Rural Economy and Connectivity Committee

Meeting date: Wednesday, January 15, 2020

Official Report 682KB pdf

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Direct Payments to Farmers (Legislative Continuity) Bill

Good morning, everyone, and welcome to the Rural Economy and Connectivity Committee’s second meeting in 2020. I ask everyone to make sure that their mobile phones are on silent, please.

The first item on the agenda is the United Kingdom Direct Payments to Farmers (Legislative Continuity) Bill. Before we go any further, do members have interests to declare? I will start by declaring that I have an interest in a family farming partnership.

Likewise, convener, I declare an interest as a member of a farming partnership.

I own, with my spouse, a very small registered agricultural holding.

The committee will consider a legislative consent memorandum that was lodged by the Cabinet Secretary for the Rural Economy, Fergus Ewing. The LCM relates to the Direct Payments to Farmers (Legislative Continuity) Bill, which is currently being considered in the House of Commons. As the lead committee in the Scottish Parliament for the bill, we are required to reflect on the memorandum and consider whether we are content with its terms. We will then report our findings to the Scottish Parliament.

The Delegated Powers and Law Reform Committee considered the LCM at its meeting yesterday and, although that committee had no points to make on the terms of the LCM, it agreed to write to both the Scottish Government and the UK Government on the issue of the process.

I welcome to the meeting from the Scottish Government the Cabinet Secretary for the Rural Economy, Fergus Ewing; Alan Fraser, who is the common agricultural policy scheme manager; and David Maclennan, who is a solicitor. Cabinet secretary, would you like to make a short opening statement of two minutes, please?

Thank you, convener. I thank everybody for finding the time to provide me with the opportunity to give evidence on the LCM that was lodged by the Scottish Government in relation to the UK Direct Payments to Farmers (Legislative Continuity) Bill.

I will be crystal clear: without the UK Direct Payments to Farmers (Legislative Continuity) Bill, we will not be able to make payments to farmers and crofters through the direct payment schemes for the 2020 claim year. I will explain why.

The compressed timetable to which we are collectively working is a direct result of the need to pass the legislation in advance of the UK withdrawing from the European Union on 31 January and the UK Government’s timescales for achieving that withdrawal. Although the Scottish Government believes that the best option for the UK as a whole and for Scotland is to remain in the EU, as voted for by the people of Scotland, we accept the need to make preparations for the exceptional circumstances that arise as a result of withdrawal from the EU under the terms of the withdrawal agreement negotiated by the UK Government. Given that, the Scottish Government recognises how critical the direct payment schemes are to Scottish farmers and crofters and how critical it is to make all necessary preparations to ensure that support payments to farmers and crofters in Scotland can continue to be legislated for and made.

The legislative continuity bill is needed as a direct result of the withdrawal agreement, which provides, in article 137, that the EU direct payments regulation will not apply in the UK for the 2020 claim year. We therefore need primary legislation in place to ensure that there is a legal basis for the direct payment schemes in 2020.

I raised that issue with the Secretary of State for Environment, Food and Rural Affairs in July last year and have pursued a resolution since then. With respect, it is a problem that the UK Government has created, that has been identified to it, and that it needed to fix. Notice of that was given by me in writing last July.

The Direct Payments to Farmers (Legislative Continuity) Bill finally intends to solve the problem, albeit late in the day. I therefore lodged the LCM that we are discussing today. In that memorandum, I set out to reflect the exceptional circumstances that we find ourselves in. I also intend to lodge a legislative consent motion that seeks the Scottish Parliament’s formal legislative consent to the bill.

Without the bill, we would not be able to make any payments under the direct payment scheme for the 2020 claim year. That would cause severe financial hardship to Scotland’s farmers and crofters and to the wider agricultural sector, and none of us can thole or accept that. Such a situation could, in turn, result in many businesses folding and lead to land abandonment. For that reason, the Scottish Government recommends that the Scottish Parliament approve the motion.

The bill will be implemented using secondary legislation that is made under it. The Scottish ministers will make a Scottish statutory instrument under the powers in the bill, and it is anticipated that the UK Government will make a number of SIs that will extend to Scotland. Although time limits will be exceedingly tight, those instruments will be subject to the affirmative procedure, so the committee will have a chance to provide a degree of scrutiny.

I hope that that gives the committee an understanding of why, in these exceptional circumstances, the Scottish Government is recommending that the Parliament give legislative consent to the Direct Payments to Farmers (Legislative Continuity) Bill. David Maclennan, Alan Fraser and I are happy to take any questions that committee members have.

Thank you, cabinet secretary. There are some questions. I will start by asking a question for clarity. I remind you of the evidence that you gave to the Rural Economy and Connectivity Committee on Wednesday 31 October 2018, when you were asked a clear question by Maureen Watt, who is now the deputy convener of the committee. She said:

“The cabinet secretary will be aware that NFU Scotland is concerned that there may not be a legal vehicle for delivering payments beyond 29 March 2019. For the record, can you give your thinking on that?”

You went on to say, with regard to being able to make the payments:

“I am absolutely satisfied of that, for very good legal reasons and, as I have indicated, we will provide the committee with the legal advice in copperplate and in detail.”—[Official Report, Rural Economy and Connectivity Committee, 31 October 2018; c 20-21.]

What has changed?

As I have said, it is perfectly possible to ensure that payments are made, and we identified what the UK needed to do last July. I can provide the committee with the correspondence, if it so wishes. I wrote to the Secretary of State for Environment, Food and Rural Affairs on 9 July to request confirmation that the UK Government would take steps to ensure that, subject to the Scottish Parliament’s view on consent, there would be legislation in place for the direct payment scheme in the 2020 claim year.

That is something that is reserved to Westminster. Those at Westminster need to do their job. We are doing our job, and they need to do their job. When I gave the committee assurances that payments could be continued, I did so, of course, on the basis of good faith in working with DEFRA, as I do regularly, to ensure that they would do their job. They have acknowledged that they need to do their job. However, they did not start doing the job until this month.

Cabinet secretary, that was the evidence that you gave to the committee. If the situation has changed, it might have been helpful to warn the committee of that. You also—

It has not changed.

Cabinet secretary, I did not interrupt you and, with the greatest respect, perhaps you will let me finish my question. I will make sure that every committee member has a chance to finish their questions.

At that stage, you said that you were confident for good legal reasons that were beyond doubt, which you said that you would provide to the committee—although you have never done so. I am not convinced that I have heard anything today that would change that position. You say that it is someone else’s fault whereas, at that stage, you were convinced that you were right. In fact, in the evidence session, David Barnes, who was your adviser at that stage, also corrected the questioning, and he said that there was no chance that the payments could not be paid post-2019. The situation has obviously changed, and I have not heard the reason why. Can you explain that to me?

I think that we are going to have to agree to disagree. It was always on that basis. I made it absolutely clear that we would do our part of the job, and we are doing that. We will come on to discuss that under the next item on the agenda. It has always been the case that the UK Government needs to deal with its part of the job—and it accepts that. What I am saying today is that, in a letter to DEFRA last summer, we identified that it needed to do its part as well, because of article 137 of the withdrawal agreement. DEFRA agreed with that in the correspondence that I have.

If you do not accept that, convener, you will have to take it up with DEFRA. That is the situation, and there is nothing remarkable about it. It is perfectly reasonable for the Scottish Government to assume a reasonable level of competence in the UK Government. If you take a different view, that is entirely up to you.

We may have to agree to differ. I am disappointed that the evidence that you gave to the committee in 2018 appears to have changed substantially and this is the first time that we have heard about it.

With respect, I do not accept that, convener.

Thank you, cabinet secretary.

I do not know whether the cabinet secretary has seen the letter from the Delegated Powers and Law Reform Committee that went out late last night or early this morning and was copied to the Cabinet Secretary for Government Business and Constitutional Relations, Michael Russell, and to Theresa Villiers at DEFRA, on its views on the delegated powers and the timescale. In particular, I want to pick up on the fourth bullet point, which is on the follow-on UK SIs, which also have to become law before 31 January, as the cabinet secretary mentioned in his opening remarks. Given that they are affirmative instruments, they are of relevance to us.

I understand that the bill that we are talking about granting an LCM for will go to the House of Lords on Monday 27 January, which is substantially later than had previously been thought. That leaves us with a single week in which to consider the SIs. Our meeting is on 29 January, so we have only one scheduled occasion on which to consider them. That is the preamble.

To what extent are we aware of the content of the SIs? I accept that SIs will be necessary—we cannot do everything in primary legislation, so we need a system of secondary legislation, particularly in such complex, moving situations. Do we have any insight into what might be in the SIs that the committee will find itself considering on 29 January on behalf of the Parliament? Is there any sense that we will have the SIs by that date? Given that the House of Lords is completing its part in the process of the bill only on the Monday, I feel a little discomfort about whether we will get them in time to consider them at all. What does the Government know about that?

The existence of the DPLRC letter was drawn to my attention just before I came into the meeting. Your clerk kindly provided me with a copy, and that is the first that I saw of it. I gather that it was made available to the Scottish Government last night. We have not had an opportunity to study it, but we shall do that in the course of the day.

I note that, in the first bullet point, the letter states:

“The time available for the Committee to scrutinise the LCM ... is wholly inadequate.”

I entirely agree with that, but that is a direct result of the UK Government having failed to act, since last July, on an issue on which it admitted that something had to be done. That is why we are having this last-minute scramble.

10:15  

I turn to the technical questions, which are not simply technical but are very important. I said in my opening statement that the bill will be implemented using secondary legislation. The Scottish ministers will make a Scottish statutory instrument, and it is anticipated that the UK Government will make a number of SIs. There is quite a lot of work to be done and, with the convener’s permission, it might be helpful if my legal adviser on the matter, Mr Maclennan, could give a bit more information about what that will entail.

First, I would like to clarify which procedure the instruments will be subject to. Under the provisions of the bill, they will be subject to the made affirmative procedure rather than the usual affirmative procedure. That means that it will be possible for them to come into force very quickly but still be subject to a degree of scrutiny.

As regards the likely content of the instruments, the operative provisions of the bill, which set out how the powers may be exercised, are very similar to the powers that were available under the European Union (Withdrawal) Act 2018. It is essentially a deficiency-correcting exercise. Therefore, we expect that the SIs and the SSIs will look and feel very similar to, and that they will play a similar role to, the deficiency-correcting instruments that the committee has already scrutinised as part of the no-deal preparation process.

But is it not correct that the made SIs that will be brought forward at Westminster will touch on devolved areas and will therefore be of specific interest to us? Is there anything that gives us comfort that we will have an opportunity to consider those instruments, albeit that I suspect that we might be able to do that only in arrears, once they have come into effect? Do you have any sense of when they might be available to the committee and to other interested parties in the Parliament, such as the Delegated Powers and Law Reform Committee? The fact that it must meet on a Tuesday means that it will meet one day after the House of Lords has carried out its final consideration of the bill.

Cabinet secretary, do you want to answer that, or are you happy for David Maclennan to answer it? I suspect that it is difficult for you to put a date on it.

All these difficulties arise from the way in which the matter has been dealt with by the UK Government, which I have described. All along, my argument has been that we are dealing with mechanisms. We are not dealing with substantive policy on what the money should be used for; we are simply providing mechanisms that will allow existing moneys under existing schemes to be paid. In my view, that should not be a matter of party politics; it is a matter of housekeeping.

The problem is that we can have good housekeeping or bad housekeeping, and there is no doubt that the UK Government has been caught napping on the housekeeping front. It has created a situation in which Scottish farmers will be severely disadvantaged if the necessary legislation is not put in place. The UK Government’s failure to do that has deleterious consequences for this Parliament and is disrespectful to the Parliament and the Scottish Government, but that does not alter the fact that, if we do not act to allow the Direct Payments to Farmers (Legislative Continuity) Bill to be passed by enabling the LCM to be approved by the Parliament, we will put our farmers and crofters at a tremendous financial disadvantage. I hope that we are all agreed that we cannot permit that to happen.

I am all in favour of good housekeeping, and this is a housekeeping question. I am genuinely confused about the process. Under the next agenda item, we will deal with the Agriculture (Retained EU Law and Data) (Scotland) Bill, section 3 of which proposes that the provisions of the CAP legislation on payments will

“continue to operate in relation to Scotland for one or more years beyond 2020.”

I assume that, when that bill was drafted, you were of the view that it did not need to be introduced any earlier, because the payments process up to 2020 was covered, and the bill deals with payments after 2020.

As we all know, Scottish agriculture is entirely devolved; the very fact that we have an LCM and we are asking the UK Parliament to legislate shows that it is a devolved issue. However, we have the Scottish bill. Should the measures we are considering have been introduced earlier and dealt with through the proper process, as we could have done? Can we solve the problem simply by lodging an amendment to that Scottish bill to cover 2020? That second question is an important one, because the first one is about past history, but the important thing is to get it right. Given that I want to make sure that payments go to farmers this year, is the reason why lodging an amendment might not be a good idea that it would be too late to do so in order to give effect to the payments this year? After all, I think that we are all agreed that we want to ensure that the payments are made.

Thank you for that question. I appreciate that the process is not straightforward, which causes all of us here to question aspects of it. As far as the procedural matters are concerned, it might be helpful if Mr Maclennan were to answer the questions about process.

I will flag one of the slight difficulties that we have had with the UK bill; namely, that the date by which it was needed has been a moving target. In essence, it is about payments during the transition period and, as such, it has to be in force by the time that the withdrawal agreement comes into force. At one point, we thought that that would be on 31 October; obviously, it will now be on 31 January—

I am sorry to interrupt but, to get to the point, when are the payments due in 2020? Basically, you are saying that, if we do not have legislation, we cannot make the payments, so we need to have legislation. When are the payments due?

I think that I am right in saying that, under the payment schedule that we recently published, the basic payments will commence in February, and the target is to meet 95 per cent of those by June. The payment schedule that we published requires us to meet the pillar 2 payments by June this year as well. That means that, by the end of June, forestry and agri-environment climate scheme payments have to be completed to the extent of, I think, 95.24 per cent of the value. The Direct Payments to Farmers (Legislative Continuity) Bill deals with those payments, if you see what I mean, Mr Rumbles. The Agriculture (Retained EU Law and Data) (Scotland) Bill deals with changes to schemes after the end of the transition period; as such, they are two distinct processes.

So an amendment to our agriculture bill—

For clarity, cabinet secretary, the payment that has to be made by June—the balancing payment—is not made in 2020; it is made in 2021. Given that there is dubiety on the years, I note that my understanding is that, under the current scheme, depending on the processing of claims, the single farm payment is usually made in the period from October through to Christmas, with 95 per cent of the balancing payments being made by June the following year. That is my understanding of what you are saying, but is that what you are saying?

No. The payments that were made in October were loan payments, so they were not regarded as advance payments of the basic payment scheme.

But those were 2019 payments and not 2020 payments.

To the extent that those are technical questions, it would probably be appropriate for Mr Maclennan to answer.

As the committee is probably aware, the basic payment is made in arrears. As such, when we talk about the claim year 2020, we are talking about money that is applied for this year and paid next year.

The window for filling in claims usually opens on 15 May. The claims will be completed and a proportion of the payment for 2020—90 per cent—will be made in October. Under EU regulations, the balance of the payments, or 95 per cent of it, has to be made by June the following year. Claim forms for 2020 will be submitted shortly—they have to be submitted by a set date, which is usually in May—and the payments will start to be made in October. Therefore, the payments that are outstanding at the moment are last year’s payments, as they are paid in arrears.

There is sufficient legislative cover for those.

There is. We are talking about the payments that will be made for this year, which will be made at the end of this year and in next year. I am sorry to interrupt, Mike, but I wanted to clarify that.

I am glad that you intervened, because that has clarified the issue for me. There has been a bit of confusion. I am genuinely trying to get to the point and I am not making any political point. The committee is responsible for dealing with agriculture, which is entirely devolved under the devolved settlement and the Scotland Act 1998. The Scottish bill that the cabinet secretary has rightly introduced and which we will deal with under the next agenda item will give us, if passed, the legal power to make payments post 2020. Therefore, is the LCM completely irrelevant? Mr Maclennan has just said that the 2019 payments, which are paid this year, are already covered, and the Scottish bill is covering the payments from 2020.

I am not convinced that we need the LCM, so please convince me.

Mr Maclennan will answer that question, for the purposes of clarity.

The two bills are distinct. The UK bill is simply a mechanism for creating a legal basis to continue what we are doing now and to fix the hole created by the withdrawal agreement. The purpose of the Scottish bill is to make changes going forward. I hope that that answers Mr Rumbles’s question.

No, it does not. Correct me if I am wrong, but you have just told the committee that the legal payments—the actual payments—to farmers this year, which are for 2019, are already covered in law. The Agriculture (Retained EU Law and Data) (Scotland) Bill, if we pass it, will cover all future payments post 2020. Is that correct?

It creates a legal basis for making—

So we have the legal basis if we pass the Scottish bill. The UK bill covers England and Wales, and the Scottish Government is asking the Scottish Parliament to ask the UK Parliament to legislate on our behalf for something that we are already legislating for.

If I heard the opening remarks correctly—I accept that I may not have done—the issue derives from section 158 of the European Union (Withdrawal) Act 2018, which in effect withdraws our permission to do what we have been doing and requires it to be replaced by the Direct Payments to Farmers (Legislative Continuity) Bill. Is that a correct understanding?

It is article 137 of the withdrawal agreement. The withdrawal agreement continues the effect of all European law for the transition period, with the exception of the direct payments regulation.

In essence, article 137 removes our ability to make the direct payments, and the bill—

We need clarity. I am not sure that that is what Mr Maclennan just said. Is it what you just said, Mr Maclennan?

The answer is yes, essentially. The payments that are going out of the door this year, which were applied for last year, are covered in European law. We come out of the European Union at the end of this month, and come into the terms of the withdrawal agreement. European law is carried over, with the exception of the direct payments regulation, so we require fresh legislation for anyone who is making applications this year. After the transition period finishes, we come into the new post-European world, where our Scottish bill, on which you are about to hear evidence, becomes relevant.

I understand exactly what you are saying, but Mike Rumbles is asking whether the Scottish bill, which we will consider later in the meeting, already makes allowances for 2020 payments. Mike, have I got that wrong?

I am now confused because of what Mr Maclennan said in answer to my question and what he said in answer to Stewart Stevenson’s question, so I ask for clarity. I have no political point—this is purely a process question. I cannot see the point of legislating twice. The question on which I am seeking clarity is this: if we did not pass the LCM but relied on the Scottish bill and it was passed, would there be any disruption to the farmers’ payments?

Yes.

What disruption would that be?

Because the withdrawal agreement carves out the direct payments regulation, there would be no basis in law for direct payments after the end of this month. That is what the UK bill rectifies.

How does that square with your point to me that direct payments would continue this year because they are 2019 payments?

The legislation that governs payments that were claimed for in 2019 and are paid this year is part of European law. There will still be a legal basis for those payments to be made, because they were claimed under European law. It might be easier if we put that in writing for you. I appreciate that it is a difficult timeframe.

That would be helpful.

10:30  

The problem is timing. My understanding from what we have been told is that the claims that result from applications that were made in 2019 will be paid in 2019 and 2020. Any applications for 2020, which will be made by May this year, are not covered by legislation, which is why we need the legislative consent memorandum, and the Scottish agriculture bill that is in front of us does not cover them. That is my understanding, but I see that Stewart Stevenson disagrees. I have been in the industry for 15 years, but maybe I am confused.

Maybe I am confused, convener, and I am quite content to be told so if that is the case. My understanding is that our ability to make payments on the basis of claims that have already been submitted and are in the system expires on 31 January because of article 137 in the withdrawal agreement, which takes away our ability to make the payments. It does not take away the existence of the claims—that is clear—but it takes away our ability to make the payments, even if we had the money, although that is a different issue for another discussion.

It is simply the technical point that the withdrawal agreement has taken forward everything except the power to make the payments, and that is why we need the Direct Payments to Farmers (Legislative Continuity) Bill—it is to recreate that power for us. To do that is, of course, a reserved power and is not something that we can legislate for.

I have expressed my understanding and I now want to be criticised and corrected.

I ask Mike Rumbles briefly to say whether he is clear about the explanations that have been given.

I will make one final attempt, if I may—just a yes or a no from Mr Maclennan would be helpful. I do not want to do anything that will stop payments to farmers—that is absolutely clear. I want to get this right, but I do not want duplication, and if the issue is entirely devolved, we should deal with it. If I have got this right, just say yes when I have finished, please. We need the LCM because leaving the European Union on 31 January takes away the legal basis for paying the farmers, so we do not have any legislation, and it is too late to include that in the Scottish agriculture bill because we will not have finished stage 3 and have royal assent before the payments need to start. Have I understood that correctly?

The first half of your statement is correct. The second half, about why we are suggesting an LCM, is not really a question for a lawyer.

Surely the question is whether we are legally covered. That is a question for the lawyers, is it not?

Cabinet secretary, it appears that we are slightly stuck. The point is that the Scottish bill has some time still to go through the Scottish Parliament and it appears that the UK bill is a way of ensuring that payments are made. Do you want to comment on that?

I appreciate that these are complex legal matters. I absolutely understand the committee’s frustration, and I agree with it. The situation we are in is not great, but sometimes we have to act on the basis of what we need to do even if we do not agree with it, and this is one of those times.

The deadline of 31 January was imposed by the UK Government—not by us—for a policy that we wholly oppose. However, given that that policy is now going ahead, I have a duty to ensure that people are not prejudiced. I see it as very straightforward. I do not want to make any political capital or to score political points; I just want to ensure that farmers continue to be paid. That is the situation that I find myself in. I absolutely share people’s frustrations, but all along my intent has been to create mechanisms to allow payments to continue.

On the wider debate, Brexit and post-Brexit are vital issues, but they are separate. This discussion perhaps illustrates the grave difficulty of having a clear legal discussion in a committee. I fully appreciate that, and I make no criticism of any member, because I think that we all want to get to the same place.

We have given this a lot of thought, and I think that I set out clearly in my opening statement the basis of the legal advice that I have, and have had for a long time. We did not just come at this at the last minute. We tried to co-operate with the UK Government last July on a policy that we did not agree with, in order to get this done, and we have been working in good faith with the UK Government ever since. The UK Government has taken a bit of time, but that is not the end of the world. In a few weeks’ time, everybody will have forgotten about this. The key thing is that farmers and crofters continue to be paid and that the people out there watching are not prejudiced by what happens in here.

I regret the fact that we are having these complex legal discussions. To try to have such discussions in a committee is extremely difficult. It is difficult for a legal adviser to be quizzed in this way. I give an undertaking that, after this session, at my behest, we will study the Official Report at Scottish Government legal department level and, if there is anything else that we need to come back and clarify to help you in your future deliberations, we will do that.

The timescale is so tight that I fear that we will have to make a decision today. Like you, I am frustrated by the timescale.

I do not see how members do not get this. We have known for months that everything will change after 31 January and we will be out of EU law. In its letter on the Direct Payments to Farmers (Legislative Continuity) Bill, the Delegated Powers and Law Reform Committee said:

“The time available for the Committee to scrutinise the LCM for this Bill is wholly inadequate. The Bill was introduced in the UK Parliament on Thursday 9 January”.

The LCM was lodged on 13 January. The committee appreciates that the timetable for the bill is outwith the control of the Scottish Government. Cabinet secretary, am I correct in suggesting that your previous comments were based on DEFRA doing its job, and that its failure has brought about this issue? To my mind, it is not your fault. You are trying to make it right. Any complaint that legislation has been changed or rushed should be laid at the door of the UK Government. Am I correct?

Cabinet secretary, I am sure that you will be delighted to answer that and that you could wax eloquently on it. Could I ask you to do so quickly, because I have a heap of questions coming up on this—

Well, I would like an answer. Am I correct?

I think that things could have been dealt with more swiftly by the UK Government, but what concerns me more is the need to ensure that we continue, with reasonable efficiency, to make the payments that are due to farmers and crofters. That is what gets me up in the morning and that is why I had a discussion with the officials this morning—as I do every Wednesday morning—about the nitty-gritty, not of this, but of getting the money oot to less favoured area support scheme recipients, and to recipients of basic payment schemes and pillar 2 schemes.

Thank you for doing your job.

Good morning, gentlemen. I do not want to drag this out, but I have a technical question—it might be a legal one. The bill that we are going to discuss later—the Agriculture (Retained EU Law and Data) (Scotland) Bill—would be due to commence on 1 January 2021. In other words, it would commence after the period for the bill that the LCM relates to. If—and it is just an if, as it is in all of this—there was an extension to the transition period beyond 31 December 2020, would the bill that the LCM relates to be extended to cover the transition? What effect would that have on the implementation of the bill that we are looking at next?

My understanding is that the UK bill will cover an extended transition period. That is right, is it not?

Yes.

So if the transition period is extended beyond the end of this year, just as the bill covers the period from now to the end of the year, the bill would cover from now until the expiry of the extended transition period.

Okay. Do you therefore anticipate that future payments would be made under an extended UK bill or under the new legislation that we might pass in Scotland alone?

If the transition period is extended, the bill would give us the powers to make the payments for the claim year 2020; and, in theory, if the extension were for a long period, the bill would give us the legal power—the legal competence and mechanism—to make the payments for that extended period. I do not think that it makes a difference whether the period goes beyond a particular financial year or not, but I will check that with Mr Maclennan.

That is right. The fundamental power is under the regulation, whether it is in our law by virtue of European law, the bill or future legislation.

That is very helpful. Thank you.

Reference was made earlier to a moving target in relation to Brexit day. Frankly, crofters and farmers will be astonished by this debate this morning. They would have thought that everyone would have got their act together. Any neutral political observer would say that, because of the way in which the UK Government has treated the Scottish Government, the Scottish Parliament, our local authorities and, indeed, our citizens in regard to the budget, they would not be surprised that there have been difficulties in relation to the payments to farmers and crofters. It is worth repeating, convener, that it is your colleague, Mr Simpson, who says that the current situation is “wholly inadequate”, and I absolutely agree with him.

In relation to your representations to the UK Government, cabinet secretary, was there any meaningful engagement at any point after July on what is a hugely important issue for our crofters and farmers?

Yes. As I said, I wrote to the Secretary of State for Environment, Food and Rural Affairs on 9 July requesting confirmation that the UK Government would take steps to ensure that, subject to the Scottish Parliament’s views and consent, there would be legislation in place for the direct payments in the 2020 scheme year. The secretary of state responded to me on 29 August and stated that she was confident that, if it proved to be necessary, the legislation could be in place and that the UK Government would seek the legislative consent of the Scottish Parliament. Unless there is any material in those letters of a confidential nature—I do not think that there is—it is my intention to share that correspondence with the committee so that the full picture is available to members.

I should say also in response to Mr Finnie that my officials have worked and sought to work with DEFRA officials on all the matters concerned. They are technical matters and not matters that ministers spend their time dealing with, nor should they. They are dealt with by officials and rightly so. The co-operation between officials has been reasonably good. In other words, there has been co-operation on what needs to be done to ensure the objective of continuing to be able to make payments in all circumstances. Because of the legal complexities involved, they were challenging circumstances.

The point that I am making, however, is that we are not just coming at this issue in January. To be fair to ourselves, we identified a potential problem and a potential solution last July. We wrote to the UK Government and, as I understand it, the Government agreed with us that the situation that we identified was a problem and that the solution that we postulated was a solution that could be deployed. Perhaps because of the election and everything else, things have just slipped. However, I absolutely share Mr Finnie’s view that very few of the crofters and farmers witnessing this discussion will be impressed.

I want to make an observation on a comment that Mr Finnie made. Graham Simpson, the convener of the DPLR Committee, wrote on behalf of the committee to the UK and Scottish Governments about the timing. Members will not be surprised to hear that I agree with him about the timing being “wholly inadequate”. I hope that Mr Finnie was not, by implication, suggesting that I would not agree with him.

No.

Good morning, folks. We are discussing this matter right up to the wire, which is 31 January, and you said, cabinet secretary, that there will be more SSIs. As the letter from Graham Simpson, the convener of the DPLR Committee said, it is totally unacceptable that we are not getting the time to scrutinise. Why are we in this position, given that the date of leaving the EU has been delayed twice or three times? Does that mean that we were never ready to leave at those former dates for leaving and that, far from getting Brexit done, this is only the beginning of a very long process?

10:45  

That is partly a political question and partly a legal question. I think that I have answered the legal stuff. On the political side, I do not think that the UK is ready at all for Brexit. We will come on to discuss that in the next evidence session. An arbitrary deadline of 31 January imposes extraordinary pressures on the democratic procedures of this Parliament and the Westminster Parliament, but that is a direct result of decisions taken by the UK Government.

All committee members have now had a chance to ask their questions. Because of the short timescale for dealing with the LCM, I propose that we approve at this stage of the meeting the draft motion set out in the LCM and that, to allow us to continue with questions, we briefly work out later in the meeting a form of wording for the report. I hope that the committee is satisfied with that way of dealing with matters. I do not see any shaking of heads. So, are members content to recommend in the committee’s report that the Parliament agrees to the draft motion set out in the LCM?

Members indicated agreement.

We will sort out later the wording of the report, which will have to be sent out today for consideration in Parliament tomorrow.

Cabinet secretary, I thank you and your officials for giving evidence.

I will briefly suspend the meeting so that committee members and witnesses can change their positions as quickly as possible and I ask committee members to stay in the room so that we can move straight on.

10:46 Meeting suspended.  

10:50 On resuming—