Chamber and committees

Thank you.

A ridiculous number.

That is very kind.

Thank you.

The point that I am making, though, is that Parliament needs to be able to do more than ask questions, and even more than get answers to questions. Although there is an agreement across the Parliament that the common frameworks architecture should be made to work, individual common frameworks are not put to Parliament for debate, scrutiny and amendment. Once common frameworks have been agreed between the Governments, that effectively constrains the ability of Parliament to legislate. Is there not a similar question to be asked about the common frameworks architecture and where parliamentary authority and the right to decide lie?

That is a little bit in the same sense that there is a massive unanswered question about the right of the devolved jurisdictions to decide in the context of the IMA.

I put on record my apologies for being a few minutes late and missing the cabinet secretary’s initial remarks.

It is probably not unknown for committee members to hear only the evidence that they want to hear. I am bracing myself for the sessions in which we agree a committee report, but I am confident that the majority of the committee will reflect the balance of the evidence that we have heard. I have heard people give evidence that supports the Scottish Government’s position and evidence that departs from it. We have heard a range of evidence, and I want to reflect on it all.

I want to ask two things: first, about the Scottish Government’s position, and then about your understanding of the UK Government’s position. I might regret saying this, but the latter is more likely to direct where we get to with the issue. You not only suggest that the internal market act itself is unnecessary—I am comfortable with that proposition—but that the common frameworks arrangements and architecture are adequate and that we should rest on those in order to ensure market access and so on.

I recognise that the internal market act constrains the Scottish Parliament and Scottish Government’s power, but is it not equally arguable that common frameworks constrain the Scottish Parliament’s power, because they are subject to agreement between Governments? The internal market act might have offered a tolerable way forward if it had been co-legislated—if this Parliament had had an opportunity to debate and amend the bill and to decide whether it agreed to it. If that had been a joint piece of work between two jurisdictions, it might have been an agreeable way forward.

That has not happened with common frameworks, either. Do common frameworks not constrain the power of Parliament and give a little bit of unaccountable power to Governments? Is there a way in which you could see common frameworks evolving to ensure that the bulk of the authority and power rests with the Parliament, which is the body that the Scottish people ultimately gave that authority to when they created this place?

It will always be the case that governments and populations can make democratic decisions that create uncertainty. Brexit is the supreme example of that. In the run-up to that decision, nobody knew which way it would go and the result fell on a knife edge. There were then several years of profound chaos and uncertainty as a result, and we are still living with a lot of the damage of that. However, that does not take away from the fact that there was a democratic process and that decisions can be made. There will always be scope for some uncertainty and unintended consequences. The critical thing is that, when such decisions are being made, you listen to those who warn about the consequences and you make an informed decision about whether those consequences are acceptable.

That was easy. Anyone else?

Yes.

David, do you want to add anything on the types of concrete, practical changes that could be made regarding exemption criteria, burden of proof or anything else that you want to throw into the mix about specific changes that we ought to advocate in our report on this inquiry?

I make no secret of the fact that I am a critic of the internal market act. It strikes fundamentally at respect for the devolution settlement and the ability of the Scottish Parliament and the Scottish Government to make the decisions that the Scottish people have given those bodies the authority to make. In reality, however, we know that it is not about to be abolished. The UK Government is not going to make such a sweeping change. It might not even perform major surgery on the act, but there is some scope for specific tweaks, and I want to ask you about some of the specific proposals that have come from other witnesses in the inquiry.

There is recognition of the desire for certainty but, as Marc Strathie said, it is about striking a balance. There will never be 100 per cent certainty and there will be circumstances in which divergence is justified. That is a political decision and one that is subject to democratic accountability.

One of the arguments for change is that the broad, undefined discretion that the UK Government has on the exemptions process should be replaced with a specific and defined set of criteria for exemptions. It seems to me that that would give some greater clarity and certainty to Governments and stakeholders about how the act operates and how decisions would be made. Another proposal is to set a threshold for the burden of proof, if you like, in relation to what the UK Government would have to demonstrate as a justification for denying an exemption.

I put the case that those kinds of changes would strike a better balance between giving clarity to Governments and stakeholders and respecting the democratic legitimacy of the different levels of Government. Would you be comfortable with that kind of change?