Scottish Devolution Settlement: Retained EU Law

Brendan O'Hara Excerpts

Wednesday 19th October 2022 Westminster Hall

[Mrs Sheryll Murray (in the Chair)]

I wish to make a short statement about the sub judice resolution. The question whether provisions in the draft Independence Referendum Bill relate to reserved matters under the Scotland Act 1998 has been referred to the Supreme Court and a judgment is anticipated in the coming months. I am exercising the discretion given to the Chair to allow reference to the issues concerned, given their national importance.

[Brendan O'Hara (Argyll and Bute) (SNP)]

I beg to move,

That this House has considered the impact of retained EU law on the Scottish devolution settlement.

It is a pleasure to see you in the Chair for this morning’s debate, Mrs Murray, and I welcome the Minister to his new post.

Should this shambles of a Government manage to stumble on past the weekend, we are being told that their Retained EU Law (Revocation and Reform) Bill will come before the House on 25 October. The Brexit freedoms Bill, as the Government like to call it, will give UK Ministers unprecedented powers to rewrite and replace almost 2,500 pieces of domestic law covering matters such as environment and nature, consumer protection, workers’ rights, product safety and agriculture, and that will be done with the bare minimum of parliamentary scrutiny. It is, in short, an ideologically driven deregulatory race to the bottom that will do enormous damage to our society and our economy.

The Bill, taken in conjunction with the United Kingdom Internal Market Act 2020, will fundamentally undermine and alter the devolution settlement by giving primacy to UK law in areas that are wholly devolved, such as environmental health, food standards and animal welfare. Today, I thought it would be useful to consider the Bill to examine what it could mean for Scotland and for the devolution settlement. I believe that any objective analysis would see not only that it puts at risk many of the high standards and protections that the people of Scotland have enjoyed and come to expect from more than four decades of EU membership, but that it is part of the Government’s long-term plan to undermine the devolution settlement and weaken our Scottish Parliament.

Under the Bill, and with the 2020 Act already in place, any legislation passed by the Scottish Parliament could be undermined by a Government here in Westminster whom we did not elect, even in matters that are wholly devolved. I will give a few examples. In the area of food standards, if the Scottish Parliament decided that we would remain aligned with the European Union and would ban the sale of chlorinated chicken, but this place decided that cheap, imported, chlorine-washed chicken was acceptable, there would be almost nothing the Scottish Parliament could do to stop lorryloads of chlorine-washed poultry crossing the border, with that chicken then appearing on our supermarket shelves.

Similarly, if the UK agreed a trade deal that saw the UK flooded with cheap, factory-farmed, hormone-injected meat, but the Scottish Parliament decided to protect Scottish consumers and Scottish farmers by adhering to the standards and protections that we have up to now enjoyed, under the terms of the Bill—again, backed by the 2020 Act—Westminster could override that and Scotland’s supermarkets could be inundated with inferior-quality cheap cuts of meat that under existing EU law would get nowhere near our supermarket shelves.

[Alan Brown (Kilmarnock and Loudoun) (SNP)]

Is it not the case that this is not just about standards? On farming and farmers, we have only to look at the trade deal signed by the UK with Australia and New Zealand, which allows them a higher quota for importing lambs to the UK than is allowed for the entire EU. The EU is protecting our farmers whereas the UK Government are throwing them to the wind.

[Brendan O'Hara]

I thank my hon. Friend for his intervention. He is correct, and I will expand on his point in a moment.

This Government and the Bill are an existential threat to Scottish agriculture. Scotland could decide to stick to long-established best practice in the welfare and treatment of animals, and retain the stringent checks on animals entering the food chain. However, if this place decides to deregulate, animals whose provenance is unknown, and whose welfare history is unaccounted for, can and almost certainly will enter the food chain. Most worryingly, if the Government decide to change food labelling standards, Scottish consumers not only could be subjected to chlorine-washed chicken, hormone-injected beef, genetically modified crops and animals of questionable provenance, but will probably not be able to tell what they are eating. The labelling regulations could be so diminished that the protections consumers now enjoy could be completely removed.

On Friday, I met with the Argyll and Bute regional board of the National Farmers Union Scotland. Its message was stark: farmers feel forgotten and undervalued. They have been battered by Brexit. They are barely surviving the energy crisis. At a time of falling incomes, they are at a loss as to how they will cope with the skyrocketing costs of feed and fertiliser.

Farmers know, too, that the Retained EU Law (Revocation and Reform) Bill is a potential death sentence for an agricultural sector that requires a hefty subsidy. It needs that subsidy because it manages the land, keeps the lights on in our hills and glens, provides employment in rural communities, and helps stem the tide of rural depopulation while producing high-quality, high-value beef, lamb and dairy products. They know—we all know—that the lowering of food standards, the relaxation of rules on labelling and animal welfare, and the mass importation of inferior products will be an unmitigated disaster for Scottish agriculture. They are also painfully aware, as we are, that there is precious little that their democratically elected Scottish Parliament can do about it.

[Jim Shannon (Strangford) (DUP)]

The hon. Member will know that his opinion and mine greatly differ on this precious Union. I understand that, but it does not make us friends any the less; we are dear friends, and work on many things together. One of the reasons for that difference of opinion is seeing the impact that being slightly removed has had on constituents, which he has referred to. Undoubtedly there are some businesses that will thrive in dealing with the EU, but for the vast majority, basics are more expensive to come by. It is simply wrong to have no representative to speak on our behalf on EU legislation. We are painfully aware of that in Northern Ireland. It goes against everything we in a democracy hold so dearly and believe. Does he agree that no nation can knowingly subject itself to law with no voice?

[Brendan O'Hara]

I thank my dear hon. Friend, and reciprocate the feelings that he has expressed. Every community needs a voice, and his community and farmers need a voice. His farmers need protection. I would caution that his farmers will look at the situation and also be extremely worried that, if the Retained EU Law (Revocation and Reform) Bill and the United Kingdom Internal Market Act 2020 are spread across into Northern Ireland, as they may well be, they will face the same threats as Scottish farmers.

Angus Robertson MSP, Cabinet Secretary for the Constitution, External Affairs and Culture, has already raised the Scottish Government’s serious concerns with the Secretary of State. The Minister will be aware that if the UK Government act in wholly devolved policy areas, they will do so without the consent of Scottish Ministers or the Scottish Parliament, and that will significantly undermine the devolution settlement.

As I said earlier, we will be in a deregulatory race to the bottom, a race in which individual citizens will surely lose out to the spivs and the speculators—and no doubt to the politically connected, who will be fast-tracked into making a quick buck at citizens’ expense. The Government say that the Bill will give the UK the opportunity to be bolder and go further than the EU in securing consumer rights and environmental protections, but there are clauses in the Bill that actively prevent Ministers from imposing any new regulatory burden, including any “administrative inconvenience”, on anyone.

Those clauses suggest very strongly that this is headed in one direction only, towards deregulation, and that that deregulation will make it easier to circumvent our legal obligations on food labelling for allergens, or not to pay holiday pay, or to roll back on the safe limits on working hours, or to change hard-won rights to parental leave. The Government will be aware of the fury that will follow should they move to weaken existing controls on polluting substances, or attempt to lower existing water or air quality standards, or dare to dilute the essential protections that defend our natural habitat and our wildlife.

Let me stress again: this is not a road that Scotland has chosen to go down. Rather, it is a road that Scotland is being dragged down. Our nation rejected this Tory Brexit fantasy, but our democratic wishes have been ignored at every turn. This is not of Scotland’s doing, but because of the constitutional straitjacket we find ourselves in, we are having this done to us by a Government that we did not elect.

The Minister cannot dismiss this as SNP scaremongering, because organisations as diverse as the Scottish Trades Union Congress, Food Standards Scotland and the Royal Society for the Protection of Birds have all warned about the adverse impact that the Bill will have. Frances O’Grady, Trades Union Congress general secretary, has described the Bill as “reckless” and said that

“vital protections could disappear overnight”.

The RSPB has warned that if the Government push ahead, they will be undermining the long-established and vital laws that are in place to protect nature. Food Standards Scotland said that the Bill poses

“a significant risk to Scotland’s ability to uphold high safety and food standards.”

Yet it seems that, in their desperate, deluded pursuit of the mirage of a Brexit Shangri-La, this Government are prepared to put at risk our natural environment, our food and animal welfare standards, consumer protections and workers’ rights. That is why the SNP will oppose the Bill every step of the way.

Not only are this Government coming for those rights and protections that we have enjoyed for decades, they are also coming for our Parliament. I repeat the call from the Scottish Government for the UK Government, even at this late stage, to perform one of their trademark—almost legendary—U-turns, and abandon this disastrous Bill. The Bill not only undermines the devolution settlement, it also diminishes the role of MPs here, with the plan to deal with everything via secondary legislation, conveniently avoiding the intense parliamentary scrutiny that the measures require. The Secretary of State claimed in his letter that this was about “taking back control”, but I have to ask: who is taking back control? It is not this Parliament.

As the Government have already gleefully announced to the press, the amount of parliamentary time required has been dramatically reduced. It seems that, for this Government, taking back control means putting a group of hand-picked party loyalists on to a delegated legislation Committee—a Committee with a built-in Government majority, which will be able to bulldoze through change after change after change, as instructed by the Government. The history of delegated legislation Committees is not particularly encouraging. In the past 65 years, only 17 statutory instruments have been voted down in DL committees. The last time that happened was in 1979. While there is certainly a role for DL Committees, I do not believe it extends to making wholesale and fundamental changes to vast swathes of the law on everything from environment and nature to consumer protection, workers’ rights, product safety and agriculture, just to help this Government avoid proper parliamentary scrutiny.

Of course, the reason the Government are avoiding scrutiny is because, in their fervour to rid themselves of any lingering European influence, the zealots at the heart of this collapsing Government have arbitrarily put a sunset clause of 31 December 2023 in the Bill. Unless 2,500 pieces of legislation are removed and replaced—unless the Government give themselves an extension, of course—they will simply disappear off the statute book, leaving huge holes in UK law. It is a tactic fraught with danger as it once again introduces another totally unnecessary Brexit cliff edge that will be welcomed by nobody outside the inner sanctum of the European Research Group—sorry, I mean the Cabinet. It is further evidence of the panic at the heart of the Brexit project. They know the wheels have come off and that the Government are disintegrating before their eyes. Thankfully, Scotland has a way out and we will, as soon as possible, rejoin the European Union as an independent nation. I sincerely hope that the rest of the United Kingdom will find its way back to the European Union as well.

I will conclude with a number of questions for the Minister. Will he confirm that, should the Scottish Government decide to preserve all retained EU law, that would be respected and upheld by the Government here in Westminster? Does he accept that, as it is currently written, the Bill threatens sweeping controls here in Westminster over areas that are wholly devolved? Can he explain why, despite issues raised over the summer by the Scottish Government, the Bill was published with powers to undermine devolution? What impact assessment has been carried out on how the Bill will affect the sectors of the economy that will be most affected by it, particularly farmers in remote, rural, economically fragile areas? Will the Government accept and honour the legislative consent motion from the Scottish Parliament? If they do not, why will they not?

Finally, does the Minister agree that by allowing the UK Government to act in policy areas that are wholly devolved, and to do so without the consent of Scottish Ministers or the Scottish Parliament, that is in direct contradiction to the 1998 devolution settlement and particularly the Sewel convention, which was given a statutory footing in 2016?

--- Later in debate ---

[Ian Murray (Edinburgh South) (Lab)]

It is a great pleasure to serve with you in the Chair for the first time, Mrs Murray. I congratulate the hon. Member for Argyll and Bute (Brendan O’Hara) on bringing this debate. We never know during these debates which Minister will actually turn up, because we are never quite sure who the Minister is. We are always online trying to search the departmental webpages, if they are ever updated properly, to find out who the Ministers are. I welcome the Minister present to his place.

It is very strange that no Scottish Conservative MPs are here to take part in this important debate, but maybe this is a vision of the future after the next general election, where there will be no Scottish Conservative MPs available to be here. I am very disappointed that it was not put on record earlier that the entire contribution of the Scottish Labour party is here participating in this debate, unlike the SNP—only a small fraction of that entire party is present. I think Labour wins that particular battle.

I want to say a few words about this particular debate, which is similar to a debate we had in this Chamber a few weeks ago on the devolution to Scotland of employment law. The hon. Member for Argyll and Bute can correct me if I am wrong, but I think that this matter boils down to two things: one is an ideological attack on the rights and protections we have all enjoyed, whether in or out of the EU; the other is the Conservative Government who are putting these changes through. My contention in the previous debate was that this matter is not about two Parliaments up against each other, but about a UK Conservative Government making decisions that we find to be deplorable and not in line with what we would like to see. Perhaps a change of Government would make these things an awful lot easier to achieve.

[Brendan O'Hara]

Does the hon. Member agree with my substantive point that this is actually a power grab from this place against the Scottish Parliament? It is a power grab that gives primacy in law to what happens in Westminster, as opposed to areas that have hitherto been wholly devolved.

[Ian Murray]

The powers argument is a consequence of what the UK Government are trying to do. They want to get rid of all this EU law and this is the way they want to do it, so it is an ideologically driven piece of legislation and policy. The consequences of that are all the consequences he laid out in his speech.

There is one thing I want to say about power grabs. We have an argument—whether it be in the United Kingdom Internal Market Act 2020, which is now on the statute book, or in this debate—where the Minister stands up and says, “This is a powers bonanza” and the SNP says, “It is a power grab”. It is probably neither, and it will depend on the decisions made by both Governments about what will happen, which is driven by the desire of the Scottish people. In the past few polls, nearly 70% of Scottish people want both Governments to work together. It surprises me that when the Scottish Government were talking about a power grab in the Internal Market Act, they were hiring all these new civil servants to deal with the new powers that were about to arrive. Of the 157 powers that have been repatriated from the European Union, 130 or 135 of them currently sit with the Scottish Government. These bland statements about power grabs and power bonanzas are rather unfortunate and are probably not of any use to the debate.

I agree with the hon. Member about the consequences that could happen if decisions in Westminster are made in line with how we think they will be made. We only have to look at our inboxes over the past few weeks to see the emails from all the nature organisations, such as the RSPB, as the hon. Member mentioned, Greenpeace and others, which were apoplectic at the possible consequences for protections from this attack on nature across the whole of the UK. The Minister has to tell us the driving force behind this. I think the Minister or the Secretary of State said that the reason for this piece of legislation is that if it was not in place removing or amended outdated EU laws could take several years. I ask the Minister to give us an example—if we did not have this Bill—of a piece of EU law that would take several years to repeal. I bet he cannot give us one because it is just another line from the Secretary of State’s speech that makes no reference to the reality of the situation.

The key point is that we were all told at the Brexit referendum that EU law would be repatriated to the EU, but it would be the minimum standard and it would be built on. We seem to have a bonfire of regulation and a clumsy drive from this Govt and the previous two Conservative Governments since the EU referendum to rip up regulations and turn the UK into the Singapore of Europe. Rather than working in the national interest, it is always about what is in the party’s interests.

Hon. Members have asked some questions. The hon. Member for Glasgow North (Patrick Grady) rightly talked about the impact on devolution. All these things have an impact on devolution. Asymmetric devolution across the United Kingdom gives us these kinds of issues, and it is driven by a Government that wishes to create them. We have a situation where the UK Government and the Scottish Government want to rip up the devolution settlement. That is just a fact. Whether the Government realise it, every time they bring a piece of retained EU legislation to this House, they just give succour to the nationalists who wish to rip up the devolution settlement to deliver independence.

While we have just had a huge discussion about this Conservative Government wrenching the UK out of the European Union with a hard Brexit, we have the hard Scexiteers here, who want to do exactly the same. [Interruption.] They like that, don’t they? They are hard Scexiteers who wish to do exactly the same, and it is not my words: it is the words of the economic paper that the First Minister launched on Monday. There would be a hard border between Scotland and England for goods, services and probably people. They want to seamlessly rejoin the EU with a 12% deficit, using someone else’s currency with no central bank as a lender of last resort with no money. The paper itself has been trashed by the Institute for Fiscal Studies. It was trashed by Robert McAlpine, who is a massive supporter of independence, who asks, “How do we get out of this crazy mess?” While we have a discussion about hard Brexiteers, we have three hard Scexiteers here—I will give way to one of them.

--- Later in debate ---

[Ian Murray]

rose—

[Brendan O'Hara]

rose—

[Dean Russell]

I give way to the hon. Member for Edinburgh South.

[Dean Russell]

I shall assume that the hon. Member for Argyll and Bute wanted to make the same point. To be absolutely clear, the premise of the Bill is to enable the conversations to happen among the UK Government and the devolved Governments and to enable us to look at the best way to ensure that we have very high standards in our approach around a whole load of areas. It is not about trying to reduce the quality of food or any of those things. The UK has always had very high standards. I will come to that later in my speech.

[Brendan O'Hara]

rose—

[Dean Russell]

I want to make progress if I may, because I will come to those points—

[Brendan O'Hara]

Will the Minister give way on that point?

[Dean Russell]

Okay, I will take an intervention, but I am going to come to those points later.

[Brendan O'Hara]

The Minister has failed to answer the question, which is very specific. He talks about conversations being had, but this is not about conversations. It is about where decision making and power lie. If the Scottish Parliament decided that chlorinated chicken was banned, but the UK Parliament decided that chlorinated chicken was okay, what would stop chlorinated chicken appearing on supermarket shelves in Scotland? That is a very specific question.

[Dean Russell]

I take the intervention. The key point here is that this is about the Bill, and the conversations between the UK Government, through devolution, with the Scottish Government and others are yet to be had. We have to have those conversations, and the Bill will enable them to be had and to look at how we put those regulations in place. The idea that the UK is somehow going to start to reduce quality with respect to food or any other area is a rehash of old, proven-to-be-untrue Brexit arguments, and it is not the case here. I am going to make progress and I will come to some of those points later.

The majority of the powers in the Bill will be conferred on the devolved Governments. Conferring those powers will provide the devolved Governments with the tools to reform retained EU law in areas of devolved competence. That will enable the Scottish Government to make active decisions about the retained EU law that is within their devolved competence, for the benefit of citizens and businesses throughout Scotland. When using the powers of the Bill, the Government will use the appropriate mechanisms, such as the common frameworks, to engage with the devolved Governments. That will enable us to take account of wider context and allow for joined-up decision making across the UK.

The Government believe that a sunset provision is the quickest and most effective way to remove or amend all retained EU law on the UK statute book. That will incentivise genuine reform of retained EU law. The reform is needed, and it will help to drive economic growth. It will also enable us to capitalise on the rich vein of opportunity afforded to us via Brexit.

The sunset provision will of course not include Acts of Parliament, or indeed Acts of the devolved legislatures. It is right that an Act that has received proper parliamentary scrutiny should be the highest law of the land. Most retained EU law, however, sits on our statute book as a constitutional anomaly—somewhere between primary legislation and secondary, neither here nor there. It never received proper parliamentary scrutiny, and unless we actively want it, it ought to be removed.

The power to preserve specified pieces of retained EU law will also be conferred on the devolved Governments. That will enable the Scottish Government to decide which retained EU law they wish to preserve and assimilate, and which they wish to allow to sunset within their devolved competence.

[Brendan O'Hara]

Will the Minister give way?

[Dean Russell]

I will take one more intervention.

[Brendan O'Hara]

Time is pressing, so I appreciate the Minister giving way. Given what he has just said, will he confirm now that should the Scottish Government decide to preserve all retained EU law, that would be respected and upheld by the Government here at Westminster?

[Dean Russell]

I will come to that later, so the hon. Gentleman will get his answer. Ultimately, we are saying that where there is devolved competence and where there is engagement on that, absolutely we will work together on it.

I want to assure the House that the Government are committed to ensuring that the Bill works for all parts of the UK. We have carefully considered how it will impact each of the four nations, in close discussion with the devolved Governments, and it is of paramount importance that our legislatures function in a way that makes certain that we can continue to work together as one.

The Government recognise the importance of ensuring that the Bill is consistent with the devolved arrangements, and we remain committed to respecting the devolution settlements and the Sewel convention. Indeed, the Business Secretary has made that commitment clear in his engagement with Scotland’s Cabinet Secretary for the Constitution, External Affairs and Culture, Angus Robertson. The Government have sought legislative consent from the devolved legislatures for the provisions in the Bill that engage the legislative consent motion process. Both I and the Business Secretary look forward to engaging with the devolved Governments on the process of seeking legislative consent as the Bill progresses through Parliament. Alongside that, the Business Secretary and I remain committed to engaging with our devolved counterparts as the Bill moves through. We will work together to address any concerns and ensure that the Bill works for all parts of the UK.

The hon. Member for Argyll and Bute asked about devolved settlements. We are not changing the constitutional settlement. The Scottish Government will still have control of areas within devolved competence, including food standards. On workers’ rights, the UK has one of the best records on workers’ rights—those high standards were never dependent on the EU—and we intend to continue them. Environmental protections will not be weakened. We want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes.

--- Later in debate ---

[Brendan O'Hara]

I thank everyone who has taken part this morning. What we lacked in numbers we certainly made up for in quality. I thank the hon. Members for Strangford (Jim Shannon) and for Glasgow North (Patrick Grady), my hon. Friend the Member for Kilmarnock and Loudoun (Alan Brown), and even the hon. Member for Edinburgh South (Ian Murray), who, despite his best efforts to go on a fishing expedition very early on this Tuesday morning, will have noticed that I and my colleagues are far too long in the tooth to bite, particularly this early in the morning.

I thank the Minister for what he said. I am delighted that he confirmed that, should the Scottish Government decide to preserve all retained EU law, that would be respected and upheld by the Government here in Westminster. But nothing that he has said has altered the fact that on the rights and protections—

[Dean Russell]

I just want to be clear on the wording that the hon. Member used. I said that if the Scottish Government want to preserve all areas within their competency, the UK Government will respect that. I want to be clear that that is what was being repeated back.

[Brendan O'Hara]

Okay—as we dance on the head of a pin this early in the morning. What it does not change is the fact that our rights and protections that we have enjoyed for 40-odd years in the areas of food standards, animal welfare and environmental protections are under threat. As my hon. Friend the Member for Kilmarnock and Loudoun says, why would the Government legislate to ensure that we cannot get access to the biggest market in the world sitting on our doorstep? Nothing the Minister has said changes my position that they are coming for our Parliament. The sooner we are out of this Union and rejoin the European Union, the better.

Question put and agreed to.

Resolved,

That this House has considered the impact of retained EU law on the Scottish devolution settlement.