Hansard

The cabinet secretary has covered much of the background and timescales to the supplementary legislative consent memorandum, so I will focus my remarks on the three areas covered by the Constitution, Europe, External Affairs and Culture Committee’s report: the sunset, revocation schedule and preservation powers; the powers to restate, revoke, replace and update retained EU law; and the reporting requirements.

The removal of the automatic sunset addresses the concerns that we had with regard to the cliff edge of that clause. Instead, only REUL that is specified in schedule 1 now attached to the bill will be revoked at the end of this year. As the cabinet secretary outlined, schedule 1 provides that 587 specific instruments are to be revoked. The Scottish Government suggests that 148 of those instruments impact on devolved areas. As the cabinet secretary also laid out, the Scottish Government has stated that it

“considers that 9 cannot yet be said to be obsolete; and therefore opposes their sunset”.

As convener of the Constitution, Europe, External Affairs and Culture Committee, I have written to the relevant subject committees highlighting the timescales for possible removal of instruments from the schedule. We have noted concerns expressed by Environmental Standards Scotland, which wrote to us on Monday to draw attention to two of the nine instruments, noting that it did so

“based on some of our current analytical work on air quality standards and targets in Scotland”.

We have shared its correspondence with the Net Zero, Energy and Transport Committee.

There is also a wider issue, which concerns the complexity of how devolution is operating outside the EU. The committee considers that the common frameworks are the agreed process by which Governments should work together to provide clarity and certainty in delivering an effective regulatory environment while respecting the devolution settlement.

However, the UK Government does not appear to have consulted the Scottish Government on the amendments that it tabled on 10 May 2023 or to have explained the extent to which they impact on devolved competence. The committee will be writing to Kemi Badenoch, the UK minister in charge of the bill, asking why that appears to be the case, in particular in relation to the instruments in schedule 1 that fall, at least in part, within devolved competence.

The committee has previously found the Sewel convention to be under strain. The cabinet secretary gave examples of how often that has happened since the UK’s departure from the EU. We have previously written to both the Scottish and UK Governments for their views on whether they agree that the Sewel convention is under strain, whether and how it could be strengthened in law and be subject to judicial review and whether and how it could be strengthened on a non-statutory basis.

I turn to the powers to restate, revoke, replace and update REUL. The Scottish Parliament ought to be able to effectively scrutinise the exercise of all legislative powers within devolved competence. The committee considers that to be a fundamental constitutional principle.

There are concurrent powers to amend REUL in the European Union (Withdrawal) Act 2018. In 2018, the then UK Government gave a non-statutory commitment that it would not normally use such powers in areas of devolved competence, and not without the agreement of the relevant devolved Administrations of the UK. The committee will therefore be writing to Ms Badenoch to ask why a similar commitment has not been given on the Retained EU Law (Revocation and Reform) Bill.

We note that there is also a lack of clarity on how common frameworks are operating both generally and in relation to REUL. There needs to be much greater transparency and accountability, and an opportunity for the Scottish Parliament’s committees to scrutinise the decisions of both Governments when they relate to devolved areas. The committee therefore invites the Scottish Government to provide it with a detailed response on the effectiveness of the common frameworks, including how they are being used in relation to REUL, and it extends the same invitation to the UK Government.

My final theme relates to reporting requirements. For Scottish ministers those should, as a minimum, be equivalent to the requirements for UK ministers. Once the requirements are more settled, the committee will invite our officials, and those from the Scottish Government, to look at how they can work in practice. In our opinion, such scrutiny of powers to restate, revoke, replace and update REUL should not be conflated with the Scottish Government’s policy commitment to align with EU law.

I take this opportunity to thank the Scottish Parliament’s officials and those from the Scottish Government for all their work on the supplementary LCM.

Time has not been on our side and, as the cabinet secretary laid out, the timescales on reporting on the LCM have been challenging, but we note the Scottish Government’s commitment to provide further updates as required.