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Rural Affairs, Islands and Natural Environment Committee


Post EU-exit policy and UK Withdrawal from the European Union (Continuity) Act 2020

Letter from the Convener to the Cabinet Secretary for Rural Affairs and Islands, Mairi Gougeon, and the Cabinet Secretary for Constitution, External Affairs and Culture, Angus Robertson, on 25 November 2021


Dear Cabinet Secretary,

Impact of EU exit on the RAI remit

At its meeting on 24 November, the Rural Affairs, Islands and Natural Environment Committee considered a number of issues in relation to the impact of EU exit on the RAI remit.

UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021

The Committee notes a draft policy statement and first annual report were laid before the Scottish Parliament on 29 October under sections 6 and 10 of the Continuity Act. The Act provides that the Scottish Parliament has 28 days to make representations on these documents and this letter sets out the Rural Affairs, Islands and Natural Environment Committee’s representations.

The Committee notes Scottish Ministers are required, under s7(4) of the Continuity Act, to lay before the Parliament a document describing how they have had regard to any representations made about the draft statement. The Committee invites the appropriate Ministers to give evidence on this document when laid.

First, the Committee notes a significant change in approach regarding the use of the ‘keeping pace’ powers, with little explanation for this. During the passage of the Continuity Act, Scottish Ministers argued that the ‘keeping pace’ power was necessary as, “in many cases, separate legislative powers will not be available or sufficient [to allow regulatory alignment with EU law]”.

In the draft policy statement, however, Scottish Ministers state “it is the intention that this commitment [of regulatory alignment with the EU] is implemented primarily through the existing policy development process” [rather than through s1 of the Continuity Act] and that “specific domestic powers should be preferred, unless there is good reason for not using these powers”. Elsewhere, the ‘keeping pace’ power is referred to as a “backstop”.

It is not clear to the Committee why Scottish Ministers now consider the ‘keeping pace’ power is a backstop, rather than an essential legislative power, to achieve regulatory alignment.

The Committee would welcome a fuller explanation about Scottish Ministers’ reasoning in the s7(4) document.

Second, it is not clear what mechanisms are in place to allow effective parliamentary scrutiny of the Scottish Government’s commitment to maintain regulatory alignment with EU policy and law. During the passage of the Continuity Bill, the then Cabinet Secretary for the Constitution, Europe and External Affairs assured the Session 5 Environment, Climate Change and Land Reform Committee that “the Parliament will have a clear role at the beginning, middle and end [of the decision-making process to exercise the ‘keeping pace’ power]. … The Parliament will be central to the process.”

The policy statement, however, commits Scottish Ministers to “pro-actively engage with relevant stakeholders and local Government” but does not set out a clear role for the Parliament.

It would appear there is a real and concerning lack of transparency and accountability around Scottish Ministers’ decisions to maintain – or not – regulatory alignment with EU policy and law. The Scottish Parliament needs to have a clear scrutiny role and the Committee considers it essential that this is addressed as a matter of urgency.

The Committee seeks detailed information in the s7(4) document about how the Scottish Government intends to engage more purposefully with the Scottish Parliament with regard to decisions to maintain – or not – regulatory alignment with EU policy and law.

At the same time, and as a starting point, the Committee requests clarification about which policy areas within the RAI remit it intends to maintain – or not – regulatory alignment.

Furthermore, the Committee considers it essential that the Scottish Parliament is kept informed about whether all policy and funding decisions are maintaining – or not – regulatory alignment through bill accompanying documents, legislative consent memorandums, SSI policy notes and UK SI notifications. It believes that Scottish Government consultation documents should also make clear whether the proposed policy would maintain regulatory alignment.

The Committee would also welcome further information about how the Scottish Government is monitoring developments in EU policy and law in practice, in order to inform its decisions about whether to maintain – or not – regulatory alignment.

Subsidy Control Bill LCM

The Committee is concerned about the potential impact of this UK Bill on Scottish Ministers’ ability to develop policy within the Committee’s remit, particularly for Scottish agriculture.

Members agreed to invite the Cabinet Secretary for RAI to discuss the Bill with the Committee at the earliest opportunity.

The Committee also agreed it would invite a UK Minister to discuss the Bill’s impact on Scottish agricultural policy and subsidies, as well as other areas within the Committee’s remit.

Issues relating to border controls and extensions to the transitional staging periods

The Committee wrote to the Cabinet Secretary for RAI in relation to a number of separate UK and Scottish statutory instruments which related to the above for the import of various food products. The Committee considered the response, dated 8 November, at its meeting on 24 November.

In the letter, the Cabinet Secretary for RAI states that the Scottish Government anticipates notifying the Committee about a draft UK SI which will extend the end date of the transitional staging period in line with the UK Government’s most recent announcement.

Members agreed they wanted to discuss this issue further with the Cabinet Secretary for RAI when the associated UK SI is notified to the Parliament.

The Committee agreed again that it would invite a UK Minister to discuss this issue.

I am copying this letter to the Convener of the Constitution, Europe, External Affairs and Culture Committee.

Yours sincerely

Finlay Carson MSP

Convener

Rural Affairs, Island and Natural Environment Committee