Hansard

It is with no small amount of regret and frustration that we find ourselves today considering this motion. Yet again, it appears that the UK Government is willing to play fast and loose with devolution and to pay little heed to the democratic role of this Parliament in scrutinising law made in devolved areas.

The Trade (Australia and New Zealand) Bill would provide UK ministers with a delegated power to legislate directly on devolved matters in Scotland, bypassing the Scottish Parliament and the Scottish ministers entirely. The one thing for which we can be grateful is that, despite its grand-sounding title, the bill has a relatively narrow focus.

Our views on the trade deals that the UK Government has agreed with Australia and with New Zealand are well known. The Scottish Government had no direct role in negotiating the deals and we are concerned about the impact of both agreements, particularly with regard to agri-food. However, that is not today’s focus. The bill is solely about the implementation of the Government procurement chapters of those agreements.

As a result of the agreements, amendments are needed to procurement legislation to extend duties of equal treatment to bidders from Australia and New Zealand and make some minor amendments to procedural rules.

Procurement is, of course, a devolved matter. The UK Government has opted in the bill to confer a power to make those amendments by secondary legislation. That power is drafted too broadly and, of greater concern, would be exercisable concurrently by both UK and Scottish ministers, which means that UK ministers would be able to exercise it in devolved areas without securing the consent of the Scottish ministers.

The bill also allows for the implementation of future amendments to the Australia and New Zealand agreements. That is a curious provision to include when the agreements have only just been reached. The power is expected to be repealed by the UK Government’s Procurement Bill in the coming months.

The Scottish Government’s legislative consent memorandum did not recommend consent to that, and the subsequent report by the Economy and Fair Work Committee, which I thank for its efforts, concluded that there should be a means for the Scottish Parliament to scrutinise regulations laid by the UK Government that fall within devolved competence.

Officials and I have engaged with counterparts in the UK Government over many months in an effort to address those concerns. I met the UK Minister for International Trade in early December and have written to him twice since then. I also met the relevant UK Government minister earlier today.

We have suggested three different ways in which the bill could be appropriately amended. The first option would be to make the provision that is necessary to implement the agreements in the bill, which would allow the Scottish Parliament to consider precisely what it might be consenting to. The second option would be to amend the power so that it is conferred solely on the Scottish ministers in relation to devolved matters. The third option would be to introduce a statutory requirement for UK ministers to secure the consent of the Scottish ministers before exercising the power in relation to devolved matters. Those are entirely reasonable and practical suggestions, which the UK Government has rejected out of hand.

The UK Government’s view, which I do not accept, is that it must maintain a power by secondary legislation to implement international obligations to ensure that they are complied with. However, such a view implies that, of the two Governments, it is the Scottish Government that has difficulty with the rule of international law. I do not think that that is a conclusion that many observers would draw right now. Indeed, the Scottish Government has successfully implemented our international obligations in relation to procurement separately from, and sometimes differently to, the rest of the UK for almost 20 years. At no point has any question mark ever been raised over our compliance with international obligations.