The European (Withdrawal) Bill
Minister for UK Negotiations on Scotland’s Place in Europe, Michael Russell
Statement to Parliament, 12 September 2017
Twenty years ago today, celebrations were taking place in this city and across the country.
The day before - the 11th of September 1997- the people of Scotland had voted overwhelmingly for devolution - for a different Scotland served by a restored Scottish Parliament.
It is in that spirit that I make this statement today.
This concerns all of us who care about the future of this country.
Then we joined hands to try and create a better future for Scotland. Today we must show the same unity in defending the Parliament in which we sit and its role and duty to serve all the people of this country.
In 1997 the proposition put to the people of Scotland was clear. The UK Government’s White Paper, published in advance of the referendum, set out the areas for which, it promised, “the Scottish Parliament will be responsible”. They included law and home affairs; the environment; agriculture, fisheries and forestry; higher education and research.
Since this Parliament was established the range of policy matters which are our responsibility has increased. Initial expansions giving this Parliament greater responsibility for transport were followed by the Calman and Smith processes which expanded our competence - albeit in a limited way - into areas such as taxation and welfare.
This progressive, dynamic development and expansion of devolution has, we believe, been good for this Parliament and good for everyone who lives and works in Scotland. It has made a real difference to people‘s lives
As the First Minister said yesterday in her speech marking two decades since the devolution referendum:
“After devolution we were able to look, not just south, but all around us, to our fellow European nations and to countries across the globe.
"And we could contribute our ideas, learn from others and then put those ideas into practice here in Scotland.
"Far from narrowing our vision, devolution has widened our horizon.”
However, the Scottish Parliament’s ability to do that - to contribute ideas, to widen horizons and to make progress for each and every citizen - is now under threat.
For, Presiding Officer, in the EU Withdrawal Bill, the UK Government proposes that it should, for the first time since 1999, take powers for and to itself in relation to devolved policy areas in Scotland. It proposes to alter, permanently, the fundamental principle of devolution as approved by three quarters of the Scottish people in that referendum 20 years ago - the principle that says that what is not reserved, is devolved.
We do not believe that would be good for the people of Scotland.
We do not believe that the hill farmers of Argyll, in my constituency, would be better served by policy on less favored area support being made in London, where such support will never be needed and where knowledge of its vital nature is scanty or non-existent.
We do not believe that ambitions for cleaner air and a greener Scotland should be undermined by UK Ministers who have very different environmental priorities and who have championed de-regulation at every opportunity.
And we do not believe that the needs of Scottish families in crisis will be better understood by those who have constantly undermined the welfare state.
That is why the legislative consent memorandum, lodged in this Parliament today in the name of the First Minister, indicates that we are not willing to bring forward a legislative consent motion at this time.
We cannot recommend to this Parliament that it consents to the EU Withdrawal Bill as presently drafted and although their procedures are slightly different, that is exactly the same position as the Welsh Government which will today lodge their relevant memorandum in the name of their First Minister.
Let me explain some of the detailed reasons for that stance.
The present constitutional arrangements in the UK mean that all the UK’s legislatures – the UK Parliament just as much as the Scottish Parliament – must act in accordance with EU law.
In relation to agriculture for example, DEFRA has at present no greater power to act incompatibly with EU law than the Scottish Government. The EU (Withdrawal) Bill would fundamentally alter that position. It would make the UK Parliament and Government the sole successor to the EU: all matters currently decided cooperatively among 28 EU Member states and governments will be unilaterally decided by only one: the UK Government. This Bill does not provide for a single new decision-making power for any of the devolved legislatures. Everything goes to London, and it is for London to decide what ultimately happens to those powers.
This is not a debate about whether we should leave the European Union. The position of this government and indeed the position of the people of Scotland expressed in last year’s referendum is clear on that matter. We don’t want to leave. This Bill is not an opportunity to veto Brexit: such a legal power does not exist.
Moreover we have frequently made it clear that despite our wish to maintain EU membership we recognise our obligation to prepare Scotland as best we can for what might transpire. Indeed Brexit is going to be such a dramatic, damaging upheaval to the UK’s legal systems and to our laws that it is imperative that we actually do everything we can to prepare responsibly for the consequences of EU withdrawal.
But certain choices in the Bill – such as ending the effect of the Charter of Fundamental Rights – will make this process even more damaging than it needs to be. The Law Society of Scotland warned last week that the UK Government “should reconsider the removal of the Charter of Fundamental Rights, and take stock of concerns which are held by many about the potential for erosion of human rights which may occur”.
So, it’s already clear that the governments of these islands have a lot of work to do to try to make sure that some stability and some continuity can be achieved on exit day, and they will have to work together if that is to be done most effectively.
This Bill makes that much more difficult not least because the EU Withdrawal Bill appears to represent a deliberate decision by the UK Government to use the process of Brexit as cover for taking powers in areas of policy which are clearly within the responsibility of this Parliament.
Let me be entirely clear about this. It is not a logical, or essential, part of any Withdrawal Bill that new limitations are placed on the Scottish Parliament’s powers, on the National Assembly for Wales’s powers, or on the powers of the Northern Ireland Assembly.
But that is what this Bill does.
Clause 11 of the EU (Withdrawal) Bill contains a new limitation on devolved competence of extraordinary scope. While the Bill lifts from the UK Government and Parliament the requirement they are currently under to comply with EU law, clause 11 would impose on the Scottish Parliament a new limitation, tied to EU law as it happens to exist at the date of withdrawal.
In areas of Scottish devolved responsibility vital to the success of our country, such as agriculture, the environment, fisheries, forestry, research, or justice cooperation, the Scottish Parliament will have no say over what comes back from the EU on withdrawal, or what is done with these important policy areas afterwards.
Let me give an example: one I have taken directly from the House of Commons briefing paper on this Bill. They use the Common Agricultural Policy, CAP, to illustrate what this approach would mean for this Parliament. “It is an important part of the law on agriculture, a devolved matter”, the report notes, “but not one which devolved Ministers will be able to amend.”
It continues: “if the UK left the EU and did not legislate to the contrary, agriculture would fall within the competence of the Scottish Parliament.” But, notes the report, “while this can be changed for England, or for the UK, by the UK Parliament, devolved legislatures and ministers will not have the power to modify the type of EU law that makes up the CAP”.
The system of farming subsidies as it has been developed over the last 18 years to meet particular Scottish need is only one example. There are many other areas of present devolved competence that would be put beyond the powers of this Parliament: the high standards of environmental protection the EU has given us, our approach to food standards, the protection of our unique food and drink products, the operation of family law across national boundaries, the recognition of qualifications in our health professions …it is a long list, consisting of over 100 areas where EU competences intersect with our competences.
Yet, the damage caused to the devolution settlement by clause 11 wouldn’t end when the process of EU withdrawal ends. As I have indicated it would be a permanent change in the way that this Parliament’s legislative competence is assessed.
The UK Government also wants the inclusion of clause 11 in order to ensure that it can impose UK-wide frameworks following Brexit and then, in some cases, trade off Scottish rights, privileges and protections in lowest common denominator trade talks. Agriculture and fishing are particularly at risk from that approach.
Now, last December we set out in Scotland’s Place in Europe, our clear acceptance that there will be the need for some common approaches across the UK to some matters when the UK withdraws from the EU.
But, as we and the Welsh Government have made repeatedly clear, these common approaches - the areas they cover and the way they operate - must be agreed not imposed.
However, with clause 11 in place, agreement could never be reached since the price the UK Government demands for an agreement would be, in each case, the effective reservation of the matter, putting it and the terms and operation of any framework beyond the powers of this Parliament.
The UK Government’s approach isn't about UK frameworks; it is about UK Government frameworks, decided on, operated by and controlled within the UK Government.
But returning powers to the Scottish Parliament along the lines of the devolution settlement set out in the Scotland Act 1998 would not prevent the agreement of such frameworks. In fact it would enable that agreement because there are existing mechanisms for the two governments to agree a common or coordinated approach: for example, legislation in both parliaments or in the UK Parliament, with our consent; memoranda of understanding; concordats and the administrative agreement of common goals.
All of these existing mechanisms are based on the existing, well-understood principles of devolution. Regrettably this Bill, and its approach to UK-wide frameworks, suggests a fundamental shift in the approach of the UK Government to such relations with the devolved nations. Again, let me quote from the House of Commons’ own briefing paper on the Bill. For the devolved nations, it warns, Brexit “will not bring back control”. “The retention of common frameworks”, the report says, “could be seen as an effective centralisation of power”.
Power should be devolved according to the current settlement it should be divided between the Parliaments in accordance with the principles set out in the devolution statutes.
The Welsh Government have made, in their recent publication Securing Wales’s Future, some interesting suggestions about decision-making over frameworks at the European level. These should replicate the co-decision making presently seen at EU level, with the four nations of the UK being equal partners in that process. We are keen to explore those ideas.
But whatever the outcome, there must be a collaborative not a divisive approach to these matters if they are to have any prospect of success.
Presiding Officer, this government stands ready to negotiate and agree any common approach with the UK Government and the other nations of the UK which proves necessary. Our only condition is that the UK Government observes constitutional due process and enters into those discussions on the basis of respect for the founding principles of devolution, as endorsed by the Scottish people in 1997.
Unfortunately, they do not seem to wish to do so. And equally unfortunately, the Bill is also problematic in other areas and these must be changed too.
For example, the Bill gives UK Ministers and Scottish Ministers powers to correct deficiencies in law caused by EU withdrawal – the so-called Henry VIII powers.
The version of these powers given to the Scottish Ministers is, compared with the one given to UK Ministers, limited in its scope and application. This is no bad thing in principle, except that an entire category of the laws covered by the Bill – directly-applicable EU instruments – are given to the UK Government alone to correct. This includes directly applicable EU laws in policy areas which are the responsibility of this Parliament.
Now that’s not just a technical point; these pieces of legislation include significant items. This means that the UK Government would have the unilateral power, by delegated legislation, to change laws in areas of policy which are the responsibility of this Parliament without any reference either to this Parliament or to the Scottish Government which is accountable to it.
This suggests an approach to EU withdrawal designed not only without the appropriate respect for devolution, but one which wittingly or unwittingly subverts it.
The only appropriate way to divide powers between the governments is this: powers in relation to policy areas which are devolved must be for devolved ministers and devolved legislatures. Thereafter there will be space, time and willingness to agree cooperation over the shared use of these powers in a way which respected the responsibility of this Parliament to hold to account those who make decisions in devolved areas.
Our position on these powers in the Bill is therefore the same as our position on agreeing common approaches across the UK.
We recognise the need for some way of making the current body of EU law workable after Brexit; we have as much an interest in that as the UK government does; we stand ready to use such powers in order, so far as we can, to promote stability following the process of withdrawal; but the approach taken by the U.K. Government to the Bill is preventing this necessary – indeed essential - cooperation and coordination.
Of course, we also agree that powers this broad will require greater scrutiny from this Parliament. We therefore commit to working with this Parliament and with its Committees to agree a set of principles and a process that will ensure that the instruments made under this Bill receive the appropriate scrutiny.
I look forward to this Parliament’s scrutiny of the EU Withdrawal Bill and of the legislative consent memorandum the First Minister lodged with Parliament today. The Finance and Constitution Committee, the Delegated Powers Committee and members across the chamber will have a strong role to play in this, since it will affect the powers and policies we all want to be used to improve the lives of our constituents. I also look forward to giving evidence to these Committees, and to making sure that the public understands exactly what it is proposed EU withdrawal should mean for their Scottish Parliament and - equally importantly - in their daily lives from Shetland to Stranraer and from Eoligarry to Eyemouth.
Presiding Officer, the First Ministers of Scotland and Wales made all of this clear to the UK Government when the Bill was first published and that built on extensive engagement, the two weeks before, when we were finally given an opportunity to see, but not to change, what was proposed.
Thereafter, in our meetings and phone calls with the First Secretary of State, the Secretary of State for Exiting the EU and the Secretary of State for Scotland, the Deputy First Minister and I have explained in detail the consequences of the Bill’s approach for the devolution settlement. We have sought to establish a shared understanding of these issues and to build a way forward that allows both governments to proceed to the essential work of discussing common frameworks and the programme of corrections to our laws that will be necessary. We have explained that it is their unnecessary policy choices, set out in this Bill, that have hindered progress.
Therefore, the Scottish Government still cannot recommend that Parliament gives consent to this Bill and we have now set out the reasons in detail in the legislative consent memorandum.
We have also been clear about what we expect and require the consequence of withholding consent to be: that the UK Government must make the necessary changes to the EU (Withdrawal) Bill.
Of course the U.K. government has contended that their proposals are the only ones that will avoid the chaos which would arise if no frameworks or legislative structures are in place on Brexit day.
That will not happen. We will ensure that does not happen. If the UK Government is not prepared to make the appropriate amendments, this Government will consider, as the Welsh Government has confirmed it is also considering the options available for rapid legislation in this Parliament to allow us to prepare devolved laws for the shock of Brexit.
That route is not our first choice, however, because there is a better way forward still available. As the two First Ministers announced after meeting in Edinburgh last month, the Welsh Government and the Scottish Government will publish a set of suggested amendments to the Bill, which would – if made – turn the Bill into one that we could recommend to the Parliament.
These amendments will remove the unnecessary new limits on devolved competence from the Bill and rearrange the regulation-making powers so that they properly respect the well-established principles of devolution and the scheme in the Scotland Act 1998 and subsequent Scotland Acts, as well as ensuring that the Scottish (and Welsh) Parliaments have the appropriate role in holding to account their governments as they make the decisions required to prepare the UK’s legal systems for EU withdrawal.
We therefore stand ready to work with all Parliamentarians in all the Parliaments to bring forward and seek to have accepted those amendments.
Presiding Officer, the issues I have outlined today and which are given in much more detail in the Legislative Consent Memorandum are not arcane constitutional points.
We are taking about the role and duty of these Parliaments to help improve the life of the citizens they serve. We are talking about the real difference this Parliament has made and can make and a diminution of that ability.
The current proposals from the U.K. Government cut across, and indeed impede and diminish what we do, day in and day out, to serve everyone who lives in Scotland. We cannot allow that to happen.
So, Presiding Officer, if there are members in this Chamber who have influence with the UK Government, I would ask that they use that influence to secure the changes that the Scottish Government and the Welsh Government seek.
If, however, any members believe that the right approach is to support the UK Government in such actions, which go directly against 20 years of the settled will of the Scottish people, and the effective operation of devolution, then let them say it and be judged accordingly.
For, Presiding Officer I think the vast majority of our constituents would find it astonishing if there were any members elected to this Scottish Parliament who, when faced with such a challenge to the principles of devolution and the powers of the Scottish Parliament would not put them, and the people of Scotland, first
Let us therefore hope we can speak as one on these matters.