Chamber and committees

These things currently operate through a central team in the Scottish Government’s directorate of external affairs, which works closely with Scotland house in Brussels and Scottish Government lawyers in supporting policy directorates to consider the Government’s policy of maintaining and advancing EU standards where appropriate. The team supports the work as part of DEXA’s on-going business of enabling policy areas to understand the international context of their work, and it also ensures that policy areas consider where alignment might be possible and how they can support ministerial decision making in considering alignment alongside the range of information and other priorities that the Government must consider in reaching policy decisions.

My view is that that has to be done across the piece with regard to proposals emanating from European Union institutions. If any particular aspects of European legislation, regulations or directives need to be considered—I think that everybody on the committee appreciates the difference between those three types of proposals—we have to ensure that we capture them across the piece.

I am very interested in Dr Whitten’s highlighting of that particular issue, and I want to make sure that we have an understanding across the full range of European Union proposals to ensure that there is no passive drift—I am not quoting exactly what Dr Whitten had to say here—or unconscious drift in alignment. Again, that would be another area in which if there was any particular thinking on the committee about the risks and how they could be ameliorated, I would be very happy to hear it.

I am in a slightly curious position in that I have received assurances from the United Kingdom Government that the Sewel convention will be respected in relation to retained EU law and the bill that is going through the UK Parliament. In normal circumstances, if the Scottish Parliament did not give legislative consent, the bill in question would not—you would imagine—proceed as currently drafted. If you took that commitment at face value, you might imagine that the United Kingdom Government would be prepared to amend the bill, or to accept amendments that had already been tabled in the House of Commons this week. I have not yet had an indication whether the United Kingdom Government is actually prepared to do that.

As committee members will appreciate, given that our position in Scotland is to try to remain aligned—which means trying to protect the legislative framework that we have inherited as a past member state of the European Union—we could save ourselves a lot of work. If the UK Government were serious about working collegially so that we could deliver on our respective mandates and priorities, framing UK legislation that actually reflected that position would be the best solution. I am still working towards trying to make that happen, but we will have to wait and see whether the still relatively new Prime Minister and other ministerial colleagues have a different view to their predecessors.

Therefore, we do not know the answer to your question yet, Dr Allan. In the meantime, my Welsh colleague—with whom I had discussions this week for this very purpose—and I are trying to renew our efforts to help the UK Government understand that we do not want to see it continue as it plans to. We very much hope that the new Prime Minister and his colleagues will listen to and respect that view and, notwithstanding that, will actually live up to the promise to respect the Sewel convention in specific respect of this legislation.

Having said all that, and in light of Sewel being breached, I think, seven or eight times now and the UK Government carrying on regardless of what the Scottish Government or the Welsh Government has said in past instances, I think that we have to work on the basis that the UK Government might just plough on regardless. If it does so, we face a significant challenge, not least because it will have an impact across Government. After all, a significant proportion, if not a majority, of areas—areas for which the Scottish Government has responsibility—have a European or European legislation dimension.

As I have said already, the UK Government is not in a position—or is not prepared—to point out the impacts on the devolved areas. Certainly, it has not included that information in the tracker that it has established. Therefore, we will have to go through a phase of working all that out and then a phase of working out how we can retain that legislation on our statute book. After we have done that, we will have to work out how parliamentary time will be used to do all this work. We are very much at the beginning of the process.

Convener, you will no doubt have me back soon to talk about that process. I have heard what you said about the committee taking evidence, and I am happy to come back, but I should say that it is a very fast-moving situation. There are significant resource implications for us and our Welsh colleagues in having the expertise and capacity to go through 47 years of European Union legislation, and there are also resource implications for parliamentary time and the Government’s existing legislative programme. The answer to Dr Allan’s question, then, is that we are facing a very big challenge.

First, I very much hope that stakeholders engage on an on-going basis with the process of alignment and of remaining aligned with the European Union. I very much welcome stakeholders’ reflections on decisions that have been made; as it is a live and on-going process, rather than an event, it is therefore an iterative approach, too. As I have said, I very much welcome stakeholders becoming part of that process.

Thus far, though, stakeholders have not flagged up anything about the process to me, have not said that there is too much or too little of something and have not made specific suggestions about different ways of doing things. However, were that to be the case, I have no doubt that it would influence the thinking of civil service colleagues, and that anything of significance—that was proportionate to and commensurate with my responsibilities—would be flagged to me, and I would look at it very closely. Through the committee, I have this opportunity to say to other stakeholders who follow these issues that if they want to reflect on things that form part of the report, or if they have more general issues related to realignment, I would very much welcome people’s input.

We were told—[Inaudible.]

That is very kind, convener. I hope that you can hear me now. I was beginning to come to the end of my statement by talking briefly about the Retained EU Law (Revocation and Reform) Bill, because of the relevance that it has to Scotland remaining aligned with the European Union, and by touching briefly on a number of report-related issues. If you are still able to hear me, convener, I will conclude there.

The implications that the retained EU law bill might have for our approach to preserving and advancing what we have are profound, and it remains to be seen what impact it will have on Scotland’s ability to act in its own devolved interests. The bill means divergence, and, to quote Vice-President Šefcovic’s comments last week to the EU-UK Parliamentary Partnership Assembly,

“divergence will carry even more cost and will further deepen the barriers to trade between the EU and the UK ... divergence means more friction and less trade—simple as that. And again, this in times of severe economic strains.”

In taking forward alignment in Scotland, I am determined to proceed in a way that others can understand. Much of this can feel arcane to our fellow citizens, which is why I welcome today’s evidence session and why our policy statement, as agreed by the Parliament in June last year, commits us to going beyond the requirements of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 to provide detail on the impact of our commitment to aligning in respect of all relevant legislation that is brought forward.

We want to ensure that the Parliament and the public understand how and where EU standards are being preserved and advanced in Scotland, and I commend the fact that parliamentary officials are working with my own officials to ensure that we apply the commitment effectively. Only by working together well in this way will we have the best chance of delivering our shared interests and allowing the Scottish Parliament to fulfil the role that it has been assigned in the devolution settlement.

I will just make a brief comment about the draft report that the committee is considering this morning. It covers how the section 1 regulation-making powers have been used in the most recent reporting period, which runs from 1 September to 31 August 2022. As I have explained, it is a subset of the overall application of alignment.

The most important development is that we are now taking forward planned use in respect of World Health Organization requirements on the quality of water that is intended for human consumption, as detailed in the recast EU drinking water directive. It is a really good example of how we are applying our alignment commitments, because we are able to align with the directive’s provisions using the most effective powers that are available to us in a way that protects and advances standards. It also demonstrates that we have to carefully consider how and when we implement certain aspects of EU directives, and the section of the report that details considered use over the reporting period—in this case, on decarbonisation—does likewise.

The detail of the water quality regulations is, of course, a matter for Michael Matheson’s portfolio and the Net Zero, Energy and Transport Committee, but I am very grateful to be accompanied this morning by civil service colleagues from the environment and EU secretariats. We will do our best to answer your questions and help you consider any written representations that the committee might wish to make.

I could reread what I said in a previous answer about how the Scottish Government manages the alignment process with regard to the central DEXA team, Scotland house colleagues in Brussels and Scottish Government lawyers as the three key groups in the triage process—if you want to call it that—of understanding what is coming towards us. That all goes into the civil service system and is considered in ministerial decision making—that is the process.

I am also answerable to Parliament through this committee as well as through answering members’ questions in the chamber. If people have questions about how decisions are made or which decisions are being made, I am happy to consider them in addition to the broad spectrum of ways in which I and my civil service colleagues have answered the committee’s questions already. If Mr Golden has any specific examples on which he wishes more information, I am happy to provide that.

Unfortunately, I do not—absolutely none. I need to go straight to an event in the room next door with Scotland house staff.

I am happy to do so briefly, if I can think of some areas where alignment has been a factor.

One recent and concrete example is the regulations on single-use plastics. We are trying to be more environmentally responsible, are we not? We are trying to ensure that we are not unnecessarily polluting the environment, so stopping the production of things made from plastic—whether they be cutlery, plates or whatever else—that are to be thrown away after use is probably the most tangible recent example of an area where we have sought to remain aligned with the European Union. We are the first part of the United Kingdom to have done that, and we have had to do that by using new mechanisms that have been introduced for a post-Brexit UK. The United Kingdom Internal Market Act 2020 and the common frameworks, which we have discussed in committee before, have had a role in considerations around that.

That is an example of where we are trying to do our best to maintain the highest standards—and, as we know, the highest standards are the EU standards. That is what we are doing; the rest of the UK has not done it yet, and it is for them to decide how they want to proceed, but we want to ensure that we live up to the highest standards that we can. For that reason, we try to remain aligned with EU policy, and we have done just that.

First, I would not want the impression to be created that there is not a general position of wishing to remain aligned with the policy and initiatives of the European Union. That is the case. I could draw your attention to a whole series of examples from regulations on single-use plastics to food and feed safety, and I could go on. You have picked up on a particular issue that relates to building regulations and, I think, electric vehicle charging measures.

I signal to colleagues who are on the line that they may add anything that they wish on the subject after I have said what I have to say.

I will briefly address the specific point on the reference to the use of electric vehicle infrastructure regulations in the previous annual report. The Scottish Government did not consider using the powers for the relevant regulation over the period of that report. Consideration was made of using the power in relation to its potential application during the reporting year that has now ended. The implications of measures that are proposed in the EU legislation still need to be carefully considered in terms of the outcomes that they will support.

I think that we all understand that the pivot towards electric vehicles is very much an on-going situation. In this case, it was important to consider the evidence that was held in reaching a decision on our approach to EV charging, and aligning with the regulation in question would not have supported the outcome that is sought in the transposition timescale. We may seek to align at a later date and we are committed to keeping the matter under review.

As I have said to the committee a number of times, we are committed to remaining aligned in the broadest of senses, but specific measures will come forward that, for a number of technical reasons, may not need to be introduced in their entirety or at this time. We are not following a blanket alignment policy with 100 per cent transposition of everything, not least because many measures do not impact on Scotland in any way whatsoever.

That is my answer to Mr Cameron’s question. Are there any colleagues on the call who would like to add any technical insight into the particular regulation that Mr Cameron asked about?

Thank you very much, convener, and a very good morning to colleagues on the committee. We are here today to discuss the Scottish Government’s legislative consent memorandum on the UK Government’s Northern Ireland Protocol Bill. The committee is very well aware of all the reasons why colleagues and I have serious misgivings about the bill, but let me begin by acknowledging that talks between the UK and the EU on the protocol have resumed in recent weeks—they are the first substantive structured talks since the early part of 2022—and that there appears to be a shift in tone.

It was certainly striking to hear the Northern Ireland minister and former European research group chair, Steve Baker MP, publicly apologise to Ireland and the EU for behaviour during Brexit negotiations that had not inspired trust. It is my sincere hope that the UK Government will seize this moment to re-engage in good faith with our European partners, build more positive momentum and seek sustainable shared solutions, but two important things must happen to make that possible. First, the chaos engulfing Westminster needs to be brought to an end. Secondly, the UK Government must end its irresponsible threats to override the protocol unilaterally and withdraw the bill without delay.

As the committee will be aware, shortly after the bill’s introduction in June, the Scottish Parliament held a debate and passed a motion condemning the bill as “fundamentally unacceptable”. Not a single member of the Scottish Parliament voted against that. Since then, the legislation has passed through the House of Commons unamended and is now progressing through the House of Lords. The bill has been met with deep concern by legal experts and our allies around the world, yet not a single Conservative member of Parliament voted against it. The UK Government has acknowledged that the bill engages the legislative consent process and has sought the consent of the Scottish Parliament. As the memorandum sets out, the Scottish Government does not recommend consent for the bill, for reasons of its potential illegality and its impact on Scottish interests.

On the question of legality, the bill will make UK domestic law incompatible with the UK’s international obligations under the protocol. To do so may put the UK in breach of international law. Although that is a question ultimately for the courts, domestic or international, many prominent legal commentators—you have heard from some this morning—and European leaders have already robustly challenged the UK Government’s legal position. The bill also threatens profound consequences for Scotland. It has heightened tensions in a dispute that has already badly damaged UK-EU relations and stalled all progress on the TCA, with direct implications for Scottish priorities, including horizon Europe association, energy trading and re-establishing market access for key exports.

As the memorandum sets out, if the bill becomes law, the consequences of the escalation could be economically disastrous for people in Scotland. It could lead to tariffs being imposed and even to the trade and co-operation agreement being suspended. That the UK Government is willing to risk a trade war in the middle of a cost of living crisis, after all the ideologically driven economic chaos that it has already inflicted on us all, is unconscionable. For those reasons, the Scottish Government cannot recommend consent for the bill.

On my last trip to Brussels, I met the UK ambassador to the EU and European partners and emphasised that a negotiated solution is in everybody’s interests. It is important to maintain constructive relations, and that is what the Scottish Government will continue to seek to do. Indeed, that is why I wrote to the Foreign Secretary, James Cleverly, on 30 September requesting urgent bilateral and four-nations meetings on UK-EU relations. Mr Cleverly responded this week, committing to a four-nations meeting before the TCA partnership council next meets. However, no date has been fixed and in general there has been a frustrating lack of ministerial-level engagement in this space.

I hope that this introduction has been helpful and I welcome any questions, convener.