 James Wolff yw, pobl gyfa'r byddwch o gyfrifio Unedlaidedd demonicu i Llyfrgell Llyfrgell ddiolch yn defnyddol. Rydym ni'n gweithio beth cwyfrtiad ar ddiwedd i'r wych, ac lawer i'r cadw i'r ddiwedd i'r ddech nuevoill. Rydym ni'n gweithio beth cwyfrtiad ar ddiwedd diwedd i'r ddiwedd neu i'r firsaliad hynny. The Lord Advocate PEGIDEN However, that is an exceptional case. In this case, it is appropriate that, as the Scottish Government's senior law officer, I should give a statement about the bill that was introduced yesterday, the UK withdrawal from the European Union legal continuity Scotland bill. You and I are each obliged to consider the legislative competence of any Government bill. The Government cannot introduce a bill unless it is accompanied by a statement that, in the view of the responsible minister, the bill is within competence and the ministerial code requires such a statement to be cleared by law officers. I can confirm that I cleared the certificate of competence in relation to this bill. You for your part are also required by the Scotland Act 1998 to decide whether, in your view, the provisions of a bill are within competence. Yesterday, you stated in your view that the provisions of this bill are not within the legislative competence of this Parliament. I am grateful to you for the careful and serious consideration that you have given to the matter and to the way in which you have expressed your conclusions. In stating that the Government disagrees with those conclusions, I would not wish it to be thought that I am expressing any criticism or view. Your statement does not prevent this Parliament from considering and, if so advised, passing the bill. However, this is the first time that a Government bill has been introduced into this Parliament with a negative statement from the Presiding Officer. In the circumstances that I owe it to the members of this Parliament, as the Scottish Government's senior law officer, to state publicly and in this chamber that the Government is and remains satisfied that the bill is within the legislative competence of the Parliament. Members will understand that when I clear a ministerial statement on legislative competence, I am concerned, as you are, Presiding Officer, only with the question of whether or not the bill is within the competence of this Parliament. That is a legal question, one that could ultimately, if necessary, be tested in the courts. It is to that question that I will address myself in this statement, and I will gladly leave political questions about the bill—questions that are frankly irrelevant to the issue of legislative competence to others. I remind members that, so far as the Scotland Act is concerned, this Parliament's general legislative competence is constrained by section 29 of that act. Unless one of those statutory constraints applies, this bill would, if enacted, be within the legislative competence of the Parliament. You have stated in your assessment of competence that the fundamental question at issue in the case of this bill is whether it would, if enacted in its present form, be incompatible with EU law. I respectfully agree that this is the fundamental question, and I accordingly propose to focus on it. Section 29, 2D of the Scotland Act, in effect, states that a provision of an act of this Parliament, which is incompatible with convention rights or with EU law, is not law. The purpose of that provision is to ensure that acts of this Parliament do not breach the United Kingdom's obligations under the European Convention on Human Rights or under EU law. So far as EU law is concerned, the same constraint applies as long as we are members of the EU to all public bodies within the UK, including the United Kingdom Parliament. The question that has to be asked is, accordingly, whether any provision in this bill is incompatible with EU law. The legislative competence of the provisions in the bill falls to be considered in light of those facts. First, the United Kingdom Government has taken steps under article 50 of the Treaty of European Union to withdraw the United Kingdom from the European Union, and by virtue of the terms of article 50, in the absence of agreement otherwise, the UK will leave the European Union next March. Second, EU law will, therefore, cease to apply, and on the basis of the Supreme Court's analysis in the Miller case, the EU law constraints on the powers of this Parliament and on Scottish ministers will cease to have any content. Thirdly, there is an urgent practical necessity to make provision of the sort contained in this bill to enable the law to operate effectively immediately upon and after the United Kingdom's withdrawal from the EU. Against that background, let me make these observations about the provisions of the bill. The legal obligation on ministers to comply with EU law will endure until the UK leaves the EU. That bill does not change that obligation. Ministers will continue to be subject to legal requirements to transpose, implement and otherwise abide by EU law so long as the UK remains a member of the EU. That bill does not alter those requirements. The bill does nothing that will alter European Union law or which undermines the scheme of EU law while the United Kingdom remains a member of the EU. What the bill does is to make provision for the continuity of the law immediately upon and following withdrawal from the EU. It does that by two principle mechanisms. First, it provides for laws in force before the UK leaves the European Union to continue in force in domestic law after departure. To make such a provision is plainly not incompatible with European Union law. Secondly, the bill confers powers that will enable the law to be adjusted as required so that the law will continue to work effectively immediately upon withdrawal from the European Union. The terms of the bill ensure that its provisions will not come into effect and those powers cannot be exercised so as to alter or affect the law before the UK leaves the European Union if to do that would be incompatible with EU law. The grant of those powers and their exercise in accordance with the bill is not and cannot be incompatible with European Union law. In short, the bill is designed to achieve two things. First, to enable the continuing effectiveness of the law upon and following the UK's departure from the European Union. In other words, to secure a smooth transition in a manner that is consistent with the European Union law principle of legal certainty in the context of a withdrawal process that is itself provided for by European Union law. Second, to make sure that this is done in a way that does not involve any breach of European Union law, which does not put the United Kingdom in breach of its obligations under EU law for as long as the United Kingdom remains a member of the Union. It is not incompatible with EU law to make provision to deal with the inevitable consequences and domestic law of withdrawal from the EU in this way. Indeed, that appears to be the basis upon which the United Kingdom Government's own EU withdrawal bill, upon which the bill has been modelled, proceeds. If that is right, and if, contrary to the view of the Scottish Government, this bill is incompatible with EU law, then the same reasoning would apply equally to the UK Government's bill. Presiding Officer, in your assessment of legislative competence, you put your finger on the central point that arises in relation to the bill, that it contains provisions and empowers ministers to make provision by regulations, which, if they were to come into force before the UK leaves the EU, would be incompatible with EU law. You characterise that as involving an exercise of competence before the competence has been transferred. The Scottish Government's view is that the bill is framed to ensure that any provisions that would have that effect can only come into force when the UK leaves the EU. As the Presiding Officer of the National Assembly for Wales has concluded in the context of the Welsh Government's bill, that makes all the difference and ensures that there is and can be no incompatibility between the provisions of this bill and EU law. The bill has been carefully drafted so that it is not incompatible with EU law. Everything can be done under it, which would put the United Kingdom in breach of its obligations under EU law. This is not a case where the Parliament is being asked to exercise a competence before that competence has been transferred to it. Rather, this Parliament has competence at this time to deal in the way that this bill provides with the consequences for our domestic law of leaving the European Union. Finally, Presiding Officer, I appreciate that members have an interest in the legislative competence of this bill. I look forward to answering to the extent that I properly can questions that members across the chamber may have. I thank the Lord Advocate for his statement and for early sight of it. I have two quite detailed legal questions to ask him, if I may. First, in his answer yesterday to Bruce Crawford's parliamentary question, the Lord Advocate stated that the constraint in section 29 2D of the Scotland Act that this Parliament may not legislate incompatibly with EU law will, when the United Kingdom withdraws from the European Union, cease to have any content. The policy memorandum accompanying the bill says that it will empty of meaning. Could I ask the Lord Advocate to clarify why he thinks this and, indeed, what he means by it? Because it strikes me with great respect, as really rather odd, in that it implies, does it not, that we as a public body can be constrained by EU law only for as long as the United Kingdom is a member state of the European Union? Yet that is not the case, is it? The Westminster Parliament, when creating this one, could have legislated to prevent us from enacting law, contrary to EU law, irrespective of whether the UK was or was not a member state of the European Union. The policy memorandum refers to paragraph 130 of the Miller case in the context of this matter, but that paragraph does not support the conclusion that, after Brexit, section 29 2D will cease to have any content. That is my first question. Concerns the difference between legal effect and legal validity. It is true, as the Lord Advocate said, that the bill is carefully drafted to ensure that provisions that would be contrary to EU law will not come into force until after exit day, but this consideration goes, does it not, to their legal effect in the future, not to their legal validity now. The question of competence, when it comes to compatibility with EU law, is a matter of legal validity, not future or anticipated legal effect. This is the point, the critical point of legal analysis on which the Presiding Officer relies. I think that it is correct. Why does the Lord Advocate not agree? Lord Advocate. Thank you and I am grateful to Professor Tomkins for those questions. On the first point, the effect of withdrawal from the EU, the analysis that I take of the position that the Scottish Government takes of the position reflects the analysis of the Supreme Court in the Miller case, as I understand it. The analysis of the Supreme Court and its application to the definition of EU law for the purposes of the 1972 act was that withdrawal from the EU would empty that of content. On the Scottish Government's analysis, that flows through to an effect on the definition of EU law within the Scotland act. Paragraph 130 of the Supreme Court in the Miller case said that, The removal of the EU constraints on withdrawal from the EU treaties will alter the competence of the devolved institutions unless legislative constraints are introduced. In the absence of such new restraints, withdrawal from the EU will enhance the devolved competence. While recognising that respectable legal minds may sometimes disagree, I respectfully adhere to the approach that has been taken in the analysis of the bill. On the second point, the distinction between which Professor Tomkins has made between validity and effect, section 29 2D of the Scotland act is concerned with compatibility with EU law. The purpose of that provision is to ensure that this Parliament does not act in a manner when passing legislation which would put the United Kingdom in breach of its international obligations under European Union law. That bill has been carefully framed so that nothing under it or done under it can or will put the United Kingdom in breach of those obligations. For those reasons, I would suggest that there is nothing in this bill that is incompatible with EU law. Neil Findlay. I thank Lord Advocate for his statement. As I stated yesterday, Scottish Labour will always defend the principles of devolution in the settlement in Scotland. We support the Scottish and Welsh Governments in their effort to make the UK Government fulfil the commitments that they gave on the devolution of powers. We would urge the UK and Scottish Governments to get back round the table to resolve clause 11 issues. We want to see a workable and competent bill presented, and we will work with others for a solution to that situation. We note the Lord Advocate's statement. It is a regrettable situation that we find ourselves in, but given that the Government is now seeking support to circumvent normal conventions of this Parliament, it is incumbent upon all members of this Parliament to ensure that there is thorough scrutiny of the bill. I therefore ask the Lord Advocate what are the differences between the bill being presented to the Assembly in Wales and the bill being presented here? Has the Lord Advocate consulted his counterparts in Wales about how they managed to bring forward a competent bill and why the bill has not been replicated here? I can advise what precedent is set here if a bill is introduced and passed without the Presiding Officer's approval. On what legal basis has this been done through emergency legislation, and what is the longest period that parliamentary scrutiny can take place without affecting implementation? Has any previous bill across the UK been given royal assent when it has not been deemed as competent by the respective Parliament, and given the Government's previous defeat on Brexit issues in the Supreme Court, how confident is he of defending the case? Finally, the bill has the potential to impact on a huge number of organisations, citizens and communities that lengthen the breadth of the country, and they must be allowed and be able to have their say. It is our job in this chamber to ensure that that happens. The bill throws up many questions and challenges for the Government, for Parliament and for members of this Parliament. Does the Lord Advocate agree that rushed legislation is rarely good legislation and that extensive scrutiny in such a complex area is a good thing? The first point to make clear is that the Scottish Government has satisfied that the bill is within the legislative competence of this Parliament. Although the Welsh constitutional settlement is different from the settlement in Scotland and there are differences in the approach of the two bills, I am not aware of any relevant difference bearing on the critical issue on which the two Presiding Officers have disagreed with one another. That is the first point. The second point is that, as the Presiding Officer I think recognised in his statement yesterday, a negative certificate from the Presiding Officer does not prevent this Parliament debating and, if so advised, passing a bill. Ultimately, the only authoritative view on the questions of law that arise in the context of legislative competence is a view from the court. On the question of the nature and extent of parliamentary scrutiny, that is a matter for the parliamentary authorities to consider and not one that I think it would be appropriate for me to comment on. Thank you, Presiding Officer, and I thank the Lord Advocate for his statement. We are in extraordinary circumstances, which neither this Parliament nor the people that we represent have chosen to face, but we do face these extraordinary circumstances. Where there are alternative interpretations of a complex area of law like this, would it be reasonable to suggest that one of the factors that we need to bear in mind is the intention of Parliament, the Westminster Parliament in this case, when it passed that legislation? When we look at section 29 2D of the Scotland Act, defining legislative competence in relation to EU law, would it be reasonable to suggest that no reasonable person could imagine that the Westminster Parliament's intention would be to constrain us in relation to EU law in circumstances where we were outside of the European Union? Secondly, if this Parliament chooses to debate amendments that changed the continuity bill during its scrutiny, perhaps to address some of the shortcomings that some of us perceive in the EU withdrawal bill upon which that is modelled, will the Lord Advocate or the Scottish Government have a continuing role in determining the competence of an amended bill? Lord Advocate. On the first point, the purpose of section 29 2D is to ensure that this Parliament does not put the United Kingdom in breach of its EU obligations. It follows that when the United Kingdom is no longer a member of the EU and when EU law no longer applies to it, section 29 2D ceases to impose constraints on this Parliament. On the second point, the question of amendment of the bill, the statutory position is that at the end of a bill process when a bill has been passed by this Parliament, law officers have the opportunity to consider whether the bill by virtue of any amendment has gone out with competence and may on that ground refer it to the Supreme Court. That is the statutory answer. The practical answer is that if amendments are brought forward, which in the view of the Government informed by the views of law officers is out with competence, then that is something that will be communicated as appropriate in the course of the parliamentary proceedings. Tavish Scott. I thank the Lord Advocate too for his statement this afternoon. Can I ask the Lord Advocate to consider the third possible route described in the bill's policy memorandum on page 5? There, the Scottish Parliament passes the bill, the UK Government then does what the Scottish Government expects and deletes the devolved aspects from their bill. Will the Lord Advocate then accept that the only continuity legislation is the Scottish Act? What then happens if the Supreme Court strikes down that legislation as outwith competence? Lord Advocate. I have spent a lot of time in my professional career avoiding hypothetical questions. The only question that needs to be addressed at this point is from my perspective whether or not this bill is within the legislative competence of the Parliament. I think that it would be unwise for me to speculate about what might happen in an uncertain future. Stuart McMillan, to be followed by Donald Cameron. Can the Lord Advocate confirm that this bill is in effect designed to dovetail with the EU with the raw bill at Westminster on the expectation that the UK Government will remove the devolved aspects from the raw bill in the event that this Parliament does not pass a legislative consent motion? Lord Advocate. It is the view of the Scottish Government that if this Parliament is unable to consent to the EU withdrawal bill that the constitutionally correct position would be for the UK Government to remove devolved matters from that bill and for this Parliament to pass its own provision to deal with legal continuity. The skilled parliamentary draftsmen who draft Scottish Government legislation have worked hard to seek to align this bill so far as possible, consistent with certain policy differences with the provisions of the United Kingdom Government's bill. Donald Cameron, to be followed by Emma Harper. The Lord Advocate has already touched on this in his statement. Does he then disagree with the statement of the Presiding Officer that, I quote, the consistent approach to interpreting the powers of the Parliament has been that legislation cannot seek to exercise competence prior to that competence being transferred? I think that the important thing to consider is the particular provision of section 29 with which we are dealing. Under other parts of section 29, questions of whether a bill relates to a reserved matter, whether a bill modifies or infringes schedule 4 of the act, questions could arise of that sort. Again, it would not be wise or appropriate for me to express a definitive view on a hypothetical question, but it is important that I would suggest not to read across an approach that might be taken in relation to other parts of section 29 to the particular issue here, which is whether or not provisions in this bill are incompatible with EU law. Emma Harper is to be followed by Clare Baker. Could the Lord Advocate confirm that the bill is simply about preparing Scotland's laws for what will happen after the UK leaves the EU and that the bill has been drafted so that right up until that time the Scottish Parliament will continue to act at all times in a way that is compatible with EU law? Lord Advocate. The short answer, Presiding Officer, is yes, but perhaps I can make two further points. First of all, the negative point is that the bill is drafted to make sure that nothing will be done that is incompatible with EU law before withdrawal from the EU. Positively, the bill provides a practical mechanism for securing the EU law principle of legal certainty in the context of a process that is specifically provided for by EU law—the process of withdrawal upon which we are engaged. Clare Baker. I thank the Lord Advocate for his statement. It is highly regrettable that we are in the situation in which we have conflicting views on the Lord Advocate and the office of the Presiding Officer, and the Parliament needs to be confident in the competence of the legislation that we are considering. The Lord Advocate has argued that the bill is legally competent, and he said that there has been significant effort to align the bill with the EU withdrawal bill. Can he comment on the route of combining the bill further with the EU withdrawal bill? Is he confident that this could secure a smooth transition as identified as a key objective of the bill in his statement? Lord Advocate. His preferred position would be a single piece of United Kingdom legislation to which this Parliament can consent, and that remains the position. However, we are not at this point—that is not the point that we are at—and that is the context in which this bill is brought forward. As I said in answer a moment ago, this bill has been drafted by skilled parliamentary draftsmen in order, so far as it is reasonably possible, to align with the approach that is taken in the Kingdom Government's EU withdrawal bill. Again, it would be wrong for me to speculate on the way in which either bill might develop as it continues through its parliamentary process. Ash Denham, to be followed by Maurice Golden. As far as he is aware, does the Lord Advocate think that the bill prepared by the Welsh Government is attempting to achieve the same aims as the Scottish Government's bill? Lord Advocate. Again, the short answer is yes. As far as I am aware, the purpose is the same. There are differences that reflect the differences in the particular situations of the two constitutional settlements. The Lord Advocate focuses on compatibility with EU law in his statement, as he knows that that is not the only constraint on this Parliament's competence. Can the Lord Advocate explain why, in his view, no provision of this bill trespasses on matters otherwise reserved to the UK Parliament? Lord Advocate. Well, I sought to focus in my statement on what I regard and I think that the Presiding Officer regarded as the fundamental issue. I think that members may take it that the Scottish Government is satisfied that this bill does not go outwith the legislative competence of this Parliament in any other respect. Clare Haughey, to be followed by James Kelly. Thank you, Presiding Officer. Contrary to some suggestions elsewhere, can the Lord Advocate confirm that the Scottish Government through this bill does not attempt to use powers reserved to the Westminster Parliament? The question was from Clare Haughey that it does not take reserved powers from elsewhere. Yes. There is nothing in this bill that affects any of the limits on the competence of this Parliament other than the limit on competence imposed by EU law. Question 10. James Kelly, followed by Ben Macpherson. Thank you. Bear in mind the seriousness of the situation in that we have different legal advice from the Presiding Officer and from yourself, Lord Advocate. Can you state whether you took any additional external legal advice separate from that of your in-house legal team? As members of the Parliament will be well aware, the Scottish Government does not disclose the source of its legal advice. There is one express exception in the ministerial code, which is that Government may state what is a matter of public record that law officers will clear any certificate of competence of a bill. That is the basis on which I have confirmed that I cleared the certificate of competence for this bill. I am here today as a member of the Scottish Government and, like any other minister, I am explaining to the Parliament the Scottish Government's position in relation to its legal analysis of this particular bill. Ben Macpherson, to be followed by Alex Neil. Lord Advocate, you made a number of references and comparisons to the UK Government's EU withdrawal bill. For clarity, is it not the case that any argument suggesting that the Scottish Government is acting in a way that is incompatible with the EU law could also be used to argue that the UK Government's legislation is incompatible with the EU law, and therefore, if one is compatible with the EU law, the other is as well? Again, I think that the short answer is yes. Alex Neil. Thank you, Presiding Officer, and I welcome the Lord Advocate's statement. I ask the Lord Advocate if he can confirm that the Supreme Court decision in relation to the Gina Miller case in article 50, where the Supreme Court dismissed Sewell as a convention in not law, can the Lord Advocate confirm that that would nevertheless make this bill justiciable and likely to succeed as valid if it ever ends up in the Supreme Court? Lord Advocate. Indeed, the question of whether any bill of this Parliament is or is not within legislative competence can ultimately be adjudicated upon by the courts. Again, I am not going to anticipate the hypothetical possibility that this bill may end up in any particular forum. I thank the Lord Advocate and members for their point of order, Neil Findlay. I was asking the Lord Advocate on what legal basis this had to be done through emergency legislation, but he did not address that in his answer. I wonder if you could address that point as to why the proposed bill would have to be done through emergency legislation. I thank Mr Findlay. I noted the question. He asked a number of questions of the Lord Advocate, including questions such as those that were probably more designed for the Parliament, the Parliamentary Authorities and the Minister for Parliamentary Business. The question of whether or not a bill needs to be in emergency legislation is one for this whole Parliament. The Parliamentary Bureau will discuss this, will take a view or make a recommendation. It might not make a recommendation, but it will bring the issue to the Parliament. It will then be for the Parliament itself to debate and decide whether it wishes to see this treated as emergency legislation. In the end, Mr Findlay, it is up to you and all the members in the chamber. On that point, we conclude the ministerial statement. We move on to the next item of business, which is a debate on motion 10650, in the name of Michelle Ballantyne. It will just take a few moments for members and ministers to change seats.