 I warm welcome to the 14th meeting of the constitution Europe external affairs and culture committee in 2022. Our first agenda item is a decision on taking agenda item 4 in private. Are we all agreed? Our second item is an evidence session on the implementation of the UK-EU trade and co-operation agreement. That is our second session in a series of meetings focusing on post-EU constitutional issues. This morning, we are joined in the room by Professor Ian Forrester, very warm welcome. Online, we have Professor Catherine Barnard, Deputy Director of the UK and a Changing Europe, Professor of European and Employment Law at the University of Cambridge, also Dr Fabian Zullach, Chief Executive and Chief Economist of the European Policy Centre and Professor Christina Ekis. Professor of European Law, University of Amsterdam and Director of the Amsterdam Centre for European Law and Governance and Professor Forrester, the honorary professor of European Law at the University of Glasgow, former judge of the general court of the European Union. I welcome you all to committee this morning. We also have had apologies for Professor Elaine Fahey, Jean Wony, Chair of Law and Transatlantic Relations at the City Law School. We have four main topics this morning, which we are hoping to spend some time on, and hopefully we can be quite strict and keep into those subject areas. Our first theme is the policy content and operation of the TCA, which includes commitments in a number of devolved policy areas and commitments to non-recreation. To open the questions from the committee, I invite Mr Cameron. Thank you, convener, and good morning to the panel. I would like to ask about the policy content and operation of the TCA, and in particular where the TCA touches on devolved areas of policy. If each of the witnesses could think of examples where the TCA may indeed have a practical impact on devolved policy areas and whether they foresee any particular flashpoints in those areas. If I could start with Fabian Zuleg, please. Yes, thank you very much for inviting me to give evidence today. I think firstly to say that the TCA is of course a very wide-ranging agreement. It covers trade in many different areas, so I would say that it has a general impact on the economy, on the way that the economy functions in exchange, particularly with the European Union. Specifically, there are some areas that were already referred to when it comes to those areas that are covered by the level playing field conditions. In particular, I would highlight the environment climate change action. There are some implications from the non-regression provisions that are there, not the only area, but I just wanted to highlight that one as a starting point. Professor Catherine Barnard, please. Yes, I broadly agree with that. In fact, the TCA is very thin. It is not in numeric terms. It runs well over 2,000 pages, but it is thin in content. In fact, the TCA moves us quite a long way from even Norway or Turkey. It is a very much a mid-Atlantic agreement with rather limited expectations and ambitions. In fact, the areas highlighted on your list are those that are most likely to impact on devolved matters. I would also like to flag up fisheries. Fisheries had the potential to be a flashpoint last year, and, indeed, we saw the gun boats being sent to the waters around Jersey and Guernsey. However, it does look like that some careful technocratic work has actually resolved some of those issues. Of course, the issue about fisheries comes up again for review in 2026, and it is tied up with the energy policy provisions. Although, in fact, at the moment we are seeing the boot is somewhat on the other foot in respect of energy, because, at the moment, we, the UK, are providing a lot of the LPG offshore for the EU and also a lot of the green energy for the EU, given the issues about the war in Ukraine and the energy provision. The energy provisions will not work quite in the way that we expected beforehand. Thank you for that. Professor Christina Ikes, please. Yes, only in addition I would like to flag social security as an issue where we equally have the agreement of non-regression, hence we cannot lower the standards of social labour rights. In fact, many of those rights depend very much on national legislation. While the TCA is very thin, we require regulation at the national level, and here it must be implemented in a way that meets the requirements of the TCA and that is nonetheless determined by the provisions of the TCA. With specific Scottish regulation on that, there could of course be an issue if there is a divergent. Thank you. Finally, our witness in the room, Ian Forrest, is Casey. I agree with everything that has been said. Let me add two things. I was a judge for five years, but I was a practising lawyer in Brussels for 40 years doing technical regulatory work competition and so on in a whole slew of different industries. I think that it is relevant, as Catherine said, that the TCA is kind of thin. How are decisions taken today in Brussels and in other areas, in other specialised agencies? We have one example, animal feed. It is easy to say that you can only give to your animal's healthy feed. It is very difficult and it must necessarily be very prescriptive to agree on which chemical is or isn't appropriate for which animal at which stage in its life. The process of discussing whether Virginia Mison is good for Turkey involves expert committees, scientific committee on animal nutrition. Those committees are the forum for hashing out technical disagreements. The TCA does not prescribe how technical disagreements are going to be addressed. I can see literally hundreds of areas where there will be potential conflicts about matters that seem obscure but which are driven by experts and which ultimately touch on environment, animal welfare and many other topics. How decisions are made is to be contrasted with the general thin provisions of the TCA. One additional element where there may be trouble and controversy and where there should be controversy is to do with people like me, citizens who are living in a country other than that of their birth, people who until the referendum and the actual occurrence of Brexit believed that there were European Union citizens and had rights in that respect. There are millions of such people and their interests have not adequately been considered by the UK side thus far. That is not an adequate answer to your question but it is an answer. It is a very helpful answer because it leads me on to my second question, rather than the point that you made at the start, which is about how decisions are made and whether there is disagreement. How would you see divergence between the UK and the EU being managed under the TCA or under any arrangement if that happened? As a follow-on, could such divergence at UK level ultimately have an impact on devolved competencies? I make a frankly political point first of all, which will not astonish you, and that is that divergence is not to be confused with, it should not be regarded as a badge of sovereignty, it should not be regarded as a badge of freedom. I am sure that you know that every country in the world which is sovereign enters into contractual relations with other member states, so it is false to suggest that sovereignty takes us anywhere in the analysis of these problems. That is the obvious point of departure. Divergence, especially in technical areas, especially in medical, social, food, many areas, is certainly liable to lead to controversy. The farmer who uses an unapproved additive or an unapproved pesticide or the manufacturer of the pesticide or the opponent of the pesticide is likely to be affected in their pocket by the emergence of a controversy. How will these things be managed? They should be managed by intelligent discussion and the pursuit of the notion of prosperity, stability, continuity, and not by the interests of a particular political party or faction in UK public life. The notion that it is a proof of independence, a proof of a badge of independence to have a different rule from the European rule, which the UK has contributed heavily, remarkably well, to developing over the past 40 years is a political problem. In my experience of trade disputes in Brussels, the technical issues are easily, maybe painfully, but not with great difficulty resolved by discussion between technical experts and ministers. If a British minister decides that the pesticide is, after all, good when it has been decided to be bad in Brussels because of recent information, I can see that the minister is tempted to make a decision for the entirety of the United Kingdom. I can readily see that what the minister would wish is different from what the Scottish Government would regard as things within its competence. I turn to our other witnesses. Professor Kristina, if you have a view on managing divergence between the EU and the UK? Yes, if there are divergences or, let's say, disputes, controversies, they would first go into consultation. The partnership council has a core role. One must realise that the TCA is in actual fact an externalisation of internationalisation of political life. Many of those decisions are then taking place outside of the ordinary political structures. One core question that one needs to ask is, of course, what is the representative structure in the partnership council? What is the influence? What is the level of information ex ante? Before the decisions are taken. In my view, it is key to resolving those issues. The partnership council is the first port of call, both for operative decisions and for consultations. The key is that Parliament, at all levels, is informed beforehand what other disputes can give input, that there is representation in the partnership council, which ultimately under the TCA is a decision that is internal to the UK. That is a question of what access do you have, how timely is your access to information and what is the input that you can give. Of course, we have all the specialised committees. To a degree, you could say that technical issues are resolved at a technical level, but let us not underestimate that technical decisions also often have a political dimension or a political background. It should not be striped up as an issue of sovereignty. Nonetheless, there could be differences in interests that trickle down into the specialised committees. Here is the problem, of course, while in the partnership council in the past, in the first meeting, Scotland, Wales and Northern Ireland were represented. I suppose that this is a practice that will continue. The question is what happens, for example, if we move to arbitration, to the level of arbitration. If we move from consultation and that is unsuccessful and we move to a situation of an expert panel where we are suddenly facing three people considering the issue of divergence, what is the representation and the level of access to information when we are going down that route? That is something that I find would deserve attention. Dr Fabian Zuleig, please. Let me make three general points and then go in a bit more detail on the type of divergence. The general point firstly is to manage a relationship that is as complex as the one that we have here, to manage the TCA in a way that makes it work most effectively, requires trust. That trust is needed so that there are these kinds of conversations about technical issues, about how do you resolve some of the smaller issues, because if you have to go into a whole big political process to deal with any areas of divergence, it becomes unmanagerable. My second point, and I just put that aside, I think that we will come back to it later, but I think that the question of Northern Ireland and what impact divergence has specifically on Northern Ireland is a separate issue, which needs to be looked at in more detail, because there we then come into the question of what kind of checks are necessary between Northern Ireland and the rest of the UK. My third point is one thing that has not really been discussed very much, is the question of EU divergence. We generally talk about UK divergence, but there are many things that are happening in the EU particularly at this moment in time, so the EU is changing very rapidly, also in some of the areas that are relevant for the TCA. But, coming to divergence, I think that it is important to notice that, firstly, there is inherent divergence. The moment we have this agreement, we had a separation between the UK market and the EU market, and that means that there is a divergence there, which implies that there has to be friction, and that friction we have seen already on the borders. The second point is that divergence is not disregarding the provisions that are there, so what we have at the moment with the threat of not applying certain parts of the agreements between the EU and the UK is not divergence. That is breaking the agreements that are there. Thirdly, when it comes to divergences covered by the TCA, there is a mechanism within the TCA to go through that, but it can be a very lengthy and cumbersome process. My fourth point is about also divergence outside the scope of the TCA. There are many areas that are not covered in the TCA, where we have this very thin agreement. In those areas that are not covered by the TCA, if it is economically relevant, then divergence simply leads to non-access to EU markets. However, if there are significant divergence in areas, for example, to do with TCA protection, with the way that certain things are applied at the UK level, then that would simply stop access to the EU market if it is no longer compatible with EU provisions. Thank you very much, and thank you for making the point about EU divergence as a possibility, because, as you are right, we think primarily in terms of UK divergence, but that was a very helpful observation. Can I lastly ask Professor Catherine Barnard for her view? Thank you very much for that. First point, divergence is allowed, and that is clearly stated in the TCA. Of course, the caveat to that is that it engages a level playing field provision in the areas that are covered, and, as Fabianic just said, it may have the effect of stopping our goods or our services from getting onto the EU market. The second thing to note is what is actually happening. It is really difficult to track down exactly what is happening both at EU and UK levels. One of the things that has been lost in the post-Brexit world is that very careful scrutiny of what is going on at EU level to see how divergence is occurring. The hundreds of statutory instruments that come from the Government are we properly checking what is the mechanism for checking whether there is divergence? That is a particular issue for whether we accidentally lead to a triggering of the level playing field mechanism, because there is a lack of awareness that a particular regulation may, in fact, lead to a triggering of the level playing field mechanism. Remember to building on what Fabianic has said that, when we are thinking about divergence, there is both active and passive divergence. Active divergence is where the UK, for example, deliberately decides to do something different to policy choices made by the EU, gene editing being a very good example of that. However, there is also an on-going process of passive divergence, which is where the UK is not keeping up with EU rules, because, of course, we are no longer obliged to do so, certainly in the UK as a whole. I know that it is different in Scotland in some areas in respect of the post-Brexit period. That brings me to my next point, which is what are the institutional mechanisms both at UK level and devolved level for mapping that divergence, and what are the institutional mechanisms for actually ensuring that Scotland has some sort of say over those areas where the UK is making a conscious choice actually to diverge? Yes, I know about the various inter-parliamentary committees that are being set up, but are they really enough to do the close work to work out what does divergence actually mean? Of course, my final point relates to the internal market act, because, while we are looking at a complex multidimensional jigsaw UK-EU, if Scotland wants to diverge as well, how that sits with both the internal market act and the common framework provisions. Thank you very much for those very illuminating answers and back to you, convener. Thanks, convener. I was just reflecting actually on a point that Ian Forrester was making about that European Union approach to very in-depth working with scientific advisers, industry bodies, environmental NGOs and stakeholders to develop policy. Do you and other members of the panel see a mismatch or a growing divergence between that well-established approach within the European Union that the UK has been very much part of over many years? What we are now seeing in terms of how policy is being developed in the UK, and I think the example that Professor Barnard was using there of gene editing might be an interesting one in terms of the robustness of the conversation that may be happening in the EU compared to what is being proposed here. Fisheries might be another area. Can I go back to Ian Forrester? First point, there is in public discourse at the moment a disparaging of retained EU law because it is retained EU law, it is medieval, it is like Magna Carta. We want to escape from that. That is a dangerous point of departure. It is seductive because we have left the European Union. That is wonderful, some might say. However, the disparaging of the rules that the UK helped to draft, which are highly technical over the past 40 years and in the drafting of which UK officials were exceptionally successful, the UK and France were the two countries that had the most success in tweaking a text to be favourable or friendly to their particular national interests. The first thing to say is that there is nothing wrong in retained EU law, except apparently the title. Next observation is a constitutional one. The way in which texts are drafted in Brussels involves a great deal of consultation with technical committees, with national experts and national policy makers. The Portuguese and the Swedes might have different views about animal welfare. It does not make either of them wrong, but they are different. The hammering out of a compromise about one of those questions takes months, maybe years, but when it is finished it is pretty good. If we discard that lightly, then that may have technical problems for UK interests. However, there is a constitutional problem. If a text that has been drafted carefully and exhaustively following a lot of expert input is to be discarded by a minister, I would worry constitutionally if the supervision of that choice has been constitutionally adequate. According to the BBC, there were something like 80,000 or 90,000 texts that constituted the corpus of European law. I think that it is really important that how those are adapted into UK law and into Scottish law, how they are adapted is something that is really constitutionally very important. I do not think that it is satisfactorily being done at the moment. Catherine Barnard likes to remind us that the last time a statutory instrument was blocked in the UK Parliament was 30 years ago. Once a minister has decided that it is going to be 3.2 per cent and not 4.1 per cent, that is something that should be carefully considered. It should not likely be passed into a statutory instrument. Thank you. We perhaps underestimate how much work goes into hammering out agreements across the EU and lessons here from across the UK. Can I turn to Catherine Barnard then? Yes, so on your, thank you for that. Oh, I'm just giving some feedback, is it? Oh, thank you. Thank you for your question. In terms of the institutional mechanisms, how much engagement is there between the UK and the EU over these matters? I'm afraid that the answer is actually rather little. Yes, there is the institutional structure of partnership council and then, more importantly, the specialist technical committees sitting under those. I understand that every single committee has now met once in the course of 2021, but the fact that they only met once suggests that there is not very intense engagement. Now, there may be some more informal engagement, and certainly Ucmiss in Brussels has an important role there. I note that Ucmiss is four times the size of the equivalent offices elsewhere. Ucmiss clearly are doing important work, but in terms of this engagement in the real detail, the answer is no, because, of course, from the UK Government's point of view, the answer is that we are free to do what we like. We do not need to co-operate with the EU, and this is where the tension arises, because the tension arises in the field of goods in particular, because our supply chains are still so closely interconnected with those of the EU, and therefore our manufacturers will have to comply with provisions of EU law on the making of widgets for headlights for cars, because otherwise the manufacturers of car headlights will not be able to sell those car headlights as part of a supply chain into the EU. Therefore, there is a tension between what manufacturers want in the UK and what the UK Government actually wants to do. I don't know if other panellists would like to come in at all, Fabian. Thank you. I'm not wanting to make a point on internal UK systems, because that's not my area, but I just wanted to make two points of a more general nature. One is, as long as there is an economic relationship, what is decided in Brussels matters hugely for the UK economy and for UK businesses, but the UK's ability to influence those decisions has been vastly reduced by Brexit. Now, it is a question of having the much more informal way of influencing it, which actually means that you have to invest far more, because you are no longer automatically in the decision-making bodies. That applies to Scotland. If Scotland wants to have an influence on some of the legislation that comes out of Brussels, which in the end in many areas will have to be adopted by the UK, the UK is now a rule taker in many areas, unless it chooses to diverge, which has consequences in terms of market access, in terms of being integrated. My second point is that there is a major difficulty in translating some of the decisions that are taking at the European level to the UK at whatever level, because there is a lot of interpretation. Many areas of EU law are directors, so they set a general goal, but the actual implementation of the member state. So the question is, how do you then interpret that? How do you make sure that the interpretation, which is put on to that kind of legislation, is still consistent with the overall laws? That is something that is checked within the European Union by the European Court of Justice, but there is no such equivalent for the UK. Thank you. Christina, do you wish to come in on that as well? Yes, maybe just with a brief point that I see the tension arising above all, if there is the intention to maintain EU standards in Scotland and then the tension with the internal market act and how that is resolved. I personally see that the tensions that might arise do not go up to the TCA level. If they do, they might have repercussions for things that are not the intention to diverge from the EU standard, but that might not actually be the case in the devolved policies. I wonder if Professor Forrester could elaborate on a couple of the interesting points that she made. You talked about the thinness of the TCA, and I just wondered if you could say firstly a little bit about why you feel it is so thin and what that means. I have been a practitioner for a long time and I was, for a shorter time, a judge. The European institutions work on a basis of consensus. It is highly political, and the court is quite rarely involved in the settling of major controversies. That is a very big statement and there are lots of exceptions. However, the TCA has a nice framework for consulting between the two sides, between the one and the 27. There is nothing wrong with that, but much depends on the political will of the Government of the United Kingdom and not very much on the political preferences of devolved administrations. When we say that the TCA is thin, it is aspirational. It offers a framework for consultation, but there has to be consultation that is effective and that is on-going. The standard for animal welfare or for headlights is the subject of discussion, discussion, discussion, discussion and outcomes of a proposal within the 27. The Italian side says that that does not work, and the German side says that the commission comes in with a compromise. That on-going discussion, which precedes the final stamping of the text, takes months, years and a whole lot of people are talking to each other, frankly, but the TCA is hampered by the absence of those daily communings back and forth. It could be the vehicle for that, but, as we heard from Catherine Burner, the committees that are set up do not meet. I suppose that, from the relations between the UK and the EU and thinking of where, if at all, this fits into the relations now between the UK and the Scottish Governments. Again, I wonder if you could offer any observations about that, particularly now that we may be entering a period where not only is a policy disagreement between the two Governments, but the two Governments may have a different understanding of what is or should be devolved. Yes. The bad news is that it is the UK who will be defending the compliance of the UK with, including Scotland, provisions of the TCA or other legal instruments. Devolved Administrations are at a disadvantage, I do not wish to make a... Devolved Administrations are devolved Administrations and, therefore, they are not member states and they are not the United Kingdom. The European Union has a tradition of dealing very cautiously with devolved Administrations that you well know. On the other hand, Scotland has an exceptionally high level of recognition in Brussels, in Strasbourg, in Luxembourg, saying that... That is instantly recognisable. The statue that sits in my court is on loan from the National Gallery of Scotland, and the First Minister has said that she wants it to stay there. Scotland has a very high political level of recognition, but on the other hand, institutionally, constitutionally, the Scottish Government is a devolved administration and it is not the Government of the United Kingdom. I very cautiously and respectfully hope that Scottish officials and ministers continue to be visible, audible, intelligible, moderate, clear in Brussels and Strasbourg and Luxembourg. If we could move to our second theme, which is around the accretion... Catherine, please come in, Professor Burnard. Thank you so much. I just thought that it might be helpful to supplement Professor Forrest's very helpful answer on why the TCA is thin. I will give you a couple of examples to explain why it is described as thin. Take goods, for example. There is no general rule on free movement of goods. It just applies the rules in GAT plus a bit with zero tariffs, but zero tariffs require rules of origin. There is very little on trade facilitation, which would have been a very positive thing, almost nothing in the treaty on that. On services, again, very thin, and even Lord Forrest himself admitted just how thin it was, which means that the mobility of people provisions are very difficult to use and we know that. We have heard a lot about orchestras, we have heard a lot about musicians. There is no mutual recognition agreement, no mutual recognition of even testing. Everything has got to be retested before it can be sold in the EU. There is also no substantive provision on mutual recognition of professional qualifications. It has all got to be renegotiated on a profession by profession act basis. Just to give you a flavour of why the agreement is described as very thin and in places, it is thinner than the agreement that the EU has with Canada, albeit that it goes further in respect of law enforcement and co-operation. Permit me to add, with a certain degree of passion, that the gaps in the institutional provisions were identified, predicted, defined and spoken about by a whole bunch of people, including European judges. We are where we are, not because someone must have been surprised. Thank you, Professor Forrestor. If the members online could indicate in the chat that they want to come in and the clerks will pass it to me because I will often miss it if somebody has got an end up at a particular time. We are going to move to the theme around the accretion of executive power resulting from the TCA. I am going to invite Sarah Boyack. I would like to move us on to the issue of accountability at the parliamentary level, both in terms of the UK Parliament and in terms of the devolved parliaments across the UK. The paper by Paul Craig for the law review was quite strong about the discretionary nature of the Parliament Partnership Council. The point was that it was a very last-minute agreement. You have all just been talking about how long the agreement was, but it was not effectively scrutinised either by UK parliamentarians or by legal scrutineers. There is a real issue about the thinness of the agreement. From our perspective, how do we begin to retrofit accountability and parliamentary scrutiny into the processes, not just so that we find out what is happening but our stakeholders? You have just talked about deciding where goods are made and how the treaty actually links into them. I have a couple of questions. I was wondering if members would like to come in. Professor Christina Eches, do you want to kick off? You talked about the urgency of agreeing that the TCA meant that it excluded alternative scenarios of national parliaments being involved in the process, being reported to and the lack of transparency. The adoption of the TCA was so ad hoc that there was no actual scrutiny in most parliaments. We dived into the Finnish and the Dutch and the German Parliament, and only the Dutch Parliament had a discussion on it when it came to the conclusion that there were no alternatives so that I had to move forward. Many of those provisions were not scrutinised in the traditional way because it was conducted as an EU-only agreement. Of course, national parliaments were anyway not involved in terms of ratification. The question is what can we do now under the current system. The core question is access to information and timely access to information. Let us not forget when decisions are taken at the partnership council level at the TCA level. They are, in principle, binding down on the parties to the agreement. The UK, the EU and Hans need to be influenced beforehand, and they are very difficult to change beforehand. We are looking at a situation in which, if parliaments cannot beforehand influence what is then discussed at the ministerial level by supporting experts, they act after the fact. Even if there is disagreement, there is no way of having a constructive influence. One can only challenge it afterwards, which is much more difficult. In my view, one must distinguish between active and passive flows. Many people have emphasised that we have information by the commission that we have quite some information on what is discussed in the partnership council and in the specialised committees. Of course, that is a passive process of putting it forward on websites, but what must be the situation is that beforehand, on specific issues, positions are taken and agreed with parliamentary scrutiny. That is core in maintaining some accountability in the institutional structure despite the fact that I fully agree with Catherine Barnas that the question is how much will be decided in those committees. However, I still think that one should not underestimate that this is the way in which one has accountability at the TCA level and what is not decided there, what is really decided at a party level, parties to the TCA. That is an internal question, and I could only voice my views on the representation of the member states in the EU that are not so much on devolved administrations. I move to Catherine Barnas, because you made the point about the challenge of scrutinising hundreds of pieces of legislation. That is something that we have highlighted in our UK internal market report that we need to have more scrutiny in the Scottish Parliament and the devolved parliaments on legislation, and the time issue is critical. What suggestions would you have to retrofit the system so that we include parliamentary accountability and transparency in the processes that come through the TCA? Yes, thank you. I think that your points are extremely well made. If we just break down the levels of engagement, let's start at the top, which is the partnership council. The partnership council has only met once, and as far as I am aware, no data has been fitted for another meeting. The striking thing is that any decision that is taken by the partnership council or the joint committee under the withdrawal agreement does not need to be approved by Parliament, and there has been no attempt at scrutiny by Westminster, let alone any talk about how the devolves might be involved in any decision taken by the partnership council. Moving down, you have the specialised committees. As far as specialised committees are concerned at the moment, I think that this is an area where the devolves should be making quite a lot of noise to say that we need to have sight of the agenda of those meetings well in advance. Of course, we need the minutes, but, ideally, you would say that you need representation on those committees, particularly the ones that are likely to touch on your areas of devolved competence, so things such as SPS and fisheries. As far as the PPA is concerned at the parliamentary partnership assembly, as we know, it met for the first time recently. It is a meeting between Westminster and the EU, and therefore there is no formal role for the devolves, although you have been given observer status, albeit at the last minute. However, there is a very good piece by Bridget Fowler on the UK and changing year website, which went up this morning, which I will link to, so that you can see her informed comments on how the PPA worked. Clearly, it was the first meeting, and so they had a lot of getting to know you to be done. I think that there is a sense on both sides that they want to make it a useful forum. The question then is to retrofit to use your excellent term. How do you in the devolves have a chance to have some input into what is discussed there, even though you are not allowed to be formally present, although you have observer status? Thank you. That is very helpful. Any of the other witnesses want to come in on the issue of accountability and transparency. Dr Zuleig, do you want to come in on that issue? I think that it is important to recognise that, in the end, this is a trade deal, and the trade deal, generally from an EU perspective, is implemented by the commission with the third country. That is the level of interaction. Of course, there are many other connections between them, but in terms of the heart of the relationship, that is dealt with at that level. On the EU side, we have had a very long discussion over the past years about what is the appropriate input, what is the appropriate scrutiny of those kind of trade deals. That is why we have also had this debate around whether it is an EU-only deal, whether it touches on member state competences. The European Parliament has been very vocal in being more involved in the scrutiny, particularly on the TCA. There has been a big movement on the commission side to be much more transparent, much more open in the negotiation and implementation of those kinds of deals. There has been a lot of development on the EU side, but, in principle, that is now up to the UK. The UK decides what happens on the UK side. There are some of the new mechanisms that have been put into place, such as the parliamentary partnership assembly, but whether that will have any real impact will also depend on how seriously it is taken by the UK Government, whether it integrates it into the processes or whether it basically meets as a talking shop without much impact. My second point is that the scrutiny of EU legislation is horrendously difficult even within the European Union. There has been a long discussion around whether parliaments within the European Union are taking their role fully when it comes to the scrutiny of EU legislation, because only some parliaments really have a structured process of doing that, which then also has a real impact on the decisions of the Government when it comes to negotiations. One of the reasons for that is because it is an enormous task. There is a lot that comes out of the European Union and a lot of technical detail, which is very difficult, as is crudence for any parliament. That is really helpful, but I suppose that the conclusion that we came to with our internal market report was that, although it is difficult, it is actually very important, and it is being illustrated by a couple of you today. If it is business and trade, then goods that may start off in one country but are actually completed in another country, you actually need the technical arrangements to be clear, for example, so that businesses and environmental NGOs can actually lobby us as parliamentarians and that we can then raise issues that our constituents are interested in. That was a very useful answer. Any of the other witnesses have a comment that they want to come in on the importance of parliamentary scrutiny and how we might deliver transparency that we actually need in the implementation of the TCA. What I am taking from this is that there is agreement that this is really important and the challenge is actually how we deliver this in practice. From the last comments from Dr Zuleigh, it is interesting to note for us here that there is a parallel discussion in the EU about the European Parliament being involved and I think that that is something for us to take away in terms of our relations with European parliamentarians and devolved parliaments across the UK and the UK parliaments. If you do not ask, you do not get, so thank you for that, convener. Thank you very much. If I could just maybe ask a supplementary, and it is to Professor Christina Ekis or Ikes, we are not sure if we are pronouncing your name properly, perhaps you could tell us. It was about the comment that you made in the first session, the first theme about the partnership council. The impression that I got from your contribution was that you felt that the Scottish and other devolved nations were actually part of that process and were involved in the partnership council and involved in that process. I think that the PPA would be the body that would be expected to scrutinise that work but yet the devolved nations, we had observer status, we did not have access to briefing papers, for instance, from the UK delegation. Is there a mismatch between the way the partnership council is operating at the Government level and the opportunity for the devolved nations to contribute into the PPA? Yes, you could say that. I would start with saying that we were talking access to information and transparency, so we must know that the PPA's powers are limited to information and recommendation powers. The scrutiny that you mentioned is already limited, so we must acknowledge that as a starting point. However, I agree that there is a mismatch in executive representation, which is a matter of internal UK decisions of who is sent to the partnership council. That is something that is not ensured in the TCA. No devolved administrations are in their own right. They are representing the UK as a partner to the TCA. I honestly do not know to what extent we can say that the practice of sending Government representation to the partnership council in June 2021, when it was met, will be continued in that form and to what extent it is a right also within the UK. That is something that I cannot speak to. However, you could say that there is a mismatch between that executive representation and parliamentary representation that I would agree with. The question is to what extent could that be rectified and parliamentary and sent as part of the PPA? Maybe I could offer a summary. All of these discussions require, but at the moment appear not to have, a wish on the part of the Westminster Government to pursue consensus and an attribution by the Westminster Government of importance to the matter. The design of the headlight or the other component of a car, which is 35,000 components, actually does. They come from all over the world and they get fitted together. That is why we have rules of origin. That matter seems not politically at the moment to be very important, but in terms of prosperity it should be recognised as being important and pursuing consensus on that should, though dull and not exciting, and possibly being too much communing with the Europeans so nasty to us, it would be appropriate to start by attributing importance to the reaching of technical consensus on technical matters that are not sexy, but which are important for ordinary people and ordinary businesses. I will move on to our next theme, which is in looking at areas of disagreement between the UK and the EU in terms of the operation of the DEC and a bit more perhaps about the parliamentary partnership assembly, Mr Golden. Thank you, convener. I would like to start with Professor Barnard, if that is okay. We have touched on lots of elements of areas of disagreement between the EU and the UK and how those might be resolved, but I am keen for any further thoughts on that, as well as in the operation of the TCA, how the areas, the gaps, if you like, and how they could be strengthened. I am keen to close off those aspects, as well as hear the panel's thoughts on how dynamic you envisage the future governance of the TCA will be going forward. If we start with Professor Barnard, then I will go to Professor Eches next. Thank you for that helpful question. Areas of disagreement, I would summarise them as customs facilitation, which is very thin. Fish, better than it was, mobility is still real problems. The other issue is programmes, particularly horizon. The particular area of disagreement there is whether the UK can have associate membership. That is now connected to the EU's response to the UK Government's attitude to the Northern Ireland protocol. What I am hearing now is that it is increasingly unlikely that the UK will sign up to horizon. It is increasingly looking from the Treasury's point of view that the £17 billion that it would cost us could be better spent on setting up our own scheme. Access to the programmes is a real problem. Of all those specialised committees, the one that nearly did not meet was the committee on programmes. The UK Government is saying that that is one of the reasons that the EU is not fully complying with its obligations under the TCA. The other issue is quite striking and will be played out quite a lot over the next two or three weeks. The interconnection between the TCA and the withdrawal agreement. The treaty recognises that, in respect of remedies dispute resolution, there is a link between the two treaties, but the UK Government takes a view that the non-cooperation over horizon is not a legitimate way of using powers under the TCA to extend to issues that arise under the withdrawal agreement. The other thing that I would like to put down as a marker is the future. Remember that the TCA is subject to review after five years, so the planning for that should happen in 2024. Again, that might be an issue that the Scottish Government would like to have some say in. Likewise, there is a review over the fisheries arrangements in 2026, which interconnect with the energy arrangements. Professor Barnard, can you move on to Professor Eches and then we will go to Dr Fabian Zulaig? Maybe it can be very brief on this and just throw in an area where the conflicts have not arisen yet, but where I see potential future conflicts. That is the provisions on surrender and exchange of criminal records. They cannot be put into practice without national legislation. We see national legislation being adopted in different member states and quite some confusion on references to the TCA references to EU law in the national legislation. That is an area that is very highly right sensitive, where differences in protection may arise and where I see a lot of potential of individual-level conflicts that are really in a non-trade area, but none the less are very right sensitive. Thank you very much. I would firstly say that it is important to highlight that, from an EU perspective, the TCA is not completely separated from the withdrawal agreement. Those are connected. There was always the perception or the actual political agreement on the EU side that the withdrawal agreement was a necessary condition to have the trading relationship that is embodied in the TCA. By questioning the withdrawal agreement and the Northern Ireland protocol, it also questions the whole relationship. That highlights that the TCA in the end is not only thin, it is very precarious. There are many areas where co-operation can break down. There are many review points at which point we might see big changes. On a more general point, for those international agreements, yes, they are very complex, they are very lengthy, but you cannot specify everything. For them to work well requires a lot of trust, good faith and on-going co-operation, and it requires a will to make it work. There is a real question now on the EU side whether there is a will on the UK side to make it work in the way that it was intended, to implement some of the checks, for example, on the UK side, which still are not there. I think that that also plays into the political realities in which such an agreement exists. If there is not the agreement to move forward in a constructive way, things can become very difficult in a variety of different areas. You just do not have some of the conversations on technical standards, which you otherwise could have. You do not work quickly at the borders to make things move smoothly. You do not have the kind of discussions at the political level about how you find a way forward out of difficulties that will always arise in any kind of agreement of this nature. I think that it has to be said that we have to see this in the overall context of political realities, and things are very difficult at the moment. Thank you, Dr Dillag. Professor Forster, do you have any thoughts? I just add two points. One programme that should render sad the members of this committee is Erasmus. That was an absolutely excellent programme from which Scotland benefited from the arrival of students and Scottish students had the opportunity of studying abroad. That was the basis of tremendous good. It is gone. Or at least UK and Scottish participation in Scotland. That is a pity. Separately, just to add to what was said about co-operation and connection with crime, Lord Advocate Wolff spoke repeatedly, and I helped to organise one or two of these meetings about the necessity of establishing adequate, effective measures to ensure cross-frontier co-operation in a world where cross-frontier crime is routine. He told, movingly, of a murder where, thanks to the European arrest warrant and frank co-operation between police forces, someone was brought back to stand trial in this country for the crime of murder. Those are really important things that ought to have been properly addressed. They weren't. Thanks for that. Just thinking about the TCA, what would be the consequences if the TCA was not in place? It doesn't need a TCA to achieve effective co-operation between police forces or between judicial authorities. It requires an agreement between countries and it needs to be written down because you can't do extradition on the basis of something written on the back of an envelope. There has to be an international agreement and the UK was cautious over the past, going back 35 years ago, the UK was very cautious but gradually was convinced. The UK and others participated in building up the network of co-operation between police and judicial authorities, which existed up until February two years ago. The TCA is a framework if people choose to use it to build the kind of relationship that used to be there. Okay, thank you and final question. Do we have time? Turn on that point just before you move on. Okay, Dr Zulek. I just wanted to make the point that I think that while I fully agree with what just has been said, I think that it's important to note that if the TCA were to break down with also the implications that would have for the withdrawal agreement in the Northern Island protocol, there would be very little co-operation that could happen between the European Union and the UK. That would affect all areas of co-operation and would make the relationship impossible to manage. Thanks, Dr Zulek and perhaps if I could stick with you for the final question. How much activity do you envisage between the partnership council and committees of devolved legislators? I think that this comes back to the point that I made before in terms of who actually decides on how these processes look like. From the perspective of the EU, it is entirely up to the UK Government to decide how to implement consultation, exchange with devolved administrations, with devolved assemblies. This is not something the EU would have any kind of view on or any kind of input on. In the end, the partnership council is between the UK Government and the commission, and that is at the level at which it is dealt with. However, how those decisions, how the input into the partnership council are derived at the UK side is entirely up to the UK. Thank you, Dr Zulek. I am happy to open up to the panel on either of the last two questions, either the consequences of the TCA breaking down and how the partnership council may operate if there is any thought. We will go to Professor Eckes, then to Professor Bernard. Just very briefly, I fully second that I think the consequences would be dire and far going. I can only refer to what I said earlier in the discussions, for example in the Dutch Parliament, what consequences that would have for areas such as fishery and land. All areas are basically that the TCA gives a thin but a framework for co-operation to develop further to specify to exchange. While I agree, of course, that you could have exchange of criminal records and you could set up the surrender of evidence and whatever, in a separate agreement, I believe that the damage to the relationship would also be so deep that that is very difficult to envisage in my perspective. As to the second point, I think that I would just like to add that I have absolutely no doubt in how high regard Scotland is held in Strasbourg, Brussels, but it is an international agreement, an intergovernmental agreement, the TCA between the UK and the EU, and I think that any EU partner would be very careful in mingling in the internals of the other side. In a sense, that is one thing that one should not forget. Only the UK and the EU are represented in their own right under the agreement, and that is a problem for the member states to a degree, when that is also, I think, the same problem faced by the devolved administrations, and one should not underestimate the formality of the framework in which one co-operates and what that means for how co-operation takes place. I would just say that the TCA envisaged further co-operation between the UK and the EU. It makes repeated reference to supplementary agreements, but at the moment all of that is for the birds. You could well imagine supplementary agreements on matters like professional qualifications and mutual recognition agreements, but there is not a hint of that at the moment because of the tension. The question then is why might the TCA break down? I do not know if you are going to go on to ask about the Northern Ireland protocol, but I can talk you through the reasons why it, the Northern Ireland protocol may lead to a breakdown under the TCA. There are various reasons why the TCA is described as precarious to use Fabianne's words. It is precarious, not least because the review coming up in 2025-26 could form the basis for the Conservative Party's manifesto to say that we should leave the TCA, which we could do with what is giving one-year's notice, and the review might point in that direction. Thank you. Professor Forrester, would you like to come in on this at all? I can't add anything to what has just been said except to confirm. When you asked earlier about criminal co-operation, what I said is right. A country can readily enter into a deal on criminal co-operation, but what the others have absolutely correctly said is that if the TCA were not there and broke down, then such co-operation would be extremely difficult. I am afraid that we are running up against our time limits for this morning, but before we move to our final area, I am just going to bring in Miss Boyot. She assures me as a very small supplementary. I appreciate that, convener. It is just a quick supplementary to Fabian Zuleig. You were talking about the issue of the partnership through the PPA and how it actually works. Can I just ask a quick question? It is clearly the UK and the EU, but what is the diplomacy for other European countries, for example Spain and Germany, with very strong federal systems? How do they ensure that their governments and their federal systems, which have decisions taken at a sub-national level, are properly represented in the PPA, so that there is consistency in the way that we are looking for and to transparency? The key thing here is, from an EU perspective, that this is something that has to be decided within the individual member state or the federal state. It has different ways of applying these kinds of provisions and of different ways of interacting with the EU level. We have in some countries a very wide-ranging involvement of federal entities within European decision making. If you look at, for example, Belgium, where the constituent part has a very big role in a lot of these decisions, up to the point where we have seen, for example, a veto of a federal state against an international trade treaty, in other countries it is arranged differently. In the end, the rule at the European level is essentially that you do not get involved in the internal constitutional issues of the member state, which decides. At the EU level, they then act as a member state. I was going to ask a question with regard to information flow, but in your previous answers you have talked about accountability and transparency and scrutiny in quite a bit of detail, and especially to my colleague Sarah Boyack's point about retrofitting. I am interested to know what we have learned with regard to the TCA. If its governance structures may be considered in other agreements—perhaps trade agreements—and how the Scottish Parliament can get involved, and what can we learn from the experience that we have had with regard to the TCA and perhaps what could be improved on, I do not know. Dr Zuleig, do you want to start? I cannot really comment on what the UK might take forward from that. From an EU perspective, it is slightly contradictory. On the one hand, the TCA and all the arrangements, also including the withdrawal agreement and the Northern Ireland protocol, are very unique. It is a different way of arranging a relationship with a third country, given the history, the size of the UK, and the integration between the economies that were there. It has been designed in a very bespoke way for this particular situation. However, there are also elements in it where there has been a much broader debate, which I have already referred to. When it comes to the questions of how you implement broader objectives around environmental standards and labour standards, the TCA in a way is pioneering some new ways of doing this. When it comes to the questions of how does the European Union negotiate international trade deals, how does it scrutinise them, how is the decision-making process, how is transparency around that, again, the TCA has been a bit of a pioneer on some of these issues. I would say that it is a very unique relationship and that is reflected in the arrangements, but there are also elements there that have much wider implications and which we will find in future trade agreements of the European Union. Professor Barnard? I think that the starting point is to remember that the TCA is a trade agreement and so looks rather likely agreement that the EU has with Canada, which is of course what the UK Government wanted. The trouble is that Canada did not start from being very close and moved out. Canada started from being very far out and moved a bit closer in. That schizophrenia that Fabianne has just talked about, I think that you see between the withdrawal agreement and the TCA. The withdrawal agreement is essentially to put it bluntly EU law light, whereas the TCA is essentially WTO heavy. It has got very little to do with the EU at all, but yet, of course, we look at all of this through the prism of EU membership and what we had less than two years ago. I think that there are two things that your committee might want to consider. One is that Switzerland is also having some difficult relationships with the EU at the moment because of its refusal to approve the institutional arrangements that had been negotiated. There is some commonality between the approach that the EU is taking to Switzerland and the EU is taking to the UK. It does bring the UK and Switzerland closer together and, indeed, it may be that it leads to them having a closer and deeper relationship, which, given Scotland's interest in financial services, is something that I would suggest that the committee might want to take some interest in. Secondly, and very much longer term, you will recall President Macron's speech about how to manage relations with its neighbours, Ukraine obviously being the country principally in its sights, but he does allude in his speech to the UK. One of the things that Scotland might think about—indeed, you did some very interesting work on this in the immediate post-Brexit period—is what does a Europe of concentric circles look like for an important neighbour to the EU, but one that is recalcitrant. I think that that ties in with Dr Azuliq's comment about the soft power and the relationships that we can continue in those respects. Professor Eckys, have you got anything to add? Just the general point that the TCA is an example of the deep and living trade agreements that are concluded nowadays. If you acknowledge that fully, in its extent, there is a good reason to say that we need a comparative level of accountability, transparency and access by parliaments than we do to legislation. Despite the fact that the institutional structures are not as proactive as one might have feared at the moment that the TCA was concluded, we have spoken about how little the committees have met and how little negotiation has happened there. They create the potential. There is a framework of an external executive governance structure, and that must be taken seriously. My main advice would be to embrace that these are the new generation trade agreements. They externalise decision-making and governance to an executive level that needs to be scrutinised timely and scrutinised in formalised agreements of access to information. The argument behind that is simply that they have the potential to be quasi-legislative in their impact on national law in all areas that they touch upon. I suppose that ties in with perhaps this committee meeting our equivalents in Northern Ireland, Wales and, as we started earlier this week, some of us met with the PACAC committee in Westminster, so better co-ordination between the committees and parliaments across the UK. Professor Forrester? I do not have much to add except to suggest that the elephant in the room is one of approach. That is the political difficulty of making a choice between the supposedly irreconcilable policies of sovereignty and prosperity. In other words, a difficulty that we have is that the UK Government's approach to relationships with other countries, as exemplified by the TCA, hinders the resolution of the daily problems that neighbours have to confront. That is a great pity. Thank you very much to our witnesses this morning. That has been extremely helpful to our deliberations. I am going to suspend for a very short five minutes and we will return for our third agenda item. Welcome back. We now move to our third agenda item, which is considered documents leading connection with the powers in section 1 of the UK withdrawal from the European Union continuity Scotland Act 2021. The fair members to be protruding their PACs. The committee considered the draft policy statement and draft annual report and reported our recommendations in November last year. I will now invite and thank you to Spice who have provided an analysis of the revised documents against our recommendations and I invite any comments from members. Thank you, convener, and thank you to Spice for the very helpful paper that they have provided the committee. I would also like to put on record my gratitude to the Scottish Government for making various changes in light of our report. However, convener, I do note that they haven't acted on certain points that we raised in relation to transparency and scrutiny. For instance, it's not clear from the draft policy statement how the Scottish Government will make decisions about what EU law to align with or not. There's no commitment to set out which EU laws the Scottish Government has considered from an alignment perspective but decided not to align with. In my view, we do need more transparency on which items of EU legislation the Scottish Government has looked at and considered for alignment and in what way. Parliament will want to have a proper overview of those areas where there has been a choice to align or not to align. If the decision has been not to align, then the Scottish law will have diverged from EU law. I think that it's important that we are advised of that and know that. I appreciate that the time is very short, but I do think that it's important that the committee put on record in a letter to the Scottish Government those points. I also welcome the fact that there were responses to several of the points that we made in our report, but I was disappointed in three areas in particular. The issue about not agreeing with our committee recommendation of updating the Scottish Government website to give us information on where it intends to align with EU law is a challenge not just for us as a Parliament but for stakeholders, so that people can understand what changes are likely to be made, particularly in the context of the discussion that we have just had with witnesses about the challenge of tracking the TCA and how important it is for businesses, the agricultural sector, fishing and environmental lobbyists, which I think is really important to get legislation right. I was concerned that there was no agreement on flagging what consultations had been carried out and the suggestion that that was not proportionate. I just thought that that cuts across the transparency and accountability element. I would like a bit further comment from the Government, because it avoided a direct comment on the proposal that we had of a memorandum of understanding between the Scottish Government and the Scottish Parliament to deliver effective scrutiny. Very conscious has been a lot of very good work by our clerks and Scottish Government officials, but I think that that's something that would really add to clarity and would help people manage timescales, for example, how the monitoring of keeping pace powers could actually be effectively monitored for the purposes of transparency. Just to log that on the consultation issue, it wasn't just our committee, the rain committee also considered that important, so I think that that's important for us to log. I would echo those points. I think that the Government's legal duties is one thing to flag up where there has been active alignment, but clearly alignment is much greater than that. An example that is currently out to consultation is the Scottish future catching policy for fisheries, where it appears, reading through that, that there's alignment with the principles of the common fisheries policy, but when you actually look at the detail of what's being proposed, you could argue that it's actually divergence in terms of the delanding obligation. So it's not really clear in consultations like that whether the Government is seeking active divergence or not, and I think that's something that we absolutely need to—all committees of this Parliament absolutely need to keep a handle on, and that goes way beyond the reporting mechanisms that we currently have. So, like other members, I hope that the Government will reflect on that. We don't sleepwalk into one direction or another and there's active consideration. Stakeholds are clear where there is alignment and where there is proposed divergence, which I don't think we have at the moment. Any further comments or anyone not in agreement with the comments that have been made? I think that the suggestion of deputy convener to write to the Government on our concerns is the way forward, and if the committee are minded, if the clerks can draft that and leave the approval of the letter to myself and the deputy convener, we'll take that forward on behalf of the committee. On that note, we move into private session for our final agenda item.