Seòmar agus comataidhean

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.

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.

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.

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.

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?

I am indeed.

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.]

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.

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.

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.]