 Felly, byddai'r Cymru Cymru Llywodraeth Cymru yn 2018 i mi ddech chi, ddim ddod i ddweud cyfgweld i gael wybodaeth cyflasgol, yn ddiddorol ar gyfer gwaithau cyflosol a'r ddiddorol ar ddiddorol. Yma yma yma yn y cyflosol diwylliant yma. Felly, mae'n ddiddorol ar gyfer ddiddorol yma, i ddim yn cyflosol, ac mae'n ddiddorol ar gyfer ddiddorol ac yn cyddiwyd. Yma yma yma yma yma yma yma, foeithio ei wneud yn arweinyddio y bydd, a'r byd yn cynharwch i heb bywbhau. Rwy'n fawr, ond mae'n gwneud i'r bydd yn gallu'r bydd, yn gallu'r bydd yn weliar. A'r bydd yn gallu'r bydd yn gallu'r bydd yn llaw wneud i'r bydd yn gynnigolio'r bydd, ac mae bydd yn gyflymdo i'r bydd yn ei bwyllais i gylleniadu i'r cwm Brief 17 yma, a'r bydd nesaf ydw i'r mewn mlyneddau Llywion Nidol dialogue, yn gallu'r bydd yn rwyf. Sech artillery will reach back to the EU. The bill seeks to save the EU charter funding rights and taxes to the Scottish law. As that applies to devolved matters. Following all of that, we have a session this morning with the minister for UK negotiations in Scotland's place in Europe, Michael Russell, and his Scottish Government officials this morning are Alison Coole, Graham Fisher, Duncan Isle's and Luke McBrackney. phasrodd i'w tydd, ond fwrdd iddo meddwl i wahanol gynnwys. Rydyn ni'n dechrau eu hunainu, abydd nhw'n iddi'r cymru. Rydyn ni'n adnodd i'ch ein fuith oesaf y cyfraith? Oficiatad. Rydyn ni'n adnodd i'ch sw NRH. Rydyn ni'n adnodd i'ch welio! OK. Rydyn ni'n adnodd i'u cyfraith. Ond o'r ffyrdd gyfyddiad. Ross. Mae ein gweinwyr cymdeithas yn gweithio am ddechrau ar gyfer eu bydd gynnwyr cymdeithas a'i gweithio ar gyfer eich bydd, ond eich bydd yn cael ei gweithio ar gyfer ei byd y bydd. Rwy'n cael ei ddesmo'r ei ddweud i dyra i gweithio'i実iadau ei hunain i chi feddiolol i obanicau i gyfrydd i ddydig yn Iwgwyr, ac i chi'n ddweud i gweithio i gyfrydd i Iwgwyr i gyfrydd i gweithio i gael i gwaith i gweithio i gweithio i gweithio i gweithio i gweithio ond, ond we have made a clear commitment to withdraw the bill where an agreement found. Can I just explain why that is? Indeed, that commitment will be clearer now because I think the last amendment that was accepted last night during the stage 2 process was one from Liam Kerr, which indicated and we agreed that the whole bill would fall if we decided to move in that direction rather than bits of the bill. That honours the commitment that we have made. The best way in terms of the overall process of withdrawal, and I don't think that there's any good withdrawal and I don't agree with withdrawal and I think Brexit is the wrong thing to happen, but on the technicalities, which we've always said have to be observed because you can't leave the country without law in place and European law is enmeshed with our own lives over the last 50 years. The best way to do it is by a single bill to which legislative consent is given by the devolved administrations, by Wales and Scotland and Northern Ireland, if it were sitting. We've endeavored, and we are endeavouring, to get an agreement on that. The UK Government did not consult on the draft bill before they published it. We had two weeks to talk about it, but nothing compared to what should have happened in terms of how you put together legislation that requires legislative consent. We've been endeavouring to say that, although we don't like the bill, there are lots of things that we don't like, our place in terms of devolved administrations is to say that if we can make it work with you to do the right things, we'll do so. We can't make the bill work because there are bits of it that run against devolution and create a mess. Frankly, in areas such as agriculture, fisheries, some health areas, some legal areas, some environment, there is a mess. However, we could sort that mess in terms of the detail and in terms of the law, not in terms of what we like. The proper place to amend it in terms of those issues would then be the House of Commons and the House of Lords. Now, I don't say that with any pleasure. I think that this Parliament should be able to decide everything, but given the present constitutional settlement, that's the proper place to amend it. Now, the House of Commons chose not to amend it. There were no split views even in the Tory party, but it didn't succeed. You will have read Ken Clark's speech on it from the House of Commons. It is now in the House of Lords, and the House of Lords will be able to take a position on it. The House of Lords may take a different position on it. I don't necessarily look to the House of Lords to save me on many occasions, but we should look to the House of Lords to see if this is ventilated properly. Indeed, I have brief peers on our own position on those things in recent weeks. If they don't do so, I think that that becomes a matter for the wider debate within the country, and those of us who want to see the protection of rights need to find a way to secure it. One way, of course, would be to retain this and also to be part of the single market and the customs union, in other words, to keep the closest possible alignment between ourselves and the EU and not to go down this rabbit hole of assuming that we will get away from everything, and there will be a wonderful world. It won't, it will be a rabbit hole, and we need to recognise that. Do you think that there is any way that we can incorporate principles of human rights in EU law without adopting the charter? I think that the best way forward would be to take the charter into our into Scots law, as we have indicated in this. That is one of the differences in our approach to withdrawal legislation from the UK approach. This is the best way to do it. Interestingly, that also appears to be the Scottish Conservative position after the last two days, because the indication was given, I think, by Mr Tomkins, that he would drop our approach to some things, but he would keep our approach to this issue. There is good reason, he said, to maintain the position of the Charter of Fundamental Rights in Scots law after exit day. I welcome that, and presumably then there will be a unanimous view that that is what should be happening, and should presumably be happening at Westminster, too. Jenny Greene Thank you, convener. Good morning, panel. It's good to see you again, minister. I think we've spent far too much time together these last few days, but none the less it's been a... Both seconds. I just want to press you on a few points based on the evidence session that she had last week, which was extremely helpful. It's probably worth at this point just placing on record my thanks to the clerks and staff of this committee for cobbling together some excellent research notes, especially those from SPICE on the implications of the continuity bill and its relevance to this committee. I think they've been extremely helpful. Thank you to all members for that. Tobias Locke, in his evidence session last week, stated that no non-EU country had ever adopted the Charter or indeed proactively sought to incorporate EU directors, regulations, laws et cetera into their domestic law. Can the minister just clarify why he thinks Scotland should? Well, no country's ever left the EU before, so I suppose that contextualises the issue. I think it's very simple. The reality is that this provides the protections that we have got used to. This underpins the system of human rights that we want to have, and therefore I think even though, and I should point out that Scotland did not vote to leave the EU, so by extension Scotland did not vote to have the charter removed from the protections removed from us, in all those circumstances it is the right thing to do. It is the progressive thing to do, and I'm glad that Professor Tomkins agrees with me. I quote him again, there is good reason to maintain the position of the Charter of Fundamental Rights in Scots law, so presumably he does not. I'm not sure Dr Locke indicated that it shouldn't be done. He simply indicated that nobody else had done it. Well, you know, I think that a bit of innovation does us no harm as a Scottish Parliament. Thank you for that answer. In the circumstance therefore that the charter is incorporated in Scots law, but not in other parts of the United Kingdom, what does the minister think the consequences of having, for example, parallel frameworks around different approaches to human rights might be with regard to liabilities on the state, with regard to different approaches from a policy point of view? Is he 100 per cent clear and confident that, in effect, within the competence of the Scottish Parliament to adopt human rights and equalities elements, is he entirely happy that those are retained, devolved EU matters and not reserved in any way? That's more of a technical question rather than a political one. I'm entirely happy because we're dealing with a devolved competence and these are, we are dealing with putting this into Scottish law in a way that is consistent with the constitutional settlement. So I'm entirely happy and I'm entirely happy that the bill in all its regards fits within competence. This is a discussion that's been going on for the last couple of weeks. No doubt we'll continue for some particular period of time but we're absolutely fine. We can legislate on human rights differently. The question is, in my view and with respect, not what us doing something, which somebody else isn't doing, it is with us holding on to something that is being taken away from other people. That's actually the difference. Now, I'm comfortable, I'd like everybody to be protected by this, I don't really see why people require these protections in other parts of the United Kingdom should have them taken away from them, but if I have the ability to allow these to continue in Scotland, that's what I would want to do. So I think it's quite important just to recognise that. This is not about saying, let's do something differently in Scotland. This is about saying, this works for us. This is what we want to keep and therefore we're going to keep it. On the wider point, I am at the very relaxed end of the spectrum in terms of differences in actions and choices within the various parts of these islands and indeed that is the devolved settlement and it's really important to recognise that. I've been quoted recently as saying, I think one of the problems that we've got into in a negotiation in the United Kingdom is that we're dealing often with ministers in the United Kingdom who, for the best reasons, do not understand devolution and have never operated it and it's necessary for us to remind the United Kingdom government that devolution exists, it is the constitutional settlement, it was voted for by the Scottish people. I may wish to go further, but the reality is that's where we are. It is in that immortal phrase the settled will of the Scottish people, but it's also the settled constitutional will of all parts of these islands and therefore we should recognise that and it should be respected by the United Kingdom government. I have no further questions but it's probably worth adding that the minister said in the previous answer that Scotland did not vote for Brexit. With the great sort of respect, Scotland is not the member state of the European Union, it's the United Kingdom and it's the United Kingdom that voted for Brexit and I think that that should also be respected. No further questions. Alex Cole-Hampton Thank you, convener. Good morning, minister and good morning to the officials. Thank you for coming to see us today. I'd like to start by focusing on section 13, which is obviously exercise my party in its deliberations around stage 1 and stage 2 proceedings in respect of keeping pace and the powers that this Parliament may be about to confer on Scottish ministers in respect of keeping pace with EU legislation after withdrawal. Obviously, I think that we've made some progress on this and I'm grateful to the Government for the concessions that's made so far and I look forward to further discussions on that. But irrespective of the progress that's been made, if we confer power to Scottish ministers for whatever period of time to, by regulation, keep pace with directives from the European Union, as inequalities in human rights committee, we obviously have a duty of care to the scrutiny that those changes have particularly around equalities in human rights. I'm concerned that if we are doing things through ministerial regulation, they won't have things like the statutory requirements for an equalities impact assessment or a child rights impact assessment. Can the minister explore how we square that circle and make sure that such scrutiny can take place, particularly on relevant directives and regulations that the minister might choose to make? I think that we should recognise that the power under section 13 is of limited scope and is designed to do essentially comparatively minor matters. I mean that I'm not by that dissing fish health or invasive species or any of those animal health, but I'm not saying that this is a means by which ministers would seek to take very major issues forward on a regular basis. I also, as you correctly pointed out, accepted substantial changes to this in the stage 2 process, and many of those came from your colleague Tavish Scott, and we will continue in discussion about other items of them. Having been said, section 13 is an important power, and there could be areas that the Scottish Government, in consultation with the committee and stakeholders, would believe that it was useful to have. The minister would require to make a recommendation for the Parliament to be satisfied that this was the right thing to happen by the affirmative procedure, for there to be, and sometimes that could even be by the superaffirmative procedure. I don't believe that that should be of right, but it could be, and in no circumstances it would be wider consultation. This committee would be absolutely entitled and I would encourage it to hold hearings on that matter to look at it, so this is not without scrutiny. However, if we are to recognise, for example, the importance of regulatory alignment in some key areas and in some issues, such as in the Northern Irish border—that is crucial—it is important that there is a power that allows us to give effect to regulatory alignment without having to go through the process of primary legislation on every single occasion, because I think that that would be a difficult thing to do, and in some areas would negate the issue of keeping pace. The argument has been, well, the UK Government didn't want this because it didn't put it in there with draw bill. I think that the situation that we have now is that we need it, it should have been in the withdrawal bill, and we put it in our own. I am grateful to the minister for that answer. In respect of the times that we agree that primary legislation is required, is there a view as to how, considering that we have quite a full diet of legislation in this Parliament already, has any sort of scoping been done as to what level of legislation, what increased level of legislation would be brought forward and how that would stand up to scrutiny? We have estimated, in terms of secondary legislation, 300-plus items of secondary legislation, similarly for this process. That is a lot for this Parliament. That is a year's worth for this Parliament, at least. It could be more. It is difficult to tell because we do not know from the UK Government precisely what they are going to propose. We do believe that some of these things should be done jointly with the UK Government. In secondary legislation, estimates exist, work is done and continues to be done. It is a complex task. It is not just about bringing the law back in. It is about correcting deficiencies, too, and that is a serious, serious business. In terms of primary legislation, no, but we do know, for example, that the UK Government intends to bring forward an agriculture bill, a fisheries bill, a trade bill—in fact, the first part of the trade bill, anyway, is in the House of Commons. We can see things coming. That is then complicated, but I am sorry to complicate it even further. That is complicated by where we are with the negotiations with the UK Government because, if we were and we have indicated our willingness to establish frameworks, for example, covering issues in agriculture, that is one of the areas that is in this list of 24 or 25, depending on how you define it. In those areas, if there was a framework and there was legislation, there would be a process of agreeing that and of developing the legislation in a way that suited Scotland and matched Scottish circumstances. I think that we are in for a heavy programme of secondary legislation. If we could resolve the present dispute with the UK, a heavy process of legislative consent and if the frameworks are such that we also require Scottish legislation, a fairly heavy programme there, too. I think that we have quite a bit of legislating ahead of us. You and I agree that it would be better to spend our time on things other than Brexit. This is a massive distraction. This is a black hole that is sucking resources and energy and initiative into it, but we are regrettably where we are, and therefore we will have to look at that programme very seriously. I just hope that we are not going to have 11 hours of stage 2 over 24 hours, but what else am I doing? Thank you, minister. I might come back in later. Alex, Mary Fee. Thank you, convener. Good morning, panel. I wanted to raise with you minister the same issues that I raised last week with Tobias Locke. It is in relation to employment rights, because much of the employment protection that we have in this country comes from Europe. I am concerned that there could potentially be some slippage in rights for workers. I wonder if you could comment on that and how the legislation that is before us, how you will protect workers' rights post-Brexit. I do not want to be unkind to ministers of the United Kingdom Government. I am sure that I will be ruled out of order where I have to go too far in this. I do not necessarily accept their assurances on those matters. I think that there is a deregulation imperative from some of these ministers and that they want to see a situation in which workers' rights, human rights, rights of all types are diminished. Before Mr Greene or Ms Weld's intervenes, I accept that that is not what they are saying and therefore I could be accused of being unfair about this matter, but I do not necessarily trust assurances that we have. The question then becomes, how can we do something about it? This bill in the charter helps us along that way, and the charter is a wider way of doing that because of what it includes, for example, the Human Rights Act and the European Convention. I am not dissing the European Convention, but the charter is a very useful tool and more useful in that regard. Of course, it ranges more widely. We have been having debates about environmental law recently, and there are environmental guarantees within that. Sometimes that is widely as you want, but it is pretty widely. We have got all of that, and the European pillar of social rights stands there in front of us as something of huge importance to us. Therefore, we will have to be clever and fleet of foot on this. I suppose that you could look at this—again, I do not want to be overcomplete, but I suppose that you could look at this as a series of steps. The first step would have been—and should have been—to say to the United Kingdom Government to say, we are keeping this. We are keeping the good things. Even if you are seduced by this business of pot of gold at the end of the trading rainbow and all the rest of it, even if it is seduced by that, then it is not true. Even if you are, you could have been sensible about it, so we are going to stay in the single market and we are going to do this. That did not happen. The next thing is, is there a way for it to happen at Westminster and there is still a route open? I think that anybody who saw anything of the House of Lords debates over the last couple of days—and I have to say that I am sad enough to have glanced at them as well as having been and went things here—I did think that there was some very interesting reactions in the House of Lords saying, hang on a minute, we are not going to be told that the referendum was a bail and end-all. There are other issues applying there, and that is a possibility. There is this bill. This bill is there for a purpose. It has to be able to be worked. It is a workable bill, and in those circumstances, if there is no agreement with the UK, then this bill will do some of those things, not all of those things, but some of those things. Remember, some of those things are reserved. If we have got this bill, we have not got this bill, if we have not got the United Kingdom Government on the side, then we are in the process, the old, tiring, necessary process of campaigning and arguing and making sure that we are standing up for the things that we believe to be right and trying to make sure that they are there. The third sector has a big role to play in this. I was very pleased to see the agreement, the Edinburgh agreement that they came to, the Edinburgh declaration that they came to, in terms of rights. I think that the convener was present when that was signed. I think that that indicates the strengths of the third sector and other bodies to saying, no, we are not going to have this happening, and we will have to do that. We will have to assert that. That perhaps reminds us that progress, social progress, progress in rights is not a straight line. We have lived our lives in the view that everything is just going to get better and people are enlightened. That turns out not to be true, so we will have to go back to that. I cannot give you much more hope than that, but on the other hand, I know and myself and many people on this table have spent a lot of time campaigning and a lot of arguing, and we just have to go on doing it and saying that it has to happen. In answer to my question last week, Dr Locke said that if a change was made by an act of the Westminster Parliament, there would be very little that we could do in Scotland. If my memory serves me right, the example that he used was that if the Westminster Government decided that everyone was only entitled to two weeks holiday, there was very little that we could actually do to change that. That is a massive concern. There is a potential for slippage in rights that have been very hard fought for and won. One of the issues in Brexit is to make it real to people. Now, one of the issues in Brexit is these things that we thought were ours as of right. They had come to us. We did not realise how fortunate we were. They come because people had campaigned for them and argued for them. We could take the same view of suffrage and women's role in suffrage. People campaigned and worked for them. They are there. Now, they are at risk. That might make us value them more, but we have to be aware that we need to find the democratic structures to continue them to be so. My view is that I want to continue this consensus, but my view is that this Parliament should be making all those decisions. If the Parliament was making all those decisions, my view is that a political consensus in Scotland would ensure that those things happened and quite a lot of other things happened too. If you do not believe that and you believe that the kingdom is the right unit for this to happen, then, although I disagree with that, I would now look for people to say, well, this is how it is going to work. The other question that I asked Dr Locke about last Thursday was about Frankovitch. Frankovitch to me, although it is something that may not be used by very many people, it is still, in its essence, a right that an employee would have. The continuity bill makes no provision for that after Brexit. I know that Tavish Scott MSP lodged an amendment, which I supported, and that amendment has fallen. I would be grateful if you could, perhaps, minister, give me some explanation as to what you are thinking to not include Frankovitch. We do include Frankovitch. We do include a better protection for Frankovitch than the United Kingdom bill, I have to say. What we do in those circumstances is that the right of action does not terminate on exit day because the action has not been raised. The right continues. The action has not been settled, but you cannot give that guarantee—I see no way you can give that guarantee—if you are not a member of the EU. Regrettably, I do not think that it is possible to do that if you are not a member of the EU beyond the right that we are granting. Frankovitch is actually on the face of the bill, so far from not doing it, we are doing it. We say that there is no right in Scott's law on and after exit day to damages in accordance with the rule of Frankovitch. That is 8.1. Subject to any transitional transducer saving provision made by regulation under section 32. Subsection 1 does not apply in relation to any right of action accruing before exit day. If you have the right to do that before exit day, if the thing about which you are complaining is before exit day, you have a continuing right. The real difficulty is to say that if the thing about which you are complaining is after exit day, you are relying on Frankovitch to do something that is subject to the European Court of Justice, which we will not be. We have a huge difficulty about how that operates. As you know, Frankovitch is partly an act of shaming. I would be ashamed enough not to be in the EU, but there is no act of shaming that could take place there. You would have a very limited action, and it would be very difficult to enforce. I think that the courts would be uncomfortable about it, too. It is not that we are doing nothing. We had this full discussion in the committee, and your name was attached to Tavish Scott's amendment. That was a quite good thing to do, because Tavish Scott must have got more amendments through than most people. It is probably a tip for the future to attach your name to Tavish Scott. On this occasion, he did not get it, because it is impossible to see how you would operate it. It is not that I am not sympathetic. I just don't think that it can be done. Because Frankovitch is linked to EU statute? It is linked to EU statute, and you can take that statute in. Although the actual quantum is decided by a local court or a national court, the whole regulation is set by the European Court of Justice, and you are taking that whole element out. Also, it is making a non-EU country responsible for rights that accrue if you are in an EU country. You can do it. That would apply right up to the last moment of exit. That is not whether the UK Government are, but it cannot apply regrettably after you are not there. I want to pick up a couple of points with you. It is something that I spoke about in the debate the other day. I have some grave concerns about some of our primary legislation in our domestic law, which is EU directive-derived. EU directives have been accepted and ratified by United Kingdom, but because we have a separate legal system in Scotland, we have brought forward our own primary legislation and a number of matters. I will give you two examples. The trafficking of human beings and child sexual exploitation and pornography, which are two things that were EU-derived directives. In primary law in Scotland, those laws go much further than they do in the primary law in England. I have a real concern on things like that. How on earth do we protect the fact that we have made a more extensive legal position on that with more protections in place for the people who would be victims than the English law? If those powers are re-reserved or retained, how then do we ensure that we continue with that more progressive and advanced legislation? I will look in the second, because there are some technical issues in here. On the political issue that you are raising, it is a considerable worry. The way in which we can do that is because we have a devolved settlement with the legislature here that has the right to legislate in certain areas and does so. We can make those choices. Another example would be minimum pricing for alcohol. We can make the decision because of the circumstances in which it is. It recognises the principle of subsidiarity in actual fact. If the United Kingdom Government is intent on hemming in the devolved administrations, which is what appears to be happening, and if those powers, which the UK Government wishes to essentially re-reserve, are not sunsetted in any way, then in those areas—and, of course, there is no limit to those areas—the 24 is there. In the description of Adam Tomkins, he says that it is one of the buckets out there that has 24 items in it. As I pointed out to him yesterday, the buckets have no lids. You can keep throwing things into them, and that is an issue for the United Kingdom Government. You could find in areas that are not on that list suddenly that they have shown an interest in and decided that they want to do something about it. Respect in the devolved settlement is a political issue. That allows us to do the things that we need to do. I know that Luke will want to say something more. Just to confirm for the committee that section 2 of the continuity bell preserves all devolved EU-derived domestic legislation, which would include the sorts of statutes that the conveners referred to. It explicitly preserves them in relation to matters where the method of implementation in Scotland has gone further than what was required by EU law. That is under section 2. As well as the continuing ability to make a different choice for Scotland that the minister refers to, section 13 of the bell, the keeping pace power, would allow post-withdrawal developments to be reflected in the domestic law that the convener referred to. One of the worries that I have is that there would be an attempt to harmonise some of those things. Harmonisation might be regression in our case, and that is where I worry when it comes to rights-based primary legislation that we have. The getting a recognition from ministers and UK ministers of the existing situation and the importance of diversity and difference in it. Devolution is based upon the fact that there are some things that need to be done differently. As I say, some of us believe that we should go much further, but the present system is based upon that diversity. It also needs to be described accurately. There is no such thing as a single market in very commas in the UK. There is a uniform market, but it is not a unitary market. There is divergence and diversity, and that is what the settlement is. In legislative terms, that is what the settlement is, and that needs to be recognised. In section 4 of the continuity bill at Murrow's, section 4 of the EU withdrawal bill ensures that devolved rights are available within Scots law. It is called the equal treatment framework, and it is equal treatment legislation. Can you give us an insight into how you think that that will work? I know that both of them mirror each other, but they do slightly different things. When I am looking for insights, I always turn to my colleagues here. Equal treatment legislation, as the committee is aware, applies at a UK level. It is brought into the law of Scotland essentially through reserved action. It is quite a complex area, which is why I am hesitating. To some extent, we are straying into areas where I would prefer to have the benefit of input from colleagues, legal colleagues, with specialist knowledge of this particular subject matter. That issue of equal treatment is already part of the existing law of Scotland. It is something that we share in large measure with the law that applies elsewhere in the UK. I do not think that there is any suggestion that that will be undermined or eroded. There is reference to equal treatment as part of the list of common framework topics that remain open for discussion. We can write further to the committee on the detail of this, so that would be helpful. I think that that would be helpful, because we know where we stand as far as the Equal Human Rights Commission in its place. That is the reserved body, but with a UK-wide remit. How that interplays with the Scottish Human Rights Commission and the responsibility that it has to devolve matters around equal treatment. It is a matter that the committee is very interested in, because it brings into sharp focus the outcomes for people that we are interested in around some of the protected characteristics, whether it is your race, your religion, your sexuality or whatever. Those are the things that really interest us, and how will people be protected and the concern that the regression would kick in there. We would lose some of those rights as well. You are asking about section 43B of the bill. I have not got that much detail. No, I thought that was where your question came in. I take yours with me everywhere, just to make sure. You mentioned that section 4 of the bill corresponds to clause 4 of the EU withdrawal bill. That is the case for sections 2, 3 and 4, to a very large extent. That is a deliberate choice by the Scottish Government, which recognises that those sections that are about their, effectively, the continuity sections, take all of the existing law rights as implemented and attempt to transfer them precisely into domestic law post exit day. The Scottish Government, and I think that that is set out in the policy memorandum, considers that there is value in being at a high level of complementarity between the way that reserved law is carried forward in exit day and devolved law. For that reason, we have chosen to very closely mirror sections, clauses 2, 3 and 4 of the EU withdrawal bill in sections 2, 3 and 4 of the continuity bill. I suppose that just to explain what might be the technical point that you have raised, although I think that you have asked quite a detailed question about section 4, which says that it saves all of the devolved rights, powers and liabilities, and then it says that that does not apply so far as they form part of Scott's law by virtue of section 3 or arise under an EU directive. That is simply an exception to reflect the fact that those things are saved under sections 2 and 3 of the bill, so it is not trying to exclude them, it is just reflecting the fact that they are all saved elsewhere in the bill. That would include, I think, the directive that you mentioned so far as it relates to devolved matters. OK. Any other information that you can provide us with would be incredibly helpful, and we would appreciate that. I would like to pick up on the convener's question in respect of the powers conferred on ministers both by section 11, 12 and 13 in respect of deficiencies in our international treaty obligations and, indeed, as we discussed earlier, in keeping pace. I want to explore that in respect of how that pertains to the Equalities Act. It is clear that the limits of those powers will be that they cannot modify either the 2006 equality act or the 2010 equality act. However, each of the sections suggests that it would not prevent the removal of a protection or the making of a modification if alternative provision is made in the regulations that are broadly equivalent to the protection being removed or being modified. I would just like to seek clarity really as to whether the minister regards the regulations that are making powers can modify or, in any way, equalities legislation as it stands. The minister believes that Luke has answered. Well, the word broadly has been removed from those last night during stage 2, so you can take your pen to that. Those sections are effectively technical measures, which just rely on the fact that we do not want to pre-judge the precise form that any drafting of any amendment required to address deficiencies might take. It may involve moving around words in legislation or replacing a scheme with a scheme that works in a slightly different way. However, what they make clear, and what they make especially clear now that the word broadly has been removed, is that whatever the modified or replacement provision is, it must contain a protection that is equivalent to the protection that is being modified or moved. It is important to recognise that this bill does not and cannot innovate in policy. What it does is that it brings things in, it corrects, it deals with deficiencies, and the ministers have power to do that, subject to a very high degree of scrutiny and a whole set of checks and balances that we have added to this and indeed improved again at stage 2. However, this is not about policy change and modification. That is frustrating for people. I know that it is frustrating for me, but that is not what we are doing. Okay. I think that that is fine. Yeah, no, I think that you have covered what I was looking for there. Okay, sorry. Sorry, we were just trying to make sure that we tick all the boxes, minister, and get all the questions in line. There are a couple of other supplementaries, I think, that people want to come in with. Jamie, did you want to come back in? Just to pick up on the minister's last point when he said that this bill does not present any opportunity to innovate. Does he mean that any regulations that he brings in as a result of any additional powers conferred upon him or any other Scottish minister in this bill will only deal with deficiencies, i.e. like-for-like replacements, as opposed to new regulations that derive from policy? I am a bit confused by that. Well, like-for-like is not the phrase that I would use, but I am sure that Luke will explain that carefully. Section 11 of the bill sets out what a deficiency is in subsection 2. That takes the almost identical form to the equivalent powers in clause 7 for UK ministers and schedule 2 for devolved ministers in the EU withdrawal bill, including, importantly, now that subsection 2 of section 11 contains an exclusive exhaustive list of types of deficiency. So deficiencies exist, for example, under section 11, where they make provision for in connection with, to take one example, reciprocal arrangements between the UK and the EU, which no longer exist. That is an exhaustive list of types of deficiencies. The power in section 11, subsection 1, can only be used when ministers consider that there is a failure of devolved retained EU law to operate effectively or any other deficiency, as defined, and that it is necessary to make provision for the purpose of preventing, remedying or mitigating failure or deficiency. So there is quite a textured test to be applied by ministers in satisfying themselves that they have the power. That is backed up by provision in the bill, which would require ministers to set out in an explanatory statement accompanying every regulation both that they are convinced, both that they are satisfied that the test of necessity has been met and that the provisions that they are making do no more than is appropriate to remedy the deficiency that has been identified. I should point out also that the test of necessity exists for us as a result of recommendations from the delegated power committee amongst others. It does not exist in the UK bill, so it is a higher test. Indeed, I pointed out to the delegated powers committee when I gave evidence last week that the test is a very severe test. There are very few pieces of legislation that talk about making provision for preventing, remedying or mitigating the failure or other deficiency. That is a clear and very severe test of how this should be operated. To confirm, for example, that the powers in schedule 2 of the EU withdrawal bill, which would be conferred on devolved administrations under that bill, do not include presently a test of necessity. The only area of subjectivity is in whether the ministers believe that there is a deficiency or not, because that, by default, would be a subjective decision rather than a subject to any test. It would be a decision informed by the description in section 11 subsection 2 of what is a deficiency. The power could not be used in any areas where there was not such a deficiency. As I pointed out last night, I think to an amendment that you raised, the phrase in the opinion of Scottish ministers is exactly the same. Swap Scottish for UK as the opinion of UK ministers. The bills allow the opinion of ministers to guide this subject to a huge degree of scrutiny and subject to a legislative test, which in Scotland is a more severe legislative test than that in the UK bill. That is pretty much hemmed in in the right way in terms of how we do this. If I may just briefly, in a supplementary, why does the minister of the panel believe that, in an urgent case, this should not be subject to the affirmative procedure, which I believe was another point that was moved and voted down last night, which I felt added and even enhanced the scrutiny that the minister has just discussed. Because the committee accepted last night the arguments that I made, that in the case of an urgency, by definition it is an urgency and therefore you have to treat it more quickly and more urgently than you would something else. However, there are very strict safeguards built into the urgent procedure, which we not only have accepted but accepted at being strengthened during the process. Urgence cases have to be treated differently, because they are urgent cases, but they can be treated and will be treated in a way which has very substantial scrutiny and, indeed, the possibility not only of rebuke to the ministers but of nulling or getting rid of the step that ministers are trying to take. I mean this bill has tighter scrutiny than the UK bill, it has more safeguards than the UK bill and, of course, it is about circumstances which are not of our making. These are things that we're being forced into doing because of Brexit, so we're trying to do them as quickly and as effectively as possible, but with a much stronger recognition of the need to make sure that, wherever it is possible, they can be scrutinised in the best way possible. That's what we're trying to do. I agree that the procedure that would apply to an instrument subject to section 31 of the continuity bill would require a vote in Parliament on every single instrument. At present, the bill requires that vote within 28 days, and the minister has committed to looking at that again at stage 3. This is a form of procedure that in the Westminster Parliament, for example, would be called made affirmative procedure. That is, there will be a vote in every case, and that is the signal feature of an affirmative procedure. The only difference is that, in those cases, the regulations can come into force in advance of that vote. That's a necessary incident of the urgency of the situation, which section 31 is contemplating. Thank you, convener. I want to ask a question, and it may be a very obvious question that I'm asking, but I'd be grateful if you could answer it for me anyway. It's dealing with deficiencies arising from UK withdrawal. I'm looking specifically at section 8, and it says that regulations under subsection 1 may not. It's the third point that I want to ask you about creating a relevant criminal offence. We have a separate justice system in Scotland, and I wonder if you could explain what that means. Yes, I just want to do so, and I will sweep up in the circumstances, because there's a political element in this too, but let Luke explain it legally. This is a carryover limitation from the present power in section 2 of the European Communities Act 1972 to implement EU law, which allows criminal offences to be created. In broad terms, where those offences can only result in imprisonment of two years or less, this is necessary, because in very many cases the establishment of a regime under EU law or a set of regulations requires an enforcement mechanism to be attached to it. A very often a regulatory offence is the most appropriate enforcement mechanism. That carries forward, in effect, into the fixing powers, the identical provision that we currently have in our implementation powers for EU law. We require to do this, and we feel that it's the right thing to do to mirror what the existing provisions are. OK, that's helpful. Thank you for that. I think that we've exhausted our questions to you this morning, minister, but just in closing, the information that we hope to get back on equal treatment, our understanding is that equal treatment legislation is included in the list of non-legislative common frameworks that may be required. Can you maybe give us some information on that, as well, when you write back to us on the other aspects? Perhaps it's more appropriate that I do that, because just explain what that list is. There were up until last Thursday three categories of three buckets to quote Professor Tomkins. There was the one that said, we don't require to do anything at all. There was the one that said, we're required to do something, but it's not going to be legislative, and there's one that says, we're going to require legislation. We think, not definitely, but we think. Now, we've been doing what are called deep dives on this between officials in London and in Edinburgh and in Cardiff, and they've been looking at each topic to see where we are with that, and that's why the definitions have been reached. The UK last Thursday, without any notice to us, and indeed without giving ministers the paper, produced a new paper on this, which was more complicated, had more information, but also created a new category. The fourth category is a category of items that they believe are reserved. Now, they've taken some of the items that we'd already agreed into the three categories, taken those out and put them into the fourth category. We don't accept that, but in the instance of transparency, we've not only urged them to publish this, which they did last Friday morning, but yesterday I wrote to all members to explain the differences that we have with that list, and they are the same in broadly the differences that the Welsh have. The category that you are talking about is a category that means that there are either existing arrangements in place or arrangements could be put in place that would not require legislative action. Those should not then be frozen or re-reserved in any way and should continue to function, but that is presently only at the agreement of the UK Government. There is no need for us to consent to that, and that is the very heart of the dispute. That would apply to this power or to any power in that list or to any other power. On that note, I know that you have to get off to another committee minister, and we're very grateful for you and your officials' time this morning. I'm going to suspend committee now to go into private session. We'll have a bit of a break, so quick comfort breaking back in your seats.