Finance and Constitution Committee

Meeting date: Wednesday, September 9, 2020

Official Report 661KB pdf

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UK Withdrawal from the European Union (Continuity) (Scotland) Bill: Stage 1

Item 2 on the agenda is evidence from Mike Russell, Cabinet Secretary for the Constitution, Europe and External Affairs. I welcome the cabinet secretary and his supporting officials from the Scottish Government: Emma Lopinska, constitutional policy manager; Charles Stewart Roper, head of environment strategy; and Francesca Morton, solicitor.

I invite the cabinet secretary to make a brief opening statement.

Thank you. I am just waiting for the camera to come on.

Give it a couple of seconds.

Sorry about that—there was obviously a glitch.

Thank you for the invitation to give evidence to the committee. As suggested, I will give a brief opening statement and I will be happy to answer the committee’s questions.

These are perilous days, weeks and months for the future prosperity of Scotland and the rest of these islands. The eighth round of negotiations between the United Kingdom and the European Union takes place this week, and significant issues are still outstanding. We are apparently hurtling towards the cliff edge of no deal or a very poor low deal by the end of this year, because the UK Government has refused to seek an extension to the transition period. In the middle of all that, a bill on the UK internal market will be published today, which will ride roughshod over the competence of the Scottish Parliament and the Welsh Assembly and will severely damage the withdrawal agreement.

In that context, I believe that it is vital that we take action now so that we can protect the interests of the people, businesses and environment of Scotland, and the bill that we are considering today is crucial to that task. It is critical in ensuring that there continue to be guiding principles on Scotland’s environment and it will establish an environmental governance body to secure full and effective implementation of environmental law. It is also critical that it gives us the legislative tools that we need in order to maintain some stability and consistency in our laws after the powers in the European Communities Act 1972 are lost. The bill is also critical to ensure that, where it makes sense to do so, Scotland can continue to align with EU law in future, which the people of Scotland expressed as their preference in the 2016 referendum. We have waited for more than four years for clarity and we cannot wait any longer. It is for the Parliament and Scotland to decide how to legislate for those matters, and that is what the bill aims to do.

I will briefly address issues that have arisen during the course of the evidence that the committee has taken. To clear up a couple of misunderstandings, I will clearly set out what the bill provides for. In recognition of the unique circumstances in which the bill is brought before Parliament, the power will expire after 10 years. The length of the sunset period is an attempt to provide stability, to avoid the potential need for numerous and different bills, to allow time for us to assess the impact of Brexit and, if I might say so, to take us very comfortably through the period of accession of an independent Scotland to the EU. For the purposes of clarity, I ask the committee to note that, although the power at section 1(1) will, at some time, expire, section 3(3) makes clear that any regulations that are made under that power will not expire.

Although Roseanna Cunningham is leading on part 2 of the bill, I will take the opportunity to clarify the scope of section 10(2). That duty requires UK ministers to

“have regard to the guiding principles on the environment”

when developing policies

“so far as extending to Scotland”.

That duty applies to all policies that are developed by UK ministers that extend to Scotland, subject to the limited exceptions that are set out in the bill. Comparisons have been made between section 17 of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and section 10(2) of this bill, but section 10(2) is a very different provision.

I want to make clear that the Scottish Government intends to work with the Parliament to agree an appropriate and proportionate decision-making framework for future alignment with EU law. We all agree that decision making on the issues on which we might wish to align with EU law will vary, depending on the specific measures that are being considered. As I said to the Environment, Climate Change and Land Reform Committee last week, the Scottish Government does not have all the answers; that is why it is important to work with the Parliament and others.

I agree with those who have said that the broad nature of EU law and the different scenarios that we might face make agreeing such a framework on the face of the bill not only unhelpful but very difficult. However, I am more than happy to commit to liaising with the Parliament to allow the Scottish Government to consider how, at the earliest stage of policy development, we can build in an appropriate level of consultation with the Parliament and stakeholders. The Scottish Government is not ruling out the use of primary legislation where that is the best and most appropriate legislative route, but it should not be the default or the only route.

Finally, I remind the committee that, in the Scottish Government’s view, the power in section 1(1)—the core power, which I am sure that we will discuss today—is pragmatic, practical and proportionate as well as discretionary and time limited, and it will be subject to full parliamentary scrutiny.

Thank you.

One of the many challenges that the committee and the Parliament face in considering the bill is the on-going uncertainty regarding the constitutional impact of Brexit on devolution. In particular, the future relationship with the EU remains unclear, common frameworks are still to be agreed and there is now the possibility presented by the United Kingdom Internal Market Bill. You have touched on the issue but, given the existing level of uncertainty, can you give us a bit more detail on why you have introduced the bill at this time?

The bill has been delayed by the Covid pandemic. We should have considered it in spring and early summer this year, but that was not possible after the lockdown began on 23 March, and the bill’s progress was therefore delayed. It has been introduced later than I would have wished, but it is still vital that we have the tools available to us.

In addition, we should not allow the agenda to be dominated or set by the UK Tory Government. Today is significant, given that the internal market bill will be published. In case anybody is tempted during this session to attack me in any way because the Scottish Government is objecting to that bill, I draw their attention to the statement last night from the Welsh Labour Government, which, if anything, uses language stronger than any that I have used.

The internal market bill is a major threat to devolution, and it is a major destabilising force. For a UK Government that supposedly seeks stability, all it does is create instability, as it is continuing to do by its failure to come to a negotiated agreement with the EU.

I am trying to ensure that we have the minimum powers that we believe that we need to do some of the things to preserve European regulation, which the Parliament has already agreed that we should do. A variant of the powers in the bill existed in the original continuity bill, and it survived unscathed the challenge from the UK Government in the Supreme Court.

I wish that the current UK Government would see sense. Yesterday, I had another conversation with Michael Gove and Alok Sharma about their internal market bill; I really wish that they would see sense and accept that the frameworks are the right way—a voluntary way—to go forward. I have given assurances on those frameworks and how they would operate. If there is anything missing in that programme—as Michael Gove keeps on claiming, although he does not say what is missing—we will plug the gap.

We should not have the internal market bill, which has, of course, been made even worse by an admission by a UK Government Cabinet member of its illegality under international law. It is almost beyond belief that we are in that position.

My questions are intentionally general, because other members will want to ask more detailed questions in these areas.

You touched on the internal market proposals. In the Scottish Government’s “UK internal market: initial assessment of UK Government proposals”, you provide a case study on the potential impact on the food and drink sector. It states that the continuity bill will allow the Scottish Government to “keep pace” with the high environmental, social and regulatory standards provided by EU law that apply in the sector. However, we have heard evidence that the internal market proposals would potentially undermine those policy choices. Why might that be the case, and how does the Scottish Government intend to respond to that potential constraint on the use of its devolved powers?

We have no intention of acceding to the internal market bill. It is being published just today—the speed with which it is being pushed through is, in fact, obscene. We intend to resist that bill. It was resisted in the House of Commons by Wales as well as Scotland, and I am sure that it will be resisted on a cross-party basis in the Scottish Parliament, with the exception of the Tories. We will continue to challenge it in the House of Commons and the House of Lords, and we will look at other options for challenging it. Therefore, I do not accept that it is a done deal by any manner of means.

09:45  

It is clear, however, that, were that bill to be passed and if it were to be observed in Scotland, and if the UK were to accede to lower standards, which I think is inevitable, there would be a lowering of food standards in the case of agriculture. I know that the US-UK trade talks are recommencing today; I think that The Independent has published something today about documentation from last year’s discussions, showing that the US was seeking full market access. If those food standards were lowered to allow the UK to accede to those trade deals—which they will be, because the UK is desperate to do those deals—American providers and importers could successfully go to law, in my view, to challenge high standards in Scotland.

Scotland has a right to choose what standards to have. Scotland has had high standards as a member of the EU and it has a right to continue with those high standards. Those standards should not be undermined by will or diktat from the UK Parliament, which essentially leaves the Scottish people defenceless, and that is what would happen, so we are determined to oppose the bill and we will go on opposing the bill. It is not a done deal.

I want to ask about parliamentary scrutiny, which has been a theme in all our evidence sessions so far. Among others, Professor McHarg and Professor Keating, the Law Society of Scotland, the Faculty of Advocates and NFU Scotland have expressed concern that, although there may be a case for giving ministers powers to introduce minor changes to existing EU law through secondary legislation, there is a less strong case—if there is a case at all—for giving ministers the power to introduce substantial new laws and significant policy changes, which should properly be done through primary legislation. The same point is made in the report that we have just seen from the Delegated Powers and Law Reform Committee.

How can you justify proceeding with the bill, which will give such sweeping powers to ministers to introduce new laws by way of secondary legislation?

I do not accept that the bill will give ministers sweeping powers to introduce new laws by means of secondary legislation, so I object to the premise of your question.

The reality of the situation is that we have made it clear—indeed, I did so in my opening remarks—that, where primary legislation is required for particularly major pieces of work or legislation, we are open to that. However, primary legislation is not required for more minor pieces of work, nor for keeping pace with existing standards as they develop. It would be a waste of parliamentary time and it would be a means by which those who are opposed to any keeping pace could frustrate the legitimate will of the Scottish people to keep pace with high standards. It would, in other words, be a Trojan horse that would be introduced to stop the bill being effective.

The levels of parliamentary scrutiny in the bill are entirely clear; they consist of an either/or power. Of course, there is scope in every bill to debate—I do not think that I have ever taken a bill through the Scottish Parliament on which we have not had major discussions about whether negative, affirmative or super-affirmative secondary legislation powers should be used.

We can have that debate as we move into stage 2. I predict that amendments will be lodged by Murdo Fraser and others to change negative to affirmative and affirmative to super-affirmative procedures. That is what happens. However, it would be an astonishing use of parliamentary time if we were to have to use primary legislation to keep pace with every single European regulation. Nobody else does that. It is not required.

I draw attention to the flexibility that I referred to in my opening remarks as to the process that we follow, the consultation that we carry out and how people suggest that we should keep pace. The Government will not decide on that alone. Parliamentary committees, interest groups, third sector groups and businesses will want us to ensure that the highest standards are maintained and that we keep pace with European standards. For example, on water quality regulation, which is a key issue, new powers are coming in through the EU that will deal with higher water quality standards and issues such as plastics that it would be necessary and useful for us to adapt to as quickly as possible, as we would have done as a member of the EU. Those are all reasonable ways in which to move forward with the highest level of parliamentary scrutiny and the highest level of confidence.

You used in your response to me the argument that to proceed by primary legislation in the event of a policy change would be a waste of parliamentary time. I asked members of the bill team at the start of this process whether they could tell me how many significant measures would be brought in on an annual basis under the bill, but they could not tell me that. I therefore cannot understand how the policy memorandum makes the case that it would be too burdensome to respond to policy change with primary legislation. You have just repeated that point, but the bill team could not give a figure for how many primary bills we might be talking about. Can you give us that figure now?

Clearly, we would have to go through all the measures that we might intend to keep pace with and come to some assessment as to whether they were major or minor. However, no—[Interruption.] If you would like me to answer you, I am happy to, but I have to have the opportunity to do so.

As I said, we would have to go through all those measures. Up to 70 minor items could be changed in a normal year, which seems entirely reasonable. However, I do not think that we would wish to keep pace with all 70. I do not think that we have the capability, even with secondary legislation, of keeping pace in that way. Regrettably, because, as you know, the people of Scotland voted to stay in the EU and are being dragged out of it against their will, we cannot keep pace with the highest of standards in everything, even in the environmental sphere, let alone in the range of other areas in which we would be interested.

However, having to go through the full primary legislation route on every occasion when we wanted to continue to keep pace with the EU on issues—for example, water quality or fish diseases—would be an astonishing waste of parliamentary time and a Trojan horse to prevent those powers from being used. That route would be used by people who do not wish Scotland to keep pace: the fanatical Brexiteers, for whom the very mention of European regulation is anathema. The people of Scotland deserve to have the highest of standards, which is what we are seeking to provide.

That response is a strange characterisation of bodies such as the NFUS, which has expressed concerns that I have outlined to you this morning about, for example, new environmental measures being brought in that do not go through the full route of consultation and parliamentary scrutiny. To dismiss the NFUS as “fanatical Brexiteers” is, frankly, ludicrous.

I did not do that. I would be grateful if you did not put words in my mouth.

That was the term that you used about people who have expressed concern about the bill. If I can just conclude my question—

I am concerned about your approach, not the NFUS’s approach. I think that you are misrepresenting matters here.

Gentlemen, all that those of us who are listening hear is two voices talking across each other. If you could take turns to speak and not interrupt each other, that would be helpful.

Convener—

Perhaps I can—

I am trying to ensure that words are not put into my mouth. I did not criticise everybody. I indicated that there was an attempt to put words into my mouth, but I am not going to take that.

I understand that, but in this hybrid meeting set-up, it is difficult for committee members and probably the public to understand what is going on when two voices are talking across each other. Murdo, you interrupted Michael the first time round and then he interrupted your question, so you have both been at it. Just keep it to one speaker at a time, please.

Thank you, convener. I will continue with my question, just to close that off. The point that I was making was that the concerns over the bill go far beyond people who could be dismissed as “fanatical Brexiteers”. However, we will leave it at that.

This will be my final question. Cabinet secretary, you spend all your time talking about power grabs. That is exactly what the bill is, as it stands. It gives sweeping powers to the Scottish ministers to introduce new laws to Scotland without the required level of parliamentary scrutiny and consultation. That is what the responses of those who have given evidence to the committee over the previous weeks have been telling us. Is it not time for you to think again?

I know that the Conservatives are keen to prevent legislation from proceeding—that is what they will be attempting to do this afternoon in the chamber.

That is not the evidence that the committee has been receiving. Where there are concerns about primary and secondary legislation, we have been prepared to address those. I made it clear in my opening remarks that I think that there is a ground for primary legislation in case of major innovation. I have never denied that; you are the one who appears to be denying it. I am happy with that, but I repeat that it would be a waste of parliamentary time to use primary legislation for every small change, which is what you have been suggesting.

Secondly, I believe that the Tory hostility to the bill and to the EU is unbalancing the debate. I am prepared to stand up and argue vigorously for the right of Scotland not to be dragged out of Europe against its will nor to have the high standards that we are used to and have in place trashed in order to have a bad trade deal forced on us by the UK Government. I will not have that and I am determined to fight against it.

The Tories are in denial of the devastating impact that Brexit will have, so we are unlikely to have a reasonable debate with any Tories. The cabinet secretary highlighted higher water quality as a good example of where we would want to maintain EU standards. However, given all the bills that are coming forward just now, such as the Trade Bill and the internal market bill, are we confident that this bill will be able to deliver on examples such as higher water quality? Would any of the other legislation that is going through the UK Parliament supersede it or be able to overrule it?

That is a very good question, because I fear that the situation with the internal market bill will be used to undermine devolution in many of its aspects. It is also possible—it has happened before—that the Advocate General will attempt to challenge this bill, although it is clearly within competence; it has been recognised as being within competence.

We should put in place the legislation and regulation that we believe we need to take forward the highest standards and we should continue to oppose those who are trying to stop that from happening. Should they continue to do that, we should work very hard to stop that interference in the rights of Scotland.

I make this point clearly and know that you agree with it. Whatever your position concerning the constitution, in areas that are devolved to the Scottish Parliament, it has the right to choose the standards and to ensure that they are applied in Scotland. That is a basic tenet of devolution. We should insist on that and pass legislation to show that we have that right.

Good morning. The context in which the bill operates will be determined not only by whatever legislation is passed by Westminster but by whatever agreement, if any, is reached between the UK Government and the European Union. Will you update the committee on what dialogue you have had with the UK Government vis-à-vis its negotiations with the EU and, with regard to its scenario planning for after 1 January, tell us what central assumptions the Scottish Government is working towards?

There was a meeting of the joint ministerial committee on Thursday at which an update, if one can call it that, was given by David Frost. I cannot say that I learned any more in those circumstances than I could read in the newspapers. All that I know is gleaned from that meeting, the newspapers and conversations with others who are engaged in the process.

10:00  

I do not think that it would be news to anybody to hear that those talks appear to be deadlocked. They appear to be particularly fractious on the UK side, with all sorts of statements being made at the weekend about insisting that the EU understands the UK’s position. We have also had yesterday’s unfortunate development in the House of Commons, which has produced a very negative reaction even among the most friendly of countries, such as Ireland, where the new Taoiseach, the Tánaiste and the foreign minister, Simon Coveney, have in the past 24 hours expressed concern about the UK Government’s willingness to flout international law.

As far as I am concerned, all I fear is that the process is going nowhere. Even if it was to produce a result, the result that the UK is looking for is what I have been calling a low deal—a very unambitious deal, which is essentially the bare bones. We should never stop reflecting on the fact that the UK is the only country in history that has gone into a negotiation endeavouring to get a worse deal than the one that it entered with; it wants to walk out of the room with a worse deal than it already has, so I am not sanguine about the prospects. Whatever happens, we will have a problem, so we are actively preparing for the end of transition on 1 January. I report regularly to the Cabinet on that. We are now getting—as a result of the JMC, I think—the reasonable worst case planning assumptions from the UK Government, but we still do not get enough information on what it is doing. There is a meeting tomorrow, I think, with the Paymaster General that is meant to look at one or two further details, but trying to get information out of the UK Government is often like pulling teeth, and that is information on the transition that we need.

I will make a final point. When we have dealt with no-deal planning on two major occasions, there was a clear understanding between David Lidington and me—both were when David Lidington was in post—and between Lidington and Mark Drakeford and then Jeremy Miles in Wales, that this would be outwith normal politics and we could find a way to ensure that we could work on this without the usual political difficulties, but that is not the case now. We have seen that recently in the newspapers and elsewhere. It is now handled in a very political way by the UK Government, which is designed to undermine and damage the other Governments of these islands, and that needs to be regretted.

I am conscious in these exchanges and in other exchanges that we have had in previous evidence sessions on the bill that we routinely slip into talking in abstract and legalistic terms, but could you sketch out what the practical implications will be for your constituents, for example, of leaving without a deal after 1 January and how the powers that the bill provides for could address some of those concerns and issues?

I am very nervous and concerned about the range of food, environmental and other standards that we would expect to take as normal in Scotland. The internal market bill will allow all those standards to be progressively undermined, and that is what will take place. Lower standards will be set no matter what the UK Government says now. Those lower standards will be forced to prevail, which concerns me. Food standards, for example, are about basic health issues—countries that have lower food standards tend to have more illness as a result. That is simply reality—that is where things are.

We can consider how sectors will be affected. For example, Scottish seafood producers were saying yesterday that they are worried about having major amounts of phytosanitary inspection, which would hold up shipments and massively increase the cost of shipments of seafood leaving the country. In my constituency, we have a range of small seafood producers—the village of Tarbert has 11 or 12 processors—and that would be hugely disadvantageous for them. I declare an interest in that I am an honorary president of the Clyde Fishermen’s Association, but I also know that there is a possibility that fishermen will have to base themselves in Ireland to take advantage of selling directly to the EU. There are practical difficulties.

I had a fascinating conversation earlier this week with somebody who knows far more than I do about logistics. The reality of exporting and importing is that the systems are absolutely not ready. We know that from what the hauliers have been saying publicly to the UK Government. The person I was talking to said that, in the end, people could get the systems to work, although they will not be working by 31 December. Some of the computer systems have not even been written yet. In the end, people can probably get things to work in a year, 18 months or whatever. The long-term issue, however, is that all that business will be much more difficult and much more expensive, because there will be more bureaucracy and paperwork as a result, no matter what happens. Even if there are no tariffs—the great amount of attention is on tariffs—the logistics of trade, on which jobs depend, will become much more difficult.

There is no pot of gold at the end of this rainbow. The implication is that, once we have got shot of the EU, we will have some fantastic set of arrangements with America or whoever knows—Alpha Centauri, perhaps. It is simply not going to happen. There is nothing to compensate for what we have now in the same way.

This is a downward spiral, and it is pretty tough for us, as politicians, to have to be honest with our constituents and say that the UK Government is presently forcing them into a downward spiral. That is why having an option of something else, of the normality of being an independent country as part of the EU, is something that we should also be talking about.

You are right that there is an alternative future for Scotland, rather than the bleak isolationism of Brexit. In your opening statement, you referred to the sunset period for the bill being 10 years, with an opportunity for extension, and you said that that could include a period for the accession of an independent Scotland to the European Union. Given that support for independence is at 55 per cent, and given that people in my generation, in their 30s and younger overwhelmingly rejected Brexit and overwhelmingly support independence, can you outline how the bill will enable Scotland, both as it stands at the moment, before an independence referendum, and after an independence referendum, to prepare for accession to the European Union as a full, independent member state?

One of the useful effects of the bill will be to maintain regulation that would otherwise atrophy. We do not want standards to slip in such a way that it would take a long time to get back to them. I am absolutely certain that accession can be achieved well within any period in the bill. That said, we do not want standards to slip because, the further they slip, the further back they have to come. The bill has the useful effect of ensuring that, in areas that we choose—we cannot do it in all areas—we do not let those standards slip.

I wish to bring the discussion back to the terms of the continuity bill. In giving evidence to the committee, Professor Aileen McHarg explained that, whereas UK members of the European Parliament would previously be fully involved

“in the formation of EU law ... that will not be the case in future”

under the EU continuity bill. In her words,

“we will become purely rule takers.”

The professor went on to say that,

“In those circumstances, it seems very hard to justify putting such an extensive power”—[Official Report, Finance and Constitution Committee, 26 August 2020; c 4.]

into the hands of the Scottish ministers in order to keep pace. Given those concerns, can the cabinet secretary confirm what influence, if any, the Scottish Government will have on the future direction or content of EU laws that it intends to keep pace with?

Clearly, I would be much happier if we had MEPs who were taking part in that process. That is what we should have, and that is what we aspire to have, but that is what we are not going to have because of the actions of your party and your Government, against the will of the Scottish people. The regret in that is all mine, but the blame is all yours.

However, the best is the enemy of the good. We will have to make up as much ground as we can by trying to ensure that, in the limited areas in which we can and choose to keep pace—as we will not have the space to do it entirely—we do so in the most effective way possible and in the way that involves the most possible scrutiny. That is what we are endeavouring to do.

As I said in my opening remarks, we do not rule out primary legislation in particular significant areas, but we believe that, operationally and sensibly, other areas can come through by means of normal parliamentary scrutiny—and there will be parliamentary scrutiny. As I said to Mr Fraser, the balance between negative, affirmative and super-affirmative resolution will no doubt be one that we will work out during the course of the bill, as always happens. I do not think that there is anything inherently wrong with the proposals. Provided that Parliament has the opportunity to scrutinise and can be proactive in the process of developing our approach, that is beneficial.

My final point is that, of course we will, as third countries often do, try by means of business in Brussels and active debate to make our views clear. I agree that it would be far better if we had full democratic participation in making regulations in Brussels, and I look forward to the time when we have that again.

In an answer to Tom Arthur, you said that part of the rationale of the bill was to maintain regulatory alignment with the EU system, but if you adopt your ad hoc, pick-and-mix approach to which regulations and directives to follow, will that not defeat the purpose of maintaining regulatory alignment and leave Scotland in a regulatory no-man’s-land?

No, I do not follow that. In so far as we are able to do so, we will do it to the maximum of our ability, but we cannot do it all because we are being deprived of the core tool, which is full independent membership. That is why we want to get full independent membership. Being able to maintain alignment with some things is still better than not doing it at all, which is, of course, what the UK has been trying to force us to do. We are not willing to be forced into that position.

The reason why I raise that concern is that that was the evidence that we were given at previous meetings. Indeed, the Environment, Climate Change and Land Reform Committee received evidence that it is unclear whether Scotland will keep pace with the EU, adopt similar standards to the rest of the UK, or take a completely different approach. In other words, the evidence that we heard was that there was a risk that Scotland could be, at the end of the day, out of sync with EU regulations and out of sync with regulations in the rest of the UK. That is the possible consequence of the EU continuity bill.

Do you recognise the uncertainty that having potentially to comply with three different regulatory systems—EU regulations for exporters, devolved powers in Scotland and different regulations in the rest of the UK—will create for business across Scotland? You referred to uncertainty earlier; does the bill not introduce massive uncertainty for business in Scotland?

Absolutely not. It provides certainty in the midst of the complete boorach of uncertainty produced by the UK Tory Government. It provides clarity. When we know the European regulations, which people observe at the moment, and we choose to stay with those European regulations, that will be absolutely clear.

With respect, I think that you are sowing a bit of uncertainty yourself—unwittingly, I am sure—but one can go on from three and say that we could align ourselves with other things and build confusion. It is actually very simple: we want to continue as much as we can with European regulation. That is also democratic, because that is what the people of Scotland want to do. We do not wish to go down the aggressive deregulating line that the UK Government is bent upon to lower standards in order to get bad trade deals. We want to support Scottish business.

Unfortunately, the internal market bill will also damage Scottish business because it will create unfair competition and circumstances in which businesses in England particularly will be able to dominate the Scottish market. We think that that is unfortunate. We just wish that the Scottish Conservatives would stand with the rest of us to defend the devolution settlement and Scottish business against those encroachments. They would be very welcome.

Thank you, cabinet secretary, but our priority is, as always, to protect and secure the internal market with the rest of the UK which, as you know, accounts for more than 60 per cent of Scotland’s trade and protects more than 500,000 jobs in Scotland, according to the Fraser of Allander institute. In all of this, the economic priority of the internal market bill is to secure the UK internal market.

Convener, I appreciate that I have taken up quite a lot of time so I am happy to leave it there, thank you.

That was a statement and not a question, Dean.

10:15  

I do not know whether I am depressed by all that so far, but we will keep going anyway. The cabinet secretary has touched on quite a lot of issues around standards. We had the NFUS before the committee and it clearly wants to sell products to the rest of the UK, but it also wants to sell products to the rest of Europe. It is fearful that, for example, poorer products will be used in English farms and then come into Scotland. Is it possible to square that circle? Can we maintain high standards with Europe at the same time as the UK Government appears to be undermining those standards? We now know that we cannot trust the UK Government, even if we have an agreement with it.

Alas, that is true, Mr Mason, and the whole world is regrettably discovering that after yesterday. There is no reason why we cannot find a sensible solution to all those problems, and the frameworks are the way to do so. Mr Lockhart made his definitive statement at the end—he clearly wanted to get the answer in before the question.

I want to make absolutely clear that I am committed to the highest standards and to the openness of the internal market. A lot of nonsense is spoken about the internal market—Alok Sharma lectured me on its history yesterday, which I found a bit curious. It has not existed since time immemorial with one set of regulations for these islands. Time was regulated only in 1840 with the arrival of the railways. Until the Great Western Railway’s regulated railway time, every part of these islands did not observe the same time.

The reality is that the internal market is a comparatively modern concept that can, will, and was meant to be dealt with by the frameworks process. If any impediment to the internal market has been discovered, nobody has ever been able to point it out to me. As far as I can see, the whole edifice of the UK bill is predicated on a non-existent problem, but if there is a problem, the voluntary frameworks that we are putting in place can undoubtedly deal with it.

We could short-circuit all the difficulty, the time that we will spend on the bill and all the angst that is involved in it, if we simply said that we have done good work on the frameworks, that more needs to be done—which we can accelerate—and that we can commit to ensuring that there are no barriers in it. In the consultation on the internal market, the NFUS said that it wanted that, as did the Scottish Council for Development and Industry and a whole range of others. We want the devolution settlement to continue as it is, we want the frameworks to operate, and we want the opportunity for them to do so.

For a variety of reasons, such as the fear of not being able to impose trade deals, what I have previously called a deep-rooted dislike of devolution in the current UK Government, and a sovereigntist view of the Westminster Parliament—wherein it must always have the final say even in areas of devolved competence—we have come to this unfortunate pass.

Mr Mason, you started your question by saying that you did not know whether to be depressed. I think you should be depressed, but you should also be somewhat hopeful that sense might prevail, even with the current UK Government.

I hope that made you feel better, John.

On a completely different point, some of the environmental witnesses gave evidence that they were keen for us to go further and not just to enable ministers to keep pace but to require them to do so. How do you respond to that suggestion, cabinet secretary?

I am aware that, with any piece of Government legislation, forces on both sides want different things—some do not want us to do something and some want us to do more. We got that balance right. I am more than willing to say that we should have the means to listen to and respond to people outside the Parliament and politics about what we should keep pace with. Although I do not believe that we should be mandated to keep pace, we should be sensitive to those who have views about what we keep pace with.

Alex Rowley, I am not sure whether your earlier supplementary was also your main question. Do you want to ask a question now?

Yes, please. I want to pick up on that point, cabinet secretary. You talked about the frameworks and said that the Scottish Government entered into discussions on them with a real desire to make them happen. Will you reflect on that? I note that Michael Clancy of the Law Society of Scotland talked about dispute resolution and argued that the real idea would be to seek consensus in advance, and avoid the dispute in the first place. He talked about the JMC as part of that.

Twenty years on from devolution, do we really need to look at all those mechanisms? Are they not working as well as they could, given where we are? Will you say a bit about that? I believe that devolution is the best way forward, but that we have to have—[Inaudible.]—mechanisms.

I respect that, as I do the position of the Labour Party in Wales on its wish to have an effective dispute resolution mechanism. Quite a lot of work has gone into that. It is a sort of holy grail of devolution. If we could put an effective dispute resolution procedure in place, we could at least get some stability into the current situation, as well as the ability to work well with people.

I think that I have said previously to the committee that I was very struck when I heard Leo Varadkar at the British-Irish Council talk about trust in the EU, and how all the existing 27 members trusted each other, not because they thought that they were all nice people and they could go out for a drink with them, but because there was a legal framework on which that trust hung; they knew that there was a way in which they could enforce how they had to work together.

There is nothing like that in the relationship in these islands, just an unwritten constitution. Essentially the dispute resolution procedure is that, when there is a dispute, the UK Government says, “Nothing to see here; move on, please,” because it will not take seriously things such as, for example, the fact that the money that it gave to the Democratic Unionist Party in 2017 was not Barnettised. It simply refused to discuss that issue.

The barrier to dispute resolution is the medieval concept of the sovereignty of the UK Parliament, which means that it cannot be overruled, bound by or subject to the same regulation as everybody else. If we could put in place equity between Parliaments, we could have an effective dispute resolution procedure.

The issue has still not been resolved. The intergovernmental review creaks on; I was involved in a meeting about it about three weeks ago.

That is the basic problem. Until the UK Government accepts that there requires to be equity in the relationship, it is difficult to see how it can work.

Thank you.

Last week, the committee heard evidence from the Human Rights Consortium Scotland. You are probably aware that, in its written submission, it said that it would like section 6 of the bill to be amended, in effect to state that ministers should have due regard to their obligations under the Human Rights Act 1998. Your bill team was of the view that that was unnecessary.

Last week, Mhairi Snowden said that, as the

“Human Rights Act 1998 is increasingly being challenged at UK level”,

there is a need

“to do everything to ensure that it is secure in Scots law.”—[Official Report, Finance and Constitution Committee, 2 September 2020; c 31.]

Do you agree with that?

Yes. We need to address that issue as we move to stage 2 of the bill.

It is taken as read. You and I hope that we live in a world in which such things are taken as read. Regrettably, and even more so after yesterday, I do not think that we can take anything as read, not even the rule of international law. I am therefore more than willing now to consider how to move ahead on the issue, and I shall ask my officials to have discussions with the relevant organisations, to see whether we can agree a way forward.

Thank you for that; that will be very much appreciated.

Human rights stakeholders are very supportive of the work that the Scottish Government is doing to bring international human rights directly into Scots law. However, the keeping pace effort is about ensuring that we do not go below a minimum standard. Given that the UK does not see even the European convention on human rights as a basic minimum in trade negotiations, either with the EU or other countries, are we not in real danger of still being the poor man of Europe when it comes to human rights?

It is distinctly possible, because that is the situation that is developing. It is very difficult to predict what will happen next with the UK Government. I do not know whether there is a genuine agenda to refuse to accept norms in international law and to say that, for example, treaties will not be binding if we choose them not to be binding. Some incredible stuff has been said, and not just by Brandon Lewis yesterday. He did not misspeak. He was clearly working from a briefing, and I do not think that he misread his briefing that much.

Others have said similar things. Yesterday, I was astonished to hear Bernard Jenkin, who is not an unreasonable human being, making it clear that he always knew, because he was obviously told by the UK Government, that the UK Government would repudiate the withdrawal agreement, and that all that people had to do to get themselves past the hump of leaving the EU was to vote for it and sign off on it, and then it could be cast aside. You cannot do business on those terms.

In a sense, I feel that I have had that experience in dealing with the UK Government for far too long. It does not surprise me, but it does depress me that we have got to this stage, and it has been getting worse and worse. In the circumstances, we need to reassert what we believe in Scotland and the values that we have. Those are mainstream European values. There is nothing exceptional about what we are talking about. They are ordinary, mainstream, human, European values that we would take as read, but which now appear to be almost exceptional compared with what the UK Government believes.

The cabinet secretary makes the point that human rights and other values are often agreed at an international level, and that Britannia waives the rules—its own rules as well as international agreements. As I understand it, the purpose of Mr Russell’s bill is to prevent, as much as possible, Scotland from going backwards and to mitigate being dragged out of the EU against our will. However, at the end of the day, how on earth can we compensate for a low or no deal, for trade trumping our rights and for the biggest power grab—or, as the cabinet secretary describes it, assault—on devolution? Is there not a bigger point, or, perhaps, the need for a bigger bill, that says that, at a fundamental level, we are not prepared to put up with this any longer? I am much older than Mr Arthur and not quite as old as the cabinet secretary, but can we no just get them telt?

Aye, I think that you are absolutely right. We are at that stage. To be blunt, that would do no harm.

I have two questions. First, I want to pick up on the issue of whether the Scottish Government should be able, or have a duty, to keep pace. Glyphosate was one of the examples that was raised last week. A couple of years ago, there was a decision at EU level not to introduce a ban on glyphosate. There is a strong argument in favour of a ban but, at that point, the issue was put off for a few years. I think that we are expecting the decision to be reviewed in a year or two. Over the period, Germany has changed its position.

Now that the UK has left the EU and does not have a vote on that decision, if the balance in the EU was such that it supported a ban on glyphosate, but the UK continued to not support a ban, you would take the view that the Scottish Government should not be required to keep pace by introducing the ban, but should be able to make the decision itself.

Would you accept that the bill needs to provide the opportunity for people in Scotland to challenge that decision in either direction? The Scottish Government, whether the current Government or a future one, could decide to go with the UK position rather than the EU position. We cannot have a framework that would allow such a decision simply to be nodded through. Any such decision has to be open to public challenge, not just through consultation but through public engagement, and through a formal process in the Scottish Parliament. Is that reasonable and does the bill achieve that, or is there a danger that it gives too much power to ministers to simply make a decision, with Parliament having to take it or leave it?

10:30  

There is always a power of challenge, for example through judicial review of a decision. The power of challenge is also included in the bill: there is a power of challenge to any decision that is made under the bill, because decisions are not made without regulation and regulations can be challenged.

Let me take that specific example. I cannot imagine the circumstances in which the decision would not become a live debate as the issue is revisited. It would be a very active debate. I am sure that, in the Scottish Parliament, the Environment, Climate Change and Land Reform Committee would want to be part of that discussion and that the third sector would want to be part of the discussion, too. The Government would want to be mindful, and should be mindful, of that debate before it made its decision. When the Government makes the decision to ban or not to ban, or to keep pace or not to keep pace, that will be challengeable by members of the Parliament through the committee structure and the passage of the regulations as they are agreed to or otherwise. As I said, it will also be open to the normal challenge of judicial review. I think that that is in there, and that it should be in there.

The difficulty with mandating keeping pace is that it is indiscriminate. In those circumstances, the Government might find itself overwhelmed. That is something that will take resource and we do not have unlimited resources. At the moment, while we are not an independent member of the European Union, we have reached the right solution. When we return to full membership, we will be mandated to keep pace because it will be our duty to observe EU regulations, but we will also be involved in the process of making them, which is very healthy.

By focusing on Roundup, I am perhaps making the same mistake as those who focus on chlorinated chicken. Everyone fixates on one issue when there will be hundreds of lower-level issues that will not become major political debates. Would you agree that there is at least a case for a sifting mechanism to ensure that the proper level of scrutiny is brought to bear on such measures, rather than the danger of there being the lowest common dominator in scrutiny and debate?

The sifting mechanism lies in the current committee structure and those who are concerned about the issue. When it is known that we have the power in the armoury—provided that it is not treated in the same disgraceful way as was the previous power that the UK Government created—I would be highly surprised if each and every committee of the Parliament was not considering issues that it wished to be included. I am not necessarily in favour of a new sifting committee. We have difficulty staffing the structures that we already have and I am not sure that we would want additional structures. However, there will be an opportunity for every committee to do that work, and I am happy about that.

As I said in my introductory remarks, I am giving thought—and I am happy to hear thoughts from others—on how the whole process can work. We should continue to talk about that as we go into stage 2 and stage 3 of the bill.

There will probably be opportunities to look at several options at stage 2.

I also want to ask about the interaction of the bill with the internal market bill and future trade agreements. Several members have already discussed the issue, so rather than going over the same ground again, let us just acknowledge that the UK Government and the Scottish Government have fundamentally different purposes here: one wants to maintain a close relationship with the European Union, with a view to getting back in, and the other wants to cut those ties and, at the very least, to permit a deregulation agenda. Those objectives are not compatible and the question rests on where the power lies. Is it not overdue for the Scottish Government to take that question to court to ask whether the UK Government has the correct interpretation of its power to legislate, which is that it will “not normally” legislate in devolved areas, but actually it will legislate whenever it sees fit? To the UK Government, “not normally” apparently means, “not unless we feel like it or want to.” Is it not time for the Scottish Government to seek a judicial review of what that means? There can be no resolution of the situation with any kind of equanimity if there is no equanimity in relation to power.

I do not disagree with your analysis. I think that the issue is about power—it is about the misuse of power by the UK Government, without a doubt; its overbearing approach to the matter is quite clear.

I am always cautious about going to court. There is an unwritten constitution, and it is difficult to enforce that. However, as I have said before to the committee and as I am happy to say again, I have not ruled out any actions. I am not necessarily going to advertise those actions before they are taken, but I have not ruled out any actions at all, and I hear clearly what you are saying. There might be a range of legal options in front of us—I would not want to go any further than that at this stage.

Good morning. I want to ask you to go into a bit more detail about common frameworks. I think that, if you have people with different opinions, ideals and beliefs, having a sit-down to discuss those issues is surely more sensible than the current proposals from the UK Government, which, as you have already said, involve riding roughshod over devolution.

What are the threats that we face because of the UK Government’s attitude, and how do we find a way to get some form of compromise with a UK Government that appears not to want to compromise?

The compromise is there to be had. I have made that very clear in committee appearances and again last week at the joint ministerial committee. I also made it clear yesterday in my conversation with Alok Sharma and Michael Gove.

As you say, the solution involves a civilised and sensible approach in which we sit down with the frameworks and discuss whether there is anything missing from the programme—Michael Gove asserts that there is, but he has not said what. If it appears that something is missing, we should put it in place. We should all make a commitment that we will all operate as if the frameworks are in place while we finalise their detail, and we should make a commitment to placing no barriers in the way of internal trade. There are no barriers. We have never had any intention of putting any barriers in place—neither has anyone else, as far as I can see, so the entire issue is a chimera—but, if it makes Michael Gove feel better, I say again that there will be no such barriers. The approach is available to us—we could do it today and resolve the issue. However, instead, the UK wants to bring in the internal market bill, and it wants to make assertions about the bill that, frankly, are not true.

I read the comments from the Secretary of State for Scotland, Alister Jack, and I am sorry to say that they are simply not true. The internal trade issue is not a risk. There is no threat to internal trade in these islands. Moreover, to say that that threat would lead to the loss of 500,000 jobs or something is just not true. The situation is bedevilled by that type of spin and bluster. However, the resolution is simple. The issue should never have come along in the first place.

In case people think that this is just the SNP’s point of view, I say that they should go and look at the statement from the Welsh Government. If anything, it is even angrier about this than we are. Like us, they have put in a lot of effort to try to make the frameworks work. Those frameworks are there, and it is extraordinary that any responsible Government would behave in this way.

You have said that the internal market bill, which will be introduced today—it might already have been introduced—is a major threat to devolution. Because you are ever the optimist, you have also said that you hope that the UK Government will see sense.

However, the narrative from many of our unionist colleagues on the committee seems to be along the lines of “This is just the nationalists trying to pick a fight. It’s just the way they are—they can’t help themselves.”

I know that Twitter is not the centre of the universe, but I have a unionist tweet here that says:

“You can’t run a complex union state like the UK as a majoritarian unitary state.”

If even unionist correspondents are writing such things, surely, as you say, people should see sense, and we should be able to have a conversation. It is not just the nationalists; it is the Welsh Government as well. Surely we can get to a place where we can get that compromise.

I entirely agree. We will have enough difficulty dealing with whatever the outcome of the negotiations is. Whether it is no deal or low deal, our hands will be full for the rest of this year coping with it. It is something that we did not ask for and did not vote for, and we are having to cope with it.

The whole of the past four years is a story of a failure to compromise by the UK, starting with Theresa May’s failure to talk sensibly to people and bring them into the discussion. It has simply been a story of galloping extremism, which has deliberately excluded other points of view—as you say, in a majoritarian sense—and it has led us to the spectacle of a UK cabinet minister essentially endorsing illegality yesterday in the House of Commons and a bill that is unwanted. The Scottish Parliament voted against the draft bill and the Welsh Parliament will vote against the bill—I am sure that neither we nor Wales will give legislative consent to the bill. There is also huge upset in Northern Ireland. The peace process in Northern Ireland and the establishment and continuation of Stormont are all at risk because of this utter obsession with something that it looks like the majority of the people on these islands no longer support. It is an utter tragedy. If only there was a reasonable sense of a way out. How good that would be.

The final question is from me, and it is about common sense and a way out. Understandably, the Scottish Government has put a lot of store in common frameworks as the process to enable a sensible way forward for all the islands of the United Kingdom. If the negotiations on common frameworks are still going on, how can they possibly be successful at the same time as the internal market bill is proceeding through the House of Commons? Does that not potentially mean the end of common frameworks?

That is a very sensible question. It is not just about the frameworks process, important though that is. How can you continue with an intergovernmental review with people who refuse to listen to you, who refuse to accept any of your arguments and whose aim is to remove your powers? The UK bill is an immensely serious threat to everything that we have been doing, and it is utterly unnecessary. We have put a huge amount of effort into the frameworks. I think that the Welsh Government feels even more strongly than we do that the process is being completely thrown away because of a desire by one or two people in the UK Government to do down devolution and try to ensure that they can get the type of trade deals that they want. It is shocking and it is tragic.

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

I suspend the meeting for about five minutes to ensure that our next panel of witnesses is ready.

10:44 Meeting suspended.  

10:49 On resuming—