Meeting of the Parliament 23 February 2023
I thank members of the Constitution, Europe, External Affairs and Culture Committee, the committee clerks and all those who submitted evidence and attended meetings during our deliberations on this important bill.
The bill is a profound concern. The committee believes, as a point of constitutional principle, in the simple, democratic imperative that the Scottish Parliament should have the opportunity to effectively scrutinise the exercise of all legislative powers within its devolved competence. It is current form, the bill neither protects nor promotes that principle, nor does it encourage confidence about the potential impacts on policy areas as crucial and wide-ranging as food standards, animal health, safeguarding the environment, consumer protection, business practices and employment.
There was a consistency in stakeholder evidence that is rarely found during parliamentary scrutiny. Even those witnesses who have historically favoured diversion from EU policy, such as the Scottish Fishermen’s Federation, said:
“It is more important to get it right than to get it fast.”—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 24 November 2022; c 33.]
The bill, in its current form, contains a sunset clause: if a law is not specifically retained by either the UK or the Scottish Government, it will automatically fall by the end of this year. Kirsty Hood of the Faculty of Advocates said of that deadline:
“That would mean that—to put it plainly—we would end up with gaps in the law.”—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 10 November 2022; c 9.]
The Society of Chief Officers of Trading Standards in Scotland, among many others, shared those concerns. Scottish Environment LINK noted a much harsher cliff edge in devolved areas than in reserved ones.
The Delegated Powers and Legislative Reform Committee also expressed serious concerns about the bill. Its House of Lords equivalent, the Delegated Powers and Regulatory Reform Committee, stated that:
“There is no certainty about the sunset provision itself because UK ministers can extend it under delegated powers in clause 2 ... There is no certainty about which policy areas will be affected and there is no certainty about what will replace revoked rule.”
Seafood Scotland said that the
“legal ‘cliff edge’ ... will force businesses and representatives to divert considerable resource to understanding and responding to proposed changes.”
NFU Scotland suggested that the sunsetting of retained EU food law could well return us to a time when little in the way of standards was applied.
Let me be clear: witnesses were not opposed to the principle of reviewing retained EU law, but considered that any review should not be driven by what Seafood Scotland called “arbitrary cut-off dates”.
The Soil Association Scotland said that it had
“no objection to a sensible process that examines, updates or improves existing environmental laws, but we do not think this Bill delivers that.”
Given inflation, energy prices, post-pandemic recovery and the post-Brexit economic impact, we can but sympathise with the view of the Institute of Directors that the bill is
“the last thing that business needs in such a fragile economic environment.”
The sunset clause as it stands cannot deliver appropriate levels of consultation, scrutiny or debate, and the scale of the task ahead cannot be overestimated in respect of the additional administrative burden and the challenge of conducting scrutiny within the time constraints. That applies to stakeholders, Governments and the Parliament’s committees.
I have already thanked my committee colleagues. It is to their credit that we have been able to work in such a productive and collegiate way in this session. However, I note that we were unable to agree unanimous support for the report with Conservative colleagues on this occasion.
We cannot do justice to the report this afternoon, and we have asked the Conveners Group for a committee-led debate to allow further discussion across committee interests, as the bill will impact on many subject committees of the Parliament. We have also highlighted the potential impact on the workload of the parliamentary committees. We have written to the Standards, Procedures and Public Appointments Committee on the requirement for a legislative consent motion in this specific circumstance, when consent is not to be laid by the Government through a legislative consent motion. Our standing orders are currently silent on that, so we have requested a review of procedures, given the number of times that that has happened, as the cabinet secretary laid out. That is indeed of concern to the committee.
We recommend the report to our fellow committee members and members across the chamber.
14:42