 Good morning. A very warm welcome to the 10th meeting of the Constitution, Europe, External Affairs and Culture Committee in 2023. We have one agenda item this morning and one in private, so can I have a decision to take agenda item 3 in private, please? Thank you very much. A second agenda item is to continue to take evidence on an inquiry into how devolution is changing post-EU and how devolution should evolve to respond to the challenges and opportunities of the new constitutional landscape. We've joined this morning by Professor Eileen Macargue, Professor of Public Law, Human Rights at Durham University. Good morning and welcome to committee. Thank you very much for providing your written evidence to the committee as well and I know that you've highlighted a number of ways in which the legal and constitutional framework for devolution could be strengthened. I just wondered if you had any priority areas in the suggestions you've made and what you see as perhaps the biggest challenge going forward. I suppose two priority areas. As other witnesses this committee have identified at strengthening the Sewell Convention is really fundamental because unless there is some protection for the devolved institutions against the unilateral exercise of Westminster sovereignty then there is no guarantees of anything. There is a limit to how strong the constitutional guarantees one can provide within the current constitutional settlement but we need to try and get back to the situation that we were in pre-Brexit where yes parliamentary sovereignty existed still in principle but its operation in practice was constrained so I think that that is really fundamental but the second area of priority and this is something that increasingly concerns me is simply the increased complexity of the devolution framework so it was always complex so we mustn't exaggerate what's happened here. There were always a number of different types of constraints on competence which operated in different ways. They were always difficult to understand for the uninitiated and even for the initiated. As you will all be aware the competence limits in schedule 5 of the Scotland Act for instance are complex and always have been understanding exactly what they mean is not easy but since Brexit that picture has become a lot more complicated particularly because of the new internal market framework also to some extent because of the new external trade framework although that's much more difficult to do anything about but the way in which the new internal market framework interacts with the devolution statutes I think is highly problematic and that would be an area that I think would be worth trying to address and trying to simplify. Thank you for that. In terms of the silk convention a lot of what we've covered is about intergovernmental relations. Do you see the stresses on the silk convention being a fundamental issue or do you think that the personality is involved in the government relations at the moment may have an influence on what happens going forward with regards to silk? Well I mean I have seen it suggested that one way to strengthen the silk convention is just to start respecting it again and of course that is true on one level but that doesn't provide you with any guarantees against a further swing back in future so I think that that is probably not going to reassure anyone enough that things will change but also I think one of the big problems with the fact that the UK Parliament has acted without consent for the first time the UK government has exercised at section 33 reference powers for the first time it's exercised at section 35 veto power for the first time you know it becomes much easier to do it for the second time so once you've established a precedent it becomes much more difficult I think to stop resort to those powers in future so I think again to indicate a reset I think it's not enough just to say well you know we won't use them promise we need to do something more formal to to provide a reassurance that things will change thank you I want to move to questions from the committee and I can invite Mr Cameron first so thank you for that my question was on the back of something convener asked and you went into this a little in your answer which is to get your views on whether you think the problems that we've identified have always been there they've been incubated since devolution but brexit has kind of thrown kind of an intensity into into the system that's my first question if you've got any further observations on on that and my second question was on section 35 which you mentioned in your submission and I think we know as we all realise that that has actually nothing to do with brexit but it's just it's just something that has been come to the fore in the recent months over the gender recognition reform bill the committee heard evidence from professor Jim Gallagher about this two weeks ago and he said when referring to section 35 and I quote it is there because devolved legislative power is writ very wide and he went on to say the test of devolved competence is wide because it involves anything that does not relate to reserve matter therefore there is and I quote a real possibility that devolved legislation would have a material effect on law in relation to reserve matters but still not be reserved so some kind of safety net was inevitable what's your response to that do you agree with him okay I'll take your your questions in order so have these problems always existed have they always been latent in the system I think the answer to that is yes we know that devolution was enacted in the context of the continuing sovereignty of the the Westminster parliament there were various powers written into the settlement it's highly asymmetric so you are subject to limits that the the UK institutions are are not subject to however there was a there was a real ambiguity in the initial in the initial settlement because you had the legal position on the one hand and you had a political narrative on the other hand which was well the school convention was very very important yes sovereignty exists but it won't be exercised except with consent normally whatever normally means we have these powers but they are nuclear options we really don't want to you know we don't want to have to use them if we if we can absolutely avoid it so you had this dual narrative now devolution also takes place in the context of range of other constitutional reforms introduced by the the new Labour government which also put parliamentary sovereignty under pressure so you see in the period particularly from around about 2000 onwards you see the idea of sovereignty really coming under pressure does sovereignty really continue to exist in its its current form will it eventually have to give way to this new constitutional reality you know in various different ways so you have the idea of constitutional statutes scotland act is a constitutional statute can't be impliedly repealed for instance various other things so sovereignty is under pressure not just from but including from devolution so you've got a very kind of ambiguous situation you might call it constructive ambiguity a deliberate abeyance in the constitution a deliberate constitutional silence over what exactly this new development this constitutional development means now what we saw in brexit is really just a kind of sweeping aside of all that ambiguity and a reassertion of parliamentary sovereignty but not just in its traditional form actually one of the very interesting things in the courts is the way in which sovereignty has been extended during the past the past few years so we've really had a kind of reversion to a traditional understanding of the constitution with bells on you know and that places the devolved institutions in in a very precarious position so i think brexit has been an important has been an important change to answer that question so section 35 you said that it's use in relation to grand gender recognition reform bill was nothing to do with brexit well well yes and no okay so no of course not directly the gender recognition reform bill is nothing directly to do with brexit but but one of the things i identified in my submission was the indirect effects of brexit so one of the indirect effects of brexit has been a resurgence of what some people call muscular unionism or assertive unionism and i think we have to see the use of the section 35 order very much in that context i mean it's very difficult to believe it's impossible to believe that there was no situation no legislation passed by hollywood or any of the other devolved parliaments in the preceding two decades that didn't have a knock-on effect on on reserved law but we know that that those kind of knock-on effects were dealt with in different ways or dealt with through section 104 orders for instance in some cases dealt with through UK primary legislation so that gets on to the your final question is section 35 an inevitable safety net well one thing that's worth bearing in mind is it's not the same under the three devolution statutes right the it operates completely differently in relation to the northern ireland assembly there is a it's not the presiding officer in that case who refers a bill for royal assent it's the secretary of state and there's a different set of restrictions on when the secretary of state can recommend the withholding of consent it's different again under the government of wales act so is it necessary well i think the fact it's not the same tells you might tell you something important but i think there are almost always other things that can be done or should be done to avoid the necessity for the use of a section 35 veto power and what i worry about and you know i think that i think the gender recognition reform bill falls into this category what i worry about is that it can be used simply for policy reasons right because often there will be these kind of knock-on consequences and choice not to deal with those knock-on consequences in some other way but to veto i think in this context has to be seen in the light of that policy difference that's there in relation to gender self-id and i also think i mean it's worth saying that the gender recognition reform bill was a great context for the first use of section 35 because it's such a controversial bill i can't imagine if gender recognition reform had not been controversial within scotland i can't imagine that section 35 would have been used so it's you know that there was a an opportunity i think there for first use of this power and that opportunity was taken and it was taken late in the day i don't think it was on anyone's radar until relatively late in the day and then it becomes a preferred option because you know for most of the time what opponents were talking about was seeking judicial review was challenging the the bill in the courts section 35 really only became it came too late as a possibility relatively late in the process thank you i think dot challenge got a supplementary and i'll bring you back into a note so thank you can be there donald has rightly said that devolved power is is pretty wide and my i suppose my question is about section 35 powers themselves are they so broadly phrased as to be pretty wide as well i don't know if you have any view about how that clause the governor general clause as it was called at the time is phrased and what latitude it gives to ministers in the UK and what latitude it might give to hypothetical ministers who might see themselves in a governor general type role i mean i'm not quite sure what you what you feel about the actual freezing of that that section of the scotland act and whether whether you feel it it's it's general in the way it's phrased well i mean it's not available for use in all circumstances and you know you've probably seen as well as i've done people asking for section 35 to be invoked right left and centre it's it's not available generally against devolved legislation it's only available in in a limited range of circumstances now in relation to the particular part that was used in relation to gender recognition reform bill this is for for devolved legislation which modifies the law as it operates in relation to reserve matters and has adverse effects on the operation of the law now there's there's there's two areas of ambiguity what does it mean to what what kinds of laws are caught by that is not entirely clear and it would be worth clarifying in my view but the other issue is what what standard of review would the courts use if this the use of a section 35 order in either this case or the other two situations which is impact on international obligations or national security if that were challenged what standard of review would a court adopt and that's that's difficult to know because you can see you can see different kinds of considerations in play on the one hand a court might say this is high politics this is relations between between political institutions we should be really wary of intervening here that might be one one approach they take but at the other extreme i might say this is an executive actor using a power to veto or at least required reconsideration of primary legislation passed by a democratically elected legislature and therefore we should scrutinise that decision very carefully now as i say you can see both sets of arguments being being made and both sets of considerations are valid and so what where a court would land on the standard review question is also is also difficult to predict i mean i have to say i i don't agree with you when it comes to your view that section 35 isn't is indirectly to do with brexit i just don't accept that i don't think it is anything to do with brexit at all and also i think you're making a lot of assumptions about the use of section 35 in the gender recognition reform but which i again don't accept can i ask you about something else and that is the scottish government's keeping pace power and as you know the scottish government has a stated policy of keeping pace with EU law aligning with EU law and i just wanted if you had any observations about the effects of that policy in a kind of post-brexit world where the UK government has at this stage very much taken the opposite view so as far as i'm aware the keeping pace power has not has not been used i was quite critical before this before your predecessor committee of the of the keeping pace power when the when the bill was being being considered because there are problems in in conferring those kind of powers on ministers but there are obviously problems about about the opportunities for divergence in the current constitutional landscape the the scottish government and the scottish parliament whether acting through primary legislation or secondary legislation always has to be mindful of the effects of its ability effectively to diverge from UK legislation so it's not about whether it can do so legally yes it can but can it make that policy or that legislation practically effective and in situations where the UK government decides to take a different line for England it is often going to be very difficult for the scottish parliament scottish ministers Welsh parliament and Welsh ministers to effectively maintain a different policy whether that's a policy to keep pace with EU law or to diverge in some other way so i don't think there's anything peculiar or special to the keeping pace power but there is a general problem about the ability to effectively diverge in many situations it won't be in every situation because because a lot will depend on the precise market you're trying to intervene in and the state of trade and you know the balance between local producers and imports and so on but very often it is going to be problematic thank you thank you for the paper you sent us it's really helpful because it went into detail it made you think beyond the headlines and there was a couple of issues i thought were really interesting i'd like to explore about reforming the devolution statutes it's kind of to fall on from donald cambrans questions and it was prompted partly because we had the saxton state parliament constitution committee with us this week and obviously they have a legal constitution but intergovernmental framework a mediation committee horizontal devolution it's interesting you see their framework and looking at your suggestion about a fuller set of principles to guide the interpretation of limits and devolve competence you say there's arguments foreign against but i was very interested in your issues which could potentially add clarity the principles of subsidiarity clarification of the extent of primary legislative competence under reserve powers and then the third point was principles of union be interested you said it could could go the other way but i would just think when we pass legislation you've got a policy memorandum what ministers say on the on the floor of the parliament can be interpreted by judges so was there something about being really clear about what the intent of devolution is and you know to to reinforce the importance of devolution given the experiences we've had post brexit so the approach that the UK courts have adopted at least in relation to scotland and wales it's a little less clear in relation to northern Ireland but in at least in relation to scotland and wales the approach is to treat the devolution statutes in the same way as any other statute so the the the main focus is on the words of the statute understood in their in their context the courts have largely but not entirely consistently ensued the idea that they should read in additional interpretive principles or understandings of what these what these statutes mean now that's an approach which is justified on the basis that it is most predictable and that it preserves the impartiality of the courts when they're dealing with conflicts between Westminster and a devolved legislature that's the that's the main justifications now it's an approach which works well if the devolution statutes are only amended in a consensual manner right if you if the restrictions that are in the devolution statutes have been put in there following a you know a considered process with the agreement of both UK and devolved governments and legislatures that approach is defensible but but once that that consensual development of the devolution statutes breaks down it becomes an approach which inherently favours Westminster and we saw that very very clearly illustrated in the the continuity bill reference if you remember after the bill had been referred to the supreme court but before the supreme court decision was made the Scotland act was amended without the consent of this parliament in a way which rendered a bill which had been largely within competence now became largely outwith competence and because the court all the court was doing was looking at the words of the statutes there was no sort of pushback or defense that the court could offer against that shifting of the goalpost and it was a shifting of the goalpost the other issue in recent years has been the use that the Supreme Court has made of section 287 of the Scotland act as you know that says the power of Westminster to continue to make laws for Scotland is unaffected which we used to think was purely declaratory provision had no significance at all but according to the Supreme Court in the continuity bill reference and then in the UNCRC and European chart of local self-government references that acts as an additional constraint on devolved competence it's very difficult to understand how the court gets to to that position but it seems to be relying on what it says it shouldn't be doing which is the reading in of things that are not there in the in the in the Scotland act so one of the difficulties is so say in the UNCRC case what the court objected to was this parliament trying to impose interpretive of duties on UK legislation in devolved areas now there's no doubt that this parliament can repeal UK legislation into all the areas or amend UK legislation into all the areas so it's kind of difficult to understand why you shouldn't be able to say well we want the courts to read UK legislation differently it's it's an amendment process by a different route in effect but the court wasn't prepared to allow that and seemed to be relying on the reading in of a non-delegation doctrine into the Scotland act doesn't say so explicitly but that seems to be what's going on there so the court is not consistent in this approach which purely relies on the wording of the statute they do have a set of background constitutional principles in mind they also you may remember the axa case it held in that case that the springboard held in that case that at common law the hollywood was subject to certain constitutional constraints rule of law constraints and human rights constraints so there is there is some supplementing going on but it's it's a set of constitutional assumptions or principles or values which are not specifically tailored to devolution so what i'm suggesting is that it may now be necessary to require the courts to pay attention to the specific constitutional context and requirements of effective devolved lawmaking so again if we go back to the UNCRC case for instance that the supreme court was very concerned in that case about maintaining the effectiveness of parliaments the UK parliaments ability to legislate in devolved areas free from any kind of constraints political constraints or whatever imposed by the devolved legislatures but it didn't have any concern apparent concern for the effectiveness of this parliament's lawmaking now in the context of the UNCRC case if you limit the application of the UNCRC just to devolve legislation affecting children you're missing out large parts of the devolved statute book so you're creating a really problematically patchworky approach so that that concern for good devolved lawmaking was absent from the supreme court's decision continuity bills reference similarly the court objected to this parliament trying to impose a consent requirement on UK ministers when making delegated legislation in devolved areas again it saw that in terms of placing limits on the effective exercise of the UK parliaments legislative competence that's not really what it was about it was about ministerial lawmaking ministerial lawmaking is not sovereign it's about the ability of the devolved institutions to try to maintain some control over what happens in the devolved policy space and as you know you made this point in your previous reports the ability of this parliament to have any kind of scrutiny function in relation to UK ministerial powers is entirely dependent on the quality of consent or consultation required with the Scottish ministers so again no concern for good governance at the devolved level so that's what's motivating those recommendations that I made and that I think the courts need to be forced to take account of good governance at the devolved level and not see devolution purely through a kind of traditional Westminster centric constitutional lens. Can I maybe ask a supplementary just before we move on is that okay? I was going to come back on the same issue. So to go back to your recommendation the process of how you would do that would you see legislation being passed by the UK parliament to enact the principles you've identified in the paragraph referred to the principle of subsidiarity, clarification on the extent of plenary legislative competence so you had a principled approach and a set of principles of union to clarify that devolved parliaments would have competence and be clear about that so when courts were considering it it was a piece of legislation that actually framed this and updated the devolution principles so it would be partly about the Scotland act but it would also apply right across the piece it would apply to Wales it would apply to Northern Ireland as well and then when courts were considering it it would be a clear piece of legislation that had been moved by the UK parliament but also supported by all the other devolved parliaments at the same time. That's the thinking. There's no guarantee with an approach like this okay that when you create broad interpretive principles they still have to be interpreted by courts. The courts still have to decide what kind of weight or relevance they're going to give them and they may not interpret them in the way that you anticipate but I don't think that there's any hope of reorienting the approach taken by the the Supreme Court without legislative intervention at least not in the current the way things are at the moment. The Supreme Court as I said earlier has since Brexit reverted very much to a traditional understanding of the Constitution and therefore I think it will only respond to clear statutory directions from from Westminster. Okay thank you I might want to come back later but over to you. Absolutely thank you. I wonder if I could just ask because you mentioned a couple of times about the institution of the parliament importance in this but what we see is the court cases tend to be about government policy issues and you know bills going through here but the commentary has been some commentary particularly from Lord McFall about the nature of us sleepwalking into legislative sort of the control being within the government and the use of secondary legislation has us raised concern about those but is there a wider issue about how the devolved parliament should be taking a role and maybe you know who is the person who should be protecting the the nature of the Scotland act as it stands at the moment and are there any mechanisms available to the parliament through the president officer through committees the parliaments that maybe we haven't used to cheerful advantage in exploring some of these issues until now. So do you mean in terms of preventing the the Scottish government from taking too many powers? Well both in terms of obviously you talked about the nature of some of the decisions that have been taken at government level does the parliament have a role in sort of protecting the devolution settlements if you like or or or a voice or a mechanism for actually influencing what's happening if we move forward to changes does it have to be the governments leading on this at the moment is there any other way we could be doing this? I mean one criticism that's been made of of hollywood certainly I don't know to what extent it applies to the other parliaments is is is that the policing of the devolution settlement was very much a bureaucratic process so done by government lawyers in consultation with parliamentary lawyers in consultation with UK government lawyers and what you get at the end of it is a statement you know this bill is compatible or in one case only from the presiding officer well one government bill that it's not compatible so I mean that there could be a role for this parliament in interrogating those kind of competent statements more fully but those competent statements themselves would have to become fuller and better reasoned but there is a precedent at UK level you might think about an analogy with the joint committee on human rights which scrutinises statements under section 19 of the human rights act that Westminster bills are compatible or not compatible with the convention so the committee actually takes evidence and publishes reports on whether it agrees with with the government's statements so there certainly could be a bigger role for for the parliament the house of laws constitution committee also plays that sort of role and of course this committee does does too but with all these things it's always going to be a capacity issue and I think that's that's a common challenge for this parliament that you're you're stretched I noted that Nicola McEwan in your last session suggested that you should be larger and I would agree with that actually I think there is a case for increasing the the number of MSPs particularly since you know since competencies have expanded necessarily those require more resources to ensure that they are properly exercised thank you thank you can I bring in mr golden please thank you convener in reading your submission you've made a number of recommendations regarding reforms you'd like to see to the internal market act including you know statutory grounds on which market access principles can be displayed you've also suggested there's no reason in principle why devolved primary legislation should be subject to the subsidy control principles when UK primary legislation is not so my question is can the reforms you suggested be done in a way that maintains the internal market act market access principles of mutual recognition and equal access to the same degree they are currently enshrined or by implementing these changes would they be a degree of watering down these principles and in turn could impact the ability of Scottish businesses to trade freely and fairly with the rest of the UK well I mean I think if you increase the opportunity for departure from the market access principles yes necessarily you are watering them down if you want to use that that language but I mean the curiosity about about the inter UK internal market act is it's much much stricter than the EU rules that it replaced I've never seen or heard a justification for why that is the case why suddenly in the post brexit environment does trade need to be protected so much more strongly against other non-market objectives there's always a balance to be struck here and this seems to the bill embodies a policy choice for unrestricted free trade over other types of regulatory objectives except of course it doesn't necessarily because you have an exemption process okay so it is possible for the market access principles to be supplied on an ad hoc basis but that's unpredictable it's a process which is very strongly controlled by by the UK government with limited input from from the devolved administrations so it's not that the UK internal market act prevents divergence or prevents a balance being struck between free market free trade and other objectives it just passes that as a discretion of UK ministers thanks for that and in your submission you also mentioned exemptions and there's previously been one exemption under single use plastics and that process took five months to conclude there's now a more complicated exemption process around the scottish deposit return scheme can you think of any reason why given it is more complicated and therefore might take longer to come to a conclusion why the scottish government waited till five months before the launch date of the scheme to formally ask for an exemption i have no insight into the decision making process around the deposit return scheme the process for formal request of an exemption is of course not a statutory process it's a process which sits within the common frameworks process so i don't know at what point that procedure was formalised or how widely known it is and there's always a problem isn't there of things that are not contained in statutes in terms of accessibility and transparency and intelligibility so maybe those were considerations there may still be some some uncertainty about whether an exemption would be required these rules don't operate the internal market act rules again they don't operate in the same way as the EU rules operated we're in a new complicated uncertain situation and so that level of uncertainty may have been a factor as well but i don't know okay but i think if i could just add on that i mean that there is an interesting point about about this exemption process you say single use plastic yes it took a long time that's one objection to it but it's also really restrictive instead of exempting single use plastic products as a category it lists it exempts a specified list of products and as you know you know people out there are constantly coming up with new inventive uses for single use plastics you're constantly chasing your tail on this constantly having to go through the same process even though the principles at stake might just might well be the same on deposit return allister jack has been reported to saying the threshold for granting an exemption is a very high it's a very high bar is it statue doesn't say so the statue it's entirely permissive so you've got you know UK government a UK government minister deciding that the threshold for grant of an exemption is a high one a different minister might take a completely different view you know in a different context depending on their view of the merits of of of the exemption being sought thanks and just as a follow-up to that again in your submission you mentioned that if the UK government declines to make an exemption around the deposit return it's very like it would be very difficult to challenge that decision I just wondered what processes the Scottish government might use to challenge that decision if any are available so there's a dispute resolution procedure in the common frameworks process which as far as I'm aware hasn't yet been used there's also dispute resolution procedures generally under the into the new into governmental relations machinery again i'm not aware that those have been invoked yet so there's informal political dispute resolution mechanisms as yet untested and then there's judicial there's judicial mechanisms it is possible of course always to seek judicial review of a decision but it's harder it's harder to judicially review the exercise of a power that is so broad in its in its specification it's very you know that the broader a power a discretion is of course the harder it is to challenge that I had to look at the the relevant common framework which is waste and resources I think which is still a draft common framework and that does it does refer to deposit return schemes as one area where divergence might be expected but it's very very vaguely worded and it wouldn't be enough I don't think to find a claim for legitimate expectations for instance which might be a possibility in other contexts so yes it's just good it's difficult to see how you would mount an effective legal challenge to the failure to exercise a discretionary power and as I say the the other non-legal dispute resolution mechanisms are as yet untested thank you that's very helpful to you convener Mr Esgall yeah if I could just stay on that issue of internal market act exemptions I think evidence we've taken in parliament and other committees have suggested that the discussion within the common framework on deposit return scheme has been ongoing for a long period of time but I wonder to what extent you think that that whole process should be codified and made potentially more transparent to all parliaments to see exactly what the nature has been of those discussions or whether you think that that would impact in some way on the nature of the common framework because common framework seems to be led largely by civil servants there is ministerial engagement within that but it's very evidence-based process so do you see like a codification of that exemption process as having an impact on common frameworks so common frameworks as I understand them have not been used in the way that we might have expected them to be used so I think they were envisaged as a sort of a harmonisation process so that that would be the context in which you would decide when it was necessary to have a common set of rules and when divergence was acceptable and then on top of that into that consensual negotiated sort of harmonisation process you had the UK internal market act kind of plonked on top and my impression is that that sort of derailed the common frameworks because it then became unclear what was really the point of the common frameworks and so you know that they are all a lot vaguer and more sort of process oriented rather than substantive than than they might otherwise have been could you make them more formal I mean so one way in which I suggest that they could be made more formal is that if there were an agreement to diverge in a common framework then instead of that being a ground on which an exemption might be granted it could become mandatory right but at that point then decision making in the common framework process becomes much more important and those issues you've raised about transparency and participation and so on become much more important so I think yeah any degree of formalisation would would raise concerns about if you like shadow or parallel lawmaking but that's in the nature of any kind of intergovernmental process I mean that those kind of concerns about accessibility participation transparency accountability those are inherent to intergovernmental negotiations and they are inherently difficult to to address do you feel that with common frameworks that there is potentially a shift towards more executive power and less transparency I'm speaking in general terms about how common frameworks have operated up to now and particularly in areas of areas which were previously European Union competencies where perhaps there might have been more stakeholder engagement and long processes of policy formulation whereas now potentially it's more between governments to to make decisions I mean I'm not sufficiently upon the detail of individual common frameworks to say whether that that's true or not and we're only really beginning to see we're only really beginning to see the practical implications of this whole post Brexit internal market framework play out in relation to particular particular decisions so so it might you know I think maybe too early to tell but I can't really provide any cooler answer on that sorry okay my last question was about an area which we've taken a lot of evidence on that's retained EU law so I don't know if you have any any comments more generally on on that bill but I did want to ask you specifically within your area of expertise around human rights if you felt there were any potential unintended or even intended consequences the result of of the law and the December the 23rd cliffhedge well the general principles of EU law are supplied by the retained EU law bills so those as you probably know in EU law human rights operate on two levels they operated by the charter of fundamental rights which was never part of retained EU law but they also have an influence via the general principles which can be used to interpret retained EU law so that that will go well anything that anything that's retained of retained EU law which will become assimilated law will not be subject to will not include and not be subject to those those general principles so so I suppose there is a a potential issue there although we do of course still have domestic human rights frameworks which will continue to to to apply I mean the more general problem with with the cliff edge is it's just absurdly short I mean it's it's ridiculous to expect that the entire body of of what's not the entire body but the you know everything that's subject to to the act can be reviewed and a sensible decision taken about its retention or amendment or replacement by the end of this year I think that's that's just not going to happen okay what do you think will happen then well if the bill is passed I think it will it will have to be the deadline can be and it will have to be extended but that is not within the control of this Parliament is within the control of UK ministers and they could you know they have the option to extend the deadline across the board or to extend the deadline for particular particular areas of law so you know I think I can't see I can't see a cliff edge at the end of this year I just I just can't see it it would just be ridiculous that you know just because civil servants haven't managed to get through the work bits of the statute book just disappear that's that's ridiculous so I don't think that will happen okay thank you miss mental thank you and thank you professor mchark um that's been really informative and thank you as well for um your uh paper that you submitted as well um i've been listening to what you've said and I was interested I think I hope I'm not misquoting you but you implied that there was a need to amend the devolution statutes in a consensual manner so I'm interested given where we are and we've had some evidence or suggestions that looking at taking back control didn't also means meant fully taking back control to Westminster and that that could have changed the way of thinking with regards to devolution in your report and in your paper you have talked about changes taking place on an ad hoc often rushed in largely non consensual manner so I'm interested to know how given where we are just now how you think we the the four parliaments could move to amending the statutes in a consensual manner big question so I think the brown commission report provides an opportunity here as you'll be aware the brown commission has recommended quite significant reforms to devolution including to the operation of the sole convention which is under consultation at the moment as I understand it I think that the Labour party are they have talked about a taking back control bill which is a nice bit of political theatre by which they mean taking back control largely to the English regions but also to to the devolved the devolved institutions in Scotland, Wales and Northern Ireland that provides an opportunity for the devolved parliaments because as part of their commitment to reinvigorating sole they are committed to doing that in a consensual and agreed manner now if they really mean that then that's an opportunity for this parliament for the senate for the Northern Ireland assembly to say well if you want our consent you know here are our conditions so I think I think there there is that would provide that would provide an opportunity other than that I mean if if Labour don't get into power for the next UK general election it's much harder to see to see an opportunity but something you know there may be other other avenues that's helped and I was going to ask as well but you touched on it about the role of parliaments and the capacity that the devolved parliaments have and you noted what Professor McEwen said last week is there anything you want to expand on with regard to the capacity that we have as a parliament to scrutinise not only legislation that we want to pass that is appropriate for Scotland but also scrutinising changes that Westminster are making that impact on us well your opportunity to do that is through the legislative consent process and looking from the outside that seems to work pretty well in this parliament certainly compared to how it might have operated in the past so committees do take evidence there are plenary debates we get pretty full legislative consent memorandums and sometimes supplementary memorandums if you compare that with what goes on in some of the other parliaments in Northern Ireland assembly there was a committee report a year or so ago in which they complained that the Northern Ireland executive doesn't always ask them for consent and so their procedures really don't work all that effectively the Welsh the Welsh parliament has also complained sometimes about the quality of engagement from the Welsh government so I mean I obviously the quality of that the quality of the engagement you're able to have depends on time and that will depend often on timescales at Westminster of which you have no control there may be opportunities perhaps for more inter-parliamentary working that's something that is often is often raised so we are UK parliament committees are taking evidence or looking at bills there may be opportunities for for joint working there or for for at least for more direct feeding in views but I haven't thought in detail about how those procedures might work okay thank you thank you just to know that I will be attending inter-parliamentary forum tomorrow in Westminster going forward is there any supplementary miss boyack thanks very much convener it was just to continue the discussion about the Sewell convention and you mentioned the brown commission proposing statutory restatement of the convention and also the scottish government proposing statutory reform as well and you also mentioned other statutory changes which could be brought in and the idea behind that you said which I think is really interesting that the application of UK legislation to devolve matters would have to be explicit and failure to seek consent would be evidence that the relevant provisions were not intended to apply in devolved areas so strengthening that principle and putting it on the statute I think that's a really interesting way to go and I think we have had past agreement on the need to update the devolution settlement so I thought that was a very helpful comment about how you could practically strengthen the devolution settlement alongside strengthening the Sewell convention yeah I mean I did wonder when Sewell was put on a statutory footing in the 2016 act you know that that sort of interpretive role was one way in which it might have had some sort of judicial teeth you know obviously there was always going to be issues around about direct enforcement in the first Miller case the Supreme Court said well we're not even going to get involved in interpreting it but it could still have had some sort of interpretive function but I don't think it has the you see in in cases you know this the statute recognition of Sewell and the the referendum lock are sometimes referred to but then they don't play any role in in in the decision making process so that they kind of they're there but they're not doing any constitutional work as it were certainly not in the in the adjudicative sphere so I think I think strengthening the statutory statements of Sewell could work now what the Brown commission has proposed is is just to take out not normally so it becomes an what looks like an absolute rule but of course it wouldn't be an absolute rule because the enforcement would be via the House of Lords revised 2nd chamber veto so the 2nd chamber would in effect be deciding what was normal and what was not normal and when it was justified to depart from the convention or not I don't think that's really good enough I would rather see some more explicit set of exceptions to the to the Sewell convention and whether that's done on a statutory basis or through intergovernmental negotiation that's a question for for discussion but I think some sort of explicit understanding of when override is justified is better because it's not normally thing it's just far too vague and we saw in the brexit process oh brexit's not normal therefore no consent well okay brexit wasn't normal but that you know didn't mean that every single piece of brexit related legislation raised the same sorts of issues or had the same urgency or was being done against the same background of external obligations in some cases yes but not in other cases and just a sort of blanket invocation oh it's not normal is just not it's not good enough you need some sort of clarification of what the principles are and then you know obviously there's still room for discussion about whether or not they apply in any particular case but you've got a clearer understanding of when setting aside consent might might be justifiable or not yeah that's really helpful I think the not normally issues definitely come up in a lot of evidence and I think your idea about a more explicit set of exceptions is interesting and of course that whole intergovernment negotiation very interesting as long as you have a degree of inter-parliamentary or accountability or transparency and that whole issue of stakeholders which we discussed under the retained EU law issue so that's really helpful thanks very much yeah so it's just to come back on that I mean I think one of the one of the weaknesses in the initial set of intergovernmental arrangements right back at the beginning of devolution and devolution guidance notes and so on is there was very very little parliamentary involvement there was some in this parliament there was none in the UK parliament and I don't think you would want to replicate that again you want buy in from all four parliaments but particularly the UK parliament if this is the UK parliament subjecting itself to self-denying ordinances it needs to know about them it needs to acknowledge them it needs to commit to them in an explicit way thank you thank you thank you mr Cameron then mr just just on your comment very interesting comment about sul being a question for you know if if the solution in the brown report takes effect sul being a matter for a second chamber doesn't that just politicise it in a slightly different way but it but it renders it a question of politics and similarly if you were to create conditions where you know sul was applied or not applied doesn't that render render it really ultimately could render it a matter for litigation and the courts so so yes that the the brown commission proposal does ultimately depend on politics to defend the to defend the devolved autonomy and I've I've written about this when the when the report was first published and you that makes the composition of any new second chamber absolutely crucial because if the devolved institutions are or the devolved tenetories are represented in proportion to population share there's very little guarantee now that the assumption is that if you have more devolution in england somehow that will kind of change the general constitutional mindset and they'll be more attentive to these kind of matters but it seems to me there's no there's no guarantees there brown does envisage a role for the courts so they envisage a role for the courts in triggering the house of Lawrence veto so there would have to be a reference to probably the stream court it's not specified to as it were certify that the billing question is one which engages the the second chamber veto power so it does give the does give the courts a role and I can see the I can see the case for that because what we've seen over the past few years not only and you'll be well aware of this not only instances of devolved consent or lack of consent being ignored but also many many more disputes about whether or not devolved consent is required at all now sometimes it seems to be the UK government taking quite a narrow view of devolved consent sometimes it's the devolved legislatures taking a very expansive view when devolved consent is required at the moment there is no way of authoritatively resolving those disputes miller one you know was an attempt at least to get the courts to say whether the EU whether article 50 legislation would engage the Sewell convention and then they just said no we're not going to we're not going to touch it so at the moment you've got no no way of authoritatively resolving those disputes and that means by default the UK government's position prevails so you know you kind of got a double whammy there you've got the UK government can undermine Sewell from two directions one is by confining its scope and the other is by being willing to legislate even within scope where it acknowledges the conventions engaged by being willing to dispense with the requirement of consent I think both of those are problematic I don't see how you can how you can get an authoritative resolution of these problems the scope problems without involving the courts the House of Lords constitution committee has said well Westminster parliamentary committees could perform that role but they are political committees the devolved are not directly represented before those committees they could give evidence but that would be it and the Brown commission proposals as well you know it requires the second chamber to trigger the reference to courts there wouldn't as far as I see be any role for the devolved governments or devolved legislatures to trigger that reference procedure so I think you would want to kind of widen that out a bit because what you're talking here is about reassurance the reassurance that comes from an independent adjudicator and I think at least at that point of scope that requires legal intervention good news for the lawyers then thank you you've kind of touched on on the question I was going to ask but I'm just not sure I understand genuinely not sure I understand how an upper house a house of lords revised or otherwise is going to find itself in a less contentious position given that 90% of its members will not be from Scotland or a good day perhaps 80% I'm not quite sure I understand how their decision as to whether Scotland's consent is required to something is going to be less contentious because the other 80 or 90% include people from English local authorities or regional authorities I just don't understand how that would be a less contentious and difficult political situation I mean I'm not sure that it would be less contentious I think what the brain commission envisages is that the role of this revised second chamber would be very much more a constitutional role and therefore the culture of the house I suppose would be more attuned to protection of constitutional matters we already see that in the in the current house of lords it does tend to be more interested in in constitutional principle issues than the house of commons does but but it's an unelected house if you have an elected house and a weaker house actually because brown proposes removing the house of lords veto or delaying power in general replacing it with a stronger veto power but removing its its routine delaying power it's not obvious to me that that is a recipe for a more constitutionally vigilant second chamber I'm looking for any further questions from the committee just have a final observation we in part of the evidence you talked about regional devolution for England and things but part of the evidence we we heard has been about that we will always have these particular issues as long as the UK legislature is performing a function for the whole of the UK at the same time as it is legislating for England and Wales in certain areas and for England and many more areas could you see this leading to a splitting of the UK function into a legislature for England so that it would be for devolved nations and then an overarching UK or do you think that's very much a longer more unrealistic view and how will devolution whether it's through city-wide or regional basis in England impact on the very problems we're talking about just now when they have at the moment just the UK government so I don't think an English parliament is a realistic prospect and in a sense it's not it's not really the English parliament you have to worry about it's government right so that's that's where the problems stem from it's that it's in Whitehall departments the failure to understand when they're acting with a UK hat or a or an England Wales hat because once it gets into the legislature well it becomes clear what the territorial extent of legislation is usually and you as we saw with evil English for English laws you can introduce procedures that separate out England only legislation from UK or GB White legislation but it's much harder to see how you do that at government level and it's particularly difficult to see how you do that in circumstances where it really matters in other words where you have different English and UK-wide political majorities because well because you'd have to have two different governments so I think it's just very difficult to to solve that problem it does more English regional devolution solve the problem well as you know the model of English regional devolution that is being pursued is is a very very different thing to devolution in Scotland Wales and Northern Ireland it is not legislative devolution there are not separate representative assemblies you've got directly elected mayors but that's a different it's a different thing so we're talking about a local government we're talking about enhanced local government as opposed to the parceling out of central government authority which is what devolution does devolution creates institutions of central government with accompanying legislatures in the devolved nations which English devolution at the moment is simply not attempting to do and I've never seen any concrete proposals for legislative devolution in England so I think while you're while they continue to be different things I don't think English devolution is a solution to the constitutional problems that the the Scottish Welsh and Northern Irish institutions face which is not to say it's not worth doing of course it tends to be pursued for different reasons in England it's about decentralisation rather than rather than a legitimacy problem which is what drove devolution in Scotland for in particular a very final question sorry my colleague miss boy alluded to the visit that we had from the constitution committee from in Saxony earlier this week are there models out there albeit most countries have written constitution which you don't have are there any other examples that we could take some best practice from in terms of dispute resolution and maybe look at at some of the committees that have been set up elsewhere and the mechanisms that are available as well that might help going forward I mean no doubt I mean you can take negative lessons as well as as well as positive lessons each constitutional arrange set of arrangements is unique and whether they are formally federal or not formally federal doesn't necessarily isn't necessarily as important in practice as it might appear in principle so I'm going to leave you with a very general answer I'm sure there are lessons you can take but off the top of my head I can't give you any more details than that sorry okay I think we've exhausted questions from the committee so again professor mccart thank you very much for your both your written submission and your attendance at committee today and we now move into private session thank you thank you