Scottish Parliament, 21 March 2018

426 contributions from 54 members. The official report.

Business Motion

Linda Fabiani (Scottish National Party, East Kilbride)

The first item of business is consideration of business motion

S5M-11152, in the name of Joe FitzPatrick, on behalf of the Parliamentary Bureau, setting out a stage 3 timetable for the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

Motion moved,

That the Parliament agrees that, during stage 3 of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, debate on groups of amendments shall, subject to Rule 9.8.4A, be brought to a conclusion by the time limit indicated, that time limit being calculated from when the stage begins and excluding any periods when other business is under consideration or when a meeting of the Parliament is suspended (other than a suspension following the first division in the stage being called) or otherwise not in progress:

Groups 1 to 3: 1 hour

Groups 4 and 5: 1 hour 30 minutes

Groups 6 to 8: 2 hours 25 minutes

Groups 9 to 15: 3 hours 50 minutes.—[

Joe FitzPatrick

]

Motion agreed to.

United Nations International Day for the Elimination of Racial Discrimination

Linda Fabiani (Scottish National Party, East Kilbride)

The next item of business is a members’ business debate on motion S5M-10173, in the name of Fulton MacGregor, on the United Nations international day for the elimination of racial discrimination. The debate will be concluded without any question being put.

Motion debated,

That the Parliament recognises that 21 March 2018 is the UN International Day for the Elimination of Racial Discrimination; understands that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights, and that everyone is entitled to all the rights and freedoms set out therein without distinction to race, colour or national origin; notes that racial inequality and racial discrimination continue to be prevalent and, at times, accepted in society, despite the ratification of the International Convention on the Elimination of All Forms of Racial Discrimination nearly 53 years ago; condemns all forms of racism and racial discrimination in Scotland; notes that the UN has urged taking comprehensive measures to combat racism, racial discrimination, xenophobia and related intolerances; welcomes the publication of the Scottish Government’s Race Equality Framework for Scotland 2016-2030 and the Race Equality Action Plan 2017-2021, and notes the calls for there to be regular updates on actions taken to fully eradicate racism and racial discrimination in Scotland.

Fulton MacGregor (Scottish National Party, Coatbridge and Chryston)

I thank colleagues from across the chamber for supporting the motion and allowing this important topic to be brought to the chamber today. It is worth putting on record my disappointment that the time for the debate has

been brought forward. I know that needs must, given the impact of Brexit on everything, but I also know that the number of people who spoke to me about this debate prior to the change in the timing is not reflected by the number of people currently in the chamber.

I have had the pleasure of chairing the cross-party group in the Scottish Parliament on racial equality since it was reformed after the election in 2016. During that time, I have had the privilege of meeting and speaking with many people from around Scotland about the issues that are faced on a day-to-day basis by people from black and minority ethnic communities. I particularly thank the Coalition for Racial Equality and Rights for its support for the cross-party group and for its help in pursuing and securing this debate. I am delighted to note that many representatives from the cross-party group are in the public gallery, but I think that the number there has been affected by the change in the debate’s timing. However, some have still managed to come along and witness the issue being discussed in Scotland’s Parliament.

Today marks the 52nd anniversary of the international day for the elimination of racial discrimination, which was established by the UN following the massacre of 69 people who were shot and killed by police at a peaceful demonstration in Sharpeville, South Africa, against apartheid laws. Since the ratification of the International Convention on the Elimination of All Forms of Racial Discrimination in 1965, the United Kingdom, among 87 nations, has signed up to and committed to recognising the human rights and personal freedoms of all people, regardless of race, nationality or ethnicity. Major steps have been taken in the fight against racial discrimination since then, but how sad is it that, more than 50 years later, the problem has not been eradicated from our streets and workplaces?

Despite good progress, there is still a huge amount of work to be done to rid ourselves completely of racism, particularly casual racism, which occurs even among senior public figures, including politicians. In 2016, the UN Committee on the Elimination of Racial Discrimination called on Scotland to strengthen its commitments to those international ideals and recommended that the Scottish Government take steps to prevent hate crimes and racist bullying in schools; increase access to legal aid; improve the curriculum on the history of the British empire and colonialism, particularly with regard to slavery; and review stop-and-search powers in law enforcement. As a result, the Scottish Government recently published “A Fairer Scotland for All: Race Equality Action Plan 2017-21”, which outlines the steps that the Scottish Government intends to take to promote racial equality in Scotland in a wide range of areas, from employment to housing and community cohesion and safety, to name but a few. I was grateful to the cabinet secretary for coming along to the most recent meeting of the cross-party group to update members on the plan.

Recognising racism and establishing a national approach to eliminating it in our society is a momentous step that I am sure that we can all support, particularly at a time when Lord Bracadale is undertaking a review into hate crime legislation in Scotland. In recent weeks, we have seen significant coverage of the racism that is experienced by elected officials in Scotland, who call on us to consider the reality of racism in not only our political system but wider Scottish society. If that is the sort of racist abuse faced by elected members, what must other members of ethnic and cultural minority communities be facing? For example, a report from the Crown Office and Procurator Fiscal Service shows that racial crimes were the most commonly reported hate crime in the past year, with 3,349 charges reported. Although it would be easy to congratulate ourselves for having the lowest number of reported hate crimes in more than 10 years, that is 3,349 charges too many.

As elected representatives for a diverse range of people, it is important that we recognise that these issues are faced not only by members of minority ethnic communities. The CPG on racial equality in Scotland has focused its attention on matters such as poverty and the discrimination that is faced by Gypsy Travellers. Over recent weeks, there has been much discussion in the chamber about sectarianism in Scotland and how we should best tackle it.

There is much more to this picture. We need to look beyond to understand the inherent structures that perpetuate racism and prejudice in our society. A publication that examined the link between ethnicity and poverty in Scotland found that, overall, poverty is higher among ethnic minority groups than it is among the majority white population, and that there is a lack of inclusive services—including childcare—that take into account cultural and religious differences.

A report from the Equality and Human Rights Commission found that

“if you are born into an ethnic minority household today, you are nearly four times more likely to be in a household that is overcrowded and up to twice as likely to be living in poverty and experiencing unemployment.”

Not only that, but people from ethnic minority communities with qualifications equal to their majority white counterparts face greater barriers to finding work that matches their qualifications. That is a waste of talent and completely unfair on the individuals concerned. Those inherent biases and injustices do nothing but hurt our society. As I have mentioned in the chamber previously, I am dealing with a constituency case that involves some of those problems.

At the end of the day, we are all Scottish people with various cultural and racial backgrounds. We are part of the grand tapestry of Scotland. Everyone is part of our inclusive national identity. We are all equal citizens who are united through our shared national identity. As members of Parliament, we must use our privilege as the voice of our constituents in towns, villages, cities and communities in Scotland to champion our nation as an international leader in challenging racial discrimination and progressing racial equality.

Scotland has a proud history of challenging racial discrimination and we must share the responsibility of carrying that work forward. The Scottish Parliament should strive to be a leading international voice in reinforcing the support of our institutions for a world that is founded in justice, equality and human rights. I am pleased that we are taking steps to do that through the bold policies and legislation of the Government and through the formation of various cross-party groups, including the newly formed cross-party group on tackling Islamophobia, which is chaired by Anas Sarwar MSP.

One of my main hopes in life is that the generations that follow us, when looking at these matters during discussions on history, such as those that my children will have at school, will wonder why we ever thought that this was an issue. However, policies, legislation and cross-party groups on their own will never be enough to make that dream a reality. We all need to do our bit in an ever-changing world in which world leaders run campaigns about building barriers and walls, and in which Brexit threatens migration to our country.

I finish with the motto of BEMIS, which is one that I believe that we should all adopt: there is only one race, the human race, diverse in its glorious nature.

Annie Wells (Conservative, Glasgow)

I thank Fulton MacGregor for bringing this important topic to the chamber. I am pleased to have the opportunity to speak on the UN international day for the elimination of racial discrimination. Looking at this year’s theme of promoting tolerance, unity and respect for diversity, I echo the sentiments of Fulton MacGregor by insisting that we must continue to fight for true racial equality.

Around one in eight people in this country are from Scotland’s ethnic and cultural minority communities. Despite the fact that they are part and parcel of the country’s make-up, gross inequalities still exist. For example, politically, just 1.2 per cent of our councillors are from an ethnic minority community and, economically, we know that the people from those communities remain clustered in lower-paid, part-time jobs.

Culturally, as we have seen from recent high-profile cases, Scotland is not immune from the everyday racism that we so desperately need to stamp out—from personal attacks online to the ignorant comments that are made in everyday conversation. In addressing those inequalities, I suggest that we must go back to basics. First and foremost, we must understand exactly where we are in terms of racial equality.

In December last year, I spoke in the debate on the Scottish Government’s racial equality action plan, during which I highlighted the need for vastly improved data collection in Scotland. Currently, we are behind the curve with gaps across the board. Due to time, I am not able to name them all, but examples include: voter registration figures by ethnicity, ethnicity of homicide victims, nationwide data on racist incidents in school, ethnicity pay gap figures and data on the uptake of mental health services based on ethnicity.

If Scotland is not to take part in the UK race disparity audit, I renew my call for a robust approach to improved Scotland-specific data and call on the Scottish Government to issue regular updates on how its equality evidence finder is progressing. Knowing the statistics and being honest about our current stalemate will shine a light on the disparities that exist, and will drive progress.

Racial discrimination transcends the bread-and-butter issues of life—education, employment and justice. That is why societal and cultural attitudes also require our undivided attention. Discrimination can be embedded in our language, through throwaway comments passed off as jokes and through as simple a thing as who we see on the big screen.

As the wording of the International Convention on the Elimination of All Forms of Racial Discrimination shows, the definition of racial discrimination extends to include restriction, distinction and exclusion from the cultural and social spheres, which creates an abundance of scenarios in which racial discrimination can be missed. I will give a brief idea of the areas on which we could focus.

Education is key to creating a positive example of how children can embrace an inclusive national identity from an early age. I am pleased that BEMIS is working with Education Scotland to embed race equality resources in the curriculum. As the organisation has highlighted, it is important that that approach extends beyond schools that have large ethnic and cultural minority communities.

Language, too, is paramount. That is why, in preparation for the debate, I have reflected on my own use of terms such as BME and questioned whether such abstract groupings can inadvertently create the impression of distance and otherness.

It is important that we have such discussions and think more broadly about how we go about creating an inclusive national identity that genuinely embraces everyone’s cultural characteristics—from language to music—to create a positive picture of diversity. In doing so, we will shine a light on hidden discrimination and, I hope, bring about real societal change. I wholeheartedly wish us to work together as MSPs and parties to achieve that and I again thank Fulton MacGregor for bringing the debate to the Parliament.

Tom Arthur (Scottish National Party, Renfrewshire South)

I thank my colleague Fulton MacGregor for securing the debate and echo his frustration that we were not able to have it in the evening. However, it is important that it goes ahead.

As Fulton MacGregor outlined, the history of why we have the UN international day for the elimination of racial discrimination is well known: 21 March 1960 was, of course, the Sharpeville massacre—a massacre of people who were protesting against the egregious and horrific pass laws that were fundamental to the apartheid system in South Africa. It is appropriate that we are having this debate because 2018 is the 70th anniversary of the Universal Declaration of Human Rights. It is also the centenary year of the birth of Nelson Mandela and, indeed, the 25th anniversary of his visit to Glasgow.

I add my support to the Nelson Mandela Scottish Memorial Foundation, which is campaigning under the auspices of the legendary Brian Filling, our honorary consul for South Africa and a giant of the Scottish anti-apartheid movement. I lend my support to that campaign because it is incredibly important that we recognise Mandela’s contribution. One of the great actions that we took in Scotland to challenge apartheid was to change the name of St George’s Place to Nelson Mandela Place—of course, the South African consulate was located there.

That speaks to the broader issue of the structures of racism, which Fulton MacGregor mentioned. There are still literal, physical structures. Anyone who walks through Glasgow will see structures named Buchanan after Andrew Buchanan and Glassford after John Glassford. The magnificent properties that we see were financed by slavery, the most egregious form of exploitation and the most racist system that has ever existed. We must take cognisance of that. We must recognise Scotland’s colonial history. We can sometimes be rather prone to slapping ourselves on the back and saying that we are all Jock Tamson’s bairns, but the legacy is hard-wired into our architecture and history.

In my constituency of Renfrewshire South, Milliken Park is named after James Millliken, and there are places named after the McDowalls of Castle Semple in Lochwinnoch and the Houston family, all of whom have prominent connections to the slave trade. We need to address the lack of awareness of Scotland’s history and connections among many people.

I want to pick up the point in the motion about the race equality action plan. Section 3 of that plan refers to health, which is important. It refers specifically to improving the uptake of HIV testing, especially in the African community. As co-convener of the cross-party group on sexual health and blood-borne viruses, I have met community workers and representatives of the African community who are doing tremendous work on that.

I highlight the importance of hepatitis C testing, which is a particular issue for our south Asian community. The Hepatitis C Trust suggests that the prevalence of hepatitis C in the south Asian community in the UK is 2 to 4 per cent, which is four to eight times higher than the figure for the rest of the population. That is an important issue to take into consideration, and I will highlight it in a members’ business debate on the hepatitis C virus that I will have later this year.

Having considered Scotland’s past in relation to colonialism and racism, we have to realise that this is a present-day issue. My colleague Humza Yousaf and Anas Sarwar have been subjected to horrific abuse, slurs and statements. I stand united with Anas Sarwar, Humza Yousaf and everyone else in opposing and deploring such actions and words.

In an age of vitriolic populism right across the globe in which we are seeing many communities, including migrant communities being targeted and being blamed for economic inequality, we must redouble our efforts to eliminate racism and its root causes.

Anas Sarwar (Labour, Glasgow)

I congratulate Fulton MacGregor on securing the debate, and I thank him for his work with the cross-party group on racial equality. I look forward to continuing that work with him through that CPG and through the CPG on tackling Islamophobia.

I take this opportunity to send a message of solidarity to all our diverse communities, here in Scotland and right across the world, who are victims of everyday prejudice, bias or abuse. The reality is that if we accept that everyday sexism and everyday homophobia exist in our country—which they do—we must also accept that everyday racism, everyday anti-semitism and everyday Islamophobia are real, too. In the vast majority of cases, that is not something criminal—it is not something that we can report to the police or something that someone can be charged with—but it still impacts on life chances, life opportunities and life outcomes. That is why we have to look at ourselves, our own individual behaviour and our Parliaments, local authorities and institutions to see what more we can do to challenge everyday prejudice in all its forms.

As others have said, we cannot leave that fight to individual communities. We cannot leave the fight for gender equality to women, and we cannot leave the fight on lesbian, gay, bisexual and transgender rights to the LGBT community. In just the same way, we cannot leave the fight against anti-semitism, racism or Islamophobia to those individual communities. We have to see this as a collective fight for all of us if we are genuinely to eradicate it from our communities.

I have mentioned the impact in terms of criminality, but there is more of an impact in terms of access to education and educational outcomes, access to employment and the ability to pursue a career pathway and gain promotion, and access to public services. That is why, in setting up the cross-party group on tackling Islamophobia and after speaking about some of my own experiences, I have sent detailed proposals to the First Minister. I look forward to receiving a response to them.

This issue goes way beyond party politics. It is not an issue on which we are going to pick a fight with one another about our party colours, but one on which we have to be united as one, and we have to speak out against it. I want to raise an issue that has come up in the past 24 hours, because it is important that we say directly to all our institutions across Scotland, including political parties—my own and every other—national and local government, public services and other organisations, “Wake up! Everyday racism is real.” It is impacting people every day and none of us is immune to it.

In the past 24 hours, we have seen reports about a Clyde Football Club player who made racial comments against an Annan Athletic

footballer

at the beginning of January. Clyde has now put out a statement detailing what that player’s punishment will be. I want to repeat what he said—I apologise for the language that I am about to use.

The Deputy Presiding Officer

Please do not swear. You can metaphorically bleep.

Anas Sarwar (Labour, Glasgow)

I will metaphorically bleep, then. At the start of the match, Ally Love, the Clyde FC footballer, said to Rabin Omar, a Dutch-born Iraqi Kurdish footballer, “Are you black or white?” During the game, he called Omar a P B—members can probably guess what I am referring to—and when he was challenged during the match, he replied, “Will it just be you, or are you going to bring your P pals?”

The referee and other players heard those comments and the incident was included in the match report. An investigation took place and the Scottish Football Association suspended Ally Love for five games. Managers get suspended for five games when they argue with the referee, and they are sent to the stand. This was a much more severe incident and warranted a greater punishment than suspension for five games, but in the past 24 hours Clyde FC has said that it conducted its own investigation and the punishment that it decided on was to send Ally Love on diversity training.

I am sick to death of hearing of the use of diversity training as some kind of excuse or punishment. Diversity training should be mainstream for every one of us. Ally Love should be suspended by his club, if not expelled altogether. We have to send a message—particularly to our young people, who see footballers as role models—that the time is up for the expression of hateful views in the open and, indeed, in private. The time is up for all those people with hateful views. I look to my children to make sure that they do not grow up in a Scotland where racism exists, but we need to look to all our children to create a Scotland free from any form of hate or prejudice.

Patrick Harvie (Green, Glasgow)

I commend the speech that we have just heard from Anas Sarwar. As well as the powerful later part of his speech, he began

by saying that we should express our solidarity and good wishes to the diverse communities of Scotland. As today is Newroz, the Kurdish new year, I offer special good wishes to Scotland’s Kurdish community. I also commend Fulton MacGregor for bringing the debate to the chamber, gaining cross-party support for it and giving us the opportunity to have a debate on the topic.

I acknowledge the work that is happening. The motion mentions the work that the Government is doing—the action plan, the framework and so on—and the minister will no doubt speak about that. Work is also being done on a cross-party basis through the CPG group on racial equality, and Anas Sarwar mentioned the CPG on Islamophobia that he has just initiated—a welcome addition to the cross-party work that happens.

Several of us in the chamber are also members of the cross-party group on Govanhill. It is worth reflecting on the level of community activism in places such as Govanhill—for example, the celebration of the Roma community both annually and throughout the year.

It is absolutely vital that communities get involved through vibrant community activism. This is not just about the response of politics, Government and public services. Local community leadership needs to be part of the response to the rising tide of racism and intolerance in our society—and it is a rising tide, regrettably.

Fulton MacGregor mentioned that Brexit impacts on everything that we do these days. This does not apply to everybody who voted leave, because there are some who are delusional enough to think that there is an economic argument in favour of the Brexit project, but it is worth saying very clearly that, for others, the project has fundamentally been a racist one, predicated on hostility to immigrants—or to people they perceive to be immigrants, even if they were born here—and intolerance towards migrant labour, asylum seekers and refugees. It has come on the back of years of racist rhetoric in parts of our press on those issues and against those people.

We know that the referendum result itself provoked and triggered an increase in hate crime—in particular, racist hate crime. I fear that we have to acknowledge that the same thing is likely to happen when the Brexit project itself is completed, and again when the UK Government attempts to impose more hostile anti-immigrant policies at a UK level.

Although most of us would oppose that policy direction, we need to recognise what is happening and to gear ourselves up with the courage and commitment to oppose what is likely to be a very challenging time—a time in which we will continue to see that rising tide of racism and intolerance.

It is not only the Brexit crisis that has emboldened those who take such views and who wish to propagate racism; globally, the impact of the Trump presidency has emboldened them and given some form of perceived permission to those who want to propagate racism, white supremacy and intolerant attitudes and ideas. We see that not only in social media but—as has been quite clearly and correctly stated in the debate—in people’s communities and in people’s lives on a daily basis, and I fear that it will get worse in the years ahead.

I welcome the fact that the Bracadale review—the hate crime review that should have happened several years ago—is now under way. I hope that it is coming towards a conclusion and some recommendations. I have made the argument to Lord Bracadale that we should be open to the question whether far-right language and imagery themselves need to be recognised as hate crime.

I endorse Anas Sarwar’s comments about political parties as well as other institutions in our society. I know that there has been recent high-profile discussion about the Labour Party, but it is by no means an issue for only on one political party—it is an issue that reaches across the political spectrum. It reaches across our society and our political landscape, and every political party has a responsibility to take a zero tolerance attitude not only in reacting to specific incidents, but in ensuring, proactively, that we do not recruit as candidates people who need to be disciplined for what are basic matters of decency and civility.

Maurice Corry (Conservative, West Scotland)

I thank Fulton MacGregor for securing today’s members’ business debate, which gives us the opportunity to properly mark the UN international day for the elimination of racial discrimination.

This is a well-timed debate. We only have to look at the recent high-profile case that we all have heard of, involving one of our colleagues, Humza Yousaf, who was faced with Islamophobic comments from an elected councillor, to realise that. Humza Yousaf and Anas Sarwar spoke powerfully on the BBC at the weekend about racism and Islamophobia and the threats and abuse that they receive as public figures due to their race and religion—injustices that no one should ever have to face today. It shows that we still have some distance to travel before we are finally able to say that Scotland is free from this despicable form of discrimination.

The UN international day for the elimination of racial discrimination has been marked since 1966, and the UN chose 21 March because it was on that day in 1960 that police opened fire and killed 69 people at a peaceful demonstration against the apartheid laws, in Sharpeville, South Africa. Proclaiming the day in 1966, the United Nations general assembly called on the international community to redouble its efforts to eliminate all forms of racial discrimination.

It is appropriate that this day is still marked in South Africa as human rights day, which is a public holiday. I am sure that everyone in the Parliament offers our support to South Africans as they commemorate the lives that were sadly lost during their long struggle for democracy, freedom and equal human rights in their country during the apartheid regime.

Since then, the UN has adopted the Durban declaration and programme of action, to address and track instances of discrimination around the world. Under the programme, measures have been put in place for nations to report on the state of equality and be held accountable for addressing evident issues. In April 2009, the Durban review conference was held to look into the effectiveness of the programme’s performance. Individuals and organisations had the opportunity to speak about the state of racial and religious equality in their countries.

Examples of racial discrimination exist throughout the Commonwealth. During the conference, Khalid Hussain, a Bihari from Bangladesh, talked about the discrimination that he and his community face. The Bihari are not recognized by the public as citizens and face discrimination in the context of school and employment opportunities. They have been living in camps throughout Bangladesh since the partition of Pakistan in 1971.

Many Bihari people are denied entry to the public school system after primary school, which forces them to go to private school—something that most Bihari cannot afford to do. That was Hussain’s experience, and while he was at private school, he and his Bihari classmates were bullied and marginalised in the classroom. Nevertheless, he was lucky enough to get an education. Many of his peers were unable to do so, which has placed limits on the jobs that they can hold.

Although discrimination continues, there was new hope in 2003 when Bihari living in the camps were officially deemed Bangladeshi by the Bangladeshi High Court, which forced the Electoral Commission to give them voting rights.

That is just one of numerous accounts of the racial or religious discrimination that citizens of the Commonwealth face every day. Last week, we celebrated Commonwealth day and reflected on the progress that has been made, while recognising the progress that remains to be made. In the context of racial discrimination, we must continue to work towards a fairer society throughout Scotland, the United Kingdom and the Commonwealth, including through the United Nations.

The promotion of tolerance, inclusion, unity and respect for diversity is the focus of this year’s international day for the elimination of racial discrimination. Globally, there is still much progress to be made. Despite the near-global ratification of the International Convention on the Elimination of All Forms of Racial Discrimination, many individuals and communities still face systemic discrimination based on their race or religion.

If there is global co-operation and we share tactics that have worked in individual countries, making a true effort to end racial and religious discrimination, progress can be made.

Alasdair Allan (Scottish National Party, Na h-Eileanan an Iar)

I thank all members for their considered and insightful speeches, and in particular I thank Fulton MacGregor for lodging the motion that we debate in the Parliament today.

It is

fitting that we are discussing these matters on the international day for the elimination of racial discrimination.

Like the Scottish Parliament, the Scottish Government is determined that Scotland should do all that it can to advance race equality, tackle racism and address the barriers that prevent people from minority ethnic communities from realising their fullest potential.

With that in mind, we published the race equality action plan in December, which restates our commitment to race equality and outlines the actions that we will take during this parliamentary session to realise the ambitions that are set out in the race equality framework for Scotland, which was published in March 2016. Following the recommendation of Kaliani Lyle, the independent race equality framework adviser, we are establishing a senior level programme board, which will meet quarterly, to oversee the action plan’s implementation.

This is, of course, the year of young people. A group of minority ethnic young people have been working with the Scottish Government since April 2017, supported by Young Scot, to co-design a fairer future for minority ethnic young people in Scotland.

In November, they published their report, which is entitled “Creating a Fairer Future—Young people’s ideas for race equality in Scotland”. Most of the panel members have experienced some form of discrimination based on their ethnic background. In the midst of talking about Government policy, it is worth reflecting on the fact that the Government policy exists because of personal human experiences of unjustifiable discrimination—experiences that limit people’s opportunities in their lives in our country. All that has a terrible impact on people and families.

As Patrick Harvie observed, we live in a time when some people feel that casual racism has been given political permission from some quarters, here and in other countries. All of us as politicians and all parties need to tackle that head on. As we have heard, part of that involves examining our past, including examining the history of the British empire in a way that we perhaps do not often do, as well as the role of Scots in the slave trade, which Tom Arthur alluded to, even if that means merely looking about us and learning the story behind some of our street names.

As my colleague the Cabinet Secretary for Communities, Social Security and Equalities announced earlier today, one of our partners in the work that we do, BEMIS, will deliver a programme of local and national events that are aimed at involving minority ethnic young people in the year of young people. BEMIS, which has delivered strongly on previous themed years, will receive around £70,000 for that project. That is in addition to the £2.6 million of funding that we provide to tackle racism and racial discrimination. We are also providing £500,000 for a new workplace equality fund, which will support innovative projects that are aimed at reducing barriers to employment for minority ethnic people, women, disabled people and older people.

The race equality adviser’s report “Addressing Race Inequality in Scotland: The Way Forward” highlighted that research shows that one community faces particular discrimination, and that is Scotland’s Gypsy Traveller community. That is why in December 2017 the Cabinet Secretary for Communities, Social Security and Equalities announced the establishment of a ministerial working group specifically on Gypsy Travellers, which she chairs and which is attended by the Minister for Local Government and Housing, the Minister for Childcare and Early Years, the Minister for Employability and Training and the Minister for Public Health and Sport. The cabinet secretary and the ministers on the working group have been visiting Gypsy Traveller sites and meeting members of that community. Engagement with the community will continue over the lifespan of the working group, not simply to ask what the problems are—we have probably done that already—but to check out with them the viability of the solutions that the working group develops.

More generally, the actions that we need to eradicate racism are of course not just for the Scottish Government alone. As Anas Sarwar rightly said, every individual and organisation in Scotland needs to play their role in creating a fair and equal Scotland that protects and includes people from all backgrounds, whatever their ethnicity. As Annie Wells and others observed, we cannot be complacent just because we have not seen in Scotland some of the issues that have been evident in other parts of the UK. As recent incidents have shown, Scotland is not immune from the phenomenon of public figures in our communities saying moronic things. Members of the Parliament have been subjected to offensive comments and much worse because of their race or religion. Strong action needs to be taken against all offenders and all political parties and all of us in the Parliament need to adopt a zero-tolerance approach to examples of racist hate crime.

I will finish with a quote from the American writer and civil rights activist Audre Lorde, who wrote:

“It is not our differences that divide us. It is our inability to recognize, accept, and celebrate those differences.”

We may look and sound different and live differently, but we are all people. As Fulton MacGregor said, we are all Scots—we all live in this community together and we all deserve the same opportunities and to be able to make the same contribution as anyone else.

13:54 Meeting suspended.

14:00 On resuming—

Communities, Social Security and Equalities

Christine Grahame (Scottish National Party, Midlothian South, Tweeddale and Lauderdale)

I

want to get in as many members as possible; members have taken the trouble to lodge questions, so we should try to reach them all. It is a collective effort, so I ask for snappy questions and contained answers.

Scottish Welfare Fund (Households Assisted in Renfrewshire South)

Tom Arthur (Scottish National Party, Renfrewshire South)

1. To ask the Scottish Government how many households in the Renfrewshire South constituency have been assisted by the Scottish welfare fund since 2013. (S5O-01907)

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

Between April 2013 and September 2017, the Scottish welfare fund has helped 23,500 households in Renfrewshire, with more than £5.6 million having been allocated in crisis grants and community care grants, thereby providing a vital lifeline for people in Renfrewshire and across Scotland, and helping people in desperate situations who cannot afford to buy everyday items such as food and nappies, or to meet basic living costs.

Tom Arthur (Scottish National Party, Renfrewshire South)

What impact does the minister consider the United Kingdom Tory Government’s welfare reforms have had in terms of pushing people into circumstances in which they have needed the support of the Scottish welfare fund?

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

Welfare measures that have been passed since 2010 are expected to reduce annual spending in Scotland by £3.9 billion by 2020-2021. There is no doubt that the UK Government’s welfare reforms—in particular, the in-built wait for the first payment of universal credit—are pushing people into crisis.

In its report, the Trussell Trust highlighted a 17 per cent increase in use of its food banks in universal credit full-service areas, which is more than double the national average. The number of Scottish welfare fund crisis grant applications has also increased by 50 per cent since the introduction of universal credit in Scotland, of which 14 per cent is due to a delay in benefit payments.

It is imperative that the UK Government take action to reverse the freeze of working-age benefits, that it remove the child benefit two-child restriction, and that it halt the roll-out of universal credit before more people are pushed into poverty.

Maurice Corry (Conservative, West Scotland)

How many armed forces veterans’ families have been assisted by the Scottish welfare fund in Renfrewshire South?

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

I do not have that detailed information to hand, but I am very happy to source it and write to Maurice Corry with it.

Monica Lennon (Labour, Central Scotland)

Does the minister accept that the Scottish Government’s 7 per cent real-terms cut to the Scottish welfare fund since 2013 means that councils have fewer resources? The Scottish Parliament information centre says that 26,000 more crisis grant payments could have been made had the funding kept pace with inflation.

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

What I do accept is that the overall cut to the Scottish budget has made political choices for this Government difficult. We are doing our very best to support the most vulnerable people in our communities, and our welfare fund demonstrates that admirably.

Universal Credit (Support for Recipients in Inverclyde)

Stuart McMillan (Scottish National Party, Greenock and Inverclyde)

2. To ask the Scottish Government what support it provides to people in Inverclyde who are in receipt of universal credit to assist them to have greater control over their household budget. (S5O-01908)

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

We believe that it is important to give people choice over how to manage their money. Since last October, people making a new claim for universal credit in full-service areas, such as Inverclyde, have had the choice to receive their universal credit award twice monthly and to have their housing costs paid directly to their landlord. Since January, that choice has been extended to everyone in universal credit full-service areas.

To the end of December, some 5,800 people with new claims have been offered one or both of the universal credit Scottish choices, and about 2,500 people have taken up one or both of those choices. As far as we understand it, the information available about those choices and their delivery has been clearly understood by those who are in receipt of universal credit and those choices are being used.

Stuart McMillan (Scottish National Party, Greenock and Inverclyde)

That information is very helpful. Given the extension of the universal credit choices to existing universal credit claimants, how many households does the Government expect will benefit from those choices, once universal credit has been fully rolled out?

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

We expect up that to 700,000 households will be able to benefit from universal credit Scottish choices by the end of the planned universal credit roll-out by the United Kingdom Government, which is currently timed for 2022.

Loneliness and Social Isolation (South Scotland)

Emma Harper (Scottish National Party, South Scotland)

3. To ask the Scottish Government what action it is taking to tackle loneliness and social isolation in the South Scotland region. (S5O-01909)

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

As part of our engagement process, our draft strategy—which we launched in January—has included the organisation of a series of events to hear from local communities and organisations. We have already hosted an event in Dumfries, and one is planned in Galashiels.

The draft strategy includes a commitment to consider the particular issues and barriers related to isolation in rural areas. It is important that we hear from communities about what will make a difference for them.

Emma Harper (Scottish National Party, South Scotland)

I welcome the Scottish Government’s strategy. Does the minister agree that we should recognise the work that the national rural mental health forum, which is run by the mental health charity Support in Mind Scotland, is undertaking with respect to the unique challenges that are presented by rural isolation?

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

There are undoubtedly particular issues across all ages in our rural communities, which has been highlighted by, for example, the campaign by the Scottish Association of Young Farmers.

The national rural mental health forum is a strong national network of rural people and stakeholders who are driving change to enable people in rural communities to be open about their mental health. It uses a solid evidence base to improve people’s lives and to create a programme to influence policy makers, including the Government. I encourage the rural mental health forum to contribute to the consultation on our draft strategy. I am sure that it will be able to present a number of important ideas for us to consider.

Universal Credit (Impact)

Bruce Crawford (Scottish National Party, Stirling)

4. To ask the Scottish Government what discussions it has had with the United Kingdom Government regarding the impact of universal credit in areas where it has been introduced. (S5O-01910)

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

As Bruce Crawford will know, the Scottish Government has long been making known our concerns about universal credit to the UK Government. On 21 March last year, the Cabinet Secretary for Communities, Social Security and Equalities wrote to the then Secretary of State for Work and Pensions, Damian Green, raising a range of serious concerns and calling for a complete halt to universal credit roll-out.

On 28 September 2017, I wrote a joint letter with the Convention of Scottish Local Authorities, based on significant evidence from our local authorities, urging the Department for Work and Pensions to reconsider and halt roll-out of universal credit. I reiterated that request when I gave evidence to Westminster’s Work and Pensions Committee on 24 January this year.

Unfortunately, the UK Government has never indicated a willingness to engage with us on those issues, and has instead forged ahead with a system that is clearly not suitable for the people who need it. The concessions that that Government made in autumn last year, including reducing the six-week wait for the first payment to five weeks, simply do not go far enough.

Although I am pleased that our universal credit Scottish choices are being taken up by people across Scotland, I am well aware that we have very limited powers over universal credit. We cannot fix the problems that are caused by the UK Government’s decision to freeze the amounts that are paid and by the systemic problems in roll-out. Only the UK Government can do that, so we will continue to press it, in that regard.

Bruce Crawford (Scottish National Party, Stirling)

Is the minister aware that the Tories in Stirling Council have no faith in universal credit, given that they have called for the council to spend £600,000 over the next three years to mitigate it? That council’s public safety committee recently reported that victims of domestic abuse are losing their financial independence under universal credit’s single-parent system, which is making people who are in controlling relationships even more vulnerable, so what more can be done to persuade the UK Government to dispense with the system, to halt it as a matter of urgency and to review and address the serious faults?

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

I am, indeed, aware of that situation. It is further proof—if proof were needed—that universal credit is failing the people of Scotland. The DWP already has, through alternative payment arrangements, the ability to provide split payments for households in which domestic or financial abuse is a problem.

However, in my view that approach shows a flawed understanding of the nature of domestic abuse and the controlling characteristics in it from which victims suffer. The Scottish Government is exploring with the DWP how we might exercise a choice for people in Scotland by introducing split payments for universal credit, but that is made complicated by the fact that the benefit is itself reserved. The DWP would have to deliver any such choice for us, and it would, of course, charge us for that. A far better solution would be for the DWP to pay attention to my colleague Dr Philippa Whitford and her attempts at Westminster to get the system changed at source and to have split universal credit payments as the default.

Gender Equality (Promotion)

Jackson Carlaw (Conservative, Eastwood)

5. To ask the Scottish Government what its position is on the need to promote gender equality. (S5O-01911)

Angela Constance (Scottish National Party, Almond Valley)

Our position is that we will continue to take action to promote and achieve gender equality in our country. I am pleased that a great deal of progress has been made on gender equality in recent years, but there is always much more to do.

Our recent action includes taking tangible steps to improve the lives of women and girls in Scotland and to challenge inequality where it persists. Already this year, we have passed legislation on women’s representation on public boards and on domestic abuse. We are taking forward action to tackle the gender pay gap and to make work fairer for women by, for example, transforming our childcare offer, challenging pregnancy and maternity discrimination, and supporting women to return to work. Moreover, we are continuing to invest in tackling and preventing violence against women and girls and in providing the support and services that they need.

Jackson Carlaw (Conservative, Eastwood)

I was depressed to be made aware at the beginning of March of the detention of 35 women by the Iranian authorities for attempting to attend a high-profile football fixture. A number of my constituents have written to me on the matter, which stands in contrast with what we are doing in Scotland. Not only have we taken important steps to encourage women and girls to become interested in football, but that success has been demonstrated by the success of the Scottish women’s national football team, who qualified for their first major championships—Euro 2017—and have made an unbeaten start to their 2019 world cup qualifying campaign.

Given that Scotland is a nation that has made important advances in encouraging women into football, will the cabinet secretary join me in urging FIFA and its member associations to do all that they can to ensure that the Iranian Government lifts this shameful ban and gives gender equality to women to allow them to both participate in and spectate at football and other sporting activities in Iran?

Angela Constance (Scottish National Party, Almond Valley)

I will certainly raise the details of Mr Carlaw’s request in relation to FIFA with my health colleagues, who have responsibility for sports policy. The member makes a fair and credible point about the impact that sport can have on improving equality for women and girls and, as I have said, I will take that forward with my colleagues in health.

Clare Adamson (Scottish National Party, Motherwell and Wishaw)

In the spirit of Mr Carlaw’s question, I want to congratulate the Scottish women’s rugby team on their successes during the recent six nations championship.

Does the cabinet secretary agree that full devolution of employment law to Scotland would fully equip the Government to tackle gender inequality in the workplace here?

Angela Constance (Scottish National Party, Almond Valley)

I really do not want to get into any rivalry between rugby and football supporters. I am not much of an expert on either sport, but I know that both have an important place in our national life and in the advances that we make on equality.

As for Clare Adamson’s substantive question, employment law and, indeed, equality law remain reserved to the United Kingdom. That means that issues such as maternity and paternity rights, which the UK Parliament’s Women and Equalities Committee drew attention to yesterday in its report on fathers in the workplace, are all reserved. Our work on encouraging employers to take more flexible approaches to family-friendly working environments and working hours is undertaken through persuasion, and it is fair to say that we do not have the full range of powers that would give us more tools and more choices to address issues such as fairness at work.

Inequality (People from Lower-income Backgrounds)

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

6. To ask the Scottish Government what support it offers to people from lower-income backgrounds to tackle inequality. (S5O-01912)

Angela Constance (Scottish National Party, Almond Valley)

The Scottish Government is absolutely committed to supporting those on low incomes and to tackling inequality. We are taking a wide range of actions. There is, for example, our continued commitment to the living wage. We are delivering 72,500 affordable homes; significantly increasing the investment in free childcare and early learning; providing free school meals for all primary 1 to primary 3 pupils and throughout school for pupils from low-income households; providing a baby box to every newborn child in Scotland; and investing in free prescriptions and residential care.

We are spending £750 million on our attainment challenge and driving forward the recommendations of our commission on widening access so that every child—no matter their background or circumstances—has an equal chance of going to university by 2030. On top of that, we invest £100 million a year in welfare mitigation to protect those who are on low incomes from the worst impacts of United Kingdom Government welfare cuts.

We will, of course, go further with a range of actions in our child poverty delivery plan, which I look forward to sharing with Parliament next week.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Does the cabinet secretary agree that a big barrier to tackling inequality that is felt by young people in rural and hard-to-get-to areas is the cost associated with travel to apprenticeships, further education or even higher education? Will she look into helping young people on limited budgets who live in rural areas and face unforeseen expenses to access opportunities in order to tackle inequality?

Angela Constance (Scottish National Party, Almond Valley)

Yes, indeed. I am sure that Rachael Hamilton is aware of the consultation on our broader transport policy that is being led by the Minister for Transport and the Islands, Humza Yousaf. There are also proposals to assist young modern apprentices in particular with the cost of travel.

We understand and appreciate, of course, that there are additional barriers in rural communities—one of which is transport—particularly for young people. Given the tone and tenor of

Rachael Hamilton’s question, we will certainly take that issue forward.

Mark Griffin (Labour, Central Scotland)

In September, it was reported that 104,000 pensioners were missing out on £238 million of pension credit. The Government then spent a quarter of a million pounds on an older persons benefit uptake campaign. How many people responded to that campaign? How many older people are now better off as a result of it?

Angela Constance (Scottish National Party, Almond Valley)

That information will be published shortly.

On the broader issue of council tax relief, we invest heavily in the council tax reduction scheme. It is important always to stress that relief is available to affected households. Councils should, of course, publicise the relief when bills are issued. As Mr Griffin has acknowledged, that has featured in our benefits maximisation campaigns. We will get back to him about the specific information that he requested.

Universal Credit (Impact of Income Tax Starter Rate)

Kezia Dugdale (Labour, Lothian)

7. To ask the Scottish Government what action it is taking to ensure that people do not lose universal credit because of the starter rate of income tax. (S5O-01913)

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

That issue clearly highlights the complexities of our current devolution settlement. Universal credit claimants who pay tax at the starter rate benefit from Scottish income tax policy. They will pay less income tax than people would pay anywhere else in the United Kingdom because of the new band that we have created. The UK Government controls policy for universal credit and has stipulated that it should be calculated according to an individual’s income after tax. That means that, whenever we reduce tax for an individual, the UK Government’s rules will operate to reduce their universal credit entitlement.

We are aware of the complex interaction between Scottish income tax policy and entitlement to universal credit, which is reserved to the UK Government, and we will continue to engage with it as universal credit is rolled out across Scotland.

Kezia Dugdale (Labour, Lothian)

The minister is, of course, aware of the work of the Low Incomes Tax Reform Group, which has told us that someone on the starter rate will get only £7 and not the £20 that the Scottish Government promised them. I understand that the fiscal framework makes provision for a transfer back to the Scottish Government. Has the minister asked for that money? How much is it? How will the minister pass that on to the people affected?

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

It is not, of course, the Scottish Government’s fault that individuals receive less as a consequence of the UK Government’s rules on universal credit. I have explained that the UK Government’s rules on universal credit, which is a benefit that it controls, say that it will be calculated after tax. Therefore, when we increase an individual’s income as a consequence of our tax policy, the UK Government will reduce that income because of how it applies its universal credit rules. [

Interruption

.]

My colleagues on my left—they are on my left only with regard to the seating arrangements in the chamber, of course—can shout and moan as much as they like, but they must accept responsibility for the decisions on universal credit of their party in government at United Kingdom level, which make the situation precisely as I have described it.

I turn to Ms Dugdale’s supplementary. As she knows from the answer that Mr Mackay gave previously in the chamber, we are in discussions with the UK Government on how those arrangements work. The issue is more complex than it might first appear, as matters that relate to the fiscal framework and the Smith commission always are.

The answer to all that is to pass to the Scottish Parliament all the powers to do with social security and taxation. That would let us get on and do a better job than the one that is being done for us down south.

United Nations International Day for the Elimination of Racial Discrimination

Fulton MacGregor (Scottish National Party, Coatbridge and Chryston)

8. To ask the Scottish Government what it is doing to mark the UN international day for the elimination of racial discrimination. (S5O-01914)

Angela Constance (Scottish National Party, Almond Valley)

I congratulate Mr MacGregor on the motion that he lodged to mark this significant day, which was debated earlier, and on securing cross-party support for it.

To mark the day, I published a blog on our fairer Scotland website, in which I highlighted that this year is the 70th anniversary of the Universal Declaration of Human Rights, which I noted is as relevant today as it was on the day on which it was signed. I also referred to the independent race equality adviser’s report and her 70 recommendations, which formed the starting point for our race equality action plan. I was pleased to announce that we will provide funding of around £70,000 to one of our key race equality partners, BEMIS, to deliver a programme of local and national events that is aimed at involving minority ethnic young people in the year of young people.

I am very much looking forward to attending an event tomorrow to celebrate young people’s creativity in tackling racism, which will be hosted by Show Racism the Red Card.

Fulton MacGregor (Scottish National Party, Coatbridge and Chryston)

I welcome the actions that the Government is taking to tackle racism. Given that it is actions that matter, does the cabinet secretary agree that all workplaces and establishments, including political parties, should adopt a zero-tolerance approach to racism and discrimination against minorities?

Angela Constance (Scottish National Party, Almond Valley)

I do. The member is right to highlight that a zero-tolerance approach to racism and racial discrimination is needed. That response is needed now, and it must be consistent.

I agree that strong and effective action must be taken against anyone who commits a racist hate crime. All those who occupy leadership positions in public life must make clear their rejection of racist and Islamophobic abuse and must take action against anyone who makes statements of that nature.

It was good to see Anas Sarwar and Humza Yousaf showing a united front at the weekend in response to the racist and Islamophobic abuse that they routinely experience, which I am sure we are all absolutely appalled by, but it is important to stress that it is not just for Anas Sarwar and Humza Yousaf to stand united on the issue—we must all stand united in tackling racism in all its forms.

Pauline McNeill (Labour, Glasgow)

Will the Scottish Government support the call from BEMIS for Scotland’s national identity to be as inclusive as it can be and for it to include the integration of refugees and asylum seekers into Scottish society? Does the cabinet secretary agree that anti-refugee sentiment has no place in Scotland or in our society?

Angela Constance (Scottish National Party, Almond Valley)

I agree. It is, indeed, a case of one Scotland, many cultures. I hope that the member has seen that reflected in the good cross-party civic Scotland work that we have done on our immigration strategy for new Scots.

Period Poverty

Stewart Stevenson (Scottish National Party, Banffshire and Buchan Coast)

9. To ask the Scottish Government what action it is taking to tackle period poverty. (S5O-01915)

Angela Constance (Scottish National Party, Almond Valley)

In our programme for government, which was published in September,

we committed to introducing a scheme to fund access to free sanitary products in schools, colleges and universities. Scottish Government officials are currently working with key stakeholders including the Convention of Scottish Local Authorities, the Scottish Further and Higher Education Funding Council, Colleges Scotland and Universities Scotland to ensure that provision can be put in place by the autumn term this year.

We are also committed to considering further action to support others on low incomes in the light of the findings of the pilot scheme in Aberdeen. The pilot is currently being evaluated, and I was pleased to announce recently that we will continue to make sanitary products available to those who took part in the pilot while the evaluation is completed.

Stewart Stevenson (Scottish National Party, Banffshire and Buchan Coast)

Is the cabinet secretary aware of the urgency of the matter for people in Aberdeenshire, where the Tory-led council has now determined that those who require such products must come forward for them, thus potentially stigmatising those who require them by reason of poverty?

Angela Constance (Scottish National Party, Almond Valley)

I agree that free and accessible provision in schools is vital to tackling the issue, which is why this Government has committed to making that happen in schools across Scotland from the start of the next academic year.

Recent research that we carried out in partnership with Young Scot found that having to ask a member of staff for sanitary products was the least popular option among those in education. Officials have worked closely with stakeholders, informed by that important research, to develop a set of guiding principles for provision. Those principles include ensuring that dignity is front and centre and that students’ views are taken into account in developing the delivery approach.

It appears that the approach of Aberdeenshire Council is not consistent with students’ views or with our guiding principles. I encourage it to look again at its delivery approach in consultation with students. I and my officials stand ready to assist either the MSP for the area, councillors or officials.

The Deputy Presiding Officer

I call Monica Lennon. As you have already had a supplementary question, Ms Lennon, I ask you to be brief.

Monica Lennon (Labour, Central Scotland)

I commend the Scottish Government for its work on the Aberdeen pilot scheme. I have been to visit the pilot scheme, and the volunteers at Community Food Initiatives North East are doing fantastic work. Is the cabinet secretary able to say when the interim report or anonymised data from the pilot scheme will be shared? When will the Government come to a view on the merits of universal access?

Angela Constance (Scottish National Party, Almond Valley)

We are working hard to do that as quickly as possible. It will not be done before Easter, but I certainly hope that that work will be complete before the summer months, and I will endeavour to make sure that it is.

Empty Homes (Private Sector)

Lewis Macdonald (Labour, North East Scotland)

10. To ask the Scottish Government what its policy is regarding empty homes in the private sector. (S5O-01916)

Kevin Stewart (Scottish National Party, Aberdeen Central)

Empty homes can be a blight on communities and are a wasted resource at a time when people across Scotland need homes. Our policy provides support to local authorities and other organisations to encourage private owners to bring their properties back into use.

We work with the Scottish empty homes partnership to deliver an advisory helpline and a network of dedicated empty homes officers across Scotland, and more than 2,800 homes have been brought back into use since 2010. In the programme for government, we committed to doubling the funding for the partnership, and we want to see empty homes officer support in every local authority. I am pleased to see the partnership’s hard work come to fruition, with a new empty homes officer post being agreed by Aberdeen City Council last week.

Local authorities also have the power to charge an empty homes levy under the Council Tax (Variation for Unoccupied Dwellings) (Scotland) Regulations, which we introduced in 2013 as an additional tool to encourage the private owners of these properties to bring them back into use, and we provide dedicated funding through the £4.5 million empty homes loan fund and the £4 million town centre empty homes fund.

Lewis Macdonald (Labour, North East Scotland)

I welcome the minister’s answer, as, indeed, I welcomed the decision by Aberdeen City Council last week. In particular, I welcome his support for a network of empty homes officers. There is evidence of a direct correlation between such dedicated posts and success in bringing empty homes back into use.

The minister also mentioned the levy. Does he believe that local authorities now have all the powers that they need to tackle the problem?

Kevin Stewart (Scottish National Party, Aberdeen Central)

I know that the levy is being used, and I have no evidence from local authorities to say that it is not working. I am always more than willing to listen to what local authorities have to say in these areas, and, if they come forward with further proposals, I will certainly consider them. We want to do all that we can to ensure that empty homes are brought back into use.

International Covenant on Economic, Social and Cultural Rights (Incorporation)

Andy Wightman (Green, Lothian)

11. To ask the Scottish Government what plans it has to incorporate the International Covenant on Economic, Social and Cultural Rights into Scots law. (S5O-01917)

Angela Constance (Scottish National Party, Almond Valley)

Many of the rights that are identified in international human rights treaties already find expression in the law of Scotland, including rights that are set out in the International Covenant on Economic, Social and Cultural Rights.

The First Minister’s advisory group on human rights leadership, which is chaired by Professor Alan Miller, has been asked to consider the potential effects of incorporating international human rights treaties into domestic law and the means by which that might be undertaken in practice. The group will make its recommendations by the end of this year, and we are clear that any mechanism that is designed to secure the further incorporation of international treaties must be practical and deliverable and must result in genuine improvements in the daily lived experience of individuals across the whole of Scottish society.

Andy Wightman (Green, Lothian)

Given the Government’s commitment to deliver a collaborative process to determine the rights that should be incorporated, and given the recent report by the Equality and Human Rights Commission on Great Britain’s lack of progress in implementing the covenant, can the cabinet secretary advise me of her view of what should be the first right or rights to be incorporated?

Angela Constance (Scottish National Party, Almond Valley)

There is a question. Thank you very much for that, Mr Wightman. I think that I would be standing here all day if I gave my deliberations about that on the hoof, although, as members would expect, I do have some personal preferences. It is important that we allow the First Minister’s advisory group to show leadership in the area. As I said in my original answer, the Government is clear that the benefits of incorporation need to be practical and must deliver real improvements to real folk in their real lives. It is fair to say that there is a job of work to be done in better understanding the mechanism and process for getting to that place.

On the issue of collaboration, it is important that the member is aware that the advisory group will meet every few months and will work hard to collaborate with civic Scotland. I am sure that the member will be able to feed into that process.

Ministerial Working Group on Gypsy/Travellers (Meetings)

Annie Wells (Conservative, Glasgow)

12. To ask the Scottish Government when the Gypsy/Travellers ministerial working group last met. (S5O-01918)

Angela Constance (Scottish National Party, Almond Valley)

The ministerial working group on Gypsy/Travellers met for the first time on 1 February 2018, and the minutes of that meeting have been published on the Scottish Government’s website. There will be three further meetings this year, and we will share a set of draft actions in early 2019.

Annie Wells (Conservative, Glasgow)

I am pleased to hear that the group met in February. Considering the broad scope of the ministerial group and that it is working across Government portfolios, how will the cabinet secretary seek to record and measure data that are specific to the Gypsy Traveller community so that we maintain a realistic view of progress?

Angela Constance (Scottish National Party, Almond Valley)

The member raises a fair point about the importance of the data being consistent with our approach across the range of equalities. We need the right data and it needs to be proportionate, because we could invest all our time and money in contemplating and completing research and seeking out data. Given that it is, rightly, imperative that the Government act, it is important that we take a proportionate approach to data. The member’s question is a fair one. Our overall approach is laid out on our equality evidence website, and we published a strategy on equality evidence some months back.

On measuring success, I emphasise that the ministers who are involved in the ministerial working group—including me, as the chair—are absolutely determined to make demonstrable progress on issues of inequality that have impacted on the Gypsy Traveller community. It is well established that that group experiences the worst outcomes of any group in Scotland across a range of indicators, and we are determined to put that right.

Universal Credit (Roll-out)

David Torrance (Scottish National Party, Kirkcaldy)

13. To ask the Scottish Government whether it will provide an update on the recent roll-out of universal credit and the impact that it has had on vulnerable people in Scotland. (S5O-01919)

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

As the member will recall, when I wrote jointly with the Convention of Scottish Local Authorities to the Department for Work and Pensions Secretary of State back in September last year calling for the roll-out to be halted, we included evidence from local authorities that had been on universal credit the longest that showed that they were experiencing two and a half times more rent arrears for universal credit claimants than for those on housing benefit. Local authorities also reported an increase in administrative costs to them that was up to three times more than the funding that was received through their delivery partnership agreement with the DWP. Additionally, we know the demand impact on the Scottish welfare fund, which we have already touched on.

Although Scottish choices on the direct payment of rent to social and private landlords are relatively new—they were introduced for new claimants in October and rolled out for existing claimants in January—I am hopeful, given the take-up so far, that that will benefit not only individual claimants but landlords, in terms of rent arrears. Nonetheless, that is only one part of the difficulty with universal credit. We are well aware of its impact across Scotland.

David Torrance (Scottish National Party, Kirkcaldy)

The minister will be aware that universal credit was introduced in Fife in December. The local authority’s head of revenue and commercial services did not mince his words when he said:

“I can see a car crash happening when Universal Credit is fully rolled out”.

We are witnessing a sharp rise in rent arrears, food bank referrals and crisis grants to local authorities where universal credit has been rolled out. Does the Scottish Government agree that that is indicative of a system that is not working properly? What additional support, if any, has the United Kingdom Government provided to Scotland to address those challenges, as it continues to push forward the disastrous roll-out of universal credit?

The Deputy Presiding Officer

That question was a wee bit too long-winded. Trim it next time, please.

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

I agree with David Torrance. I have said many times that the roll-out of universal credit should be halted and that the systemic problem should be fixed. The policy that freezes the benefits within universal credit should be addressed by the UK Government. Other than because it does not want to lose face, I do not understand why any sensible Government would not do as we are urging the UK Government to do.

The UK Government has not provided any additional support to help to address the problems that are being faced, despite those problems and the impact of them on our local authorities and on the Scottish Government being repeatedly demonstrated to the UK Government.

Social Security System (Support for Appeals)

Joan McAlpine (Scottish National Party, South Scotland)

14. To ask the Scottish Government how the Scottish social security system will support people seeking to appeal decisions (S5O-01920)

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

We have always been clear that people will have a right to challenge a social security agency decision if they believe that the agency has not made the right decision, and that we should make that process as simple and straightforward as possible.

I am pleased that we have support at stage 2 for the amendments that I lodged to make the appeal process easier while retaining the individual’s right to decide what they want to do. The amendments will ensure that the agency does all that it can to help an individual with an appeal, including providing information about the process, providing the right form to make an appeal and signposting the individual to organisations that can provide them with independent support throughout the process.

In addition, and in contrast with the current system, I have amended the Social Security (Scotland) Bill to ensure that we will make short-term financial assistance available when a decision to reduce or stop a continuing payment is being challenged. We will not use the removal of financial support to pressure individuals to accept decisions that they believe are wrong.

Joan McAlpine (Scottish National Party, South Scotland)

The minister mentioned that financial support will not be removed in the new Scottish system. Can she give us some details on the timing in terms of when a new decision is made? Removing financial support results in a cliff edge and in people having no support at all when a decision is appealed.

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

Short-term assistance has been introduced precisely to ensure that an individual is not financially penalised right through to appeal at tribunal level, while they pursue their right to challenge a decision of the Scottish social security agency. When the tribunal reaches its decision, the agency will pay whatever level of benefit that the tribunal has determined that the individual is due. I hope that that provides the member with the answer that she seeks. I am happy to talk to her further so that she understands what we are proposing.

Jeremy Balfour (Conservative, Lothian)

The minister will be aware that, at present, the Social Security (Scotland) Bill does not allow a claimant an appeal to a first-tier tribunal if the appeal relates to overpayment. Will she look at that issue afresh and keep the system as it is? At the moment, if the claimant disagrees with a decision by the agency on overpayment, he or she is allowed an appeal to a first-tier tribunal.

Jeane Freeman (Scottish National Party, Carrick, Cumnock and Doon Valley)

I thank Mr Balfour for raising that issue because it addresses a fundamental misunderstanding of what is in the bill. There is, in fact, a right to appeal because, if the agency tells an individual that they have been overpaid, it does so because it has made a new determination. That determination is open to challenge right through to appeal. Therefore, any view on the agency’s part that an individual has been overpaid is as open to challenge right through to appeal as any other determination that it might make.

The Deputy Presiding Officer

That concludes portfolio questions. I apologise to the five members whom I have been unable to call.

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill: Stage 3

Kenneth Macintosh (Labour, West Scotland)

The next item of business is stage 3 proceedings of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list, the revised supplement to the marshalled list and the groupings. The division bell will sound and proceedings will be suspended for five minutes before the first vote of the afternoon. The period of voting for that first division will be 30 seconds. Thereafter, there will be a voting period of one minute for the first vote in a group.

Members should now refer to the marshalled list of amendments.

The Presiding Officer

Amendment 14, in the name of Adam Tomkins, is grouped with amendments 14A and 49.

Adam Tomkins (Conservative, Glasgow)

It is imperative that Brexit—that is to say, the United Kingdom’s withdrawal from the European Union—does not inadvertently undermine the integrity of the United Kingdom as a union of four constituent nations. Indeed, Brexit should deepen and strengthen our precious union.

The United Kingdom common frameworks that we will need in policy areas such as agricultural support, public procurement and environmental protection will, if they are designed properly, lead to a new post-Brexit era of shared government in the United Kingdom, with the United Kingdom Government and the devolved Administrations working together in the common interests of all of the nations of the UK. That is exactly as it should be.

The Scottish Parliament and the National Assembly for Wales will become even more powerful as a result of Brexit. A suite of powers—all of which, by the way, the Scottish National Party-Green alliance would rather say no to; they would rather they are held in Brussels—will come here. They include, but in no sense are restricted to, powers over aviation, carbon capture, the marine environment, maritime issues, energy— including renewable energy—flood risk, water quality, forestry, cross-border healthcare, roads, transport, and voting rights.

Amendment 14 seeks to ensure that the operation of those new powers does nothing to undermine, impede or restrict the operation of the United Kingdom domestic market as it operates now. Those last words are important. The amendment imposes no new restriction on the Scottish Parliament or the Scottish ministers. It takes nothing away from our legislative competence or ministers’ executive competence.

The amendment seeks to define and understand our precious union and the domestic market broadly. Of course, commerce and trade—the free movement of goods, capital, services and labour—are at the heart of it. Free trade was the reason why the union was established 311 years ago in 1707 and it is the reason why Scotland has prospered in the three centuries since. However, it is not just about trade. Our union is a social and cultural union, too. Again, my amendment recognises that and seeks to protect all of it.

Scottish Conservative amendments at stage 2 tried in a variety of ways to protect the union, by making this bill subject to the European Union (Withdrawal) Bill, for example, the Scotland Act 1998, or both. We fully expected the SNP-Green alliance to vote down those amendments, as they will presumably seek to vote down this amendment today. That is par for the course—they do not believe in the union; they want to terminate it. However, the Scottish Labour Party voted with the SNP-Green alliance at stage 2 to defeat our union-protecting amendments. Labour did not want the bill to be subject to the Scotland Act 1998; it voted against that proposition. It did not want the bill to be subject to UK legislation on Brexit; it voted against that proposition. It wanted exactly what the SNP wants—namely, for the bill to give the nationalists licence to use Brexit as an excuse for undermining the union, chiselling away bit by bit at Scotland’s rightful place at the heart of the United Kingdom.

Labour’s amendment to my amendment, which is amendment 14A, in the name of Neil Findlay—a member of Parliament who could not even be bothered to turn up for any of the stage 2 debates—reinforces our view that the Scottish Labour Party is increasingly untrustworthy on the union.

Mr Findlay’s amendment would time limit the requirement to act compatibly with the UK’s domestic market to six months, or to the coming into force of the common framework, whichever is earlier. That would hand the SNP a veto, with no checks and no balances. All the SNP would have to do is hold out for six months, refusing to sign up to any UK common framework and, thereafter, it would be free to act in any way it liked, quite regardless of the UK’s legitimate interests in preserving its market integrity. For a nationalist, that is no problem, but I have no idea what a so-called party of the union is doing putting such a reckless proposition to the Scottish Parliament, and we will not support it.

Neil Findlay (Labour, Lothian)

Will the member take an intervention?

Adam Tomkins (Conservative, Glasgow)

Mr Findlay will get to speak in this debate and I look forward to hearing how he will justify his refusal to turn up at stage 2 and his amendment to my amendment. I will respond to his points when I sum up.

The final amendment in this group is amendment 49, in the name of Tavish Scott, which we will support. The power to keep pace with European law post-Brexit that is provided for in section 13 is an extraordinary power—indeed, it is an extraordinary power grab by Scottish ministers—and Tavish Scott’s amendment 49 would be an important and valuable constraint on its exercise.

I commend my amendment 14 and amendment 49, in the name of Tavish Scott, both of which we will vote for. We will not support Labour’s attempt to shore up the nationalists’ ambitions to use Brexit to undermine the integrity of the United Kingdom.

I move amendment 14.

Neil Findlay (Labour, Lothian)

Before I move amendment 14A, I ask the minister to take a few minutes to advise Parliament what his intentions are if clause 11 of the European Union (Withdrawal) Bill is amended in the House of Lords and the Government has to introduce legislation here to repeal the continuity bill. What happens to all the amendments on the environment, animal rights, human rights and so on—the protections that we have put in? Will there be another process for us to incorporate those into law or will they be cast aside in a process that to many people might look like a political game and a waste of time? It is incumbent on the minister to advise Parliament now and to advise all members in writing what would happen in that scenario. Finally, how will this Parliament scrutinise any deal that might be done between the Scottish Government, the UK Government and the Welsh Government?

Michael Russell (Scottish National Party, Argyll and Bute)

I am happy to say to Mr Findlay that I recognise the importance of the point that he raised. There are elements in the bill, such as the protections for the environment, the charter of fundamental rights and the points about employment that Labour raised, that are different from what is in the withdrawal bill at UK level and which, if the circumstances that he described prevail, might require further legislation.

I commit myself to two things. One is to have consultation with other parties on how we can protect those elements if we reach those circumstances. If the member will write to me about that, I will expand on that to try to find the areas in the bill on which we can find agreement and ensure that, in the event—which is by no means certain—that the bill does not proceed because of an agreement with the UK, we are able to provide those protections, which are extremely important.

Professor Alan Miller indicated earlier this week that he thought that the position that we are taking on the charter of fundamental rights is a far better one, as is our position on the environment and other things.

I commit myself to consulting parties and to responding to the member—and to finding a way to provide those protections should we require to do so.

Neil Findlay (Labour, Lothian)

How does the minister intend to provide Parliament with the opportunity to scrutinise any deal that is proposed?

Michael Russell (Scottish National Party, Argyll and Bute)

I have previously said that we will provide the opportunity for scrutiny of any deal. Nothing will be agreed unless this chamber agrees to it.

Neil Findlay (Labour, Lothian)

Okay.

Amendment 14A seeks to amend the Tory wrecking amendment. It is our view that any Brexit legislation must take account, and meet the needs, of the different nations and regions of the UK, and it must respect the devolution settlement. As such, it is of great importance that any steps to protect the UK’s domestic market are not seen to be at the expense of devolution, or incompatible with it.

Amendment 14 is unacceptable for two reasons: it places no time limit on the restrictions that are proposed and it seeks to make them exclusive to Scotland’s Government. It is in the interests of both the rest of the UK and Scotland that equality is achieved between the regions of the UK with regard to this process. I lodged my amendment as a means to address that, and to ensure that reciprocal arrangements are put in place.

We must ensure that other Governments within the UK have an equivalent commitment that will last until common frameworks are agreed. After that point, the commitments would no longer be necessary. That process would ensure that the intent of amendment 14 is met, while making it effective and in line with the spirit of devolution.

If the Tory amendment is agreed to, policy innovation might be curtailed, because any Scottish Government would be prevented from deviating from practices elsewhere in the UK—practices that are deemed to distort the UK market. For example, we could not introduce public health levies, the smoking ban or the plastic bag tax. That would go against the spirit of devolution and the interests of our people and our democracy.

We will not be supporting Tavish Scott’s amendment 49, because we believe that the existing wording is more appropriate.

Adam Tomkins (Conservative, Glasgow)

Mr Findlay has missed the point of my amendment 14, which is that it protects the domestic market as it operates before exit day. All the examples that he gave were examples of devolution that worked before exit day, and they would continue to work with devolution after exit day. He does not understand the amendment in front of him.

Neil Findlay (Labour, Lothian)

I absolutely do understand the amendment. What Mr Tomkins does not understand is that any of those initiatives could not happen in the future—similar initiatives could not happen. When he was in one of the many other political parties that he has been in over the piece, I am sure that Mr Tomkins agreed with devolution. Now that he is in the Tory Party he just does what his paymasters tell him.

I move amendment 14A.

The Presiding Officer

Try to keep the discussion to the issues at hand, rather than individuals.

Tavish Scott (Liberal Democrat, Shetland Islands)

I sense that there is more politics today than there was last week at stage 2, Presiding Officer.

The continued operation of the UK single market is important to businesses and individuals in Scotland after exit day. New powers are being allocated to the Administrations of the UK: extensive order-making powers are being proposed for ministers in all those Administrations, and in many cases the same powers will be exercised in four different places at the same time.

Every party in this chamber believes that there should be UK frameworks. The Scottish Government is constantly appalled that it has not been consulted properly. My amendment 49 encourages Parliament to make sure that the Scottish ministers lead by example, in that they consider the impact of their proposals on the operation of the UK single market. The amendment puts reference to the importance of that market in the bill.

At stage 2, Adam Tomkins moved amendments to create “protected fields”, in which the UK minister would have the power of veto over Scottish ministerial action. That set up the UK minister as judge, jury and executioner on policy areas that everyone agrees should be part of a UK-wide framework. If the four Administrations are co-operating, I argue that it should not be for one of them acting alone—in this case the UK ministers—to veto proposals.

If Adam Tomkins’s intention is to protect the operation of the UK single market, it is a natural extension to support Neil Findlay’s amendment, which makes it clear that all four Administrations should be given equivalent and reciprocal commitments.

Parliament has had a lot of time for Adam Tomkins and his background and knowledge as a professor of constitutional law, and I certainly have a lot of time for him. However, today, he seeks to insert a section into a bill before the introductory section that sets out the purpose of the bill itself. That strikes me as being pretty close to parliamentary showboating. Mr Tomkins is a serious lawmaker but he should not have moved such an amendment in this area. I will move amendment 49 on that basis.

Neil Findlay (Labour, Lothian)

My apologies—I said that we would not be supporting amendment 49, but we will be.

Bruce Crawford (Scottish National Party, Stirling)

After last week’s 11 hours of Finance and Constitution Committee meetings, I did not intend to speak in the debate. However, having sat down and read more closely Adam Tomkins’s amendment 14, I felt that I had to get my feet and make a few points.

Adam Tomkins knows that I fully respect how he makes an argument and puts across his points, and we have worked closely together on issues around clause 11 of the EU withdrawal bill. However, I believe that amendment 14 is an attempt to put this and any future Scottish Government in a policy box and to restrict its choices. He might not mean to do that, but if we look, in particular, at subsection (3)(a) of amendment 14, we see a very wide power that is open to very wide interpretation. The amendment states:

“For the purposes of this Act, the exercise of any power so as to impede or obstruct the United Kingdom domestic market includes, but is not limited to, the making of any enactment—”

a very wide power to give any future UK Government, which gets worse as it continues:

“that would result in regulatory divergence materially damaging the ability of individuals, corporations or entities based in Scotland to trade, contract”

and so on. That is a very wide power.

Adam Tomkins (Conservative, Glasgow)

I am grateful to Mr Crawford for his kind words.

The bill is called a continuity bill. The opening words of my amendment 14, as Mr Crawford will have noticed, seek to preserve in the United Kingdom, post-Brexit, the operation of the domestic market as it operates now, pre-Brexit, so that there is continuity between the situation now and the situation in the future: no more and no less. There is no greater ambition in amendment 14 than that. That is fully consistent with the purpose—or the alleged purpose—of the continuity bill, which is to provide for continuity. Will Mr Crawford not accept that?

Bruce Crawford (Scottish National Party, Stirling)

I will take Adam Tomkins at his word—because that’s the sort of guy I am. However, although I do not often agree with Neil Findlay—I think that I have never agreed with him before, actually—on this occasion, he is right. This is not just about what has gone before; it is also about what the Scottish Parliament can do in the future.

What if we did not already have in place the minimum pricing legislation and the anti-smoking legislation? What about changes to future income tax rates—which the Tories argue will in some way undermine Scotland’s relationship with the rest of the United Kingdom right now, before we even pass this bill? What about differential support in agriculture, which already exists but probably could not exist in the future if amendment 14 were to be agreed to?

Can we set different business rates that would have a different impact to those in the rest of the UK? Landfill tax might be different—we have chosen not to make it different at this stage, but we may in the future choose to set a different level for Scotland. The current land and buildings transaction tax could be diverged from in the future. The Tories have argued that those policies are damaging to Scotland and damaging to the internal market.

If we leave the European Union—I hope that we do not—there may well be an argument that Scotland should have power over VAT, because it is EU legislation that prevents our having power over VAT. If Scotland decided to have a different VAT rate from that in the rest of the UK, amendment 14 would undermine the Scottish Parliament’s ability to do that.

I understand that Adam Tomkins wants to prevent the undermining of the UK internal market, but the argument is flawed and I believe that his amendment 14—whether inadvertently or deliberately—would undermine the devolution settlement. Adam Tomkins is very good at, and plausible in, putting across his arguments, but in the case of amendment 14—

Neil Findlay (Labour, Lothian)

I wonder what the Tory argument would be if the legislation related to local government. If there was an attempt to restrict it, they would be the first people to say that that was centralisation of power.

Bruce Crawford (Scottish National Party, Stirling)

T

his year, I will have been an elected member for 30 years—I know that I am beginning to look it, one way or another. I have seen a lot of volte-faces from the Tories, especially on local government. The way that they stand up for local government now and the fig leaf that they put on themselves in relation to it is in stark contrast with how they behaved in the past in relation to local government.

Adam Tomkins is always very good at sounding plausible, but on this occasion he has been found out on amendment 14, so I encourage members not to agree to amendment 14.

Patrick Harvie (Green, Glasgow)

There is a phrase—an accusation—that is sometimes levelled at those of us who support the idea of Scottish independence, but which should on this occasion be levelled at Adam Tomkins: he is stoking constitutional grudge and grievance. That is the basis of what he is trying to do with amendment 14.

I cannot support any of the amendments in the group. Of the three, the most reasonable—at least at surface level—is amendment 49, in the name of Tavish Scott, which would require ministers to make

“a statement on their assessment of the impact of the draft instrument on the operation of the single market”.

We need clarity about what terms such as “single market”, “internal market” and “domestic market” really represent, but it might be thought reasonable that such an assessment should be made.

However, the implication of the proposed approach is that it would be the Scottish position—the position that would be proposed by a Scottish Government and endorsed, I presume, by the Scottish Parliament—that would create regulatory divergence. If there is regulatory divergence, it is the result of multiple positions that are not the same, so to blame one position rather than another and to say that divergence is because of a Scottish instrument, rather than a UK instrument that applies elsewhere, is, to me, to make an unrealistic assessment. It is unrealistic to say that a Scottish draft instrument is entirely responsible, or to estimate the proportion of divergence for which the Scottish instrument, as opposed to measures elsewhere, is accountable.

Tavish Scott (Liberal Democrat, Shetland Islands)

Mr Harvie has made an entirely fair point, which is why amendment 49 would involve all the Administrations and Governments of the United Kingdom. That would deal with exactly the point that he has made.

Patrick Harvie (Green, Glasgow)

Amendment 49 merely requires that

“the Scottish Ministers must make a statement on their assessment of the impact of”

their

“draft instrument”.

Tavish Scott (Liberal Democrat, Shetland Islands)

There are other amendments to come.

Patrick Harvie (Green, Glasgow)

I still think that in fulfilling the proposed obligation, the Scottish ministers would find it to be an impossible task to disentangle the proportion of divergence that had resulted from actions that were taken in Scotland.

Fundamentally, though, the argument goes deeper in relation to amendments 14 and 14A—in particular, amendment 14, in the name of Adam Tomkins. I think that we all accept that common frameworks will be necessary in some areas—whether in respect of the current devolution settlement, post-Brexit devolution, if it happens, or if, one day—oh, happy day!—we were to be developing with our neighbours the same relationships as other independent countries have with one another.

Common frameworks will probably still be necessary, but common frameworks must be based on consent, and consent must be active, it must be entirely voluntary and it must be capable of being withdrawn at any time. To pass legislation that would restrict our ability to withdraw consent for a common framework would be entirely at odds with that basic principle. It is a principle that those of us who support independence should be concerned about; it is also a principle that those of us who believe in preserving and strengthening the union should be concerned about, because if there is to be an approach that is aimed at delivering genuine common frameworks, with genuine consent, assent and affirmation on all sides, Adam Tomkins is going the wrong way about it.

Peter Chapman (Conservative, North East Scotland)

I will be brief. I declare an interest, as a farmer, because my example is about farming.

To be honest, I cannot understand why any member of this Parliament could vote against amendment 14, in the name of Adam Tomkins. I also support Tavish Scott’s amendment 49.

The UK single market is vital to our farmers. Let me give one example. We export more than 80 per cent of our beef, and 90 per cent of that goes to England and we receive a premium in that market. Any restrictions on that trade would be disastrous for our farmers.

Farming is just one example. All Scottish trade depends to a large extent on the UK single market, so it is equally important for all our traders that the UK single market be protected. Therefore, I expect wide support for amendment 14.

Johann Lamont (Labour, Glasgow)

I want to make two brief points. I am aware of the briefing that has taken place on amendment 14. Like many other members, I have full respect for Professor Tomkins, but I have to say that I found his contribution to be utterly depressing. It served his party rather than the serious debate that we are having today.

It is not appropriate to suggest that the problem with which we have to wrestle is whether Neil Findlay attended a committee meeting. I say to Professor Tomkins and other members who are considering supporting amendment 14, that the biggest strength of the United Kingdom is that the people of Scotland see their friends across the border as people with whom they wish to work and co-operate, and not as folk from whom they want to be separate. The strength of the United Kingdom is that the people of Scotland see that they are stronger and not weaker in it. We therefore should not see amendment 14 as some kind of litmus test of our commitment to the United Kingdom.

My second point is further to the comments that Neil Findlay made to the minister. I realise that we are dealing with stage 3 amendments, but I would be grateful if the minister could respond to this. It took Parliament two years to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The plan seems to be that, if we can get a deal with the UK Government, we will repeal right away the act that the continuity bill will become. That undermines the integrity of the work that has been done on the continuity bill in the past few weeks.

I seek a commitment from the minister that he is already in discussions with the parliamentary authorities and party leaders about the scenario in which a deal is reached, in order to ensure full scrutiny of that deal and that the committees of the Parliament have the opportunity to have a full and detailed look at how the continuity bill has changed the landscape.

We are no longer where we were at the beginning of the process, when emergency legislation was first mooted. It is a matter of credibility that Parliament should not take weeks and give people huge amounts of work to do to on amendments in producing legislation, only to turn round after a statement from the minister and say, “That’s okay—we’ll repeal the legislation.” I would be grateful if the minister, when summing up on the amendments, would indicate what his plans are in that respect.

Michael Russell (Scottish National Party, Argyll and Bute)

I will address that point immediately. I have addressed it with Neil Findlay, but I am happy to do so with Johann Lamont. I appreciate the work that has been done in scrutinising the proposed legislation, and I will say more about that later. The work of all parties has improved the bill, and that will be clear this afternoon; it is clear from the number of amendments that we have accepted from members of all parties to improve the legislation. Clearly, there would need to be scrutiny in circumstances in which the Government came to the chamber and said that, under the act—there is a provision on that, which has also been changed during the process—we did not wish to proceed with it.

I accept that the bill has changed the landscape, and I hope that it has done so positively. We have pointed to areas in which there need to be change and divergence. An example of that is the protection of environmental principles, on which we have moved forward as a result of the hard work of a number of members, to whom I pay tribute. They include Claudia Beamish, Tavish Scott and Mark Ruskell, who have all been involved in that process.

There have also been changes in relation to protections on employment rights, which Neil Bibby, James Kelly and Neil Findlay have been engaged with. Later, we will consider an amendment relating to health, which Anas Sarwar has engaged with. There have been areas in which we have improved the bill and issues that we have raised. I give the same commitment that I gave to Neil Findlay. We will come back to the Parliament and discuss with the other parties the ways in which we can take those things forward. Neil Findlay agreed to write to me on the issue. I am happy to sit down with him and talk those things through, and we will come back to the chamber with recommendations.

Let me deal with the amendments in the group, which I must say are thought-provoking. However, in the case of Professor Tomkins’s amendment 14, the thoughts that it provokes are not entirely positive. The idea that Mr Findlay and I would unite happily as the bogies in favour of independence is so unlikely as to be the work of fantasy, and I do not often fantasise about Mr Findlay.

Neil Findlay (Labour, Lothian)

There is always a first time.

Michael Russell (Scottish National Party, Argyll and Bute)

Indeed, and I hope that that first time does not arise.

In those circumstances, Professor Tomkins’s argument is ludicrous.

Given that amendment 14 comes from a professor of constitutional law, it is important to say that it is littered with undefined and imprecise concepts. One asks oneself why a professor of constitutional law would come to the chamber with an amendment that cannot possibly operate. Could it possibly be because he wants the amendment to be a blockage to the operation of the bill? I simply ask the question. For example, the meaning of “UK single market”, which appears in the heading but not in the body of the amendment, would be contested. There is a precise meaning for the EU single market, but there is no definition of a UK single market because that is not the right term. There is an internal market, but it is not a single market within the European definition. Do we want the lawfulness of regulations to be dependent on—to take another example—whether a court considers that they would impede “cultural activity and behaviour”? I am sure that not even my distinguished friend the Cabinet Secretary for Culture, Tourism and External Affairs would endeavour to define that phrase in a way that the courts would be happy with.

However, while the language in amendment 14 is imprecise, the intention is precise enough. If this is—as it might be—the manifesto for making Ruth Davidson the First Minister in 2021, it is absolutely clear what the Tories want to do: to make every action of this chamber subject to a decision of the UK Government. If that is their manifesto, I think that the only thing that Ruth Davidson will go on to win will be “The Great British Bake Off”.

Amendment 14 is also unnecessary, since, as Tavish Scott indicated, every party in the chamber—including the Scottish Government—is seeking agreement on frameworks that would support the highly integrated markets that exist across the UK. Mr Harvie is right: even in the case of independence, there would be a requirement and a need to have frameworks operating so that we could move forward in a way that is productive for all of us. That is one of the principles that we agreed with the UK and Welsh Governments when we began discussing those frameworks.

Patrick Harvie (Green, Glasgow)

Will the minister give way?

Michael Russell (Scottish National Party, Argyll and Bute)

Let me just finish making this point.

Regrettably, there is only one Government in these islands that seeks to separate itself from a single market—and it is not this one.

Patrick Harvie (Green, Glasgow)

The minister has alluded to the point that I was about to make. Does he agree that if we were eventually to embark on a course to independence, we would in no way wish to impede the freedom of movement of people throughout these islands in the way that those in the UK Government wish to impede it throughout Europe?

Michael Russell (Scottish National Party, Argyll and Bute)

I entirely agree with that. Freedom of movement is not only productive and helpful; it is essential for a whole range of sectors in Scotland. Impeding it in that way would be very destructive.

I turn to Neil Findlay’s amendment 14A. I think that it is proposed in the right spirit and that it agrees with the issues of equity, which is important. It is very tempting to have the opportunity to vote twice against the Tory amendment: once to support Mr Findlay and once to vote against the whole thing. I see that temptation, but I will not commend amendment 14A to the chamber. The bill is not the place in which to resolve the questions that face these islands about the complexities of governance after Brexit should it take place. The place to resolve such questions is at the negotiating table between Governments, and in putting those agreements to the Parliaments across the UK.

Neil Findlay (Labour, Lothian)

He says that with no hint of irony.

Michael Russell (Scottish National Party, Argyll and Bute)

Last year, the Welsh Government—

I missed that point from Mr Findlay, but I will take an intervention from him.

Neil Findlay (Labour, Lothian)

The minister says that with no hint of irony whatsoever. We want him to get back to the negotiating table and get things sorted out, so he should get there.

Michael Russell (Scottish National Party, Argyll and Bute)

I spend most of my life sitting at negotiating tables—as does Mr Findlay’s friend and colleague Mark Drakeford—and I will be very happy to do so again. I was about to say that, last August, the Welsh Government put forward a set of proposals on adjusting the governance in these islands. It came up with new ideas and I was very enthusiastic that they should be discussed. However, nothing has happened.

This afternoon, in the House of Lords, there will be consideration of the devolution clauses in the withdrawal bill. There is an amendment from Lord Mackay of Clashfern, with whom I have had the great privilege of discussing these issues in recent days. I know that he will say the same in the House of Lords this afternoon. I do not agree entirely with his amendment but he, too, is tackling the issue of how there should be different relationships and whether there should be what we might call a council of ministers for the isles. Even distinguished, thoughtful Tories—real experts in matters of constitutional politics—are looking at how such things should be adjusted.

Therefore I cannot recommend supporting either the amendment from Professor Tomkins or, unfortunately, that from Mr Findlay.

In any event, the bill is about what happens—what will need to happen—if we cannot come to an agreement. I have been clear from the beginning that we will seek its repeal if we come to an agreement that is approved by this chamber. I stress that point: provision in the bill could never bring about that agreement.

I turn to amendment 49, which is in the name of Tavish Scott. How could we be tied in the use of our powers in the bill to the concept of

“the single market in goods and services within the United Kingdom”

if there is no definition of that? In any case, there is already divergence. An example of that is the minimum unit pricing for alcohol.

If we were to apply a definition of the single market as it appears to exist—even though it does not exist in the UK—we would be in breach of that definition in some areas. Indeed, when we come to issues such as environmental protection and employment protection, we would find ourselves in considerable trouble.

I understand what the member is trying to do but, unfortunately, it would not be possible to do what he seeks. I admire how Tavish Scott’s amendments had a greater success rate than almost any other set of amendments at stage 2 but, on this occasion, I cannot accept his amendment.

The bill is about asserting the Parliament’s right to legislate. At the heart of Adam Tomkins’s amendment 14 is the abdication of that right to legislate. We cannot support his amendment now; we would never support it. I recommend that members vote against the amendments in group 1.

The Presiding Officer

I call Adam Tomkins to wind up on amendment 14.

Adam Tomkins (Conservative, Glasgow)

It is important to start with an understanding of why it is important to protect the union post-Brexit, not only for the United Kingdom but for Scotland. Scotland trades more than four times as much with the rest of the UK as it does with the whole of the EU.

The Labour Party sometimes talks about having a jobs-first Brexit. More than four times as many jobs in Scotland’s economy depend on trade with the rest of the United Kingdom as depend on trade with the whole of the European Union. Therefore, it is imperative that, right at the top of the Brexit process, we in Scotland combine to protect Scotland’s rightful place at the heart of the United Kingdom. My amendment seeks to do that—no more and no less.

Of course, amendment 14 is written in general terms. The proposed new section belongs at the beginning of the bill rather than being buried somewhere in the middle of it. Some people have criticised me for putting it too soon in the bill and others have criticised me for not putting it soon enough.

It is a continuity provision in a continuity bill. I noticed that Mr Crawford was completely incapable—or perhaps unwilling—to respond to my rather elementary point that my provision would change nothing, but simply safeguard that which needs to be safeguarded after Brexit. No element of my amendment, if it is read in good faith, would make impossible, unlawful, illegal or difficult a smoking ban or differentiated tax rates between Scotland and the rest of the United Kingdom. However, not all contributors have sought to read it in that light.

Mr Findlay’s contribution was absolutely extraordinary for two reasons. First, he said that he could not support my amendment because it focused on the “Scottish Ministers”. The whole bill focuses on Scottish ministers; that is entirely the problem. The bill, if passed, would empower Scottish ministers—not ministers of the Crown, Welsh ministers or anybody in Northern Ireland—to do any number of huge and extraordinary things post-Brexit, none of which we should be permitting.

Secondly, Mr Findlay said that he wanted to put a time limit on the extent to which the Parliament protects the union. I do not want to put a time limit on that. The union has endured for three centuries and it should endure for three more. I do not want to put a clock on that. It is extraordinary that Mr Findlay, who is representing the Scottish Labour Party, wants to timeline the protection that this Parliament gives to the union.

The Presiding Officer

I call Neil Findlay to wind up, and to press or withdraw amendment 14A.

Neil Findlay (Labour, Lothian)

I have nothing to add; we have made our position clear. Both speeches by Mr Tomkins have shown him up for what he is. Clearly, he takes his orders from the Prime Minister’s office; he has nothing to add.

The Presiding Officer

Okay, Mr Findlay.

Neil Findlay (Labour, Lothian)

The Tories are trying to depict themselves as the champions of devolution. Today, they have been shown up for everything that they are.

I press amendment 14A.

The Presiding Officer

The question is, that amendment 14A be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division. This is the first division of the day, so there will be a five-minute suspension.

15:19 Meeting suspended.

15:24 On resuming—

We move to the division on amendment 14A.

The Presiding Officer

The result of the division is: For 28, Against 100, Abstentions 0.

Amendment 14A disagreed to.

The question is, that amendment 14 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 31, Against 97, Abstentions 0.

Amendment 14 disagreed to.

We move to group 2. Amendment 18, in the name of Donald Cameron,

is the only amendment in the group.

Donald Cameron (Conservative, Highlands and Islands)

Less than a month ago, Presiding Officer, you explicitly and unequivocally stated your view that the bill fell outwith the Parliament’s legislative competence. In the three weeks in which this legislation has been rushed through, we have, at times, lost sight of that hugely significant point.

However, the fact remains that, for the first time in the history of this institution, the Scottish Government has proceeded in defiance of you, the Presiding Officer, and your expressed view that the bill falls outwith the scope of our powers. This is an historic moment. If the bill passes into law, the Parliament will be rubber-stamping legislation in direct contradiction of the very person—in fact, the only person—who is not just asked but compelled to give their view on legislative competence.

That concept, it is said,

lies

“at the heart of the scheme of devolution to which the Act gives effect”—

that is, the Scotland Act 1998—and anything outside competence “is not law”. Here we are, turning that carefully calibrated scheme on its head.

The Presiding Officer gave one reason why the bill falls outwith the Parliament’s competence and, at stage 2, we provided other examples. We highlighted section 33 and schedule 1 as well as section 17(2) as instances of provisions that, in our view, lie outside the Parliament’s legislative competence.

Amendment 18, in my name, attempts to assist the Government. It provides in section 1, which is an overarching provision dealing with the bill’s purpose and effect, a safety mechanism to protect the Government and save it from itself. It ensures that the bill does not provide Scottish ministers with any powers that could be used in a way that would contradict the Scotland Act 1998—specifically section 29 of that act, which makes provision for the Parliament’s legislative competence.

The bill is holed below the waterline in many places as far as legislative competence is concerned. Amendment 18 provides a legal lifeboat for the Government, and I urge the minister to swim for it.

I move amendment 18.

Neil Findlay (Labour, Lothian)

We believe that amendment 18 is unnecessary and, indeed, unworkable, because, as Mr Cameron knows, the Parliament cannot legislate in contravention of the Scotland Act 1998. For that simple reason, we will not support amendment 18.

Michael Russell (Scottish National Party, Argyll and Bute)

The Tory obsession with boats today is rather interesting. We have seen the Tory MP for Aberdeen South throw fish from a boat in the Thames, and now we have Donald Cameron urging me to get into the water and swim towards the Tories. I will resist that blandishment.

Amendment 18 is, regrettably, another amendment from the Scottish Conservatives that is ostensibly directed at making provision on the face of an act of the Scottish Parliament that ministers must act within devolved competence, but it is actually an amendment to tell us to behave ourselves.

We discussed a range of similar amendments at stage 2. The reasons for rejecting the amendment are in line with the reasons that I gave at stage 2, one of which Mr Findlay has indicated. I believe that all those amendments from the Tories were rejected, and I urge members to reject amendment 18.

The issue of the bill’s legislative competence has been given a full airing in the scrutiny process that we have been engaged in. Moreover, the Scotland Act 1998 makes specific provision for the situation that we are in. We are satisfied that the bill is within the competence of the Scottish Parliament for the reasons that the Lord Advocate has set out.

Adam Tomkins (Conservative, Glasgow)

Will the minister take an intervention?

Michael Russell (Scottish National Party, Argyll and Bute)

No. I want to make some progress.

There is no need to put in this bill—or in any other bill—provisions that say that ministers must exercise their powers according to the Scotland Act 1998. We are doing so. There is no question of ministers being able to use the powers in a way that does not accord with the devolution settlement.

Adam Tomkins (Conservative, Glasgow)

Will the minister take an intervention?

Michael Russell (Scottish National Party, Argyll and Bute)

No.

I heard the argument put on several occasions at stage 2, and we do not need it to be put again, as it was resoundingly defeated at stage 2. I believe that only the Conservatives backed it at stage 2, and I presume that that is where we will be on the matter in a moment.

There is a legal constraint on the Scottish ministers whenever they exercise any powers under an act of the Parliament. The Scotland Act 1998 tells us what is and is not within competence, and we would not support littering the statute book with such unnecessary provisions, which are, as I have said, designed only to remind the Government of what the Tories want us to do.

The Presiding Officer

I call Donald Cameron to wind up and to press or withdraw amendment 18.

Donald Cameron (Conservative, Highlands and Islands)

Given the Scottish Government’s cavalier attitude to the concept of legislative competence, the amendment remains completely necessary. The Scottish Government has real and grave problems with the bill’s legislative competence. My amendment would allow the Scottish Government to exercise powers in a way that was within competence and in a manner that was conversant with the devolution settlement. I press amendment 18 and ask for support for it.

The Presiding Officer

The question is, that amendment 18 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 31, Against 97, Abstentions 0.

Amendment 18 disagreed to.

We move to group 3. Amendment 15, in the name of Tavish Scott, is the only amendment in the group.

Tavish Scott (Liberal Democrat, Shetland Islands)

Amendment 15 would toughen up the phrase “may have regard to” in the bill and would provide a more serious test that would give clearer guidance for retained EU law.

The amendment proposes that courts and tribunals must have regard to future European judgments that are relevant to their considerations. The Scottish court would retain the right to assess the significance of such judgments. If the withdrawal agreement between the UK and the EU says that there will be close regulatory alignment between the EU and the UK—as many of us hope there will be—a court or tribunal in Scotland would be encouraged by the provision to pay close attention to the determined meaning of the EU regulation.

The amendment would mean that it would be perfectly acceptable for a court or a tribunal, having been guided to consider EU judgments, to decide that none has significant relevance to the matter before it. My amendment would help courts to understand exactly what is expected of them and would help in the event that the UK had a relatively good withdrawal agreement with the EU on regulatory alignment.

I am grateful to the minister for his suggestions on how I could improve the wording of the amendment that was lodged at stage 2.

I move amendment 15.

James Kelly (Labour, Glasgow)

As Tavish Scott said, amendment 15 relates to group 3, which is on the status of judgments of the European Court of Justice and their impact post-exit day. As he suggested, he seeks to tighten up the provision in question by replacing the word “may” with the word “must”. However, at the same time, he seeks to introduce a relevance test, which would leave it open to the court to decide whether to give consideration to such judgments. Therefore, I do not believe that amendment 15 would have a material impact on the bill as it is currently drafted. That being the case, we are content with the current wording of section 10.

Michael Russell (Scottish National Party, Argyll and Bute)

I welcome amendment 15. Tavish Scott raised the issue that it addresses at stage 2. Although we understood the point, we thought that it was important to tidy up his amendment. His proposed provision would give a clear steer to courts and tribunals on their obligation to have regard to decisions of the Court of Justice when those decisions were relevant. Importantly, it would retain the courts’ discretion in that regard, which is the point that Mr Kelly made, but it would improve the situation, because they would be able to apply the duty in a flexible and proportionate way. For that reason, I recommend that members vote for Mr Scott’s amendment 15.

The Presiding Officer

I invite Tavish Scott to wind up and to press or withdraw amendment 15.

Tavish Scott (Liberal Democrat, Shetland Islands)

I simply press amendment 15.

The Presiding Officer

The question is, that amendment 15 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 74, Against 54, Abstentions 0.

Amendment 15 agreed to.

We turn to group 4. Amendment 19, in the name of Neil Findlay, is grouped with the amendments that are listed in the groupings paper.

Neil Findlay (Labour, Lothian)

My amendments seek to replace the word “appropriate” with the word “necessary” and to remove the phrase “the Scottish Ministers consider”. We believe that the use of “necessary” instead of “appropriate” and the removal of “the Scottish Ministers consider” would result in a more objective process than the one that is provided for in the bill.

We recognise that it will be necessary to adapt retained EU law to enable it to work appropriately in Scotland. That should be the case on or after exit day. In order for that to be done within the timeframe available, we must confer some powers on ministers. However, my amendments seek to ensure that the use of those powers is “necessary” rather than simply “appropriate”.

We can all agree that the process should be above party politics and that it should be as representative as possible. That being the case, it is clear that we must make sure that any deficiencies in the bill are open to reasonable challenge. By replacing “appropriate” with “necessary” and removing any reference to “Where the Scottish Ministers consider”, we can achieve that. It is not sufficient to allow what ministers consider to be appropriate to guide the process; the public deserve and expect what is necessary to be done. My amendments would address a democratic imbalance and make ministers more accountable to Parliament.

We reject amendment 23, as it seeks to reverse a position that was previously agreed to at stage 2.

I move amendment 19.

Michael Russell (Scottish National Party, Argyll and Bute)

This group contains a large number of amendments that are aimed at the regulation-making powers in the bill. Many of the issues that are covered by the amendments and, indeed, the wording of some of the amendments themselves were considered and rejected at stage 2.

Let me start by setting out the considerable changes that have already been made to the bill with the aim of tightening the scope of, and increasing the scrutiny of, those regulation-making powers. I know that those are matters of concern to Parliament. I understand that concern, and the Scottish Government has responded to it.

The Delegated Powers and Law Reform Committee made a specific recommendation about the equivalent powers in the EU withdrawal bill. It recommended that the test should be in two parts: the power should only ever be available where a test of necessity is met, and once that test is met, ministers should be empowered only to make the provision that they consider appropriate. Therefore, “necessary” and “appropriate” sit together. We have included that test of necessity in the continuity bill. It is not in the EU withdrawal bill. Under the continuity bill, Scottish ministers will be able to use the main fixing powers only where it is necessary to do so, with a test of necessity in the bill.

On introduction, the bill already reflected the recommendations of the Parliament’s committee that is dedicated to the scrutiny of statutory instruments. At stage 2, a number of amendments were made to the scope of those powers. The bill contains an exhaustive list of types of deficiency, and those had tests of necessity added to them by Opposition amendments at stage 2. For example, the type of deficiency that is described in section 11(2)(d) now exists only where it is “necessary” to

“make provision ... in connection with”

EU

“arrangements which ... no longer exist”

as a result of Brexit.

Those are both substantial and meaningful additional restrictions on the use of the powers in the continuity bill.

The position in the bill is the product of concessions that have been made by the Scottish Government and amendments that were made by the Finance and Constitution Committee at stage 2. When that committee finished its consideration of the bill in the chamber, late at night last week, I gave a commitment that the Government would return at stage 3 with a proposal to reverse any of the changes only if doing so was required to keep the bill operable—in other words, if the changes would prevent the bill from being able to do its job of preparing our laws for EU withdrawal.

Neil Findlay’s amendments 22 and 29, unfortunately, would do that. They would replace that second test that I described—that of allowing “appropriate” provision to be made once the test of necessity is met—with a further test of necessity. That is not what the Delegated Powers and Law Reform Committee recommended, and it would actually make the powers, in effect, impossible to exercise.

Sometimes, the type of provision that is required to address a deficiency in devolved law will require a choice to be made—for example, about which domestic body will take on a function that is currently exercised by the EU, or about how to adjust a reference to an EU instrument so that it continues to work after withdrawal. Having to make that choice might be necessary, and the bill already requires that, but having to choose the best options from a range of them could never be necessary.

Neil Findlay’s amendments 19 to 21, 26 to 28 and 45 also seek to constrain ministerial discretion in a way that could not work. They remove references to the Scottish ministers considering things to be necessary before the powers can be used, but they beg a question: if not the Scottish ministers, who will exercise these important powers? The tests of necessity and appropriateness and all the other legal tests in the bill will have to be considered to have been met by someone, and that someone will of course be the Scottish ministers. It will be the Scottish ministers’ judgment and discretion that are scrutinised when the regulations come before Parliament for scrutiny, and it will be the Scottish ministers who will be held to account. It could never be otherwise.

I mentioned at stage 2 the Government’s desire to make sure that the right balance is struck. As part of that balancing exercise, I actually commend to the Parliament Jamie Greene’s amendments 31 to 34. They make four further changes to the substance of the power in section 13, changing the word “appropriate” to the word “necessary”. That brings section 13 into line with changes that were made to sections 11 and 12 at stage 2.

Those amendments also address a concern that was raised at stage 2 by Graham Simpson, who suggested use of the word “operable”. We consider that use of the word “necessary” represents a higher test and should address that concern, particularly given the other amendments that the Government has lodged and supported in respect of the keeping-pace power.

As I said, I committed at stage 2 to seek to reverse any amendments that were made at that stage only if, after carefully considering them, I concluded that their effect was to render the bill or part of it inoperable. I have concluded that there is only one such amendment, and I seek the Parliament’s support in adjusting the position back. Amendment 23 proposes to change the word “necessary” back to “appropriate” in section 11(2)(f)(ii), but not in any of the other parts of the test. That is the one area where we believe that the deficiency has to be described by reference to the standard of appropriateness.

The provision is concerned with a deficiency in law that arises where retained EU law does not contain any functions that should be kept after withdrawal. The test was amended at stage 2 so that it referred to a lack of functions

“which it is necessary to retain”.

However, that could not work, because leaving the EU could arguably leave many functions, which we might all wish to retain, unnecessary. There could be functions that we would all be desperate to see kept going but which, being strictly not necessary, had to be disposed of because of the amendment that was made at stage 2. For example, if there was an annual report that had to be submitted to the European Commission on a matter of environmental concern, keeping that function going after withdrawal could never be said to be necessary by the tests in the bill, but it might be appropriate to decide that the function of receiving the annual report should be conferred, instead, on the Scottish Environment Protection Agency. Amendment 23 would allow such changes to be made; without it, we could be bound in law to eliminate functions that we want to keep. Taken with Jamie Greene’s amendments, which we support, it would mean that the same scheme applied across sections 11, 12 and 13.

I stress again that we have not lodged amendments to seek to reverse the new word “necessary” in sections 11(2)(c), 11(2)(d), 11(2)(e) or 11(2)(g), because we accept those changes. If the Parliament votes for my amendment 23 and Jamie Greene’s amendments 31 to 34, the result will be a strong set of logical limits on the ministerial powers in the bill that will be applied consistently across the bill’s provisions and which will have been strengthened at stages 2 and 3.

I invite the Parliament to reject amendment 54, which, in relation to the publication of a statement by ministers, would remove the words

“in such manner as Scottish Ministers consider appropriate”.

That is the same wording that is used in the EU withdrawal bill. I repeat that we do not think that the removal of those words would add anything at all to the bill. The Scottish ministers will be responsible for publishing those statements and, of course, they would have to do so in an appropriate manner.

I urge the Parliament to vote for amendment 23, which I will move, and for amendments 31 to 34, and to vote against the other amendments in the group.

Jamie Greene (Conservative, West Scotland)

My amendments 31 to 34 relate to section 13, which gives Scottish ministers the power to make provision corresponding to EU law after exit day. It has perhaps been one of the most contentious areas of the bill, and we spent many late hours in the chamber debating it at stage 2. As it stands, the bill has sections that would allow the Scottish Government to continue to implement new EU law, directives and regulations after exit day—after the UK has left the EU and after the transition period has ended. It is quite reasonable to assume that we might see a situation whereby Scottish ministers will choose to implement EU laws, without having any representation in the European Parliament, no Scottish MEPs, no representation in the Council of the European Union and no Scottish representation in the European Committee of the Regions.

If the bill is passed today, Scotland would be a rule taker rather than a rule maker and the principle of no legislation without representation would simply disappear. The Scottish ministers want to implement laws when our only influence on them would be through lobbying efforts in Brussels and Strasbourg. That position is simply unacceptable to Conservative members. Section 13, it stands, is nothing more than a back-door attempt to create regulatory divergence and conflict in the UK. A cynic might say that the Scottish National Party wants additional powers to adopt any EU regulations that it sees fit to help Scotland meet the criteria of the acquis communautaire, in what seems to me a desperate attempt to align itself with Brussels. This Parliament should never forget that the SNP wants to rejoin the EU and hand all those powers back to Brussels. My amendments, to replace the word “appropriate” with the word “necessary”, are therefore important.

The power to pass EU law into Scots law after exit day should be used only out of necessity, not when Scottish ministers consider it “appropriate”. What is appropriate to me might be different from what is appropriate to the minister, the Parliament or, indeed, the country. However, there might be circumstances in which it is necessary to transpose EU regulation—for example, to maintain frameworks in which Scotland and the UK continue to participate after exit or when it makes logical sense to do so.

Stewart Stevenson (Scottish National Party, Banffshire and Buchan Coast)

Will the member take an intervention?

Jamie Greene (Conservative, West Scotland)

I am making my closing comments.

My proposal means that Scottish ministers would still have the power to make changes, but must do so out of necessity alone and not for subjective reasons. If the provision is agreed to unamended, the Scottish Parliament will simply be handing ministers a blank cheque.

I say to all members that it does not matter whether they voted remain or leave; what is important is that the bill does not attempt to undermine the result of a UK-wide referendum on the European Union, nor should it be a back-door excuse for the SNP to hand powers back to Brussels.

Tavish Scott (Liberal Democrat, Shetland Islands)

I am a little puzzled by Jamie Greene’s speech because, if I heard the minister correctly, he said that he will accept amendments 31 to 34. I also agree with Jamie Greene’s amendments. They are consistent with the amendments that we debated at stage 2. I appreciate his arguments, so I think that his speech was perhaps out of line with the fact that Parliament will probably agree to his amendments in a couple of minutes.

I also support the minister’s amendment 23, given that the change that was needed at stage 2 by my amendment means that section 11(2)(f)(ii) is protected by a test of reasonableness that is mentioned at the start of section 11(2). I take the minister’s argument on that.

I certainly support Neil Findlay’s amendments. I note the minister’s concerns about them, but much of the Parliament’s concern has been about the need to restrict appropriate ministerial discretion and allow a more objective test to be in the bill. I agree with the argument that Neil Findlay made on that point.

Patrick Harvie (Green, Glasgow)

I am not sure what is more surprising: Jamie Greene’s anger at his amendments being accepted, or the speed with which Conservative members—who, a couple of years ago, said how important it was to protect our place in Europe and that being a member of the European Union was a good thing—have become angry at the fact that some of us still think as they did.

I accepted in general terms the two basic arguments that were put forward at stage 2.

Brian Whittle (Conservative, South Scotland)

Will the member take an intervention?

Patrick Harvie (Green, Glasgow)

No, thank you.

I accepted in general terms the change of language, but I also indicated that, where the Government thought that it was important, for technical reasons, to revisit some of those specific areas, I would be open to that argument. I am pleased that the minister has found it necessary to do that in only one place, and I accept his amendment.

In most instances, I did not accept the arguments that Neil Findlay made when he moved his stage 2 amendments, which were about ministers having the ability to consider something—in other words, that the views of ministers would have a role, and that there would not just be an objective test. I fear that if we had gone down that road, we would have ended up with a number of potential lengthy and significant legal challenges to ministers taking action to introduce instruments and regulations because somebody felt that they had not met an objective test, when that objective test had not been defined in the legislation. If there is to be an objective test, how it is to be met must be clear. I still take the view that it would not have been clear if we had gone down the road suggested by Neil Findlay’s amendments.

The Presiding Officer

I call Neil Findlay to press or withdraw amendment 19.

Neil Findlay (Labour, Lothian)

I press amendment 19.

The Presiding Officer

The question is, that amendment 19 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 59, Against 69, Abstentions 0.

Amendment 19 disagreed to.

Amendment 20 moved—[Neil Findlay].

The question is, that amendment 20 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 59, Against 69, Abstentions 0.

Amendment 20 disagreed to.

Amendment 21 moved—[Neil Findlay].

The question is, that amendment 21 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 59, Against 69, Abstentions 0.

Amendment 21 disagreed to.

Amendment 22 moved—[Neil Findlay].

The question is, that amendment 22 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 58, Against 68, Abstentions 0.

Amendment 22 disagreed to.

Amendment 23 moved—[Michael Russell].

The question is, that amendment 23 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 73, Against 54, Abstentions 0.

Amendment 23 agreed to.

Amendment 24, in the name of the minister, is grouped with the amendments shown in the groupings. If amendment 40 is agreed to, I cannot call amendment 3 in group 6.

Michael Russell (Scottish National Party, Argyll and Bute)

The amendments in this group are technical amendments to tidy up the bill following amendments agreed at stage 2, and to make some minor improvements. The amendments are minor.

Amendments 24, 25, 30, 35, 40 and 42 reflect the intention of amendments agreed by the Finance and Constitution Committee at stage 2 to prevent the main powers in the bill being used to establish new public authorities. Tavish Scott raised the issue at stage 2. Accordingly, the bill is being amended to ensure consistent prohibitions on doing that and to remove unnecessary references to the power.

Amendment 36 takes out the word “broadly” so that section 13 matches the changes that the committee agreed to sections 11 and 12 concerning the modification of rights and protections. If I remember correctly, Mr Dean Lockhart was successful with his amendment on the word “broadly” at stage 2.

Amendments 57 and 64 take up a Law Society of Scotland technical suggestion to use the standard definition of “enactment” in the Interpretation and Legislative Reform (Scotland) Act 2010. I am grateful to the Law Society of Scotland for its interest in this bill. It has commented on each stage and although I have not agreed with all its comments, some of them have been very useful. We are happy to welcome this suggestion.

Amendment 46 is a minor clarification of the consultation requirement in section 15. The requirement to provide reasons for considering it necessary to make provision to prevent, remedy or mitigate a deficiency applies only to a consultation on proposed regulations under section 11(1).

Amendments 55 and 59 correct minor typographical errors in the wording of the two provisions to which they refer.

I recommend that members agree to these amendments.

I move amendment 24.

Neil Bibby (Labour, West Scotland)

As the minister said, these are largely minor technical or correcting amendments. A number of amendments in this group effectively streamline changes made at stage 2. Amendments 57 and 64, in the name of the minister, provide welcome clarity in relation to the definition of an “enactment” for the purpose of the bill. I join the minister in thanking the Law Society of Scotland for its invaluable input and interest in the bill. Given that the amendments are largely minor and technical, my Labour colleagues and I are minded to support all the amendments in the minister’s name.

Tavish Scott (Liberal Democrat, Shetland Islands)

I support amendments 25 and 30, which stop new public authorities from being created under section 11 or section 12. Many of us argued at stage 2 that if ministers want to establish a new quango to keep pace with EU law, they should introduce primary legislation so that Parliament can decide whether such a new body is required or whether its functions could be dealt with by existing bodies. The minister’s amendments extend that to sections 11 and 12. I am grateful to the minister for accepting that argument. Like Neil Bibby, I support the other technical amendments in this group.

The Presiding Officer

The question is, that amendment 24 be agreed to. Are we agreed? We are agreed. [

Interruption

.]

Sorry, I beg your pardon. I did not hear a no. Please shout loudly.

The question is, that amendment 24 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 128, Against 0, Abstentions 0.

Amendment 24 agreed to.

Amendment 25 moved—[Michael Russell]—and agreed to.

Section 12—Complying with international obligations

Amendment 26 moved—[Neil Findlay].

The Presiding Officer

The question is, that amendment 26 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 58, Against 68, Abstentions 0.

Amendment 26 disagreed to.

The question is, that amendment 27 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 58, Against 69, Abstentions 0.

Amendment 27 disagreed to.

Amendment 28 moved—[Neil Findlay].

The question is, that amendment 28 be agreed to. Are we agreed?