Twenty years ago today, celebrations were taking place in this city and across the country. The day before—11 September 1997—the people of Scotland had voted overwhelmingly for devolution. They had voted for a different Scotland, served by a restored Scottish Parliament.
The people who were celebrating that day did not represent only one party or one strain of opinion, and the campaign to secure that vote was cross party and of no party. As Scottish National Party chief executive at the time, I worked as one of three campaign directors, alongside my Lib Dem and Labour colleagues. We made common cause with many from outside politics who, for many years, had believed in a better, democratic Scotland.
It is in that spirit that I make this statement today. As with that campaign 20 years ago, this is not a party matter. It concerns all of us who care about the future of this country. Then, we joined hands to try to 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 that was put to the people of Scotland was clear. The UK Government’s white paper, which was published in advance of the 1997 referendum, set out the areas for which it promised that
“the Scottish Parliament will be responsible”.
Those areas 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 that are our responsibility has increased. Initial expansions that gave the 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.
That progressive and dynamic development and expansion of devolution has been good for the Parliament and good for everyone who lives and works in Scotland. It has made a difference to people’s lives.
As the First Minister said yesterday in her speech to mark 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 contribute ideas, widen horizons and make progress for each and every citizen is now under threat.
In the European Union (Withdrawal) Bill, the United Kingdom 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 the referendum 20 years ago—that is, the principle that what is not reserved is devolved.
We do not believe that 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 favoured 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 deregulation at every opportunity. We do not believe that the needs of Scottish families who are in crisis will be better understood by those who have constantly undermined the welfare state.
That is why the legislative consent memorandum that was lodged 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 the Parliament that it should consent to the bill as presently drafted. That is exactly the same position as the Welsh Government has taken, albeit that its procedures are slightly different. The Welsh Government will today lodge its relevant memorandum in the name of Wales’s First Minister.
I will 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, the Department for Environment, Food and Rural Affairs has at present no greater power than the Scottish Government has to act incompatibly with EU law.
The bill would fundamentally alter that position. It would make the UK Parliament and Government the sole successor to the EU, so that all matters that are currently decided co-operatively among 28 EU member states and Governments would be unilaterally decided by only one: the UK Government. The 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 the Scottish Government—indeed, the position of the people of Scotland, as expressed in last year’s referendum—is clear on the matter: we do not want to leave. However, the 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. Brexit will be such a dramatic and damaging upheaval to the UK’s legal systems and to our laws that it is imperative that we do everything that we can to prepare responsibly for the consequences.
Nevertheless, certain choices in the bill, such as ending the effect of the European charter of fundamental rights, will make the 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 from UK Domestic Law and take stock of concerns which are held by many about the potential for erosion of human rights which may occur”.
It is already clear that the Governments of these islands have a lot of work to do to make sure that some stability and continuity can be achieved on exit day, and they will have to work together if that is to be done most effectively. The bill makes that much more difficult, not least because it 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 that are clearly within this Parliament’s responsibility.
I will be entirely clear about this. It is not a logical or essential part of any withdrawal bill to place new limitations 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 the bill does.
Clause 11 contains a new limitation on devolved competence that is of extraordinary scope. While the bill lifts from the UK Government and Parliament the requirement that they are currently under to comply with EU law, clause 11 will impose on the Scottish Parliament a new limitation that will be tied to EU law as it happened to exist at the date of withdrawal. In areas of Scottish devolved responsibility that are vital to our country’s success, such as agriculture, the environment, fisheries, forestry, research and justice co-operation, the Scottish Parliament will have no say over what comes back from the EU on withdrawal or what is done with those important policy areas afterwards.
I will give an example that I have taken directly from the House of Commons briefing paper on the bill, which uses the common agricultural policy to illustrate what that approach would mean for the Scottish Parliament. The paper notes:
“It is an important part of the law on agriculture, a devolved matter, but one which devolved Ministers will not be able to amend ... If the UK left the EU and did not legislate to the contrary, agriculture would fall within the competence of the Scottish Parliament”.
However, the report notes:
“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 past 18 years to meet particular Scottish need, is only one example. Many other areas of present devolved competence would be put beyond this Parliament’s powers, including the high standards of environmental protection that 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 and the recognition of qualifications in our health professions. There is a long list that consists of more than 100 areas in which EU competences intersect with our competences.
The damage caused to the devolution settlement by clause 11 would not end when the process of EU withdrawal ended. As I have indicated, it would permanently change the way in which the Parliament’s legislative competence is assessed. The UK Government also wants the inclusion of clause 11 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.
Last December, we set out in “Scotland’s Place in Europe” our clear acceptance that common approaches to some matters will be needed across the UK when the UK withdraws from the EU, but as we and the Welsh Government have repeatedly made clear, those common approaches, the areas that they cover and the way in which they operate must be agreed and not imposed. With clause 11 in place, agreement could never be reached, since the price that the UK Government demands for an agreement would in effect be the reservation of each matter, which would put it and the terms and operation of any framework beyond this Parliament’s powers.
The UK Government’s approach is not about UK frameworks; it is about UK Government frameworks, which are decided on, operated by and controlled in the UK Government. Returning powers to the Scottish Parliament along the lines of the devolution settlement that is set out in the Scotland Act 1998 would not prevent the agreement of such frameworks. In fact, it would enable that agreement, because mechanisms exist for the two Governments to agree a common or co-ordinated 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 those existing mechanisms are based on the existing and well-understood principles of devolution. Regrettably, the bill’s approach to UK-wide frameworks suggests a fundamental shift in the UK Government’s approach to such relations with the devolved nations. I will again quote from the House of Commons briefing paper on the bill. It warns that, for the devolved nations, Brexit will not bring back control. It says:
“The retention of common frameworks 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 that are set out in the devolution statutes and—incidentally—the strident promises of the leave campaign.
In its recent publication “Securing Wales’ Future”, the Welsh Government made interesting suggestions about decision-making frameworks at the European level. It said that they should replicate the codecision making that presently exists at EU level, with the four nations of the UK being equal partners in the process. We are keen to explore those ideas but, whatever the outcome, there must be a collaborative rather than a divisive approach if there is to be any prospect of success.
The Scottish Government stands ready to negotiate and agree any common approach with the UK Government and the other nations of the UK that proves necessary. Our only condition is that the UK Government must observe constitutional due process and enter into discussions on the basis of respect for the founding principles of devolution, as endorsed by the Scottish people in 1997. Unfortunately, it does not seem to wish to do so.
Equally unfortunately, the bill is problematic in other areas, which must also be changed. For example, it gives UK ministers and Scottish ministers powers—so-called Henry VIII powers—to correct deficiencies in law that are caused by EU withdrawal. Of course, Henry VIII was never a king of Scotland, but he did invade the country in the campaign that is now known as the rough wooing. It might not be entirely unfair to use the same term about the UK Government’s approach now.
The version of those powers that is to be given to the Scottish ministers is limited in its scope and application compared with what is to be given to UK ministers. That is no bad thing in principle, except that an entire category of the laws that the bill covers—directly applicable EU instruments—is given to the UK Government alone to correct. That includes directly applicable EU laws in policy areas that are the Scottish Parliament’s responsibility. That is not just a technical point, because the pieces of legislation in question include significant items. The UK Government would have the unilateral power, by delegated legislation, to change laws in areas of policy that are this Parliament’s responsibility without any reference to this Parliament or to the Scottish Government that is accountable to it. That suggests that not only is the UK Government’s approach to EU withdrawal designed without the appropriate respect for devolution but that it—wittingly or unwittingly—subverts devolution.
The only appropriate way to divide powers between the Governments is this: powers in relation to policy areas that are devolved must be for devolved ministers and devolved legislatures. Thereafter, there will be space, time and, I say, willingness to agree on co-operation over the shared use of powers in a way that respects this Parliament’s responsibility to hold to account those who make decisions in devolved areas.
Our position on those 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 of 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 that the UK Government has taken to the bill is preventing that necessary and essential co-operation and co-ordination.
We agree with Opposition parties that powers that broad will require greater scrutiny from this Parliament. We therefore commit to working with the Parliament and its committees to agree a set of principles and a process that will ensure that the instruments that are made under the bill receive the appropriate scrutiny.
I look forward to the Parliament’s scrutiny of the bill and of the legislative consent memorandum, which the First Minister lodged today. The Finance and Constitution Committee, the Delegated Powers and Law Reform Committee and members across the chamber will have a strong role to play in that, as the bill will affect the powers and policies that we all want to be used to improve our constituents’ lives. I also look forward to giving evidence to those committees and to making sure that the public understand exactly what the proposed EU withdrawal should mean for their Scottish Parliament and—more important—their daily lives from Shetland to Stranraer and from Eoligarry to Eyemouth.
The First Ministers of Scotland and Wales made all that clear to the UK Government when the bill was published, and that built on extensive engagement in 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 European Union 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 those issues and to build a way forward that allows the Scottish and UK 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 the UK Government’s unnecessary policy choices, as set out in the bill, that have hindered progress.
Therefore, the Scottish Government still cannot recommend that Parliament should give consent to the bill, and we have 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—namely, that the UK Government must make the necessary changes to the bill.
The UK Government has contended that its proposals are the only ones that will avoid the chaos that would arise if no frameworks or legislative structures were in place on Brexit day. That will not happen. We will ensure that it 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 considering for the Assembly, the options that are 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 a better way forward is 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 that would, if made, turn the bill into one that we could recommend to the Parliament. Those amendments would remove the unnecessary new limits on devolved competence and rearrange the regulation-making powers so that they properly respected 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 had the appropriate role in holding to account their Governments as they made the required decisions 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.
The issues that I have outlined, which are covered in much more detail in the legislative consent memorandum, are not arcane constitutional points. We are talking about the role and duty of the devolved Parliaments to help to improve the lives of the citizens they serve. We are talking about the difference that this Parliament has made and can make, and a diminution of its ability to do that. The proposals from the UK Government would cut across, impede and diminish what we do, day in and day out, to serve everyone who lives in Scotland. We cannot allow that to happen.
If there are members in the chamber who have influence with the UK Government, I ask them to use that influence to secure the changes that the Scottish Government and the Welsh Government seek. If any members believe that the right approach is to support the UK Government in actions that go directly against 20 years of the settled will of the Scottish people and the effective operation of devolution by all the parties here, let them say it and be judged accordingly. I think that the vast majority of our constituents would find it astonishing if there were any members elected to the 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 that we can speak as one on these matters.