The Tory power grab is a threat to devolution

In 1997, the people of Scotland voted overwhelmingly – by 74 per cent to 26 per cent – to establish this Scottish Parliament.

Many will have done so to stop a Conservative Party with no mandate in Scotland from imposing policies with little or no support.

Throughout the 18-year period of Conservative rule in the 1980s and 1990s the Tories tried to recast Scotland in their own right-wing image.

That, undoubtedly, was a major driver for many people in the campaign for devolution.

Parties with different views of Scotland’s ultimate constitutional destination came together and focussed on where we agreed rather than on where we disagreed.

I hope, in this debate today, we will see a similar spirit.

Because the Tories haven’t lost their hunger to recast Scotland in that right-wing image.

The previous Tory tactic was to try to stop the Scottish Parliament from being re-established.

Having failed, today the Tory tactic is to try to bypass and constrain this Parliament – and Scotland’s democratic choices.

That is what the UK Government’s Internal Market proposals will do.

They take power from this Parliament and they hand it to Boris Johnson and Dominic Cummings in Westminster.

The Tories have hijacked and distorted reasonable principles such as mutual recognition and non-discrimination to disguise this power grab.

And to add insult to injury, not only do their proposals flagrantly undermine devolution, but they use Brexit – which the people of Scotland voted overwhelmingly against – as a justification for doing so.

Presiding Officer, the Scottish Government will oppose these proposals at every opportunity and we will work across this chamber, with the people & businesses of Scotland to build consensus in doing so.

The UK Government attempts to justify their proposals on the grounds that, having taken Scotland out of the EU and the rules that govern its single market, new arrangements are needed to ensure trade continues as now across the UK.

Yet UK ministers have so far been unable to provide an example – not a single one – of devolution threatening trade across the UK.

The reality, as the Scottish Government’s initial analysis of the White Paper shows, is that devolution is a driver, not an inhibitor, of prosperity.

And the White Paper’s repeated, dogmatic insistence on the danger of barriers to trade sits oddly with the UK Government’s decision to remove Scotland and the UK from the EU, a prosperous and highly integrated trade and regulatory partnership of 450 million consumers.

This is, of course, the real threat to trade and prosperity in Scotland and across the UK.

Presiding Officer, I want to set out to the chamber today, very clearly, why these proposals are such a threat to devolution, to jobs, to businesses, and to consumers and citizens across Scotland.

On devolution, there is an explicit power grab – a blatant acknowledgment that the UK Government is going to reserve the devolved policy area of state aid.

But, as reported in the Financial Times, this is clearly a source of tension within the UK Government. An individual close to the discussions was quoted as saying, “The current plan is an odd combination of reserving state aid for control from London and then agreeing to a free-for-all. They just want to be able to bung money at things and do not want UK internal market legislation cutting across that. It’s very confused.”

Elsewhere the UK Government wants to introduce a system where standards set by Westminster must be accepted in Scotland in devolved areas. Utterly regardless of the wishes of the people of Scotland, or the votes passed in this Parliament.

The implications of this are clear and profoundly worrying.

Scotland’s world class food and drink industry employs more than 115,000 jobs across the country and is worth £15 billion a year to the Scottish economy.

Its success is built on the quality and provenance guarantees that come with the Scottish brand.

Indeed, the UK Chancellor described Scotland as one of the UK Government’s ‘powerhouse brands’ on a visit to the Cabinet Secretary’s constituency just the other week.

But Rishi Sunak didn’t mention that ‘brand Scotland’ will be under direct threat from a US trade deal that lowers standards on food safety and animal welfare.

He didn’t mention this threat exists because the UK Government refused to accept an amendment to its Agriculture Bill, which would have protected farming from sub-standard food imports.

He didn’t mention that all six Tory MPs from Scotland voted shamefully against this amendment.

Under the Internal Market proposals, if Westminster accepts those lower standards, Scotland will be forced to accept them as well. I look forward to Douglas Ross explaining that one to the farmers of Moray, when he’s not too busy running the line.

There will be the ever-present threat of court action being taken by companies with deep pockets. Paragraph 9 of the White Paper says the proposed legislation will ‘guarantee the continued right of all UK companies to trade unhindered in every part of the UK.’

So, are private health companies operating in England or private water companies operating in England to have a guaranteed right to trade in Scotland?

Presiding Officer, members should remember that when the Tories say Brexit will be good for business – these are exactly the type of businesses they mean. A race to the bottom with ‘nothing off the table’, to quote Donald Trump.

Presiding Officer, these are not just the Scottish Government’s concerns.

Despite the ludicrously short consultation period as alluded to in the Greens amendment today – four weeks, in the middle of recess, months before the end of the transition period, and in the midst of a global pandemic, organisations from key sectors across Scotland – business, industry, farming, teaching and the environment – have made clear that these proposals are unacceptable.

The NFU says the proposals ‘pose a significant threat to the development of Common Frameworks and to devolution. The NFU stresses the need for agricultural support policies to diverge where necessary to reflect different needs and objectives in different parts of the UK.’

The Scottish Council for Development and Industry warns ‘the imposition of a single approach across the UK in devolved policy areas could be to the detriment of Scottish businesses and consumers.’

Scottish Environment Link is clear that the UK Government plans could ‘force Scotland to follow the lowest common denominator, especially where countries negotiating bilateral trade deals with the UK demand lower standards seriously undermining efforts to combat climate change and biodiversity decline.’

The General Teaching Council for Scotland say they would ‘not support the White Paper proposals for the Scottish teaching profession and believes that to do so would undermine the four UK nations’ devolved education functions.’

Presiding Officer, the White Paper says there will be exclusions from these measures, but paragraphs 50 and 144 make it clear that those exclusions could change.

And paragraph 154 makes it clear who would decide those changes – it will be Westminster, and not this Parliament.

The White Paper says: ‘the Government has made clear that the evolution and overall shape of the UK’s Internal Market will be overseen by the UK Parliament, and that key decisions will be put to the UK Parliament for approval.’

So, everything is up for grabs.

This proposed new law is also wholly unnecessary to protect trade. The Scottish Government has participated in good faith in the common frameworks project.

Once implemented, these voluntary arrangements are more than adequate to address any of the regulatory consequences of leaving the European Single Market.

Work is progressing well on these common frameworks, despite the difficulties caused by the UK Government’s changing Brexit policy. The Scottish Government has now agreed with the other Devolved Governments a revised delivery plan for common frameworks.

We remain fully committed to work to deliver these frameworks, on the basis of mutual agreement between the Devolved Governments across the United Kingdom.

But for the frameworks to operate as intended, we need far greater clarity and detail from the UK Government. We still don’t know what the UK’s future relationship with the EU look like with less than 5 months left of the transition period.

I now want to address perhaps the fundamental flaw in these proposals for the UK Government: the entirely inaccurate assertion that this is simply a matter of replicating the system of harmonised standards that the UK enjoyed as an EU member state.

This misconception comes partly from the assumption that there is a clearly defined and commonly understood system of laws and institutions that defines the ‘UK internal Market’, in a way that is comparable with the European Single market.

The White Paper ignores the profound differences in the way power is exercised and decisions are made in the EU, as opposed to the regime envisaged in the UK Internal Market proposals.

For example, the development of the European Single Market has been based on the principles of equality, cooperation, co-decision, subsidiarity and consent, and setting a baseline of minimum agreed standards that all member states’ own rules must be compatible with.

The UK Government’s proposals are based on unilateral decision-making and imposition, with no minimum standards or guarantees. Providing a vice-like grip for a Government with no electoral mandate in Scotland.

But the European Single Market rules recognise and allow for policy objectives alongside pure market economic considerations, for example, the health benefits of Minimum Unit Pricing.

The European Single Market principles ensure that decisions are taken as close to affected citizens as possible, that member states abide by the rules agreed by the EU, and that rights can be enforced by individuals and companies against their own governments if necessary.

The institutions of the EU also ensure that regional variations are taken into account.

The UK Government is, in fact, proposing the opposite of the European Single Market approach.

The White Paper includes no mechanism for negotiation or agreement between the four governments of the UK.

Instead, the mutual recognition mechanism would allow the UK Government to decide its standards for England which would have to be accepted across the other nations of the UK.

In practice, this would reserve the right under the doctrine of Parliamentary sovereignty to undo any decisions taken by the devolved governments which might be considered a constraint on the decision-making powers of the UK Parliament.

In reality, this means that the UK Government could impose decisions on the devolved governments with no right of repeal or means of redress.

The Conservatives are kidding themselves if they can’t see how this undermines the very foundations of devolution.

Distinguished legal commentator Professor Michael Dougan has noted: ‘the Parliamentary sovereignty of Westminster means that, inherently, the legislative aspect of the internal market will never be independent and impartial in a way that would be recognised in the EU.’

And the White Paper makes it clear that the UK Government wants to impose uniform standards in policy areas, such as building regulations, that were never part of European Single Market rules.

The Tories were anti-devolutionists in 1997.

And much like then, the Tories have got this badly wrong.

But, it is not too late for them to change tact.

These proposals will be bad for business.

It is not devolution, but the reckless decision of the UK Government to leave – not just the EU – but the transition period in less than 5 months’ time, in the middle of an economic crisis that is causing business uncertainty.

These proposals will be bad for consumers.

They will open the door to lower food standards and will provide an end to the precautionary principle that has served Scotland so well.

And these proposals will be disastrous for devolution.

This Parliament’s wishes and the democratic choices of the people of Scotland will be undermined and over-ridden.

The Scottish Government will not stand for it, and neither should the Scottish Parliament.

Jenny Gilruth, Minister for Europe and International Development, made this statement to open the Scottish Parliament’s debate on the UK Government’s proposals for a UK Internal Market, August 18th, 2020.