EU Exit and The Constitution
The Scottish Government believes the best future for Scotland is to be an independent country and member of the European Union. The overwhelming majority of people in Scotland voted to remain within the EU and subsequent elections have reinforced that strong opposition to Brexit.
Despite these repeated democratic votes, the UK Government removed Scotland from the EU, against its will, on 31 January this year. The UK currently still enjoys most of the economic benefits of EU membership as it is in a transition period in which rules continue to be aligned and the existing trading relationship is maintained but that period runs out at the end of this year.
In June the Scottish Government published a detailed case for extending that transition, given the impact of the COVID-19 pandemic on Scotland's businesses and public services and the difficulty of making preparations for such a dramatic change at this time. The UK Government, however, has refused to extend the transition and therefore a new relationship between the UK and EU will come into effect at the end of this year.
It is not clear whether or not there will be an agreement on the future relationship or whether the transition period will end with a deal. However, the UK Government's ambition for the new relationship is so limited that even if an agreement can be struck, the damage to Scotland and its people in many aspects of the relationship is likely to be comparable to "no deal." The Brexit process has already been hugely damaging to Scotland, but we will experience the full, negative, impact of Brexit from 1 January 2021 onwards. The Scottish Government is therefore being forced to prepare for this change, which will hit the Scottish economy hard, at the same time as tackling the pandemic.
There are now less than four months to implement the Withdrawal Agreement and the Northern Ireland Protocol; conclude the negotiations of the future EU‑UK relationship including parliamentary ratification; implement any agreement on the future relationship; and make the necessary practical, procedural and legal changes, including making businesses aware of what it will mean for them. The UK Government's highly political approach to the Northern Ireland Protocol has left businesses - and the UK's Devolved Administrations - largely in the dark as to what is intended.
In any event, it will not be possible to prepare fully for the inevitable economic damage that will be created by forcing Scotland into no deal or a poor deal in just a few months' time and during a period where the sole focus of many businesses will continue to be how to survive the pandemic. There will be a negative Brexit shock. The only question is how big that shock will be. The Scottish Government estimates that Scottish GDP could be up to 1.1% lower by 2022 compared to continued EU membership, this implies that the cost could amount to a cumulative loss of economic activity of up to £3 billion over these two years with much bigger long‑term costs. At a time where we are working tirelessly with people, communities and businesses across Scotland to avoid a second COVID-19 peak and the further economic damage that this would cause, this entirely unnecessary hard Brexit is a bitter pill to swallow.
We are also taking forward the UK Withdrawal from the European Union (Continuity) (Scotland) Bill to replace powers we will lose at the end of the transition period. This will help Scots law, where appropriate, after 31 December 2020 to keep up with future developments in EU law, and allow changes to be made to EU‑based laws which are already operating in Scotland using secondary legislation. Scotland can then continue to benefit from developments in EU laws and standards. The Bill also makes arrangements regarding domestic replacements for EU environmental principles and governance, including setting up a body to secure full and effective implementation of environmental law in Scotland. The Bill will be a strong signal to the EU that Scotland continues to uphold the EU's core values and could help to ease an independent Scotland's application for membership as an independent country.
We would aim to rejoin the EU, not simply as a country with much to gain, but as one which has much to contribute. The basic principle behind the EU - of independent nations working together for a common good - is one which appeals to many people in Scotland, and the recent experience of responding to COVID-19 has seen EU nations work together, whether in regard to financial measures through the Recovery Fund, joint procurement initiatives such as on PPE and vaccines, and sharing information and co‑ordinating on areas like border controls. Scotland also has day to day experience of the practical advantages of EU membership, for example, benefiting from the EU regulations that have made our rivers and coasts cleaner or through the collaborations that our universities have established with research partners across the continent.
As well as the solidarity the EU offers to smaller member states, we recognise the opportunities that EU membership provides for people, for societies and for businesses. EU freedom of movement has given opportunities to people living in Scotland, and has encouraged new Scots to contribute to our economy and our society. One of our priorities, at present, is to support those EU citizens to stay in Scotland. And of course, our businesses have benefited from the single market. We are leaving the European Union, at a time when we have never benefited from it more. In an age when intolerance and bigotry seems to be on the rise, the values of the EU - values of democracy, equality, solidarity, the rule of law and respect for human rights - are more important than ever. At a time of climate crisis, co‑operating with the EU and exchanging expertise and experience improves our ability to tackle climate change at home, and amplifies our voice in international negotiations. And in an age of great trading blocks, the EU represents our best opportunity to benefit from free trade, without engaging in a race to the bottom.
In all of these issues, Scotland is a country which can and will make a difference - we will lead by example where we can, but we will also learn from the example of others. We know we will do this more effectively by working in partnership, and our sovereignty would be amplified, not diminished, by membership of the EU.
The UK Government's Internal Market legislation
In July 2020 the UK Government published proposals which it argues are necessary to protect the UK's "internal market" after Brexit. Those would include a requirement that goods and services from one part of the UK would be automatically accepted in another, regardless of the standards applied. As a result, the democratic decisions of the Scottish Parliament - on food safety, animal welfare, the environment, public health and a host of other matters could be undermined and effectively rendered meaningless. Scotland would have to accept lower standards in matters for which the Scottish Parliament is responsible, regardless of the Parliament's views.
This has profound implications for citizens, businesses and consumers across Scotland. For example, the food and drink industry is worth £15 billion a year to Scotland and supports over 115,000 jobs, many in economically fragile rural and island communities. The success of this sector is built on the quality and provenance guarantees that come with the Scottish brand, supported by high EU standards. These proposals would force Scotland to accept lower food safety, animal health and environmental standards, effectively imposed by a UK Government in pursuit of a US trade deal.
These proposals are the most significant threat to devolution since the creation of the Scottish Parliament in 1999. In August 2020 the Scottish Parliament voted overwhelmingly to oppose them. The Welsh Government has also made clear its opposition, condemning the "unnecessary, unworkable [and] heavy‑handed" plans as "a direct attack on the current model of devolution" that would "emasculate the current rights of the devolved institutions". The Public Administration and Constitutional Affairs Committee at Westminster has itself made clear that the UK Government's proposals "will effectively create new reservations in areas of devolved competence".
The UK Government has produced no convincing reason for why such sweeping reductions in devolved powers are needed. Indeed it has produced these proposals at a late stage despite on‑going productive work in progress between the four UK governments to agree common frameworks to replace EU arrangements. That approach - agreement - is the correct way forward to respect devolution and protect the interests of people, businesses and the environment across the UK. Food safety for example is a fully devolved matter. Food Standards Scotland is the national regulator and works closely with partner bodies across the UK. Work is proceeding well on a food standards framework - an agreed common approach to managing policy difference across the UK while ensuring clarity and coherence for businesses and consumers. This is the correct way to address the issues the UK Government raises in its White Paper
The Scottish Government has made clear that we will resist this attack on devolution at every turn - and Scotland's Parliament has made clear its opposition. We have published detailed initial analysis of why the plans are unnecessary and, should the UK Government persist and introduce legislation, we will not recommend that the Parliament give its consent. We have also made a commitment not to diverge in any area to be covered by a common framework until these are completed, and urge the UK Government to make the same commitment.
The Scottish Government has a democratic mandate in this Parliament to offer the people of Scotland their right to choose a future as an independent country in which decisions about Scotland are taken by the people who live here.
In 2014, shortly before the referendum of that year, the political leaders of the campaign against Scottish independence affirmed an important principle when they collectively agreed: "Power lies with the Scottish people and we believe it is for the Scottish people to decide how Scotland is governed."
The right of people in Scotland to decide their own future was also unanimously acknowledged in the Smith Commission report of November 2014 which said: "It is agreed that nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose."
In line with its mandate, constitutional precedents and agreed all‑party principles, the Scottish Government sought an agreement on an order under Section 30 of the Scotland Act 1998 to place a referendum on independence beyond legal challenge.
The Scottish Parliament has already passed into law the Referendums (Scotland) Act which sets out the framework, campaign rules and conduct of polls and counts for any referendum that is within devolved competence.
A future independence referendum would apply these rules. Under the terms of the Referendums (Scotland) Act, a further Act of the Scottish Parliament is required setting the question to be asked and the date of the poll before a referendum can be held.
Because of the pandemic the Scottish Government paused work on independence and it will clearly not be possible to organise and hold an independence referendum that is beyond legal challenge before the end of the current Parliamentary term next year.
However, before the end of this parliament, to set out the terms of a future referendum clearly and unambiguously to the people of Scotland, the Scottish Government will publish a draft bill for an independence referendum setting out the question to be asked, subject to appropriate testing by the Electoral Commission, and the timescale in which, within the next term of Parliament, we consider the referendum should be held taking account of the development of the COVID-19 pandemic at the time of publication, and ensuring the flexibilities to respond to any further restrictions caused by it.
If there is majority support for the bill in the Scottish Parliament in the next term, there could then be no moral or democratic justification whatsoever for any UK government to ignore the rights of the people of Scotland to choose our own future.
The Scottish Elections (Reform) Act 2020 supports the piloting of new approaches to make voting more accessible for those facing the greatest barriers. It requires the Electoral Commission to consider the needs of persons with disabilities in reviewing pilots and reporting on elections. We are also working on solutions for people with sight loss to enable them to vote independently and in secret. Through the Scottish Elections (Franchise and Representation) Act 2020 we extended the franchise for devolved elections to all foreign nationals with leave to remain from August 2020. This Act also reaffirms the rights of EU nationals to vote and stand for election in Scottish Parliament and local government elections after EU exit.
We expect the Scottish Parliament Election scheduled to be held on 6 May 2021 to go ahead. We are working with the Electoral Management Board to explore options for running the election in circumstances different to the norm, if required.
In 2019, we established a Citizens' Assembly to explore some of the major challenges facing Scotland: what kind of country we should be; how can Scotland best overcome challenges, including those from Brexit; and, what further work is required to enable people to make informed choices about the future of Scotland. To date, the Citizens' Assembly has engaged on wide ranging issues - from what leads to a good life and a good society, to Scotland's financial choices to create a sustainable society. We strongly believe that the Citizens' Assembly can continue to play an important role in providing space for an informed, independent and adult conversation about the issues that are most important to the people of Scotland as we respond to the COVID-19 pandemic. In August 2020, following a hiatus due to the pandemic, the Assembly announced a move to online working and published an interim report summarising their discussions so far. The report considers the values that members suggested are important to a vision for the future of the country and identified three broad areas of focus: fair work and fairer taxes; a greener Scotland; and citizen information and improving decision making. It also highlighted the importance of discussing the impact of COVID-19 and different ideas about recovery and renewal as members reach their conclusions. The Assembly will reconvene with a series of online meetings between September and the publication of a final report and recommendations in December 2020.
We remain fully committed to making the Scottish government work better for the people it serves, and ensuring we are fully transparent in the process. While COVID-19 led to a delay in publication, our second Open Government Action Plan is on track for delivery in December 2020. We know that continuing this candidness and transparency will play a crucial role in maintaining and building trust in Government as we collectively recover from COVID-19. Building, for example, on our success in accelerating the handling of Freedom of Information requests within the Scottish Government so that 96% of requests were answered on time in the 9 months to March 2020, exceeding the target agreed with the Scottish Information Commissioner. Our third action plan will be developed over the first 6 months of 2021 and will bring a focus to Scotland's commitments to openness, accountability, and citizen participation as part of our strategic plan to emerge, renewed, from the pandemic.
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