Meeting of the Parliament

Meeting date: Thursday, June 8, 2023

Official Report 1187KB pdf

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Retained EU Law (Revocation and Reform) Bill

The next item of business is a debate on motion S6M-09375, in the name of Angus Robertson, on the Retained EU Law (Revocation and Reform) Bill, which is United Kingdom legislation. I invite members who wish to participate to press their request-to-speak buttons now or as soon as possible.

14:23  

Seven years ago this month, the referendum campaign on the United Kingdom’s membership of the European Union was reaching its final stages. The result of that referendum was a clear and overwhelming vote for remain in Scotland. As we all know, that result and the wishes of the people who live here were ignored by the Conservative Government at Westminster.

To make matters worse, the Tories not only took Scotland out of the European Union but decided to impose a hard Brexit, removing us from the European single market, which is by population seven times the size of the United Kingdom; taking us out of the customs union; and putting an end to the freedom of movement that was of such value, in so many ways, to our country.

It is with some sadness that we now see Labour supporting that hard Brexit position. However, I hope that, in today’s debate, we can reach a measure of consensus that we will do what we can to protect our Parliament and make it clear that we reject a deregulatory agenda that threatens the high standards that we benefited from as an EU member.

The cabinet secretary may be aware that Scotland’s environmental watchdog, Environmental Standards Scotland, has raised concerns about the UK Government’s proposed ditching of national air quality laws, saying that Scotland would have no national programme on long-term air quality targets. Does the cabinet secretary agree that the Tories are now the polluters party? Having scuppered the deposit return scheme this week, they are now cancelling action to protect our lungs as well.

I will give the cabinet secretary the time back for taking that intervention.

I agree with Mark Ruskell that the UK Government is planning to use the schedule to the bill to scrap existing reporting requirements on air pollution. It has agreed to discuss a replacement, but nothing has happened. I am happy to update Mr Ruskell and the Parliament on that issue of concern.

Since the Brexit vote, time and time again, this Parliament has debated legislation that has been prepared by Westminster, only for our views to be overridden. Nine times, Westminster has ignored the views of this Parliament—nine times since 2018. Today, we are again debating the Retained EU Law (Revocation and Reform) Bill. Later this month, I expect to add the bill to that list of Westminster shame. It is not acceptable that seeking the views of this Parliament on devolved matters is optional, or for those views to be ignored.

To illustrate my point, let me describe the ridiculous manner in which the UK Government sought consent for its amendments to the bill. On 10 May, UK ministers tabled amendments to the Government’s original unworkable sunset clauses. That U-turn was, at least, welcome, and I will have more to say about it in a few moments. However, the process of seeking this Parliament’s consent is instructive in what it tells us about the UK Government’s lack of respect for or interest in devolution.

First, it was the view of the Scottish Government that the amendments triggered the requirement for the UK Government to seek legislative consent. Secondly, the UK Government initially did not share that view. Thirdly, however, I then received a letter from Nusrat Ghani, one of the Commons bill ministers, on the afternoon of Friday 19 May, which did indeed seek consent for the latest amendments. However, fourthly, less than eight working hours later, on Monday 22 May, the Lords bill minister, Lord Callanan, said that the UK Government intends to proceed with the bill without the consent of the Senedd or the Scottish Parliament. Clearly, any acknowledgement of due parliamentary process in respect of devolution is performative only.

I turn to the substance of the UK Government’s amendments. It is clear that the UK Government has carried out a major U-turn on the bill, which removes the risk of retained EU law being wholesale or unknowingly removed from the statute book at the end of this year. So why do we continue to recommend that consent be withheld in the supplementary legislative consent memorandum?

Previously, when we debated the bill in the Parliament, I outlined three main objections. The first is that it confers powers on UK ministers to act in areas of devolved responsibility without the consent of Scottish ministers or this Parliament. That is, quite simply, nothing but an assault on devolution. Democratic oversight and good governance are clearly at risk if UK ministers sideline in that way the Scottish ministers, who are accountable to this Parliament. Secondly, the bill risks deregulation and divergence from the high standards that the people and businesses of Scotland experienced and benefited from when the UK was an EU member state. Thirdly, the cliff edge sunset is an irresponsible way to manage the statute book.

The Constitution, Europe, External Affairs and Culture Committee previously highlighted

“deep and wide ranging concerns”

about the bill. Those objections never represented pick and mix optional improvements to the bill. Removing only one of them still leaves a bill that is fundamentally flawed in its design and intention.

I will finish by being crystal clear about the UK Government amendments and our sustained opposition. The UK Government’s U-turn means that only retained EU law that is specified in a new schedule that is attached to the bill will be revoked at the end of this year. There are currently 587 specific instruments in that schedule. All other retained EU law will remain on the statute book and will be subject to future reform by secondary legislation.

Our supplementary legislative consent memorandum indicates that there are 148 instruments listed in the schedule with some devolved provisions. Our assessment is that 139 are obsolete. However, we have concerns about up to nine of the instruments that are due to sunset, because they may not be redundant. Further analysis and consultation on the schedule are under way, although the UK Government is unlikely to alter it before royal assent.

The amendments confer on Scottish ministers the power to remove instruments that are within devolved competence from the application of the schedule up until 31 October 2023. However, UK ministers have such a power in relation to removing any instrument by that same date. How the UK Government intends that to work is far from certain, but we should be absolutely clear that, under the United Kingdom Internal Market Act 2020, where a veto for devolved actions remains in Westminster, the ability of devolved Governments to set their own regulatory standards is constrained.

In November last year, in this chamber, I called on the UK Government to withdraw the bill. I repeated that in February this year, when the Scottish Parliament voted to withhold legislative consent for the bill. I repeat it now. This is a damaging bill in its own right. It is damaging to high standards, damaging to protections and damaging to businesses—but it is also damaging to devolution and to the Scottish Parliament.

I move,

That the Parliament agrees that the UK Government amendments to the Retained EU Law (Revocation and Reform) Bill, tabled in the House of Lords on 10 May 2023, do nothing to alter the view expressed in the Scottish Parliament in its vote on 29 November 2022 calling for the Bill to be withdrawn, or its vote on 23 February 2023 that concluded that the Scottish Parliament should withhold consent for the Bill, and considers that no amendment to this Bill can be viewed in isolation from the risks of the overall Bill, or will be sufficient in removing the dangers attached to it.

I call Clare Adamson to speak on behalf of the Constitution, Europe, External Affairs and Culture Committee.

14:30  

The cabinet secretary has covered much of the background and timescales to the supplementary legislative consent memorandum, so I will focus my remarks on the three areas covered by the Constitution, Europe, External Affairs and Culture Committee’s report: the sunset, revocation schedule and preservation powers; the powers to restate, revoke, replace and update retained EU law; and the reporting requirements.

The removal of the automatic sunset addresses the concerns that we had with regard to the cliff edge of that clause. Instead, only REUL that is specified in schedule 1 now attached to the bill will be revoked at the end of this year. As the cabinet secretary outlined, schedule 1 provides that 587 specific instruments are to be revoked. The Scottish Government suggests that 148 of those instruments impact on devolved areas. As the cabinet secretary also laid out, the Scottish Government has stated that it

“considers that 9 cannot yet be said to be obsolete; and therefore opposes their sunset”.

As convener of the Constitution, Europe, External Affairs and Culture Committee, I have written to the relevant subject committees highlighting the timescales for possible removal of instruments from the schedule. We have noted concerns expressed by Environmental Standards Scotland, which wrote to us on Monday to draw attention to two of the nine instruments, noting that it did so

“based on some of our current analytical work on air quality standards and targets in Scotland”.

We have shared its correspondence with the Net Zero, Energy and Transport Committee.

There is also a wider issue, which concerns the complexity of how devolution is operating outside the EU. The committee considers that the common frameworks are the agreed process by which Governments should work together to provide clarity and certainty in delivering an effective regulatory environment while respecting the devolution settlement.

However, the UK Government does not appear to have consulted the Scottish Government on the amendments that it tabled on 10 May 2023 or to have explained the extent to which they impact on devolved competence. The committee will be writing to Kemi Badenoch, the UK minister in charge of the bill, asking why that appears to be the case, in particular in relation to the instruments in schedule 1 that fall, at least in part, within devolved competence.

The committee has previously found the Sewel convention to be under strain. The cabinet secretary gave examples of how often that has happened since the UK’s departure from the EU. We have previously written to both the Scottish and UK Governments for their views on whether they agree that the Sewel convention is under strain, whether and how it could be strengthened in law and be subject to judicial review and whether and how it could be strengthened on a non-statutory basis.

I turn to the powers to restate, revoke, replace and update REUL. The Scottish Parliament ought to be able to effectively scrutinise the exercise of all legislative powers within devolved competence. The committee considers that to be a fundamental constitutional principle.

There are concurrent powers to amend REUL in the European Union (Withdrawal) Act 2018. In 2018, the then UK Government gave a non-statutory commitment that it would not normally use such powers in areas of devolved competence, and not without the agreement of the relevant devolved Administrations of the UK. The committee will therefore be writing to Ms Badenoch to ask why a similar commitment has not been given on the Retained EU Law (Revocation and Reform) Bill.

We note that there is also a lack of clarity on how common frameworks are operating both generally and in relation to REUL. There needs to be much greater transparency and accountability, and an opportunity for the Scottish Parliament’s committees to scrutinise the decisions of both Governments when they relate to devolved areas. The committee therefore invites the Scottish Government to provide it with a detailed response on the effectiveness of the common frameworks, including how they are being used in relation to REUL, and it extends the same invitation to the UK Government.

My final theme relates to reporting requirements. For Scottish ministers those should, as a minimum, be equivalent to the requirements for UK ministers. Once the requirements are more settled, the committee will invite our officials, and those from the Scottish Government, to look at how they can work in practice. In our opinion, such scrutiny of powers to restate, revoke, replace and update REUL should not be conflated with the Scottish Government’s policy commitment to align with EU law.

I take this opportunity to thank the Scottish Parliament’s officials and those from the Scottish Government for all their work on the supplementary LCM.

Time has not been on our side and, as the cabinet secretary laid out, the timescales on reporting on the LCM have been challenging, but we note the Scottish Government’s commitment to provide further updates as required.

14:37  

I refer members to my entry in the register of members’ interests, in that I am an advocate.

This is the third time that we have debated the Retained EU Law (Revocation and Reform) Bill. The Constitution, Europe, External Affairs and Culture Committee has reported at length on the initial LCM to the bill. However, it is worth noting that, today, the committee unanimously agreed the terms of a report on the supplementary LCM, which the committee’s convener has just spoken about.

Much has changed since this Parliament last debated the matter. The bill returns to the House of Commons on Monday, so it is still not in its final state. However, the UK Government has made meaningful changes to it in response to a number of concerns that were raised by devolved Governments across the United Kingdom, by the civil service and by stakeholders, including those in Scotland, working across many sectors.

In earlier debates, I have set out my personal misgivings about various aspects of the bill, particularly the then concern about timeframes. I am glad that those concerns have now been answered by the removal of the sunset provision. Now, only the retained EU law specified in schedule 1 to the bill will be revoked at the end of the year. That means that the existing corpus of retained EU law will remain and will not be subject to sunset provisions.

Even more than before, that should allow the Scottish Government to follow its stated policy of keeping pace with EU law. Such an approach is enabled, because it can now choose to keep on the statute book any EU laws that it sees fit, whether it be in primary or secondary legislation, without fear of there being a cliff edge whereby that law would have disappeared automatically. That is why it is all the more disappointing that the Scottish Government continues to withhold consent.

The cabinet secretary has argued that he cannot support the supplementary LCM because of the nine instruments in schedule 1 that, in his view, cannot yet be said to be obsolete, such that he opposes their removal. However, on closer scrutiny of that list of nine instruments, I have to say that, although each of them is important, that opposition is not insurmountable.

In addition, the cabinet secretary’s officials made it clear in their evidence to the committee last week that discussions with the UK Government on having those nine instruments removed from the schedule are continuing. There remain two deadlines for doing so: before the bill is given royal assent later this month, and then again by 31 October this year.

I would argue that it is disproportionate to withhold consent for the sake of those nine instruments, whose removal from the schedule might yet be agreed by the Scottish Government and the UK Government before the timelines expire. The Scottish Government, of course, now has the power to do that itself by identifying items to place on the schedule or to remove from it if they fall within devolved competence. I refute the argument that has just been made that that is a threat to the devolution settlement, because the UK Government has, of course, clearly set out that that device is designed to save the Scottish Government time in removing retained EU law that is now obsolete. As we said in our report, that is intended

“to reduce the additional resource pressure that the devolved governments may experience, by enabling the UK Government”

to legislate on behalf of a devolved Government when

“they do not intend to take a different position”.

That is a quote from the UK Government.

As I made clear in my opening statement, the UK Government sought consent on Friday 19 May and, within eight working hours, confirmed that it was going to override that principle. Do Donald Cameron and the Conservative Party in the Scottish Parliament believe that to be credible or acceptable?

I simply point to the evidence that was given by the cabinet secretary’s officials. It was said that both Governments are working towards agreeing the issues around the nine items that are currently in the schedule and that agreement is perfectly possible if the officials who gave evidence to us and UK Government officials can work together to achieve that.

In conclusion, I believe that the dangers of the bill continue to be overplayed by the Scottish Government. The UK Government’s amendments, particularly the removal of the sunset clause and the much narrower planned removal of obsolete instruments set out in schedule 1, mean that the most significant concerns relating to the bill have been removed. As I have said, discussions between the two Governments with regard to the nine instruments are on-going, and there is a real possibility that they could be removed before either of the deadlines that have been mentioned. That is why I believe that the Parliament should give its consent to the supplementary LCM to the amended bill and why we will vote against the motion at decision time.

14:42  

I rise to speak for Scottish Labour in this debate and to support the Scottish Government’s motion in the name of the cabinet secretary to withhold consent to the UK Government’s Retained EU Law (Revocation and Reform) Bill.

I thank the officials from the Constitution, Europe, External Affairs and Culture Committee for their assistance in turning round a report on the issue very quickly.

I suspect that, at decision time, Labour will join every party bar one in the chamber in refusing consent and reaffirming our opposition to the Retained EU Law (Revocation and Reform) Bill. We recognise that there have been amendments, but we also recognise that the amendments that have been made since we last discussed the matter are inadequate. That unity across four of the five parties here as well as across the devolved nations, with the Welsh Government taking the same approach, should encourage reflection on the part of the UK Government and be enough for it to ditch its reckless assault on the environmental, food, health and workers’ rights contained in the bill. However, history tells us how unlikely that is. The approach of UK Government ministers to leaving the EU has been arrogant and disrespectful. They have trashed conventions, ruined governmental relations and tarnished Britain’s reputation on the world stage—and for what?

The disastrous bill carries little confidence given the uncertainty in law that it will generate, and it has already been rejected once by the Scottish Parliament, as well as by the Welsh Senedd. The UK Government’s marching on demonstrates just how out of touch it is.

As the cabinet secretary has said, the amendments from last month were constructed to such a tight timescale that proper scrutiny has been avoided. That re-emphasises our concern about the approach that the bill fosters.

The Labour Party, here and at Westminster, repeatedly called on the UK Government to remove the automatic sunset clause, which would have resulted in hundreds of laws dropping off the statute book at the end of the year. We therefore welcome the significant U-turn, which flips the original approach on its head and assimilates all EU law into domestic law, with the exception of those in schedule 1 to the bill. However, as we have heard, concerns remain.

The cabinet secretary’s evidence to the committee outlined that there are nine areas in which concurrent powers between the Scottish ministers and UK Government ministers could mean that the Scottish Government’s and, indeed, the Scottish Parliament’s aims are frustrated when UK ministers have a different policy objective in those areas. That amounts to the creation of uncertainty and a potential encroachment on devolved competence.

It is essential that we see more co-operative working to ensure that possible areas of disagreement are avoided. When the bill receives royal assent, as it undoubtedly will, we must ensure that there is enough transparency in how it is operated.

Amendments to the bill mean that UK ministers will be expected to present a progress report to MPs every six months. Given the vast broadening of executive power that is contained in the legislation, it would be appropriate for the Scottish Government to follow suit and ensure that we in this Parliament are updated on the actions of Scottish ministers as regularly as possible. I do not believe that the current commitment to do so annually is good enough in an area in which there are likely to be many developments throughout the year. I agree with what the convener has said on that issue. I also acknowledge what the cabinet secretary said to me in the committee in that regard, and I hope that we will see progress on that matter.

Labour will vote to withhold consent to the bill. Pressing ahead is the wrong approach. The bill poses a significant and serious threat to devolution. It will mean large-scale deregulation and a race to the bottom, and its enactment will result in a weakening of rights awarded through 47 years of EU membership.

Businesses, trade unions and campaigners in Scotland and across the UK have called for the bill to be stopped. This Parliament, the Welsh Senedd and many MPs agree. Those warnings must not be ignored, and the bill should be scrapped before it is too late.

14:46  

It is ironic that the House of Lords has been the great defender of democracy, accountability, standards and protections. It has stood firm and resolute against the bill. In response, the UK Government did some serious back-pedalling and watered down the bill and removed the cliff edge.

Reports of the subsequent battle between various groups of Brexiteers in the Conservative Party have been glorious to observe.

“I am not an arsonist, I’m a Conservative”,

claimed Kemi Badenoch, the current Secretary of State for Business and Trade. I presume that the previous holder of that post, Jacob Rees Mogg—I am sure that he was the previous one—was an arsonist.

The Lords defied the Government in the second round of ping-pong and reasserted two amendments—the first looking to provide additional environmental protections and the second seeking to increase parliamentary scrutiny and oversight.

Amendment 48 was a cross-party amendment that was signed by the Liberal Democrat environment spokesperson in the House of Lords, Baroness Parminter. Liberal Democrats voted for that amendment and the Government was defeated. The amendment has ensured that, where ministers seek to use their powers under the bill to restate, revoke or replace the retained EU law that is saved—as it were—by the Government’s amendment to clause 1, the proposed changes cannot reduce levels of environmental protection or of food safety standards. It also ensures that they cannot conflict with relevant international environmental agreements to which the UK is party. That seems to be eminently sensible.

We also supported amendments 2, 15 and 76 in the House of Lords, which would ensure that the Houses of Parliament would have proper scrutiny of any significant change to the law. Furthermore, we joined others to defeat the Government three more times and to impose restraint on the huge powers that Government ministers had given themselves in the bill.

I draw members’ attention to a significant point. Lord Krebs of Wytham, an eminent cross-bencher who was the first chairman of the British Food Standards Agency, led on amendment 48, and said:

“food and environment ... are crucial to the ... Bill, as between them they account for approximately half of the 4,900 regulations … These two areas are also crucial because of public concern. You have to think only of sewage in rivers, outbreaks of food-borne illness or GM foods to realise that these areas—environment and food—resonate with the public.”—[Official Report, House of Lords, 15 May 2023; Vol 830, c 102.]

Unfortunately, the Government was able to overturn all those victories in the House of Commons.

Despite the watering down, the bill itself remains completely unnecessary. It is not required. It threatens environmental protections and it lacks parliamentary oversight.

The Government’s changes have improved matters, but they have not answered all of our concerns, so we will vote with the Scottish Government for the motion at decision time.

14:49  

The Scottish Government’s position on the supplementary legislative consent memorandum should be of no surprise to any member who has read the evidence from the 18 expert witnesses to the Constitution, Europe, External Affairs and Culture Committee. Rarely has such evidence been so overwhelmingly negative, reflecting the astonishing level of opposition to the bill across sectoral and political boundaries. Rarely, too, do we see the kind of sustained and broad criticism of legislation that we have witnessed from peers of all stripes in the House of Lords in their opposition to the bill.

However, I will briefly address issues that members have raised here. First, Clare Adamson, speaking as convener of the Constitution, Europe, External Affairs and Culture Committee, highlighted very real concerns about air quality and targets, which are issues that Mark Ruskell also raised in an intervention. We will, no doubt, come back to the matter. She also highlighted the lack of consultation by the UK Government of the devolved Administrations and asked why that has been the case. I look forward to reading the reply from the UK Government. She asked whether the Sewel convention is under strain, to which the answer is—to put it mildly—yes. That view is shared by the Welsh Government.

I should note—the point was made in passing by Neil Bibby—that two days ago the Welsh Senedd voted on the very same issue of legislative consent in relation to the bill and did as I hope we will do this evening, in refusing consent. We are working extremely closely on the issue with colleagues from another political party that leads the Welsh Government.

I turn to Donald Cameron’s contribution. The Scottish Government is recommending that consent be withheld because of conferral issues, not solely because of the schedule. He should know and understand that, but he did not mention it at all in his contribution. Officials have been told that it is “extremely unlikely”—the word “extremely” is underlined—that the schedule can be altered before royal assent, so meekly allowing the UK Government to press ahead would be a mistake.

I also note that Donald Cameron was not prepared to answer or defend whether it is credible or acceptable for the UK Government to overturn a request for consent with only eight working hours left. It is clearly not credible or acceptable, and we should certainly not allow the UK Government to proceed with that.

I turn to the Opposition political parties that have signalled that they will vote with the Government. First, I express my appreciation to the Scottish Labour Party for having stated its position that it will support the Scottish Government’s motion. Neil Bibby spoke about the “reckless” approach of the UK Government and said that it is trashing conventions, among other things. Many of those issues were also reflected in the speech by Willie Rennie.

I reflect, however, as we move forward, that I often hear from some other parties in the chamber the notion that there is equidistance between the Scottish Government and the UK Government with regard to this issue, the United Kingdom Internal Market Act 2020 and all the rest of it. I hope that the motion makes it absolutely clear that there is zero equidistance whatsoever on the issue. It is the UK Government that is acting recklessly in proceeding with the bill, as it is doing on so much else to do with devolution at present.

The bill that we have been discussing this afternoon is about trying to take back control at Westminster, as if other sources of legislation or legal rules such as the EU or the European Court of Human Rights, or indeed this Parliament, are illegitimate and must be excised. Ironically, however, rather than empowering Westminster, the bill mainly gives powers to UK ministers to legislate, but with only limited parliamentary control. Indeed, if any accepted practice still exists around the Sewel convention, it appears to be that the views of the devolved Governments and legislatures are to be ignored, not respected. That is not how to conduct intergovernmental relations in an orderly way, and it is not how devolution is supposed to work. We have control of our own affairs in name only if the UK Government can ride roughshod over this Parliament’s authority whenever it sees fit to do so.

The concession by the UK Government might remove risks relating to the 2023 sunset cliff edge; however, significant issues remain around consent for UK ministers acting in devolved areas and the impact on Scottish Parliament proceedings. The Scottish Government remains fundamentally opposed to the bill and will continue to press for its withdrawal, which is also the position of the Welsh Government.

That concludes the debate on the Retained EU Law (Revocation and Reform) Bill, which is UK legislation.

Before we move on to the next item of business, there will be a brief pause to allow a changeover of front-bench members.