Statement by Scotland’s Brexit Minister on the EU Withdrawal Bill

Below is a statement given by Michael Russell, Scotland’s Minister for UK Negotiations on Scotland’s Place in Europe, on Westminster’s EU (Withdrawal) Bill.

I want to update Parliament on the negotiations that have been taking place between the Scottish Government, the Welsh Government and the UK Government on the issue of the EU Withdrawal Bill.

These have become particularly intense over the past few weeks. The JMC (EN) met on 8th March and the Plenary met on 14 March. I spoke to David Lidington on the phone on 29th March, on 6th April and again last Saturday. I met with David Lidington and Mark Drakeford last Monday and I spoke to Mark Drakeford several times in March, and on Friday and Monday. I also wrote to Mr Lidington on Friday and my officials have been in almost constant contact with Welsh and UK Officials in the last month.

I expect to meet with Mr Lidington and Professor Drakeford again next week.

Accordingly much effort has gone into and will continue to go into seeking and if at all possible achieving an agreed approach to the problems presented for the Devolved Administrations by the EU Withdrawal Bill and the Brexit process.

Whenever this chamber discusses Brexit, we should always of course remember that people in Scotland voted overwhelmingly to remain in the EU.

There were majorities for remain in every single local authority area.

And the Scottish Government remains as committed as ever to EU membership.

Of course this week we have had yet more evidence of the unfolding disaster and confusion that is Brexit.  The Prime Minister’s refusal to countenance continued membership of the Customs Union despite the evidence from her own government of the damage that will cause, is a result of the internal tensions in her own party and has nothing to do with the best interests of any part of the country she is meant to serve.

Terrifyingly, and appallingly, jobs, living standards, even the Good Friday Agreement, are all secondary concerns for the hard Brexiteers who now have the whip-hand in Downing Street and, seemingly , for those Tory Ministers who continually put their jobs before the livelihoods and future of their fellow citizens.

Now many, I know, were strongly of the view that because of our country’s democratic opposition to Brexit, and particularly the hard Brexit currently favoured by the UK Government, this Parliament and this Government would have been entirely justified in taking a political decision to have nothing to do with the EU Withdrawal Bill.

And of course, as I have told Parliament in a previous statement there was no consultation on the content of the bill prior to us seeing it in finished form two weeks before its publication.

Moreover, when we did see the bill, it was clear that what was envisaged was nothing less than a crude power grab on the powers of the Scottish people as exercised by this, their Scottish Parliament.

Yet, however much we disagree with leaving the EU, regrettably legal preparations must be made for EU withdrawal – which is what the withdrawal bill seeks to achieve. Even if at the 11th hour we were able to avoid Brexit, that would still be case.

So the huge, time-consuming task of ensuring the UK’s and Scotland’s statute book can function properly following EU withdrawal, is a necessary one.

And this Scottish Government has risen to that task. Working with others – different political parties, governments of different political persuasions, and communities and interest groups across Scotland – we have all striven to achieve a better, more acceptable, Bill.

Presiding Officer, we have undertaken that work with one absolute red line which is this: all the preparations for Brexit can and must be done in a way that builds on and is consistent with the principles of devolution; principles that were endorsed overwhelmingly by the people of Scotland in the 1997 referendum.

That cannot come as a surprise to anyone. We have repeatedly made this point over many months.

We said it in December 2016 in Scotland’s Place in Europe.

We made the point in private to the UK Government before the EU (Withdrawal) Bill was introduced; and we set it out in detail in September 2017 in the legislative consent memorandum for the Bill.

The Scottish Parliament has, on this issue, spoken as one and its voice has been heard more powerfully because of that unity.

In its interim report on the Bill, the Finance and Constitution Committee unanimously called the approach of the Bill “incompatible with the devolution settlement in Scotland”.

Clause 11, in particular, they warned, would “adversely impact on the intelligibility and integrity of the devolution settlement” and was “a fundamental shift in the structure of devolution in Scotland”.

Presiding Officer,  let me focus on the precise words of the Committee Report for a second.  What does it mean to say that the approach of the UK Government is “incompatible with the devolution settlement”?  It means that clause 11 subverts the principles of that settlement – principles which have given the people of Scotland a stable and effective Parliament for nearly 20 years, supported by all parties in this place, and which have throughout that time secured good government under different administrations, and in response to many political challenges.

Presiding Officer, at the very heart of those Principles is this non- negotiable truth: changes to the devolution settlement require the agreement of the Scottish Parliament.

It is the foundation stone of section 30 of the Scotland Act 1998 itself, under which orders adjusting the list of matters reserved to the UK Parliament must be approved not simply in Westminster but here as well.

Presiding Officer, the Scottish Government intends to protect this essential principle of devolution but before I before I turn to how we will do so I do want to indicate those matters on which we have made negotiating progress – and I am pleased to say there are quite a few of them.

I pay tribute to the work of David Lidington and Mark Drakeford, to our respective officials and to those in this Parliament who have supported and helped the process which has been strengthened by having substantial cross party support.

Mark Drakeford and I, in our conversation yesterday, confirmed that we would continue, going forward, to work together on these and on all the other Brexit issues and concerns we have in common.

Together, with the UK government we are agreed that there is an important and difficult job to be done in preparing our laws for EU withdrawal; and we are agreed that ideally that would be done on a UK-wide basis, through co-operation and collaboration between the governments of these islands.

We are agreed that on leaving the EU, it could make sense for there to be common frameworks applying across the UK in  some areas formerly covered by common EU rules.

Where these frameworks are in Scotland’s interests, the Scottish Government is ready to discuss them.  We have identified 24 areas where we should be able to work together on the basis of consent from all the Governments involved.

The Secretary of State for Scotland has also said, both to the UK Parliament and here, that frameworks should not be imposed on the devolved administrations.

So, these points, taken together, are the principles of devolution were followed the basis of something that this government could consider recommending to Parliament.

But the key sticking point remains, as it always has been,  clause 11 and the insistence of the UK Government on its right to take  control of devolved powers.

Let me set out to Parliament where we are at present on that central issue.

Tomorrow we expect the UK Government to publish further amendments to clause 11.

We have given them serious and respectful consideration but we as a government are absolutely and unanimously clear that we cannot support any proposal that would enable the powers of the Scottish Parliament to be constrained without the agreement of the Scottish Parliament.

And the UK Government’s latest proposals continues to  give Westminster the power to prevent the Scottish Parliament from passing laws in certain devolved policy areas and while we expect the amendments to include the addition of a sunset clause the restrictions on our use of these powers would last for up to seven years.

The UK Government says this ban, or legal constraint, needs to be in place to prevent the Scottish Parliament from  legislating in devolved matters, such as farming or fishing, while framework discussions are taking place.

But it has never proposed, and has indicated it could not accept, such a legal constraint for England. Any constraint placed on the UK Government will, therefore, be purely voluntary.

Given the seemingly endless political uncertainty at Westminster who can say what a future Prime Minister or UK Government will choose to do in the future?

But, during the period of restraint,  the Scottish Parliament will lack the ability to ensure that our laws in these areas – environmental protection for example – can keep pace with EU law. And during that same period, Westminster politicians or those that replace them of whatever political or constitutional hue will have a free hand to pass legislation directly affecting Scotland’s fishing industry, or our farmers, or environment or our public sector procurement rules, or the safe use of chemicals, or food safety – the list is long – while our Parliament’s hands were tied.

It is also worth noting that while discussion and political agreement may have reduced the number of areas that may be subject to such restrictions to 24, under the UK government’s proposals, there will be nothing on the face of the Bill that limits possible restrictions to these areas. Again, we are being asked to simply take that on trust.

How could we recommend giving consent to a bill that would place Scotland in such a vulnerable position in these uncertain political times?

In an effort to allay our concerns, we understand that the UK Government  may also propose a further political commitment to the effect that it will not normally make these regulations without the consent of the Scottish Parliament.  However, this would not form part of any legislative amendment.

And in any event, even if we agreed to this, the terms of the UK Government approach mean that it would still be for the UK government, and ultimately the House of Commons, to determine what is normal and what is not.

It will also be for Westminster to decide whether the Scottish Parliament is acting reasonably on any occasion on which it opts to withhold consent.

In this respect we cannot forget that the UK Government has gone out of its way, during the Brexit, process, to remind people that it can legislate on any matter at any time.

Indeed in relation to the Sewel Convention , the Advocate General told the Supreme Court  “Whether circumstances are ‘normal’ is a quintessential matter of political judgment for the Westminster Parliament.”

So let me cut to chase.

Notwithstanding the more benign language now being used, the effect of the UK Government’s latest proposals remains this: the Scottish Parliament’s powers could be restricted  – for a period of up to seven years  – without its consent.

That is not something the Scottish Government could recommend the Parliament approves.

But there is still a way forward. In fact there are two possible ways forward and I have outlined these to David Lidington. The First Minister has now also outlined them to the Prime Minster

The first is to simply remove clause 11 from the bill.

Both the Scottish and UK Governments could then agree, on equal terms, not to bring forward legislation in devolved policy areas while negotiations on frameworks are taking place.

In fact in that way, the Scottish Government is offering exactly the same “certainty” being offered by the UK Government.

And we could do so, as we have indicated, within a written and signed document which indicates that neither side would unreasonably withhold agreement.

We believe that if such a voluntary agreement is good enough for Westminster, it must be good enough for Holyrood.

This solution would also demonstrate equity of treatment in keeping with repeated assurances made to the people of Scotland during and after the 2014 referendum and as part of the 2016 referendum campaign.

If the UK Government rejects this reasonable proposal there is another possible solution.

We could agree to abide by the present system. In that system any regulations  preventing the Scottish Parliament from legislating in devolved matters for a temporary period of time must only be introduced when that is agreed by the Scottish Parliament.

That means amendments to clause 11 must make it clear that absolute Scottish Parliament consent is required.

There must be no over-ride power for UK ministers in the EU Withdrawal Bill.

That will be consistent with the way other order-making powers are currently exercised and with the devolution settlement and is the proposal we have repeatedly made to the UK government.

Presiding Officer, these are practical, workable solutions to this issue that will ensure the necessary preparations for Brexit can be taken across the UK whilst protecting devolution.

They are both on offer. By continuing to work with the Welsh Government and the UK we can make progress on them. But in the end it will be for this Parliament to make the final decision. It is the Scottish Parliament which will give or withhold legislative consent to the UK EU Withdrawal Bill.

So later this week, following the lodging in Westminster of the UK Government’s proposed amendments, the Scottish Government will lay in Parliament a supplementary legislative consent memorandum.

In it we will spell out in detail  the Scottish Government’s remaining concerns about the Bill and suggest these options as the way forward.

It will express our wish to come to an agreement with the UK Government.

But it will also make it clear that if clause 11 is not removed or if the necessary changes to clause 11 are not made, then we will not recommend that Parliament consents to the EU (Withdrawal) Bill as a whole.

It will also set out our view on other clauses, indicate what we could accept if agreement can be reached and outline how we intend to proceed with the Continuity Bill, which we will defend vigorously in the courts.

And at the end of this process, this Parliament will decide how it wants to proceed.

It will then be for the UK Government and UK Parliament to respond to that decision of this Parliament.

They will have to do so by the Third Reading of the Bill in the Lords; the last opportunity to make any substantive changes to it in Westminster.

That is what is required by our constitution.  No less an authority on the matter than Professor Tomkins has described the Sewel Convention in this chamber as “a binding rule of constitutional behaviour. Breach it”, he warned “and there will be a high political price to pay”.

Indeed, Presiding Officer,

It would be an outrage if the UK Government decided to use what the people of Scotland did not vote for – Brexit – to undermine  what we did vote for: devolution.

The UK Government has no mandate to undermine the powers of the Scottish Parliament.

And, therefore, the Scottish Government will do everything we can to protect the devolution settlement people voted for so overwhelmingly more than 20 years ago.

We want to agree with the UK Government and move this issue on so that we can spend time on the substantive and dangerous challenges which Brexit presents more and more pressingly to this nation.

But we cannot agree at any price. And certainly not at the price of undermining this Parliament and the essential work it does for all the people of Scotland.