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Finance and Constitution Committee Finance and Constitution Committee Tuesday 13 March 2018 Session 5 © Parliamentary copyright. Scottish Parliamentary Corporate Body Information on the Scottish Parliament’s copyright policy can be found on the website - www.parliament.scot or by contacting Public Information on 0131 348 5000 Tuesday 13 March 2018 CONTENTS Col. UK WITHDRAWAL FROM THE EUROPEAN UNION (LEGAL CONTINUITY) (SCOTLAND) BILL: STAGE 2 ...................... 1 FINANCE AND CONSTITUTION COMMITTEE 9th Meeting 2018, Session 5 CONVENER *Bruce Crawford (Stirling) (SNP) DEPUTY CONVENER *Adam Tomkins (Glasgow) (Con) COMMITTEE MEMBERS *Neil Bibby (West Scotland) (Lab) *Alexander Burnett (Aberdeenshire West) (Con) *Willie Coffey (Kilmarnock and Irvine Valley) (SNP) *Ash Denham (Edinburgh Eastern) (SNP) *Murdo Fraser (Mid Scotland and Fife) (Con) *Emma Harper (South Scotland) (SNP) *Patrick Harvie (Glasgow) (Green) *James Kelly (Glasgow) (Lab) *Ivan McKee (Glasgow Provan) (SNP) *attended THE FOLLOWING ALSO PARTICIPATED: Claudia Beamish (South Scotland) (Lab) Donald Cameron (Highlands and Islands) (Con) Jackson Carlaw (Eastwood) (Con) Maurice Golden (West Scotland) (Con) Jamie Greene (West Scotland) (Con) Liam Kerr (North East Scotland) (Con) Gordon Lindhurst (Lothian) (Con) Dean Lockhart (Mid Scotland and Fife) (Con) Mark Ruskell (Mid Scotland and Fife) (Green) Michael Russell (Minister for UK Negotiations on Scotland’s Place in Europe) Tavish Scott (Shetland Islands) (LD) Graham Simpson (Central Scotland) (Con) Colin Smyth (South Scotland) (Lab) CLERK TO THE COMMITTEE James Johnston LOCATION The Chamber 1 13 MARCH 2018 2 Members should not put their identification Scottish Parliament cards into the consoles. I have already seen some members doing that—I know that it is a habit that Finance and Constitution they will want to continue. Members should not press the request-to-speak buttons, either. Committee Instead, the microphones will become active as they would normally do in a committee meeting. In Tuesday 13 March 2018 other words, members should behave as if this was a committee meeting. [The Convener opened the meeting at 17:45] Section 1—Purpose and effect of this Act UK Withdrawal from the The Convener: Amendment 58, in the name of European Union (Legal Liam Kerr, is grouped with the other amendments Continuity) (Scotland) Bill: Stage that are shown on the groupings paper. 2 Liam Kerr (North East Scotland) (Con): Thank you for allowing me to attend the meeting, The Convener (Bruce Crawford): Good convener. evening and welcome to the ninth meeting in 2018 My three amendments in this group are entirely of the Finance and Constitution Committee. I ask a function of the need for clarity. It is imperative all members who are in attendance, as well as that the bill expresses precisely what it is for, what officials and so on, to make sure that their phones it intends to do and how it intends to go about it. will not interfere with proceedings. The concept of legal certainty is not merely The only item of business on our agenda is promoted by me; it is one of the fundamental scrutiny of the UK Withdrawal from the European principles of European Union law. According to the Union (Legal Continuity) (Scotland) Bill at stage 2. European Court of Justice, the law must be I welcome to the meeting the Minister for UK certain, clear and precise, and the implications of Negotiations on Scotland’s Place in Europe, Mike each law must be foreseeable. Legislation must be Russell, and his officials, as well as non-members worded so that it is clearly understandable by of the Finance and Constitution Committee. those who are subject to it. It is with that guiding Members will be aware that we have a principle in mind that I lodged amendments 58, 60 substantial number of groups of amendments to and 65—and, indeed, all the amendments that I consider. Although, at this stage, I do not intend to will speak to tonight. impose time limits on contributions, I am mindful of Amendment 58 proposes that the word the need to ensure that sufficient time is allowed “prospective” in section 1, page 1, line 7 be for consideration of all the amendments, including deleted. That would clarify that withdrawal from those in the later groups, so members and the the European Union is not prospective and that minister are asked to keep their contributions as the United Kingdom is withdrawing from the EU. concise as possible. In addition, I am aware of the That is important. It is about being specific, right at demands on members and the minister, and I am the top of the bill. We need to recognise that the particularly aware of the duty of care towards UK is leaving the EU, and section 1(1) needs to parliamentary staff and Government officials, so I make that explicit. propose that we aim to finish the meeting at around 10 o’clock. However, I will allow the There is good legal reason for such an meeting to go beyond that time if it is judged that approach in so far as the bill will have effect only that is required. once we leave the EU. It cannot be acceptable that the very first section in the bill should Members will also be aware that the Parliament countenance any doubt on that. Let me be clear: has agreed to extend the deadline for the word “prospective” countenances doubt. It consideration of stage 2 so that, if needed, we will does not mean “has not happened yet but will do have the opportunity to continue stage 2 so”. According to the “Oxford English Dictionary”, it proceedings tomorrow morning. The clerks have means “likely to happen at a future date”, which is issued a revised agenda and we will meet not the same. The word “prospective” should be tomorrow morning at 8 am. The stage 2 deleted. proceedings will be the only item on the agenda and we will consider the scheduled legislation at Amendment 60 is also intended to provide our meeting on 21 March. All of that means that clarity of expression. As currently drafted, section we have at least eight hours at our disposal to 1 speaks in hypotheticals, whereas my view is that consider amendments. it should be clear. Is a provision made under the bill enforced before the relevant date? I presume that the draftsman will consider that at the time. It 3 13 MARCH 2018 4 is surely far preferable to talk in absolutes when I move amendment 59. an absolute truth exists. A provision made under I lodged amendment 64 to try to bring clarity to the bill either is or is not incompatible with EU law. the operation of the bill. I follow a similar line of Amendment 60 seeks to make that clear. argument about how the bill is drafted to the one Amendment 65 follows the same logic. I do not that Liam Kerr put forward. Section 1(3) says: understand—and worse, I do not think that those “‘the relevant time’, in relation to any provision of this Act who are subject to it will understand—why the or any provision made under it”— caveat is necessary. Something either is or is not within the legislative competence of the Scottish in other words, the date on which any provision of Parliament. That is the test against which it should the act will come into effect—will be the date when be judged, and it is not helpful to set up a the EU law in question hypothetical whereby someone must hypothesise “ceases to have effect in Scots law as a consequence of that it would be legislatively competent if it were UK withdrawal.” contained in a particular place. That seems to be an unnecessarily complex Besides that, there is a question over whether way of addressing a fairly simple issue. The the bill is legislatively competent. If the Scottish European Union (Withdrawal) Bill at Westminster Parliament passes the bill, it will become an act of provides that the date on which we are leaving the the Scottish Parliament. Anything that could be EU is 29 March 2019, at 11 pm. It is clear that it is hypothesised to be contained in it or made under it at that point that EU law will cease to have effect would become part of devolved legislative across the UK, including in Scotland. That, competence, even though the act’s devolved therefore, is the date that should be referred to in legislative competence could be challenged. section 1(3). Clarity is required, and amendment 65 would Another date may be agreed—for example, achieve that. because of transitional arrangements that are put I move amendment 58. in place. In that case, there is provision in the withdrawal bill for a minister to amend the date of Murdo Fraser (Mid Scotland and Fife) (Con): I 29 March 2019, and that right of amendment is have lodged two amendments in the group— reflected in my amendment 64. Not to agree to the amendments 59 and 64—and I will talk to them in amendment would potentially create some turn. uncertainty as to the date on which the provisions Amendment 59 would insert at section 1, page in the bill that is before us will come into effect. My 1, line 11 the declaratory statement: view is that it is simpler and more accurate to tie the effective date in the bill to the date in the “A decision by the Supreme Court that any or all provision of this Act is outside the legislative competence of withdrawal bill to ensure that there is the Scottish Parliament must be complied with.” complementarity between the two bills, and that is the reason behind amendment 64.
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