Chamber and committees

Is that really how we want to do intergovernmental relations? No, it is not.

I totally agree with Mr Harvie. As a matter of course, we should expect to have good working relations all the time. Of course, one might disagree about things or have different priorities, but where there is a temptation for Parliaments or Governments not to explain themselves to others, because they do not have to, that is a route that, unfortunately, other Governments or Parliaments might choose.

Mr Harvie mentioned Wallonia, which is a very interesting case in point. Unlike the UK, Wallonia and Flanders have devolved rights in relation to treaties. We do not have those here. Although people keep talking about the Scottish devolution settlement being among the strongest in the world, that is a very good example of where it is not. As a result of the treaty involvement of both Wallonia and Flanders, the Belgian federal Government has to work as well as it can with Wallonia and Flanders—because it has to. That is the challenge that we have; in some areas, we operate on the basis of conventions, à la Sewel, for example. That is why we are having discussions about whether that convention should actually be put on a statutory basis.

At some point, the convener will no doubt want to ask about the progress that has been made in relation to the UK Government’s approach to the Sewel convention. A memorandum of understanding was promised, and I am happy to come back at any stage if you wish to discuss that, convener.

Well, I imagine that a UK Government that says that it is in favour of a reset and of being transparent would give evidence in public to a committee such as this, to explain how it is doing things. The record would then show an explanation of why we are dealing with the systematic cancellation of intergovernmental relations meetings, in advance of important issues. If the answers to the closed questions that I mentioned before are unsatisfactory, or if the assurances that are being given in public about how things will be different are not actually being delivered on, I would not rule anything out in trying to help things to get better.

For the record, I want everybody to understand that that is not just the position of the Scottish Government. It is a concern that is shared by colleagues in the Welsh Labour Party, the Sinn Féin First Minister of Northern Ireland and the Democratic Unionist Party Deputy First Minister of Northern Ireland. We do not find ourselves alone in this situation. If things do not change, we will have to look closely at how we make them change.

It turns out that it most certainly was not gossip and hearsay, given the conversations that have taken place subsequently. When one is in London and speaking to the European Union’s representative office in the UK, one can ask about much of this—it would be open to the committee to do that—and it turns out that what I have described is exactly how things progressed. One might even be able to read about it on the front pages of some newspapers, too.

I have not seen the minutes, but I am happy to update the committee on that.

I do not want Mr Kerr to be under any illusions: the UK Government is very well aware of the concerns that intergovernmental relations are not working properly.

There is nothing that I can add in detail to Mr Kerr’s entirely reasonable question save what I outlined before, which was shared from the European Union side with the Scottish Government, about the fact that there will be an annual summit between the UK and the EU. That is not unhelpful in making sure that there is a focus on making progress on all those things.

It really matters that progress is made on the defence and security side of things, as well as on everything else. Now that the headline agreement on what one expects out of the process—the detail is still to be worked out—will be progressed this year, I have no doubt—

It would appear so, but I hope that that would encourage everyone who is involved with good will in the process to do so as quickly as possible. We must acknowledge that the process is not straightforward, but we in the Scottish Government agree that an SPS agreement would be welcome, the UK Government agrees that that would be welcome and the European Union and its member states also agree.

Issues will be thrown up as part of the process. Committee members probably know that the treatment of certain products that are produced in Scotland will be germane to the SPS negotiations. For example, the production of oats in Scotland and how that would be dealt with in an SPS context has been highlighted by the sector to the Scottish Government. We have raised that with the UK Government, which says that it has heard that. The detail of that will have to be worked through.

We are beginning to move beyond the principle that there should be an agriculture and food agreement to the details of how such an agreement could operate.

Regarding your point about how long the current system or the status quo will continue, I think that the non-implementation of the additional border checks that the UK would have to carry out if there were no SPS agreement gives everyone an incentive to try to reach an agreement. That will benefit the agriculture and food sectors in Scotland, the rest of the UK and European member states. The issue is also of particular interest in Northern Ireland, because it will simplify some of the agreements that have been made as part of the Windsor framework, in which Northern Ireland is effectively part of the European market and of the United Kingdom single market at the same time.

Convener, with your indulgence, that question will necessitate quite a long answer in order to give the committee the full detail that I imagine that Mr Brown and colleagues want.

On process, the committee will be aware that relations between the Scottish Government, other devolved Administrations and the UK Government happen in the space of intergovernmental relations and interministerial meetings, where ministers with the same or similar responsibilities are supposed to meet regularly to discuss matters of mutual or shared sovereignty—areas in which there is devolved decision-making and a UK locus, and vice versa. That is the theory.

We also had a commitment from the UK Government that the reset that was much talked about was not just in relation to the European Union but also to devolved Administrations. The committee, because I have come here regularly to give evidence, is well aware of the difficult circumstances in which we operated in the intergovernmental relations space with the previous UK Government. That space did not function properly, meetings did not take place, discussions were not held, agreements were just reached and the Sewel convention was increasingly being disregarded as a matter of course. When the new UK Government talked about a reset and about doing things differently, we directly communicated, very strongly—to people from the Prime Minister downwards, and we have said so repeatedly in public—how much we welcomed that, and that what was in that public declaration about doing things differently and better, the way that they should be done, would be to everybody’s advantage.

Until this latest EU-UK agreement process, I would have said that there most certainly has been a different atmospheric in the conversations that have taken place. Every time that there was a meeting, there was a repetition from the UK side that, “This discussion is within the context of a reset. We really want to have better relations, and that matters to us as a UK Government.”

Then we move forward to this particular process on an EU-UK agreement and related issues. To me, the reality of how things actually worked did not match the rhetoric of a reset in relations. What do I mean by that? Specifically, in the run-up to the EU-UK agreement, I held two meetings with my opposite number in the Cabinet Office, Nick Thomas-Symonds MP, Minister for the Constitution and European Union Relations. There was a positive mood and language in both those meetings. One of those meetings was held remotely and the other involved Nick Thomas-Symonds coming to Edinburgh, where we were joined online by the Welsh Government and the Northern Irish First Minister and Deputy First Minister.

In the first meeting, Nick Thomas-Symonds was able to say what the UK Government’s priorities for the forthcoming discussions and agreement were, and I was able to say that the Scottish Government’s priorities—on which there was significant agreement—were that we would wish an SPS agreement, reassociation to Erasmus+, a youth mobility agreement, an energy agreement, judicial co-operation and, incidentally, the rejoining of the creative Europe programme. The UK Government was able to say, “We hear your priorities loud and clear, and we will take those into our conversations.” There are no details that I can update the committee on, because the matter is on-going. I will be meeting Mr Šefcovic and other colleagues to discuss all that. That first meeting took place on 30 April this year.

Just two weeks later, we had the meeting that involved Welsh and Northern Irish colleagues. That was at a time when, in the interim, discussions had been taking place with European interlocutors. Why do we know that? Because we speak to European colleagues as well as to the UK Government. We therefore know that, in Brussels, the member states were looking at documentation in relation to the European Union’s mandate and where progress was being made; 27 EU ambassadors were seeing documentation.

I raised that in the meeting with Nick Thomas-Symonds. I said, “We have received no documentation. We are not aware of how negotiations have been progressing. The European Union, with the inclusion of 27 member states, is able to share documentation and update on things. Please can you share the documentation before final agreement?” He said that he would take that away—he did not say no. He said that it was not normal custom and practice, and I said that it should be. He said that he would take that away from the meeting and have a think about it. That was prior to the weekend summit at which the agreement was signed off.

I was intrigued by something that you said there, Mr Brown. You shared with the committee and with me that you have been told that the part of the deal on fisheries was—this is what I have written down—“done long before” the summit at which the EU-UK agreement was signed off.

I would hope that there would be nothing less than European Union member states themselves have in relation to the European Union institutions. As I outlined, the European Union is currently arranging its negotiating mandate, which involves the EU institutions—the European Commission and the European Council—and the EU member states.

I would expect that, if there had been a reset and one wished to ensure that the devolved Administrations were fully part of the process, so that one had the best input and output on the detail of the agreement that we are now trying to reach, one would have the same sort of arrangement. I am, however, unaware of any arrangement or any formalised structure whatsoever that will take matters forward. That does not fill me with confidence, given what I have said thus far.

We will be doing everything that we can. It does not take a constitutional lawyer to understand that agriculture and fisheries, youth-related issues including education, judicial co-operation, and aspects of energy are matters in which the Scottish Government has a strong locus. The Scottish Parliament has an important job in making sure that the Scottish Government is doing everything that it should to further the interests of the Scottish people in relation to the agreement.

We will try to do that, but—as you heard from my initial answer to the question about process—I am deeply frustrated by the fact that the process is not working as it should. I am encouraging the UK Government to listen closely, to live up to its rhetoric on reset and to use the mechanisms on intergovernmental relations to which it has agreed, and to ensure that those processes are meaningful and are not simply read-outs of the UK Government’s priorities and positions, so that it genuinely takes on board different priorities.

I can tell you why that is important, and I will give you a real example. No doubt the committee will have turned some attention to this. Following the EU-UK agreement, the Scottish Government was approached by the UK Government, which wished to deal with a challenge in relation to labelling in Northern Ireland. That necessitated very quick decisions involving the Scottish Government ceding devolved sovereignty on a devolved issue to find a solution that we did not think was the best outcome, in a process that has since led to a rushed process in the Scottish Parliament in relation to the Parliament’s ability to scrutinise that process.

I told UK ministers as part of those discussions that that was another example of the fact that the process is not working. Had the meetings of the interministerial groups involving DEFRA and the Scottish Government been taking place, the matter could have been resolved weeks, if not months, ago. It is another example of where the process is not working properly. We want it to work, and we are happy to meet to share our views on the different subjects. I have talked about the potential requirement for a derogation regarding the SPS agreement—no doubt the committee will get evidence on why that is important.

We are on it, but we need to know that the UK Government is on it. The processes are there with regard to how we should meet formally, but they are not working as they should.