Seòmar agus comataidhean

Thank you very much, convener.

We are focusing today on the European Union, particularly alignment with EU laws and standards, but I want first to highlight the background to all this. The people of Scotland have made it clear on a number of occasions, not least in the Brexit referendum, that Scotland should continue to be part of the EU, and the Scottish Government believes that the people of Scotland should have the right to choose their future, with Scotland an independent nation and an EU member state in its own right. We will continue to advocate for Scotland’s place in Europe and the world.

In the meantime, we are committed to remaining close to the European Union and to building the strongest possible relationship between the EU and Scotland. We have demonstrated that in many ways, from our policy choices to our investment in our enhanced overseas presence and our commitment to giving the warmest of welcomes to EU nationals. That approach lies behind our policy of maintaining alignment with the EU, where appropriate, in a manner that contributes towards maintaining and advancing standards across a range of policy areas. By doing so, we will protect the health and wellbeing of people in Scotland and maintain Scotland’s reputation for being inclusive and outward facing. By protecting and continuing to advance the high standards that are enjoyed in Scotland, we will ease the future process of Scotland’s return to the European Union.

We are doing that in a range of ways. In our policies, our grant giving, our guidance and our practice, we will take as the default the measures adopted by the European Union. We support EU standards and hope to apply them here soon.

The same will apply with relevant legislation, which is the issue lying at the heart of this morning’s session. For nearly 50 years, Scotland formed an integral part of the European Union, with EU law being directly applied or with our being obliged to implement it in Scots law through powers granted under the European Communities Act 1972. Now that the UK has left the European Union, ministers have replaced that obligation with a policy of aligning devolved law with the EU, where appropriate—in other words, where it is possible and in Scotland’s interests to do so.

That approach acknowledges a number of factors—this brings us to the nub of the issue. First, the literal application of EU law in Scotland might not be possible in some cases, due to Scotland’s—and the UK’s—current status as a third country following EU exit. For example, the law might not have been designed to be applied outside EU member states.

Secondly, the Scottish Government might be constrained from applying EU law due to international or existing legal obligations, particularly reservation by Westminster.

Thirdly, a combination of circumstances, including, for example, the operation of the United Kingdom Internal Market Act 2020, might lead ministers to judge that alignment of legal texts would not be in Scotland’s overall interests with regard to that particular law under the current constitutional dispensation. In such cases, ministers might judge that, due to circumstances outwith our control, a level of divergence would be in Scotland’s interests, but such an approach will always seek to preserve the values and outcomes that we share with the European Union, ranging from tackling the global climate emergency, protecting our environment and supporting smart and sustainable economic growth to recovering from the pandemic. Scotland will not deviate from those common aims.

In short, we need to make it clear that, although the power in section 1(1) of the 2021 act provides an important means of achieving alignment, it is not the only means of doing so. As the policy statement sets out, our starting point is to align via policy development. If a law is required, primary legislation might be more appropriate in some instances, but the preference is for specific domestic powers, if available, to be used for making secondary legislation.

That does not mean that the power in section 1(1) of the 2021 act is unimportant—far from it. It provides an important backstop when a legislative change is needed for alignment, but primary legislation is not necessary when subject-specific enabling powers are not available or are not appropriate. Although we have not yet needed to call on the power in section 1(1), it is critical in maintaining the Scottish Government’s ability to make subordinate legislation, where appropriate, to ensure that we keep devolved Scots law aligned with EU law as it develops, and we will not hesitate to use the power in future where appropriate and necessary.

With regard to the two documents that are before the committee, part 1 of the 2021 act requires the Scottish ministers to publish a statement of their policy on the approach to be taken, the factors to be taken into account and the process to be followed when considering whether to use the power under section 1(1). Prior to the policy statement’s publication, it must be laid in draft before the Scottish Parliament. Therefore, in accordance with section 7(3) of the 2021 act, the current statement is laid in draft for a period of 28 days, and I look forward to considering members’ representations on the draft in preparing the policy statement, which will be laid before the Scottish Parliament for approval.

Part 1 of the 2021 act also requires the Scottish ministers to prepare and lay before the Scottish Parliament a report that explains how the section 1(1) power has been used during the reporting period, how it has been considered for use and how it is planned to be used over the coming reporting year. The report must also set out how the use and planned use of the power have furthered or will further the purpose of the power in section 1 to contribute to maintaining and advancing the standards that are mentioned in section 2.

Finally, the Scottish Government’s first draft report covers how the section 1 regulation-making power has been used from its commencement on 29 March 2021 to 31 August 2021. The report is laid in draft for a period of 28 days. Representations are invited on the future use of the power, as described in the draft report, and I look forward to considering such representations from members in preparing our final report.

I hope that that short introduction has given members some helpful background on the important issue of alignment, and I look forward to the committee’s questions. I am also delighted to be joined by my colleagues, who will no doubt be able to answer any technical questions about the application of the measure by the civil service.

I hope that I am not opening a can of worms, but I do not think that the Scottish Government liaised with Dundee City Council about regulations pertaining to water management in the Mediterranean.

I understand the tensions around the wish to have maximum transparency and understand every single proposal. As I said at the start, I have lived in that world. I have sat on your side of the fence and, week in and week out, gone through piles of things that are largely not relevant or interesting. I understand that there is still a wish to say, “I would like to see what is happening, if I may, please, thank you very much.” I get that. However, I am sure that members appreciate the tension between that wish and just saying, “Listen, there is a whole range of things on which we don’t need to consult, because they have absolutely nothing to do with us.”

I see that my colleague’s hand is raised. We are going to get some examples of regulations that have nothing to do with us.

I will defer to colleagues on the technical aspects of any specific measures. With regard to what has emanated from European decision making, there is not a long list of things that we are not proceeding with. We are trying to remain aligned.

It is easiest to explain non-alignment with, for example, water control measures that apply to Mediterranean nations. We do not need to align with those, because we are not a Mediterranean nation. There are all kinds of examples. That, to me, having reviewed everything, is the biggest single reason that something is not proceeded with—that it has no impact on us whatsoever, in the current framework wherein we are a third-party state.

I am not aware of any significant proposals on which we have taken the view that we will not proceed with it and will not remain aligned because we think that it is a terrible idea. The tendency is that things are not proceeded with because they do not impact on us.

I do not want to pluck ideas or particular measures off the top of my head. My colleagues might have a list of regulations or directives that have nothing to do with us; there are quite a lot of them. Were we a member state, of course, we would have needed to do what member states need to do. However, given our circumstances, as we currently find ourselves outside the European Union, we do not need to do those things.

I will give my colleagues a moment to think about that, specifically in relation to the point that you raise.

More generally, the question has been an apposite one in relation to single-use plastics. That is where the internal market act intersects with the common framework arrangements that preceded the act. Those arrangements gave the ability for there to be divergence in policy in different parts of the UK. That was agreed by the United Kingdom in the House of Lords, and I have been trying to make progress on that in recent months.

I have some good news to share with the committee. Last week, I chaired a meeting on common frameworks with the UK Government, the Welsh Government and the Northern Irish Government on making progress with common frameworks. I have to say that, in stark contrast to my other suboptimal experiences, that is an example that shows that it is possible to make progress. I commend my colleagues from the UK Government and from Wales and Northern Ireland, as well as the officials who were involved.

Should the common frameworks operate in the way that they can, it will be possible to make the kind of decisions that we want to make on single-use plastics, for example, regardless of the approach that the UK Government takes. That may apply elsewhere, and specifically to the point that you raised, convener.

I do not know whether either of my colleagues wishes to say anything on that, but I am informed that the UK Government has chosen to do the same as the Scottish Government on Xylella. I commend it for following the Scottish Government’s lead.

I am perfectly happy to take away specific suggestions from colleagues on which transparency mechanisms would be most workable. I have no ideological or administrative position on whether it should be one way or the other; we can take away your suggestions and work with clerks and members of the committee on what might be the best way of doing things.

As for ministerial working groups, I would say that such matters operate largely at an official level. Things come back from Scotland house in Brussels and one takes a view, in conjunction with legal and external affairs colleagues, on whether proposals are such that alignment measures need to be taken. That has not been escalated to any ministerial working group that I have sat on, because no issue has arisen that has needed a cross-departmental approach. We are making this work by taking matters directly into directorates and areas of ministerial responsibility, and, thus far, nothing that I am aware of has required anything more than that.

Perhaps I can flag up some of the areas in which decisions on alignment have been required, just to give members a sense of the scope of that activity. Issues relating to Transport Scotland and the transposition of EU directives and secondary legislation are being managed through the Scottish statutory instrument process. Members will be aware of on-going issues with regard to single-use plastics and seed potatoes. There are also issues relating to plant health, gene editing and genetically modified crops, UK statistics and district heating—I could go on. Those are all active issues on which the Scottish Government is working to retain alignment. I should also confirm that they are issues on which the Scottish Government has been open to consultation and working with interested parties and those who are closely involved in such matters.

Seed potatoes, for example, are a really big issue in the agricultural sector, now that our access to the European market in that respect has been closed. Our interlocutors in that policy area are very well aware of the Scottish Government’s position, and they are working very closely with us.

We will do our best to continue to work with stakeholders and the committee on the best way of managing that and what format might be used, whether it be a website, sifts or whatever. All of those different models have been tried, and a balance needs to be struck between doing that sort of thing effectively and efficiently and not doing it that way.

That is totally understood. I should also have highlighted the undertaking to ensure that the alignment status of issues that are covered in any proposed legislation in the Scottish Parliament is clearly flagged up. In other words, there is an awareness of how those things figure with regard to the specific matter of legislation.

Notwithstanding the on-going policy engagement that takes place, I see the advantage of speaking to organisations such as COSLA and the SCVO. There are undoubtedly other organisations that we could speak to, and I would welcome any suggestions from colleagues about who might want to take part in such a process. I think that it would make sense for us to take that away and explore with those organisations how we can best work together with that specific aim in mind, and I am keen that we do that.

I understand the point.

That is entirely helpful. The purpose of having a committee session such as this is to gauge what members of this committee and the Scottish Parliament more widely regard as the optimal way to understand processes. Our default position is that the Government wishes Scottish legislation to be de minimis in alignment with that of the European Union. That is our position.

Thank you for putting that on the record. You have the advantage of having been in the previous evidence session; I was not. That is helpful. We go through the written and oral evidence, take away suggestions that have been made, and consider them.

Scottish organisations were represented in Brussels for a long time. They were co-located in the same building, which was an excellent model that ensured that local government and other organisations with an interest in European Union decision making were in the same building with Scottish Government officials. I want us to repeat that model when we become a member state of the European Union, because it is clearly the best one.

On the absence of funding, we do not have enough time in this evidence session to consider the replacement of existing European Union schemes with the anaemic and underpowered versions from the UK Government. Members should consider what has happened in respect of the Erasmus programme and how much less has been spent on the Turing scheme, and how much less has been spent on economic support through the UK compared with the structural funds and other European Union regional funds. That is no doubt another area in which people will, unfortunately, find that they are in a worse-off position than they were in when we were part of the European Union.

We will definitely take that away. I want people to be informed and to have the administrative capacity to inform and influence Government thinking and decision making. Obviously, we live in constrained times. If the Cabinet Secretary for Finance and the Economy was sitting here, she would no doubt impress on me the need for us to be financially responsible. We are, of course, financially responsible, but we need to ensure that we have the best governance that we can have.

If there is a feeling that it might not be obvious who made that point, can that be shared with me and officials, please? We will then have a look at any specific proposals that have been made.