Chamber and committees

I completely agree with you, convener. This relates to 47 years of safeguards right across the policy areas that matter to people in every single part of Scotland—indeed, in every part of the UK. This might have seemed like a dry political process until now, when we know that it is likely to go ahead. We now know, from the evidence that you have been given, that this impacts on legislation that matters, from food safety to biosecurity to safeguards around human rights and common pay. The list is very long.

Most of us around the table would agree that we have safeguards and among the highest standards in the world because we were a member of the European Union, and that those standards are the best in the world. The policy of this Government is to remain aligned with those safeguards and standards, and that is exactly why we will do what we have to do. It is not the route that we would have chosen to go down, but, if we have to do it, we will do what we need to do to give people in Motherwell, Wishaw and everywhere else in Scotland the confidence that, in Scotland, we want to retain the highest level of safeguards and regulation in relation to people’s personal safety, the safety of food, the provision of services, human rights and equality, pay—I will be here for the remainder of the day if I go through a full list of all the areas where European legislation has been so important. That is what we will have to do to make sure that we protect all those safeguards and regulations, and it is what we intend to do. It would not be necessary if the UK Government did not push this legislation through or at least amended it so that it would not apply in Scotland. The UK Government has chosen not to do that.

I may throw the microphone in a second—I am sorry, that was not a reference to ministers in other places throwing things, apparently. I will pass the microphone gently to Elliot Robertson to add anything on the specific issue of common frameworks, because that is important.

What is our understanding of how the UK Government thinks it might get through the process of dealing with legislation that is reserved, devolved and mixed? So far, I have given you evidence that interaction with UK Government ministers has been limited at best and that our officials are trying hard to work constructively with one another.

Does the UK Government see the common frameworks as a way in which it might be able to deal with some of the challenges? The answer is that it might well do. However, I observe that that is not what the common frameworks were intended for, and the issue of solving some of the problems of the process that we face next year is of an entirely different order. Quite apart from that, there is a further question. If the UK Government is doing a lot of the heavy lifting on the issue now and next month, do we really think that the common frameworks will operate within that timescale to remedy the issues that will be thrown up by the UK Government’s approach to devolved and mixed pieces of legislation?

That is a very technical and dry area, but it is really important if we want to understand who has responsibility, who will answer to Parliaments and to which Parliaments, and whether the positions of the Governments will be respected as part of the process.

Elliot, do you want to add anything more specifically on common frameworks?

Well, it is something that he said in evidence about things to a committee in the House of Commons. It seems to be a common approach.

I understand why witnesses—especially those with legal insight—would have questions about the impact of legal instruments. That is exactly the kind of thing that the Government is undertaking work on, to try to understand it. Elliot Robertson or Chris Nicholson can add any specifics in a moment if they would like to.

To the different legal witnesses that you have had, I say that these are all areas that we have to understand, and we will have to establish the best way of maintaining those safeguards right across the different range of legal instruments that retained EU law has an impact on.

Where different organisations have an understanding of areas of concern that may be overlooked, I take this opportunity to appeal to all those organisations to please highlight those areas not only to the committee but to the Government, so that we are not missing any of those points.

None of this would be necessary if the UK Government listened to the Scottish Government—and, indeed, the Scottish Parliament—and did not go forward with this proposal. It is a UK Government proposal, it is the UK Government that is ploughing on regardless, and it is the UK Government that is causing this problem. That is clear to anybody who is fair minded.

I know that conversations are on-going between my officials and committee clerks on the wider question of EU alignment. I would be perfectly content for my officials to talk to the clerks about how we can build in ways for you to be updated on such questions.

As I have said before, convener, I am more than happy to come back to give evidence to the committee in person. There may be ways to do some of that updating in writing, but, if you want me to come back when there is more that I can share, I am absolutely happy to do that.

I totally agree, Ms Boyack—yes.

We have not been able to quantify that yet, given that we have just gone through the phase of trying to minimise that. Now that we know what the timescales are likely to be, we will have a better understanding of what we need to do. How we can capture what that means in relation to the effort of the civil service working for the Scottish Government is another matter. However, I can say without any fear of contradiction that it will be an immense amount of time, as well as being totally unnecessary. I would far rather that the civil service was able to get on with delivering the programme for government, which is what the Scottish Government was elected to do.

Is there a rational way to go forward in the irrational, surreal and unprecedented situation in which we find ourselves? To be practical and pragmatic about what is a bad situation, is there a better or worse way of getting through all this? Yes, there are ways of doing it that would be more sensible and ways that would be more damaging.

The first point on sunsetting is the self-evident one that trying to do everything within one year is not sensible, given all the constraints that we know about. Incidentally, the constraints that will be felt in the Scottish Government will be felt by the UK Government—that is the magnitude of this. It will be huge for UK Government departments, for the UK Government and for the UK Parliament. As a consequence, it will also be huge for us here and for colleagues in Wales and Northern Ireland. Sarah Boyack raised a very serious point about a democratic deficit in relation to what all this means in Northern Ireland.

If one were to take an altogether more serious approach to minimising the risk of leaving things out and overlooking things that would be damaging and so on, having a phased approach over a longer timescale would be the self-evident way to go about it. That is not what the UK Government proposes. It has rejected the argument for longer timescales, although all those points have been made.

Fast-tracking presents the risk from the other end of the telescope. What is that saying about legislating in haste? Perhaps somebody on the committee can help with that. I am mindful, as I am sure the committee is, of doing things in a way that brings in other kinds of risks, and I have read the evidence that has been given to the committee on that.

In this massively imperfect situation, there is a balance to be struck between trying to do things within unacceptable timescales that may be forced on us and doing them in a way that brings other risks. That is the balancing act that we will have to try to find our way through.

First, you start the process. The process has started in the Government to begin the work of understanding the existing law as part of retained EU law and making an assessment of what would be required to maintain those safeguards. No doubt, a risk assessment will be made throughout that process.

Is there legal jeopardy in processes? No doubt, there will be all kinds of legal concerns, and we will just have to work our way through that methodically as well as we can, with the input of insights from UK Government departments, the UK Government and Governments elsewhere in the UK as well as those who have an oversight and scrutiny responsibility—the committee and your parliamentarian colleagues in Westminster and Cardiff—and from all the representative bodies, especially those that have the capacity. You have heard from many of those bodies. We will have to work together through this process to try to ensure that we do not miss anything in identifying the legislation and then understanding what is required to make sure that it can be retained.

It is important to put on the record again that all we can do is retain safeguards. The provisions have been drafted in such a way so that safeguards can be weakened, which is not the Scottish Government’s intention but is obviously part of the ideological drive of the UK Government. The UK Government might choose, in the process that I described in answer to a question by Sarah Boyack, to introduce another set of laws at UK level in important areas that are devolved, which may well have an impact on the law in Scotland in ways that are not in accordance with the views of the Government or the Parliament here. That is another dimension to all this. It is not simply saying that law A requires replacement by law B in the Scottish Parliament; it is that the UK Government is beginning a process in which it will potentially seek to identify law A and replace it with law B, which may have an impact on devolved competence.

What is the oversight of that? On the basis of everything that we have learned about the process thus far, what would give us any confidence that that would respect the priorities of the Government or the Parliament in Scotland? The answer to that is zero, and we need to bear that in mind as well. We are right to be concerned about things falling off the table because one has not understood their importance or their interrelationship with the operation of the courts, for example, in areas that we know are important. That is one concern. There is a risk that things are lost entirely and that we go back to areas where there was no safeguard or regulation before that provided by the European Community and then the European Union.

We then have the issue of the measures that we would have to undertake and all the work that we need to do to ensure that those are the right form and do what they are supposed to do. We then have the other part of the equation, which is what happens in the United Kingdom Parliament and what the United Kingdom Government does, and how that interacts with devolved responsibility.

Those are all known unknowns, in relation to which we can have a greater or lesser degree of confidence in how we do things. I am absolutely focused on the Scottish Government doing what it needs to do for us to remain aligned with the European Union and to retain the safeguards that we have accrued over 47 years of European Union membership. I cannot be confident about the approach that the UK Government will take, and nor can I be confident in the intergovernmental relations processes as they currently operate, or indeed in the instruments that have been created to manage aspects of policy or policy divergence, such as common frameworks. We have not even got into the operation of the United Kingdom Internal Market Act 2020 and what that would mean, when there is a read across from other legislation that may be passed. All of that makes the issues that Mr Ruskell highlights more difficult.

Sure. It would be a very weird tool in the toolbox and it would be a very strange way of approaching alignment. We are, in large part, currently still aligned with the European Union. If there were areas where one thought that, regardless of the general principle on seeking to be largely aligned with the European Union, there was some regulation—historic or new—for which it would make sense to find a different way of doing things, there is already a reasonable and proportionate way of dealing with that, and the ability to do that is held by the Scottish Government and this Parliament. Indeed, your committee would be able to fully scrutinise any particular proposal emanating from our current toolbox to improve existing European legislation. As things stand, the UK Government is seeking to empty the entire toolbox of European legislation of 47 years and is asking us to pick up everything and put it back in the box. It is totally the wrong way round.

In answer to your question, does the bill mean that we can identify European Union legislation that has been retained, that we can seek to reintroduce legislation through the Scottish Parliament, and that we can safeguard? Yes, but that comes with the important rider that, because we are in this suboptimal operation of the devolved settlement in the UK, and a significant part of this involves overlap—to use Donald Cameron’s word—in relation to powers exercised by the UK Government, we cannot be sure that we can fully protect the European Union safeguards that we wish to. So often, the UK Government is indicating that it is not prepared to work with the Scottish Government to do what we have been elected to do.

Can the Scottish Parliament and the Scottish Government do what they can to ensure that different pieces of retained EU law remain on the Scottish statute book? We can in significant areas, but we cannot necessarily do that in all areas.