 Ffonwng. Welcome to the 15th meeting in 2018 of the Finance and Constitution Committee. I remind all members and everyone else who is attending to make sure that their mobile phones are in order that they do not interfere with proceedings. The first item or agenda this morning is to decide whether to consider our draft report on the European Union withdrawal bill, supplementary legislative consent memorandum on private a'r tyfn cymdeithasion. Rydw i'i rai'n rhaid ddau iawn o'r cyflwytofawr mor ei ddechrau bobi i'r Ffwrdd Cyfridd yw'n gweithio o'r ffordd dros i'i sicrhau i'r ffordd dros i'r ffordd ar gyfer ddau'r cyfolio i ddefnyddio i'r cyflwytofawr oedd ydweud. Oeddwn ni'n trofnio i gael y se bleach, rwy'n cael eu meidei wedi gael eu ddechrau i elef yn y cloc, d tung sto'r ffwrdd cyflwytofawr i'r ddechrau i ddefnyddio i'r I believe that the Secretary of State for Scotland wants to make a short opening statement. I am pleased to be here with the Minister for the Constitution to support your scrutiny of the EU withdrawal bill and the committee's preparations for its final report. I acknowledge the position that is set out by the Scottish Government in its supplementary legislative consent memorandum and articulated by Mr Russell in his appearance before the committee yesterday. However, there has not yet been a vote in the Scottish Parliament on this issue and there is still time for the Scottish Government to change that view. We have in front of us today proposals, which the UK Government and the Welsh Government both agree respect the devolution settlements. They will see significantly more powers for the devolved institutions and will continue to provide legal certainty on how laws will work across the UK when we leave the EU. Last night, in the House of Lords, peers from Conservative, Labour, Liberal Democrat and Cross-Brent groups agreed the Government's amendments on Clause 11 and the deal that has been agreed with the Welsh Government. The House of Lords also did have the opportunity to consider a number of amendments, as put forward by the First Minister in her letter to the Lord's Speaker. I hope that the committee will see that the UK Government has been constructive and proportionate in its approach to Clause 11. Following the letter that I sent to the committee and the debate in the House of Lords yesterday, I would like to take the opportunity to set out our proposals to address some of the key concerns with the original approach that the committee raised in its interim report. The committee suggested that the UK Government needed to find an alternative way forward to Clause 11, and that is what we have done. In doing so, we have sought to build consensus with the Welsh and Scottish Governments, and we have worked with them as we developed our proposals. Our approach is set out in the amendments that we have made to the bill and they accompany intergovernmental agreement and memorandum of understanding. It is based on a presumption of devolution. It will also enable the Scottish Parliament to legislate in areas previously covered by EU law as a result of our exit from the EU. We have also agreed with the devolved administrations that frameworks will be required, but where they will be complicated and they will need time to be developed. The measures in this bill are needed to deal with them in the short term as we navigate our exit from the European Union. They are temporary and we have made this clear in the sunset arrangements that we have included in the bill. We have said that we will work with the devolved administrations as we develop longer-term proposals. The amendments that we have put forward place a legal obligation on the UK Government to place new regulations before the devolved legislatures. However, we also need to provide certainty to people and businesses on how the UK internal market will be protected if agreement cannot be reached. In that case, it will be for the UK Government to decide whether to ask the UK Parliament to act. It is important to stress that we want to proceed on the basis of agreement. Our approach lends itself to that. In our view, agreement between all Governments is still the most likely outcome, with an emphasis on collaborative working. That is why we hope that the Scottish Government will reconsider our proposal. I am pleased that the Labour Government in Wales has reached agreement with us. As Mark Trafford said, this is a deal that we can make work that has required compromise on both sides. Our aim throughout these talks has been to protect devolution and make sure that laws and policy areas that are currently devolved remain devolved and this is what has been achieved. I am very pleased to be here today to have the opportunity to discuss the agreement in more detail and, along with Chloe, I look forward to taking your questions. Thank you for your opening statement. All of us recognise that the table has been significant effort by both Governments to try to find agreement. I thank you for the letter that she sent last night, which I know has now been sent around all the committee members. It lays out clearly what the UK Governments position is. Despite all that, we are still in an impasse. For me, that comes down now to a matter of trust. Mr Mundell, the UK Government has made a non-legislative commitment not to bring forward legislation that would alter areas of policy insofar as the devolved legislators are prevented from doing so by virtue of clause 11 regulations. In evidence to the committee yesterday, Mr Russell stated that if clause 11 was removed, he would give an identical commitment on behalf of the Scottish Government. He would then be in a position to recommend consent on the EU's draw bill to the Scottish Parliament. The question that I have is, why would the UK Government accept such an amendment from the Scottish Government as a solution to the current impasse that would put both Governments on an equal basis? Is it that you do not trust the Scottish Government? I do trust the Scottish Government and all our workings with the Scottish Government reinforce that in terms of how we have been able to work together. Even where we have not reached agreement, we are still able to do that in a perfectly cordial and respectful way. As you are aware, for example, the GMCEN met yesterday. Although we are not in agreement still on the issues around clause 11, we were still able to have a respectful and reasonable conversation. We have made absolutely clear from the outset that an amendment that simply deleted clause 11 would not be an acceptable amendment. We want to ensure that there is clarity and certainty in relation to what happens in respect of the laws that are returning from and legal conferences returning from the EU when we leave the EU. That is what clause 11 is about. As you acknowledged in your initial remarks, we have made significant changes to that clause to take on board the issues that the committee raised and that members of the House of Commons have raised and that other bodies have raised in terms of ensuring that that clause now has a presumption of devolution other than in areas in which both Governments agree that there will be a need for UK-wide frameworks. I believe that what we have done, rather than taking a position of deleting the clause, which might be seen by some as the equivalent in terms of our initial proposal, which might have been seen to be too far in favour of the UK Government. What we have sought to do is to find a way through the middle of that and come to a fair and reasonable arrangement. I am sure that the UK Government would argue that, in those circumstances, if the UK Government is not bound with legislation and the Scottish Government wasn't bound with legislation but they both trusted each other, the same end could be met. Why can't that be achieved? I am sure that, in practical terms, it can be achieved. One of the things that I find difficult about the argument that we are currently undertaking is that we have actually agreed the 24 areas that will require to be the subject of UK frameworks. At the moment, what we are having is a debate about how we should formally agree something that we have already agreed. To me, being quite frank, I see that as a head-of-a-pin argument instead of focusing on getting those frameworks moving forward in areas that are really important to people across Scotland. I do not want to get into the issue of the 24. I think that the Secretary of State and all of us here know that that 24 can be added to it, and I do not think that McKee is going to come to that at the will of the UK Government. However, if that is a head-of-a-pin argument, you can sort that problem by putting both Governments in the same position of a non-legislative agreement if there is trust on both sides. I would believe that, in those circumstances, it would make all the other discussions that will follow on Brexit and common frameworks much more easy to be agreements to be achieved if that basis of trust could be established at the very beginning. From my perspective, I would ask you to reconsider that as far as the UK Government is concerned. We have indicated that we continue to have an open door in relation to discussions. That is the case. However, we have been clear that an amendment that is simply deleted clause 11 is not one that we could accept. That then puts the Governments in a different position. The Scottish Government is bound by legislation, and the UK Government does not seem like trust to me. However, let us go on to the issue of whether the Parliament, at the end of the day, decides not to give its consent to the EU withdrawal process here in the Scottish Parliament. We have been told by our colleagues that you are at the centre of some of these very important negotiations. What would your recommendation be to the UK Government if the Parliament does not give its consent? My recommendation and explanation to UK Government colleagues is that it is the Scottish Parliament that will decide whether it gives consent, not the Scottish Government. Of course, the Scottish Government will make a recommendation. Members of this Parliament will decide. Your report, I am sure, will be very influential in terms of how people might form a view. However, as I understand it, there are two weeks to go until that debate will be held. I want to put all our efforts into getting agreement with the Scottish Government. I still would like to see agreement with the Scottish Government, and I would like to see this Parliament give legislative consent to our bill. If we get to a point where agreement has not been reached, that is the point at which not just speculation but events will unfold, I do not think that it is helpful or useful to speculate about those events when we are still in a position where agreement could be reached and this Parliament could still give its consent. I recognise that there are still two weeks to go, but there is a distinct possibility that this Parliament will refuse consent. What will you recommend to the UK Government in those circumstances? I am still going to give you the same answer, convener, that I want to focus my efforts on ensuring that we get consent. I hope that, in my appearance today, I may be thwarted in that aim, but that we will be persuasive in terms of putting forward reasons why the bill, as amended last night by the House of Lords, should be given legislative consent by this Parliament. What I am hearing from you, Secretary of State, is that you are not prepared to say today that if the Scottish Parliament decided not to give consent that the UK Government in those circumstances would proceed with legislation? Is that the case or is that not the case? I think that that is a rather convoluted and hypothetical question, if I may say so, convener. What I am saying is that I am focusing on the here and now where we have said that our door is open. Mr Russell indicated yesterday that the Scottish Government still wants to have conversations. It would not be right to suggest that we do not have two differing positions at this moment because we do, but I still think that it is important what happens in this Parliament in terms of the debate and discussion that you have here. I do not want to pre-empt that, and it is not my decision. I do want to encourage the Parliament to support a legislative consent motion, but I recognise that that is entirely a matter for this Parliament. Rather than speculating on numerous scenarios, I want to make sure that we are focusing on getting agreement. Given that you have not given a definitive position, I can only conclude then that, in those circumstances, the UK Government would be prepared to ignore the will of the Scottish Parliament. The UK Government is seeking the consent of the Scottish Parliament. We have sought legislative consent, and that is still what we are doing. That is one of the reasons that the minister and I are here today, so that we can feed into your committee's report. We want that report to be a positive one that would suggest that the Scottish Parliament should follow the lead of the Welsh Government, follow the lead of leading devolutionists such as Lord Jim Wallace, in acknowledging that that is a good and fair arrangement that has been concluded and that it can support legislative consent for this bill. Finally, in those circumstances, you still have not confirmed that the UK Government would potentially ignore the will of the Scottish Parliament. I can only conclude that that is partly the potential decision-making of the UK Government. Obviously, we are not going to concur on that. Do you not give me an answer? I have set out clearly what our focus remains on getting agreement and getting consent. You can understand in those circumstances that I am left here thinking that the UK Government will potentially ignore the will of the Scottish Parliament because you have not given a commitment today to not do that. However, what we want to do is rather than to address an issue that may or may not arise, is to address the issue in hand as to why the Parliament should give its consent to this bill. Thank you, convener. Good morning, Secretary of State. Good morning, minister. Thank you for being with us. I want to go back to the issue of trust that the convener opened with. On Monday, giving evidence to the House of Commons Public Administration committee, Mike Russell said that trust between the UK Government and the Scottish Government is at its lowest ebb. The previous day on Sunday, I do not know if you had the misfortune to see the Sunday Herald, but the Sunday Herald led with a story attributing to the First Minister remarks that the UK Government are intent on demolishing devolution. How do you react to those kinds of belligerent comments? I am disappointed when I hear such comments because they are not reflected by reality. I think that one of the signs of the maturity and the relationships between parliaments is that we are able to disagree and maturity and relationships between Governments. We are able to disagree but still continue a dialogue. Yesterday, when the GMCEN met, we were able to have a very constructive dialogue in relation to how the Scottish Government should be involved in the negotiation process for leaving the EU. We were able to have a constructive discussion about how the frameworks that are the subject of a separate aspect of how they would be agreed. We are able to have very constructive discussions. I have made clear that I do not feel in any way let down by Mr Russell, because he was always clear with the UK Government that he was not the decision maker, that any decision on agreements that he discussed with us would have to be cleared by First Minister Nicola Sturgeon. He made that very clear, so we did not think that we have reached an agreement with the Scottish Government. We knew that an agreement had been discussed and Michael Russell would have to bring that back to the First Minister. I do not feel in any way let down that there is a lack of trust. Likewise, we were always very clear with Mr Russell and the Prime Minister was very clear with the First Minister what our position was. I do not think that there has been any lack of trust in that regard. The convener and I both served in the period immediately prior to the independence referendum in 2014. My experience was certainly that intergovernmental relations were much more difficult in that period. In fact, practical dealings with the then First Minister were much more difficult than they are with the current First Minister, because although we may disagree with her, she always acts in a very professional manner. Remarks suggest that Jacob Rees-Mogg is suddenly going to start imposing regulations and rules in Scotland. At a point, only two weeks after, the Parliament acknowledged that a large section of the welfare responsibilities for Scotland had been devolved to it and that it would be able to create its own welfare system, which is frankly ridiculous. The previous coalition Government on devolution is one that I am proud of. If you look last night in the House of Lords, Jim Wallace, the former Deputy First Minister of Scotland, a leading protagonist of devolution from the pre-convention onward, said that this Government has a very strong commitment, and I say that from the Opposition benches through the number of things that they have devolved to the Scottish Parliament. You clarified in your view the decision of the Scottish Government not to enter into the agreement with the United Kingdom Government that the Welsh Government has entered into is the personal decision of the First Minister herself? I am not party to the First Minister's personal decisions, but what I am clear on was that Mr Russell was very clear that any decision on the agreement that had been discussed between the Scottish Government and the Welsh Government would need to be agreed with the First Minister. Can I take you to the Government amendments to clause 11 that were agreed with that division in the House of Lords yesterday evening, and the key amendment in Lord Calanon's name that reverses the effect of the original clause 11? It reverses the presumption that underpinned that original clause 11, and the presumption that was in my judgment, as you know, incompatible with the devolution settlement, was the reason why the Scottish Conservatives joined with all the other members of the committee in unanimously recommending in our interim report on the withdrawal bill that clause 11 needed to be removed or replaced. It seems to me that clause 11 has now been replaced, and it has been replaced with a new clause that turns that presumption on its head. The presumption is now that everything that falls within devolved competence will come directly to the Scottish Parliament on exit day. Other than that, it is agreed by the Government to be put temporarily into a holding pattern so that we can ensure that the integrity of the UK single market is not inadvertently threatened or jeopardised by different Governments in these islands pulling in different directions in manners that would be adverse to the interests of the UK as a whole. Is it your understanding, Secretary of State and Minister, that the new clause 11, as we can now call it from last night, copies and pastes one of the fundamental principles of our devolution settlement into the law. That fundamental principle is, of course, the SEAL convention. The SEAL convention is that the Westminster Parliament will not normally legislate on devolved matters without consent of this place. That is the effect of the new clause 11. The effect of the new clause 11 is that no power will be taken into that holding pattern normally without the consent of this place. Therefore, the new clause 11, unlike the original clause 11, is completely compatible with the devolution settlement, and that is why the Welsh have signed up to it. Is that roughly your understanding of where we are? Yes, in combination with the intergovernmental agreement, which further clarifies that. I have your letter here, dated 2 May. In it, it goes through some of the amendments. Particularly, I would like to ask you about the new term that has appeared, which is the one consent decision. Could you explain for the committee what a consent decision consists of? A consent decision is a decision that this Parliament would make in relation to a proposal that has been made by the UK Government. In making that decision, there are three specifics that the Parliament could do. Obviously, it could agree, it could not agree, or it could move forward a specific motion of refusal. Those are the three decisions that would then signify that the Parliament had dealt within the 40-day period with consideration of such a proposal. A consent decision is where the Scottish Parliament either consents, declines to make a decision or refuses consent. Even if every single MSP in this Parliament takes a decision not to consent, to refuse consent to the UK Government, the UK Government would take that as a consent decision. No. In the sense of suggesting that the Parliament had consented, of course, we would not take that as an amendment. It does not say that. It does say that. It says that a refusal will be taken as a consent decision. How can a refusal be consent? A consent decision is not the same as consent. A consent decision is a decision in relation to consent, which can either be yes or no or a specific refusal. If you follow what is to happen in a light of such an event and say that every member of this Parliament voted against, there would then have to be within the UK Parliament, the UK Government would have to bring forward a proposal that we proceeded without that consent. As part of that process, there would be a laying of a report from the Scottish Government setting out why that consent had not been forthcoming and making clear the fact that every member of this Parliament had voted against it, and then there would have to be a vote in both houses of Parliament to confirm that the regulations could go ahead in those circumstances. A refusal would be taken as consent by the UK Government? No, that is exactly what you just said. You said it around this way, but that is what you said. So consent, excuse me Secretary of State, consent is a founding principle of the devolution settlement. Do you understand that? Of course I understand that, because I have been a member of this Parliament. I do not want you to misrepresent what I said. I said that there is a definition of a term called consent decision. That is a decision that is made on consent. Clearly, a decision that is made on consent can be yes or no. The Government is not going to suggest that, because every member of the Scottish Parliament had voted against a motion that it had consented to it, what it would take is that, within the 40-day period that was allowed, the Scottish Parliament had made a decision. That decision would then be the subject of the procedure set out in relation to what could then happen in the houses of Parliament. Secretary of State, in your own letter to this committee dated yesterday, it says that the UK Government, in the event of the circumstances that we are just discussing, must explain its reasons for proceeding in the absence of consent. The UK Government can now proceed in the absence of the consent of this Parliament. That is not compatible with the devolution settlement. Surely you must see that? No, I do not see that. The devolution settlement, as it is currently set out, does not set out an absolute consent arrangement. That is not within the current devolution settlement. What we are seeking to do is to find a way forward where agreement cannot be reached. That is the proposal that we have put forward, which allows and ensures that the consent of the Scottish Parliament is sought within. If the 40-day time period the Scottish Parliament will then have the opportunity to discuss the decision, it can agree, it cannot agree. If it does not agree, the reasons for not agreeing will be laid before MPs and peers before there is any vote in the UK Parliament. When did you know that the consent decision was going to be a feature of the amendments? Did you sign off on that personally? I am quite happy with that clause because it is one that the Welsh Labour Government has been able to agree to. It is one with which the Liberal Democrat and Labour peers in the House of Commons were able to agree. It was a clause that was shared with the Scottish Government. I am not suggesting that it signed off on the clause, but that clause was shared with Scottish Government officials in the discussions that we had with Mr Russell. As the Secretary of State for Scotland, I think that it is very disappointing that you feel that you are quite happy with this, because, obviously, this Parliament is the democratically elected voice of Scotland, if you like. It seems to me that, through this process, you are effectively completely ignoring the voice of Scotland. Are you comfortable with that, Secretary of State? Obviously, Ms Denham, we are fundamentally in disagreement, because I believe that Scotland has two Parliaments. Scotland is part of the United Kingdom, and the United Kingdom Parliament represents Scotland as does this Parliament. This Parliament is not the sole voice of Scotland. It is a very, very important voice on the matters, and clearly has responsibility for the matters that are devolved to it. Indeed, it has a very important role in discussing and influencing the matters that are not devolved to it. No, fundamentally, I respect the settlement that the people of Scotland voted for in the 2014 referendum that Scotland is part of the United Kingdom, and that Scotland has two Parliaments. I think that I would ask you, first of all, in relation to the part of the recent amendments that were passed that Ash Denham was exploring with you. It could certainly have been presented better, couldn't it? It does look to a lot of people, as though that term consent decision means something very different than I think you intend it to mean. It could have been presented a lot better, couldn't it? I am always willing to take advice and feedback on improved presentation. What does consent mean in general terms? What does it mean to ask someone for their consent? We are seeking, and when we seek the legislative consent of this Parliament, as we have done on numerous occasions, agreement. That is what we are doing in relation to this bill. We are seeking the agreement of this Parliament to the provisions of the bill that relate to the powers and responsibilities of the Scottish Parliament and the Scottish ministers. Isn't it pretty clear that to ask for consent is a very clear signal that you need consent? Your neighbour comes and knocks on your door and says, David, look, make and borrow your phone. It means that they don't have a right to come in and take your phone and use it. They need your consent. Isn't that what consent means? It is an indication that it is the other person's decision to make, not your own to impose. I see it as in terms of reaching agreement, in terms of being able to proceed on a great basis. In the terms that we are discussing at Mr Harvey, I do not believe that it is absolute and that it has not been in terms of the devolution settlement, but we have abided by that, by the sole convention. We have sought consent, we are clear within the provisions here that we will continue to do that and operate in exactly that manner. You may think that the drafting of the amendment is imperfect, but what we have sought to do is to continue for our approach to be founded on that consent principle. However, it has to recognise in these unprecedented circumstances that there may be occasion where agreement is not reached and there has to be a mechanism for going forward. I will be polite about the drafting of the amendment and agree that it is merely imperfect. The word normally has been part of the sole convention and I think that is what you are referring to when you say that there has to be a possibility of proceeding without consent. The principle that the UK Parliament or the UK Government will not legislate into all the areas normally is not at the point where we are having to define what that means. We are not dancing around a fudge that that always represented. I think that most people would accept that, in some kind of absolute national emergency, it might be necessary to say that the devolution arrangements cannot be relied upon here and we cannot proceed with those normal arrangements so that some other option has to exist. Brexit may well be a crisis, a political crisis, but I do not think that we would suggest that it is the kind of national emergency that prevents the devolution arrangements from working as they normally do. Do not we need to define clearly what normally means and would not that be a better approach to your amendment to the bill? If consent has been given, some additional threshold or test needs to be reached and some crisis or emergency is taking place, which means that we cannot rely on the devolution principles. That is an interesting line of argument. I think that Professor Tomkins and many other academics have considered those matters. They were certainly considered in the article 50 hearing before the Supreme Court, which made it clear that the sole convention that was presently set out was not judiciable in relation to the determination of normally. Normally, it was very extensively debated at the point of the passing of the Scotland bill, but a definitive position was not reached in terms of having that specific definition for the very reason that you alluded to in terms of allowing a flexibility to take account of circumstances. To use my metaphor, I think that most people would accept that if your neighbour knocks on your door to borrow your phone and you say no, but he wants your phone because there is some crisis, not just because he has forgotten his keys, there is some emergency outside and he needs to phone the fire brigade, the police and so on. He has probably got a reasonable call to say, look, I am pushing you out the way that I am going to use your phone because people are going to die out here. In a crisis like that, it might be reasonable to proceed without consent, but out with those kinds of situations, out with a national emergency, surely the principle has to be that consent must be freely given or withheld without coercion, without threat, that it has to be revocable if a person changes their mind, or in this case if a devolved authority with its own democratic legitimacy changes its mind, and most fundamentally it has to be respected. Your amendment in this fails to achieve those three principles of what consent means in any reasonable use of the word. I do not accept that because we have proceeded over the past 19 years on exactly the basis that you have set out and we intend to go forward on exactly that basis. What we have done though is to set out what I regard as unique circumstances, because, as many members of the House of Lords indicated in the debate that they had last night, those weren't circumstances that were ever contemplated in the framing of the initial devolution settlement. There has to be some form of mechanism to deal with a situation where agreement is not reached. If I may, Mr Harvey, just on your analogy and Cymru, thank you for my presence in front of the committee, I'm pleased to be here also. Mr Harvey, I think in your analogy there's a couple of two further points I would make to it. First of all, and picking up what Ms Denham's line of questioning seemed to be about, I think we do risk in those two exchanges having a misrepresentation of what the amendments that have now been accepted by the House of Lords actually do. This whole idea of describing a consent decision, what we have had to do to get the words on the page to make this workable law, is simply to describe the three options that can come about out or out of a decision. If you like, the knock on the door can, of course, result in the door opening and the person saying yes, the door opening and the person saying no, or the door refusing to open at all. That is simply what we are doing. I just want to make absolutely clear in the terms of your analogy, Mr Harvey, that that is all that that consent decision terminology refers to. It is part of a process in which, in your analogy, is the knocking on the door. I do think that it's rather valuable to have the knock on the door valued, and that's what, of course, the Secretary of State has been driving at and is, of course, what underpins all of our work here, but the other thing, I think, is this. If we also applied your analogy to the subject matter that we're actually talking about, which, of course, is the 24 matters in the long-done piece of work that is referred to as frameworks, really, the knock on the door actually is coming for things that are where there is already agreement that there should be working together. I'm referring there to the agreement that came out of JMCEN in October, the principles that guide the framework, and subsequent points that have been made in the public sphere by all sides to say that actually, yes, we agree, there are these things on which we know we're going to need to work together in the future, and that all starts with the knock on the door. So long as the knock on the door isn't with a sledgehammer. Right. Okay, we'll move on. James. Okay, thank you. In response to Mr Harvey, you said that where agreement couldn't be reached, there needs to be a mechanism for resolving that dispute, which is absolutely correct. However, can you understand in terms of what you're outlining in relation to the amendments that have been put forward and agreed or the House of Lords by the Government that the mechanism for resolving the dispute between the two parliaments basically is to take the issue back to the floor of the House of Commons, and therefore it seems as if there's an unequal settlement in terms of resolving that issue of disagreement between the two parliaments? I think if we look at what your colleagues in Wales have concluded and what many people who have been very prominent supporters of devolution in the past have said, they have taken a view that what has been set out is a fair and reasonable approach, recognising the existing constitutional arrangements. Now, I fully accept that there are people around this table in particular who don't agree the existing constitutional arrangements, and of course they're not required to do so as such, but they are the arrangements that are in place. They do come down to the fact that people in Scotland have endorsed the referendum of the Westminster Parliament. I understand the legal position that you set out. However, in terms of trying to resolve that specific issue about retained EU law and how it's allocated between the two parliaments, the position that you've set out for resolving the dispute basically allows the power for that resolution to be on the floor of the House of Commons, and therefore, I mean, I say to you as a support of the devolution process, it puts those of us that are defending that process in a position of examining a set of amendments, which essentially are unequal in relation to resolving a dispute. I don't accept that analysis, partly for the reasons that are set out in my answer to Ms Denham's question. The House of Commons has 59 Scottish members. The House of Commons represents Scotland. Scotland is part of the United Kingdom, and the United Kingdom Parliament speaks for Scotland in that regard. That is a fundamental part of our constitutional arrangement. What the Government has been very clear and set out is a commitment on every occasion to seek consent—a commitment to go through a very detailed process if that consent in the form of a consent decision is not forthcoming—to allow an opportunity for the Scottish Government to put its case in relation to why the consent has been withheld and why it should continue to be withheld before there is a vote of all members of both parliaments. It is not a case of railroading, but we need to come back to focus on the fact—a convener alluded to the fact that other things could be added. You had a list before this committee of 111 things that were returning from Brussels. Over 80 of those things are not on the list of things that will be requiring UK legislative frameworks. I used to be asked routinely to name one thing that is coming back to the Scottish Parliament. I did not, because I respected the negotiations that were on-going, but we have come to a position where, in a specific set of areas, 24 out of 111 things have been determined as being appropriate for those UK-wide frameworks. We actually agree what they are. Mr Russell is quite clear on that. We agree what those things are. What we are now having discussion about is how we formally agree something that we have already agreed. We need to understand that context as well. Alexander Stewart, I was going to come to you next, but the secretary of state has introduced the issue of the 24. I know that Ivan was wanting some clarity on that. Ivan, can we just go to that now? Thank you, convener, and good morning. You have mentioned, Secretary of State and Ms Smith, on a number of occasions, the list of 24 powers. Is it true that there is nothing in the legislation that prevents the UK Government from adding to that list? It is the case that we already are in agreement about what that list contains. Given that I have already heard this morning how passionate the committee is about agreement, there is a point to be respectful of that. We already have that agreement of what that list consists of. The legislation that we are putting forward is merely the tool to process that agreement. The legislation is a tool, but the tool does not reflect the fact that those 24 have been agreed, so I think that your answer to my question is correct. There is nothing in the legislation that prevents that list of 24 being added to. The legislation, as I said, is merely a tool, a functional thing. Clearly, the legislation operates in the way to say that those things that are specified are dealt with in a certain way. As the secretary of state has already reminded us, the legislation has to be taken in accompaniment with the IGA, the memo that goes with it, and between those two things, you have a very clear legislative and political commitment from the UK Government as to how it would like to deal with the entirety of the scenario. I will give you the opportunity again to answer the question. Is there anything in the legislation that prevents the UK Government from adding to that list of 24? The legislation is there to process what is in the agreed list. We have an analysis of what is in that agreed list. I think that we have all been very clear and open that that agreed list can evolve. We have seen that happen already. I think that I would characterise that as a positive thing. Forgive me, Mr Mickey, I am preempting your next question here, which is no doubt going to be what if things were added. To which I would say that the whole point is that the analysis is evolving and that is, in its own way, a mark of good quality work between the Administrations and all four of the Administrations. I include Wales and Northern Ireland in that. We will take that as I know. You cannot answer that question, but you are correct in my next question, which is if the UK Government so decides to add to that list, how would that process work? There are two things here. First of all, let us talk about the work that is known as frameworks, the frameworks analysis. To give it its full name, that is the breakdown of the areas of EU law that intersect with devolved competence. That is what we are talking about. The 24 is the common word for the areas where we believe legislative action would be needed to be able to create workable UK frameworks that require legislation. As I say, that work has already been the subject of very long and good quality discussion between Administrations. That, in itself, implies the answer to your question that that has already been possible to discuss and to evolve and then to change upon discussion. The second answer to your question is, as I say, that legislation is simply the tool to process those of that list that we have agreed in thinking to require legislative solutions. Right. Can I try to work my way through that? I think what you are saying is that the UK Government can add to the list of 24 as it sees fit. To be fair, so could the Scottish Government, if it wanted to. In discussion, I am talking about the frameworks analysis. Can you remove things from the list? As I hope that you have obviously gone into the frameworks analysis in quite some detail, the whole point that I have just been making to you is that, between the Administrations, the contents of that list has been a matter of discussion. You are saying that the Scottish Government can alter what is on this list without the consent of the UK Government? No, you are altering my words in turn. What I am very clearly saying to you is that the contents of the frameworks analysis has been, indubitably, a matter of discussion and agreement between the Administrations. I think that that really stands as a good record of the work of the officials of all the Governments, and they ought to be congratulated for the work that they have done to bring it to this point. As I say, we regard it then as possible to evolve further. In line with the comments that we have been making all morning, the UK Government would be very much open to the Scottish Government being able to join in agreement of the overall package here, but notwithstanding the other parts of the package, that detailed work on the frameworks analysis continues, as it should. Just so that we are clear in terms of the context of the discussion, Mr McKee, you have got the intergovernmental agreement, because this committee should have sight of that. There was extensive discussion and debate as to whether the details of the frameworks should be in the legislation. I think that the view that was taken across the three Governments when we were in that type of negotiation was that it would not be helpful to do so because that would create a definitive list that could then only be amended by primary legislation and that, therefore, for the flexibility that was required going forward and based on the fact, going right back to the convener's first question, there has been a very strong level of trust across the three Governments and, indeed, with the input from the Northern Ireland Executive, that that was the better way in which to take this forward. However, there is an argument, and some would make that argument, that the whole detail should be on the face of primary legislation. I am trying to establish the facts, and the facts, as far as I can gather from your answers, are that the list of 24 can be added to and it can be added to by the UK Government without the consent of the Scottish Government or the Scottish Parliament. I think that that is, if I am going to understand it, in that case. However, it would not be in accordance with the intergovernmental agreement that we have committed to and which we will abide by. The legislation does not prevent that. It is not on the face of the legislation, because the view is strongly that, by putting it on the face of primary legislation, you limit the flexibility to go forward both ways. The areas that we are talking about here in this 24 make it a bit more real for people. Areas where, as we have already established, the UK Government only needs to ask for consent, it does not need to gain consent from the Scottish Parliament, including GM crops, food safety and public procurement, which are potentially key issues in Scotland. The rest of the list of 111 includes areas such as onshore hydrocarbons, i.e. fracking, which could, at the time of the UK Government, also be added to the list to be subject to clause 11. I think that that is an alarmist statement, because we have made it absolutely clear that we have devolved the responsibility for fracking to this Parliament. This Parliament makes the decision as to whether there is fracking in Scotland, and any suggestion that it could be changed by sleight of hand is ingenious, because it is not correct. In relation, let us just be absolutely clear, because I wanted to make it clear in my letter, and it is something that does not come across always clearly in the discussion. What is going to happen in relation to the 24 areas is that, by the arrangements in this bill, they will stay exactly as they are today. There will be no change. That is what it means. It will mean that things will stay exactly as they are across the whole of the UK. Everybody needs to be absolutely clear that this is not about bringing forward new and different frameworks or regulations to change agricultural support or to change areas that you have just alluded to. It is about, for a period, to allow discussion on new and different arrangements to freeze what we have at the moment. After the legislation was passed, and in the areas that the Government brought forward, nothing would change. It would change, because, over a period of time, common frameworks would be imposed—I will use the word—because a consent is not required to be established by the UK Government. The methodology of agreeing for common frameworks is not set out in this bill or in the inter-governmental agreement. What it is saying is that consent is not required for that. No, it is not saying that. That is not what it is saying. Can I just put it for clarity? First of all, thank you for the inter-governmental agreement and the commitment that you just made about it being, in your view, quite definitively nothing added to that without agreement with the Scottish Government. I am sorry, but I want to make one important point to clarify as well. Even if we were not able to get agreement with the Scottish Government, we would abide by the terms of the inter-governmental agreement as to how it was intended to apply in Scotland. The word normally does not apply here then? Well, the word normally does apply in the inter-governmental agreement. What you are saying is that, normally, there would be no circumstances in which you would add to that list. We would not add to that list without agreement on the basis of the terms of the agreement. Which is normally or not? The agreement is predicated on not normally, so we would not normally add to the list without the agreement of the Scottish Government and the Welsh Government. I will come back to where this normally is, to the issue that Patrick Harvie raised. Alexander Stewart Thank you, convener. We have heard since August last year about how close the Scottish and Welsh Governments were, and we have heard Mike Russell on numerous times talk about being in lockstep with the Welsh Government and being in exactly the same position. I will not repeat all the quotes over the last eight months, so a lot of it was given in and recorded on the record yesterday. Can I just ask why the Secretary of State thinks that this deal is good enough for the Welsh but not good enough for us? I think that it is good enough for you. I think that it is a good deal for Scotland, and I think that it is a good deal in relation to the Scottish Government and the Scottish Parliament. We were very close to getting agreement. I do not understand having said so often that the Welsh and Scottish Governments had absolutely common interests, but the view is now that they do not. Mark Drakeford, who has negotiated the matters on part of the Welsh Government, is prospectively the First Minister of Wales, and, therefore, is a potentially very significant figure in the evolved arrangements across the UK. It is quite clear that this arrangement protects the devolution settlement as it currently exists. Now, I know that some people want to change that and therefore would not be happy with an arrangement in the context of devolution, but this is an arrangement in the context of the devolution settlement as we have. I do not know the language that Pete Wishart used about the Welsh Labour Party compitulating to the Tory UK Government is helpful language. That does not characterise the negotiations. Those were complicated and serious negotiations. There are a lot of difficult and innovative issues to approach, such as the one that Mr McKee raised, as to whether issues should be on the face of the bill, whether they should be into governmental agreements, memorandums of understanding, a whole range of issues. However, we felt that we had moved very significantly. All objective commentators accept that the UK Government has moved very significantly from the initial clause 11, taking on board the flaws in that initial clause that the committee concluded was there. We would not necessarily have seen it that way, but we took on board what the committee said, the committee of Welsh Assembly, committees of the House of Commons, House of Laws, individual MPs and changed substantially. We reversed the clause with the presumption of devolution so that powers will come back unless they fall within this category. We agreed the powers that would be in the category, and now we are left with not being able to agree how we actually just do that formally. Again, just for clarity, Secretary of State, on 24 April, Mark Raitford wrote to David Lennon-Ting in his letter. I just want to know if you can confirm that in his letter he said, I would prefer such arrangements to have been developed without the need for legislative constraints with respect of Governments trusting each other's undertakings, not to legislate in areas where we agree UK-wide frameworks are needed until they have been agreed. That takes us right back to my initial question to you, because that is the preferred Welsh position. But, convener, we have been in a situation where we have been seeking agreement, where each side, each of three parties and with the complexities of Northern Ireland, we are seeking to reach agreement. Agreement means compromise, a bit of give and take. A huge effort was put into getting a clause, an agreement and a memorandum of understanding. In all the circumstances, Mr Raitford and Carwyn Jones and Welsh Labour peers concluded that the arrangement that had been reached was fair and reasonable in all the circumstances and did protect the devolution settlement. I accept that, but would you also accept that the preferred position of the Welsh Government, as I have indicated in the letter that was given from Mark Raitford to David Lennon-Ting? Obviously, I accept that that letter is a fact, but I also accept that agreement has been reached and where agreement is required to be concluded, it requires compromises on all sides. Just to follow up the issue of common frameworks and the imposition of frameworks, the UK Government has stated that it would not impose a framework on Scotland, and Secretary of State has been clear that it does not want frameworks to be imposed. Mike Russell said yesterday that it was still feasible that a framework could be imposed. What examples are there where there would be justification for the UK Government to impose a framework and what is stopping the UK Government from giving a guarantee that no frameworks will be imposed? I have already indicated that we are not in the business of imposing frameworks, but, as I said in my answer to previous questions, the agreeing and negotiating of frameworks is a separate issue from this bill. This bill is about identifying 24 areas in which everything will stay the same when we leave the EU across the UK. That is what it is about. It is then, after we have left the EU, the opportunity to agree frameworks involving the Scottish Government, the Welsh Government and the Northern Ireland Executive, which we hope is up and running in the UK Government on how we approach those frameworks going forward. However, we are not in the business, and I wanted to make clear in previous remarks that, when something was characterised as a UK framework, that did not in itself mean that it was a framework that the UK Government had come up with and everybody had to go along with it. We see that as a collaborative process, a process in which we reach agreement. If I may just add, I think that it would help if I refer the committee back to the agreement in 16 October last year in which the principles for what would define a framework are set out. Mr Bibby, that is in large part the answer to your question. You say, well, what is the criteria for having a framework? What are the circumstances for having a framework? All the Administrations have agreed those circumstances, and here they are in principles. Common frameworks will be established where they are necessary in order to enable the functioning of the UK internal market, whilst acknowledging policy divergence, ensure compliance with international obligations, ensure that the UK can negotiate, enter into an implement new trade agreements and international treaties, enable the management of common resources, administer and provide access to justice in cases with a cross-border element, and safeguard the security of the UK. I am reading out there from a list that was the communique from 16 October 2017, where all those who have been party to this work, which includes, as we say, civil servants in Northern Ireland, have agreed those principles that should govern frameworks? If there is agreement, that is fine, obviously. You said that you are not in the business of imposing frameworks. If you are not in the business of imposing frameworks, what is stopping you, given the guarantee that you will not impose a framework? I have said that we are not seeking to impose frameworks. What we are seeking to do is to find a mechanism by which we can agree those frameworks. That is the next stage of the process that we discussed at the JMCN yesterday. How are we going to come about those agreements? That is about officials working together. We believe that it is also important to have some civic engagement as well, so that when, for example, if there is to be a discussion around new arrangements for agriculture, for example, agricultural community is involved in that discussion as well. That is what we want to take forward with the Scottish Government, Welsh Government and, hopefully, in all, in Ireland executive, is how those frameworks will be developed. To add to that point, civil society has quite rightly entered into this debate. For example, you hear voices from the Scottish Food and Drink sector, the Scottish Retail sector, reminding us of how important it is to be able to have those ways to keep the internal market functioning well, thriving, prospering, because ultimately that is what creates and maintains jobs for the people that we all represent and gives consumers the prices and choices that they would look for. I also want to ask you about the time frame, the sunset clause of up to seven years. Mike Russell expressed concern about that time frame. Is that non-negotiable as a movement? Could there be a movement from the UK going on that in the next video? Obviously that area was a matter for negotiation in the discussions that took place in the agreement that the Welsh Government accepted and that the Scottish Government did not, but my understanding from Mr Russell—I am happy to be corrected on that—was that his issues with clause 11 were now so fundamental that a change in respect of that time period would not lead to the Scottish Government agreeing it. However, if that is not the case, then in the way that we have characterised that our door is open, then of course it is open. May I add a few points on the sunset power? The first point is to say that, of course, the numbers involved, the idea of two and three, have just had a good debate in the House of Lords only last night and agreement was reached and no division was had on that point, so I think that that has withstood the test of debate there. Second is to say that, again, as we have been mentioning in other answers, in themselves those numbers are the mark of compromise. The UK Government has, through discussion with the Welsh Government and, of course, the Scottish Government, although crucially agreement with the Welsh Government, been able to come to those terms and we think that they are sensible and helpful. The thing that they are sensible and helpful in doing is providing certainty and stability for citizens and businesses, which is what this entire bill is for. They are, of course, about how these really important matters will function on exit day and beyond. The third point to add to that, we were speaking in terms of saying that frameworks here are actually about keeping many things the same, and that is absolutely correct. Of course, the five-year sunset reminds us that they are kept the same for a period, and then, after that, it will rightly be a matter for, after a maximum of that, it will rightly be a matter for devolved Administrations to be able to plot their own course if they wish to. Emma, I know that you were interested in this area, but I do not know if all the answers that have been provided have concluded your area or if you want to understand the question. I am a lot of the questions that I thought about have been asked already around common frameworks, but I am interested in just an issue around Barnett formula and under current EU cap, 16 per cent of cap funding is what is delivered right now, but under Barnett formula it will be 8 per cent, so that is obviously a massive reduction for farmers if we are moving forward. As far as the other questions, that would be one issue that I have. Will you guarantee that Scottish farmers, crofters and growers will not be adversely affected on exit day, and should we be expecting chlorinated chicken and hormone-injected beef on our supermarket shelves? That is a true concern from the National Farmers Union in Scotland and others. I think that the reassurance that I can give you, Emma, is that, firstly, as we have set out the arrangements in the bill are about keeping the existing arrangements in place at the point that we leave the EU. That is generally in terms of agricultural regulation. The Government has guaranteed funding of agriculture on the same basis as it is now for the duration of the current UK Parliament, but, going forward, no decision has been made about the nature of a future UK and, indeed, Scottish funding for agriculture. However, as you would imagine, I am a very strong advocate for the continued support of agriculture because I understand the vital role that it plays in the economy and the civil society of so much of Scotland. There is no suggestion that agricultural funding is going to be banatised, for example. I recognise where times are marching on. I have got two people who want to ask questions. Murdo, first and then, Willie. Thank you, convener. I wanted to understand the legal effect of the bill as it now exists with the amendments that have been passed in the House of Lords last night. My reading of the bill applies only to EU-retained law. In other words, laws and unpowers are exercised. Currently, at the EU level, they will return to the UK post Brexit. However, there have been various suggestions made that, in fact, what the bill will do is allow a power grab that will allow powers that are currently being exercised by the Scottish Government or the Scottish Parliament to be exercised at a Westminster level. Can you make it clear for our benefit where exactly the truth lies? It is absolutely the case that every power and responsibility that is currently exercised by this Parliament will continue to be exercised the day after we leave the EU and thereafter. There is absolutely no evidence or legal basis to suggest otherwise. Indeed, and maybe I should have taken some tips from Mr Harvie on presentation, I have not landed the fact, as well as I would have wished, that the Parliament will have a range of additional powers that are coming from that list of 111 immediately after we leave without any involvement from the UK Government. However, there are those 24 areas in which we are agreed that it would be better that we continue as we are at the moment, enforced at the moment by the EU, with arrangements that are applied across either the whole of the UK or Great Britain. One follow-up question, if I can, is to illustrate this. I have already referred to this briefly in his questioning. Yesterday, when Michael Russell was sitting where you are sitting now, he gave the examples of GM crops and fracking as two areas where he was concerned that powers were to be taken to Westminster. As it happens, I think that on both these issues we should go with evidence and science and not with superstition and scaremongering when it comes to policymaking, but I also believe that it is appropriate in terms of the devolution settlement that those decisions are taken here in the Scottish Parliament and not at Westminster. Can you give us an assurance that we are not going to see decisions over GM crops and fracking in Scotland made at Westminster level? All we are talking about refers only to EU retained law. Absolutely. I wonder if I could just return to the discussion on consent decision that we had earlier. The Scotland act and the whole devolution settlement, as far as I understand it, has no mention of this principle or notion of consent decision. The whole agreement between the UK Government and the devolved Administrations is based on reaching agreement with the parliaments. Do you honestly think that introducing this new notion of consent decision has strengthened the devolution settlement? Do you agree that there is a risk that people will consider that it has weakened the devolution settlement? I do not think that anybody who is objective will conclude that it has weakened the devolution settlement. I take someone like Lord Mackay of Clash Fern, who has been cited regularly by both Mr Russell and the First Minister. In last night's debate, he said, I think that this is a reasonable arrangement and the best we can achieve. I do not think that the UK Government can do any better than this. They have certainly done all that I asked for and I hope that it will be acceptable to the Government of Scotland. I think that anybody who is looking at it objectively would conclude that this was a reasonable basis to take forward the specific and unique circumstances. Fundamentally, the nature of the settlement has changed. We were in a position where the UK Government would not act without agreement. We are now in a position where the UK Government may act without agreement. Surely that is a worsening of the situation? We have not previously been in a position where, as Mr Fraser alluded to, the EU law was returning to the United Kingdom. We have sought to find a way to deal with that specific situation, but it does not alter the overall devolution settlement as that settlement operates. It does not change the basis on which the Parliament can legislate and, indeed, further debate and discuss any other issue with the devolved. It does not change anything in relation to the existing arrangements for the Scottish Parliament. It merely sets out an arrangement as to what is to happen as those powers come back from the EU, which are currently operated across the UK and regulated by the EU. If I may just add to that, not only does it not change, but what you have in front of you expresses our respect for that. If you see in the intergovernmental agreement paragraph 4—I do hope that this is something that parliamentarians here will take a good look at when they are considering in the weeks ahead—this agreement respects the established constitutional conventions and practices and, consistent with those at the Government's plural, reaffirm their commitment to seek to proceed by agreement. I think that that is a positive statement, which I would hope would commend this package together to parliamentarians here. If it does not alter or change anything that you have just said, why introduce this new concept of consent decision when we had a perfectly good arrangement in place? Up until now, which requires consent? We have an existing arrangement in place for the devolution settlement as constructed in 1998. Jim Wallace, who was one of the architects of that settlement, made clear yesterday that circumstances were not envisaged at this time. It is one of the complexities that we face. Everybody acknowledges that. We joined the EU in the 1970s. There was no devolution. We took forward the devolution settlement at a point where it was not envisaged that we would leave the EU. Those are hugely complicated areas. We have sought to address the specific situation with the arrangements that we have brought forward, but they do not alter the existing devolution settlement. The existing devolution settlement and the devolution that has continued to happen is testament and can give confidence of the commitment to devolution. I often say perhaps a little lightly, but a Government that has devolved infotax and a Government that has devolved huge parts of the welfare system is not seeking to power grab crofting. There are not people in London seeking to take control of crofting legislation, because under the devolution settlement that rests here, and it should, because this Parliament is the best place to deal with those issues. Thank you, Secretary of State for attending our evidence-taken session this morning. I am very grateful to you. I now close this meeting of this committee. Thank you very much.