Chamber and committees

Is that a quote from the Secretary of State for Scotland?

I met the previous secretary of state, Jacob Rees-Mogg, twice and was told in both meetings that the UK Government would respect the Sewel convention. As we know, in practice, there have been numerous examples in recent years of the Sewel convention being disregarded. If the Sewel convention is to be respected, we will be able to see that in practice if the Parliament does not pass a legislative consent motion for the bill and the UK Government does not go forward with the legislation as it is currently proposed.

Do I think that that is what the UK Government will do? I have very low expectations of the UK Government doing that. What seems to have happened, in effect, is that the UK Government has reinterpreted what the Sewel convention is. To the UK Government, the Sewel convention would appear to mean only that it must have consulted the Scottish Government on the principles of a legislative proposal, not that it recognises that it has been given a red card and that the legislative proposal must go—it must be withdrawn and must not apply in Scotland. Instead, what it seems to say is, “We have consulted, we hear what the Scottish Government says on the matter and we are going to carry on regardless.”

We need to do what we should do, which is use the mechanisms, and we will continue to do our best to work with the UK Government. We must do that, especially on the level of officials, who have to work with their opposite numbers in UK Government departments. We will, no doubt, come on to what happens next. We can deal with these things only by having a good relationship and, often, that exists at an official level. I am very grateful to colleagues from the Scottish Government and UK Government departments for working in that way.

The absence of good faith and professional working practice is at a Government-to-Government level: there is little to no tangible respectful relationship between the UK Government and the Scottish Government. That is entirely down to the approach of the UK Government, which is, “It’s my way or the highway. We’re doing this. We don’t care what you think. We don’t care about the evidence or the objections that you have. We don’t care about your ability to manage a parliamentary process or a Government’s legislative programme. We’re going to legislate in a way that, notwithstanding your wish to remain aligned with the European Union, will impose on you some of the greatest legislative pressures that there have been since the beginning of devolution.” That is not a respectful approach from a Government that is working from a partnership perspective.

The first thing to be absolutely clear about conceptually is that we are currently effectively aligned with the European Union. That is the starting point. The effort to describe attempts to align with the European Union as being “immense” is misdirection, frankly, because we are currently aligned with the European Union. Legislation is being forced on us as a Government and as a Parliament that will make us go through an entire process to remain aligned, and that is not our choice. It is being foisted on us by the UK Government. Is that significant? Yes, and it is totally unnecessary. We do not need to do it.

If Mr Cameron’s colleagues on the committee in the House of Commons had voted with the other members on the committee last week, we would not need to have this discussion, because Scotland would not have been proceeding with this dealignment only to then have to legislate for realignment. Is that the efficient way of going about it? No, it is not. That is the approach of the UK Government.

Are we going to do everything that we possibly can to be efficient, avoid duplication and do all of those worthy things as part of the process? Yes, absolutely, but please let us not lose sight of what we are dealing with: a legislative proposal by the United Kingdom, unwanted by the Scottish Government and opposed by the Scottish Parliament, which may or may not be subject to the Sewel convention. We do not want it to happen. We are currently aligned with the European Union and we wish to remain aligned with it. We do not need to go through this unnecessary process for the next year—and longer—to do that.

This is on the UK Government, and it is for it to answer why it is going through all of this when, with some more imagination and, frankly, good will, it could have amended the bill and disapplied it to devolved areas of government. That would have been the most efficient approach to the process if the UK Government wanted to go ahead with it for England.

With the greatest respect, the procedure is clear, in as much as we report to Parliament as part of our legislative process. I am back in front of the committee and we are engaged in an on-going process of seeing whether there are specific ways in which we can provide increased transparency and satisfy committee members’ demands—which I appreciate, having sat in their position doing exactly the same job in the United Kingdom Parliament.

I will definitely reflect on how we can ensure that, if there are major proposals that may have relevance to Scotland and we have decided for whatever reason that legislation is not required to be aligned, that information can be shared. Maybe that is a part of the process that our committee officials and Scottish Government colleagues need to address directly.

I am not aware of anything crossing my desk where a decision not to align through the adoption of policy or legislation has not been reported. Were there to be such a case, I would want to make sure that people were properly informed of it. I will take that question away to reflect on and will make sure that what happens is, in fact, what I believe to be current custom and practice.

I join you from Scotland House London, where I am holding meetings with the United Kingdom Government. Thank you for accommodating me by allowing me to join you remotely.

Today, we are focusing on the European Union and, in particular, on our report on how the Scottish Government is using the continuity act to protect and maintain the high standards that we enjoyed as a member state of the European Union. We are committed to remaining close to the EU and to building the strongest possible relationship between the EU and Scotland. It is important that we consider why that is.

Alignment is a point of principle and conviction. Scotland’s attachment to the European Union has been demonstrated at the ballot box time and time again. If the latest polls are to be believed, that desire to remain close to Europe is only increasing. The people of Scotland see what is at stake and understand the devastating effect that Brexit—and not just the calamitous litany of successive UK Governments—is having on the country. Above all, alignment is about protecting the wellbeing of the people of Scotland. Our standards, shared with and shaped by the EU, are among the most advanced in the world. They protect the environment, people’s working conditions, the safety and quality of the food that we eat and, as we will see, the water that we drink.

The Scottish Government’s policy of maintaining alignment with the EU where we can and where it makes sense to do so protects those standards. That can happen in several ways. The power under the continuity act that we are discussing today is only one such vehicle and only one part of the story. There are other legislative means or changes to non-legislative guidance, policy and programmes that can be made to provide for the standards that are enjoyed by people in Scotland.

I thank the committee for sharing the research that was carried out by Queen’s University Belfast in order to establish a potential baseline of EU legislation that has been passed since Scotland was forced to leave the European Union. We will carefully examine the research and the recommendations that have been made. However, I note that it is important to remember that Scotland’s approach to alignment is to align where possible and where it is in Scotland’s interests to do so. That requires careful consideration as to the extent and the method by which Scotland should align in order to achieve the outcomes that we share with the EU.

Where we align by legislation, as the committee will know, the Parliament has agreed our statement of policy to provide transparency in information in relevant policy notes and consultations. I am grateful that the civil service and parliamentary officials are discussing how that can be taken forward.

Alignment is not just about legislation and standards; it is about the vision that we share with the European Union for the continent’s future and its part in the world and on tackling the climate emergency, sustainable growth and supporting Ukraine—those are just some examples. The outcomes that our interventions support in consideration of alignment and the international dimension are an integral part of our approach to policy making.

The commitment to align is made all the more important by the devastating project that we see emerging from Westminster. We all need to weigh up what the Retained EU Law (Revocation and Reform) Bill will mean. In its current form, it is less about taking back control from Brussels and more an attempt to dismantle the high standards that Scotland and the UK have enjoyed as a result of our former membership of the European Union—[Inaudible.]

I do not want to be cheeky by just saying yes—but my answer is yes. However, I stress to Mr Golden that, if there are areas where the committee wants more transparency or more understanding of the decision-making process, I am, as I have said a number of times now, prepared to actively consider those suggestions. I also hope that those are the matters that are being discussed between our officials.

You asked for brevity, convener, so the short answer to Mr Golden’s question is yes. We have a system that works, and we are finding our ways through it as best we can with regard to being transparent, but I am open to specific ways in which that can be improved.

I draw Ms Boyack’s attention to the report as published, which partly answers that question as it gives an example of where we do not intend to align. I drew attention to that in my opening statement.

The list of EU legislation that does not apply to Scotland because of geographical proximity or because it relates to specific regulations for industries or agriculture that have no direct impact whatsoever for Scotland illustrates why having an exhaustive list of regulations that do not apply is not an effective and efficient way forward for the Government, given the transparency that we are keen to deliver. You have just heard my colleague outline that.

On the point that people want to understand which regulations pertain in Scotland, if we use the example of electronic vehicles, people know exactly what the regulations in that area are in Scotland, so I am not entirely sure how we could proceed in a way that would satisfy Ms Boyack’s concern. I underline that, if there are better ways in which the process could be explained to the committee and, through it, to the Parliament, I am very open to our officials making suggestions about that and to taking them on board and introducing them if they are practical and proportionate.

Yes. I draw the attention of members who were not present at the meeting to my previous evidence to the committee, in which I reflected on my decade-long membership of the UK Parliament European Scrutiny Committee. That committee went through hundreds if not thousands of documents a year in order to satisfy the UK Parliament that European legislative proposals had gone through the scrutiny mechanism. When I gave that evidence, I reflected on the fact that I thought that that was a profoundly unsatisfactory way of providing parliamentary oversight in a digital age, given the scale of regulatory oversight that was required.

The Scottish Government has taken the position that that very bureaucratic approach is not the best way of doing things. We know that all EU legislation is published on the EU’s websites, that the scope of EU legislation is vast, that much of it is technical and that it is not directly applicable in Scotland.

I think that everybody knows that alignment is a policy decision for ministers and not a legislative requirement, and that a commitment by the Scottish Government to producing a report that sets out whether we have aligned in each instance when the EU makes legislation was not included in the policy statement that was presented to and agreed by Parliament. Doing so would be impractical and would take significant resource, and such detail would not assist ministers in applying the discretionary alignment policy against the Scottish Government’s strategic priorities.

That said, I am sympathetic to the point that Mr Cameron made about the challenge that is provided to the committee in trying to identify particular areas in which greater scrutiny by it may be wished for. That is why I am keen that my officials and committee colleagues on the Parliament side are able to progress work to ensure that we get the right balance with the approach that we take. On the one hand, it should not be massively bureaucratic and time consuming. On the other hand, it should give enough insight and understanding beyond what the Scottish Government requires and reports to Parliament about the decisions that we are making. The fact that I am giving evidence on the question yet again underlines part of the process that we have for going through this.

It is important to stress again the wider context of the matter, given that the retained EU legislation challenge that the REUL bill presents is heading in our direction. I will be frank with the committee: we will need to think long and hard about how we are best able to understand the impacts in Scotland of historic EU legislation, which might inform the on-going process of alignment with new EU proposals. If there are specific suggestions about how we can make that process as workable as possible, I am very open to working with the committee on that. It is in all our interests that we can do that with maximum transparency and efficiency, and we will have to work hard to find the best way of doing it.

It would probably be a good idea also to reach out to colleagues in Wales and in Northern Ireland—when, we hope, a devolved Government is re-established there—so that we can share best practice as Governments and Parliaments around that added layer of challenge in relation to historic EU legislation and not just newer proposals from EU institutions, with which we are trying to remain aligned.

There is quite a lot in that question. I will answer it in the context of our endeavours to remain aligned prior to the application of the retained EU law bill by the UK Government instead of conflating the two issues in question.

On the question of how things currently stand, I think that we are beginning to find our way through the process of alignment and have realised that we can do that in a number of ways, not all of which involve legislation. We have a mechanism in place for reporting to Parliament, under which I and my colleagues answer to you and provide you with background material to illustrate the issue both in general and specific terms. The fact that it is work in progress is evidenced by the on-going discussions between Scottish Government and parliamentary officials about how we can improve and fine-tune things as we go forward.

That is the formal context for today’s evidence session. However, a massive issue is casting a shadow over the process, and alignment more generally, which is the retained EU law bill that is currently going through the Westminster Parliament. I think that committee members understand that, in effect, that bill forces Parliaments—whether it is the UK Parliament, or the Scottish Parliament in devolved areas—to make decisions about the entirety of European Union law, not just the legislative proposals that the EU has made since Brexit. We now have to look right back through, effectively, 47 years of European Union membership and at legislation on our statute book that was passed during that time and make decisions about all those laws.

That takes us into a totally new situation. I agree that the prior situation and what is coming are related, especially from the committee’s perspective, as you will want to ensure that you are able to scrutinise all that legislation. The scale of it will not be lost on you, as it certainly is not lost on me. When I spoke to the previous minister with responsibility for this area, Jacob Rees-Mogg, he could not even tell me how many pieces of legislation there were in devolved areas.

We know that the previously avowed total of EU legislation was roughly 2,500 pieces. In the past week or so, the Financial Times has published a report that suggests that it might be considerably higher than that, going way beyond 3,000 pieces. We have had no information from the UK Government—although we have asked—about how many of those are in devolved areas.

We are working on the assumption that the bill will go forward, notwithstanding the fact that the Scottish Parliament is being asked to withhold legislative consent. As we know, the UK Government has been prepared to override the Sewel convention repeatedly. If it were to do so again and were not to accept amendments that would carve out Scotland from the process, which would be the easiest way for us to retain EU legislation—our alignment, in effect, would be the status quo position—we, as a Government, and then we as a Parliament and you as a committee, will have to find new ways, we would hope, to manage the historical alignment of Scotland and the EU.

That would, without a doubt, be a massive undertaking. First, we would need to identify the active pieces of legislation that we wished to retain. We would need to evaluate the various ways in which we might need to act to ensure that they remained on our statute book and decide whether that would require primary or secondary legislation or statutory instruments—the whole kit and caboodle.

Other devolved Governments are facing the same process. I spoke this week with my opposite number in the Welsh Government, Mick Antoniw, and we discussed the scale of the challenge and the beginnings of our thinking about how we would manage our way through the process.

I share that with the committee to highlight that we are at the start of the long—and, to be frank, unnecessary—road to try to maintain alignment by having to protect the historical legislative framework of our entire European Union membership. That takes us into altogether new territory.

Most committee members will agree that, sometimes, such issues can seem a bit dry and distant and that they do not impact on us that much—notwithstanding, of course, the fact that we are beginning to look at regulations that impact on the likes of drinking water, which affects us all. However, there is a world of difference between the process of understanding specific and on-going new proposals emanating from the European Union and a process that could potentially see the cliff edge—which is political language for “the end”—of legislation that has been a part of European Union membership over the past 47 years. It is of a qualitative magnitude and a scale so much bigger than that of dealing with the month-to-month proposals that currently come out of EU institutions.

Perhaps through you, convener, and the committee, I should say to anybody and everybody who knows and understands the importance of European Union legislation and the high standards and safeguards that it has provided to us all, that we really need to wake up and smell the coffee about what is coming towards us with this proposal from the UK Government. We will have to think very clearly about how we marshal the needs, interests, concerns and expectations of citizens and stakeholders to ensure that, as we go through the process, we are able to protect everything that we would wish to protect. That is certainly the ambition of the Scottish Government, and I imagine that that will be the case for committee members, too.