 Hwnnaeth d�로ignaf. We'r back on the European Union withdrawal birds. We'll continue our evidence session on that. Can I welcome Professor Steven Teehanay, Professor of constitutional theory at the University of Edinburgh? Professor Teehanay, we've had a couple of sessions about this earlier on, and we'll go through more or less the same questions because you may were have a different take on previous witnesses. I will ask the first one. The bill confers wide powers on UK and devolved ministers to correct retained EU law. Is the broad scope of those powers appropriate and necessary? It is a difficult question. We do need to preface the discussion, as you see, by just outlining how extensive the powers are. The powers set out in clauses 7 to 9 of the bill are extremely extensive. They give powers to ministers to use delegated powers to correct deficiencies in retained EU law, which is a very broad category, but they also contain broad Henry VIII powers, which allow that to be done by the correction of primary legislation. In terms of appropriateness and necessity, the UK Government does justify this in the Delegated Powers Memorandum, which comes with the bill, and they put forward three reasons as to why these powers are necessary. The first one is that the Government estimates that there are more than 12,000 EU regulations and more than 6,000 EU directives in force across the EU. The first reason is that, simply to address this by exit day, the Government requires latitude. Secondly, as a matter of practicality, it is simply not necessary to make all of these changes on the face of the bill. The bill itself could not possibly either remove or transpose all of these. It is going to have to be done after the bill. The third is flexibility. We are in the middle of Brexit negotiations at this precise moment. There is also going to have to be a discussion between the UK Government and the devolved administrations about how those powers that might be devolved are treated. For all of those reasons, the third justification for those powers is flexibility. This is a very plausible argument. I think that the UK Government, as a generality in this situation, can plausibly make this argument. If you are going to have Brexit, one might think that Brexit is a terrible idea, but if Brexit is going to happen, those regulations and directives have to be dealt with. It seems that this is a way to do it. I would also mention two other caveats. There are limitations on the use of the powers, which we can come back to within the act, so they are not unlimited powers. Secondly, they carry sunset clauses, so they can only be used for a certain period of time. I think that they are excessively broad, and as we drill down into some of the detail, we will see that they are excessively broad. In just about any other statutes, they would look astonishing. Given the context here, it is hard to see another way to do this, but the powers could be more tightly constrained than they are. In what way could they be more tightly constrained? One of the real difficulties is the fact that the powers are themselves contingent upon the most significant provision in the bill. The most significant provision in the bill is the bill that retains EU law. The term itself is very broad and capacious. What is meant by retained EU law, which is set out in the early clauses of the bill, is very broad. We do not have to concern ourselves with a lot of the ambiguities in that term, but what I am alluding to is the fact that the regulation powers relate to a term, so very broad powers relate to a term that is itself unclear. When a term is itself unclear, that invites the powers to be used in a very broad way. That is the first difficulty. Clause 7 itself allows the regulations to be made to prevent, remedy or mitigate any failure of retained EU law to operate effectively or any other deficiency in maintained EU law. Terms like operate effectively or deficiency are pretty broad. If you give a minister a power to correct any deficiency and effectively make it a subjective test for the minister to determine what operating effectively means, what a deficiency means, then you are giving a very broad power. On that basis, I think that they operate very broadly. There could possibly have been more limitations built into the limitations that are there under Clause 7.6 are very narrow. I think that one of the other issues that will come on to presumably will be the scrutiny, to what extent. If you are going to give these very broad powers to what extent are you giving power to Parliament or to Parliaments to really get time to look at how these powers are being used? It looks as though that is not going to be the case. You mentioned ambiguities and we discussed this earlier, some of the vagueness of language. Is that something that you think should be tightened up? My view of the bill might seem a little bit paradoxical. I look at it and at least look at these powers and they are very, very broad and they raise real constitutional concerns. But then when you ask yourself the other question, how would you go about it in a different way? It's actually very, very difficult to come up with a concrete alternative which would be constitutionally better, but which would make this manageable because we are talking about a very short period of time and a massive body of law that is going to have to be dealt with. And not just that, but it's a movable feast. As the UK negotiates with the EU, we don't know what kind of shape proto-agreements are going to be taking as the UK moves towards exit day. The UK, for example, can plan to get rid of a whole swathe of law which might actually become part of a trade deal, might be within the remit of a future trade deal, which it would make more sense to retain, or there might even be commitments to metair EU law. I mean, there's talk now of a fairly lengthy transitional period where it might be that these powers will not be used at all, so it's very difficult to see how the skeleton of the bill could be very different from what it is. As your view of the bill changed? My view of the bill hasn't changed. I think there are ways in which it can be tightened up, but I think it's very difficult to see how fundamentally it could be done in a totally different way. So, when you first looked at it, you thought, whoa. It's not so much my view of the bill's changed. I think one looks at the bill and thinks, this is deeply constitutionally problematic. The government is taking to itself very broad powers to change the law through delegated powers, most often through negative procedure, often Henry VIII power, so to change the law with negative procedure. All of this in any other bill is simply that the problem is not so much this bill, it's the project that the bill is having to serve. The bill is having to serve a massive constitutional change that has to happen very quickly. The bill is deeply problematic, but it's almost an inevitable consequence of the kind of process for which it's about to serve. Okay, thank you. You mentioned the transition deal and was, if the transition deal was to last for two years, would it then be important or crucial that the laws are all transposed into UK legislation before the transition deal or if the transition deal is two years or three years or four years, would that then provide an additional period of time to get those laws in, transposed into UK law? There would be two different ways to do it. If the transition deal came with a subsequent another piece of legislation that, in effect, continued the effect of EU law, that would be one way to do it, to actually go round the provisions of this bill and to treat exit as though it were not, in fact, exit for that period of time. That would presumably be politically problematic for the UK Government. If that's not the case, an exit day is not only formally exit day but also the day in which EU law ceases to apply, then this bill would carry on as it were and all of these laws that would be kept would be retained. What would happen in that case, so if this bill carries on as it were, what I think we would see rather than any new piece of legislation is simply that the delegated powers wouldn't really need to be used very much except simply to block, transfer EU law into UK law as a going concern for the transition period. It would also give parliamentarians and the UK Government much longer to then plan for 21 rather than 19 or whenever the period would end, so the rush that we envisage here could be postponed. As two ways to do it, one would be effectively not to leave for two years, the other would be to leave but it would be almost a symbolic leaving for two years in which the obligation would continue to be bound by EU law. Government ministers would probably come under the sort of constraints the Scottish institutions come under at the moment of not acting incompatibly with EU law, that you would need some kind of provision like that, that UK level. Okay, that's helpful. It's when you mentioned the transition deal that I thought I would pose a question. Also, the bill provides a choice of three legislative routes to exercise the powers of correction, the regulations made by UK ministers, regulations made by the devolved administrations and, thirdly, regulations made jointly by UK and devolved. And what challenges do you see arising from having that choice of legislative routes? Yeah, so the UK has the general plenary unlimited powers and the simplest, you know, or the default will be when they use those powers in reserved areas, that's what we anticipate, but you're talking about when they use them in devolved areas. I think that having those three routes is itself very complicated and it would depend on whether there were attempts to use the first of those routes and why. If the UK were simply unilaterally to use delegated powers in devolved areas, there would be plenty of questions as to why that was the case. When, if it's a devolved matter, there are provisions in the bill for joint delegated power making in devolved areas, so similar to the section 30 procedure that we see under the 1998 act. That's the first category, the third category that you're just talking about. I think those are the two over which there will have to be a working out of when the UK does it alone and when the UK does it with the devolved administrations. I would imagine the default would be to try and do it cooperatively under the principles of the devolution settlement, that would be the case. The middle one is an interesting one. Is this the sort of reference under clause 10 to the powers that will remain with the Scottish Parliament to make delegated legislation in areas where they already have that power? We've drilled down, we've been asking about this. My understanding of that is that the Scottish Parliament will acquire or the Scottish Government will acquire this power to continue to act in areas of EU law which are devolved at the moment and can use the delegated powers in the new act to change EU law that's firmly within devolved competence insofar as to correct deficiencies and so on. I think that's the least problematic. I get around the borders, but the more problematic would be the UK doing laterally stuff in devolved areas and then how that would marry up with the shared delegated power making. Certainly when I posed a question to one of the earlier panels, I think the phrase that they used was, they will leave that the joints go to the other side, they consider that to be a non-starter. So it's interesting to hear your take on this. In practice that might be the case. I mean it could well be that the joint powers, because the bill anticipates that the joint powers will mostly be used for the transfer of powers. To put it crudely, the bill envisages the UK transposing all of the EU law in devolved and reserved areas back almost into the UK box and then by way of joint order making gradually redevolving it as it were. That's what the joint power is typically envisaged for. It's probably the case that when it comes to simply the task of repatriating it as it were, that will be done fairly unilaterally and one would anticipate. Do you think it would be possible for two legislatures to pass valid but conflicting legislation in exercise of the powers in the bill? That's a very interesting question. I mean this has always been a concern of mine from a practical point of view that the Scottish Parliament has competence in EU areas, if so far as they are devolved, that the bill guarantees that that continues. Certainly the bill attempts to get around that potential problem by removing competence in retained EU law and it depends how broadly that is read, but I think that that is a potentially very broad provision that restricts the power of the devolved administrations to modify retained EU law. That would seem to prevent that risk-stroke opportunity, depending on how one approaches it, but that would seem to be the purpose of the bill. I imagine a court, for example, dealing with a competence dispute, would probably read that as the purpose of clause 10, clause 11. Also, there are limitations and restrictions on the correcting powers in schedule 2, which apply to the devolved authorities, but not to the UK ministers under their equivalent powers. Examples include a more limited power to subdelegate than is available to UK ministers and the requirement to obtain consent of UK ministers in certain circumstances. Are those additional limitations and Scottish ministers appropriate and what do you take of the Scottish Government's proposed amendments to remove those restrictions? I think that they are not hugely significant. At a symbolic level, what understands the approach that the UK has taken here? I am aware that this is a very delicate area, and I am not defending the overall approach of this bill, but it is what it is, and they have decided to do it by whole-scale transposition. Having said that, there are ways in the bill that could be more sensitive to devolution. The examples that you have alluded to are examples where it does not seem to me that there would be a pressing need for those sorts of fairly minor limitations. My sense is that this is probably unnecessary. An overall theme that I think is far more important than the technicality of a lot of these provisions is the absolute need for healthy inter-governmental relations. I know that I have talked about this before, and people say that it is a truism. Of course, it is a truism, but it ought not to be forgotten. The reason I say that is because some of those more minor provisions, which raise the hackles of people who feel they are outside the spirit of devolved settlements, are not conducive to reaching inter-governmental agreement on the bigger issues that really matter. I do not think that those minor provisions are particularly necessary. I think that they perhaps show an excessive lack of trust in devolved administrations, which is not healthy. IGR will come up in later questioning. Certainly, an exercise of the powers devolved authorities may not modify retained direct EU legislation or make provisioning consistent with the modification of retained direct EU legislation made by UK ministers. Do you foresee any difficulties with the restrictions? That is the general gist of the bill, which is that we have this body of law, which is retained EU law, which has many sub elements within it. Essentially, that is either EU law that directly affects us, which is still Brussels law. We are going to bring that in. Or it is law that the UK has made into EU law from the EU. All of that is going to be transferred into the status of retained EU law. The approach of the bill is that the devolved administrations cannot amend that until that is sifted. What ought to be devolved is then parceled out. There could have been another way to approach this bill. There could have been other ways to approach this bill. This is one way to do it. I can see it as a problem of principle from a devolved perspective. I get that. I think the invasion that it poses to devolution, because it is just not congruent with the principles we have had for devolution over the nearly two decades. I completely get that. Given that this is the approach that has been taken, that is potentially correctable by the other commitment in the Government's explanatory notes to seek a rapid devolution of the powers. If that is done fully and consistent with existing devolved powers, with a full commitment to really parceling out those powers in line with the nature of devolution settlements, I think that problem of principle could partly be overcome. However, it is the way that the bill stands. Really what is going to matter is how that position and how the powers related to that position play out in practice. That is what is really going to matter. The final question is that there is no equivalent for devolved authorities of the power in clause 17 to make consequential or transitional provision. Would it be usual for a UK bill making provision within the Scottish Parliament's legislative competence to confer such a power on the Scottish ministers? It might well be. One of the difficulties with this bill in terms of the delegated powers themselves is that there is power layered on power, layered on power. The time you get to the consequential provision, you are almost wondering why it is there. The other powers are so extensive. You want to know what on earth can be left here that you have not already provided a power to do. It seems to be a final catch-all power. My view, I think, looking at the nature of clause 10 and its relation to schedule 2 is that the power of the devolved authorities to do anything in relation to retained EU law, that they can currently do to things that are within devolved competence, should be ready as an all-encompassing power that would include transitional and consequential provisions. That would be my take on the exception that is built into clause 10. That might be something to seek clarification of—to seek clarification of the bill team or in the UK Parliament—that is the case. Insofar as the Scottish Parliament still has powers in relation to retained EU law, those powers also encompass consequential and transitional provisions, because there is no reason or principle why they ought not to. That is as far as I can see. Alison Harris. The bill does not provide any mechanism for Scottish Parliament's scrutiny of regulations made by UK ministers alone. Irrespective of whether the regulations are a matter of significance for Scotland or of would have attracted the benefit of the sole convention had the matter been included in primary legislation, does that present a gap in the Parliament's ability to scrutinise the exercise of the bills in this power? Yes. I think that scrutiny is a really crucial issue here. I talked about the general problem of principle, which Mr McMillan was alluding to, that this is block, move to the UK and then redistribute. I have talked about how that can be corrected in a devolution-sensitive way, but one of the really crucial areas of that will be how closely scrutinised those powers are, particularly when, as you say, regulations are being made exclusively at UK level in areas that are going to affect devolved matters. I think that that is something for this Parliament and this committee is thinking carefully about how scrutiny moves forward, but it is a real potential acuda. Okay. Would you have any thoughts on how we could fill that up? Obviously, if these regulations are being tabled, one of the big problems is that so much of this is going to be done by negative procedure. The position you are talking about is constitutionally problematic because it is going to affect this Parliament, but it is being done at Westminster. The practical problem is that it is going to be done very quickly and it is going to be laid before Westminster and passed in a 21-day period unless there is the capacity in the Parliament to look at it quickly. We simply do not know what volume we are going to be talking about here, but it seems to me that we are likely going to be looking at a massive volume. There is the issue of principle, which is itself problematic. Would it be a practical problem in terms of practice where the UK Parliament is going to do this, just thinking about it if they were to use these powers, even in an evolved area, to modify and retain the EU law, presumably to bring matters into the purview of this retained EU law? That would all still, even after those powers have been used, be part of this vast body of law, which would be subject to the discussions about subsequent devolution of those areas of geostics. The problem of principle is a significant one, but it would not be the end of the story. I think that you need to be thinking about the extent to which you have the resources to look at draft legislation in another chamber. I think that it would be entirely constitutionally appropriate for this House to look at that legislation, even if it cannot directly influence it. However, another option is—I do not know how far this can go, but it is clearly into parliamentary co-operation. It seems to me to be a very important theme going forward. Is there a role for formal Scottish Parliament consultation or consent to the exercise of powers by UK ministers? If so, should that role concern the exercise of powers relating to matters within the Parliament's legislative competence or matters that would be within legislative competence, notwithstanding the requirement of compatibility with EU law? Or should it be something wider, such as the exercise of powers in areas of interest and importance to Scotland? How would you define that? You have rightly said, Ms Harris, that Seoul does not apply to delegated legislation. We are now seeing just how big a deficit that is in terms of inter-parliamentary relations. It is not inconceivable that new conventions should develop. Sometimes they are invented by politicians, but Seoul, to some extent, was an invention. However, it is not inconceivable that if the UK Government is serious when it talks and talks a lot in the explanatory notes and in the delegated powers memorandum about the need for consent, about its commitment to consent, without mentioning Seoul in relation to delegated powers. It is not inconceivable that a practice—certainly, the devolved administrations can press, I would absolutely, on the basis of constitutional principle, for practices to develop and practices to become conventions, whereby exactly those kind of avenues that you are talking about. We do not have the right to veto this delegated legislation, we do not have the right to—if we passed a motion here that would not fit within the Seoul convention, we would get all that. However, let us talk about other conventions emerging here. If we are seriously moving forward with Brexit, we are looking for a common approach across the UK, we are trying to build common frameworks, we are trying to do this by consent, then let us think about avenues through which a semi-formal consent should be required by the chamber and the other chambers for the use of delegated powers that are force square in devolved areas. I think that it is a perfectly legitimate constitutional move to try to make. I think that the bill has an appropriate split between matters that require the affirmative procedure and matters in respect to which there is a choice between the affirmative and negative procedures? No. Bluntly, no. I was very surprised. The convener asked if I had changed my mind on the bill, and I think that you got worn down after a while. I still find it constitutionally problematic, there is no doubt about that. One of the areas that is really problematic is the very limited range of matters for which affirmative procedure is expressly required. Given the vast swathes of areas that are going to be—the vast swathes of policy areas involved, one would have expected to see, I think, a far broader use of affirmative procedure. Once again, the other argument is simply the practical one, that when you are talking about these many, many thousands of regulations and directives, to lay for Parliament for active affirmative consideration, each of these, it is very hard to see where the parliamentary time could come from. I know that sounds a bit ambiguous. I do not think that it is inappropriate, but on the other hand, I do not see how else I could do it. The problem comes back to the project, not to the bill, in a sense. Do you think that there is wide discretion given regarding the choice of negative affirmative procedure, and is that discretion appropriate, and how can ministers be held to account in respect of a choice? There is a very open approach, given that so little is reserved to—you definitely must use affirmative, then it is open to ministers. My sense is that if you give ministers a choice to use negative, they are going to use negative. The other one that you have to build in here is that there is a third scrutiny procedure here that made affirmative procedure, which is effectively no scrutiny procedure, which the minister can activate in the case of urgency. That is an innovation in the bill. It is an opportunity for ministers to make delegated legislation in pressing circumstances, which would become law without parliamentary scrutiny of any kind. Safeguards are built into that. It would require to be reassessed within a month and so on, but that in itself is left entirely to the discretion of a minister to determine if the circumstances are sufficiently urgent to require that. The bill vests enormous trust in ministers and enormous trust in the robustness of the UK Parliament in particular, but other parliaments to really follow very closely what they are going to do with this stuff. You have partially answered the question that we are going to ask already, but let me ask it anyway. Is there a role for strength and scrutiny, for example, to enable Parliament to be consulted on regulations laid in draft prior to final regulations being laid, and if so, which areas should be prioritised? To some extent, this depends upon what these powers are going to be used for. The Government has committed, as far as I read it, to not using these powers to make significant policy changes. The idea is that this is just to correct deficiencies, to make legislation fit for purpose in the act of bringing it into UK law. Various parliamentary committees here and at Westminster, before the bill was even laid, put forward various recommendations for heightened scrutiny procedures of the kind that you are talking about, or provisions analogous to schedule civil of the Scotland Act 1998, which has the whole list of the different types of delegated power making procedures that would involve the joint agreement of this House and the UK Parliament. There were various innovations that were put forward recommending this. The Government's response simply is that, for example, the provisions of the Legislative and Regulatory Reform Act 2006, which set out extensive super-affirmative procedures. The Government's response to this is simply that we stop the time, as far as I can read it, that we just have to get this done and this would take too long and it's just not feasible. If it were to be done, I think that a stronger suit to play would be to hold the Government to the promise that big policy is not going to be done with these powers, and to hold to the line that, if you are going to make big policy, you need primary legislation. This is not going to be the only bill. The withdrawal bill is the first of the bill. There will be other bills in each one, as soon as that is my understanding, in a number of discrete areas of EU competence law. I think that time might be better spent targeting primary legislation on big matters of policy when A, full Westminster scrutiny will apply, and B, when so it would apply, as far as this chamber is concerned. You touched briefly on the super-affirmative process. Is that specifically allowed under this bill? It's not provided for. The funny thing about Parliament—I always find it slightly odd that Government is putting forward a bill telling Parliament how to scrutinise legislation. It's always been my view that Parliament should say to the parliamentary drafts, well, thank you very much. It's good of you to tell us how we're going to do our job, but in fact, this is how we're going to scrutinise this. So, to be honest, it's for people here, liaising with people at your parliamentary equivalents at Westminster, and to say, these are the kinds of procedures that we want to see in here. Of course, the Government, if it's drafting a bill, is going to minimise the extent to which that bill is going to be scrutinised, but if there's a feasible argument that super-affirmative should apply in relation to matters that Ms Harris was talking about, such as the Hettland-devolved areas, then that argument should be made through one Parliament talking to another. These are the kind of amendments that we want to see in here. What areas or categories of changes to EU law should this Parliament seek to prioritise in its scrutiny? Obviously, areas that affect devolved matters, or is that just a given? To me, it would see clearly areas of devolved content. So, the crucial stuff that we all know about environment, agriculture, fish and so on, it would seem to me that would be very important. Having said that, it's a trite point and an obvious one that I'm making, but if we are now talking about a UK that's going to be outside of the EU, just as the devolved legislation is coming into force, Scotland Act 2016, the Wales Act 2017, we're in the middle of a lot of different changes. We hadn't really worked out the boundaries of devolved reserved competence coming out of the 2016 act. If you look at, there's so many areas in the Scotland Act 2016 of shared powers between Scotland and the UK in all kinds of areas, from welfare to transport police to other areas of transport. What I'm getting at now is that there are many areas that are reserved matters that are going to be impacting on Scotland in ways that they may not have done five years ago so directly. So, I think this Parliament ought not to just be focusing on very traditional areas of devolved competence, but maybe thinking, well, wait a minute, that's a reserved matter and it's going back to Westminster, but the UK could be using that power in a way that affects welfare or transport or taxation or things that are now at the margins of devolved reserved competence. So, there are going to be new areas to look to in light of the Scotland Act 2016 that's maybe not been fully thought through yet. Okay. Do any members have any other questions? No? Well, Professor Tini, thank you for your time. It's probably felt like a whistle stop tour, but I think we've covered a lot of ground. So, thank you once again. A pleasure. Thank you. Okay. Thank you. Without that, I shall close the meeting.