Ten Big Brexit Issues: Questions for the General Election

Kirsty Hughes, the director of the leading Scottish European think tank, the Scottish Centre on European Relations, has set down an excellent set of questions which ought to be considered in the 2017 General Election campaign. I thought it would be good to find out how individual candidates will respond to those questions.

I’ve asked the candidates from the main parties standing in my own constituency, Edinburgh North and Leith for their response to the questions.  The responses I’ve received so far are given below. Thanks to the candidates for taking the time to reply!

Here is Kirsty Hughes’  blog, and her key questions on Brexit:

EU27 and UK Priorities

The Brexit talks will broadly cover three main areas: the UK-EU27 divorce, the new trade and security deal between the UK and EU27, and the transition phase to get from the UK’s exit in March 2019 to a future trade deal possibly several years later. The EU27 have set their three top priorities for the exit talks as: the rights of EU citizens in the UK & UK citizens in the EU; the UK’s budget liabilities on leaving the EU; and Northern Ireland – ensuring a soft border and not undermining the Good Friday Agreement. Only then will they talk trade, they say.

Theresa May has set her priorities for a future trade deal to include: leaving the EU’s single market and customs union, having a UK migration policy (not being part of the EU’s free movement of people) and not coming under the jurisdiction of the European Court of Justice. UKIP’s policies are in line with this too. Labour wants a deal that is as good as the EU’s single market but without being in it, possibly being in the customs union, but no longer accepting free movement of people. The Lib Dems and English/Welsh Greens would prefer a soft Brexit, staying in the EU’s single market and accepting free movement of people. The SNP and Scottish Greens would prefer independence in the EU – or at least a soft Brexit for the UK as a whole or for Scotland on its own while still in the UK (the latter proposal rejected by Theresa May). Given these EU27 and UK political party positions, ten key areas for questions are suggested here.

Ten Key Areas for Brexit Questioning

(1) EU citizens in the UK and UK citizens in the EU

Do you support EU citizens in the UK having the same rights they have now (to residence, pensions, being joined by family members, benefits, European Court of Justice role to ensure their rights are protected etc)? If not, what rights would you give them, and would you expect the EU27 to accept your proposal?

(2) The UK’s Bill

How much do you think the UK’s exit liabilities are? Would you pay them? If not, why not? If the UK budget liabilities to the EU are shown genuinely to be €50-100 billion, would you agree to those being paid? If not, why not?

(3) Borders: Northern Ireland and Scotland

Do you think a ‘soft’ border between the Republic of Ireland and Northern Ireland (with cameras, with customs paperwork to be done somewhere even if not at the border) will be politically and technically feasible or politically damaging or technically infeasible?

If Scotland were an independent country in the EU, would any economic/customs barriers between it and the rest of the UK (for goods and agriculture) be identical to those between the UK and EU27? If not, why not?

(4) Repatriation of EU law: Northern Ireland, Scotland and Wales 

Do you support EU powers on agriculture, fisheries and environment being fully returned to Scotland, Wales and Northern Ireland? If so, how would that work? If not, how would that work?

(5) UK migration policy: costs and benefits 

If the UK has its own separate migration policy, no longer participating in freedom of movement of people across the EU, will the EU27 offer the UK a less good trade deal than otherwise? If so, what will the economic costs of that be? If not, why would the EU offer an equally good deal irrespective of migration policy?

If the UK government, after the election, set soft Brexit as its goal, keeping the UK in the EU’s single market (with free movement of people) and in its customs union, what are the economic and political costs and benefits of this compared to full EU membership and compared to a bespoke UK-EU27 trade deal?

(6) Future UK-EU27 Trade Deal

Do you think a bespoke UK-EU-27 trade deal inevitably means less access to the EU’s single market than the UK has now? If not, why not? If yes, what will the economic costs of that be?

When UK firms export to or operate in the EU post-Brexit, they must meet its regulations. What regulations would you see as most important to change after March 2019 for firms only operating in the UK domestic market? Do you see these as some of the key benefits of Brexit?

How long do you think it would take the UK to renegotiate existing EU trade deals that cover almost sixty countries around the world? How many new trade deals (excluding the renegotiation of ones the UK is in due to its EU membership) do you expect the UK to have successfully negotiated by 2022?

What will the economic benefit of those deals be and how does that compare to any reduction in UK-EU27 trade due to not being a full member of the EU’s single market?

(7) Transition Phase 

Would you support the UK staying in the European Economic Area (i.e. free movement of people, EFTA court) for a transition period from March 2019 until the comprehensive UK-EU27 trade deal is agreed and ratified? If so, for how long?

If not, what are the key elements of a transition deal – and for how long? Should the UK stay in the customs union during the transition phase? If so, when would you want the UK to leave the customs union and start negotiating its own trade deals?

If the UK doesn’t stay in the customs union, do you envisage there being adequate customs space at ports and airports by March 2019. If there would not be adequate space, what transition arrangements would you propose?

(8) Irretrievable Breakdown of Talks 

If the talks break down, and there is no deal, what impact would a ‘WTO cliff’ have on the UK economically and politically? Will there be a major crisis – if so, what could be done to alleviate this? If not, why not?

If the talks break down irretrievably, would you support either staying in the EU after all or trading with the EU on WTO terms? Would you support having a referendum on this? If not, why not?

(9) Letting the Public Vote on or before the Deal 

Do you support a referendum once the exit deal is agreed in late 2018 on accepting the deal or staying in the EU after all? If not, why not?

(10) Brexit Overall

Overall, do you think Brexit will be positive or negative for the UK? In the House of Commons, will you continue to support Brexit or argue for the UK public and government to think again?

 

ANSWERS RECEIVED FROM CANDIDATES

 

MARTIN VEART (Scottish Liberal Democrat)

I am totally against Brexit: the questions themselves highlight the massive problems involved.

 

LORNA SLATER (Scottish Green Party)

1)I believe in free movement and support the right of people to live with their families in wherever in Europe that they want to.

2) This is a matter for negotiation between the EU and the UK

3) If a ‘soft border’ solution can be arranged for Ireland & NI, then a similar arrangement must logically be possible for Scotland & rUK.

4) I support an independent Scotland in the EU.

5) I believe in free movement and support the right of people to live with their families wherever in Europe that they choose to make home.Reply

6) I support an independent Scotland in the EU

7) 8) 9) 10) I support an independent Scotland within the EU

 

 DEIDRE BROCK (Scottish National Party)

 

 (1) EU citizens in the UK and UK citizens in the EU

– Do you support EU citizens in the UK having the same rights they have now (to residence, pensions, being joined by family members, benefits, European Court of Justice role to ensure their rights are protected etc)?

– If not, what rights would you give them, and would you expect the EU27 to accept your proposal?

Answer:  I do support this – and I would support continuing freedom of movement, even after Brexit (unlikely, at best, I acknowledge) because I believe that free movement has enhanced our society and enriched our communities financially and culturally.  The Court of Justice angle might be a little difficult – I can’t see the EU accepting a UK judge on it after Brexit and I can’t see the UK Government accepting its rulings without there being a UK judge on it.

I don’t have any confidence in the negotiating tactics of the Government (nor do I have any confidence in the Ministers’ ability to negotiate well) and I worry about the outcome of the negotiations.  We’re going to have to stay observant throughout the whole process and keep pressuring the Government on this and the other issues in the Brexit mess.  I’m not sure that there is a good deal to be had and I’m even less sure that the UK Ministers are negotiating in good faith but we have to do our best to hold them to account.

 (2) The UK’s Bill

– How much do you think the UK’s exit liabilities are? Would you pay them? If not, why not?

– If the UK budget liabilities to the EU are shown genuinely to be €50-100 billion, would you agree to those being paid? If not, why not?

Answer:  Yes, of course we’d have to pay them.  You can’t walk away from liabilities and still expect to be treated as a trusted partner in the future.  These liabilities will be committed spending on the current round as well as a whole load of other considerations.  There’s a paper taking a decent stab at quantifying them here – http://bruegel.org/2017/03/divorce-settlement-or-leaving-the-club-a-breakdown-of-the-brexit-bill/

The actual total of those liabilities, however, will be a matter for negotiation and, as I said earlier, I don’t have any confidence in the UK Government’s negotiating abilities.

(3) Borders: Northern Ireland and Scotland

– Do you think a ‘soft’ border between the Republic of Ireland and Northern Ireland (with cameras, with customs paperwork to be done somewhere even if not at the border) will be politically and technically feasible or politically damaging or technically infeasible?

– If Scotland were an independent country in the EU, would any economic/customs barriers between it and the rest of the UK (for goods and agriculture) be identical to those between the UK and EU27? If not, why not?

Answer:  I’ve been the SNP leader on Northern Ireland since 2015 and I can tell you that the border issues are a huge concern – the psychological border was as much of a barrier as the physical one during the troubles and there is a huge desire to make sure that it never goes back there.  That desire to maintain openness and the flexibility of the EU in finding solutions to problems should mean that a workable solution is found.  Donald Tusk has already said that avoiding a hard border should be a priority and Michel Barnier has said that a solution can be found.  David Davies has claimed that he wants the same thing but he appears to think that it should be linked to a trade deal so it looks like the UK Government might be the stumbling block.

Once Scotland is independent and rejoins the EU there will be negotiations over the border with rUK as part of the accession process.  The EU doesn’t operate on a dictatorial basis and it will seek to ensure that no Member State was disadvantaged by being a Member State so a solution should be within touching distance to allow more open trade between Scotland and rUK than between the EU and rUK.  It may be, of course, that businesses currently operating in England consider the possibility of moving to Scotland to take advantage of Scotland’s membership just as they will currently be considering whether to move operations to another EU Member State in advance of Brexit.

(4) Repatriation of EU law: Northern Ireland, Scotland and Wales

– Do you support EU powers on agriculture, fisheries and environment being fully returned to Scotland, Wales and Northern Ireland? If so, how would that work? If not, how would that work?

Yes.  There may have to be some framework agreements between the Governments to ensure collective action on things like fishing and on the environment which would mean that the Joint Ministerial Committee would need to gear up a bit.  It should be recognised, though, that the UK will need to come to agreement with the EU on a fishing framework if we want to continue selling fish in that market and on collective efforts on the environment if we want to actually make a difference.  I imagine we’ll end up with agreements similar to those of Norway, Iceland and the Faroe Islands rather than the ones with southern partners.  The CFP won’t be going away after Brexit.

(5) UK migration policy: costs and benefits

– If the UK has its own separate migration policy, no longer participating in freedom of movement of people across the EU, will the EU27 offer the UK a less good trade deal than otherwise? If so, what will the economic costs of that be? If not, why would the EU offer an equally good deal irrespective of migration policy?

– If the UK government, after the election, set soft Brexit as its goal, keeping the UK in the EU’s single market (with free movement of people) and in its customs union, what are the economic and political costs and benefits of this compared to full EU membership and compared to a bespoke UK-EU27 trade deal?

Answer:  The economic costs of losing the migration are going to be heavy enough before we even get round to looking at what damage could come in a trade deal; we’re already seeing academics looking at moving to other EU Member States, we’ll lose a pool of skilled workers, budding entrepreneurs and young, energetic folk.  If we don’t keep free movement we’ll see our population age and if we don’t have mutual guarantees for EU citizens already and UK citizens already abroad we’ll be swapping the current cohort of young people who contribute to our economy for a load of folk who retired to warmer climes.

I’m not sure whether the UK’s xenophobic immigration stance will impact greatly on the trade deal; I suspect that other Member States are despairing of getting grown-up contributions from the UK and look askance at each development from Whitehall.  The EU will be negotiating in the best interests of its remaining Member States and that will be the deciding factor so the UK’s immigration policies will only matter if it’s considered that it impacts upon the interests of those remaining Member States.

I would be delighted – wreathed in smiles, in fact – if the UK Government saw sense and sought to keep us in the single market but I can’t see it happening; they seem fixated on wiping the last traces of the EU off of their heels as they leave.

(6) Future UK-EU27 Trade Deal

– Do you think a bespoke UK-EU-27 trade deal inevitably means less access to the EU’s single market than the UK has now? If not, why not? If yes, what will the economic costs of that be?

– When UK firms export to or operate in the EU post-Brexit, they must meet its regulations. What regulations would you see as most important to change after March 2019 for firms only operating in the UK domestic market? Do you see these as some of the key benefits of Brexit?

– How long do you think it would take the UK to renegotiate existing EU trade deals that cover almost sixty countries around the world?

– How many new trade deals (excluding the renegotiation of ones the UK is in due to its EU membership) do you expect the UK to have successfully negotiated by 2022? What will the economic benefit of those deals be and how does that compare to any reduction in UK-EU27 trade due to not being a full member of the EU’s single market?

Answer:  We’re absolutely certain to have less access as a result of Brexit – you can tell that by the fact that EU leaders are saying we’ll have less access and how they’re insistent that a non-Member can’t have membership benefits that are as good as Members have.  There is also the repeated statements from UK Government Ministers that indicate they don’t want to keep single market access – Brexit means Brexit and the removal of noses to spite faces, apparently.  I don’t think it’s yet possible to quantify the economic damage that leaving the single market will cause – although economists will be giving it a go.

There are no regulations that I think particularly hamper businesses operating in the domestic market but I do have a fear that UK Ministers will seek to make political capital by saying they are ‘cutting red tape’ and employment and environmental protections will be threatened.

Given the timescales of trade deals in the past and the possibility that the other parties to the trade deals may be looking at the UK as a wounded competitor and so looking for advantages, I think it will possibly be decades before we have deals to match existing EU deals.  That could be speeded up if the UK Government was prepared to approach potential partners with a deal replicating the EU deal but I doubt very much whether they would do that.

I don’t expect any trade deals to be successfully negotiated by 2022.

(7) Transition Phase

– Would you support the UK staying in the European Economic Area (i.e. free movement of people, EFTA court) for a transition period from March 2019 until the comprehensive UK-EU27 trade deal is agreed and ratified? If so, for how long? If not, what are the key elements of a transition deal – and for how long?

– Should the UK stay in the customs union during the transition phase? If so, when would you want the UK to leave the customs union and start negotiating its own trade deals?

– If the UK doesn’t stay in the customs union, do you envisage there being adequate customs space at ports and airports by March 2019. If there would not be adequate space, what transition arrangements would you propose?

Answer:  I support Scotland being independent in the EU rather than the mess that’s coming our way just now.  I’d support EFTA membership as a backstop to that but I’m not sure just how welcome the UK would be in EFTA – I could see the application being rejected.

I’d support remaining in the customs union for as long as possible (preferably by not leaving the EU) but I think the reality is that we’ll be heaved out of the customs union at the earliest possible opportunity by Ministers determined to make their mark.  I think it’s also more than possible that UK Ministers will walk out of the negotiations before they are concluded to try to seem strong.  The idea of this lot trying to negotiate trade deals fills me with horror.

(8) Irretrievable Breakdown of Talks

– If the talks break down, and there is no deal, what impact would a ‘WTO cliff’ have on the UK economically and politically? Will there be a major crisis – if so, what could be done to alleviate this? If not, why not?

– If the talks break down irretrievably, would you support either staying in the EU after all or trading with the EU on WTO terms? Would you support having a referendum on this? If not, why not?Answer:  If the talks break down – something not beyond the bounds of probability – it will leave the UK looking politically foolish at the very least.  If, as seems possible, they break down because the UK walks away from the table the UK will seem politically untrustworthy as well.  There is a major crisis already – it’s not a question of whether there will be, it’s here now.  Mitigating the impact of that crisis would require UK Ministers to consider compromise and perhaps admit that the approach so far has been ill-considered so I cannot see that happening.  Scotland, of course, has the option of leaving the UK and looking at rejoining the single market.

 

I already support staying in the EU and will continue to support staying in the EU whatever happens.  I support Scotland being an independent Member State of the EU and will work towards that.  A referendum is always, I think, the way to allow people to decide their future.

 

(9) Letting the Public Vote on or before the Deal

– Do you support a referendum once the exit deal is agreed in late 2018 on accepting the deal or staying in the EU after all? If not, why not?

Answer:  I support a referendum in Scotland on whether we accept the direction of the UK or make our own decisions.  We should have a referendum on whether Scotland stands with the UK in splendid isolation or takes a place in the EU as an independent nation to cooperate with our European neighbours.

(10) Brexit Overall

– Overall, do you think Brexit will be positive or negative for the UK? In the House of Commons, will you continue to support Brexit or argue for the UK public and government to think again?

Answer:  It’s a huge, seething negative.  I have never supported Brexit and I’ll continue to argue for Scotland to continue membership of the EU.

 

IAIN McGILL (Scottish Conservative & Unionist)

1. The next Conservative Government will secure the entitlements of EU nationals in the UK as well as UK nationals in the EU.

2. We will make a fair settlement of the country’s rights and obligations in the spirit of the UK’s continuing partnership with EU member states. We will observe our legal obligations, but we expect obligations to us to be observed too and this is a matter for negotiation.

3. We will maintain the Common Travel Area and maintain as frictionless a border as possible for people, goods and services between Northern Ireland and the Republic of Ireland. The hardening of the border between a hypothetical Scotland and the rest of the UK would depend on a broad range of factors, but any of the possible options are worse than the current fully integrated domestic market of the UK. 4. We have been very clear that the Scottish Parliament will not lose any of its existing powers and the devolution settlement will not be undermined. In fact, we envisage that the powers of the devolved administrations will increase as we leave the EU. Our approach to the repatriated powers will be practical, not ideological. We will work with industry stakeholders, the Scottish Government and the other devolved administrations to devise a framework around the repatriated powers which primarily does not put up new barriers in our own Union – Scotland’s most important market.worse than the current fully integrated domestic market of the UK. 4. We have been very clear that the Scottish Parliament will not lose any of its existing powers and the devolution settlement will not be undermined. In fact, we envisage that the powers of the devolved administrations will increase as we leave the EU. Our approach to the repatriated powers will be practical, not ideological. We will work with industry stakeholders, the Scottish Government and the other devolved administrations to devise a framework around the repatriated powers which primarily does not put up new barriers in our own Union – Scotland’s most important market.worse than the current fully integrated domestic market of the UK.

4. We have been very clear that the Scottish Parliament will not lose any of its existing powers and the devolution settlement will not be undermined. In fact, we envisage that the powers of the devolved administrations will increase as we leave the EU. Our approach to the repatriated powers will be practical, not ideological. We will work with industry stakeholders, the Scottish Government and the other devolved administrations to devise a framework around the repatriated powers which primarily does not put up new barriers in our own Union – Scotland’s most important market.

5. Britain is an open economy and a welcoming society and we will always ensure that our British businesses can recruit the brightest and best from around the world. We also believe that immigration should be controlled and reduced, because when immigration is too fast and too high, it is difficult to build a cohesive society. We should make the immigration system work for sectors where there are skills shortages, whilst developing the skills we need for the fut5. Britain is an open economy and a welcoming society and we will always ensure that our British businesses can recruit the brightest and best from around the world. We also believe that immigration should be controlled and reduced, because when immigration is too fast and too high, it is difficult to build a cohesive society. We should make the immigration system work for sectors where there are skills shortages, whilst developing the skills we need for the future.

 

6. I want the best possible trade agreement between the UK and EU. The Prime Minister will be not be pursuing a deal that retains membership of the single market but will instead seek to achieve a bold and ambitious new free trade agreement. This agreement will be mutually beneficial to both parties.

7. An implementation period in which Britain, EU member states and EU institutions prepare for the new arrangements that will exist between us will be in our mutual self-interest. This might be about immigration controls, customs systems or criminal justice. For each issue, the time to phase in new arrangements may be different but I can assure you that there will not be an unlimited transition.

 

8. I do not believe the talks will break down as it is in our mutual interests to find an agreement.

9. The people have voted in a free and fair referendum. I do not think there should be another one, nor do I detect an appetite for one.

 

10. I believe there will inevitably be challenges, but I also see great opportunities for Scotland and the UK as a whole. I will work towards the best possible future outside of the European Union.

 

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What happens with the ‘progressive alliance’ now?

So, it looks as if there won’t be a ‘progressive alliance’, at least involving Labour or the LibDems, for the 2017 General Election. I’m not surprised, although I thought Jeremy Corbyn might at least have kept the door slightly ajar – given his past willingness to work together on various issues with groups across the political spectrum.

 

Of course, it might be that in some cases there will be local deals between parties, through minimising campaigning in ‘hopeless’ seats, and giving supporters a ‘nod and a wink’ that it would be OK to vote for another party in that area. To my mind, that kind of approach is a lot less honest than coming to an open and principled agreement to co-operate in (say) a number of key seats, but that’s almost certainly going to be the reality.

 

But if the parties aren’t going to co-operate, it is clear that many voters will. And they will receive all sorts of encouragement to do so. Labour figures from the Corbynites (e.g. Paul Mason) to the Blairites (e.g. Tony Blair himself, see here) have called for action across parties. The left wing think tank Compass has launched a crowd funding appeal for a Progressive alliance, here: Gina Miller, whose legal challenge to the government on its attempt to trigger Article 50 without Parliamentary approval did more to hold it to account than months of parliamentary activity has launched another initiative to campaign against ‘hard Brexit’.

 

Millions of people across the country want to stop the re-election of Tory government, committed not just to Brexit, but also a whole package of right wing and illiberal policies. They know that that with a divided opposition, with our unfair and flawed electoral system, Theresa May could end up with a big majority, even with minority support in the country. There may not be any formal progressive alliance between parties for the 2017 election, but we are likely to see a loose and informal movement of progressive voices and groups working together against ‘hard Brexit’ and the right-wing revolution. And I suspect that movement will continue beyond that election, whatever its outcome.

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Would EU citizens be able to vote in a second Scottish independence referendum?

As the prospect of a second referendum on Scottish independence has now come back on the agenda, I thought it would be useful to look at the question of whether EU citizens resident in Scotland would be able to vote in such a referendum. Given that the future relationship between Scotland and the EU is likely to be a key issue in such a referendum, the significance of the votes of such citizens may well be substantial. In the last referendum on Scottish independence, in 2014, EU citizens in Scotland were able to vote – would they be able to vote in a future second independence referendum, particularly if it was held at a time after the UK had left the European Union?

The answer, as with so much else relating to Brexit, is that we don’t know. The 1998 Scotland Act, which is the constitutional foundation for Scottish devolution, states that various aspects of some elections, including who is entitled to vote, are matters over which the power to legislate is reserved to the UK Parliament. The extent of that reservation will reduce once the 2016 Scotland Act is fully in force.

However, the Scotland Act 1998 does not include the franchise for referendums in the list of reserved matters, so in principle the Scottish Parliament can decide who can vote in referendums which it decides to legislate for. The question is whether the Scottish Parliament has the legal powers under the Scotland Acts to hold a referendum on independence at all. Legal opinion is mixed on that question, but the view held by most constitutional lawyers is that it probably does not have that power. There is a good explanation of the position in this article by Professor Stephen Tierney, here. Certainly, the question is sufficiently open to have prompted the Scottish Government to seek the agreement of the UK government to hold a referendum on Scottish independence in 2014, and to seek that agreement for a second independence referendum if that is held.

The question of whether EU citizens would be able to vote in a future independence referendum would therefore depend on the nature of any agreement reached between the Scottish and UK governments as to who would be able to vote in such a referendum. If the UK government did not make any specification as to who could vote in that referendum, the Scottish Parliament could make the decision to include whosoever it wished in the franchise for that vote.

That franchise could include EU citizens; indeed, in principle, there is no reason why it could not extend the franchise to the citizens of any foreign country currently resident in Scotland (or indeed, for former residents of Scotland now living outside Scotland).

Moreover, there is nothing in the legislation preventing the Scottish Parliament from including EU citizens in the franchise for a future independence referendum, even if the UK (including Scotland) had by that time departed the European Union. It should be noted that in the 2014 referendum, the franchise also included Irish and Commonwealth citizens legally resident in Scotland, as these citizens are included on the register for all elections in the UK (unlike EU citizens, who cannot vote in elections for the UK Parliament), even though there are no international treaties compelling the UK to grant the vote to such residents.

The issue, therefore, is whether the UK government was prepared to leave the question of the franchise for a future referendum to the Scottish government and Parliament to decide, or whether it would seek to limit the right of EU citizens to vote in such a referendum, whether it was held before or after the date of a final ‘Brexit’. That matter would no doubt be a subject for negotiation between the UK and Scottish governments.

For an explanation of the position regarding EU citizens’ right to vote in UK elections (including Scotland), see my blog here.

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Cuts have been bad for Scottish education, but Curriculum for Excellence is at the root of the problem

I’m glad to see that there is at last a serious discussion taking place about the lack in educational attainment in many Scottish schools. Part of the problem has come lack of finance, which from my own knowledge has led to shortages of teachers in key subjects and other cuts, as well as demoralisation amongst many teachers. And the SNP Scottish Government must take the responsibility for that – it has, after all, been in government for 10 years, and it has made the budget and taxation choices which has resulted in education not getting the finance it ought.

But if we are going to tackle the lack of attainment, we must recognise that lack of cash is not the only problem, and probably not the fundamental problem. I have said for some time that the Curriculum for Excellence has not just been badly implemented, but also that it is flawed in its essence. I agree with the analysis by Professor Lindsay Paterson, Professor of Education Policy at Edinburgh University, which can be seen in this short clip (which I strongly recommend you read – it’s less than 2 minutes long): http://www.bbc.co.uk/news/uk-scotland-39172769

Note two of his comments: “the evidence is that the Curriculum for Excellence is at the core of problem with educational attainment” ; “the whole point of the Curriculum for Excellence is misconceived”. These are conclusions he says he has reached from the evidence.

Note also that his damning comment that “the things we have been trying to teach Scottish children for at least the last 15 years have been causing them to learn less than their counterparts in other countries”.

15 years, of course, includes both SNP and Labour/LibDem governments, and perhaps that is why although leading figures in all these parties are prepared to say there have been problems in ‘implementation’ of the Curriculum for Excellence, or have, rightly, pointed out how lack of finance has contributed to those problems, there appears to be some reluctance to accept that there are more fundamental problems with the Curriculum for Excellence. No doubt that is why the Conservatives, having been out of Scottish government, have been more ready to accept that the policy is misconceived in essence.

In my view, all the Scottish political parties should now accept that the Curriculum for Excellence does have fundamental flaws, and an urgent review is needed, with action to follow. Every year that is delayed, our schools education system is likely to fall behind our counterparts. That need for review and action is what should be the priority for the Scottish Government, not possible further reorganisations of the structure of education.

If the Scottish Government and Parliament do not do that, they will fail current and future generations of Scottish school students; and a country which falls behind in educational attainment is likely to fall behind in economic performance as well.

 

 

 

 

 

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The right of EU citizens in the UK to vote after ‘Brexit’

EU citizens in the UK are rightly concerned about many aspects of the future in the UK – their right to remain, their jobs, and much else. I can well imagine that for many people in that situation, the question of their continued ability to participate in certain UK elections might not be high up on their agenda.

Nevertheless, I would suggest it is an important question to consider. That is because a person’s ability to take part in the local democratic process is an essential feature of full participation in the community. If that right currently enjoyed by many EU citizens in the UK were to be removed, it would be another indicator that the UK wishes to drive EU citizens out of the heart of society – and eventually the UK altogether.

The current ability of EU citizens in the UK to vote in certain elections is governed by the rights they are given by Article 22 of the Treaty on the Functioning of the European Union (TFEU).

The relevant part of that article is in the following terms:

1.Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. (This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.)

In the UK, that requirement of EU law has been put into effect in domestic UK law by section 4 of the Representation of the People Act 1983. The relevant subsection is in the following terms:

  1. 4 (3). A person is entitled to be registered in the register of local government electors for any electoral area if on the relevant date he–

(c) is a qualifying Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the Union.

That Act further states that the term “citizen of the Union” shall be construed in accordance with the relevant European Treaty. There is therefore no doubt that the term means an EU citizen.

Because of these legal provisions, EU citizens in the UK can vote in local elections anywhere in the UK. That includes a right to vote in mayoral elections like that in London.

Their righting votes extend further than that, however. The Scotland Act 1998, which established the Scottish Parliament, specified (section 11) that persons entitled to vote in elections to the Scottish Parliament are those entitled to vote and be registered in the register of local government electors. As the Representation of the People Act 1983 allows EU citizens in the UK to register to vote in local government elections in Scotland, they then automatically obtain a right to vote in elections to the Scottish Parliament. Similar provisions allow EU citizens to vote for the Northern Ireland and Welsh Assemblies.

(EU citizens can also vote for elections for Members of the European Parliament elected in a member state in which they currently reside. That right will, of course, become redundant in the UK after ‘Brexit’, if the UK succeeds in its aim of removing the UK from the EU by March 2019, which is before the date of the next European elections).

So, what happens after Brexit to those voting rights for EU citizens in local and devolved elections? The answer is nothing will change automatically, unless those rights are changed by the UK Parliament. That is because those rights, although originating from rights under the EU treaties, have now been made part of the UK’s own domestic law.

Are those voting rights under threat? Has anyone suggested those rights should be taken away? Is there a danger that if the question is raised, the matter is put on the political agenda when it might not have been otherwise?

Possibly, but it seems to me that in an atmosphere where some seem to want to push us in the UK away from the EU and its citizens, it would be unwise to assume that someone won’t raise this question. Perhaps we might find such a measure slipped quietly through in some statutory instrument made possible by the UK government’s proposed ‘Great Repeal Act’.

And there are already some people who have started raising questions about the future rights of EU citizens to vote. That question has been raised in the context of a possible second referendum on an independent in Scotland. EU citizens were able to vote in the 2014 independence referendum, but some voices on the pro-Union side in the revived debate about Scottish independence following the ‘Brexit’ referendum have suggested that EU citizens should not be allowed to vote in a second independence referendum.

So, it seems only sensible to become alert to the possibility that the current voting rights of EU citizens in the UK might be taken away if and when ‘Brexit’ finally takes place.

There is a further point which needs to be made concerning the voting rights of EU citizens residing in Scotland specifically. That relates to the provision (section 3) of the Scotland Act 2016 which devolves the power to decide on the franchise for local government elections in Scotland, and for the Scottish Parliament itself. When that is in force, it will be up to the Scottish Parliament to decide whether or not EU citizens are able to register and vote in those elections.

However, that particular provision in the Scotland Act 2016 has not yet been brought into force. Therefore, if the UK Parliament was to legislate to remove EU citizens’ rights before that section was put into effect, the Scottish Parliament would thereafter only be able to legislate to restore them after those powers over the franchise had been devolved to it. Moreover, because the Scotland Act 2016 provides that the matter of the franchise for the Scottish Parliament is one of those which requires a two-thirds majority for legislation to be approved (section 11), those rights could then only be restored if at least two-thirds of MSPs voted for that.

On the other hand, if that power over the franchise were to be devolved to Scotland before any voting rights were taken away from EU citizens in the UK, any attempt to take them away in Scotland would then require legislation in Scottish Parliament, with a two-thirds majority backing that removal.

So, depending on the progress of implementation of legislation, two Parliaments and two governments may have a role in legislating in this area. Those who are concerned on the issue would therefore be well advised to ask both the UK and Scottish governments to make clear their intentions on the issue.

Of course, some may ask whether it is right that EU citizens should maintain these voting rights after Brexit. It might be argued that if the UK leaves the EU, then there would be no basis for EU citizens to enjoy the rights to vote, given they derive from rights given under a Treaty of which the UK would no longer be a signatory.

That argument might have some validity if it were not for the fact that the UK also allows voting rights to citizens of Irish Republic, and all Commonwealth citizens legally resident in the UK. (For that reason, EU citizens from Ireland, but also Malta & Cyprus, will retain voting rights in the UK, whatever happens with voting rights for EU citizens more generally). And that right to vote enjoyed by Irish and Commonwealth citizens does not apply just for local elections, and devolved legislatures, but also to elections for the UK Parliament.

That right given to Irish and Commonwealth citizens is, of course, a relic from the days of Empire. But I welcome the fact that right exists, as it has allowed hundreds of thousands – maybe more -, of those citizens to play a full part in the civic life of the UK. It has probably been a factor in the UK having more ethnic minority elected representatives, from an earlier date, that most, probably all, other European countries.

But if we are going to allow Commonwealth nationals across the world a right to vote in UK elections, as a result of the UK’s imperial past, then surely we should make sure that EU citizens in the UK, from our nearest neighbours, at least keep their existing voting rights in the UK. Indeed, maybe they should be given the same rights as those Commonwealth citizens to participate and stand in all elections in the UK.

A declaration by our political leaders that EU citizens in the UK will retain their rights to vote even after the UK leaves the EU will be a message to those citizens that, at a time when they feel insecure about their future in the UK, they are wanted here and that the UK wishes them to play a full part in the civic life of our country.

 

(This is the text of a speech delivered at a meeting of the All Party Parliamentary Group on Freedom of Movement, in the House of Commons on 20th February 2017).

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Will Scotland get more powers after Brexit?

Many people have assumed that one side effect of Brexit will be that the powers currently devolved to the Scottish Parliament and Government will be enhanced.

That is because many, perhaps even most, of the powers which are currently exercised by the European Union cover areas of governmental activity which are not specifically ‘reserved’ to Westminster by the founding legislation of Scottish devolution, the Scotland Act 1998, in its current form.

At the moment, the Scottish Parliament cannot legislate in a way which is incompatible with EU law. After Brexit, therefore, on the reasonable assumption that the Scotland Act 1998 will be amended so as to remove that requirement for compatibility with EU law, it has been suggested that those powers currently exercised by the EU, and which are not reserved to Westminster, will then be exercised by the Scottish Parliament and Scottish Government.

This would indeed mean a major enhancement of devolved powers, if that were to happen. Indeed, that potential for a devolution ‘windfall’ as a result of Brexit was held out by some ‘Leave’ campaigners in Scotland as another argument in support of their case, one which would be particularly attractive to nationalists and enthusiasts for ‘devo-max’.

That conclusion is only valid, however, if nothing is done to prevent those current EU powers in non-reserved areas from devolving by default to Scotland. I do not believe that it can be assumed that will be the case.

If the UK Parliament, as part of the UK government’s ‘Great Repeal Bill’ measure decides it wishes to amend the Scotland Act to specify that all, or some, of the powers returned from the EU will be reserved to Westminster, it has the power to do that. The UK government might regard such a step as a transitional measure to put in place whilst it undertakes the massive task of gradually deciding which EU law to keep in domestic UK legislation.

It could take the view that, as there was no serious suggestion at the time of the establishment of the Scottish Parliament that the UK would ever leave the EU, a more fundamental reassessment would need to be taken of the balance of powers between Westminster and the devolved administrations, if the EU is no longer part of the picture.

After all, given that the devolution settlement of 1998 would have been unable to transfer existing EU powers (as it would have been against EU law to do so) to the Scottish Parliament and the other devolved assemblies, it might be argued that it was in no one’s mind in 1997 that these bodies would ever exercise the powers which had been transferred to the European Communities almost a quarter century earlier in 1973.

Will the current UK government decide to ‘re-reserve’ to the Westminster Parliament powers in all or some of the areas where the EU currently has the power to make laws – or will it allow all these powers to move seamlessly to the devolved legislatures?

We don’t have a clear idea yet, as with much of the detail of the path which the UK will travel towards Brexit. But the UK government’s recently published Brexit White Paper certainly suggests that complete onward devolution to the devolved legislatures and governments of EU competences is not at all what it has in mind. Para 3.4 of that White Paper says:

3.4 This has meant that, even in areas where the devolved legislatures and administrations currently have some competence, such as agriculture, environment and some transport issues, most rules are set through common EU legal and regulatory frameworks, devised and agreed in Brussels. When the UK leaves the EU, these rules will be set here in the UK by democratically elected representatives.

But, note, what is said is that these rules will be set ‘here in the UK’ by ‘democratically elected representatives’. Those could of course be MSPs, or their counterparts in Wales and Northern Ireland – but that could equally well mean MPs at Westminster. And the next paragraph goes on to say:

3.5 As the powers to make these rules are repatriated to the UK from the EU, we have an opportunity to determine the level best placed to make new laws and policies on these issues, ensuring power sits closer to the people of the UK than ever before. We have already committed that no decisions currently taken by the devolved administrations will be removed from them and we will use the opportunity of bringing decision making back to the UK to ensure that more decisions are devolved.

The wording is significant. The UK will ‘have an opportunity to determine the level best placed to make new laws and policies’. That could clearly be the UK Parliament, rather than the devolved administrations. Furthermore, the commitment is only that ‘no decisions currently [my emphasis] taken by the devolved administrations will be removed from them’. All that is said for the future is that ‘we will use the opportunity…to ensure that more decisions are devolved’.

These paragraphs certainly don’t suggest a firm and unqualified intention to give Scotland all the powers currently exercised by the EU in areas which are currently not reserved to the UK under the 1998 Scotland Act. It sounds much more like a hint the UK government at the very least wants to consider the implications carefully before transferring those powers on to Scotland when they return to the UK from the EU.

First published at European Futures and Sceptical Scot, 17 February 2017

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How the Scottish Parliament can stop environmentally damaging APD cuts

 

A committee of the Scottish Parliament is currently looking at proposals for an “Air Departure Tax Bill” to replace Air Passenger Duty (APD) when this is devolved next year. Like many people, I’m concerned at the Scottish Government’s plans to cut and eventually abolish that charge. I’ve therefore sent a submission to the committee asking them to propose amendments to the Bill which would prevent any Scottish Government introducing changes to APD which would be environmentally damaging.

My submission is below. You can send your own views and evidence to the Scottish Parliament committee by email to: Finance.Constitution@parliament.scot.

But hurry – the consultation period closes on 10th February 2017!

 

“Submission to the Scottish Parliament Finance & Constitution committee:proposals for Air Departure Tax Bill

 The proposed Air Departure Tax will give the Scottish Government the powers, subject to approval by the Parliament, to charge a tax to replace the current Air Passenger Duty (APD) levied across the UK.

I am concerned that the Scottish Government, in line with the policy of the SNP, is currently proposing to reduce the level of tax paid under the APD regime. A proposal for certain reductions in air passenger tax has also been made by the Scottish Conservative & Unionist Party.

I believe that these proposals must inevitably lead to damaging environmental consequences, and reduction in government revenue, at a time when public services in Scotland are under pressure. The only way in which they would not have an effect on government revenue would be if the number of flights leaving from Scotland increased substantially, but that in itself would mean even greater effects on the environment.

I therefore urge the committee to recommend changes in the draft Air Departure Tax bill to make sure that the effect of any changes in the air passenger regime introduced by the Scottish Government would not have negative environmental consequences overall.

I have drafted a possible amendment to the Bill which seeks to achieve that objective. It is set out below. I should emphasise that I am not a parliamentary draftsman, and I am sure that the terms of my proposed amendment could be improved by those with expertise in that field. I believe, however, that it sets out important principles which should be incorporated in the Bill.

My proposal would allow the Scottish Government to vary the existing rates and bands of air passenger tax if it wished. It could, for example, reduce tax on international flights, but increase tax on domestic flights for which other methods of transport are easily available.

Proposed amendment to the Air Departure Tax (Scotland) Bill

In Section 10 of the Air Departure Tax (Scotland) Bill (Tax bands and rate amounts to be set by regulations) after sub-section (1) insert:

(2) Before making regulations under this section, the Scottish Ministers shall ensure that they undertake an environmental assessment of the impact of the regulations which they propose to make. Any such assessment shall include consideration of whether the making of such regulations would be likely to result in (i) a net increase of emissions contributing to global climate change, or (ii) a deterioration of air quality in the immediate vicinity of airports in Scotland.

(3) The Scottish Ministers shall have regard to any environmental assessment which is produced under sub-section (2) of this section in making any regulations under this section.

(4) The Scottish Ministers shall not make any regulations under this section which would be likely to result in (i) a net increase of emissions contributing to climate change or (ii) a deterioration of air quality in the immediate vicinity of airports in Scotland.

 

Mark Lazarowicz ”

@marklazarowicz

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