 Good morning and welcome to the 10th meeting of the Constitution, Europe, External Affairs and Culture Committee. Our first item of business is the continuity act, draft policy statement and draft annual report. On the 29th of October, the draft policy statement and draft annual report on the use of the keeping pace power in the European Union continuity Scotland Act 2021 would lead in the Scottish Parliament. As part of our scrutiny on the draft documents, the committee will hear this morning from Professor Kenneth Armstrong, Professor of European Law University of Cambridge and Mary Snowden, director of the Human Rights Consortium Scotland. Welcome you both for the meeting and thank you for your briefings for today's meeting. I'm going to move straight to questions from our members, but if I could start with a question to Mary initially. In your submission, you highlight, one of the key areas of the debate during the continuity bill passage through Parliament was transparency and openness of decision making and how stakeholders in Civic Scotland would be involved in that process. I wonder if I could just ask you to elaborate on those comments and thoughts. Thanks for the invitation to speak with you today. Right from throughout the Brexit process, one of our members' biggest concerns has been about keeping up with EU and not lagging behind. We were pleased to see the keeping pace powers in the continuity bill and in the act. One of our concerns now is looking at that draft policy statement and at the draft annual report is that we are left with lots of questions. Transparency and scrutiny of the decision making around when to align and not to align is crucial for making sure that we align wherever that means that it will advance or maintain rights and standards. It's very difficult to see from that policy statement or the annual report if that's happening, how it's happening or the criteria being used around those decisions. We're really just left with lots of questions and that's concerning for transparency. The other question that we have around there is a mention of consultation but again a little detail of what that means or looks like and how the Scottish Government is keeping up with what's going on in the EU. We mentioned in our evidence as well around the national mechanism for monitoring, reporting and implementation which is something that the Scottish Government has committed to consider and to consider specifically that it will monitor EU developments and so the fact that that's not mentioned in this policy statement I would be interested to know some more detail about that as well. I think it's just that openness and transparency to know what decisions are being made and why when it comes to keeping up with rights and standards. Thank you. If I could ask Professor Armstrong in your role as adviser to the session 5, Finance and Constitution Committee highlighted the impact which the market access principles in the UK internal market act could have on policymaking in Scotland. So in considering the Scottish Government's commitment to keep pace with EU law how might that be impacted by the market access principles? Good morning, convener, and it's a real pleasure to appear before you this morning. Thank you very much for the invitation. I think that as the policy statement itself says, there is a possibility that ministers' exercise of their discretion to align or not will be impacted by considerations of the UK internal market act. Before developing that, just to kind of develop the point that Mary was making, I guess one question you might want to ask is, when would we know that, when would we know that ministers were deciding not to exercise their powers because they felt that there was a constraint emanating from the UK internal market act? Or when is it simply an exercise of policy discretion by Scottish ministers? So knowing where that lies I think is important. Certainly, if the powers were to be used in a way that gave rise to an internal divergence, so alignment with the EU, but internal divergence within the UK, that could trigger the market access principles. The question will be in what circumstances may that happen? What would be a good example of that? Obviously, it has to be something that is within devolved competence, which will also give rise to change at EU level. There may be another number of examples. You probably have heard some of those before, but some of the issues around the use of plastics and even microplastics in products. Perhaps something that is in the commission to work programme for the forward loop for next year is the marketing of plant seeds and revisions to that legislation, which would fall within devolved competence. Where the Scottish ministers to align with any new position under EU law, that could potentially trigger the application of the market access principles under the UK internal market act. I want to move to questions from the committee. I should have said that Mr Golden has delayed travel problems this morning, but we are hoping that you will join him at some point this morning. I invite Ms Boyack to ask her questions. Thank you very much. It is very useful to read your paper to us this morning. I suppose that I am thinking about the transparency issue that I think both of you have just mentioned about how is this tracked and the extent to which the Scottish Government makes public the different calculations that it has in terms of new EU legislation. You have mentioned a number of different issues, such as deposit return scheme, minimum unit pricing and water services. I was wondering if you could say a little bit more about the water services issue and how you think we would track that particular issue given the range of key players involved across Scotland who would have a very strong interest in that issue, both in terms of businesses, local authorities, Scottish water and then environmental campaigners? Thank you. I think that the water services issue is somewhat separate from the keeping pace. It is not necessarily something that would change because Scottish ministers were doing something under a keeping pace part. The point that I was trying to illustrate in that example was that issues of services—we tend to focus on issues around goods when we think about the UK internal market act, but we also need to think about services. The way in which the act is structured is that it is true that certain aspects of water policy are excluded from the operation of the act, but it is not excluded from the issue of authorisation to supply water services. Depending on how the act was interpreted, it was open to say that a water company authorised to provide services in England or Wales would also be able to offer those services in Scotland, despite the fact that, as we know, we have a public service provider of water services in Scotland. I am not sure that I see that that is directly linked to the keeping pace part. It is just another example of the way in which the UK internal market act itself opens up devolved policy-making choices to potential regulatory competition from within a UK internal market. That clearly has implications for how devolved powers are exercised. I have described that elsewhere as being a competitive model of economic unionism rather than a more collaborative one in which we look to, for example, the common frameworks process as a way of trying to establish inter-governmental co-operation. Just to follow up, your issue is not about the water quality and that regulation, it is about supply of water. I am just trying to clarify, just to gain your briefing to us. On the water quality side of things, that is clearly a regulatory activity that would fall under the act within the non-discrimination principle, and that is the non-discrimination principle. It is clear that aspects of water services are, in fact, excluded from the operation of those principles. Whereas in the other issues that you mentioned in terms of deposit return scheme and minimum unit pricing, you also mentioned the issue of potential legal challenges. Do you want to say a little bit more about that? I can do so quite briefly. Bearing in mind the briefing that you have seen was written when the bill was in the commons and there were, of course, subsequent changes made. Michael Gove appeared before the Finance and Constitution Committee to confirm that, as regard minimum unit pricing, that would now not fall within the mutual recognition principle, although it could fall within the non-discrimination principle. It could be that further changes in the minimum unit pricing. After the review that would take place between 2022-23, that could potentially fall within the non-discrimination principle, in which case, a bit like the earlier Scotch whiskey case, it would be up to courts to establish whether the Scottish Government's approach was compatible with the act. I think that the bigger issue is undoubtedly the deposit and return scheme regulations, which will become coming on stream from the beginning of 2022. There is very obvious and very clear scope for producers outside of Scotland to seek to rely on the act in order to supply and, in fact, fundamentally undermine core aspects of the regime that is established. In the briefing paper, you have seen the different bits of those regulations that I think would trigger the act. Ms Snowden, do you want to comment on any of those issues? Just one comment about transparency in the midst of such complexity that it is really important—more important than ever—that the Scottish Government is particularly clear and public in terms of its decision making in order that it can be held to account on what it has said that it will do and that it is doing it. I think that that is ever more important and particularly important because there is a real struggle amongst civil society organisations to follow what is happening in the EU. There is so much law and policy there to understand the internal markets and how that acts and applies. In all of that complexity, there must be transparency and real public criteria about decision making. What would work for you in terms of transparency—a website that set out issues that we are being looked at, our traffic light system so that you could see where there was not going to be change, where there was change being considered and where change was likely to be implemented so that your members in wider civic society could be consulted about that? What would work in terms of the vast range of different organisations in terms of the resources that different members of your organisation, for example, have, whether it is environmental or the human rights angle? Yes, absolutely. It is simple and straightforward to be able to access at any time and know what is going on. I appreciate the annual reports, for example on the keeping pace period. That was one of the purposes, so it was a regular reporting and transparency. As it stands, the one that we have said is that there has been no consideration and it makes you wonder what there is no consideration mean. It is absolutely something like a website, something just clear about maybe the forums where they will raise these and get inputs from other people. As I mentioned, there is that plan. There has been a proposal and an acceptance to consider a national mechanism for monitoring, reporting and implementation around human rights specifically. That will include a UN and international level, but it was also meant to include around developments of the EU. That mechanism would be a way of making things more transparent. I think that there are lots of ways that can be done, but it is definitely something that is accessible that people can see and hold them to account through. I have a question for Ms Snowden. You just touched on the issue that you raised earlier on about what could be done in Scotland to explain and publicise the issue of keeping track with or keeping up with and finding what European legislation there is to keep up with. Can you just explain for us what it is at this stage that the UK, with its residual representation in the EU, is doing to keep track of legislation and whether it does anything to publicise it? That is a good question. I am not sure that I have been involved in a lot of Brexit discussions throughout the process and I have worked closely with colleagues across the UK. There is certainly not that same discussion, as far as I understand it, from what I have been involved in around keeping pace. I could not answer for the UK, but clearly in Scotland we have a commitment to align where it makes sense, which is really positive from a human rights point of view. We want to know what is happening then and the decisions that are being made. My question is for Ms Snowden, and it is around your comments in your submission on consultation. It is a point that COSLA also makes. COSLA, in its submission, says that it is anxious to consult, but it has not really had the opportunity to do so. Given that, as everyone accepts, EU law is rapidly changing the body of law and there are every year huge amounts of material, can I just ask you about the practicalities of consultation? How do you see that best happening? I think that often when we think of consultation, we think of a consultation document that goes out and you have a couple of months to respond. That is absolutely appropriate sometimes, but I think that for that, because of the amount of EU law and policy and the considerations that need to happen, it would be helpful to ask the cabinet secretary around what forums he will use to have those discussions about what is most appropriate about the impact of different elements of EU law on people's lives and to consider it in that way, so what would really advance people's rights in their lives here? For example, there is no forum at the moment around keeping up with the EU and the voluntary sector, but there definitely could be and that would be really valuable. It could be more discussion forums as well as formal consultations, so it could be a whole range of things. I do not underestimate the extent of EU law and policy, but, nonetheless, there will only be some that fall within devolved competence and there are lots of criteria that can be applied to be able to identify some key ones for discussion. Thank you for that. It strikes me that the standard consultation that we are all used to when the Government publishes a paper and invites responses within a certain timescale just will not work for this kind of thing given that it is a constantly evolving subject. Forums is definitely one way forward. I am just interested in the practicalities of how that happens between civil society or COSLA and Government. Do you have any further thoughts? I think that the national mechanism that I spoke about is one way of doing that. There will be a particular resource set up that will have a core function of monitoring EU policy and having those discussions to make sure that it is clear. There are things about the links that the Scottish Government has with the Fundamental Rights Agency and the EU level on how they are monitoring what they are working on and what comes out of there. In terms of just the practicalities of consultation, I think that there are good examples across the Government where they have different forums where they bring things to the table to discuss. There are definitely practical ways of doing that where they can identify some key issues and then invite comments on them and discussion around it. My final question is for Professor Armstrong. In your submission, Professor Armstrong, you write about the application of the market access principles, and you discussed that already this morning. One thing that I am interested in pursuing is the TCA and whether you think in terms of keeping pace what implications the TCA will have for keeping pace powers. I think that what is clear about the TCA in its design was that it was designed to give the UK as a whole the greatest autonomy to decide its future regulatory policy. As a consequence of that, there are limited constraints built into the TCA on that exercise of regulatory autonomy. There are, of course, the level playing field obligations, which, as you know, cover competition, state aid, environmental and labour standards. The requirement generally on labour and environmental standards is, of course, to maintain the level of standards as they stood at the time at the end of transition. Any significant divergence can trigger different mechanisms under the TCA, so it is a way of trying to, to some degree, manage divergence. However, what is crucial is that it does not mandate alignment and that the TCA's mechanisms are only a means of managing divergence. From that point of view, alignment as a policy choice remains open to Scottish ministers. The constraints are less likely to arise directly from the TCA. They are more likely to arise in terms of where policy is moving generally in that area. I was going to ask you not just about alignment in terms of, you know, primary legislation that is coming through directives, but also about how those laws, once they are in domestic legislation, are then being interpreted. I am aware that, for example, with environmental legislation, there are often different interpretations of the habitats regulations that then go to the European Commission, and there are often petitions and concerns about, for example, licensing the killing of certain species or whatever. I am just wondering whether you feel that is another area where there potentially could be a divergence in terms of the interpretation of laws that originally came from Europe, but are now in our domestic legislation and perhaps could be open to different interpretations. We know from the UK legislation that dealt with the UK's withdrawal that existing EU case law would be retained as retained EU case law up until the point that it stood at the end of the transition period. Thereafter, EU case laws are of course not bound by future developments in EU case law. Even as regards existing case law, there is the mechanism for the highest courts to depart from that case law for good reasons. As you may be aware, there is some desire at UK level to relax that EU. There was a consultation on doing that last year, but it only relaxed to some degree. I am not sure that courts are necessarily in a big hurry to want to be the leaders on issues of coming up with new and radical reinterpretations of that. They are very sensitive to the fact that those are significant policy questions within the UK and between the UK and the EU. The Court of Appeal in England was recently asked to exercise its power to diverge from previous case law, and it did not find any good reason for doing so. It did not indicate that there was much of a hurry to do so. However, what you highlight is something very important in that we have a scrutiny mechanism contained within the continuity act that is very narrowly focused on a particular type of use of a particular power in respect of alignment. What is very clear from the policy statement and from the answers that Mary has given this morning is that the landscape of alignment is much broader than that. It can happen in all sorts of different ways. It can be through case law, soft law, policy guidance, etc. I think that what is really lacking now is a framework for analysing what explains why alignment does or does not happen. The way in which the architecture of the act is focused is likely to be avoided in many circumstances because, as we know from the statements that we have got in the annual report, there is no exercise of that power at the moment. What we do not know is that, beyond that in terms of primary legislation, as you indicate, it potentially changes in case law or changes in guidance, are the things happening out there within the wider environment that this Parliament is not being able to scrutinise in the way that you may want it to in the monitoring mechanism that Mary described as a very interesting and important one. One thing, just to say very quickly, is that there is a commission annual work programme that tells us a forward look as to what is coming down the line. I think that there is some mechanism of monitoring that to see how much of that is of relevance to Scotland and what would explain why Scottish ministers decide whether by regulations or by legislation to align or not to align and some scrutiny round about that. I think that the architecture contained in the act is a useful one, but only for that very small thing and therefore it is about expanding that architecture into a broader scrutiny framework. I am just thinking there also, as you are speaking, about what the role is for wider public bodies as well. You are sticking with the environment. I would presume that SEPA and NatureScot were very aware of any decisions that are coming out of the Commission or the European Court of Justice on environmental regulations that they would, I presume, wish to be aware of or at least to flag to ministers if there was a potential for divergence over say species licensing proposals or whatever. If you have any thoughts on the role of environmental standards Scotland, because the Commission has gone, we have got environmental standards Scotland now, should they be a more full part of this architecture of scrutiny and understanding what alignment actually means on the ground? One thing that the legacy report from the Finance and Constitution Committee was very aware of was that stakeholders, broader stakeholders, had good information resources, which would be very helpful for a committee like your committee to be able to tap into acquiring knowledge about what is changing in the policy landscape. The kinds of ideas that Mr Cameron was talking about in terms of forums or bringing together the different bits of the sectors, such as ministers, public agencies and third sector organisations, such as the ones that Mary Ripp represents, in some form of forum, possibly prior to ministers producing their reports, in a sense to try and bring the relevant stakeholders together to say, what would be a good reason for aligning and is there consensus on why alignment may not be required because of the balances that the statement says has to be drawn between not just the desire to align, but also the financial implications, other sorts of risks, etc. In a sense, having a very open forum discussion between relevant stakeholders, public and private, would be a very useful way of informing the policy process as to when should alignment happen and when should it not happen, and would also help scrutiny of the key choices that the Scottish Government is making. My last question was just around how this works with other countries that are perhaps aligned, perhaps part of and equate with the European Union, but are not in the European Union, so those in Eftar, Norway and other countries have a presence in Brussels and obviously stay well informed about policy development in Brussels. How they have dealt with this question, how they are staying aware of policy changes and how they are then developing those discussions with their own stakeholders and with their own public bodies? The Eftar example is very specific. For example, in Norway, there is a requirement to align with rules that fall within the scope of the European Economic Area agreement. From that point of view, because there is a requirement to align rather than a discretion, the flow of information is much more specific. There are also different ways in which Norwegian parliamentary committees are locked into the parliamentary framework that also applies to the European Economic Area agreement. In a sense, although outside of the EU, there is a structural institutional framework that allows for that flow of information, and what is very apparent is that, outside of the European Union, the UK does not have the same access to that flow of information. Parliamentary structures—the UK Parliament and the Scottish Parliament—are highly reliant on whatever the Government can provide to the UK by way of information. I think that the question that you might pose, and I think that the one that, again, Mary Rees and her remark says, is there a role for civil society actors to do some kind of shadow monitoring to some degree and to help to provide EUs parliamentarians with the kind of information and resources that you need to provide effective scrutiny and not be solely reliant on ministerial conduits or that kind of information? I was just wondering if you wanted to—we're talking a lot about the transparency issues. I just wondered if you wanted to respond to Mr Ruskell as well. Sorry. Sorry, I just missed the beginning of the question. I think that I agree with everything that the professor has just said. I think that what is interesting is that civil society do have a role and can have a role in helping the Parliament to scrutinise Government decision making in this area. I think that it's a huge challenge and one that the Scottish Government should think about in terms of how they resource civil society organisations, those that they fund already. Are they encouraging them to continue to be involved, for example, in European networks? That's one of a major concern. A lot of organisations that, as we moved out of the EU, would still be able to be members of those European—some of them are EU networks, some of them actually are Europe-wide in the continuing, but it's really important that they stay completely plugged into those in order to have that depth of insight and information that they can use for the purpose of scrutiny. I think that they've got a key role to play in all of that. We're not plugged into or we're unplugging from at the moment. Are there any networks that we're unplugging from at the moment? Sorry, I was at the beginning of the question again for some reason. I don't have specifics, but I know that there has been quite a lot of concern about making sure whether there are EU specific networks, some of them have taken the position that UK organisations can no longer be a part, understandably. Others have given association agreements where they recognise the benefit of that. Certainly, that's something that SEVO has been looking into quite closely. It's definitely a concern, because it is one other example of the side institutions, if you know what I mean, to the EU that we now stand outside of. Thank you for joining us this morning. Mr Ruskell's questions overlap with the one that I was wanting to ask. I was interested in the evidence that you've given with regard to advancing human rights. My questions were going to be along the lines of how are you able to continue to plug into what is happening within the EU and around about the world. Unless there is anything that you specifically want to add to that. One other point is that it is also about the funding and resourcing of organisations to be able to do that. That has been a concern, because we are no longer within EU funding structures, so structural funds and all the aspects of locks. One of the things that we flagged up in our recent report on questions arising out of Brexit was just that. What is the Scottish Government on monitoring the loss that that is in terms of both EU funding to the third sector? What will be the loss of that, but specifically in terms of the loss of these European connections then and the resources to be able to really engage in that? I was also interested, and this is myself coming from a place of—I'm learning very much every day about with regards to this—the Istanbul Convention. It came in. It was signed by the UK Government in June 2012, but as you comment in your evidence that it's yet been ratified. My question is, are conventions like that something that the Scottish Parliament could make a decision on ratifying? Is that a question to me? Sorry, it keeps coming in now. The Istanbul Convention would have to be something that was decided by the UK Parliament because it's an international treaty, and the UK Government has signed it but not yet ratified it. Actually, there's really disappointing because we're coming up to 10 years since it was signed. Part of the reason for that is that they're working towards compliance before ratifying is their approach, but there is a great deal of concern now that they just need to progress with ratification. That this is absolutely necessary, you know, 10 years on, and we're beginning to be left behind. It's a really good example of where, if we were still in the EU, there would be more expectation and pressure that the EU is asking all member states to ratify the convention, but the UK has not yet done so. There's certainly a concern that that should happen soon and before 10 years come up, which is June next year. I don't know if Professor Armstrong wanted to comment on those questions. I've got nothing to add to what Mary said. I wonder if I could return Professor Armstrong to something that you were seeing earlier on specifically. You did say that this would be about devolved issues, that the Scottish Parliament and the Scottish Government would be looking at, but so much of that is dependent on the operation of the TCA. There's also the PPA delegation, which won't involve the devolved legislatures across the UK and will come from Westminster. It's very much a hypothetical, but if the common frameworks don't work and we have a situation where the Scottish Government wants to align with the EU in a devolved area but an executive power is used at Westminster, do you foresee that as a potential? What would be a conflict resolution in that kind of situation? The common frameworks are on the assumption that different jurisdictions in the UK have powers and authority to enact rules in areas. It's a way of trying to at least seek consensus where it's possible on common approaches but also to allow divergence where that is legitimate. Where that divergence then happens, that in itself isn't the end of the matter if the Scottish Government then does decide to do something different. For example, I mentioned that the commission's work programme has something about revising the marketing of seeds legislation. That is something that falls within the scope of one of the provisional common frameworks at the moment. It may well be that that will be taken forward on a common approach, but if it doesn't, then of course Scottish ministers may decide to do something somewhat different. If they do so, then the question is, is that exercise of power constrained by other means, particularly by other legal instruments? Could it be constrained by the UK Internal Market Act? Would there be anything within the TCA? I don't think there would be. The point that I think you're really highlighting is that with all of those situations we need to start with what happens when the power is exercised and what are the range of constraints that may exist round about it. Of course, the other level of constraint might be other international trade agreements. Of course, remember that this will be something that will be done at a UK level negotiated by the UK Government with any scrutiny of that, largely done by the Westminster Parliament. Anything that is an obligation under an international agreement is something that can be enforced to constrain the exercise of devolved powers—it has to be compatible with our powers in Scotland—to compel compliance. We need to always be aware that it is always very difficult for all of us when we are trying to get our heads around any particular piece of any of this that we don't end up with little silos of bits of information. In the sense that the real challenge is trying to put together the complexities of where does the power lie and what are the range of potential constraints that may lie round about it. I'm looking to members to see if they've got any. Thank you, convener. I've got a specific question for Professor Kenneth Armstrong. It's very helpful in the briefing paper to give some three interesting case studies. I was quite interested around the deposit return scheme issues around if the non-discrimination principle applies. Is there anything that we can do in advance of that to safeguard against potential legislation or litigation? If not, is there a potential that the scheme would need to be delayed until that litigation was and the court ruled in terms of which principle might apply? Interesting question. The regulations are there. They will come into force. It's in everyone's interest that they're applied. The question then would be, what should happen should the producer of a soft drink from another part of the UK take to argue that they can avoid the requirements, for example, to register with SIPA or to have their product authorised to be placed on the Scottish market. At that stage, it would be for any court to entertain any questions as to any interim measures that the claimant may seek by way of suspension of the operation of the regulations pending any final outcome. In many ways, I think, what is clear from that, and I completely understand your question in a sense of, is there anything that we can do to anticipate any of that, but what is very key about the UK Internal Market Act, as a technique for managing the internal market, is that it is after the fact that it assumes that new regulations come into place, come into force and then we just have to deal with the consequences with all the uncertainties that that litigation may throw up rather than the kind of ex ante approach of common frameworks, where we are thinking about putting in place new rules. Is there any risk of any divergence creating a problem? How do we manage that? Any UK internal market that is built solely on this kind of ex-post litigation strategy will create all the types of legal uncertainty that your committee has already heard about. I know that you had evidence last week from the drink industry, from the Law Society of Scotland and, I think, one of the alcohol awareness groups. What is very clear from their evidence is the question of uncertainty. Any strategy that relies purely on litigation as a way of managing divergence is always going to create that uncertainty within the environment, and that is not necessarily a good thing. I am just very struck by that comment that you just made there just before Morris Golden came in about the constraints. Professor Armstrong, if you were framing it in a different way about thinking about opportunities, how would you do that? Rather than looking at what you cannot do, looking more at what you could do in the context of priorities by the Scottish Government? Absolutely. That is one of the reasons why the idea of having some novel style of forum would be useful to push and tease out what opportunities are there and explain why we should not take those opportunities. It would be useful in all walks of life to have a degree of professional challenge and to bring together a range of well-informed stakeholders that would provide a degree of challenge. When you say that there is a risk, what is that risk? What is the risk of aligning or what is the risk of not aligning? Are there ways of managing or mitigating those things? In a sense, perhaps one of the more interesting ways of presenting might be—I do not know whether Mary would agree with that or not—to look at the European Union, not just through the lens of compliance and alignment but learning. Are there things that we could learn about, including their failures? Let us be honest about that, too, that we do not always assume that the European Union's regulatory models are successful. They may have limitations, too. Are there things that we can learn from those experiences? Building in strategies that provide better information and allow degrees of challenge and degrees of learning from the experiences of our nearest neighbour would, in some ways, help to reframe some of those issues and, to some degree, depoliticise them. It is clear that the question of alignment and divergence in the immediate post-Brexit period can become highly politicised. If we change the narrative somewhat and think about what we might want to learn from those experiences, it might be a way of building a greater degree of consensus. That is a really insightful comment. It could also apply within the UK as well. It is interesting in terms of cross-government and cross-parliamentary scrutiny and accountability. I agree absolutely with that learning point. I think absolutely within the UK, absolutely on human rights progress and developments. We learn all the time. We learn within civil society. We constantly have discussions with Northern Ireland and Wales, England in terms of learning about human rights developments, and that is absolutely true of the EU. To flag up the EU is no human rights organisation. It might not be that everything that it does, we would want to align with if we have a core commitment to progressing human rights. Nonetheless, there is definitely learning and elements that we want to take on and embrace because they are good for making rights real in people's lives here. Thank you very much. I do not see any more questions coming from the committee. I thank both Professor Kenneth Armstrong and Mary Snowden for their attendance at committee this morning. It has been a very helpful session. I will suspend briefly to allow the new witnesses to come in. I welcome everyone back. The committee will now move to the second agenda item on the continuity act, draft policy statement and draft annual report. We will hear from the cabinet secretary for the constitution, external affairs and culture on the continuity act. The cabinet secretary is joined this morning by George McPherson, head of policy and alignment of the Scottish Government, and Lorraine Walkinshaw, Scottish Government legal directorate at the Scottish Government. I welcome you all to the meeting this morning, and the cabinet secretary can invite you to make an opening statement. Very much, convener. Today, we are focusing on the European Union and, in particular, alignment with European Union laws and standards. The background to this is that the people of Scotland have made clear on a number of occasions, not least in the Brexit referendum, that Scotland should continue to be a part of the European Union and that the Scottish Government believes that the people of Scotland should have the right to choose their future as an independent nation, which is a member state of the European Union in its own right. We will continue to advocate for Scotland's place in Europe and the world. We are committed to remaining close to the European Union in the meantime and to build the strongest possible relationship between the EU and Scotland. We have demonstrated that in many ways from our policy choices to our investment in our enhanced overseas presence and our commitment to giving the ones of welcome to EU nationals. The approach lies behind our policy to maintain alignment with the European Union where appropriate, in a manner that contributes towards maintaining and advancing standards across a range of policy areas. We will do so to protect the health and wellbeing of people in Scotland and maintain Scotland's international reputation as inclusive and outward facing. By protracting and continuing to advance the high standards that Scotland enjoys, we will also ease the future process of Scotland's return to the European Union. We are doing this in a whole range of ways, in our policies, in our grant giving, in our guidance and in our practice. We will take as a default the measures adopted by the European Union. We support EU standards and hope soon to be applying them here. Of course, the same will apply when we come to relevant legislation and I think that this lies at the heart of this morning's evidence session. For nearly 50 years, Scotland formed an integral part of the European Union. EU law either had direct application here or we were obliged to implement it into Scotland's law by powers granted under the European Communities Act 1972. Since the UK has left the European Union, ministers have replaced that obligation with a policy to continue to align devolved law with the EU where that is appropriate, in other words, where it is possible and within Scotland's interests to do so. That acknowledges a number of factors. I think that this is at the nub of the issue before us. First, in some cases, literal application of EU law to Scotland may not be possible due to the current context of Scotland's and the UK's status as a third country post-EU exit. For example, the law may not have been designed to be applied outside member states of the EU. Secondly, the Scottish Government may be constrained from doing so due to international or existing legal obligations, in particular reservation by Westminster. Thirdly, a combination of circumstances, including, for example, the operation of the UK Internal Market Act, may mean that ministers judge that alignment of legal texts is not in Scotland's overall interests for that particular law under the current constitutional dispensation. In such cases, ministers may judge that, due to circumstances outwith our control, a level of divergence is within Scotland's interests. However, such an approach will always seek to preserve the values and outcomes that we share with the European Union. From tackling the global climate emergency, protecting our environment, supporting smart, sustainable economic growth and recovery from the pandemic, Scotland will not deviate from those common aims. In short, we need to be clear that the power in section 1.1 of the continuity act provides us with an important means of achieving alignment, but it is not the only means of achieving this. The policy statement sets out that our starting point is to align via policy development. If a law is required, primary legislation may be more appropriate in some instances, and the preference is that specific domestic power should be used for making secondary legislation if available. That does not mean that the power in section 1.1 is unimportant far from it. It provides an important backstop when a legislative change is needed to align, but primary legislation is not necessary and subject-specific enabling powers are not available or not appropriate. Although we have not yet needed to call upon the power provided in section 1 of the act, it is critical in maintaining the Scottish Government's ability to make subordinate legislation where appropriate in order to ensure that we can keep devolved Scots law aligned with EU law as it develops. We will not hesitate to use the power in future where appropriate and necessary. Let me turn briefly to the two documents before you today, convener. Part 1 of the UK withdrawal from the European Union Continuity Scotland Act 2021 requires that Scottish ministers publish a statement of their policy on the approach to be taken, the factors to be taken into account and the process to be followed when considering whether to use the power under section 1.1. Prior to the policy statement being published, it must first be laid in draft before the Scottish Parliament. That statement is laid in draft in accordance with section 7.3 of the act for a period of 28 days, and I look forward to considering members' representations on the draft in preparation of the policy statement, which will be laid before the Scottish Parliament for approval. Part 1 of the act also requires Scottish ministers to prepare and lay before the Scottish Parliament a report explaining how the section 1.1 power has been used during the reporting period, how it is being considered for use and how it is planned to be used over the coming reporting year. That report must also set out how the use and planned use of the power has furthered or will further the purpose of the power in section 1 to contribute towards maintaining and advancing standards mentioned in section 2 of the act. Finally, convener, the Scottish Government's first draft report covers how the section 1 regulation making power has been used since its commencement on 29 March 2021 until 31 August 2021. The report is laid in draft for a period of 28 days, and representations are invited on the future use of the power as described in the draft report. I look forward to considering members' representations in preparing our final report. I hope that the short introduction has given members helpful background on the important issue of alignment and I look forward to taking any questions. I am delighted to be joined by my colleagues, who no doubt will be able to answer any more technical aspects of its application by the civil service. Thank you very much, convener. Thank you, cabinet secretary. I wonder if I could open with a general theme from the submissions and some of the evidence that we have indeed heard this morning. That is really to help our understanding of how the Scottish Government is informed of what is happening in Europe, given that we no longer receive EU directives. What are the capacity issues for being able to take that on board and assess it, and how the Scottish Government might consider communicating those decision making processes and that information to the wider Parliament and indeed this committee? That is the situation that is in flux, given the fact that the United Kingdom has only recently left the European Union and the institutions that were in place to manage the interrelationship between EU institutions and member states. In this case, the UK, now a third country, has been changing. The committee members will be aware of the role played by UCCREP, the permanent representation of the United Kingdom to the European Union, which was extremely well staffed with extremely competent officials understanding the full breadth of the work of the European Union and its institutions. That has now changed. There is a UK mission, UCCMIS, to the European Union and how it reports to the United Kingdom and, by extension, devolved administrations is also subject to change. Those are things that are not in our power. We did not choose to leave the European Union, we did not choose to downgrade our representation to European Union institutions. We are having to deal with the consequences of this changing, worsening situation in my view. The way in which we deal with that is that there is a central team within the Scottish Government and the directorate of external affairs, which works closely with Scotland House in Brussels and also with Scottish Government lawyers. I have excellent examples of my colleagues in both of those fields sitting next to me here. They work in support of the policy directorates across the work of the Scottish Government to consider the Government's policy to maintain and advance EU standards where appropriate. The team supports this work as part of DEXA's on-going business, which is to help to enable policy areas to understand the international context of their work. That team ensures that policy areas consider where alignment may be possible and how they can support ministerial decision making in considering alignment alongside the range of information and other priorities that the Government must consider in reaching policy decisions. I have a confession to make before Mr Ruskell manages to catch your eye in relation to the work of the committee. I should put on the record that I used to advise members of the committee in the early stages of the evolution in 1999 and 2000 and 2001 on the very question of the scrutiny of European legislation before the committee. I am right in recalling that there is not a single member of the committee now who was on the committee then. I will briefly share with you one of the big differences between how you have worked recently and how colleagues worked then. Was it a considerable amount of time that was taken up with what was known as the sift of European documentation? How could the committee continue to understand what was coming from European institutions? What was it that this, as a committee and by extension the Scottish Parliament, needed to understand about particular European Union regulations, directives and so on, to ensure that the Parliament and Government was best informed about that? During the last 20 years of devolution, the committee has taken the view that that was not an efficient and effective use of the committee's time in maintaining optimal scrutiny of what was emanating from Brussels. Having sat on the European Scrutiny Committee in the House of Commons for 15 years, I can attest to how much time and effort was spent looking at the papers that emerged from Brussels, often with not tremendously great effect. What I would want to flag up to committee, which I think might be helpful to you, is that the European memoranda in relation to European proposals, regulations, laws and so on is, to an extent, continues to be produced. If the committee, if the clerks, if anybody else is wishing to spend a lot of time, and it takes a lot of time to do your individual or collective sift, as was done previously by this committee or was done by the European Scrutiny Committee of the House of Commons, the ability is still given to do that, if you feel that that is something that you would wish to do. I want to move to questions from committee, and Dr Allan first. I do not think tangentially that it is quite closely relevant to what you are talking about just now. Your correspondence recently with Lord Frost about the Northern Ireland protocol and the implications that might have more widely, perhaps, for Scotland as well. You have used quite strong language. Why have you said that you are alarmed by the state of the conversation between the UK and the European Union about the protocol on Northern Ireland? Members will be aware that the United Kingdom is currently actively considering whether it should use what are known as article 16 powers in relation to the Northern Ireland protocol. Effectively, the UK is saying that we do not think that the agreements that we agreed and signed with the European Union are fit for purpose unilaterally. One has had reason to believe in recent weeks, given what has been emanating from discussions with the European Union, that Lord Frost and colleagues are actively considering pursuing this course of action. That is unilaterally repudiating an agreement that I think I am right in saying was described as oven ready and was a huge negotiating success. The consequence of this, if it should be proceeded with, is that notwithstanding the economic damage that Brexit has already caused, and I think that members are well cited on the estimates that have been made by neutral organisations assessing the quantum of damage from Brexit being at least twice as that of the coronavirus pandemic, and the impact on UK exports to the biggest single market in the world is down by more than 15 per cent. The view of the Scottish Government is that anything that leads to a yet further worsening both of relations with the European Union but also the impact on our economy would be a hugely retrograde step. That is observation 1. Observation 2, that the UK Government would consider doing such a thing without any active or serious consultation with the devolved administrations of the United Kingdom, is yet another sad example of how the devolution settlement and bringing back control from Brussels also means bringing back control from Edinburgh Cardiff and Belfast, which is a retrograde step. We have tried to flag up with Lord Frost, as have a great many people in Northern Ireland, because in the first instance this deal is related specifically to Northern Ireland and the danger that it would pose turning one's back on the agreement that was reached, that it may lead to a worsening in community relations in Northern Ireland, which is a euphemism for the potential return for violence, which I do not think is in anybody's interests and all of us should be seized if making sure it does not happen. In answer to your question, Dr Allan, we are very concerned about the UK's aggressive diplomatic approach. We are very disappointed that it has happened without any active consultation with devolved Governments across the UK. I and colleagues in other devolved administrations have called for those discussions to take place before any precipitous decisions are made in relation to article 16. I very much hope that the UK Government will step back from its threatening position incidentally, which undermines the trust and belief of decision makers in the European Union that the UK is a trusted partner, that it will deliver on what it agrees on, which is to our detriment notwithstanding the fact that we did not agree with Brexit and notwithstanding the fact that we do not wish for the Northern Ireland protocol to be treated in the way that it is by the UK Government, it is us that is also caught up in the backdrop on all of that. Do we know whether the UK Government will proceed with article or using article 16 repudiating the Northern Ireland protocol? No, we don't. It might have been a negotiating tactic to try and get some concessions from European institutions who have signalled very loudly that they are willing and open to ensuring that improvements that can be made to arrangements can be made. However, as a note, I leave a thought with you that, should the UK Government go ahead, it is widely expected that the European Union will consider countermeasures to the UK's aggressive approach. What that means is the potential for tariffs being imposed on products from Scotland in relation to the European Union. It would not be expected that that would be immediate. There are time factors built into the process, but it is entirely possible that, should the UK Government continue with its aggressive approach against the European Union, we may be caught up and our businesses and our exporters may be caught up in the consequences of such a thing. I would use this platform to appeal to everybody to keep cool heads and let's try and ensure that we maintain good relations with the biggest single market in the world, improve and not worsen the relationships between the UK Government and the European Union. I note that that has been underlined by a great many people in Northern Ireland, and I hope that the UK Government would listen to those as well. I just say that we are moving very far away from the documents that were before us today. I absolutely agree with the cabinet secretary's earlier comment about how this is all very much a moving and flux situation for all of the elements that will affect the decision making process, but please continue. I want to ask about the Northern Ireland protocol, but if that's off topic, I won't ask anyone about it. I think that there are other non-lamb protocol in relation to the briefing papers that we've had in the evidence this morning on how it might affect the decision making on the keeping pace powers, if it's around those areas, please continue. No, it wasn't. It was about the Northern Ireland protocol, so you can move on. Okay, thank you very much. It's been very good to get lots of evidence from a whole range of stakeholders, cabinet secretary. And a key issue that comes out from all of them is the issue of transparency, and you mentioned yourself the issue of sifting what's coming next and the major effort that requires from Government, but if you could imagine for civil society, for businesses, indeed even for us in the Parliament. One of the suggestions is thinking about how the Scottish Government can assist that process. There's a suggestion earlier today about potentially having a website that gave the red, orange and green flag on where the Scottish Government intends to align with the EU, where it doesn't intend to align and where it's thinking about it, maybe a red, orange and green flagging system. I was wondering, have you or your officials thought about that and have you had joint ministerial discussions within the Scottish Government about how you yourselves might manage and monitor this process and how you would communicate that with not just with us as a Parliament but more widely businesses, civic society and COSLA? I think that that's a very important question given we're at the start of a process of how do we manage our way through this situation. I should stress at the outset, I do not want this to go on for as long as it might and with some fair wind and the acceptance that the people of Scotland have voted in a democratic election that they should be able to determine their relationship with the European Union within this parliamentary term, with a bit of good fortune and a referendum taking place during this parliamentary term, we can see ourselves on a glide path to rejoining the European Union within the short term. That is my preferred outcome as it is the Scottish Government's and I know a majority of members of the Scottish Parliament as well. In the meantime, we have to find the optimal way in which we can manage the alignment process with the European Union and it happens across a range of different ways in which the Scottish Government is best able to incorporate match, exceed European Union standards, also with the view to bear in mind that when we begin to reaccession discussions with the European Union after a yes vote in a referendum, we wish Scottish membership of the European Union to be able to happen as quickly with the greatest of ease as possible and fulfilling a key community as we know is a key provision of membership of the European Union. Working back from that position, we need to understand that we are now a third country, we are not in the European Union, so it is not as simple as saying every single thing that comes out that emanates from European institutions is instantly transposed and in exactly the same way as was the case while we were within the European Union. I am very seized of this, my officials are very seized of this as well, not just because of the work that the Scottish Government needs to do but also because of the work that you do and you want to be informed about how the Scottish Government is dealing with regulations, directives and so on, but very importantly also stakeholders who have a direct or indirect interest and can advise, as we know that you have been listening to some of them and I have read the evidence that has been provided to the committee. There are a range of ways in which the Scottish Government signals that it is consulting on measures and I am satisfied that the way that that is working so far in relation to any measures that are considered for alignment is such that stakeholders are properly informed about proposals, that people have the opportunity to take part in such consultations or give advice or share their thoughts, but as I have said at the start that we are in an emerging situation of making this system work and it is not a finished product and I am very keen that my officials are able to work with clerks of this committee as an example of what is the optimal way of being able to make sure that you and then, by extension others, stakeholders, are best informed about measures that are coming forward. You can take the sort of top line, the strategic approach of European institutions, the annual reports of the commission and their plans for the years ahead. You have the priorities of the incoming presidencies of the European Union. I think that it would be very helpful for the Scottish Government to signal what we anticipate coming through that process and how we intend to remain aligned with those proposals and priorities from the commission and from the council presidencies, but then also specific measures. I do not want to talk too long in answer to one question from Ms Boyat, but I have a list as an example of particular measures that have gone through this internal process of how we best manage to retain alignment, which, if anybody is interested in hearing a little bit more about, I am happy to share. There were two specific questions that I asked there, so it would be good to get your feedback on it. Firstly, it was the concept of using a website just to make this all very transparent and a system where you say where you are intending to keep alignment, where you are not intending to keep alignment and where you are thinking about it and being open about that so that the range of different interest groups from civic society, third sector and businesses and COSLA can actually see what is coming next. The other issue that I asked about was ministerial working groups, and I was thinking about that both in terms of on-going monitoring but also planning ahead. I was thinking of that both in terms of internal to the Scottish Government and also that wider UK work with other devolved Governments as well as the UK Government. On transparency mechanisms, I am perfectly happy to take away specific suggestions of how colleagues feel that that would be most workable. I do not have an ideological position on or an administrative position that says it must be this way or must be that way. I think that that is something that we can take away and we can work with clerks and members of the committee to work out what is the best way of doing this. Secondly, on ministerial working groups, well, this largely operates on an official basis. Things come back from Scotland House and Brussels and in conjunction with colleagues on the legal side and on the external affairs side, one takes a view on whether proposals are such that alignment measures need to be taken. That has not been escalated to a ministerial working group that I have sat on yet. There has not been an issue that has come up that has needed a cross-departmental approach in that sense, because the way that we are making things work is taking it directly into the areas of ministerial responsibility and, thus far, there is nothing being flagged that I am aware of that requires anything more than that. To give you an example, I can perhaps flag up some of the areas where alignment has required decisions just to give you a sense of the scope of that. There are issues relating to Transport Scotland and the transposition of EU directives and secondary legislation being managed through the SSI process. Members will be aware of the issue of single-use plastics, which is an on-going issue. People will be aware of the on-going issues around seed potatoes, plant health, gene editing and GMO crops, UK statistics, district heating and so on. Those are active issues where the Scottish Government is working to retain alignment. I just say that by way of confirming that those are areas where the Scottish Government has been open for consultation and working with interested parties and those that are very closely involved. Take, for example, the seed potato issue, which is a really big issue in the agricultural sector, saying that our access to the European market has been closed. Our interlocutors in this policy area are very well aware of what the position of the Scottish Government is, and we are working closely with it. We will do our best to continue to work with stakeholders and with ourselves and how best we manage that in formats, whether websites, whether sifts or whether those different models have been tried. I think that there is a balance that needs to be struck between how does one do that effectively and efficiently and how does one not do it that way? That is appreciated because it has been raised by quite a few witnesses, both orally and in written evidence, about the issue of tracking what your consideration is as a Government and that it would very much help in terms of transparency. While an annual report is welcomed, there is what happens for the rest of the year and what the Government's forward planning is. One issue that was raised was not just what has been decided at the EU level, but that capacity to anticipate what is coming next. A commitment on that would be very much welcome from many witnesses. I should have added that the undertaking to ensure that in relation to any proposed legislation in the Scottish Parliament that it is clearly flagged up the alignment status around those issues, specifically related to legislation, that there is an awareness of how that figures in. Both where there is legislation and where we are using other methods or deciding explicitly not to use legislation or to act. Thank you very much. In a similar vein, that wider transparency is important because, obviously, the report that is before us right now only speaks to the use of those section 1 powers. It does not talk about alignment in its broadest sense, which, as Ms Boyack is explaining, is about the legislation, but it is also about the interpretation of law as well. I am just thinking to moving on from that conversation about what those different levels could be. You have described some of the challenges of parliamentary committees in terms of the SIFT. You have also talked about generally being consultation with stakeholders on those areas. What kind of in-depth information can we get, particularly in those areas, as you say, where there may be a divergence in Scotland's interests? How can that actually be flagged up at a level that is appropriate to both committee and stakeholders? It is not really clear in the report that is before us right now, and it is clear that there have been decisions that, in many ways, perhaps have diverged Scotland from the European Union. Firstly, the position of the Scottish Government is that we wish to remain aligned with the European Union, but I think that you are drawing attention to the fact is where might there be cases where there is a degree of... I am looking to colleagues here if there is anything that they specifically want to flag up. There are plenty examples of us wanting to retain enhanced standards. Divergence in that sense does not necessarily mean that one is making a decision that is having a lessening of standards. It may very well be, and I know that there are specific, often very technical cases, of wanting to make sure that the standards are even higher. I get the point at issue, which is, how is one fully aware of all of this? I think that there have been discussions between clerks and colleagues about exploring ways in which that can happen. I am very keen and I am open to understanding what the best way of taking that forward is. We have had a suggestion from Ms Boyack about one way of doing it. One can have a very paper-based system. One can realise that a very paper-based system will take up all of your time and will not help you to have a laser-like focus on the areas that you are probably most interested to have. I am wanting to be helpful in that respect. Is there anything at this point that colleagues want to add? In terms of an example in which we have not aligned. One that I would probably flag is a UK measure that we consented to, and that is the UK Statistics SI and the Concordat on Statistics. The SI in question repeals the remaining EU regulations that oblige the UK to transmit statistics to Eurostat. It is very much a consequence of Brexit, but we are no longer in alignment with that requirement. Although that said, it is important to highlight that the Concordat advocates certain standards in terms of the provision of statistical information. The Scottish Government is being quite clear that we will remain in alignment with that outcome, even though the process in question has changed. Another example that I might mention is the Heat Network Scotland Act 2021. The legislation has passed to allow district heating schemes to be established in Scotland with greater ease. That aligns very closely with the EU measures, but it is not a clear cut situation. It is one piece of legislation that illustrates quite well that alignment decisions are not necessarily a simple matter of aligning or not aligning. That aspect of the Heat Network Scotland Act does align with the EU, but there are also parts of that EU directive that relates to consumer protection. The consumer protection sections are reserved to the UK Government, and the progression of that is an on-going process. We are making representations to the UK Government on how best to ensure that there is any UK-wide consumer protection legislation that could be implemented in Scotland that would take account of our interests in terms of establishing heat networks. That is useful. Cabinet Secretary, you explained it well earlier on. We talked about those elements that should effectively redundant the laws that are redundant now because we are just out of the structure of the European Union. Those areas where perhaps powers are reserved in the settlement that we have, but there are also those conscious decisions to diverge. I think that it is the transparency around that which is missing at the moment. Perhaps if I could just give you an example. I think that an assumption has been made that we are in alignment with the EU and the EU's climate change laws, because we have our own climate change legislation that was updated quite recently and has enhanced targets that go beyond the EU's law. However, I am doing a piece of work with a colleague in the Bundestag at the moment around the EU taxonomy, which is effectively part of the EU law, around which sectors are deemed to be climate neutral and therefore worthy of investment within the European Union. It is a big area of policy debate within the EU at the moment. I am sure that the cabinet secretary is aware of that, not just in Germany but elsewhere. Are we aligned with that or not? Are we aligned with the EU taxonomy on green investment, which is a part of the climate law? Has there been consideration of that? Where did the conversation go? That is one example of where I am not entirely clear. That is a specific example. I am not aware of the position that I would need to speak to colleagues. I am not the lead official for that area. It is a key part of the commission work plan for 2022, which is fit for 55 package and the range of methods that the EU is considering taking forward in this working year in order to meet its climate targets and enhance its climate targets. That is an area that colleagues and the directorate for climate change are considering very closely. Exactly how we respond to that is still under consideration, but we can certainly provide more information on that. That shows the level of information that it would be useful for wider stakeholders to understand as well. We are going to go into debate about joining the EU. We might like what is in the EU taxonomy, but we might like the way that European investment is going. That is an example of where that level of information and consideration within the Scottish Government is. I hope that there is consideration of that. That is entirely helpful. The purpose of having a session like that is to gauge what it is that you, as members of the committee and the Scottish Parliament more widely, regard as being the optimal way in which you can understand processes. Our default position is that the Government wishes Scottish legislation to be de minimus in alignment with the European Union. That is our position. It is in Scotland's interests. The baseline position is that we are trying to remain as aligned as we can, and it makes sense to be with the European Union. For you to then be able to understand how that is working in relation to specific measures, I understand that you have queries about how that works. You also have a range of ways in which, if you are unaware of that, about how I, as the Cabinet Secretary with lead responsibility for external affairs, can answer that through direct questions in the chamber, through written questions and through statements by the Scottish Government in relation to specific legislation. Possibly what we need to do is draw together the range of ways in which one can access information about things so that it is obvious how one can do that. For us to make absolutely clear about how we are going to flag up and incorporate information about the processes that we are using in relation to specific legislation and specific proposals by the European Union. If there are additional ways that we can proportionately answer those kind of queries—mysboyach suggestions of a website, people are interested in paper—those are all things that can be looked at. From our perspective, it is just how do we get a balance between doing what we are doing because we are remaining aligned, that is what we are doing, but how do we make sure that you have as much information as you require for your purposes to scrutinise the Government's work and entirely open to considering how we best do that? Those of us who were here in the last session, and veterans of both continuity bills as they went through Parliament, recall your predecessor Mike Russell saying that the keeping pace powers were crucial and necessary. I can hear his voice even now saying that. The fact remains that they have not been used, and perhaps more strikingly there are no current plans to use them. Given that background, we are entitled to ask why not. I ask that question with two important background points. Firstly, there has been a huge amount of EU legislation in the last year, I think that a total of 1,650 legal acts have gone through this year. Secondly, to reinforce the points that both Sarah Boyack and Mark Ruskell have said, a lot of people who have made submissions to us want greater rationale, a greater explanation as to whether they have a decision to align or not, and why those decisions have been taken. I am sure that Mr Ruskell will be delighted that he is in your thoughts. You obviously have the advantage of having been involved in this process at a time that I was not, so I deal with the ball as it is at my feet and can flag up to the committee that you obviously know that the power is there in legislation for it to be used, and it is the intention of the Scottish Government to do so. It is just not within the current reporting period, so I can draw your attention to something that you might want to come back to, to understand how it is that these decisions are made. This is specifically in relation to the recast drinking water directive, which came into force on 12 January 2021, following formal adoption by the European Parliament on 16 December 2020. There is a two-year transposition window, and the Water Scotland Act 1980 provides for regulations to be made insofar as they relate to standards that water for human consumption must meet. However, the recast directive introduces a much wider set of requirements such as those relating to risk assessments of catchments, supply systems, internal plumbing systems and so on. I am just flagging up to you that this is an area where we are looking at using the powers. Of course, when Government ministers have said that it is very important that one has this legal club in the metaphorical bag to be used in certain circumstances, and it has not been used yet. Of course, the question then is why did one need the power in the first place? One needed the power in the first place because it is exactly for circumstances like this. Having had a close look at the area, it strikes me that because of the range of ways in which Government can legislate and introduce regulations is very broad, as you well know as a lawyer, one seeks to use the most sensible way of doing that. Being pragmatic, Government has sought to make sure that one does that in the most appropriate way. What I am saying in short order is that it was proposed for a good reason, it is there for a good reason, it is going to be used for a good reason, it just has not been used yet and other methods have been used to deliver the intent of the Scottish Government, which is to retain alignment with the European Union. Thank you for that. That brings me on to my next question, which is whether there are other means of alignment, if I could put it like that, either through primary or secondary legislation. You have helped to provide a table where you describe what you have transposed using just an SSI. I think that what would help us to understand where you made that choice, why you made that choice, why you used other secondary legislation and not the keeping pace power. I was interested in your comment at the very beginning, cabinet secretary, when you described keeping pace power as a backstop. Is that how you see it? Is it a safety net where all else fails and there is just no other way to do it? Is that the best way of understanding the section 1 power? It is probably appropriate to defer to the legal colleague on the legal aspects of that. I do not think that it is too difficult to get one's head around the fact that there are different ways in which Government can regulate, retain alignment and the speed with which one can do the efficiency with which one can do that. It is just a case of trying to work out which is the best of the clubs in the bag—I am now using it for the second time, and I am not a very good golfer—to make sure that we are incorporating or retaining alignment within legislation in Scotland. Perhaps my legal colleague will be able to fill in some of the gaps. I just add that the section 1-1 power is largely a replacement for the section 2-2 power in the European Communities Act 1972. The Scottish Government's policy on using subject-specific powers to align with the EU law in prior to the general section 1-1 power is in line with the approach previously taken to the use of section 2-2 of the European Communities Act. In effect, we are trying to maintain a continuity of practice in how we are doing things. Whilst it is evolving in the sense that we are trying to find our way through how we use the new legislation, how we work with the new realities of a UK as a third state, and how we apply our administrative approaches to making sure that we are delivering on the alignment target is one that we are using the full panoply of measures. However, that was also something that was done previously as well, so it is not new. Sorry, just to come back on that, I think that two points are important. There is a difference. Firstly, under the previous provision, it was that you were mandated to do this, whereas this is now a policy choice. Secondly, I think that we can argue the pros and cons forever, but there is now an absence of input at EU level from the UK Scottish Government as a result of Brexit. Would you accept that there are differences now in terms of how that worked? Yes, absolutely. My view and the Government's view is that it is entirely detrimental, no longer being in the room and no longer being able to influence the decisions that are being made at a European Union level. We seek to change that, but it is just a description of the facts, Mr Cameron. You are absolutely right. There is a change in circumstances and we need to make sure that we are making the best decisions in the best possible way in those circumstances. Returning to the transparency issues, we have taken evidence this week and this week from various organisations that have raised concerns about the—I will use a phrase raised to the bottom—that if we are not aligning with EU law, so whether in environmental, public health—and today we also heard about human rights. I am interested to know how, from a transparency perspective, the Scottish Government is liaising with organisations like that to allow us to learn, I suppose, from experiences and connections that they have across the EU or more widely with regard to laws and legislations that impact on those areas. There is a full panoply of engagement. I am sure that many of you around the table here will probably reflect on the fact that we spend half our life in teams meetings, and I certainly do. Whether that is meeting with COSLA or meeting with any number of other organisations and our colleagues in government dealing with stakeholders and some of whom you have taken evidence from, and it is very helpful to get. As I have said in previous evidence sessions to the committee, I think that having input from those stakeholders shows its value because it allows us to reflect on how our things are working or how do we need to do more or something or less or something. I will stress it again. We are very interested to make sure that we are doing this as well as we can. The intention of the Scottish Government is to retain what we believe will be the higher standards of the European Union as opposed to the race to the bottom being signalled by the approach of the United Kingdom Government in no longer being part of the European Union. If anybody is concerned that decisions are being made in Scotland that are aimed at diverging and diluting the higher standards of the European Union, I can give an absolute assurance that that is diametrically opposed to the aims of the Scottish Government. If we look at trade agreements that are being forged by the UK Government that illustrate decisions that are a weakening of standards when measured against those that previously agreed by the European Union, I think that we are right to be concerned about a race to the bottom. However, the race to the bottom is not by the Scottish Government. We are racing to try and maintain the high standards in their own right, so we have the highest standards, but also so that when we rejoin the European Union that we are able to do so with the greatest stuff of negotiating ease because we are effectively fulfilling the standards of the Aki community. One of the questions that we specifically got asked today was that previously organisations like that would have had funds or applied funds from Europe to help their structure to enable them to feed in. Probably not a question for you, Cabinet Secretary, but I suppose that it is just bringing the plea to the Scottish Government to recognise that within the up-and-coming budget. Thank you for putting that on the record. Do you have the advantage of having been in the evidence session beforehand, which I was not, but it is very helpful. We do go through the evidence that is given, both written and orally, and take away suggestions that are made to consider them. For a long time, Scottish organisations were represented in Brussels, co-located in the same building, and it was an excellent model that ensured that from local government to the different organisations that had an interest in European Union decision making were there in the same building with officials from the Scottish Government. It is very much a model that I would wish us to repeat when we become a member state of the European Union, because it is clearly the best model. It is specifically relating to the absence of funding. We do not have enough time in this evidence session to look at the replacement of existing European Union schemes with the anemic, underpowered replacement versions from the UK Government, what has happened in Erasmus, how much less is being spent in the Turing scheme, and how much less is being spent in relation to economic support compared to the structural funds and other regional funds of the European Union through the UK. This is no doubt another area where, unfortunately, people will find that they are in a worse-off position than they were when we were part of the European Union. We will definitely take that away. I want people to be informed. I want people to have the administrative capacity to be able to inform and influence Government thinking and decision making, and I will definitely take that away. Obviously, we live in constrained times, and if the finance secretary was sitting here, in a doubt, she would be impressing on me the need for us to be financially responsible, and we are, of course, but we need to ensure that we have the best governance that we can have. So, if there is a feeling that it might not be obvious who was making that point, please can that be shared with myself and officials, and we will have a look at any specific proposals that are made. Thank you very much. I have got supplementary from Ms Boyack on that area, and then I will come to Mr Golden. Thanks very much, convener. It was just to follow up on that issue, because I think that that is a very valuable area of questioning. One of the things that was suggested by some of our witnesses was the concept of different forums that could be held where you could exchange best practice, and it helps people to keep up with what is happening in Europe. It is on a briefing basis, and it links very much with the point that COSLA made about their joint links that they have with other local governments across the EU, and it was to bring that together, which would help the third sector to raise the civic society connections, but it would also be good in terms of transparency for businesses and for us in terms of parliamentary scrutiny. Just by way of illustration, that is exactly a point that was made in discussion that I had with the voluntary sector. The SCVO is another area that has had extremely positive and mature links with colleagues across the rest of the European Union, and is a very well-versed colleague in how Europe works—Irene Oldfiler, I think, who is involved in that. Colleagues there were extremely keen to make sure that we are using the links that SCVO has. By extension, local government and by extension professional organisations and so on, to make sure that we are fully sighted on developments. Yes, I think that we need to look at all ways in which we can make sure that we are up to speed, best co-ordinated, best practised, what are we doing with this, what are we doing with that, and I definitely take that away and work out the format. I mean, I would say—I'm giving the example of speaking with the SCVO—we are already having those kinds of discussions. The question is about the format of that, the regularity of that, the extent to which it is structured around particular proposals that are emanating from Europe, perhaps, or the priorities of the commission or the priorities in incoming presidency. I think that we want to be flexible about making sure that we are capturing that experience, that insight and that good will, and I think that that's a very good suggestion. I think that the advance planning and advance notice would help, because then you would draw on that expertise, but it would also address the transparency issue, which comes, of course, really strongly in the evidence. There's also a flip side to this, Ms Boyack, which is that we have colleagues in the third sector who themselves are involved in projects and planning and priorities, and we may not be aware of what those are. It's a two-way street, and I completely agree that we want to make sure that we are, in this sense, as best aligned as possible on this. Forgive me. It's just to highlight, Rhun, that there are probably two key documents that I would mention here as well. The first is the Scottish Government's approach to policymaking. This document sets out exactly how we take forward the policy process, and a key part of that is consultation with stakeholders. The Scottish Government values stakeholder input. We acknowledge that a wider range of interests, a wider range of expertise, leads to better policymaking, and that is part and parcel of our standard approach towards the development of any policy. The second thing that I would mention would be the Scottish Government's international framework, which sets out that there are opportunities to be had, and there are experiences to be gained from engaging with the international fora, particularly in the European Union, in developing our approach to policy, because we acknowledge that there is potentially impacts or that there are things to be learned about their approach to take forward there. It's therefore a requirement for all policy areas, all policy directorates, in the area of specialisation to take consideration of both of those documents. In their engagement with stakeholders, whether it's about legislation, whether it's about policy development, we would expect them to be having those conversations. As the cabinet secretary said, we may be unaware of the exact engagement that is taking place across every single policy area. That is part and parcel of the job of developing policy. Just a final thought of that. On notwithstanding the ongoing policy engagement that takes place, I do see the advantage of speaking with those organisations like COSLA, like the SCVO, others, no doubt, and any suggestions that colleagues have about who might want to take part in such a thing. It would make sense for us to take that away and explore with those organisations about how we can best work together with that specific aim in mind. I'm very keen to do that. It helps you as a Government, it helps them, but it also helps us in terms of parliamentary scrutiny if we are kept up to speed with that. Mr Russell, is that supplementary in this area? A very brief point on the back of that. When the previous committee in the last session was looking at the replacement regulations for reach, one of the points that the NGOs raised at the time is that they very much valued the EU policy development forum, not just in terms of policy development but on growing scrutiny and evolution of those regulations over time within the EU. There was a real sense of loss that those forums had not been replaced with the UK reach regulations and effectively now NGOs were maybe consulted, but they weren't involved in co-producing the regulations in their ongoing scrutiny and evolution going forward. So there's something about the depth of EU policymaking which has been lost and I think it's worth reflecting on as well. I think more than reflecting, I think that we need to see if there is anything about how we are working with things that might be considered by some people to be not as engaging and involving. If there are things that we should take from that process to heart about how we do things and do things differently, do more, do less, do differently, then I'm very, very open to doing that. It's one of the tragedies about leaving the European Union is that much of its work and the work of its institutions was not newsworthy in the sense that from day to day it provided headlines. It was because the iterative process that the European institutions used was such that it brought people along, whether as member states or as the different parts of civic life, and that is a huge loss, I think. So in the meantime, let's do what we can, let's try and learn best practice and let's get back into the European Union as a member state as quickly as we possibly can. Mr Golden. I won't sign you up to that, Mr Golden. Thank you, convener. I always enjoyed my time on the committee of the region's very important forum that I hope in some way, shape or form, we can continue to feed in to that process. Just on the, we discussed the consultation exercises, where there's a decision not to use powers, what sort of consultation exercise is conducted with cosla and relevant stakeholders? Well, I'll defer to colleagues on the technical aspects on any specific measures. When I have looked at what has emanated from European decision making, there's not a long list of things that we're not proceeding with. We are trying to remain aligned. So the things that are, which are the easiest to explain that one doesn't align with, are the examples of water control measures applying to Mediterranean nations. Those are not things that we need to align with because we're not a Mediterranean nation. We're not a Mediterranean nation. There's all kinds of examples. To me, having reviewed all of this, that's the biggest single reason why something is not preceded with. It just has absolutely no impact on us whatsoever in the current framework of us being a third party state. I'm not aware of any significant proposals where we have taken the view, well, we're not proceeding with that and we're not remaining aligned because we think that's a terrible idea. It tends to be things that are not being preceded with just because it does not impact on us. I don't want to sort of pluck ideas or particular measures off the top of my head. I'm sure that my colleagues might have a list of regulations or directives that have nothing to do with us, but there's quite a lot of them. Were we a member state, of course, we would need to do what we would have needed to do as a member state, but given our circumstances, as we currently find ourselves outside the European Union, we don't need to. Is there routine consultation, even however brief, where it seems as the Mediterranean example you provided? I would say that Dundee is the Milan of the North. Is there routine consultation? I hope that I'm not opening up to a can of worms, but I don't think that the Scottish Government liaised with Dundee City Council about regulations pertaining to water management or the Mediterranean. I do understand that there is a tension between the wish to have maximum transparency and wanting to understand about every single proposal. I said at the start that I have lived in that world, and having sat on your side of the fence and gone through weekend, week-out piles and piles and piles of things that are largely not relevant or interesting, I understand that there's still a—but I still would like to see, if I could, please, thank you very much. I get that, but I'm sure that there is an appreciation from members about the tension involved between that and just saying, listen, there are a whole range of things that we don't need to consult because it has absolutely nothing to do with us. I'm seeing my colleague's hand here as he will hear. We're going to get some examples of regulations that have nothing to do with us. I could do that, yes. One is the habitats directives that I could mention. Whether there are specific mentions of particular habitats in Europe or particular species of animal in Europe that are protected, it would make no sense to make efforts to try and apply that in Scotland, because it doesn't apply in Scotland. There are regulations that are upcoming on product standards that will go into extremely detailed recommendations around the exact size of product labelling in a particular context. Aspects like that are very small technical or operational decisions, which ultimately, when we consider that against outcome-based policymaking, which is what our approach is, doesn't alter the outcome that we're seeking to achieve, and that is to remain in broad alignment with the European Union and to ensure that we protect and advance the standards that we enjoyed as a member of the European Union. I think that there's been something of the order of between 1,000 and 2,000 pieces of EU legislation somewhere around that already since late 2020. The vast majority of that is technical or is operational, and going through that with a detailed analysis or consideration of exactly how it does not apply is not something that we would expect to be prioritising, because the application or non-application would be obvious. The point that I might come back to is that where something is relevant, or where there is a factor in there that we need to consider, our approach to consultation and policy making stands would be very strange for the Scottish Government not to consult with COSLA about something that would impact local government responsibilities, so we would carry out that consultation, and we would replicate that across policy areas where it was relevant. There may be situations where the Scottish Government chooses positively not to align with EU law in whatever way. I'm just trying to think of an example, but say that the EU took a view on the use of pesticides that did not meet the same policy aims as the Scottish Government. Do you accept that there would be situations where you might choose not to align, not simply because it was not relevant or unnecessary, but there may be divergence? Yes, and this is a very good example, because there is an example in relation to plant health where there has been a divergence. I divergence upwards, so this makes the point about what is the policy objective of the Scottish Government in relation to the European Union. It is that we remain aligned, as best we can, using the different ways in which we have been outlining in evidence. However, where things come along, where we think that we would want to have enhanced standards, that is exactly what we have been doing. I understand that people want to be assured that we are not, and I am delighted that we are hearing that as well, from the Conservative benches, that we are not wanting to see a diminution of standards. If there has been a divergence, and in this particular area it is one that has been flagged up to me, we have sought to have higher standards. I am not going to pronounce it properly. Zilella, is that correct? Fantastic, I got the pronunciation correct, but that is an opposite and timely example of the approach that has been taken in Scotland to that. It is not to diverge in the sense that we are wishing to to disobey or have significantly worse standards to things. It is that we would, de minimis, want to have the same standards but higher. Incidentally, something that was opened to the United Kingdom Government and the Scottish Government prior to the has been taken out of the European Union against our wishes. I have just said that it was a final question, a supplementary question, on that area, cabinet secretary. You said that you have gone to a higher standard than the European Union, and there is now divergence, but the UK Government has not. It is one of the areas that has been raised in evidence today about how that might affect market access principles in the UK, particularly on that basis. Can you just explain what you think about the outcomes of that? I will give colleagues a moment to think about that specific to the issue of the product in question. More generally, it has been an opposite question specifically in relation to single-use plastics. That is where the internal market act intersects with the common framework arrangements which preceded the internal market act. That was the ability by which one could see divergence in policy in different parts of the UK. That was agreed by the United Kingdom in the floor of the House of Lords. It has been something that I have been trying to make progress on in recent months. Now, some good news to share with the committee last week. I chaired a meeting on common frameworks with the UK Government, with the Welsh Government, with the Northern Irish Government on making progress with common frameworks. I have to say in stark contrast to the experience that I have made, which is suboptimal. It is an example that it is possible to make progress with things. I would like to commend my colleagues from the UK Government, Wales and Northern Ireland and our officials involved in that. Should the common frameworks operate in the way that they can, it means that it is possible to make the kind of decisions that we want to on single-use plastics, for example, regardless of the approach being taken by the UK Government. That might apply elsewhere, specifically to the point that you were raising, convener. I do not know if there is anything that either of my colleagues would wish to raise specific to that. I am informed that the UK Government has chosen to do the same as the Scottish Government on Zilella, so I commend them for following the leader of the Scottish Government. Welcome that clarification, that particular product. I wave an example of what might happen, I am not sure it will be as easy for everything else going forward. Cabinet Secretary, thank you very much for your attendance at the committee this morning. I also thank your officials from the Scottish Government this morning who are going to suspend and go into private session.