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First, I would not want the impression to be created that there is not a general position of wishing to remain aligned with the policy and initiatives of the European Union. That is the case. I could draw your attention to a whole series of examples from regulations on single-use plastics to food and feed safety, and I could go on. You have picked up on a particular issue that relates to building regulations and, I think, electric vehicle charging measures.

I signal to colleagues who are on the line that they may add anything that they wish on the subject after I have said what I have to say.

I will briefly address the specific point on the reference to the use of electric vehicle infrastructure regulations in the previous annual report. The Scottish Government did not consider using the powers for the relevant regulation over the period of that report. Consideration was made of using the power in relation to its potential application during the reporting year that has now ended. The implications of measures that are proposed in the EU legislation still need to be carefully considered in terms of the outcomes that they will support.

I think that we all understand that the pivot towards electric vehicles is very much an on-going situation. In this case, it was important to consider the evidence that was held in reaching a decision on our approach to EV charging, and aligning with the regulation in question would not have supported the outcome that is sought in the transposition timescale. We may seek to align at a later date and we are committed to keeping the matter under review.

As I have said to the committee a number of times, we are committed to remaining aligned in the broadest of senses, but specific measures will come forward that, for a number of technical reasons, may not need to be introduced in their entirety or at this time. We are not following a blanket alignment policy with 100 per cent transposition of everything, not least because many measures do not impact on Scotland in any way whatsoever.

That is my answer to Mr Cameron’s question. Are there any colleagues on the call who would like to add any technical insight into the particular regulation that Mr Cameron asked about?

Thank you very much, convener, and a very good morning to colleagues on the committee. We are here today to discuss the Scottish Government’s legislative consent memorandum on the UK Government’s Northern Ireland Protocol Bill. The committee is very well aware of all the reasons why colleagues and I have serious misgivings about the bill, but let me begin by acknowledging that talks between the UK and the EU on the protocol have resumed in recent weeks—they are the first substantive structured talks since the early part of 2022—and that there appears to be a shift in tone.

It was certainly striking to hear the Northern Ireland minister and former European research group chair, Steve Baker MP, publicly apologise to Ireland and the EU for behaviour during Brexit negotiations that had not inspired trust. It is my sincere hope that the UK Government will seize this moment to re-engage in good faith with our European partners, build more positive momentum and seek sustainable shared solutions, but two important things must happen to make that possible. First, the chaos engulfing Westminster needs to be brought to an end. Secondly, the UK Government must end its irresponsible threats to override the protocol unilaterally and withdraw the bill without delay.

As the committee will be aware, shortly after the bill’s introduction in June, the Scottish Parliament held a debate and passed a motion condemning the bill as “fundamentally unacceptable”. Not a single member of the Scottish Parliament voted against that. Since then, the legislation has passed through the House of Commons unamended and is now progressing through the House of Lords. The bill has been met with deep concern by legal experts and our allies around the world, yet not a single Conservative member of Parliament voted against it. The UK Government has acknowledged that the bill engages the legislative consent process and has sought the consent of the Scottish Parliament. As the memorandum sets out, the Scottish Government does not recommend consent for the bill, for reasons of its potential illegality and its impact on Scottish interests.

On the question of legality, the bill will make UK domestic law incompatible with the UK’s international obligations under the protocol. To do so may put the UK in breach of international law. Although that is a question ultimately for the courts, domestic or international, many prominent legal commentators—you have heard from some this morning—and European leaders have already robustly challenged the UK Government’s legal position. The bill also threatens profound consequences for Scotland. It has heightened tensions in a dispute that has already badly damaged UK-EU relations and stalled all progress on the TCA, with direct implications for Scottish priorities, including horizon Europe association, energy trading and re-establishing market access for key exports.

As the memorandum sets out, if the bill becomes law, the consequences of the escalation could be economically disastrous for people in Scotland. It could lead to tariffs being imposed and even to the trade and co-operation agreement being suspended. That the UK Government is willing to risk a trade war in the middle of a cost of living crisis, after all the ideologically driven economic chaos that it has already inflicted on us all, is unconscionable. For those reasons, the Scottish Government cannot recommend consent for the bill.

On my last trip to Brussels, I met the UK ambassador to the EU and European partners and emphasised that a negotiated solution is in everybody’s interests. It is important to maintain constructive relations, and that is what the Scottish Government will continue to seek to do. Indeed, that is why I wrote to the Foreign Secretary, James Cleverly, on 30 September requesting urgent bilateral and four-nations meetings on UK-EU relations. Mr Cleverly responded this week, committing to a four-nations meeting before the TCA partnership council next meets. However, no date has been fixed and in general there has been a frustrating lack of ministerial-level engagement in this space.

I hope that this introduction has been helpful and I welcome any questions, convener.

When I have discussed this issue with colleagues in Wales, it has been one of the areas of great concern that we share because of the direct implications of what is happening as a result of the very confrontational course that the UK Government is taking. It is no way to run international relations; it is no way to deal with an important trading partner in Ireland and the wider EU in general. What is happening in relation specifically to Henry VIII powers—the ability of the UK Government to pass legislation that allows it to make subsequent legislative changes that are not subject to parliamentary scrutiny and oversight at Westminster, let alone here in the Scottish Parliament, and potentially in devolved areas—should concern us all.

The last part—and this is a concern in Wales, as it is in Scotland—is that when we, as Parliaments and Governments, say that we have a profound problem with a piece of legislation and we use the mechanisms that are in place to underline that, up until now and repeatedly we have seen the UK Government override it. Yes, the concerns are shared. I would hope that there is understanding across the committee, given that no MSP objected to the concerns that were expressed in the motion that the Scottish Parliament passed, and that we are of one mind, both as a Parliament and as a Government, in saying to the UK Government that it really needs to think again about this. Not only is it of profound importance to Northern Ireland, it matters to devolution and intergovernmental relations in the UK, and of course it matters that we do not escalate things with the EU such that we face a potential trade war. It is in nobody’s interest.

There is the direct question, but there is also the implied suggestion that there should, with a change of tone, perhaps also be a change of approach more generally that might be able to secure an agreed solution between the UK and the EU. If that is the thinking in Downing Street, I would very much welcome it, but I think that Donald Cameron would agree with me that we need more than a change in tone. These are very technical questions, but just to underline his point, which I agree with, I note that in the conversations that I had with UK and European partners, which I alluded to in my opening statement, there was a clear acknowledgement that there is a potential for what is described in the jargon as a landing zone for an agreement. All of that underlines the point to me that, if that is the preferred trajectory, that is indeed where we should be looking, rather than passing legislation, which as we know is deeply troubling for a number of reasons, especially given where things are in Northern Ireland and the sensitivities around that.

I think that everybody understands that no Executive has been formed in Northern Ireland and that, unless there is progress this week, that there will be elections again in Northern Ireland. It is worth putting on record if it has not been put on record thus far today, that in the last Northern Irish elections, a majority of members were elected in support of the arrangements, and it seems to me that what we need now is more than just a change in tone. We need a change in substance. We need to break the logjam in all of this, which is why I think that the UK Government should not proceed with the confrontational course of action that it is proposing to take with this legislation but should do what the Scottish Parliament voted for—or certainly did not vote against—and withdraw the bill and make progress on a diplomatic and technical level to reach a solution that I would hope is to everybody’s benefit. A change of tone, yes, but let us see a change in substance too.

Donald Cameron asked whether there were areas where one could see room for technical solutions. The answer is yes, and that has been signalled by Commissioner Šefcovic and proposals have been made by the EU side. It would be good to see those from the UK side, but it certainly will not be helped by legislation that legal observers with much greater legal training than I have—I am sure that Donald Cameron, as an advocate, knows many of them—believe is in breach of international law. That is very serious, if that is the case, and is yet another reason why the UK Government should not be proceeding with the legislation.

Indeed. What is happening with these so-called Henry VIII powers has been described by the Hansard Society as “breathtaking” in scope. For those who are unaware of what Henry VIII powers are, it is very important that we do not hide behind terminology that sounds fluffy and historic and archaic. What does it mean? It is exactly as Sarah Boyack suggests. It is in effect taking away the power of Parliament to have oversight and scrutiny, but at the same time it drives a coach and horses through the devolution settlement because it confers on the UK Government powers to legislate in any areas that it so chooses and is the end of us as parliamentarians, elected in this Parliament to hold the Scottish Government to account and me as a minister of the Scottish Government to be answerable to you as a committee and Parliament more generally. I would be saying to you that in future evidence sessions you really need to speak to UK Government ministers who are legislating in this area.

Work has been done in the House of Lords. I am a critic generally of the House of Lords as an unelected institution but, obviously, a great many members of the House of Lords have great minds and legal experience, and its European committees in particular have an incredibly high standing. I know that as somebody who sat on the European Scrutiny Committee of the House of Commons for a decade. What has been said by the House of Lords committees on the point that Sarah Boyack raises should make alarm bells ring everywhere. I do not know whether this is on the record, convener, but it is worth making sure that it is—the chair of the House of Commons Justice Committee, Sir Robert Neill, observed, somewhat colourfully:

“There are Henry VIII powers and Henry VIII powers; and this is Henry VIII, the six wives, Cardinal Wolsey and Thomas Cromwell all thrown in together.”

That is amusing in making the point that we are talking about something that is very significant, but let us understand what the significance of it is. Again to pray in aid the House of Lords, I note that its Delegated Powers and Regulatory Reform Committee made the following assessment in June and I quote from it:

“The Northern Ireland Protocol Bill is a skeleton bill that confers on Ministers a licence to legislate in the widest possible terms. The Bill represents as stark a transfer of power from Parliament to the Executive”—

and we are talking about the UK Parliament and the UK Executive—

“as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament, the EU and the Government’s international obligations.”

One could add that the result of using this power is that it totally undermines and subverts the devolution settlement, so we should be very concerned about all of this, which is another reason why we should not be giving it legislative consent to proceed.

I think that the reputational damage is profound. One of the common narratives that one hears when one hears people internationally talk about the UK is about the mother of Parliaments, the rule of law and so on, and how all those things are positive attributes of the UK. That is being called into question, and not just—I say “just”—by our colleagues across the EU. That is also the position of the United States of America, which is one of our most important trading partners. We have not gone into this yet, but the idea that there will be a trade agreement between the UK and the United States in the present context is unimaginable. It will simply not happen and the US has said so in terms. You are absolutely right—the issue is a very broadly damaging one from the point of view of reputation.

There is another aspect to this that may develop in time. I reflect on the fact that there was an election in Northern Ireland at which people voted for something to happen, just as people voted in last year’s Scottish Parliament election for something to happen. There will potentially be another election in Northern Ireland. Were it to be the case that, yet again, a majority of parliamentarians in Northern Ireland were to be elected with the view that they were in favour of the protocol arrangements and were not in favour of the UK Government’s approach, and for that to be disregarded again, how much more would it take for that to be noticed internationally?

I do not think that it would take a lot more, because what we are seeing is a UK Government that is disregarding election results in Northern Ireland and in Scotland, and which is potentially about to do so again in Northern Ireland. Therefore, the UK Government has a reputational problem as regards its being prepared to “disapply” the protocol, which is the way that the UK Government likes to put it. Imagine having that as your defence in a court of law: “I have decided to unilaterally disapply the law as it affects me. Please rule in my favour.” It is ludicrous. It is a unilateral breaking of international undertakings when there are other routes to remedy.

There are ways in which the UK Government could act in line with its international agreements in an effort to solve the problems that it believes to be in need of resolution. I agree that there is a reputational issue when it comes to international law, but I think that there is also a parallel issue in relation to the UK Government disregarding democracy, which I think will undermine us reputationally in the months to come.

Indeed.

Notwithstanding political differences, there is a new Prime Minister and there is a new Cabinet, or a new old Cabinet. We have seen U-turns on major economic policy, thank goodness, from the short-lived Truss premiership and we have seen U-turns on fracking in England. Who knows—maybe we might see the opportunity for some rethinking about Northern Ireland.

I have known Chris Heaton-Harris for a long time from when he was in the European Parliament and at Westminster when I was there. I very much hope that he will take the opportunity to try to find ways to get beyond the impasse. I acknowledge that it is not simple for a Government that has frankly dug itself into a hole because of the internal contradictions of its position. We all remember the former Prime Minister, Boris Johnson, saying one thing to business in Northern Ireland, telling everybody that the Brexit arrangements were fully baked or whatever it was—“half-baked” is probably more apposite—but one thing was being said to one key interest group at the same time as something else was being said to others, and those positions cannot be reconciled. There is an inherent internal contradiction in the UK Government’s position, but it should not be in anybody’s interests that any Government, whether at a devolved level or a UK level, is prepared to breach international law in clear sight, and that is what we are hearing from legal experts would be the case.

I think that it was Brandon Lewis, as Northern Ireland secretary, who seemed to suggest from the despatch box that breaking international law in a “limited way”—in his words—was somehow okay. It is not okay. I know that we are talking about areas that impact devolved decision-making powers in Scotland and areas of devolved policy. It will impact Scotland, not least because it is we who will be having to build border infrastructure in Scotland as a result of all this. We have little clarity yet about to the full scope of all this. We have a big direct interest in this in Scotland, but we have a wider interest, too. Northern Ireland is one of our closest neighbours. We are literally kith and kin. For all those people of all political traditions who worked so hard to find the hard-won solution to end the troubles in Northern Ireland to see it endangered is something that should concern us all. Having said that, but also reflecting on our collective position as a Parliament, I note that we have debated this and taken a view. Not a single MSP and no member of the committee has objected to that position or disagreed with a motion that described it as being

“fundamentally unacceptable for the UK Government to unilaterally disapply key parts of the EU-UK Withdrawal Agreement”.

I could go on, but we are agreed. There is no disagreement. We believe this to be fundamentally unacceptable, and what is within our power is that we do not give the legislation legislative consent. I very much welcome Sarah Boyack’s reference to David Lammy but also her underscoring of how important this is. It behoves all of us in all of our parties to have a united front on this and to speak with one loud and clear voice. There are a lot of issues at stake here, all of which matter, some of them more directly to us but also in general terms to us as supporters, as we all are, of peace and reconciliation in Northern Ireland. We cannot allow this to head in the direction of worsening relations between the UK and the European Union and the potential for a trade conflict. Also there is the running roughshod over the democratically elected majority view of parliamentarians in Northern Ireland, who want this arrangement to carry on and are not in favour of the UK Government’s approach.

In general terms—my colleagues at official level might have some more specific reflections to make—the UK Government’s confrontational approach has undermined relations between the UK and the European Union to the point that there is not, broadly speaking, a fully constructive working relationship between the UK and the EU.

One of the damaging consequences of that course of action, which we must help the UK Government to understand, is that a series of other things are not proceeding under normalised or improved relations in a post-Brexit environment. There is a chilling effect on European institutions, and that is not a good thing. There is neither the bandwidth nor the willingness to have a fully mutually respectful relationship when the EU looks at the UK and observes that it is a partner that agrees something one year and then walks away from it the next year or the year after. Why would the EU seek other forms of agreement when it does not even know whether the UK will stick with the existing agreement? It is profoundly problematic. It is not a position that any rational, sensible actor wants to be in.

In the short period of opportunity that exists, I encourage the UK Government to think about pressing reset buttons. In particular, I encourage it to press a reset button on the Northern Ireland protocol, because it is in everybody’s interests that we support peace and reconciliation in Northern Ireland, that we support the solution that has been found that, in effect, allows Northern Ireland to remain within the European single market, and that manageable and proportionate border arrangements can be found for Northern Ireland and Great Britain.

I would always want to be very mindful of that and to try to ensure that the situation that has been described is not the case, because wellbeing matters. At the same time, there is a general recognition that we find ourselves in a very difficult budgetary situation, with the Deputy First Minister currently going through an emergency budget process. I apologise to the committee because, although I am sure that members appreciate that we are in a live budgetary process, they probably want to probe and to ask about certain things so that they can better understand them, but part of the process has, unfortunately, not been decided and is subject to consideration at present. Notwithstanding that, in my department and in departments across the Government, when we make very difficult decisions—perhaps, sometimes, impossible decisions—we try, at all times, to minimise the impact that they will have on people.

As I have mentioned in relation to galleries and museums, we know about the mental health and other health benefits that culture can offer. If people are still able to access—as they are—such facilities free of charge, that is a reflection of the fact that it is an important priority for us. That is a wellbeing priority as well as a statement of the importance of culture.

My additional point about such facilities being warm spaces is also a reflection of the fact that there is a wellbeing dimension to it. Let us be frank: there are people who are making choices, literally, between heating and eating. If there are places that people can visit where it is warm and where one can have great enjoyment in appreciating art and artefacts and the living culture that we see in our museums and galleries and elsewhere, that in itself is a reflection of the importance of wellbeing. However, I appreciate that, when there is uncertainty about the continuity of funding for different projects that provide positive support for initiatives that have a wellbeing dimension, that is a challenge for those who are impacted or who fear that they might be impacted.

All that I can say is that we are taking that seriously as we go through the emergency budget process. As you will appreciate, I will be arguing—I am arguing—as strongly as I can for the maintenance of the maximum possible budget for culture.