Seòmar agus comataidhean

Convener, forgive me if I am repeating anything that you have already heard, I do not know the point at which I was cut off.

I was reflecting on the fact that not only do common frameworks play a role in intergovernmental relations in the UK but there is also the United Kingdom Internal Market Act 2020, which was legislated subsequently and is, in many respects, trumping the common frameworks approach to things.

I was also reflecting on the fact that, before the 2020 act, I could easily have imagined a Scottish Government proposal about the introduction of minimum unit pricing for alcohol, for example, making its way through the common frameworks process. However, the UK Government would now be far more likely to invoke the 2020 act in such situations, as it is effectively doing in relation to the proposals for a deposit return scheme—by including glass and using that to block progress.

One cannot look at common frameworks in isolation from how the 2020 act can work and how the UK Government chooses to use it to block policy proposals in devolved areas.

You can see on the screen that I am joined by Chris Nicholson, Greig Walker and Elliot Robertson. They are colleagues of mine and they advise on these issues. I will make some general observations about your question, Mr Cameron, and then ask whether any of my colleagues want to add their comments.

The list of nine laws that include devolved competence that we believe might still be operable in some way are areas for which further consideration is needed. Some might be of more import and some less, but the fact that they have an impact on areas of devolved responsibility and are currently operating is beyond doubt.

We have raised concerns with the UK Government about those laws, which include energy efficiency regulations, port services regulations and other things, but it is our understanding that the schedule will not be amended prior to royal consent, which is anticipated in June.

Part of the challenge that we face is that the UK is extremely keen to pass the bill extremely quickly, notwithstanding its major change in approach, so our ability to play a significant role in the process is much diminished. We remain in close contact with the UK Government on the issue, but it is fair to say that there is no expectation of the schedule being amended prior to royal assent.

Would any of my colleagues on the call wish to add any observations with regard to the list of nine items and our ability to influence the process in that respect at Westminster?

I am indeed.

That relates to how the question of how the Scottish Government can manage the alignment process with retained EU law that we wish to see maintained on the Scottish statute books when a United Kingdom Government might not be minded to look sympathetically at Scotland remaining aligned with higher European standards in any given policy area. I have to say that, given the current approach of the UK Government, I would be very concerned that it will look to involve itself in decision making in policy areas that are devolved using the United Kingdom Internal Market Act 2020 as a mechanism to, in effect, disregard the priorities of the Scottish Government and Scottish Parliament.

There are two elements to Mark Ruskell’s question. First, what does the Scottish Government need to do to ensure that it remains aligned with European Union legislation after the passage of the bill and the new approach in it? As I reflected in my previous answer, we are currently working through that. Secondly, what is my assessment of how the United Kingdom Government will act in relation to our preferred policy priority, which is to remain aligned with European Union standards where the UK Government’s avowed position in many respects is to become non-aligned with them? It wishes to diverge from European Union standards and, as we have seen in other policy areas, would be unhappy for Scotland to do—[Inaudible.]

In correspondence, the UK Government has suggested that it has changed its approach to retained EU law from the hard cliff edge for all legislation to a more limited schedule of legislation that is to be taken off the statute book in part because of the opposition of the devolved Administrations to the original approach. The suggestion is that there has been magnanimous reflection on our persuasive interventions and that that has, in part, led to a change in UK policy. I suspect that the impending defeat in the House of Lords was much more important to the UK Government’s consideration of the matter than listening to the arguments put by the Scottish Government or Welsh Government on the issue.

I deal with the UK Government regularly, and my general impression is that the involvement of the Scottish and Welsh Governments is tokenistic and a box-ticking exercise to say that one has “consulted”. However, I see very little evidence of the UK Government acting on the concerns that are raised and its U-turn on the sunset provisions in the REUL bill was almost entirely down to the arithmetic in the House of Lords, which would have seen the Government lose votes on amendments that were supported by members of the House of Lords with whom we have been co-operating.

I will have to write to the committee on the specifics of the analysis of the nine measures. It would, however, be correct to say that the Scottish Government’s response to the schedule of legislative measures that are to be sunsetted as part of the UK Government’s reformed approach to the REUL bill has been made more on the basis of whether something pertains to a devolved area of competence rather than whether it impacts on any specific policy consideration. It is about understanding whether the legislation is in a devolved area of import and whether it is relevant to that.

Ergo, the devolved Government should explain to the UK Government that the sunsetting of legislation in that way should not go ahead until there is proper governmental and, no doubt, parliamentary understanding of the impact. I think that that goes to the nub of Mr Macpherson’s question—obviously, I welcome him to the committee, as I did Mr Bibby.

Having said that, I am keen to ensure that the committee is updated, so I undertake to update you on our best understanding of the nine specific measures as they might pertain to any specific on-going policy, or policy development, on green freeports, which Mr Macpherson asked about.

Common frameworks are a work in progress. A recent example of that is the deposit return scheme, where mechanisms have clearly not been working, which has led to a situation that acts against the devolved decision-making powers of the Scottish Parliament and means that we do not have the most constructive working relationship.

Theoretically, there is nothing standing in the way of having a constructive working relationship and using the common frameworks. However—and not to exercise the committee on an issue in which it is well versed—since the introduction of the common frameworks, we have seen the passage of the United Kingdom Internal Market Act 2020, which sometimes acts in parallel with and sometimes overrides the common frameworks in areas in which those frameworks are the only mechanism through which we might be able to progress issues. In those cases, the frameworks are trumped by the UK Government being able to make a decision and suggest that something is in the interests—as the UK Government sees it—of the UK single market. I will give the committee an example of that. You can easily imagine—[Interruption.]

There are two parts to Mr Bibby’s question. First, I make the general point that, whether it is tremendously welcome or not, I am an extremely regular attender of this committee. I give evidence to the convener and other members and, regardless of what the formal evidence session is about, there is an opportunity to ask me questions about any issue—that is a given and is on-going. That can be done in committee meetings or at portfolio question time, so I would not worry about the ability to raise issues with me.

However, I take the point about having the best formalised structure to update members in a fast-moving situation. I am very alive to that, because of my governmental responsibility and because I think about how the committee can perform its responsibilities. If there are developments between evidence sessions or programmed reporting on the Scottish Government’s approach to EU alignment or retained EU law, I am perfectly content to update the committee on that—as I did in my letter yesterday—to give context that can perhaps influence and inform members’ questions and allow them to be informed of the latest state of play.

I am sure that it has not escaped members’ notice that we are literally dealing with a situation that changes from week to week. If we can do more to keep the committed updated on progress, I am perfectly content that we write to the committee to do that.

I put on record my appreciation to members of the House of Lords, who have been working with the Scottish Government and the Welsh Government and with whom we have an extremely close working relationship, on this and other issues. On this issue in particular we have an extremely close working relationship with them. We share each other’s concerns, and a number of members of the House of Lords—those from Scotland and from Wales, in particular—have been very active in raising the concerns of both Governments, for which I am grateful. In answer to Mr Bibby’s point about whether there is more that we can do to keep the committee updated, that is a very live and on-going issue for me, and I will continue to do my best to keep the committee informed and answer its questions.

On the question of the nine items in the schedule that relate to devolved subjects and whether we are concerned about a clause or sub-clause of those nine items, as opposed to whether we have a general concern that they have devolved impacts, I think that I am right in saying that it is a general concern at this stage, because one really needs to work through all the pieces of legislation and specific provisions.

We have passed the stage of asking whether there is a devolved impact—there is. The question is whether we can gain, through looking at particular scenarios, knowledge of what would happen were the provisions to fall off the statute book. Civil service colleagues are trying to work through that to understand what mitigation might be required. I am happy to update the committee when we get to the stage of understanding that, so that members are aware of that concern, too.

There is no comparison with the constructive working relationship that I and the Welsh Counsel General and Minister for the Constitution, Mick Antoniw, have with a number of members of the House of Lords. From memory, we have had perhaps three meetings on the issues during the progress of the bill through Westminster. I have not had a single meeting with the UK minister in the House of Lords.

I am not sure whether committee members are aware of the sarcastic quip from the dispatch box about the likely reaction of the Scottish Government. I paraphrase, but it was something along the lines of, “Well, you would expect that wouldn’t you?” It was certainly not informed by any communication with me. We have not met to discuss any of the issues. As with many other matters on which the UK Government is proceeding with legislation or policy that relates directly to devolved competence, unfortunately, there is a gulf between the rhetoric and the reality when it comes to co-operation and close working relations, which are illusory.

I think that I am correct in saying that I will be giving evidence to the committee on 29 June on the operation of devolution post-Brexit, and we will discuss at some length at that meeting issues such as intergovernmental relations, the codification of expected norms of behaviour between Governments, the sovereignty of Westminster, the Sewel convention, delegated powers for UK ministers to legislate in devolved competence and, indeed, the UK internal market. However, it is fair to say that this is an evolving and moving situation.

I have to say, as somebody who thought that the devolution settlement was exactly that—settled—it clearly is not, and a variety of mechanisms are being used to row back on devolution.