Constitution, Europe, External Affairs and Culture Committee

Meeting date: Thursday, November 16, 2023

Official Report 648KB pdf

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Subordinate Legislation

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Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendments) (Scotland) Regulations 2023 [Draft]

Welcome back. I remind members that we have no flexibility on time and that we have other agenda items to get through this morning.

Our third agenda item is consideration of a draft statutory instrument. Following the evidence session with the cabinet secretary and his officials, the committee will be invited under the next agenda item to consider a motion recommending that the instrument be approved. I remind members that Scottish Government officials can speak under this agenda item but not under the next agenda item.

I welcome back to the committee Angus Robertson, the Cabinet Secretary for Constitution, External Affairs and Culture. He is supported by Greig Walker, retained EU law act management lead, and David Maclennan, lawyer for the Scottish Government. I invite the cabinet secretary to make a brief opening statement.

It is good to be back. The instrument before the committee is a technical one to update the devolved statute book for the new legal concept of assimilated law, which will become the new name for retained EU law under the Retained EU Law (Revocation and Reform) Act 2023. The change takes effect at the end of the year and cannot be prevented; therefore, as a responsible Government, we want to ensure there is maximal clarity in devolved primary and secondary legislation.

This is the only Scottish statutory instrument laid by the Government under the REUL act to date and the Government has no plans to use REUL act powers to alter policy. The range of policy areas that the SSI touches on—from aquaculture and fisheries to waste management—shows the potential of the REUL act to affect the full panoply of devolved competences.

The committee’s recent report “How Devolution is Changing Post-EU” found that the REUL act, like the UK Internal Market Act 2020, represents

“a significant shift in the constitutional landscape”.

I assure members that the Government is treating the REUL act as such. We are committed to protecting devolved interests in the management of UK statutory instrument proposals, and where powers allow, and it is appropriate to do so, we will seek to legislate in this Parliament. That is why we have brought forward the SSI.

I wish to touch on the report that the Delegated Powers and Law Reform Committee issued last week, which

“draws the instrument to the attention of the Parliament on reporting ground (e), in that there appears to be a doubt whether paragraph 3 of schedule 1 is intra vires.”

That paragraph amends the Freedom of Information (Scotland) Act 2002 so that the phrase “EU obligation” becomes “assimilated obligation”. I note the Delegated Powers and Law Reform Committee’s position, but I remain of the view that all aspects of the SSI are within the enabling powers, and are good law, so I do not propose to withdraw and relay the instrument to exclude the necessary freedom of information amendments. Where out-of-date EU terminology stands on the statute book, it is appropriate that such cases are remedied and, here, an appropriate legislative vehicle was to hand.

I look forward to the committee’s questions on this technical subject. I am delighted to be joined by the two leading experts in the field, who will be able to answer any technical questions that you may have.

I refer members to my entry in the register of members’ interests, which states that I am a member of the Faculty of Advocates. I entirely agree with the cabinet secretary’s position. It is important that the SSI is approved. Can I ask why, if it possible to answer, the issue has arisen? Was there an oversight or did something slip through the net? I do not say that critically, because I know that such things often happen.

I will ask colleagues to follow up, but I will make a general point first. Imagine that we were in a parallel world where the REUL legislation, as it had previously been proposed, had gone through. We remember that the sunsetting arrangements had been brought in. No doubt were we still in that universe, we would have been sitting here talking about many, many SIs and SSIs. Now, at least, we are in the more fortunate position that we are not doing so.

There is a lot of reflection about those sorts of issues. It has been highlighted to me that there have been three recent cases where people have suggested that the matter may be relevant in relation to employment law or equality law or, indeed, in relation to Rwanda, which is quite current. However, it is not. Do David Maclennan or Greig Walker want to add anything on the specifics of the measure?

Given the scale of the statute book and the challenge of EU exit, it is unsurprising that there may have been missed references in the statute book. I hope that it gives members confidence that in quite a large instrument—colleagues across Scottish Government teams have been looking at retained EU law intensely for some time—there is an issue with just one line.

As the cabinet secretary said, if we uncover an anomaly, there is a range of approaches that we might take: we might leave it, if it is inconsequential, or we might consider non-statutory options such as guidance or directions. However, in this case, we felt that the matter was comfortably within the enabling powers—general consequential amendment powers—and that the legislative vehicle was to hand. I am not aware of any other anomalies or deficiencies.

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As I think that your briefing makes clear, what were known as deficiency powers under the European Union (Withdrawal) Act 2018 have now gone. However, should there be any remaining points to be addressed, it may be that there are legislative approaches other than using the REUL act because, as the cabinet secretary has stressed, there is no appetite to use the wide suite of powers under the REUL act that are now available to the devolved Governments.

I invite my colleague David Maclennan to say a little more about the fact that the matter has come to light now, the fact that there has been no practical issue to date and why this is the appropriate approach to take

The key point is that the instrument is for updating the terminology to reflect a new legislative landscape. Each of the terms in question have to be understood within the legislative framework in which they were intended to be used. When we were an EU member state, there were obligations under EU law that attracted the label of an EU obligation. When we left, the EU law became retained EU law and obligations under retained EU law became known as retained EU obligations. At the end of this year, under the Retained EU Law (Revocation and Reform) Act 2023, retained EU law will become known as assimilated law, which means that those obligations will become known as assimilated obligations. The instrument and its provision are making sure that the right label will attach to the obligations in question. That is why we remain comfortable that we are able to introduce the instrument within the powers of the REUL act.

As there are no further questions from the committee, we will move to agenda item 4, which is a formal debate on the affirmative instrument on which we have just taken evidence. Cabinet secretary, do you wish to add anything?

I am content with the statement that I outlined to the committee. Thank you, convener.

Motion moved,

That the Constitution, Europe, External Affairs and Culture Committee recommends that the Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendments) (Scotland) Regulations 2023 [draft] be approved.—[Angus Robertson]

Motion agreed to.

Is the committee content to delegate authority to me, as convener, to approve a report on the instrument for publication?

Members indicated agreement.

I thank the cabinet secretary and his officials for joining us this morning. We are just two minutes over time, cabinet secretary, so it is a good morning.

10:03 Meeting suspended.  

10:07 On resuming—