Seòmar agus comataidhean

Speaking as a parliamentarian as much as a Government minister, I have to say that I hope not. I have repeatedly told the committee that I am happy to come back as often as you want me to—with five visits, I think that I qualify for a frequent flyer pass—and I would also hope that UK Government ministers would be happy to give evidence, as I have done to House of Lords committees in great detail and at great length.

It is essential that we have scrutiny and that we can shine a light on things, because that ensures that things work well. Scrutiny keeps people like me on my toes and lets civil servants know that certain questions are likely to be asked of them. Those are all good things, and we should not be scared of them. We might not always have the answers, but if we do not, that probably means that we should get them.

The Scottish Parliament’s strong committee system was set up specifically to make Governments in Scotland work in a better and different way. I am committed to making the system work, and I am moving forward in that collegial fashion. The suggestions that you make and the questions that you ask along the way really have an impact on me and those who advise me, and that is exactly what should happen.

This is one of the most problematic areas of the whole issue. UK ministers are now in a position to decide how public money—money that you, I and our constituents have paid in taxation—should be spent in Scotland. UK ministers have not been elected for that purpose, but they are now going to make decisions on the basis of their priorities, which they were not elected to do in Scotland. At the heart of it, there is democratic deficit and a democratic problem with all of that. As I mentioned in my opening remarks, it cuts across a range of devolved subjects including culture, sport, education, economic development and infrastructure. It bypasses you and your colleagues, and that is profoundly wrong.

UK ministers have not wasted any time in using their new powers in areas where you should be in charge, not them, and the spending is unco-ordinated. It is not co-ordinated properly with the Scottish Government, and it is not subject to your appropriate scrutiny. For example, more than £152 million of funding from the community renewal fund plus the initial rounds of the levelling-up and community ownership funds has now been awarded to projects in Scotland. It almost goes without saying that funding for worthwhile projects is a welcome thing. Who would gainsay that? However, that is not at issue. The issue is how we manage resources and priorities and what the democratic mechanisms are for doing so.

I will give you two concrete examples. First, there is the multiply programme, which involves a £560 million numeracy programme—it is not small. The multiply fund will be top-sliced from the UK shared prosperity fund and delivered by the UK Department for Work and Pensions across the whole of the UK, despite devolution being wholly involved. No engagement took place with the Scottish Government prior to the announcement, and it means that there is likely to be duplication—and waste—with the Scottish Government’s adult learning strategy, which is to be published in the spring.

My second example relates to the shared prosperity fund. The UK Government has shared some thinking about the role of the Scottish Government in the governance and operations of the shared prosperity fund that would make it a subordinate partner. The Governments would not be equals and there would not be co-decision. I say again that this is a devolved area and it is the Scottish Parliament and the Scottish Government that should be responsible.

Nevertheless, the UK Government is proceeding. Three options have been proposed in Whitehall, none of which has yet been cleared with Government ministers, and each of them has an ever-decreasing role for the Scottish Government. All the options state that UK Government ministers will have the final say, and a ministerial board has been described with the role of ministers from devolved Governments being to act in an advisory capacity only.

The Scottish Government has seen the initial paper on the indicative priorities of the UK shared prosperity fund and it raises significant questions about the strategic nature of potential projects. It only highlights our concerns regarding distant and unelected decision making for those issues. That is not just the view of the Scottish Government or the majority of members of the Scottish Parliament. Recently, the Scottish Council for Voluntary Organisations, which is the umbrella organisation for the country’s voluntary organisations, highlighted its members’ view that funding priorities should be set at a devolved level in order to tackle inequalities, enhance human rights and promote wellbeing

“by linking outcomes with Scotland’s National Performance Framework and other relevant policy frameworks”.

The SCVO has raised concerns about the shared prosperity fund being managed centrally by the UK Government, which echo concerns that the Scottish Government and members of the Scottish Parliament have had since the beginning of the process. Things are beginning to happen, and what we are seeing is indeed what was foretold.

I am giving my officials a heads-up that I am about to pass the ball to them with regard to the latest technical stage that things have got to.

I think that I shared with the committee at a previous evidence session that I have had productive and positive discussions with Chloe Smith, who was then a Cabinet Office minister, to try to get the framework process out of the mud in which it had managed to get stuck. The reason for that was that, unless we made progress on understanding what the frameworks were there to do, they were going to fail. We worked quite hard on that in good faith and managed to get things to a place where, through assurances that were given by the UK Government that mirrored ones that had previously been given at the dispatch box in the House of Lords, we could proceed with the frameworks. As you know, the frameworks allow us, in certain circumstances, to protect the position of devolved decision making, although only with the say-so of UK Government ministers.

We are in the process of going through that procedure, which is why I think that it will help if my colleagues explain where we have got to, what we know is working as it should be and how, as we hope, it all might work but why it might not. What lies at the heart of this—and what I want to leave the committee with—is that, although we might be really fortunate and find a sympathetic minister in, say, the Department for Environment, Food and Rural Affairs or some other UK ministry who says, “Okay, we see why the Scottish Government and Parliament want to do this. As minister with responsibility in the UK Government, I will be gracious enough to allow the people who are elected to do these things to get on and do them”, we might well find others who are less empathetic, sympathetic or understanding. What should concern all of us as democrats and elected parliamentarians is that this power has been taken—I was going to say that we have offloaded it, but that makes it sound as if it was voluntary when it has actually been done to us—and someone else is sitting in judgment on the matter. That is where things currently are—on the secretary of state’s desk.

I will ask Donald Cameron and Euan Page to jump in here and give you the latest on where we are.

It is likely that you will touch on a range of issues in relation to frameworks, because they impact in significant ways on the internal market act. The situation is moving and evolving, but I will update the committee on where we are at present.

We are moving forward to formal scrutiny of frameworks in all four legislatures across the UK. Prior to publication, officials have been sharing clear provisional frameworks with parliamentary officials. We saw some initial scrutiny of frameworks in the spring of last year, and some frameworks have been put forward for scrutiny in recent weeks. For example, the Cabinet Secretary for Health and Social Care gave evidence last week on frameworks in his policy area.

A number of factors have impacted on the development of common frameworks—not least the pandemic, as officials have been called away to other tasks. The biggest single impact has been from the UK Government’s decision to introduce the internal market act, which raised fundamental questions about the purpose or viability of the common frameworks. It has taken a considerable time to work through the act’s impact and develop mitigations.

With regard to stakeholders in the frameworks process, which includes the committee and everybody else who has a locus in the matter, there was a multiphase process for the development of the frameworks, and extensive stakeholder engagement. It has been encouraging to note from earlier witnesses in the inquiry the level of stakeholder interest in common frameworks and a clear consensus that frameworks offer a much better model than the internal market act does for co-operation on managing policy divergence. Stakeholders’ views on the efficacy of the frameworks are of central importance to the Government—and, no doubt, to the committee as it takes evidence on how things work.

Of course, there is also the committee’s on-going scrutiny. As I said in my opening statement, this is the fourth or fifth time that I have been with you, and I am happy to come back to update you, as are my officials, including my colleagues who were introduced at the start of the meeting, who do a lot of the technical work on the frameworks. We are happy to keep you apprised of how things are working or not working.

We are at the stage of seeing whether the UK Government will recognise the workings of the framework, which should allow for the divergence of policy across the UK. Either the UK Government will allow that to work or it will not. I have examples that I can go into. I do not want to pre-judge any questions that the committee has, but there are current issues in respect of which we will be able to see whether the UK Government is minded to allow us to get on with what we have been elected to do.

Members will be aware that the United Kingdom is actively considering whether it should use what are known as article 16 powers in relation to the Northern Ireland protocol. That would, in effect, be the UK unilaterally saying that it does not think that the agreements that it reached and signed with the European Union are fit for purpose. Given what has been emanating from discussions with the European Union in recent weeks, one would have reason to believe that Lord Frost and his colleagues are actively considering pursuing that course of action: unilaterally repudiating an agreement that I think I am right in saying was described as “oven ready” and a huge negotiating success.

There will be consequences if the UK proceeds with that approach. Brexit has already caused economic damage. Members are well aware of the estimates that have been made by neutral organisations, which have assessed the quantum of damage from Brexit as being at least twice that caused by the coronavirus pandemic. UK exports to the world’s biggest single market are down by more than 15 per cent. The Scottish Government’s view is that anything that leads to yet further worsening of relations with the European Union and of the impact on our economy would be a hugely retrograde step. That is my first observation.

My second observation is that for the UK Government to be considering doing such a thing without any active or serious consultation with the devolved Administrations of the United Kingdom is yet another sad example of how taking back control from Brussels also means taking back control from Edinburgh, Cardiff and Belfast. That is a retrograde step.

We have tried to flag that up with Lord Frost, as have a great many people in Northern Ireland, because the matter relates specifically to Northern Ireland. The danger is that turning away from the agreement that was reached might lead to a worsening of community relations in Northern Ireland—that is a euphemism for the potential return of violence. That is not in anyone’s interests, and all of us should ensure that that does not happen.

In answer to your question, Dr Allan, we are very concerned about the UK’s aggressive approach to diplomacy. We are very disappointed that it has taken that approach without any active consultation with devolved Governments across the UK. I, and colleagues in other devolved Administrations, have called for discussion to take place before any precipitous decisions are made on article 16. I very much hope that the UK Government will step back from its threatening position, which also undermines the belief of European Union decision makers in the UK as a trusted partner that will deliver on what it agrees. That is to our detriment, notwithstanding the fact that we did not agree to Brexit and do not wish the Northern Ireland protocol to be treated as it is being treated by the UK Government. We are caught up in the backdraft of all that.

Do we know whether the UK Government will proceed with article 16 and repudiate the Northern Ireland protocol? No, we do not. It might have been a negotiating tactic to try to get some concessions from the European institutions—which, I might add, have signalled very loudly that they are willing and open to making improvements to arrangements where they can be made.

I simply leave with you the thought that, should the UK Government go ahead in using the article 16 powers, it is widely expected that the European Union will consider countermeasures to the UK’s aggressive approach. That means that there is the potential for tariffs to be imposed by the European Union on products from Scotland. That is not expected to happen immediately, given the time factors that have been built into the process, but it is entirely possible that, should the UK Government continue with its aggressive approach towards the European Union, we, our businesses and our exporters might be caught up in the consequences.

I therefore use this platform to appeal to everybody to keep cool heads. Let us try to maintain good relations with the biggest single market in the world and to improve, not worsen, the relationships between the UK Government and the European Union. The same point has been underlined by a great many people in Northern Ireland, and I hope that the UK Government listens to them, too.

I hope that I am not opening a can of worms, but I do not think that the Scottish Government liaised with Dundee City Council about regulations pertaining to water management in the Mediterranean.

I understand the tensions around the wish to have maximum transparency and understand every single proposal. As I said at the start, I have lived in that world. I have sat on your side of the fence and, week in and week out, gone through piles of things that are largely not relevant or interesting. I understand that there is still a wish to say, “I would like to see what is happening, if I may, please, thank you very much.” I get that. However, I am sure that members appreciate the tension between that wish and just saying, “Listen, there is a whole range of things on which we don’t need to consult, because they have absolutely nothing to do with us.”

I see that my colleague’s hand is raised. We are going to get some examples of regulations that have nothing to do with us.

That is a very important question, given that we are at the start of the process of how we manage our way through this situation. I must stress at the outset that I do not want that to go on as long as it might, but, with a fair wind, some good fortune, the acceptance that the people of Scotland have voted in a democratic election that they should be able to determine their relationship with the European Union within this parliamentary session and a referendum then taking place, we will see ourselves on a glide path to rejoining the European Union in the short term. That is my and the Scottish Government’s preferred outcome, and it is the preferred outcome of the majority of MSPs.

In the meantime, we have to find the optimal way of managing the alignment process with the European Union. There are a range of different ways in which the Scottish Government is best able to incorporate, match or exceed European Union standards. We should also bear in mind that, when we begin re-accession discussions with the EU after a yes vote in a referendum, we will want Scottish membership of the European Union to happen as quickly as possible and with the greatest possible ease. As we know, fulfilling the acquis communautaire is a key provision of EU membership. Working back from that position, we need to understand that we are not in the European Union and that we are therefore a third country, so it is not a simple matter of saying that every single thing that emanates from European institutions can be instantly transposed in exactly the same way as it was when we were in the European Union.

I and my officials are very seized of that, not just because of the work that the Scottish Government needs to do but because of the work that the committee does. I know that the committee wants to be kept informed of how the Scottish Government is dealing with regulations, directives and so on, but—this is very important—there are also stakeholders who have a direct or indirect interest and can provide advice. Indeed, the committee has been hearing from some of those stakeholders, and I have read the evidence that has been provided to it.

There are a range of ways in which the Scottish Government signals that it is consulting on measures. I am satisfied that, with the way in which that approach is working so far in relation to any measures being considered for alignment, stakeholders are being properly informed about proposals and people are having the opportunity to take part in consultations, give advice or share their thoughts. However, as I said at the start of the session, we are in an emerging situation with regard to making the system work. It is not a finished product, and I am keen for my officials to work with, for example, the clerks of this committee on the optimal way of ensuring that you—and, by extension, others, by which I mean stakeholders—are best informed about measures that are coming forward.

You could take a top-line strategic approach to the European institutions and look at, for example, the European Commission’s annual reports and plans for the years ahead and the priorities of the incoming presidencies of the European Union. It would be very helpful if the Scottish Government could signal what we expect to come through those processes and how we intend to remain aligned with the proposals and priorities. There are also specific measures that can be taken. I do not want to speak too long in answering one question from Ms Boyack, but I will just say that I have a list of particular measures that have gone through the internal process of how we best manage to retain alignment. If anyone is interested in hearing a little bit more about that, I would be happy to share it.

We need to do more than reflect on that. We need to see whether there is anything about the way in which we are working that might be considered by some people to be less engaging and involving. If there are lessons that we should take to heart from that process about how we do things—for example, lessons that we should do things differently, do more or do less—I am very open to learning them.

Much of the work of the EU and its institutions is not newsworthy in the sense of providing headlines from day to day, but that is because the iterative process that the European institutions use is such that it brings member states and the different parts of civic life along with it. The loss of our participation in that process is one of the huge tragedies of our leaving the EU. In the meantime, we should do what we can; learn best practice; and get back into the European Union as a member state as quickly as possible—I will not sign you up to that, Mr Golden.

First, the Scottish Government’s position is that we wish to remain aligned with the European Union, but I appreciate that you are drawing attention to those cases in which there has been a degree of divergence. Perhaps my colleagues might want to flag up specific examples, but I can give plenty of examples of areas in which we have wanted to retain enhanced standards. Divergence in that sense does not necessarily mean that one’s decision will result in a lessening of standards. There have been specific and often very technical cases in which we have wanted to ensure that we have even higher standards.

Nevertheless, I get the point at issue: how can one be fully aware of all of this? Clerks and colleagues have had discussions to explore ways in which that can happen, and I am open to understanding what the best way of taking that forward might be. Ms Boyack has suggested one way. On the other hand, one could have a very paper-based system—and then one would realise that such a system would take up all of one’s time and would not help with having a laser-like focus on the areas that the committee would probably be most interested in. I want to be helpful in that respect, so we are looking at different ways of doing that.

Do colleagues want to add anything?

It is probably appropriate to defer to my colleague on the legal aspects of that, but it is not too difficult to get one’s head around the fact that there are different ways in which Government can regulate and retain alignment, or the speed and efficiency with which it can do that. It is a case of trying to work out which is the best of the clubs in the bag—I use that metaphor for a second time, although I am not a good golfer—to make sure that we are incorporating or retaining alignment within the legislation in Scotland. Perhaps my legal colleague can fill in some of the gaps.