Hansard

Thank you very much. I put on record my thanks to our committee clerks, colleagues from across other legislatures and all those who gave evidence to our inquiry. I welcome the opportunity to open this afternoon’s debate on behalf of the Constitution, Europe, External Affairs and Culture Committee on its report, “How Devolution is Changing Post-EU”.

The report is the third in a series of significant reports that the committee has published on the constitutional changes arising from the United Kingdom’s having left the European Union. It is an important report for the Parliament that builds on our previous work on the UK internal market and the impact of Brexit on devolution. I thank my committee colleagues for their constructive and consensual approach and their perseverance in dealing with some highly complex and technical issues.

It might be useful for me to briefly remind members of the background and context that informed our work in producing the report. While the UK was part of the EU, there was little regulatory divergence within the UK due to the statutory requirement to comply with EU law in areas such as animal health, food safety and the environment. Outside the EU, that statutory requirement no longer applies in Scotland. Consequently, much higher levels of regulatory divergence internally within Great Britain and the UK and between GB and the EU are now a possibility. Given the Windsor framework, Northern Ireland has a different set of rules.

The key question for us as parliamentarians is what impact the new constitutional arrangements are having on our core legislative and scrutiny functions. Where does responsibility now sit for making law that was previously made in Brussels? Who decides whether UK-wide legislation covering a devolved area is appropriate? How do the public, businesses and other stakeholders know which Parliament and Government they should engage with? What happens if there is regulatory divergence between England, Scotland and Wales in the context of the United Kingdom Internal Market Act 2020? If there is regulatory divergence, how does business keep updated on what regulations apply to it?

There are many other questions that we could ask, but that should give colleagues a flavour of the complexities that are involved. If, as legislators, we find that daunting, how can we improve public understanding of the changes in our constitutional arrangements? For example, what about raising awareness among small businesses that wish to expand and export to new markets? What about an environmental lobbyist that seeks to allocate limited resources in influencing the legislative process?

We examined those issues, and our report focuses on four main areas: intergovernmental relations; common frameworks; the Sewel convention; and delegated powers. I will focus on the first three areas, and the deputy convener will focus on delegated powers in his closing speech.

The committee notes the view of our adviser, Professor Keating, that there is now

“a complex landscape of intergovernmental mechanisms, which has grown incrementally rather than following from a clear constitutional design.”

We note that there was

“considerable clarity, consistency and consensus in how the regulatory environment was managed within the UK prior to EU-exit. After EU-exit there has been significant disagreement between the devolved institutions and the UK Government regarding how the regulatory environment should be managed within the UK.”

The committee also notes that that

“lack of consensus, clarity and consistency ... has considerable consequences for the effectiveness”

of this Parliament in carrying out our core scrutiny and legislative functions.

Further, the committee notes:

“Without consensus at an intergovernmental level in areas such as Common Frameworks and the use of delegated powers by UK Ministers in devolved areas, there is a significant blockage to effective parliamentary scrutiny. For example, with regards to transparency and the timing and level of information provided to Parliament.

But even where there is consensus at an intergovernmental level there remains a risk that the Scottish Parliament’s core functions are diluted. As we have noted previously the increased significance of intergovernmental relations within a shared governance space raises substantial challenges for parliamentary scrutiny.”

We consider that those challenges are structural and systemic, and are not just a consequence of political disagreements between Governments. Consequently, we recommend the need for a new memorandum of understanding and supplementary agreements between the UK Government and the devolved Governments, which should specifically address how devolution now works outside the EU. That should be based on a clear constitutional design, including consideration of the principles of subsidiarity and proportionality, and it should give us more clarity.

I turn to the consideration of common frameworks. We noted that there appears to be a consensus among the UK Government and the devolved Governments that common frameworks provide an effective mechanism to manage regulatory divergence within the UK internal market. The committee’s view is that there needs to be much greater clarity around how regulatory divergence, which is a key principle that underpins devolved settlements, will be managed through the common frameworks programme. In particular, there needs to be clarity around how the market access principles of the United Kingdom Internal Market Act 2020 are intended to work in those circumstances.

We therefore believe that there is a need to re-articulate the definition and principles of the frameworks in the light of experience to date and the new constitutional landscape.