 Gwneud hynny. Welcome to the 21st meeting of the committee in 2018. I would like to welcome members back to the committee after the summer recess. I would also like to take the opportunity to congratulate our former members, Mary Gougeon and Richard Lockhead, on their ministerial appointments and thank them for the contribution that they have made to the work of the committee. A'r 1st item of business is a decision on taking agenda item 4 in private, our members agreed. A'r 2nd item of business today is an evidence session with the Cabinet Secretary for Government, Business and Constitutional Relations, Michael Russell MSP and Ian Mitchell, Deputy Director for EU strategy and migration in the Scottish Government, and I congratulate the Cabinet Secretary cyfleu'r rôl newydd. I last gave evidence of the committee in March on the continuity bill. Since then, the Scottish Government has presented evidence in support of our long-standing position on these negotiations, for example on security and justice and on the economic impact of Brexit on the seafood trade that has been provided to you. I am glad to be back here i eich ddyn nhw i gael i ddweud i'r negosiadau i'r ddadigfyn fyddai ddwyngor. Ond rwy'n credu i ddweud o'r issue o'r ffordd yn gwybod, ac rwy'n ddweud i ddweud i ddweud i'r ddweud. Diolch yn fawr i'r bywyd, wrth i'r ddwych chi'n cymrydau cyngorau yng Nghymru, ond rydyn ni'n cyfrifio'r cyfrifio'r ddwyllai, ac rydyn ni'n cyfrifio'r cael ei ddweud i Brexit. The Scottish Government will continue to make responsible preparations for EU withdrawal, however regrettable those are, including drafting and presenting necessary legislative measures. The UK Government should rule out a disastrous no deal and focus instead on securing the best outcome for all of us, which, short of staying in EU, is remaining part of the single market and the customs union. It is no secret that we have been frustrated by the quality of engagement that has been with the UK Government on negotiations. The UK Government needs to engage with the devolved administrations meaningfully to agree the detail of negotiating positions and ensure that Scotland's interests are protected in workable proposals. Brexit continues to present significant implications for the UK's constitutional arrangements, a matter that we predicted in Scotland's place in Europe almost two years ago. The UK Government sought this Parliament's consent and it was refused. If the UK Government believes that it can proceed, then the Sewell Convention is of very little value in protecting this Parliament and the wider interests of Scotland. It is time to look again at how we can embed the requirement for the Scottish Government's consent in law and to strengthen intergovernmental processes. I said yesterday at the Finance and Constitution Committee and I repeat again today that Brexit has turned out to be too heavy for devolution to bear. They are required now to be substantial changes and those are ideas that we are bringing to the table along with others, including the Welsh Government. I am happy to discuss those issues and many others with you today. Thank you very much Cabinet Secretary. Can I begin by asking you what discussions took place between the Scottish and UK Government ahead of the publication of the UK's white paper on the future relationship in July? The so-called checkers agreement. I am happy to talk you through that. We had a discussion at the first meeting of the Ministerial Forum in May, which was held in Edinburgh, on the contents of the white paper and that was a useful discussion. We were pleased with that engagement. We were shown a list of contents. It did not turn out in the end to be the final list of contents but we were shown a list of contents and we discussed that in outline. The engagement then went downhill considerably. We were eventually shown, I think, two possibly three groups of chapters, five chapters in all. The procedure for us seeing of those was tortuous. They required to be sent to the permanent secretary and then we were allowed to look at them. Ministers were allowed to look at them. One of those I did not see until the day essentially the white paper was published. Two of them were mentioned at a ministerial forum the week before the white paper but we were not allowed to see any paper on them. What happened, and this sounds scarcely credible but I would just tell you what happened, is that the minister, Robin Walker, read a praisey of the chapters to us in the meeting. It was like really eating in a medieval monastery. Somebody read something to you while you just sat at the table. We, both the Welsh and ourselves, objected very strongly to this. To be fair, I do not think that the ministers present at that meeting had seen the chapters themselves. There was no other engagement and we did not see a final draft until the following week just the day before it was published. We saw the final paper. That is the process. There were in those five chapters the possibility of saying that factually doesn't work or that factually doesn't work but in terms of engagement on the process and influencing the matter it was virtually non-existence and it was a nodding to the existence of the devolved administrations but no real engagement with them. Just pick up on the point that you made that the ministers in your view, the UK ministers that were reading out the chapters hadn't seen them themselves. I did not ask and they did not tell but my view would be, my expectation of what I've seen over the last two years, that they also would not have seen a full version. I did know before the checkers meeting that the papers presented would include a draft of the white paper and would also include apparently a very scary paper about no deal but we never saw those papers before they were presented. I made the point to David Lidington and also to the Secretary of State for Scotland that it was important that we were involved in those discussions and I have made that point to David Lidington again last week on the issue of the no deal preparations. To be fair, I've had private conversations with David Lidington about those, one conversation with Dominic Rab, but again we're not seeing the material in anything like a way that can make a meaningful contribution. We are asked if the material is legally and factually correct. We're not engaged in the process of drafting that material and if I can use two examples which perhaps illustrate it in the last 24 hours. Yesterday, at 1.37, officials were sent 30 slides on a subject that is to be discussed with the EU this morning. Our officials were meant to comment factually on those slides. That's not consultation, that's fact checking. Today, the announcement on the seasonal worker scheme we read about on the BBC website. We've not seen it before, although we've been deeply engaged in that issue. It is an issue in which I have made repeated representations and it seems to presage a sectoral approach which we find unsatisfactory. Have there been any areas at all where you feel that you have been able to feed into the UK Government and it has actually affected the outcome of the paper that's eventually been written? If we don't see the paper, by definition that doesn't happen. I think that the role that Mark Drakeford and I have performed in the ministerial forum is to stick out the areas where we believe that we have an interest to see what that interest is and to ask for that to be considered and included. The UK Government will say that we have influenced a range of decisions. I get quoted to many things that I've said on a variety of issues. I don't feel that that's the case. We certainly don't believe that what we call the upstream engagement, which is what we think we need to have. Indeed, it is in the written terms of reference of the JMC that has actually been observed. I described it yesterday as a tick box exercise. There is a feeling to that. I did raise strong objections to an item at the ministerial forum in Cardiff. I will give you the details of the item, which in my view in a deck of slides for the negotiations misrepresented the situation in Scotland. I did receive an apology and an assurance that had been corrected and corrected with the task force as well. There are occasions in which we are able to say, sorry, this is not correct, but in terms of active participation and putting points of view, it's very hard to do. We talked extensively at a previous meeting where you spoke to this committee about the JMC in terms of reference and how they were not being adhered to. In terms of the new ministerial forum on EU negotiations, does it sound to me as if there has been any improvement there in terms of engagement? We always hope that there can be improvement. The first meeting at which we could discuss the contents of the white paper was a positive meeting. The two since then have been more difficult. One was spent documents being read to us, which was complete for us. The second one, the last one in Cardiff, I think we did engage on a number of issues. The next one, which will be held in 10 days' time, is looking at agriculture, agri-food, one or two environment issues. We've agreed that the ministerial forum should involve ministers from the Scottish Government as well as the Welsh Government and the UK Government, so there will be at that. Other Scottish ministers, I think, will be attending that. It's being held on the same day as a DEFRA ministers meeting, which is helpful. We would hope that that would influence the discussion at that stage on the negotiations on agricultural issues. Remember, of course, we are in a double process. The process at the moment is the exit process, then there's a future relationship process. We would hope that the influence would build so that in the future relationship process we were representing what the DEFRA were responsible for in the widest sense and how those were dealt with, but we have no guarantees. Obviously, the checker steel doesn't cover services in terms of the access to the single market. Given the importance of services to the Scottish economy and to our export to Europe, you would have raised that. Did it come as a surprise to you that services weren't included in the checkers? I can understand what the checkers agreement is trying to achieve. According to reports that we read yesterday and today, it is not going to achieve that. The view of Mr Barney appears to be that it is essentially dead in its present form. We have always felt that the distinction being drawn between services and goods is an inaccurate one and one that is difficult to police and to justify. If I can give you one example, which I think illustrates it particularly well, it is in my own constituency, I opened a small hydro scheme in the village of Dallavech in the spring, which is a forestry village next to Loch O. They have been working for years to have their own hydro scheme. The turbine is made in the Czech Republic and it is supplied by a company in the Czech Republic, but it is not supplied just as a turbine and put that in and forget about it. It is supplied with maintenance and it is also monitored on a 24-hour basis from the Czech Republic. That is goods and services and they are indivisible. For example, they contract to install an MRI scanner. They are often made, Siemens makes the bulk of them, they are not put in and then somebody else maintains them. That is a goods and services contract. Trying to distinguish between goods and services is a difficult matter and I do not think that it is likely to succeed. We tend to think of services as being financial services or legal services, but services are much more complex than that. Obviously, that is stuff that you have been feeding in in your meetings with UK ministers that has not been taken on board. To be entirely fair, I think that our position is sometimes known because we publicise our position, we publish where we are. We do not have to spend all our time staking it out. We say that this is our position as we have written on it. I think that they would be aware that we are very sceptical about the Czech Republic's proposals. I, at the last ministerial forum, made the point that I think was agreed that in order for it to be successful in any way it has to be an evolutionary position. It is not a final position, but the Prime Minister is presenting it in a final position. The language that is selling it is evolving change. It cannot be both. Thank you very much. I will pass over to Claire Baker. Thank you, convener. The cabinet secretary this morning called on the UK Government to rule out a no-deal scenario. Clearly, the Government has published technical papers over the summer in certain areas where they are looking at and the EU has also published a number of preparedness notes in the scenario that there could be a no-deal exit. Have the Scottish Government been able to contribute to any of those and have the Scottish Government given consideration to whether we need to prepare Scotland-specific preparations in the event that there could be a no-deal Brexit? Yes, we have done both of those. We have contributed in the sense that we have fact checked and legally checked. Sometimes in a short timescale the notes have been published so far. Did we see them all? There were some we didn't see. It was variable, but I must fact check it. Those that we have seen, we have fact checked and made suggestions on. We are sort of between a rock and a hard place on this and I think we have to recognise that. We do not want a no-deal. We think a no-deal is ridiculous and disastrous and it is an indictment of the UK Government that we are in that position. Equally, we have a duty to protect Scotland from the consequences that might arise. We have gone along with the publication. We have made our views known on it. We will take the legislative steps that we need to take and I made that clear in what I said in the programme for government debate on Tuesday and I will make a statement next week on that in the chamber of how we will take that forward. It is a considerable legislative burden and we will have to take that forward. On specific issues such as medicines and interaction between Jean Freeman's department and the UK Department of Health and that will be true in other departments where there are preparations to be made. Quite clearly, we continue to look at any issues that will be Scottish specific. For example, if there were to be no new trading arrangements in place what would be the implications for Grangements? What would be the implications for Lyon and Stranrair route? What would take place? We have to work on those and we are working on those. A great deal of work is being done on the no deal scenario. That is the responsible thing to do but it would be far better if there was acknowledgement that that simply could not happen. There is a ready made solution that takes us beyond that which is a single market and a customs union position. I was very supportive of seeing last night Keir Starmer saying that he wouldn't support the free trade option so I think that there is an identity but I think that there is a growing recognition across the sphere with the exception of the Conservatives that there is many alternatives to a no deal and that those need to be taken. While I would agree with much of that the Conservative Government are at hand on negotiations and the possibility of a no deal is still in the table. The papers that were published by the UK Government and the 24 notes were partly intended to give advice to the sectors and to businesses. Would the Scottish Government intend to publish any I know you have said that there is work under way but is there an intention to publish any materials for businesses within those sectors and is there discussions on going with those particular businesses that might be affected? It wouldn't be our intention to supplement those papers unless we felt that there was a material deficiency and now we haven't identified that. If we found a material error that they wouldn't change we would undoubtedly correct that publicly. But the present moment we haven't got that thought. We also have to guard against two other things. One is saying that we can do everything to avert the dangers of a no deal that we can cope with a no deal. This is the Prime Minister's language, it's not the end of the world and all the rest of it. We don't know by definition what a no deal would look like if it was specifically for it. The other thing we should do is avoid the momentum to a no deal. I've heard for example in the European Parliament some very distinguished voices saying that one of the dangers of this is once people like the financial sector start to prepare for a no deal then there's a momentum towards a no deal and we need to make sure that we don't contribute towards that. So there's a careful approach needs to be taken. But for this Parliament the biggest issue will be to make sure that we have in place a legislative framework that means that we are correcting the deficiencies. Now that will require us also to accept some UK statutory instruments. Now you know we have a position on Brexit legislation in terms of SEWL but there are some compromises to be made on that simply to make the statute work and that's our obligation. Thank you. Tavish Scott. I didn't want to leave the European Union either Mr Russell but we're going to and similarly on no deal to follow Clare Baker's very fair line of questioning I think we've got to do all we have we can to prepare for it. I understand politics of why you say what you say but I don't think a business the skipper of the serene that I was on in Lerwick Harbour on Monday afternoon would thank me or you for not being ready in every possible way just in case that's what happens. So to continue Clare Baker's line of questioning the Government's responsibility to absolutely publish any analysis and their best well their best analysis of how our business is going to cope if we fall off that cliff edge because there's got to be a fair chance that now happens. Well of course I mean I've not said anything to the contrary I mean I'm not disagreeing with the I think this is about practical issues for businesses the length and breadth of Scotland. That's why we are taking a pragmatic view and working with the UK Government on no deal. On the politics side and the constitutional side we are against the legislation but we are making a distinction between no deal and other matters I mean that is not only clear what I'm saying now it will be even clearer next week we are putting in place all the arrangements we can we are doing all the work that we can but equally it will be utterly irresponsible of me not to say that the consequences of a no deal are unknown because it has never happened before and in these circumstances it is not possible to say as the Prime Minister is saying oh well it's not the end of the world we'll just get through it we don't know what will happen now my own view is and again we may disagree on this but I hope not I think the prospect of a no deal has been deliberately talked up in order to frighten the brexitiers away from it and it's now got a momentum of its own and therefore we should try and work against that momentum because I do think at the end of the day a no deal actually means lots of small deals there are some things which would have to be cobbled together at the end of March simply because it's impossible for things to continue without it but you know where we are now is the result of utter incompetence and it is completely wrong of us to say that doesn't matter because you know we'll muddle through there are things we just can't know and it would be very foolish of us to say that we know that everything will be all right I don't dissent from any of that but I'm trying to divorce what I could enter into the flights of rhetoric and all the politics of it as well but I'm trying to divorce that from the practicalities of being a fishing skipper or in your constituency as well a fish processing business that will be trying to export to Beloyne on the 1st of April next year etc and the only bit on the Scottish I looked at the Scottish Government website right now the only thing I can find that is practically there about what would happen then so just help me understand what the government is actually doing for all of us to understand There are three tranches of UK documents on no deal the first of which has been published there are two more to come we have co-operated in their publication we have fact checked them and legally checked them where we have been asked to do so and the first of which is legally checked them where we have been asked to do so and we have made it clear that these are available and these are the UK Government's guides we're not adding to those unnecessarily some of them we disagree with but we've not published an analysis of each of them which I could do I think the trading one frankly is irresponsible because what it says is we'll just carry on as things are now I don't think that will happen but that's what we've done where there are areas which we have to take additional steps as in health we will take those steps and when that goes on we will look at those and see if we can provide more but let's boil this down absolutely to individuals let's go, you go to Shetland let me go to Tarbert to unlock fine and there are people exporting live langousties and they are not live if they sit on the M20 for five days I have no solution to that there is no solution that the Scottish Government can offer because the UK Government doesn't offer a solution to that if that problem occurs there is nothing that we can say or do that will make those langoustines get through those circumstances I was in Grangemouth last week launching our trade paper and I talked to people at the port they have no idea what will happen on 30 March next year none whatsoever at the present moment my job also is within the negotiating structure to try and get that information and to find the person who has it and I think that is the issue but at the present moment six months away they don't know what's going to happen is there going to be a massive new customs operation we just don't know and I can't tell people that it is impossible you make a fair point about langoustines from Tarbert in the financial times today the ports on the north east of England are investing money in new port facilities and lorry parks in other words there is scenario planning for what may happen in the context of trade do you not think that it would be fair for government here in Scotland to be part of that scenario planning and saying that we want to avoid I entirely agree with you we want to avoid Dover because it will grind to an 80 mile road block would it not be the right thing to do to scenario plan on the basis of other ways in which we can export our products to the European Union and we do support those I speak to businesses on almost a daily basis so do my colleagues it would be wrong to say that we are not doing that but it is equally wrong to say there is some easy solution to this we will just wave a wand and it will happen there is no easy solution I don't think anyone in this committee would suggest it's easy but I'm certainly arguing that the scenario planning rather than saying we can't do anything because we don't know anything and I'm suggesting and you make a very good example of the seafood industry it's probably the best example of real-time product that needs to be exported on the first of April and we not be planning for that of course if there were ways to do so and we could find ways to do so well there may not be ways to do so but there may not be ways to do so and particularly now one of the issues also is preparedness I look constantly at businesses and their preparedness and talk to them I did an event on Tuesday night and we're only just saying what do you think we're going to do in six months time now I'm not criticising them but that is also an issue and what actually has focused people and a lot of this work is now going on is the issue of no deal people have suddenly become focused upon that and that's profoundly disturbing but we will do and continue to do everything we can to help and we will go on doing that so we have made that crucial distinction you know what I think Adam Tomkins was saying in the programme for government debate last week that people were saying to them they just want the Scottish government to carry on and work with the UK government on Brexit well the UK government hasn't got a plan on Brexit it's got half a dozen plans none of which will work but we make an absolute clear distinction between that chaos and what we are trying to do to protect Scotland that's our job and you do recognise that business of every kind big small whatever is desperately apart from the ones you mentioned we are only kind of waking up to it now but most I meet are certainly saying how are we going to survive on the first of it if they are an export business so that we need to support that of course and we will do everything we possibly can to do so but we must also be realistic about what the barriers are to that that allows us to try and overcome them and there are considerable barriers to it not least the lack of knowledge of what's taking place okay thank you Ross Greer Cabinet Secretary I completely understand what you are saying about the impossibility of knowing what no deal would look like and as you said even a no deal would have a range of small individual crisis deals inside it but as Tavish Scott and Cora Baker made the point scenario planning can be done except what you said about not wanting to replicate the UK government's papers but again there's a distinction between trying to assess what the impact may be and the second stage of that is to investigate that impact how to cope with it has the Scottish Government completed scenario planning is there existing scenario planning documentation in these various areas that you are responsible for Each of our portfolios is working on a range of possibilities and options and my responsibility is to meet with them on occasion from time to time discuss those and to make sure that preparations are in place those are primarily legislative at the moment the most important thing that we have to do at this particular moment is to make sure that there is no legislative cliff edge there is for example a structure that can continue to pay agricultural subsidy that would be utterly responsible if there wasn't in terms of the departments that deal with business they are also in active discussion with business about things they can do to help just as the health side is and all the rest of it and over a period of time they will refine those and be in a position to provide as much help as they can and be in a position of Scottish enterprise but we have to say that that is an uncertain process because we don't know many of the things we don't know for example at the moment we've seen a third of the papers from the UK Government so we don't know what their proposals are on all those particular areas so we continue to do everything we can do and we will go on doing so I accept that your work is on going that I suppose what we are trying to assess here is what you intend to release into the public domain to allow others to prepare or to at least understand what the impacts may be so this work is on going within presumably every government department what are your intentions for publication of your scenario plan it is not our intention to publish anything in addition to the notices that the UK Government has unless we believe those are required so at the present moment we look at the papers as we get them to add to these we could subtract from them and say frankly we don't think any of this will work but we are not going to publish anything unnecessary if there are areas where we need to do it then we'll do it that comes back to distinction between much of what is in the UK Government's papers is about how to deal with the situations as I just said that second step how to mitigate for the impact of no deal what I'm asking you about is of the impact of no deal so accepting that you don't want to replicate their proposals for how we deal with it even just laying out publishing a projection of what that will look like we've published the financial projections we did that in Scotland's place in Europe in 2016 and we updated that in January this year we know the financial projections without doing that but we know it's about much more than just the finances we know it impacts the health service that's why the health service I specifically referred to is in discussion of the issue of stockpiling medicines that's why for example I have raised this week the issue of veterinary medicines which has not yet been tackled and said we need to look at that and make sure that we have a plan in place for this but you know there is a level in which the whole effort of the Government might then become focused on no deal planning to the expense of everything else now as Tavish Scott has indicated it is one option amongst many and you know we have to also have a sense of balance and proportion on this you know the three options that are presently on the table short of staying in the EU and I do not rule that out as an option I don't think any of us should ever rule that out as an option our single market customs union membership a free trade deal of some sort and the no deal scenario and you know we have to be prepared for all of those but we should also spend a considerable time arguing for the one that we believe is least damaging on that and that is single market and customs union membership I agree with that political position as you are aware I think again that there is a distinction here I don't think we are asking you to do more work on a no deal scenario I think what we are asking is about the publication of putting into the public realm the work that the Government is currently already doing so that the public can understand what the potential impact is I don't want to add to the sense of uncertainty and panic in this but I will consider your request that there is enough to do in the legislative side for example there is an unlimited ability to do things we will try and do so I have been prepared to co-operate with the UK Government on this I would have thought that that would have been welcome in terms of supporting the publication of the notices but I am just reluctant to carry on adding to this I think I will come back to this over weeks and months Jamie Greene I mean just to follow on this conversation so if I take you correctly respective portfolios are doing comprehensive planning of all scenarios but you are not willing to publish any of those findings because if I read you correctly what has already been given by the UK Government is perfectly adequate? No you do read me incorrectly and I am not going to be misrepresented if you don't mind Mr Greene on these matters my take on this is very simple the UK Government has made a complete horlicks of this situation we are faced with unprecedented chaos even the former Governor of the even the former what is the Scottish Government and even the former Governor of the Bank of England has pointed to its incompetence we are endeavouring to ensure first of all that we do everything to protect Scotland in these circumstances we are endeavouring to ensure that the information that the UK Government is putting out on this is put out and it is accurate and that is what we are doing we will only add to it when we believe to add to it in addition we are having conversations between departments to make sure that we are as prepared as we can be so how do you know you are prepared if you want to publish any of those findings it is utterly disingenuous to actually argue that the difficulty here is with the Scottish Government the difficulty here is with the UK Government and the mess that is made of this the Scottish Government is working very hard to make sure that there is preparation and there is information to divert that into some sort of attack upon the Scottish Government it will not assist Scottish businesses The cabinet secretary your perfectly entitled your own political views on what you think the UK Government is or isn't doing and that's fine and those are on record what we are asking even collectively notwithstanding our political differences on the committee is how do we know the Scottish Government is prepared for every possibility and why want to give the Scottish public and businesses any sight of those I will make a statement next week on preparedness I have said that we are not prepared for every eventuality because that is impossible nobody knows what a no deal will bring a no deal is an appalling prospect which we are saying should not happen and we are putting enormous effort politically into saying it must not happen and we are also working hard to make sure that to the best of our ability Scotland is protected but the responsibility for getting us here is that of your UK Government and the work that we are doing is trying to protect Scotland against that work of the UK Government Okay, moving on Can I ask a question we're talking about March next year and nobody knows what will happen the day after we leave the EU what is your understanding of the transition period and whether that's likely to proceed because my understanding is that that period would give an interim period to continue these quite complex trade negotiations with the EU and that is what we hope will take place undoubtedly, we hope that there will be a transition period that is what the expectation of the EU is but there has been a upping of the rhetoric on the issue of a no deal from the UK Government in the last few months I think originally designed to freighten the Brexiteers and that has caused this situation a transition period I've argued for from the beginning the UK Government, if you remember, was against it to start with and didn't want a transition period it essentially takes place many of us think that it will have to last longer than the present plan because it will be impossible to put in place the new relationship thereafter Okay, and my final question is around obviously you're saying that the official Scottish Government position is that your preference is for access and customs union with the EU what discussions have the Scottish Government had with the EU on what the terms of that membership may be because it appears that the rhetoric coming from the EU is that you can't have single market access and full customs union without being a full EU member what is your understanding of that? Well, it's not the rhetoric coming from the EU what the EU is saying quite accurately is that you can be a member and have full access to everything and the other option, which I suspect is the more likely option in this area in a transitionary way would be to be a member of the EEA as Norway is, as Iceland is now it's not as good as full membership but it gives you membership of essentially membership of single market you observe the four freedoms and that was always designed as a way in and has actually become a sort of holding pen for those people who are neither in nor out but Scotland's the ambition that the Scottish Government has is to first of all to remain in the EU which of course was the vote of the Scottish people but if we are out is to re-enter and of course in those circumstances the entry would be negotiated I could point you to John Kerr a bigger expert on Europe than you or I who regards it as the easiest accession on record that's what he thinks it will be but of course there will be work to be done on that work which is created by the fact that the UK Government is ignoring and trying to stay so I appreciate that you again have a view on whether the UK should stay in the EU or not but the reality is the UK is leaving the EU but you said there that you're looking at re-entry so what type of re-entry to the EU is that you're looking for well quite clearly we would want to be a full member of the EU that's a simple matter but that's not going to happen so what is it you're looking for? no sorry you cannot say it is not going to happen in my opinion we could stay that is still a possibility the chaos of the UK Government may lead to its collapse there are circumstances in which even if we leave in March then in the transitionary period the single market customs union often is on the table Barnier has said that there's a way to do that and thereafter the process of re-entry that is the best option for Scotland's future that is also what Scotland voted for and we are representatives of the Scottish people it was a UK wide vote I should add that is what the Scottish people voted for Stuart McMillan thank you, good morning first of all Mr Greene doesn't speak for me when he mentions a word collectively earlier on but this Parliament yesterday heard from the UK trade minister on the issue of consultation and dialogue but we heard once again this morning from yourself of the lack of consultation and dialogue from the UK Government to the Scottish Government so in terms of going forward with our will first of all with the trade potential trade agreement how can we trust anything that any UK Government minister actually says bearing in mind the appalling record of dialogue and consultation that's taking place thus far I don't want to personalise this I simply think that the relationship between the two Governments have said this publicly before it's the lowest dab ever and it requires to that trust requires to be rebuilt it can only be rebuilt by having a framework a structure that allows us to build it on the Taoiseach said something very interesting earlier this year when he was talking about trust within the EU he said trust doesn't come simply because you want it to come it comes because there is a legal structure and the framework on which you can build and there is in the JMC process there needs to be a renewal of the structures in a way that's meaningful and they need to have statutory authority and then if we can build on them in that way then there might be an improvement that would require the commitments made to be honoured and the commitments made are not honoured and there may be many reasons of them we now know for example that the staff turnover in Dexu is at 50% there's a huge inexperience in that department and there's also a huge pressure on that department and quite clearly civil servants are also nervous about what their ministers want to share and don't share and that's an issue as well but it could be rebuilt and I do try very hard to keep open constructive channels of engagement and discussion and that's what we should do Thanks for that I mean what you just said there I wasn't planning to get into this area but what you just said there was really interesting that a 50% turnover does that then indicate or highlight that the people who have came in it makes the job of the Scottish Government officials harder to actually get the message over and also potentially even explain what devolution actually is never mind the present day situation I'm sure the committee will have read the PACAC report and will have reflected upon it and you know what that indicates is that there is a severe lack of knowledge of devolution within the UK Government, within those who are operating as part of the UK Government that's just the reality PACAC inquiry and I think they have you know summed it up pretty well there is David Cameron said I think after the 2014 referendum that the UK had devolved and forgot and that has happened but they've forgotten what devolution is and how it operates very largely there is no hierarchy of governments in devolution it's really important that people understand that there is a hierarchy of parliaments in devolution but governments deal with different issues and it is that respect for the dealing with different issues that I think is lacking or understanding that is the situation there also needs to be an understanding that devolution was an issue that arose well it's been around for a long time but essentially it was 70s, 80s and 90s there is now a very heavy weight on it from Brexit and devolution will have to change now we presaged this in Scotland's place in Europe in 2016 chapter 4 was headed further devolution and the constitutional consequences of Brexit that chapter is worth looking at again because we pointed out that there were areas now which we expected Brexit would create issues for the constitutional settlement, we need to change three in particular one of which was the key rights and we outlined employment law, equalities, health and safety at work and consumer protection as areas where there needed to be additional devolution another one was the whole issue of the four freedoms and how we reacted to those and we outlined areas of involvement including trade areas and the final was international engagement and we raised the issue of a separate distinct legal personality so that we could take part in international engagement now those issues laid out in 2016 now need discussion and we're not alone in that the Welsh Government is saying the same thing the Welsh Government published a paper last year on the operation of devolution so first of all whatever happens mustn't undermine the current settlement but then we should be saying and I much rather have independence but we should be saying at the present moment we need also along with the Welsh along with the Northern Irish to look at devolution and its evolution rather than stand still one other question I'd like to touch on that's on the issue of intergovernmental relations and you've highlighted some of this stuff further on in your opening comments now it's clear that the intergovernmental relations has been a problem for some time and certainly in the previous session the devolution for the Pills Committee which Tavis Scott and I were members of at the time we published the report in October 2015 on the issue of the IGR we've published the report in October 2015 we've published the report in October 2015 on the issue of the IGR do you see any improvement in the whole intergovernmental relations mechanisms or machinery in any way, shape or form to actually provide some some hope for the future when when the UK if it does leave the European Union? Not at the present moment I think there are ideas on the table I've indicated those ones there are Welsh ideas on the table earlier this year that there would be a review of the relationships and the GMC mechanism and of course we have proposed a review of the sole mechanism and we'll bring forward some ideas on that shortly so there is activity in it but there has to be a commitment to that I see little commitment despite words in the UK Government for those changes and those reviews which is a pity but that's where it is at the moment and we need to bring forward some energy into that Do you believe that the UK Government is actually listening to anyone outside of Whitehall? I think there are individuals who recognise that things have to change it's a very centralised Government I'm not sure that the Prime Minister thinks things have to change but I think there are individuals who realise that things have to change and things have to... it can't go on like this but whether they will prevail or not I don't know, I think there are also individuals who are deeply hostile to devolution and they might assume power at some stage and that would be damaging Thank you The review that you mentioned have you had any indication on what progress might be made? I don't think anything... I'm aware of anything happening yet Is this on the intergovernment review? Yes The process has commenced but as Mr Russell said it's the degree of commitment to it and the pace behind it is not yet established but the process is under way and there is no agreement So what is the process? Is that other meetings? It's with civil servants that the minute to scope out the nature of what will be covered under intergovernmental review obviously the Brexit and the weight of Brexit is an initial feature for discussion and how it's coped under that pressure so that's been the early offensive discussion Have they given you any idea of the timescale for the review? No, that's not clear at this stage Thanks very much Alexander Stewart We had a lot of good discussion already and to some of the questions I want to ask already have been covered but you talk about the chaos and I think that's the word you used the potential chaos that we face in the scenario of a no deal but you also talk about the chaos of a deal that still doesn't give individuals, organisations the confidence to manage the process You've given a very strong picture of what's happening in Scotland Are you aware of what the UK Government are doing south of the border with organisations individuals to ensure that there's risk assessments, the scenarios taking place and have we learnt anything from any of that dialogue if that dialogue has taken place? We don't have any risk assessments shared with us so we haven't seen those things We do hear of meetings taking place we talk to stakeholders who meet us and they also meet the UK Government they quite often come back with a sense of frustration that they don't know any more than when they went and that seems to be the general picture I think that this issue of chaos is pretty generally held now as being what is driving things people would like certainty I would like certainty because I don't enjoy not knowing what's going to happen tomorrow businesses require certainty and even the no deal papers don't give any additional certainty to people so I think that's in a sense I would welcome the announcement this morning on the seasonal workers scheme it is a very small step I think the numbers are too low I think inherently it admits that freedom of movement is important I think that that should be understood and I think that the third issue in here undoubtedly is that there will require to be more because it's not enough and it does stress a sector approach which I think is a wrong approach but that is the first movement there has been I was on a visit to one of the fruit farms in Angus in early May 2017 and then people were saying to me there has to be something soon because we are due to order bushes which massive orders go to Holland we are due to have the next tranche workers arriving so it's been very long delayed now it may presage the publication of the MAC paper which we believe is now with government now that would indicate that the MAC paper this is a migration advisory committee is going to take a sectoral approach we have advised very strongly against that economy approach in Scotland if it is a sectoral approach it will not be helpful in Scotland it will actually weaken the situation but we might then be able to say these are the wrong things but at least we would know what was happening there's also no white paper on migration and that also affects it you've talked about the pilot scheme that's been announced and that is now with us you've then gone on to discuss what you would like to see so those are the scenarios that you have put in place and those are the scenarios that you are prepared to discuss and have dialogue on so that you as I said we've talked about the whole United Kingdom being but in the past you've said maybe that Scotland could lead on some areas of this whole process to give advice and give support I mean is that the case that you would be prepared to do that and put the scenario out there to say that's what should be followed? I think that's a really interesting contribution if I might say so because I think that it uses the word scenario in an accurate way we do a great deal of work and have done a great deal of work but to put it into a box and say these are the scenarios this is actually work that's done to say what we would like to happen and how could it happen so if you're looking about migration we publish comprehensive work on our submission to the Migration Advisory Committee we indicated what would work for Scotland and that is a scenario that is already in the public domain and we believed and still believe that there is a way to approach migration in Scotland which would be productive it is actually freedom of movement because that is very helpful to us but we don't know we know that's going to stop but up until today we've had no idea of any other scheme now to go back to a seasoned agricultural worker scheme which has existed before and is a very bureaucratic response to our own projections and proposals of how it should go and that is a scenario so if we can revisit the issue of scenarios then that's what we are getting slightly closer to and it's helpful that Mr Stewart's taken us there what we are talking about is a range of material which we have published over the year Scotland's place in Europe is a scenario so is the role of development of trade so is people jobs and investment all these things that we have published over the last two years are positive contributions to the scenario exercise and if they are seen in that way then they are positive contributions and the dialogue that you are having or the lack of dialogue that you portray that is taking place between the UK Government and yourselves there seems to be a log jam or there seems to be a trickling of information rather than a meeting of minds and a real connection taking place and a real contribution taking place how have you managed to try and move that forward and try and ensure that your way of thinking is focused more than the UK Government's way of thinking well we do produce material which the UK Government by and large hasn't done so I've got a list here of the publications that we've had I think we've published 16 papers over the last two years with another six in the pipeline so we're not short of material that we put into the public domain that's tended not to be the case it's very open and transparent about what we want to see happening we've stood absolutely four square behind the idea of single market and customs union since we published the first paper and increasingly people are moving in that direction I mean indicated Keir Starmer's response yesterday to the issue of the free trade treaty is in my view another step towards that and I welcomed that, I think that's very important and very helpful so I think our position is well known and our projections are well known and the difficulty in here has been the focus has increasingly come in the last month to six weeks on the no deal scenario and I think that therefore the expectation that the Scottish Government should jump to and provide all the answers to that is a false expectation because it is a scenario that is impossible by definition to completely scope out we've never seen this before but there are things in all the work that we have done that would indicate ways in which we could move forward also facts about what would happen in terms of the finances of that which are very clear and the no deal scenario has recently become much more prevalent but in the reality many people believe that a deal will still be struck whether it's the complete deal that is expected or it is a partial manipulate of progress moving forward and your view on that if there is a deal that is expected but it's not the complete deal that some people expect but during the transition period there will be opportunities for things to then be put together and hardened up and concreted through The problem of that is you could get a high level deal in March which said very little and remember that's exit that's not future relationship so you get a high level deal in March which eventually goes to former European Commission official who describes the UK's negotiating approach as being to say no at the start of each round to refuse everything during the round at the end of the round to suddenly say yes and to treat it as a triumph that you move on to the next stage that's what's happened so far you could do that again we never thought it would get to this stage but you could do that again in March but in those circumstances the real problem with that is that we know now so Mr Scott's skipper in Lerwick won't actually know what's going to happen as he doesn't know now now that's not what we should be encouraging to happen we want some definition and finality to this so a high level outcome a blind Brexit has that difficulty but it also has another difficulty it removes even the small amount of leverage that the UK presently has in negotiation it is outside the EU and in those circumstances trying to get a deal of any sort when you have no leverage is pretty difficult so if that is what happens it happens but it's not going to be good and helpful my own view is that's more likely than a no deal because I think you heard the noises from Germany yesterday I think the prospect of a no deal is not something that anybody really wants sensibly from inside the European Parliament which was certainly what I hear in there is that European Parliament would not accept no deal they would find a a European mechanism whether it is the clock that stops or something like that to ensure that there was some sort of outcome to the process it's up to all Governments to try and do as much as they can to ensure that that doesn't happen and the dialogue and the negotiations and the discussions on ensuring that I've made that clear today in other material but it takes two to tangle the UK Government has to say that's not what we want Can I quickly turn to another subject which is the Scottish Government's trade paper which you brought out on 30 August I was pleased to see in your recommendations that you recommended a statutory intergovernment trade committee because this committee in our first report unanimously recommended intergovernmental trade committee in terms of ensuring that Scotland's voice was heard in future trade negotiations I wondered if you were able to say a little bit more about the paper particularly whether any of your proposals have any realistic chance of being adopted given the evidence that George Hollingbury gave to Parliament yesterday Give George Hollingbury the benefit of the doubt and I don't think he'd read the paper I hope it does stimulate debate and discussion it follows on from the things we said in the original Scotland's place in Europe two years ago it builds upon that and it says what would be a modern set of trade relationships and how would you come to them the last time the UK negotiated trading deals on its own was almost 50 years ago it's a very different world there has been devolution but in addition this Parliament has set an agenda for the type of world we want to see and the type of relationships we want to have so those would require us for example to be very mindful of environmental issues to look at equalities and human rights issues within trading relationships which is the modern way that things are done so we're saying that's necessary we're saying that accountability and scrutiny is necessary of trading deals and that also nobody can decide for us if we're dealing with matters that are our responsibility then we should speak for them we've used the example of the CETA treaty in there where the provinces in Canada were in the room and were able then to commit to delivering that's the positive example of CETA unfortunately the UK Government has taken the negative example of CETA to heart which is the problem they had with the Malonian Parliament in the last stages which was resolved and was resolved in an amicable fashion so we're putting forward some ideas for discussion we'll want the Parliament to discuss this we're looking forward to people coming on board with it or making alternative suggestions Adam Tomkins yesterday in committee I think was eventually at the stage of being pleased that suggestion he'd made about wording was one I'm quite happy to consider you know we're not saying we have a veto on anything the only veto is in devolution we should remember come from the UK Government they're the only body that has a veto in devolution nobody else has a veto but if there should be a requirement to agree and there should be a mechanism that makes agreement meaningful not a sole mechanism which makes agreement pointless and all those are things which we could discuss and I think it's I hope it's a helpful contribution this committee's view will be welcome the party's views will be welcome thank you very much Claire Baker thank you convener the reports suggest that 8% of the withdrawal agreement is agreed and there's still 20% to be discussed including the issue of the Irish border and the backstop does the Scottish Government have any views on how this could be resolved and is there consequences in the backstop being introduced for Scotland that they think are particularly challenging for us or yes I mean you know the way to resolve this is for the whole of the UK to stay in the single market and the customs union that resolves it you know so so far the UK Government said they're not going to accept that so I recognise it's a very difficult issue to resolve and nobody's come up with a solution politics is a process of arguing cases and I argue that case and I'm pleased that the Labour Party accepts at least part of that case and others accept all of that case so I think that is the solution and that's why we put it forward the backstop if it were implemented with a border down the IRC would have implications for Scotland so would the issue of differentiation for one part of the UK but not for another part of the UK those are issues in which we have also made our views known we are absolutely determined to support a peaceful settlement in Northern Ireland not to do anything that jeopardises that at all equally we have to reflect upon the fact that if there was the opportunity for one part of the UK to stay within the single market and customs union it's something we ourselves have proposed for Scotland two years ago and we would want to continue to argue for that because as a difficult situation given the UK Government have said that they're not supportive of us staying within the single market and the customs union which would be the obvious solution that we're facing with Northern Ireland so you do recognise that the backstop will present challenges for Scotland and even though you'd like to say a different scenario if we are in those circumstances could you maybe say a bit more about what the challenges for Scotland will be in terms of trade in particular a border in the IRC will be challenging for the ports in the IRC the Northern Ireland having the ability to compete economically and being a member of the single market and the customs union in Scotland not being in that position would be very challenging those are our issues there would be security issues as well the issue for us would be we don't want to do anything to disturb the situation in Northern Ireland but we don't see why Scotland should be excluded from arrangements as we also voted not to leave the EU as Northern Ireland did so that would be a negation of Scottish democracy as well so there are very serious implications in there and discussion will continue to do so we don't want to stand in the way of the right solution in Northern Ireland particularly as that would be the right solution for Scotland as well two short supplementaries the unrelated the first one is regarding the Parliament itself and obviously the First Minister announced a series of new bills to be introduced and we're still actively working on a dozen or so from last year's programme plus members bills that's at least 25 pieces of legislation what work has the Scottish Government done with the Parliament itself to ensure that the ability of committees and members of this Parliament are able to process much of the secondary legislation that might come through our Parliament over the next two years in addition to the existing pieces of primary legislation that the Government's putting forward we've proposed a protocol to the Parliament that involves the DPRR committee which I think Mr McMillan is aware of of how we handle that material but we cannot disguise the fact that it is a considerable additional burden and it will require I think probably more sitting time for committees and it will require possibly more chamber time that is where we are the number of items we're still under review but next week I'll hope to be able to give people not only a better estimate of that but also a view of what the flow will be I indicated on Tuesday that the cut-off date for the no-deal scenario would be the 25th of January next year so there's a great deal of material that has to go into the system before then that also requires us Mr Stewart's point to co-operate with the UK Government as much as we can we don't like this scenario on these matters I'm sure that we'll be welcome On the issue of co-operation perhaps you could ask Mr Mitchell what your understanding is of the day-to-day relationship that Scottish civil servants have with UK civil servants on issues arising from Brexit and whether you feel those relationships are positive neutral or indifferent As Mr Russell said earlier it's not that there's no contact no day-to-day business being done between civil servants that continues I have to say however the strain of Brexit and just the sheer volume of work that the UK civil service are having to shift is proving a great strain along with the churn the point that Mr Russell made earlier I also have to say as well that I'll call it the tightness of decision making when the UK Government puts officials in a very difficult situation as well and maybe one of the reasons why they cannot be more open with us than they otherwise would be and the other point is the concern around security and information leaking so there are mitigating circumstances why relations would be put under strain but again my experience on this over the last two years is that we are nowhere near the sort of engagement that's necessary that sort of upstream engagement where officials are talking to officials about some of the options that may be being put forward for negotiations sounding us out early on that us being able to give them some idea of how that would react in a safe space cos that's traditionally what's happening that has been largely absent and therefore everything is piled to the 11th hour we are given documents in the sort of time frame and everybody's feeling up under pressure and up against it so I would really I think I would have to say that we are nowhere near the sort of engagement that's necessary to take forward such a complex issues trying to get through this and have inevitably suffered thank you for your openness other depressing note I think we'll have to suspend now to let the minister and Mr Mitchell leave thank you very much for coming to give evidence to us today