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Meeting of the Parliament

Meeting date: Thursday, November 17, 2022


Brexit (Impact on Devolution)

The Deputy Presiding Officer (Annabelle Ewing)

The next item of business is a debate on motion S6M-06732, in the name of Clare Adamson, on behalf of the Constitution, Europe, External Affairs and Culture Committee, on the impact of Brexit on devolution.


Clare Adamson (Motherwell and Wishaw) (SNP)

First, I thank the committee clerks, our advisers and all those who gave evidence and submissions to our inquiry for their interest and support.

“There shall be a Scottish Parliament.”

Six simple words, but almost exactly 24 years ago, the Scotland Act 1998, the statutory underpinning of our Scottish Parliament, became law. First lines of legislation are seldom memorable, but I would suggest that that was an exception.

The most recent Scotland Act, enacted in 2016, was intended to deliver, in the words of Prime Minister David Cameron,

“one of the most powerful devolved parliaments in the world.”

However, the impact of Brexit, as well as that of United Kingdom legislation following the UK’s withdrawal from the European Union, cannot be overstated. The conventions that underpin devolution are coming under strain—that is the key message from our inquiry.

Our report “The Impact of Brexit on Devolution” was informed by evidence sessions that were themed on legislative consent, which is the means by which a devolved legislature indicates that it is content for the UK Parliament to pass a law on a devolved area; on the UK-EU trade and co-operation agreement, or TCA; on the implementation of the protocol on Ireland/Northern Ireland; on retained EU law, with a bill that is currently passing through the House of Commons; and, of course, on intergovernmental relations—a theme that runs through all those topics.

We chose to focus on three areas—regulatory divergence, the Sewel convention and delegated powers, which my deputy convener will cover in his summing up.

Although technical in nature, our report is about how we legislate and what we regulate. There are implications for our everyday lives, including how we do business, how we protect the environment and how we ensure the safety of both the products on our shelves and the food on our plates.

Our earlier report, which was published in February, highlighted the tension that can exist between open trade and regulatory divergence. In this report, we looked at the extent to which regulatory divergence is limited both within the UK internal market and between the UK internal market and the EU single market. We addressed the possibility of different policy and legislative priorities within the four nations of the UK, and the extent to which devolution needs to evolve to allow for that.

When the UK was a member of the EU, options for divergence within the UK in devolved policy areas within EU competence were minimal. The statutory obligation on the UK was to comply with EU law. Now, of course, that obligation no longer applies, except in the case of Northern Ireland—although the Northern Ireland Protocol Bill, which is currently being passed through the UK Parliament, might change that, too. We should also note that the policy of both the Scottish Government and the Welsh Government is to keep pace with Europe.

A much higher level of regulatory divergence both within the four parts of the UK and between the UK and the EU is now possible. There are, however, commitments to non-regression in environmental standards, labour rights and social responsibility in the TCA, which in that way seeks to establish a level playing field between the EU and the UK on trade and investment.

However, it is important to note that divergence is allowed under the TCA. Professor Catherine Barnard spoke of “active and passive divergences”—the former can arise from a deliberate policy choice and the latter from the fact that the UK no longer needs to follow EU-level decisions. However, our businesses must comply with EU law to be able to sell into Europe, so we do not know the extent to which the non-regression principle and level playing field provisions might limit regulatory divergence.

Willie Rennie (North East Fife) (LD)

I am listening carefully to what the member is saying. Did the committee come up with examples of divergence in practice that are causing harm right now? I cannot find any great examples of that, so the whole exercise seems to be rather futile.

Clare Adamson

I suggest that it is not. The examples were in the evidence that was given to the committee, so I refer him to that evidence. The situation is extremely fast moving and, as we are considering these issues, other things are put on the table, such as the Northern Irish Protocol Bill. Although technical, it lays out the challenges that we might face.

The Northern Irish protocol, which was negotiated within the Brexit settlement, is a further complicating factor. Dr Lisa Claire Whitten said:

“the UK must keep Northern Ireland aligned with any changes made to the EU legal instruments included in the scope of the protocol”—

a process that is described as “dynamic alignment”. To date, it has involved 300 instruments and it suggests that UK-EU divergence will in time lead to divergence between Northern Ireland and the rest of the UK. The fundamental question is the extent to which the devolution settlement can accommodate that divergence. Dr Whitten suggested that the Scottish Government’s commitment to align with EU law where appropriate could mean

“potentially opting into the same divergence trajectory”

as Northern Ireland under the protocol.

John Thompson and Sons, a Belfast-based business, said:

“the challenge for Scotland is, how do you follow”


“regulations when you are under the UK single market rules?”—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 30 June 2022; c 20-21.]

During a visit to Brussels in June, we heard first hand of the EU’s concerns for the integrity of the single market and about whether divergence could impact safeguarding the public in areas such as animal health and food safety.

That brings me to the Retained EU Law (Revocation and Reform) Bill. I will not say too much about it now, given that the committee will take evidence on the legislative consent memorandum next week. However, the Welsh Government has said:

“any proposals to deregulate in a way that could reduce the important social and environmental protections and high product standards that consumers and workers in Wales have come to expect are not acceptable.”

There are clearly substantive differences between the UK Government and the devolved Scottish and Welsh Governments. That raises questions concerning the capacity of the UK to potentially accommodate four different regulatory environments within a cohesive internal market while complying with international agreements; whether existing institutional mechanisms are sufficient to resolve differences or disputes between the four Governments; and how devolution should evolve to address those questions.

I turn to the Sewel convention, which is the mechanism for obtaining the consent of a devolved legislature where the UK Parliament intends to pass primary legislation in a devolved area. The convention established that the UK Parliament would “not?normally” legislate in areas that are devolved without the agreement of the devolved institutions. The Institute for Government observed that, prior to 2018,

“consent had been withheld by one or other of the devolved legislatures on just nine occasions”—

in Scotland’s case, only once—and that

“the UK Parliament had never passed legislation without consent”

when the relevant provisions fell within the scope of Sewel. However, since 2018, six Brexit-related bills have been passed at Westminster without the consent of this Parliament.

Dr Chris McCorkindale, the committee’s adviser, noted that, pre-Brexit, the convention was understood to have

“both a policy and a constitutional arm”

and was respected as a

“constitutional rule that protected devolved autonomy and facilitated shared governance”,

in which any

“decision to withhold consent was the exception rather than the rule”

and against which

“UK legislation in devolved areas would only be made where that legislation was”


“necessary on the part of the UK Government or where it was invited ... by the Scottish Government.”

In Professor Nicola McEwen’s view,

“The paradox of the Sewel convention is that it only functioned as a principle and process that fostered a culture of cooperation so long as its limits were untested.”

The committee believes that there is clearly a need for public debate about the issues, and we have launched a call for evidence to encourage businesses, civic society and the wider public to join that debate. In the meantime, I welcome this afternoon’s debate.

I move,

That the Parliament notes the Constitution, Europe, External Affairs and Culture Committee’s 5th Report, 2022 (Session 6): The Impact of Brexit on Devolution (SP Paper 223).


The Minister for Culture, Europe and International Development and Minister with special responsibility for Refugees from Ukraine (Neil Gray)

The Scottish Government welcomes the committee’s thoughtful, important and unanimous report, and I join the convener, Clare Adamson, in thanking members and the clerks for their work on it.

The report clearly demonstrates that the impact of Brexit on devolution has been entirely negative. In the committee’s words,

“there are fundamental concerns which need to be addressed by the Scottish Parliament in relation to how devolution works outside the EU.”

The causes for the concerns are clear: the Sewel convention has been undermined, the views of this Parliament have been ignored and UK Government ministers have given themselves powers to intrude into devolved matters without a need to and without our consent.

None of this is surprising. After all, the slogan of the Brexit campaign was “take back control”. It was always hard to believe that the UK Government would take back control, following its imagined subservience to the EU, only to share powers and decision making with the devolved Governments. Devolution was always going to suffer from the instinct to hoard power in Whitehall, combined with the continued claim by Westminster of unlimited parliamentary sovereignty.

It is crucial that those consequences of Brexit are widely understood. The Scottish Government therefore fully supports the committee’s recommendation that

“there needs to be a much wider public debate to address the fundamental questions arising from the impact of Brexit on how devolution works.”

In my remarks, I will concentrate on the two areas of particular concern that were identified by the committee: the Sewel convention and UK ministers’ power to act in devolved areas.

First, the report lays out clearly the damage that has been done to the Sewel convention since Brexit. Until the 2016 referendum, the Sewel convention had been observed consistently by UK Governments and Parliaments since 1999. The convention was therefore functioning as intended, protecting the competence of this Parliament and the Scottish Government from unwanted actions by the UK Government in using the still-unlimited powers of Westminster on areas of responsibility that are vested here.

As the report sets out, that has not been the case since 2016. On six occasions, the UK Government has sought the consent of this Parliament and has then ignored our views. On each of those occasions, after this Parliament refused its consent, the UK Government claimed that circumstances were “not normal” so that it could proceed with its preferred route and set aside our inconvenient disagreement.

However, the circumstances of those bills are precisely what the convention was intended to prevent. To take the most prominent and damaging example, the United Kingdom Internal Market Act 2020, which was in no way necessary for the implementation of Brexit, changed the competence of this Parliament—indirectly, through the market access principles, and directly, by reserving subsidy control. Those are exactly the kinds of changes to our competence that the Sewel convention was designed to prevent.

The view of the Scottish Government is that the convention can have no force if it can be—and is—set aside by the UK Government on the ground that it wants to impose its preferred policy approach on the Scottish Parliament against our express wishes. The convention can provide no meaningful protection for this Parliament if, after the Scottish Parliament has made its decision and refused consent, the UK Government can decide retrospectively that circumstances are “not normal”.

Martin Whitfield (South Scotland) (Lab)

Does Neil Gray agree that, although the power does not lie in this place, the need for a legislative consent motion should appear far more fully at the front of a bill at Westminster, so that all members of the Parliament down the road are aware of the need to seek the consent of the devolved authorities?

Neil Gray

Martin Whitfield speaks with some authority, having served in that house “down the road”, and I agree that that would be a very useful measure for bringing to the attention of colleagues down the road the implications of what they are debating and deciding. That would be a novel prospect for colleagues down the road to consider; however, I do not hold my breath for that coming about, given the disrespect shown to this place and to other devolved Governments and Parliaments, particularly since Brexit.

The UK Government has, therefore, downgraded the convention from a constitutional rule, which a convention should be, to an optional process that it might observe if it wishes. We are now faced with the Retained EU Law (Revocation and Reform) Bill, which will repeal important regulations and safeguards that have been built up through 47 years of EU membership. This Parliament has made clear its desire to align with the high standards of the EU, and we have passed our own UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. There must be severe doubts, to say the least, that the UK Government will change its bill to exclude devolved matters, whatever the view of this Parliament or of businesses and people across Scotland.

The process of Brexit has therefore done severe damage to the Sewel convention, as the committee’s report makes clear. However, we should be clear that it is not Brexit itself—disastrous though it is for Scotland—that has enabled that constitutional damage, but the fundamental design of the UK system, which allows the UK Government and Westminster to impose and overrule in such a way.

Willie Rennie

The minister will know that I was a strong supporter of the keeping-pace powers. However, thousands of legal instruments go through Europe on a regular basis. How many have involved keeping pace through the Scottish Parliament’s process?

Neil Gray

Across the Parliament, we want to continue to align with the European Union as closely as possible. Unfortunately, the actions of Westminster have made it very difficult for us to do that in all cases. However, we will always seek to ensure, as far as possible, that we can maintain the high standards of EU regulation—in spite of the fact that we are expecting a bin fire of regulation from Westminster. I hope that Willie Rennie will support that purpose, in spite of the fact that his UK colleagues support Brexit and not returning to the EU yet.

That downgrading of Sewel was a deliberate choice by the UK Government. In the Scotland Act 2016, before Brexit and four Prime Ministers ago, it could have set out binding legal safeguards for Sewel and this Parliament, as was recommended by the Smith commission. It chose not to do so but to enact a far weaker form of safeguard that provides no legal protection at all. Wherever colleagues stand on the question of Scottish independence—and there is a majority for independence in this chamber, as elected by the people of Scotland—that should concern us all.

I am also grateful to the committee for highlighting the growing power of UK ministers to act in devolved areas. The Delegated Powers and Law Reform Committee has also done important work on that subject, and particularly on the UK professional qualifications bill, as is covered in the report.

Like the overwhelming majority of people in Scotland, the Scottish Government opposes Brexit, which has been imposed on us. Given that imposition, practical legislative matters must be addressed. In our approach to Brexit legislation, which we would clearly rather not have, we have accepted that there can be circumstances in which UK-wide or Britain-wide secondary legislation might be the most appropriate way to legislate. That was particularly true when faced with the volume and time constraints of the legislation resulting from Brexit. Pragmatically, we were therefore able to accept concurrent powers in Brexit legislation when those were accompanied by understandings that allowed this Parliament to scrutinise the exercise of those powers.

However, as the report makes clear, such concurrent powers are becoming more and more common in legislative proposals from the UK Government. It is crucial that any such powers have the right statutory protections for the Scottish Government and for this Parliament. Once again, the retained EU law bill will be an important test of the UK Government’s willingness to take account of the views of this Parliament and of the Senedd. The bill contains extensive powers for UK ministers to act in devolved areas without the need for consent. That is completely unacceptable and leaves Sewel in absolute tatters. The best course of action would be to scrap that bill altogether. Failing that, it must be amended to prevent any further undermining of this Parliament.

Back in 2016, the UK Government promised that the powers of this Parliament would be enhanced and expanded because of Brexit. Like all the promises made about leaving the EU, that has proved to be the opposite of the truth. Far from enhancing this Parliament, Brexit has seen the UK Government and Westminster undermine and constrain our powers and responsibilities. The wishes of the people of Scotland have been ignored and Brexit has led to the end of the Sewel convention as a reliable and binding rule of the constitutional order. It has led to UK ministers taking powers to act in devolved areas without consent and has demonstrated that the UK is not a voluntary union of equal partners.

The Scottish Government believes that there must be a wide public debate in Scotland on all those matters and that serious consideration of the best future for our country, including independence, is the only way to overturn the damage of Brexit, the democratic deficit and the undermining of this Parliament by Westminster. We therefore welcome the report and support its recommendations for such a debate.


Maurice Golden (North East Scotland) (Con)

As a member of the Constitution, Europe, External Affairs and Culture Committee, I begin by extending my thanks to the clerks and to all who provided evidence to enable the committee to produce the report “Impact of Brexit on the Devolution Settlement”. As exemplified in the report, the evidence covered a wide range of emerging legislative and constitutional developments brought about by Brexit.

The report and the evidence presented to the committee highlight that the devolution settlement has faced a number of challenges as a result of the UK leaving the EU. As we continue transitioning into a new legislative framework and new constitutional arrangements, it is critical that we keep the devolution settlement central to the decision-making process and continue to develop and evolve it to best reflect the interests of Scotland’s people and its two Governments.

It is clear from the evidence received by the committee that the best way to respect and develop the devolution settlement is through dialogue, consensual working and mutual respect. The Scottish Government must work closely with the UK Government and the UK Government must work closely with the Scottish Government in order to achieve that.

Neil Gray

I welcome Maurice Golden’s comments about the importance of the devolution settlement being respected, but will he advise colleagues how he expects that respect agenda to be continued if Westminster Governments continue to ignore the Scottish Parliament and the Senedd refusing legislative consent in areas of devolved responsibility?

Maurice Golden

I say from personal experience that, when I was chief whip during the Brexit period, my opposite number, Graeme Dey, was regularly briefed by the UK Government and I was kept in the dark. He used to inform me of what legislation was progressing. I think that that shows the respect between the two Governments.

Will the member take an intervention?

Maurice Golden

I need to make some progress.

There have been strains that have tested elements of the devolution settlement. I will take the Sewell convention, which the minister raised, as an example. Since Brexit, its application and interpretation have clearly been tested in a new way. The recent review of intergovernmental relations that was undertaken jointly by the UK Government and the devolved Administrations recognises those challenges.

However, through dialogue and conversation, those strains can be resolved. The introduction of new intergovernmental machinery for engagement is designed to promote collaboration and avoid disagreements. Where disagreements still exist, a new dispute resolution mechanism has been put in place to address them, and a number of the witnesses who provided evidence noted the importance of that new process as a mechanism that could address any future disagreements between Governments.

The SNP has made much of the impact on devolution of the United Kingdom Internal Market Act 2020. However, the UK Government is clear that, through the implementation of that act, it wants to protect the devolution settlement and work with the devolved Administrations on the principles of mutual respect, trust and respect for the reserved powers of each devolved Government.

The SNP claimed that the 2020 act would green-light the UK Government to halt progress in the setting of regulations and standards, but, to date, there has been no rollback on regulations. In fact, in areas such as the environment, the UK is making even firmer commitments than the EU.

Is it fair to say, though, that the European Union sets minimums and that, as a member of the EU, we could expand our environmental targets?

Maurice Golden

The reality is that the UK Government is going further than the EU requires. That is the opposite of what the SNP has suggested. The reality is quite different.

Since Brexit, the Scottish Parliament has received a host of new competences. It will be at the Scottish Government’s discretion to decide how it will deal with retained EU law that is devolved, and where and when it might want to align with EU law. That, in turn, could create regulatory divergence between Scotland and the rest of the UK, but, to date, no major tension has arisen. That might be largely because the Scottish Government has not chosen to align with newly introduced EU law despite it being its stated default policy to do so.

At some point in the future, there will, no doubt, be situations in which constructive dialogue is required. Through existing common frameworks and the introduction of new ones, if required, it will be possible to resolve any tensions within the devolved settlement by managing regulatory divergence on a consensual basis.

The evidence that the committee has heard on the Northern Ireland Protocol Bill highlights a number of challenges regarding the devolution settlement. Again, however, progress is being made on that issue. The Prime Minister’s stated position on the subject is that he wants to find a negotiated settlement with the EU, and he is confident that, with “goodwill and pragmatism”, a breakthrough can happen in negotiations over the protocol. It is clear that it is taking time for Scotland’s two Governments to come to terms with the new constitutional and legislative arrangements that have arisen as a result of Brexit. This is work in progress, but, critically, that work is progressing.

As we move forward, legitimate issues regarding the impact of Brexit on the devolution settlement still exist. Those issues are surmountable, but parties must want to work together to resolve them. The UK Government has a clear incentive to ensure that, as a result of Brexit, the devolution settlement is protected. Can the same be said of the Scottish National Party Government? Its actions and rhetoric regarding Brexit show that it will take every opportunity to sow division for the sake of its own political grandstanding. There is a clear choice for SNP members: they can act in their own political interests and their obsession with separation or they can act in the interests of the Scottish people and engage in the process constructively.


Sarah Boyack (Lothian) (Lab)

I add my thanks to all those who gave evidence to our committee, and I acknowledge the vital work of the committee clerks.

Many of us did not want to be here, in this place, dealing with the consequences of the UK’s departure from the EU. The current workload of the CEEAC Committee demonstrates the on-going fallout, which is the result of actions by the UK Conservative Government. Whether this was done intentionally or by accident, the impact of Brexit on the UK’s constitutional settlement was not taken into account. It was not considered by the UK Government during the Brexit process, nor has it been since. I hope that Maurice Golden’s optimism is informed. It is not what you say; it is what you do.

There were two broad areas in the committee’s inquiry: regulatory divergence and the Sewel convention. There has been some good debate about the Sewel convention this afternoon, which I want to follow up. We also voted unanimously to condemn the measures on the Northern Ireland protocol proposed by the UK Government. That was in June this year, and it was due to our collective concerns about trade, international law and the integrity of the Good Friday agreement. The Northern Ireland Protocol Bill is just one of the pieces of legislation that has been introduced by the Tories at Westminster that challenges not only trade and cohesion but—as Clare Adamson said—our constitutional settlement.

Martin Whitfield

Sarah Boyack mentions the Good Friday agreement. Does she agree that one of its strengths was that it was, in essence, an international agreement, reached with co-operation across a number of countries and interested parties, and that one of the challenges of Brexit is that we now appear to have a wall when it comes to discussing the solutions to our problems with our neighbours?

Sarah Boyack

That is absolutely right. It is incumbent on the Conservative Government to acknowledge and accept that.

That is why we need change. It is a matter of ensuring parliamentary accountability and transparency. I would say to my colleague Martin Whitfield that it is not just people in this Parliament who are concerned. We might consider the work being done by the Delegated Powers and Regulatory Reform Committee of the House of Lords—its secondary legislation scrutiny committee. One of its reports was called “Government by Diktat” and another was called “Democracy Denied?”. There is concern across the UK. Stella Creasy’s powerful speech on the Northern Ireland Protocol Bill in the House of Commons brought the issue to life; the concern is not just among us in this chamber.

Securing unanimity on our committee report tells us something about the cross-party work that we are doing in this Parliament. It is not just about the cross-party work, however; we also need work to be done by the Scottish Government. Willie Rennie’s point was a really important one. At our committee meeting this very morning, we were discussing the need for open and transparent reporting by the Scottish Government on the use of the keeping pace powers—and, critically, on where the keeping pace powers are not being used. That requires work.

I wish to follow up on the comments that colleagues have made about the Sewel convention. Its origins were in the passage of the Labour Government’s Scotland Bill in 1998, when Lord Sewel said that the UK Parliament would not normally legislate on devolved matters without the consent of the Scottish Parliament. It is interesting how successful that has been since 1999—or, actually, since 2018, as the number of occasions on which the Parliament has refused its consent is on the increase.

Previous to that, we had a mechanism for dialogue between the UK and Scottish Governments, at both ministerial and official levels, which enabled shared policy objectives to be achieved as quickly as possible. The work that was done to put the convention into the Parliament’s standing orders in 2005, following the report on the convention by the Procedures Committee, was constructive.

However, as others have said, the evidence is clear. Professor Aileen McHarg pointed out that the Sewel convention

“has been severely tested by the Brexit process and its ongoing legislative aftermath.”

We have had the experience of people working together across parties—the Calman and the Smith commissions changed the powers of the Parliament—but there has been a constitutional failure to respect the devolution settlement after Brexit. Things cannot be allowed to go on as they are. We need action. I was not surprised when the minister said that independence is the only solution, but we all know that independence would be Brexit times 10.

Let us focus on change that we can deliver now that would make a difference. We need to increase transparency and accountability, and not just between the Governments. We need greater transparency to enable our Parliaments in Scotland, Wales, the UK and Northern Ireland to hold our Governments to account. Over the summer, Scottish Labour published a paper that proposed a duty to co-operate, because, increasingly, there are policy areas where we need to work together. For example, we suggested a governance council on energy to enable a joint approach to be taken, encompassing the powers that we have on planning and the reserved powers that relate to the grid, to make sure that we can deliver the low-carbon affordable renewables that we all aspire to have. We should replace the House of Lords with a directly elected senate of the nations and regions.

We need to send a clear message to the Tory Government. The committee’s report was unanimous. The UK Government’s lack of respect is unacceptable and we need urgent action to deliver transparency, accountability and scrutiny. I would like the Scottish Government to do the heavy lifting at the ministerial and Government level. We need to work hard across our committees to hold our Scottish Government and the UK Government to account, to reflect on where we want to align with the EU and to debate those areas in which we do not want to do so.

Our constituents, our businesses and our environmental campaigners need such transparency. Members across the chamber must work to that end and must send a clear message that change is needed—and is needed urgently.


Willie Rennie (North East Fife) (LD)

Clare Adamson probably thought that I was being critical of the committee’s report in my intervention on her—far from it; it was Brexit that I was calling “futile”.

Brexit has also been incredibly damaging. We have seen the facts and the evidence on that that have emerged in the past few months. Europe’s largest stock market is now in Paris, not London, for the first time since records began.

The Centre for European Reform did a study in which it looked at the impact of Brexit on the UK’s economy and compared the UK’s record with the records of similar countries. The conclusion was sobering. In the final quarter of 2021, gross domestic product was 5.2 per cent lower, investment was 13.7 per cent lower and the goods trade was 13.6 per cent lower. Our performance on GDP, investment and the goods trade was worse than it would have been if the UK had remained in the EU.

Mark Carney, the former governor of the Bank of England, said that, in 2016, the size of the British economy was 90 per cent of the size of the German economy. Now, it is less than 70 per cent of the size of the German economy. He went on to say that the devaluation that was associated with that did not bring an upside of more competitive exports. The barriers that we put up at the borders sabotaged any such improvement.

Michael Saunders, who recently left the Bank of England’s monetary policy committee, said:

“The UK economy as a whole has been permanently damaged by Brexit.”

It is interesting that those problems have been created by trade barriers, restrictions on immigration and low confidence, rather than by divergence. Today, we are talking primarily about the consequences of divergence, but my point is that I think that the damage that has been done so far has been done as a result not of divergence, but of all the other factors that I have mentioned.

What is striking about the devolution aspects of the debate is that those do not seem to have moved on in three years. We are still discussing the same issues that we were discussing three years ago and many years before then. We are still at the stage of discussing possibilities rather than firm problems. The words “may”, “looks like” and “could have” are littered throughout the report.

However, the hyperbole—on both sides, I have to say—is as striking as it was three years ago. On the one hand, it is claimed that there are massive ramifications for devolution. On the other hand, it is claimed that Brexit freedoms will free the United Kingdom. Neither of those things has materialised.

Neil Gray

Does Willie Rennie accept that there has been a clear impact on devolution, given the six areas that we have talked about in which legislative consent has been refused by the Scottish Parliament but that the Westminster Government has continued to progress, and the probability of its continuing to do so on the Retained EU Law (Revocation and Reform) Bill?

I can give Willie Rennie the time back.

Willie Rennie

My main point is that we have not really had debates about the substance of divergence. I understand that there are technical issues, and I understand the real problems with the Sewel convention. I get all that. However, the issues around divergence have not materialised in the way that has been claimed. The reasons for that are pretty clear. If we look at the pressures that are being applied to the United Kingdom, we see that they are quite significant.

We have not really had the benefits of the Brexit freedoms. Members should look at what George Eustice said this week when he condemned the Australia deal. There are no massive benefits from Brexit, as was claimed there would be. We have done only three trade deals. One—the TCA—was with Europe, one was with New Zealand and the other one was with Australia. We have not really gained much more. In fact, what we have is, obviously, more restrictive than what we had with Europe, and Australia and New Zealand are hardly models for success. My point is that we have not really benefited from the apparent Brexit freedoms.

We have also not had the degree of divergence that was talked about. When I challenged the minister on how many times the keeping pace powers had been used, he was not really able to say. Thousands of instruments go through the European Commission, and he was unable to say that. We do not really have a worked-out process. I will return to that later on.

I have opposed Brexit. I have been very clear about that. I believe that, in an interconnected world, theoretical independence is a complete folly. Brexit has introduced bureaucratic and physical barriers at ports, which have slowed down and often prevented trade. That is not because of any divergence issue—as far as I can see, divergence has not really happened yet. The reality is that powerful forces drive the United Kingdom, Scotland, Northern Ireland and the EU into alignment, whatever the constitutional arrangement.

The first and most powerful force is the need to trade. The EU is a massive market for the United Kingdom’s goods, and vice versa. Manufacturers are not going to introduce two production lines in order to trade separately, with UK standards and European standards. They will meet the best standards and sell to both. That is pretty clear, and the report highlights that.

The second force is the Northern Ireland dynamic alignment. That means that the UK will be constantly conscious of the regulations as they impact Northern Ireland and therefore as they impact the United Kingdom.

Finally, the non-regression arrangements in the trade and co-operation agreement mean that there is a degree of pragmatic alignment between the EU and the UK.

Those irresistible forces mean that divergence, although theoretically possible, may turn out not to be as traumatic as first feared. I have already highlighted that Brexit is still incredibly damaging, but we have not even got started on divergence, if it ever happens. Equally, the Brexit freedoms are unlikely to be as dynamic and beneficial as first promoted.

That begs the question: why did we bother with all of this? What was the point of Brexit if we are not going to get any of the benefits?

Equally, the argument about using Europe to drive towards independence is folly, because we should not use European issues to drive independence. We should learn the lessons of Brexit, which has already caused chaos in trade and economic damage.

I think that the whole process is futile. It is a fact that we still do not really know—the report highlights this—how much divergence there has been. If we do not know that, does that really affect our daily lives? I am not sure that it does.

I hate politics sometimes, because it is all bloody fabricated. The whole thing is just inflated. The inflated arguments and hyperbole do not really help the argument.

I may need to save you from yourself, Mr Rennie. I would be very grateful if you could begin to wind up.

Willie Rennie

I will conclude.

As members would expect, my answer to all of this is that federalism is the answer. There should be an agreement between the nations and regions of the UK to work together, to continue to push towards alignment with Europe and to ensure that we work together to remove trade barriers so that we can all grow together. For goodness’ sake, let us not go down the path of independence.

Thank you, Mr Rennie. We now move to the open debate.


Jenni Minto (Argyll and Bute) (SNP)

I, too, would like to thank those who took part in our round-table discussions and submitted evidence, the clerks for their diligent work and my fellow committee members for leaving party allegiances at the committee room door to allow us to scrutinise the important subject of the impact of Brexit on devolution. As Sarah Boyack said, we really did not want to be here.

I am going to stray slightly into the committee’s evidence session last week on the Retained EU Law (Revocation and Reform) Bill. I asked about the practical impact of that legislation on the normal person in the street—how would they be affected? Perhaps Mr Rennie would like to listen to what Dr Kirsty Hood KC said. She noted that, over the past 47 years, EU legislation

“has become woven into so much of our law ... It is difficult to imagine a sector or area of the law in which there has not been an impact of some kind. Although that impact might not always be obvious to people during their daily life or daily business”.—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 10 November 2022; c 23.]

I believe that the same can be said for the impact of Brexit on our devolved settlement. Each decision around Brexit is related and each piece of legislation is related, and they have impacted or will impact on our devolution settlement.

As our committee’s convener laid out in her introduction, we gathered evidence on legislative consent, the implementation of the TCA and the Northern Ireland protocol, retained EU law and intergovernmental relationships.

During our evidence session on the TCA, I was struck by a response from Professor Ian Forrester to a question about collaboration and co-ordination between the Parliaments and Governments of the four nations of the UK. He took a slightly different view from that of Maurice Golden when he said that there was perhaps an elephant in the room, suggesting that there is a difficulty in

“the UK Government’s approach to relationships with other countries”,


“hinders the resolution of the daily problems that neighbours have to confront”.—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 26 May 2022; c 24.]

Reading the report and reviewing some of the evidence that we heard, I reflected on the fact that setting the right tone and building constructive relationships—whether between the EU and the UK, or across the devolved nations—is key to making the best of a bad situation. Perhaps we need to confront that elephant in the room. That is true for both economic and political reasons.

Martin Whitfield

I think that a really essential element of this discussion is about relationships. Would Jenni Minto agree that perhaps it is for the Parliaments rather than the Governments to try to build those relationships—in particular, to get over the challenges of legislative consent?

Jenni Minto

Yes. As I said, we have to have stronger relationships not only between Governments but between Parliaments, as I will touch on later.

As our report says, some of our witnesses highlighted the impact on the UK economy of divergence from EU regulatory standards. The?EU?is the largest single market in the world. Data from 2019 shows that the value of Scotland’s manufactured goods exports to the?EU?and the rest of the world was higher than the value of exports to the rest of the United Kingdom. Businesses in Scotland therefore need to be aware of any divergences, as they may in effect stop goods and services getting into the EU market.

Dr Zuleeg told us that

“as long as there is an economic relationship, what is decided in Brussels matters hugely to the UK economy and UK businesses.”—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 26 May 2022; c 10.]

I would argue that, as long as Scotland is part of the UK, what is decided in London matters hugely to the Scottish economy and Scottish businesses.

For example, as Willie Rennie has already mentioned, the UK’s flagship post-Brexit trade deal is not an example of

“global Britain at its best”.

Rather, it is

“not actually a very good deal”,

according to former environment secretary George Eustice. Many of us have known that for a long time. However, now that a former Conservative environment secretary has fessed up, there can be no credible dispute about it. That admission came in a week when the London stock market was eclipsed by Paris as Europe’s largest—that is not the Brexit bonus that the people of Scotland were promised.

In her written evidence, Professor McEwen highlighted the Scottish Government’s “productive relationship” with the Department for Environment, Fisheries and Rural Affairs compared with the more “strained relationship” with the Department for Business, Enterprise and Innovation. I find that inconsistency in the UK Government departments’ relationships with Scotland very concerning. How can that lead to the best decisions being made?

The committee heard that both the Scottish and Welsh Governments have raised concerns in recent legislative consent memorandums about the lack of meaningful engagement prior to the introduction of UK bills. For example, in relation to the Northern Ireland Protocol Bill, the Welsh Senedd notes that the lack of engagement

“plainly breaches the principles in the Intergovernmental Relations Review that sets out how the UK and devolved governments should work with each other.”

The committee took evidence on the operation of the Sewel convention, as was debated earlier. My comment in response to Martin Whitfield’s intervention is that the House of Lords Constitution Committee believes that

“it would be desirable for all efforts to be taken to resolve substantive disagreements”

on legislative consent matters

“before a bill is introduced to Parliament”.

In that committee’s view, that

“could be achieved through the more robust arrangements for joint working (including the new dispute resolution process) agreed as part of the review of intergovernmental relations.”

I began by suggesting that the elephant in the room is the state of relationships between legislators across the UK and the UK Government’s relationship with the European Union. I am pleased that, in its conclusions, the committee has acknowledged that, and has already shared and discussed its report at the recent interparliamentary forum in Cardiff. Importantly, the committee is also extending the discussion more widely and will launch a significant committee inquiry that will allow businesses, civic society and the wider public in Scotland to engage in these very important issues.


Oliver Mundell (Dumfriesshire) (Con)

I would normally start a speech such as this one by saying what a pleasure it is to have the opportunity to speak in the debate, but the hours wasted in the previous parliamentary session listening to Michael Russell ranting about Brexit continue to traumatise me. Never in the history of devolution has so much faux outrage and grievance been shoehorned into the same contribution—and I mean the same contribution, because, as members who were present will know, literally the same speech was delivered under a slightly different debate title on a near-weekly basis.

I make that point for a serious reason, as I believe that it highlights a major missed opportunity for the Parliament and, indeed, the Scottish Government, to influence the detail and practical realities of leaving the EU. Instead of working constructively in Scotland’s interests as part of team UK, the strategy, as is so often the case, was to stoke maximum grievance.

Neil Gray

I find Oliver Mundell’s comments astounding, because I am old enough to remember—and because I sat in the House of Commons at the time—that, when the Scottish Government put forward suggestions of a compromise, they were rejected out of hand by Theresa May. That was right before she set out her statement at Lancaster house—the statement that set out her self-defeating red lines. On what basis can he suggest that the Scottish Government did not approach Brexit from a constructive basis and that it was not simply disrespected by the UK Government?

Oliver Mundell

The Scottish Government’s approach was to block Brexit; it was not about making the best of a situation, albeit I accept that it did not want that situation. The approach was about blocking and disrupting the process throughout, working behind the UK Government’s back with EU politicians and officials, and trying to stoke grievance and promote independence, rather than build consensus in the UK. That is very disappointing, and it is disrespectful to the people of Scotland. We continue to see that approach now, as we seek to build and rebuild trust and improve intergovernmental relations.

The truth is that the same bad-faith actors—albeit minus Michael Russell—retain their seat at the table. Scotland’s interests are represented by a Scottish Government that not only does not want Brexit to work but does not want the UK to work and that is led by a First Minister who does not believe in devolution. All that is against the backdrop of a wider political debate that has been poisoned by a toxic nationalism that tries to tell us that leaving the EU has been disruptive, while simultaneously telling my constituents that border checks on their doorstep would be nothing to worry about.

The same people tell us that the recent financial turmoil could have been avoided, while they promote a half-baked currency plan for an independent Scotland—talk about hypocrisy. [Interruption.] From a sedentary position, and right on cue, some members might be asking why this matters and how this relates to today’s debate. The truth is that it is exactly why the mechanics of our constitution and interparliamentary workings are under strain. I do not deny that Brexit has added to that, but it would be wrong to ignore the far more significant tensions that are at play. My firm view is that they find their root in the uncharitable and undemocratic way in which senior SNP leaders refuse to accept the decision of the 2014 referendum. Rather than our country being set on a course of unity, we have had more division.

Alasdair Allan

I am not sure whether Oliver Mundell intends at any point to turn his attention to the report that we are debating, but does he acknowledge that that report, which we should be talking about, represents the views of not merely politicians but people who gave evidence from organisations such as the Law Society of Scotland and the Hansard Society, who said that a number of the UK Government’s constitutional developments of late represent something that is close to a constitutional crisis?

I can give Oliver Mundell the time back for the intervention.

Oliver Mundell

I do not deny evidence that the committee has received, but our job is to work out how we got to this point and what is causing the problem. We cannot have an environment of meaningful and constructive co-operation when, in the negotiations, one party’s sole aim and reason for existing is to ensure that such discussions do not work.

I recognise that the committee has put in considerable effort to produce the report and identify areas for further exploration, but that does not in itself deliver the political will or the environment to take matters forward. Like other members and—I believe—the vast majority of Scots, I want both of Scotland’s Governments to work together to make the Parliament and devolution work well, but I recognise that some members are more interested in next week’s Supreme Court ruling than in following through on the hard work that it will take to make the report’s recommendations real.

In such an environment, what hope do we have? The saddest thing is that I do not believe that my constituents expect anything to change any time soon, and, while the SNP continues to put its own narrow political interests and its desire to divide our communities first, neither do I.

I call Alasdair Allan, who has a generous six minutes.


Alasdair Allan (Na h-Eileanan an Iar) (SNP)

Like others, I thank all those who made the committee’s report possible, including all my fellow committee members, the clerks and the many experts who gave evidence, as I mentioned. I will not be so unwise as to attempt to speak for all committee members, but I think that it was creditable that we managed largely to reach consensus in our conclusions.

I will try to restrict my comments to areas that the report covers directly, but it is worth adding some context by way of update. As we have heard, the committee has more recently taken evidence on the UK Government’s Retained EU Law (Revocation and Reform) Bill, which is likely to have dramatic effects on the statute book in Scotland and on who gets to amend many parts of it.

It was difficult for us to find any legal or constitutional commentators who viewed the bill with anything other than polite but evident astonishment. The bill repeals, via sunset clause, 4,000 or perhaps 5,000 extant UK laws over the next 12 months. The exact number of laws that are up for the axe is not clear, as the UK Government recently admitted that it had only just discovered 1,400 more laws that it had forgotten all about.

Whatever the number, a great many of those laws—at present they are unidentified—cover devolved areas. Many such laws will become amendable by a UK minister, rather than by this elected Parliament, using proposed so-called Henry VIII powers. That name does an injustice, if such a thing is really possible, to a man who—thankfully—never managed to legislate in Scotland himself.

To quote our report:

“The Committee’s view is that the extent of UK Ministers’ new delegated powers in devolved areas amounts to a significant constitutional change. We have considerable concerns that this has happened and is continuing to happen on an ad hoc and iterative basis without any overarching consideration of the impact on how devolution works.”

As noted by the committee’s adviser, Dr Chris McCorkindale, Brexit

“has posed a number of significant challenges to the effective functioning of the UK constitution.”

In his view,

“territorial tension has been exposed and exacerbated by the relatively weak constitutional safeguards for devolved autonomy”.

All of that means that Brexit is testing to the point of destruction constitutional norms, including those that undoubtedly exist even in a state so bizarrely lacking a written constitution as the UK. The conventions were already under significant strain at a political level, given that UK Prime Ministers, however brief their tenure, have publicly stated that their aim has been to “ignore” Scotland’s Government.

Other members will, no doubt, speak today about the various other areas that we cover in our report, such as the UK-EU trade and co-operation agreement, the protocol on Ireland and Northern Ireland, the changing concept of retained EU law and broader intergovernmental relations. In concluding, I will concentrate on one particular area: legislative consent.

As the committee convener set out, there was a time when the Sewel convention—the assumption that the UK Parliament would not normally seek to legislate on devolved matters without the Scottish Parliament’s consent—went virtually unchallenged as an idea. However, since the Brexit referendum, there has been a complete breakdown of the convention. Notwithstanding the convention’s former political importance as one of the principles behind devolution, the UK Parliament has now begun regularly and routinely to ignore this Parliament when we refuse to consent to being legislated for.

Among the most notable examples of that are such enormously far-reaching pieces of legislation as the European Union (Withdrawal) Act 2018, the European Union (Future Relationship) Act 2020, the Subsidy Control Act 2022 and the Professional Qualifications Act 2022. Most controversially, and as has been alluded to, the United Kingdom Internal Market Act 2020 was likewise passed without this Parliament’s consent. Now the UK Government shows similar signs of disdain for this Parliament’s view on the Retained EU Law (Revocation and Reform) Bill, despite its potentially enormous implications for the question of who makes many laws in devolved areas.

Whether the Sewel convention actually still means very much is now open to question. Indeed, many of our witnesses expressed their doubts about that. One hopes that it still has a more binding force than other conventions that exist only in the sphere of the UK Government’s ministerial code, say, or perhaps the locally varying conventions around when to wave to other motorists on single-track roads.

Professor McHarg pointed out to us that

“The Sewel convention has been severely tested by the Brexit process and its ongoing legislative aftermath.”

The Institute for Government’s view is even more directly expressed:

“Brexit has exposed the convention’s limitations as a guarantee of devolved autonomy.”

That is not a trivial observation or question, and it is not just the many of us of who spent our youths campaigning for a parliamentary democracy in Scotland who are troubled by it.

As our committee’s report makes clear, those fundamental concerns about Westminster’s legislative intentions with regard to Holyrood, and the powers that Holyrood has in law to stop them, are questions on which, as parliamentarians, we would all do well to reflect.


Katy Clark (West Scotland) (Lab)

I am grateful for the opportunity to contribute to the debate, and I congratulate the committee on its report, which is, as the convener said, technical in nature. I agree with the committee’s assessment that fundamental concerns in respect of how devolution works outside the European Union need to be addressed by the Scottish Parliament.

As Sarah Boyack and Willie Rennie said, Brexit’s negative impact has been considerable, especially on the economy. The Institute for Government has argued that Brexit has opened up a new space for disagreement in many important policy areas that were previously subject to EU law.

However, I have to say to Oliver Mundell that, given that his party put a referendum on European Union membership to the people, it should have had a plan for Brexit. Its failure to take responsibility for the position that we are in, or for the tens of billions of pounds that it has cost the economy, is why we are having today’s debate.

The approach of the UK Government following Brexit could not be said to be supportive of the devolution settlement. Although many of the most controversial aspects of the United Kingdom Internal Market Act 2020 were defeated at Westminster, the act was an audacious attempt at a land grab, as Alasdair Allan said. There are now concerns that the Retained EU Law (Revocation and Reform) Bill could give UK ministers unprecedented powers to scrap European laws, including in devolved areas, and that this Parliament will be unable to have sufficient input or scrutiny.

Gillian Martin (Aberdeenshire East) (SNP)

On the back of what Katy Clark has just said, I note that the fact that something has not happened yet does not mean that it could not happen. The issue is that there could be a problem, and it is our duty to ensure that there is no ambiguity at all, but that there is certainty.

Katy Clark

I hope that I will be able to go on to address that point later in my contribution, but Gillian Martin is correct—we need frameworks that require co-operation, which Sarah Boyack talked about earlier, to address those issues. Whether or not we are a member of the European Union, we have to work with Europe. Whether or not Gillian Martin gets her way and we leave the United Kingdom, we will have to work with other UK nations, and we will need co-operation agreements. We need to get those agreements in place, because the current situation is not tenable or acceptable.

In the short time that is available to me, I will focus on one area, which is the policy relating to procurement. The approach that the Scottish Government is taking is quite unlike the approach of, for example, the Welsh Government to the Procurement Bill that is currently going through the Westminster Parliament. The overall approach of the Scottish Government, as outlined in the committee report, seems to be that the default position will be to align with European Union law. However, £1 out of every £3 of public money that is spent is spent on public procurement. Public contracts represent a significant part of the economy, and there are significant issues in terms of labour, environmental standards, direct awards, state aid and the ability of public bodies to set their own procurement policies—for example, to buy locally or to insist on trade union recognition or good terms and conditions for the workforce in the organisations with which they are contracting. The Trades Union Congress report “Levelling up the UK: the role of state aid” outlines the choices that Governments in the UK now have on state aid and procurement policy, and it says whether those choices will be ones that support industrial policy, industrial strategy, local jobs and businesses, and the promotion of high employment and environmental standards.

The Procurement Reform (Scotland) Act 2014 is stronger than the regulations that are in force in England and Wales, and it is clear from the committee report that divergence is a live issue with regard to the discussions that are taking place. In the past, the European Union cabotage regulations were used as a reason for the tendering of CalMac Ferries services. I presume that the tendering process that led to the award of the ferry contracts to Ferguson Marine Engineering Ltd took place because the Scottish Government felt unable to make a direct award.

The debate highlights the very technical aspect of many of the issues that we are discussing, which is clearly highlighted in the report that we are debating. However, it also highlights the huge potential for us to look at wider issues that impact on people’s lives and the decisions that this Parliament makes day in, day out.

Yes, there needs to be improved intergovernmental co-operation. The Scottish Government needs to set high standards through public procurement, food procurement, labour and environmental standards and a wide range of other areas that the Scottish Government has responsibility for.

I believe that this debate is an important one, and it is important that we get the frameworks and issues right. However, the reason why it is important has to do with what we can deliver as a Parliament. I very much hope that we are able to flesh out some of the real challenges that we face to ensure that we deliver for working people and the people who put us in Parliament, as we go forward.


Collette Stevenson (East Kilbride) (SNP)

I thank my colleague Clare Adamson and others on the Constitution, Europe, External Affairs and Culture Committee for their work on this important report. The impact of Brexit on Scotland’s economy, democracy and society is stark. There is no group of people or sector of the economy that the Tory Government is not willing to sacrifice on the altar of Brexit.

As members will be aware from businesses in their areas, the challenges that are arising from the Tories’ hard Brexit are huge. Earlier this week, I visited the East Kilbride premises of NXP Semiconductors with the Minister for Business, Trade, Tourism and Enterprise, Ivan McKee. The company does lots of great work, including making microchips, and creates high-skilled jobs in the process. However, its workforce is 10 per cent down on where it could be, with Brexit being blamed for the number of EU applicants having fallen off a cliff edge. As I raised with the Minister for Culture, Europe and International Development yesterday, the loss of freedom of movement is also affecting staffing in our health and social care services. Post Brexit, there are massive challenges for our businesses and care services, as well as for EU nationals living in Scotland.

As the committee’s report sets out, a fundamental consequence of Brexit is the threat that it poses to the devolution settlement, with the UK Government ignoring, disrespecting and overriding this Parliament. The Tories’ United Kingdom Internal Market Act 2020 is a keystone of their intention to ride roughshod over the devolution settlement.

Brexit has ripped Scotland from the good governance of the EU single market and placed it in a chaotic UK internal market that cannot accommodate differences among the four nations. That 2020 act was just one of six major pieces of Brexit-related legislation that this Parliament rejected and Westminster imposed. That showed, yet again, its disdain for the democratic wishes of the people of Scotland.

When I read the committee’s report, paragraph 49 jumped out at me. I will, for the benefit of members, read the quote, from the Boris Johnson and Liz Truss backing former minister Jacob Rees-Mogg. In a statement to the House of Commons, he said:

“As we maximise the benefits of Brexit and transform the UK into the most sensibly regulated economy in the world, we must reform the EU law we have retained on our statute book.”

He added that doing so would allow us to create

“a new pro-growth, high-standards regulatory framework that will give business the confidence to innovate, invest, and create jobs”.—[Official Report, House of Commons, 22 June 2022; Vol 716, c 866-867.]

I am sure that all members can agree that the main growth in the UK has been in inequality and that there has been nothing sensible about British economic policy recently.

Furthermore, the talk of high standards is nothing but rhetoric from the UK Tory Government, whose actions paint a different picture. The UK Government is ploughing ahead with the Retained EU Law (Revocation and Reform) Bill, which, if it is passed, will see the removal of thousands of pieces of EU legislation that have been modified and incorporated into domestic law. The Scottish Government is opposed to the bill because it will put standards at risk, including rights for pregnant women at work, environmental standards and requirements to label allergens in food.

I welcome the committee’s call for views, which will allow businesses, civic society and the wider public to have their say on how devolution should evolve post Brexit to meet the challenges and opportunities of the new constitutional landscape. I encourage stakeholders in East Kilbride and right across the country to have their say. For now, we need to make the most of where we are by dealing with the challenges that have been created by the hard Brexit that Scotland did not vote for and which was implemented by a Government that Scotland did not vote for.

Not only have the wishes of the people of Scotland been ignored by both the Conservatives and the Labour Party, which endorses Brexit, but the role of this Parliament is being diminished by power grabs. Those are yet more examples of the cost of Westminster control. Faced with the grim reality of Brexit Britain, only independence offers Scotland a way to rejoin our friends and neighbours in the European Union and the chance to retain EU-wide protections on the environment, food standards and workers’ rights.

I look forward to the people of Scotland exercising their democratic right next year and choosing the fairer and greener future that independence will bring.


Mark Ruskell (Mid Scotland and Fife) (Green)

I join other members in welcoming the debate, and the excellent report informed by expert and learned opinion, which come at a point when the full horror of Brexit is really just beginning to unfold.

None of the Brexit outcomes thus far have been surprising in any way. The UK Government repeatedly warned itself about the economic implications of leaving the single market and ending free movement and about the sectors of the economy that would be damaged by a hard Brexit, the businesses that would take flight and the risk of recession.

What I find ironic is that the UK was so influential when it was a member of the EU, but so bad at explaining the benefits of that influence at home. It also saddens me that the UK was such a champion for the rule of law in the EU but it is now so willing to disregard the rule of international law when it comes to the TCA and the Northern Ireland protocol.

The arguably very British value of respect for the rule of law is now clearly being championed by others, including the Irish, in the EU. I, like more than half the members of this Parliament, hope that Scotland will be able to join Ireland as an independent state within an interdependent European family of nations and that, in time, the rest of these islands will follow in our footsteps and rejoin the most successful project for peace and prosperity in world history.

The British contribution to the acquis of European law and policy has been immense, so it would be an enormous act of self-harm if the Retained EU Law (Revocation and Reform) Bill results in a Brexit bonfire of the very laws that we wrote. There are so many protections and rights that we rely on, which, unless saved, will fall off the cliff edge in December next year. Laws on issues from equal pay to nature protection must be saved and retained.

If the UK Government lights the bonfire, there will be a desperate scrabble to save laws from the engulfing flames. It will put huge pressure on every democratic institution, every Government department and every minister and parliamentarian in every Parliament across the UK. It is clear that the Retained EU Law (Revocation and Reform) Bill should be scrapped and individual laws should be prioritised for reform.

For example, Governments urgently need to change the energy performance certificate system to deliver a step change in green heating. The Energy Performance of Buildings (Scotland) Regulations 2008 come from the EU directive on the energy performance of buildings, but when the UK left the EU it did so without putting in place any way to change the regulations, which has left the Scottish Government now desperately trying to find a legislative route through a Brexit mess.

Therefore, there is work to be done, but it must be careful work, not a slash and burn spurred on by ideology—otherwise, we will see yet another epic failure of statecraft from the UK Government.

We are in anything but normal times, but there needs to be respect between the UK and the devolved Governments. The Sewel convention, which a number of members have mentioned, has, in effect, been abandoned. Prior to that, it had been used 140 times at Holyrood to obtain consent, which was withheld on only one occasion. However, it is clear that it has now become merely an obligation to seek consent of this Parliament, rather than actually to obtain it. Despite any contrary view that Holyrood might have, the box always get ticked and the UK Government carries on regardless.

Parliamentary oversight is a cornerstone of our British democracy, yet post-Brexit legislation is coming before both Parliaments and the Senedd with broad, sweeping ministerial powers that have a strong focus on secondary legislation. A feast of Henry VIII powers is now ready for UK ministers; even the powers to amend primary legislation itself without consent are now on the menu.

With much of that post-Brexit legislation, there is absolutely no clarity about how secretaries of state would use the powers—it is anyone’s guess what the powers are for and what the policy objective is. Meanwhile, stakeholders fear a regulatory race to the bottom; businesses are unsettled; and certainty has eroded even further at a time when we really need stability.

For us parliamentarians, that makes scrutiny nearly impossible. However, Tory MPs should be very wary in what they ask for, because when they take their turn in opposition, there will be very few powers for them to use to challenge Government policy under these Brexit bills. Such a lack of scrutiny rarely makes for good decision making, regardless of who is holding the ministerial pen at the time.

I will not let the Scottish Government completely off the hook in the debate either, because we, as a Parliament, need to see our Government step up and realise the keeping pace commitment totally transparently. The Government should set out regularly what it will align with in both legislation and policy, and it needs to set out its approach to forthcoming EU legislation and the European Commission work programme as early as possible.

The role of Parliaments in holding their Executives to account has never been more important. There is a need for Parliaments across these islands to work together even if their Governments currently struggle to do so. We may have lost the European Union machinery that strived to build consensus among its decision makers and stakeholders, but the European values of openness and democracy are now more important than ever and we should uphold and defend them in this Parliament.

The Deputy Presiding Officer

Gillian Martin will be the final speaker in the open debate, after which I will expect everybody who has participated in the debate to be in the chamber for the closing speeches. You have a generous six minutes, Ms Martin.


Gillian Martin (Aberdeenshire East) (SNP)

I welcome the report, which drills into the reality of Brexit for devolved Parliaments such as ours. I convened the Environment, Climate Change and Land Reform Committee at the time when we exited from the EU. The committee was swamped by last-minute statutory instruments and LCMs from the UK Government, with no detail of their implications and next to no time for scrutiny of any of the common frameworks that were proposed. I knew then that devolution and the role of this Parliament were, either by design or by lack of regard, in grave danger of being seriously diminished. I suspect that it was the latter rather than the former, but the consequence is the same—the dilution of our ability to manage devolved affairs.

As convener of that session 5 committee and convener of the Health, Social Care and Sport Committee in this parliamentary session, I have raised concerns about the lack of a statutory requirement in UK bills to seek the consent of Scottish ministers when legislating in devolved areas, the lack of opportunity for Scottish Parliament committee scrutiny and the inability to make recommendations in relation to such decisions. My concerns were made worse when the environment committee repeatedly invited the then minister, Thérèse Coffey, to answer our questions but was ignored—we did not see her once during her tenure despite those invitations.

I want to bring into sharp focus the somewhat procedural aspects of the report in relation to an area that affects my constituents, which—no offence—can seem dry to the onlooker: food standards and the arrangements around regulatory alignment, or otherwise, with the EU, which recommendation 54 of the report outlines.

The withdrawal from the EU has had disastrous consequences for growers in Scotland. Some of those consequences were immediate and remain in effect, and are proof of the Scottish Government and Scottish Parliament’s lack of involvement in the exit deals and the subsequent legislation relating to agriculture. The report made clear that there are substantive differences between the views of the UK Government and those of the Scottish Government and the Welsh Government with regard to future alignment with, or divergence from, EU law.

I want to drill further into one sector in which no divergence in standards exists, but around which there are massive problems in the trade and co-operation agreement: the seed potato sector.

Seed potato farmers, in particular, have had the rug swept from under them by Brexit. Before Brexit, Scotland exported around 20,000 tonnes of seed potatoes—worth close to £13 million—to 18 EU countries, with quite a lot of them coming from my constituency. The 2020 trade and co-operation agreement with Europe failed to include equivalence on seed potatoes, and the Scottish Parliament and Scottish Government had no say in the matter. Seed potato farmers have since taken huge losses, and they are extremely angry about that enormous oversight by the people who negotiated on behalf of the UK Government. Imports of seed potatoes from the EU to the UK were made possible, with DEFRA permitting it, in effect, crowding out Scottish farmers from the domestic market. After six months and huge pressure from the sector, that arrangement was not renewed—it was allowed to lapse, but not before it had done massive financial damage to our farmers.

We were told by Brexiteers that there would be huge benefits to agriculture. To them, I say, “Tell that to the Lind family in my constituency”—three generations of seed potato growers who are working to keep their business alive after being subjected to massive losses. The ramification of significant prohibitions on Scottish seed potatoes going to the EU has been the creation of a vacuum; our seed potato growers have lost massively, with the trade being picked up by Irish growers, despite Scottish seeds conforming to the same grades and disease tolerances that the EU demands. In fact, because they are of better quality, seed potatoes from Scotland are more in demand than those from Ireland, particularly from eastern European farmers.

The neglect of the seed potato sector represents just one part of a Brexit trade agreement in which Scotland had no say and of which we had no opportunity for scrutiny. At the end of 2020, Westminster’s failure to include an agreement with Europe on equivalence for the sector in the co-operation agreement was an omission that has cost Scottish growers dearly. The worst of it is that that did not need to happen. If Scottish ministers and Scottish Parliament committees had been involved, it might not have happened.

I want to record my support for the sterling work of Martin Kennedy and Andrew Connon of NFU Scotland. They continue to demand that the UK Government sorts out the issue. I sense their growing frustration every time I meet them—not least this summer at the Turriff show, when I had a small window of opportunity to make the same demands of the Minister for Farming, Fisheries and Food, Victoria Prentis, who is no longer in post. She simply blamed it all on the EU, which did not go down at all well with the north-east farmers in the room—if members have ever been in a room with angry north-east farmers, they will certainly have known about it.

A great number of Brexit-related bills have been passed at Westminster without the consent of at least one of the devolved legislatures, and the EU exit agreements have all been reached without consideration of devolved competences.

I welcome the committee’s report, which lays bare the myriad ways in which Brexit could erode devolution. As I said, in agreement with Katy Clark, we should always be mindful of “could”—just because the worst has not yet happened, it does not mean that the post-Brexit constitutional arrangements between Westminster and the devolved nations could not give rise to it. That is what we are here to sort out. We all need to be round the table with consent obtained before decisions and never after the fact.

We move to closing speeches. I advise members that we have a fair amount of time in hand, so interventions are encouraged. With that, I call Foysol Choudhury for a generous six minutes.


Foysol Choudhury (Lothian) (Lab)

It is a pleasure to close the debate for Scottish Labour. I thank the committee and staff for the work that has gone into the report, which is on a complex subject. I also thank the people who gave evidence to the committee to allow the report to be produced for the Parliament’s benefit; their contributions are much appreciated.

We have heard from my colleague Sarah Boyack about how the Sewel convention has come under threat in recent years and is in urgent need of further clarity, particularly when it comes to secondary legislation.

The committee report is clear that Brexit has been a significant shock to the relationship between Westminster and the devolved nations. The witnesses who were heard by the committee painted a picture that showed how the initial cases of breaking the Sewel convention for reasons of urgency have, in effect, made it easier for the convention to be broken down. However, as the report also makes clear, the convention was built on unstable ground to begin with.

The phrase “not normally” was perhaps always destined to end up as the subject of contention. However, it is Brexit and its associated legislation that have provided the pressure that has shaken the convention. Alasdair Allan made that point very well.

If our devolved nations are to function together again after the strained recent years, a renormalising of relationships is required. Sarah Boyack has already highlighted some of the ways in which Scottish Labour believes that that could happen. As she noted, there needs to be greater transparency in how intergovernmental relations happen; otherwise, we are just substituting devolved Parliaments for devolved executive supremacy.

As the committee has highlighted in this and other recent reports, the common frameworks between the devolved nations need to be reinforced but, crucially, they also need to be answerable to the devolved Parliaments. That will be particularly important as the nations diverge. I recognise Willie Rennie’s optimism about the lack of divergence. However, my colleague Katy Clark highlighted how it could happen in relation to procurement.

As a current example, the First Minister attended the inaugural Prime Minister and heads of devolved Governments council on 10 November. What has been said about that in this Parliament? What was said at that meeting by the Scottish Government, on behalf of the Scottish people? Do they not deserve to know? Do we not deserve to know? I have said before that the Parliament cannot operate in the dark, but we are again being asked to do so. Although that is not an inevitable consequence of Brexit, Brexit has fostered the development of that culture of executive secrecy.

As Martin Whitfield and Jenni Minto have suggested, we as parliamentarians should have a form of solidarity with our colleagues in the other devolved Parliaments and in the Westminster Parliament. I am grateful to Jenni Minto for highlighting recent engagement through the interparliamentary forum.

It is in all our interests that such meetings and discussions do not take place behind a veil of secrecy. We are elected to represent our constituents’ interests, and it is in our constituents’ interests not only that the common frameworks operate effectively but that the discussions that affect them are transparent and open. The public will be able to have faith in the devolved settlement only if they can see how it functions.

I sincerely hope that both the UK and Scottish Governments will take that to heart in the coming years, as we try to find the best way to navigate through our new international context.

I call Sharon Dowey—again for a very generous six minutes.


Sharon Dowey (South Scotland) (Con)

I am pleased to bring the debate to a close on behalf of the Scottish Conservatives. I did not have the pleasure of sitting through the evidence to the CEEAC Committee, whose report shows that the impact of Brexit is very complicated. This debate focuses on only one small part of that, which is the impact on devolution.

I will highlight some points that have been raised by members from across the chamber. Maurice Golden talked about the strains that have tested elements of the devolution settlement. He mentioned the Sewel convention and said that its application and interpretation have clearly been tested in a way that they had not been before Brexit. Oliver Mundell talked about the need to put aside political differences and work constructively together to find solutions.

Sarah Boyack

What really struck me about Ms Dowey’s colleague’s contribution was that it was incredibly negative. I was looking for him to suggest how the UK Government could change its practice now, by leading the way on Brexit and listening to the concerns in our report—which were unanimous—and by coming up with solutions to remove the horrendous tensions that Brexit has created. That could get us to a point at which members from across the chamber could agree on issues such as environmental standards, food safety or the use of chemicals. There is an opportunity, but it must be seized rather than have people say that it is all too difficult. Does Ms Dowey agree with me?

I can give you all that time back, Ms Dowey.

Sharon Dowey

Thank you.

Brexit has definitely caused challenges. There will be opportunities, but I do not think that we have seen them yet. Both Governments must come together and talk. My colleague was talking about the negative narrative that we hear in the chamber. I have been here for a year and a half and, whenever we have portfolio questions, there is always negativity towards the UK Government. We must all work together to get solutions. We need solutions to Brexit.

I am not saying that there have been no challenges, but we must work together. We were elected for the people of Scotland. We should be solving the problems that are in our gift to solve in areas such as justice, education and health.

Alasdair Allan

The member has listed some of the areas that are within our control. Does she appreciate that many of us who are here today are angry because the UK is seeking to override the areas that are within our devolved control by legislating in those areas?

We need dialogue between the Governments, but I do not see that happening. It takes two to talk and two to come to the table and be constructive about making compromises and solving problems.

Will the member accept an intervention?

Sharon Dowey

I need to make progress. I know that I am getting my time back, but I am way over time.

There were lots of good contributions. Sarah Boyack talked about the need for change, transparency and accountability. She talked about the keeping pace power and the need for a mechanism for dialogue between Parliaments—I totally agree with that. Willie Rennie spoke about the fact that the debate has not moved on in three years—we do need to move on. Jenni Minto spoke about how Brexit is affecting the normal person in the street. She also spoke about good intergovernmental relationships with DEFRA. We need to have those relationships between more Government departments here and in Westminster.

Will the member accept an intervention?

Sharon Dowey

I will move on to my contribution, because I am running out of time. My key points are about the keeping pace power and scrutiny.

The Scottish Government’s decision to align with EU law wherever possible is not without consequence. As the report notes, Professor Katy Hayward indicated

“that there is a lack of consideration in the Scottish Government’s policy statement on alignment with EU law regarding the practical consequences of alignment for Scottish producers”,

and that that is specifically the case

“for those exporting to England and Wales”.

The professor went on to discuss

“the economic impact of the UK Government’s intended divergence from EU laws in areas that are highly regulated and subject to detailed legislation in the EU, namely food safety, and plant and animal health.”

Professor Hayward’s view is

“that it should be made clear that the more its closest market diverges from the EU, the more difficulty there will be for Scotland if it seeks continued alignment with EU law.”

That is a key point. How do civic Scotland and other relevant stakeholders know where, how and when the Scottish Government is aligning or not, and why it is choosing to do that? That creates unnecessary uncertainty. Working to a different standard for production in Scotland may negatively impact businesses’ ability to compete in the UK internal market. That would cause severe damage to the Scottish economy and Scottish businesses, given that about 60 per cent of Scottish exports go to the rest of the UK. Last year, the director of policy at NFU Scotland said:

“If we were just to pick up and paste into Scotland the EU’s current agricultural policy, that would be extremely detrimental to Scotland. That would stretch agricultural businesses to breaking point”.—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 16 December 2021; c 15-16.]

As things stand, there is only an annual requirement to inform Parliament of when the provision has been used, which makes its use difficult to scrutinise. It is worth recognising that, when the cabinet secretary gave evidence to the Constitution, Europe, External Affairs and Culture Committee, he said that only one piece of EU legislation has been actively considered for alignment and that, in fact, the Scottish Government chose not to align. I think that we are entitled to question why the Scottish Government is pursuing the policy at all.

We also need to ensure that we have effective scrutiny. In its written evidence, the Public Law Project noted:

“A broad Henry VIII power for the UK Executive to make law in any area of former EU competence would be constitutionally inappropriate.”

I agree with the recommendation from the Institute for Government that the UK Government should share draft bills and legislation with the devolved Governments. We all desire Governments to work together constructively but, in order for them to do that, we must be prepared to enter negotiations with the willingness to compromise. Otherwise, we will end up with confusion and uncertainty. The Public Law Project also commented:

“the lack of scrutiny also produces poorer quality laws and policy.”

However, the SNP Government should be doing that in the Scottish Parliament as well. There are examples of the Scottish Government using Henry VIII powers, too, and what applies to the UK Government should also apply to the Scottish Government. The Scottish Government must give the Scottish Parliament enough time to fulfil its oversight function, rather than rushing legislation through. The Gender Recognition Reform (Scotland) Bill is an example. Rushing things through does not allow us as parliamentarians to scrutinise things thoroughly.

I believe that it is in everyone’s best interests for all Governments to work together. The Scottish Government must work closely with the UK Government to ensure that the Retained EU Law (Revocation and Reform) Bill works for Scotland. Despite our political differences, we must all work together for the benefit of the United Kingdom.

I ask the minister to respond on behalf of the Government. You have a generous 10 minutes or so, Mr Gray.


Neil Gray

I appreciate your generosity, Presiding Officer. I will look to cover as much of what has been said in the debate as I can, in order to fulfil the time requirement that has been set for me.

In my opening remarks, I set out the Scottish Government’s views on the important issues that are identified in the committee’s report on Brexit and devolution. In these closing remarks, I want to reflect on the wider issues that are raised by the report on Scotland’s place in the UK. I will also return to the Retained EU Law (Revocation and Reform) Bill and what it tells us about the UK Government’s attitude to the issues that have been raised today.

First, however, I want to respond to some points that were raised in the debate. Across most contributions, there was wide consensus on the need for respect for devolved powers and a return to respect for the Sewel convention, which has, as many members referenced, been ripped up since 2016.

In her very strong contribution, Sarah Boyack said, quite rightly, that it is not just what you say but what you do that is important. We will certainly be looking closely at what the UK Government does with regard to the Retained EU Law (Revocation and Reform) Bill, the Procurement Bill, the Trade (Australia and New Zealand) Bill, the Levelling-up and Regeneration Bill and the Energy Bill, all of which will require some form of legislative consent from this Parliament.

One area that I do not agree with Sarah Boyack on, which will not surprise her, is her comments on independence. We now know from her leader at Westminster and that of the Liberals that they do not want to return to the EU, so, regardless of the next UK Government’s composition, the damage of Brexit, which she rightly outlined, will continue.

Will the minister take an intervention on that point?

Neil Gray

In two seconds.

Independence is the only route back to the EU. That will be uncomfortable for Sarah Boyack and Willie Rennie, given their otherwise excellent speeches about the permanent costs of Brexit to Scotland. Also inconvenient for Willie Rennie is his plea not to link Brexit to independence, given that the people of Scotland are doing just that—and no wonder, as 70-plus per cent, according to recent polling, regret Brexit, which is an even greater number than those who voted to remain.

Will the minister give way?

I will give way to Sarah Boyack, and I will then happily come back to Willie Rennie.

Sarah Boyack

Thank you so much.

The minister has not acknowledged the point about Brexit times 10 that I made in my speech, which was about all the disruption and dismantling. If anyone thinks that the 47 years of being in the EU was a long time, as the cabinet secretary said, the 400-odd years of being in the UK means that there would be massive disruption.

I particularly wish to make the point about the difference between a Labour Government and the current Conservative Government. We would not have people like Jacob Rees-Mogg in power, making things worse; we would have a constructive, co-operative approach from a Government that aimed at working with our EU neighbours, not to fall out with them at every single opportunity, and we would be honest about where we could work together collaboratively and constructively, promoting trade and high environmental standards and delivering the fantastic transformation that we need in our economy through green and sustainable development, which, along with the importance of the environment, was mentioned in several speeches today. We would bring all of that, and that would be transformative.

Neil Gray

To be clear, I think that I have more in common with Sarah Boyack than Sarah Boyack will have in some respects—referring to what I am about to talk about—with her own Labour colleagues. The inconvenient truth for Sarah Boyack is that the Labour Party wishes to maintain Brexit. Granted, we want to see the back of the Tories, and I want to see their defeat at the next general election, but the Labour proposition is to maintain Brexit. It is also to do further damage to the Scottish economy by imposing even tougher immigration rules than the Tories are currently imposing, as was evidenced in recent interviews with Rachel Reeves. That is why I think that we share more in common in Scotland with our Labour colleagues than some Labour members perhaps do with their colleagues down the road. Independence is the only route by which we can get back into the European Union, to enjoy the benefits that that gives Scotland. That is why I am not surprised to see that public opinion is so supportive of a return to the EU, with a linkage to the independence debate.

Jenni Minto was also right—

Will the minister give way?

Sorry—I forgot to give way to Willie Rennie.

Willie Rennie

I thank the minister.

While the minister is in a reasonable mood, I hope that I can persuade him to agree with me on this. Is it not the case that what the SNP is now proposing with its new currency arrangement will be outside both the UK and the EU for at least 10 years? The SNP is also now admitting that there will be checks at the border. Is it not the case that SNP members are the new Brexiteers?

Neil Gray

Willie Rennie appealed for me to be reasonable; he then came forward with a rather unreasonable and inaccurate intervention. I do not recognise the characterisation that Willie Rennie gave in either the first part or the latter part of his remarks. Yes, there will be an opportunity for us to break down 27 borders with our EU neighbours with regard to trade, which is of course an opportunity that independence offers us while Brexit has put up borders to our trade. There are clearly opportunities there. I am happy to have a discussion with Willie Rennie at any stage on our economic paper and our proposals regarding independence, so that we can ensure that the public are fully informed about the opportunities that come forward from our prospectus.

Jenni Minto rightly recognised the elephant in the room regarding UK Government relationships with the EU, but also within the UK. She is absolutely right about that. The UK Government’s approach to Brexit has meant that the devolved Governments have become stronger and more closely aligned, working together on far more areas, because of the lack of respect for the devolved Governments. There are a number of areas within my own responsibilities, including on Ukraine, where there was previously a very good working relationship, but where, sadly, my Welsh counterpart and I have not, of late, had the constructive engagement that we would want. That lack of respect for the devolved Governments has permeated the UK Government’s approach not just on Brexit and Brexit-related issues; it has moved much further than that.

Martin Whitfield

Jenni Minto agreed that it should be for the Parliaments to solve such problems. Let me take the problem of legislative consent motions. Would the Scottish Government give the Parliament its support in seeking a solution on that issue?

Neil Gray

I am happy to hear the proposal that Martin Whitfield would look to make on how that could be done. I would be happy to have a discussion with him offline about how he feels that such an arrangement could work.

In another excellent speech, Katy Clark was absolutely right to challenge the UK Government and to say that there is a need for dialogue with the EU and with the rest of the UK. That will need to continue when Scotland is independent. Independence will provide an opportunity for such dialogue to take place on the basis of a partnership of equals, as opposed to the basis on which it takes place at the moment.

Katy Clark was also right to challenge Oliver Mundell on the lack of any plan for Brexit on the part of those who supported it, such as Mr Mundell and the then Tory UK Government.

Oliver Mundell

Various solutions were put forward to the House of Commons on how we would leave the EU. If the minister is going to criticise other people for not engaging seriously on what Brexit might look like, would he like to explain why he was not able to vote for a permanent and comprehensive customs union?

Neil Gray

It is an inconvenient truth for Oliver Mundell that, at the time, the Scottish Government suggested a compromise position to the UK Government. Notwithstanding the fact that we did not want Brexit to happen, we set out how there could be compromise that respected the fact that Scotland voted to remain in the EU. The UK Government chose to ignore that.

Will the minister give way on that?

Neil Gray

No. I think that I have answered Mr Mundell’s point comprehensively. We put forward a compromise solution, which the UK Government chose to ignore, and we are now in a situation in which the UK Government continues to ignore the Scottish Parliament and the Scottish Government. That is why the committee has produced the report that it has produced.

We also had excellent contributions from Collette Stevenson, Mark Ruskell and Gillian Martin. The fact that so many strong speeches were made serves only to highlight the debate’s importance.

In considering Brexit and devolution, it is important to recognise three underlying points. First, Brexit has been imposed on the people of Scotland against their will and has been hugely damaging. Secondly, it was not inevitable that the damage of Brexit would lead to further centralisation of power in Whitehall or a weakening of devolved responsibilities—that was a deliberate choice by the UK Government. Thirdly, there is nothing in the UK’s constitutional arrangements that could prevent any UK Government from doing the same thing, either for something as significant as Brexit or for any other reason.

As I highlighted in my intervention on Oliver Mundell, I was an MP at Westminster in December 2016 when the then Prime Minister, Theresa May, apparently agreed to give the devolved Governments a role in establishing a UK—as opposed to a UK Government—Brexit negotiating position. Sadly, it became clear very quickly that Mrs May had no intention of following that commitment. There was no genuine engagement on the Scottish Government’s proposals for a less damaging form of Brexit for Scotland and for the UK as a whole. She chose to ignore Scotland and boxed herself in with her self-defeating red lines.

The only negotiations that would be relevant were those between various wings of the Conservative Party. The hard Brexit that we have since endured was not inevitable and the more damaging effects of Brexit on devolution were entirely avoidable. I commend Gillian Martin’s remarks on the impact that the lack of engagement by the UK Government has had on the farmers in her constituency and across Scotland.

Now, we have the Retained EU Law (Revocation and Reform) Bill.

Will the minister give way?

I think that I am pretty pushed for time. Is that right, Presiding Officer?

We have a little time in hand.

I am happy to take the intervention.

Oliver Mundell

What does the minister have to say to farmers in my constituency, who have extra money in their pockets as a result of the flexibility on the less favoured area support scheme that leaving the EU has brought? Do they have to give that money back?

You should wind up, minister.

Neil Gray

Given what Gillian Martin outlined, I imagine that the sentiments in farming communities across Scotland are similar with regard to the impact on our food producers that there has been since Brexit.

In conclusion, the Scottish Government’s view is clear: only independence can guarantee Scotland’s democracy and our place as an equal member of the family of nations. Others have different views but, as the report and this debate have shown, we can all see the problems in the relationships that there are within the UK and with our neighbours in Europe as a result of the UK Government’s positions. It is much harder to see any solutions for as long as Scotland remains under Westminster control.

I am grateful to the committee for its important work so far, and I look forward to proceeding with the further inquiries identified, to which the Scottish Government will make a full contribution.

I call Donald Cameron to wind up the debate on behalf of the Constitution, Europe, External Affairs and Culture Committee.


Donald Cameron (Highlands and Islands) (Con)

It is a great pleasure to close for the committee and to reiterate the thanks that have already been expressed to the clerks, the witnesses, those who gave written evidence, colleagues on the committee and others who have taken part in the debate and contributed to it in a constructive manner.

I hope that what we have highlighted in the committee report resonates with colleagues, however esoteric and technical some of the matters might seem. I think that Gillian Martin said that they are dry. I feel no need to apologise for dryness when it comes to issues relating to the devolution settlement, and I do not think that she needs to do so, either.

It is important to acknowledge that the issues in the report are relatively narrow. That is not to diminish their importance, but the report concerns the effects of Brexit on devolution, not its effects per se. Of course, Brexit has had a profound impact on various sectors and industries across Scotland—on academia, learning, culture, agriculture and many other aspects of life. We have heard very divergent views on many sides this afternoon, but our report is more specific than being simply about the consequences of Brexit. It is about the impact of Brexit on devolution and, among other things, on the working of the devolution settlement, relations between the UK Government on the one hand and the Scottish Government, the Welsh Government and the Northern Ireland Executive on the other, and, of course, the relationship between the legislatures in the UK.

Issues relating to delegated powers that are exercised at UK and Scottish Government levels are also among the issues that we considered. That is significant, because the committee is about to embark on a wider inquiry into those matters, which will follow that focused remit.

Before I respond to some of the contributions to the debate, I would like to add some detail on one aspect of the inquiry, which the convener touched on in her opening remarks—delegated powers. A key theme from our report is that there has been a step change in the approach to the use of delegated powers. When the Scottish Parliament was established, the powers of UK ministers to make secondary legislation in devolved areas were transferred to the Scottish ministers, with only a few exceptions. The committee has identified two areas of contention: the scope of delegated powers being conferred on UK ministers in devolved areas and on the Scottish ministers where those powers are concurrent; and the Sewel convention not applying to secondary legislation.

The then Secretary of State for Levelling Up, Housing and Communities stated in a letter to the Delegated Powers and Law Reform Committee:

“Powers for the UK Government to make statutory instruments ... in devolved areas are not new and have been used across a wide range of policy areas since the advent of devolution.”

However, prior to the UK leaving the EU, UK ministers would principally make secondary legislation that implemented EU obligations in devolved areas, and they did that with the consent of the Scottish ministers. The UK Government did not generally apply powers to make secondary legislation in devolved areas, although some argue that it has, nonetheless, the ability to do so. That said, there is, of course, a difference between delegated powers to deliver a legal obligation to comply with EU law and delegated powers in the same policy area without that particular constraint. The committee’s view is that

“the extent of UK Ministers’ new delegated powers in devolved areas amounts to a significant constitutional change”,

and concerns have been raised that that is happening on an ad hoc and iterative basis without any overarching consideration of the impact on devolution.

Neil Gray

Given what the deputy convener of the committee has said, does he share my concern that that constitutional change, which is impacting on the devolution settlement—on the Scottish Parliament and the Scottish Government—will be made even worse with the passage of the retained EU law bill?

Donald Cameron

I am speaking on behalf of the committee, and the committee is certainly concerned about what has happened so far. As the convener said, the committee is also about to take evidence on retained EU law, where that issue will be very much front and centre.

In our report, we raise a range of questions that are in need of further scrutiny. They include whether it is appropriate for UK ministers to have considerable new delegated powers in devolved areas without any consideration of the impact on devolution, and to what extent there is a risk to the Scottish Parliament’s legislative and scrutiny function from the post-EU increase in the size and use of delegated powers both at UK Government level and by Scottish ministers.

Will the member take an intervention?

Donald Cameron

I will make a bit more progress first, thank you.

They also include how the post-EU limitations of the Sewel convention, as covered by the convener, need to be addressed in considering the effectiveness of consent mechanisms when it comes to secondary legislation.

I will turn to some of the many contributions that have been made during the debate. I will canter through them as quickly as possible. Maurice Golden spoke about the need to evolve the devolution settlement in the interests of Scotland and about the need for dialogue and mutual respect.

Sarah Boyack made a point about the importance of transparency and accountability, as she rightly always does.

Willie Rennie spoke about hyperbole on both sides and about the fact that we have not had a debate on the substantive issues that are at stake. His view is that divergence has not really happened and that we have not seen the benefits of Brexit that were promised.

Jenni Minto spoke about the impact of EU law. She quoted evidence that we heard last week in committee and spoke about the importance of good relations.

Oliver Mundell spoke longingly about the Mike Russell era and spoke nostalgically about his memories of those debates. [Laughter.] Oliver Mundell’s view, which is important to note, is that the Scottish Government did not approach the matter constructively. In his opinion, the Scottish Government disrupted Brexit, stoked grievance and promoted independence. He said that that is what has damaged relations and is why tensions exist.

Alasdair Allan also spoke about retained EU law issues and the sheer amount of legislation that that would involve. He concentrated, as many others did, on legislative consent. I think that he asked whether Sewel has any residual force.

Katy Clark spoke about the need for co-operation; she mentioned procurement and said that there are choices to be made now through which divergence could happen. I think that she approves of the ability to diverge—she will correct me if that is wrong. She certainly agreed that there is a need for this Parliament to look at and debate the issues properly.

Collette Stevenson said that, in her view, the UK Government had been ignoring and disrespecting this Parliament—again, she concentrated on the Sewel convention and argued that the Scottish Parliament has been undermined.

Sarah Boyack

I thank the member for taking an intervention now—I realise that he is getting near the end of his time.

Does Donald Cameron, as deputy convener of the committee, accept that it might have been helpful if a UK minister had been prepared to come and visit our committee? It is constructive and it is cross-party and, although we ask difficult questions, we ask them in order to make devolution work and to make it successful.

Donald Cameron

Yes, I agree with that.

Mark Ruskell spoke about what he described as the irony of the UK being so influential within the EU yet so bad, in his view, at explaining the benefits of membership. He spoke about respect for the rule of law—a subject that is dear to my heart—and the urgency of action that is required.

Gillian Martin made a very interesting contribution about her experience as the convener of two committees, dealing with the practical day-to-day issues that arise when LCMs come to a committee, and the ability of this Parliament to scrutinise UK Government decisions.

In one of the finest speeches in the debate, Foysol Choudhury spoke about the history of the Sewel convention and how it was built on unstable ground. He said that the phrase “not normally” was always going to be contentious. He, like many others, argued for a renormalisation of relations.

Sharon Dowey spoke about the need for compromise and engagement, and she said that it takes two to talk. In her view, parity is important: what applies to the UK Government also applies to the Scottish Government.

Finally, the minister made many points about centralisation as a result of Brexit, the issues arising from the Sewel convention and the fact that his experience as an MP from 2016 onwards—the Brexit years—was so important. He was standing in, very ably, for the cabinet secretary, who told the Constitution, Europe, External Affairs and Culture Committee that he would be in London to meet the UK Government. That is an example of co-operation between the Scottish and UK Governments that we can all celebrate.

There are fundamental questions about how devolution works outside the EU. We believe that we need a wider debate about the varied and complex issues that have been raised by the committee’s report. This is a debate that is not just for Governments and Parliaments; it is also for businesses, stakeholders, civic society and the wider public. We hope that the discussion has contributed to that. I support the motion in the convener’s name.