Just over 18 years ago, on 3 May 2000, this Parliament passed the Abolition of Feudal Tenure etc (Scotland) Bill. The bill was one of the earliest pieces of legislation that we tackled and it brought to an end an 800-year-old system, which had been past its sell-by date for generations.
In the final debate, Jim Wallace commented that the bill showed that Scotland’s new Parliament
“would do things that Westminster would never get around to doing”.—[Official Report, 3 May 2000; c 258.]
A similar sentiment was expressed by other members across the chamber, who pointed out that land reform for Scotland had never been a priority for London.
This Parliament was created to have the time for and the focus and expertise on Scottish issues that Westminster lacked. It has had that. Collectively, Scotland has slowly forgotten the endless occasions, over many years, on which Scottish priorities for legislation were sidelined by Westminster, or Scottish political imperatives were ignored, such as the occasion in January 1986 when the cross-party Gartcosh marchers, who were marching to save the Scottish steel industry, arrived in London to discover that the Prime Minister would not meet them and the official Opposition would not bring their cause to debate in the Commons.
The bad old times returned with a vengeance last week. Despite the fact that this Parliament had voted by 93 to 30 against giving legislative consent to the European Union (Withdrawal) Bill—the first time that such an action has taken place—and despite the vast importance of the withdrawal bill for peace in Northern Ireland, the House of Commons had no time to think about or talk about the devolved nations. Instead, it decided to legislate against the wishes of this Parliament without even a debate—no, that is not completely true; the House of Commons had 19 minutes to spare, but those 19 minutes were taken up in their entirety by a United Kingdom Government minister who has had responsibility for relationships with the devolved nations for less than six months.
So here we are again, faced with one of the key problems that devolution was meant to solve: a dependence on an archaic, out-of-touch Parliament, which is run by a Government that Scotland did not elect and which thinks little of us and cares about us less. It is Westminster groundhog day.
However, the situation is more damaging than before, because now we are in the midst of the worst political and governmental crisis for many generations. Our national wellbeing is threatened by a decision to leave the EU against which Scotland voted decisively. In addition, the UK Government’s flagship withdrawal bill is in a state of utter confusion as it approaches its final stage at Westminster. A Tory civil war rages around it, as it does around the whole disastrous Brexit project, while the threat to jobs, living standards and rights grows more imminent by the day.
What protection does Scotland have in those circumstances? What can we do to deflect, even in part, the chill, hostile winds that blow from Westminster?
The Sewel convention was meant to be a shield in that regard. It was meant to ensure that Scotland could not be ignored and that the concerns of this Parliament would be heeded in the developing process of devolution. However, last week that, too, was a victim of Tory insularity and arrogance.
In a sense, that is not surprising. A UK Government that is prepared to sacrifice prosperity, security and its standing in the world in order to satisfy a small, extreme group of its own back benchers was always likely to regard the interests of Scotland, Wales and Northern Ireland as expendable, too.
The wellbeing of Scotland might mean nothing to Westminster, but it should be our central and overriding concern. This Scottish Government will do everything in its power to protect that wellbeing and to promote the rights and interests of everyone who lives here. We are not going to allow the process of devolution to go backwards. We are not going to have our country ignored and our rights trampled at Westminster’s whim—not now and not ever.
Let me turn to the withdrawal bill and the Sewel convention. Two distinct but connected issues face us as we consider the matter. First, the withdrawal bill still contains unacceptable provisions, which would allow the UK ministers to change, by order, the powers that are available to the Scottish people in this Parliament, without this Parliament’s—and Scotland’s—agreement. That breaches constitutional principles that are reflected in the procedures under sections 30 and 63 of the Scotland Act 1998.
The second issue is that the UK Government is ignoring the vote of this Parliament to refuse legislative consent to the bill—in direct breach, we believe, of the Sewel convention. That convention is there to prevent Westminster from legislating without our consent in areas that are within our competence, or from changing our powers, which is essential to the security and stability of devolution. The convention has never been breached before—but now it has.
However, the matter is even worse than that, because, in his statement on Thursday, the Secretary of State for Scotland turned the convention on its head. He now says that
“the devolution settlements ... explicitly provide that in situations of disagreement the UK Parliament may be required to legislate without the consent of devolved legislatures”.—[Official Report, House of Commons, 14 June 2018; Vol 642, c 1122.]
That is not so. The whole point of the Sewel convention is actually the opposite: it is there so that, in cases of disagreement, the UK Parliament will not legislate without the consent of the devolved legislature. It does not—or, at least until the Mundell proclamation on Thursday, it did not—mean that Sewel is actually there to enable this Parliament to be overruled the moment that it dissents from a Westminster diktat.
Of course, the Secretary of State is right to say that the convention is not absolute. It says that Westminster will “not normally” legislate in such matters without our consent. “Not normally” has not been defined, but has been understood to mean extreme circumstances that would be clear and obvious to all. However, the current UK Government is changing that definition, too. Now it means whenever it wants to get its way on whatever subject it chooses—nothing more or less. “Normal” is what the UK Government says it is, and disagreement with the UK Government is “not normal”. That is not how devolution was designed, or how it is meant to operate.
Clearly, we now need to revisit, with urgency, how Sewel is defined and operated. We need to do so quickly, too. A number of Westminster bills are coming up—on trade, fishing, agriculture and the withdrawal agreement itself—that will require consent. We cannot have a repeat of last week. We will therefore seek urgent discussions with the UK Government, first of all on how to protect Sewel before introducing any other legislative consent motions to this chamber.
Of course, when the Scotland Act 2016 was going through the UK Parliament, we argued that the references in it to the Sewel convention would be nothing more than a convenient fig leaf—and so it has proved. At that time, we proposed a set of provisions that would have put Sewel on a stronger, statutory footing. Crucially, those provisions would have required the UK Government to consult with the Scottish Government on any bills that required consent in advance of their introduction. They would have provided a proper statutory footing for the Sewel convention, as recommended by the Smith commission, by setting out the requirements of the convention, in full, on the face of the Scotland Act 2016. Such provisions would have protected the role of this Parliament in the laws for which it is responsible—not confused it, as the UK Government’s preferred provisions clearly have now done. They would have also strengthened intergovernmental working. It is therefore time to look again at how we can embed the requirement for the Scottish Parliament’s consent in law. If legislation at Westminster is required to give the people of Scotland the assurance that they need on that, we would expect—and demand—that that would swiftly follow.
While we are at it, we must also look at new robust intergovernmental processes—for example, by placing the joint ministerial committee structure in agreed legislation, with enforceable rules, including rules on dispute resolution. The whole of the Scottish Parliament should be involved in advancing that process, and—as ever—I would welcome input from across the chamber. I have asked the other parties to meet me to discuss the matter at an early date, and it would be good if we could find an opportunity for an initial debate before the recess, seeking views from all sides. I would like to think that protecting this Parliament, and how it works for our constituents, would be an obligation for us all, and that we could find a constructive and collective way to demonstrate that.
Finally, let me turn to the broader negotiations for EU withdrawal and the issues that arise from it, some of which require urgent action. With every week that passes, evidence accumulates to support our position that continued EU membership is by far the best option, and that, at a minimum, Scotland—and preferably the UK as a whole—should remain a member of the European single market and the customs union. Our analysis that was published earlier this year estimated that leaving the EU could result in a hit to Scotland’s gross domestic product of up to 8.5 per cent, which is equivalent to a loss of up to £2,300 per year for each person in Scotland by 2030. Despite that evidence, the UK Government has not yet listened to us, or to its own analysis, or even to anyone with any knowledge of the matter. To make matters even worse, the UK Government seems determined to pursue wholly unrealistic negotiating positions, wasting precious months in the process of doing so. Indeed, so serious is the situation now that, at the weekend, one EU official was quoted by an Irish journalist as saying that the talks were heading for a “cataclysmic” outcome.
While we continue to make representations to the UK Government and seek to take us off the damaging course of a hard and unnecessary Brexit, the Scottish Government is intensifying its preparations for all exit possibilities in order to support the Scottish economy and our key sectors in what are and will continue to be very uncertain times.
The Parliament, too, will now have to step up its focus on the technicalities of withdrawal. We owe that to the many people in sectors such as agriculture, business and the third sector who need information to plan for the future and who have had no information from the UK Government over the past two years.
Of course, the Scottish Government will never bring to the Parliament recommendations that would restrain its competence and reduce its ability to serve the people of Scotland, but we need to press on with identifying and drafting the measures that are required to bring at least a degree of legislative continuity and certainty in these uncertain times. We will therefore provide the Parliament with the initial detail of the required secondary legislation at an early stage in the new session, and I expect that the intensive legislative process that will follow will get under way shortly thereafter. We will give the maximum possible opportunity for proper parliamentary scrutiny of each piece of legislation in line with the arrangements that are being developed by the Parliament and the Government to assist that process, and as outlined and improved during the passage of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.
More widely on the issue of preparation, we have had significant recent contributions to the overall process, such as the agriculture champions’ report on the development of a future agriculture strategy, which was published at the end of May, and the report of the round table on environment and climate change, which was published shortly thereafter.
Last week, I announced the funding for a children and young people’s panel on Europe, and on Friday, the Cabinet Secretary for Justice published a further “Scotland’s Place in Europe” paper, “Scotland’s Place in Europe: Security, Judicial Co-operation and Law Enforcement”. Tomorrow, Fergus Ewing will lay out more detail on his post-Brexit plans for agriculture, and in the coming weeks and months we will publish more papers and will invite and propose more involvement across a range of subjects.
It is, of course, very disappointing that the response of the UK Government and the Scottish Tories to the taking of such initiatives by the Scottish Government and the Scottish Parliament, and to the actual votes of this Parliament, has been unhelpful and is now contemptuous. That attitude means that we cannot, and devolution cannot, continue with a business-as-usual approach.
I have indicated some of the changes that are required in this statement; others will come forward in time. What can never be in doubt is that we are all here to protect and serve the best interests of the people of Scotland. Individually and collectively, we take our mandate from them, and we should always act with that—and them—at the forefront of our minds. That is the Scottish Government’s firm intention and it will be our firm intention going forward.