Delegated Powers and Law Reform Committee

Meeting date: Tuesday, May 1, 2018

Official Report 575KB pdf

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European Union (Withdrawal) Bill: Supplementary Legislative Consent Memorandum

Item 3 is evidence on the supplementary legislative consent memorandum to the European Union (Withdrawal) Bill. We have before us Michael Russell, the Minister for UK Negotiations on Scotland’s Place in Europe, and his officials: Gerald Byrne, head of constitutional policy; Luke McBratney, from the legislative consequences of UK withdrawal project—that is always a mouthful; and Graham Fisher, solicitor and team leader in the constitutional and civil law division. Welcome to you all.

Minister, I believe that you have an opening statement.

I thought that it would be helpful if I laid out the issues in the memorandum, as the Government sees them. Thank you for the invitation to give evidence today. The Delegated Powers and Law Reform Committee will be central to the programme of work that is required to prepare Scotland’s laws for the shock of EU withdrawal—work that will be required regardless of the bill used to get us there and regardless of whether the United Kingdom Government and the Scottish Government agree about the bill.

The Scottish Government has always accepted that, no matter how much we may regret the UK’s decision to leave the EU, we must prepare responsibly for the prospect of EU withdrawal. We have also said that that must be done in a way that respects devolution, and we have been working intensely towards that goal for nearly a year now. The Parliament has before it the position of the Scottish Government. We have set out the options, as we see them, for proceeding in a way that is compatible with the devolution settlement. Each of those options has its challenges and we will not shirk them; they are not, however, of our making.

The task of preparing for EU withdrawal would, on any scenario and in any Parliament, involve an extraordinary level of scale, pace, complexity, uncertainty and risk. There is no doubt that it would be done best by co-operation and co-ordination between the Governments, by each respecting the other’s responsibilities, by coming together when interests are aligned, and by each being able to make our own preparations where that is required. I hope that we can still achieve that. The right way to do it would be to amend the European Union (Withdrawal) Bill so that it gives the Governments of these islands their proper roles. We have yet to see whether the House of Lords supports the UK Government’s amendments, but the position of the Scottish Government is clear and I hope that it could be supported across the Parliament.

Our view has been consistent throughout the process. We have proposed two approaches to making the changes required, either of which would be sufficient to allow us to recommend consent to the bill. We would either take out clause 11 and related provisions and proceed by political agreement, or follow the arrangements in the Scotland Act 1998, which require the consent of the Scottish Parliament to any adjustments to competence, temporary or otherwise. I am pleased that the set of amendments that would achieve that has now been tabled for House of Lords discussion by Lord Hope of Craighead and Lord Mackay of Clashfern.

This Parliament passed the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill overwhelmingly as the best way to prepare for EU withdrawal if agreement cannot be reached. The policy memorandum lodged alongside the continuity bill sets out various scenarios for how the Parliament could proceed in those circumstances. However, given that agreement has not yet been reached, Parliament must now finally decide on three things: whether it agrees with the Scottish Government that the powers set out in clause 11 and related provisions of the European Union (Withdrawal) Bill are not acceptable; how best in these circumstances to ensure continuity of law in Scotland; and the scope of the powers to ensure that the law operates effectively and supports co-operation between the Governments, while maintaining the Scottish Parliament’s rights.

It is open to the Scottish Parliament to withhold consent to the European Union (Withdrawal) Bill, given that alternative arrangements in the form of the continuity bill are in place. Alternatively, the Parliament could consent to parts of the withdrawal bill, primarily so that the fixing powers of the UK ministers are able to be used in devolved areas, which would allow the Governments to co-operate. The third option would be for Parliament to decide that sufficient changes have been made to the European Union (Withdrawal) Bill to address the concerns expressed by this committee and by the Finance and Constitution Committee. Consent could therefore be given to the whole bill, or to the whole bill except for clause 11 and schedule 3—the provisions that impose new and unwanted restrictions on our devolution settlement.

The Government has invited Parliament to consider those options and to set out its views. Legislative consent is, in the end, given or withheld by Parliament. I look forward to helping Parliament come to that conclusion. As I have said, the UK must then put forward amendments to the bill to reflect the extent and form of the consent provided by this Parliament. That is what our constitutional system requires. Deciding whether to take account of legislation passed by this Parliament and whether to follow the constitutional rules concerned is not optional. The UK Government acknowledged that at the outset, when it asked for the consent of Parliament to the bill, and it must recognise that fact.

Whatever the Parliament eventually decides, that should not be the end of the road. There has to be co-operation and co-ordination between the Governments, given the scale of the task, and we are committed to that co-operation.

Thank you, minister. We will start with some general questions, before we get into the meat of the discussion. You have put three options in front of Parliament in the memorandum and you say that Parliament must finally decide. Can you clarify the timescale for that?

The timescale is linked to the third reading of the bill in the House of Lords. As you know, the procedure requires us to agree to or to not agree to a legislative consent motion before the final amending stage of the bill, which is anticipated to be the third reading and is likely to take place on 16 May. The House of Lords timetable dictates that—16 May is the date in question, and it is our intention, with the permission of the Parliament, to have the final debate in the Parliament on 15 May, so I think that it will go to the wire. However, as I indicated, tomorrow’s House of Lords report stage on the devolution clauses is significant, and there are amendments that could resolve the issue.

When were they tabled?

The closing date for tabling amendments was last night. I have found that I have to know a bit about House of Lords procedures, and the convention is that the Government tables amendments a week before the debate and members can table amendments up until two days before the debate. The amendments were finally tabled last night and are in the order paper today. There are also amendments from Jim Wallace and Dafydd Wigley, supported by David Steel, which are helpful, but the amendments tabled by Lord Hope and Lord Mackay essentially achieve the second of the objectives.

You have been having discussions. Presumably, you will have further discussions with the UK Government and maybe with the Welsh Government as well.

There is a joint ministerial committee (EU negotiations) meeting tomorrow afternoon in London. I am due to give evidence to the Finance and Constitution Committee tomorrow morning, but I hope to be away in time to get to the JMC meeting in London tomorrow afternoon.

Could that meeting resolve any outstanding issues?

It certainly could. One way forward is for the UK Government to accept the amendments that are in the House of Lords. As I have indicated, the amendments by Lords Hope and Mackay would do the job. That would be a way forward, and we are looking for that way forward. Discussion will continue, and the JMC will no doubt consider those matters.

Last week, the Welsh Government, with which I know you have been working, basically agreed with the UK Government, and you did not. Why has there been that divergence?

That would really have to be answered by the Welsh Government. We have to recognise that the context in which Welsh ministers are working is one in which Wales voted to leave the EU; Scotland did not vote to leave the EU, so that is a significant difference in our positions. The Welsh also have a different system of devolution. They only moved to the reserved powers system on 1 April. Before that, they had a conferred powers system.

In the end, of course, there is a political decision to be made, and the decision that we reached was that the proposals did not meet our basic test of consent. That was confirmed for us when we saw the amendments to the bill, which everybody would have to admit were not terribly well drafted in terms of securing support.

In your opening comments, you spoke about option 2 and the amendments tabled by Lords Hope and Mackay. You also spoke about section 30 of the Scotland Act 1998 and the issue of the consent decision. In the previous parliamentary session, when I was on the Delegated Powers and Law Reform Committee and the Referendum (Scotland) Bill Committee, that section 30 process was extremely important and it showed the co-operation and co-ordination between the two Governments.

Under section 30 of the Scotland Act 1998, orders adjusting the competence of the Scottish Parliament must also be approved by this Parliament. From my reading of the UK Government’s amendments to clause 11, this Parliament is to be sent notice of proposed orders, but they are not to be subject to any procedure or formal scrutiny here. Will that provide sufficient scrutiny for this committee, and for the Parliament, of decisions that will affect the Parliament?

11:30  

No. That is a key point that we have to consider in these matters. The root of the difficulty lies in the desire in the EU withdrawal bill to have a second backstop to be able to overrule this Parliament. There is already a process in the Scotland Act 1998—I do not like it and I have frequently said that I would not want it—that allows this Parliament to be overruled. That is the basis of devolution—Westminster is sovereign, according to that interpretation. Therefore, we have to ask why a second backstop is being put in. It is unacceptable that a backstop should be put in that creates the circumstances in which, no matter what the Parliament did, it would be overruled.

Section 30 orders require the approval of both Parliaments, which is the way to proceed as it is written into devolution. All we are saying is that we should abide by the settlement that exists. The choice that we have laid out is either to take out the second backstop in its entirety and have a written agreement between the Parliaments, or, if that is not acceptable, to revert to what already exists. The section 30 order procedure already exists, and provided that we can revert to it, the system will work. It is the system that we have now and it has worked since 1999. We have never been in a position where there is the prospect of the Parliament being overruled, yet that is our position now. We are saying, as productively and positively as we can, that we should revert to the existing system of devolution, which nobody voted to change.

You have already said it, but I want it to be absolutely clear and on the record that if the amendments from Lord Hope and Lord Mackay go through this week, that would be sufficient for the Scottish Government.

Those amendments were sent to all members of the House of Lords by the First Minister at the end of last week, with a letter to the Lord Speaker. They are amendments that we have drawn up and which we agree with. They have been tabled by two unimpeachable individuals who have been incredibly helpful during the process and with whom I have had a great deal of dialogue. Were the amendments to be agreed to in their entirety, that would resolve the issue.

All the way through, my party and I have supported the principle of devolution, and no one could say that we have not been consistent, whether in relation to the referendum on independence or anything else. We have been absolutely consistent in defending the principle of devolution, and that is where we stand at the moment.

You are right in relation to the Scotland Act 1998, but that has never been overturned by the UK Government—long may that continue. The principle is that if powers are not written down, they are devolved. That is a red line, and there is a lot of agreement on that.

One thing disappointed me during the events of last week. All the parties have worked closely with you through the process, but that stopped last week when we got an email that just said that there would be a statement that afternoon. There was no dialogue before that—it happened afterwards. I hope that you have reflected on that, and that that kind of thing will not happen again. We want to do this as collectively and co-operatively as possible. When goodwill is there, my plea is that it is not burned.

I accept that, and I apologise that that action was clearly not as helpful as it should have been in the circumstance. I have asked for this, but I hope that it will be possible to have a conversation today with you and your party leader, who spoke about the issue yesterday; it would also be helpful to talk to the Liberal Democrats today. My office is trying to arrange that in advance of the JMC(EN), as you will know. I am happy to have a conversation today with representatives of the Conservatives, if they would like to do so, so that I am very clear when I go to the JMC(EN) meeting about the position across the Parliament. I will continue to ensure that information is provided and that I am listening to what you and your party say.

There are still 24 areas of disagreement. Only a few months ago, there were 111 such areas, so 87 have gone. We still have 10 months or whatever it is to go. Given that, surely it is not beyond the wit of man and woman to take that time to come to agreements on the 24 areas.

To be honest, I do not think that there will be great difficulty in that. The issue is the approval of the frameworks and the Parliament’s consent to the outcomes from them. There has been intensive work on the 24 areas. It is not absolutely right to say that the other areas have disappeared; rather, they have moved into categories that do not require such intensive work, which is either because existing arrangements between the Governments and the Parliaments can deal with them or because they do not have such a requirement.

The 24 areas will require actions of some sort; the question is what sort. Not all will require legislation by any manner of means.

There are two outstanding matters that the UK Government says are reserved and which we say are not, and we will have to come to a decision on that. The awkwardness is in the UK Government’s continued view that there might be other matters, which are as yet unknown, for which frameworks could be established without consent. If we have a consent process, that will not be a worry, because if other issues are suddenly noticed, that process will be able to deal with them. However, if the process that is presently on offer applies, nothing will be able to be done about such issues. We are ready for that, but I see no difficulty in establishing effective frameworks in the areas that we have given consent in.

The general feeling out there in the real world is that people want politicians just to get on with it. You have said that there are not many problems in working with other parties to reach a sensible and workable conclusion. When the reality behind the scenes seems to be that things are a lot more calm and sensible than some present them to be, does the rhetoric that stokes up the situation as a big constitutional conflict help?

I know that it will be regarded as unusual for me to say that I have avoided rhetoric, but I really have avoided it—

Unusually, I might not be aiming my fire at you.

In that case, I shall act as a human shield for the rest of the Government and make it absolutely clear that an attempt has been made to present not just the problem but the solutions, which is what I will continue to do.

My view may differ.

Minister, you have said that the UK Government’s amendments have been drafted in a way that makes securing support difficult. The drafting also makes them rather difficult to comprehend. You and other members of the Scottish Government have previously characterised your disagreement with the UK Government as coming down to whether the word “consent” or “consult” is used. I find the use of the word “consent” in the amendments to be alarming. Consent suggests a power to refuse consent, which will be acknowledged and acted on. The amendments that the UK Government has presented use the phrase “made a consent decision”, which seems to be another way of saying “expressed an opinion”.

I understand that the amendments represent a retrograde step, because they fall short even of requiring consultation. Under the amendments, the UK Government could lay statutory instruments regardless of whether the Scottish Parliament had expressed an opinion and, if it had expressed an opinion, regardless of what that opinion was. The Scottish Parliament’s opinion would have no substance or weight. I understand that the UK Government would not have to give a substantial justification of its reasons for that, beyond issuing a written statement.

What is your understanding of a “consent decision”? What are the potential implications for the understanding of relationships between the two Parliaments and the two Governments as a result of consent decisions?

We are talking about subsection (4) of proposed new section 30A of the Scotland Act 1998 in amendment 1, in the name of Lord Callanan, which is in the House of Lords order paper. It says:

“For the purposes of subsection (3) a consent decision is—

(a) a decision to agree a motion consenting to the laying of the draft”.

That is fine, but the next two paragraphs state that a “consent decision” is:

“(b) a decision not to agree a motion consenting to the laying of the draft, or

(c) a decision to agree a motion refusing to consent to the laying of the draft”.

At the very least, that is badly drafted. A minister who has seen that drafting might have said, “Look, I don’t think that is going to help to conclude this matter. Let’s try to understand it.” It implies that there is no role for the Scottish Parliament in saying, even unanimously, “This is not on.” No matter what is done, the Scottish Parliament will still be deemed to have given consent. That is foolish. That provision should not be there, and nobody could sign up to it.

Let us accentuate the positive, which is that the amendments in the name of Lord Hope and Lord Mackay can amend that amendment so that we can agree to it. If it is not amended, it cannot be agreed to.

I want to follow on from Neil Findlay’s comments about some of the dialogue possibly not fully reaching the population and there seeming to be just a discussion or an argument among politicians. On amendment 1 and proposed paragraphs (4)(b) and (4)(c), can you put into clearer language what the implications would be for Scotland and any of the examples from the list of 24 areas in which legislation could be required if that amendment were agreed to? How would that affect Scotland?

I could deal with all of the 24 areas, but that would take too much of the committee’s time. Let us start with “Agricultural support”, which is one of the early items on the list. If a framework on agricultural support was established and did not have consent, it might not include less favoured area status. Even if we voted unanimously on that as a Parliament—to be honest, we probably would, as anybody who knows Scottish agriculture knows that LFA payments are essential to sustain Scottish agriculture—the UK Government could say that it does not really matter what that view is, it will not agree to that, and that it will do something different. There has to be consent.

The principle of subsidiarity underpins devolution. That means that decisions are best made closest to the places that are affected by them. That is what is at risk. The quality of life in many areas of Scotland depends on that principle being applied.

We probably need to look right through that list, from “Agricultural support” at number 1 to “Services Directive” at number 24. For each area, we could say that, without there being consent, things could and might happen that are not desirable. There might well be things for which a UK Government believes for the best reasons that a different system is needed, but the basis of devolution is that that is not how we operate. That is not how we have worked for the past 19 years. The system that we have is the system that the people of Scotland wanted, and I think that they want to keep it.

We will move into the meat of what the committee deals with, which is the exercise of powers. You have put forward three options. That could all change, of course, but let us deal with things as they are.

Convener, I would like to ask what scenario planning there has been on the possibility of the continuity bill being struck down. What would be the implications if that were to happen?

11:45  

That would depend on the decisions that will be taken over the next few days and weeks, and what else takes place. It would also depend on what the legislative consent motion is. However, we remain very confident that the continuity bill is perfectly competent.

Of course, rather than striking down the continuity bill, the process would be to ask whether there are things in it that should not be there. The judgment of the Supreme Court might be to that effect—although we are very confident that it will not be—and therefore we would have to examine it at the time. However, at the present moment, we believe that the continuity bill is right and works well. The question here is whether all of it is to be used or whether it is to be used partially or not at all. That is the issue.

Just so that the committee is clear, are you scenario planning?

We will meet every set of circumstances as it arises, but we are not preparing for failure in the Supreme Court.

Okay.

Let us go back to the question. In your view, which mix of powers across the three options will best secure an accurate and functioning statute book by 29 March 2019?

All of them can achieve that. The question is exactly the right one, convener. The issue breaks down into three things that need to be achieved. The first is continuity: to make sure that the laws work. The second is to make sure that powers for ministers exist in order for that to happen. The third is to set up the frameworks and the functions that will need to exist post-Brexit to allow those things to happen.

The question is how the options conform to all those objectives. The answer is that all of them do, to a greater or lesser extent. They can all work in that way, but the next question is what would work most effectively and efficiently. My own view is that we could work with any of them. We have always said that the most desirable outcome of the process would be to have a single statute that allows the two Governments to work effectively together, which would mean less work than there would otherwise be. There will be a massive amount of work, no matter what, but if we could achieve a single statute, that would be the best outcome.

If that could not be achieved, there would be a mix of possibilities. For example, the continuity bill plus clause 7 would allow us to meet the first objective, which is to make sure that the powers come back. That would allow co-operation between ministers, because it would empower UK ministers to act in devolved areas and we could work together on those. That is workable. The withdrawal bill minus clause 11 would also be workable: the first two objectives would be met, but we would deal with the third one ourselves. Of course, the continuity bill is workable. It was backed by this Parliament by 95 votes to 32, so it believes that it is a workable solution. It is also one that we can bring in.

Therefore a choice would have to be made, but there is no doubt that, all along, our first preference has been to get an agreement that would allow the withdrawal bill to operate.

So your first preference is actually to have none of the three options?

Well, the first option would be, as I described it, to give complete consent. Thereafter, there would be choices. We have tried to do the proper thing by being prepared for any set of circumstances, which is what those options do.

So the option of giving consent to the UK bill could be before the Scottish Parliament on 15 May?

Yes, it could be, if there is an agreement and the amendments tomorrow go through or another form of agreement goes through.

Okay. Mr Findlay has another question.

Do you have any indication as to the Government’s view on the amendments that have come forward?

On the UK Government’s view?

Yes.

No, I have none as yet. There is a meeting of the JMC tomorrow, which is when the House of Lords will meet, so it could be that we will hear then—and it would be helpful to know that.

One of the concerns for businesses and many others is the issue of legal certainty. I cannot help but think, instinctively, that what we might call the mongrel option would not fill people with huge confidence and certainty. Is that a fair or an unfair comment?

Whatever happens, the situation is difficult and, as I indicated, not of our making. I would like to provide as much certainty as possible. Any of the options performs the functions that need to be performed—the three functions that I declared. It is simpler to understand the two extremes. One is the continuity bill, under which we take the whole responsibility, and we have legislation that allows us to do that. The other is to agree to the UK bill, providing that we settle the difficulty that exists. Those are the clearest options, but the other ones are workable. I would not come to the Parliament with a legislative consent memorandum unless I thought that it could produce a functioning result.

The matter has dragged on for a long time, but the timetable for the European Union (Withdrawal) Bill is not of our making. It is entirely in the hands of Westminster. That bill was announced at the Tory party conference in September 2016. I think that the first JMC (European Union negotiations) in November 2016 mentioned it. It was certainly discussed at the second one in the December, because I remember a conversation about it in the margins of the meeting with Ben Gummer, who was then responsible for it. It has been on the go since then, so the uncertainty about it is a product of that timescale.

We want to ensure that there is parliamentary scrutiny of any proposals and proposed changes. Which of the options provides us with the maximum scrutiny?

All of them. Scrutiny is also an issue for the standing orders of the Parliament. I think that you have already seen draft proposals on scrutiny.

We have seen protocols.

Yes—protocols. We intend to apply those enhanced protocols no matter what happens, because the decision on how this Parliament scrutinises the detail is not, in the end, a matter for Westminster legislation; it is a matter for this Parliament to decide. We made a commitment to enhanced scrutiny as the continuity bill went through the Parliament and we will stick to it.

The Parliament values engagement with stakeholders and outside bodies. Is there a similar commitment to ensure that, when there are changes to regulations, that commitment to scrutiny will apply to whatever the option is?

Yes, because that was built into the process that was passed through the continuity bill and that is a process that we wish to be applied. It was certainly discussed at stage 2—in as much as I can remember anything that was discussed in the 11 hours of stage 2. It is built into the process and the committee’s central role in that.

The supplementary LCM talks about the practical difficulties that will arise if reliance is placed solely on the powers in the continuity bill. Will you provide more information on that?

The difficulties are set out clearly in paragraphs 19 and 20 of the policy memorandum to the continuity bill, which I am sure is available.

We pointed out that complexity will be added to if we are not able to rely on joint activity between the two sets of ministers and the two Governments. It will require that a large number of technical instruments be laid and scrutinised in the Scottish Parliament while the same is being done in the UK Parliament. Clearly, for reasons of efficiency, that would be better done jointly. We would like to co-ordinate the instruments. The complexity would flow from the inability of the UK Government to come to an agreement on the matter, which would be regrettable, but we could work with it: we would have to. I think that I said on a previous occasion at the committee that there is no option but to make provision. It has to be done.

If there is a transition period, which seems likely, the period in which the instruments will need to be considered is, fortunately, not between now and the end of March next year but between now and the end of December 2020. I think that I have also said at committee before that our estimate is that 300 to 350 instruments will be required, but that is only an estimate. That is about the same as a whole annual crop of statutory instruments; we will have to take a year’s worth of statutory instruments and consider them probably from about this summer through until the end of 2020. It is a big job and we have two years to do it. There will therefore be an increase of 50 per cent in statutory instruments, but it can be done. It will have to be done.

Paragraph 17 of annex D to the supplementary LCM states that

“where both governments have corresponding powers to make fixes in devolved areas, the ability of Scottish Ministers to make subsequent, different provision than that made by UK Ministers will protect devolved interests”.

What will the impact of subsequent changes to legislation be, for example, in relation to certainty of retained EU law?

Luke McBratney will address that.

The important thing about that option is that it ought, in most circumstances, if the two Governments were to retain the ability to do something different, to prevent that. The fact that corresponding and equal powers would exist would ensure that each Government respected the roles, and would ensure that our seeking to reverse a change that the UK Government had made in a devolved area never comes about.

I have spoken to the committee about section 57 of the Scotland Act 1998 before—principally in terms of how it provides for scrutiny of instruments. However, far more significant is the bit between the Scottish and UK Governments. The way that section 57—which is an existing example of corresponding and equal powers—works is that it is very often the Scottish Government that goes to the UK Government with a proposal that things would be better done on a UK-wide basis. Because we could always choose to do something different later, section 57 regulations are invariably the product of agreement between the Governments, which is the situation that we envisage in paragraph 17 of annex D to the supplementary legislative consent memorandum.

One of the draft protocols that the committee has seen is intended to govern that position and to give this Parliament a role in scrutinising proposals from the Scottish Government to consent to UK-wide orders in those circumstances. It is one of the other limbs of ensuring a role for Parliament in situations such as we envisage, where we are looking for a UK-wide order. It is important to look at the detail of that protocol.

Once again, that takes us back to the nub of the issue in terms of this Parliament providing consent, if it decides to do so.

Although it is not written into statute, Parliament would in effect have the opportunity to scrutinise Scottish ministers’ proposals to consent to UK-wide orders. It is not a statutory requirement, but because of the alternative mechanisms that Luke McBratney has described, we are confident that there would always be a process of agreement under the powers, as they would be equalised under proposed amendments to the withdrawal bill.

In light of the differences between the UK Government’s and the Scottish Government’s views on the limits of the Scottish Parliament’s and Scottish Government’s devolved competences, how do you envisage agreement being reached on which areas the Scottish ministers may legislate for under the bills, in a way that avoids potential challenges to instruments that would be laid by the Scottish ministers?

The matter will be resolved, should it require it, in the Supreme Court. That process is now under way. All I can say is that it will be vigorously pursued by the Lord Advocate. We would much rather see all such circumstances being addressed through co-operation and agreement. That has been our wish from the beginning and it continues to be our wish, but legal certainty will come, if required, from the Supreme Court.

The supplementary LCM mentions changes made to the UK bill that address concerns about the breadth of powers. Can you say more about those changes and how they address those concerns?

The UK Government has introduced amendments that make some such changes. As we anticipated, it has removed clause 8, on the power to implement international obligations. It has removed the ability to set up new public authorities, and has prevented the powers being used to introduce new fees. It is preventing the withdrawal agreement power from being used to amend the withdrawal bill itself, and it has introduced the new explanatory statements.

In the continuity bill, we have engaged with some of those things, such as the explanatory statements, and we go a bit further. We think that the amendments go some way towards addressing the concerns that existed. Some of those things have arisen as a result of the continuity bill and some have arisen because the continuity bill reflected views about difficulties with the withdrawal bill. There has been welcome change; nobody would deny that.

One of the committee’s recommendations in its report on the legislative consent motion from last November was that further consideration be given to basing the powers in the bill on a test of necessity rather than on one of appropriateness. We understand that a non-Government amendment that makes such a change for the exercise of UK ministers’ powers under the withdrawal bill has been made at report stage in the House of Lords. Do you plan to recommend an equivalent change to the Scottish ministers’ powers under the UK bill?

12:00  

We have that in the continuity bill, of course. We accepted that change and, indeed, we assisted with amendments throughout the bill to put that in place.

The position would be one of equity. Whatever powers are granted to the UK ministers and however they are restrained, the equivalent should apply to Scottish ministers. We thought that we had got to a better position with the continuity bill, so we would welcome the amendment from—I think—Lord Lisvane. We do not know what the UK Government’s position is on that amendment, but were it to succeed, we would want to see changes made to the powers of Scottish ministers as well.

Does that mean that you would recommend an equivalent test?

Yes. We agreed to put that in the continuity bill, because we think that it is a good thing.

I might just have forgotten.

Indeed. We like to be consistent, if we can be.

To be fair to you, Mr Bowman, I note that you have not been here for all of the meetings. The issue has certainly been covered by the committee.

We recommended a change to the parliamentary procedure for the power in schedule 4 to create or increase fees and charges in connection with functions that public bodies in the UK become responsible for on exit day. The recommendation was that the power be subject to affirmative procedure not just for new fees, but for significant increases to existing fees. Are you aware of any pending amendments to the UK bill to make that change?

The UK Government is going to promote such an amendment, I think.

The supplementary LCM mentions proposed changes to the UK bill to extend the requirements for explanatory statements to Scottish ministers in relation to regulations that are laid in the Scottish Parliament. Can you outline what the new requirements will be?

We are supportive of explanatory statements, and we are glad that there is movement in that regard. The continuity bill has additional elements that we are going to apply. They include the proposal that, when exercising powers under schedule 2, there must be a statement of the reasons for use of the power, which I think is welcome, and about its being a reasonable course of action.

There must also be such a statement on amendments to the Equality Act 2010, saying that ministers have paid due regard to the legislation, and explaining the relevant law before exit day, the instrument’s effect on retained EU law and the purpose of the instrument.

If ministers exercise the powers in schedule 2 to create a criminal offence, there must be a statement of the good reasons for creating a criminal offence and the sentence that is attached to it.

If ministers make an instrument under the urgent procedure, there must be a statement of the reasons for the declaration of urgency.

Finally, if ministers amend regulations under section 2(2) of the European Communities Act 1972, the statement must set out the good reasons for the modification and state that the modification is a reasonable course of action, and it must contain an explanation of the instrument, say what the relevant law before exit day is, and state the instrument’s effect.

We committed to providing further statements under the continuity bill, such as the statement about whether the regulations affect employment or health and safety matters—I think that those amendments were from Labour members during the passage of the bill. We will be held to that even if the continuity bill is not in effect. We think that that additional information will be useful, so it would be contained within the statements.

I would like to pick up on an issue that was raised at the tail end of Neil Findlay’s questioning earlier, when the subject of the protocols was touched on. Will you state for the record whether you think that those protocols are workable and sufficient, and is the Government content with them?

The protocols are a product of discussion with the Parliament. I am keen to stress that they are not Scottish Government protocols; they are outcomes that the Parliament would take on. We suggested the arrangement at a committee meeting some time ago—last August, I think. I am glad that that has been agreed to, and I am grateful to the Parliament and the committee for being involved.

The protocols give the necessary flexibility to make procedural changes, and they create a higher level of scrutiny than would otherwise be the case. It is important that they give an effective steer about what matters are considered more important, because the process that we will be engaged in will be one of prioritisation of activity.

The protocols will enhance rather than supplant the committee’s work, and they will help it—I hope—to make decisions about what the most important issues are, given that a flood of secondary legislation is coming down the road. They provide for good joint working.

The process has taken some time, and a lot of thought has gone into it. I hope that the protocols will—finally, when they are out of draft form—be welcomed by the committee and by the Parliament. The Government will certainly welcome them. They will enable more effective scrutiny and give the Parliament ownership of how scrutiny takes place.

In order to cover all eventualities, would you be in favour of applying a sift process to SSIs that are laid by the UK Government? How would that be achieved?

That is interesting. The UK Government should not be legislating on how this Parliament scrutinises issues, and I want anything that has effect in Scotland to be effectively scrutinised.

With regard to the continuity bill, an agreement on the sifting process was reached after a great deal of discussion. Ross Greer’s amendment, which was worked up by the committee, provided a conclusion on how the process should operate. My view is that the process should apply to all the material that will have effect in Scotland for which this Parliament is responsible. However, I cannot take any responsibility for what the UK Parliament chooses to do with issues that are relevant to it. In general, I think that the continuity bill puts in place a better and more effective system that will work well for us.

We have just 10 months to go until exit day. Will we be able to deliver the programme of secondary legislation in that very short timeframe?

I am going to use the word “we”. We all will have to do that. The committee has an enormous role, and I accept that the bill—although I do not apologise for it—will be a big pressure on it. We all will have to deliver the programme because, as Neil Findlay indicated, we have to give every part of Scotland—every community, interest group and business—legal certainty that it can be done.

Are there any final questions from members?

On that point, I have a practical question. Is there additional recruitment in Government and Parliament in order to deliver the programme? Is there additional resource?

I cannot speak for the Parliament, but in the Government there has been an increase in the number of people who are working with us. Each area of Government is also looking at the matter individually. There is, of course, resource available from the UK Government, which has allocated resource for additional Brexit work. It is for Derek Mackay to account for that, but the money will have to be drawn down. Additional resource will need to be put in place, which is what we are trying to do.

Can you quantify that in terms of finance and bodies?

I cannot quantify it in terms of either at present, but—if I am correct—the UK Government has allocated £3 billion, and discussion is currently under way about what proportion of that resource can come to Scotland and how that will happen. Derek Mackay would be the right person to respond to that question; I will ask him to make the committee aware of the resource that is available.

Thank you.

That would be useful. As members have no further questions, I thank the minister and his officials for their time. The committee has another meeting on Thursday, at which we will have Chloe Smith and David Mundell in front of us. I thank you again, minister—we will perhaps see you again at some future stage.

I fear that that may be the case. Thank you very much, convener.

12:09 Meeting suspended.  

12:10 On resuming—