Hansard

I thank the Finance and Constitution Committee convener, Bruce Crawford, not just for his opening exposition of the background of post-Brexit common frameworks but for his stewardship of the committee and his constant striving to find consensus on what can on occasion be a contentious issue. I also thank my fellow committee members for their joint working in a complex area of law and public policy.

As we have heard, the UK’s departure from the EU will require the construction of common frameworks to enable the functioning of the UK internal market—or, as I might call it, the domestic market. Of the 111 powers that are returning to the UK and which fall within the devolved competence of the Scottish Parliament, a large number will be devolved straight to Holyrood. Another chunk will be subject to non-legislative common frameworks, which will need to be agreed. In 24 policy areas, there will be a need for legislative common frameworks. Those will be mostly in the fields of environmental protection and agriculture and food production.

There is no dispute in principle as to the need for those common frameworks. For example, although the law in an area such as food labelling might properly be devolved, it is generally accepted that, for the good operation of the UK domestic market, it makes sense to have single food-labelling regulations that apply across the UK, thus enabling Scottish food producers to sell their goods freely into all parts of the UK without having to worry about separate food labels. Of course, the opposite applies in relation to food producers from other parts of the UK looking to sell here.

Inevitably, that means some sharing of power—or sovereignty, if you will—whereby at Holyrood we will voluntarily agree to share powers in certain areas, for the greater good. Of course, there is nothing unusual in that concept. It is worth remembering—this is an important point—that the powers that we are talking about have never been exercised here previously. They were all previously held at an EU level, where it was understood that the EU would set rules for the better operation of the EU internal market. By agreeing to common frameworks, therefore, we are not seeing any diminution of powers that are currently held by Holyrood but, rather, a voluntary transfer of powers that would otherwise be coming here.

Having accepted the necessity for common frameworks, the key issue that the committee had to address was how those might be agreed. It was the clear conclusion of the committee, agreed unanimously, that the process for agreeing common frameworks and their content must be arrived at through agreement and not imposed. Indeed, the signs so far are that the work that is being done on common frameworks between officials in the UK Government and officials in the devolved institutions has been on the basis of negotiation and agreement between Governments, without dispute.

That said, it is clear that the opportunity for future dispute might well arise. A number of different players are involved. There is the UK Government, which has a dual role in representing both the wider UK interest and the specific interests of England. There is the Scottish Government, representing the interests of Scotland falling under the devolved competence, and the Welsh Assembly Government, which has a similar position in Wales. There is the Government of Northern Ireland, albeit that the Assembly there is currently in abeyance.

Clearly, all parties want these common frameworks to be agreed on a consensual basis. While there is no indication so far that that will not be the case, we have to be alive to the possibility that agreement will not be able to be reached. I hope that all Governments will be prepared to act reasonably and avoid that. However, in the event of a dispute, how could any impasse be resolved? Would it be reasonable to give the devolved Administrations an effective right of veto over rules that would affect the whole United Kingdom? Would that be seen as the tail wagging the dog?

Bruce Crawford referred to the review of intergovernmental machinery. It is understood by everyone—not just here at Holyrood, but by committees at Westminster—that what we currently have is not fit for purpose and needs to be improved. Within the EU, such disputes are effectively resolved through the Council of Ministers. In some areas, unanimous voting is required, while other areas operate a system of qualified majority voting. I have written in the past about how a UK council of ministers might operate, with the UK Government and devolved Administrations being represented. The problem with that model at present is that there is no separate voice for England distinct from that of the UK Government. If we were to have an effective council of ministers with any system of qualified majority voting, that would have to be looked at.

Those are, effectively, arguments for the future, although I believe that the UK’s departure from the EU will require us to look at the lacunas that exist in the British constitution sooner rather than later. In the meantime, I remain firmly of the view that agreeing common frameworks by consensus should be the way forward.

The committee recognised that there is scope for policy divergence across the UK when we are dealing with devolved responsibilities. We need to be careful that policy divergence does not create a barrier to trade or competition. If we believe in the importance of the UK domestic market—a market that is worth three times more to Scottish producers than is the EU single market—we should not want to see that disrupted.

Post the return of these powers from the EU, I believe that all Administrations in the UK need to act responsibly when considering policy changes. That is because the starting point will be that there is no policy divergence—we are all inheriting the same rules from the EU and it is only policy changes from the current status quo that are likely to present a challenge.