Seòmar agus comataidhean

Notwithstanding political differences, there is a new Prime Minister and there is a new Cabinet, or a new old Cabinet. We have seen U-turns on major economic policy, thank goodness, from the short-lived Truss premiership and we have seen U-turns on fracking in England. Who knows—maybe we might see the opportunity for some rethinking about Northern Ireland.

I have known Chris Heaton-Harris for a long time from when he was in the European Parliament and at Westminster when I was there. I very much hope that he will take the opportunity to try to find ways to get beyond the impasse. I acknowledge that it is not simple for a Government that has frankly dug itself into a hole because of the internal contradictions of its position. We all remember the former Prime Minister, Boris Johnson, saying one thing to business in Northern Ireland, telling everybody that the Brexit arrangements were fully baked or whatever it was—“half-baked” is probably more apposite—but one thing was being said to one key interest group at the same time as something else was being said to others, and those positions cannot be reconciled. There is an inherent internal contradiction in the UK Government’s position, but it should not be in anybody’s interests that any Government, whether at a devolved level or a UK level, is prepared to breach international law in clear sight, and that is what we are hearing from legal experts would be the case.

I think that it was Brandon Lewis, as Northern Ireland secretary, who seemed to suggest from the despatch box that breaking international law in a “limited way”—in his words—was somehow okay. It is not okay. I know that we are talking about areas that impact devolved decision-making powers in Scotland and areas of devolved policy. It will impact Scotland, not least because it is we who will be having to build border infrastructure in Scotland as a result of all this. We have little clarity yet about to the full scope of all this. We have a big direct interest in this in Scotland, but we have a wider interest, too. Northern Ireland is one of our closest neighbours. We are literally kith and kin. For all those people of all political traditions who worked so hard to find the hard-won solution to end the troubles in Northern Ireland to see it endangered is something that should concern us all. Having said that, but also reflecting on our collective position as a Parliament, I note that we have debated this and taken a view. Not a single MSP and no member of the committee has objected to that position or disagreed with a motion that described it as being

“fundamentally unacceptable for the UK Government to unilaterally disapply key parts of the EU-UK Withdrawal Agreement”.

I could go on, but we are agreed. There is no disagreement. We believe this to be fundamentally unacceptable, and what is within our power is that we do not give the legislation legislative consent. I very much welcome Sarah Boyack’s reference to David Lammy but also her underscoring of how important this is. It behoves all of us in all of our parties to have a united front on this and to speak with one loud and clear voice. There are a lot of issues at stake here, all of which matter, some of them more directly to us but also in general terms to us as supporters, as we all are, of peace and reconciliation in Northern Ireland. We cannot allow this to head in the direction of worsening relations between the UK and the European Union and the potential for a trade conflict. Also there is the running roughshod over the democratically elected majority view of parliamentarians in Northern Ireland, who want this arrangement to carry on and are not in favour of the UK Government’s approach.

In general terms—my colleagues at official level might have some more specific reflections to make—the UK Government’s confrontational approach has undermined relations between the UK and the European Union to the point that there is not, broadly speaking, a fully constructive working relationship between the UK and the EU.

One of the damaging consequences of that course of action, which we must help the UK Government to understand, is that a series of other things are not proceeding under normalised or improved relations in a post-Brexit environment. There is a chilling effect on European institutions, and that is not a good thing. There is neither the bandwidth nor the willingness to have a fully mutually respectful relationship when the EU looks at the UK and observes that it is a partner that agrees something one year and then walks away from it the next year or the year after. Why would the EU seek other forms of agreement when it does not even know whether the UK will stick with the existing agreement? It is profoundly problematic. It is not a position that any rational, sensible actor wants to be in.

In the short period of opportunity that exists, I encourage the UK Government to think about pressing reset buttons. In particular, I encourage it to press a reset button on the Northern Ireland protocol, because it is in everybody’s interests that we support peace and reconciliation in Northern Ireland, that we support the solution that has been found that, in effect, allows Northern Ireland to remain within the European single market, and that manageable and proportionate border arrangements can be found for Northern Ireland and Great Britain.

Thank you very much, convener, and a very good morning to colleagues on the committee. We are here today to discuss the Scottish Government’s legislative consent memorandum on the UK Government’s Northern Ireland Protocol Bill. The committee is very well aware of all the reasons why colleagues and I have serious misgivings about the bill, but let me begin by acknowledging that talks between the UK and the EU on the protocol have resumed in recent weeks—they are the first substantive structured talks since the early part of 2022—and that there appears to be a shift in tone.

It was certainly striking to hear the Northern Ireland minister and former European research group chair, Steve Baker MP, publicly apologise to Ireland and the EU for behaviour during Brexit negotiations that had not inspired trust. It is my sincere hope that the UK Government will seize this moment to re-engage in good faith with our European partners, build more positive momentum and seek sustainable shared solutions, but two important things must happen to make that possible. First, the chaos engulfing Westminster needs to be brought to an end. Secondly, the UK Government must end its irresponsible threats to override the protocol unilaterally and withdraw the bill without delay.

As the committee will be aware, shortly after the bill’s introduction in June, the Scottish Parliament held a debate and passed a motion condemning the bill as “fundamentally unacceptable”. Not a single member of the Scottish Parliament voted against that. Since then, the legislation has passed through the House of Commons unamended and is now progressing through the House of Lords. The bill has been met with deep concern by legal experts and our allies around the world, yet not a single Conservative member of Parliament voted against it. The UK Government has acknowledged that the bill engages the legislative consent process and has sought the consent of the Scottish Parliament. As the memorandum sets out, the Scottish Government does not recommend consent for the bill, for reasons of its potential illegality and its impact on Scottish interests.

On the question of legality, the bill will make UK domestic law incompatible with the UK’s international obligations under the protocol. To do so may put the UK in breach of international law. Although that is a question ultimately for the courts, domestic or international, many prominent legal commentators—you have heard from some this morning—and European leaders have already robustly challenged the UK Government’s legal position. The bill also threatens profound consequences for Scotland. It has heightened tensions in a dispute that has already badly damaged UK-EU relations and stalled all progress on the TCA, with direct implications for Scottish priorities, including horizon Europe association, energy trading and re-establishing market access for key exports.

As the memorandum sets out, if the bill becomes law, the consequences of the escalation could be economically disastrous for people in Scotland. It could lead to tariffs being imposed and even to the trade and co-operation agreement being suspended. That the UK Government is willing to risk a trade war in the middle of a cost of living crisis, after all the ideologically driven economic chaos that it has already inflicted on us all, is unconscionable. For those reasons, the Scottish Government cannot recommend consent for the bill.

On my last trip to Brussels, I met the UK ambassador to the EU and European partners and emphasised that a negotiated solution is in everybody’s interests. It is important to maintain constructive relations, and that is what the Scottish Government will continue to seek to do. Indeed, that is why I wrote to the Foreign Secretary, James Cleverly, on 30 September requesting urgent bilateral and four-nations meetings on UK-EU relations. Mr Cleverly responded this week, committing to a four-nations meeting before the TCA partnership council next meets. However, no date has been fixed and in general there has been a frustrating lack of ministerial-level engagement in this space.

I hope that this introduction has been helpful and I welcome any questions, convener.

When I have discussed this issue with colleagues in Wales, it has been one of the areas of great concern that we share because of the direct implications of what is happening as a result of the very confrontational course that the UK Government is taking. It is no way to run international relations; it is no way to deal with an important trading partner in Ireland and the wider EU in general. What is happening in relation specifically to Henry VIII powers—the ability of the UK Government to pass legislation that allows it to make subsequent legislative changes that are not subject to parliamentary scrutiny and oversight at Westminster, let alone here in the Scottish Parliament, and potentially in devolved areas—should concern us all.

The last part—and this is a concern in Wales, as it is in Scotland—is that when we, as Parliaments and Governments, say that we have a profound problem with a piece of legislation and we use the mechanisms that are in place to underline that, up until now and repeatedly we have seen the UK Government override it. Yes, the concerns are shared. I would hope that there is understanding across the committee, given that no MSP objected to the concerns that were expressed in the motion that the Scottish Parliament passed, and that we are of one mind, both as a Parliament and as a Government, in saying to the UK Government that it really needs to think again about this. Not only is it of profound importance to Northern Ireland, it matters to devolution and intergovernmental relations in the UK, and of course it matters that we do not escalate things with the EU such that we face a potential trade war. It is in nobody’s interest.

There is the direct question, but there is also the implied suggestion that there should, with a change of tone, perhaps also be a change of approach more generally that might be able to secure an agreed solution between the UK and the EU. If that is the thinking in Downing Street, I would very much welcome it, but I think that Donald Cameron would agree with me that we need more than a change in tone. These are very technical questions, but just to underline his point, which I agree with, I note that in the conversations that I had with UK and European partners, which I alluded to in my opening statement, there was a clear acknowledgement that there is a potential for what is described in the jargon as a landing zone for an agreement. All of that underlines the point to me that, if that is the preferred trajectory, that is indeed where we should be looking, rather than passing legislation, which as we know is deeply troubling for a number of reasons, especially given where things are in Northern Ireland and the sensitivities around that.

I think that everybody understands that no Executive has been formed in Northern Ireland and that, unless there is progress this week, that there will be elections again in Northern Ireland. It is worth putting on record if it has not been put on record thus far today, that in the last Northern Irish elections, a majority of members were elected in support of the arrangements, and it seems to me that what we need now is more than just a change in tone. We need a change in substance. We need to break the logjam in all of this, which is why I think that the UK Government should not proceed with the confrontational course of action that it is proposing to take with this legislation but should do what the Scottish Parliament voted for—or certainly did not vote against—and withdraw the bill and make progress on a diplomatic and technical level to reach a solution that I would hope is to everybody’s benefit. A change of tone, yes, but let us see a change in substance too.

Donald Cameron asked whether there were areas where one could see room for technical solutions. The answer is yes, and that has been signalled by Commissioner Šefcovic and proposals have been made by the EU side. It would be good to see those from the UK side, but it certainly will not be helped by legislation that legal observers with much greater legal training than I have—I am sure that Donald Cameron, as an advocate, knows many of them—believe is in breach of international law. That is very serious, if that is the case, and is yet another reason why the UK Government should not be proceeding with the legislation.

Indeed. What is happening with these so-called Henry VIII powers has been described by the Hansard Society as “breathtaking” in scope. For those who are unaware of what Henry VIII powers are, it is very important that we do not hide behind terminology that sounds fluffy and historic and archaic. What does it mean? It is exactly as Sarah Boyack suggests. It is in effect taking away the power of Parliament to have oversight and scrutiny, but at the same time it drives a coach and horses through the devolution settlement because it confers on the UK Government powers to legislate in any areas that it so chooses and is the end of us as parliamentarians, elected in this Parliament to hold the Scottish Government to account and me as a minister of the Scottish Government to be answerable to you as a committee and Parliament more generally. I would be saying to you that in future evidence sessions you really need to speak to UK Government ministers who are legislating in this area.

Work has been done in the House of Lords. I am a critic generally of the House of Lords as an unelected institution but, obviously, a great many members of the House of Lords have great minds and legal experience, and its European committees in particular have an incredibly high standing. I know that as somebody who sat on the European Scrutiny Committee of the House of Commons for a decade. What has been said by the House of Lords committees on the point that Sarah Boyack raises should make alarm bells ring everywhere. I do not know whether this is on the record, convener, but it is worth making sure that it is—the chair of the House of Commons Justice Committee, Sir Robert Neill, observed, somewhat colourfully:

“There are Henry VIII powers and Henry VIII powers; and this is Henry VIII, the six wives, Cardinal Wolsey and Thomas Cromwell all thrown in together.”

That is amusing in making the point that we are talking about something that is very significant, but let us understand what the significance of it is. Again to pray in aid the House of Lords, I note that its Delegated Powers and Regulatory Reform Committee made the following assessment in June and I quote from it:

“The Northern Ireland Protocol Bill is a skeleton bill that confers on Ministers a licence to legislate in the widest possible terms. The Bill represents as stark a transfer of power from Parliament to the Executive”—

and we are talking about the UK Parliament and the UK Executive—

“as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament, the EU and the Government’s international obligations.”

One could add that the result of using this power is that it totally undermines and subverts the devolution settlement, so we should be very concerned about all of this, which is another reason why we should not be giving it legislative consent to proceed.

I think that the reputational damage is profound. One of the common narratives that one hears when one hears people internationally talk about the UK is about the mother of Parliaments, the rule of law and so on, and how all those things are positive attributes of the UK. That is being called into question, and not just—I say “just”—by our colleagues across the EU. That is also the position of the United States of America, which is one of our most important trading partners. We have not gone into this yet, but the idea that there will be a trade agreement between the UK and the United States in the present context is unimaginable. It will simply not happen and the US has said so in terms. You are absolutely right—the issue is a very broadly damaging one from the point of view of reputation.

There is another aspect to this that may develop in time. I reflect on the fact that there was an election in Northern Ireland at which people voted for something to happen, just as people voted in last year’s Scottish Parliament election for something to happen. There will potentially be another election in Northern Ireland. Were it to be the case that, yet again, a majority of parliamentarians in Northern Ireland were to be elected with the view that they were in favour of the protocol arrangements and were not in favour of the UK Government’s approach, and for that to be disregarded again, how much more would it take for that to be noticed internationally?

I do not think that it would take a lot more, because what we are seeing is a UK Government that is disregarding election results in Northern Ireland and in Scotland, and which is potentially about to do so again in Northern Ireland. Therefore, the UK Government has a reputational problem as regards its being prepared to “disapply” the protocol, which is the way that the UK Government likes to put it. Imagine having that as your defence in a court of law: “I have decided to unilaterally disapply the law as it affects me. Please rule in my favour.” It is ludicrous. It is a unilateral breaking of international undertakings when there are other routes to remedy.

There are ways in which the UK Government could act in line with its international agreements in an effort to solve the problems that it believes to be in need of resolution. I agree that there is a reputational issue when it comes to international law, but I think that there is also a parallel issue in relation to the UK Government disregarding democracy, which I think will undermine us reputationally in the months to come.

Good morning, convener, and thank you for the opportunity to make some opening remarks.

This evidence session on pre-budget scrutiny is an important part of the normal process for setting annual Scottish budgets, but I think that we all agree that the circumstances that we face today are anything but normal. Our public finances are under huge pressure from soaring inflation—which is at a 40-year high—and the cost of living crisis. Uncertainty has increased with the negative market reaction to the UK Government’s tax announcements two weeks ago.

The combination of the on-going cost of living crisis, high inflation and the forecast recession has increased demand for Government funding. Not surprisingly, the committee has consistently heard that theme from witnesses in the culture sector. The limited cash funding that the Scottish Government can make available for public services is being eroded by rising inflation. Our budget for this year, as you know, is worth about £1.7 billion less than when it was announced in December, with inflation having risen from 4 per cent to 9.9 per cent in the meantime.

Our cash plans in the resource spending review announced little more than four months ago are similarly being eroded by greater inflation. That is a challenge that faces public services in all Government portfolios, but I am acutely conscious of how economic circumstances are affecting the culture sector. Building-based organisations in particular face steeply rising costs. Everyone who works in the sector is rightly concerned about their pay as living costs rise so steeply.

Added to that is the mixed picture of post-Covid recovery in visitor and audience numbers. On the one hand, I hear some positive reports of recovering visitor numbers in museums, galleries and heritage attractions, but, on the other, there is a more tentative picture in relation to audience figures in performing arts and cinema. Most of all, there is the continuing uncertainty, as the rising cost of living undoubtedly means that people are cutting back on leisure spending. What the committee has heard from witnesses is what we are hearing from our discussions with our culture public bodies and the broader sector.

To address those economic challenges, the Scottish Government is making hard choices to prioritise spending through savings that were announced by the Deputy First Minister on 7 September and the emergency budget review that is due later this month. Although none of that is a surprise to the committee, it is worth repeating the context to what will be difficult decisions in the forthcoming 2023-24 budget.

The resource spending review envelope for culture and major events for the next financial year is £172.8 million, which is a cash reduction of £4.2 million, or 2.3 per cent. That does not include the impact of inflation, which shows that there is already a challenge before inflation is factored in and, indeed, before the possible further public spending cuts that are being trailed by UK ministers.

I will continue to argue for the most public funding that we can afford for the culture sector. I am also keen to conclude some work on multiyear funding, even if economic uncertainty means that the figures for later years can be at most only indicative, because I know that multiyear figures would help the sector to plan ahead.

I know that the committee wishes to concentrate on the culture budget in its pre-budget discussions, but I would also be happy to answer any questions on other areas of my portfolio. If there are any questions that I cannot answer today, I will, of course, write to the committee.

Galleries and museums are in a better position to understand trends in visitor attendance and spending, but we know the headline numbers and percentages. To be frank, a lot of that is encouraging and shows that people are visiting, which is one reason why we are committed to free public access.

We hope that people who view evidence sessions such as this will take every opportunity to encourage the public to visit our amazing galleries, museums and public cultural institutions. I will take a stab at answering by saying that discretionary spending reflects how people are feeling about how much money they have in their wallets. Although people might enjoy going to see great works of art, they might be economising on other things—they might be choosing to use the cafes less and to buy less in the amazing, high-quality shops in our galleries and museums. That is my best stab at answering that question, but I have no doubt that those who are in charge of galleries and museums will be looking at all of that.

Notwithstanding that, I take the opportunity to encourage people to be aware that such facilities are still free and are open to the public to attend. They are also warm spaces, which people should consider as we enter the winter months. As we emerge from Covid, we should remind ourselves that we perhaps have not been to visit our galleries and museums for a while so should take the opportunity to do so.

I am sure that those who are charged with making some of these project funding decisions will be looking closely at the evidence that has been given. The committee took evidence from Creative Scotland before I sat in this chair. I am sure that they will be thinking about that, because they will be thinking about it anyway. If I am entirely honest, I think that it will be an eternal question. We want new and innovative projects, do we not? We want to learn the best from elsewhere and we want to try to improve things. There is always an attraction on all our parts, regardless of where we sit politically, to say, “This is a good and new thing, and we need this new thing to help address this shortcoming or this challenge or this opportunity.” At the same time, we have a series of established projects that are supported. There might be a feeling that those are holies of holies that could never be challenged. There is a tension in that, is there not? I do not think that there is a simple answer to this, but we need to be on the ball with that particular dynamic. We need innovation and projects, but we also need to protect that which is good and that which works.

That is one aspect of the challenge, but on the second question of different funding pots, it was always thus, was it not? As well as the Scottish Government and Government agencies that are charged with supporting projects, there are other places that provide funds for cultural projects. I am thinking of, say, the UK Government in some cases; in the past, we had the European Union; and beyond that there are different national and international pots.

Another dimension that is worthy of consideration is the amount of time that organisations have to spend on trying to identify where they can get funding from. One has to be of a certain size to do that sort of thing efficiently and effectively and to have the expertise to draw down those funds. I am not being critical here—it is just an eternal observation and a statement of fact.

Something that I would be concerned about if it were so would be people not knowing where to turn in order to draw down funds. That is as relevant in the public sector as it is for Government and other organisations. After all, there are some very important funding sources beyond Government; I can think of, for example, the Heritage Lottery Fund and, indeed, the Postcode Lottery, which, incidentally, is headquartered in Edinburgh and gives a lot of support to a lot of small and medium-sized community and cultural projects.

I know that there was a lot in that, but what I will say is that if the committee has evidence that people are finding it difficult to know where to turn—which is potential criticism number 1—or, secondly, that they are not being treated fairly when they seek support, I have to say that I would like to understand that better. The context of all this is constrained budgets, which are an issue affecting not just Government but other funding organisations in both the private and public sectors. I should also mention philanthropy, because there are cases of people who have been extraordinarily generous in supporting culture and the arts but whose spending has now been constrained.

There is something in all of that. I take upon myself the fact that I have some responsibility with regard to my convening power—if I can call it that—to be able to help in different areas of funding, whether it be national or local government, philanthropy or the private sector. I am doing some of that work already, but maybe there is more that I can do. I am open to encouragement, Mr Cameron.