Seòmar agus comataidhean

I have one question on the principle and one that is more practical.

On the principle, there is still a concern that major constitutional change requires democratic legitimacy. When this Parliament was created and given authority over devolved policy areas, the public had been asked for consent for that major change to the constitutional framework of Scotland, and they said yes.

When the UK Government proposed to leave the European Union, much as I regret the fact that the question was answered as it was, at least the public were asked the question, and 52 per cent of people UK-wide and 38 per cent in Scotland said yes. Even at that time, the subsequent constitutional changes that are now represented in UKIMA were not proposals that were on the table. Nobody in any part of the UK or Scotland said yes to those major constitutional changes, and Scotland’s Parliament said no to them.

Whatever changes emerge from the UK Government’s review, how can we achieve democratic legitimacy, which is currently lacking, for the new constitutional framework, which will continue, on some level, to constrain the powers that were given to this Parliament by the public?

Are there any other views on that question?

Professor McHarg is looking to come in.

There are many aspects to the issue. If you are going to have a framework like this, you want to be able to cope regardless of whether there is a good or bad relationship between the Governments. You want to be able to cope with changes of Governments and changes of ideology. You want to be able to cope with an emergency situation. You want to be able to cope with the emergence of new policy areas that test the boundary between devolved and reserved areas. I find it difficult to see how a framework will be able to withstand all those pressures and those that we cannot predict.

Do other witnesses want to comment on the practical question, particularly around whether things such as the exclusions list is more likely to change? If that is where we are likely to see willingness to move, how should we implement such changes?

You differ constructively, I hope.

And to a deregulatory pressure as well.

I will quote NFU Scotland’s written evidence, but my question is for both of you. NFUS seems to have hit on the nub of the tension in paragraph 2:

“NFU Scotland stresses the need for agricultural support policies to diverge where necessary to reflect different needs and objectives. However, the free movement of goods and services and the regulations ... must be aligned so there is no competitive (cost) advantage or disadvantage”.

People might emphasise one or the other of those objectives, but there is a tension between them and there always will be a tension between them. The principle that we should be aiming for is not to be absolute about either but to understand that tension and, as you said, hear from the stakeholders who are affected by whatever divergence might emerge and whatever consequences might arise. A clear-eyed decision should be made in a democratically accountable manner about how to manage that tension and, within devolved policy areas, the default should be that that decision is made in the devolved Administration or jurisdiction.

First, do you agree that that tension will always continue to emerge in issues that we know about and in new ones that we have not encountered yet? Secondly, as well as those two priorities and objectives, is there an additional one? I think that you have both touched on it, using different language. I think that Lloyd Austin used the phrase “race to the top”, and Jonnie Hall talked about protecting standards or something of that nature. If, for example, a future trade agreement opened the Scottish and UK market to products that undercut your members in terms of environmental protection, animal welfare and a whole host of other areas that we might anticipate, your members—at least those whose principal market is domestic rather than international—would be deeply concerned. The direction of travel of the regulatory landscape is an additional objective that we need to keep in mind, beyond divergence for innovation’s sake or for meeting local needs, or for the protection of the market itself. I wonder whether you could reflect on those issues.

I have one question on the principle and one that is more practical.

On the principle, there is still a concern that major constitutional change requires democratic legitimacy. When this Parliament was created and given authority over devolved policy areas, the public had been asked for consent for that major change to the constitutional framework of Scotland, and they said yes.

When the UK Government proposed to leave the European Union, much as I regret the fact that the question was answered as it was, at least the public were asked the question, and 52 per cent of people UK-wide and 38 per cent in Scotland said yes. Even at that time, the subsequent constitutional changes that are now represented in UKIMA were not proposals that were on the table. Nobody in any part of the UK or Scotland said yes to those major constitutional changes, and Scotland’s Parliament said no to them.

Whatever changes emerge from the UK Government’s review, how can we achieve democratic legitimacy, which is currently lacking, for the new constitutional framework, which will continue, on some level, to constrain the powers that were given to this Parliament by the public?

The cumulative impact issue that you raised will also be affected if the threat of a trade deal with the US continues to loom on the horizon, thereby opening UK markets to products that are produced in a much more deregulated fashion, which would create pressure in this country for further divergence from environmentally necessary policy.

I want to ask you about the European Environment Agency, because your written evidence suggests that there might be benefits from the UK being a member of that body, even though the UK is not a member of the EU. Will you unpack that a little bit? What do you see as being the attractions of being in the EEA for other non-EU member states, and what would be the opportunities if Scotland or the UK were to become a member?

You can hear me—that is great. Good morning.

I was not going to get into the policy detail of individual examples of divergence, because it is probably for other policy committees to decide what is the right or the wrong thing to do with some decisions. However, on the overall policy of alignment it seems to me that we have a little bit of a presentational paradox, in that we have always known that some degree of divergence would start to emerge. The longer it goes on, the more it feels that it is a little odd to call it a policy of alignment, given that more examples of divergence are appearing.

However, if we ignore the presentational oddness, it seems to me that we have a policy that seems to be working more or less as intended. It is not hugely rigid—it does not say that we must have alignment to the greatest possible extent in every case, and it does not say that we must have divergence at every opportunity. It does not always place the emphasis on the economic interests of industry, and it recognises that regulation is often intended to achieve social or environmental benefits by constraining harmful things that markets might do. Indeed, that is one of the reasons why we want high-quality regulation.

However, the policy also allows the Government to make decisions on a case-by-case basis.

Therefore, do you think that the policy, in its overall operation, provides the necessary flexibility, and do you agree that a more rigid approach in either direction would have harmful consequences?