Meeting of the Parliament (Hybrid) 22 December 2020
The bill is an exceptional piece of legislation. It gives the Scottish ministers exceptional powers to keep pace with EU legislation over a period of a decade. Let us be clear: we are talking about laws made by a supranational body of which we will no longer be a member and laws in relation to which we will have had no formal input.
The Finance and Constitution Committee heard evidence that that will result in the Scottish Parliament becoming a passive rule taker of laws that will not be appropriate for the future needs of Scotland. Understandably, that has caused widespread concern among stakeholders. Scottish Conservatives accordingly sought to lodge amendments that would require meaningful stakeholder consultation on the keeping pace powers so that the Scottish ministers could benefit from expert assessment of how any future EU laws might or might not be tailored to the needs of Scotland and receive guidance on which laws should be followed. However, as the legislation currently stands, it will be for the Scottish ministers alone to make that decision on the future needs of Scotland, without the requirement for expert stakeholder input.
The bill also raises much wider questions about the role of the Parliament in a post-Brexit environment. Just a few weeks ago, we had an important debate on that very question. A number of committees looked at the question, and the overwhelming response was that the Parliament and stakeholders should be able to scrutinise decisions on the keeping pace powers—recommendations that committees of this Parliament made very clearly to the Finance and Constitution Committee. In fact, the Delegated Powers and Law Reform Committee went so far as to recommend that primary legislation should be used when significant changes of law and policy were introduced. That was the purpose of a number of the amendments that I lodged today—to give a voice and power to committees of this Parliament. When instruments are lodged by the Scottish ministers that will introduce a significant change of law or a significant change of policy, it is only appropriate that committees have a role in deciding how those instruments should be dealt with—all with the purpose of increasing parliamentary and stakeholder scrutiny. It is a matter of regret, therefore, that the voice of the Parliament’s committees will not be reflected in the bill this evening.
There are other serious concerns about the bill, given the ability of the Scottish ministers to keep pace with some but not all future EU laws. That will result in Scottish firms having to comply with a host of potentially conflicting regulations including devolved law that keeps pace, devolved law that does not keep pace and different regulations in other parts of the UK that no longer follow EU regulations. The Finance and Constitution Committee heard evidence that that will result in Scotland becoming a “regulatory no man’s land”, with the inevitable consequence that the expense and complexity of doing business here will increase, as will costs for consumers. It will also cause distortion between Scotland and the rest of the UK internal market, which, as NFU Scotland has made clear on a number of occasions, is by far the biggest market for Scottish produce. All of this at a time when we all know that Scottish firms are struggling to survive under lockdown restrictions.
I will conclude, because it has been quite a long afternoon. The other fundamental flaw in the legislation is the fact that it will not achieve its stated objective of keeping Scotland aligned with EU regulations, which the cabinet secretary has said all along is the overall policy intention. The Faculty of Advocates has made it clear that
“the Scottish Government will not be able to ‘keep pace’ in areas of EU law which depend on reciprocal arrangements between Member States.”
Commenting on the proposed legislation, EU officials have been reported as saying:
“This legislation could create a difficult position for Scotland and wouldn’t be effective. Many regulations which are passed by the EU will be difficult to implement and will not apply to Scotland.”
There we have it, Presiding Officer—what we have before us is bad legislation. There could have been consensus on the way forward in a post-Brexit environment. We could have had a bill that allowed ministers to make minor, technical, non-substantial adjustments to existing legislation through the use of secondary legislation. Instead, we have a bill that will turn this Parliament and stakeholders in Scotland into passive rule takers. For all those reasons, Parliament should reject the bill at decision time.