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09:30
Our next item is an evidence session on the Scottish Government’s priorities regarding intergovernmental relations. I welcome Jenny Gilruth, the Deputy First Minister, and Chris Mackie, the deputy director for the constitution and United Kingdom relations. Thank you very much for joining us.
I invite the DFM to give us any opening remarks.
Thank you, convener. Good morning. I welcome the opportunity to discuss the Scottish Government’s priorities for intergovernmental relations. As you might recall, my first Government role was as the Minister for Europe and International Development, working to Michael Russell, the Cabinet Secretary for the Constitution, Europe and External Affairs. When I was reading the committee’s public paper yesterday, I had to reflect that, although some things have changed since 2020, some things feel remarkably similar.
Nonetheless, six years and five Prime Ministers later, the United Kingdom’s political landscape looks markedly different. Particularly at the start of a new parliamentary session, there is an opportunity to be grasped to reset how our respective Governments can work together in the interests of the people we all represent. In that spirit, I welcome the UK Government’s commitment to a more collaborative and constructive approach to intergovernmental relations. Ultimately, though, good intentions must be matched by demonstrable progress.
The Scottish Government will continue to engage constructively, based on mutual respect, with a focus on practical outcomes. Those principles are not new. They are reflected in the arrangements that were established through the intergovernmental relations review in 2022, and my priority is to ensure that they deliver effectively in practice.
I have already seen at first hand the value of effective intergovernmental engagement through forums such as the interministerial standing committee and the British-Irish Council. Discussions in those forums provide important opportunities to address shared challenges, exchange perspectives and identify practical solutions. That experience has also reinforced the importance of engaging in good faith and working closely with the UK Government, the Welsh Government and the Northern Ireland Executive. As Deputy First Minister, I will continue to press for the Scottish Government to be involved in early discussions that affect devolved responsibilities and the people of Scotland.
Effective scrutiny also has an important role to play in supporting transparency, accountability and public confidence. I look forward to continuing constructive dialogue with the committee in that regard, and I look forward to questions from committee members.
Thanks very much, Deputy First Minister. We will start on transparency and accountability. When the committee met this time last week, just hours before the publication of the programme for government, we decided following our discussions that we should write to you to ask for an initial assessment of the intergovernmental issues that are raised by elements of the programme for government. I am very grateful that you turned around a response quickly, because I recognise that the request for information came at short notice. That initial assessment was one of the recommendations that our predecessor committee endorsed in relation to improving transparency and accountability.
I hope that you recognise that there is a set of unanswered questions about how those who make decisions in the intergovernmental space are held to account and how those decisions are scrutinised. I am particularly thinking about decisions that the Scottish Government makes in the context of the United Kingdom Internal Market Act 2020 and common frameworks, as well as decisions that the UK Government makes on devolved matters, and how people who make those decisions are held to account.
Could you expand on the recommendations for improvements that our predecessor committee endorsed—the initial assessment was just the first of those—whether the Government intends to implement the recommendations and whether you have other thoughts about how we can improve transparency and accountability in intergovernmental relations?
There are a number of issues to unpack in that. In my correspondence with the committee—it was issued only yesterday, so apologies in advance if colleagues have not yet seen it—I set out a number of areas in which we think that there will be interaction relating to key pieces of legislation, such as the food prices bill, the football banning orders bill and the budget bill. More broadly, I draw members’ attention to the final paragraph, in which I state:
“At this stage, no firm conclusions have been reached”,
given the engagement that will have to take place across a number of areas of legislation. However, we will continue to assess those opportunities. At this stage, it is quite early in the day to identify the level of engagement that will be required on the bills, not least because some are at the consultative stage, so it would be difficult for me to specify that.
On engagement on the programme for government more broadly, I am happy to engage with the committee as bills develop. I think that relevant ministers will respond to the committee on what falls within their responsibilities.
On the broader issue of transparency, which I know the committee’s predecessor pursued in the previous session of Parliament, I have looked at that committee’s report on the written agreement and transparency. In a number of areas, the Government has agreed with some of the recommendations. As I understand it, work will restart in the autumn involving the Scottish Parliament clerks and Scottish Government officials to update the written agreement and respond specifically to the predecessor committee’s recommendations, and particularly in relation to engagement on the programme for government, which was the point that you raised, convener. I know that the committee has a specific interest in that area, which is reflected in some of the correspondence that we have shared in recent days.
Can you say a little more about how the process currently works? There might be areas for change or improvement, and I hope that we will continue the dialogue on that, but how does the Scottish Government figure out what are sometimes unclear interactions when it is beginning to undertake work? In developing a bill, when do you start to clarify areas where there are issues on which the UK Government might have a concern or an objection or where there is legal ambiguity?
We know that some of the intergovernmental interactions are vague and not clearly defined. For example, that is the case with the trigger mechanisms that apply under the United Kingdom Internal Market Act 2020. There has also been a concern that there is a chilling effect, in that there are actions that the Scottish Government might want to take but that are not taken, or not even initiated, because of the concern about intergovernmental interactions. How can we get transparency around actions that have been subject to that kind of chilling effect?
On that latter point, it would be difficult to evidence that, if it has been the case.
More broadly, you will be aware of the Government’s position on the United Kingdom Internal Market Act 2020. Our view was that it was not required—alignment was provided for through the common frameworks, so there was no need to legislate in that space. We have a new Prime Minister coming in who wants to refocus the UK’s relationship with the European Union, so there might be an opportunity through that agenda to look again at the role of the 2020 act and whether it is required. The Scottish Government’s view is that it is not.
On clarification and UK Government engagement, in my experience, that varies bill by bill. With certain pieces of legislation, we might require extensive levels of interaction—one of the bills that is referred to in the correspondence to the committee might require extensive engagement, although we do not yet know and we cannot prejudge the outcome of the consultative process.
For example, with the Education (Scotland) Bill in the previous session, which I led on and which sought to replace the Scottish Qualifications Authority, we had a lot of engagement with the UK Government on legislation in that space that predated devolution. We had to engage with the UK Government on a section 104 order to allow the UK Government to legislate to dissolve the SQA so that we could then create Qualifications Scotland.
Sometimes, such engagement happens routinely in relation to legislation, for good reason, and we can work collaboratively—the Education (Scotland) Bill is a good example of that. However, there have been other occasions, which the committee will be well aware of, in which such engagement has not happened. The interaction varies according to the legislation.
I might bring in Chris Mackie on overall monitoring. Officials regularly monitor the way in which legislation that is proposed by the Scottish Government interacts with reserved competences to ensure that we do not have disagreement and that we can pass laws that affect the people of Scotland to best effect. I will bring in Chris on the overall monitoring from an official perspective.
There are a couple of things to highlight in that context, convener. One of those is that there is regular dialogue between the relevant parliamentary liaison units—between the Governments—on their respective legislative programmes in order to understand the technical requirements, certainly in relation to the King’s speech, because the communication is generally coming from Westminster up to Scotland in that regard. There will be a technical awareness of any devolution issues in UK Government bills raised through that process.
On a policy basis, the interministerial groups—there are 16 of them, I think, at the latest count—are good forums for information sharing between all the Governments of the UK on the respective legislative programmes and the legislative priorities of the different Governments. Those are excellent forums for establishing whether that collaboration might be required or whether a specific legislative solution might be required. Therefore, there are a couple of pretty well-established ways in which that dialogue takes place.
We will come on to some of those elements of the intergovernmental machinery in a little while.
Chris Mackie talked a little bit about the process of when an assessment has to be made of the King’s speech and the devolution issues that it raises, in a slightly similar way to the question that I raised about the Scottish Government’s programme for government and the assessment of intergovernmental interactions in relation to that programme.
Is there a way for such assessment to be done in a mutual way between the two Governments, to avoid the difference of opinion that has emerged in some instances about whether a matter is devolved or whether there is a devolution aspect? Is it possible to avoid those differences and arrive at a common understanding?
It should be possible for us to arrive at a common understanding. There have been challenges in recent years in that regard, whereby the Parliament has passed legislation and action has been taken by the UK Government. We are aware of those examples.
I am conscious that we are 50 days into Andy Burnham’s time as Prime Minister, so it is very early days yet, and the test of intergovernmental relations has not yet been brought to bear. I was with the First Minister when he met the PM in Glasgow in July. It was a very positive meeting and Mr Burnham is committed to a programme of devolution. Obviously, the Scottish Government is of the view that the ultimate devolution for the people of Scotland would be independence, and we may or may not come on to that today, but there is an opportunity now to reset the relationship. We heard a lot along those lines from the previous Prime Minister, which was not necessarily matched by action. However, we have to take the Prime Minister at his word, given that we are so early on in his time in office, so we will continue to work with him in that positive spirit, in the best interests of the people of Scotland.
To your point about mutual agreement on legislative consent and whether there are opportunities through the mechanisms that I know we will come on to talk about, we will continue to explore that with the UK Government in the coming weeks and months. You will be aware that a number of engagements are coming up, which will give us further opportunities to undertake that work.
Welcome to your role, Deputy First Minister. On the proposed food prices bill, I know that we will not get into the details of the policy, but we need to recognise that there is uncertainty around the bill. I have spoken to a lot of farmers over the summer, and NFU Scotland in particular is concerned that the policy will hit producers.
That point about uncertainty is important, because there is also a lot of discussion, particularly in the media, that ultimately we might be seeing a bit of a constitutional rammy with the UK Government, which might block the bill through UKIMA. That uncertainty is not helpful. I have also seen trailed in the press that the Scottish Government might look at other avenues, such as using health powers. Can you address that uncertainty? I recognise that there is a consultation, but how might you try to avoid those challenges down the line?
I recognise that there is currently an element of debate around the policy. I am mindful that a wider event is happening today that is being convened by ministers. I think that the NFU is attending the event along with a number of other stakeholders, which will be helpful. I hear some of the challenge in relation to the policy, but it is also the case that folk are struggling at the moment. This is a policy that the Scottish National Party put in our manifesto and it is one that we want to implement in government, because we recognise that the cost of living crisis that is ongoing across the country is really challenging for our constituents and we want to take action. That is what the policy is about. However, we are in the consultative period, so I do not want to prejudge the outcome of that consultation.
The policy is accounted for in the correspondence to the committee as an area that we might have to work on with the UK Government in relation to UKIMA and how that might apply, and whether an exclusion could be applied. However, again, I do not want to prejudge the outcome of that process.
I go back to some of the points that I made about the new Prime Minister—if he is still in the new phase; I think that he probably is. He was very clear in his meeting with the First Minister that he will not seek to override the Scottish Parliament and foist something on us; he wants to work with us. Therefore, I suppose that this is a test of his intent in relation to the wider issue of the use of the internal market act and how it has been used previously.
There is an opportunity for Mr Burnham, with his new approach, to recognise the Scottish Parliament’s locus in those issues. Again, I do not want to prejudge the outcome of the consultation and, certainly, we do not want to have a constitutional debate about this. Ultimately, it is about making life easier for our constituents who are struggling with high costs, whether that is in relation to food or energy prices.
09:45
I will add to that on a technical basis. Following its review, the UK Government committed to including some procedural changes around taking other factors into consideration in UKIMA exclusions, which included health and environment factors. We are still working with the UK Government to understand how the process might work, but we have not had a live example as yet. The food price cap might end up being an example, but we are at an early stage.
It is helpful to have that on the record.
Did you want to come on to any other issues?
I want to ask about devolution by default and to move the conversation on to your relationship with the UK Government. As we discussed in the committee meeting last week, since 2024, the UK Government has had a policy of devolution by default. That is the idea within the civil service that, as it says on the tin, local communities should be empowered first and foremost, rather than central Government. Do you agree that there is a lot that the Scottish and UK Governments could learn from each other in that space?
Absolutely.
Excellent. Perhaps you could expand on that. In the programme for government, we have seen that there may be changes to the settlement for local authorities. The new Prime Minister, Andy Burnham, is exploring devolution within a wider UK or an English context. Is there an opportunity to learn from one another? I hope that both Governments are looking at the principle of devolution and how powers can go further.
Yes, very much so. I am keen to work with the UK Government on all those matters. As the programme for government sets out, there is an opportunity for public service reform with local government and we are considering what further powers might mean. The Government is keen to work with the Convention of Scottish Local Authorities and our wider trade union partners, as well as the public, so that we can listen to their views about current local government services. I am sure that all MSPs will have views from their constituents about the provision of local services in their communities. It is important that we get things right for folk and that, where things are not working, we use public service reform as an opportunity to drive an approach that better meets people’s needs. There is an opportunity to learn from each other and to recognise that the needs of local communities are distinct. We want to continue that work with the UK Government and have already made representations in a number of areas around further devolution.
As I say, it is early days, and we want to work with the Prime Minister. A wider top-tier meeting with the PM and the leaders of the devolved Governments will take place in October. We will write to the committee with further detail on that. I expect that those issues will be pursued in that forum. The Prime Minister met the mayors of England fairly early on during his tenure. He did that quite distinctly and separately from the devolved Governments, which differs from the approach that was taken by his predecessor. It is a welcome shift and perhaps provides recognition that the needs of the devolved Governments, as the Governments of nations, differ from those of mayors in other parts of the United Kingdom. Nonetheless, there is learning that we can take from that process. We will continue to work with the UK Government in good faith on those issues, but the devil will be in the detail.
It is early days, so I do not want to prejudge the outcome of the negotiations. The Prime Minister is very pro-devolution and, of course, as a Government, we are in favour of devolution. We will continue to work with the UK Government on powers flowing back to Scotland. There will also be wider constitutional questions, which we may or may not come onto today. I will not talk to those in specific detail just now.
I start by drawing members’ attention to my entry in the register of interests. I am a sitting councillor in West Lothian Council. I mention that because the Deputy First Minister touched on COSLA.
I want to pick up on some of the structures or spaces that could be used to improve intergovernmental relations. You mentioned that you had attended the interministerial standing committee in June. What is your assessment of the practical value of those meetings? Did you see evidence of genuine willingness from the UK Government to work with and engage devolved Administrations?
I attended the interministerial standing council in June in Belfast and met a number of ministers at that time. I think that it must have been a matter of days after Keir Starmer resigned, and no one from the UK Government was able to attend that meeting. Three secretaries of state joined online, and we had in person the Northern Ireland First Minister and Deputy First Minister, myself from the Scottish Government and, I think, the finance minister from the Welsh Government—
It was the constitution minister.
The Welsh constitution minister—apologies. Those ministers and I were all physically present in Belfast for a meeting, and I feel that the optics of three UK Government ministers zooming in online was not great. I made that point to Darren Hughes when I met him at the British-Irish Council. Meeting in person is important to enable us to build relationships and understand better how one another’s Governments work, so I made that ask at the last interministerial meeting. We hope that another meeting will be scheduled in the coming weeks, to be hosted in Edinburgh by the Scottish Government. I will share more detail on that with the committee when we have managed to agree a date for that.
That would be great.
You mentioned your previous experience with our predecessor committee and how different, but in some ways similar, the landscape is compared with 2020. One of the recommendations from that committee’s session 6 legacy report was that
“the four legislatures within the UK jointly commission research to examine how interparliamentary relations might be substantially strengthened”.
In your experience so far, is there appetite for doing that across the four legislatures?
That has not been addressed specifically at any of my interministerial meetings thus far, either at the BIC or at the interministerial meeting in Belfast. However, I would be more than happy to raise it when we next meet.
I think that there has been a lot of work more broadly in that area over a number of years. The intergovernmental review took some time to carry out, the committee interrogated it and we have looked again at structures. In the Scottish Government, there is absolutely a willingness to strengthen the structures that already exist and to have greater transparency. However, you are absolutely right to say we need that four-nations approach, and we need other parts of the UK to buy into that as well. I do not want to speak on behalf of other legislatures in that respect, but certainly there is a willingness from the Scottish Government to have that joint working. I will raise that issue at the next opportunity in an interministerial space to seek the views of others. I would be more than happy to correspond with the committee on that point.
I appreciate that. I have further questions on the new Prime Minister in that devolved space, if that is all right, convener.
Let us carry on with that.
As we have touched on already, obviously it is early days for the new Prime Minister. He has talked clearly about devolution, including proposals for greater powers for the city regions and mayors. What assessment has the Scottish Government made of the implications of that agenda for Scotland’s devolution settlement? There are obviously opportunities in there, but what are the risks that you have assessed for the Scottish Parliament?
To be candid with the committee, we do not yet have detail on the proposals from the UK Government, so it would be challenging for me to provide an assessment of that. We have a different arrangement in Scotland—for example, we do not have mayors, as is well understood by colleagues, nor would we necessarily want to go down that route. However, as I said in my response to Mr Green, there is an opportunity here to use this to strengthen local democracy, so we will continue to work with the UK Government in that regard.
As I mentioned, I was in the meeting between the Prime Minister and the First Minister. The Prime Minister was very keen to look at the agenda in terms of what it would mean for Scotland. He also seemed to recognise that further devolution of powers to Scotland, Northern Ireland and Wales would look different from what exists in England, and even that recognition is different from that which came before. We will work with the Prime Minister and his new team in good faith on all these issues, because I think that that will lead to the best outcome for the people we represent.
However, we do not yet have detail on what any proposals will mean for Scotland, so we will have to judge that on its merits as and when those proposals are put forward. I would expect that we will see more ahead of the top-tier meeting that is scheduled for the coming weeks between the PM, the FM and the leaders of the other devolved Governments. We would certainly expect that further detail will be shared by UK Government officials ahead of that meeting.
I will just clarify with Chris Mackie that we do not at this stage have any proposals from the UK Government.
We have no proposals. We are expecting to hear further in the autumn.
We will have a couple of follow-up questions—one from me and then one from David Green—and then we will move on.
Any change in this kind of architecture includes possibilities of improvement or worsening—change can work well or work badly. I do not want to downplay the opportunity for improvement. However, is there a risk that, in this area, the UK moves away from a four-nations approach and begins to treat Scotland, Wales and Northern Ireland as though they were on a par with England’s regions? In that scenario, we would no longer see four Governments interacting on a four-nations basis; instead, we would see one Government effectively treating nations and regions as equivalents.
That is an interesting point. My view is that there was a greater risk of that happening under the previous Prime Minister, who convened the last meeting of the council of the nations and regions. The Scottish Government was sceptical about our being placed on equal footing with mayors, for example, and I do not think that that was particularly well received in Scotland, to put it mildly.
However, the current Prime Minister, Mr Burnham, has been keen to differentiate between mayors and leaders of the devolved Governments, and we have seen that already through the way in which he has engaged. We should recognise that that is a shift and a recognition that these structures and arrangements are different.
Ultimately, the test of the structures lies in the engagement. You can create as many structures as you like and have as much transparency and send as many letters to committees as you want, but, at the end of the day, we are talking about politicians and, sometimes, a lot of this boils down to politics.
Mr Burnham is taking a pragmatic and positive approach. It is different from that of his predecessor, which, in turn, was very different from his predecessor. Indeed, take the number of breaches of the Sewel convention under the previous Conservative Administration, for example. I am aware that the committee pursued that matter during the previous session of Parliament. We have not seen the same under the current Administration. Things shifted, and they have shifted again under Mr Burnham.
We will continue to try to take a pragmatic approach in that engagement. If there is any suggestion that Scotland is being put on a par with regions in England, for example, we will resist that strongly.
The worry is, though, that the arrangement relies on good will. That good will can change the next time the UK Government changes.
Absolutely.
There is an open question about whether any structures are possible that lock in good practice.
Behaviour, yes.
Mayors seem to be getting a lot of airtime this morning. I return to my earlier question about learning from one another and the idea of devolution by default. My constituency in the Highlands is very different—
It is vast.
—from your constituency in Fife, Deputy First Minister. There may be different approaches to how decisions are made in different parts of the country. If we adopt that principle of learning from one another, why are you so sure that mayors would not work in a Scottish context? Has the Scottish Government considered that approach?
No, it is not an approach that we have considered. It is not an approach that we have ever taken in Scotland.
Yet you know that that is not something that Scotland should have.
I do not necessarily think that we need to copy our neighbours’ homework to deliver local democracy more efficiently.
I agree.
We have good local democracy structures in Scotland. We should be looking to strengthen them, not deviating from those that already exist.
You cited your constituency, which covers a vast area of Scotland, as an example of an area with particular needs, which differ markedly from those in my constituency. That, in itself, makes the case for public service reform. I was listening to the First Minister’s response to you on a healthcare issue in the chamber last week. He observed that our current structures prevent him from taking action. We should be mindful of that in a local government context.
The broader issue here is whether we, across these islands, can learn from one another and share good practice. Of course we can learn from each other. We will always take the pragmatic approach as a Government in that regard.
We seem to have reached a seam of supplementary questions here.
I will call Senga Beresford, who will be followed by Keith Brown and Jenny Young.
No member of the Cabinet has “constitution” in their title, and the First Minister has reportedly taken personal responsibility for constitutional matters, including the pursuit of independence. Who answers to this committee for constitutional policy? Will the First Minister appear before it?
The member is absolutely correct to say that the First Minister leads on constitutional matters. I lead on intergovernmental relations. Mr Gethins was before the committee last week to discuss his responsibilities, particularly those relating to the United Kingdom Internal Market Act 2020 and his wider work on our engagement with the European Union.
More broadly, there is a shared approach. The First Minister leads on the constitution and, of course, the committee is entitled to call any minister it wishes to take evidence from in that regard. I am more than happy to answer in relation to my own responsibilities today.
We will bear that invitation in mind. Thank you.
I will tell him that you pass on your regards.
10:00
I am interested in some of the comments that you made about a positive and pragmatic approach from the Prime Minister. You mentioned that you attended a meeting between the First Minister and the Prime Minister. At that meeting, there was a discussion that went to the fundamentals of intergovernmental relations and raised the elephant in the room, which is the independence question.
How can we look positively or pragmatically at the prospects for intergovernmental relations if the first request from the Scottish Government, which was to proceed with a referendum—the highlight of its manifesto—was dismissed by the Prime Minister, who told us that we should concentrate on different things? How easy is it to compartmentalise the different issues on which you must relate to the UK Government? If that fundamental request can be so readily dismissed—the First Minister said that a record number of 73 MSPs who support independence were elected at the election—what are the real prospects for intergovernmental relations?
That is a great question, Mr Brown. It is a difficult issue. We are not going to agree on independence with the UK Government—that is plain to see. It is important to reflect that, although we need to try to engage on intergovernmental relations, that does not detract from our belief in independence for Scotland and our belief that the people of Scotland should have the right to choose in a democratic independence referendum.
Mr Burnham’s commentary on this issue in recent weeks, months and years has been interesting. In the past, he talked about the constitutional question not being settled. He said:
“In terms of a referendum, I’m not going to say, ‘No, not ever.’”
There are some words that he has used in the past—not in his current role—that suggested that he was amenable to a referendum taking place. Since taking up office as Prime Minister, he has, of course, resisted that idea. We do not think that that position is sustainable, nor do we think that that is the position of the people of Scotland. Ultimately, this is not about support for independence per se; it is about the people’s right to choose. Therefore, we will continue to pursue the matter with the Prime Minister.
To respond to your overall point, Mr Brown, we recognise that there is a disconnect between having a Prime Minister who, on the one hand, is in favour of further devolution but who, on the other hand, says, “But not that type of devolution.” This should ultimately be a matter for the people to decide on.
However, we need to try to work with the UK Government for the best interests of our people. I am committed to delivering that in an intergovernmental space, but that does not detract from the overarching constitutional question. The elephant is still in the room—we have not addressed it. Therefore, we will continue to pursue that point with the UK Government and other interested parties. Of course, Wales and Northern Ireland are now led by independence-supporting ministers, and that constitutional shift across the United Kingdom means that this issue will not go away and cannot be resisted.
I understand the UK Government’s positioning on the matter. It has also made its view on Northern Ireland very clear, which, in a constitutional space, has come with some other challenges with regard to what it might mean for people who live in Northern Ireland.
Andy Burnham saying no does not mean that independence is off the table—far from it. Actually, it irritates most folk in Scotland when they hear people say that a referendum is not going to happen. Regardless of whether they believe in independence, most people in Scotland believe that they should have the right to decide on their country’s constitutional future.
Your question speaks to the heart of the issue, which is that there is a Prime Minister who is pursuing a devolution agenda that is at odds with our overall view as a Government that Scotland should one day regain our independence. You have hit on an important point, Mr Brown, and it is challenging. We must still have conversations in an intergovernmental space, but that does not detract from our pursuit of independence for the people of Scotland.
Thank you.
Thank you for your patience, Jenny Young.
My area of questioning is a mixture of looking back and looking forward. The previous session of the Parliament was marked by several significant pieces of legislation that ran into issues. For example, there was the Gender Recognition Reform (Scotland) Bill’s interactions with the Equality Act 2010. Late in the day, the Government had to strip out all the provisions regarding conscientious objection from the Assisted Dying for Terminally Ill Adults (Scotland) Bill because of their interaction with employment law. There were also other examples, such as the deposit return scheme and the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, although those issues were slightly different.
On the two points about the Gender Recognition Reform (Scotland) Bill’s interaction with the Equality Act 2010 and the Assisted Dying for Terminally Ill Adults (Scotland) Bill’s interaction with employment legislation, I would be interested to hear your reflections on how we arrived at a place where there were such fundamental issues with those pieces of legislation so relatively late in the game and in their scrutiny that they were not viable in the form that they were in. Was that a failure of the committee’s scrutiny, the Parliament’s scrutiny more broadly or the Government’s awareness of those issues? It strikes me that those issues came out quite late in the day, so is the Government doing its job well in drafting legislation and is the Parliament doing its job well in providing scrutiny?
That is a really interesting point. You mentioned a number of pieces of legislation. Mr Mackie can correct me if I am wrong to say that the UNCRC bill was the first test of some of these issues.
I suppose that it depends on what we are talking about. Given that I was relatively closely involved in the negotiations on the assisted dying measures, I can give a reflection on the Assisted Dying for Terminally Ill Adults (Scotland) Bill. It is important to remember that that was a member’s bill, not a Government bill, and the Government remained neutral on it. The negotiations that were required on assisted dying were quite technical in relation to where devolved responsibility lay.
The specific negotiations on the bill’s interaction with employment legislation were quite late in the day, as Jenny Young highlighted, but that was a product of quite a lot of discussion between the Governments. The process was quite difficult because both Governments adopted a position of neutrality. The challenge that was highlighted definitely came out relatively late, but I would not say that that was a product of poor negotiation. It was just a case of the negotiations being quite difficult, given that an equivalent bill was being considered down south. My observation was that trying to merge the two processes was quite a tricky process.
Deputy First Minister, what should the Government or the Parliament do differently in the future? I take Mr Mackie’s point about the Assisted Dying for Terminally Ill Adults (Scotland) Bill being a member’s bill, but it was in the headlines for years before it got to its final stages, so I do not accept that the Government did not know that such issues were coming. I imagine that a number of lawyers who work for the Government advise on such issues. What would you do differently? That question can be for Mr Mackie or the Deputy First Minister. For example, the human rights bill, whatever it may be, might interact with the Equality Act 2010, as was the case with the GRR legislation. What will you do differently so that there are not the same issues over the next five years?
That is a good question. Politics is at play on some of these issues, and we should be pragmatic about that. For example, the UNCRC bill was supported on a cross-party basis and there were no contentious issues about it, but the UK Government decided to challenge it and, ultimately, we had to relegislate in a much more narrowly defined way. That was challenging, because we had engaged with the UK Government throughout that process, during the session from 2016 to 2021. There was also cross-party support for the GRR legislation and engagement throughout the process. However, at the end of the process, after the bill had been passed, the UK Government decided to act.
Therefore, politics is sometimes at play during negotiations, and that is not good for the passage of legislation in this Parliament. It is also not great for MSPs, who spend inordinate amounts of their time in committees such as this one or in the chamber debating amendments and putting forward their views. To have legislation thwarted at the 11th hour feels deeply undemocratic at times, and the Parliament should reflect on that. There are better ways for all Parliaments to legislate.
The approach that previous UK Governments have taken in that regard has not, ultimately, been helpful. However, the number of breaches of the Sewel convention has reduced under the current Labour Government. I do not think that we have had any thus far, which is certainly welcome, so there has been a shift in that regard.
We have lots of examples of late legislative consent memorandums coming up, and, as you will all remember, in the last week of term before the summer recess, we had a number of late LCMs. That means that things are rushed through, with the Parliament not having adequate time to interrogate the details. We will continue to work with the UK Government on such issues. Part of the issue was the timing of the King’s speech. There are better ways in which we can work with the UK Government so that we get advance sight and advance warning of legislation. That would be in the best interests of MSPs and the UK Government.
I will follow up on some of those themes. A range of mechanisms can be used, and some would regard their use as the UK Government legitimately protecting its constitutional position. Others would perhaps characterise it as abuse of that power, whether around breaches of the Sewel convention; the use of the internal market act, which was mentioned earlier; or the use of section 35 of the Scotland Act 1998 in relation to the Gender Recognition Reform (Scotland) Bill, which is one of the most extensively consulted on and scrutinised pieces of legislation that this Parliament has ever debated, with literally years of prior process and no indication from the UK Government that it intended to take that action. Many people took the view that that action was taken specifically because the UK Government politically opposed the policy, instead of for technical reasons.
If I think back to the not-so-happy days of the Smith commission—I do not know whether the First Minister’s recollection of the process is the same as mine—there was an expectation that there would be a range of actionable mechanisms in place, whereby, for example, if there was a breach of the Sewel convention, the Scottish Government would be able to take action to prevent that, or, where power was misused, that would be challengeable. That has turned out not to be the case. Is there any possibility of having a more robust framework in place, whether that is about defining the exemptions under the internal market act or limiting more clearly the circumstances in which other UK powers can be exercised? Is there a reachable robust framework that can prevent the abuse of these powers by a subsequent Government that is more ill-intentioned than we hope the current one is?
Yes, I think that there is an opportunity to develop such an approach, and part of that opportunity might be to strengthen Sewel through the proposed memorandum of understanding, which I note was part of Labour’s manifesto. We think that restoring confidence in Sewel is really important in that regard, and there is perhaps an opportunity through the MOU to explore the structures further.
However, it is really challenging. You set out a range of examples, and we have heard from Ms Young about other examples of legislation with which there have been challenges. The actions of the previous Conservative Government undermined Sewel, but there is an opportunity through the MOU to look again at the issue. That will require engagement between the Scottish and UK Governments, if it is to work adequately for both of us.
Your reflections on the Smith commission are certainly interesting, in terms of a framework, because we do not currently have a framework in that space that would meet—
An MOU can be breached as easily as a convention.
Indeed, and it might not be as robust as having a framework that is mutually agreed between two Governments. I am not ruling that out today. These are things that we will want to pursue with the new Prime Minister and his team.
A couple of members are looking to come back in, but, before I come to supplementary questions, Keith Brown has a question regarding the civil service.
You might have seen reports, Deputy First Minister, that the Prime Minister is said to have enabled his permanent secretary, the head of the civil service, to overrule or instruct other permanent secretaries in different parts of the UK Government. It is not clear whether that would extend to the permanent secretaries in the devolved Administrations, which would be a breach of the idea that he will not devolve above the heads of the Scottish Government. Has that given any cause for concern? I should note that I am not too sure about how devolution by default differs from subsidiarity, as we used to call it in the European Union.
It must surely be the case that the cabinet secretary—that civil service term is different from how it is used in the context of the Scottish Government—should not be able to overrule or instruct permanent secretaries such as the permanent secretary in Scotland, who works for the Scottish Government. If you can follow that, I would like to know if it has given you any cause for concern.
We have seen those reports, and there is a level of concern. We are not sure that that will apply to Scotland in the same way, because there are different reporting structures to the Parliament, but we would like to give the committee reassurance on those points. If I may, convener, I would like to write to the committee with further detail, having first sought assurance from the UK Government that that will not apply to Scotland. Our initial observation is that we do not think that it will apply here, because of the reporting structures being different in Scotland, but I would first like to get that clarity and I will then write to the committee on that point to provide assurance.
That would be very helpful.
I apologise to Colin Beattie. I should have brought him in a few moments ago when we were touching on the Sewel convention, but perhaps he would like to come in now.
10:15
Deputy First Minister, my question is about legislative consent, which includes the Sewel convention. You touched on a memorandum of understanding that has been in negotiation for a long time—since 2024. How close are we to a final version of that being published? Are any areas of disagreement holding that up?
I will be candid in saying that I am fairly sure we have not yet had any engagement with the UK Government regarding the development of the MOU.
You are right to say that that was committed to in 2024. We had little or no engagement with the UK Government on that until last summer, when there was some limited engagement, but the new Prime Minister’s team have, thus far, not engaged at all on the issue. We expect that that will come, but I am unable to share any further detail in that regard because we have not had any further detail from the incoming Prime Minister and his team.
Chris may want to say more about that.
My team is responsible for those negotiations, so I can give an update. Ahead of the election, we had been negotiating with the responsible UK Government team on a draft of that MOU. That negotiation was suspended following the election and has not restarted, but we have spoken to the UK Government, which remains committed to restarting negotiations. The fact that those have not restarted is more about their capacity than about any unwillingness to do that, so I expect discussions to restart shortly.
I am struck by the fact that, in March 2026, in answer to a written question in the House Of Commons the UK Government said that
“officials from each of the four governments of the UK have been working closely on this and good progress has been made”.
Does that ring a bell?
We had made progress, but were not, at that point, in a position to put anything to our ministers to recommend consent or signing up. We were quite close to the election at that stage and anticipated restarting that work following the election.
Returning to the issue of legislative consent in itself, there have been some controversies in the past few years. What is the Scottish Government’s view on whether legislative consent is actually effective? Is it working?
That is a really interesting question. It had not been working until recently. I know that the previous committee covered the issue in its legacy report. Under the previous Conservative Administration, we saw breaches in a variety of areas as the UK Government overrode the Scottish Parliament. That has not been good for our democracy and was a breach of Sewel.
That has shifted under the Labour Government, which is welcome. That goes back to the convener’s overall question about whether structures can prevent that sort of behaviour by Administrations of varying political colours. I am sure that the committee will reflect on the fact that we should be mindful of how those structures might be strengthened to ensure that we do not revert to that sort of approach to breaches of Sewel.
I think that the Supreme Court has essentially ruled out putting Sewel on a statutory footing, so there are constitutional challenges. However, when we have a new Prime Minister who says that he is committed to the devolution agenda, there is also an opportunity to revisit the role of Sewel and to ensure that we do not have a repeat of the egregious examples that we saw under the previous Conservative Administration, which passed swathes of legislation without the consent of this Parliament.
I am struck by the fact that the session 6 committee expressed a view that
“the extent of UK Ministers’ new delegated powers in devolved areas amounts to a significant constitutional change”.
Do you agree with that assessment?
Our view is that the Scottish Parliament should legislate on matters that are devolved to this Parliament. There may be examples—I gave one earlier—of areas where we need to engage with the UK Government, including, for example, areas that predate this Parliament. I gave the niche example of the SQA, which was created before this Parliament existed and could, therefore, be dissolved only by an act of the UK Parliament, which had to legislate for that. We will engage with UK Government ministers on those issues, but our preference is for any matters that are devolved to the Scottish Parliament to be dealt with solely by Scottish ministers and that only with our consent would they be legislated for by UK Government ministers. That consent is imperative to the intergovernmental landscape.
Does the UK Government adhere to the convention that the Sewel convention does not apply to secondary legislation?
As I understand it.
We would need to check everything on that and come back to you to confirm it.
There is great concern about UK ministers legislating within devolved competence. What do you consider to be reasonable circumstances in which you would expect the UK Government to legislate within devolved competences?
My principled position is that I do not think that there are reasonable circumstances in which UK Government ministers should be legislating in devolved areas. However, we have to be pragmatic. The example that I provided in relation to the Education (Scotland) Bill required UK Government legislation to allow me to dissolve the SQA so that we could create Qualifications Scotland. That is pragmatic politics.
We could take a principled position that devolved legislation is, quite rightly, the responsibility of elected ministers in this Parliament. However, we will always need a degree of engagement with the UK Government while Scotland remains part of the United Kingdom. That is how our legal frameworks work, and for as long as we remain part of the United Kingdom we will have to have a level of engagement with UK Government ministers. Our ask is that that is done pragmatically and with our consent.
That is the test of the point of your question: that any engagement on such issues is made with the Scottish Government’s express consent. We did that through the section 104 order, which we agreed to in the process of dissolving the SQA. That was done through a consent process in which officials and ministers work together. That was agreed, and it allowed for the passage of the Education (Scotland) Bill and the establishment of Qualifications Scotland as a result. That is an example of where such an process can work in practice. The principle of consent would be our overriding view—not to take away from our overall view that all legislation in Scotland that is devolved should ultimately be a matter for ministers in Scotland.
How many times has the Sewel convention been breached since 4 July 2024?
It has been breached on no occasions.
Thank you.
We all hope that it stays that way.
Yes.
We are coming to the end of the time that we have available. I want to ask a question that relates to the meetings that you said have been taking place, and that you anticipate taking place, among the four nations. As well as that, is there a separate track of bilaterals with the other devolved Governments, or do the devolved Governments proactively seek out time and space to discuss matters between themselves without the UK Government’s presence? They have a distinct relationship as devolved Governments. To what extent does that take place as part of the process of building relationships and trust?
In my experience, it is a key feature to have interministerial engagement among the devolved Governments. That has been my experience in education and in transport: there is always a level of intergovernmental engagement, and there are existing structures that provide for that.
In my experience, those bilaterals are extremely important. They build relationships with counterparts, and we get a good understanding of our counterparts’ experience and perspective in relation to engagement with the UK Government on a range of different issues. Those relationships are hugely important and highly valuable to Scottish ministers in how we engage with the UK Government more broadly.
Transparency and scrutiny has been a common theme. You will hopefully be able to keep the committee up to date—not necessarily on the fine detail of the discussions, but on the broad outcomes and the rhythm of meetings and so on, so that there can be some degree of accountability around those discussions.
I am happy to do so. There are a number of meetings coming up. I will be chairing the interministerial standing committee in the autumn, to which I think I alluded earlier—and we are still confirming a date for that. I will be attending the finance interministerial standing committee in Cardiff on 18 September, which is next week. We expect the interministerial groups to resume their engagement throughout the autumn. There are already a planned series of engagements that the committee should be aware of. I am more than happy to write with further detail on any of those matters to provide the committee with the transparency that you have asked for.
The written agreement and the overall review are being taken forward between Scottish Parliament and Scottish Government officials. As I understand it, that is restarting in the autumn, and I am sure that the committee will take a keen interest in the outcome of that wider review of the written agreement.
Do you have a last-minute bid for a supplementary question, Keith?
Yes. We spoke with Mr Mackie last week, and I mentioned this at the time. It has been a long time since I have studied constitutions and so on, but there does not seem to be any comparator with the architectural jumble, inadequacies and ad hoc nature of what is in place just now. Much of that was agreed: that certainly represents the outcome that the committee came to as part of its investigation.
Given that, and given some of the tensions that exist, does the Scottish Government have, or intend to get, a proposal on what the architecture should look like, ideally, to best take account of the devolved Administrations and other such aspects? For example, meetings only happen when it comes up the Prime Minister’s humph. Who actually sets the agenda? How much information is passed on afterwards? I know how frustrated ministers feel when they try to get a hold of certain ministers. It all depends too much on individual personal relationships, which is no basis for a proper functioning system.
In short, does the Scottish Government intend to put any proposal to the UK Government about what the architecture could look like, ideally?
You have raised a really interesting point. We have, through the intergovernmental review, a pretty well-established architecture, but you are absolutely correct to say that the level of engagement often depends on individuals.
My own experience is that, under the previous Prime Minister, we had a shift in tone and an approach to resetting the relationship—I think that the previous committee covered that over the past two years—but then probably not a lot changed. Warm words are not necessarily action. We are now 50 days into Andy Burnham’s time as Prime Minister, and we now need to see some follow-up action. That will be the proof of better intergovernmental meetings—or, indeed, engagement. To my mind, this is not just about the meetings that happen but about the follow-up action that takes place as a result of that engagement and the change that takes place accordingly.
There is a well-established approach to interministerial engagement, but I would observe that, at ministerial level, and certainly in my experience as cab sec, such engagement can be ad hoc, more sporadic and dependent on a variety of factors, not least diary availability. In my role, particularly the finance element of it, there is much more of a regular drumbeat of engagement at interministerial level. That is probably for good reason and perhaps something that is understood, but I think that that approach differs from that taken by other parts of Government.
As for Mr Brown’s other point about ad hoc meetings when the Prime Minister comes to Scotland, one might ask whether that could be planned for in the future. Absolutely, and the committee might want to reflect on how we might have that sort of transparency and that regular drumbeat of meetings taking place at certain set points in the year. Indeed, that has been, in general terms, the approach taken by the British-Irish Council.
I am aware that other members have questions, but we might need to save them for a future evidence session, as we have another cabinet secretary coming in a few minutes’ time.
For the time being, I thank Chris Mackie and the Deputy First Minister for their attendance. We will no doubt have opportunities to follow up on the range of issues that we have discussed.
I suspend the meeting for a few minutes for a comfort break and a changeover of witnesses.
10:27
Meeting suspended.
10:32
On resuming—