Alister Jack doesn't know how devolution works, says Lorna Slater

However, in Holyrood today, one senior civil servant said the repercussions of a refusal would be a "significant threat to the agreed common frameworks" agreed between London, Edinburgh, Cardiff and Belfast.

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Under the Act, goods sold in one part of the UK should be able to be sold in any other part of the UK without adhering to different regulatory requirements.

The DRS - currently due to go live on August 16 - will see shoppers pay a 20p deposit when they buy a drink that comes in a single-use container.

They get their money back when they hand the empty container over at a return point.

The cost of that deposit will initially be met by the producer, who will have to add 20p onto every product before it is sold.

Because that would mean different prices for the same products on either side of the border, it requires an opt-out from the Internal Market Act.

However, before the Act was passed, the UK Government, Northern Ireland Executive, Scottish Government and Welsh Government developed a number of common frameworks detailing how the administrations would work together in devolved areas. 

The Internal Market Act allows for policy divergence if it is included in one of those common frameworks. 

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Appearing before Holyrood’s Net Zero committee, Ms Slater, the Scottish Government’s Circular Economy minister, said the exemption for the DRS was covered by the framework on resources and waste.

It was not a “question of requesting and being accepted or rejected,” she said.

“The exclusions for the Internal Market Act are agreed under frameworks. The framework is an agreed process by which the devolved administrations and the UK protect devolved matters. 

“So the waste and resources framework is there to protect the Scottish Government's ability to legislate in devolved areas.

"And under that framework, we put together the evidence and case that this matter which we are considering, which in this case is our deposit return scheme, is fully a devolved matter which it is. It clearly is a fully devolved matter. 

“And we have presented that evidence through the agreed process to the UK Government.” 

Euan Page, who heads up the Scottish Government’s UK Frameworks department, said there would be “significant” repercussions for devolution if the UK Government rejected the request for an exemption.

“We're nearing the end of the process. The common framework has indicated that an exclusion should be granted. 

“That recommendation is now under consideration by ministers in all the UK administrations.

“The other point to make clear is that UK ministers and UK ministers alone are the only actors in the system that have the powers to give effect to the exclusion as the Act confers the necessary powers only on UK ministers. 

“So the matter will be under active consideration by the lead minister, the Secretary of State for Defra, and we expect an answer very soon. 

“It shouldn't be looked at as a stage of we submit an application and it's either approved or rejected. We expect things to move in a predictable, transparent and evidence-based way.

“And we're confident that the case has been made clearly and collaboratively with UK Government through the common frameworks process.”

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Green MSP Mark Ruskell pushed the senior civil servant on what the Scottish Government would do if the exemption was rejected.

Mr Page said they were “not thinking in that way at the moment.” 

“Because were that to be the case, without any further reasoning, or reference to the evidence has been gathered through the common frameworks process, that would represent a very significant threat to the agreed common frameworks process that we have in place where we collaborate as equals in that space with UK Government and the other devolved administration. 

“So the repercussions would be significant for a key plank of inter-governmental structures that have been put in place since EU exit and one of the frankly, rare examples of things progressing quite well. 

“They have created a space for more collaboration. 

“So where we see a situation arise where UK ministers declined to use the powers that they have to give effect and exclusion, we would need to understand with urgency, how they came to that consideration, how they came to that view in light of the common framework recommending that exclusion should be implemented to remove the confusion and uncertainty that the internal market act is causing.”

Ms Slater told Mr Ruskell the recommendation for the exclusion had “been made on the basis of evidence.” 

“Rejecting that evidence would be outwith how the framework is intended to work. If that was the case as you suggest that would be a very significant break down in the collaborative working of the two governments, in fact of all the devolved governments.

"So if that were the case, given the sort of big deal nature that would be, then the Scottish ministers will set out our next steps at that point.”

“This isn't a question of requesting and being accepted or rejected”, she added. “This is a question of working through that framework to present evidence and then working with that evidence. 

“So I think it's very unfortunate that, for example, Alister Jack has presented this in a way in the media, that's not accurate. That's not how this works. 

“And you know, for the record, Alister Jack has not attended any of the [Inter Ministerial Group] meetings where we have discussed this matter. He has not corresponded with me on this matter. He doesn't know how the framework works. And so his comments on that are unfortunately not very helpful.”

Edward Mountain, the Tory MSP who chairs the committee, chided the minister. 

“With the greatest respect, we've been trying to keep this very apolitical.” He urged the minister to “take the personalities out” of her argument and “avoid making criticisms of people.”

Earlier this month, Ms Slater told MSPs that the Scottish Government had sought an exemption from UK-wide rules for the Deposit Return Scheme (DRS) as far back as July 2021.

However, the UK Government said she only made what it deemed a formal request last week, in a virtual inter-governmental meeting on the environment.

Mr Jack has already warned that the bar for a UKIM exemption is “very high.”

All three candidates in the SNP leadership race have said they will pause or slow down the DRS.

A UK Government spokesperson said: "At the Inter-Ministerial Group for Environment, Food and Rural Affairs [6 March 2023], UK Government ministers received a formal request setting out the scope and rationale for a UKIM exemption for the Scottish Government's deposit return scheme.

“It will now be carefully and fully considered by Ministers at the relevant Whitehall departments."