Finance and Constitution Committee

Meeting date: Wednesday, November 29, 2017

Official Report 594KB pdf

---

European Union (Withdrawal) Bill

Good morning and welcome to the 28th meeting in 2017 of the Finance and Constitution Committee. The first item on our agenda is evidence on the Scottish Government’s legislative consent memorandum on the European Union (Withdrawal) Bill, which is currently being considered by the United Kingdom Parliament. We are joined for this item by Michael Russell, the Minister for UK Negotiations on Scotland’s Place in Europe, who is accompanied by Scottish Government officials Ian Davidson and Luke McBratney. The minister gave evidence on 20 September, and since then we have taken evidence from a range of witnesses, including lawyers, academics, UK ministers and other stakeholders. The minister does not want to make an opening statement, so we shall get straight down to questions.

We know that the Scottish Government and the Welsh Government put forward joint amendments to the UK Government with regard to the European Union (Withdrawal) Bill. Can you give us an idea of what progress has been made on those amendments?

The issue of devolution in the withdrawal bill is due for debate on Monday next week in the House of Commons. We will have to see how that goes. I should make it clear—and I know that the Welsh Government’s position is the same, because I had a meeting with my Welsh counterpart, Mark Drakeford, in Dublin on Friday morning—that we cannot agree to move forward unless the bill is amended. I will talk later about the progress that we are making with the frameworks and the formal discussions, but a sine qua non of this situation is for the bill to be amended and for clause 11 in particular to be either removed or amended. Without that, we cannot complete the progress and we cannot pass a legislative consent motion. That is where things are, so we will know next week.

There are, of course, other opportunities for amendment. The proceedings of the House of Commons are a little arcane compared with those of our Parliament, so there are other ways to do that and perhaps the amendment will come at a later stage. However, Monday is crucial and we need to have a clear, categorical assurance from the UK Government that change will come.

You are probably aware that the Secretary of State for Scotland, David Mundell, appeared in front of the committee a couple of weeks ago. He said that very detailed discussions were taking place between officials to look in particular at the amendments. Are you able to confirm that that is on-going, or to comment on it at all?

Discussion has taken place. There has been a detailed and, I think, positive discussion, but the ball is very much in the UK Government’s court. It knows the position that the two Administrations have taken and the changes that we require to see. If it wants to make other changes that are consistent with those objectives, of course we will discuss them. I am endeavouring to keep the political parties informed, by means of discussions with individuals from all the parties; Mr Tomkins has been at some of those. We have never made any secret of the fact that there have to be changes.

Progress has obviously been made on the common frameworks. Is that overshadowing the fact that no progress has been made on the bill?

Those matters are conjoined, but they are operating on two different timetables. The opportunity for change comes at the amending stages of the bill, and we are getting close to the first such opportunity. I am happy to accept the assurances that I have had from a range of people that that work is on-going, but we have to see some fruits of it. Damian Green will be in Scotland tomorrow to meet the Deputy First Minister and me, and we will make that point to him very clearly.

How likely is it that the amendments that will be debated in the House of Commons on Monday will be successful? If they are not successful, what will the Scottish Government’s strategy be thereafter? We are all keen to find a solution. There is a general view that clause 11 has to be amended in some way, if not disappear entirely. Therefore, any information that you can give the committee would be useful, so that we can help with that.

That is now a matter for the UK Government. We have made our position entirely clear. If the UK Government has alternative amendments that it thinks will serve the same purpose, we are absolutely open to those discussions. I cannot speak for the Welsh Government, but I am confident that it will have the same position on that.

We can view what might happen to those amendments on Monday as a branch diagram. If the amendments are accepted by the UK Government, that will conclude that matter and we will move on. If the amendments are not accepted but are put to a vote and pass, the matter will be done. If the amendments are put to a vote and defeated by the UK Government, we need to know what it intends to do next. Will that be the conclusion of the matter? Will the UK Government proceed with the bill unchanged, or table further amendments? Does it have a view on what those amendments should be?

As is ever the case with Brexit, we are taking a step at a time, testing the ground and seeing what is next. I hope, because I am an optimist, that the UK Government will see the sense of those amendments and accept them. Do I expect that to happen? I would like it to.

Good morning. I want to focus on solutions to what I am going to call the clause 11 problem. Everybody around the committee table fully understands the Scottish Government’s position and, as you know, we have taken evidence from UK ministers in two different departments to try to understand the UK Government’s position as well. Rather than going over that ground, I want to peer a little more—one might even say do a deep dive—into what the solutions are.

Can I take it that the Scottish Government agrees that there is likely to be a solution in and around common frameworks?

I am hesitating, because there cannot be a solution if clause 11 remains unchanged. Frameworks in and of themselves are not going to produce a solution. They are a necessary part of the solution, but they are not sufficient to produce the solution.

That is helpful. Will clause 11 need to be amended to reflect the existence of such frameworks?

That would be a possibility, but the main objection to clause 11 is that it changes the devolved settlement. At least, that is our objection to it. We do not accept that change. If the Secretary of State for Scotland is to be believed—and I am sure that he is—when he says that it should be done by agreement, not imposition, clause 11 will have to be changed, as it still has an element of imposition in it.

The Secretary of State for Scotland has made it clear both in the House of Commons and here that his position is that all 111 of the powers identified in that Cabinet Office list will be exercised after exit day either by this Parliament or subject to a common framework to which the Scottish Government is a party. I am speculating, but if clause 11 were to be amended to reflect that position, would that satisfy you?

I do not want to be difficult with you, but I would want to see the wording on that. It would be a step forward from where we are now. We have one means of amending the bill, which essentially expunges the issue of clause 11. If there is another solution that accepts that any changes take place by consent, that is something that we would be willing to discuss, and always have been willing to discuss.

Professor Rick Rawlings took part in our previous evidence session. In his written evidence, he suggested that in place of clause 11 there might be included

“a power to add, remove or modify reservations in the devolved settlement(s) to reflect frameworks”.

That would presumably be done by a procedure under section 30 of the Scotland Act 1998, which would require the consent of not just Scottish ministers but the Scottish Parliament. Is that the sort of thing that you would be prepared to look at?

I can see the way in which that might operate successfully and would meet our objections in terms of imposition, and that is the key issue. It has to be negotiated and agreed; it cannot be imposed. If any amendment or set of amendments were to come forward that removed the imposition and made sure that that was done, and could only be done, by agreement, we would be more than willing to discuss those amendments. Of course, I cannot give a hard and fast acceptance, but there is an opening there. However, I would counter that by saying that we would prefer the route that we are taking on this with our amendments.

I have to say that I am still not entirely satisfied in my own mind that I will know what a common framework will look like when I see one. I have not seen one. Can you help the committee to understand your thinking on how the frameworks will be constructed and how they will be policed and enforced in the event of there being what looks to one party like a breach of a common framework somewhere down the line?

That is precisely the work that is under way. There is not one standard common framework. There will be a degree of different arrangements, some of which will replicate what we already have in some areas, which is the ability to work together. A slightly unusual example that I dredged from my memory the other day, going back to my time as Minister for Environment, is the solution that was found to the Solway and Esk issue, in which two different Administrations administer rivers that cross the border. I am not saying that that is a template; it is simply one way in which a contentious and difficult situation was solved at the time of devolution.

Different types of arrangements will be arrived at. The work of the deep dive—Ian Davidson has just surfaced after more deep diving—has been first to identify the proof of concept and whether it could be done, based on looking at the specific details of one or two areas. Then we ask whether we could devise a system of governance around that that accepts the co-decision making—that phrase would need to be fleshed out—that we would have to be involved in. There would have to be confidence that we could reach decisions in a way that would be binding on all of us. That work has been moderately successful.

Having gone from principles to proof of concept then to governance and dispute resolution, we need two more stages: political agreement on the subjects covered out of the list of 111 and, finally, their conversion into legislation, should that be required, through embedding them at either the macro level—solving the clause 11 problem—or the micro level; for example, in the proposed agriculture bill.

Out of those five pieces of progress that we need, we are probably reasonably well down the road on three of them. The other two require action. Damian Green is here tomorrow, so perhaps we will make some progress on them. They will then need to be converted to action.

I am moderately confident that the matter is going in the right direction, but we need to resolve the clause 11 issue. Either it is all agreed or nothing is agreed.

09:15  

I understand that. Your fifth point is the legislative issue. Are you content in principle—of course, you will want to see the detail—that a number of the common frameworks might need to be reflected in legislation?

I have always said that there will be a need to reflect one or more of the common frameworks in legislation. Agriculture is the obvious one, because an agriculture bill is proposed. Let us see how it happens. It would not be automatic. I can imagine the common frameworks operating without legislation, but there is a potential for them to be legislated on.

I will pick up some of the nuances of the discussion that you just had with Adam Tomkins. In relation to the evidence from Rick Rawlings, your answer was quite interesting. The Scottish Government’s position is rightly centred on consent and agreement. When the Scottish Government consents and agrees to things, you can move forward. I understand that, but Professor Rawlings talked about other circumstances in which you could countenance alterations to schedule 5 to the Scotland Act 1998 that expand the scope of reserved competence. That is what Adam Tomkins was referring to in his question. Does that mean that the reality behind the scenes—the nuance of this is important—is that the UK Government will be able to legislate in areas that are devolved if we agree them rather than powers being reserved?

I can conceive of that happening, but let us be straightforward: I am not willing to undermine the principle of devolution. The core principle is that there should be clarity between what is reserved and what is devolved. We are in a different set of circumstances. They are unexpected and unwelcome circumstances, so it is incumbent on us to negotiate and discuss, but we will not undermine the devolution settlement. We will not accept anything—again, Wales has found itself in this position—that means that we are unclear about what is reserved or devolved or that means that new reservations are imposed on us. That is clear. The rest of it is for negotiation because we are trying to find a legislative solution to a complex problem.

I wanted to make sure that that nuance was drawn out.

Good morning, minister. The question that still seems unanswered is whether the UK Government asserts, or the Scottish Government implacably rejects, a belief that a common framework requires a single decision-making level.

Some of our witnesses used the example of marine planning, in which there is a mixture of reserved and many devolved areas, there was a consultation process at both legislative levels—stakeholder engagement and parliamentary scrutiny—and there was separate legislation in the two legislatures. Does that deserve to be called a common framework, given the fact that it would be permissible for there to be divergence in the future? It would not be something that Adam Tomkins called a breach—it might be unfortunate or unhelpful, but it would be legitimate divergence within the current arrangements.

I absolutely concur with your view that agreeing the common frameworks is not, and should not be seen as, a means of imposing uniformity on the agreed devolved settlement. That is not what it is about. It is about dealing with the interfaces that have been created as a result of the Brexit process, which have not occurred before and require resolution.

In the established example that you gave, only in those areas where EU competence is presently being exercised and where there is a dispute about where that competence should lie after Brexit—should it take place—would the question arise of whether there should be a framework. If the existing operation works well, I do not think for a moment that there should be a framework there. Marine planning is a good example of that: there is a clear set of arrangements, a range of organisations are involved and there are established ways of dealing with any dispute or conflict that arises.

Therefore, if Mr Mundell is still saying to you what he said to us, which is that he wants to have a process to agree where there will be common frameworks, but not necessarily agreement on the contents of common frameworks, we have a problem.

Let us start with the list of 111 points. If something is not on that list, it is by definition out of scope and consideration. If things were to start being added to the list of 111, this whole thing is doomed—we could not make any progress. Indeed, we should pare that list back. We do not accept that anything should be on that list, to be blunt—all those competences should come back here. In the process of negotiation and discussion, if items were to fall off the list because there is no interest in them, there is no reason why they should be included in any of the frameworks.

An example that was used by Adam Tomkins in his article—I am a keen student of his writing—was aircraft noise, if I remember correctly. It is perfectly possible to exercise the competence on aircraft noise under existing legislation and powers; we just have to say that the competence that is coming back goes directly to Scotland. Therefore, we could take that sort of example out of the list and we would be left with a range of issues that will require further resolution. Our initial approach is that those competences should all come here; the UK Government’s initial approach is that they are all reserved. The solution may be somewhere in the middle in shared frameworks operating under co-decision making. We recognised that last year in the “Scotland’s Place in Europe” paper. We have not changed our position.

Good morning, minister. I want to go back to the common frameworks and the statement of principles that was agreed by the joint ministerial committee on European Union negotiations. I will not read the principles out in full, but they include the principle that there should be common frameworks to

“enable the functioning of the internal market ... ensure compliance with international obligations ... implement new trade agreements”

and

“enable the management of common resources”.

Will you talk a bit more about how the principles were arrived at? Were they co-produced by the UK Government and you or were they just presented to you?

We were presented with an initial list, which was unacceptable to us. In essence, it did not recognise the principles of devolution. There was then a classic process of negotiation: officials undertook heavy-duty negotiations to come to a set of principles that we could agree—those principles are in front of you.

When we agreed those principles at the most recent JMC, on 16 October, I made it clear that they should be published. It is quite interesting that they were appended—to the communiqué, I think—by agreement of the meeting, so that they were clear. We will try to keep doing that as we go forward. The next JMC will meet on 12 December and I will want to ensure that we are entirely clear about what we are doing. We have established that those are the principles to which we are working. We need to be clear that we are illustrating the proof of concept that has taken place and I hope that, by then, we might be able to illustrate the governance issues. We will build on the process, partly to build confidence between the partners who are negotiating and also for the public, so that people understand that firm, clear foundations are being put down.

Would you go so far as to say that the JMC is much more constructive than it was previously?

It depends what you measure from; the baseline was quite low. We worked hard last year to try to get the JMC up and running, and it was disappointing when it stopped meeting. The UK Government broke the agreement to meet monthly and broke the agreement on the means of seeking agreement on the article 50 letter.

Previously at the Finance and Constitution Committee, I have paid tribute to Damian Green and his effort to get the JMC going again. One of the things that has changed is the membership. The JMC is a very unwieldy instrument. I never tire of telling the story of the JMC on Europe that I attended in 2009 at which there were 21 UK ministers, me and Rhodri Morgan—it was not exactly balanced. The most recent JMC was attended by the First Secretary of State, the Secretary of State for Exiting the EU and the three territorial secretaries of state—that was it—and I sat on the other side of the table with Mark Drakeford. That was a better dynamic and Damian Green also chaired the meeting in a way that created a better dynamic. That was one of the factors that allowed us to make some progress.

We are committed to the process and so are the Welsh, and it is good if the UK Government is committed to the process. I was sorry that the Northern Ireland Administration was not there—that is a major loss to the process. I was in Northern Ireland on Friday and Saturday last week and it is clear that there is a need for participation. I had a meeting late on Friday afternoon with cross-community organisations and businesses and their very strong view was that they should be represented at the JMC and that their voice should be heard.

We will endeavour to continue to build confidence in the process.

Thank you for coming to talk to us this morning.

Patrick Harvie touched on the issue of common frameworks and I want to follow up on that. When the Secretary of State for Scotland was here he spoke about the LCM and said that if we got to the stage of agreeing what the process for agreeing was, that would be sufficient progress—rather than actually agreeing to agree it. Using your five steps, I think that takes us to about step three and a half. Do you agree with that perception of how we will reach agreement?

The words “sufficient progress” have a different meaning in the lexicon of Brexit, so I will be careful about how I use them. It is not the case that the process moves forward because we have sufficient progress; they are discussions in which we need to reach a conclusion—there is an end point, both in time and as an objective. The end-point objective is to get the bill passed in a way that can be given legislative consent, so that we can move on. The objective in time is to do that before the bill completes its passage.

That is what we have to achieve, so I do not accept that we are simply talking about talks or seeking ways to agree about agreements. We have an objective to meet and the question is how we get there. We have done it methodically, which is the right way to do it—we have done it by agreeing principles and we are now doing it by proof of concept. We suggested that we look at a number of areas to see if we could work out how the frameworks would work, and we are now looking at governance and dispute resolution. Then, we will need to look at the wider context of how we relate to each other through the bill and the changes to the bill. Finally, that will have to be expressed in legislation.

I am keen for us to keep moving along that path. Tomorrow’s meeting with the first secretary and then the next JMC will be further aspects of that. We will reflect on the experience of Ian Davidson and his colleagues of the deep dive process and I hope that we will be able to cement something in. Our objective is to take it step by step towards an agreement.

If we have agreed what common frameworks look like and have agreed the process for agreeing, but have not yet nailed down the details or specifics, would that be considered sufficient?

If we have confidence that we can see how the frameworks would work—that would be proof of concept, governance and dispute resolution—that would be fine. However, nothing is agreed until all is agreed. The key that turns the lock is quite complex. We have to have trust and believe that the frameworks will work, but there must be actual changes to the bill—both those things must happen. If, at the end of the process, those things have not happened, there will not be an agreement. That means that there will be no legislative consent motion and it might mean that we introduce a continuity bill. We have options. However, we are committed to the process.

My final question is on that point. If there is a failure to agree, where does that leave us?

We have made it clear—as have the Welsh—that the less desirable option is to have continuity legislation. That will be hard work and there are some difficulties in that, but if it has to be, then it has to be.

We can resolve this, as long as there is an understanding that the bill has to change, and as long as we continue to make progress on the discussions that we are having. The official discussions have been positive, and progress is being made in them. That is a good thing, because there were periods this year when the official discussion was producing nothing of any description.

09:30  

Thank you.

Can I tease that issue out a bit, minister? At the end of the process, a final piece of the jigsaw will have to fit into place before agreement can be reached—nothing is agreed until everything is agreed, as you said—and I guess that the final piece of the jigsaw will be the conflict resolution issue. The secretary of state said that agreement should be reached by consent in relation to the process, but that is different from agreement on the content of the frameworks, as Patrick Harvie said. That final piece of the jigsaw needs to be in place, to give not just the Scottish Government but this committee some assurance that the issue is resolved. Where are we getting to on conflict resolution?

My view is that we build our way towards agreement by building confidence and trust in the process, so that as we discuss these things, we do so on the basis that we trust each other and will get an outcome that is acceptable. That process is on-going. There have been discussions this week on dispute resolution and governance, and we will reflect on the outcomes of those over the next few days and certainly in our discussions with Damian Green tomorrow.

I will be happy to have a further conversation with the committee when we know where we are. I suppose that the next key date is the JMC on 12 December, at which we will seek to make progress on those issues. If we can come out of that meeting with some agreement on the next steps, I will be happy to report that to you—but we are not there yet, so I will not overclaim what the situation is. You are right to say that conflict resolution is a key element, just as the principles and proof of concept were key elements. All those things fit in, step by step.

Yes, but conflict resolution will probably be the last piece of the jigsaw to fit into place.

The last piece of the jigsaw will be to convert all that into legislation—into an amendment to the bill that is acceptable to all of us. I say all that without prejudice to the outcome of the negotiations; we are doing our best and we are very happy to talk about the issues—we do not think that they should be secret—but equally I cannot identify the precise moment when that will happen.

Let me go a bit further on that, if you do not mind. This is the question that I really want to ask—I am not sure that I should ask it as directly as this, but I am going to do so. If, at the end of the process, there is no resolution on how we sort out the fine wording of the frameworks and on conflict resolution, will that mean that you cannot recommend a legislative consent motion to the Parliament?

Yes.

That is important. This committee needs to know that, because we will have to take a view on how important that last piece of the jigsaw is.

I am happy to put it on the record that we absolutely will not recommend an LCM unless we are convinced, first, that we have frameworks and a structure that will work and, secondly, that the amendments to the bill will meet our objectives.

Thank you.

We have heard evidence that, despite assurances to the contrary, the Scottish Government routinely relies on UK subordinate legislation in the transposition of EU obligations, without this Parliament being kept informed, let alone asked for its consent. If the UK Government concedes that the consent of the Scottish ministers is to be sought before the UK ministers amend the Scotland Act 1998 or other legislation within devolved competence, what assurance can you give the committee that the Scottish Government will inform the Parliament before it consents to such amendments and will consider seeking parliamentary approval?

I gave that assurance at the last meeting of the committee at which I gave evidence, Mr Bibby, and I am happy to give it again. That is what we will do. Not only did I give that assurance but I said that we want to set up a mechanism to ensure that we do not exercise our own powers until we have consulted. I understand that that discussion with the Parliament is on-going and I am keen that it reaches a conclusion. I have no wish to take on powers that are allocated to us and then exercise them in a way in which I think that they should not be exercised at Westminster.

There are amendments to the withdrawal bill that will give effect to changes at the UK level on that. We will, at the very minimum, mirror those, but I intend to go further and to make sure that there is an agreement between the Parliament and the Government about how we do that.

Thank you for that assurance, minister.

Clause 7 protects the Northern Ireland Act 1998 but there is no such protection for the Scotland and Wales acts. In your discussions, has there been any progress on that issue, or is that in the basket of asks that we can look forward to in amendments?

It is in the basket of asks for the amendments. There are particular difficulties with regard to Northern Ireland, as we know. We should always be conscious not to draw an exact parallel with Northern Ireland, and we do not draw an exact parallel with Northern Ireland. Clearly, however, protection for the Northern Ireland Act 1998 and no protection for the Scotland and Wales acts is not equitable treatment, and there are issues that need to be addressed with regard to that fact.

It should not be assumed that we approve of all the parts of the withdrawal bill that we have not sought to amend. That would be a misreading of our position. We have been very careful about saying what we want to amend, because the process of amendment is for Westminster members of Parliament to undertake. They are the people who will discuss, for example, the European charter, as that is a Westminster issue, although I would want to see it maintained and I am sorry that the vote did not follow through on that. We have focused on the areas that we believe produce a threat to the devolved settlement and that we, therefore, want to change, but we look to Westminster MPs to object to and amend the other areas. Our Scottish National Party MPs have done that, Labour and Liberal Democrat MPs are doing it, and some Tories are doing it from time to time, so there is fairly widespread opposition to some parts of the bill.

When the Secretary of State for Scotland came to see us, he said he was quite happy to talk about extending the Sewel convention to cover secondary legislation—he is on record as saying that. How should that commitment be put in place if it is a genuine offer?

I think that that exists in Wales, because of the legislative processes there. We would be very happy to enter into constructive discussions with the secretary of state at any stage about changes to that process. That would involve this Parliament very heavily, I think, rather than the Scottish Government, but of course we should have those conversations.

Good morning. Minister, you mentioned that you were in Ireland over the weekend. I know that the border in Ireland continues to be a huge sticking point. My area includes Cairnryan, which is the third-largest ferry port. Is there any progress on the border and, if there is, how will it help or hinder us in Scotland?

We have to be careful in discussing that issue. Again, we are clearly not drawing exact parallels of any description. I was in Dublin on Friday morning to speak at an event in the very beautiful Royal Irish Academy in Dawson Street. I had a series of meetings, including with the British Irish Chamber of Commerce, which on Monday published an excellent report about trade and the fact that a customs union needs to be secured in order for the chamber of commerce to continue the work that it does, which is very important for trade between the UK and Ireland.

After speaking at the event in Dublin, I was driven to Belfast for a meeting with cross-community leaders, and then I presented an award and spoke at the Aisling awards ceremony, which is a big cross-community event. On Saturday morning, I was given a tour of the peace walls by Professor Deirdre Heenan, who is pro-vice-chancellor of the University of Ulster and an expert on community and community issues. I was very struck by the sensitivity and the importance of the border issue there.

I was in Brussels last week, too, where I was struck by how the dialogue there on the question of “sufficient progress” on that issue had changed utterly in the two or three weeks since I was last there. It had moved on from issues of finance and citizens’ rights to a focus that was almost entirely on the border issue and how it would be resolved. That will be up to negotiators and others, but it is a very difficult conundrum. It is obviously utterly unacceptable to Ireland and to many people in Northern Ireland that there should be any impediment on the border. If you drive the border, you know precisely why that is. It has 257 crossing points. Only 20 of them were open before the single market, so that has transformed the position.

There is a wonderful statistic, which I cannot remember exactly, about border crossings in Europe: there are far, far fewer crossing points—the number is in the teens, I think—on European frontiers from the Arctic circle to the Black Sea than there are on the border with Ireland. It would change things in a very damaging way were there to be impediments on crossings. That needs to be resolved, but the UK Government is resolving it in the context of its political agreement with the Democratic Unionist Party, and you have heard what happened at the DUP conference this week. It is up to them to resolve it.

As I said in an interview in Ireland on Friday morning, there are issues that arise for the Scottish ports of Ardrossan, Stranraer and Cairnryan with a border down the Irish Sea. The physical issues would have to be coped with, of course, because of the capability of those ports. If customs checks had to be introduced, that would create a big difficulty. I have met representatives of the British Ports Association and the UK Chamber of Shipping to talk about the physical infrastructure of ports, which would take some time to deal with. There are also security implications that will have to be dealt with too. That is clearly unacceptable in parts of Northern Ireland, and it could be problematic.

The solution lies in what the Scottish Government’s position is now and has been for the past year, which is that we should not be leaving the EU but that we should definitely not be leaving the single market and the customs union. That is crazy, because it will create all those difficulties and there are no advantages to leaving them. The “boasted advantages”—if I may use that Burnsian phrase—of Brexit in that regard are absolutely untested and fall to pieces when you look at them closely. Where are the free-trade agreements that are to be held with lots of other countries and are going to compensate us for the front-page story today about the Fraser of Allander institute report about the loss of jobs and trading income that will result from our leaving the customs union? We need to be clear that the best solution is undoubtedly continuation of the customs union and the single market—certainly of the customs union—and if that is to take place for Scotland, it should also take place for rest of the UK, because that avoids those issues and allows the trading relationships to continue.

It is not simply the Scottish Government that is saying that. It is being said widely, for example by the British Irish Chamber of Commerce. It is the position of business and industry, which are saying that, if we impose new barriers because we have removed ourselves from the customs union, we will do nobody any favours of any description. The French ambassador to the United States pointed out, rather memorably, about a month ago that it is not in the interests of free trade for us to remove ourselves from the largest free-trade block on the planet and from 53 free-trade agreements, which is precisely what is happening. That needs to be reconsidered.

Thank you.

The minister mentioned the Fraser of Allander institute. I think that Patrick Harvie wanted to ask about sectoral impacts, so this is probably as good a place as any for him to come in.

I wanted to ask when an impact assessment is not an impact assessment. You wrote to the UK Government yesterday, after being given what I think you described as material that is

“shallow and contains no policy options still less assessment of impacts.”

Am I right in thinking that you have agreed to accept that information from the UK Government on the basis of secrecy, and that you will not be sharing it with the committee?

You are right to say that the material was given to us on the understanding that we would not publish it, and in those circumstances we are certainly not going to publish it. However, we have urged the UK Government to publish it, as the material belongs to it, and we have supported the Exiting the European Union Committee’s position that it should be published. We have to be careful about what we do—what any Government does—when given material by another Government, just as we want others to be careful with material that we would give on intergovernmental terms. I am not going to publish it, but I am urging the UK Government to publish it, and I am urging it to publish the material that clearly is not in what we have been given, which is in the form of standard templates that have been filled in and which is pretty thin. Some of it I recognise from papers that may have come to the joint ministerial committee when it was meeting, so some of it is a rehash of other material.

I do not think that any of us should be surprised that you are unimpressed by the quantity and quality of what is there, given that the UK Government has variously described the impact assessments as existing, non-existing, sketchy and “in excruciating detail”. The assessments cannot be all those things simultaneously. I am slightly disturbed by the implication of your decision to accept the information on the basis that you will withhold it from parliamentary scrutiny and from public scrutiny. Surely you agree with the basic principle that, if Westminster parliamentary scrutiny has access to that information, so should Holyrood parliamentary scrutiny. Surely you would not provide information to the UK Government on the basis that it would keep it secret. Why agree to the same thing in reverse?

09:45  

Let us just be clear about that; I might well provide a letter or information to the UK Government on the basis of confidentiality. That would be a reasonable thing to do. If the—

Earlier this month in the chamber you said to me:

“The Scottish Government believes in the need for transparency in the Brexit negotiations”.—[Official Report, 2 November 2017; c 5.]

Patrick, please let the minister finish his answer.

The Scottish Government does believe in the need for transparency. You asked me whether I would provide material to the UK Government on the basis of secrecy and I indicated that, in the course of negotiations, I would provide, say, a letter or information to the UK Government that was confidential. It might not be confidential for ever, but that could be the basis for an exchange of letters. I have exchanged letters with members of this committee on a confidential basis and I am sure that I will do so again. However, if the material is provided publicly to every MP, for example, I would regard us as being no longer bound by any condition and would therefore think that every MSP should have it, too. We are not at that stage yet, but I do not think that we are far away from that material being in the public domain and I will be very comfortable about that.

I have to be very careful that I am not simply receiving material or information and automatically publishing it. My inclination is to make everything public that I can, but on this occasion the material was provided to us and the Exiting the European Union Committee in a confidential way. I think that it should be public and that it will become public, but I cannot make an ex cathedra decision on that. It is parallel to what happens with freedom of information requests., which is that, if you seek a document, you should seek it from the person from whom it originates. The Scottish Government has done that before and we have to be mindful of it.

I will just express surprise that you have agreed to accept information on the basis that you will withhold it.

Just to be absolutely clear, I have not “agreed” to accept it—

We are getting miles away from the bill now.

Convener, I just want to make it clear that I have not “agreed” to accept it—it was provided to us. I would not want to be misrepresented on that matter.

So—

Patrick, you have had enough.

I am interested in the Ireland-Northern Ireland aspect. I totally agree with what you said earlier about it being regrettable that there is no elected representation from Northern Ireland in the discussions with the devolved Administrations. You clearly had extensive discussions in meetings across there during your trip at the weekend. Have you picked up any sense that there is a chance of that impasse being broken—perhaps by ensuring that there is an election—or that elected officials will become involved? This is a crucial time for Northern Ireland in relation to Brexit, but the table is empty of elected officials from there.

Yes, and that is deeply to be regretted. It is a matter for the Northern Irish parties and I would not want to interfere in any way, but I do not get any sense that change is imminent. That is problematic. It is axiomatic that we are at a crucial stage—we are always at a crucial stage with Brexit—but there is a lack of representation. At the JMC, the presence of an official, no matter how senior, is not the same as having the political parties represented.

At the start of this process, Northern Ireland chose that its membership of the JMC should be the First Minister and the Deputy First Minister, so Arlene Foster and Martin McGuinness were the original representatives. That showed the seriousness with which the matter was taken and the difficulty of the issue in Northern Ireland, because Northern Ireland voted to remain but its principal political party voted to leave. Martin McGuinness was very focused on squaring that circle. I do not think that the process has moved on in any way, which is to be regretted.

We keep our dialogue going and I have always tried to meet all the political parties. I was not able to see anyone from the DUP this weekend, because it was in conference, but I hope to see them at some stage. We try to keep a dialogue open so that conversations can take place. For example, the issue of the withdrawal bill is one that needs some focus in Northern Ireland, because it affects the Northern Ireland Assembly just as much as it affects the rest of us, but it has not had that focus. A number of the parties regret that and have had conversations with me and Mark Drakeford about it.

Because we had time, I gave members a bit of latitude to cover areas beyond our primary purpose today. I think that we have asked all the questions relating to the legislative consent motion and the European Union (Withdrawal) Bill. Thank you for coming in front of the committee, minister. I will suspend the meeting to allow a changeover of witnesses.

09:50 Meeting suspended.  

10:12 On resuming—