Seòmar agus comataidhean

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.

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.

I could reread what I said in a previous answer about how the Scottish Government manages the alignment process with regard to the central DEXA team, Scotland house colleagues in Brussels and Scottish Government lawyers as the three key groups in the triage process—if you want to call it that—of understanding what is coming towards us. That all goes into the civil service system and is considered in ministerial decision making—that is the process.

I am also answerable to Parliament through this committee as well as through answering members’ questions in the chamber. If people have questions about how decisions are made or which decisions are being made, I am happy to consider them in addition to the broad spectrum of ways in which I and my civil service colleagues have answered the committee’s questions already. If Mr Golden has any specific examples on which he wishes more information, I am happy to provide that.

Unfortunately, I do not—absolutely none. I need to go straight to an event in the room next door with Scotland house staff.

I am happy to do so briefly, if I can think of some areas where alignment has been a factor.

One recent and concrete example is the regulations on single-use plastics. We are trying to be more environmentally responsible, are we not? We are trying to ensure that we are not unnecessarily polluting the environment, so stopping the production of things made from plastic—whether they be cutlery, plates or whatever else—that are to be thrown away after use is probably the most tangible recent example of an area where we have sought to remain aligned with the European Union. We are the first part of the United Kingdom to have done that, and we have had to do that by using new mechanisms that have been introduced for a post-Brexit UK. The United Kingdom Internal Market Act 2020 and the common frameworks, which we have discussed in committee before, have had a role in considerations around that.

That is an example of where we are trying to do our best to maintain the highest standards—and, as we know, the highest standards are the EU standards. That is what we are doing; the rest of the UK has not done it yet, and it is for them to decide how they want to proceed, but we want to ensure that we live up to the highest standards that we can. For that reason, we try to remain aligned with EU policy, and we have done just that.

Indeed.

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.