Culture, Tourism, Europe and External Relations Committee

Meeting date: Thursday, March 15, 2018

Official Report 583KB pdf

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UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill

Our third item of business is an evidence session on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill with the Minister for UK Negotiations on Scotland’s Place in Europe. The Parliament agreed to designate the Finance and Constitution Committee as the lead committee and the Culture, Tourism, Europe and External Relations Committee as the secondary committee for consideration of the bill.

I welcome the minister, Michael Russell, and his officials, Luke McBratney, constitution and UK policy officer, and Ian Davidson, head of constitution and UK relations at the Scottish Government.

Before we move to the detail of the bill, minister, I know that you were rather tied up in Parliament and were unable to attend the plenary meeting with the First Minister yesterday. Are you in a position to update us on what happened there? Can you share anything with us about your previous joint ministerial committee (EU negotiations) meeting?

I am happy to do so. I had intended to support the First Minister at the Downing Street meeting yesterday, but I was otherwise engaged here.

At the meeting, the Prime Minister, the Welsh First Minister and our own First Minister all expressed the sentiment of endeavouring to secure an agreement between the three nations that are involved on the issues relating to the bill that are still outstanding. It is fair to say that the First Ministers of Scotland and Wales were very clear about what would be required to secure that agreement, particularly on the issue of consent coming from those legislatures to any proposal from the UK Government to establish frameworks. That issue has bedevilled us during the entire discussion. A great deal of work has been done on frameworks, and you will have seen the list of 111 items that I issued yesterday and the list of 153 that the UK Government produced last Thursday. Issuing a new list of that nature without consultation or even giving it to the ministers was not helpful in building trust, and was the wrong thing to do—I hope that that is taken in the best spirit.

We have done a lot of work. If the UK Government’s intention is to seek the consent of the legislatures on any items in that last group of 24 or 25 items, and if a procedure is agreed for adding any items should that be required—that has been an issue for the UK Government—an agreement can be found. If there is no willingness to do that, an agreement cannot be found, which is where we find ourselves.

That was also the issue at the JMC(EN) last week. At the JMC(EN) that took place at the proposal of Mark Drakeford, from Wales, there was a trilateral of David Lidington, Mark Drakeford and myself to see whether we could break the logjam. Mr Lidington chose to make that a full meeting of the JMC(EN), which was not helpful in the sense that informal discussion sometimes has a chance of producing results when formal discussion does not.

That said, we held the meeting, we rehearsed our positions and the Scottish and Welsh Governments brought to the table some new ideas, including the idea of a written agreement that would make it clear that consent would not be unreasonably withheld. That was added to by a UK minister, who thought that a proposal should not be unreasonably made, which seems like a nice, neat balance. We have not had a formal response to that suggestion as yet, and those discussions will continue.

I understand that David Lidington renewed his commitment at the joint ministerial committee plenary to continue to have discussions and he said that he would be willing to come to Edinburgh or Cardiff, if necessary. I hope that we will have those discussions.

A number of members want to ask questions on that specific area before we move on to the detail of the bill.

In essence, that issue determines whether the Scottish Government wishes to proceed with the continuity bill here in Scotland. Agreement on the matter of consent would facilitate an agreement and, I assume, unlock the necessity for the bill to proceed. I think the First Minister was the first politician—if I can put it so directly—who, in an answer at First Minister’s question time, identified consent as being the nub of the issue. Discussions were taking place and rumours about the final hurdle were here, there and everywhere, but the First Minister crystallised the argument around the word “consent”.

I realise that discussions are on-going and I do not want to prejudice them at all. However, in so far as all parties in the Scottish Parliament have understood the concern that the Scottish Government has about consultation as opposed to consent, does the Scottish Government understand—even if it does not support it—the UK Government’s concern about the use of the word “consent” as opposed to the word “consult”? I have never been clear that it does. I understand the issue that underpins the Scottish Government’s concerns, but does the Scottish Government understand the UK Government’s reservation?

I might be optimistic in thinking that that is the case because of what has been said about consent not being unreasonably withheld and about requests not being unreasonably made, which seems to finesse around the same point. I have heard it said that, given the history of everything that has gone on, it is difficult for the Scottish Government to trust the UK Government. At the same time, however, it is saying that it would like the UK Government to trust that the Scottish Government would not unreasonably withhold consent. I think that Alex Neil asked in the chamber whether there is a process for having a discussion that finesses those two positions into one that is resolvable, and I am trying to understand whether something is happening to facilitate that.

I am sorry if I went on rather long, but I hope that I am getting to the heart of the issue.

You are getting to the heart of it. Let me start by saying that I would be happy to finesse the issue—many fine minds in the civil service on both sides of the border have been devoted to that—but by “finesse” I do not mean “fudge”. There cannot be fudging of the issue.

We understand—we have understood for a considerable period—the UK Government’s concerns. They were concerns that surprised us. Let me roll this all the way back to the first discussion that I had with David Davis about the detail of the withdrawal bill, at the start of July last year. I do not say this critically, but there was a lack of knowledge of the devolution settlement and, particularly, of the fact that the UK Government has the power to stop things happening or to reverse decisions of the Scottish Parliament. That power exists in the Scotland Act 1998, which is, at the end of the day, sovereign. I do not say that with happiness; it is not what I want to be the case, but it is the reality.

If, as I believe it is, the UK Government is afraid that we will behave in what it sees as an irrational manner or—to put it more positively—in a manner that is contrary to what it believes to be in the United Kingdom’s interests, and wants the ability to prevent our doing so, it already has that power, which the Scotland Act 1998 gives it. Why would it want another power so to do? It took a long time for it to be understood in London that that power exists. I pay tribute to Mr Carlaw and others who have worked hard to understand the situation. I am not asking you to confirm this, Mr Carlaw, but I am sure that you have found that there is a lack of detailed knowledge of devolution on the part of the UK Government and its officials.

The issue became how we gave the UK Government that reassurance. Equally, we had to be clear in our minds about what would and would not work for us. We have been pretty methodical in applying tests to where we are. We tend to work like that, and we did it at the start of the process, when we discussed with Damian Green the principles that would underpin the process of setting up frameworks. We were keen to have a rational, criteria-driven approach. Damian Green understood that and agreed, and we got the principles established.

We have applied four tests to what is taking place and what might come out of it, and I am happy to put them on the record, because I do not think that it does any harm to do so. The first test is that the scope of any power and the circumstances in which it would be used must be agreed, as must the exercise of the power. That test is very clear, and it respects the devolution settlement. Secondly, any constraint must apply equally to all the Administrations. Thirdly, any power of constraint on orders made under the withdrawal bill should, as is generally the case with powers used under the bill, expire automatically after a defined period—sunsetting, in other words. Fourthly, the devolved legislatures should exercise at least the same degree of scrutiny over orders and the frameworks that flow from them as the UK Parliament does.

Those are clear tests. The unlocking of those tests comes in the first test, because, if we accept the first test, the others flow from it. We could have a form of words that covers the other tests, but we cannot have a form of words that does anything with the first test—it is binary: it either is passed or is not. The backstop that the UK Government wishes to have is the obstacle to getting the first test passed. As we contend, a backstop exists in the Scotland Act 1998, so there is no need for an additional, unnecessary backstop, which is derailing the process. That is the debate.

As you said, this will depend on trust. How do we reassure people of what we are trying to do and how do we reassure people that there is no Trojan horse in this? In the context of the independence referendum, the answer was to have a written agreement about a range of things, which allowed matters to go forward. If we were to have the first test accepted and passed, we should enshrine it in some sort of written agreement that is visible and public and that says that no one is going to propose things that are unreasonable or withhold consent unreasonably. That is still a way forward but, first, the Administrations must accept that they can and will meet those tests—that is the issue.

The House of Lords will have to confront that issue as well. It will consider those items for the first time next Monday, I think. There will be no resolution, because there is no expectation of a vote. There has not yet been a vote at the committee stage in the House of Lords, and that is not normally what the House of Lords does. However, I presume that, when the withdrawal bill returns at the report stage, after Easter, there will be a vote on the amendment that has been tabled by the UK Government—which, it is important to say, does not meet those tests—and any other amendments that have been tabled.

10:30  

I am grateful for all of that. Of course, the distinction between this process and the Scottish independence-type discussions is that those discussions would have been between Scotland and the rest of the United Kingdom whereas the frameworks that we are talking about involve the three devolved Administrations and Westminster, and the Scottish Government has just as much of a vested interest in the not unreasonably withheld or asked question. In a matter affecting a UK framework, which could be just as important to any trading organisation or economic factor in Scotland, none of those Administrations would want to find that the discussion was being prejudiced by a dispute the origin of which was absolutely nothing to do with the issue at hand but was motivated by something completely different. Is it not the case that having four parties to the framework means that there must be a mechanism by which we can ensure that the process can proceed across the territories of all four of them—across the United Kingdom? That is different from the kind of bilateral arrangement that you may have been referring to.

No, I was not—I want to be clear about that. Any agreement would be between three parties, certainly. An agreement with Northern Ireland is difficult to envisage, because there is no Administration or Parliament there just now, and I do not think that the civil service could enter into an agreement. In a sense, the United Kingdom Government might be agreeing with itself in Northern Ireland, given the way that things are.

For the moment.

For the moment. However, at the moment, that would be a multilateral space.

I want to challenge you a little on the issue of trade. For the United Kingdom Government, this is clearly about trade. There are wider issues, but this is about trade. What we seek is a normal part of the trading relationship with a range of countries. The Prime Minister keeps holding up the Canadian treaty as an example. If we were going to negotiate a trade treaty with Canada—which is, admittedly, a federation—that would be done on the basis that, where the powers of the provinces relate to items within the treaty, it would require the agreement of the provinces. That is part of the constitutional settlement and, therefore, it is taken as read—that is how negotiations proceed. The same principle applies, for example, to Belgium’s relationship with the EU. Rights are given and they are exercised responsibly, although there can, of course, be exceptions. The position taken by one of the Belgian Parliaments in relation to the Canadian treaty is an example.

I will make a point that I made to David Lidington last week. We need to establish the principle, and we can then legislate for the exceptions. In this circumstance, if the principle that there must be consent is accepted, we can legislate for circumstances in which there are difficulties as they arise. The United Kingdom Government has started with the difficulties and exemptions and is now trying to derive a general principle from those. With the greatest respect, I suggest that that is the wrong way to argue this. I have made it clear that the tests are for the general principle. If we can agree that principle, the exemptions and difficulties can be dealt with and allowed for.

Richard Lochhead has indicated that he wants to come in. Is the question on negotiations?

Yes. My question is on negotiations of consent. I struggle with Jackson Carlow’s view that there is an easy bridging between the principles of consent and consultation—they are two fundamentally different principles. Can the minister assure me that he will continue to pursue the line that we will accept only the principle of consent, and that there will not be goodwill agreements or frameworks agreed to outwith the legislation that would weaken that principle?

The First Minister has made it absolutely clear that she could not consider coming to Parliament and recommending that Parliament accept an agreement with the UK Government that does not meet the test as I have put it: the scope of any power and the circumstances in which it would be used must be agreed, as must the exercise of the power. That is the basic requirement. Carwyn Jones has said exactly the same thing; he could not see himself going to the Welsh Assembly in those circumstances. That is the basic issue that is at the heart of the matter. If that issue is resolved, progress can be made.

Mr Carlaw raised the question of the continuity bill. The bill is perfectly operable. It has been improved by extensive scrutiny and will, no doubt, continue to be improved. The very last thing that we did last night was agree to an amendment in the name of Liam Kerr to remove the phrase

“or any provision of this Act”

from section 37(1), which says:

“The Scottish Ministers may by regulations repeal this Act”.

The choice, again, is binary: the act will either be in force or be repealed. Section 37(2) reads:

“Regulations under subsection (1) are subject to the affirmative procedure.”

There it is: the act can be repealed. We can introduce regulations for Parliament to approve and we have said that we will do so, provided that the tests are met and that consent is given.

The presentation of the issue and the public discourse around it has tended to concentrate on the 25 areas on which the UK Government says discussion on legislative frameworks is needed. However, in your letter to MSPs, you emphasise that the UK withdrawal bill as drafted will allow the UK Government to constrain the powers of the Scottish Parliament in any devolved area—it could take any devolved power and put it in its basket. Is there an understanding that that is what the withdrawal bill is doing? How hopeful are you that we will get agreement on that aspect of the withdrawal bill?

We are talking about areas of intersection—we are not yet at the stage at which absolutely any devolved power could be removed. It is right for the Scottish Government to be always mindful of the threat to devolution; that is what we are there for. We may have other political objectives—I do, as do you, convener—but it is the role and responsibility of the Scottish Government in this to ensure that the devolved settlement is not undermined and that we do not lose power; indeed, we are talking about gaining more powers.

In those circumstances, we are currently talking about areas of EU intersection. Anything on the list could move from the first category, which is things that the UK Government is not really concerned about, to the new category, which is things that UK Government now believes are reserved. That may sound silly, but often lawyers can argue any convincing case and might well do so—although I am not badmouthing lawyers. The problems that we have are that the list is not agreed, the list that we thought that we were getting close to agreeing has changed without any notification—a difficult thing to have happened—and there are some very important things on the list that will be subject to freezing or re-reservation.

People might have just shrugged about agricultural support, for example, which appeared on the December list, but it covers

“Policies and Regulations under the EU Common Agricultural Policy covering Pillar 1 (income and market support); Pillar 2 (rural growth, agri-environment, agricultural productivity grants or services and organic conversion and maintenance grants); and cross-cutting issues, including cross compliance, finance & controls.”

I do not have to tell Richard Lochhead what that means; it is absolutely at the centre of agriculture in Scotland. Moreover, that gives the lie to the argument that those are items that are held only in Brussels, because the way in which support is given and defined can be, and is, altered in Scotland. I have used the example of less favoured area payments before; there are others. Those are active issues.

Agriculture, animal welfare and chemical regulation are very important. In my constituency, there is an ongoing argument about use of neonicotinoids and their possible effect on private water supplies. I have constituents who will be immensely worried that control over that will be moving from the Scottish Parliament and Government to elsewhere.

Let us consider what other areas are on the list. Food and feed safety and hygiene laws are so important for our food and drink industries, as is environmental quality. I look at all that stuff and feel very concerned. Mutual recognition of professional qualifications sounds dull, but it is exceptionally important to the health service and other areas. Public procurement—which we debated in the chamber yesterday—is worth a vast amount of money. We are talking about extremely serious matters that we are required to defend in the interests of Scotland. We could have agreement on them, provided that the issue of consent is recognised.

Before I bring in Claire Baker, Rachael Hamilton has a supplementary.

It is clear that the common frameworks are very important. You said that your fourth test is to have the same level of scrutiny of common frameworks as the UK Government. How will you scrutinise the common frameworks? How will you represent the views of Scottish businesses on water quality and food labelling, for example? It appears that the general public believe that a power grab is taking place, but do they understand the implications of common frameworks? How will that be translated into your scrutiny?

I want to separate the tests from Rachael Hamilton’s more general question. I repeat what I said about the fourth test: the devolved legislatures—that includes all of us; in other words, the Parliament—should exercise at least the level of scrutiny over orders and the frameworks that flow from them as the UK Parliament will exercise. That is an issue of parliamentary democracy. Even after stage 2, I am still talking about the bona fides of that. What I am saying is that we believe that, if the UK Parliament has a role, the Scottish Parliament and the National Assembly for Wales should, too.

I have said what I think the issues are about frameworks. I do not think that removing responsibility for food safety and food labelling from the Scottish Parliament in a way that is not time limited and over which we would have no control would be of benefit to Scotland’s food and drink industries, nor do they believe that that will be the case.

With devolution, the principle of subsidiarity applies. What is the right place for decisions to be made? This is an argument that goes a long way back. There was an exhibition outside the chamber, I think two weeks ago, of the work of John P Mackintosh, who is quoted above the reading room door. I am old enough to have served on John P’s rectorial committee at the University of Edinburgh. John P Mackintosh was a political scientist as well as an active politician, and he wrote extensively on subsidiarity and why it is important. Subsidiarity drove the process of establishing this Parliament. It is the principle that underlies the common frameworks, and it is one that people understand.

If I talk to farmers or people who are concerned about neonicotinoids in my constituency, I tell them that they can raise issues with me and I can make representations on them as a constituency MSP—as Rachael Hamilton can. However, if we go down the route that the UK Government is taking, that will not be possible. Our responsibility for such areas would go, and we do not know when we would get them back or what state they would be in when we got them back. Agreement that there will be participation by the devolved legislatures is very important, as is the work that we do together to ensure that the frameworks benefit us all. That is what has been going on—we have been developing a way in which they will work together.

The principles that Damian Green agreed to were crucial. Under those principles,

“Common frameworks will be established where they are necessary in order to”,

deal with a range of things that are listed. The principles also state:

“Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures”.

That includes Rachael Hamilton’s constituents and my constituents, to whom we are reporting on this issue. Another principle is that

“Frameworks will ensure recognition of the economic and social linkages between Northern Ireland and Ireland and that Northern Ireland will be the only part of the UK that shares a land frontier with the EU. They will also adhere to the Belfast Agreement.”

In other words, we said that we recognise the wider context and that we are all committed to getting it right.

I am interested in the scenarios that we might face once the continuity bill is passed, which is set to happen next week. When we took evidence last week, we discussed with Professor Nicola McEwen the three options that are set out in the policy memorandum. I was particularly interested in the middle way, which deals with what might happen if the continuity bill and the European Union (Withdrawal) Bill are both passed. There is a suggestion that there could be qualified withholding of consent by the Scottish Parliament, in which case the two bills would merge in some way. Could you provide more detail on how that would work?

10:45  

The continuity bill was very carefully and well drafted and has been improved further by scrutiny and amendment. Therefore, we have a bill that is capable of operating. In the last statement that I made to the Finance and Constitution Committee last night—at whatever hour we were doing it—I made a commitment that I will not seek to overturn amendments that were made to the bill at stage 2 merely because I want to get my own way. I will bring back changes only if I believe that amendments are not operable. I want to have a bill that is operable and functional.

A number of things could happen. It could be that section 37 is used and we bring in regulation to repeal the continuity act because we have achieved agreement with the UK Government. We would repeal the continuity act and agree a legislative consent motion. That would have to happen by the last amending stage of the withdrawal bill, which would be the report stage in the House of Lords, which will be some time after Easter. There is slight vagueness about that because, as I understand it, it is possible to amend a bill at the third reading stage in the House of Lords, but we are expecting that it will happen at the report stage. That is one scenario: the legislative consent motion is passed and we say that we have all done a great job; we have a bill that works well, and we have accepted the circumstances.

If there is not agreement on the withdrawal bill, we would have to operate the continuity legislation, which is operable. With good will, the continuity bill could work with the UK Government; it has been drafted so to do. That is why we have followed the UK bill very closely, and why the Welsh have taken the same approach. Therefore, we might find ourselves in a situation in which we operate our act, and the UK act operates—shorn, of course, of the parts to which we have not given consent, which is important—so that the two operate together and we try to work together.

We would, for example, try to co-operate on a programme of secondary legislation that would reflect the reality of the situation that we would be in. I do not think that that would be difficult, but it would not be our first choice, which remains to get an agreement with the UK Government.

I agree that agreement between the two Governments would be far better, but I want to understand how that process would work if we are not in that situation and the two bills are passed. Would it need the agreement of the UK Government for both acts to be operable? Would one take precedence over the other? It is not the best language to use, but my assumption is that the UK legislation would trump the Scottish Parliament’s legislation if we were to end up there.

That would depend on what the UK Government chose to do. That is the final option, but there are a number of options within that. I am honestly not trying to complicate the situation any more that it is; I would simplify it, if I could.

We would have a range of options. At the absolutely extreme end, the continuity bill is challenged by the UK Government through the Advocate General or the Attorney General and it goes to the Supreme Court. We would then go along another part of the branch diagram, on which the Supreme Court would say either that the continuity legislation is entirely legitimate and constitutional or that it is not. I am absolutely confident that it would say that the legislation is within the rights of this Parliament. By grinning, Mr Carlaw seems to mean that he does not agree with me—which will not be a surprise to anybody who knows us or who knows this Parliament.

If the continuity act were judged to be within the competence of the Parliament, it would be up to the UK Government to say, “Even if that is the case, we don’t want it” and to use its power under the Scotland Act 1998. Alternatively, it could choose to accept that there will not be a legislative consent motion, which would of course apply only to parts of the bill, and to take out those parts of the bill and find a way for us to work together. That would be perfectly possible. The continuity bill is designed so that that could be done. It would be irresponsible of us to bring to Parliament anything that could not do that.

That is where we are; in the end, those are all decisions that the UK Government must make; it has to decide whether it wants an agreement on the basis that I have outlined. If it does not or cannot move in that direction, it will have to decide whether to challenge the continuity legislation or live with it and accept that it will not get a legislative consent motion. Then, of course, we would have to see what the view of the House of Lords would be of there being no legislative consent motion but a desire in the UK Government to overrule an act that had been legitimately passed in the chamber of this Parliament. I do not want that to happen.

The best solution is the one on which Claire Baker and I agree, which is to get agreement with the UK Government. If that happens, and assuming that the continuity bill is passed next week, section 37 of the continuity act would come into play. I make that commitment again here, as I have done every day, several times a day, for the past few weeks. That is what will happen.

The European Commission’s draft negotiating guidelines on the future relationship state that a free trade agreement

“cannot offer the same benefits as Membership and cannot amount to participation in the Single Market or parts thereof.”

What is your view on those guidelines?

The guidelines are clear and they are not a surprise. Six months ago in Brussels, I was having discussions in which people were saying to me, “If the UK Government has these red lines, this is what the outcome will be, because there is no way round that.” People were saying, “If that is absolutely where the UK Government stands, this is what happens.” At the start of “Scotland’s Place in Europe: People, Jobs and Investment”—I usually have a copy to wave around, but I have left it somewhere because other things have been happening this week—there is an EU Commission diagram that shows that to be the case. It shows the type of arrangements that the EU has come to with other countries, such as European Economic Area membership, the special arrangements with Ukraine and Turkey and the Canadian treaty. That shows the direction in which the red lines are driving us.

The Commission has made it absolutely clear that the outcome is predicated on the existence of the red lines. If the red lines change, the possible outcome changes, but whether it is in membership of the EU or membership of a golf club, you cannot say that you intend to have all the benefits of membership but not observe the rules. With a golf club, you cannot say that you intend to turn up every morning, play 18 holes, go to the bar, have lunch, play another 18 holes, go to the bar in the evening and go to all the social events but not pay any fee and absolutely not abide by the rules, so that, no matter what the draw is and whether the course is closed or open, you will keep doing that. That just is not possible. Simply, you cannot be a member of the club and not observe the rules.

We then get the ludicrous spectacle of the people who believe that that is possible blaming the EU for having its rules and saying that it is making us a victim. The EU is simply saying, “We deeply regret that you do not want to be a member of the club but, if that is your decision, there are consequences that flow from that.” That is not victimising or bullying; it is just saying what the legal situation is.

Last week, there was a lot of press coverage and publicity about reciprocal access to fishing waters. What is the Scottish Government’s view on the provision on that in the guidelines? How can that issue progress from here?

At the weekend, there was an intervention on that issue from Ruth Davidson and Michael Gove, who called for the UK to leave the common fisheries policy on 29 March 2019. They said that, from that moment, or at least when coastal state status kicks in, everything would be as they promised to fishermen in Scotland during the referendum and thereafter—promises that were repeated by members of the Scottish Parliament in the north-east of Scotland and in the chamber.

There are two problems with that. One is that, at the same time, the UK Government is endeavouring to negotiate a continuation for a period of time, which requires observing the acquis communautaire—not cherry picking from the acquis but observing it. There has never been an indication at any time that fishing will be exempted from that. Indeed, I asked David Davis that question directly at the JMC(EN) in October and I have continued to ask it, and I have always had the same reply, which is that fishing will be included. Therefore, what was promised and continues to be promised cannot be achieved. I therefore perhaps understand why Michael Gove and Ruth Davidson are making a bit of a noise—it is because they are about to be found out.

The second issue is that the United Kingdom Government has form—indeed, all United Kingdom Governments have had form on this—in taking Scottish assets such as fishing and trading them away for advantage to itself. Again, I think that Mr Gove and Ms Davidson recognise that that action is presently under way. They might be trying to stop it—I do not know, but the UK Government’s track record on this is quite clear. That is where those things are going.

There is a third problem that Michel Barnier and others have clearly set out. When he was in Jutland two weeks ago, talking to Danish fishermen, M Barnier made clear what has always been the case: access to water and trade are inextricably linked. Indeed, the UK Government knows that. For example, it knows that Iceland and Norway, as members of the European Economic Area, accept tariffs that increase the costs of their fish exports so that they can have exclusive access to and negotiate their own waters. The idea that was very much put about during and after the referendum, particularly in the north-east, that there is some magic squaring of this circle and that tariffs and access are not linked was—and this is being kind—magical thinking. Some might simply call it being deceitful about the matter.

That is the reality of where we are. We do not want Scottish waters to be traded away; indeed, we have always opposed that. Moreover, we have always argued for local management. We do not think that the common fisheries policy has been successful—of course it has not—and we think that it needs to be replaced; however, we are also opposed to people saying things that are not true. Eventually, they will get found out.

Finally, before this evidence session, we took evidence from a panel on possible future trading arrangements. Certain sectors and industries in Scotland are perhaps of greater importance to us than they are to the UK as a whole, and we heard evidence from the trade justice Scotland coalition on the current democratic deficit with regard to our input into the Trade Bill and the on-going discussions around it. What discussions are under way between the Scottish and UK Governments on ensuring that the Scottish Parliament and Government have a meaningful say in these things, especially in negotiations and discussions on trade?

There are two areas of importance in this respect, the first of which is a resolution to the present difficulty over the withdrawal bill. If that happens, it becomes easier to have discussions and build trust.

The second area is the commitment from the UK Government to bringing to the JMC(EN) a paper on the involvement of the devolved Administrations in the negotiating process. We have not seen that paper, and we do not know what will be in it, but Mark Drakeford and I have been making this particular point for well over a year now, because it is germane to the issue that you have raised of how we develop a negotiating stance on matters that pertain to devolved competence.

We have also tried to make it understood that the issue of different circumstances applies. An example outwith the trade area in that respect is migration. As is clear from the evidence that we developed for the Migration Advisory Committee, which has been published and debated in the chamber, Scotland is much more dependent on EU migration than the rest of the UK is. That needs to be understood in the development of migration policy, but it has been really hard to get it understood. I had a conversation with the UK minister in which it seemed to me that, in his mind, he was equating the situation in Scotland with the situation in the construction industry, which is experiencing a shortfall in workers and is saying, “We have a problem with migration.” I pointed out to him that this is perhaps something that needs to be understood in a different sense. If you represent, as I do, an extreme rural constituency that is losing and cannot renew its population—to be blunt, we are not breeding fast enough—you need migration. If you do not have it, you will continue to have depopulation and services will continue to diminish. That is the reality.

The only migration that works in this regard and which has worked over the last period has been European migration. It has been easy for people to come and go; some of them stay for a long time, some for ever and others for just a brief period. We need a solution that mirrors freedom of movement, and we need to make sure that that is understood. The same applies to trade and a whole pattern of other issues; we need to get that across, and through our discussions with the UK Government and through the frameworks, which specifically mention this issue, we need to ensure that the UK Government recognises the relative impacts of all of this. Of course, the UK Government’s own work on economic impact shows how severe the impact will be on different parts of the United Kingdom.

I have a couple of supplementaries to Mairi Gougeon’s questions. First, you mentioned that you are preparing a paper with Mark Drakeford. Can you indicate when that will be published?

11:00  

We are not preparing that paper. What I said was that the UK Government is bringing us a paper on the issue of involvement in negotiations. Obviously, that will be a JMC paper, so it will be within the confidential space of the JMC. However, the outcomes of that—if there are any outcomes of it—will obviously be a matter of reporting to the Scottish Parliament.

I picked you up wrongly there, so thanks for clarifying that.

On the other issue, Mairi Gougeon referred to the panel of trade experts that we had here before our evidence session with you. At the end of that session, Dr Gracia Marin Duran, a lecturer in economic law at University College London, was asked about geographical indicators. Her interesting response was that the EU was very keen to protect its own geographical indicators. She did not see a particular problem for the UK in terms of that negotiation with the EU, but the rules for other trade agreements outwith the EU are a lot less easy to enforce. Given that geographical indicators are one of the areas that the UK Government has said that it is keeping for itself, what are the problems in that regard?

I think that they are pretty severe. It could be a useful European discussion, because it would be better to have a pan-European system. Although there was antipathy to the geographical indicators system, in the end it seemed to be so necessary that even the United Kingdom Government could not resist it. If it is determined to have its own system, the question arises of what validity and recognition the system will have in the international sphere and whether it is something that could be traded away. Whisky is a good example, because there is a clear definition of whisky, particularly malt whisky. However, for a long time, the United States wanted to change that definition because it wants to get into markets and be able to call things what they are not.

Given those circumstances, there might be a tough set of trade negotiations. The naivety of those who believe that the United States’ sentiment would overrule its hard practical edge and that there would be no difficulty in having the most beneficial trading arrangement with the United States has been given a bit of a dunt in recent days by the Trump Administration’s actions. Negotiating trading arrangements is going to be a tough business. I noticed today that the process has started to try to get an indicator for Scottish venison, which is something in which the Scottish Government has been deeply involved. It is highly likely that people will be able to ignore such an indicator if we are not part of the European system.

Good morning, minister. The stage 3 process for the continuity bill will take place next week, but the withdrawal bill is estimated to finish its passage at Westminster around May. Can you explain the time difference between the bills? Is there any particular reason why you want the continuity bill process to finish earlier?

Yes, and I will briefly explain it. However, I will also have copied to the committee a letter, which committee members might have seen, that I sent to the Delegated Powers and Law Reform Committee at some stage in the past fortnight—the days are blending together—that gives the legal reasons why we have to get the continuity bill passed within the timescale that we have set out and before the UK withdrawal bill gets royal assent. There are legal reasons within the withdrawal bill itself.

There is a clear practicality involved in this. We have spent a lot of time—many hours and days—trying to get an agreement with the UK Government. It is no secret—indeed, we have talked about it openly—that we have been discussing continuity bills with the Welsh since last summer and have had useful discussions on whether a continuity bill would be a route that we could follow. However, we have always felt and continue to feel that the UK agreement would be better.

Eventually, though, with the clock ticking, the requirement for us to have the continuity bill passed and sent for royal assent within the timescale of the UK withdrawal bill and before that bill gets royal assent itself meant that we were getting to the last moment when that could be done. We held off for as long as we could, but in the end we could hold off no longer. We have exactly the same timetable as the Welsh Government; indeed, I think that its bill will reach stage 3 on the same day as ours.

Another issue is that, for us, the process of royal assent is longer than that in the UK bill process. We have a month’s lying time, as I think you could call it, before a bill can be given royal assent, and during that time it can be legally challenged by the Lord Advocate, the Advocate General or the Attorney General. The time between the stage 3 process and royal assent is, I believe, about five weeks, whereas a UK bill can be given royal assent within a day or so. Is that right?

It can happen quickly.

For us, the process contains a period of time where we have to do things that the UK Government does not have to do.

It is not certain when the UK bill will be passed. The House of Lords report stage should happen after Easter; it has been running behind, but it might catch up. There will then be the final reading, followed by what is called ping-pong. If the Lords make changes to the bill, the Commons will be asked not to accept them, and the bill will go backwards and forwards. Royal assent for the withdrawal bill is likely to be given around the third week in May, providing that the UK Parliament keeps to the timetable. We hope that our bill will have received assent by that time, too.

I am on the DPLR Committee—

You are, and you have questioned me on this before.

Indeed, and one of the issues that came up was that of the secondary legislation as well as other primary legislation that would emanate from the UK’s leaving the EU. It is estimated that some 300 pieces of secondary legislation will require to come through this Parliament. Do you think that the Parliament has the necessary staff to deal with all that in such a short space of time?

It will have to. We would have this burden, no matter what took place. I oppose leaving, as it is a wasteful black hole that is sucking in energy, initiative and money unnecessarily, but unfortunately we are engaged in the process, even though we did not vote for it. We will have to do these things, and we are organising ourselves to do them. The number is estimated at 300, but I suspect that it will turn out to be more. We can work in collaboration with the UK Government—indeed, we intend to do so, no matter what happens—but it is going to be a heavy burden.

There is also the cost. The Chancellor of the Exchequer has given an allocation of money for this, and some of that will come to Scotland. The allocation will have to be discussed, but it might not be enough. We will just have to get on and do the job, and people are committed to it. It has been a difficult, interesting and unusual couple of weeks, but all the officials, including those in the Parliament, who have engaged in this process have risen to the challenge tremendously. There will be challenges ahead, but I am confident that they will rise to them.

Have discussions started on how much of the resource will come to Scotland?

Yes, although that is a matter for Mr Mackay rather than for me. My understanding is that that is the case. Discussions are also well under way on preparations, but perhaps my officials will want to say something about the issue.

This is closely linked to Ms Baker’s earlier point about the three scenarios that the bill is preparing for. Since December 2016, when “Scotland’s Place in Europe” was published, the Scottish Government’s consistent position has been that the best scenario for discharging the responsibility to prepare our legislation for EU withdrawal was a single bill and a single scheme, because it provides the maximum opportunities for co-ordination between the Governments.

The bill’s policy memorandum indicates the situations where we hope that that will take place. Where the required changes are technical and uncontroversial, or where they are the same or similar across the UK’s jurisdictions, they can be made at UK level, with the appropriate involvement of the devolved institutions. I believe that Mr Russell explored with Ms Baker earlier the opportunities for attempting to maintain as much of that co-operation as possible, even if the continuity bill ultimately has to come into operation.

That was helpful.

Finally, will the legal text of the withdrawal agreement and the negotiating guidelines for the future relationship have an impact on the continuity bill’s provisions?

It is difficult to say. There is a linkage between everything in this process. If I had to, I would point to the operation of frameworks, particularly with regard to the Northern Irish situation. Indeed, I have already highlighted the final principle with regard to the frameworks. The Northern Ireland situation requires to be resolved, and it is difficult to see that happening without a degree of regulatory alignment north and south. If Northern Ireland is part of a framework on, say, agriculture in which there is regulatory alignment between Northern Ireland and Ireland, with the result that the European system operates in Northern Ireland, how do we work with that with regard to the framework? Clearly, a framework implies regulatory alignment between the parties in it. Do we, then, enter into regulatory alignment with the rest of the EU? When I raise that question, I tend to get a sort of “We’re thinking about that” reaction. However, it is an issue, and if it applies to agriculture, it will apply across the board in a variety of other places.

There are linkages, and we are aware of them. With regard to the issue that Mairi Gougeon raised, for example, the negotiating guidelines raise issues for us in terms of the UK’s red lines and why, as we believe, they are misplaced. Another issue that they raise is the engagement of the devolved Administrations, which represent the devolved competences in a process in which devolved competences will be part of the negotiations. Those are linkages.

Can you clarify what you said about the UK Government bringing forward a paper on devolved involvement in future trade negotiations? Is the expectation that, if agreed, this paper will lead to amendments to the Trade Bill? If not, is it still the position of the Scottish Government that the bill will need to be amended?

Just to clarify, I was not talking about involvement in trade negotiations; I was talking about involvement in the negotiations with the EU on future status and all the associated issues. The issue in the paper that the UK Government is bringing forward and which has been on the table for some considerable time is how the devolved Administrations become engaged in and influence that process in the areas of devolved competence.

We might also argue that there are areas outwith devolved competence in which we should also be engaged; indeed, I have used the example of migration in that regard. The paper, if it is agreed, will presumably allow us to influence what happens in the negotiations in some way, and that, in turn, will allow us to influence the outcomes and how they are put into legislation.

If we are aware of what is happening and if we can influence it—and the outcomes—in a genuine way, we will presumably be in a better position to ensure that any legislation or action that flows from the negotiations, including trade action, is influenced by our view, the Welsh view and, I hope, the Northern Irish view.

Thank you, and I apologise for misunderstanding what you said.

It is still the Scottish Government’s position that the Parliament should not grant legislative consent to the Trade Bill. As for the withdrawal bill, it was quite clear that the process would result in an alternative bill being put forward by the Scottish Government. What is the endgame if the Trade Bill is not amended satisfactorily?

It depends on the agreement on the EU withdrawal bill, because the issue is substantially the same. It is the issue of consent, and its resolution will apply not only to the Trade Bill, which we have seen, but to bills that we have not seen. Presumably, therefore—I say presumably, because we do not have this guarantee—those bills will do two things: they will recognise the devolved competences and the need for consent, and they will also recognise the need for an active process of legislative consent in this Parliament. In other words, Sewel will apply.

The reason why I have been inactive with regard to the Trade Bill is that I am not the trade minister. Keith Brown is responsible for that area, and he is taking the issue forward. To the extent that I am involved in it, it is because it involves the same issue that has arisen with regard to the EU withdrawal bill and which we must resolve.

I have always said that the EU withdrawal bill is a gatekeeper bill. If you get that one right, it opens the gate to getting the rest right. If you get it wrong, or if there is no agreement, you are going to have a continuing disagreement on every piece of legislation. I cannot say that I look forward to that.

We are out of time, so I thank the minister and his officials for giving evidence today. We will now move into private session.

11:14 Meeting continued in private until 11:23.