Interview: Mike Russell on the uncertainty surrounding Brexit

When Holyrood meets Minister for UK Negotiations on Scotland’s Place in Europe, Michael Russell, there is a palpable sense of tension in the air at St Andrew’s House.

It is the week after the Scottish Government first published the snappily entitled UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill in their ongoing row with the UK Government over post-Brexit powers.

In spite of the snow, on 1 March MSPs agreed an emergency timetable to push through the Scottish Government’s alternative to the EU Withdrawal Bill.

This “continuity bill” was tabled at Holyrood in case no deal is struck with UK ministers over the Westminster legislation and devolved powers. MSPs backed an emergency process by 86 votes to 27 and have spent the past three weeks examining the bill.

After more than a year of Brexit uncertainty, Russell himself appears unfazed by the new developments.

Discussing what is currently happening around Brexit and Scotland, he stresses the ever-changing nature of negotiations and the many meetings, appearances before the Scottish Parliament and discussions he is facing.

He said: “The argument we have been putting forward for the past 18 months or so has progressively been on the issue of membership of the single market. We don’t think leaving is a good idea but the least bad position is staying in the single market and the customs union. The tide has been flowing towards that in the past year.

“We have been positive about what we could do but we’ve seen scenes of chaos from the UK Government.

“This time last year we were still talking about the possibility of us actually seeing the Article 50 letter and now a year on, nothing much has been tied down by the UK.”

With a year to go until the UK leaves the EU, Russell said many would have expected there to be some “clarity” about how it will work.

“May’s attempt on Friday [2 March] to reach that clarity by and large failed because there were some things she was clear about that she wanted to happen but not about what could happen. She indicated the changes she wanted to cherry pick but it isn’t clear that cherry picking will be permitted.

“All in all, the UK Government has had an appalling year and it’s getting worse. The rest of us are trying to be the voice of reason and we have been endeavouring to protect Scotland. Layered over that has been the issue of the UK Withdrawal Bill which hadn’t been published this time last year.

“We were finally shown the bill, which was meant to be available in draft in January 2017, at the beginning of July 2017 and we said we couldn’t accept it. We’ve been locked in negotiation and discussion ever since.

“Meanwhile, businesses don’t have any greater certainty, most of them are implementing emergency fall-back plans and it’s just been the most enormous mess.”

Russell added: “When we started talking about the UK Withdrawal Bill, ourselves and the Welsh Government made a distinction between the technical issues of withdrawal and the principles of withdrawal.

“We don’t want to leave, we think it’s crazy and everything we’ve previously said against it has turned out to be true. However, in regards to the technical issues of how it is going to happen, we have to be prepared for it legally.

“The opening paragraph of our bill reads that the legislation is ‘for ensuring the effective operation of Scots law (so far as within devolved legislative competence) upon and after UK withdrawal’.

“Meanwhile, the UK bill reads that ‘EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day’.

“Essentially, it is a legal necessity and it was announced by the Prime Minister as the Great Repeal Bill at the Tory conference in 2016.

“We’ve said that we will need to have something in place so there isn’t a cliff edge and the best way to do this is to have a bill in place which works for all of us.”

Russell said that while the Scottish Government knew the UK bill was in preparation, there was no sharing of information with civil servants north of the border.

“There was a lot of to-ing and fro-ing last year. We still hadn’t seen the bill and our officials were eventually shown it at the beginning of July and the moment we saw it, we knew we couldn’t accept it.

“The best thing would be to have a single bill which we would have given our consent to, which would then provide, even if you disagree with leaving, which I do, the legal basis. The problem with it is that it is drafted, deliberately or accidentally, and I think deliberately, to take away powers that should come to Scotland.

“During the 2016 referendum, lots of reassurance was given that powers such as those around fishing and agriculture would come to Scotland. However, when we saw the bill, essentially, they’ve tried to take those things away and moreover, they’ve given themselves powers to change our legislation without consulting us.

“We said it can’t be done and the Welsh Government said the same.

 “We’ve made some progress but we haven’t got agreement on the basic issue that those powers are ours and that they may have been largely in Brussels but they relate to devolved competencies.

“If we don’t do it that way, devolution is undermined. For example, agricultural support is presently flexible in how it’s done because it’s a devolved competence within an EU structure. We can do things they don’t do in England, for example, we pay less favoured area (LFA) payments, which are essential in my constituency. LFA payments make all the difference here but they don’t pay them in England because they’re not relevant. We don’t choose to do things just because they’re different but because it’s essential, that’s the basis of devolution.”

Russell believes the UK Government “doesn’t understand much about devolution”, despite it being in existence in Scotland for nearly 20 years.

He added: “So you’ve got a situation where this is going to be a mess, it’s going to undermine the devolved settlement and neither we nor Wales are prepared to accept it.

“That’s the core of the issue, it’s not the items per se, it’s the principle and the practicality of what will happen.

“We have got to the stage where we’re not in agreement and there’s another way of doing it. We don’t want there to be a legislative cliff edge, we’re determined there shouldn’t be.

“Since last summer, the Welsh ministers and ourselves have been discussing how to avoid it and the answer is to do the job ourselves.

“It is more difficult, it requires us to pass primary legislation which is always more difficult. It requires us to put in place arrangements we otherwise wouldn’t put in place but we’ve decided we need to prepare ourselves for that and that’s why both governments have put in place their [continuity] bills.”

Despite this, Russell insists the Scottish Government has not given up trying to negotiate with their UK counterparts.

“We’re still trying to negotiate, we’ve said the better solution would be a legislative consent process for the UK bill.

“However, it’s still possible to dovetail two bills so Scotland would do its bit and the UK would do its bit. That’s the route we’re on now. We don’t have to stay on that route if the UK Government accepts that agreement rather than consultation is what is required. We could do a deal but we can’t do a deal which will undermine devolution.”

Another sticking point is that Presiding Officer Ken Macintosh has said the Scottish Government’s continuity bill is not within the Scottish Parliament’s legislative remit.

He argues that the bill might be competent after Brexit but says that at present, it falls foul of EU law – saying it would see the parliament “make provision now for the exercise of powers which it is possible [it] will acquire in future”.

However, Lord Advocate James Wolffe said the bill was “carefully framed so that it does not do anything or enable anything to be done, while the UK remains a member of the EU”. He added that it is “modelled, in this regard, on the UK Government’s EU Withdrawal Bill”.

The bill can go ahead without the Presiding Officer’s blessing, however there will be a period after it is voted through where it could be open to challenge in the Supreme Court.

In regards to this, Russell said: “We are confident that it’s within the boundaries of devolved competence.

“We respectfully disagree with [Macintosh], we don’t believe he’s right and we’re operating entirely within the law, in fact, we’re operating as the law was intended to operate. We are in a unique situation but one which the framers of the original Scotland Act anticipated might happen and we will cope with that.

“We are still endeavouring to reach an agreement with the UK Government and I’ve made it as clear as I possibly can how an agreement could be reached. There’s a very simple route: they accept the concept of an agreement rather than an imposition and a deal is done. If they don’t accept it, it can’t be done. This is not rocket science.

“I’m fairly long in the political tooth and I’ve never seen a situation which is as confusing or unstable as the Brexit situation.

“It has been run indescribably badly by the Prime Minister, with a warring, fractious Tory party. Her sole aim has been to remain in office, thoroughly discreditably, and everybody has suffered.

“There’s been a complete lack of ability to plan for things. We are very conscious of what we need to do but it’s really unforgivable behaviour and I have a particular distaste for people in the UK Government who know that Brexit is the wrong thing to do, and which will be incredibly damaging, and yet they proceed with it because they are afraid of the right-wingers and the Brexiteers in the Tory party.

“They are caught up in the mood which can only be destructive. It’s up to them if they destroy themselves but I very much object to them endeavouring to destroy Scotland.”