Chamber and committees

That is a very complex area, and Alexander Stewart is absolutely right to highlight it. The European Union is one of the only bodies in the world with the scale and the heft to be able to come up with frameworks for some of those really big challenges, because it is a match for other trading blocs or for particular economic interests. We therefore have to watch very closely what European colleagues are doing in that area. Those of us who want the highest standards in those areas and others can invest some confidence in the fact that the EU will do a lot of the heavy lifting for us. That makes the case for why alignment is of import, quite apart from the sense of remaining aligned so that our return to the European Union is as seamless as possible.

The digital area is exceptionally complex. I am sure that Mr Stewart saw the coverage of the recent conference on artificial intelligence that was hosted by the UK Government—at which, unfortunately, Scotland was not present. Everybody has to think about how we approach all of that, in order to have the appropriate legal and other safeguards. We will work closely with European colleagues to make sure that it is fit for purpose here as well.

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

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

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

“a significant shift in the constitutional landscape”.

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

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

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

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

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

I said to the committee earlier that there are two particular constraints or realities around which our commitment operates; first is the reality of our devolved competence and the wider UK structures, and second is whether European Union measures have demonstrable effect. To take an easy example, we are in a country where, unless somebody can correct me, we cannot grow olives, and we do not have a wine production sector, so European Union legislation on olive growing or wine production does not have an effect. Then there are things that are obviously within devolved competence, have demonstrable effect here and do not have a disadvantage. Around those realities, consideration needs to be given as to what we are doing.

Were we in the European Union, the situation would be entirely different, because everything would be, from a legislative standpoint, part of a treaty obligation and a requirement to ensure that one fully integrates the entire corpus of EU law. We have already inherited 47 years’ worth of that in Scotland.

Ms Forbes’s point is absolutely correct. There is not a 100 per cent read-across, notwithstanding the commitment to remain aligned. However, for anybody who understands how the European Union works and the fact that we are now not in the European Union, there will be areas that require, because they do not have direct impact on us, or because of the nature of the devolved settlement and how that works, a caveat—if one wants to call it a caveat—around appropriateness and possibility.

I have written down a few of those, and they are there for a reason, which is that we will not incorporate things that have no impact here or where the constraints are such that we cannot. That should not detract from the fact that, in the main, we will do exactly that which we have intended to do, which is to remain aligned.

George, do you wish to add anything from an administrative point of view, as somebody at the sharp end of making the decisions?

I could not agree more. Indeed, I made that point prior to Mr Brown’s membership of the committee. There is a danger in saying, “We require everything in its raw format”—that is, unprocessed, unassessed and without prioritisation or the help of expert advisers, clerks or academics in assessing the importance of a regulation, a directive and so on. Having a sift process is a good thing, but it must operate in a way that can give individual committee members or different subject committees of the Parliament the opportunity in good time—I stress that phrase “in good time”, because it is the key factor—to influence the Government’s thinking and, indeed, the legislative programme, given that legislative instruments might well be at play, and to allow you as parliamentarians and collectively as a committee to discharge your responsibilities.

The injunction with regard to proportionality is key. Will we get that right all the time? Probably not, because of the volume of material. However, because we are looking back, looking at what is happening presently and looking at what is happening in the future, you can—to go back to Mr Ruskell’s specific example on legislation—allow evidence to be taken in good time, allow more information to be drawn down and satisfy yourselves that you have done everything that you think is necessary and proportionate.

We are trying to do exactly the same, and the fact that there is an open channel between officials and committee clerks is also very helpful. We should not be satisfying your demands as a committee just from evidence session to evidence session—it should be an on-going process. You should be aware of things that are happening in the meantime, and we should be aware of any specific issues that you might have.

Indeed, Mr Cameron’s question was a good example of that; he wanted to know something technical, but although I have a very big folder, I did not have that information, and I would have liked to have been able to furnish him with it. If we can get that process working well, questions will, I hope, be answered, but if more information is required, it can be given in good time, as part of the committee’s on-going investigations and inquiries.

We all understand that this is quite a technical area, so we are all very grateful to have the support of committee clerks and advisers and, in my case, my civil service colleagues here and a wider team. If any of them want to illustrate with specifics the points that I am making in generality, I would be grateful for additional comments.

The first thing that I would say is that we are seeking to remain aligned with the EU where it is appropriate to do so. Using phrases such as “where it is appropriate”, “where it is possible” and “where it is meaningful” matters. We are not in the European Union, so we are trying to find our best way, using a variety of different approaches, to make sure that we can remain aligned and working in parallel with the EU. We will do that within devolved competence, and we will do that to implement measures that have demonstrable effect.

There are areas in which it is unlikely that there would be demonstrable effect, and there are areas in which measures relate to EU organisations that we are not a part of, or they might be involved in particular areas in which there is no legal locus here. It is literally impossible to do 100 per cent of what the EU is doing in terms of its policy, because we are not in the EU now.

That said, we are going to do everything that we can to maintain the standards and values of the European Union and its strategic approach to things. We have a resource in the Scottish Government here and, indeed, in Scotland House in Brussels—I think that a good number of committee members have already been there, so you will know how competent the team is. Those resources will, in co-ordination, ensure the best way of providing you—and through you, to business and such like—with an understanding of which legislation will have an impact on what we are going to be doing. Everyone on the committee will understand the reporting mechanisms that have been brought in train and will, as a result, be aware of how, when measures are introduced, alignment will be achieved.

I think that we are in a much better place now. As there have been quite a few changes on the committee, some colleagues might not have heard this, but I have already given the committee a commitment in this respect and have made it clear that, having spent 10 years on the European Scrutiny Committee at Westminster, where every week we had to go through European Union proposals, and having quite literally sat where you are sitting, I do understand what you require to be satisfied that you can scrutinise what the Scottish Government is doing on alignment. However, it is appreciated that this has the potential to be a massive undertaking, so we are trying to find a balance between reporting the legislation, the policies and the strategies of the European Union and how we are seeking to remain aligned with them, in order that you can scrutinise what we are doing. It is about striking a balance between giving you something unwieldy and too technical, with perhaps too much being lost in the detail, and giving you everything that you require.

As I have said, this is the first published iteration of this approach. If there is something that you feel that you require more of or less of, or if you feel that you require something different, we are very open to hearing those comments. I know that my colleagues and the committee clerks have been working closely to ensure that our reporting method is of a standard that is appropriate to you.

Well, I think that that will show the committee’s workings in action. We are providing the context for the work that we are doing; we are aware of and assessing the proposals, and we are considering what we would wish to do to remain aligned and what implications that might have in the wider context that Mr Ruskell has outlined. That sort of approach leads to exactly those questions being asked.

I cannot be psychic, and neither can my colleagues. The list of legislation is very long, and there might be something there that is not interesting to anybody at all. However, given the variety of interests that members have, there might be really burning issues for you. Now, because we have been able to highlight the things that are on the docket, so to speak, if you have questions, you may ask them in writing, or if your questions are of such import that you wish me or any of my colleagues to give evidence, we can do that.

There is another aspect to this. The information that we provide has been done in such a way that the subject committees of the Scottish Parliament, which have a particular locus in different policy areas, can say that these environmental issues, to use the example that Mr Ruskell gave, should be considered in the round by the Scottish Parliament committee that deals with environmental and related matters. We hope that this process will make that easier.

It is not for me to sit here and outline specific bits of European legislation today, but this is the start of a process of giving the committee the opportunity to ensure that your colleagues on other committees are aware of proposals, what should be looked at more closely and so on, or whether you wish us to provide you with more evidence as part of your work as a committee, because you require more information about something and how it links with other areas. That is, I think, how the process is supposed to work, so Mr Ruskell is making the point for me. The point is for me to give you an awareness of what has happened, what we have done with it, what is being considered and what is coming down the track that we need to think about more.

Notwithstanding the fact that we are no longer in the European Union, there are still ways in which we can make our views about certain measures known to EU colleagues. A little bit of horizon scanning would be useful in that regard, and I hope that that is what can emerge from the reporting mechanism.

I will answer the second part of that and ask George Macpherson to come in on the first part and to say whether he has any subsequent things to mention on the car charging point.

That is also an issue where, in my mind, I really hope that the Parliament’s subject committees, which are aware of how the Scottish Government has sought to align with what has come through the EU institutions, ask themselves after some time whether it is working as intended, as they would do with anything else. That is how this is supposed to work. If is not working, we need to work out why, but something such as that is absolutely at the heart of committees’ scrutiny work. If you do not have enough information, ask for it. If you want ministers to give evidence about specific measures, have them do that. In the meantime, if there are technical issues or subjects that lie close to the heart of one member rather than the committee as a whole, please raise them us and we will deal with them in the usual ways.

I will answer the first part of Donald Cameron’s question, and there will be some updating on the second part. On the first point, I absolutely acknowledge that, in the absence of a reporting mechanism, the committee found itself in an imbalance of understanding, knowledge and information. From the first instance of that being the subject of discussion with me before the committee, I have always acknowledged it. I want to be as helpful as possible and have always explained my own personal experience from having had to do this at the other end of the spectrum—every week, the European Scrutiny Committee in the UK Parliament had a very thick sheaf of papers even after a sift by four legal advisers, all of whom were former UK ambassadors. The volume of material that can be scrutinised is enormous.

This is the first attempt at providing a mechanism that should point you towards what we have done, what we are considering and what we expect to be coming down the line, and it is a really good start. There will be areas for which one wants more information. One will be aware of the ground, which was perhaps not previously the case. I therefore totally agree, and I hope that we get the balance right. That is why I say again, if more is required, or less, or if things are needed in a slightly different format, let us try to make that work.

However, I hope that there is an appreciation that this is a very genuine attempt by the Government to work with the committee for the benefit of better lawmaking and scrutiny. We are open to any feedback about what needs to change in relation to that mechanism, but the work is just starting, so we can give it a chance to bed in and then take an iterative approach as we go forward.

George Macpherson, do you want to add anything on the tertiary law points?

I will have to furnish Mr Cameron with some advice from Cabinet colleagues who have primary responsibility for that. That is where one of the dangers lies in having a report that includes a myriad of listings of different legislative proposals, because one can pick one out of the hat, draw attention to it and ask questions about it. I want to be able to provide Mr Cameron with the answer to his question, but I am not in a position to do that.

Yes, we will do that, and we will report back to you.

I think that we have to use every route in that we can. Many of you will have met Martin Johnson and members of the team at Scotland House, who are very capable at reaching legislators, and we are also in the fortunate position of having a friends of Scotland group in the European Parliament, which goes across the mainstream political families. If members want to speak to colleagues in the European People’s Party, the Progressive Alliance of Socialists and Democrats or the Greens and the European Free Alliance, there are routes in through the European Parliament and the European Commission. Indeed, it is one of the reasons for our having conversations with other Governments at federal and state level. We want open channels of communication, so that if there are things that we should raise, we will raise them.

Not being present is a problem, and none of that is a substitute for doing what every other normal country does, which is sit on the Council of Ministers and take part in the discussions about what is happening in the European Union, have a nominated commissioner sit on the Commission of the European Union and, indeed, have our full complement of members in the European Parliament making the laws that will have an impact.

The only way to do that is to be a member state of the European Union. Sitting outside in the cold, which is where we are, means that we have to find workarounds, because Brexit has brought about a circumstance in which we are no longer part of the decision-making structures of the EU. Therefore, we will try our best, but there is no substitute for the proper way of doing it.