Scottish Devolution Settlement: Retained EU Law

Alan Brown Excerpts

Wednesday 19th October 2022 Westminster Hall

[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.

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

It is a pleasure to serve under your chairmanship, Mrs Murray. I congratulate my hon. Friend the Member for Argyll and Bute (Brendan O'Hara) on introducing the debate. It is incredible, in an hour-and-half debate on such an important subject, that I am standing to sum up less than half an hour after it began. That shows a lack of care from many Conservatives, particularly the Scottish Tories.

As my hon. Friend the Member for Glasgow North (Patrick Grady) said, where are the Scottish Tories? They continually challenge the SNP when we talk about power grabs by the Westminster Government. They always ask us to name one power that has been taken away from the Scottish Parliament. As we have heard, this abolition of EU retained law is not a single power grab, it is a carte blanche undoing of devolution. It allows the UK Government to force standards in Scotland. When trade deals are signed and Westminster wants to diverge from the EU, the Internal Market Bill, for example, can be used to railroad and force those standards on Scotland. It is disgraceful that the Scottish Tories are not here to make a case for the Government and why they want to do this.

It could be argued that Scotland did not technically have full powers in all these remits because it was EU law, but the point of EU law in regulations is that it was agreed by member states. Scotland will no longer have the facility to keep EU retained law and that alignment, if the Westminster Government have their say. We have to remember that the EU single market is the biggest single market in the world. Why do the UK Government want to diverge from standards that allow access to the biggest market in the world? It makes no sense, but again it is a throwback to the British empire and bringing back British sovereignty. It is a falsehood—a fallacy.

We previously heard from Brexiteers that the good thing about being able to diverge from the EU is that we can improve environmental standards. I spoke last week in a debate about sewage discharges into watercourses and on beaches. Before coming to this place, I was a sewerage civil engineer, and I saw at first hand how the Tory Government back then resisted EU legislation to clean up beaches. The UK was known as the dirty man of Europe, and it is no surprise that, now that we have left the EU, the rest of the UK is having a problem with sewage discharges. It cannot be a coincidence. Given that you represent a coastal community, Mrs Murray, you must have concerns about water quality and the sewage discharges that this Government seem to be allowing.

Another Brexit falsehood is the so-called sea of opportunity. Fishing communities were told that they were going to benefit from Brexit, but unfortunately they were sold a pup, to mix my metaphors. That again is proof that whatever the Brexiteers promise never comes to fruition—they are just false promises.

As my hon. Friend the Member for Argyll and Bute pointed out, it is ridiculous that we are looking at overturning almost 2,500 pieces of legislation by some false 2023 deadline when we do not even have a functioning Government. That process is retained under the control of the Secretary of State. Previously, he was all about parliamentary sovereignty and scrutiny, but that seems to have gone out the window now that he is a member of the Cabinet. We only have to look at the Henry VIII powers inserted into the Energy Prices Bill on Monday to see that the Government are taking back control on one level—they are taking back control from MPs in the House of Commons. I have grave concerns about that.

As my hon. Friend said, this is about food standards and animal welfare. It is about maintaining standards and having checks in place. Another Brexit dividend is that we do not have enough vets because we have ended freedom of movement—it is ridiculous, and it just shows Brexiteers’ blinkeredness. As my hon. Friend said, this is an existential threat to Scottish agriculture. It is actually an existential threat to the devolution settlement.

On deregulation, I mentioned workers’ rights, and Frances O’Grady of the TUC has highlighted concerns about that. In his speech on the ten-minute rule Bill yesterday, the hon. Member for Christchurch (Sir Christopher Chope) attacked workers’ rights and said that the EU working time directive has allowed idleness. That is the attitude. I am sure you have read “Britannia Unchained”, Mrs Murray, which was co-authored by the Prime Minister, who attacked British workers for being lazy, idle and unproductive. That is the attitude at the top of the Government, so what hope do we have when EU retained law is completely abolished?

That brings me to the official Opposition. Of course, Labour has promised to make Brexit work. It is also in favour of a hard Brexit. It does not want freedom of movement or to be in the single market, so what does it stand for when it comes to EU retained law? What is Labour’s vision for the future? It seems to me that it mirrors the Tory vision.

My hon. Friend the Member for Glasgow North rightly pointed out that the European Union (Withdrawal) Act 2018 was forced on Scotland, but at the time we were reassured that the idea of retained EU law was somehow going to give us some continuity. It was going to give us protections, and it was shown that we were not going to diverge from the EU. Now the Government’s motives are absolutely clear: that was just another Brexit falsehood, and it is all about divergence and free market opportunities. Who cares about standards as long as it is a free market and prices come down? That is all they care about, not protecting workers’ rights, agriculture and food standards and hygiene.

Another silly example of this Government’s obsession with divergence from the EU is the weights and measures consultation. Why would we want to go back to imperial weights and measures? Scotland exports more manufactured goods to the rest of the world than to England, and weights and measures are important in that. Alignment with metric measurements is the way we do things. Why would we want to change? Last week, an article in New Civil Engineer magazine noted that using thumb measurements or inches might have been fine for a 16th-century carpenter, but today we have alignment with the biggest single market. Even the United States, despite being one of the few countries that still uses imperial measurements, aligns measurements for its exported goods with the metric system. Why would we want to go back on that? How much money would it cost to rip up what we do now? Again, it just shows the Brexit fantasy and falsehoods.

[Ian Murray (Edinburgh South) (Lab)]

I am grateful to the hon. Gentleman for giving way and for raising this, because it is a fallacy that people would want to go back to those kinds of measurements. What the Business Secretary is trying to claim about going back to those measurements is just farcical. Could we perhaps talk about this matter in the bar tonight over 568 ml of beer?

[Alan Brown]

The hon. Gentleman is being slightly flippant, but he makes a good point. That is the thing: the EU did not force the UK to go metric. It was done willingly. The EU allowed pints and other things to be retained as measurements because it was not about the EU imposing its will, but about a sensible way forward over alignment. Of course, it is a rare thing for me to enjoy a 568 ml drink—or a pint—but I might come back and do that at some point.

I look forward to the hon. Gentleman, who is the shadow Secretary of State for Scotland, telling us about Labour’s vision for making Brexit work, and why it will not align with the EU, why it does not want to rejoin the single market and why it does not want freedom of movement. I shall conclude there, because I really do want to hear from him and from the new Minister, whom I welcome to his place. Who knows how long he will be in his post, given the current chaos? I hope he will address these serious points and explain this Government’s rationale.

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[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.

[Alan Brown]

I am trying not to bite here, but I will go back to the question I posed. The hon. Member mentioned a hard Brexit and said it is what the Tories are doing. Is it not the case that Labour favours a hard Brexit? The hon. Member has not mentioned why Labour is against re-joining the single market, nor defended why Labour is against freedom of movement. Does the hon. Member agree with the shadow Chancellor who thinks that the UK needs to process and deport people back to their countries more quickly? That seems to be the Labour view, and it is no different from the Government.

[Ian Murray]

That is more fantasy from the SNP. I find it strange that, when we have a Government on their knees bringing forward a piece of legislation that ultimately could undermine devolution, the main part of the hon. Member’s speech was an attack on the Labour party. That maybe tells us that our ascendancy in Scotland is worrying the SNP.

Let me say what would have happened. The hon. Member calls the Labour party hard Brexiteers; had the SNP not abstained on the amendment for the customs union it would have passed in Parliament—a matter of public record. The SNP spent less on the EU referendum than it did on the Shetland Scottish parliamentary byelection—to win 3,400 votes. The SNP asks about where we are as a country at the moment. It is perfectly practical for the Labour party, who wish to be the next Government, to try and make Brexit work. The first day that my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) walks into No. 10 as the Prime Minister, he is going to face the circumstances of the day, not those that we may wish to find. The first task will be to make what we have got work, the second task will be to build and deepen that relationship with Europe, and the third task, which overarches all of that, is to do what is in the national interest. That is clear.

That shadow Chancellor was actually saying that part of the problem we have in this country with the immigration system is the Home Office not processing applications for asylum quickly enough, which leaves the massive backlog of tens of thousands that we have at the moment. If hon. Members had listened to what she actually said, that is what she was referring to—which I think is SNP policy? If the Home Office was processing applications in a timely manner, and in a humane way, we could get through applications much quicker, lessening those issues.

Where was I with the hard Scexiteers? I think we had gone through that. I will get on to some of the issues raised about what the Retained EU Law (Revocation and Reform) Bill will do. I hope the Minister will tell us what the Government’s plans are, because this is essentially a theoretical Bill about trashing, amending, or otherwise, EU retained law in this country. The Government always have those grand phrases, but they do not tell us what they are going to do. Can the Minister answer my first question: what would take several years if it was not in the Bill? Will the Minister give us an example about what he wishes to do with some of those regulations? I would be happy to listen to that.

The Labour party wants to use that platform to put in a new deal for working people. That is a prime policy example. That would give people workers’ rights from day one and it would build on EU regulations that we have already had. Incidentally, the UK has always gold-plated EU regulations. In fact, Conservative Governments have always gold-plated EU regulations. The Labour party would end fire and rehire and zero-hour contracts—is that part of the Government’s strategy? We would make work more family friendly and flexible. We would strengthen trade union rights, which would raise pay and conditions. We would roll out fair pay agreements, and we would use Government procurement to ensure that we could lift standards, pay, conditions and skills right across the country.

Our new deal for working people is a practical example of what we would do with regulations, rather than a Bill that says we will rip up every piece of EU regulation without saying what we would do instead, while, at the same time, undermining devolution.

I will ask one final, two-part question to the Minister. What discussions is he having with the devolved Administrations about the Bill, and about trying to achieve a consensus so that legislative consent motions can be passed? The Sewel convention—which was right—was put on a statutory footing under the Scotland Act 2016 by an amendment brought forward by the Labour party. We cannot just disregard that; the Sewel convention is clear that the UK Government will not legislate in devolved areas where they do not need to. If they do, a legislative consent motion must be positively passed by the Scottish Parliament—not the Scottish Government. What discussions is he having to make sure those legislative consent motions can come forward?

I am grateful that the debate has been brought forward, and that we have had the hard Scexiteers and hard Brexiteers arguing over the EU. However, yet again we have had a combined 37 minutes from three SNP Members, and they have not told us one iota about how they can get back into the European Union with the huge deficits they have, no currency, no central bank, no lender of last resort and no immigration policy—[Interruption.] Now they are claiming that I am slagging them off, but they spent a lot of their speeches slagging off the Labour party. I look forward to the Minister answering some questions, and maybe at some point in the future we will get some answers from the SNP as well.

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[The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Dean Russell)]

It is an absolute pleasure to serve under your chairmanship, Mrs Murray. I have to say, I have quite enjoyed this debate. I will respond to as many of the questions as possible. Given the fact that the Leader of the Opposition is likely to push to form a coalition with the SNP, I do not quite know how the divide that has been so clearly created today will be filled.

I congratulate the hon. Member for Argyll and Bute (Brendan O’Hara) on securing this important debate. I am grateful to him for the opportunity to debate this very important topic ahead of the Second Reading of the Retained EU Law (Revocation and Reform) Bill. I look forward to continuing discourse with him, his SNP colleagues and others during the passage of the Bill. I intend to cover as many of the points raised by the hon. Members for Glasgow North (Patrick Grady), for Kilmarnock and Loudoun (Alan Brown), for Strangford (Jim Shannon) and for Edinburgh South (Ian Murray) as possible.

I will start with a clear message: the Government are absolutely committed to the devolution settlements and to safeguarding the Union. It is our mission to deliver economic prosperity for every citizen in every part of the UK. As my colleagues are undoubtedly aware, the Government are committed to devolution and to working collaboratively and constructively with the devolved Governments. That is the way to deliver better outcomes for citizens across the UK. The people of Scotland rightly expect both the UK and Scottish Governments to work together and focus on the issues that really matter to them.

We have the backdrop of the war in Ukraine and global economic slowdown, which has created incredible challenges for the UK—for Scottish, English, Welsh and Northern Irish citizens. The Government are committed to working towards economic and legislative solutions that work for the whole of the UK. Accordingly, the Government remain fully committed to the Sewel convention and the associated practices for seeking consent for the devolved legislatures.

Retained EU law, the subject of today’s debate, was brought on to the statute book as a bridging measure to ensure continuity as we left the European Union. It was never intended to sit on the statue book indefinitely. Its existence has created legislative anomalies that we must now address. On 31 January, the Government announced plans to bring forward the Retained EU Law (Revocation and Reform) Bill. It is a culmination of the Government’s journey to untangle ourselves from nearly 50 years of EU membership, and it will provide the tools for the Government to fully realise the benefits of Brexit. We realise that those benefits for citizens are paramount, especially for businesses across all four great nations of the UK.

[Alan Brown]

Can the Minister actually explain the brilliant benefits of untangling the UK from EU legislation? What are those benefits?

[Dean Russell]

I thank the hon. Member for asking that very clear question. There are many benefits. In fact, on the EU dashboard there are over 2,500 pieces of legislation that we can start to look at. The key point of this Bill is to create a framework to enable us to look forward at how we can get the best out of Brexit. It will affect every citizen across the UK, and the Bill will make sure that we are covering that. I will come to points raised earlier, if I may.

[Alan Brown]

I thank the Minister for giving way again; I appreciate it. Please will he name one EU law that will be abolished that will benefit the lives of my constituents in Kilmarnock and Loudoun?

[Dean Russell]

I thank the hon. Member for that question. The key point about the Bill today is to talk about the framework, and what we are trying to ensure is that as the framework goes through, we will then be able to look at the individual pieces of regulation and legislation—all of those pieces that will then be looked at.

There are many, many, many, but I will not be drawn on the specifics today, because it is, of course, important that the conversation happens for the UK Government, the Scottish Government, the Welsh Government and the Northern Ireland Government, to make sure that we are getting the right output from this, and it would be wrong of me to pre-empt that. However, I am sure that within the coming weeks and months we will have lots of conversations, and I am sure that the hon. Gentleman will himself be listening to many of them in the coming years.

[Alan Brown]

I will be listening.

[Dean Russell]

Thank you.

The Bill will abolish the constitutional and outdated special status that retained EU law currently has on our statute book by 31 December 2023. It will empower the UK and devolved Governments to amend, repeal and replace their retained EU law more quickly. It will also include a sunset date by which all remaining retained EU law will either be repealed or, if a decision is made to keep it, stripped of interpretive provisions associated with retained EU law, and assimilated. I noted the comment of the hon. Member for Glasgow North, being a fellow “Star Trek” fan; although I disagree with his analogy, I understood the concept of the Borg, which probably has not been mentioned in Parliament very often. The key point is that any retained EU law that we keep will be assimilated into domestic law.

The Bill will enable the Government and, where appropriate, the devolved Governments to take back control of the UK statute book. The powers in the Bill will enable swift reform of the laws—more than 2,500 in total—derived from the UK’s membership of the EU. Many of those laws are outdated; some are even inoperable or not fit for the UK’s economic circumstances. That is why reform is needed.

Without the Bill, there is a risk that retained EU law becomes an immutable category of law on the statute book. The European Union (Withdrawal) Act 2018 preserved EU laws as if they had effect in domestic law immediately before the end of the transition period following the UK’s withdrawal from the EU. It is manifestly sensible that we all have the power to repeal or reform those laws and that we do so without delay.