Trade (Australia and New Zealand) Bill debate: Ministerial statement

Statement delivered to the Scottish Parliament by Trade Minister Ivan McKee on 14 March 2023.

Presiding Officer, it is with no small amount of regret and frustration that we find ourselves here today considering this motion.

Yet again, it appears that the UK Government is willing to play fast and loose with devolution, and to pay little heed to the democratic role of this Parliament in scrutinising law made in devolved areas.

The Trade (Australia and New Zealand) Bill would provide UK Government Ministers with a delegated power to legislate directly on devolved matters in Scotland, bypassing Scottish Ministers and the Scottish Parliament entirely.

The one thing we can be thankful for is that the Bill, despite its grand-sounding title, has a relatively narrow focus.

Our views on the trade deals which the UK Government has agreed with Australia and with New Zealand are well known. The Scottish Government has no direct role in negotiating these deals and we are very concerned by the impact of both agreements; particularly with regard to agri-food. But that is not today’s focus.

This Bill is solely about the implementation of the government procurement chapters of those agreements.

As a result of these agreements, amendments are needed to procurement legislation to extend duties of equal treatment to bidders from Australia and New Zealand, and to make some minor amendments to procedural rules.

Procurement is, of course, a devolved matter.

The UK Government has opted in this Bill to confer a power to make these amendments by secondary legislation.

This power is drafted too broadly and, of greater concern, would be exercisable concurrently by both UK and Scottish Ministers, meaning that UK Ministers would be able to exercise it in devolved areas without securing the consent of Scottish Ministers.

The Bill also allows for the implementation of future amendments to the Australia and New Zealand agreements. This is a curious provision to include when the agreements have only just been reached, and the power is expected to be repealed by the UK Government’s Procurement Bill in the coming months.

The Scottish Government’s Legislative Consent Memorandum did not recommend consent to this, and the Economy and Fair Work Committee’s subsequent report – whom I thank for their efforts – concluded that there should be a means for the Scottish Parliament to scrutinise regulations laid by the UK Government that fall within devolved competence.

I, and officials, have engaged with counterparts in the UK Government over many months in an effort to address these concerns.

I met with the UK Minister for International Trade in early December and have written to him twice since then and met with the relevant UK Government Minister earlier today.

We have suggested three different ways in which the Bill could be appropriately amended:

The first option would be to make the provision necessary to implement these agreements on the face of the Bill, allowing the Scottish Parliament to consider precisely what it might be consenting to;

The second option would be to amend the power so that it is conferred solely on Scottish Ministers in relation to devolved matters;

And the third option would be to introduce a statutory requirement for UK Ministers to secure the consent of Scottish Ministers before exercising the power in relation to devolved matters.

These are entirely reasonable and practical suggestions, which the UK Government has unfortunately rejected out of hand.

The UK Government’s view, one that I do not accept, is that it must maintain a power by secondary legislation to implement international obligations, in order to ensure that they are complied with.

But such a view implies that of the two governments, it is the Scottish Government which is the one which has difficulty with the rule of international law. I don’t think that is a conclusion that many observers would be drawing right now.

Indeed, the Scottish Government has implemented our international obligations in relation to procurement successfully, separately from and sometimes differently to, the rest of the UK for almost 20 years now.

At no point has there ever been any question mark raised over our compliance with international obligations.

The UK Government did approach us with what it described as a compromise proposal, something we have discussed with them through that dialogue.

If we were willing to recommend consent to the Bill, it would be willing to amend the Bill so that the power would only become exercisable by UK Ministers in relation to devolved matters if either:

The Scottish Ministers asked the UK Government to legislate on their behalf – which would clearly be acceptable to us; or

If following a request from the UK Ministers, the Scottish Ministers had failed to legislate within 15 days.

While we may have been able to secure an improvement on the ludicrous idea that Scottish Ministers would only have 15 days from the arbitrary date of any such request in which to consider, draft and make any legislation, the UK Government was clear that it would not budge on the issue of consent. Of course this is a significant matter of principle, and so I was unable to agree to their proposal.

Presiding Officer, it is not for the lack of effort on our part that we have ended up in this situation.

But so long as the Trade (Australia and New Zealand) Bill contains a provision to allow UK Ministers to be able to legislate in a devolved area without first seeking the consent of Scottish Ministers, I cannot recommend this parliament gives its consent.  

I believe it is also worth noting that the Welsh Senedd has withheld its consent in respect of this Bill as it falls within the legislative competence of the Senedd.

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