Current status: Answered by Ivan McKee on 10 July 2020
To ask the Scottish Government, in light of the potential impact on Scotland's (a) economy and (b) people, what discussions it had with the UK Government regarding the risk that (i) food standards, (ii) animal welfare, (iii) environmental standards and (iv) public services might be compromised under a US-UK trade deal, and whether it has discussed the potential impact of the differences in Scots and UK law in this area, including the possibility that this might lead to Scotland being subject to an investor state dispute settlement case.
Scottish Government Ministers have made clear to the UK Government, in person and in correspondence, our red lines concerning a UK-US free trade agreement. These are:
The UK Government must stick to its commitment to uphold high standards in future trade negotiations.
On food standards and animal welfare, recent reports suggest that previous assurances on the UK’s position may be compromised in the US discussions. We are concerned that the UK Government’s response to these reports has referred only to food safety which, alone, does not guarantee that other standards will not be undermined.
The Scottish Government’s objective is to keep pace with EU standards of environmental protection. The Scottish Government opposes the concept of weakening or reducing levels of environmental protection as a means to encourage trade or investment. Furthermore, any FTA should contribute to international climate action through the promotion of low carbon goods and services, support Scotland's net zero commitments, recognise respective obligations under international Treaties (such as the Paris Agreement) and enable Scotland to align with - and where possible exceed - EU standards.
On public services, the Scottish Government and Scottish Parliament's devolved responsibility, including for the NHS, social care and public health services and interventions, must be protected. The NHS in Scotland must not be put at risk of privatisation in any form, nor should any aspect of an agreement restrict the ability of the Scottish Government to implement public health measures to protect and enhance the health and wellbeing of the population.
With respect to the potential impact of the differences in Scots law and UK law in these areas, there are currently powers available to restrict imports for public health purposes. This is in subordinate Scottish legislation made under the European Communities Act 1972 (“the ECA”) and the Food Safety Act 1990 (“the 1990 Act”), in so far as these powers fall with devolved competence as set out in the Scotland Act 1998. The ability to legislate using powers under the ECA will be lost when the transition period elapses. Where powers under the 1990 Act alone are insufficient to legislate effectively, it is proposed that new enabling powers will be available via the UK Withdrawal from the European Union (Continuity) (Scotland) Bill which is currently before the Scottish Parliament.
The Scottish Government has made clear to the UK Government that ISDS provisions must not affect Scotland’s right to regulate and has raised such risks with the UK Government. The Cabinet Secretary for Constitution, Europe and External Affairs has recently made representation to the UK Government to state that any mechanism which might constrain the ability of the Scottish Parliament to introduce new legislation due its effect on the so-called UK internal market will be vigorously opposed by the Scottish Government.