Seòmar agus comataidhean

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.

We are trying to maintain continuity in how we do things. Our practice is evolving as we try to find a way to use the new legislation and to work with the new reality of the UK as a third state. We are applying our administrative approaches to ensure that we are delivering on the alignment target. We are using the full panoply of measures, but we did that previously; it is not new.

Understood.

Thank you very much, convener.

We are focusing today on the European Union, particularly alignment with EU laws and standards, but I want first to highlight the background to all this. The people of Scotland have made it clear on a number of occasions, not least in the Brexit referendum, that Scotland should continue to be part of the EU, and the Scottish Government believes that the people of Scotland should have the right to choose their future, with Scotland an independent nation and an EU member state in its own right. We will continue to advocate for Scotland’s place in Europe and the world.

In the meantime, we are committed to remaining close to the European Union and to building the strongest possible relationship between the EU and Scotland. We have demonstrated that in many ways, from our policy choices to our investment in our enhanced overseas presence and our commitment to giving the warmest of welcomes to EU nationals. That approach lies behind our policy of maintaining alignment with the EU, where appropriate, in a manner that contributes towards maintaining and advancing standards across a range of policy areas. By doing so, we will protect the health and wellbeing of people in Scotland and maintain Scotland’s reputation for being inclusive and outward facing. By protecting and continuing to advance the high standards that are enjoyed in Scotland, we will ease the future process of Scotland’s return to the European Union.

We are doing that in a range of ways. In our policies, our grant giving, our guidance and our practice, we will take as the default the measures adopted by the European Union. We support EU standards and hope to apply them here soon.

The same will apply with relevant legislation, which is the issue lying at the heart of this morning’s session. For nearly 50 years, Scotland formed an integral part of the European Union, with EU law being directly applied or with our being obliged to implement it in Scots law through powers granted under the European Communities Act 1972. Now that the UK has left the European Union, ministers have replaced that obligation with a policy of aligning devolved law with the EU, where appropriate—in other words, where it is possible and in Scotland’s interests to do so.

That approach acknowledges a number of factors—this brings us to the nub of the issue. First, the literal application of EU law in Scotland might not be possible in some cases, due to Scotland’s—and the UK’s—current status as a third country following EU exit. For example, the law might not have been designed to be applied outside EU member states.

Secondly, the Scottish Government might be constrained from applying EU law due to international or existing legal obligations, particularly reservation by Westminster.

Thirdly, a combination of circumstances, including, for example, the operation of the United Kingdom Internal Market Act 2020, might lead ministers to judge that alignment of legal texts would not be in Scotland’s overall interests with regard to that particular law under the current constitutional dispensation. In such cases, ministers might judge that, due to circumstances outwith our control, a level of divergence would be in Scotland’s interests, but such an approach will always seek to preserve the values and outcomes that we share with the European Union, ranging from tackling the global climate emergency, protecting our environment and supporting smart and sustainable economic growth to recovering from the pandemic. Scotland will not deviate from those common aims.

In short, we need to make it clear that, although the power in section 1(1) of the 2021 act provides an important means of achieving alignment, it is not the only means of doing so. As the policy statement sets out, our starting point is to align via policy development. If a law is required, primary legislation might be more appropriate in some instances, but the preference is for specific domestic powers, if available, to be used for making secondary legislation.

That does not mean that the power in section 1(1) of the 2021 act is unimportant—far from it. It provides an important backstop when a legislative change is needed for alignment, but primary legislation is not necessary when subject-specific enabling powers are not available or are not appropriate. Although we have not yet needed to call on the power in section 1(1), it is critical in maintaining the Scottish Government’s ability to make subordinate legislation, where appropriate, to ensure that we keep devolved Scots law aligned with EU law as it develops, and we will not hesitate to use the power in future where appropriate and necessary.

With regard to the two documents that are before the committee, part 1 of the 2021 act requires the Scottish ministers to publish a statement of their policy on the approach to be taken, the factors to be taken into account and the process to be followed when considering whether to use the power under section 1(1). Prior to the policy statement’s publication, it must be laid in draft before the Scottish Parliament. Therefore, in accordance with section 7(3) of the 2021 act, the current statement is laid in draft for a period of 28 days, and I look forward to considering members’ representations on the draft in preparing the policy statement, which will be laid before the Scottish Parliament for approval.

Part 1 of the 2021 act also requires the Scottish ministers to prepare and lay before the Scottish Parliament a report that explains how the section 1(1) power has been used during the reporting period, how it has been considered for use and how it is planned to be used over the coming reporting year. The report must also set out how the use and planned use of the power have furthered or will further the purpose of the power in section 1 to contribute to maintaining and advancing the standards that are mentioned in section 2.

Finally, the Scottish Government’s first draft report covers how the section 1 regulation-making power has been used from its commencement on 29 March 2021 to 31 August 2021. The report is laid in draft for a period of 28 days. Representations are invited on the future use of the power, as described in the draft report, and I look forward to considering such representations from members in preparing our final report.

I hope that that short introduction has given members some helpful background on the important issue of alignment, and I look forward to the committee’s questions. I am also delighted to be joined by my colleagues, who will no doubt be able to answer any technical questions about the application of the measure by the civil service.

The situation is in flux, given that the United Kingdom has only recently left the European Union and that the institutions that were in place to manage the interrelationship between EU institutions and member states—in this case, the UK, which is now a third country—have been changing.

Committee members will be aware of the role that was played by UKRep—the United Kingdom permanent representation to the European Union—which was extremely well staffed with extremely competent officials with understanding of the full breadth of the work of the European Union and its institutions. That has now changed. There is a UK mission to the European Union—UKMis—and how it reports to the United Kingdom and, by extension, the devolved Administrations is also subject to change. Those things are not in our power. We did not choose to leave the European Union or to downgrade our representation to European Union institutions, but we are having to deal with the consequences of a changing—and, in my view, worsening—situation.

As to how we deal with that, a central team in the Scottish Government’s directorate of external affairs works closely with Scotland house in Brussels and with Scottish Government lawyers—I have excellent examples of my colleagues in both those fields sitting next to me. They work in support of the policy directorates across the work of the Scottish Government in considering the Government’s policy to maintain and advance EU standards where appropriate. The team supports that work as part of DEXA’s on-going business to enable policy areas to understand the international context of their work. The team ensures that policy areas consider where alignment might be possible and how it can support ministerial decision making in considering alignment alongside the range of information and other priorities that the Government must consider in reaching policy decisions.

Before Mr Ruskell manages to catch the convener’s eye, I have a confession to make in relation to the work of the committee on that very question. I put on the record that, during the early stages of devolution—between 1999 and 2001—I advised members of this committee’s predecessor on the very question of the scrutiny of the European legislation that was before it. I think that I am right in recalling that not a single member of the committee now was on the committee then.

One of the big differences between how the committee has worked recently and how colleagues worked then is that a considerable amount of time was taken up with what was known as the sift of European documentation, which related to how the committee could continue to understand what was coming from European institutions and what it—and, by extension, the Scottish Parliament—needed to understand about particular European Union regulations, directives and so on to ensure that the Parliament and the Government were best informed.

During the past 20 or so years of devolution, the committee has taken the view that that was not an efficient and effective use of its time in maintaining optimal scrutiny of what was emanating from Brussels. Having sat on the European Scrutiny Committee in the House of Commons for 15 years, I can attest to how much time and effort were spent looking at the papers that emerged from Brussels, often with not tremendously great effect. However, because it might be helpful, I flag to the committee that European memoranda on European proposals, regulations, laws and so on are extant; they continue to be produced. Therefore, if committee members, the clerks or anybody else wishes to spend a lot of time—it takes a lot of time—doing the individual or collective sift, as was done previously by this committee and the European Scrutiny Committee of the House of Commons, they will still be able to do so.

I will defer to colleagues on the technical aspects of any specific measures. With regard to what has emanated from European decision making, there is not a long list of things that we are not proceeding with. We are trying to remain aligned.

It is easiest to explain non-alignment with, for example, water control measures that apply to Mediterranean nations. We do not need to align with those, because we are not a Mediterranean nation. There are all kinds of examples. That, to me, having reviewed everything, is the biggest single reason that something is not proceeded with—that it has no impact on us whatsoever, in the current framework wherein we are a third-party state.

I am not aware of any significant proposals on which we have taken the view that we will not proceed with it and will not remain aligned because we think that it is a terrible idea. The tendency is that things are not proceeded with because they do not impact on us.

I do not want to pluck ideas or particular measures off the top of my head. My colleagues might have a list of regulations or directives that have nothing to do with us; there are quite a lot of them. Were we a member state, of course, we would have needed to do what member states need to do. However, given our circumstances, as we currently find ourselves outside the European Union, we do not need to do those things.

I will give my colleagues a moment to think about that, specifically in relation to the point that you raise.

More generally, the question has been an apposite one in relation to single-use plastics. That is where the internal market act intersects with the common framework arrangements that preceded the act. Those arrangements gave the ability for there to be divergence in policy in different parts of the UK. That was agreed by the United Kingdom in the House of Lords, and I have been trying to make progress on that in recent months.

I have some good news to share with the committee. Last week, I chaired a meeting on common frameworks with the UK Government, the Welsh Government and the Northern Irish Government on making progress with common frameworks. I have to say that, in stark contrast to my other suboptimal experiences, that is an example that shows that it is possible to make progress. I commend my colleagues from the UK Government and from Wales and Northern Ireland, as well as the officials who were involved.

Should the common frameworks operate in the way that they can, it will be possible to make the kind of decisions that we want to make on single-use plastics, for example, regardless of the approach that the UK Government takes. That may apply elsewhere, and specifically to the point that you raised, convener.

I do not know whether either of my colleagues wishes to say anything on that, but I am informed that the UK Government has chosen to do the same as the Scottish Government on Xylella. I commend it for following the Scottish Government’s lead.