Scotland, Europe and the Constitution
More than two years on from the European Union Referendum, and with only six months to go until the day that the UK Government intends the UK to leave the EU, the terms of withdrawal and the future relationship remain uncertain. As each day passes, more and more evidence demonstrates that leaving the EU will have profound and damaging effects on our economic prosperity and the way we live our lives.
We remain clear that Scotland’s interests would be best served by continued membership of the EU, in line with the overwhelming wishes of the people of Scotland. However, in December 2016 we were the first administration in the UK to set out in Scotland’s Place in Europe a detailed policy blueprint that would minimise the damage of withdrawal. We set out how, short of remaining in the EU, continued membership of the European Single Market and Customs Union is the best solution for Scotland and the UK as a whole. That has been our consistent position and one which has been borne out by the evidence that has mounted over the two years. We are determined to maintain a Scotland that is fair, prosperous, open and tolerant.
We will continue to argue for membership of the Single Market and Customs Union as the least worst outcome from any exit from the EU, and to press the UK Government and Westminster Parliament to adopt this approach. We will also continue to press the UK Government in particular to rule out exiting the EU without an agreement on transition and the future relationship. A ‘no deal’ exit is completely unacceptable because of the econonic, social and environmental costs that will be incurred.
Unfortunately the UK Government continues to raise the prospect of such an outcome publicly. Therefore, as a responsible government, we have a duty to prepare for all possible exit scenarios including the most damaging, to support the Scottish economy, organisations and individuals as best we can. As part of this, we are working hard to press the UK Government to consider fully the financial implications of EU exit for Scotland and we have been absolutely clear that Scotland must not be any worse off in respect of the funding allocations that replace those currently provided from the EU.
The UK Government’s ‘no deal’ technical notices present a worrying picture of what Brexit could mean in practice for businesses and the people of Scotland. Those notices show us that companies will need to comply with new and as yet unclear customs arrangements to do business. Health service suppliers, for example, will need to navigate through two separate regulatory regimes in the EU and UK. Deals will still need to be negotiated with third countries on research.
Where we can, we are making sensible practical preparations for various outcomes. For example, we are stepping up support for businesses to find their way through the complexities of the changing circumstances, and for our rural economies to adapt to the new arrangements. We will do all that we can to retain and attract talent to Scotland to support our ambitions for world-class businesses and public services. We are seeking to ensure that there is recognition of Scotland’s separate criminal justice system and law enforcement agencies in the co-operation on security, law enforcement and criminal justice that is vital to ensure the safety and security of all our citizens. And we are making the necessary contingency arrangements to ensure that we will continue to have access to the necessary medical supplies and equipment that we need in Scotland.
Preparations for Brexit also require a challenging programme of legislation to make the necessary changes to the devolved Scottish statute book to ensure that, as far as possible, the same laws, rules and schemes will operate after the UK leaves the EU as they did before. The Scottish Parliament will have an essential role to play in scrutinising and approving this programme.
Exit from the EU also has profound implications for Scotland’s constitutional position. We can see the threat in the approach that the UK Government took to the EU (Withdrawal) Act 2018 and the Continuity Bill passed by the Scottish Parliament in March. First, the UK Government referred the Continuity Bill to the UK Supreme Court which prevented the Bill coming into force. Secondly, the UK Government proceeded to legislate in devolved areas and to change devolved competence despite the Scottish Parliament refusing consent under the Sewel Convention. Thirdly, the Withdrawal Act allows UK Government Ministers to change the competence of the Scottish Parliament without its consent, breaching a fundamental principle of the devolution settlement put in place in 1998.
We are determined to protect the Scottish Parliament, and the devolution settlement that the people of Scotland voted for in 1997, from such threats. Most immediately, there need to be measures to strengthen the Sewel Convention and rebuild trust that it will be respected by the UK Government. We have set out options to achieve this, including greater legislative protection. Further work is now required between the Scottish and UK Governments to make progress. We have made clear that we do not plan to introduce any further motions seeking legislative consent on Bills related to withdrawal without that.
Events on the Withdrawal Act, on negotiations for withdrawal, and preparations for EU exit more generally have exposed the weaknesses in the current arrangements for the conduct of intergovernmental relations across the UK. The Joint Ministerial Committee, chaired by the Prime Minister and including the First Minister, agreed in March that these arrangements need to be reviewed. The Scottish Government will press for substantive improvements to be made as part of this review.
In fact, withdrawal from the EU necessitates an all-round consideration of the distribution of power within the UK. Centralisation of decision-making in Whitehall and Westminster must be avoided, for example in areas where common frameworks are put in place across the UK, so that devolution is respected.
In addition, there must also be a re-examination of areas where legislative powers are currently reserved but are of acute concern for Scotland, including immigration, protection of employment and other rights, and the development of future UK trade arrangements.
We have already set out a comprehensive assessment of the constitutional implications of withdrawal from the EU, including areas not directly connected with EU membership. And we have set out in more detail the opportunities for Scotland from a greater role in decision-making in areas such as migration and a greater role in the development of the UK’s international trade arrangements. We will continue to develop proposals for the future governance of Scotland, and the UK, to secure Scottish interests following withdrawal, increase the powers of the Scottish Parliament and contribute to a wider debate on the nature of the governance of these islands in the future.
At the end of the period of negotiation with the EU, and when the terms of Brexit are clearer, we will set out our judgment on the best way forward for Scotland at that time, including our view on the precise timescale for offering people a choice over the country’s future.
Email: Kathryn Fergusson
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House