Chamber and committees

However, it is important to recognise Mr Harvie’s service.

In some respects, we are in the foothills of post-European Union membership changes and the operation of a UK internal market. It started out as a focus on a very small number of issues that many people might see as distant from their lives or priorities—things such as single-use plastics, the deposit return scheme and glue traps. However, it is true that there is an ever-growing list of areas in which the internal market’s potential imposition, or the non-delivery of common frameworks in those areas, will have an impact. That situation is continuing. That is all the more reason to get the certainty and agreement that stakeholders have suggested to the committee that they wish to see. I agree. The uncertainty is the result of not knowing whether the internal market act will be applied in those areas. That is undermining certainty.

The Scottish Government meets with the office for the internal market, our officials meet with one another and I have met with the office. The officials have great expertise and are scrupulous in meeting their duties in an even-handed way, which is important. However, I am sure that they would be the first to concede that the office’s role is limited to considering the economic and trade implications of any policy. I go back to the point that I made to Mr Harvie about the very real example that we had of minimum unit pricing. If the OIM looked at the issue today, it would be able to consider it only in economic and trade terms, even though it was a policy innovation that was introduced for a public health purpose. That answers the question in that, yes, the office plays a role, but its limitations underline the point that it reflects a system that is not fit for purpose, because it has to consider things in the round, if anybody is to consider anything in the round.

On the point about an arbitrator, we already have one and it is called the UK Government. It makes decisions regardless of the position of this country’s Parliament and Government—the examples show that to be the case. To me, the UK Government cannot be the ultimate arbitrator, because it is a party to the process and has shown in its actions that it is prepared to override democratic consent. I do not know how an arbitration process would operate.

I go back to the positive ground where I have planted my flag, which is to say that common frameworks are commonly agreed to be the way in which we should make things work. Let us end the bad faith that there has been from the UK Government by getting the internal market act off the statute books. That is the position of this Government, this Parliament—having voted on the issue on a number of occasions—and our Welsh colleagues.

I end by reiterating a quite simple point: we have a system, so let us make it work. Let us get what is not helpful to intergovernmental relations and the operation of devolution off the statute books.

A properly functioning internal market regime looks very different from the internal market act. The way that the act operates is different from the way that a well-designed internal market regime operates, and it is very different from the regime that operates within the European Union.

The internal market act replaces broad legal principles of mutual recognition and non-discrimination with rigid statutory requirements that apply in almost every case.

It is really important to understand, as I said in my introductory statement, that the internal market act has no proportionality or subsidiarity principles. Those are common features in other internal market regimes, and that was the case in the European single market. That lack of proportionality and balance is a recipe for confusion and uncertainty and does not ensure a functioning domestic market. Therefore, when stakeholders say that they want certainty, one has to understand that the internal market act does not provide that.

The feature that I have drawn attention to is not a bug and it is not hidden away. The act is a crude, clumsy and undemocratic attempt to constrain devolution, and it is one that masquerades as an internal market regime. That is not just the position of the Scottish Government or the Scottish Parliament. I am sure that, among your deliberations, you have had a close look at what one of our country’s most pre-eminent legal minds, Lord Hope, has had to say on that subject and others. We are of exactly the same mind about what the internal market act is and how it does not replicate what the European single market did. Among many other things, it is missing the key principles of proportionality and subsidiarity.

No. Unsurprisingly, I do not agree with Mr Kerr, who I think is confusing the outcomes that, I think, we both share in wanting to ensure that detrimental approaches are not taken to managing the single market in general, with support for the internal market act. I am unaware of evidence having been presented by the organisations that he quotes that they require the internal market act to stay in place. I would be very grateful to see that—

Thank you for the question, Mr Harvie. Perhaps it would help colleagues if I highlighted the annex to the Scottish Government’s position paper on this question. I most certainly would not want to read all of it into the record, as it would take far too long, but it goes into considerable detail about the regulatory systems in, among other countries, Switzerland, Australia and Canada, and explains how one manages systems there. Mr Harvie is alluding, I think, to my previous point about ensuring that the system that is in place must surely reflect proportionality and balance.

Mr Harvie also asked me about the UK Government’s position and whether I have an understanding of it. It seems to be saying two things at the same time. First, it is saying that it would wish common frameworks to succeed, which I agree with. Secondly, however, it is saying that the internal market act should be retained, specifically for reasons relating to the Windsor framework. That is the reason that it has given. Frankly, that is spurious—that is not the reason. There are plenty of other ways of doing whatever one needs to do in relation to the Windsor framework; one does not require the internal market act to be retained in toto for that.

Why, then, does one wish to retain the internal market act? I can only conclude that it is because UK Government ministers can imagine circumstances where they would wish to use the power to drive a coach and horses through devolution in order to stop something. They will work, in the first instance, to try to make common frameworks satisfy the processes in order to be able to say that they are respecting the devolution framework, that they have reset relations and that they are working in good faith, but somewhere in SW1, there is a fear that issues will come along where they would wish to override the devolution settlement using the internal market act.

That is the only rational explanation that I have for the act’s retention. If it is an agreed position that common frameworks are the appropriate way of dealing with things, and if everybody has agreed that the IMA is not required for anything to do with the Windsor framework and is not the only way of satisfying that criterion, that is the only logical conclusion that I can come to for its retention.

Indeed it does, and there are very few people out there—there might be one on this committee—who do not agree that common frameworks are the best way of proceeding. It is the commonly held view of the UK Government, the Scottish Government, the Welsh Government, the Scottish Parliament, the Welsh Senedd and, I imagine, the majority of parliamentarians in the House of Commons. Common frameworks are where it is at.

The issue, though, is the retention of the internal market act, given all the reasons and concerns that were expressed to the committee, the evidence that the committee has been provided with and the absence of recognition by the UK Government that it should do what Labour promised in the run-up to the previous UK general election, which was that it would repeal the act.

Will the Scottish Government continue to invest its efforts in working collegially to ensure the effective workings of the single market, while at the same time understanding that devolution is about different policy making, and potentially different policy outcomes and priorities? It is a balance, and because of that divergence, it is necessary to work out how one makes sure that one can do that with proportionality and balance, not with the ultimate muzzle and restraint that the internal market seeks to impose on elected democratic Governments and Parliaments in the UK. That is not what the devolved settlement was about. I point again to the evidence from the then Secretary of State for Scotland, Donald Dewar, in a debate in July 1987, on that very question: it is “germane”, it is not theoretical and it matters.

We are, increasingly, seeing a list of policy areas in which the uncertainty that the internal market act imposes is growing and growing. It is very disappointing that the UK Government has not taken the opportunity to consider that while reviewing—it is a good thing to review, of course—how single market arrangements operate, and that it has chosen to exclude the agreed position of the Governments and Parliaments of Scotland and Wales on the question.

Of course, Mr Adam is correct, and that is the position of this Parliament, which has voted twice for the repeal of the internal market act. I would prefer to invest my time and effort in making the common frameworks work, with the internal market act being taken off the statute book, and—to paraphrase Mr Adam—getting on with it. We need to work together on the questions that are brought up by legislation in the rest of the UK and by legislation in Scotland, Wales and Northern Ireland, and on making the common frameworks the only route for doing so.

Apart from anything else, if the common frameworks are, ultimately, going to work, they have to be understood as the sole route for dealing with these internal market questions. That would be a good thing, and I hope—even at this late stage—that the UK Government will reflect on its error, because it certainly does not reflect a reset of relations, if that was the intention. It has been pointed out that, by excluding the position that is supported by the Scottish Government, the Scottish Parliament, the Welsh Government and the Welsh Senedd, that would most certainly not be a reset, but a continuation of the previous UK Government’s approach to devolution.

Mr Harvie asks a very interesting question, about how one reconciles the operation of intergovernmental agreement—whether in the form of treaties or in the form of rolling, on-going arrangements of intergovernmental relations—and how one involves Parliaments in that process. It is a good question.

I have lost count of how many times I have come to the committee. Committee members know that I am perfectly happy to come here as often as you would wish to hold me and the Government to account in the area for which I have responsibility. I have no objection to coming back here for detailed sessions about how common frameworks are working in this area or other areas. It is not for me to answer as to how others would allow themselves to be held to account in their Parliaments but, especially given that it is the position of this Parliament that one wishes the common frameworks to work, I am very keen to be answerable to you about the extent to which we are able to ensure that and about the progress of all of that. I have no objection to that whatsoever.

That is not the case.