Chamber and committees

Cabinet secretary, I appreciate that we are here to talk primarily about the report but, in your opening remarks, you mentioned that, if Scotland was not carved out of the retained EU law bill, we would need to look at—I think you said—“totally new” approaches for keeping pace with some areas. Has there been any indication whatsoever from the UK Government whether it intends to do any such carving out? If not, what might be other options that the Scottish Government would have to pursue, and what would be the likely scale of the task?

Will the member take an intervention?

I am not sure whether Oliver Mundell intends at any point to turn his attention to the report that we are debating, but does he acknowledge that that report, which we should be talking about, represents the views of not merely politicians but people who gave evidence from organisations such as the Law Society of Scotland and the Hansard Society, who said that a number of the UK Government’s constitutional developments of late represent something that is close to a constitutional crisis?

Like others, I thank all those who made the committee’s report possible, including all my fellow committee members, the clerks and the many experts who gave evidence, as I mentioned. I will not be so unwise as to attempt to speak for all committee members, but I think that it was creditable that we managed largely to reach consensus in our conclusions.

I will try to restrict my comments to areas that the report covers directly, but it is worth adding some context by way of update. As we have heard, the committee has more recently taken evidence on the UK Government’s Retained EU Law (Revocation and Reform) Bill, which is likely to have dramatic effects on the statute book in Scotland and on who gets to amend many parts of it.

It was difficult for us to find any legal or constitutional commentators who viewed the bill with anything other than polite but evident astonishment. The bill repeals, via sunset clause, 4,000 or perhaps 5,000 extant UK laws over the next 12 months. The exact number of laws that are up for the axe is not clear, as the UK Government recently admitted that it had only just discovered 1,400 more laws that it had forgotten all about.

Whatever the number, a great many of those laws—at present they are unidentified—cover devolved areas. Many such laws will become amendable by a UK minister, rather than by this elected Parliament, using proposed so-called Henry VIII powers. That name does an injustice, if such a thing is really possible, to a man who—thankfully—never managed to legislate in Scotland himself.

To quote our report:

“The Committee’s view is that the extent of UK Ministers’ new delegated powers in devolved areas amounts to a significant constitutional change. We have considerable concerns that this has happened and is continuing to happen on an ad hoc and iterative basis without any overarching consideration of the impact on how devolution works.”

As noted by the committee’s adviser, Dr Chris McCorkindale, Brexit

“has posed a number of significant challenges to the effective functioning of the UK constitution.”

In his view,

“territorial tension has been exposed and exacerbated by the relatively weak constitutional safeguards for devolved autonomy”.

All of that means that Brexit is testing to the point of destruction constitutional norms, including those that undoubtedly exist even in a state so bizarrely lacking a written constitution as the UK. The conventions were already under significant strain at a political level, given that UK Prime Ministers, however brief their tenure, have publicly stated that their aim has been to “ignore” Scotland’s Government.

Other members will, no doubt, speak today about the various other areas that we cover in our report, such as the UK-EU trade and co-operation agreement, the protocol on Ireland and Northern Ireland, the changing concept of retained EU law and broader intergovernmental relations. In concluding, I will concentrate on one particular area: legislative consent.

As the committee convener set out, there was a time when the Sewel convention—the assumption that the UK Parliament would not normally seek to legislate on devolved matters without the Scottish Parliament’s consent—went virtually unchallenged as an idea. However, since the Brexit referendum, there has been a complete breakdown of the convention. Notwithstanding the convention’s former political importance as one of the principles behind devolution, the UK Parliament has now begun regularly and routinely to ignore this Parliament when we refuse to consent to being legislated for.

Among the most notable examples of that are such enormously far-reaching pieces of legislation as the European Union (Withdrawal) Act 2018, the European Union (Future Relationship) Act 2020, the Subsidy Control Act 2022 and the Professional Qualifications Act 2022. Most controversially, and as has been alluded to, the United Kingdom Internal Market Act 2020 was likewise passed without this Parliament’s consent. Now the UK Government shows similar signs of disdain for this Parliament’s view on the Retained EU Law (Revocation and Reform) Bill, despite its potentially enormous implications for the question of who makes many laws in devolved areas.

Whether the Sewel convention actually still means very much is now open to question. Indeed, many of our witnesses expressed their doubts about that. One hopes that it still has a more binding force than other conventions that exist only in the sphere of the UK Government’s ministerial code, say, or perhaps the locally varying conventions around when to wave to other motorists on single-track roads.

Professor McHarg pointed out to us that

“The Sewel convention has been severely tested by the Brexit process and its ongoing legislative aftermath.”

The Institute for Government’s view is even more directly expressed:

“Brexit has exposed the convention’s limitations as a guarantee of devolved autonomy.”

That is not a trivial observation or question, and it is not just the many of us of who spent our youths campaigning for a parliamentary democracy in Scotland who are troubled by it.

As our committee’s report makes clear, those fundamental concerns about Westminster’s legislative intentions with regard to Holyrood, and the powers that Holyrood has in law to stop them, are questions on which, as parliamentarians, we would all do well to reflect.

The member has listed some of the areas that are within our control. Does she appreciate that many of us who are here today are angry because the UK is seeking to override the areas that are within our devolved control by legislating in those areas?

We have talked and have asked about whether exemptions around rough shooting might be workable. In our additional call for evidence, we received a comment from the Scottish Animal Welfare Commission, which stated:

“In the commission’s view, extending the bill’s provisions further to accommodate other forms of rough shooting is undesirable and unnecessary. To do so would seriously risk undermining both the legislation’s purpose and its enforcement.”

Did the Government consider that further exemptions in respect of rough shooting would undermine other parts of the bill or the principles of the bill?

No. I mean when the bill was drafted, did the Government consider that attempting to make further allowances around rough shooting would undermine parts of the bill? Was that an issue that you considered?

My question is about the comments that Police Scotland has made on enforceability. You will be familiar with the issue that we have just discussed around what constitutes a pack, but there are other enforcement issues. Police Scotland said that it feels that most people—I think that those were the words that were used—would obey the law, but will those comments be considered when, for instance, guidance or licensing schemes are being formulated?

On the back of that, can you take us through the issues that were considered in reaching an approach whereby there is a difference in the number of dogs that can be used for rough shooting and the number that can be used for other types of shooting, if that is a correct reading of things? Was the safety of wild mammals the primary issue that you considered when you considered this area of the bill?

I am not against that, but I just want to check something. You mentioned a follow-up session earlier. Are we now talking about the same thing?