Constitution, Europe, External Affairs and Culture Committee

Meeting date: Thursday, May 26, 2022

Official Report 558KB pdf

UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021

Item 3 is to consider documents that have been laid in connection with the powers in section 1 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021.

I refer members to paper 2 in their packs. The committee considered the draft policy statement and draft annual report and reported its recommendations in November 2021. I thank the Scottish Parliament information centre for providing an analysis of the revised documents against our recommendations. I invite any comments from members.

I also thank SPICe for the very helpful paper that it provided to the committee. I put on record my gratitude to the Scottish Government for making various changes in the light of our report. However, I note that it has not acted on certain points that we raised in relation to transparency and scrutiny.

For instance, it is not clear from the draft policy statement how the Scottish Government will make decisions about which EU laws to align with. There is no commitment to set out which EU laws the Scottish Government has considered from an alignment perspective but decided not to align with. In my view, we need more transparency on which items of EU legislation the Scottish Government has looked at and considered for alignment, and in what way, because Parliament will want to have a proper overview of the areas in which a choice has been made to align or to not align. If a decision has been made not to align, Scots law will have diverged from EU law, and it is important that we are advised of that and know that.

Convener, I appreciate that time is very short, but it is important that the committee puts those points on record in a letter to the Scottish Government.

I, too, welcome the fact that responses were provided to several of the points that we made in our report, but I was disappointed in the responses in three areas in particular.

The fact that the Scottish Government did not agree with our recommendation that it update its website to give us information about where it intends to align with EU law presents a challenge not just for us as a Parliament, but for stakeholders. They need to understand what changes are likely to be made, particularly in the context of the discussion that we have just had with witnesses about the challenge of tracking the TCA, and how important that is for businesses, the agricultural sector, the fishing industry and environmental lobbyists, given the need to get legislation right.

I was concerned that there was not agreement on flagging what consultations had been carried out, and by the suggestion that that was not proportionate. That cuts across the transparency and accountability element.

I would like us to request further comment from the Government, because it avoided commenting directly on the proposal that we made for a memorandum of understanding between the Scottish Government and the Scottish Parliament on the delivery of effective scrutiny. I am very conscious that a lot of good work has been done by our clerks and Scottish Government officials, but a memorandum of understanding would provide further clarity and would help people to manage timescales—for example, on how keeping pace powers could be effectively monitored for the purposes of transparency.

I note that it was not only our committee that considered the consultation issue to be important; the Rural Affairs, Islands and Natural Environment Committee did so, too. That is important for us to note.

I echo those points. It is one thing to flag up where there has been active alignment in relation to the Government’s legal duties, but it is clear that alignment goes much wider than that. An example is the Scottish Government’s future catching policy for fisheries, which is currently out for consultation. From reading through that, it appears that there is alignment with the principles of the common fisheries policy but, on looking at the detail of what is proposed, it could be argued that it is divergent on the landing obligation.

It is not clear in such consultations whether the Government seeks active divergence, and we and all committees of the Parliament absolutely need to continue to have a handle on that. That goes way beyond the reporting mechanisms that we currently have. Like other members, I hope that the Government will reflect on that, so that we do not sleepwalk in one direction or another. Such matters need to be given active consideration. Stakeholders need to be clear on where there is alignment and where it is proposed that there be divergence, and I do not think that we have clarity on that at the moment.

Do members have any further comments? Is anyone not in agreement with the comments that have been made?

I think that the deputy convener’s suggestion that we write to the Government about our concerns is the way forward. If members are so minded, the clerks can draft that and approval of the letter can be left to me and the deputy convener, and we will take that forward on behalf of the committee.

On that note, we move into private session for our final agenda item.