Seòmar agus comataidhean

Absolutely. It is my view and that of the Government that it is detrimental that we are no longer in the room and able to influence the decisions that are made at European Union level. We seek to change that. You are right that that is a description of the facts. There is a change in circumstances. We must ensure that we are making the best decisions in the best possible way in the circumstances.

Yes, and that is a good example. There is an example in relation to plant health where there has been a divergence, but it has been a divergence upwards. What is the Scottish Government’s policy objective in relation to the European Union? It is that we remain aligned as best we can, using the different ways that we have outlined. However, when things come along on which we want to have enhanced standards, that is exactly what we have been doing.

I understand that people want to be assured that we do not want a diminution of standards, and I am delighted that we are hearing that from Conservative members, too. If there has been a divergence, we have sought to have higher standards. I will probably not pronounce this properly, but one area that has been flagged up to me is about Xylella. Is that correct?

Indeed.

I am sure that Mr Russell will be delighted that he is in your thoughts. You obviously have the advantage of having been involved in the process at a time that I was not. I deal with the ball as it is at my feet. The committee will know that the power is there in legislation for it to be used, and it is the Scottish Government’s intention to do so, but not within the current reporting period.

I will draw your attention to an issue that you might want to come back to in order to understand how the decisions are made. The recast drinking water directive came into force on 12 January 2021, following formal adoption by the European Parliament on 16 December 2020. There is a two-year transposition window. The Water (Scotland) Act 1980 provides for regulations to be made insofar as they relate to standards that must be met by water that is for human consumption. However, the recast directive introduces a much wider set of requirements, such as those relating to risk assessments of catchments, supply systems, internal plumbing systems and so on.

I flag that up to the committee as an area in which we are considering using the powers. When Government ministers have said that it is important that they have that legal club in the metaphorical bag to be used in certain circumstances but have not yet used it, the question, of course, is why they needed the power in the first place. The answer is exactly for circumstances such as those.

I have looked closely at the whole area, and it strikes me that, because the range of ways in which that Government can legislate and introduce regulations is very broad, we should seek to use the most sensible way of doing that—Mr Cameron, as a lawyer, will know that. Being pragmatic, Government has sought to make sure that it does that in the most appropriate way. In short, the process was proposed for a good reason, is there for a good reason and will be used for a good reason, but has not been used yet. Other methods have been used to deliver the Scottish Government’s intent of retaining alignment with the European Union.

Indeed. However, the baseline position is that we are trying to remain as aligned with the European Union as we can be and as it makes sense to be. I understand that, for you to be able to understand how that is working in relation to specific measures, you will have queries about how it works. You have a range of ways whereby, if you are unaware of how things are working, I, as the cabinet secretary with lead responsibility for external affairs, can answer on that, through answers to direct questions in the chamber and written questions, and through statements from the Scottish Government in relation to specific legislation.

We possibly need to draw together the range of ways in which one can access information about things, so that it is obvious how one does things or can do things, and so that we can make it absolutely clear how we are going to flag up and incorporate information about the processes that we are using in relation to specific legislation and proposals by the European Union. If there are additional ways in which we can proportionately answer such queries—for example, I refer to Ms Boyack’s suggestion of a website, although people are also interested in paper—those are all things that can be looked at. From our perspective, it is a question of how we get a balance between doing what we are doing—we are remaining aligned—and ensuring that you have as much information as you require for your purposes in scrutinising the Government’s work. I am entirely open to considering how we can best do that.

Yes. Exactly that point was made in a discussion that I had with the voluntary sector. The Scottish Council for Voluntary Organisations has had extremely positive and mature links with colleagues across the rest of the European Union. I think that Irene Oldfather, who is an erstwhile colleague who is very well versed in how Europe works, is involved in that.

Colleagues in the SCVO were extremely keen to ensure that we use Scottish civic society’s links and, by extension, those of local government and professional organisations, for example, so that we are fully sighted on developments. We need to look at all the ways in which we can ensure that we are up to speed and have the best co-ordination and the best practice. We need to look at what we are doing with this and that, take that away and work out a format.

I have given the example of speaking with the SCVO. We are already having such discussions. However, there is the question of the format and regularity of discussions and the extent to which they are structured around particular proposals that emanate from Europe or the priorities of the European Commission or of an incoming presidency. We want to be flexible to ensure that we capture experience, insights and good will.

That is a very good suggestion.

There is a full panoply of engagement. I am sure that many of you feel that we spend half our lives in Teams meetings. I certainly do, whether that is meeting with COSLA or with any number of other organisations. Our colleagues in Government deal with stakeholders, some of whom you have taken evidence from. It is helpful to get that evidence. I have previously said to the committee that input from those stakeholders is valuable, because it allows us to reflect on how things are working and on what we need to do more or less of. I stress again that we want to ensure that we do that as well as we can.

The Scottish Government’s intention is to retain what we believe are the higher standards of the European Union, rather than join the race to the bottom that is signalled by the approach of the United Kingdom Government to no longer being part of the European Union. If anyone is concerned that decisions are being made in Scotland with the intention of diverging from or diluting the higher standards of the European Union, I can give them an absolute assurance that that is diametrically opposed to the Scottish Government’s aims.

The trade agreements that are being forged by the UK Government illustrate a weakening of standards compared to those previously agreed by the European Union. We are right to be concerned about a race to the bottom, but the Scottish Government is not in that race. We are racing to try to maintain high standards in their own right, so that we have the highest standards, but also so that, when we rejoin the European Union, we can do so with the greatest of negotiating ease, because we will in effect be fulfilling the standards of the acquis communautaire.

There is also a flipside, which is that we have colleagues in the third sector who are involved in projects, planning and other priorities, and we might not be aware of what those are. Therefore, it is a two-way street. I completely agree that we want to make sure that we are as well aligned as possible in that regard.

Members will be aware that the United Kingdom is actively considering whether it should use what are known as article 16 powers in relation to the Northern Ireland protocol. That would, in effect, be the UK unilaterally saying that it does not think that the agreements that it reached and signed with the European Union are fit for purpose. Given what has been emanating from discussions with the European Union in recent weeks, one would have reason to believe that Lord Frost and his colleagues are actively considering pursuing that course of action: unilaterally repudiating an agreement that I think I am right in saying was described as “oven ready” and a huge negotiating success.

There will be consequences if the UK proceeds with that approach. Brexit has already caused economic damage. Members are well aware of the estimates that have been made by neutral organisations, which have assessed the quantum of damage from Brexit as being at least twice that caused by the coronavirus pandemic. UK exports to the world’s biggest single market are down by more than 15 per cent. The Scottish Government’s view is that anything that leads to yet further worsening of relations with the European Union and of the impact on our economy would be a hugely retrograde step. That is my first observation.

My second observation is that for the UK Government to be considering doing such a thing without any active or serious consultation with the devolved Administrations of the United Kingdom is yet another sad example of how taking back control from Brussels also means taking back control from Edinburgh, Cardiff and Belfast. That is a retrograde step.

We have tried to flag that up with Lord Frost, as have a great many people in Northern Ireland, because the matter relates specifically to Northern Ireland. The danger is that turning away from the agreement that was reached might lead to a worsening of community relations in Northern Ireland—that is a euphemism for the potential return of violence. That is not in anyone’s interests, and all of us should ensure that that does not happen.

In answer to your question, Dr Allan, we are very concerned about the UK’s aggressive approach to diplomacy. We are very disappointed that it has taken that approach without any active consultation with devolved Governments across the UK. I, and colleagues in other devolved Administrations, have called for discussion to take place before any precipitous decisions are made on article 16. I very much hope that the UK Government will step back from its threatening position, which also undermines the belief of European Union decision makers in the UK as a trusted partner that will deliver on what it agrees. That is to our detriment, notwithstanding the fact that we did not agree to Brexit and do not wish the Northern Ireland protocol to be treated as it is being treated by the UK Government. We are caught up in the backdraft of all that.

Do we know whether the UK Government will proceed with article 16 and repudiate the Northern Ireland protocol? No, we do not. It might have been a negotiating tactic to try to get some concessions from the European institutions—which, I might add, have signalled very loudly that they are willing and open to making improvements to arrangements where they can be made.

I simply leave with you the thought that, should the UK Government go ahead in using the article 16 powers, it is widely expected that the European Union will consider countermeasures to the UK’s aggressive approach. That means that there is the potential for tariffs to be imposed by the European Union on products from Scotland. That is not expected to happen immediately, given the time factors that have been built into the process, but it is entirely possible that, should the UK Government continue with its aggressive approach towards the European Union, we, our businesses and our exporters might be caught up in the consequences.

I therefore use this platform to appeal to everybody to keep cool heads. Let us try to maintain good relations with the biggest single market in the world and to improve, not worsen, the relationships between the UK Government and the European Union. The same point has been underlined by a great many people in Northern Ireland, and I hope that the UK Government listens to them, too.

The situation is in flux, given that the United Kingdom has only recently left the European Union and that the institutions that were in place to manage the interrelationship between EU institutions and member states—in this case, the UK, which is now a third country—have been changing.

Committee members will be aware of the role that was played by UKRep—the United Kingdom permanent representation to the European Union—which was extremely well staffed with extremely competent officials with understanding of the full breadth of the work of the European Union and its institutions. That has now changed. There is a UK mission to the European Union—UKMis—and how it reports to the United Kingdom and, by extension, the devolved Administrations is also subject to change. Those things are not in our power. We did not choose to leave the European Union or to downgrade our representation to European Union institutions, but we are having to deal with the consequences of a changing—and, in my view, worsening—situation.

As to how we deal with that, a central team in the Scottish Government’s directorate of external affairs works closely with Scotland house in Brussels and with Scottish Government lawyers—I have excellent examples of my colleagues in both those fields sitting next to me. They work in support of the policy directorates across the work of the Scottish Government in considering the Government’s policy to maintain and advance EU standards where appropriate. The team supports that work as part of DEXA’s on-going business to enable policy areas to understand the international context of their work. The team ensures that policy areas consider where alignment might be possible and how it 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.

Before Mr Ruskell manages to catch the convener’s eye, I have a confession to make in relation to the work of the committee on that very question. I put on the record that, during the early stages of devolution—between 1999 and 2001—I advised members of this committee’s predecessor on the very question of the scrutiny of the European legislation that was before it. I think that I am right in recalling that not a single member of the committee now was on the committee then.

One of the big differences between how the committee has worked recently and how colleagues worked then is that a considerable amount of time was taken up with what was known as the sift of European documentation, which related to how the committee could continue to understand what was coming from European institutions and what it—and, by extension, the Scottish Parliament—needed to understand about particular European Union regulations, directives and so on to ensure that the Parliament and the Government were best informed.

During the past 20 or so years of devolution, the committee has taken the view that that was not an efficient and effective use of its time in maintaining optimal scrutiny of what was emanating from Brussels. Having sat on the European Scrutiny Committee in the House of Commons for 15 years, I can attest to how much time and effort were spent looking at the papers that emerged from Brussels, often with not tremendously great effect. However, because it might be helpful, I flag to the committee that European memoranda on European proposals, regulations, laws and so on are extant; they continue to be produced. Therefore, if committee members, the clerks or anybody else wishes to spend a lot of time—it takes a lot of time—doing the individual or collective sift, as was done previously by this committee and the European Scrutiny Committee of the House of Commons, they will still be able to do so.