Chamber and committees

We seem to be in an almost legislatively surreal situation—a kind of back-to-front world—and it is difficult to make sense of that. The cabinet secretary said that there has been quite a solid and more rational conversation between Government departments at UK level and at Scottish Government level. I am interested to explore what a rational way forward might be, given that, regrettably, as you say, it looks like the bill will not be dropped. For example, is there a way to push the sunset clause back to 2026 and to consider laws in a more phased approach? Has there been any appetite from UK Government ministers to do that? Alternatively, is there a way in which we can fast-track the retention of EU law in the next 13 months?

It is useful to know how that is working out.

I want to ask about risk. We have heard evidence, which has been repeated today, on how laws are interrelated and interlinked. With food standards, for example, the cliff edge presents the threat that we default back to a time when there was no law—in effect, a lawless time. There is a lot of risk that Governments could be challenged and disastrous situations could occur that result in Governments having to fight legal battles for a long time on particular issues. How is that risk being assessed in the Scottish Government? Are teams of officials locked up having to look at the interrelated nature of laws and where there may be legal challenge in certain areas or particular risks to the public, as with food standards? How do you start to get a grip of that?

Last week, non-governmental organisations gave us a good example of invasive species legislation being split between UK and devolved Administrations.

My last question is about budgets. The UK Government has given you a challenging budget, and inevitably that will be putting substantial downward pressure on Government departments. What are the potential resourcing implications of the bill? You are still trying to work that out, I guess. We have heard about the impact on the programme for government and policy priorities, but what might the resourcing implications be?

Will you be dealing with the implications of the bill within your existing resource allocation? Will it just be part and parcel of the business of government in Scotland?

I have a point of clarification. I am interested in the provision that allows, in effect, a free allocation under the emissions trading scheme if heat is going to another source so that, instead of heat being wasted, it is taken out of the industrial process and used somewhere else. Are there particular standards for that? Does the heat have to go to housing or to other industrial processes? Are there any criteria around that? I do not have any further comments on the SI beyond seeking that clarification, which it would be useful to receive in some form.

It is very welcome to see the on-going alignment with EU law. Stakeholder engagement was one of the issues raised in the Constitution, Europe, External Affairs and Culture Committee. Obviously, stakeholder engagement in Europe is extremely detailed throughout the policy development process and the development of regulations. Now that we are out of that system, minister, how have we attempted to replicate that stakeholder engagement at an appropriate level with the adoption of the regulations? Indeed, how are you involving stakeholders with regard to what might come forward through the directive over time that we might wish to align to? We have lost that architecture of really in-depth stakeholder engagement.

I am struggling to think through how all this law can be retained in a fast-tracked way. Is there a competent way to fast-track retention of law? I think that David Bowles said earlier that we could put it all in an appendix and have thousands and thousands of laws.

Is there a danger that if laws were fast-tracked, that might be seen as being inadequate and could be legally challenged because proper impact assessments were not done for every single one of the thousands of laws? I am trying to understand what the complexities might be and whether there is a genuinely simple way, should ministers wish to use it, to retain that law.

Okay, but the main point here is that we have not adopted the acquis that the principles are part of, so we are no longer part of that. The principles might be in the treaty of Lisbon or whatever, but we are no longer part of that—we are not in that context any more—so where they get put is important.

I want to pick up on a point that Professor Reid raised at the beginning of the meeting—it would be good to get others’ reflections on it as well—about EU case law and its status, which has been built up over many decades. There is a phrase in the bill about EU case law restricting

“the proper development of domestic law.”

The committee has been struggling to understand what constitutes “proper development”, so I wonder whether Professor Reid could offer some thoughts on that. It would be useful to hear whether others have concerns or questions about how they think that that might play out with regard to the habitats regulations or other EU case law.

I was also interested in the interrelationship with the environmental principles. Lloyd Austin said that the environmental principles are not yet embedded, although they have been stated. Do the principles run through case law? For example, is the precautionary principle embedded in case law, but not embedded enough in legislation to ensure that it would remain in place?