Seòmar agus comataidhean

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 It is the Government’s view that it should be withdrawn immediately—a position that is supported by many of the witnesses from whom you have heard.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.

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.

I 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.

Is that a quote from the Secretary of State for Scotland?

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.

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.

With the greatest respect, the procedure is clear, in as much as we report to Parliament as part of our legislative process. I am back in front of the committee and we are engaged in an on-going process of seeing whether there are specific ways in which we can provide increased transparency and satisfy committee members’ demands—which I appreciate, having sat in their position doing exactly the same job in the United Kingdom Parliament.

I will definitely reflect on how we can ensure that, if there are major proposals that may have relevance to Scotland and we have decided for whatever reason that legislation is not required to be aligned, that information can be shared. Maybe that is a part of the process that our committee officials and Scottish Government colleagues need to address directly.

I am not aware of anything crossing my desk where a decision not to align through the adoption of policy or legislation has not been reported. Were there to be such a case, I would want to make sure that people were properly informed of it. I will take that question away to reflect on and will make sure that what happens is, in fact, what I believe to be current custom and practice.

I join you from Scotland House London, where I am holding meetings with the United Kingdom Government. Thank you for accommodating me by allowing me to join you remotely.

Today, we are focusing on the European Union and, in particular, on our report on how the Scottish Government is using the continuity act to protect and maintain the high standards that we enjoyed as a member state of the European Union. We are committed to remaining close to the EU and to building the strongest possible relationship between the EU and Scotland. It is important that we consider why that is.

Alignment is a point of principle and conviction. Scotland’s attachment to the European Union has been demonstrated at the ballot box time and time again. If the latest polls are to be believed, that desire to remain close to Europe is only increasing. The people of Scotland see what is at stake and understand the devastating effect that Brexit—and not just the calamitous litany of successive UK Governments—is having on the country. Above all, alignment is about protecting the wellbeing of the people of Scotland. Our standards, shared with and shaped by the EU, are among the most advanced in the world. They protect the environment, people’s working conditions, the safety and quality of the food that we eat and, as we will see, the water that we drink.

The Scottish Government’s policy of maintaining alignment with the EU where we can and where it makes sense to do so protects those standards. That can happen in several ways. The power under the continuity act that we are discussing today is only one such vehicle and only one part of the story. There are other legislative means or changes to non-legislative guidance, policy and programmes that can be made to provide for the standards that are enjoyed by people in Scotland.

I thank the committee for sharing the research that was carried out by Queen’s University Belfast in order to establish a potential baseline of EU legislation that has been passed since Scotland was forced to leave the European Union. We will carefully examine the research and the recommendations that have been made. However, I note that it is important to remember that Scotland’s approach to alignment is to align where possible and where it is in Scotland’s interests to do so. That requires careful consideration as to the extent and the method by which Scotland should align in order to achieve the outcomes that we share with the EU.

Where we align by legislation, as the committee will know, the Parliament has agreed our statement of policy to provide transparency in information in relevant policy notes and consultations. I am grateful that the civil service and parliamentary officials are discussing how that can be taken forward.

Alignment is not just about legislation and standards; it is about the vision that we share with the European Union for the continent’s future and its part in the world and on tackling the climate emergency, sustainable growth and supporting Ukraine—those are just some examples. The outcomes that our interventions support in consideration of alignment and the international dimension are an integral part of our approach to policy making.

The commitment to align is made all the more important by the devastating project that we see emerging from Westminster. We all need to weigh up what the Retained EU Law (Revocation and Reform) Bill will mean. In its current form, it is less about taking back control from Brussels and more an attempt to dismantle the high standards that Scotland and the UK have enjoyed as a result of our former membership of the European Union—[Inaudible.]

I do not want to be cheeky by just saying yes—but my answer is yes. However, I stress to Mr Golden that, if there are areas where the committee wants more transparency or more understanding of the decision-making process, I am, as I have said a number of times now, prepared to actively consider those suggestions. I also hope that those are the matters that are being discussed between our officials.

You asked for brevity, convener, so the short answer to Mr Golden’s question is yes. We have a system that works, and we are finding our ways through it as best we can with regard to being transparent, but I am open to specific ways in which that can be improved.

I draw Ms Boyack’s attention to the report as published, which partly answers that question as it gives an example of where we do not intend to align. I drew attention to that in my opening statement.

The list of EU legislation that does not apply to Scotland because of geographical proximity or because it relates to specific regulations for industries or agriculture that have no direct impact whatsoever for Scotland illustrates why having an exhaustive list of regulations that do not apply is not an effective and efficient way forward for the Government, given the transparency that we are keen to deliver. You have just heard my colleague outline that.

On the point that people want to understand which regulations pertain in Scotland, if we use the example of electronic vehicles, people know exactly what the regulations in that area are in Scotland, so I am not entirely sure how we could proceed in a way that would satisfy Ms Boyack’s concern. I underline that, if there are better ways in which the process could be explained to the committee and, through it, to the Parliament, I am very open to our officials making suggestions about that and to taking them on board and introducing them if they are practical and proportionate.

Yes. I draw the attention of members who were not present at the meeting to my previous evidence to the committee, in which I reflected on my decade-long membership of the UK Parliament European Scrutiny Committee. That committee went through hundreds if not thousands of documents a year in order to satisfy the UK Parliament that European legislative proposals had gone through the scrutiny mechanism. When I gave that evidence, I reflected on the fact that I thought that that was a profoundly unsatisfactory way of providing parliamentary oversight in a digital age, given the scale of regulatory oversight that was required.

The Scottish Government has taken the position that that very bureaucratic approach is not the best way of doing things. We know that all EU legislation is published on the EU’s websites, that the scope of EU legislation is vast, that much of it is technical and that it is not directly applicable in Scotland.

I think that everybody knows that alignment is a policy decision for ministers and not a legislative requirement, and that a commitment by the Scottish Government to producing a report that sets out whether we have aligned in each instance when the EU makes legislation was not included in the policy statement that was presented to and agreed by Parliament. Doing so would be impractical and would take significant resource, and such detail would not assist ministers in applying the discretionary alignment policy against the Scottish Government’s strategic priorities.

That said, I am sympathetic to the point that Mr Cameron made about the challenge that is provided to the committee in trying to identify particular areas in which greater scrutiny by it may be wished for. That is why I am keen that my officials and committee colleagues on the Parliament side are able to progress work to ensure that we get the right balance with the approach that we take. On the one hand, it should not be massively bureaucratic and time consuming. On the other hand, it should give enough insight and understanding beyond what the Scottish Government requires and reports to Parliament about the decisions that we are making. The fact that I am giving evidence on the question yet again underlines part of the process that we have for going through this.

It is important to stress again the wider context of the matter, given that the retained EU legislation challenge that the REUL bill presents is heading in our direction. I will be frank with the committee: we will need to think long and hard about how we are best able to understand the impacts in Scotland of historic EU legislation, which might inform the on-going process of alignment with new EU proposals. If there are specific suggestions about how we can make that process as workable as possible, I am very open to working with the committee on that. It is in all our interests that we can do that with maximum transparency and efficiency, and we will have to work hard to find the best way of doing it.

It would probably be a good idea also to reach out to colleagues in Wales and in Northern Ireland—when, we hope, a devolved Government is re-established there—so that we can share best practice as Governments and Parliaments around that added layer of challenge in relation to historic EU legislation and not just newer proposals from EU institutions, with which we are trying to remain aligned.