Chamber and committees

Well, it is something that he said in evidence about things to a committee in the House of Commons. It seems to be a common approach.

I understand why witnesses—especially those with legal insight—would have questions about the impact of legal instruments. That is exactly the kind of thing that the Government is undertaking work on, to try to understand it. Elliot Robertson or Chris Nicholson can add any specifics in a moment if they would like to.

To the different legal witnesses that you have had, I say that these are all areas that we have to understand, and we will have to establish the best way of maintaining those safeguards right across the different range of legal instruments that retained EU law has an impact on.

Where different organisations have an understanding of areas of concern that may be overlooked, I take this opportunity to appeal to all those organisations to please highlight those areas not only to the committee but to the Government, so that we are not missing any of those points.

None of this would be necessary if the UK Government listened to the Scottish Government—and, indeed, the Scottish Parliament—and did not go forward with this proposal. It is a UK Government proposal, it is the UK Government that is ploughing on regardless, and it is the UK Government that is causing this problem. That is clear to anybody who is fair minded.

I know that conversations are on-going between my officials and committee clerks on the wider question of EU alignment. I would be perfectly content for my officials to talk to the clerks about how we can build in ways for you to be updated on such questions.

As I have said before, convener, I am more than happy to come back to give evidence to the committee in person. There may be ways to do some of that updating in writing, but, if you want me to come back when there is more that I can share, I am absolutely happy to do that.

I totally agree, Ms Boyack—yes.

We have not been able to quantify that yet, given that we have just gone through the phase of trying to minimise that. Now that we know what the timescales are likely to be, we will have a better understanding of what we need to do. How we can capture what that means in relation to the effort of the civil service working for the Scottish Government is another matter. However, I can say without any fear of contradiction that it will be an immense amount of time, as well as being totally unnecessary. I would far rather that the civil service was able to get on with delivering the programme for government, which is what the Scottish Government was elected to do.

Is there a rational way to go forward in the irrational, surreal and unprecedented situation in which we find ourselves? To be practical and pragmatic about what is a bad situation, is there a better or worse way of getting through all this? Yes, there are ways of doing it that would be more sensible and ways that would be more damaging.

The first point on sunsetting is the self-evident one that trying to do everything within one year is not sensible, given all the constraints that we know about. Incidentally, the constraints that will be felt in the Scottish Government will be felt by the UK Government—that is the magnitude of this. It will be huge for UK Government departments, for the UK Government and for the UK Parliament. As a consequence, it will also be huge for us here and for colleagues in Wales and Northern Ireland. Sarah Boyack raised a very serious point about a democratic deficit in relation to what all this means in Northern Ireland.

If one were to take an altogether more serious approach to minimising the risk of leaving things out and overlooking things that would be damaging and so on, having a phased approach over a longer timescale would be the self-evident way to go about it. That is not what the UK Government proposes. It has rejected the argument for longer timescales, although all those points have been made.

Fast-tracking presents the risk from the other end of the telescope. What is that saying about legislating in haste? Perhaps somebody on the committee can help with that. I am mindful, as I am sure the committee is, of doing things in a way that brings in other kinds of risks, and I have read the evidence that has been given to the committee on that.

In this massively imperfect situation, there is a balance to be struck between trying to do things within unacceptable timescales that may be forced on us and doing them in a way that brings other risks. That is the balancing act that we will have to try to find our way through.

First, you start the process. The process has started in the Government to begin the work of understanding the existing law as part of retained EU law and making an assessment of what would be required to maintain those safeguards. No doubt, a risk assessment will be made throughout that process.

Is there legal jeopardy in processes? No doubt, there will be all kinds of legal concerns, and we will just have to work our way through that methodically as well as we can, with the input of insights from UK Government departments, the UK Government and Governments elsewhere in the UK as well as those who have an oversight and scrutiny responsibility—the committee and your parliamentarian colleagues in Westminster and Cardiff—and from all the representative bodies, especially those that have the capacity. You have heard from many of those bodies. We will have to work together through this process to try to ensure that we do not miss anything in identifying the legislation and then understanding what is required to make sure that it can be retained.

It is important to put on the record again that all we can do is retain safeguards. The provisions have been drafted in such a way so that safeguards can be weakened, which is not the Scottish Government’s intention but is obviously part of the ideological drive of the UK Government. The UK Government might choose, in the process that I described in answer to a question by Sarah Boyack, to introduce another set of laws at UK level in important areas that are devolved, which may well have an impact on the law in Scotland in ways that are not in accordance with the views of the Government or the Parliament here. That is another dimension to all this. It is not simply saying that law A requires replacement by law B in the Scottish Parliament; it is that the UK Government is beginning a process in which it will potentially seek to identify law A and replace it with law B, which may have an impact on devolved competence.

What is the oversight of that? On the basis of everything that we have learned about the process thus far, what would give us any confidence that that would respect the priorities of the Government or the Parliament in Scotland? The answer to that is zero, and we need to bear that in mind as well. We are right to be concerned about things falling off the table because one has not understood their importance or their interrelationship with the operation of the courts, for example, in areas that we know are important. That is one concern. There is a risk that things are lost entirely and that we go back to areas where there was no safeguard or regulation before that provided by the European Community and then the European Union.

We then have the issue of the measures that we would have to undertake and all the work that we need to do to ensure that those are the right form and do what they are supposed to do. We then have the other part of the equation, which is what happens in the United Kingdom Parliament and what the United Kingdom Government does, and how that interacts with devolved responsibility.

Those are all known unknowns, in relation to which we can have a greater or lesser degree of confidence in how we do things. I am absolutely focused on the Scottish Government doing what it needs to do for us to remain aligned with the European Union and to retain the safeguards that we have accrued over 47 years of European Union membership. I cannot be confident about the approach that the UK Government will take, and nor can I be confident in the intergovernmental relations processes as they currently operate, or indeed in the instruments that have been created to manage aspects of policy or policy divergence, such as common frameworks. We have not even got into the operation of the United Kingdom Internal Market Act 2020 and what that would mean, when there is a read across from other legislation that may be passed. All of that makes the issues that Mr Ruskell highlights more difficult.

Sure. It would be a very weird tool in the toolbox and it would be a very strange way of approaching alignment. We are, in large part, currently still aligned with the European Union. If there were areas where one thought that, regardless of the general principle on seeking to be largely aligned with the European Union, there was some regulation—historic or new—for which it would make sense to find a different way of doing things, there is already a reasonable and proportionate way of dealing with that, and the ability to do that is held by the Scottish Government and this Parliament. Indeed, your committee would be able to fully scrutinise any particular proposal emanating from our current toolbox to improve existing European legislation. As things stand, the UK Government is seeking to empty the entire toolbox of European legislation of 47 years and is asking us to pick up everything and put it back in the box. It is totally the wrong way round.

In answer to your question, does the bill mean that we can identify European Union legislation that has been retained, that we can seek to reintroduce legislation through the Scottish Parliament, and that we can safeguard? Yes, but that comes with the important rider that, because we are in this suboptimal operation of the devolved settlement in the UK, and a significant part of this involves overlap—to use Donald Cameron’s word—in relation to powers exercised by the UK Government, we cannot be sure that we can fully protect the European Union safeguards that we wish to. So often, the UK Government is indicating that it is not prepared to work with the Scottish Government to do what we have been elected to do.

Can the Scottish Parliament and the Scottish Government do what they can to ensure that different pieces of retained EU law remain on the Scottish statute book? We can in significant areas, but we cannot necessarily do that in all areas.

Thank you very much, convener.

The Scottish Government’s position on the bill that we are considering this morning is well known by all here. It is a bill that will, if passed, wreak havoc across a swathe of sectors while it chips away at the increasingly fragile state of devolution in the United Kingdom. It is the Government’s view that it should be withdrawn immediately—a position that is supported by many of the witnesses from whom you have heard. This bill is the latest manifestation of the Brexit that Scotland did not vote for and that is making us the poorer.

At Prime Minister’s question time last week, Rishi Sunak said in response to a question about the bill:

“We are seizing the economic opportunities, deregulating and signing trade deals around the world.”[Official Report, House of Commons, 30 November 2022; Vol 723, c 896.]

The key operative word there is “deregulating”, but seemingly not a week goes by without new evidence showing that Brexit has economic costs, not opportunities. Last week, research by the London School of Economics and Political Science revealed that the average household food bill has gone up by £210 over the past two years because of Brexit. More deregulation is not what businesses want. The Institute of Directors has said that the bill

“is likely to create a huge amount of uncertainty around the regulatory framework ... This is the last thing that business needs in such a fragile economic environment.”

The IOD and a dozen other organisations wrote to Grant Shapps asking him to withdraw the bill.

The Scottish Government has initiated a programme to co-ordinate management of the secondary legislation that will be necessary to stop essential devolved laws being lost, should the bill be passed. The SG was still operating largely in the dark on what the UK Government proposed to do with retained EU law and, therefore, what powers Scottish ministers might need to use. It has not told us what retained EU law it needs to preserve immediately in order to comply with international obligations—in particular, the EU-UK Trade and Cooperation Agreement. It has not told us what it wants to preserve or its approach to the areas that we have already agreed to work together on, including the common frameworks.

Notwithstanding the fact that it has been working on its review of REUL since September 2021, the UK Government has not told us what legislation it wants to sunset. Of course, if it actually knew what it wanted to do away with, it could bring forward specific policy proposals that would be the subject of proper parliamentary scrutiny in the usual way. That would be far more proportionate an exercise than what is proposed in the bill.

I hope that Parliament takes some reassurance from the fact that I and my officials have repeatedly made the point to the UK Government that implementation of the bill in Scotland will require time for scrutiny by the Scottish Parliament. I look forward to your questions. Thank you very much, convener.

In my infamous meeting with Jacob Rees-Mogg, who came all the way to Scotland to meet me on a Teams call rather than meet me in person on the matter, he explained the logic as he saw it from the UK Government’s point of view. He explained that it was a Government that wanted to deliver Brexit in full and that, from his point of view, that meant getting retained European law off the statute book. In other words, it is an ideologically driven exercise. When I asked him about what that would mean for a Government elected in Scotland that wished to remain aligned with the European Union, he said that we would have the power to do so. I asked him why, if that was the intention of the exercise, one would not simply legislate a carve-out for Scotland.

That is what totally mystifies me about the approach of the UK Government here. If one were operating on the basis of a respect agenda—which is what we would think, given all the terminology that we hear about listening to and meeting one another and hearing one another’s concerns—and the UK Government was serious about that, as well as having its own drivers in relation to why it thinks that the REUL bill is a necessary and proportionate way of doing things, which I have just explained to Dr Allan, it would recognise that there were other approaches elsewhere in the United Kingdom and would legislate accordingly, but—oh, no—that is not what is happening. One is carrying on regardless. One is disregarding the interventions of the Scottish Government. One is disregarding the clearly stated majority view in the Scottish Parliament on the bill and one is proceeding as planned.

With regard to why the UK Government is continuing with the bill—notwithstanding the fact that its approach is back to front—if one wanted changes to be made to particular pieces of retained EU legislation that were not in accordance with UK Government policy, why would one not just legislate for that, as opposed to throwing out everything and forcing us into a huge process, which we will undoubtedly come on to, of trying to understand what is heading down the tracks towards us in this regard?

My reading of what has happened in the past two weeks is that it is related to the balloon-floating exercise by the UK Government with regard to seeking a potential parallel to the Swiss alignment with the EU, which was, as we know, shot down within 24 hours. I think that the Prime Minister and the Chancellor of the Exchequer decided that they had to show their pro-Brexit credentials to their own back benchers, and that doubling down on the REUL bill and saying that they were going to go ahead with no delays was their way of doing that. That is the best explanation that I can give to Dr Allan. It is mystifying. It does not reflect good intergovernmental relations between the UK Government and the devolved institutions, because there has been total disregard for the position of the Scottish and Welsh Governments.

I evidence that by the fact that I have written twice to the secretary of state who is in charge of the bill—Grant Shapps—since he took office. I included our proposed amendments that would have respected devolution. Since then, I have received no reply whatsoever. As we know, the Scottish Government and the Welsh Government have the same position on the REUL bill. I wrote a letter, together with my opposite number Mick Antoniw, the Counsel General of the Welsh Government, about our opposition to the bill. If the UK Government was remotely serious about wanting to have good intergovernmental relations and respecting the devolved Governments and institutions of elsewhere in the United Kingdom, it would at least answer letters, but it does not even do that.

That is the best insight that I can share with Dr Allan and the committee on the totally unacceptable way in which the UK Government is proceeding with legislation that impacts on the devolved settlement and the policy of the Scottish Government. It is one example, among many, of how the devolved arrangements in the United Kingdom do not work in practice.