Seòmar agus comataidhean

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.

Thank you very much, convener.

The Scottish Government’s position on the bill that we are considering this morning is well known by all here. It is a bill that will, if passed, wreak havoc across a swathe of sectors while it chips away at the increasingly fragile state of devolution in the United Kingdom. It is the Government’s view that it should be withdrawn immediately—a position that is supported by many of the witnesses from whom you have heard. This bill is the latest manifestation of the Brexit that Scotland did not vote for and that is making us the poorer.

At Prime Minister’s question time last week, Rishi Sunak said in response to a question about the bill:

“We are seizing the economic opportunities, deregulating and signing trade deals around the world.”[Official Report, House of Commons, 30 November 2022; Vol 723, c 896.]

The key operative word there is “deregulating”, but seemingly not a week goes by without new evidence showing that Brexit has economic costs, not opportunities. Last week, research by the London School of Economics and Political Science revealed that the average household food bill has gone up by £210 over the past two years because of Brexit. More deregulation is not what businesses want. The Institute of Directors has said that the bill

“is likely to create a huge amount of uncertainty around the regulatory framework ... This is the last thing that business needs in such a fragile economic environment.”

The IOD and a dozen other organisations wrote to Grant Shapps asking him to withdraw the bill.

The Scottish Government has initiated a programme to co-ordinate management of the secondary legislation that will be necessary to stop essential devolved laws being lost, should the bill be passed. The SG was still operating largely in the dark on what the UK Government proposed to do with retained EU law and, therefore, what powers Scottish ministers might need to use. It has not told us what retained EU law it needs to preserve immediately in order to comply with international obligations—in particular, the EU-UK Trade and Cooperation Agreement. It has not told us what it wants to preserve or its approach to the areas that we have already agreed to work together on, including the common frameworks.

Notwithstanding the fact that it has been working on its review of REUL since September 2021, the UK Government has not told us what legislation it wants to sunset. Of course, if it actually knew what it wanted to do away with, it could bring forward specific policy proposals that would be the subject of proper parliamentary scrutiny in the usual way. That would be far more proportionate an exercise than what is proposed in the bill.

I hope that Parliament takes some reassurance from the fact that I and my officials have repeatedly made the point to the UK Government that implementation of the bill in Scotland will require time for scrutiny by the Scottish Parliament. I look forward to your questions. Thank you very much, convener.

In my infamous meeting with Jacob Rees-Mogg, who came all the way to Scotland to meet me on a Teams call rather than meet me in person on the matter, he explained the logic as he saw it from the UK Government’s point of view. He explained that it was a Government that wanted to deliver Brexit in full and that, from his point of view, that meant getting retained European law off the statute book. In other words, it is an ideologically driven exercise. When I asked him about what that would mean for a Government elected in Scotland that wished to remain aligned with the European Union, he said that we would have the power to do so. I asked him why, if that was the intention of the exercise, one would not simply legislate a carve-out for Scotland.

That is what totally mystifies me about the approach of the UK Government here. If one were operating on the basis of a respect agenda—which is what we would think, given all the terminology that we hear about listening to and meeting one another and hearing one another’s concerns—and the UK Government was serious about that, as well as having its own drivers in relation to why it thinks that the REUL bill is a necessary and proportionate way of doing things, which I have just explained to Dr Allan, it would recognise that there were other approaches elsewhere in the United Kingdom and would legislate accordingly, but—oh, no—that is not what is happening. One is carrying on regardless. One is disregarding the interventions of the Scottish Government. One is disregarding the clearly stated majority view in the Scottish Parliament on the bill and one is proceeding as planned.

With regard to why the UK Government is continuing with the bill—notwithstanding the fact that its approach is back to front—if one wanted changes to be made to particular pieces of retained EU legislation that were not in accordance with UK Government policy, why would one not just legislate for that, as opposed to throwing out everything and forcing us into a huge process, which we will undoubtedly come on to, of trying to understand what is heading down the tracks towards us in this regard?

My reading of what has happened in the past two weeks is that it is related to the balloon-floating exercise by the UK Government with regard to seeking a potential parallel to the Swiss alignment with the EU, which was, as we know, shot down within 24 hours. I think that the Prime Minister and the Chancellor of the Exchequer decided that they had to show their pro-Brexit credentials to their own back benchers, and that doubling down on the REUL bill and saying that they were going to go ahead with no delays was their way of doing that. That is the best explanation that I can give to Dr Allan. It is mystifying. It does not reflect good intergovernmental relations between the UK Government and the devolved institutions, because there has been total disregard for the position of the Scottish and Welsh Governments.

I evidence that by the fact that I have written twice to the secretary of state who is in charge of the bill—Grant Shapps—since he took office. I included our proposed amendments that would have respected devolution. Since then, I have received no reply whatsoever. As we know, the Scottish Government and the Welsh Government have the same position on the REUL bill. I wrote a letter, together with my opposite number Mick Antoniw, the Counsel General of the Welsh Government, about our opposition to the bill. If the UK Government was remotely serious about wanting to have good intergovernmental relations and respecting the devolved Governments and institutions of elsewhere in the United Kingdom, it would at least answer letters, but it does not even do that.

That is the best insight that I can share with Dr Allan and the committee on the totally unacceptable way in which the UK Government is proceeding with legislation that impacts on the devolved settlement and the policy of the Scottish Government. It is one example, among many, of how the devolved arrangements in the United Kingdom do not work in practice.

Is that a quote from the Secretary of State for Scotland?

I met the previous secretary of state, Jacob Rees-Mogg, twice and was told in both meetings that the UK Government would respect the Sewel convention. As we know, in practice, there have been numerous examples in recent years of the Sewel convention being disregarded. If the Sewel convention is to be respected, we will be able to see that in practice if the Parliament does not pass a legislative consent motion for the bill and the UK Government does not go forward with the legislation as it is currently proposed.

Do I think that that is what the UK Government will do? I have very low expectations of the UK Government doing that. What seems to have happened, in effect, is that the UK Government has reinterpreted what the Sewel convention is. To the UK Government, the Sewel convention would appear to mean only that it must have consulted the Scottish Government on the principles of a legislative proposal, not that it recognises that it has been given a red card and that the legislative proposal must go—it must be withdrawn and must not apply in Scotland. Instead, what it seems to say is, “We have consulted, we hear what the Scottish Government says on the matter and we are going to carry on regardless.”

We need to do what we should do, which is use the mechanisms, and we will continue to do our best to work with the UK Government. We must do that, especially on the level of officials, who have to work with their opposite numbers in UK Government departments. We will, no doubt, come on to what happens next. We can deal with these things only by having a good relationship and, often, that exists at an official level. I am very grateful to colleagues from the Scottish Government and UK Government departments for working in that way.

The absence of good faith and professional working practice is at a Government-to-Government level: there is little to no tangible respectful relationship between the UK Government and the Scottish Government. That is entirely down to the approach of the UK Government, which is, “It’s my way or the highway. We’re doing this. We don’t care what you think. We don’t care about the evidence or the objections that you have. We don’t care about your ability to manage a parliamentary process or a Government’s legislative programme. We’re going to legislate in a way that, notwithstanding your wish to remain aligned with the European Union, will impose on you some of the greatest legislative pressures that there have been since the beginning of devolution.” That is not a respectful approach from a Government that is working from a partnership perspective.

The first thing to be absolutely clear about conceptually is that we are currently effectively aligned with the European Union. That is the starting point. The effort to describe attempts to align with the European Union as being “immense” is misdirection, frankly, because we are currently aligned with the European Union. Legislation is being forced on us as a Government and as a Parliament that will make us go through an entire process to remain aligned, and that is not our choice. It is being foisted on us by the UK Government. Is that significant? Yes, and it is totally unnecessary. We do not need to do it.

If Mr Cameron’s colleagues on the committee in the House of Commons had voted with the other members on the committee last week, we would not need to have this discussion, because Scotland would not have been proceeding with this dealignment only to then have to legislate for realignment. Is that the efficient way of going about it? No, it is not. That is the approach of the UK Government.

Are we going to do everything that we possibly can to be efficient, avoid duplication and do all of those worthy things as part of the process? Yes, absolutely, but please let us not lose sight of what we are dealing with: a legislative proposal by the United Kingdom, unwanted by the Scottish Government and opposed by the Scottish Parliament, which may or may not be subject to the Sewel convention. We do not want it to happen. We are currently aligned with the European Union and we wish to remain aligned with it. We do not need to go through this unnecessary process for the next year—and longer—to do that.

This is on the UK Government, and it is for it to answer why it is going through all of this when, with some more imagination and, frankly, good will, it could have amended the bill and disapplied it to devolved areas of government. That would have been the most efficient approach to the process if the UK Government wanted to go ahead with it for England.

With the greatest respect, the procedure is clear, in as much as we report to Parliament as part of our legislative process. I am back in front of the committee and we are engaged in an on-going process of seeing whether there are specific ways in which we can provide increased transparency and satisfy committee members’ demands—which I appreciate, having sat in their position doing exactly the same job in the United Kingdom Parliament.

I will definitely reflect on how we can ensure that, if there are major proposals that may have relevance to Scotland and we have decided for whatever reason that legislation is not required to be aligned, that information can be shared. Maybe that is a part of the process that our committee officials and Scottish Government colleagues need to address directly.

I am not aware of anything crossing my desk where a decision not to align through the adoption of policy or legislation has not been reported. Were there to be such a case, I would want to make sure that people were properly informed of it. I will take that question away to reflect on and will make sure that what happens is, in fact, what I believe to be current custom and practice.

I join you from Scotland House London, where I am holding meetings with the United Kingdom Government. Thank you for accommodating me by allowing me to join you remotely.

Today, we are focusing on the European Union and, in particular, on our report on how the Scottish Government is using the continuity act to protect and maintain the high standards that we enjoyed as a member state of the European Union. We are committed to remaining close to the EU and to building the strongest possible relationship between the EU and Scotland. It is important that we consider why that is.

Alignment is a point of principle and conviction. Scotland’s attachment to the European Union has been demonstrated at the ballot box time and time again. If the latest polls are to be believed, that desire to remain close to Europe is only increasing. The people of Scotland see what is at stake and understand the devastating effect that Brexit—and not just the calamitous litany of successive UK Governments—is having on the country. Above all, alignment is about protecting the wellbeing of the people of Scotland. Our standards, shared with and shaped by the EU, are among the most advanced in the world. They protect the environment, people’s working conditions, the safety and quality of the food that we eat and, as we will see, the water that we drink.

The Scottish Government’s policy of maintaining alignment with the EU where we can and where it makes sense to do so protects those standards. That can happen in several ways. The power under the continuity act that we are discussing today is only one such vehicle and only one part of the story. There are other legislative means or changes to non-legislative guidance, policy and programmes that can be made to provide for the standards that are enjoyed by people in Scotland.

I thank the committee for sharing the research that was carried out by Queen’s University Belfast in order to establish a potential baseline of EU legislation that has been passed since Scotland was forced to leave the European Union. We will carefully examine the research and the recommendations that have been made. However, I note that it is important to remember that Scotland’s approach to alignment is to align where possible and where it is in Scotland’s interests to do so. That requires careful consideration as to the extent and the method by which Scotland should align in order to achieve the outcomes that we share with the EU.

Where we align by legislation, as the committee will know, the Parliament has agreed our statement of policy to provide transparency in information in relevant policy notes and consultations. I am grateful that the civil service and parliamentary officials are discussing how that can be taken forward.

Alignment is not just about legislation and standards; it is about the vision that we share with the European Union for the continent’s future and its part in the world and on tackling the climate emergency, sustainable growth and supporting Ukraine—those are just some examples. The outcomes that our interventions support in consideration of alignment and the international dimension are an integral part of our approach to policy making.

The commitment to align is made all the more important by the devastating project that we see emerging from Westminster. We all need to weigh up what the Retained EU Law (Revocation and Reform) Bill will mean. In its current form, it is less about taking back control from Brussels and more an attempt to dismantle the high standards that Scotland and the UK have enjoyed as a result of our former membership of the European Union—[Inaudible.]