“An assault on devolution” – Michael Russell’s statement on the Tory power grab

This is the full ministerial statement Michael Russell, Cabinet Secretary for the Constitution, Europe and External Affairs, made in the Scottish Parliament on 10th September 2020, regarding the UK Government’s “UK Internal Market” Bill.

Presiding Officer,

The UK Government’s Internal Market Bill that was published yesterday represents the biggest threat to devolution that Scotland has seen since this Parliament was re-convened in 1999 after 292 years of adjournment.

That threat comes from a gang of hard-right-wing anti-devolution Tory Brexiteers who said during the Brexit referendum – in which people in Scotland voted overwhelmingly to remain in the EU – that they wanted to take back control.

And now we know what they wanted to control – us.  Our country of Scotland and our right to make our own decisions and choose our own future.

They are trying to do so by removing from the people of Scotland and this Parliament the powers which were given to it 23 years ago this coming week by an overwhelming vote of our fellow citizens.

But that popular mandate, Presiding Officer, means that it is the duty of every member elected by Scotland to stop them.

That is not just the view of this SNP Government. Here is what the Welsh Labour Government has said about this bill:

“the UK Government plans to sacrifice the future of the union by stealing powers from devolved administrations. (It) is an attack on democracy and an affront to the people of Wales, Scotland and Northern Ireland, who have voted in favour of devolution on numerous occasions.”

Presiding Officer,

Last month this Parliament considered the original proposals set out in the UK Government White Paper on the Internal Market, and voted overwhelmingly – by 92 votes to 31 – to reject them.

Now we know precisely what those proposals are in legislative terms and what they actually mean for businesses, for jobs, for the lives of the ordinary citizens of Scotland and for their Parliament.

But this bill also has had something added to it which was not in the consultation, brief as that was.

On Monday, it was merely a press rumour but now we know that the UK Ministers intend to unilaterally alter and override solemn and binding commitments in an international treaty agreed by the House of Commons only in January of this year.

And on Tuesday, we witnessed something I don’t think anyone in this chamber would have thought possible: a UK Secretary of State, standing at the Westminster despatch box, calmly informing the House of Commons that the Government intends with this bill, to break international law.

The rule of law is the cornerstone of a functioning democracy. Without it, a state is nothing but a collection of desperadoes set on whatever aim they choose, without restraint and no matter the consequences.

Moreover, as the Lord Chief Justice of Northern Ireland Sir Declan Morgan pointed out yesterday, such actions also undermine the domestic legal scene. As he put it:

“Where there is an indication that a state intends to break international law, it may have a domestic effect on the confidence that the public may have in the legal system generally.”

So Johnson’s reckless actions are now aimed not just at us, but also will trash the UK’s already tarnished international standing, put at grave risk sustainable and beneficial trading and economic relationships with most of our international partners and weaken the legal basis of all our lives.

And all that whilst he and his irresponsible and reckless government are hurtling in the midst of a pandemic and the worst global recession in many generations towards a hard EU transition deadline of 31 December – a deadline entirely of its choosing – with only two bad options left (a disastrous no deal, or an almost equally damaging low deal) and armed only with block headed arrogance, a false sense of exceptionalism and this entirely unnecessary and deeply damaging bill which will actually make every problem worse.

For the UK Government has not only signalled its intention to break international law.

It is also signalling its intention to break domestic law – to break the devolution settlement which was once described as the “settled will of the Scottish people.”

Presiding Officer, let me now turn to the detail of the Bill.

There is much in it that repays study, if only to reveal how contemptuous the Tories are of this place and of the people we represent.

  • At Clauses 2 to 9, there are sweeping powers to compel Scotland to accept lower standards set elsewhere in the UK – on animal welfare, food safety, environmental protections and a host of other areas. These powers would radically undermine the ability of this Parliament to serve the people who elected it.
  • At Clause 46, powers are given to UK government ministers to design and impose replacements for EU spending programmes in devolved areas such as infrastructure, economic development, culture and sport, education and training, or possibly more general public spending in these areas. Bypassing democratically elected MSPs and Ministers in Scotland these jeopardise current Barnett funding levels and will inevitably lead to policy confusion. But worse, given the centralising ambitions of the UK Government, no-one should be surprised if in the future they divert money that should be under the control of this Parliament for schools and hospitals to pay for what appears to be their priority of Union Jack badged projects. They are already limbering up as we saw on twitter last night to spend money – taken from other Scottish budgets – on their pet projects in the few Tory constituencies left in Scotland.
  • At Part 4, the bill establishes a new unelected monitoring body called the Office of the Internal Market, which will have the power to pass judgment on devolved laws and invite businesses with deep pockets to challenge the democratic decisions of this Parliament.
  • And Clause 48, reserves state aid which is – indisputably and without any pretence to the contrary – a blatant power grab. As we now also know, as a result of a decision sneaked out yesterday in the midst of the bill chaos, the state aid provisions will merely mirror those of the WTO, making a deal with the EU even more difficult, and provide little or no scrutiny or rigour.

Presiding Officer,

The UK Government says the bill will guarantee companies can trade unhindered in every part of the UK.

But this not what this is about. There is no threat to such trade and never has been. This Government endorses the need for such trade and will always do so.

What they want is something different.

In order to deliver bad trade deals, which is all they can expect from their weakened state, they want private health companies to have a guaranteed right to trade unhindered in Scotland, weakening and undermining the Scottish NHS.

They want private water companies to be given a guaranteed right to trade unhindered in Scotland undermining standards and raising prices.

And they want, once their hooks are in, to be able to alter anything we do with just a flourish of a UK Minister’s pen.

Because although the bill says that there may be exclusions from the principles of non-discrimination, the explanatory notes to the bill says the bill will “provide the BEIS Secretary of State with a power to alter these exclusions to retain flexibility for the internal market system in response to changes in market conditions.”

In other words, the UK Government can alter whatever we do, whenever it likes regardless of the views of the people of Scotland.

That is the open door to the kind of creeping privatisation and rampant de-regulation that we are already seeing south of the border.

Yet all the while they behave as if our heads button up the back, insulting our intelligence with the claim that this is in fact “a power surge”.

That is only true in the sense that power surges destroy everything they touch. In reality it is nothing of the sort. Every one of the powers they trumpet is already devolved, and already exercised in the context of a coherent set of agreed EU laws and institutions that guarantee flexibility and local autonomy.

Contrast that with the system this bill wishes to put in place – a system in which the UK Government can unilaterally, and arbitrarily, impose its rules on Scotland, regardless of the wishes of this Parliament.

In the face of widespread stakeholder concern at these proposals, UK Ministers have resorted to the familiar tactic of ignoring or blatantly misrepresenting the facts.

But facts are chiels that winna ding, as Burns observed.

Organisations – farming, business, public health, environmental and many others – across Scotland and the UK are deeply concerned at these proposals. They are seen widely – and correctly – as incompatible with devolution, bad for businesses and the consumers, dangerous for the environment, and an impediment to necessary and effective devolved public health measures.

And they threaten to undermine the good progress made on common frameworks, the preferred, proportionate and agreed means of managing policy difference across the UK when EU rules no longer apply.

Presiding Officer, it is late in the day for sense to prevail in the Johnson Government. But there is still just time if they commit now to that agreed process.

For my part I repeat the undertaking I made in the Parliament on 18 August, that we will not diverge in any frameworks area (existing or new) while these are finalised, and urge the UK Government to do the same.

This bill is actually a shabby blueprint for a much weakened constitutional settlement that would leave Scotland defenceless.

It is, as the First Minister said yesterday, an assault on devolution the like we have not experienced since the Scottish Parliament was established.

We cannot, and will not, allow that to happen.

The UK Government have now asked this Parliament for legislative consent for this bill.

But in addition to the damage it will do – reason enough to refuse consent – it surely cannot be right that we are expected to agree to something that is, in the admission of the proposers, against international law.

The Scottish Government will therefore bring to this chamber a motion to refuse such consent. We will also publish a full rebuttal of the bill which we will distribute nationally and internationally and take whatever other steps are necessary to defend what we have and what we need to retain in order to build for the future.

Presiding Officer, it will be no surprise to anyone that the Scottish government remains of the firm belief that the people of Scotland have the right to choose their own future and we are determined to make that happen. After the events of this week, that resolve is a steadier than ever. That is why, before the end of this parliament, we will set out the terms of a future independence referendum clearly and unambiguously to the people of Scotland, in a draft referendum bill.

But even if you don’t believe – even after all this – that our interests as a nation would be better served as a full, normal, EU member state, no member of this Parliament of any constitutional or political persuasion will, I hope, consent to a bill that offends international law whilst also breaking and discarding the established constitutional settlement.

If any member does vote for that then what they are voting for is not just Tory illegality, it is, in fact, the end of devolution.

That is what is at stake here and that is what we must all defend with every skill we have, every ounce of determination we can summon and with a steely resolve never – never – to be defeated.