 Gwlad hyn, mwybod nhw i gynig o'r 32nd meyddiad i ddycheddurai'r ystafell gan Lywodraffon Dispwn. mae'n mynd i gyd, i ddim yn gallu gweld yn gyflawn mwyb briwydd, neud, rhai o'r ddisinydd anghylog o'r busnes yn g another, oedd yn cymryd o'r prif sydd wedi ddod I7, ac mae hi drwy unrhyw gyd ddigon i ddonddo eu lefydd o'r awr alau. Rai o'r ddigon y cymryd o'r I7 o ffraith wc llwyddon? Rhaeg, rhaeg. A fradwch sy'n eu — the aforementioned EU opt out. We have the opportunity to make oral evidence from Scottish Government officials so I welcome Neil Watt, head of EU implementation. Neil Robertson, EU policy manager. Fraser Goff, assistant Scottish parliamentary council. Did I say Fraser Goff? I think I misread that. Catherine Scott, lawyer director at 4Legal services, good morning colleagues. I understand, Neil, what might want to make an opening statement, which might forestall some of our questions. Other Neil? Thank you. All right, Mr Robinson. Yes. Thank you. The measures that we are here today to discuss are included in a batch of 35 that the UK intends to opt into on 1 December. The UK Government announced that it would exercise the opt-out of all justice and home affairs measures in October 2012. That was confirmed in July 2013. In July of this year, the UK Government confirmed to the Scottish Government the final list of 35 measures that would be included in the package of measures the UK would opt back into on 1 December 2014. On 6 November this year, Spain lifted its bloc on the UK rejoining these measures. On 10 November, the Commons debated and voted on the UK Government approach to transposing the remaining 11 of these 35 measures into UK law. Following the affirmative vote in the Lodge yesterday, we understand that the UK will shortly confirm the wish to participate in the agreed package of 35 measures. Assuming the council and the commission agree the necessary procedural arrangements, the opt-in will take place on 1 December. There are two EU framework decisions subject to the UK opt-in for which we are taking a Scotland-only approach to the implementation. Those are the instruments that we are before the committee to discuss today. Despite the uncertainty around the opt-in, we have tried to keep the committee updated on all measures in which we are participating. The first of those SSIs transposes the requirements of the trials in absentia framework decision. This amends the original mutual recognition of financial penalties framework decision. Transposition of the trials in absentia framework decision will help continue to ensure consistency in the way financial penalties operate across the EU and make sure Scotland is not seen as an attractive destination for criminals. Confident their fines won't follow them here. It will do this by clarifying the circumstances in which a financial penalty imposed in a person's absence can be recognised and executed in another member's state. The provision of safeguarding-accused rights ensures that the correct procedures have been followed in a trial in absence before a request to process a financial penalty from another member's state can be accepted. They will also help to ensure that criminals are not able to evade justice by arguing that it was unfair to impose a fine in their absence. Moving on to the second SSI, the mutual recognition of supervision measures framework decision sets up a system for mutual recognition of bail across the EU, colloquially known as the European Supervision Order, the ESO for short. It will help to ensure that a decision on bail, taken by a judicial authority in one member's state, can be recognised and enforced in another. The aim is to allow an accused person to return home to be supervised there until a trial takes place in the member's state where the offence took place. It will also allow persons awaiting trial in their home country to move to another EU country while on bail, for example, to take up work. By implementing that measure, Scots awaiting trial abroad will be able to return home and continue with their normal home life, work or study until their trial actually starts. EU citizens, potentially being held in Scottish prisons, will also be able to return to their home member's state. Looking at it from another angle, persons on bail awaiting trial in their home country will be able to take advantage of work opportunities in another EU country. Implementation of those framework decisions supports the Scottish Government's purpose and vision for a safer and stronger Scotland when individuals' rights are supported. As the Cabinet Secretary for Justice has indicated in recent correspondence with the committee, only once the UK opts back into the third pillar pre-Lisbon-treated justice and home affairs decisions do we have the necessary vies to transpose those framework decisions? We are using power conferred by section 22 of the European Communities Act 1972, which enables ministers to make provision by way of SSIs subject to negative procedure, which will be laid and come into force on 1 December. We appreciate that this will mean that the SSIs are not subject to the usual 28-day scrutiny period by the Parliament. This is an inevitable consequence of the out opt-in process, which means that ministers only obtain the vies to make those two SSIs on the very day that they have to come into force. As he mentioned in correspondence with the committee, the Cabinet Secretary was particularly keen to factor in the views of the Scottish Parliament on the procedural options available for making the necessary transpositions instruments and to enable the fullest possible scrutiny. We thank the committee for their understanding and co-operation and agreeing to scrutinise drafts of the instruments in advance of 1 December. I hope that you find this helpful background and the team are happy to answer any questions that the committee might have. Thank you. Very grateful to you, Mr Robertson. You will appreciate that the policy of this is not actually what we are here to cover, but we certainly need to look at the process and I think that our questions will be started by John Scott, please. Thank you very much, convener. I just ask you to put it in one syllable, if you like, as to why it would not be possible to make these instruments before 1 December. I should answer that. We are using section 22 of the European Communities Act. That only allows us to make instruments to implement EU obligations. Those framework decisions will not become EU obligations until 1 December, so we only get the power on 1 December. It is due to a transitional arrangement that was put in place when the Lisbon Treaty came in five years ago. Pursue that, and I will bring it in afterwards. Because whilst I understand that may be the plain meaning of the words, which I've had a look at, there is a tendency to believe that we can't see a train coming down a track and because it's not in the station, the train doesn't exist and it's not going to arrive on time. Could it not reasonably be argued that because we can see an obligation coming? It's an obligation. Could we not have brought this forward by affirmative procedure on the basis that we could see the obligation would be there? That was an approach that we discussed with Parliament officials. We thought that there might be an argument for bringing forward an affirmative instrument and that was an option that was mentioned in correspondence with the committee. That was something that we were willing to do, but, as it happened, the feedback that we got from ourselves was that the preferred route would be using a negative instrument, so that's what we've done. I don't wish to disagree with you. I signed the letter that said as much, so I'm not trying to reverse that, but I'm just interested to know whether there is a school of legal thought, if you like, that recognises that there is an obligation that hasn't crystallised plainly is going to enable the objection to using the affirmative procedure maybe more in our minds than in legal reality. I think that there is an argument that it would have been possible to do it by laying an affirmative instrument ahead of the ministers obtaining the veries to make the instrument. That's on one reading of the Interpretation and Legislative Reform Act. Equally, I can see the view that would go otherwise, and perhaps it's to be on the safe side that we've done it this way. I just wanted to briefly explore the question of lacuna. In other words, what time, what minute does this all happen at? Does the power become available when the clock passes midnight between 30 November and 1 December? That's the precise time. Is that correct? I'll go first. In terms of what happens next, there was the vote in the Lords last night, so that removes all the UK parliamentary obstacles to us, the UK member state, confirming that we wished it all back into these measures. The commission and the council then obviously need to agree the necessary procedural necessities. I don't yet have all the detail on how that works in practice, but we understand that the commission will confirm that the UK opt-in will take place for these measures at or around midnight on 30 November. That will be confirmed in the official journal. Specifically, there is no gap. That's the essence of my question. As soon as it's published in the journal, which will be presumably synchronised to take place at midnight, it will have effect. At that point, it will be subject to the jurisdiction of the CJ. However, given the capacity of officials and ministers here, there is a momentary gap in our provision. I don't think that that needs to be the case. It doesn't need to be the case, but it's something that we might consider doing in the drafting. Basically, there's a legal principle that if a minister signs an instrument at any time on a certain day, that instrument is then valid for the whole day, so it goes back to a second after midnight, the night before. You could say that there's an element of retrospection there, possibly, and in some cases, if there's any question over that, then a time can be put on an instrument that is valid from the time that the minister signs it on the day. However, I'm not sure that that's actually necessary in this case. I just wanted to see if there were gaps. That's really all I'm interested in in this little question. If I'm allowed, convener, that a sort of non-legal sort of answered that question as well, which is I think there is some understanding at European institution and member state level that these are quite unique circumstances and transitional measures have been discussed. I think that the risks of that happening are very, very small. That would be my sort of non-legal answer to that question. My answer to the question is given that we're talking about criminal areas, and therefore lawyers tend to quite rightly worry about the detail. It's simply one of continuity, and the risk, as it were perceived by us, that somebody might be let out of prison and indeed maybe find procedural ways of getting away from very significant challenges simply because there was at least conceptually some discontinuity in the provisions under which they were held. I think what Catherine Scott has suggested indicates to me that there is a principle of continuity which recognises a signature during a day, takes you back to midnight, and if that continuity is recognised in European law, then we would appear to have explored the issue. Thank you. Mr Robertson, in your opening comments, I mentioned about the date of the 6th of November when Spain lifted their bloc. If that had happened sooner, would that have had an effect on which type of instrument could have been laid here in the Scottish Parliament, whether it's going to be a positive or a negative? No, because we would still have to wait until 1 December when the UK opted back in to have the divivies to make these instruments. As Ms Scott said, we didn't take the affirmative approach, we took the negative approach, so that would have had no impact on the decision. Thank you. Thank you. John, have we… I was just going to ask what mistakes happen everywhere and all over. What would actually be the implications of the commencement date on 1 December? I'm not commencing the instruments on that date. What would the implications be? I mentioned earlier that contingency measures have been discussed in Brussels, and I don't yet know whether an agreement has been reached and I can update the committee once I've picked up the issue with UK colleagues, but I understand that there will be a period of seven days for exactly that reason to make sure that there's no chance of any operational gaps, to make sure that they can agree all the procedural arrangements, and also to cover any other events that might or conceivably could happen. Slightly, and not entirely clear, but have you just explained to me again why the draft order and regulations are considered to be enabled by the powers in section 22 of the 1972 act to implement the EU obligations? Can you just explain that for the record for us perhaps again if you've already done so, but make it clear to me? Section 22 of the European Communities Act 1972 is a general enabling power, enabling ministers in the UK to implement EU obligations, and they can do that through statutory instruments either using an affirmative procedure or a negative procedure. So it's a general catch-all enabling power, and that's quite useful in situations like that with the current instruments. We don't have a domestic enabling power that we can readily use to implement these particular measures because they're kind of new and novel. So that section 22 power is very valuable in this case. Let's see. Just follow that up. Two, yes. Does specifically say that any designated minister or department may make such an order? Are we entirely clear that given the Scottish Parliament and because government wasn't even a twinkle in anyone's eye in 1972? Well, with a few exceptions perhaps. It certainly legally didn't exist. Are we absolutely clear that Scottish ministers are designated ministers in the context, please? Yes. Under what power? Well, it's a designation that's made under that power under section 22. There is a designation made. Presumably the Scotland Act, yes. Okay, thank you. Right, does that take us to Stewart? It does, Stewart. I thought we might have been. Thank you very much indeed. I'm not sure whether we need to cover back six. I'm comfortable that we've done six. In fact, probably seven as well. Right, thank you for your forbearance. I think you've covered off most of what we were interested in. I'm wondering whether I could look there at the regulations specific. Yes, I'm... John, do you want to... No one on you go. Okay, thank you. In which case we've got to the same place. Forgive us for the choreography. These are freestanding regulations rather than the ones that are brought through as an amendment to part 3 of the Criminal Procedure of Scotland Act 1995. I wonder if you could explain why you've taken that particular route to police. I'm happy to feel this one. I suppose there are a few reasons. One is that the 1995 Act, Criminal Procedure Act, is already heavily overlaid in with material and somewhat groaning under the pressure of it. It's not an easily navigable statute anymore. So there's no real attraction and cramming yet more into it. It doesn't help anybody. This is a very standalone procedure as far as the outgoing requests to other states to recognise Scottish bail. It obviously is a tie into our bail arrangements in the 1995 Act. Insofar as it deals with the incoming requests from other states, it concerns people who are not accused of any crime in Scotland. Therefore, to even put it into the criminal procedure bracket is to somewhat miss the point, really. Somebody going into court and dealing with one of those things needs an instrument, and I'd submit it's far easier to have a single document doing that than something shoehorned into the 1995 Act where it doesn't properly belong. Right, thank you. I think that's a very simple explanation. It doesn't have a big one question, which is whether the 1995 Act needs some consolidation. I appreciate that that's out of left field, but your view... You just said that it does rather imply that it might be in a less-than-perfect state. I don't think that it's controversial to say that the 1995 Act could do with, if not consolidation, perhaps splitting out into smaller statutes to criminal justice bill before the Parliament at the moment already does that to some extent. We're taking a lot of the police investigatory powers out of part 2. They will now set free standing in the criminal justice act part 1 as it, hopefully, will be approved by the Parliament. So there is a process of almost deconsolidation. Thank you. That's always helpful just to explore these things when we have the opportunity. Thank you. Stuart. I think this is the last bit. I suppose the issue really is that we've ended up with something which is reasonably satisfactory in so far as the Parliament has been engaged in this issue with sufficient notice, and the Government has provided draft instruments in a non-legal draft sense to enable Parliament to do that, and Parliament has had the opportunity to express its view on the whole subject in advance of the relevant date. Albeit the mechanisms are ones which are that word hated by so many civil servants novel. If, of course, the Spaniards had decided to take their decision for the sake of argument at midday on 30 November for operation the following day, we'd clearly be in a less satisfactory position in terms of Parliament's engagement. I needed great problems with the Government. I suppose the question is how likely is this to happen again in this kind of way, and that may be unanswerable. I could work out probably why. More to the point, are there steps we could take or others could take that would enable us to have certainty to enable us to act and consider and decide in advance of our having powers in this narrow kind of context, not in the generality? The answer to the question at how likely is this to happen again is pretty unlikely. We're dealing with a pretty unlikely set of circumstances. If I'm being honest, it's been a challenge for us to draft these proposals and also to give Parliament the kind of service that we're supposed to give you. I'm sure if you asked my Cabinet Secretary that question he would probably give you an answer about having the right to direct representation in the EU and that would be one way of it playing out differently. I think that it's a pretty unlikely set of circumstances. Going forward, we have the relationships in Scotland to do this work quickly and effectively and we have the relationships with UK and EU counterparts to implement all of Scotland's EU obligations. It is fair for me to say of the Spaniards that they could have done because in Europe there is a history of moving right up to midnight and stopping the clock and this hasn't been but could have been such a circumstance we might be in a less comfortable place. With these measures, all that would have happened is we wouldn't have been participating in them until an agreement was reached. Obviously the discussion around the European arrest warrant is a slightly different one and not one that we're probably able to go into too much detail on but that has been the sort of focus in the UK Parliament. There had been an initial whole member state agreement. Is that what you've just said? A lot of it comes down to how the opt-in was negotiated and the difference between the Schengen and the non-Schengen measures and we've set out the difference in correspondence with the committee so hopefully that will save me from attempting to try to explain it again. The non-Schengen ones are generally the ones that are reserved. Sorry, the Schengen ones are the ones that are reserved so that, again, if you're asking me about the sort of risk to Scotland that clearly these are measures that aren't operational in Scotland at the moment. It's fairly unique this five-year transitional period following the Lisbon treaty. I think that's a bit of a one-off and this first of December date is at the end of the five-year period and everything's happening at once. It's a fairly unique set of circumstances. Yes, thank you. Mike. Thank you, convener. I accept everything you say about this being unique, unusual, rare. And in this circumstance, I think, happily, the committee are contained with the negative procedure. But could circumstances arise, however rarely, in the future where we find ourselves in this position but where the committee would otherwise recommend an affirmative or even super-affirmative procedure because of the nature of some future instrument that comes before the committee? Possible, and that's where maybe that would be the opportunity to explore further this reading of the powers in the Interpretation and Legislative Reform Act, which was mentioned earlier, where we think that there is an argument that an affirmative instrument could be laid formally for scrutiny ahead of ministers gaining the power to make that instrument. If a future circumstance were to arise that was anything like this at all, we would explore that further and see if the Parliament was comfortable with us taking that approach. I think that we also decided that it was important for us to do Scottish regulations for these measures as well to give us a bit more flexibility in how we developed them and how we engaged with the Parliament on them. I think that that has been beneficial for us and I hope that it's been helpful for you as well. If I could just follow up, that's a very interesting thought from Ms Scott that consideration has been given to that. Are there any other possibilities? That's one possibility. Have any other occurred to you? No, I'd have to say no. I think that there is an argument that the affirmative could have been done even in this case and that's something to pursue further for the future. The committee has had some discussion about the possibility of some kind of super-negative procedure. Is that something that could provide a remedy? I'm not sure I understand exactly what's envisaged there. I've been involved in some discussions with the committee about super-affirmative procedure. I'm very happy to defer to Mr Fitzpatrick's office and come back to the committee if that's helpful. Thank you. Can I just observe? I think that whatever a super-negative procedure might be in other people's minds, I think that it's probably pretty close to exactly what we're doing, which is not laying an instrument, but producing an instrument that everybody can have a look at when going through the negative procedure when we get there. We might give that some more detailed thought. Stuart, do you? I just wanted to ask Catherine Scott if the process by which we might lay stronger foundations to the use of the affirmative procedure in advance of the powers being available, is that something that could be done via the Government going to court and seeking a declarator, or what other mechanism would be likely to be the one that might get us to that point? To remove or substantially mitigate the doubt? That's something that could be considered in the consequence of further discussion. I wouldn't necessarily be recommending that myself. Okay, thank you very much. John. Forgive me, convener, but in this respect and on the edges of existing legislation, I mean, if there are, and since we deal with the minutia of legislation and the enablement of it, if there are things that you, having been through this experience, feel that we, the Parliament, could benefit from in terms of our process, you might wish to write to us, to point out to us from your viewpoint, if there is an enhancement in terms of procedure that we could adopt. I mean, I appreciate that, obviously, that would be a matter for the Government Minister, as well as for the Patrick's office, but we too would be interested if this anomalous situation in which we find ourselves, there's a development to be taken from it. Very happy to take that away and feed it back to ministers. I think what is to us is also the value of the kind of non-formal engagement, you know, picking up with Ewan and his team and the lawyers as well, has been hugely valuable. The way we've tried to develop it is with our kind of operational group, but in a way the way we've tried to sort of manage the SG SP bit has been done through that kind of discussion, and yeah, I think there's lots we can learn, maybe not even for the sort of extremely novel cases like this. Right, I think that concludes questions. Can I just thank you for being here? Can I also thank you for precisely what you've just spoken about, because I don't think there's actually any criticism of the process that we have been through over the last few weeks to try and make this? It does seem to have been the best and it's been, I think, very effective on all sides, so we thank you for that. But clearly if there are any thoughts about how we might deal with this or similar kind of things in the future, we'd always be willing to hear that. Process is the things we worry about. It is surprising how often we seem to have found ourselves with unique sets of circumstances, and that's not a criticism again of today, but it does seem to turn up quite often on this desk, so grateful for your advice and contribution this morning. Thank you. I will suspend just briefly while we reorganise. Mae, thank you. Brings us to agenda item 3, which is instrument subject to affirmative procedure. No points have been raised by our legal advisers on the public water supply, Scotland regulations 2014 draft. Is the committee content with this instrument, please? Thank you. We've generated four instruments subject to negative procedure. The public bodies joint working integration joint monitoring committees, Scotland order 2014, SSI 2014, 281. There is a lack of consistency in the terms of articles 3, 5 and 4, 6, notwithstanding that the two provisions are intended to give the same effect. Further to this article 4, 7 has been drafted in a way that does not accurately give effect to the policy intention by going beyond what is required to achieve that intention, while the drafting may not impede delivery of the intended policy intention as it ensures that staff on the body to whom the integration functions are delegated are represented on an integration joint monitoring committee. It makes provision which goes beyond what is required to achieve that intention, providing that additional staff also may be represented. In light of those issues, does the committee therefore agree to draw the instruments to the intention of the Parliament on the general reporting ground? Public bodies joint working integration joint board, Scotland order 2014, SSI 2014, 285. A few points have been raised by our legal advisers in relation to this instrument. Firstly, article 3, 1d and 5, 2d provide that when an integration joint board is established it must include the chief officer of the integration joint board. Section 10 of the public bodies joint working Scotland act 2014 provides however that the chief officer is to be appointed by the integration joint board once the board is established. It would accordingly not appear to be possible for the chief officer to be a member of the integration joint board as established as that officer is not appointed until after the board is established. Does the committee therefore agree to draw the instrument to the Parliament's attention under reporting ground? I, as articles 3, 1d and 5, 2d appear to be defectively drafted. Secondly, article 3, 3 makes provision for establishing the number of persons to be appointed under paragraph 1a and b. The Scottish Government intends this to mean the number of persons appointed under each of paragraphs 1a and 1b. However, the committee may consider the manner in which article 3, 3 is worded does not accurately reflect that intention. The drafting as it stands could readily support the interpretation that the intention is for article 3, 3 refer to the total number of persons appointed under paragraphs 1a and b together. The committee may consider that article 3, 3 could have been drafted in such a manner as to put the matter beyond doubt. Does the committee therefore agree to draw the instrument to the Parliament's attention under reporting ground? I, as the meaning of article 3, 3 could be clearer. Thank you. Finally, there's a lack of consistency between the wording of articles 3, 6 and 5, 6, notwithstanding the fact that provisions are intended and that the committee therefore agrees to draw the instrument to the Parliament's attention under the general reporting ground. Mike. I think it's worth putting on record the following point. It's that these things, albeit that they don't seem to have huge importance in themselves, I think the whole matter of clear drafting is not just a matter of elegance for its own sake, but it's a matter of efficiency because when instruments are less clear than they ought to be or possibly even ambiguous, it consumes resource of perhaps multiple lawyers pondering over the meaning when in fact if the meaning was clear they could get on more quickly and efficiently. I wanted just to make that point that this is not just a mere matter of semantics. I think the point is well made and I'm sure I agree, thank you for that. No points have been raised by our legal advisers on the teachers pension scheme, Scotland number 2 regulations, 2014, SSI 2014, 292, nor on the South Arab Marine Conservation Amendment Order 2014, SSI 2014, 297, nor on the discretionary housing payments limit on total expenditure, revocation Scotland Order 2014, SSI 2014, 298. Is the committee content with those instruments, please? Thank you. That concludes the public part of this meeting. Thank you.