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I will give a quick response, then Euan Page, who is our resident expert on those issues, might want to come in.

In my response to Murdo Fraser, I began alluding to the big picture of whether Scotland should take a different view—in line with what we hope will be confirmed as the devolved aspects of the bill—if that could then be overridden by the 2020 internal market act. For example, if we took a different view on product legislation, and even if Scotland adopted different regulations that were passed by this Parliament and put in place, businesses or manufacturers might be able to align with English regulations and be protected by the 2020 act. That is directly relevant.

Euan might be able to add more.

We would ensure that scrutiny took place at the point when secondary legislation or delegated powers were used under the enabling power, because if that were to impinge on devolved issues, we have a process in the Scottish Parliament to allow it to be scrutinised by committees and others. Stakeholders would be able to have their views heard as well, because the Scottish Government would have to make a decision as to whether to recommend consent on each issue. That is probably the point at which scrutiny and involving stakeholders would happen.

At the moment, the bill is vague—it is a very high-level enabling bill—so it is difficult for any of us, including stakeholders, to give a view. Members can see that the definition of what is covered by the bill is high level and quite broad. We are therefore not yet in a position give clarity on that.

All that I can say at the moment is that the reason why we are determined to try to secure assurances for the Scottish Parliament and respect for devolution, under the bill, is to ensure that we avoid such scenarios. I cannot foresee how the UK Government will use the bill or enabling powers on pesticides or anything else, but we want to safeguard against such scenarios by ensuring that in relation to pesticides, which is one area that is devolved, devolution is respected under the UK bill, so that decisions are for Scottish ministers and not for UK ministers. That is all that I can say about it, at the moment.

On Northern Ireland’s relationship with the EU, members will be aware, as it has been repeated many times, that the Scottish Government—given the irony that Scotland voted against Brexit—did not get the same helpful access to the EU market as Northern Ireland has, and there is obviously a separate debate about that.

It is nice to be before the committee for the first time in a while. I thank you for the opportunity to outline the Scottish Government’s current position on the Product Regulation and Metrology Bill. Because the metrology aspects of the bill are reserved and are not covered by the LCM, I will, as you would expect, focus on the product regulation element.

The UK Government has said that the creation of broad powers to regulate product characteristics, as proposed by the bill, is necessary to fill the regulatory gap that has been caused by exit from the European Union.

Unfortunately, the approach that has so far been taken in the bill does not respect the devolution settlement or the legislative competence of this Parliament. For example, exceptions to the product safety reservations that are included in the Scotland Act 1998 have not been adequately recognised, which means that some devolved product categories would fall unnecessarily within the scope of the bill.

Similarly, the bill grants regulatory powers to UK ministers in relation to the efficiency, effectiveness and environmental impacts of products, although those matters are largely devolved. The bill does not currently contain any mechanism to prevent UK ministers from using those powers in devolved areas without consent from Scottish ministers or oversight by the Scottish Parliament. That is why we have recommended that the Scottish Parliament should not grant legislative consent to the bill at this time.

The Scottish Government believes that the regulatory requirements for products in the UK should align with those in the EU. British Chambers of Commerce recently called for

“as much alignment as possible”,

which would help to facilitate trade with our most important trading partner.

The UK Government has announced plans to align with some specific EU product regulatory changes, which is to be welcomed. Although the environmental power in the bill is limited to alignment with EU law, the other powers can be used either to align or to diverge. UK ministers have stated that they want to keep both options open, although there are nods to alignment elsewhere in the bill. The impact of the bill on wider EU alignment at UK level therefore remains unclear. As a result, its impact on the UK internal market also remains uncertain.

Despite gaps in the policy background, we continue to engage positively and constructively with the UK Government. I am pleased to say to the committee that the UK Government has now agreed with our view that clause 7 covers devolved matters and requires legislative consent. We are hopeful about reaching further agreement on other issues in the bill, which might eventually allow us to change our advice to you on consent.

Thank you again for inviting me along today. I will do my best to answer your questions.

That gets to the crux of the issue. It is an enabling bill, so many such questions will be answered only once the UK Government takes a decision on how to use the enabling powers and brings forward the secondary legislation. We would then have to look at each individual case, and at that point, we would have to take a view on those questions.

In the wider sense, one of our key concerns is the mismatch between what is devolved under the Scotland Act 1998 and what would be excluded under the bill by the UK Government. There are two lists, and they do not match. Clearly, we would like to see what is devolved, according to the 1998 act, being replicated in the exclusions in the UK bill. That would result in a clear match, which is what we are pursuing.

There are a number of devolved issues involved, including food, agriculture, horticultural products, fish products, seeds, animal feedstuffs, fertilisers and pesticides. Under the 1998 act, those areas are devolved, so we would like to see them in the list of exclusions in the UK legislation.

I will bring in colleagues on your wider question about the definition of efficiency and effectiveness, which is not easy to answer because it is a technical bill. Pieter, do you want to add anything?

Your question raises a number of questions. We would have to wait and see how the secondary legislation is used under the enabling bill. We would look at each case on its merits, but the Scottish Government’s policy is to align, as far as possible, with EU legislation. We welcome the fact that the new Labour Government is not actively non-aligning, as seemed to be the position of the previous UK Government. There is a change, which we are paying close attention to. We hope to have a constructive relationship with the UK Government regarding secondary legislation, but we will have to wait and see what is proposed.

Colleagues might wish to ask about the wider issue of internal markets, which the committee might have discussed. That would take us into a slightly different, but linked, debate about what would happen if we took a different position and there was then a debate about the United Kingdom Internal Market Act 2020. Does that make sense? We know that there are examples of times when we have taken a different position and the United Kingdom Internal Market Act 2020 has been used to stop that going forward. There might be implications.

We are getting some positive signals from the UK Government. Although the negotiations are on-going, we are not over the line yet, so we have to wait and see. However, I had a constructive meeting with Lord Leong, who is the minister dealing with the legislation on behalf of the UK Government in the House of Lords, through which the bill is going just now. We are waiting to see what happens next, but discussions are on-going. We feel reasonably positive that there will be some movement in Scotland’s favour that respects the devolution settlement but, of course, we just have to wait and see.

That is always a concern. The bill is an enabling bill, so should the delegated powers be used, there could be instances in which, as you have said, no matter what action the Parliament takes under devolved powers, it could be overridden by the 2020 internal market act. Again, that is two steps away from where we are just now; we are just trying to focus on fixing the situation.

First, I previously alluded to the fact that there should be a match between the list of what is devolved in the area under the Scotland Act 1998 and the list of what is excluded under the UK bill. In our view, the lists should match, which would respect the devolution settlement and the Scottish Parliament.

Secondly, there is an issue around the extent to which the Secretary of State in the UK Government would use the bill to introduce secondary legislation. Where that would impinge on devolved powers, legislative consent clearly must be sought from the Scottish Parliament.

Thirdly, there is the wider issue of the environmental impact of products, which we will pay attention to as well, because we want consent to be sought where there is an impact on Scotland.

Well, we have a new UK Government, with which the First Minister and colleagues are raising issues in relation to the internal market act. We would like to see it being removed from the statute book, and we await the response of the UK Government. We have a new Government and a more constructive relationship exists with it, so far. We want results from that new constructive relationship, so whether the UK Government addresses Scotland’s concerns about the IMA will be a good test of that new UK Government. Time will tell: I cannot answer that question just now.

Again, although this is a backdrop issue, it is a very serious one. We must ensure that the devolution settlements are respected in the day-to-day legislation that goes through the UK Parliament. That is what this is about. We cannot predict how the delegated powers will be used. As I said earlier, it is an enabling bill, so should the UK Government introduce legislation, we want to ensure that devolution is protected—otherwise, what will happen will be against Scotland’s wishes.

The issues are very important, which is why I want those assurances to be put in the bill at this time, as we want with all legislation. Although it is obviously disappointing that those assurances were not, from the word go, contained in the bill, we are having constructive discussion with the UK Government to ensure that the bill is amended.

On your point about the lists, one of our objectives, as I said previously, is to get a match between the two.