Official Report 711KB pdf
Item 4 is to take evidence on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. I welcome Michael Russell, Minister for UK Negotiations on Scotland’s Place in Europe, and his officials Kate Thomson-McDermott, Luke McBratney and Helena Janssen. Good morning, everyone. Mark Ruskell will kick us off with questions.
Good morning to the minister and his officials. I want to pick up where the Finance and Constitution Committee left off last week in its scrutiny of where environmental principles and animal sentience principles sit in relation to the continuity bill. Professor Page expressed the view to the committee last week that, in the continuity bill as it stands, those European Union principles would not
“be covered by the idea of the general principles of EU law.”—[Official Report, Finance and Constitution Committee, 7 March 2018; c 30.]
Could you give us your reflections on Professor Page’s evidence on that and say what your ambitions are now in relation to taking forward those principles into law?
That gets us very quickly to the heart of the issue around environmental principles in the bill. If you will forgive me, convener, I will just tease this out a bit. I have written to the committee in response to its question, but it is important that we are sure that we know what we are talking about, particularly because we will consider later today proposed amendments to the bill—one from Mr Ruskell, one from Claudia Beamish and, I think, some from Tavish Scott. There are therefore proposed amendments to the bill to deal with the issues that we are discussing.
We should try to put to one side the issue of animal sentience, not because I do not believe that it is necessary but because it is well covered in Scots law. Indeed, the first legislation on it was in 1912 with the Protection of Animals (Scotland) Act 1912, which was passed when Asquith was Prime Minister and McKinnon Wood was the Secretary of State for Scotland. That legislation prevented actions to
“infuriate, or terrify any animal ...or cause any unnecessary suffering”.
Animal sentience is understood and is not in question here at all. There has continued to be legislation on that issue, including legislation in 2006. That legislation exists. Keen as I am on European matters, I know that not every principle derives from European law. There are principles that exist in the law in Scotland.
The question is what the bill will do and what other things need to be done to protect environmental principles. It is important that we look at that carefully. The bill will take into our law regulations and laws that have come from Europe over the past 46 years, which we have been a part of making. Those laws and regulations will come into our law. Any law or regulation that respects or is based on the general principles or the guiding principles—it is important to recognise those two things; there are general principles that allow action by individuals and guiding principles that have led to the creation of the law and which underpin it—will automatically continue to apply, because it will have been taken back into our law. The bill says that that will all be there and be ours and will continue to affect us. Therefore, if we are moderately content with the situation presently—things can always be improved—we should be moderately content with the situation that will exist after Brexit day. That is presuming that Brexit happens; I make that point, because I still do not think that Brexit is an inevitability—we should always make that point.
What will happen beyond that date? There are three issues to address, the first of which is what the bill can do about that. The answer to that is nothing. The bill is not about changing policy after exit date; it is about ensuring that what we have now will continue to be part of what we will go forward with.
We could look at what will happen in two different ways, both of which are useful to us. The first way is to say that the keeping-pace power in section 13 of the bill, which has been subject to a great deal of discussion and many amendments—I will speak to amendments later today to ensure that the scrutiny of that is stepped up and the way in which it operates is sharper; I believe that those amendments are useful and informative and will help to make the bill better—is important. The keeping-pace power in itself will allow us to continue to do things that are underpinned by the guiding principles and observe the general principles.
An example of where the keeping-pace powers become useful to us is in aquaculture—I know that that is not the committee’s direct responsibility. The list of fish diseases that require action by the Scottish Government will change; it changes from time to time as new diseases are identified or become prevalent. Those are automatic changes within European legislation. Unless we have a keeping-pace power, we would have to go through a lot of primary hoops in order to put changes in place. The keeping-pace power allows us to do that, and that guides where we are.
The final question is whether there is more that we could do. I entirely agree with the view on that of the Cabinet Secretary for Environment, Climate Change and Land Reform, Roseanna Cunningham. She wrote to the committee on 31 January. In section 2 of her letter, she talked about on-going consideration of how best to achieve the aim of ensuring that we meet not just the letter of environmental law but its spirit—that is precisely the point that has been made.
Are there things that we should still do in the bill to allow that to happen? It is quite clear that we cannot change or improve European law. We could keep pace with European law, but we should also consider whether other legislative routes will arise over the next year and a half to two years that we could use prior to Brexit to do things. We should now discuss and consult on that. As we move from stage 2 to stage 3 of the bill, I will consider whether we can make a commitment in legislation to ensure that that matter is considered in terms of future legislation.
I am sorry for the lengthy explanation, but it is a very detailed area. I entirely concur with the view that we want to ensure that we are doing those things. This is not the bill in which we should do them. There are things in the bill that will allow them to happen and go on happening. We should recognise those and, as legislation and regulation develop in this field, we should look for ways to ensure that they are consulted on and made more firm. That is where I think that we should be.
Thank you for that lengthy response. I hear what you say, particularly about animal sentience, but in your letter to the committee you acknowledge that the principles in our current provisions on animal sentience need to be further strengthened. In fact, I understand that there is currently a negotiation between the Scottish Government and the Westminster Government in relation to the UK animal welfare (sentencing and recognition of sentience) draft bill. It is clear that we have not completely addressed the issue of our respect for animal sentience and the welfare provisions that arise from that. The draft bill is being considered by the Environment, Food and Rural Affairs Committee at Westminster, which has deemed that its provisions on animal welfare and sentience are insufficient. No obvious or easy solutions to the issue of enshrining animal sentience in our legislation appear on the horizon in the immediate future, so I am still at a loss to understand why the Scottish Government would not want to enshrine that principle in the continuity bill, rather than relying on a bill that is being tested to destruction in Westminster and found wanting.
This bill cannot do what you wish it to do—it cannot change the existing law. It can take into our law those things that already exist, but it cannot change those things. That is not the purpose of the bill. If we were to write the bill in that way, it would be a different bill.
I do not share the member’s gloomy view of what can and cannot be done. The Cabinet Secretary for the Environment, Climate Change and Land Reform is in active discussion with the UK Government about the ways in which this Parliament might be persuaded to give legislative consent to the UK bill, were that bill to improve. There are things that can be done, there are members of Parliament at Westminster who wish the situation to improve, and this committee can certainly say that it wishes things to improve in that way.
I am not indicating that I am content; I am indicating that animal sentience is a principle not only in European law but in Scots law. However, I am also indicating the ways in which we can and cannot do things in the continuity bill and the ways in which we can take the issue forward through a variety of other actions.
It is often said that 80 per cent of our laws in Scotland that relate to the environment come from the EU. I am sorry if that is not completely accurate, but that is the figure that is bandied around. You referred to other legislative routes to make legislation on the environment more secure. Which routes were you referring to? Will that be put on the face of the bill?
There are many routes that this committee and the cabinet secretary can and will take in the next 18 months. As I have indicated, some of those involve new legislation here and at Westminster. For example, issues of environmental governance are being examined. If that leads to legislation, as it may well do, that is legislation in which such things could be enshrined.
I am not in any sense against clarifying and moving the issue forward; rather, I am indicating what the continuity bill does and does not do, and trying to ensure that that is acknowledged. What the continuity bill does is important, which is to ensure that all the things that presently exist are enshrined in Scots law. There is a keeping-pace power, too, relating to certain areas that will be for the decision of the committee and the recommendation of the Scottish ministers. There will also be opportunities to take the issue raised by the member forward in other legislation, and that is the right thing to do. It cannot be taken forward in the continuity bill because, frankly, we cannot change European law in the bill. That is not what the legislation sets out to do and it is not something that we have the power to do.
I know that the continuity bill has been criticised by some members because they believe that it would take powers that the Scottish Parliament does not have. I consider that the bill takes forward those powers in an entirely legitimate fashion, but I would not want to open the door by doing so in a way that could not be done.
11:45
Mr Russell’s focus is on the continuity bill. From a policy perspective, our work to ensure that we can carry forward environmental legislation post-Brexit is a process of looking at all the powers and functions in current law and figuring out where the deficiencies will be. Through that work—there is a lot of it—we will identify where the problems will be and what changes we need to make to ensure that the legislation keeps functioning. We have talked to the committee before about that issue.
As part of the process, we will need to think about how we could use the potential powers under the continuity bill—or the UK withdrawal bill, depending on where we end up—to fix deficiencies and to keep pace. However, there might be wider issues that need to be looked at that would require more than using deficiency powers. If there are areas in which we need to make more substantive policy changes and it would not be appropriate to use deficiency powers, we might need to consider introducing further primary Brexit-related legislation. That is exactly the UK Government’s position on animal sentience. It recognises that that issue is about more than just retaining EU law; it is about changing policy, so it needs to think about different primary legislative vehicles in which to do that.
The UK Government has committed to consult on environmental governance. We are waiting for initial advice from the round table on environment and climate change, and we will consider whether we need to do something similar if a need to do things that might require primary legislation comes out of that work.
There are a range of different areas where we might be required to consider the use of primary legislation—that is all part of the process; those are on-going considerations—and we are considering environmental principles and governance and fixing deficiencies together as a package when thinking about what would be most appropriate in that regard.
How advanced is that work?
We are still working through identifying all the deficiencies. There is a remarkable amount of work and we are making a lot of progress, but there is still a lot more to do.
I stress the timetable for the recognition of deficiencies. Assuming that there is a transition period—I make that assumption without there being absolute clarity that there will be one—we will probably have a period between now and December 2020 in which all that work must be done. Therefore, we have almost three years to get through that work. There are estimates of how much work is required—there will certainly be hundreds of items to deal with. The bill contains the powers that it has and it is urgent because we need to get into that position. The UK withdrawal bill is trying to do the same thing, and it has not been passed yet either. The UK Government will have—by some magnitude—a greater number of changes to bring about.
If what the minister and Kate Thomson-McDermott have described happens, will that involve a Scottish Government amendment at stage 3 to the continuity bill to clarify that? I still want to understand whether that will be the case.
Yes, I am more than prepared to consider such an amendment. We would have to work out what it said and what it was committed to do, but that would be the right way to make a commitment, for example, to the process in which consultation or consideration of how the principles are brought into Scots law would be possible. The continuity bill cannot do that, because it cannot change European law.
My substantive question still remains, which is probably because I just do not get it. It is because of that, actually—[Laughter]—so I hope that the minister does.
I am really keen to help you to get it. You and I have worked together in the past on issues like this. I respect your position on the issue, and you know that my position on environmental law and what we need to do is exactly the same. I am trying to find a way in which we can take forward the matter. Regrettably, how we do that is not in the continuity bill, but I am indicating a range of ways in which we can take it forward. I am trying to find something that we can put in the bill that will meet the points that you and Mr Ruskell are making and the points on which Tavish Scott has lodged amendments, so that we are content that the issue is moving forward, although you may not be content that that cannot be done in the continuity bill.
I do not get why the issue cannot be dealt with in the bill. I ask the question because, as a non-lawyer—
As, indeed, am I.
—and an environmentalist, I think and hope that it perhaps can be dealt with in the bill. I will make, I think, three points.
It is possible to refer to the charter of fundamental rights in the bill, and the minister’s letter to the committee yesterday highlighted—and I am sure that all committee members would agree—
“environmental protection as a core human right”.
I think that it would be possible to put something about environmental protection in the principles of the bill. I am aware that the Scottish Government sometimes shies away from putting principles in bills, because they can end up as a list and bills can become complex. However, I still do not understand, if environmental protection and the precautionary principle specifically, but other issues as well, are enshrined in EU law and the EU courts, why we cannot put those principles in the bill. If you think that we cannot do that, why can we not put the principles into the policy memorandum or the explanatory notes, and what status would they have? I know that that was rather a long question.
I will attempt to answer the question, then I will ask Luke McBratney to correct my homework. He will come in and add more.
The charter of fundamental rights is already codified. It already exists as a thing that we can take and say, “That’s it, and we are putting it in there.” The charter contains only one of those underlying principles, which I am pretty sure is—I have lost my bit of paper—the precautionary principle. There are three other principles that we would want to consider in that list: prevention, rectifying pollution at source, and the polluter pays principle. The precautionary principle is already codified and in the general principles, so that is set. The other three principles are not set at the present moment, so what do we do with them?
There is a distinction between a principle that has a distinct character—the one that is in the charter—and the other three that are set out in the EU treaties. Those three surround, underpin and influence the making of laws, but they are not recognised in the same way. If the bill was to recognise those principles in the same way, we would move forward the issue in a way that we cannot do—we cannot make European law. All that we can do in the bill is take what exists and bring that into Scots law—that is the process of Brexit. We cannot break new ground on the matter.
With respect, the principles are in treaties. What is the status of treaties?
They are not general principles. General principles are in a different category from guiding principles. We would be trying to create a situation that we cannot create. I am sorry that the matter is so technical; I wish it was a lot easier. It would be a lot easier if I could say, “Yes, we can do it”, but we cannot. I have given you my explanation; I think that it is a reasonably good one.
We could expand the explanatory notes to put in the guiding principles, but I am trying to find something more than that that could go in the bill. That is why I am suggesting an amendment of some sort that commits to a process to ensure that the issue is not forgotten or put to one side, but becomes part of the process of legislation as new legislation comes in.
What is the status of the explanatory notes?
They explain what the bill is about. They can be taken into account in legal circumstances, but they are not the same as having something in the bill. That is why I am trying to find something to go in the bill. I am not shying away from the issue. I am trying to find the right thing, not the wrong thing, to go in the bill to be enacted. Luke McBratney will now underpin, in some way, what I have said.
Marks out of 10 for Mr Russell, Luke?
Ten out of 10 always, convener.
I cannot promise that my explanation will be any less technical than the minister’s. It is important to understand what the bill means by “continuity of law”. Both the “continuity” and the “law” parts are quite important.
In terms of continuity, the bill aims to replicate exactly what is in EU law at present and how it will operate afterwards. That is as imprecise an exercise as the exercise of asking what EU law is at present. The Government is quite frank that a necessary part of that exercise is that, when there are uncertainties or ambiguities in existing law that would require to be resolved by the courts, they will be part of what is carried forward. That is the continuity part.
However, we are interested in continuity of law. In sections 2 to 5, the bill carries forward everything in EU law that we consider has legal effect. That includes the general principles, because they can act as an aid to interpretation of existing EU law, and they can be relied upon in challenges to public authorities acting within the scope of EU law and even challenges to EU law itself. Those are the general principles.
The guiding principles are in a slightly different category, as the minister explained. They are more in the way of an instruction to policy makers to take certain things into account. In and of themselves, they do not have freestanding legal effect, so they would require some adaptation if they were to be converted into retained EU law after exit. As the minister has explained, that is not quite what the bill is about.
The bill is interested in continuity and keeping things the same, and law, which is things that have legal effect. In that respect, it is important to note that the provisions in the continuity bill about the general principles are slightly different from those that are in the withdrawal bill, which would retain those general principles only for a single purpose, which would be as an aid to the interpretation of EU law. The Scottish Government’s position is that much greater continuity should be provided. Section 5 of the continuity bill provides that, wherever there is an existing right of challenge based on one of the general principles before exit, that right is continued after exit.
In the ways that the continuity bill differs from the withdrawal bill, greater continuity and effectiveness are provided for the general principles. However, they are only provided for the general principles, which are the principles that currently have legal effect.
I could probably join the dots in your previous answers to get an answer to this question, but I will ask it to get a direct answer. If the environmental principles were to be included in the continuity bill, what impact would that have on non-environmental areas?
Kate? [Laughter.] My officials are much better dot-joiners than I am.
I want to clarify that when we carry over the general principles, we will carry over the precautionary principle, which the European Court of Justice has identified as one of the general principles, and that is different from what is set out in the charter. As Luke McBratney has said, that will be a continuity and it will not be a change, because it is already part of our law.
The other principles are mainly set out in article 191, which asks that the EU considers them when developing EU policy. The question then is, when we are outwith the EU—if we are outwith the EU—what would we want the obligation to be on the Government and Parliament to think about how we inform future policy development? That is a change. The current requirement is on the EU to consider those principles in developing environmental policy. That is not all EU policy and it is not a direct obligation on member states or on any public authority within member states. That is the current set-up.
The answer to your question is that we do not know, and that is what we have to consider. That is why we need to go through the process of thinking about what this means, exactly what outcome we want to achieve, and make sure that we have consulted on and discussed that before we make any changes.
12:00
To be blunt, this illustrates the extraordinary and, in my view, utterly wasteful complexity of the Brexit process. The conversation that we have been having for the past 25 minutes is just a small part of those conversations in which I find myself immersed daily. That is why I continue to argue that this is a ridiculous process.
That being the case, we still have to prepare ourselves for it. I stress that the bill is an essential backstop in our preparation that freezes things and creates a situation so that there is no cliff edge. It does not develop policy. In small areas, it deviates from the UK bill, because we think that there are things that need to be done in that regard, such as listening to the Parliament on issues of scrutiny and other matters. However, the bill does not implement new things.
If Brexit takes place, bills that do that will need to come along and Scotland will need to protect itself. The best way to do so, outside the EU, is undoubtedly by being in the single market and the customs union. There are issues to be addressed in that respect but, if that happens, there will need to be new legislation of a variety of types, including secondary legislation that corrects deficiencies and primary legislation to chart new courses. In my view, those courses will not be as good as those that we have at present, but that is where we are.
In a way, my question has already been answered, as you touch on it in your letter, but I want to ask about section 13 and the keeping-pace power. Is it your forecast that what might be called environmental principles could be embedded by using section 13?
That is an interesting point. I will treat it as a positive point for a positive debate, rather than anything else. The effect of the guiding principles would be seen if the relevant cabinet secretary—we are dealing with environmental issues here, but the point would of course apply to other issues—chose to use the keeping-pace powers in a particular area. The effect of the guiding principles would be seen because the policy on the items through which we were keeping pace would have been developed with respect to those guiding principles, as Kate Thomson-McDermott indicated.
As I have said, we would want to take a clearer and much more up-front view of how to take forward the guiding principles as principles per se, by consulting on them and by finding primary legislation with which to include them. However, their effect would be seen in the use of the powers under section 13, with the approval of the Parliament.
I am hypothesising. If the EU took a more stringent view of, say, the polluter pays principle and that then changed and became much stricter in practice, would it be the keeping-pace power that allowed the Scottish Government to replicate that?
No. That would be replicated only in so far as it dealt with a specific set of circumstances, and where the cabinet secretary came to the Parliament and this committee and said, “We would like to keep pace with that power in these circumstances.” We should remember that it is not an unlimited power, so it will not last forever. There would be the effect of that principle and the outcome of it, which would be consciously chosen by the Government of the day and approved by the Parliament. In those circumstances, that would not be taking forward the principle itself; that would be for the Parliament to decide, once it had decided how to take care of those principles within law.
Do the guiding principles already influence Scots law and policy because of what they say rather than because they come from the EU?
That is a deeply philosophical question. I suspect that the answer is yes, but I would probably like to consult somebody on the issues of jurisprudence before I answered it. However, taking the wider issue of the development of jurisprudence and the way in which decisions of the European Court of Justice affect courts in Scotland, the answer is probably yes. Mr Stevenson is sitting next to an advocate, who is better placed to answer those questions than I am.
I have tried, minister.
Indeed.
You talked about making a conscious choice to apply guiding principles when considering new keeping-pace legislation. Does that imply that there is a conscious choice not to apply guiding principles, in which case, what would your judgment be on that? Are there opportunities to choose not to apply the precautionary principle or polluter pays principle, or not to respect animal sentience?
I do not think that there is an opportunity not to apply the precautionary principle, because it is enshrined in the charter and would come as part of that. The other principles have influenced the law that has been made, which is coming into our law, and therefore would affect future judgments.
I think that one would also want to say—and I want to be clear about this—that there would be political choices to be made. My political choice would be to ensure that the principles
not only continue but grow in influence. There are some people in the UK—though not in the Scottish Parliament, I hope—who I think would take a very different view. We have heard people giving their views on environmental law that they would like to get rid of.
There will be political choices to be made. That is one of the many, many reasons why I think that we should remain in the EU, so that we are part of a progressive movement on such issues and do not run the risk of being part of a regressive movement on them. My view is that there are some things that we can say with certainty that we will maintain and some on which we will have to make choices.
But why allow a political choice about guiding principles in relation to keeping-pace provisions?
Because that is the situation in which we find ourselves. Brexit is a situation not of our choosing, and, in my view, Brexit is an attempt to diminish all sorts of rights and privileges that we have at present, which is why it should be resisted.
I cannot give you a guarantee of any sort, but I can say that this Government wants to and will do its best to ensure that things move forward. That is why I indicated that we are trying to find a way to include in the bill the key issues that we can move forward. However, we cannot do things that do not have standing or status or that do not exist, because if we did, we would be ultra vires, in a variety of ways.
We are trying to do what you suggest that we do, but it is fraught with difficulty, because the Brexit process is fraught with difficulty, and we cannot look to this Parliament to find every solution. The people of Scotland clearly voted against Brexit, but unfortunately they are currently being dragged out of Europe against their will, and that is the political reality.
With due respect, if we were to legislate now with a bill that did not incorporate the polluter pays principle and the precautionary principle, we would be in a difficult situation. We would be acting against the Lisbon treaty—
I want to be absolutely clear. We are not doing that—
So how do we enshrine the guiding principles in relation to keeping-pace provisions?
I really want to be absolutely clear. What you described is not what we are doing. With the greatest of respect, that is a misrepresentation—no doubt an unwitting one—of what we are doing. We are taking the legislation that contains those things and has been drawn up in that way and we are bringing it back into Scots law. That is what we are trying to do. That is what the bill does, and that is what we will do.
Also, where guiding principles are identified we are making sure that they are in and can be acted on, because they have been the basis of decision making and there is a case for doing so. There are three items that are not in that position, which we need to include in primary legislation and would like to find a way to do so. The cabinet secretary and I have indicated that. However, we cannot do that in this bill, because that is not what this bill is about. We would run the risk of putting the bill in a dangerous position. We are not saying that we are not going to do it; we are saying that we want to do it and are trying to find a way to do it. However, it cannot be done in some of the ways that are suggested, because that is impossible in this bill. I want to make that absolutely clear.
How do you see section 13 working in relation to the issues that are in the remit of this committee? Can you provide examples?
I have indicated one or two areas where that would be helpful to the committee, but let me tease out some examples that I have already used.
Under the Aquatic Animal Health (Scotland) Regulations 2009, with which you are no doubt intimately familiar—I know you well, Mr Scott, and I know that such detail never escapes you—whenever the EU adds a new fish disease to its list of identifiable diseases, we exercise a power under section 2(2) of the European Communities Act 1972 to add those diseases to our own regulatory regime. That is the sensible thing to do; indeed, during my time as environment minister, I dealt with outbreaks of fish disease and I know that you need to act very quickly and resolutely. That is the power in that respect, but we could lose it unless we are able to take a keeping-pace action. That would mean a minister or the cabinet secretary coming to the committee and explaining why this was necessary, and a scrutiny process taking place. The keeping-pace power would allow us to continue to do that, which is something that is very important to us.
Another example that you will be even more familiar with is that of invasive species. The list of such species is automatically updated, depending on the identification that takes place in the European Union. You will be familiar with this with regard to animal health, but such issues might arise in the east and then spread to the west, and in those circumstances, you will want to be able to take action without necessarily going through the hoops of primary legislation. The keeping-pace power is therefore important in clear, practical areas. Mr Cameron has asked me a question on this already, but I do not envisage that power being used in major areas where you would want to introduce primary legislation. In areas where there is a sensible solution to be found, it should be found.
Would such a process be subject to the standard affirmative procedure?
That issue will require to be teased out in the debates that will take place over the day. As we heard from a range of individuals last week, there is a clear demand in the chamber for the issue to be examined very closely and for ways of scrutinising it more closely to be found. I am listening to and open to such demands, and that is a decision with regard to the bill that will eventually come about.
Do you have any further questions, Mr Scott?
I thank the minister for reminding me that I should have declared an interest as a farmer when he cited animal diseases as coming within my knowledge sphere.
Having very helpfully provided a list of examples that fall within the committee’s remit, I ask the minister to elaborate on the implications, in his view, for the environment of not having a keeping-pace provision?
They are exactly as I have indicated. It would be burdensome, and it would mean that the speed of action that is often required in such circumstances would not be there.
Another matter that has concerned me very greatly over the past few weeks is how we would play these issues within a UK framework. If we were to have frameworks, which is something that I am entirely in favour of, they would be able to take advantage of a keeping-pace power that existed across the islands in order to put such things in place. Moreover, the governance of those frameworks might also benefit from the ability to access such a power. I am in favour of such work taking place. If a framework existed but the keeping-pace power did not, we would find ourselves with a much more cumbersome and less fleet-of-foot process. As we know, in animal health and, indeed, in aquaculture, speed is of the essence.
You are, of course, much closer to the discussions that I am. Is the UK Government considering a keeping-pace proposal or not? I am sure that you have made these points to it.
We were disappointed to find that the proposal did not exist in the withdrawal bill, and we think that that was a major opportunity lost. There appears to be an ideological objection to it.
Frameworks would give the opportunity at least to discuss the matter again. If one part of these islands had the power—and I note that it also exists in the Welsh bill, so Wales would have it, too—that might be an example to England that it is a power that it should seek to have. However, we would certainly want to exercise it.
We recognise the need for frameworks to exist in, for example, areas of animal health, and we are quite willing to be part of them. The only difference of opinion is over such frameworks being agreed by this Parliament, which is what we still intend to happen.
12:15
Does the inclusion of the keeping-pace provision in the continuity bill while no such clause exists in the withdrawal bill not increase the potential for Scotland to have different environmental regulations? You mentioned invasive species. I think that we are more interested in what may travel north to south or south to north than in what may travel east to west. Is it potentially divisive and not particularly sensible, both technically and politically, to have differences and move at different paces?
Devolution has already brought changes, which this Parliament has been quite comfortable with. Examples include in relation to genetically modified crops, air quality targets, food waste targets and the water framework directive. Changes exist. The nature of devolution is that decisions are made by the various parts of these islands under the principle of subsidiarity—and that is the right thing to happen. I would argue that we should trade up rather than trade down, and therefore the examples that I have given are good examples to look at.
On the potential for animal disease, I absolutely agree that, if we look at a variety of animal diseases—bluetongue is an example—we would want to make sure that north-south and east-west are covered. I do not make decisions for the UK, but my view is that the power should exist within the withdrawal bill, because it is a sensible power to have. Therefore, when I had the opportunity to put it in the continuity bill, I put it in there. That is what the Welsh have done, too. I think that it recognises the reality of devolution, and we all learn from one another. I would like to see the power exist.
I do not think that it is divisive to have the highest standards and to want to continue to observe the highest standards. Rather than being divisive, it is perhaps an exemplar of what should take place.
We will move on. It appears that section 5(1) of the Scottish bill seeks to achieve the same outcome as paragraph 2 of schedule 1 to the UK bill, albeit that it uses a different approach. Why is the Scottish Government taking that different approach? What practical difference, if any, does it make?
I am sure that Luke McBratney will wish to respond.
I return to some of the things that I said earlier. The continuity bill expresses this in different ways. The UK Government’s approach is explicitly to preserve the general principles as part of domestic law after withdrawal only to the extent that they are an aid to interpretation. In contrast, as I discussed, the Scottish Government’s approach is to provide that the general principles have the same legal effect and attract the same legal status after withdrawal as they did before it, for the reasons that I gave earlier. It is not a status that can be described with enormous precision, but the effect of the continuity bill is that that status is continued after exit day.
And that is the difference.
Yes.
Okay. Thank you for clarifying that.
Good afternoon, minister. I, for one, get what you are saying. This is all about continuity. Basically, if anyone cannot get that, I do not know where they are going.
I turn to how the general principles that are inherent in retained EU law are given effect. I am sure that Luke McBratney will be able to answer this question. If the ordinary person in the street asked you, could you explain to them why the Scottish Government has chosen to retain rights of action and the power for courts to quash law and decisions based on incompatibility with the general principles of EU law, under section 5(2)?
Apart from the fact that we are nice people, I am sure that Luke McBratney will want to answer that.
The Scottish Government’s position across the bill has been that, with a number of the policy differences that Mr Russell alluded to earlier, we have decided to provide for greater continuity. For example, on the European charter of fundamental rights, it was an explicit decision by the UK Government not to retain that—to limit its effect after withdrawal. We have chosen a more maximalist approach.
The same reasoning lay behind the decision to retain rights of action based on the general principles. As the minister indicated, the situation is going to be confusing enough without attempting to tinker with what exists at the same time as doing the already complex job of trying to convert it into domestic law.
Can you explain how section 5(2) sits with section 7(1), which removes the ability to challenge the validity of EU law from which devolved retained EU law derives?
I will repeat a number of points that I have made already. At present, the domestic courts do not have the ability to strike down European law on the ground of validity. There would require to be some adaptation of the principles and procedures at the point of exit if we were to provide for that. That is why section 7 has a power that enables us to customise the domestic courts’ ability to strike down retained EU law after exit. Section 5(5) makes it clear that the retention of rights of action under section 5 is subject to section 7 and to any provision made under section 7. However, section 5 preserves a much wider range of rights of action than the simple ability to challenge retained EU law on the ground of validity. For example, the retention of the general principles under section 5 would allow a challenge to administrative action by a public authority on the ground that it did not comply with one of the general principles. That is unaffected by section 7.
We also have to recognise that part of the context is that there is an antipathy to the European Court of Justice and its rulings within the motivation for Brexit—an antipathy that is largely not shared in Scotland. There is a very effective Scottish judge on the ECJ and the court itself is not seen as inimical to Scottish interests. Indeed, there is a wide range of areas in which we have been greatly helped by the existence of the ECJ. There is therefore a context to the policy making that we profoundly disagree with. We want to make sure that we do not continue the expression of that antipathy in ways that are unhelpful to the ordinary citizen.
Thank you.
I have a brief question followed by a slightly longer one.
Thank you, minister, for responding to our letter so quickly. The issue that I am going to raise was not covered in the response, so, for the record, will you confirm that the principles in the charter of fundamental rights can be modified by the powers in section 11 as part of the domestication process, in so far as that would be necessary to deal with a deficiency or to make the law work properly?
The short answer is yes. The charter will form part of retained devolved law after withdrawal and will therefore be subject to the powers that can operate on retained devolved law. I should emphasise that that is not being done in anticipation of any concrete plan by the Scottish Government to change the charter of fundamental rights or any of its provisions. The extent to which the charter is currently entrenched and not modifiable is a product of the fact that it belongs to a supranational institution over which we do not have influence. It is a necessary effect of domesticating instruments such as the charter instruments or the corpus of retained EU law that they will become subject to the powers of this Parliament.
That pre-empts my longer question, which is about the circumstances under which you would envisage modification of the charter.
We envisage none at present. The incorporation of the charter is specifically limited by section 5(1) so that it has effect just as it has effect immediately before exit day in EU law and as it relates to anything under sections 2, 3 or 4, which are the three principal sections that domesticate the law. The effect of the charter after exit day will therefore be limited to the subject matter of the continuity bill.
Okay. Thank you. I have another question for clarification, for the record. It appears that both the withdrawal bill and the continuity bill will allow, but not require, courts to take account of decisions of the ECJ post-exit. Why is the Scottish bill drafted differently from the UK bill in that respect? What practical difference will be achieved?
The provision that is made for interpretation of retained devolved EU law under the continuity bill is, in practice, very similar to that which is made under the withdrawal bill. The Scottish Government does not think that it would be appropriate to include in the bill a higher or more stringent test that would require the courts—on grounds that are unspecified—to apply law in more strict circumstances or in particular circumstances.
As I have said, there is inherent imprecision in the exercise. Mr Russell mentioned the Scottish judge who is on the general court of the European Court of Justice; Judge Forrester gave a speech recently that is on the Scottish Council of Law Reporting website, if members wish to see it. He described the current state of EU law as
“a vast tangle of ... wires”
and said that all that we can do is try to transfer them from one place to another. For that reason, we think that the best way of retaining courts’ existing ability to bring precision to where there is imprecision is to empower the courts, as will be done under section 10, to take ECJ decisions into account where they consider that to be appropriate, but not to do so when they do not. The Scottish Government does not consider that there would be much value in going further than that.
Essentially, the provisions in the two bills will achieve the same purpose.
They will achieve broadly the same purpose. There is one difference between section 10’s interpretation provisions and the corresponding interpretation provisions in the withdrawal bill, which is that we will by default continue to apply the interpretative obligations under section 10 to retained EU law as it is developed under the bill. Under the withdrawal bill, when law is modified, by default the interpretative obligation will fall away. We have chosen to change the default rule, but both rules can be disapplied.
Thank you for that.
In the particular rather than the general, how will the incorporation of the general principles of EU law impact on the policy areas that are covered by the committee’s remit?
Member states are already bound by the general principles of EU law, which influences how they interpret and apply the laws. Under the continuity bill that we are trying to enact—we do not overclaim for the bill, because it cannot change policy—the general principles will be retained for all purposes and incorporated into our law. In the end, there will be no practical difference in how the principles impact on the policy areas that are covered by the committee; they will simply form part of Scots law, rather than being EU law.
That means that acts of Scottish ministers and public authorities, for example, could still—perish the thought—be struck down if we do not apply the general principles that would be incorporated. The responsibilities to observe the law remain unchanged, but that law will change from being EU law to being law that is folded into our law. That is the process that we are engaged in: we are saying that there should not be a cliff edge.
The easiest way to understand the situation is thus: if we do not do what we are doing, and we and the UK Government just sit on our hands, we will get to whatever date it will be when everything finally changes, and there will be no law. There would be a cliff edge and we would not know. We have to fix that situation.
The problem of deficiencies will arise if the conversion does not work properly and something has to be changed. For example, in agricultural policy, referring to the common agricultural policy and the Council of Ministers will not work because such provision will not exist. The issue is how we adapt to that. There will be a standstill or freeze in our law, and a moving in of EU law, rather than anything else.
There is also the issue of changes that we would like to make and in what way. Some of the changes will be forced upon us because of deficiencies and incompatibilities, and others will be changes to principles when we want to do something in a stronger or more effective way. We want to make sure that we will do that. That is the process on which Roseanna Cunningham will want to engage with the committee.
The deficiencies and incompatibilities are for another day. You are saying that there will be no effective change to the policy areas that are covered by this committee, and that divergence will follow.
We start off with that position because that is where we were. John Scott will be aware that there will be a price to pay, either in our exports or in our principles and standards, if there is regulatory divergence. Regulatory divergence is also the issue that affects the Northern Ireland border, which becomes complex and worrying.
Mark Ruskell has the final question.
The bill does not deal with governance, and you have already touched on the reasons why. What will be the process for filling that governance gap? At the moment, there could be a cliff edge if we do not have adequate monitoring, scrutiny and enforcement powers.
12:30
Roseanna Cunningham has written to the committee on the issue, and has made it clear that there is an urgent need for an approach to be developed. She has sought initial advice from the round table on environment and climate change. Coincidentally, she and I are to appear before the committee next week, which will give her the opportunity to discuss environmental principles and governance following Brexit—in the event that it takes place. She is fully sighted on the issue, is taking advice on it and wants to discuss it with the committee, and she will, after consultation, I am sure, put forward solutions—suggestions for which will come from the committee and elsewhere. That will have to be tackled within the next couple of years, so that something can be put in place post-exit.
Is there a risk that there will be a gap?
There should not and must not be a gap, and that is what Roseanna Cunningham is working towards. The current set of circumstances is not of our making, but we must respond to them. Nobody wishes there to be a gap. Just as the continuity bill will make sure that there is no legislative cliff edge, Roseanna Cunningham will—after listening to this committee—want to put in place arrangements that will mean that there is no governance cliff edge.
Will there be clarity on day 1, or even before then, on what the roles and functions of institutions will be with regard to monitoring and sanctions?
Clarity will be required on those matters, but I do not want to stray into Roseanna Cunningham’s areas of responsibility. I am clear what my responsibilities are. She has the responsibility for dealing with that issue. As I said, she and I will appear before the committee next week when, in our respective roles, we will be able to answer such questions.
Thank you for your time this morning. The session has been helpful in clarifying a number of questions for the committee.
At its next meeting on 20 March, the committee will consider the Conservation of Salmon (Scotland) Amendment Regulations 2018 and will take evidence from the Cabinet Secretary for Environment, Climate Change and Land Reform and—as we have just heard—the Minister for UK Negotiations on Scotland’s Place in Europe, on the environmental implications for Scotland of the UK leaving the EU.
12:32 Meeting continued in private until 13:00.Previous
Scottish Crown Estate Bill: Stage 1