Culture, Tourism, Europe and External Affairs Committee

Meeting date: Thursday, March 14, 2019

Official Report 633KB pdf

---

United Kingdom-European Union Interinstitutional Relations Post-Brexit

Good morning and welcome to the eighth meeting in 2019 of the Culture, Tourism, Europe and External Affairs Committee. I remind members and the public to turn off mobile phones, and I ask members who are using electronic devices to access committee papers to ensure that they are turned to silent.

Apologies have been received from Tavish Scott MSP.

The first item of business on the agenda is an evidence session on United Kingdom and European Union interinstitutional relations and the role of the devolved institutions post-Brexit. I welcome Professor Michael Keating, who is director of the centre on constitutional change, and Professor Paul Cairney, who is a professor of politics and public policy at the University of Stirling.

I thank you both for your written submissions, which have been very useful. I understand that Professor Keating wants to say a few words as an opening statement.

Yes. Thank you, convener. There will be two phases in the relationship between the EU and the UK after Brexit. First will be the transition phase—if there is a transition phase—which is dealt with in the paper that Iain McIver has written for the committee.

The second phase, which I will focus on, is the long-term relationship between the UK and the EU, which is in the political declaration as opposed to the withdrawal agreement. It is a completely unprecedented type of relationship. It is not EU membership, it is not the European Economic Area Norway option, and it is not based on an association agreement or a normal free trade agreement, so we have very little to go on. However, the indications are that it will be a comprehensive arrangement with a high degree of institutionalisation, and that the relationship will cover not only trade, but regulatory harmonisation and many other things. Many of those things will overflow into devolved matters, so there is big interest in the devolved Governments and legislatures about what is going on. There will be a binding arbitration mechanism, although we do not know how it will work, and there will be a lot of consultation.

For those reasons, the matter is of great interest to Scotland, Wales and Northern Ireland, but there is nothing in the political declaration about how the devolved Governments and legislatures will fit in. That is understandable because it is a matter for the UK, but it will have to be addressed.

Thank you. In your submission, you outline that a joint committee will be set up between the UK and the EU to look at dispute resolution. How will that work in practice?

We do not know. It seems that there will be two roles, one of which will be about consultation and dialogue. We do not know how the joint committee will work, but it will try to get agreement on matters that affect the EU and the UK. For example, if the EU introduces regulations and the UK is deciding whether to go along with them, there might be scope for discussion. If there is a dispute about interpretation of agreements, that will go to the joint committee. If there is no agreement in the joint committee, the matter will go on to international arbitration. I assume that that is intended to be exceptional and that the parties will normally try to get consensus in the joint committee, but the structure is unclear.

There is, in the withdrawal agreement, more detail on the transition period, because that seems to be more urgent. However, because we do not know what the nature of the long-term relationship will be, we do not know how broad the joint committee’s remit will be.

Right. There is no mention of the devolved Administrations in the withdrawal agreement: there is certainly no mention of Scotland. You said that the mechanisms would arbitrate in devolved areas. How would the devolved Governments feed into that?

There is no information about that, but we can talk about possibilities. One possibility is that we try to get something like the current arrangements for feeding into European matters through joint ministerial committees. That would involve another level of committee, which might be of concern to Parliament, given that the more committees we have, the bigger the problem of scrutiny.

However, I assume that there would be a mechanism for the UK Government to consult the devolved Governments and legislatures before it went to the joint committee. The key question is whether that would be consultation or joint decision making. There would, perhaps, then be a chance for the devolved Governments’ ministers to be represented in the joint committee in the same way that they can be present at the Council of the European Union, although they would not be representing themselves but would be part of the UK delegation.

It is often overlooked that although Scottish Governments complain that they do not have enough representation in delegations to Europe, there is some. However, there is no guarantee that that would be replicated under future arrangements, so Scotland could have even less influence in Europe than it has at present. Is that correct?

That is a possibility, although I expect the UK to put in place some mechanism. Ministers being at the table in the joint committee is less important: more important are the negotiations on the brief that is taken into the meeting, and early consultation. It is important to have intelligence—to know what is coming up and to be able to prepare your position in relation to what is happening. That might involve closer relationships with the UK Government and a presence in Brussels—which is mentioned at the end of the committee’s list of questions and the end of my submission—so that you know what is coming up and can be prepared.

Thank you. Professor Cairney, is there anything that you want to add to that?

We have done research on the matter in the past. If we look at the relationships between the Executives, they have tended to have closest contact in relation to European affairs. I think that that has been because they have had formal reasons to meet and produce an agreed line because there have been further meetings to go to. The best bet would probably be to maintain those relationships, which are built on the routine expectation that people will speak to one another before the UK Government goes into negotiations for the UK.

How confident are you that that would happen?

I am relatively confident. Compared with other matters, European matters have always been ones in which there has been a very clear reason for people to speak to one another. In the relationship between the UK and Scottish Governments on other areas, the UK Government has, in essence, often forgotten to speak to the Scottish Government because doing so was not on its radar. Europe tends to be more in its line of sight than other fields.

We seem, at the moment, to be quite far away from any of what we are discussing becoming reality. It is quite a strange morning on which to be taking this evidence.

However, let us consider leaving the European Union and entering a transition period. Currently, there are working relationships between the UK Parliament and the European Parliament through various mechanisms, including meetings of presidents or of speakers of Parliaments and shared work between the two Parliaments. I do not think that the withdrawal agreement outlines how the Parliaments will work together during the transition period. There is also the question of the UK Parliament’s ability to scrutinise or be involved in negotiations during the transition period. My understanding is that it will not have that ability and that there is not a role for it once we get past the vote. Will you comment on those issues?

The relationship between the UK Parliament and the Government is going through a very interesting phase, and we do not know how it will resolve. The UK Parliament seems to have mobilised itself to say that it wants a greater say in what is happening. Parliament insisted on the meaningful vote, and it took a Supreme Court case to require parliamentary approval for triggering article 50.

I expect the UK Parliament to continue to be active, but it will be very important for it to be engaged in the complex negotiations during the transition period. It is not really a transition period; rather, it is a negotiating period in which all the difficult negotiations will be done. It will also be important for the Government to try to keep things to itself because, in negotiations, it is very difficult to constantly report back. Ministers have said that they do not conduct negotiations in public: that is a problem for parliamentary accountability.

Now that the UK Parliament has flexed its muscles, I expect it and the parliamentary committees to exercise a greater scrutiny role. The Scottish Parliament and devolved Assemblies will then come in, as well. It is important for them to try to keep up with that.

Claire Baker mentioned joint working. I understand that the Culture, Tourism, Europe and External Affairs Committee is feeding into a House of Lords inquiry. There seems now to be more willingness on both sides to work together. It is very important for the committees of the Scottish Parliament to feed into the process at Westminster as well as to scrutinise what the Scottish Government is doing. As I always say when I come here, that involves a lot of work. It consumes a lot of time, and resources are limited, so it is important to think about priorities.

You have described what the final relationship might look like as probably being unique, although it is unknown at the moment. It would not be like an EEA relationship or other existing relationships. Can lessons be learned from the EU’s relationships with third countries? We would have third-country status. How much willingness is there on the part of the EU to have a tailored unique deal or relationship with the UK?

It is ironic that the EU said right at the beginning that it was not going to have anything like that. The relationship looks a little like the Switzerland relationship, except for the fact that Switzerland has 120 treaties and no overarching framework. The EU is trying to get Switzerland to sign up to a single overarching agreement in order to get rid of the 120 treaties and to have a mechanism such that Switzerland can keep up with EU regulations. The difference, of course, is that that is a way of getting Switzerland into the single market and getting it to accept regulations that come from the EU.

The suggestion is that the UK would not be in the single market, but would be able to opt into bits of it. That is cherry picking, which everybody said would not be done. However, it seems that it is being done, in practice.

The relationship is not quite the Switzerland relationship, and it is not quite the EEA relationship. I suppose that the simplest way of looking at the matter is to look at it as a question of the balance of power. In the case of the EEA and Switzerland, it is clear that it is the EU that lays down the regulations. Switzerland, Norway and the other countries have to accept those regulations. They can talk about them and get modifications, and then potentially accept them. The UK has said that it will not do that; it will negotiate and possibly accept some regulations. However, that puts it in a weak position because the EU will not change its regulations to suit the UK. It is a question of whether the UK will change its regulations to conform with those of the EU.

Again, the similarity is in asymmetry of power; the EU holds most of the power. Another element of the EEA and Switzerland arrangements is that in them a country is expected to opt in, and if it reneges on obligations, there is a penalty and it loses. We have talked about the Irish backstop and whether the UK could withdraw from it: it seems to me that there would be a huge penalty for that. On the question of power, the EU is consulting the UK and trying to get harmonisation, but I do not expect the EU to change its policy just because that policy does not suit the UK.

09:15  

We have already discussed the relationship that we have. At the moment, the EU and the UK have embassies. The Scottish Government has set up hubs in London, Dublin, Paris and Berlin and has always had an office in Brussels. Do you believe that there needs to be bigger involvement by the UK Government once we leave, or will the set-up that we have be enough for the dialogue, negotiations and discussions to ensure that we are still part and parcel of a process with member states?

That will become more important, because after Brexit we will not have the relationship that we have had as an EU member. Anything that currently involves EU policy making will become foreign policy. Much of that spills over into devolved areas, so logically the Scottish Government and Scottish Parliament should be engaged in international treaty making, which might be on trade, the environment, labour standards and all kinds of things. That will be important.

If the UK is to have a close relationship with the EU, whatever that amounts to, it will certainly be important for Scotland to be in Brussels and to have its own source of information. It is critical that Scotland get information early if it is to influence the UK’s position. It is too late to do so once matters reach the Council of Ministers, because everything will have been sewn up at official level. It is also important to know from other member states what is happening, what their positions are and the likely outcome of negotiations. On the EU side, of course, there are the 27 member states.

More generally, the idea of being represented in other countries—so-called paradiplomacy—comes and goes. It is not just Scotland that has considered it; the idea became very fashionable for a while, then faded and came back. We have seen that since devolution and in Canada, Spain and other places. When considering a presence, it is important to think about what bodies will actually do and what their job will be. There is a clear job to do for trade and investment promotion, which has been going on since at least the 1980s, but there might be other more diplomatic political roles in order to get a feel for where Europe and the member states are going and what might be coming on to the agenda.

You have identified that trade is vital. Business and commerce will negotiate and trade with member states in the way that they wish to, anyway. However, it is vital that the UK Government ensures that during the transition, if there is one, and in the discussion thereafter, we can be part of a process. It must be there and manage the crisis. There might be crises in other countries that we will need to look at, to see how the relationship might be devolved or increased and supported. Does the current situation make it more difficult to achieve that?

Yes it does, because businesses are finding it difficult to know what is going on—especially small businesses that do not have the resources to get in and do the research. It is important that they get support, but surveys of small businesses show that they are very confused and are not prepared for Brexit because they have not been given support. That is especially the case for exporting businesses, for which such support will be critically important.

More broadly, representation of Scotland abroad is not just about the Government; it includes business, the voluntary sector, education and research. It will, when EU mechanisms are no longer there, be really important that civil society continues to be engaged in European networks and can take advantage of European opportunities.

Does Professor Cairney have anything to add?

I am at a loss. [Laughter.]

I am keeping very quiet, because I do not have much imagination, and we are trying to imagine the future.

It is difficult, but life has to go on, as the saying goes. Life will go on—there is no doubt about that, whatever situation we find ourselves in. It is important that we have some clarity on where we think we might be.

Most parliamentary work assesses how a Government has done in the past and gives it lessons to work on for the future. Brexit is so unusual because, when Parliament becomes able to do that, it will be potentially too late to do so. I struggle to see a role for the Parliament in the short term, in the absence of that process, other than to hold Government to account for things that it should not have done. In a more general sense, Parliaments usually hold Governments to account for things that they control, so we can meaningfully say what the biggest impact of its choices was. Imagine trying to hold Scottish ministers to account for anything to do with Brexit; I am struggling to think of any circumstance in which it would be meaningful and make sense to do so. It might be the same for a lot of UK ministers, which is partly why it is so hard to keep track. They are in negotiations in which they have minimal control.

Good morning, gentlemen. This discussion is extraordinarily difficult to have because we do not know anything really, although—just in case committee members have not seen it—Mr Tusk tweeted half an hour ago:

“During my consultations ahead of #EUCO, I will appeal to the EU27 to be open to a long extension if the UK finds it necessary to rethink its #Brexit strategy and build consensus around it.”

That is an interesting development ahead of tonight’s vote in the House of Commons on exactly that issue.

With regard to what has happened thus far, I would have thought that there would be an issue about trust. International relations are based on pragmatism, first and foremost, as well as self-interest, but trust is a useful currency. At the moment, trust has taken a bit of a hammering. If we assume that we will have Brexit rather than a no-deal exit—and, therefore, a transition period—trust will be very important, as a matter of good will, in establishing a comprehensive and close relationship between the UK and the EU. I fear that relations in the shorter term might have been harmed quite a bit. I am asking you to speculate a wee bit, as that is all that we can do this morning.

I think that I can answer that one.

Excellent.

We have done work on why, at a basic level, people trust each other. There are usually three reasons: they share similar beliefs and goals, so they want to do the same things; they have worked together in the past and it has proven reliable; and they have some kind of authority that people are willing to follow. The middle of those three reasons is the trickiest for a Parliament, because, if Executives negotiate with each other for the long term and trust each other, that usually requires them to be reliable and not tell Parliament what they have been talking about, because that is all part of a full and frank negotiation. There is a trade-off if Parliaments want to give the Executives the freedom to engage in activities to build up trust for everyone’s benefit but do not want them to do it to such an extent that they will never tell anyone what they have spoken about. It is a balancing act.

I heard a suggestion on the radio this morning that the Attorney General might change his advice and point out that, under the Vienna convention on treaties between countries, it may be possible for the UK unilaterally to withdraw from the Irish backstop. It would seem very odd to go into a negotiation claiming a right unilaterally to withdraw at some future date. That really would not help matters or build up the trust that we have been talking about.

If we have to fall back on sanctions—that is, suspending other bits of the agreement—that is a sign of failure. It is a sign that the agreement is just not working. It rarely happens in the relationship between Switzerland and the EU or in the EEA. It has happened only once in the case of Switzerland and the EU, and that caused serious damage to the working of the relationship and precipitated a crisis that has not quite yet been resolved.

There is trust between the EU27 and the UK, although it is probably not at an all-time high, and then, of course, there is trust in the UK Government, including on the part of members of the party of Government, which, it would seem, is an issue for some Cabinet members. There are a lot of different levels to that.

If we get through the current process such that we become a non-member state and there is a transition period, I would have thought that the manner in which the process has been conducted would impact on the willingness of the EU27 to set up a close interinstitutional structure. Some member states might think, “What’s the point, because we can’t trust them?” They might wonder what the point is of going to the nth degree to set up a close interinstitutional framework if the UK is just paying lip service and the whole thing is not going to work. Again, I am asking the witnesses to speculate.

There are parallels with the way in which the UK and Scottish Governments have dealt with that. There is a parallel in that there is a push for more autonomy or distance, which has changed the relationship between the two bodies. That has been dealt with in the UK by accepting that there will frequently be high-level disagreements between elected politicians but that it is possible to manage the general relationship through the civil service and unelected posts, at which level people have a much more cordial day-to-day relationship that transcends shifts of Government. I think that that would be the case with the UK and the EU. Most of the relationship would be processed by people with a background in the civil service or diplomacy, who would know how to maintain relationships across borders.

That is a tricky recommendation to make. Sometimes, the less elected politicians get involved, the better it is for relationships between the bodies. However, of course, elected politicians have a legitimate reason to get involved.

That is an interesting take, although it could be said that, if the elected representatives across the UK—those down south, in particular—had been more involved, more factual information might have come out and there might have been better stories to tell. In addition, there might have been more civic involvement with the project and a different attitude. Elected representatives can serve a useful purpose in furthering international co-operation. I just wanted to put that on the record.

I want to go back to the point that Michael Keating made about paradiplomacy. I almost hesitate to ask about precedent, given that we are in a totally unprecedented situation. We are all aware of how sub-states can at least attempt to influence and engage with European institutions if they are sub-states of EU member states. The Scottish Government’s office works very hard, but it has a foot in the door because we are currently part of a member state. We are all familiar with the Wallonian institutions in Belgium that were set up because of trade negotiations.

What precedent is there for sub-states of third parties to get access to and have meaningful engagement with the European institutions?

I do not know of any such precedents—at least, I do not know of any that are of any relevance. There have been cases in eastern Europe of disputes—for example, in Ukraine, where sub-state movements are mobilising—in which the European Union has got involved in a little way. However, there is no example of a stable democracy in which sub-state Governments are directly engaged with Europe. I am not ruling that out in the future; I am just saying that I cannot think of a precedent.

Is that an area in which we might need to put forward some imaginative proposals for co-operation with the Committee of the Regions?

09:30  

That is possible. The Committee of the Regions has a chequered history, as this committee probably knows. It has not met the expectations that were vested in it at the beginning, partly because of its own structure, partly because it is too heterogeneous and partly because some sub-state Governments such as the German Länder or even the Belgian regions find it easier to go through their Governments when they have a strong position than to play the Europe of the regions game. The Europe of the regions game went away, but there have been efforts to revive it. A delegation from the Basque Government came to Scotland a week or two ago and saw the Scottish Government and the centre on constitutional change. The Committee of the Regions has got its act together, is a bit more effective and has got a grip on policy issues.

There are many pan-European organisations of regions, which come and go. One moment, it is the Conference of Peripheral Maritime Regions of Europe, then it is the Conference of European Regional Legislative Assemblies, and then it is something else. I have been following this for many years. It would be possible for Scotland to get into, or to remain in, some of those networks, and that would be important. Membership of the Committee of the Regions is problematic, because Scotland would not be part of a UK member state, so those kinds of network would continue to be important.

I found the letter from the House of Lords interesting. Its question 6 begins with the well-used words:

“What lessons can be learned”.

We have touched on that this morning. Any time that I read or hear those words, I feel that they are used partly because of the cultural norm of neglect that has taken place in the past. It is a way of trying to placate people rather than a way of doing something serious. I am not saying that the House of Lords is not attempting to be serious on this, but there is a wider UK political narrative.

As has been touched on, we now have the interparliamentary forum, which the convener and deputy convener take part in. I am the deputy convener of another committee and have taken part in the forum. How useful do you think the interparliamentary forum is?

When I give evidence in Scotland, it is okay, but, if I give evidence abroad, the Scottish accent makes everything sound doom laden.

To put a positive spin on the learning aspect, the UK civil service has taken that seriously in that it would describe Brexit as possibly the most profound political change of its generation. However, it has an inability to analyse it systematically in order to learn for when the next change comes. Civil servants describe an internal sense of not having experience on which to draw that is relevant to help them through this. That is normally what someone does—they rely on experience to help them to make choices. All that lesson learning will be for the next big thing. It will not seem important now, but, if we do not get it right, we will just make the same mistakes later.

I tried to think about the forum in terms of the role of parliamentary committees more generally. That is why my submission to the committee makes the relatively optimistic points that committees provide essential functions, are relatively businesslike, are less partisan and can get away from needless fiddly debates and focus on substantive issues. Some of those issues are intergovernmental relations, to which almost no one else would pay much attention.

There is an important role for such bodies. At the same time, however, they tend not to be well resourced, and that really matters. Their role tends to be about gathering information and providing it to stakeholders or the public. They provide an important function, in principle. The history of committees, particularly those of the Scottish Parliament, is that they have struggled to get information from Governments and distribute it. The problem is magnified in a European context, when Executives are a bit more cagey anyway, and in co-operation between many Parliaments when relations between them are not particularly well advanced.

The interparliamentary forum on Brexit provided papers on how often it had met and how many people were involved. It did not meet particularly frequently, and the people involved were not a particularly high proportion of the people in each Parliament. If that is a guide to the future, the forum will be an important body but more resource and involvement would probably be needed to make much use of it.

Going back to Stuart McMillan’s first question, which was about what lessons can be learned, there are a number of examples of relationships—the arrangements with Switzerland, the EEA, Turkey and Ukraine, for example. However, those countries either aspire to join the European Union—we can question whether Turkey will ever get in, but the path is supposed to exist; there are pre-accession arrangements—or they are small countries that have decided not to join the European Union but want to join the single market, and they have simply coped with the contradictions of that position. It is no good telling the Norwegians that they have to take the policy and that they do not have any say; they will say, “We know that. We can’t resolve it, so we just agree to live with it.” Norway is a very small country, so it would not be a big player in the EU in any case, although it would have some influence—small countries have influence.

Those countries want to be more Europeanised. They like most of the regulations that come from Brussels, and they do not have any problems. There is very little argument between Norway and the EU or between Switzerland and the EU, because there is consensus that those European norms and regulations suit them. Therefore, there is not much to argue about.

The UK would be in a very difficult position, because it would argue about regulations all the time. There is a very strong Eurosceptic voice in the UK, which is, of course, behind Brexit. It would constantly say that the UK did not sign up to that and that that is not what Brexit is all about. The politics of Brexit would be imported into that context in the long run, which would result in a relationship that was very different from the relationships with Norway and Switzerland. Aside from the argument with Switzerland about freedom of movement, those relationships have been fairly harmonious because there has not been a great deal to argue about.

I want to go back to Professor Cairney and the interparliamentary forum. I quite agree with what he said. I genuinely think that it is quite a useful forum, but it does not contain ministers from any of the Parliaments or Assemblies; it is mostly for committee members. There is a limitation there, but I agree with what Professor Cairney said.

I go back to the lessons learned. The issue of intergovernmental relations has been raised in this committee and the Devolution (Further Powers) Committee in the previous session. We even had a debate on the issue in the chamber, and we produced a report on it. That report also said that lessons needed to be learned. How many times do people have to put forward suggestions and highlight problems and issues before there is a change in the political and cultural norm so that people have respect for and listen to other people and other Parliaments and have genuine dialogue to ensure that intergovernmental relations are improved?

I have particular views on what lessons we would learn from intergovernmental relations in the UK. Part of the problem is that there is a difference between what people will learn from the past and what they want to happen in the future. The classic lesson that we have learned from intergovernmental relations in the UK is that they are informal for a reason, and that reason is that that really benefits at least one Executive. Executives benefit from not speaking much to Parliaments because they can be sure that they can speak to each other relatively informally. If we propose different and more formal intergovernmental relations without taking that logic into account, people will find a way to be informal even if there are new formal measures.

For me, the lesson to learn is that either we accept that logic and find ways to deal with it or we completely reform the system to make it a much more formal one that involves, for example, the courts resolving disputes. However, that would be a fundamental change to the UK political system and I do not see much appetite for it.

I draw your attention again to the importance of power and institutions in all of this. Of course the intention would be that intergovernmental relations should be sorted out by consensus and dialogue, but if there is no fallback position and the UK can always play its trump card and say, “We have the last say,” that affects the whole process and the relationship. It affects the culture and the degree of trust.

The Welsh Government has emphasised that a great deal. It has been talking about the need for some kind of UK council of ministers, whatever form that would take, in which there would be some kind of voting mechanism. It would not have to be used all the time, but we would know that, if there was a conflict, the UK could not simply play its trump card and walk away. It would have to try to get consensus among the devolved Administrations.

On the point about conflict, I note that you state in your written submission:

“Both the negotiations in the transition phase and the long-term relationship will impinge on devolved matters.”

In paragraph 3, you mention that

“The ambition, as set out in the Political Declaration, is to go beyond reserved matters of trade”

and include many devolved areas, including culture, education, public procurement, crime and agricultural support. We do not know what is going to happen with the withdrawal agreement or whether it is going to be put in place, but it is clear that there is huge scope for conflict there. Brexit has not happened yet and we have already seen considerable conflict between the devolved Administrations and the UK Government. Can you see further constitutional crises arising if the withdrawal agreement is put in place?

The UK is very good at avoiding constitutional crises by postponing issues or converting issues of principle into technical matters and giving them to committees. By “crises”, I mean situations that cannot be sustained, in which the institutions are in danger of breaking down. We seem to be able to avoid those while not resolving the fundamental problems by steering clear of them. The flexible constitution enables that to happen.

However, some of us have been saying, “You can’t muddle through Brexit that way,” and we might be proved right this week. So far, there has been an extraordinary degree of muddling through and avoiding such issues by giving things to committees, working parties of civil servants and so on. We might say that that is fortunate, but in another sense it is perhaps unfortunate because there has been no point at which we have had to sit down and say, “We’ve got to address this issue as a whole.” As long as we can muddle through, there is no incentive to think about the nature of the institutions.

We have been saying for a long time that intergovernmental relations under the devolution settlement are not terribly well organised, but there has been no crisis that has forced us to do something about it so, for 20 years, we have continued on a kind of ad hoc basis. It is possible that that will continue. It would be profoundly unsatisfactory, but it is possible.

The political declaration says, “These are UK matters that the UK will negotiate with the EU,” but some of them are completely devolved, and there might be scope for Scotland to get involved in some of the programmes. I am not talking about regulatory rules for public procurement and so on, but it might be possible for Scotland to continue with some of the EU programmes that we have here even if the UK does not. There are provisions in the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill for Scotland to maintain its presence in Europe even in areas where the UK pulls out, and that might be worth exploring.

When the committee began this process back in 2016, there was certainly more openness to the idea that you have just mooted—that Scotland could have direct relationships with Europe and share some of the programmes—but there seems to have been a hardening of attitudes, certainly at UK level, with regard to allowing Scotland any room to get involved. We seem to have been repeatedly sidelined. Do you think that the Brexit process has created a hardening of unionism?

09:45  

There is still a misunderstanding in London about the nature of devolution. If we look, for example, at the first draft of the European Union (Withdrawal) Bill, we see that it proposed to repatriate all the competencies to London. That was not a power grab; it was a profound misunderstanding of the nature of the constitution. There is a lot of education required there, because there is an assumption that Brexit means bringing everything back to London.

If the powers in question belong to Scotland and are clearly devolved, there might be nothing that the UK can do to stop Scotland getting involved in various ways. I say that in a very general way, because the issue has not really been fully explored, as we do not know what Brexit is going to look like. I expect there to be quite a number of areas, such as culture, education, research and exchange programmes, in which Scotland might be able to participate in some way. It is worth exploring that and keeping it in mind as the process continues.

I presume that, if the UK was no longer a member state, it would have less of an ability to intervene to stop those things. We know that the interests of a member state are always put first in the EU.

Yes. That issue has not really been explored. I was at the European University Institute for 10 years and was involved in various intergovernmental things, including issues concerning the UK and Scotland. It was not quite clear what the position of Scotland was in relation to a number of things. A few years ago, there was the question of the grants for the College of Europe. London said that it was going to stop those grants, but the Scottish Government realised that it could continue them. There might be possibilities there that are, as yet, unexplored. Some programmes require you to be a member of the European Union in order to be part of them, but others extend to Norway and some of them extend beyond that; the European research area has non-European states as part of it.

We talk about the general principle, but it is possible that insufficient attention has been paid to this area. I am just saying that, depending on what Brexit looks like and whether the UK remains in those programmes, it is worth giving some attention to what Scotland might be able to do.

You have both talked about Parliaments getting involved in the process. Professor Keating talked about Parliaments being marginalised, and Professor Cairney talked about informality favouring Governments. Do you have any suggestions for this committee about how we can maintain the considerable role that we have had in engaging with parliamentary institutions ever since the Parliament was set up?

As I have said before, that is really up to you. This Parliament has the ability to call ministers in and make them accountable. We have recently seen the UK Parliament exercising powers in a way that it has not done for many years. It is up to the committees of this Parliament to ensure that ministers report back to them and that they get the right information on time. After all, the Scottish Government is responsible and accountable to the Parliament. We know the political difficulties in the way of that but, institutionally, nothing is stopping the Parliament exercising more scrutiny.

I was thinking more in terms of how we engage with Europe. For example, every six months, we host the presidency of the Council of the European Union, which is quite a considerable engagement exercise. Professor Cairney, do you have any thoughts on that?

I am sorry; my mind has gone blank. I guess I have some thoughts. If I were trying to be realistic, I would say that there are two ways in which to keep track of what the Government is doing in Europe. One would be to do so informally, to match its informality—that is, through the sharing of information within political parties or between people of different parties who are sufficiently friendly to enable information to be shared. The other way would be to do what Michael Keating suggests and give ministers the impression that there is a disadvantage to their not being forthcoming, because that would mean that you would simply invite them back again and criticise them for not being forthcoming. I think that that is the best bet. There should be an expectation that, if a minister does not take the accountability process seriously, there will be some kind of consequences.

This committee has experience of what you are talking about—we made repeated requests to have UK Government ministers come to speak to us about the Brexit process. The fact that the committee met Michel Barnier before we met a UK minister says a lot about the lack of respect that the UK Government affords this Parliament. I do not know whether you want to comment on that.

That is just a political statement.

If it were me, I suppose that I would not even try to get UK ministers here, because I know that they would not want to come, which means that it would be an exercise not in information sharing but in who can look the most powerful, although I suppose that that has its advantages.

I follow the spirit of what Stuart McMillan is saying. It is important that UK ministers should come to the Scottish Parliament, not necessarily to give information, because, as Paul Cairney suggests, you could probably get as much information from the web as you would from a minister, but to show that they are open to the process and that they feel a sense of obligation to the whole of the United Kingdom. If that engagement happens regularly, it feeds back positively into the whole relationship, including at the level of officials, who are aware that their minister wants to show respect for Scottish institutions. That is important, because they will follow that lead.

I thank our witnesses for coming to give evidence. I briefly suspend the meeting to allow for a change of witnesses.

09:51 Meeting suspended.  

09:55 On resuming—