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Our second agenda item is evidence on the legislative consent memorandum for the Retained EU Law (Revocation and Reform) Bill. This morning we welcome to the committee Angus Robertson MSP, who is the Cabinet Secretary for the Constitution, External Affairs and Culture. He is joined by Elliot Robertson, who is head of the European Union secretariat at the Scottish Government, and Chris Nicholson, who is a solicitor and head of the constitutional reform and external affairs branch of the Scottish Government. I welcome you to the committee, cabinet secretary, and invite you to make an opening statement.
Thank you very much, convener.
The Scottish Government’s position on the bill that we are considering this morning is well known by all here. It is a bill that will, if passed, wreak havoc across a swathe of sectors while it chips away at the increasingly fragile state of devolution in the United Kingdom. It is the Government’s view that it should be withdrawn immediately—a position that is supported by many of the witnesses from whom you have heard. This bill is the latest manifestation of the Brexit that Scotland did not vote for and that is making us the poorer.
At Prime Minister’s question time last week, Rishi Sunak said in response to a question about the bill:
“We are seizing the economic opportunities, deregulating and signing trade deals around the world.”[Official Report, House of Commons, 30 November 2022; Vol 723, c 896.]
The key operative word there is “deregulating”, but seemingly not a week goes by without new evidence showing that Brexit has economic costs, not opportunities. Last week, research by the London School of Economics and Political Science revealed that the average household food bill has gone up by £210 over the past two years because of Brexit. More deregulation is not what businesses want. The Institute of Directors has said that the bill
“is likely to create a huge amount of uncertainty around the regulatory framework ... This is the last thing that business needs in such a fragile economic environment.”
The IOD and a dozen other organisations wrote to Grant Shapps asking him to withdraw the bill.
The Scottish Government has initiated a programme to co-ordinate management of the secondary legislation that will be necessary to stop essential devolved laws being lost, should the bill be passed. The SG was still operating largely in the dark on what the UK Government proposed to do with retained EU law and, therefore, what powers Scottish ministers might need to use. It has not told us what retained EU law it needs to preserve immediately in order to comply with international obligations—in particular, the EU-UK Trade and Cooperation Agreement. It has not told us what it wants to preserve or its approach to the areas that we have already agreed to work together on, including the common frameworks.
Notwithstanding the fact that it has been working on its review of REUL since September 2021, the UK Government has not told us what legislation it wants to sunset. Of course, if it actually knew what it wanted to do away with, it could bring forward specific policy proposals that would be the subject of proper parliamentary scrutiny in the usual way. That would be far more proportionate an exercise than what is proposed in the bill.
I hope that Parliament takes some reassurance from the fact that I and my officials have repeatedly made the point to the UK Government that implementation of the bill in Scotland will require time for scrutiny by the Scottish Parliament. I look forward to your questions. Thank you very much, convener.
Thank you very much, cabinet secretary. We had two significant round-table meetings at which we took evidence on the bill. Some witnesses—probably the majority— considered that it should be withdrawn, but witnesses were unanimous that the bill is doing things back to front. They felt that EU law should normally be retained and that—as you have suggested—dealing with areas where the UK wants to do away with or amend EU law would be proportionate. What are your thoughts on that? What discussions have you had, particularly with exporters in Scotland about their concerns?
I have relied on the evidence to the committee and have read it in some detail in order to be fully apprised of where various sectors of the economy are on the matter. Government officials have regular communications with all forms of representative organisations, but the committee has had very thorough discussions with various sectors and with people who have significant understanding of the legal situation. That has been extremely helpful.
For context—we might come on to this, but I will say this, just in case we do not—it is important for me to put on the record how important timing is and how important it is that we all understand what has happened in the past two to three weeks. Since the arrival of the new Prime Minister, there has been a rethink on a number of United Kingdom Government policy approaches. We saw that with the U-turn on the mini budget by the previous Prime Minister, Liz Truss, and the then Chancellor of the Exchequer, Kwasi Kwarteng. We can see news today about the UK Government U-turning on policy on renewable energy in England.
In the past two to three weeks there has been a very active discussion in Whitehall about whether the UK Government should shelve the bill entirely. That has led directly to intervention by interest and representative groups—from the UK Trades Union Congress to the Institute of Directors and many others besides—in a letter that was sent to Grant Shapps and reported in the Financial Times.
At that point, the Scottish Government and colleagues in the Welsh Government decided that we would make a joint approach to the UK Government, underlining our previous approaches and saying that the bill is back to front—that it is wrong, it is disproportionate and it is not the right way to proceed. Even if one thought that revocation was a good thing in principle, the bill is not the right way to do it.
That is all important because we can look back on developments in the past few weeks and, sadly, draw the conclusion that the UK Government has decided that it will go ahead with the earliest sunset date, as was planned by the previous Government. Notwithstanding the opposition of the Scottish Government, the Welsh Government and all the interest groups and organisations, and despite the vote in the Scottish Parliament on the subject, the UK Government has decided to proceed.
The window of opportunity for the bill to be shelved or forgotten about after having been at the House of Lords has now passed. It is important to put on the record that we are now dealing with a bill that will go forward. In the UK Parliament committee stage, amendments that would have protected Scotland’s position on retained EU law that had been drafted within the Scottish Government were voted on. They were supported by members of the committee from the Scottish National Party and the Labour Party but were opposed by Conservative Party members. That, in effect, protected the bill’s course through the parliamentary process at Westminster.
That means that we are looking at the worst-case scenario. Any thought that we had of the bill being amended to limit its impact on Scotland has been blocked in committee. There is no longer any thought that it might be shelved or withdrawn, or that we might have a later sunset deadline, with the Scottish Government’s and Parliament’s ability to protect European Union law being spread out over a long period. The evidence to the committee is absolutely clear that there is a big danger, because of the compressed timeframe for managing the process, that we could miss things or legislate in haste.
We find ourselves—the Government and the committee—facing the worst-case scenario, with the bill. I have no doubt that it will lead you to ask another set of questions, but it is important to have set the scene for the committee so that we all understand where we are with the bill. We now believe that it will go ahead within the shortest possible timeframe and without any amendments that are proposed by the Scottish Government being accepted at Westminster by the UK Government.
Thank you very much, cabinet secretary. We move to questions from members, starting with Dr Allan.
I have a couple of different questions: one is about the wider situation and the other is a more practical one. You have touched on where we are and where you think that the bill is going. You have indicated that wiser counsels do not seem to have prevailed. We have taken evidence from lots of people and, unusually for this committee, they have all been unified in being pretty mystified about the motivations behind the bill. Has the UK Government explained to you the motivations for it?
In my infamous meeting with Jacob Rees-Mogg, who came all the way to Scotland to meet me on a Teams call rather than meet me in person on the matter, he explained the logic as he saw it from the UK Government’s point of view. He explained that it was a Government that wanted to deliver Brexit in full and that, from his point of view, that meant getting retained European law off the statute book. In other words, it is an ideologically driven exercise. When I asked him about what that would mean for a Government elected in Scotland that wished to remain aligned with the European Union, he said that we would have the power to do so. I asked him why, if that was the intention of the exercise, one would not simply legislate a carve-out for Scotland.
That is what totally mystifies me about the approach of the UK Government here. If one were operating on the basis of a respect agenda—which is what we would think, given all the terminology that we hear about listening to and meeting one another and hearing one another’s concerns—and the UK Government was serious about that, as well as having its own drivers in relation to why it thinks that the REUL bill is a necessary and proportionate way of doing things, which I have just explained to Dr Allan, it would recognise that there were other approaches elsewhere in the United Kingdom and would legislate accordingly, but—oh, no—that is not what is happening. One is carrying on regardless. One is disregarding the interventions of the Scottish Government. One is disregarding the clearly stated majority view in the Scottish Parliament on the bill and one is proceeding as planned.
With regard to why the UK Government is continuing with the bill—notwithstanding the fact that its approach is back to front—if one wanted changes to be made to particular pieces of retained EU legislation that were not in accordance with UK Government policy, why would one not just legislate for that, as opposed to throwing out everything and forcing us into a huge process, which we will undoubtedly come on to, of trying to understand what is heading down the tracks towards us in this regard?
My reading of what has happened in the past two weeks is that it is related to the balloon-floating exercise by the UK Government with regard to seeking a potential parallel to the Swiss alignment with the EU, which was, as we know, shot down within 24 hours. I think that the Prime Minister and the Chancellor of the Exchequer decided that they had to show their pro-Brexit credentials to their own back benchers, and that doubling down on the REUL bill and saying that they were going to go ahead with no delays was their way of doing that. That is the best explanation that I can give to Dr Allan. It is mystifying. It does not reflect good intergovernmental relations between the UK Government and the devolved institutions, because there has been total disregard for the position of the Scottish and Welsh Governments.
09:15I evidence that by the fact that I have written twice to the secretary of state who is in charge of the bill—Grant Shapps—since he took office. I included our proposed amendments that would have respected devolution. Since then, I have received no reply whatsoever. As we know, the Scottish Government and the Welsh Government have the same position on the REUL bill. I wrote a letter, together with my opposite number Mick Antoniw, the Counsel General of the Welsh Government, about our opposition to the bill. If the UK Government was remotely serious about wanting to have good intergovernmental relations and respecting the devolved Governments and institutions of elsewhere in the United Kingdom, it would at least answer letters, but it does not even do that.
That is the best insight that I can share with Dr Allan and the committee on the totally unacceptable way in which the UK Government is proceeding with legislation that impacts on the devolved settlement and the policy of the Scottish Government. It is one example, among many, of how the devolved arrangements in the United Kingdom do not work in practice.
Given what you have just described, with regard to how you plan to cope with the bill and its impact on Scotland or how you plan future legislation in Scotland, does this episode say something about the Sewel convention? Is it a constitutional fiction?
I met the previous secretary of state, Jacob Rees-Mogg, twice and was told in both meetings that the UK Government would respect the Sewel convention. As we know, in practice, there have been numerous examples in recent years of the Sewel convention being disregarded. If the Sewel convention is to be respected, we will be able to see that in practice if the Parliament does not pass a legislative consent motion for the bill and the UK Government does not go forward with the legislation as it is currently proposed.
Do I think that that is what the UK Government will do? I have very low expectations of the UK Government doing that. What seems to have happened, in effect, is that the UK Government has reinterpreted what the Sewel convention is. To the UK Government, the Sewel convention would appear to mean only that it must have consulted the Scottish Government on the principles of a legislative proposal, not that it recognises that it has been given a red card and that the legislative proposal must go—it must be withdrawn and must not apply in Scotland. Instead, what it seems to say is, “We have consulted, we hear what the Scottish Government says on the matter and we are going to carry on regardless.”
We need to do what we should do, which is use the mechanisms, and we will continue to do our best to work with the UK Government. We must do that, especially on the level of officials, who have to work with their opposite numbers in UK Government departments. We will, no doubt, come on to what happens next. We can deal with these things only by having a good relationship and, often, that exists at an official level. I am very grateful to colleagues from the Scottish Government and UK Government departments for working in that way.
The absence of good faith and professional working practice is at a Government-to-Government level: there is little to no tangible respectful relationship between the UK Government and the Scottish Government. That is entirely down to the approach of the UK Government, which is, “It’s my way or the highway. We’re doing this. We don’t care what you think. We don’t care about the evidence or the objections that you have. We don’t care about your ability to manage a parliamentary process or a Government’s legislative programme. We’re going to legislate in a way that, notwithstanding your wish to remain aligned with the European Union, will impose on you some of the greatest legislative pressures that there have been since the beginning of devolution.” That is not a respectful approach from a Government that is working from a partnership perspective.
In your opening remarks, you said that the bill could result in deregulation and unintended consequences. You have seen the evidence from the committee’s round-table sessions. I was particularly struck by the evidence that was given by Food Standards Scotland, and I would like to hear your thoughts on it. Food Standards Scotland said:
“It carries huge risk and unintended consequences for consumers and trade.”
It went on to say:
“Deregulation that removes consumer protection is not an improvement, and this bill offers a huge opportunity for deregulation in a way that could undermine consumer safety.”—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 24 November 2022; c 2-3.]
That relates to a specific area, but I am interested in your thoughts on the wider impact of deregulation.
I will underline further evidence that was given by Julie Hesketh-Laird from Food Standards Scotland. She said:
“if we repeal or remove all the laws that I have just referred to, it takes us back to nothing in many cases—there is no protection pre-EU law.”
She went on to say that the bill
“removes all consumer protection ... and that in turn has a huge impact on the confidence that our trading partners would have in food that is exported from Scotland.”—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 24 November 2022; c 10.]
If the penny has not dropped in relation to what all this means, one needs to read and take on board the warnings that have been given to the committee in that regard.
The Scottish Government’s position is that, if the UK Government disregards the Sewel convention and railroads the bill through, with its impact on devolved areas, we will have to work extremely hard—all of us: the Government, the Parliament and the committee—to make sure that we understand the intended and, indeed, unintended consequences of retained European Union law disappearing from the statute book at the end of next year, which is what the bill provides for.
The committee knows about the scale of European Union legislation; you have heard about that from the Law Society of Scotland and others. To start with, Jacob Rees-Mogg could not tell me how many pieces of legislation are involved, but he then said that the number is between 3,000 and 4,000. We then learned from the Financial Times that it is north of 4,000 and, in its evidence to the committee, the Law Society of Scotland said that up to 5,000 pieces of legislation might be involved.
For the uninitiated who might not understand what that means, it means that Scottish Government colleagues who are responsible for our legislation and for understanding policy proposals will need to do a lot of work in going through thousands of pieces of legislation to understand what would happen if they were no longer to be on our statute book. The committee has received evidence about less well-known pieces of European legislation that are intricately part of our domestic safeguards. For example, one of the committee’s witnesses gave the example of equal pay. We need to understand the impact of such legislation in Scotland, and we then need to work out what we must do to retain all those safeguards. We need to do that between now and the end of next year.
I am incredulous that this is being foisted on the Scottish Government, the Scottish Parliament and the committee. Given that the UK Government did not simply accept an amendment in the House of Commons that would have stopped all this nonsense, we have been left looking down the barrel of next year being dominated by trying to understand what retained European Union law means in devolved areas and what safeguards we need to provide.
Let us not lose sight of the process that will be gone through. At present, UK Government departments are being asked to provide lists of legislation that, from a departmental point of view, they wish to be repealed or retained in some way. Those lists will then go to a UK Government bill minister—I understand from the timescales that that will happen in January—who will take a view on the impact of the different legislative measures. That might involve devolved areas, and I have had zero input to the UK Government about the Scottish Government’s position on different forms of legislation. The UK Government’s proposal includes mechanisms that allow it to make decisions in devolved areas. It just goes on and on.
I am incredulous that we find ourselves in this position. The bill is being foisted on us. It is the worst possible advertisement for devolution. It shows how devolution is being disregarded by the UK Government.
Last week, at our round-table evidence session with, mainly, environmental groups, we asked about the impact that the bill was having on them. They talked about a lack of resources to be able to respond to it. Isobel Mercer from RSPB Scotland said:
“the core focus at the moment is ensuring that Scotland has an appropriate and ambitious response to the nature and climate emergency. That will involve improving many of our existing laws and protections ... However, that will all become difficult if our organisations are distracted by ensuring that existing effective protections do not fall off the statute book.”—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 1 December 2022; c 28.]
We have been hearing from environmental organisations and the food and drink industry about how the bill is having a negative impact on their ability to move forward. You touched on this a bit in your previous answer, but what impact is there on the Scottish Government’s work to improve legislation and on the work of the civil service in Scotland?
Ms Minto could have added to her question the statistic that only 4 per cent of businesses believe that they have a full understanding of what the bill will mean for them, yet we are expecting businesses, environmental organisations, third sector organisations, Government departments, Parliaments and parliamentary committees—all of us—to get our heads around thousands of pieces of legislation in order to work out what we must do to avoid things falling off a cliff at the end of next year.
09:30I have listened closely. Sarah Boyack, who is a member of the committee, asked me a good question in the chamber of the Parliament about the processes that might be involved in all this. We will all have to consider how we go through this unmatched challenge of working out how existing legislation impacts on us, understanding what needs to happen to retain it—the Government’s policy is to remain aligned, or largely aligned, with existing European legislation, and I believe that the majority of members in the Parliament want that, too—and ensuring that the Government, the Parliament and the committee have the capacity to do that. Those are all known unknowns. We have never had to do something like this before. We should not be doing it in the first place, but we will have to do it.
Is there any silver lining in the process? At least we have a very close working relationship with the Welsh Government, which faces the same challenges. I know from my conversations with Mick Antoniw that there is a huge amount of good will in trying to get through the process. If we can work with one another through the process, we will do exactly that.
Anyone who has any locus, interest or responsibility in relation to any of these matters, including third sector or representative organisations that have particular concerns about the impact that the bill might have on the environment, or colleagues who deal with rural affairs issues—it is largely thought that, in terms of legislation, the biggest number will fall into the category of rural affairs, but that takes us into food safety and related questions—will have to work very quickly to understand what needs to happen to protect our safeguards. That has been highlighted in evidence to the committee.
For the record, I am not a lawyer—as, I think, you all know—but some very eminent lawyers have given evidence to the committee. Indeed, one member of the committee is an eminent lawyer who must understand, as committee witnesses have described, the potential unintended consequences of different aspects of retained EU law, which was previously just EU law, on our domestic legal system. We need to ensure that certain things do not literally disappear from the statute book. That is an overview.
Do we know how long the process will take? No, we do not. Do we know the exact form in which we will have to do this? No, we do not. I could go on. I do not want to give the impression that we are not thinking about such things, because we are. My civil service colleagues have been updating me on the detailed work that has begun to build solid foundations for this enormous undertaking. Now that we know that the UK Government is going to press ahead and will be working to the tightest timescale—we have learned that only within the past few weeks—we will have to work very quickly.
The UK Government has a very narrow window of time in which to give any credibility to the claim that it is working with the devolved Administrations on the matter. If it is already writing to ask UK Government departments in Whitehall to provide lists and the rationale for what should and should not be retained, without the full and active involvement of devolved institutions, any claim of wanting to make devolution work in any meaningful way is for the birds.
We heard in evidence that more than 600 pieces of legislation relating to the Department for Environment, Food and Rural Affairs could be impacted, and it was reported that only three civil servants are working on that. I do not know whether that is the case, but that is a stark number, and that could have pretty negative consequences on our ability to scrutinise and ensure that we have in place all the right laws.
Indeed, but I make the point that we are talking about hard-working civil servants who have a job to do already. Those colleagues are working on the legislative programme of the Scottish Government, which was elected to legislate across the panoply of devolved areas. That is a full-time job for the civil service, and this unprecedented and entirely negative intervention by the UK Government now runs the risk of swamping the capacity of the Scottish Government, the Scottish Parliament, committees, the third sector and representative organisations.
I say again that, if the penny has not dropped yet in relation to the scale of what is going on, one really needs to wake up and smell the coffee. This is unprecedented; it has never happened in the entire history of devolution. It might, unfortunately, be unavoidable in the UK Parliament, but it is entirely avoidable for us in Scotland. Unfortunately, the UK Government is proceeding with its approach.
Lloyd Austin from Scottish Environment LINK described it as “immense” pressure. That underlines what you have said.
It is very rare that I agree with the cabinet secretary on a huge number of issues. The bill is unprecedented; it feels dangerous as well as ill thought out. The evidence that we have heard, which Jenni Minto has already mentioned, was on public health, food safety, animal safety, business, the environment and workers’ rights. Another issue that was striking is the legal impact, which will lead to massive uncertainty. It cuts right across everything. You have made points about devolution and the Sewel convention that I very much agree with. I was struck by the evidence that we had from the head of the Northern Ireland civil service, who said that there was potential for an untenable legislative burden as well as a diversion of resources to ensure a functioning statute book. This Tory Government is acting without any thought as to the range of dangerous impacts of the bill.
My question follows up on questions that my colleagues have asked. Have you or other Scottish Government ministers had parallel discussions with UK Government ministers? You have already mentioned DEFRA, which is clearly a massive issue for us. There is also the Department for Business, Energy and Industrial Strategy, which will be important in terms of regulations and businesses in the future.
One of the things that I found disturbing in what we have heard is that there is evidence that the impact is already happening. It is not a theoretical issue about what happens next December. Part of the evidence that we heard was about how local government regulates safety and the sense that some businesses are already shifting because of the uncertainty.
There is the issue of what will happen in the future. How do you build that piece of work in the Scottish Government, which will be a huge legislative and civil service burden, and manage the risk assessment to continue to highlight the dangers of the bill and get in place measures for the dangerous worst-case scenario that you have talked about? It could happen this time next year. Can I take you to the January issue? Do you think that the UK civil service will identify all these areas of legislation by January?
Sarah Boyack asked quite a number of questions there, which is right and proper. I signal to colleagues that, if they want to add anything at the end of what I say, that might be helpful in getting an insight into process points.
I do not disagree with the assessment of the head of the Northern Ireland civil service. This is massive and untenable; that is the scale of what we are dealing with. I do not want to minimise any of it. We have a difficult balance to strike, as does the committee, to ensure that we get through the process—however we get into the nuts and bolts of it—while ensuring that we maintain all the safeguards and protections across this critical range of subjects. One area of evidence that you heard about related to biosecurity, which comes in addition to all the other areas of concern that we are talking about. We will have to get to grips with understanding all these areas of regulation and safeguards. I prefer the use of the word “safeguards” because, largely, that is what they are. They safeguard us as consumers, citizens and so on. We have to do that in a way that will enable us to turn it around in less than a year.
What do we imagine the process is? We have tried to stop it and to amend it. We are trying to use the devolution settlement through the Sewel convention to protect Scotland by stopping the bill proceeding in its current form. However, if the UK Government is going to disregard the Scottish Government, the Scottish Parliament and public opinion on this, we will have to work exceptionally hard to be involved in the process. I hear regularly from civil servants that they have good working relations with colleagues. That is not always the case, but they often have the professional relationship that you would hope that they would have with colleagues in UK Government departments.
Are there discussions across different parts of the Scottish Government with different parts or departments of the UK Government? Yes, absolutely. Do we have a full insight into where different UK Government departments are in their assessment of retained EU law as that pertains to different departmental areas of responsibility? We definitely do not have full insight of that. We have asked, but it has not been provided. There are examples of legislation that has been shared when there has been a thought that it is of import, but the situation is not where we need to be across the piece. The heavy lifting in this early phase will be civil service to civil service.
Do we talk about this politician to politician when we have bilateral meetings? Well, the point there is whether—not when—we have bilateral meetings. From evidence to a UK Parliament committee this week, I was reminded that a senior UK Government minister had not yet met her Scottish Government opposite number—nor had her predecessor ever done so—and she could not even name who her opposite number is. That is how bad relations are with the UK Government. Will I use every and any opportunity that I can to make all these points? Yes, absolutely, but there is a tin ear and an unwillingness to deal with things, despite their importance. Given where we are, will we seek to have more interaction on things? Yes, we will, with both the UK Government and other devolved Administrations, so that we can share the burden of all this.
On the specifics of where we are with departmental appeals for lists and how that will be taken forward, I will ask colleagues—perhaps Elliot Robertson—to pitch in.
It is worth reflecting that the Scottish Government civil service now has a programme in place to try to ensure that we have a consistent approach in what we will do with the devolved secondary legislation. A programme will be in place for dealing with it.
As the cabinet secretary has indicated, policy leads across the Scottish Government are in contact with their counterparts in the UK Government. On the programme that we are working to, we need more information from the UK Government on what its intentions are. We are told that, during the course of January, the secretary of state for each Whitehall department will sign off on their proposed treatment for each of the individual instruments of retained EU law that relate to their department.
09:45We understand that, during January, there will also be what has been described as a ministerial stock take, whereby the individual secretaries of state will discuss with the bill minister a position to take for each piece of retained EU law. We understand that, in February, the legislative programme for the UK will be set out for the remainder of the year. We understand and have been told by the UK Government that that will be an iterative process. The plan will be quite agile and will be changed during the course of the year. In essence, this is what it boils down to: a January date for ministerial sign-off, and a legislative programme that is set out in February and runs through the rest of the year.
What is your expectation of our capacity to scrutinise that as a Parliament—not just this committee, obviously, because most of the other Scottish Parliament committees should scrutinise it—if the process goes through as you currently expect it to?
I have said a number of times in evidence to the committee that I have a long experience as a parliamentarian in having responsibility for scrutinising European legislation, having served on the House of Commons European Scrutiny Committee for 10 years. I understand how important it is that parliamentarians are able to do their job and ensure that they understand proposals and what their impact will be, and how important it is to ensure that Parliament, whether in committee or as a whole in the chamber, is appropriately involved in the process. That is my default position.
We will have to consider how the process for the bill is managed, on the basis of an understanding of the legislation that is involved and the form in which that will be protected in law in Scotland, which no doubt will be through the usual channels for legislation going through the Scottish Parliament. I give Sarah Boyack and committee members the assurance that I am extremely committed to ensuring that the committee is able to do its job, even if just—it should not just be this—from this particular point of view, given everything that I have said about capacity. The more people who have an interest in and understanding of how big a challenge this is and who take evidence that is able to shine light into different policy areas, the better. We are literally in this together. That is how the Parliament was conceived as working: parliamentary committees working with Government on things such as this. That is another reason, in addition to many others, for you having the best understanding of what needs to be done and the stage at which that will happen and being able to play your part in that.
As soon as there is anything concrete with which I can come back to you, convener, I will do so, and I know that there are on-going discussions between my officials and your clerks. I have been very clear with my colleagues that that is the approach that I want to be taken. I know that there have been views from the committee about how, before the REUL bill approach, we would have managed maintaining alignment with European Union legislation in a post-Brexit world. I have paid close attention to the concerns of committee members to ensure that we have the best possible system in place. That is and has been an iterative process.
I had signalled that I was prepared for improvements to be made to that process, but we are in a totally different situation now. We can, of course, learn from how things were working prior to the proposals for the REUL bill, but we will now have to think anew about how we do all that as a Government and, no doubt, you will be thinking about how you wish to do that as a committee. However, I say to you very clearly that I want us to work together so that you can do your job and we can do our job. I hope that, between us, we can minimise the damage and the unnecessary and avoidable impact that that has on our parliamentary process and the Government’s legislative programme.
I welcome that. In our first evidence session on the issue, the people round the table were all of the view that it would be far better to retain EU law and then decide what we do not want rather than, as you say, upend the entire process. I cannot remember, as a committee member, an evidence session where we have not heard evidence that disputes the approach. That is really unusual, given the range of organisations that we have had.
On how the Government responds, there is parliamentary accountability to us. I presume that, at UK level, there has to be a parallel to the work that we are doing and the work that is being done in Wales. The Northern Ireland Assembly is not in place at the moment, so there will be no scrutiny by elected representatives there, which must be an issue.
In your work and in the support from the civil service, do you have a ranking in deciding where to start? You mentioned biosecurity. We are not out of the pandemic yet, and there is an issue about transparency and safety, because this approach is potentially, without thought, putting people’s safety at risk.
That is why this is an issue right across Government. As you might imagine with such a process, when an idea is mooted or there is proposed legislation, that usually starts off in the relevant Government department. In this case, I have responsibility in relation to European Union matters, so the matter falls within my orbit. However, as it has become clear that the bill is happening and we fear that the UK Government will disregard the Sewel convention, the issue is now being considered right across Government, because European Union retained legislation impacts in policy areas such as those that Sarah Boyack has mentioned.
On the hierarchy of priorities, safety is a really important consideration, but there are others, too, and those have been highlighted to the committee in evidence. As soon as I understand where there are particular risk factors, I am happy to share that with the committee so that you can satisfy yourselves that those are indeed the areas with highest risk. You may want to add to that. That is part of the process that I have signalled that I want to have so that we have a collegial relationship in this place, if not with another place.
That would be helpful.
I have one final minor question, which is on work across the UK. Is the work on the common frameworks still going on and does it have any relation to the bill? I am thinking about how the current Tory Government is operating, because it is a whole set of different ministers.
I may throw the microphone in a second—I am sorry, that was not a reference to ministers in other places throwing things, apparently. I will pass the microphone gently to Elliot Robertson to add anything on the specific issue of common frameworks, because that is important.
What is our understanding of how the UK Government thinks it might get through the process of dealing with legislation that is reserved, devolved and mixed? So far, I have given you evidence that interaction with UK Government ministers has been limited at best and that our officials are trying hard to work constructively with one another.
Does the UK Government see the common frameworks as a way in which it might be able to deal with some of the challenges? The answer is that it might well do. However, I observe that that is not what the common frameworks were intended for, and the issue of solving some of the problems of the process that we face next year is of an entirely different order. Quite apart from that, there is a further question. If the UK Government is doing a lot of the heavy lifting on the issue now and next month, do we really think that the common frameworks will operate within that timescale to remedy the issues that will be thrown up by the UK Government’s approach to devolved and mixed pieces of legislation?
That is a very technical and dry area, but it is really important if we want to understand who has responsibility, who will answer to Parliaments and to which Parliaments, and whether the positions of the Governments will be respected as part of the process.
Elliot, do you want to add anything more specifically on common frameworks?
I can add a little but not a great deal more, to be honest. I think that the expectation is that the common frameworks will do a lot of the heavy lifting where divergence in regulations occurs. To be clear, the common frameworks have not been designed to deal with the scale or the pace that would be required to meet the 2023 sunset date and, particularly with regard to divergence, the unintended consequences that are likely to arise during the course of next year plus any operational issues that arise. As you would expect, discussions are happening between the common frameworks leads in all four nations but, from this distance, that system is not designed to deal with the pressure that would be attached to the sunset date specifically of 2023.
We seem to be in an almost legislatively surreal situation—a kind of back-to-front world—and it is difficult to make sense of that. The cabinet secretary said that there has been quite a solid and more rational conversation between Government departments at UK level and at Scottish Government level. I am interested to explore what a rational way forward might be, given that, regrettably, as you say, it looks like the bill will not be dropped. For example, is there a way to push the sunset clause back to 2026 and to consider laws in a more phased approach? Has there been any appetite from UK Government ministers to do that? Alternatively, is there a way in which we can fast-track the retention of EU law in the next 13 months?
Is there a rational way to go forward in the irrational, surreal and unprecedented situation in which we find ourselves? To be practical and pragmatic about what is a bad situation, is there a better or worse way of getting through all this? Yes, there are ways of doing it that would be more sensible and ways that would be more damaging.
The first point on sunsetting is the self-evident one that trying to do everything within one year is not sensible, given all the constraints that we know about. Incidentally, the constraints that will be felt in the Scottish Government will be felt by the UK Government—that is the magnitude of this. It will be huge for UK Government departments, for the UK Government and for the UK Parliament. As a consequence, it will also be huge for us here and for colleagues in Wales and Northern Ireland. Sarah Boyack raised a very serious point about a democratic deficit in relation to what all this means in Northern Ireland.
10:00If one were to take an altogether more serious approach to minimising the risk of leaving things out and overlooking things that would be damaging and so on, having a phased approach over a longer timescale would be the self-evident way to go about it. That is not what the UK Government proposes. It has rejected the argument for longer timescales, although all those points have been made.
Fast-tracking presents the risk from the other end of the telescope. What is that saying about legislating in haste? Perhaps somebody on the committee can help with that. I am mindful, as I am sure the committee is, of doing things in a way that brings in other kinds of risks, and I have read the evidence that has been given to the committee on that.
In this massively imperfect situation, there is a balance to be struck between trying to do things within unacceptable timescales that may be forced on us and doing them in a way that brings other risks. That is the balancing act that we will have to try to find our way through.
Are you saying that the UK Government has ruled out a 2026 sunset date for all legislation, or is it in the gift of individual secretaries of state to push their batch of 2,500 laws or whatever to a sunset date of 2026 and put in something more rational as a review process?
I will have to defer to colleagues on what we are hearing from UK officials. However, I think that are working on the basis that we will have to ensure that things do not fall off the earlier cliff edge rather than the later. We will always make arguments for things happening later. The Scottish ministers do not have powers over that—UK Government ministers have those powers.
I can add a little. The amendments that the Scottish Government proposed, in essence, sought to introduce a pragmatic approach. That was, first, to remove the sunset date entirely and, if that was not possible, to push it back. Critically, the proposal was to give the Scottish ministers the same powers as UK ministers to amend the sunset date, as the Scottish ministers currently do not have the power to seek an extension.
As I said, we do not know yet what the UK Government is doing. We expect to have more clarity on that during January, but you might expect, for example, that the preservation power would be used primarily within the first sunset period, and you would hope that anything that was amended, particularly stuff that is of mixed competence and with direct relevance to Scotland, would be pushed back to the 2026 sunset date. However, there is no clarification of that yet. That is what we expect, and we hope to be involved in the discussions with UK counterparts from now until January.
It is useful to know how that is working out.
I want to ask about risk. We have heard evidence, which has been repeated today, on how laws are interrelated and interlinked. With food standards, for example, the cliff edge presents the threat that we default back to a time when there was no law—in effect, a lawless time. There is a lot of risk that Governments could be challenged and disastrous situations could occur that result in Governments having to fight legal battles for a long time on particular issues. How is that risk being assessed in the Scottish Government? Are teams of officials locked up having to look at the interrelated nature of laws and where there may be legal challenge in certain areas or particular risks to the public, as with food standards? How do you start to get a grip of that?
First, you start the process. The process has started in the Government to begin the work of understanding the existing law as part of retained EU law and making an assessment of what would be required to maintain those safeguards. No doubt, a risk assessment will be made throughout that process.
Is there legal jeopardy in processes? No doubt, there will be all kinds of legal concerns, and we will just have to work our way through that methodically as well as we can, with the input of insights from UK Government departments, the UK Government and Governments elsewhere in the UK as well as those who have an oversight and scrutiny responsibility—the committee and your parliamentarian colleagues in Westminster and Cardiff—and from all the representative bodies, especially those that have the capacity. You have heard from many of those bodies. We will have to work together through this process to try to ensure that we do not miss anything in identifying the legislation and then understanding what is required to make sure that it can be retained.
It is important to put on the record again that all we can do is retain safeguards. The provisions have been drafted in such a way so that safeguards can be weakened, which is not the Scottish Government’s intention but is obviously part of the ideological drive of the UK Government. The UK Government might choose, in the process that I described in answer to a question by Sarah Boyack, to introduce another set of laws at UK level in important areas that are devolved, which may well have an impact on the law in Scotland in ways that are not in accordance with the views of the Government or the Parliament here. That is another dimension to all this. It is not simply saying that law A requires replacement by law B in the Scottish Parliament; it is that the UK Government is beginning a process in which it will potentially seek to identify law A and replace it with law B, which may have an impact on devolved competence.
What is the oversight of that? On the basis of everything that we have learned about the process thus far, what would give us any confidence that that would respect the priorities of the Government or the Parliament in Scotland? The answer to that is zero, and we need to bear that in mind as well. We are right to be concerned about things falling off the table because one has not understood their importance or their interrelationship with the operation of the courts, for example, in areas that we know are important. That is one concern. There is a risk that things are lost entirely and that we go back to areas where there was no safeguard or regulation before that provided by the European Community and then the European Union.
We then have the issue of the measures that we would have to undertake and all the work that we need to do to ensure that those are the right form and do what they are supposed to do. We then have the other part of the equation, which is what happens in the United Kingdom Parliament and what the United Kingdom Government does, and how that interacts with devolved responsibility.
Those are all known unknowns, in relation to which we can have a greater or lesser degree of confidence in how we do things. I am absolutely focused on the Scottish Government doing what it needs to do for us to remain aligned with the European Union and to retain the safeguards that we have accrued over 47 years of European Union membership. I cannot be confident about the approach that the UK Government will take, and nor can I be confident in the intergovernmental relations processes as they currently operate, or indeed in the instruments that have been created to manage aspects of policy or policy divergence, such as common frameworks. We have not even got into the operation of the United Kingdom Internal Market Act 2020 and what that would mean, when there is a read across from other legislation that may be passed. All of that makes the issues that Mr Ruskell highlights more difficult.
Last week, non-governmental organisations gave us a good example of invasive species legislation being split between UK and devolved Administrations.
My last question is about budgets. The UK Government has given you a challenging budget, and inevitably that will be putting substantial downward pressure on Government departments. What are the potential resourcing implications of the bill? You are still trying to work that out, I guess. We have heard about the impact on the programme for government and policy priorities, but what might the resourcing implications be?
At the moment, that is a known unknown. We have been going through a phase in which we have been trying to reduce the impact of the bill. We have been seeking its withdrawal and we have been seeking to make amendments that would carve out Scotland from the legislation, and that has been happening in only the last few weeks.
If one is thinking about what is coming down the tracks towards us if the UK Government disregards the Sewel convention and goes ahead, and what the resourcing implications of that are, without doubt there will be a massive and totally unnecessary amount of extra work that will fall on officials right across the Scottish Government. Will that require additional resource as we go through the process? We will have to work that out. I know that it will be a lot more work, and I would far rather that our talented, hard-working officials across Government were able to get on with what the Government has been elected to do and what we have asked them to get on with.
It is an issue that I have raised with colleagues. I was speaking with the Welsh Counsel General about it to understand what the Welsh Government is considering, and that dialogue will continue.
Are there ways in which we can burden share? That is part of the conversation that we are trying to have with the UK Government. It is the one that is initiating this, so it would be helpful if it provided us with full disclosure of all the work that it has been doing on the proposal, and it has not done so. What it has provided is partial—it is not enough.
Will you be dealing with the implications of the bill within your existing resource allocation? Will it just be part and parcel of the business of government in Scotland?
I have not had any indication that the UK Government foresees providing any additional funding for us to manage our way through the process.
You will just have to suck it up.
Is that a quote from the Secretary of State for Scotland?
No.
Well, it is something that he said in evidence about things to a committee in the House of Commons. It seems to be a common approach.
Good morning, cabinet secretary, and good morning to your officials. It seems that there is an inevitable overlap between the bill and the Scottish Government’s decision to align with EU law. When you gave evidence to us on alignment a few weeks ago, you spent a fair amount of time talking about the bill. That is not a criticism; it is just that it strikes me that there is an inevitable overlap.
I have two questions on that. The first is that I hear loud and clear your views on the bill as whole, but will you accept that one thing that the bill does is give you another tool in the box to apply your stated aim of aligning with EU law, in so far as you are able to restate or adopt EU legislation?
Sorry, was there was a second question?
Yes, but I will let you answer that one first.
10:15
Sure. It would be a very weird tool in the toolbox and it would be a very strange way of approaching alignment. We are, in large part, currently still aligned with the European Union. If there were areas where one thought that, regardless of the general principle on seeking to be largely aligned with the European Union, there was some regulation—historic or new—for which it would make sense to find a different way of doing things, there is already a reasonable and proportionate way of dealing with that, and the ability to do that is held by the Scottish Government and this Parliament. Indeed, your committee would be able to fully scrutinise any particular proposal emanating from our current toolbox to improve existing European legislation. As things stand, the UK Government is seeking to empty the entire toolbox of European legislation of 47 years and is asking us to pick up everything and put it back in the box. It is totally the wrong way round.
In answer to your question, does the bill mean that we can identify European Union legislation that has been retained, that we can seek to reintroduce legislation through the Scottish Parliament, and that we can safeguard? Yes, but that comes with the important rider that, because we are in this suboptimal operation of the devolved settlement in the UK, and a significant part of this involves overlap—to use Donald Cameron’s word—in relation to powers exercised by the UK Government, we cannot be sure that we can fully protect the European Union safeguards that we wish to. So often, the UK Government is indicating that it is not prepared to work with the Scottish Government to do what we have been elected to do.
Can the Scottish Parliament and the Scottish Government do what they can to ensure that different pieces of retained EU law remain on the Scottish statute book? We can in significant areas, but we cannot necessarily do that in all areas.
Sticking with the issue of overlap with the Scottish Government’s policy choice to align with EU law, I think you are aware that our committee has done a preliminary investigation into what that choice means for the committee. It is a huge administrative task. I completely accept that the timescale of the bill changes the dynamic, but, that aside, the scale of work required to align with EU law is immense. Given the potential for overlap, what work is being done by the Scottish Government to avoid duplication? Your colleague spoke about the civil service programme. Is there a similar programme for the decision to align with EU law, given the scope of the work involved in that? In the interests of efficiency, can the Government try to avoid duplication?
The first thing to be absolutely clear about conceptually is that we are currently effectively aligned with the European Union. That is the starting point. The effort to describe attempts to align with the European Union as being “immense” is misdirection, frankly, because we are currently aligned with the European Union. Legislation is being forced on us as a Government and as a Parliament that will make us go through an entire process to remain aligned, and that is not our choice. It is being foisted on us by the UK Government. Is that significant? Yes, and it is totally unnecessary. We do not need to do it.
If Mr Cameron’s colleagues on the committee in the House of Commons had voted with the other members on the committee last week, we would not need to have this discussion, because Scotland would not have been proceeding with this dealignment only to then have to legislate for realignment. Is that the efficient way of going about it? No, it is not. That is the approach of the UK Government.
Are we going to do everything that we possibly can to be efficient, avoid duplication and do all of those worthy things as part of the process? Yes, absolutely, but please let us not lose sight of what we are dealing with: a legislative proposal by the United Kingdom, unwanted by the Scottish Government and opposed by the Scottish Parliament, which may or may not be subject to the Sewel convention. We do not want it to happen. We are currently aligned with the European Union and we wish to remain aligned with it. We do not need to go through this unnecessary process for the next year—and longer—to do that.
This is on the UK Government, and it is for it to answer why it is going through all of this when, with some more imagination and, frankly, good will, it could have amended the bill and disapplied it to devolved areas of government. That would have been the most efficient approach to the process if the UK Government wanted to go ahead with it for England.
For the record, as you used the word “misdirection”, the committee has undertaken a huge amount of work. We have commissioned academics to look at what it will take for the committee to scrutinise the Scottish Government’s policy of alignment. I make no apology for using the word “immense” in those circumstances.
I have a supplementary question on that. Can the cabinet secretary clarify the extent to which retaining EU law means including subsequent tertiary legislation from the EU that is relevant to Scotland? That is another area that we have had difficulty understanding in our deliberations. In a round-table discussion, some of the law representatives said that it was unclear how future tertiary EU legislation might apply to case law.
I understand why witnesses—especially those with legal insight—would have questions about the impact of legal instruments. That is exactly the kind of thing that the Government is undertaking work on, to try to understand it. Elliot Robertson or Chris Nicholson can add any specifics in a moment if they would like to.
To the different legal witnesses that you have had, I say that these are all areas that we have to understand, and we will have to establish the best way of maintaining those safeguards right across the different range of legal instruments that retained EU law has an impact on.
Where different organisations have an understanding of areas of concern that may be overlooked, I take this opportunity to appeal to all those organisations to please highlight those areas not only to the committee but to the Government, so that we are not missing any of those points.
None of this would be necessary if the UK Government listened to the Scottish Government—and, indeed, the Scottish Parliament—and did not go forward with this proposal. It is a UK Government proposal, it is the UK Government that is ploughing on regardless, and it is the UK Government that is causing this problem. That is clear to anybody who is fair minded.
I have a quick supplementary question as a result of the convener’s question. Is it possible to get an update on the work that the Scottish Government has done? You last gave us evidence a few weeks ago. It would be quite helpful to get a sense of the progress that you are making or the issues that you are identifying.
I know that conversations are on-going between my officials and committee clerks on the wider question of EU alignment. I would be perfectly content for my officials to talk to the clerks about how we can build in ways for you to be updated on such questions.
As I have said before, convener, I am more than happy to come back to give evidence to the committee in person. There may be ways to do some of that updating in writing, but, if you want me to come back when there is more that I can share, I am absolutely happy to do that.
We would need a weekly update, but what I was thinking—
Welcome to the brave new world—
Seriously, what I was thinking is that it goes to the issue of stakeholders. We need to have transparency and to be able to highlight things on the web in the same way as you do, so that we are up to date. It is partly about scrutiny by us, but it is as much about other parliamentary committees and stakeholders.
I totally agree, Ms Boyack—yes.
I have a final question, as the MSP for Motherwell and Wishaw more than as the convener of the committee. You talked about how, to a certain extent, the penny has not dropped for all areas in relation to what all this means. You said that only 4 per cent of businesses feel that they fully understand the impact of the bill. I am concerned about my constituents’ understanding of the situation.
Today, we have the Scottish Society for the Prevention of Cruelty to Animals in the Parliament building as part of its campaign in relation to puppy sales, illegal importation and animal welfare around puppy farms and so on. It would be a great disappointment to those who are still able to donate to charities such as the SSPCA and children’s safety charities to find out about the level of impact on charities and their work.
Also, we know from the evidence that we received from the Society of Chief Officers of Trading Standards in Scotland that, post-Brexit, they no longer have an ability to identify what is a European import and what is a non-European import, which impacts their ability to target what they suspect might be dangerous products, including flammable materials—the list could go on, from nail gels with substances in them that are banned in the EU to disposable vapes with illegal batteries that explode. As someone who lost a young constituent—a toddler—last year to button battery ingestion, I know that this is a big problem and we want to keep such things off the shelves. Given the uncertainty about what this will all mean and what will happen if there are gaps, the potential impact could not be more serious for people.
I completely agree with you, convener. This relates to 47 years of safeguards right across the policy areas that matter to people in every single part of Scotland—indeed, in every part of the UK. This might have seemed like a dry political process until now, when we know that it is likely to go ahead. We now know, from the evidence that you have been given, that this impacts on legislation that matters, from food safety to biosecurity to safeguards around human rights and common pay. The list is very long.
10:30Most of us around the table would agree that we have safeguards and among the highest standards in the world because we were a member of the European Union, and that those standards are the best in the world. The policy of this Government is to remain aligned with those safeguards and standards, and that is exactly why we will do what we have to do. It is not the route that we would have chosen to go down, but, if we have to do it, we will do what we need to do to give people in Motherwell, Wishaw and everywhere else in Scotland the confidence that, in Scotland, we want to retain the highest level of safeguards and regulation in relation to people’s personal safety, the safety of food, the provision of services, human rights and equality, pay—I will be here for the remainder of the day if I go through a full list of all the areas where European legislation has been so important. That is what we will have to do to make sure that we protect all those safeguards and regulations, and it is what we intend to do. It would not be necessary if the UK Government did not push this legislation through or at least amended it so that it would not apply in Scotland. The UK Government has chosen not to do that.
If my history is correct, I think that one of the first consumer protection laws was around the selling of alcohol and measures of the content of what was being sold. It is interesting that weights and measures—which, of course, covers the petrol in our tanks and all sorts of things—is one of the areas that was raised as a concern by trading standards officers.
On the back of that question, you have mentioned the impact that this legislation will have on consumer and environmental protection and that the Scottish Government would need to act. Have you made an assessment from the Government end of the sheer quantity of civil service time that might be necessary in attempting to pick up the pieces?
We have not been able to quantify that yet, given that we have just gone through the phase of trying to minimise that. Now that we know what the timescales are likely to be, we will have a better understanding of what we need to do. How we can capture what that means in relation to the effort of the civil service working for the Scottish Government is another matter. However, I can say without any fear of contradiction that it will be an immense amount of time, as well as being totally unnecessary. I would far rather that the civil service was able to get on with delivering the programme for government, which is what the Scottish Government was elected to do.
Thank you. That concludes questions from the committee this morning. I thank the cabinet secretary and his officials very much for their time.
Meeting closed at 10:33.