Hansard

The United Kingdom Government’s Economic Activity of Public Bodies (Overseas Matters) Bill engages the legislative consent process because it would limit the executive competence of the Scottish ministers in relation to devolved matters.

We must, of course, be mindful of the context in which the bill is being introduced. The Parliament has made its views clear on the terrible situation in Israel and Gaza. However, although that might sharpen the mind in relation to the implications of the bill, it is important that we realise that the bill, and its impact on the Scottish ministers, is of broader application than just in relation to current events. I will therefore focus my remarks on the implications of the bill for devolution and why the Scottish Government does not recommend that the Scottish Parliament agrees to give its consent to the bill.

The bill would apply to all public bodies in Scotland and across the UK, but our consideration today is particularly in respect of its impact on the Scottish ministers, which triggers the need for legislative consent. The bill would limit the executive competence of the Scottish ministers by preventing them from taking moral or political disapproval of any foreign state conduct into account in devolved procurement and investment decisions.

Not only that, but the bill would make it unlawful for the Scottish ministers to publish a statement saying that they intended to take such matters into consideration—or even that they would intend to take such matters into consideration, were it not unlawful to do so. The bill places the policing and enforcement of that into the hands of the UK ministers. The secretary of state is given sweeping powers to compel the Scottish ministers—and other public bodies—to provide information; to issue compliance notices setting out the actions that the Scottish ministers should take or refrain from taking; and to fine the Scottish ministers, subject to interest, should he or she conclude that the terms of a compliance notice had been breached.

Remember that all of that is in relation to decisions that the Scottish ministers may take about otherwise entirely devolved matters. That displays a complete disregard for devolution, for this institution and, frankly, for democracy, limiting as it does the actions of Scotland’s elected Government.

The bill not only potentially prevents the Scottish ministers from taking a decision—now or at some point in the future—in relation to a devolved matter that they consider to be the right decision but prevents them from seeking to advance debate and discourse on the matter. The Scottish ministers would not even be able to publish a statement to say that it is that bill that is preventing them from acting on devolved matters in the way in which they thought was appropriate.

The UK Government argues that it is necessary to include the Scottish ministers in the scope of the bill to mitigate the threat of boycotts, which, it says, undermines UK foreign policy, but what evidence does it have to support such claims? Public procurement is a devolved matter. Our devolved Scottish legislation makes it explicitly clear that goods, services and bidders from a country with which a relevant trade agreement applies are entitled to be treated equally to those of domestic bidders. It makes it explicitly clear that, if a public body in Scotland, including the Scottish ministers, discriminates against a bidder on that basis, that bidder would be entitled to seek remedial action in domestic courts. That means that it is already unlawful for the Scottish ministers, or any public body in Scotland, to operate a blanket boycott policy against such countries. The bill’s provisions are completely unnecessary.

Procurement and investment decisions must always be taken in compliance with international obligations, but that does not mean that they should be taken in an ethical or moral vacuum. It is important that Scotland is able to take a values-based approach to international engagement, as set out in our international strategy and “Scotland’s Vision for Trade”. It would be unacceptable if the bill were to prevent the Parliament, the Scottish Government and Scottish public bodies from doing what is morally right, now and in the future. The bill significantly restricts the Scottish ministers’ ability to take rounded, proportionate decisions about the suitability of individual bidders for public contracts.

Finally, aside from our concerns with the policy content of the bill, we also have concerns about the way in which it is drafted. Clause 14 sets out the relationship between the bill and the Procurement Act 2023. The act will largely apply only to UK, Welsh and Northern Irish bodies. Devolved Scottish bodies will continue to be subject to existing devolved Scottish procurement legislation. However, clause 14 takes a different approach to procurement legislation in Scotland. It confers an enduring delegated power on UK ministers to set out that relationship in secondary legislation. We see no justifiable reason for that difference in approach and no reason why the impact on Scottish devolved legislation should not be subject to the same level of scrutiny as the impact on the UK legislation. I have asked UK ministers to consider amending the bill to address that point, but I understand that they have decided not to agree to that request.

The bill and, in particular, the inclusion of the Scottish ministers within its scope, is an unacceptable restriction of executive competence in relation to devolved matters. The threat of being fined for the Orwellian thought crime of daring to state the simple effect that the law has on the Scottish ministers’ decision making would set a dangerous precedent, and it is all just so unnecessary, given the protections that already exist in relevant international and domestic law.

I ask the Scottish Parliament to withhold its consent to the bill.

I move,

That the Parliament notes the legislative consent memorandum lodged by the Scottish Government on 19 July 2023; agrees not to give consent to the Economic Activity of Public Bodies (Overseas Matters) Bill; believes that the Bill would represent a wholly unnecessary and unwelcome limitation of the Scottish Ministers’ executive competence, and would act to stifle democracy, and calls on the UK Government to amend the Bill to remove the Scottish Ministers from its scope.