Seòmar agus comataidhean

I do not want to be cheeky by just saying yes—but my answer is yes. However, I stress to Mr Golden that, if there are areas where the committee wants more transparency or more understanding of the decision-making process, I am, as I have said a number of times now, prepared to actively consider those suggestions. I also hope that those are the matters that are being discussed between our officials.

You asked for brevity, convener, so the short answer to Mr Golden’s question is yes. We have a system that works, and we are finding our ways through it as best we can with regard to being transparent, but I am open to specific ways in which that can be improved.

I draw Ms Boyack’s attention to the report as published, which partly answers that question as it gives an example of where we do not intend to align. I drew attention to that in my opening statement.

The list of EU legislation that does not apply to Scotland because of geographical proximity or because it relates to specific regulations for industries or agriculture that have no direct impact whatsoever for Scotland illustrates why having an exhaustive list of regulations that do not apply is not an effective and efficient way forward for the Government, given the transparency that we are keen to deliver. You have just heard my colleague outline that.

On the point that people want to understand which regulations pertain in Scotland, if we use the example of electronic vehicles, people know exactly what the regulations in that area are in Scotland, so I am not entirely sure how we could proceed in a way that would satisfy Ms Boyack’s concern. I underline that, if there are better ways in which the process could be explained to the committee and, through it, to the Parliament, I am very open to our officials making suggestions about that and to taking them on board and introducing them if they are practical and proportionate.

Yes. I draw the attention of members who were not present at the meeting to my previous evidence to the committee, in which I reflected on my decade-long membership of the UK Parliament European Scrutiny Committee. That committee went through hundreds if not thousands of documents a year in order to satisfy the UK Parliament that European legislative proposals had gone through the scrutiny mechanism. When I gave that evidence, I reflected on the fact that I thought that that was a profoundly unsatisfactory way of providing parliamentary oversight in a digital age, given the scale of regulatory oversight that was required.

The Scottish Government has taken the position that that very bureaucratic approach is not the best way of doing things. We know that all EU legislation is published on the EU’s websites, that the scope of EU legislation is vast, that much of it is technical and that it is not directly applicable in Scotland.

I think that everybody knows that alignment is a policy decision for ministers and not a legislative requirement, and that a commitment by the Scottish Government to producing a report that sets out whether we have aligned in each instance when the EU makes legislation was not included in the policy statement that was presented to and agreed by Parliament. Doing so would be impractical and would take significant resource, and such detail would not assist ministers in applying the discretionary alignment policy against the Scottish Government’s strategic priorities.

That said, I am sympathetic to the point that Mr Cameron made about the challenge that is provided to the committee in trying to identify particular areas in which greater scrutiny by it may be wished for. That is why I am keen that my officials and committee colleagues on the Parliament side are able to progress work to ensure that we get the right balance with the approach that we take. On the one hand, it should not be massively bureaucratic and time consuming. On the other hand, it should give enough insight and understanding beyond what the Scottish Government requires and reports to Parliament about the decisions that we are making. The fact that I am giving evidence on the question yet again underlines part of the process that we have for going through this.

It is important to stress again the wider context of the matter, given that the retained EU legislation challenge that the REUL bill presents is heading in our direction. I will be frank with the committee: we will need to think long and hard about how we are best able to understand the impacts in Scotland of historic EU legislation, which might inform the on-going process of alignment with new EU proposals. If there are specific suggestions about how we can make that process as workable as possible, I am very open to working with the committee on that. It is in all our interests that we can do that with maximum transparency and efficiency, and we will have to work hard to find the best way of doing it.

It would probably be a good idea also to reach out to colleagues in Wales and in Northern Ireland—when, we hope, a devolved Government is re-established there—so that we can share best practice as Governments and Parliaments around that added layer of challenge in relation to historic EU legislation and not just newer proposals from EU institutions, with which we are trying to remain aligned.

There is quite a lot in that question. I will answer it in the context of our endeavours to remain aligned prior to the application of the retained EU law bill by the UK Government instead of conflating the two issues in question.

On the question of how things currently stand, I think that we are beginning to find our way through the process of alignment and have realised that we can do that in a number of ways, not all of which involve legislation. We have a mechanism in place for reporting to Parliament, under which I and my colleagues answer to you and provide you with background material to illustrate the issue both in general and specific terms. The fact that it is work in progress is evidenced by the on-going discussions between Scottish Government and parliamentary officials about how we can improve and fine-tune things as we go forward.

That is the formal context for today’s evidence session. However, a massive issue is casting a shadow over the process, and alignment more generally, which is the retained EU law bill that is currently going through the Westminster Parliament. I think that committee members understand that, in effect, that bill forces Parliaments—whether it is the UK Parliament, or the Scottish Parliament in devolved areas—to make decisions about the entirety of European Union law, not just the legislative proposals that the EU has made since Brexit. We now have to look right back through, effectively, 47 years of European Union membership and at legislation on our statute book that was passed during that time and make decisions about all those laws.

That takes us into a totally new situation. I agree that the prior situation and what is coming are related, especially from the committee’s perspective, as you will want to ensure that you are able to scrutinise all that legislation. The scale of it will not be lost on you, as it certainly is not lost on me. When I spoke to the previous minister with responsibility for this area, Jacob Rees-Mogg, he could not even tell me how many pieces of legislation there were in devolved areas.

We know that the previously avowed total of EU legislation was roughly 2,500 pieces. In the past week or so, the Financial Times has published a report that suggests that it might be considerably higher than that, going way beyond 3,000 pieces. We have had no information from the UK Government—although we have asked—about how many of those are in devolved areas.

We are working on the assumption that the bill will go forward, notwithstanding the fact that the Scottish Parliament is being asked to withhold legislative consent. As we know, the UK Government has been prepared to override the Sewel convention repeatedly. If it were to do so again and were not to accept amendments that would carve out Scotland from the process, which would be the easiest way for us to retain EU legislation—our alignment, in effect, would be the status quo position—we, as a Government, and then we as a Parliament and you as a committee, will have to find new ways, we would hope, to manage the historical alignment of Scotland and the EU.

That would, without a doubt, be a massive undertaking. First, we would need to identify the active pieces of legislation that we wished to retain. We would need to evaluate the various ways in which we might need to act to ensure that they remained on our statute book and decide whether that would require primary or secondary legislation or statutory instruments—the whole kit and caboodle.

Other devolved Governments are facing the same process. I spoke this week with my opposite number in the Welsh Government, Mick Antoniw, and we discussed the scale of the challenge and the beginnings of our thinking about how we would manage our way through the process.

I share that with the committee to highlight that we are at the start of the long—and, to be frank, unnecessary—road to try to maintain alignment by having to protect the historical legislative framework of our entire European Union membership. That takes us into altogether new territory.

Most committee members will agree that, sometimes, such issues can seem a bit dry and distant and that they do not impact on us that much—notwithstanding, of course, the fact that we are beginning to look at regulations that impact on the likes of drinking water, which affects us all. However, there is a world of difference between the process of understanding specific and on-going new proposals emanating from the European Union and a process that could potentially see the cliff edge—which is political language for “the end”—of legislation that has been a part of European Union membership over the past 47 years. It is of a qualitative magnitude and a scale so much bigger than that of dealing with the month-to-month proposals that currently come out of EU institutions.

Perhaps through you, convener, and the committee, I should say to anybody and everybody who knows and understands the importance of European Union legislation and the high standards and safeguards that it has provided to us all, that we really need to wake up and smell the coffee about what is coming towards us with this proposal from the UK Government. We will have to think very clearly about how we marshal the needs, interests, concerns and expectations of citizens and stakeholders to ensure that, as we go through the process, we are able to protect everything that we would wish to protect. That is certainly the ambition of the Scottish Government, and I imagine that that will be the case for committee members, too.

These things currently operate through a central team in the Scottish Government’s directorate of external affairs, which works closely with Scotland house in Brussels and Scottish Government lawyers in supporting policy directorates to consider the Government’s policy of maintaining and advancing EU standards where appropriate. The team supports the work as part of DEXA’s on-going business of enabling policy areas to understand the international context of their work, and it also ensures that policy areas consider where alignment might be possible and how they can support ministerial decision making in considering alignment alongside the range of information and other priorities that the Government must consider in reaching policy decisions.

My view is that that has to be done across the piece with regard to proposals emanating from European Union institutions. If any particular aspects of European legislation, regulations or directives need to be considered—I think that everybody on the committee appreciates the difference between those three types of proposals—we have to ensure that we capture them across the piece.

I am very interested in Dr Whitten’s highlighting of that particular issue, and I want to make sure that we have an understanding across the full range of European Union proposals to ensure that there is no passive drift—I am not quoting exactly what Dr Whitten had to say here—or unconscious drift in alignment. Again, that would be another area in which if there was any particular thinking on the committee about the risks and how they could be ameliorated, I would be very happy to hear it.

I am in a slightly curious position in that I have received assurances from the United Kingdom Government that the Sewel convention will be respected in relation to retained EU law and the bill that is going through the UK Parliament. In normal circumstances, if the Scottish Parliament did not give legislative consent, the bill in question would not—you would imagine—proceed as currently drafted. If you took that commitment at face value, you might imagine that the United Kingdom Government would be prepared to amend the bill, or to accept amendments that had already been tabled in the House of Commons this week. I have not yet had an indication whether the United Kingdom Government is actually prepared to do that.

As committee members will appreciate, given that our position in Scotland is to try to remain aligned—which means trying to protect the legislative framework that we have inherited as a past member state of the European Union—we could save ourselves a lot of work. If the UK Government were serious about working collegially so that we could deliver on our respective mandates and priorities, framing UK legislation that actually reflected that position would be the best solution. I am still working towards trying to make that happen, but we will have to wait and see whether the still relatively new Prime Minister and other ministerial colleagues have a different view to their predecessors.

Therefore, we do not know the answer to your question yet, Dr Allan. In the meantime, my Welsh colleague—with whom I had discussions this week for this very purpose—and I are trying to renew our efforts to help the UK Government understand that we do not want to see it continue as it plans to. We very much hope that the new Prime Minister and his colleagues will listen to and respect that view and, notwithstanding that, will actually live up to the promise to respect the Sewel convention in specific respect of this legislation.

Having said all that, and in light of Sewel being breached, I think, seven or eight times now and the UK Government carrying on regardless of what the Scottish Government or the Welsh Government has said in past instances, I think that we have to work on the basis that the UK Government might just plough on regardless. If it does so, we face a significant challenge, not least because it will have an impact across Government. After all, a significant proportion, if not a majority, of areas—areas for which the Scottish Government has responsibility—have a European or European legislation dimension.

As I have said already, the UK Government is not in a position—or is not prepared—to point out the impacts on the devolved areas. Certainly, it has not included that information in the tracker that it has established. Therefore, we will have to go through a phase of working all that out and then a phase of working out how we can retain that legislation on our statute book. After we have done that, we will have to work out how parliamentary time will be used to do all this work. We are very much at the beginning of the process.

Convener, you will no doubt have me back soon to talk about that process. I have heard what you said about the committee taking evidence, and I am happy to come back, but I should say that it is a very fast-moving situation. There are significant resource implications for us and our Welsh colleagues in having the expertise and capacity to go through 47 years of European Union legislation, and there are also resource implications for parliamentary time and the Government’s existing legislative programme. The answer to Dr Allan’s question, then, is that we are facing a very big challenge.

First, I very much hope that stakeholders engage on an on-going basis with the process of alignment and of remaining aligned with the European Union. I very much welcome stakeholders’ reflections on decisions that have been made; as it is a live and on-going process, rather than an event, it is therefore an iterative approach, too. As I have said, I very much welcome stakeholders becoming part of that process.

Thus far, though, stakeholders have not flagged up anything about the process to me, have not said that there is too much or too little of something and have not made specific suggestions about different ways of doing things. However, were that to be the case, I have no doubt that it would influence the thinking of civil service colleagues, and that anything of significance—that was proportionate to and commensurate with my responsibilities—would be flagged to me, and I would look at it very closely. Through the committee, I have this opportunity to say to other stakeholders who follow these issues that if they want to reflect on things that form part of the report, or if they have more general issues related to realignment, I would very much welcome people’s input.

We were told—[Inaudible.]

That is very kind, convener. I hope that you can hear me now. I was beginning to come to the end of my statement by talking briefly about the Retained EU Law (Revocation and Reform) Bill, because of the relevance that it has to Scotland remaining aligned with the European Union, and by touching briefly on a number of report-related issues. If you are still able to hear me, convener, I will conclude there.

The implications that the retained EU law bill might have for our approach to preserving and advancing what we have are profound, and it remains to be seen what impact it will have on Scotland’s ability to act in its own devolved interests. The bill means divergence, and, to quote Vice-President Šefcovic’s comments last week to the EU-UK Parliamentary Partnership Assembly,

“divergence will carry even more cost and will further deepen the barriers to trade between the EU and the UK ... divergence means more friction and less trade—simple as that. And again, this in times of severe economic strains.”

In taking forward alignment in Scotland, I am determined to proceed in a way that others can understand. Much of this can feel arcane to our fellow citizens, which is why I welcome today’s evidence session and why our policy statement, as agreed by the Parliament in June last year, commits us to going beyond the requirements of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 to provide detail on the impact of our commitment to aligning in respect of all relevant legislation that is brought forward.

We want to ensure that the Parliament and the public understand how and where EU standards are being preserved and advanced in Scotland, and I commend the fact that parliamentary officials are working with my own officials to ensure that we apply the commitment effectively. Only by working together well in this way will we have the best chance of delivering our shared interests and allowing the Scottish Parliament to fulfil the role that it has been assigned in the devolution settlement.

I will just make a brief comment about the draft report that the committee is considering this morning. It covers how the section 1 regulation-making powers have been used in the most recent reporting period, which runs from 1 September to 31 August 2022. As I have explained, it is a subset of the overall application of alignment.

The most important development is that we are now taking forward planned use in respect of World Health Organization requirements on the quality of water that is intended for human consumption, as detailed in the recast EU drinking water directive. It is a really good example of how we are applying our alignment commitments, because we are able to align with the directive’s provisions using the most effective powers that are available to us in a way that protects and advances standards. It also demonstrates that we have to carefully consider how and when we implement certain aspects of EU directives, and the section of the report that details considered use over the reporting period—in this case, on decarbonisation—does likewise.

The detail of the water quality regulations is, of course, a matter for Michael Matheson’s portfolio and the Net Zero, Energy and Transport Committee, but I am very grateful to be accompanied this morning by civil service colleagues from the environment and EU secretariats. We will do our best to answer your questions and help you consider any written representations that the committee might wish to make.