Skip to main content

Language: English / Gàidhlig

Seòmar agus comataidhean

Constitution, Europe, External Affairs and Culture Committee

Meeting date: Thursday, June 1, 2023


Retained EU Law (Revocation and Reform) Bill

The Convener

Our third agenda item is an evidence session on the supplementary legislative consent memorandum on the Retained EU Law (Revocation and Reform) Bill. We are joined remotely by Angus Robertson, Cabinet Secretary for the Constitution, External Affairs and Culture, and, from the Scottish Government, Elliot Robertson, head of the EU secretariat; Chris Nicholson, solicitor and head of the constitutional reform and external affairs branch; and Greig Walker, retained EU law management programme lead. I invite the cabinet secretary to make a brief opening statement.

The Cabinet Secretary for Constitution, External Affairs and Culture (Angus Robertson)

With a bit of luck, you will be able to hear me. Are people nodding? I see that the convener is giving me the thumbs up.

Thank you for the opportunity to speak to the committee. I am sorry that I am not able to join you in person—I am in Brussels promoting major events in Scotland, including the world championships that are taking place later this year.

This morning’s evidence session is an opportunity to update the committee on our response to the UK Government’s Retained EU Law (Revocation and Reform) Bill. You will know that the UK Government has finally seen sense and has scrapped its plans to automatically remove thousands of EU laws from the UK statute book by the end of this year. However, let us be clear that the fundamentals of the bill have not changed. I draw the committee’s attention to three particular issues.

First, the bill continues to put at risk vital protections that have been enjoyed by the people of Scotland for almost 50 years. Although the automatic sunset has gone, the UK Government is still planning to scrap almost 600 pieces of retained EU law by the end of December, while the rest of the laws remain in the scope of the UK Government’s reform and deregulation agenda. My officials received a list of those 600 laws only three weeks ago. At least nine of them are a cause of real concern. I have no confidence—zero confidence—that the UK Government will agree to their removal from the bill before it is given royal assent, which can only be a few weeks away. Officials are considering how best to provide information on the list to the Parliament.

Secondly, UK ministers remain empowered to act in devolved areas, without—[Inaudible.]

Thirdly, the amendments to the bill clearly triggered the legislative consent requirement on Friday 19 May. I received a letter from minister Ghani asking for that consent. However, by Monday 22 May—that is, one working day later—the UK Government had decided to proceed without it.

My officials continue to assess the long-term policy implications of the bill. I reassure you, convener, and your committee colleagues that I want to maintain an open dialogue with the committee as we make progress on that. I am happy to take questions.

The Convener

Thank you, cabinet secretary.

The UK Government has stated that

“The UK Government and the devolved Governments agree that where common frameworks are operating they are the right mechanism for discussing REUL reform in the areas they cover”

and that when

“using the powers in the Bill, we will use common frameworks to engage with the devolved Governments on decision-making across the UK.”—[Official Report, House of Lords, 8 March 2023; c 813.]

Do you agree with that statement, cabinet secretary?

Angus Robertson

Common frameworks are a work in progress. A recent example of that is the deposit return scheme, where mechanisms have clearly not been working, which has led to a situation that acts against the devolved decision-making powers of the Scottish Parliament and means that we do not have the most constructive working relationship.

Theoretically, there is nothing standing in the way of having a constructive working relationship and using the common frameworks. However—and not to exercise the committee on an issue in which it is well versed—since the introduction of the common frameworks, we have seen the passage of the United Kingdom Internal Market Act 2020, which sometimes acts in parallel with and sometimes overrides the common frameworks in areas in which those frameworks are the only mechanism through which we might be able to progress issues. In those cases, the frameworks are trumped by the UK Government being able to make a decision and suggest that something is in the interests—as the UK Government sees it—of the UK single market. I will give the committee an example of that. You can easily imagine—[Interruption.]

The screen has frozen, so we will suspend the meeting briefly.

10:26 Meeting suspended.  

10:29 On resuming—  

The Convener

Apologies for the delay, which was due to technical issues. I believe that the cabinet secretary will now appear in audio-only format. Cabinet secretary, we missed most of the answer to the previous question. Did you want to say anything more?

Angus Robertson

Convener, forgive me if I am repeating anything that you have already heard, I do not know the point at which I was cut off.

I was reflecting on the fact that not only do common frameworks play a role in intergovernmental relations in the UK but there is also the United Kingdom Internal Market Act 2020, which was legislated subsequently and is, in many respects, trumping the common frameworks approach to things.

I was also reflecting on the fact that, before the 2020 act, I could easily have imagined a Scottish Government proposal about the introduction of minimum unit pricing for alcohol, for example, making its way through the common frameworks process. However, the UK Government would now be far more likely to invoke the 2020 act in such situations, as it is effectively doing in relation to the proposals for a deposit return scheme—by including glass and using that to block progress.

One cannot look at common frameworks in isolation from how the 2020 act can work and how the UK Government chooses to use it to block policy proposals in devolved areas.

The Convener

I remember taking evidence, early doors, on the possibility of raising the minimum unit price in line with inflation and there being concern that, although it was before Brexit legislation, the internal market act might open it up to legal challenge. Do you have any thoughts on that?

Angus Robertson

I think that I am correct in saying that I will be giving evidence to the committee on 29 June on the operation of devolution post-Brexit, and we will discuss at some length at that meeting issues such as intergovernmental relations, the codification of expected norms of behaviour between Governments, the sovereignty of Westminster, the Sewel convention, delegated powers for UK ministers to legislate in devolved competence and, indeed, the UK internal market. However, it is fair to say that this is an evolving and moving situation.

I have to say, as somebody who thought that the devolution settlement was exactly that—settled—it clearly is not, and a variety of mechanisms are being used to row back on devolution.

Alasdair Allan

You have kind of touched on the answer to my question, which is about the REUL bill. Obviously, we have seen a ping-pong of amendments going back and forth between the two houses of the UK Parliament. Did the UK Government consult the Scottish Government at any point about the content of those amendments and their likely effect on your planning around the laws that you have mentioned?

Angus Robertson

The best co-operation that we have had was with members of the House of Lords who are concerned about the UK Government’s proposals, because—as is often the case with ping-pong scenarios—proposals are made at quite short notice and the ability to influence how they are debated and voted on in the House of Lords is often quite an immediate issue.

I certainly never got the impression that the UK Government had the interests of devolved Administrations as a high priority in the process. If it had, it would not have proposed the legislation as it was drafted. It also intended to carry on regardless of legislative consent being withheld on the unamended bill.

The UK Government has gone on to make its concessions in relation to what is known as the cliff edge—the throwing all the babies out with the bath water approach—which was what it intended to do in the first place, and it turned the process on its head by listing pieces of legislation that it wishes to see fall off the statute book. That was a late change, and we were not consulted on it. I am sure that the UK Government would probably say that the Scottish Government’s views and opposition to its original approach had already been articulated. I have seen correspondence that says that the UK Government has partly acted on the concerns of the Scottish Government and the Welsh Government in relation to the REUL bill.

On how the UK Government moved on to the next step of the process, we were informed on a Friday about the changes in relation to seeking legislative consent. Then, on the Monday, the UK Government confirmed from the dispatch box in the House of Lords that it would carry on regardless. That drives a coach and horses through how the Sewel convention is supposed to work. How on earth is the Scottish Parliament, whether it be committees or plenary, or the Scottish Government supposed to have time to consider a proposal about legislative consent from the UK Government over a weekend when no notice was given that it would carry on regardless on the Monday?

None of that speaks to devolved custom or practice operating in any meaningful and respectful sense. On the one hand, it is an improvement that the REUL bill will not sunset a great amount of legislation in the way that was originally planned, but, on the other hand, we know that the UK Government still plans to take more than 500 pieces of legislation off the statute book by the end of this year.

Scottish Government experts have been able to identify nine pieces of legislation that still have an impact in Scotland, but there is little prospect of us having the ability to have those pieces of legislation taken out of the updated REUL bill.

Donald Cameron

Drilling down to the nuts and bolts of the issue, there are nine instruments that the Scottish Government considers contain at least some devolved provisions that are applicable in Scotland and that it is not satisfied are obsolete. What steps is the Scottish Government taking at official and ministerial level—I note that a number of your officials are with you—to secure those instruments and remove them from the schedule?

Angus Robertson

You can see on the screen that I am joined by Chris Nicholson, Greig Walker and Elliot Robertson. They are colleagues of mine and they advise on these issues. I will make some general observations about your question, Mr Cameron, and then ask whether any of my colleagues want to add their comments.

The list of nine laws that include devolved competence that we believe might still be operable in some way are areas for which further consideration is needed. Some might be of more import and some less, but the fact that they have an impact on areas of devolved responsibility and are currently operating is beyond doubt.

We have raised concerns with the UK Government about those laws, which include energy efficiency regulations, port services regulations and other things, but it is our understanding that the schedule will not be amended prior to royal consent, which is anticipated in June.

Part of the challenge that we face is that the UK is extremely keen to pass the bill extremely quickly, notwithstanding its major change in approach, so our ability to play a significant role in the process is much diminished. We remain in close contact with the UK Government on the issue, but it is fair to say that there is no expectation of the schedule being amended prior to royal assent.

Would any of my colleagues on the call wish to add any observations with regard to the list of nine items and our ability to influence the process in that respect at Westminster?

The Convener

Elliot Robertson has indicated that he wants to come in. [Interruption.] Elliot Robertson? [Interruption.] We are not getting any sound. [Interruption.] Does any other official want to come in? I am sorry, but the sound was dreadful.

Greig Walker (Scottish Government)

There is a delegated power—a preservation power—in the bill as amended that allows relevant ministers to preserve an instrument essentially by excluding it from the schedule. It is a concurrent power, which means that, in principle, there could be a Scottish statutory instrument that would deal wholly or partly with the nine special cases. The LCM makes it clear that analysis is on-going and that there are stakeholder positions to consider, but we do not have a response yet from the UK Government.

Because it is a concurrent power, it might be possible for a UK statutory instrument to deliver an acceptable result with regard to devolved competences. That instrument could be consented to, and the consent decision could then be scrutinised by the Scottish Parliament.

It is a very new schedule, and all these possibilities are on the table. However, given that nothing in the schedule is wholly Scotland-only devolved, that SI power might well be something that we need to think about, and discussions are under way with the parliamentary authorities about how the various types of SIs under this bill might best be handled.

Just to be clear, then, are you saying that there is a power for Scottish ministers to restate the nine instruments, if necessary, notwithstanding issues of royal assent?

Greig Walker

It is fair to acknowledge that there is a form of preservation power that is analogous to the preservation power under the original bill, in which we were dealing with a general sunset clause, but it is not immediately clear that it will be a complete solution to the issues. We need to continue that analysis, and the Parliament will be kept updated.

Donald Cameron

I note that, in the letter dated 31 May that the cabinet secretary has just sent the committee, it is suggested that although the bill itself might not be able to be amended in time, there is the possibility of agreement, outside of amending the bill, whereby a similar result could be achieved and the nine instruments on which there is doubt could be agreed. Is that correct, cabinet secretary?

Angus Robertson

I am not sure whether I have the microphone, but I will carry on as if I do.

I think that these areas are being explored by officials in the Scottish Government and at Westminster. Following on from what my colleagues have already said, I think that there are other related issues with regard to the extent to which measures are fully devolved or on which there is a degree of shared competence. I do not think that it will come as a surprise to committee members to learn that this was always a consideration that gave us concern.

It is not as simple as saying that the Scottish Government would wish something to remain on the statute book in Scotland, whereas the UK Government might wish it no longer to be on the statute books that would apply to England and Wales; it is about whether there is a duty on both Governments to try to deal with issues where there are currently shared competences that are a contributing factor to the complication of the situation in which we find ourselves.

I suppose that that is a reflection of the circumstance being fast moving, because we do not have clarity on all of that. It leads to the subsidiary but no less important point about what the role of the Scottish Parliament, in committee or plenary, is in relation to having an understanding of the process and being able to play a part in scrutinising it.


Mark Ruskell

Looking again at the annex listing laws that the Scottish Government considers are not obsolete, and the wider list of laws on which it appears that you are in agreement with the Westminster Government that they are now obsolete, I can see that the vast majority are in environment policy so I am interested to know whether the Scottish Government has sought advice from Environmental Standards Scotland, given that ESS was established under the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 and has a key role in advising the Government on alignment with the EU.

Angus Robertson

I will have to defer to colleagues about specific outside organisations but I make the general observation that, at the heart of the question is a reflection on the difficulty of trying to deal with hundreds and thousands of pieces of retained EU law and work out which are still operable, which apply and which require to be incorporated into what is being described as assimilated law and to do so in such a way as to get maximum external expertise as part of the process. That is one of the areas that, for anybody who cares about having the best legislative standards that we can have, is deeply problematic because, as I have said a couple of times this morning, we are dealing with a fast-moving situation.

Until recently, we were dealing with a situation in which the major concern—not the only one, but the major one—was that, among the thousands of pieces of legislation that might fall off the statute book, there might be additional laws that one had not even identified as being relevant and retained but would fall off the statute book because they were overlooked. Now, because of the change in the UK Government’s approach, we have a list of 500-plus pieces of legislation to be added to the schedule.

The question of due diligence on all those measures is good. Whether one can say with absolute certainty that all the laws beyond the nine that we have identified as potential matters of concern have a clean bill of health is definitely a question. I have been keen to ensure that we are as confident as we can be that we are not losing the high standards that European Union membership and legislation guaranteed for us before Brexit because, as the committee knows, it is the Scottish Government’s policy to remain as closely aligned as possible to the high European standards that exist.

We are seeing a pivot in the UK Government’s approach to dealing with retained EU law and are having to use our resources as quickly as we can, given the timescales that the UK Government has now imposed on us in its legislative programme. That will evolve if we are to assume that the bill is passed. However, that raises as many questions as you have been asking until now.

However, on whether specific external organisations have been part of the sift process, if one wants to call it that, I defer to colleagues.

Greig Walker has indicated that he wants to come in, cabinet secretary. Are you content for him to do so?

I am indeed.

Greig Walker

Mark Ruskell is right to highlight that the volume of instruments on that list impacts particularly on our directorate general net zero, involving agriculture, rural environment, environment and forestry, Marine Scotland, Transport Scotland and Food Standards Scotland. The directorates that have been working on REUL, and on that list, will, naturally, be working with internal resources and liaising with stakeholders.

I have no knowledge about whether Environmental Standards Scotland specifically has been formally consulted or about whether that might be in hand, because we have an on-going programme of work to look to. However, if it would be helpful, we could write back on that and the clerks could follow that up with us.

Mark Ruskell

That would be very useful, given that ESS was established as a statutory independent adviser probably for these types of situation. I would have expected the Government to liaise with ESS on this.

I turn to the cabinet secretary’s very useful letter that was sent to the committee last night. Is there clarity over what the process is for laws that involve responsibilities that are shared between the Scottish and UK Parliaments? What is your understanding of that process? Does it have to be absorbed within the processes that are in the common frameworks, depending on what the policy area is, then come down to discussions between individual portfolio ministers, between Governments and across the UK? Do you have clarity yet as to what that process for negotiation is? Is it between you and your counterpart? Is it between portfolio ministers? Where does that conversation now take place? There does not seem to be a codified route for resolving areas in which there is disagreement but shared responsibilities—and therefore, potentially, there is a mismatch between approaches that could be taken in either the Scottish Parliament or the UK Parliament.

Angus Robertson

That is a very good question and we have to get the best possible answer to how we work our way through what is a new situation. I think that committee members understand that we are now dealing with a fundamentally different approach to retained EU law than we were dealing with even a few short weeks ago. It would be fair to say that we are going to have to satisfy ourselves that the processes meet the new circumstances that we find ourselves in. I would most certainly be happy to update the committee on how we propose to do that.

As you will have noticed from Greig Walker’s title of retained EU law management programme lead, an area of the Scottish Government is looking at that area in great detail across the piece. It is correct to say that some areas of ministerial responsibility have a much bigger focus on the issue, just because the corpus of European Union law is much more extensive in the areas of the environment, agriculture, fisheries and so on than in some other policy areas. How we will take this through the various directorates of the Scottish Government is definitely something that we will have to be focused on as we get greater clarity.

It goes without stressing at great length that we are talking about legislation that has been fundamentally changed during its course through the parliamentary process at Westminster and has not yet been finalised. We are absolutely aware that we are going to have to react to that legislation in its final form. It is going to be a serious administrative challenge. We are going to have to build in appropriate mechanisms for the reasons that Mark Ruskell has outlined, to make sure that there is co-ordination between Government ministers. As I have said during this evidence session, the important role of the Parliament is then in understanding the process.

We are, of course, not talking about the introduction of new legislation in the sense of novel legal requirements. We are talking about the maintenance of existing European Union law, but Mark Ruskell is absolutely right to point to the mechanism by which we can ensure that Government goes through what will be a new process to ensure that we retain the laws and safeguards that we wish because we want to remain aligned and, as a consequence, how we are best able to integrate that process into the wider parliamentary programme and, in particular, the committee’s role in scrutinising my work and that of colleagues in this policy area.

Mark Ruskell

At the risk of complicating the matter even further, how does that relate to the United Kingdom Internal Market Act 2020? Looking at the schedule of laws that you might wish to retain, I can see that some relate to genetically modified crops and foodstuffs. Would there have to be a process of assessing whether the retention of the law in one part of the UK was compliant with the 2020 act? Would that be done between relevant portfolio ministers? It would be useful to get some kind of insight or prediction about how that might play out.

Angus Robertson

That relates to how the question of how the Scottish Government can manage the alignment process with retained EU law that we wish to see maintained on the Scottish statute books when a United Kingdom Government might not be minded to look sympathetically at Scotland remaining aligned with higher European standards in any given policy area. I have to say that, given the current approach of the UK Government, I would be very concerned that it will look to involve itself in decision making in policy areas that are devolved using the United Kingdom Internal Market Act 2020 as a mechanism to, in effect, disregard the priorities of the Scottish Government and Scottish Parliament.

There are two elements to Mark Ruskell’s question. First, what does the Scottish Government need to do to ensure that it remains aligned with European Union legislation after the passage of the bill and the new approach in it? As I reflected in my previous answer, we are currently working through that. Secondly, what is my assessment of how the United Kingdom Government will act in relation to our preferred policy priority, which is to remain aligned with European Union standards where the UK Government’s avowed position in many respects is to become non-aligned with them? It wishes to diverge from European Union standards and, as we have seen in other policy areas, would be unhappy for Scotland to do—[Inaudible.]

We have lost audio again. I will suspend briefly.

10:58 Meeting suspended.  

11:00 On resuming—  

Welcome back to the committee again, cabinet secretary. We lost you briefly. Do you want to continue with your answer to Mr Ruskell’s question?

Angus Robertson

I am delighted to rejoin the committee for the third time. Forgive me, I am not sure at what point I dropped off. I will just give a short reprise of what I was saying to Mark Ruskell’s question.

My first reflection was that we are very actively considering how we will progress within Government the best understanding of what measures need to be taken to remain aligned with European Union legislation.

The second part of Mr Ruskell’s question was on the risk of the UK Government using the UK Internal Market Act 2020 to block the aspirations of the Scottish Government and Parliament to remain aligned with European Union legislation. He asked whether that was a significant fear that I share, to which the answer was yes, it absolutely is, because, if we look at the UK Government’s recent approach on a range of issues, from the Gender Recognition Reform (Scotland) Bill to the deposit return scheme, we can see that it is prepared to consider a range of ways in which it can frustrate, block, delay and undermine progress in devolved areas of responsibility.

As the committee will be aware, a significant proportion of retained EU law does not fall neatly into a basket of devolved and reserved areas, so if those are pieces of legislation for which there is shared responsibility in a UK legislative setting, the question is whether I am confident that the UK Government would act in best faith so that Scotland could remain aligned with European Union standards while the UK sought to diverge from them. I have to say that I have grave concerns that the UK Government plans to develop and continue its interventionist approach in devolved areas. That will make it more difficult for us to retain the higher standard of European Union legislation and safeguards that we intend to pursue. However, pursue it we will.

Neil Bibby

Good morning, cabinet secretary. One amendment to the REUL bill passed by the House of Lords and subsequently approved by MPs places a reporting duty on UK ministers to update the UK Parliament every six months on the progress of revoking or reforming EU law.

In your letter dated yesterday, you say that you would be

“happy to consider what reporting may be appropriate by the Scottish Government”

as a result of that, although you state that the approach would be to do so annually by way of the Scottish Government’s EU alignment reporting, as opposed to biannually, like the duty imposed on UK ministers. Will you explain why and are you open to reporting more frequently?

Angus Robertson

First, welcome to the committee, Mr Bibby. You might not be aware but, in previous evidence sessions, I have said to the committee—and I am happy to say again today—that I am open to ensuring that we have the best reporting requirements that are commensurate with proposals that the Government is dealing with. Having sat for 10 years on the European Scrutiny Committee, I understand the importance of the work and want your committee to be able to fulfil its obligations.

What is important from my point of view is that we are in the process of updating our approach of reporting to the committee in relation to European Union alignment. The two things—retained EU law and European Union alignment—are areas in which we can integrate the process.

As has been the case until now, I am still perfectly content for committee officials and Scottish Government officials to work together on how we can do that best, because I totally appreciate the needs, interests, concerns and expectations of committee members, and I understand that they want to have the most up-to-date information that they can about such issues.

This is a work in progress, and I am perfectly content to have suggestions from Mr Bibby, any other committee member or the committee as a whole about how we can best update you.

Neil Bibby

I thank the cabinet secretary for that answer, and for welcoming me to the committee.

It is regrettable that the UK Government has constructed such a tight timescale for scrutiny of the amendments; I share the cabinet secretary’s frustration about that. I appreciate that the tight timescales are the UK Government’s doing and that the situation is evolving. It was mentioned earlier that analysis of the schedule is on-going, and there has been a commitment that Parliament will be updated on that work. I want to press to find out whether there is a timescale for updating Parliament on the work on the schedule.

Also, the cabinet secretary mentioned his fear about the UK Government being prepared to reach a different conclusion on what should be done with particular laws in those areas. Out of the nine laws that you referred to as having been identified in the schedule, can you provide an example of one where you think a problem will arise, or is your concern more general because of the past conduct of the UK Government, which you alluded to earlier?

Angus Robertson

There are two parts to Mr Bibby’s question. First, I make the general point that, whether it is tremendously welcome or not, I am an extremely regular attender of this committee. I give evidence to the convener and other members and, regardless of what the formal evidence session is about, there is an opportunity to ask me questions about any issue—that is a given and is on-going. That can be done in committee meetings or at portfolio question time, so I would not worry about the ability to raise issues with me.

However, I take the point about having the best formalised structure to update members in a fast-moving situation. I am very alive to that, because of my governmental responsibility and because I think about how the committee can perform its responsibilities. If there are developments between evidence sessions or programmed reporting on the Scottish Government’s approach to EU alignment or retained EU law, I am perfectly content to update the committee on that—as I did in my letter yesterday—to give context that can perhaps influence and inform members’ questions and allow them to be informed of the latest state of play.

I am sure that it has not escaped members’ notice that we are literally dealing with a situation that changes from week to week. If we can do more to keep the committed updated on progress, I am perfectly content that we write to the committee to do that.

I put on record my appreciation to members of the House of Lords, who have been working with the Scottish Government and the Welsh Government and with whom we have an extremely close working relationship, on this and other issues. On this issue in particular we have an extremely close working relationship with them. We share each other’s concerns, and a number of members of the House of Lords—those from Scotland and from Wales, in particular—have been very active in raising the concerns of both Governments, for which I am grateful. In answer to Mr Bibby’s point about whether there is more that we can do to keep the committee updated, that is a very live and on-going issue for me, and I will continue to do my best to keep the committee informed and answer its questions.

On the question of the nine items in the schedule that relate to devolved subjects and whether we are concerned about a clause or sub-clause of those nine items, as opposed to whether we have a general concern that they have devolved impacts, I think that I am right in saying that it is a general concern at this stage, because one really needs to work through all the pieces of legislation and specific provisions.

We have passed the stage of asking whether there is a devolved impact—there is. The question is whether we can gain, through looking at particular scenarios, knowledge of what would happen were the provisions to fall off the statute book. Civil service colleagues are trying to work through that to understand what mitigation might be required. I am happy to update the committee when we get to the stage of understanding that, so that members are aware of that concern, too.

Thank you.

Ben Macpherson

Good morning, cabinet secretary. In answer to Mr Bibby, you spoke about engagement with members of the House of Lords. Will you give an indication of how much engagement you received from Lord Callanan in advance of the statement that he made to the House of Lords, and whether he has offered time to engage with you as a Scottish minister to hear the Scottish Government’s concerns? What has the UK Government done proactively to propose intergovernmental engagement on these important matters, particularly considering the fact that Lord Callanan is well acquainted with the Scottish Government’s opposition to Brexit and concerns about issues relating to it?

Angus Robertson

There is no comparison with the constructive working relationship that I and the Welsh Counsel General and Minister for the Constitution, Mick Antoniw, have with a number of members of the House of Lords. From memory, we have had perhaps three meetings on the issues during the progress of the bill through Westminster. I have not had a single meeting with the UK minister in the House of Lords.

I am not sure whether committee members are aware of the sarcastic quip from the dispatch box about the likely reaction of the Scottish Government. I paraphrase, but it was something along the lines of, “Well, you would expect that wouldn’t you?” It was certainly not informed by any communication with me. We have not met to discuss any of the issues. As with many other matters on which the UK Government is proceeding with legislation or policy that relates directly to devolved competence, unfortunately, there is a gulf between the rhetoric and the reality when it comes to co-operation and close working relations, which are illusory.

That is disappointing but, sadly, not surprising. Are you saying that there has been no meaningful engagement, or only tokenistic engagement, from UK ministers on the matter?

Angus Robertson

In correspondence, the UK Government has suggested that it has changed its approach to retained EU law from the hard cliff edge for all legislation to a more limited schedule of legislation that is to be taken off the statute book in part because of the opposition of the devolved Administrations to the original approach. The suggestion is that there has been magnanimous reflection on our persuasive interventions and that that has, in part, led to a change in UK policy. I suspect that the impending defeat in the House of Lords was much more important to the UK Government’s consideration of the matter than listening to the arguments put by the Scottish Government or Welsh Government on the issue.

I deal with the UK Government regularly, and my general impression is that the involvement of the Scottish and Welsh Governments is tokenistic and a box-ticking exercise to say that one has “consulted”. However, I see very little evidence of the UK Government acting on the concerns that are raised and its U-turn on the sunset provisions in the REUL bill was almost entirely down to the arithmetic in the House of Lords, which would have seen the Government lose votes on amendments that were supported by members of the House of Lords with whom we have been co-operating.


Ben Macpherson

It is helpful to get your reflections on the sad lack of intergovernmental engagement.

On the nine items in the schedule, I appreciate the points that you made in answer to Mr Bibby that the Scottish Government has more general concerns at this stage and that it is still exploring the detail so, if you want to come back to my question later, I will fully understand. Statutory instrument 2019/575 and regulation 2017/352 relate to port services. Are considerations around green freeports at all related to those instruments?

Angus Robertson

I will have to write to the committee on the specifics of the analysis of the nine measures. It would, however, be correct to say that the Scottish Government’s response to the schedule of legislative measures that are to be sunsetted as part of the UK Government’s reformed approach to the REUL bill has been made more on the basis of whether something pertains to a devolved area of competence rather than whether it impacts on any specific policy consideration. It is about understanding whether the legislation is in a devolved area of import and whether it is relevant to that.

Ergo, the devolved Government should explain to the UK Government that the sunsetting of legislation in that way should not go ahead until there is proper governmental and, no doubt, parliamentary understanding of the impact. I think that that goes to the nub of Mr Macpherson’s question—obviously, I welcome him to the committee, as I did Mr Bibby.

Having said that, I am keen to ensure that the committee is updated, so I undertake to update you on our best understanding of the nine specific measures as they might pertain to any specific on-going policy, or policy development, on green freeports, which Mr Macpherson asked about.

Thank you.

The Convener

I have a quick final question, cabinet secretary. The committee undertook significant work on the original REUL bill, and one of our major concerns was about its impact on other organisations, such as animal welfare organisations, that are trying to navigate their way through it. We were also concerned about Scottish Parliament subject committees, which will also be interested in what is happening and want to engage with the process. Although I note that you said that the removal of the sunset clause is a move in the right direction, do the timescales and the approach alleviate any of the pressures on business and third sector organisations, and do they affect the ability of the Scottish Parliament to engage in the scrutiny process?

Angus Robertson

That is a very good question to end on, as a takeaway for me and my colleagues. Given the new circumstances in which we find ourselves with the UK Government’s new approach to the legislation and its intentions in dealing with retained EU law, we are in a different environment regarding how we might be able to integrate the needs, interests, concerns and expectations of third sector and other organisations with a particular policy locus. Obviously, and in parallel, that also applies to parliamentary colleagues and specific committees.

As the cabinet secretary with responsibility in the area, I definitely want to be satisfied that, however we move forward after the passage of this legislation, we can do so in a way that integrates the expertise and understanding of organisations that have an interest in particular policy areas—Mark Ruskell mentioned one of those earlier. We want to ensure that Scotland remains aligned with the legislation, values and better standards of the European Union, to which the Scottish Government and the majority of members of the Scottish Parliament still remain committed.

I thank the cabinet secretary and his officials for attending. We now move into private session.

11:21 Meeting continued in private until 11:31.