I will begin with the amendments in the group that were lodged by Murdo Fraser and Dean Lockhart. As the committee is, I think, fully aware, the main purpose of the power in part 1 of the bill is to maintain the Scottish ministers’ ability to make subordinate legislation where appropriate in order to keep devolved Scots law aligned with EU law as it develops. It will also allow for the refining and updating of retained EU law as appropriate within devolved competence. That is largely a replacement of the power that we lost at the end of the EU exit transition period.
Section 2 includes certain circumstances in which the power to align cannot be used. The restrictions cover a number of key policy areas, including imposing or increasing taxes, creating “a relevant criminal offence” and establishing a new Scottish public authority. Those aspects are in the bill. To state in the bill that the power in section 1(1) cannot be used to legislate for reserved matters is, at best, redundant and would set an unhelpful legal precedent; at worst, if it seeks to expand on the competence restrictions that are already provided for by the Scotland Act 1998, it is entirely inappropriate.
Section 2(1)(h) prevents the section 1(1) power from modifying the Scotland Act 1998, to reflect the principle that certain matters are of such constitutional significance that changing them using that power would be inappropriate. However, because an act of the Scottish Parliament cannot make provision that relates to reserved matters—as provided for in schedule 5 to the Scotland Act 1998—it is not clear what amendment 29 seeks to achieve.
Amendment 32 is similarly unnecessary or entirely inappropriate. The fiscal framework is an agreement between the Scottish and UK Governments, which determines how the Scottish Government is funded. By mutual agreement between the parties, the agreement will be reviewed after the Scottish Parliament elections in 2021. It does not make any sense to include a provision in the bill that the power under section 1(1) cannot modify that agreement. I am not clear what it is trying to achieve, except to restate the obvious. It follows that attempting to define the agreement in an act of the Scottish Parliament, as amendment 34 seeks to do, should also be resisted.
In relation to amendments 30 and 31, as I said during stage 1, the Scottish Government would always use primary legislation where that is the most appropriate vehicle for legislative proposals. Possible examples might be were the EU to introduce a law in an area in which we had gained new competence or in areas of major innovation. However, the Government remains of the view that flexibility should be maintained, because primary legislation would not necessarily be appropriate in every situation.
As the committee is aware, the bill is intended for circumstances that fall short of justifying primary legislation and it recognises the overall limit of legislative time available to the Parliament to align with EU law that which would previously have been achieved by the European Communities Act 1972. Therefore, the bill provides flexibility, so that the most appropriate legislative vehicle can be used, depending on specific circumstances, while allowing alignment of EU law where that is in the best interests of Scotland. Attempting to limit the scope of the power to exclude “significant new policy proposals” would be neither practical, given the significance of differences involved, nor possible—by definition—in the bill.
The concept and content of retained EU law are already complex. A limitation such as that proposed in those amendments would create further uncertainty and inflexibility in the ability to use the powers. Similar concerns apply to amendment 31, which refers to provision that would constitute a “significant change”.
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There are huge difficulties with the terms in the amendments: “significant new policy proposals”; “new policy” areas; and “significant change to ... policy”. Those terms will all mean different things to different people. Accepting the amendments would undermine the entire purpose of the section 1(1) power, and one wonders whether that is their purpose. Their likely effect would be to proliferate, unnecessarily and disproportionately, the number of bills that would be required to avoid legal risk, with undesirable implications for the resources of the Government and the Parliament.
For all those reasons, and many more, I ask the committee to reject those amendments if they are moved.
I turn to Mr Rumbles’s proposals. The limitations set out in section 2 broadly replicate the restrictions that apply to the power in section 2(2) of the European Communities Act 1972; they also reflect the principle that certain matters are of sufficient importance or constitutional significance that changing them by using the power under section 1 of the bill would be inappropriate. The Government therefore believes that the limitations set out in section 2 comprise a proportionate balance. That is, of course, what we also believed of section 13 of the previous continuity bill.
Although I accept that Mr Rumbles has a long-standing objection to regulation, I know that he has a similar objection to the current continuity bill because he moved an amendment to remove section 13 in its entirety from the original continuity bill. I accept that Mr Rumbles recognises the uncertainty about when the power under section 1(1) would be used. That is an unfortunate consequence of Brexit, which I understood he opposed. However, it is precisely because of that uncertainty that the Government considered that such flexibility in the power is needed, to ensure its workability. In recognition of the width of the power, and where regulations under section 1(1) create or amend a power, the Government is clear that the affirmative scrutiny procedures should apply, as we recognise that the Parliament will want full assurance that legislative sub-delegation is done in an appropriate manner.
In drafting the bill, and particularly in considering appropriate limitations on the use of the power, we gave considerable thought to what was balanced and proportionate. That will be an entirely legitimate debate to continue as the bill goes through the legislative process. The significant additional limitations on the power to align that are proposed in amendment 1 would not help that matter; they would simply restrict it unduly. They would also undermine all our ability to respond effectively and proportionately to the challenge of maintaining the highest standards outside the EU, which I understood to be an objective of the Scottish Liberal Democrats.
The bill provides that the provisions that amendment 1 proposes should be restricted are to be subject to the affirmative procedure, which is balanced and proportionate. That is also the view of the Faculty of Advocates in its response to the call for evidence at stage 1. It said:
“Section 4(2) of the Bill lists a number of purposes for which legislation will require the affirmative procedure. We consider those are appropriately identified as requiring the affirmative procedure because of the importance of the subject-matter. There are no additional categories which suggest themselves as requiring the affirmative procedure.”
I agree with that view and am pleased that it supports the outcome of the considerable thought that went into drafting a balanced and proportionate approach. Amendment 1 fails to recognise that. Alas, Scotland is no longer part of the EU. The amendment completely undermines the purpose of the power to align and risks primary legislation being required for technical matters to ensure that our domestic law can operate effectively.
Amendments 2 to 5 are consequential on amendment 1. I cannot lend any more support to them than I can to amendment 1.
Finally, the amendments in my name are technical ones and have been made at the request of the Equalities and Human Rights Commission. As drafted, section 2(1)(i) of the bill provides that the power to align with EU law cannot be used to
“modify the Equality Act 2006 or the Equality Act 2010.”
Section 2(2) qualifies the limitation on the modification of equalities legislation if
“alternative provision is made in the regulations that is equivalent to the protection being removed or the provision being modified.”
Having section 2(2) apply to the 2006 act is intended to provide that, should provision in that legislation not be reserved, the protection afforded to it by section 2(1) would not prevent the removal of a protection, as long as equivalent alternative provision is made.
However, the Equalities and Human Rights Commission has expressed a desire that section 2(2) should not apply to the Equality Act 2006. The Government does not consider those amendments to be essential. Following discussions with the commission, we are happy to lodge technical amendments to provide that the qualification at section 2(2) of the continuity bill will no longer apply to the 2006 act. If that is agreed to, the result of those amendments will be that the power under section 1(1) cannot be used to modify the 2006 act in any way. I ask the committee to support those technical amendments.