Chamber and committees

I will have to defer to colleagues on what we are hearing from UK officials. However, I think that are working on the basis that we will have to ensure that things do not fall off the earlier cliff edge rather than the later. We will always make arguments for things happening later. The Scottish ministers do not have powers over that—UK Government ministers have those powers.

Ms Minto could have added to her question the statistic that only 4 per cent of businesses believe that they have a full understanding of what the bill will mean for them, yet we are expecting businesses, environmental organisations, third sector organisations, Government departments, Parliaments and parliamentary committees—all of us—to get our heads around thousands of pieces of legislation in order to work out what we must do to avoid things falling off a cliff at the end of next year.

I have listened closely. Sarah Boyack, who is a member of the committee, asked me a good question in the chamber of the Parliament about the processes that might be involved in all this. We will all have to consider how we go through this unmatched challenge of working out how existing legislation impacts on us, understanding what needs to happen to retain it—the Government’s policy is to remain aligned, or largely aligned, with existing European legislation, and I believe that the majority of members in the Parliament want that, too—and ensuring that the Government, the Parliament and the committee have the capacity to do that. Those are all known unknowns. We have never had to do something like this before. We should not be doing it in the first place, but we will have to do it.

Is there any silver lining in the process? At least we have a very close working relationship with the Welsh Government, which faces the same challenges. I know from my conversations with Mick Antoniw that there is a huge amount of good will in trying to get through the process. If we can work with one another through the process, we will do exactly that.

Anyone who has any locus, interest or responsibility in relation to any of these matters, including third sector or representative organisations that have particular concerns about the impact that the bill might have on the environment, or colleagues who deal with rural affairs issues—it is largely thought that, in terms of legislation, the biggest number will fall into the category of rural affairs, but that takes us into food safety and related questions—will have to work very quickly to understand what needs to happen to protect our safeguards. That has been highlighted in evidence to the committee.

For the record, I am not a lawyer—as, I think, you all know—but some very eminent lawyers have given evidence to the committee. Indeed, one member of the committee is an eminent lawyer who must understand, as committee witnesses have described, the potential unintended consequences of different aspects of retained EU law, which was previously just EU law, on our domestic legal system. We need to ensure that certain things do not literally disappear from the statute book. That is an overview.

Do we know how long the process will take? No, we do not. Do we know the exact form in which we will have to do this? No, we do not. I could go on. I do not want to give the impression that we are not thinking about such things, because we are. My civil service colleagues have been updating me on the detailed work that has begun to build solid foundations for this enormous undertaking. Now that we know that the UK Government is going to press ahead and will be working to the tightest timescale—we have learned that only within the past few weeks—we will have to work very quickly.

The UK Government has a very narrow window of time in which to give any credibility to the claim that it is working with the devolved Administrations on the matter. If it is already writing to ask UK Government departments in Whitehall to provide lists and the rationale for what should and should not be retained, without the full and active involvement of devolved institutions, any claim of wanting to make devolution work in any meaningful way is for the birds.

I have not had any indication that the UK Government foresees providing any additional funding for us to manage our way through the process.

I will underline further evidence that was given by Julie Hesketh-Laird from Food Standards Scotland. She said:

“if we repeal or remove all the laws that I have just referred to, it takes us back to nothing in many cases—there is no protection pre-EU law.”

She went on to say that the bill

“removes all consumer protection ... and that in turn has a huge impact on the confidence that our trading partners would have in food that is exported from Scotland.”—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 24 November 2022; c 10.]

If the penny has not dropped in relation to what all this means, one needs to read and take on board the warnings that have been given to the committee in that regard.

The Scottish Government’s position is that, if the UK Government disregards the Sewel convention and railroads the bill through, with its impact on devolved areas, we will have to work extremely hard—all of us: the Government, the Parliament and the committee—to make sure that we understand the intended and, indeed, unintended consequences of retained European Union law disappearing from the statute book at the end of next year, which is what the bill provides for.

The committee knows about the scale of European Union legislation; you have heard about that from the Law Society of Scotland and others. To start with, Jacob Rees-Mogg could not tell me how many pieces of legislation are involved, but he then said that the number is between 3,000 and 4,000. We then learned from the Financial Times that it is north of 4,000 and, in its evidence to the committee, the Law Society of Scotland said that up to 5,000 pieces of legislation might be involved.

For the uninitiated who might not understand what that means, it means that Scottish Government colleagues who are responsible for our legislation and for understanding policy proposals will need to do a lot of work in going through thousands of pieces of legislation to understand what would happen if they were no longer to be on our statute book. The committee has received evidence about less well-known pieces of European legislation that are intricately part of our domestic safeguards. For example, one of the committee’s witnesses gave the example of equal pay. We need to understand the impact of such legislation in Scotland, and we then need to work out what we must do to retain all those safeguards. We need to do that between now and the end of next year.

I am incredulous that this is being foisted on the Scottish Government, the Scottish Parliament and the committee. Given that the UK Government did not simply accept an amendment in the House of Commons that would have stopped all this nonsense, we have been left looking down the barrel of next year being dominated by trying to understand what retained European Union law means in devolved areas and what safeguards we need to provide.

Let us not lose sight of the process that will be gone through. At present, UK Government departments are being asked to provide lists of legislation that, from a departmental point of view, they wish to be repealed or retained in some way. Those lists will then go to a UK Government bill minister—I understand from the timescales that that will happen in January—who will take a view on the impact of the different legislative measures. That might involve devolved areas, and I have had zero input to the UK Government about the Scottish Government’s position on different forms of legislation. The UK Government’s proposal includes mechanisms that allow it to make decisions in devolved areas. It just goes on and on.

I am incredulous that we find ourselves in this position. The bill is being foisted on us. It is the worst possible advertisement for devolution. It shows how devolution is being disregarded by the UK Government.

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.

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.

Indeed, but I make the point that we are talking about hard-working civil servants who have a job to do already. Those colleagues are working on the legislative programme of the Scottish Government, which was elected to legislate across the panoply of devolved areas. That is a full-time job for the civil service, and this unprecedented and entirely negative intervention by the UK Government now runs the risk of swamping the capacity of the Scottish Government, the Scottish Parliament, committees, the third sector and representative organisations.

I say again that, if the penny has not dropped yet in relation to the scale of what is going on, one really needs to wake up and smell the coffee. This is unprecedented; it has never happened in the entire history of devolution. It might, unfortunately, be unavoidable in the UK Parliament, but it is entirely avoidable for us in Scotland. Unfortunately, the UK Government is proceeding with its approach.