers of the Crown may not exercise their powers where there has been an agreed common framework. I do not know what is so baffling, confusing or bewildering to Mr Harvie—or, even more concerningly, to Mr Kelly—about the use of the word “agreed”. I do not know how it could be made clearer, but if either Mr Kelly or Mr Harvie could advise me about that, I will be happy to take that advice.

I hear what the minister says about the moveable feasts that we see in the buckets. That is a well-made point, on which I will reflect between now and stage 3—perhaps in consultation with the minister and/or his officials. I think that, within the scheme that is sketched out in these amendments, there is a possible solution to the current impasse between the devolved Administrations on the one hand and the UK Government on the other about the way in which Brexit can be legislated for in a manner that is completely coherent and which respects the integrity of the UK and also, in all its particulars, the devolution settlement. I am very happy to continue conversations—publicly or privately—with UK ministers, Scottish ministers or anybody else to see whether we can broker that deal, which would be completely consistent with everything that the committee said in its interim report a few weeks ago.

I seek leave to withdraw amendment 120.

Amendment 120, by agreement, withdrawn.

Amendments 121 to 123 not moved.

The Convener

If amendment 124 is agreed to, I cannot call amendment 10, because of pre-emption.

Amendment 124 moved—[Neil Bibby].

The Convener

The question is, that amendment 124 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 124 disagreed to.

Amendment 10 moved—[Tavish Scott]—and agreed to.

Amendment 11 moved—[Tavish Scott].

The Convener

The question is, that amendment 11 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 11 agreed to.

Amendment 12 moved—[Tavish Scott].

The Convener

The question is, that amendment 12 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 12 agreed to.

Amendment 13 moved—[Tavish Scott].

The Convener

The question is, that amendment 13 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 13 agreed to.

Amendment 14 moved—[James Kelly].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 14 agreed to.

Amendment 15 moved—[Tavish Scott].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 15 agreed to.

Amendment 16 moved—[Tavish Scott]—and agreed to.

09:15  



The Convener

Amendment 125, in the name of Dean Lockhart, is grouped with other amendments as shown in the groupings paper. Members should note that there are a number of pre-emptions in the group; I will remind you of the pre-emption when I call the relevant amendment.

Dean Lockhart

I lodged four amendments in this group: amendments 125, 131, 139 and 160. I will deal with amendments 125, 139 and 160 together, because they operate in a similar fashion. They relate to the wide-ranging powers that are being conferred on the Scottish ministers to make regulations without the approval of the Scottish Parliament under sections 11(1), 12(1) and 13(1). The bill provides that those regulatory powers may be used to make

“any provision that could be made by an Act of the Scottish Parliament.”

The relevant provisions are in sections 11(5), 12(2) and 13(3).

Experts’ evidence on the bill highlighted a number of concerns about the wide-ranging powers that are to be conferred on ministers. In evidence to the Culture, Tourism, Europe and External Relations Committee last week, Professor Nicola McEwen said, in relation to section 13:

“I would be concerned at the extent to which this section affords ministerial powers, rather than legislative powers or appropriate scrutiny by Parliament ... it is appropriate for those to be explored with proper scrutiny and consultation.”—[Official Report, Culture, Tourism, Europe and External Relations Committee, 8 March 2018; c 31.]

In addition, the Law Society has called for clarity on the scope and application of the wide-ranging powers that are conferred on the Scottish ministers to make regulations under sections 11(1), 12(1) and 13(1), and constitutional expert Professor Alan Page said in his submission:

“the Scottish Ministers will be taking powers to implement EU instruments over which the Scottish Parliament will have had no say, a potentially major surrender by the Parliament of its legislative competence, and one which under the Bill as introduced may be extended indefinitely.”

Although many of the detailed provisions of sections 11, 12 and 13 seek to limit the scope and operation of ministerial powers—for instance, sections 11(8), 12(3) and 13(5) give examples of what the regulations cannot cover—there is concern that the proverbial coach and horses are then driven through those limitations by the overriding provisions of sections 11(5), 12(2) and 13(3), which contradict those limiting provisions by declaring that the ministerial powers may be used to make

“any provision that could be made by an Act of the Scottish Parliament.”

These are indeed “special” powers, as the minister described them.

To address the concerns of the Law Society and other experts, and to resolve legal uncertainty around potentially conflicting provisions of sections 11, 12 and 13, amendments 125, 139 and 160 would provide clarity on the operation of sections 11(1), 12(1) and 13(1) by deleting the overriding provision that the powers may be used to make

“any provision that could be made by an Act of the Scottish Parliament.”

The deletion of the provision would not just provide legal certainty but would uphold the proper role of this Parliament. I make clear that my proposed approach would not prevent the Scottish Government from setting out in more detail in the bill what the ministerial powers can and cannot cover, as some of the provisions in sections 11, 12 and 13 attempt to do.

Amendment 131 would provide additional protections when ministers exercise their powers under sections 11(1) and 11(9). Section 11(9), as it is drafted, provides that ministers may issue regulations that remove or modify illegal protection in certain circumstances, including under section 11(8)(d), removing any protection relating to the independence of judicial decision making or decision making of a judicial nature by a person occupying a judicial office, or otherwise make provision inconsistent with the duty in section 1 of the Judiciary and Courts (Scotland) Act 2008 to guarantee the continued independence of the judiciary, and, in section 11(8)(i), modify the Equality Act 2006 or the Equality Act 2010. The Scottish ministers may remove those protections or make the specified modifications only if, under section 11(9), alternative provision is made in ministerial regulations that is broadly equivalent to the protection that is being removed or the provision that is being modified.

The impact of my amendment 131 would be to add safeguards in the event that ministerial power is exercised to remove or modify protections. The amendment provides that any protection can be removed or any provision modified by ministers only if permission is given to an additional level of protection in law that is no less than the protection that is being removed or the provision that is being modified. I hope that the amendment is not considered controversial, as the wording is aimed at ensuring that ministerial regulations do not have the unintended consequence of removing protections that are already in place under law.

I will speak to the other amendments in the group in my winding up.

I move amendment 125.

Tavish Scott

My comments on my amendments will follow the remarks that I made in the pre-stage 2 debate yesterday in relation to the scope of the powers in the bill. I do not want to see new quangos or criminal offences created by regulation. If the Scottish ministers have need of those things, they should produce normal primary legislation, which will allow the Parliament to offer scrutiny, amendment and detailed consideration.

Amendments 17 and 24 would prevent the creation of a new public body through ministerial regulations, and amendment 26 would add the creation of new quangos to the list of things that cannot be done under section 11. Amendment 26 would transfer the creation of new quangos under those regulations from the permitted list to the forbidden list. If ministers needed to establish a new quango to keep pace with European Union law for the next 15 years, they would have to produce primary legislation, so that the Parliament could decide whether the proposed new body was required or whether its functions could be carried out by existing bodies. The normal parliamentary procedures would allow such detailed consideration, and I am concerned that, were we not to follow those procedures, such detailed consideration may not take place.

Amendments 18 and 23 would prevent the creation of new criminal offences through ministerial regulations. At the moment—as I read it—the bill prevents the creation of a “relevant” criminal offence, which is defined later as an offence for which those who are guilty can be sentenced for up to two years in prison. That seems a significant power to create through regulation with no chance of amendment by the Parliament. Deletion of the word “relevant” would mean that all new criminal offences would have to be established by primary legislation, which is surely the purpose of this place.

Amendment 19 would include an additional test of the permissibility of regulation. It proposes that regulations must not increase legislative burdens on businesses or individuals. If ministers need or wish to increase the burdens, they should do that through primary legislation—they should publish a bill, hear evidence from those who will be affected and allow members of the Parliament to lodge amendments to mitigate those burdens as they see fit. That cannot be done through regulations, so the additional test should be added to the bill.

Jamie Greene

I will speak to amendment 126 first, and then to amendment 142 separately.

The existing wording of section 11(6) allows for the establishment of a Scottish public authority to carry out functions under any new regulation that is introduced. Amendment 126 is designed to be helpful to Scottish ministers in that respect. In addition to the creation of a Scottish public authority, which I believe is the premise of section 11(6)(b), my additional wording will allow the minister to amend the object and purpose of a public authority to enable it to carry out its functions as any additional functions are placed upon it under subsection (1).

I hope that the minister welcomes that ability, but it is worth pointing out that there are some drawbacks and potential consequences to expanding or introducing new agencies in Scotland to deal with any new regulations that are brought in. That point was eloquently made by Tavish Scott in the context of the setting up of new quangos. My concern is not only that we may be overloading our public authorities by having them carry out functions that are currently exercised in Brussels but that it is likely that, without significant adaptations in workforce infrastructure and financial backing, current agencies in their existing forms may struggle to deal with those functions, especially with those EU laws that are transposed into our system. Dr Kirsty Hughes, the director of the Scottish Centre on European Relations, made that pertinent point in evidence to the committee last week.

Anyone who has ever been to Brussels will comprehend my anxiety around the sort of support infrastructure that is required to deal with the level and quantities of EU law that we may have to bring over. For example, the directorate general for agriculture and rural development, which is pertinent to the Rural Economy and Connectivity Committee, of which I am a member, is comprised of 10 subdirectorates, each of which has 48 units below it, and each of those units has a head of unit, two deputies, three deputy director generals, two assistants to the director general and a director general—and that is just at the management level.

I am not saying that all of that structure will be necessary in Scotland, given that those DGs manage 28 member states, but many of the functions of those agencies will need to be carried out in the Scottish civil service. My amendment 126 does not just allow the creation of additional new public authorities; it allows us to amend existing public authorities to enable them to carry out functions relating to devolved retained EU law. We will discuss the financial consequences of that later, in considering other amendments.

I will speak briefly to amendment 142. Something that jumped out at me when I read the bill is that regulations made under section 12, which is entitled “Complying with international obligations”, may not, under subsection (3)(f),

“be made to implement the UK withdrawal agreement”.

It is entirely unclear what the consequence of that may be. I implore the minister to explain to us what the intention of that wording is. If there is no need to implement the UK withdrawal agreement, what is the rationale behind that wording, and what is the potential consequence? It seems to fly in the face of a provision that appears earlier in the section, under which ministers may by regulation introduce provisions as they see fit to deal with breaches of international obligations resulting from the UK’s withdrawal from the EU. I have previously commented on my reservations about that. It is entirely unclear why that specific wording is in the bill, and I propose to remove it. I will await feedback from the minister before deciding whether to move amendment 142.

The Convener

I call Liam Kerr to speak to amendment 130 and the other amendments in the group.

Liam Kerr

Thank you, convener. Do you wish me to speak to amendment 129, in the name of Graham Simpson?

The Convener

Yes, given that you are speaking to the other amendments in the group and that Graham Simpson is not here, please feel free to do so.

09:30  



Liam Kerr

I will speak to amendment 129, in the name of Graham Simpson, first, and I will move it on his behalf. I am grateful to the convener for allowing me that opportunity. This crucial amendment would reduce the ministers’ rights to change legislation in relation to the independence of the judiciary as well as the Equality Act 2006 and the Equality Act 2010.

Section 11(1) allows that,

“Where the Scottish Ministers consider ... that there is ... a ... deficiency ... they may by regulations make such provision as they consider appropriate”.

Section 11(8) provides limits on those powers. However, section 11(9), as drafted, states that the section 11(8) limits on making regulations that affect the independence of the judiciary or that affect the Equality Act 2006 or the Equality Act 2010 can be waived provided that “broadly equivalent” provisions are put in their place. I shall revisit the phrase “broadly equivalent” in relation to my amendment 130 shortly.

Section 1 of the Judiciary and Courts (Scotland) Act 2008, which is referenced in section 11(8)(d), guarantees the independence of the Supreme Court and Scottish and international courts from interference by MSPs or the Lord Advocate. The Equality Act 2010 and its precursor act, the Equality Act 2006, which are referenced in section 11(8)(i), bring together earlier provisions to counter discrimination.

Dealing with the second point first, section 11(9), in relation to section 11(8)(i), states that “alternative provision” can be made for modifications of the 2006 and 2010 acts. However, I am concerned that it is not within the Scottish Parliament’s power to modify UK legislation and that, by implication, the provision in section 11(9) risks representing a serious overstatement of the Scottish Parliament’s powers. For that reason, it must be removed. Furthermore, it is highly inappropriate that any mechanism should exist for ministers to legislate without the consent of the Scottish Parliament in any area that would affect section 1 of the Judiciary and Courts (Scotland) Act 2008. That seems to be the practical impact of subsection (9).

I cannot understand why the areas that are set out in section 11(8) should all be completely protected save in regard to those two areas. That makes me suspicious. We have heard members’ concerns about a power grab by the Executive through ministers seeking to do things when they feel that it is “appropriate” and seeking to create and harness for themselves new derogations and abilities. Amendment 129 is, therefore, crucial in ensuring that ministers cannot change legislation relating to the independence of the judiciary or relating to the 2006 and 2010 acts.

Amendment 130 also relates to section 11. I have suggested leaving out the word “broadly”. The use of that word raises similar concerns to those that have been raised by Dean Lockhart in relation to his amendment 131. Section 11(9) is very important. In effect, it gives ministers the right to make changes to things that relate to the independence of the judiciary and to modify the 2006 and 2010 acts. That right has to be specific—those areas of law are far too important to tamper with.

As drafted, section 11(9) means that ministers can make changes relating to the independence of the judiciary or to the equality acts if the regulations that they are introducing are “broadly equivalent” to those that are being removed or changed, but what does that mean? We just do not know.

Clearly, “broadly equivalent” is vague enough that the new protection for the independence of the judiciary or, for example, the new definition of equality could be less than the existing protection, and that is not acceptable on any analysis and must not be countenanced. It should either be equivalent or it should not be allowed. By removing the word “broadly”, we make it clear that, if ministers want to change those very important areas, that has to be done at the level of the existing protection or provision, not below it.

To anticipate the minister again, which I am keen to do, I believe that the term “broadly equivalent” is most often used in the context of compatible trade and standards regimes—for example, in relation to packaging. The application is surely different in a legislative context, particularly one of this magnitude.

The wording of section 11 is clearly not sufficiently tight. Therefore, for safety, the word “broadly” should be removed and amendment 130 should be agreed to.

Murdo Fraser (Mid Scotland and Fife) (Con)

I will speak to amendment 144 and comment briefly on some of the other amendments in the group. Amendment 144 seeks to delete section 12(4). In effect, it is a probing amendment, because I am not entirely clear what is in the minister’s mind in relation to section 12(4), and I would like to understand the minister’s intention more fully. Once I have heard from him, I will decide whether to press the amendment to a vote.

The background is that section 12 sets out the right to make regulations to meet international obligations. Section 12(3) sets out exceptions to that, and says that regulations may not impose taxes, make retrospective provision or create criminal offences and so on. Section 12(3)(d) says that the right to make regulations cannot remove any protection of independence of the judiciary, and section 12(3)(i) says that the right to make regulations cannot modify the Equality Act 2006 or the Equality Act 2010. Section 12(4) than adds a qualification to those exceptions. The purpose of amendment 144 is to check whether that qualification is necessary.

Section 12(4) says that regulations can be made that would remove protection from the judiciary or modify the equality acts if

“alternative provision is made in the regulations that is broadly equivalent to the protection being removed or the provision being modified.”

That raises a number of questions. I might be echoing Liam Kerr here, but I wonder what the term “broadly equivalent” means and what “alternative provision” is. Why would the Government seek to have those powers? What does it intend to do with them? The issues that are at stake in relation to section 12(4)—the independence of the judiciary and equality legislation that governs so many rules—are important and substantial matters of public law. The area requires further discussion.

Amendment 144 would remove section 12(4) altogether. The effect would be that, under section 12, ministers would still have the right to make regulations and, as per section 12(3), there would be qualifications to that, but there would be no further qualification to the qualifications, with vague definitions of further changes. An alternative approach would be to clarify by setting out what “broadly equivalent” or “alternative provision” means, but that requires an answer to the basic question of why the Government feels that it needs the ability to make changes to the law in this very important and sensitive area. I look forward to hearing from the minister what the rationale is behind section 12(4), and at that point I will decide whether to put the amendment to a vote.

I support all the amendments in the group. The amendments in the name of Tavish Scott are particularly important. He made important points about the significant matters on which ministers are seeking to take power to make law by regulation rather than by primary legislation. We have had a lot of rhetoric about a power grab but, actually, the most egregious example of a power grab that we have seen so far is what is contained in section 11, through which ministers seek to take power from Parliament in a range of areas. That is why I support Tavish Scott’s amendments.

Gordon Lindhurst (Lothian) (Con)

My amendment 145 makes a simple but significant amendment to section 12. Section 12 empowers the Scottish ministers to

“make such provision as they consider appropriate”

by regulations where they consider that there is or would be a breach of international obligations arising from withdrawal and that it is necessary to make provision to prevent or remedy the breach. The section is therefore premised on something that is almost entirely subjective, in the consideration of the Scottish ministers and in their minds. In passing, without going into what has been said, I refer to the Law Society’s comments on section 12 and on legal certainty.

Bearing all that in mind, I turn to my amendment to section 12(4), which restricts the protections that section 12(3) provides against the exercise of the powers given to the Scottish ministers in section 12. The restriction of section 12(4) is, of course, limited to the provisions of section 12(3)(d) and 12(3)(i), but it allows removal of the protection

“if alternative provision is made in the regulations that is broadly equivalent to the protection being removed”

and so on. That is not good enough. The word “broadly” should be left out, for very good reason, as it adds to the uncertainty of the provision. Why not have, as my amendment proposes, equivalent provision for the protection of rights?

The committee has heard with interest my colleague Liam Kerr’s “Oxford English Dictionary” definitions and I hope that members will not be disappointed with my more broad-brush approach to the word “broadly”. A simple definition of it is “in general and without considering minor details” or “widely and openly”. In other words, use of the word “broadly” in the context that we are speaking about provides no definition at all. When that context relates to removal of protection and interference with rights, it is imperative that the section be clarified to provide actual equivalence. That word is clear.

Amendment 145 is in accordance with amendments 130 and 131, which I commend to the committee.

Yesterday, the minister said that the bill has to work within its own terms, and who could disagree with such a proposition? It might indeed be called a legal tautologism. He also commented on littering the statute book with unnecessary provisions. Now is not the time or place to comment on the Scottish Government’s legislative programme. However, if the minister were serious about statutory litter, he would simply withdraw the bill. That would be the ultimate tidying-up exercise.

As a lighter alternative, we could delete section 12(4), as Murdo Fraser has posited. Failing that, the least that the minister could do is agree to leave the humble word “broadly” out of it.

Neil Bibby

As with other groupings, we understand that the Scottish Government must have new powers to manage a period of transition and to absorb EU law into Scots law. However, as we said previously, those powers must be proportionate and balanced. Although I do not support a number of the amendments in this group from Conservative members, some could help to achieve that balance and I will support amendment 130, for example, in the name of Liam Kerr. It seek to removes the word “broadly” from section 11(9) on the equivalence of regulations. This is an instance in which the bill will benefit from more precise language.

I will also support Tavish Scott’s amendments in the group. I share his reservations about the creation of a new public body or a new criminal offence through regulation-making powers arising from the bill. Amendment 26 would specifically forbid the creation of a new quango under these regulation-making powers. In our judgment, Tavish Scott’s amendments are fair and proportionate and we will support them.

Patrick Harvie

I will just make a few comments about the amendments to which I am drawn and ignore the others for the moment. I hope that the minister will have a chance to respond.

First, amendments 145 and 130 seek to remove the word “broadly” and amendment 131 seeks to add an additional caveat to the removal of the first instance of the word “broadly”. I see some merit in that. I know that Gordon Lindhurst sees that as legislative decluttering. I tell him that I have a number of anarchist friends who think that the world is far too cluttered with legislation in general, but I promise that they do not have any whiff about them at all. Perhaps, unlike last night, he might want to explore the issue further.

09:45  



It would be good to hear the minister explain why he feels—if he does—that removing the word “broadly” would be inappropriate. It seems to me that the amendments give some clarity, particularly amendment 131, which would add words to ensure that there is protection

“no less than the protection being removed”.

There is some merit to that.

Two amendments—amendments 23 and 25—address the word “relevant” in relation to criminal offences. It might be my fault, but I cannot see where the term “relevant” is defined in the context of this part of the bill, so it would be helpful if the minister could tell me what is meant by “a relevant criminal offence” and why it is necessary to restrict the term “criminal offence” in this area.

I have heard a strong argument for restricting the power to create new public bodies, particularly in light of Jamie Greene’s amendment—he is quite capable of putting his legislative creative powers to constructive, rather than destructive, use. The additional power to amend by regulation the object and purpose of a public authority might allow ministers to take a new function that needs to be newly exercised in the devolved landscape and give it to an existing body, without undermining its current functions. That would potentially remove the need to create new bodies. If the minister has clear examples of why there might be a need for the Scottish Government to propose the creation of a new body without primary legislation but by regulation, I would like to hear them. It seems to me that there is a good argument for requiring ministers to bring primary legislation if they want to make the case for a new body. I would be interested in the minister telling us why, and in what circumstances, it would be necessary to create a new body by regulation.

Michael Russell

Once again, we are dealing with key sections of the bill. The section of the bill that we are dealing with at the moment, and the next two sections, deal with the scrutiny of, and restraint on, ministerial power. I will indicate my acceptance of certain amendments during my comments. I do not accept all of them, because not all of them can be accepted, for a variety of reasons that I will give.

No one is in any doubt that the Scottish Government and I are opposed to Brexit. In normal circumstances, the Scottish Government would not have sought such a breadth of powers, but we are not in normal circumstances. Those powers are necessary in many cases because of the circumstances in which we find ourselves. Indeed, they are the only way in which we can properly prepare our devolved laws, in the time that we have, for the shock and disruption of a Brexit that is being forced upon us. We have always recognised that. We have no desire to take any broader powers than are needed. That is why we are flexible in this process—listening to people’s concerns and trying to go further. I will indicate how we are doing that in a moment.

Let me set out very briefly the changes that we have already made to the continuity bill, compared with the withdrawal bill. We have introduced a test of necessity, set out additional limitations on the powers and produced an enhanced procedure for scrutiny of the most significant uses of those powers. I am also mindful of the votes that the committee has just had on sections 11 to 15, which indicated that the committee wants to go further. I understand that and I will do everything in my power to help the committee to do that but, again, only where it can be done.

We have already taken, and are taking, steps to address the legitimate concerns that are held by members across the chamber, but I remind members that broad powers are needed because of the scale of the task that faces us. EU law and the EU institutions are woven through our law. They have been there for almost half a century, and they will not be easy to untangle.

Broad powers are also needed because of the sheer uncertainty that is involved in the UK’s negotiations with the EU. Some 20 months on from the referendum in June 2016, we are little closer to knowing the details of the scenario in which the UK will leave the EU. In many cases, therefore, our understanding of the sorts of changes that will need to be made to our laws and by when is still very cloudy. That uncertainty is not of our making, but again I want to balance the need to deal with it with the legitimate desire to ensure the strongest possible appropriate and necessary scrutiny and ministerial restraint.

Let me speak to each amendment in the group. Dean Lockhart’s amendments 125, 139 and 160 appear to be aimed at limiting the scope of what can be done using sections 11, 12 and 13. I cannot support those amendments, largely because of their wording. There is no clear category of “things that require to be done in an act of the Scottish Parliament”—in effect, the words of his amendments. Sections 11, 12 and 13 are drawn to set out exactly what the power is and the limits that apply. The amendments might raise interesting questions for the courts, but we do not feel that such questions are necessary, and the amendments would limit what it is possible to do.

Tavish Scott’s amendment 17 would prevent the fixing powers from being used to establish new public authorities. His amendments 24 and 26 would prevent the keeping pace power from being used to establish a new public authority. The Scottish Government is content to accept that, when keeping pace with EU law requires the establishment of a public authority, that should be capable of being done only by way of primary legislation. I therefore suggest that the committee should agree to amendments 24 and 26.

Amendment 126, from Jamie Greene, goes in a rather odd direction. It appears to expand the powers of the Scottish ministers, allowing the powers to be used to adjust the general purposes of a public authority. We do not think that this would be an appropriate use of the fixing power, and we would therefore reject amendment 126.

Amendments 18, 23 and 25 from Tavish Scott would see the powers restricted so that no criminal offence could be created using them. They are already restricted to the creation of “relevant” offences, which are offences punishable by two years or less by way of imprisonment. That is defined by section 27, and it is the same test as for the current powers to implement EU law—there is no change in the test.

In many situations, establishing a suitable set of enforcement mechanisms in an area of EU law will require the creation of regulatory offences. The Scottish Government would therefore invite the committee to reject amendments 18, 23 and 25. If it did not, in many cases enforcement mechanisms could be set up only through a lengthy process of primary legislation, which would interfere with the purpose of the bill. Also, as I said, the power is constrained in the same way as existing powers in relation to EU law.

Amendment 19 would supplement the list of things that the powers cannot be used to do. It is similar to amendments that we have debated already, and it would prevent the powers from being used to increase burdens on individuals and businesses. That is an entirely laudable aim, but the amendment misunderstands and undermines the nature of the powers conferred on the Scottish ministers in sections 11 and 12.

The bill limits the powers to being used when necessary to a particular aim. Under section 11, for example, the powers can be used only when it is necessary to prevent, remedy or mitigate a failure or deficiency. Section 11(2) sets out an inclusive and exhaustive list of the types of deficiencies covered. Those are the only circumstances in which the power can be used. If there is no deficiency caused by the exit from the EU, it is not necessary to remedy anything and no power is therefore available.

The powers are not an opportunity to go through the body of EU law and make policy changes. They are solely about discharging our responsibility to make the changes required to keep the body of law operating sensibly. It is important to have that point in the forefront of our minds. As I said, the powers are not an opportunity to go through the body of law and make changes; that might be desirable, but it is not what we are trying to do, nor could we do it. The powers enable us to discharge our responsibility to make the changes required to keep the body of law operating sensibly as it is, or modified if there are failures or deficiencies—but only if there are failures or deficiencies and to the extent that those failures or deficiencies are rectified.

The Scottish ministers could never use the powers to make substantial policy changes. The test that amendment 19 would put into the bill would make the powers opaque and difficult to operate. Leaving the EU is going to be very complex. It is complex already. It may well be necessary to make some changes that, taken on their own, could involve increasing a burden on an individual or business. That is, regrettably, the nature of the task, and the restriction that these amendments would place on the powers would be complex, imprecise and very difficult to apply. Therefore, although I understand its motivation, I urge members to reject amendment 19.

Amendments 129 and 144, from Graham Simpson and Murdo Fraser, would remove the rule that allows a modification of a protection to take place in certain circumstances, as long as alternative provision that is “broadly equivalent” to that protection is made at the same time. Those provisions were drawn from protections in the Public Services Reform (Scotland) Act 2010 and they are a sensible, flexible rule. We would not want to prejudge the exact form that any amendment might have to take or exactly how it could be drafted.

However, we recognise and support the point that is made by Liam Kerr and Gordon Lindhurst in amendments 130 and 145, which would remove the word “broadly” from that rule, which would require any replacement protection to be exactly equivalent. I therefore recommend that members vote against amendments 129 and 144 but for amendments 130 and 145.

If members vote for the two amendments to remove the word “broadly”, voting for Dean Lockhart’s amendment 131 becomes unnecessary. That amendment would require any replacement protection to be “no less” than the protection modified. That would be better achieved by amendments 130 and 145.

Finally, Jamie Greene’s amendment 142 would remove a limit that is currently on the section 12 power. At present in the bill, the withdrawal agreement is excepted from that power. As I have explained to members, we did not take a corresponding power to clause 9 of the withdrawal bill, which would have specifically empowered us to implement the terms of the withdrawal agreement by subordinate legislation—I explained that yesterday.

I understand the point of Jamie Greene’s amendment. On reflection—no doubt he will be surprised by these words too—I can see that it could be a valuable adjustment to the way in which the bill works. If the interaction between an existing international agreement and the withdrawal agreement was complex, we would not want to be prohibited from taking it into account in our use of the section 12 power. I am therefore content to support Mr Greene’s amendment 142.

Dean Lockhart

The minister again started his response on a positive note, indicating that he would accept many of the amendments in the group, but he went on to decline most of them.

Let me first address my amendments before turning to the amendments that have been lodged by other members. It is disappointing that my amendments 125, 131 and 160 are not accepted by the minister. They are based on comments and concerns that were raised by the Law Society and other experts who are concerned about the open-ended powers—the so-called “special powers”—that are being conferred on ministers to make provisions of any kind

“that could be made by an act of the Scottish Parliament”.

In his statement, the minister said that there is uncertainty over what would be covered by

“any provision that could be made by an Act of the Scottish Parliament”.

That uncertainty is another good reason why that overriding provision should not be included in the bill. If the minister wants clarity and to set out exactly the scope and the operation of the ministerial powers, the better approach, as we have suggested, would be to detail in the bill what those ministerial powers can and cannot cover, rather than having overriding catch-all provisions—as set out in sections 11(5), 12(2) and 13(3)—that provide the all-encompassing power that ministers can make

“any provision that could be made by an act of ... Parliament”.

We feel that the provisions support the view that has been expressed by experts that the bill shows scant respect for the legislative process.

On the other amendments, I support the concerns that were expressed by Murdo Fraser, Liam Kerr and others about the far-reaching operation of section 11(9), for the reasons that have been outlined. The power of ministers under the section could be far reaching. Potentially, we could see ministers, without the approval of or scrutiny by Parliament, removing protections relating to the independence of judicial decision making, or decision making of a judicial nature, and modifying the Equality Act 2006 or the Equality Act 2010.

10:00  



There is provision for the replacement with an alternative provision of any provision that is amended or modified, but again, there is uncertainty about what that might mean in practice.

I certainly consider that the powers that will be conferred on ministers under sections 11, 12 and 13 are excessive. They also create uncertainty about how they will operate in practice.

The minister raised other issues about how the powers will operate under section 13 in particular, but those matters will be dealt with in later groups of amendments, so I will reserve my comments for those discussions.

The Convener

The question is, that amendment 125 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 125 disagreed to.

Amendment 17 moved—[Tavish Scott].

The Convener

The question is, that amendment 17 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 17 agreed to.

The Convener

I call Jamie Greene to move or not move amendment 126.

Jamie Greene

At the risk of being accused of further perversion, I will move the amendment.

Amendment 126 moved—[Jamie Greene].

The Convener

The question is, that amendment 126 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 126 agreed to.

Amendment 18 moved—[Tavish Scott].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 18 disagreed to.

Amendment 19 moved—[Tavish Scott].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 19 disagreed to.

Amendments 127 and 128 not moved.

The Convener

If amendment 129 is agreed to, I cannot call amendments 130 and 131, because they will have been pre-empted.

Amendment 129 moved—[Liam Kerr].

The Convener

The question is, that amendment 129 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 129 disagreed to.

Amendment 130 moved—[Liam Kerr]—and agreed to.

Amendment 131 moved—[Dean Lockhart].

The Convener

The question is, that amendment 131 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 131 disagreed to.

Amendment 132 moved—[Adam Tomkins].

The Convener

The question is, that amendment 132 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 132 disagreed to.

Amendment 133 moved—[Adam Tomkins].

The Convener

The question is, that amendment 133 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 133 disagreed to.

The Convener

The question is, that section 11 be agreed to. Are we agreed?

Members: No.

The Convener

Conservative members’ opposition is noted.

Section 11, as amended, agreed to.

After section 11

The Convener

I ask Patrick Harvie to move or not move amendment 20.

Patrick Harvie

I am happy to look forward to working further on the issue in the run up to stage 3.

Amendments 20 and 21 not moved.

Section 12—Complying with international obligations

The Convener

If amendment 134 is agreed to, I cannot call amendments 135 to 138 and 22, because they will have been pre-empted.

Amendment 134 moved—[Jamie Greene].

The Convener

The question is, that amendment 134 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 134 disagreed to.

Amendment 135 moved—[Neil Bibby].

The Convener

The question is, that amendment 135 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 135 disagreed to.

Amendment 136 moved—[Neil Bibby].

The Convener

The question is, that amendment 136 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 136 disagreed to.

Amendment 137 moved—[Neil Bibby].

The Convener

The question is, that amendment 137 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 137 disagreed to.

The Convener

If amendment 138 is agreed to, I cannot call amendment 22.

Amendment 138 moved—[Neil Bibby].

The Convener

The question is, that amendment 138 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 138 disagreed to.

Amendment 22 moved—[James Kelly].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 22 disagreed to.

Amendment 139 moved—[Dean Lockhart].

The Convener

The question is, that amendment 139 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 139 disagreed to.

Amendment 23 moved—[Tavish Scott].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 23 disagreed to.

Amendments 140 and 141 not moved.

Amendment 142 moved—[Jamie Greene]—and agreed to.

Amendment 143 moved—[Donald Cameron].

The Convener

The question is, that amendment 143 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 143 disagreed to.

The Convener

If amendment 144 is agreed to, I cannot call amendment 145 because it will have been pre-empted.

Amendment 144 not moved.

Amendment 145 moved—[Gordon Lindhurst]—and agreed to.

Amendment 146 moved—[Adam Tomkins].

The Convener

The question is, that amendment 146 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 146 disagreed to.

Amendment 147 moved—[Adam Tomkins].

The Convener

The question is, that amendment 147 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 147 disagreed to.

The Convener

The question is, that section 12 be agreed to. Are we agreed?

Members: No.

The Convener

Conservative members’ opposition is noted.

Section 12, as amended, agreed to.

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

Amendment 148 not moved.

The Convener

At this point, we shall suspend for 10 minutes. Thank you, colleagues.

10:15 Meeting suspended.  



10:34 On resuming—  



The Convener

Amendment 149, in the name of Donald Cameron, is grouped with the amendments shown in the groupings paper. Members will note that there are a number of pre-emptions in the group. I will remind members of the pre-emption when I call the relevant amendment.

Donald Cameron (Highlands and Islands) (Con)

I have lodged only a single, specific amendment to section 13, which, it is fair to say, is one of the most difficult and controversial sections in the bill, because it relates to the keeping-pace power, as it is being termed—the power that would allow the Scottish Government to make provision corresponding to EU law after exit day. I will say more about the section as a whole when I sum up in the light of the debate on the amendments.

Amendment 149 seeks to add some important riders to the use of that potentially wide-ranging power as it is set out in section 13(1). The amendment is very much on the same theme as other amendments that have been debated this morning, as it relates to the checks and balances on executive power and the legislature’s role in those. It seeks to place two conditions on the use of executive power. First, regulations that are made under section 13(1) would have to be subject to the restrictions and limitations of the Scotland Act 1998 so that any use of the power would be compatible with the devolution settlement as it is enshrined in that act. That part of amendment 149 would do no more than ensure that the use of the power was fully conversant with the Scotland Act 1998 and would provide for the overarching protection that is provided by devolution. I would not call that littering the bill with obsolete references; in my submission, that would be enshrining devolution.

Secondly—and no less important—amendment 149 seeks to apply the condition that the Parliament must give its consent to the use of the power in section 13(1). In short, that part of my amendment is a simple, even basic, provision that seeks only to require that the Scottish Parliament, of which we are all members, must agree to the use of the power that ministers may seek to exercise under section 13(1). It is not a party political point; it is about the need for a separation of powers between the Executive and the legislature, which is a fundamental point to make. The condition would apply to ministers of whatever political stripe, not least because of the potential 15-year timeframe that could apply to the use of the power. The issue goes to the very nature of what we do here. Ultimately, it is about respecting each other as MSPs and respecting the role of the Parliament in scrutinising the power of the Executive.

I move amendment 149.

Liam Kerr

I will speak to amendments 155 to 159, in the name of Graham Simpson. I am grateful to you, convener, for permitting me to speak on his behalf.

Amendments 155 to 157 and 159 would clarify the section as meaning that ministers can make regulations not where EU law is no longer appropriate but where it is no longer operable, which is a much tighter and—dare I say it?—more appropriate definition. It is about how much power is grasped by the Scottish ministers.

Section 13 sets out the power to allow ministers to make regulations that correspond to EU regulations, provisions or some such after exit day. Donald Cameron has spoken persuasively about the importance of section 13, and I strongly associate myself with his remarks.

Subsection (2) sets out the details of what ministers may and may not do. It sets out that they may omit provisions that link to arrangements that no longer make sense, such as agreements between the UK and EU member states, or that are dependent on UK membership of the EU. The purpose behind that is sensible, and the merit of the section, therefore, is clear. However, I would draw attention to one particular phrase that is used throughout; all of those things are omitted if they

“no longer exist or are no longer appropriate”.

The phrase “no longer appropriate” is vague and implies a level of judgment on what might constitute appropriateness. If we import an ability to make a subjective judgment, it must be a matter of concern and worry that there is no equivalent check on the use of a minister’s judgment. Surely we should not be countenancing a situation in which Scottish ministers omit something from regulations on the basis that they simply feel it to be “appropriate”. By switching the term “appropriate” for “operable”, amendments 155 to 157 and 159 tighten up the meaning. If something is not “operable”, it should not be ported in. That is objective, correct and sensible, and it is why the amendments should be agreed to.

Amendment 158 is slightly different but makes a similar point. Section 13(2)(f) clarifies that if Scottish ministers use the powers under section 13(1) to make provision—say, to implement an EU directive—they may confer extra

“functions or restrictions which”

they feel

“it is appropriate to retain”.

Once again, that is a judgment call. There is a risk, because when we make law, we make it for years and for Scottish ministers who are yet to come. It must be right to ensure that functions or restrictions are ported only where it is necessary—that is, imperative or required—to do so. It is not right to leave the matter open to judgment, subjectivity or discretion, as the word “appropriate” does. I therefore commend amendment 158, which seeks to replace “appropriate” with “necessary”.

Tavish Scott

I will speak to amendments 27 and 34 in particular. I share the views expressed by Donald Cameron in his opening remarks on this section, which is about keeping pace post March next year. The two areas that he highlighted are, arguably, the ones that I feel most strongly should be improved in the bill.

At stage 1—it seems weeks and weeks ago now, but it is important to remember that it happened only a week ago—I reflected on the need for the Administrations across the United Kingdom to co-operate. Moreover, I reflected yesterday on the fact that those involved in the rural economy know all too well the importance of a complete UK picture to the success of their businesses. In that respect, amendment 27 complements other proposals that I am making by seeking to compel Scottish ministers to consult the other three Administrations prior to taking action under section 13 to keep pace with EU law after exit day.

Every political party has constantly cited the need for framework agreements, co-ordination and co-operation across the United Kingdom as powers are allocated after exit day; indeed, the point was made by Adam Tomkins this morning and by the minister in his letter on Monday night. There is no political dissent in that respect. This amendment stipulates that if one of the other three Administrations asked the Scottish Government not to make a particular regulation to keep up with EU law, that regulation could not proceed. If Scottish ministers insisted on doing it in the face of that opposition across the UK, the proposal would have to be introduced in primary legislation; as a result, Parliament would be able to look at it in detail, consider why the other three Administrations were opposed to it, hear from stakeholder interests, Scottish business and others, then decide whether the Government had made the case. The amendment does not say that the Government of the time cannot bring forward a policy proposal or deal with a particular issue that it feels must be addressed; it is just saying that scrutiny and proper parliamentary accountability should be in place to allow that to happen.

With the amendment, we would be able to protect the workings of the UK single market by what would be, in effect, unilateral action by a single Administration. It represents a federal idea of co-operation—I make no apologies for believing strongly in that—and it contrasts with some Conservative amendments that give control of these issues entirely to UK ministers.

Amendment 29, together with amendments 31 to 33, would replace the current 15-year extent of the powers to keep pace with EU law with a maximum period of five years, to be renewed every year thereafter. The minister has made it clear that he proposes to assess how the powers have been used before they are renewed. I agree—and I take that point—but I want to cut down the length of time for which ministers from any party in the next 15 years can rely on the section 13 powers. After all, here we are looking at legislation that will affect whoever the Administration will be in future sessions of the Parliament.

10:45  



Amendment 34 proposes to do away with section 13 completely. It shares much with Neil Findlay’s amendment 35. However, my amendment goes further and allows ministers the opportunity to explain their need for further powers. I recognise the point that the minister has made in respect of any minister of any Government seeking powers in circumstances that we cannot fully envisage. My proposal in amendment 34 is to ensure that ministers who are keen to make a provision will be given three months in which to prepare a report on how primary legislation might be used to achieve the same end. In other words, it is a way forward in addressing the concerns that I recognise the Government and ministers have, but it creates a parliamentary route for proper scrutiny of what is needed with regard to ministerial powers post March 2019.

Why does that matter? It matters because we have become obsessed with the language around power grabs. Nobody looking at section 13 is under any illusion; that could only be described as ministerial seizure of the most extensive powers. As some colleagues have already mentioned this morning, the power grab argument works both ways. Some could say that if we leave this bill as it is for 15 years, ministers of any persuasion could create new laws and abolish old ones, create new quangos or imprison people for up to two years under offences brought to the statute book by regulation and not primary legislation. We have had a bit of a cut at that already—and rightly so—but it is very important that the issue is carefully thought through, even with the time constraints that we have today.

The minister has said before that he had expected a similar section to section 13 to be in the UK bill. He has also said—let me be right about this—that the Lib Dems would probably like the UK to keep pace with EU legislation. Now, I understand and agree with both those points, but it cannot be done through this truncated emergency procedure. If similar plans had been in the UK bill, they would have been subject to the scrutiny of two Houses of Parliament over months and months, not the much shorter period in which we are having to deal with this bill here in Parliament. This provision does not have to dovetail with what is in the UK bill; it can be brought forward at any point—perhaps even after exit day.

I argue that section 13 is not an emergency. The minister may well have arguments to say that other sections demonstrably are, but this absolutely is not. Amendment 34 gives the minister and, more important, Parliament the opportunity to look at the issue of parliamentary scrutiny in the round and over a period, not in a considerable rush. It is a constructive way forward for ministers, who can publish a report and justify their plans through the full scrutiny of this Parliament. This section is not an emergency.

At last week’s meeting of the Culture, Tourism, Europe and External Relations Committee, Professor Nicola McEwen, one of our pre-eminent political scientists, was, in my view, warm about a route such as that which is laid out in amendment 34 being a sensible way forward in a difficult area of accountability and scrutiny. I hope that the Government might see it in that light.

If I may, I will make a final point. Neil Findlay’s amendment 42, which I support, is one of three that make sure that the UK Government and the other devolved Administrations are consulted before regulations or an act are made under section 13—the keeping-pace power—which is also an important step.

With those remarks, I will be happy to move my amendments.

Murdo Fraser

I will speak to my amendments 164, 165 and 168 to 173. I will also speak to amendments 28 and 30, in the name of James Kelly, and amendments 29, 31 and 32, in the name of Tavish Scott, all of which cover the same territory.

The amendments that I have lodged in this group are complementary and overlapping. I have tried to present colleagues with a menu of different options to choose from in addressing their concern about the current drafting of subsections (7) and (8) of section 13. The amendments in the names of James Kelly and Tavish Scott, to which I have referred, would have a similar impact.

Section 13 contains wide powers for Scottish ministers to make provisions by regulation after exit day. We have just heard from Tavish Scott, and we heard in the stage 1 debate and in yesterday’s pre-stage 2 debate from a wide range of colleagues across different parties, concerns about the extent of those powers and the periods for which they will last. The powers to make regulations will come under a degree of parliamentary scrutiny. With regard to the amendments that I have lodged, my primary concern is that the periods allowed to Scottish ministers to exercise those regulation-making powers are too extensive.

Those regulation-making powers will exist for a total period of 15 years after exit day. Section 13(7) refers to the initial period of five years. Scottish ministers will be able to extend that for up to a further five years under section 13(8)(a), and for a further five years under section 13(8)(b), which gives us that total of 15 years from exit day. That seems to me to be far too long for Scottish ministers to have those considerable powers.

My amendment 164 seeks to reduce the initial period from five years to four years, and amendment 165, which is also in my name, seeks to reduce the period from five years to three years. James Kelly’s amendment 28 seeks to reduce the period from five years to two years, and Tavish Scott’s amendment 29 seeks to reduce it from five years to one year. My preference would be to see the period reduced to as short a time as possible, so my preferred outcome is for Tavish Scott’s amendment 29 to be agreed to. Failing that, I would support James Kelly’s amendment 28, which would reduce the initial period from five years to two years; then I would support amendment 165, in my name, which would reduce the period to three years. If all else fails, I would support amendment 164, in my name, which would reduce the period to four years. I would then support amendment 30, in the name of James Kelly, which would leave out section 13(8) altogether—in other words, Scottish ministers would not be entitled to have any additional powers beyond the initial period.

However, if that approach is not agreed to, I would move on to my second set of amendments—amendments 168, 169 and 170—and amendment 31, in the name of Tavish Scott. In effect, I would repeat the exercise in relation to the first extension period, which is currently stated in section 13(8)(a) as being “up to five years”. My preference would be to support Tavish Scott’s amendment 31, which would reduce the extension period from five years to one year. If the committee did not agree to that, I would then support my amendment 170, which would reduce the period from five years to two years, failing which I would support my amendment 169, which would reduce the period from five years to three years. Failing all that, I would support my amendment 168, which would reduce the period from five years to four years.

I would then go through the same exercise again in relation to the further extension period, which is contained in section 13(8)(b). Again, my preference would be to support Tavish Scott’s amendment—amendment 32—which would reduce the further extension period from five years to one year. In the event that that was not accepted, I would then support amendment 173, which would reduce the period from five years to two years, failing which I would support amendment 172, which would reduce the period from five years to three years. Failing all of that, I would support amendment 171, which would reduce the period from five years to four years.

I also support amendment 33, in the name of Tavish Scott, which would put a total time limit of five years on all extensions, and amendment 34, also in the name of Tavish Scott, which would require ministers to produce within three months of the bill’s being passed and obtaining royal assent a report setting out the Scottish Government’s intentions in this area.

James Kelly

I will speak to my amendments 28, 30 and 37 and, with the convener’s permission, amendments 35, 36, 38, 40, 42, 48, 52 and 54, in the name of Neil Findlay.

As others have said, the amendments in this group relate to the extension of regulation-making powers post-exit day. I think that this is one of the more problematic areas in the bill because of the extent of the powers that will be granted to Scottish ministers.

Speaking to an earlier group, Mr Russell said that he was keen to use the bill to enhance the powers of the Scottish Parliament. However, in section 13, he is using the bill to enhance the powers of Scottish ministers. I agree with many of the points that Tavish Scott and Murdo Fraser made.

Amendment 28 seeks to reduce the time for which the regulation-making powers last from five years to two years. Subsequent to that, amendment 30 would take away ministers’ power to seek cumulative five-year extensions. Amendment 37 would improve and make more focused the scrutiny of the affirmative procedure.

I turn to Neil Findlay’s amendments. Amendment 35 would take out section 13 altogether, given the fundamental problems that have been expressed about the section and the powers that it grants to ministers. Amendments 36, 38, 40, 42 and 48 are similar to amendment 37, in that they would improve scrutiny. They would also introduce proper consultation.

I ask members to support the amendments in my name—28, 30 and 37—and 35, 36, 38, 40, 42, 48, 52 and 54, in the name of Neil Findlay.

Michael Russell

I thank members for the amendments that they have lodged in this group.

I acknowledge that section 13 is probably the most controversial section of the bill. The obligation is on the Government to indicate why the section should remain in the bill, as there are moves to remove it, and how it should operate. I will accept some changes to its operation and am willing to accept more, as there is one set of amendments that I want to talk about that could be useful but which requires additional work.

The section is necessary. The same discussion is taking place in Wales because there is an equivalent section in the Law Derived from the European Union (Wales) Bill and it is clear that there will be a concern about continuing regulation and legislation. In my response to some of the environmental questions that were raised yesterday, I illustrated some of the areas in relation to which the provisions in section 13 would have a vital role. Regulatory alignment has been much discussed in the past few months, particularly in the context of the Northern Irish border, but there are other reasons why regulatory alignment is extremely important. To achieve it, the Parliament would require a power of the nature of that in section 13. Otherwise, it would be incredibly onerous to achieve.

The power must be properly used. It must be limited. It can be limited in scope—I will come on to that in a moment—and in time. However, without it, serious damage will be done to certain Scottish industries. I have used agriculture as an example, and serious environmental damage could certainly result without the power. Therefore, as we have seen in other parts of the bill, we must balance the requirement for scrutiny, ministerial restraint and ministerial supervision with the requirement to do something in the exceptional circumstances that we face. It is important to remember that there is nothing normal about the way in which the UK Government has approached the matter. There is nothing normal about the Brexit process, so we have to have some tools that we presently do not have.

I accept the principles of scrutiny and restraint. The question is how we achieve what members want. I will make some constructive suggestions—I hope that members will take them constructively.

Donald Cameron spoke to his amendment 149. He will not be surprised to hear that I regard the first part of it to be unnecessary because restrictions on reserved matters apply anyway under the Scotland Act 1998, as section 13(3) of the bill confirms.

I thank Graham Simpson for his amendments 155 to 159. The comments that were made usefully explored and introduced some of the issues that are raised by the keeping-pace power. I understand that the intention behind those amendments is to ensure that the Scottish ministers may put a keeping-pace proposal to Parliament only when a higher test is met and in more limited circumstances. I agree with that principle, but the amendments as drafted would not meet that test.

11:00  



Section 13(2) confers a limited ability to modify post-withdrawal EU law so that it can properly operate in the circumstances of the UK no longer being a member of the EU. In many uses of the keeping-pace power, no such modification would be necessary. For example, if we were adding, after withdrawal, new additives to a list of prohibited foodstuffs when an EU regulation was similarly updated, it is likely that nothing would need to be adapted.

The test for adapting EU law under the keeping-pace power is the same as the test that applies to the fixing powers in sections 11 and 12. Mr Simpson’s amendments would allow those adaptations to be made—they would allow EU law provisions to be omitted—only when part of EU law is not operable. We do not consider that that is the correct test because, often, there is something in EU law that would be theoretically possible to maintain, and which could be argued to be operable, but which it would be inappropriate to keep as a result of EU exit. We would not want to have to put to Parliament regulations that contained inappropriate provisions.

Mr Simpson’s amendment 158 would bind the regulations to only conferring functions or imposing restrictions that it is “necessary”—his word—to retain. As recommended by the Delegated Powers and Law Reform Committee, of which Mr Simpson is the convener, the Scottish Government has introduced a test of necessity for the fixing powers in the bill. However, amendment 158 would not work in the same way. Deciding whether to put to Parliament a proposal to make changes to keep pace with EU law involves a question of judgment: on the part of ministers about whether to propose regulations, and on the part of Parliament about whether to accept them. That would involve deciding between different possible approaches, and would require a judgment around appropriateness.

The Government is listening on section 13 and we agree with the intention behind Mr Simpson’s amendments. We want to make changes—we want to address those concerns. However, I hope that I have pointed out that, technically, the amendments would have the effect of preventing the Scottish Government from adapting the keeping-pace proposals that it puts to Parliament to make them work properly.

Although I cannot support his amendments, I make an offer to Mr Simpson: if he would like to discuss these matters with the Scottish Government, we will see whether we can adapt his amendments to make them work.

Similar concerns are raised in the second part of Mr Cameron’s amendment 149, and I acknowledge the variety of other amendments in the group that other members have lodged, including Tavish Scott. I understand the points that Tavish Scott makes. There could be implications for other parts of the UK if Scotland were to keep up with EU law in a way that they do not mirror. I will make three points to Mr Scott in response. First, if there are any international agreements with the EU that affect devolved matters, either in relation to withdrawal or in the longer term, the Scottish Government will be bound by obligations under those agreements in the normal way. Secondly, if there are UK-wide frameworks that affect devolved matters, the Scottish Government will, obviously, follow its commitments under those frameworks—that is what we are trying to negotiate. Thirdly, beyond international obligations and commitments under frameworks, it is the responsibility of this Parliament to ensure that devolved law is effective, and the Government believes that the provision is essential if the Parliament is to do that.

The future is uncertain—that is never truer than in relation to matters concerning Brexit. We do not suggest that there should be a power to keep us in step with EU law for all time, and the provision is, therefore, sunsetted. However, to reflect the uncertainty, there needs to be scope for using the provision, and the limitations of the scope in relation to Mr Scott’s concerns are met.

At stage 1, there was confusion about the nature of the sunsetting provision. I therefore lodged Government amendment 166 to clarify our policy. However, we recognise the strength of feeling on section 13, which is reflected in the amendments. Therefore, we propose to discuss further with interested parties changes to the provisions with a view to finalising a position on the sunsetting provision and the extension of the powers.

I want to discuss changes to the sunsetting provision and changes to scrutiny, and we want to look to impose a strong reporting requirement. In the middle of my comments about scrutiny and operation, I indicated that I am willing to consider changes; I am willing to do so with Mr Simpson, and I will do so with other members. On the reporting requirement, we can look to see whether an amendment at stage 3 from any side of the chamber can be found. However, with regard to sunsetting, I think that I need to go further in order to show my good faith.

Mr Fraser has presented the Parliament with a menu, which was very good of him. I will pick two things from the menu, and I hope that he will accept that I am in earnest and acting in good faith. I will support two of his amendments—amendments 169 and 173—and I will not move my amendment 166. That means that we have found a sort of middle point, which involves an initial extension for three years and subsequent extensions for only two years. In that way, I will be meeting the objections that we have heard to date, as we will have found a way to limit the use of the power and put in place a higher test than exists at the moment, which was Mr Simpson’s point; we will have taken two items from Mr Fraser’s menu; and we will be continuing to discuss the ministerial reporting of powers.

I accept that the power is broad. The correct level of scrutiny needs to be considered. I note the proposals from Tavish Scott in a later group of amendments that would, in effect, make any use of the power subject to the enhanced affirmative procedure that is set out in the bill. I am happy to continue to discuss members’ concerns.

We will, I hope, proceed on the basis that we are trying to make the power better and make it work, but I cannot accept that we should simply give up on it, because I can envisage circumstances in which it will be a necessary part of the armoury, even in the emergency sense that Tavish Scott discounts. There will be circumstances in which the power will be absolutely essential.

I hope that I have made a reasonable set of suggestions. I suggest that the committee accepts amendments 169 and 173, that I do not move amendment 166 and that I ensure that Mr Simpson’s proposals are discussed with him and others as appropriate, so that we can find a way to make the power work, but in a much more constrained, supervised and scrutinised way.

Dean Lockhart

My amendment 167 also relates to the so-called keeping-pace powers in section 13. I associate myself with the comments of Donald Cameron, Liam Kerr, Murdo Fraser and Tavish Scott on the overreach of the powers. As drafted, section 13(8) envisages that the wide-ranging ministerial powers, including the power of ministers to make any provision that could be made by an act of Parliament, will be in place for a period of up to 15 years. I will come on to the minister’s updated proposal on that in a second.

Amendment 167 occupies common ground with the amendments of Murdo Fraser and Tavish Scott. I will still move amendment 167, as an alternative option among the other provisions that are being considered by the committee. I thank the minister for his proposals to revise the sunset provisions that are set out in section 13, and I am sure that the committee will consider those.

Under amendment 167, the Scottish ministers could extend the regulation-making powers at the end of the initial five-year period by a further period of only one year, and only then if the Scottish Parliament had been consulted in accordance with section 15, which provides a degree of parliamentary scrutiny. My amendment 191, which will be discussed in a later group, would bolster the scrutiny powers of Parliament in that context.

There are various proposals in front of the committee with respect to the sunset provisions. However, I intend to move amendment 167.

Neil Bibby

As Donald Cameron and others have said, section 13 is easily the most controversial section in the bill. As I said in my remarks in the chamber yesterday, this group of amendments is one of the most important, if not the most important, that we will debate. Section 13 grants sweeping regulation-making powers to the Scottish ministers. It would allow the Scottish Government to implement laws in Scotland that correspond to EU law, even if that EU law takes effect after exit day and after we leave the EU.

Members will recall that Professor Aileen McHarg expressed uncertainty to the committee about whether the powers granted by section 13 are keeping-pace powers or something altogether more difficult to justify. As I said in the stage 1 debate in the Parliament, Professor Alan Page of the University of Dundee warned the committee that section 13 amounts to

“a potentially major surrender by the Parliament of its legislative competence”.

He also referred to it as “a thoroughly bad idea.” Concerns were also raised about a democratic deficit.

I therefore have grave reservations about section 13, which I do not believe should be agreed to. However, if it is agreed to, we should ensure that the amending stages enhance parliamentary scrutiny, promote transparency and build checks and balances into the bill, and that is what the amendments in the name of my colleagues James Kelly and Neil Findlay seek to do. As we have heard, there are also a number of amendments from Conservative and Liberal Democrat members, which we are prepared to support.

We want to ensure that not only proper scrutiny but proper consultation is built into the bill, and that a bill that the Scottish Government introduced to protect this Parliament’s place in our democracy is not used to sideline or marginalise it. We want to ensure that there is no power grab from this Parliament by ministers; as the bill stands, there is. I ask all members to consider supporting the Labour amendments and, specifically, amendment 35, in the name of Neil Findlay, which would remove section 13 altogether.

Patrick Harvie

There is no simple way through this. We are being asked to make a hideously complicated set of decisions from a complicated menu of items, as Murdo Fraser described them. He was right to bring that range of options, but it makes the process extremely complicated, unless we have provision to vote by single transferable vote, which I do not think that Murdo Fraser would like as much as I might.

The minister is right to say that these are not normal times. We are living through an extended constitutional crisis. On numerous occasions, I have heard Brexiteers almost describe the Brexit process as something as simple as resigning from the local golf club, when in fact we are talking about the biggest job of legislative heavy lifting that I can think of anywhere, ever. If anyone can come up with an example of a more complex process that is being undertaken anywhere, I would be interested and dismayed to hear about it.

Let us recognise the complexity of the job that we have ahead of us. A balance has to be struck between making the process viable and manageable and maintaining parliamentary control of it, and there is no perfect solution. In the chamber last week, Mike Rumbles appeared to concede that he does not think the whole process can be done with primary legislation alone. I apologise if I misheard or misunderstood him, but if I understood him correctly I have to agree; I think that section 13 is, regrettably, necessary.

The balance that is being struck needs to be changed. Given the way that we will have to vote now, it may be that the stage 2 process merely shakes out the range of attitudes and opinions that there are. It may leave us in a stronger position at stage 3 to vote on something that can gain majority support or which the majority can at least live with. Let me just run through the amendments that, at the moment, I intend to support, because they seem to me to strike the right balance.

Amendment 165 would reduce the initial period from five years to three years in the provision in line 15 on page 12 of the bill that

“No regulations may be made ... after the end of the ... 5 years beginning with exit day.”

Reducing that period to three years is a reasonable compromise. Following that, amendments 31 and 32 would reduce the extensions from their current limit to one year and, if I am reading this right, amendment 33 would limit the total period to five years—after the maximum allowed number of extensions, the total period would be five years. That seems to me to be a reasonable compromise between what the Government is asking for and the need to restrain powers that I think we all acknowledge are exceptional.

Moreover, if there was a maximum period of five years, the Government, whether it be the current one or its successor—who knows what situation we will be in at the time?—would, if it believed that a further extension was absolutely unavoidable, have ample time to return to Parliament with new primary legislation that would set out additional powers to extend what by that time would be the continuity act, if the bill is passed.

That seems like the right balance to strike. Whether or not we are able to reach agreement on this or something like it today, I hope that, whatever the result of the votes, members across the parties are willing to work towards something at stage 3 that a majority can at least live with.

11:15  



Donald Cameron

Section 13 is without doubt one of the most troubling provisions in what is a troubling bill. To be fair to the minister, he has acknowledged that; I think that he described it as the most controversial section in the bill, and he also referred to the broad power that it makes provision for.

In summing up, I want to make a few general points before turning to some detailed specifics. First, the keeping-pace power in section 13 has no equivalent in the UK bill. The Government often tells us that the bill has been drafted in the same vein as the UK bill and that some of the provisions are identical, which gives them some justification; however, that is not the case here. This is a striking political choice that the Government has made and which goes well beyond the UK bill.

The minister is quite open about his antipathy towards Brexit, but Brexit is, without doubt, happening. [Interruption.]

The Convener

I am sorry, Mr Cameron, but if you sit back from your microphone, you will not get that popping sound.

Donald Cameron

I am sorry, convener. My enthusiasm is getting the better of me.

The Convener

We are all enthusiastic.

Donald Cameron

There is, in fact, no actual need to keep pace with EU law if we are leaving the EU. There might well be alignment not just in Scotland but across the UK immediately after exit, but there is no actual need for these powers.

That position should be contrasted with that in the earlier parts of the bill that deal with carrying over EU law into domestic law. We all accept, in principle, the need and requirement for that to happen in that case, but as far as this section is concerned, that need simply does not exist. We might differ in how continuity of law might happen—different ways are set out in the continuity bill and the UK bill—and it must happen. That said, it is not mandatory here.

Indeed, I think that the Government accepts that. Its policy memorandum, which provides a very lengthy justification for this particular section—always a warning sign, in my view—describes it as

“a useful method ... in advance of primary legislation”.

The very fact that this is a temporary power that, as the Government has said, might be required only “in the short term” underlines that. With great respect, the minister has, in my view, not given an adequate response to that criticism.

In making primary legislation or supervising secondary legislation, this Parliament has the ability to fill the so-called “legislative lacunae” that the policy memorandum refers to without the need for a keeping-pace power. We can do what we want within the terms of devolution; indeed, we can make that primary legislation. I simply disagree with Patrick Harvie on this point. If we can pass a bill like this one in three or four days, we can certainly legislate quickly on more specific issues such as food additives, which are referred to in the policy memorandum, as well as update ambulatory references in the law. In short, I repeat the view that has been expressed by many that this is an unnecessary provision and represents an extensive overreach of executive power.

My specific points relate to proper parliamentary scrutiny. I welcome the minister’s constructive approach to those specifics, but I want to draw attention to the Delegated Powers and Law Reform Committee’s report, which says:

“This is a very significant power and would potentially allow delegated powers to be used for a wide range of circumstances that may otherwise be considered appropriate to be done by primary legislation.

The Committee queried whether this power was appropriate to the purpose of this particular Bill. The Committee also queried whether there was the same urgent need for such a power and, therefore, whether it was appropriate to include such a power within a bill being treated as an emergency bill.”

With that in mind, I turn briefly to the comments of various members as well as members of the committee. Liam Kerr mentioned his desire to see the word “operable” being used instead of “no longer appropriate”, and he made potent criticisms with regard to that being better than a subjective judgment on what is appropriate. The language is much tighter, and it requires an objective judgment to be made.

Tavish Scott spoke most strongly, I think, about the primacy of primary legislation. Although I might disagree with some of his comments, particularly about federalism, he said that scrutiny should be in place and referred to the proper parliamentary route to what is required. I also associate myself with his comment that this could be a ministerial seizure of the most extensive kind. Finally, he was absolutely right to point out, with regard to this being emergency legislation, that this is not an emergency, and that the matter deserves time. When we talk about “accountability” and “scrutiny”, as Mr Scott did, we do not mean them as catchphrases or clichés; they really matter.

In the same vein, Murdo Fraser commented on the wide powers and gave a suite of different solutions, James Kelly talked about the problematic nature of section 13 and Neil Bibby quoted a witness who called it a “major surrender”. The minister should be aware—as, to be fair to him, I think he is—of the various serious concerns that have been expressed by members across the chamber on the keeping-pace power, and I welcome his offer with regard to specific amendments. Of course, it is up to members which amendments they move.

The Convener

Just as the process of discussing the amendments has been quite complicated, so, too, is the process of voting. Forgive me, then, if I take a wee bit of time to go through it.

The question is, that amendment 149 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 149 disagreed to.

Amendments 150 to 154 not moved.

The Convener

I ask Liam Kerr to move or not move amendment 155, in the name of Graham Simpson.

Liam Kerr

I am grateful for the minister’s comments, so I will not move the amendment.

Amendments 155 to 159 not moved.

The Convener

I ask Dean Lockhart to move or not move amendment 160.

Dean Lockhart

I will not move the amendment, because I believe that my colleagues have lodged better ones.

Amendment 160 not moved.

Amendment 161 moved—[Donald Cameron].

The Convener

The question is, that amendment 161 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 161 disagreed to.

Amendment 24 moved—[Tavish Scott]—and agreed to.

Amendment 25 moved—[Tavish Scott].

The Convener

The question is, that amendment 25 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 25 disagreed to.

Amendment 26 moved—[Tavish Scott]—and agreed to.

Amendment 162 moved—[Donald Cameron].

The Convener

The question is, that amendment 162 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 162 disagreed to.

Amendment 163 moved—[Donald Cameron].

The Convener

The question is, that amendment 163 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 163 disagreed to.

Amendment 27 moved—[Tavish Scott].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

Abstentions

Kelly, James (Glasgow) (Lab)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 6, Abstentions 2.

Amendment 27 disagreed to.

The Convener

I remind members that amendments 164, 165, 28 and 29 are direct alternatives, which can all be moved and decided on. The text of whichever amendment is the last one to be agreed to is what will appear in the bill.

Amendment 164 moved—[Murdo Fraser].

The Convener

The question is, that amendment 164 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 164 disagreed to.

Amendment 165 moved—[Murdo Fraser].

The Convener

The question is, that amendment 165 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 165 agreed to.

Amendment 28 moved—[James Kelly].

11:30  



The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 28 disagreed to.

Amendment 29 moved—[Tavish Scott].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 29 disagreed to.

The Convener

If amendment 30 is agreed to, I will not be able to call amendments 166 to 170, 31, 171 to 173 and 32.

Amendment 30 moved—[James Kelly].

The Convener

The question is, that amendment 30 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 30 disagreed to.

The Convener

If amendment 166 is agreed to, I will not be able to call amendments 167 to 170, 31, 171 to 173 and 32.

Amendment 166 not moved.

The Convener

If amendment 167 is agreed to, I will not be able to call amendments 168 to 170, 31, 171 to 173 and 32.

Amendment 167 moved—[Dean Lockhart].

The Convener

The question is, that amendment 167 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 167 disagreed to.

The Convener

I remind members that amendments 168, 169, 170 and 31 are direct alternatives.

Murdo Fraser

In view of what the minister said, and in the expectation of satisfaction further down the list, I will not move amendment 168.

Amendment 168 not moved.

Amendment 169 moved—[Murdo Fraser]—and agreed to.

Amendment 170 moved—[Murdo Fraser].

The Convener

The question is, that amendment 170 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 170 disagreed to.

Amendment 31 moved—[Tavish Scott].

The Convener

The question is, that amendment 31 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 31 agreed to.

The Convener

I remind members that amendments 171 to 173 and 32 are direct alternatives.

Amendments 171 and 172 not moved.

Amendment 173 moved—[Murdo Fraser]—and agreed to.

Amendment 32 moved—[Tavish Scott].

The Convener

The question is, that amendment 32 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 32 agreed to.

Amendment 33 moved—[Tavish Scott].

The Convener

The question is, that amendment 33 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 33 agreed to.

Amendment 34 moved—[Tavish Scott].

The Convener

The question is, that amendment 34 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 34 disagreed to.

Amendment 35 moved—[James Kelly].

The Convener

The question is, that amendment 35 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 35 disagreed to.

Section 13, as amended, agreed to.

Adam Tomkins

On a point of clarification, convener, does the committee need to agree to the section?

The Convener

No. The vote on amendment 35, which sought to delete section 13, was held immediately before. By disagreeing to the amendment, we agreed to the section, so we did not need to do so a second time. Thank you for raising that point of clarification.

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

The Convener

Amendment 174, in the name of Ross Greer, is grouped with amendment 187.

Ross Greer (West Scotland) (Green)

I am glad to speak to amendments 174 and 187. The vast majority of the changes that we anticipate will need to be made as a result of this process are addressed in sections 11, 12 and 13, which contain the powers to correct deficiencies in EU law, to comply with international obligations and to keep pace with legal developments in the EU after Britain’s exit day.

Section 14 sets out a list of changes that are to be made through the affirmative procedure and through the affirmative procedure with additional consultation—the super-affirmative procedure. All other changes are left to the negative procedure. Amendments 174 and 187, in my name, would instead grant the Scottish Parliament the power to decide the appropriate scrutiny procedures.

At their core, the amendments are about asserting the role of the Parliament alongside that of the Government. Although it obviously contains some differences, the approach is modelled on the sifting committee amendment that was introduced to the UK Government’s withdrawal bill by the Conservative chair of the Commons Procedure Committee—an amendment that was agreed to. Amendment 187 will provide our committees with the power to decide on the appropriate procedure—negative, affirmative or super-affirmative—to be used for statutory instruments during the process.

Some speakers in yesterday’s debate seemed to indicate that they understood that amendment 187 would create a new sifting committee, which Neil Findlay kindly volunteered me for. To be clear, I believe that we should empower the relevant subject committees of the Parliament as a practical way of managing the workload. However, ultimately, the specific arrangements would be a matter for the Parliament through the Standards, Procedures and Public Appointments Committee, as the issue is to do with the Parliament’s standing orders.

Amendment 187 would oblige ministers to lay all statutory instruments as drafts for the relevant committee to consider. The committee would then take 15 days to make a recommendation, which would be binding on ministers. It is the empowerment of Parliament, rather than the inappropriate overempowerment of ministers, that the amendment sets out to achieve. It is essential to assert, through the bill itself, the need for the Parliament rather than the Government to be in the driving seat and to prevent ourselves from being tied down by prescriptive lists during an unpredictable process. We can then avoid, for example, potentially significant issues being dealt with through the negative procedure because we did not adequately predict a necessary change in the list of those that required the affirmative procedure and thus ended up with an unsatisfactory level of parliamentary scrutiny.

Amendments 174 and 187 are in keeping with the sentiments that the minister and all other parties throughout this process have outlined so far, and I hope that they are agreed by the committee.

I move amendment 174.

Neil Bibby

I welcome amendments 174 and 187 from Ross Greer on the basis that any additional scrutiny of the extensive new powers that the bill grants to the Scottish ministers must be given the committee’s fullest consideration.

The amendments in this group are not the only amendments that seek to enhance scrutiny, but my understanding is that they would not pre-empt any other amendments that the committee will consider later. This group therefore presents the committee with an opportunity to agree to a further process for scrutiny of the regulation-making powers that sections 11, 12 and 13 grant to Scottish ministers. That includes requiring the Scottish Government to lay a statement before the Parliament, setting out its own views on an appropriate method of scrutiny, and making it a condition that a committee of the Parliament can recommend an appropriate method of scrutiny.

To be clear, we do not believe that Ross Greer’s amendments alone provide enough additional scrutiny, given the scale of the new powers that ministers will acquire. We do, however, believe that these amendments would be a useful addition to the bill and we are minded to support them.

Patrick Harvie

I, too, welcome Ross Greer’s amendments and commend him for his patience in sitting through not just today’s session but much of last night’s session as well, waiting for us to reach this group.

Outside the formal committee process, when members across the parties have been talking about these issues, there has been some good, constructive discussion around ways of enhancing and scaling up the scrutiny powers of the Parliament. What these amendments propose is an important way of achieving that and—critically—of placing the responsibility to decide how that should happen with the Parliament itself.

It is worth reinforcing the point that proposed new subsection (4) in amendment 187 includes the phrase

“such of its committees as the Parliament may determine has made a recommendation”,

so it would be for the Parliament to decide what recommendations to offer. I know that some members have proposed a new sifting committee, as Ross Greer mentioned, while others have suggested using our existing subject committees, which I think would also be appropriate. Yet others have suggested using either the existing Delegated Powers and Law Reform Committee or an enhanced DPLR Committee. Of course, it is within the scope of the choices that we could make, as a Parliament, to expand the remit of the DPLR Committee or to increase its size if we thought that that was an important step in ensuring that it had the capacity to undertake the work. All of those options are compatible with amendment 187, and it would be for the Parliament to decide the appropriate course of action.

11:45  



We will listen to what the minister has to say, and we will take his comments seriously. I suspect that, if he believes that a different approach is necessary, everybody will be willing to debate that at stage 3. However, my instinct at this point is that we should agree to amendment 187. I hope that, if the Government wishes to tweak or adjust the amended bill, everybody will be able to discuss the matter in a constructive spirit, and we will be in a stronger position to do that if the amendment is agreed to.

Adam Tomkins

I do not say this very often, but I agree with what Patrick Harvie has just said. Perhaps it is because he is sitting on what is customarily the Tory front bench. I hope that that does not spoil things.

Patrick Harvie

I could impersonate Ruth Davidson’s laugh at this point, but I will try not to.

Adam Tomkins

I agree that you should not try to do that.

We have not yet heard what the minister has to say on the group. However, even if he wants to argue that there is some kind of technical deficiency in the amendments, I respectfully urge Mr Greer to press them to a vote so that we can revisit them at stage 3 as opposed to not pressing them at this point in the hope that the Government might find time at stage 3 to revisit the issues. It is incredibly important that we do everything that we can at this stage to ensure that effective parliamentary scrutiny is maximised with regard to the powers that are legislated for in the bill.

For those reasons, the Scottish Conservatives support the amendments in the group.

Michael Russell

I want to agree to the amendments, and I will not oppose them here and now. Nevertheless—Ross Greer knows that this is not an excuse, as I have had a conversation with him about it—I think that there are aspects of the amendments that require to be changed and that the amendments pre-empt work that is being done with the parliamentary authorities that we were very happy to instigate. That detailed work is being undertaken to ensure that things are done in the best possible way.

Among the technical issues is the fact that the timeframe of 15 days is problematic for the Parliament’s flexibility and ability to plan its procedures. I also think that the Delegated Powers and Law Reform Committee is the right place for what is proposed to happen, but it probably needs to be enhanced to allow that. There are issues with its powers, which would need to be adjusted, but we can address those issues.

With such legislation, we have to balance what we think is absolutely perfect with what we think will work, as that is what members want to work. To use a Platonic remark, the best is often the enemy of the good. Therefore, I am happy to endorse what Ross Greer is trying to do, and I ask him to work with us over the next few days to produce amendments that will make the approach work properly. We will then be in a position to have a process that is better than the one in the bill.

I am still very keen to have a criteria-driven process. It is really important that we have criteria by which we can judge our decisions. We may wish to breach those criteria on occasion—there could be special circumstances in which we do so—but, if we understand the criteria that we are applying when we are choosing whether to use an affirmative, super-affirmative or negative procedure, we will be on much firmer ground when we come to the difficult decisions and to decisions that could go either way. Therefore, I would want to see in the process a continuation of the criteria-driven system that we are trying to put into the bill.

I am relaxed about the amendments being agreed to and do not think that they need to be forced to a division, although that is up to individual members. We can then do our best to make changes. If Ross Greer will commit to that, I will make that commitment, and we can then move on.

Ross Greer

I am happy to give the minister that commitment. I welcome the appetite that the committee has shown. I will press the amendment, and any necessary technical amendments can be made at stage 3.

The Convener

The question is, that amendment 174 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Harvie, Patrick (Glasgow) (Green)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Abstentions

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 0, Abstentions 5.

Amendment 174 agreed to.

The Convener

If amendment 36 is agreed to, I cannot call amendment 37.

Amendment 36 moved—[James Kelly].

The Convener

The question is, that amendment 36 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 36 disagreed to.

Amendment 37 moved—[James Kelly].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 37 disagreed to.

The Convener

Having reached this stage, and given the time, my intention is to suspend the meeting. We will reconvene in the chamber at 6.30 to complete our stage 2 consideration of the bill, subject to further discussion with the parliamentary authorities. The clerk will confirm the exact arrangements by email later in the day.

11:51 Meeting suspended.  



18:31 On resuming—  



The Convener

Good evening, colleagues. We now resume our stage 2 consideration of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. We are into the last lap. I wish Emma Harper a happy birthday. It has been a heck of a way to spend your birthday, but thank you for staying with us and I hope that there is some cake left by the time we are finished.

Amendment 175, in the name of Adam Tomkins, is grouped with other amendments as shown in the groupings. Members will note from the groupings that there are a number of pre-emptions in the group. I will remind members of a pre-emption when I call the relevant amendment.

Adam Tomkins

The effect of amendment 175 is simply to improve the quantity and quality of parliamentary oversight of regulations to be made under some of the key provisions of the bill, namely sections 11 to 13, which have already been debated. As drafted, section 14(1) requires some, but not all, regulations that are made under sections 11(1), 12 and 13(1) to be subject to the affirmative procedure. Amendment 175 simply deletes the condition so that all regulations that are made under sections 11(1), 12 and 13(1) would be subject to the affirmative procedure. It is a simple amendment.

I move amendment 175.

Jamie Greene

I have seven amendments in the group so, in the interests of time, I will speak only to my own amendments. Amendments 176 and 180 are very similar in wording to amendment 126, so there is little point in reliving the arguments in favour of the wording, as the amendments mirror amendment 126, which was agreed to earlier. Amendments 176 and 180 are largely technical amendments, and I hope that members will support them. They relate to our new direction of travel in how public bodies may be amended to carry out their functions, as was agreed earlier.

Amendment 181 relates to section 14. All that it seeks to do is increase the period of scrutiny that is available to Parliament from 60 to 90 days before an instrument comes into force, as detailed in section 14(5). The rationale is fairly obvious: having three months instead of two months to scrutinise an instrument before it comes into force allows an optimal period of time for scrutiny through the parliamentary process. I hope that the minister will agree to that extension, as I think that it fits better with the current norms in scrutiny timelines.

Amendment 182 ensures that any regulations introduced by ministers as a result of section 14 are also accompanied by a review of their financial implications. That is important because, as the Scottish Parliament works its way through retained devolved EU law, there need to be provisions in the bill whereby Scottish ministers update Parliament on the financial implications.

Paragraph 18 of the financial memorandum states—and this is an important point—that

“Some possible uses of the powers would have more significant cost implications. The powers in the Bill could be used, for example, to transfer significant regulatory functions to existing public bodies in Scotland or to create new public bodies for the purpose of exercising functions currently discharged at the EU level.”

The financial memorandum also states that the costs “are difficult to quantify” at this point. I accept that, but it is right that, when the costs are known to the Government, Parliament should be informed. Amendment 182 places an obligation on ministers to keep Parliament informed of the cost implications arising from regulations as a result of section 14.

Amendments 189, 190 and 192 relate to section 15, “Consultation on draft proposals”. At the moment, the wording in the bill reads that the Scottish ministers must consult

“such persons as they consider appropriate”.

My three amendments do the following. Amendment 189 introduces committees to the scrutiny process via whatever procedure is suitable and available to them. That is an important addition because committees are best placed to scrutinise proposals for regulations that are introduced under section 14.

Amendment 190 seeks to give committees adequate time to consult and, where appropriate, take evidence from people as they deem fit to give a plurality of opinion on the subject matter of the minister’s proposal to make regulations. This seems to be a better way of consulting on new regulations than simply leaving it to such persons as Scottish ministers consider “appropriate”, which is the current drafting.

Amendment 192 simply defines what a “relevant committee” is, as this is a new term that I have introduced to the bill. Clearly, that should be whichever committee has been defined as the lead committee based on the subject matter of the regulation. I hope that members will take on board these amendments, which I think are quite positive ones.

James Kelly

Amendment 39 seeks to introduce the affirmative power in relation to sections 11, 12 and 13, thereby introducing greater scrutiny and transparency to the bill and enhancing it as a result. I indicate support for all the other amendments in the group, with the exception of two.

I do not support amendment 181, in the name of Jamie Greene, on the basis that it extends the time for laying instruments from 60 days to 90 days. I prefer the original timetable. I also do not support amendment 191, in Dean Lockhart’s name. Although it is a reasonable amendment and makes some good points about additional documentation, it takes out the requirement for the Government to have regard to representations that are made, which I think is a reasonable proposal from the Government that I would prefer to keep.

Michael Russell

I will start with the other amendments and come to mine in a second.

There are three amendments—amendment 175 and James Kelly’s amendment 39, read with amendment 37 in an earlier group—which would make all regulations under the main powers in the bill subject to the affirmative procedure no matter their content. We do not regard that as an appropriate or even a possible way forward. I want to be very clear about that because, although I am going to accept a number of amendments, when amendments would make the bill inoperable, I have to make that clear. It is going to be a significant challenge in any case to take forward the legislative burden, and those amendments make it much, much harder.

Amendments 178 and 179, in the name of Jackson Carlaw, go even further. They make everything subject not to the affirmative procedure but to the enhanced affirmative procedure. The amendments would make the bill impossible to operate. Rather than a prudent, workable fallback that can be deployed in the event of no agreement—we are, of course, still working for an agreement—the Scottish Parliament would instead be left with an unworkable and impractical bill that could not be deployed effectively, because no Government or Parliament could do so within a reasonable time. That is part of the balance to which members have referred, and the amendments push the balance way beyond what is operable or workable.

I strongly urge the committee to reject amendments 178 and 179, and to focus instead on what the Government has proposed, on the reassurance that we will work very closely with the parliamentary authorities, as we currently do, to manage the legislative programme, on the bona fides that we have shown in accepting amendments to earlier sections—I am about to accept some more now—and on the fact that we have taken on board all the recommendations of the Delegated Powers and Law Reform Committee. We have shown a strong willingness to move on those issues, but when something becomes inoperable, it is important that we say so clearly. I do not think that I have said that so strongly in relation to any other amendments, but amendments 178 and 179 simply do not make it possible for the bill to work in the way it is supposed to work.

Amendments 176, 180 and 182, in the name of Jamie Greene, relate to something different. They are connected to the proposal that the Scottish ministers should have the ability to redefine the general objects of a public authority in consequence of EU withdrawal. We did not ask for that power; indeed, the last time there was an amendment on that, which was earlier today, I seem to remember—things are merging together in a legislative blur—we indicated that we did not want the power. However, the committee saw fit to pass the power, so I see no point in resisting the amendments and I suggest that they are simply accepted. That is another indication that we are willing to look at the bill and change it as we go forward.

Amendment 177, in my name, is intended to clarify the instruments that are subject to the affirmative procedure. We think that regulations should be subject to the affirmative procedure when they confer on a domestic public authority a function that is currently held by a European institution. Section 14(2)(d) of the bill as introduced sets out a narrower test. This short amendment corrects the point, and I would like committee members to vote for it, if they can.

Amendment 181, in the name of Jamie Greene, would make the period of scrutiny given to Parliament under the enhanced affirmative procedure last for 90 rather than 60 days. Given that this is a bill about the substantial time pressures under which the Scottish Government and the Scottish Parliament will have to undertake the delivery of a programme for change that is required for Brexit, through no timetable of our own, that would be unwise. The enhanced procedure has already been enhanced by proposals from the Scottish Government for a period of statutory consultation and for additional reports to be laid before Parliament on that consultation. The Scottish Government has moved a substantial direction in order to make the enhanced affirmative procedure much more responsive and the amendment would take it in a direction that would make it ever harder to operate the bill. I am sure that that is not the intention; I am sure that no member would come here and endeavour to wreck the bill. We should consider carefully whether amendments that are well meant will have consequences that have not been considered.

Amendments 189, 190 and 192, in the name of Jamie Greene, also add to the complexity of scrutiny. They would require scrutiny of proposals to legislate under the enhanced procedure by all relevant parliamentary committees. As drafted, the bill requires proposals to be laid before Parliament at the start of the process and an explanation of the consultation to be laid before Parliament at the end. Where appropriate, parliamentary committees could respond to such proposals with their own investigation, but I do not want to see such a requirement set out in the statute. As has been aptly demonstrated by the past week’s activity, the Parliament and its officials are more than capable of responding flexibly, where necessary, to developing demands for evidence, investigation and scrutiny.

Amendment 183, in the name of Donald Cameron, misunderstands the role of the Presiding Officer. At present, failures to comply fully with procedural requirements relating to secondary legislation must be explained in letters to the Presiding Officer. The bill continues that well-established practice in relation to the enhanced affirmative procedure. Mr Cameron’s amendment would change that so that ministers had to write to the Scottish Parliament instead. The Presiding Officer’s role in that regard is to uphold the standards that are expected of ministers by the law and the standing orders; it is a scrutiny role. For consistency’s sake, the Presiding Officer should continue to have that role, rather than for his role—and the Parliament—to be weakened, which would be the case if the amendment were accepted. All letters to the Presiding Officer from ministers in relation to subordinate legislation are published, and the failures are scrutinised as an obligation by the Delegated Powers and Law Reform Committee.

18:45  



I thank Donald Cameron for amendments 184 and 185. They raise an important issue that was also pursued by Patrick Harvie when I gave evidence to the Finance and Constitution Committee. Given the sheer scale and complexity of the programme of legislation expected in relation to Brexit, we need to recognise that it is almost inevitable that we will need to lay some of our instruments in recess. As the committee will be aware, laying instruments in recess is not uncommon. It is important to note that laying instruments in recess does not ordinarily reduce the time that is available for parliamentary scrutiny, because standing orders preserve the amount of scrutiny time by excluding any recess period longer than four days.

We all recognise that regulations under the continuity bill will be made against a hard deadline that is out of our control and a backdrop of uncertainty. In those circumstances, it would be appropriate for the bill to set out more about what should happen when instruments need to be laid during recess. Therefore, although we agree with the sentiment behind Donald Cameron’s amendments, the problem is their form. Amendment 184 might, in some circumstances, delay when an explanatory statement must be provided, given that not every day is a sitting day.

Amendment 185 points in the direction of the right approach. I agree that the Government should have to explain any decisions to lay instruments under the continuity bill during recess—I do not resist that in the slightest. Therefore, I undertake to lodge stage 3 amendments to give effect to the proposals. On that basis, I hope that either amendments 184 and 185 will not be moved or, if they are moved, the committee will reject them.

Tavish Scott’s amendments 41 and 43 would make any exercise of the power under section 13 subject to enhanced affirmative procedure. I have explained elsewhere that we are reflecting on section 13. I am sympathetic to those amendments. I will come back to the Parliament on the procedure at stage 3, but I indicated this morning that it will form part of a package of measures that we are looking at for section 13.

Amendment 44 would exclude regulations under section 13 from the consequences of failing to meet the 60-day laying requirement under the enhanced affirmative procedure. Like Donald Cameron’s amendment 183, adding the requirement to write to the Scottish Parliament where the Scottish ministers fail to comply with procedural requirements, it is unnecessary and unhelpful and breaks the established system. Procedural requirements such as the 60-day rule are tried and tested sanctions that are taken seriously by the Government and scrutinised intensely by the Delegated Powers and Law Reform Committee. We would be called to account and required to report to the Parliament for any failures under that rule. We would expect to be so called, and the procedure exists to allow that to happen.

Tavish Scott’s amendment 45 would require Scottish ministers to consult the UK and devolved Administrations on all enhanced affirmative regulations. I am very resistant to that proposal on the grounds that I gave earlier when I discussed the issues of consultation. That provision could be in areas where there are no relevant reserved areas or UK frameworks, so we could have an unnecessary level of bureaucracy and delay. We consult on legislative proposals that affect the other Administrations under the memorandums of understanding in any event, where there is a relevant interest. I still anticipate that frameworks will be established, and that approach would be built into the structure of those frameworks.

Neil Bibby’s amendment 188 would change the words used to describe the consultation requirement. The language that is used in the bill is well known and understood. It imposes a strong consultation requirement on Scottish ministers, and it is not clear who would be appropriate in the abstract and administrative law will require the discretion on who to consult to be exercised fairly. I would not want to see the wording of that section change, and I invite the committee to reject the amendment.

Dean Lockhart’s amendment 191 would have a detrimental effect on the statutory consultation provision. It would remove, for example, the requirement to send copies of consultations to those being consulted; it would remove the requirement

“to have regard to any representations”

that they make. However, it would replace that with the requirement that ministers disclose their “relevant legal advice” to an uncertain end. The amendment should be rejected for that reason alone, because it would wreck entirely the proportionate processes set out in the bill for consulting on the instruments with the most significant policy implications and it would result in less scrutiny and consultation.

I find myself in the position of accepting two other amendments from Tavish Scott, amendments 46 and 47, to add the reasons for considering that the necessity test applies to a proposed exercise of the section 11 power to matters on which statutory consultation is required as part of the enhanced procedure.

However, I am not clear about the purpose of Tavish Scott’s amendment 53 on the fees and charges scrutiny procedures, and I am very doubtful about its effect. It would add a reference to sections 11 to 13 to section 19, but the regulations under section 19 would not be made under those sections, which would lead to a circle of confusion. I invite members not to support the amendment.

I think that I have made it clear that there are amendments that can be accepted, and there are areas in which we want to do more work with members to lodge amendments, but there are areas, regrettably, in which the effect of the amendments would be massively detrimental to the bill. We have indicated strongly how we are trying to move to match the requirements that members of this committee and others are bringing, but there are some areas in which, if we were to move in that direction, the bill could not operate at all.

Jackson Carlaw (Eastwood) (Con)

I realise that there is a desire to move matters forward, so I will speak slightly more briefly to my amendments than I might have anticipated doing. When I came to Parliament this morning, the first thing that I was confronted with was a message in my inbox from a group called praying for politicians, who told me, “Today we include prayers for Jackson Carlaw MSP.” The group prays for five politicians each day. I do not know whether they followed last night’s proceedings or they saw what today’s proceedings were to be and thought that a little bit of spiritual oomph might help to persuade the more silently engaged members of the committee, whom I failed to persuade yesterday to exercise their endeavour in consideration of my amendments, to participate.

This is an unusual situation, because I think that it is the first time that the minister has demolished my amendments before I have had an opportunity to speak to them. I noticed, to paraphrase that well-worn phrase, that my amendments were, in his opinion, too wee, too small and too stupid to make the enhanced affirmative procedure work, but nonetheless I feel that it is appropriate to push forward with the amendments, at least in a restricted form.

The amendments would provide greater scrutiny for ministers’ new powers, by making all regulations subject to the affirmative procedure. Amendments 178 and 179 should, of course, be read alongside one another. Sections 11(1), 12 and 13(1) give ministers power to make provision consistent with EU legislation. Section 14 sets out how that is to be scrutinised. As drafted, the bill breaks regulations into two categories. There are some specific instances, set out in section 14(2), where the affirmative procedure is required, and everything else in section 14(3) is negative only. Section 14(5) sets out some further conditions for some, and only some, of the regulations covered in section 14(2). By removing section 14(3), there is provision only to submit those regulations to the positive procedure, effectively ensuring that the Scottish Parliament must vote on any regulations created under sections 11(1), 12 and 13(1).

The Law Society of Scotland agrees with the need for ministers to consult before using those powers. The society’s comment on section 15 in its response to the Scottish Parliament’s Finance and Constitution Committee states:

“We agree with the general proposition that Scottish Ministers should consult with interested parties before making regulations under section 14(5). However Scottish Ministers must ensure that there is adequate time to consider such draft regulations.”

If there is general agreement that consultation and scrutiny are good things, why not expand their application? It is difficult to see why the three basic provisions in paragraphs (a), (b) and (c) of section 14(2) are covered by the need to bring changes before Parliament under section 14(5), but not the subsequent provisions in paragraphs (d), (e), (f) and (g).

My amendments would increase the role of Parliament in scrutinising regulations and would increase the power that we have to hold ministers to account and to choose what regulations are appropriate after we leave the EU. That is clearly a different accountability regime from that which is in the European Union (Withdrawal) Bill. I think that that is appropriate, as we are a unicameral Parliament, and the procedures for scrutinising secondary legislation are accordingly less robust. The amendments would ensure that the Parliament was properly accoutred to undertake the task in hand.

The only final comment that I would make is that, having spoken on health in the Parliament for many years, I am familiar with repetitive strain injury, so I would very much encourage members of the committee, when considering my amendments, to consider using their alternative arm for the rest of the business in hand this afternoon and this evening, just in order to save the damaged limbs that have had so much work to do in putting down so many of the well-considered amendments that I have been happy to speak to.

Tavish Scott

I am slightly puzzled by that last reference, but I am not going to go there, convener.

I take the minister’s point that he is alive to the purpose of amendments 41 and 43. I appreciate that. My principle, as the minister will well understand—and I appreciate that colleagues are heartily sick of hearing this argument now—is that none of the keeping-pace powers should be exercised by a negative instrument, but they should all undergo the enhanced affirmative procedure, and this committee could add requirements to the bill to ensure that those orders cannot be made that would cause difficulty elsewhere. That is the purpose behind amendments 41 and 43, and I welcome further consideration of them.

If amendment 44 is agreed to, it will not be possible for ministers to avoid the super-affirmative procedure for the exercise of powers in section 13, which is the section of the bill that most concerns many of us. Subsections (7) to (9) of section 14 offer ministers various ways to avoid super-affirmative scrutiny; amendment 44 would prevent such short cuts from being available to ministers for any of the keeping-pace powers that they seek in section 13. I hope that members will consider amendment 44 in that light. It has been strongly argued that section 13 is an unsatisfactory vehicle for keeping-pace powers, but at least amendment 44 would preserve the super-affirmative procedure for changes to law.

I listened to the minister’s comments about amendment 45. I think that he protesteth too much. He talked about bureaucracy, and I take the point that most of us do not want to be here—from first principles—but I think that it is possible for the different Administrations and Governments of these nations to agree what is and is not subject to consultation. I do not quite see in amendment 45 cause for the minister’s dire protestations of gloom.

I am grateful to the minister for his consideration of amendments 46 and 47.

As I read it, amendment 53 would ensure that section 13 orders, which are my principal concern, as I hope that the minister accepts, would always be subject to the affirmative procedure. That is the purpose behind amendment 53, but if I have drafted the amendment in a way that has consequences that are unbeknown to me, I accept the minister’s criticism.

Donald Cameron

I intend to move amendment 183. It is important that the explanation to which section 14(8) refers should be given to the Scottish Parliament rather than the Presiding Officer. The primacy of this Parliament is important, and for that reason the approach in amendment 183 is useful.

I note the minister’s assurances in relation to the sentiment, if not the form, of amendments 184 and 185, and for that reason I will not move those amendments when the time comes.

Neil Bibby

We have established that the bill grants significant Scottish statutory instrument making powers to the Scottish ministers. The bill provides that

“regulations under section 11(1), 12 or 13(1) containing provision falling within subsection (2)(a), (b) or (c)”

of section 14 cannot be laid before the Scottish Parliament unless there has been consultation, in accordance with section 15.

Amendment 188, in my name, would require the Scottish ministers to consult “appropriate persons”, rather than

“such persons as they consider appropriate”,

as is provided for in section 15. There is a difference. It should not be for the Scottish Government alone to decide who it is appropriate to consult on a draft SSI under the bill. I hope that members will support amendment 188.

I support a number of other amendments in the group. I associate myself with James Kelly’s comments in that regard, particularly on the amendments that will enhance parliamentary scrutiny and accountability.

Dean Lockhart

Amendment 191 would improve parliamentary scrutiny. I note the overlap with other amendments that members have lodged, including the minister’s proposal. Amendment 191 would amend section 15, requiring ministers to provide the Parliament with additional information and documentation, setting out

“material relevant to the Parliament’s consideration of the regulations”,

which would include “relevant legal advice” and

“an explanation of how the proposed regulations amend existing law”.

As I said, amendment 191 should be read with other amendments. The purpose of lodging it was to increase parliamentary scrutiny.

19:00  



Patrick Harvie

I welcome the fact that the minister supports amendments 46 and 47. That is very positive. I am grateful that a proposal has been made on the question of instruments being laid during recess, but my initial reaction on reading the amendments in question was, “Something needs to be done, but is this it?” I am pleased that the minister appears to have made a fairly clear commitment that he will put forward an alternative approach to address that issue at stage 3.

In relation to the group as a whole, my instinct is often to seek to increase the level of scrutiny to which statutory instruments are subject, but we need to balance the natural instinct of Parliament to want to hold ministers to greater account against the volume of work that Parliament will be asked to do over the coming period. Although I might have been open to supporting some of the other amendments that specify levels of scrutiny of regulations, in the light of the fact that we have already agreed to a sifting process that will allow Parliament to decide for itself what level of scrutiny will be applied and to increase that level of scrutiny, I would like to see the detail of what the Government is willing to agree to in relation to the amendment that has been agreed to. Once we know what changes it wants to make to that, we can perhaps revisit at stage 3 any outstanding concerns to do with the stipulation of specific scrutiny requirements.

I say that on the record in the hope that our Presiding Officer might be minded to select for debate at stage 3 amendments that members think are necessary if, in the light of the discussions on the sifting process, people still want to specify a particular level of scrutiny for particular types of instruments. I think that we should wait to see what form the sifting process ends up taking and what further changes the Government wants to persuade us to make before we reach a final view on specific scrutiny procedures.

I hope that that is clear—it might not be.

Willie Coffey

Despite the entertaining way in which Jackson Carlaw presented amendments 178 and 179, which was designed to lure us into supporting them, I think that, in effect, they would mean that all the regulations would be subject to the super-affirmative procedure, which in my view would make the bill unworkable. A consultation would need to be held on the draft instrument, for which 60 days would have to elapse, as well as the time that it would take to consider all the representations that were made thereafter. Rather than helping the bill, amendments 178 and 179 are intended to make the bill unworkable, so I think that we should not support them.

Adam Tomkins

Contrary to what Mr Coffey said, I do not think that any of the amendments in this group are designed to make the bill inoperable. On the contrary, they are designed to enable, in a unicameral Parliament, effective and robust parliamentary scrutiny.

Subject to that observation, I welcome the generality of the minister’s constructive approach to a number of the amendments in this group, and I have nothing further to add.

The Convener

The question is, that amendment 175 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 175 disagreed to.

Amendment 38 moved—[James Kelly].

The Convener

The question is, that amendment 38 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 38 disagreed to.

Amendment 176 moved—[Jamie Greene]—and agreed to.

The Convener

If amendment 39 is agreed to, I cannot call amendments 177, 178, 40 and 41 because of pre-emption.

Amendment 39 moved—[James Kelly].

The Convener

The question is, that amendment 39 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 39 disagreed to.

Amendment 177 moved—[Michael Russell]—and agreed to.

The Convener

If amendment 178 is agreed to, I cannot call amendment 40 because of pre-emption.

Amendment 178 moved—[Jackson Carlaw].

The Convener

The question is, that amendment 178 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 178 disagreed to.

Amendment 40 moved—[James Kelly].

The Convener

The question is, that amendment 40 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 40 disagreed to.

Amendment 41 moved—[Tavish Scott].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 41 disagreed to.

Amendment 42 moved—[James Kelly].

The Convener

The question is, that amendment 42 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 42 disagreed to.

The Convener

If amendment 179 is agreed to, I cannot call amendment 180, because of pre-emption.

Amendment 179 moved—[Jackson Carlaw].

The Convener

The question is, that amendment 179 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 179 disagreed to.

Amendment 180 moved—[Jamie Greene]—and agreed to.

Amendment 43 moved—[Tavish Scott].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 43 disagreed to.

Amendment 181 moved—[Jamie Greene].

The Convener

The question is, that amendment 181 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 181 disagreed to.

Amendment 182 moved—[Jamie Greene]—and agreed to.

Amendment 183 moved—[Donald Cameron].

The Convener

The question is, that amendment 183 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 183 disagreed to.

Amendment 184 not moved.

Amendment 44 moved—[Tavish Scott].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 44 disagreed to.

Amendment 185 not moved.

The Convener

Amendment 186, in the name of Maurice Golden, is in a group on its own.

Maurice Golden (West Scotland) (Con)

My amendment refers to quarterly reports on the use of power. Members will see the specifics, so there is no need to go through them in detail.

The amendment requires ministers to make regular reports on deficiencies that they have identified and, every quarter, to publish how many there are and how many the Scottish Parliament will be expected to see soon.

This is an instance where deviation from the withdrawal bill is justified by the fact that we are a unicameral chamber. The House of Lords plays a strong role in scrutinising delegated powers, but we have no equivalent, so it is important that good processes are in place so that there is transparency and clarity about the scale of deficiencies and that ministerial action is taken to address them.

Amendment 186 is in keeping with a previous amendment to section 7, on the challenges to validity of retained devolved EU law. I therefore urge the committee to look upon amendment 186 favourably.

I move amendment 186.

Neil Bibby

I support Maurice Golden’s amendment. In the circumstances, requiring the Scottish Government to produce a quarterly report in relation to the use of section 11 powers seems neither onerous nor excessive; rather, it seems measured and appropriate. The reports would be useful in reassuring Parliament and the public that the powers that have been granted to ministers, in what I remind the committee is an exceptional piece of legislation, are being used appropriately. I support the amendment.

Patrick Harvie

I have a similar sentiment. I am still slightly amused by the inconsistency with which our Conservative colleagues apply the consistency principle. However, I do not think that the burden of complying with what the amendment proposes sounds particularly onerous, so I see merit in the principle that motivates it. I will be interested to hear the minister’s response. The level of work that would be involved in complying does not seem to me to be intolerable.

19:15  



Michael Russell

A later amendment has essentially the same effect. I tend to favour the later amendment, because it gives the opportunity for some flexibility on the matter.

Maurice Golden slightly misunderstands the role of the committees of the Parliament, particularly that of the Delegated Powers and Law Reform Committee, which will receive the information regularly. The parliamentary authorities will receive the information regularly, and there is already a commitment to an information flow with the parliamentary authorities. If he had worked with the Tory member who lodged the later amendment, it might have been possible to meld what they propose into a general reporting function. I am sorry that that has not happened, but I will not get overexcited about it. If the committee wants to see quarterly reports, so be it.

The resource available to the Government is not unlimited. The Government will be very much under pressure because of the pressures of Brexit. From the Chancellor of the Exchequer’s statement yesterday, we now know that the allocation of funds on Brexit will not be done with any great generosity of spirit. However, in the circumstances, I have more important things to worry me at this stage, so if the committee feels inclined to support amendment 186, we will accept it.

Maurice Golden

Amendment 186 is part of essential scrutiny. Reporting to Parliament is critical. If we had a second or revising chamber, the consistency argument could be applied equally across the legal provisions in the continuity bill and the withdrawal bill. However, as should be apparent to members of the committee and of the Parliament, we have a separate system. Therefore, on occasion, when scrutiny and ministerial accountability have to be considered, we cannot apply exactly the same rationale and process.

I press amendment 186.

Amendment 186 agreed to.

The Convener

The question is, that section 14, as amended, be agreed to. Are we agreed?

Members: No.

The Convener

Conservative members’ opposition is noted.

Section 14, as amended, agreed to.

After section 14

Amendment 187 moved—[Ross Greer].

The Convener

The question is, that amendment 187 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Abstention

McKee, Ivan (Glasgow Provan) (SNP)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 6, Against 0, Abstentions 5.

Amendment 187 agreed to.

Section 15—Consultation on draft proposals

The Convener

If amendment 188 is agreed to, I cannot call amendments 45 and 189.

Amendment 188 moved—[Neil Bibby].

The Convener

The question is, that amendment 188 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 188 disagreed to.

The Convener

If amendment 45 is agreed to, I cannot call amendment 189.

Amendment 45 moved—[Tavish Scott].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Kelly, James (Glasgow) (Lab)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 45 disagreed to.

The Convener

Will Jamie Greene say whether he wishes to move amendment 189?

Jamie Greene

In the light of the minister’s opposition to scrutiny of his new regulatory powers, I will move the amendment.

Amendment 189 moved—[Jamie Greene].

The Convener

The question is, that amendment 189 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Tomkins, Adam (Glasgow) (Con)
Kelly, James (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

McKee, Ivan (Glasgow Provan) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 189 disagreed to.

Amendment 190 moved—[Jamie Greene].

The Convener

The question is, that amendment 190 be agreed to. Are we agreed?

Members: No.

The Convener

Ther