 Good morning and welcome to the 17th meeting of the Finance and Constitution Committee. Before we begin with agenda item 1 today, I note that we have had a change in membership. I thank Donald Cameron for his hard work and input on the committee and I warmly welcome Dean Lockhart back to the committee as his replacement. Dean, can I ask you please to declare the interests that are relevant to the committee? Good morning, convener, and it's great to be back on the committee. I am a member of the Law Society of England and Wales, otherwise I have no other interests there. Thank you very much for that declaration, Dean. I'm most grateful. The only item on our agenda today is to take evidence on the UK withdrawal from the European Union continuity Scotland bill at stage 1. I warmly welcome our first panel of witnesses to the meeting. We have Professor Michael Keating, who is the Professor of Politics at the University of Aberdeen, and we have Professor Eileen McHarg, who is the Professor of Public Law and Human Rights at Durham University. If I may start the question this morning, folks, the Scottish Government has laid out the arrangements for parliamentary scrutiny in the bill through subordinate legislation. I wonder what your views are on those arrangements. I ask Professor McHarg to respond in the first instance, please. Good morning. I assume that you are talking about the keeping pace power. What surprised me about the scrutiny arrangements in the bill is that they are weaker than the scrutiny arrangements that were in the original legal continuity bill that was ultimately not proceeded with. Those stronger scrutiny provisions were partly as a result of amendment during the parliamentary passage of the bill, but partly they were there from the outset. There are two main respects in which the provisions are weaker. In the bill, the choice is between negative procedure or affirmative procedure. Some types of regulations will have to be made by affirmative procedure, and there is the possibility for applying affirmative procedure to other types of regulations, but the default would be negative procedure. As in the first bill, the default was affirmative with some provision for superaffirmative. Superaffirmative requires regulations to be laid in draft for a longer period and to be subject to consultation. Plus, there was a sifting mechanism for the Parliament, so it was for the Parliament to decide whether or not the procedure chosen was an appropriate one. I think that it is surprising that this part of the bill has come back with weaker scrutiny provisions. I would suggest that the Parliament might want to try to reinstate the stronger procedural protections that were there in the first iteration of the bill. I will answer that question. First, we need to ask what is the broad purpose of the bill. I see two broad purposes that are not quite the same thing. One is the idea of trying to remain in dynamic alignment with the European Union. I can see the logic of that, but it only makes sense as part of a broader strategy. What does Scotland want out of Europe? Maybe we want to stay in dynamic alignment because we do not think that the European Union has been resolved by a sort of maybe on some other kind of relationship. What I would like to see there is some kind of philosophical statement as to what the Scottish Government sees the possibilities for remaining in Europe in all sorts of ways as being. We had this in Scotland's place in Europe that did not get very far. Something like that. Then, how dynamic alignment might fit into that. Then, how a special procedure might be justified because of the necessity of keeping up in dynamic alignment. The other possibility behind it, maybe we just want to adopt European laws because we like those particular laws. In that case, I do not see the need for a specific mechanism—a fast track mechanism—to keep up. I think that that could simply be dealt with by ordinary law. As far as the affirmative negative procedure is concerned, I agree with Aileen there. I think that there is a lot of negative procedure here. It is a highly problematic parliamentary accountability. It is part of a broader process in which both Westminster and Holyrood were saying Brexit, resulting in a loss of parliamentary accountability in that amount and an increase in ministerial discretion. Given that the number of EU regulations regulates seeds about 1,000 annually, how many of those do you think we could reasonably expect to see to be introduced using the polls? We do not know that that is the problem. We do not want to meet some broad statement as to what this is all about. What is the purpose of dynamic alignment? Is it just to stay aligned with everything or is it that we can pick and choose or is there some broad strategy in which it may be important to stay in dynamic alignment? I do not know what that is. All we have got in the debate is for some examples that are picked at random rather than a broad philosophy, so that we know what to look for. Clearly, trying to keep track of everything that is coming out of the European Union would be impossible. We need to know on what basis things are going to be selected. Given that likely future volume of potential instruments, whether they keep pace or not, what level of scrutiny by Parliament does the panel consider would be both proportionate and appropriate in those circumstances? Professor MacArthur, do you want to kick that one off? Professor MacArthur, I think that it really depends on what you are talking about. We might be talking about very technical amendments of existing areas of what will become retained eulog, in which case some relatively low level of scrutiny is appropriate, but we might not. We might be talking about something much more significant, because we might be talking about entirely new policy developments or significant amendments to existing areas of policy where a much higher level of scrutiny would be appropriate. I would tend to agree with Michael that we need to make the case for there being this keeping pace power in secondary legislation at all. There may be a scenario in which the Scottish Parliament or Scottish Government has no choice but to keep pace, because perhaps there will be some kind of future relationship with the EU that requires us to keep pace. If so, a power can be taken at that time, because it will need to be implementing legislation. If it is simply a question of choosing as a matter of policy choice to keep pace, it is much harder to justify this level of ministerial discretion, except for the most minor and technical changes. Of course, minor and technical changes are very hard to distinguish from more significant policy changes. We have already seen that under the powers to correct retained EU law conferred by the EU withdrawal act. There have been instances where minor and technical amendments have involved much more significant policy changes. If we are talking about keeping up with the latest decision from the EU or even possibly regulations, that might be one thing. If we are talking about implementing a new directive, we must question whether ministerial power is the appropriate way to go at all. I do not see in that case that there are any justifications of pressure of time. Directives have a very long median time, and they usually have a lengthy time for member states to come into compliance, so there is no pressure of time justification there. It is hard to see why those kind of policy choices should be ceded to the Government rather than retained by the Parliament. In that case, would that be primary legislation that you are suggesting, or would it be superaffirmative? Superaffirmative would be the very least that you would want for something as significant as that, but my preference would be for primary legislation, because ministerial powers of this nature ought to be seen as exceptional and as requiring some special justification. The analogy is drawn with section 22 of the European Communities Act, but that is an imperfect analogy for two reasons. One, we are still under an obligation to implement EU law. We will not be under that obligation at the end of the implementation period, subject to whatever the future relationship is. Secondly, the UK and Scottish MEPs participate in the formation of EU law, and we will not be doing that in future either. We will become pure rule takers. In those circumstances, it seems very hard to me to justify a power as extensive as this one in the hands of ministers. Michael Russell, do you agree with the comment? Yes, I agree with that. As far as myndfring is concerned, the Scottish Government, as it admits in the planetary notes of the bill, is going to have a big task on its hands, trying to keep up with what is going on in Brussels. That is the first challenge. The Parliament will have a similar parallel challenge, and I am not sure that it is equipped to do that at the moment. It certainly would require a great deal of resource and efforts. That is what is coming out of Brussels. Once again, I dispute my point. We need some principles in advance to know what to look for and what sort of things might be important. Michael Russell, do you think that that would be a process in which the Parliament and the Government could come to an agreement on those sorts of things in terms of what would be superaffirmative, what would be secondary legislation through a negative procedure? We have managed to do that in the past, where the Parliament and the Government have come to an agreement on how those things will proceed. Yes, it is certainly so. Of course, there are examples in other countries. There is Switzerland and the EA countries. There is Norway that has this issue all the time. It might be worth looking at that experience, particularly the experience of the Norwegian Parliament, because it is not exactly the same. Of course, Norway is obliged to implement new directives through the EA arrangement, but it still has to be transposed into Norwegian law. There has been quite a bit of discussion there as to the adequacy of parliamentary scrutiny in that case. Okay, thank you very much. Murdo Fraser, please. Thank you, convener. Good morning to the panel. I have a couple of questions just following up on the line of questioning from the convener on parliamentary scrutiny. I should just start by reminding colleagues of my register of interests that I am a member of the Law Society of Scotland, because I will be referring to their evidence of a beginning from them shortly. Just on this question of parliamentary scrutiny, the point is made both by the Law Society and the Faculty of Advocates in their submissions about the appropriateness of the powers given to ministers to introduce new rules under this bill. As is being teased out there by the convener, there is a distinction between relatively minor technical changes to existing legislation, which you would expect to be done by secondary legislation, as opposed to the introduction of entirely new policy areas, where, as the submissions say, we would be a rule taker, not a rule maker, because they have been made by an organisation of which we no longer have a formal roll-in. I suppose that my first question is how do we draw a distinction between those two parts? The first part is technical changes that might be legitimately done in secondary legislation, and the second part is major policy changes that might perhaps be better done in primary legislation, or is that even a possible thing to do? Maybe I can start with Aileen McHarg on that question. Thank you. It is a difficult thing to do, because minor and technical versus major and policy are distinctions that are, to some degree, in the eye of the beholder. In the original version of the legal continuity bill, the first continuity bill, there was a requirement that anything that amended the functions or purposes of a public authority or which abolished an existing EU function without replacing it with something else were to be subject to superaffirmative. Those could be seen as proxy for significant policy change, although they probably are not exhaustive. There are other ways in which significant policy changes could occur. Probably what was more important in that bill was the sifting provision that had been added to it. That allows the Parliament, on a case-by-case basis, to say that, hang on a minute, you are saying that this is to be subject to a negative procedure, but it is more important than that, or it is subject to affirmative, but it is quite significant that it should be bumped up a level. That procedural mechanism is probably more effective than trying to define exhaustively what is major and policy and what is not. The other thing that you could do—I would suggest that it might be another proxy, but not a perfect one—is to distinguish between directives on the one hand and regulations and decisions on the other hand, because directives tend to be used for more significant policy changes, but not invariably, because regulations are sometimes used for significant policy changes. The other point to make, which was relevant to the last question, is that secondary legislation is always suboptimal, because even under a superaffirmative procedure, there is no power for the Parliament to amend. There is always suboptimal. There needs to be some mechanism for not just shifting between different levels of secondary legislative procedure, but a mechanism for saying that no, this needs to be primary legislation and that it cannot proceed under this power. Thank you. Just before I bring in Michael Keating, I could ask a follow-up to that. The justification in the policy memorandum for proceeding in this way with secondary legislation is that the Government argues that the volume of legislation that is required means that it could not be done by primary legislation because it would, in effect, clog up the statute book or the parliamentary process. I asked the bill team last week if they could give us a number of likely new regulations that would be introduced, and they could not do that. They could not give us a guess. Do you have any sense of the volume that we might be talking about? If we were looking at using primary legislation to deal with the major policy shifts, as opposed to the technical changes, what sort of volume of bills might we be looking at? I do not have a figure that I can give you. The volume will depend on a range of different bills. One will be where the Scottish Government decides to use this power. In the spice briefing, the Scottish Government has said that it does not intend to try to keep up with every area of devolved confidence that intersects with EU law, so that takes out some. There will be all sorts of other constraints on the ability to use the keeping pace power as well, because, to the extent that those areas are replaced by EU common frameworks or by other UK legislation or potentially by new trade deals, that will reduce the area of discretion in which this power can be used. It is difficult to know what the volume is likely to be. A proxy might be to look at how much use has been made of section 2-2 of the European Community Act. That would be a starting point, but I would have thought that whatever the figure is, it will be lower than that. It certainly will not be higher than that, and it will not be the same as that, because this power will not be able to be used as extensively as section 2-2. Okay, thank you. Maybe I could ask Michael Keating just for his view on those same two questions. Yeah, that takes me back to my first point. Is the objective of this to stay in regulatory alignment as much as possible to keep the static alignment as much as prepared to sell regulations when we like them? If it is the former case, then the volume is going to be enormous. If it is the latter case, we need to know what the purpose is and what kinds of areas the Scottish Government is thinking of. Without that, it is very difficult to put a figure on it. Another point is that things that might look technical can be very salient. Little things become important because they are symbolic of bigger things, so we cannot anticipate what is going to be important politically as opposed to substantively. Certainly, there is going to be the need for some kind of sifting mechanism, both at the governmental level and at the final and crew level. Okay, Murdo. Yes, thank you. John Mason, please. Thanks very much, convener. Possibly, I do not mind, but Professor McHarg to follow on some of the things that she was saying to Murdo Fraser. Our delegated powers and legal reform committee often produce quite boring reports, but this one is quite interesting. The phrase 16 questions are not good through them all. However, one of the points that they make is just how is it possible for the Government to track all EU law? If there is not so much of it, it is always going to be impossible to follow it all and, following on from that, choose which parts to follow. It is not impossible because, obviously, it is done at the moment. There is a necessity at the moment to track what is happening in the EU and to keep up with it. The difference is, of course, that we will not be there. We will not be involved at early stages, so it will be more difficult to have a notice of what is coming. There will also be resource implications, because, at the moment, we rely a lot on the UK Government to… The member state is the one that participates at the EU level primarily—the Scottish Government does as well, but it is primarily in the UK. There is resource implications. It is not that it could not be done, it is just that it would not be terribly easy or it is certainly not going to be… it is going to be more difficult than it is at the moment. Okay, thanks. How much scope do you really think there will be for Scottish ministers to keep pace? Again, as has been pointed out by other witnesses, we will have to comply with international obligations that the UK enters into, trade deals, common frameworks, the UK internal market and other issues as well. Is there really going to be much freedom? Again, we simply do not know. It is likely that there will be significant constraints. The internal market proposals, if they are implemented in the form that appears in the white paper, will not technically prevent the use of keeping pace power, but what they will do is probably render it less useful in practice, because the effect of Scottish divergence will be overrun or overtaken by whatever happens in other parts of the UK. It is just very difficult to know at the moment what is going to happen, because there is still so much uncertainty. Professor Keating, do you have any thoughts on that? How constrained Scottish ministers will be? There will be an obvious constraint that you just mentioned. The internal market is problematic. Many of us are concerned about that bill because of the huge scope that it has, but it also adds that there is a risk of confusion if we have a rather ill-defined internal market provision that allows the UK to intervene in prescribing mutual regulation and undermining Scottish regulation. If we have trade deals, if we have frameworks, if we have these various sectoral bills, it creates a great deal of uncertainty rather than more certainty for the stakeholders. As far as keeping up is concerned, it will be important for the Scottish Government to anticipate what is coming up in Brussels, not waiting for a directive or regulation to come up, but being there at the beginning. To be in touch with stakeholders, business, civil society to see what their concerns are and to choose on the better with, it will be important for them on through trade on. In that case, yes, there could be a monitoring. It would not just be a question of the Scottish Government, but the question of policy stakeholders being involved in all of that. That said, it is a monumental task and we need to have some guiding principles. You could not just go through these things one by one and look at everything. Again, as I said before, we need to know what is important and what is less important. However, I am very worried about the proliferation of sources of regulation here from trade deals through the internal market through dynamic alignment. It could be a great deal of confusion for business and other stakeholders. Thanks very much. My final area would be going back to the question of how the Government and the Parliament relate to each other. The Government may be watching all of the regulations and picking and choosing the ones that it wants, but should the Parliament know that there are other areas that the Government is not looking at, which we should be looking at? Yes, indeed. The Parliament is not in a position to monitor everything that is coming out to Brussels, but the parliamentary committees, at least the Secretary of State for the Specialist Committees, should be aware of that. They should have a brief to see what is coming up in advance. I emphasise that. What is in the pipeline? What is worth following through rather than trying to monitor everything that is coming out of the pipeline? Professor McHarg, do you have anything on that? There is a provision in the bill for reporting by the Scottish Government on the use of the power. You could extend that to non-use of the power. Where is it not being used? The issue there will be timing. There is no point in knowing a year after the event that there was that, but we decided not to use it. That will not be too problematic in some circumstances. If the reporting is looking ahead, but if it is simply, we did this and we did not do that, that is not terribly useful. You might want to look at those reporting mechanisms and what it is that the Scottish Government is reporting on, and the time frames in which it is reporting. Is it looking ahead in those reports or is it simply a static snapshot of what has happened in a particular period? Thank you, convener. Professor McHarg, in addition to your concerns and the alternatives that you have already voiced, NFU Scotland is in particular concerned for the lack of scrutiny and the lack of process for consultation, particularly given the risk to trade from policy divergence. Aside from those considerations that look likely to produce unsatisfactory legislation, can I ask a more fundamental question of whether the bill is necessary at all? In terms of the keeping pace power, it may become necessary, but that depends on what the future relationship is with the EU. At the moment, I would say that it is not necessary. It is a choice. Of course, it is a legitimate choice for the Scottish Government to make, but it wants to keep pace with EU law. That is a reasonable thing for a Government to do. Whether that justifies keeping pace through secondary legislation, I suggest that the provisions are not justified in the breadth that they appear at the moment. They may be justifiable in terms of very minor technical amendments, but how significant and impractical an issue that is going to be, it is just impossible to say at the moment. Professor Keating? The UK Government has made it very clear that it is not going to keep pace in any shape or form. It makes its own regulations, which may or may not have the same regulation. One can understand that the Scottish Government, which has a different attitude towards Europe, might want to take a different position and might want to keep a political choice, but, again, with relation to that, in the question of the case of agriculture, for example, is it important for Scottish farmers and crofters that they should be able to keep pace with European regulations in order to get access to European markets? I would like to see more explanation of that kind of issue in the justification for that provision. What is the economic logic for it? Thank you. This is a brief follow-up. My colleague Murdo Fraser talked about whether, in examples of a volume of legislation, the Faculty of Advocates also spoke about urgent changes at short notice, which is not something that most people would think is synonymous with activities in Brussels. Do you have any examples of those? I think that Mr Ewing made a cool thing. Do you mean things that have come up at short notice? Terrifying the question in Brussels in short, I cannot think of an example. It does happen from time to time that emergency action is taken or some anomaly comes, or perhaps some ruling of the court of justice of the European Union that requires a change in policy. This thing happens from time to time, but, most of all, I think that it was a question of keeping pace with the broad-thrust policy. There is a form of the common agricultural policy that is discussed endlessly. There is no secret about where it is going. I think that it is more important policy terms to keep in touch with the broad-thrust policy. It may be almost certainly agricultural policy in Scotland and in England that are going to divert all the indications that the divergence that already exists will increase. We know that Brussels has been undergone a long-term reform of the agricultural policy. It is going on for about 20 years. The UK, England and Wales are going to have some radical changes. It will be important to take on the question of which directives and regulations it wants to keep up with. Thank you, convener, and good morning to the witnesses. There has been a little bit of discussion so far in the meeting about the relationship between this bill and the UK internal market white paper and trade policy. I wanted to explore that a little bit more and talk about whether it is in fundamental conflict or if it can be made to interact. From my perspective, it looks as though it is incompatible. It looks as though the purpose of the Scottish Government is to keep pace and the purpose of the UK Government is to diverge from Europe to undercut Europe on standards and to impose those lower standards on Scotland, either through trade agreements with other countries or through giving the private sector the right to challenge regulations of the internal market proposals. Is that too ungenerous or too sceptical an analysis? Is there a way in which the two sets of apparently conflicting agendas can be made to work together if the UK internal market proposals come forward in roughly the shape of the white paper and are legislated for? Does the bill pass in the Scottish Parliament? Can it be made to work together or are they fundamentally at odds? Again, we just do not really know how much divergence there will be in future. The UK Government has said that it intends to maintain high standards of environmental protection and animal welfare and so on and so forth. It has said these things. We do not yet know whether that will be borne out in practice or whether there will be significant divergence. What is clear is that if trade agreements require a divergence from EU standards, those trade agreements can be made binding on the Scottish Parliament, even if they affect those areas. As I said, the internal market provisions are more nuanced than that in that they do not deprive the Scottish Parliament and Scottish Government of the power to diverge, but they will tend to undercut it in practice because in practice the standards that are applied in the largest part of the UK internal market, i.e., England, will be able to be—goods and services complying with those standards will be able to be sold in the other parts of the UK. That is a question of practical effect rather than being undermined in principle. There is no incompatibility, I do not think, with the Scottish Government and Scottish Parliament having some discretion to maintain alignment with EU law, whereas in other areas it is bound to comply with international trade agreements or it is de facto driven by the English standards. The question is what is the extent of discretion and what the concern is is that the area of discretion is being whittled away very significantly. However, the idea in principle that there might be convergence in some areas and divergence in other areas is devolution. That is inherent in the idea of a distinction between reserved and devolved matters. We are talking about where the balance between those things lies. You could say that it is inherent in devolution, but if the evidence that we have heard is correct that the UK internal market proposals do in effect create new reservations, it seems as though what we currently recognise as the devolution arrangements would be fundamentally changed and unable to work in the way that they currently do. Right. We are talking about the balance between the de facto ability of the devolved institutions to diverge and being constrained to a UK-wade standard. That is where the issue lies. It is important that we focus on that as the issue. The issue is not whether Scotland is able to maintain alignment with EU law whereas England might not want to. That is fair enough. There is no problem about that. It is how much scope there is going to be for divergence in practice. Professor Keating, could you address the same issues, please? Yes. It is both of the internal markets that are going to be from the white paper. It seems to presumably add something to the frameworks that are being negotiated, so it is going beyond the frameworks. It is going to be wider in scope, just how wide in scope is not clear at all. Potentially it could be huge. The key provision is about mutual recognition, which means that if a good is recognised for sale in one part of the UK, it must be recognised for sale in other parts of the United Kingdom. It is based upon the EU mutual recognition principle, although it is actually a part of the misunderstanding of the EU mutual recognition principle. That is why there is a concern that it might undermine Scottish standards, because goods could be placed on the market, approved in England, in consequence of a trade deal with another country, and then be available in Scotland. We do not know how wide that section is, because in the EU, things are taken out of the market. They are not part of the relation. We do not know just how wide that is going to be, whether we scope to diverge from internal market ideas because of environmental concerns, for example, to go back to the question of agricultural policy. We simply do not know. The other critical point is how the internal market is going to be administered and negotiated, whether it simply will be adopted by the UK Parliament, which is what the white paper says, and be applicable everywhere, or whether it would have to be negotiated with the devolves as the frameworks are. That is a big point of conflict between the UK Government and the Scottish and Welsh Governments at the moment. The second point is the fundamental one. You started by saying that the main difference is the scope. However, if the UK Government and the devolved Governments wished for common frameworks with much broader scopes than they are discussing, they are free to negotiate them, enter into them, then later to change their policy, revise them, renegotiate them and so on. That is based on consent and mutual agreement, whereas the internal market proposals are about the imposition by one Government of something that others simply have to roll over and accept. It is the fundamental nature of it. The UK Government will define what the internal market means, because its objective concept is something that defines what it means, and it will define the modalities of them implementing it, mainly through mutual recognition. The Environment, Climate Change and Climate Change Committee last week carried evidence that under the EU continuity bill, it is an open question on whether Scotland keeps pace with the EU, adopts similar standards to the rest of the UK or takes a completely different tack. Given the discretionary powers of the Scottish Government to keep pace with some, but not all of future EU laws, is there a risk that Scotland could end up in some kind of regulatory no-man's land whereby we are out of sync with EU regulations and out of sync with regulations in the rest of the UK? Perhaps Professor Kidding could take that question first, please. Yes, that is. That could be a great deal of not about what the industry is saying, but how they are interpreting it in the case of conflict. We don't know where that will end up. It could end up in the courts. One problem that we have got in intergovernmental relations generally is that we have really a very poor capacity to resolve these issues. We have no independent source of intelligence or analysis of these kinds of things. Repeatedly, we have said in this committee and other committees that that is something that is missing from the whole picture. However, it could make things very difficult, and it could create legal problems, and it could probably just wonder about what it could do, and that is what I mean on that. However, in court, your case is where the law is not clear. I think that we have got most of that in terms of your answer, Professor Kidding. It was beginning to break up a bit, so we will need to watch that. At some stage, we might just have to cut your camera, but leave your sound to make sure that it does not continue. I think that it is okay now, but we are just about okay. Dean, sorry. I got most of that. Perhaps I could ask Professor McHarg to respond to that question as well. Two things. It is a political choice, whether alignment with the EU, the UK or some third way is the best way to go. That is a matter for the Government that is subject to scrutiny by the Parliament. Under the mutual recognition principle, we must remember that that works both ways. Anything that is compliant with Scottish regulation will also be able to be filled into English and Welsh markets. It is not that goods would be kept out of the market. It is more a question that we could not keep non-compliant goods out of our market, if that makes sense. The risk of a regulatory no-mans land is not that Scottish goods and services would be excluded from trading in other parts of the UK. The mutual recognition principle is intended to ensure that they can be. That is helpful. If I may follow up with a related question and thank you for those responses. If Scotland keeps pace with future EU law, which, after all, is designed as a compromise between 27 EU member states, is at risk that the rest of the UK will develop more appropriate and competitive regulatory systems that are more relevant to the needs of the UK internal markets, thereby putting Scotland and businesses and consumers here at a comparative disadvantage? Is that for me? You are getting into questions of economic judgment here. What is or is not appropriate is a question of judgment that I am not really qualified to answer. I suppose that just in terms of the technicalities of the keeping pace power, it is a power, and it is not a duty. There is no obligation on the Scottish Government to use that power and no obligation on the Parliament to approve the use of that power if it is felt to be—the rules being implemented are felt to be inappropriate to Scotland's circumstance. Professor Kidding, any thoughts on that question? Yes. It is a matter of judgment as to what is economically competitive, but in any policy-making system we have got to trade-off between the needs of producing at low cost, maintaining environmental protection and social considerations, and it is a legitimate choice for the Scottish Parliament to make and for the UK Parliament to make in part of England how that balance is tracked. If they do not like it, they can just book the Government. I think that Professor Kidding, we are going to cut your camera so that we can hear you properly, because we are getting a fair bit of disturbance. Alex Rowley, is that a sup that you wanted in that area, Alex? No, I will come back to you in that case. Jackie Baillie. Thank you very much, convener, and our two guests have covered some of this in previous responses to different questions, but I wonder whether we could bring it all together. Obviously, the UK and devolved Governments will no longer have a formal role in influencing the EU policy-making process, but I am wondering what are the implications therefore for the keeping the pace power in the bill? I am happy to go to Professor Kidding first. Sorry that you said that. What are the implications of the keeping the pace power in the bill, given that both the UK and devolved Governments will have no influence whatsoever on the EU policy-making process? That is highly problematic. This is a position that, as I mentioned before, Norway has found itself in that it has to take policy. It does not have a way of making policy. There are various ways in which Scotland could try and get involved in policy networks, not so much as a Government, but through trade associations, business associations that are consulted in Brussels. It will be very important to stay in those networks, as well as the Governmental networks. Certainly, it is the policy taker, but it is still making the decision whether or not to adopt the regulations from the EU. The bill is quite clear about whether the Scottish Government is deciding to start at your instrument or whether the Parliament should properly decide these things through primary legislation. I think that I would make the same point that the reduced influence and scrutiny at the EU level has to be compensated for by increased scrutiny at the domestic level. The thing that I would stress is that the power is not a duty, or at least at the moment it is not a duty. Therefore, whereas our ability to reject regulations implementing EU law might be thought to be somewhat hypothetical, the ability to reject regulations that are made under this power is not hypothetical, because it is a choice, it is a political choice. I think that it is incumbent on the Parliament, as it scrutinises the bill, to make sure that, if this power is to remain, the provisions for scrutiny have to be appropriate to the nature of what is being proposed and sufficient to allow the Parliament to make that democratic decision about the content of the statute book. Thank you very much, convener. Thank you, Jackie. Angela Constance, please. Thank you, convener, and good morning to our panel. The evidence that the committee has received thus far and what we have heard this morning, I think, very helpfully separates out some strands. On the one hand, we have really important technical considerations around process and scrutiny, but, on the other hand, we have the political motivations and considerations, which I would contend are very important in and around Scotland's future relationship with the EU, our economy, the UK Government trodden over the devolution settlement and what amounts to a power grab. I am not expecting the panel to comment on my political views. When I read the blog that Professor McHard contributed to in July, along with others, it gave the history of continuity bills past and present. There was a bit of a vibe of despondency that, given what happened with the first continuity bill, the authors said that they had a good idea of how future disputes will end. From my perspective, I do not want my Government to be sitting back and just accepting that they are going to be overruled at every twist and turn. I wonder if Professor McHard and Professor Keating could perhaps summarise what would be a better way for the Scottish Government to achieve. It is very legitimate political interests and considerations. Is there a better way to mitigate some of the risks that you have outlined thus far, particularly Professor McHard's block? That is a big question. If we go back to the entirety of the Brexit process, what this has demonstrated is that it was true all along that the UK Parliament remains sovereign and that, if it wants to have its way, it can do so. Any consent provisions, any commitment to negotiation or negotiated solutions operate at the political level rather than the legal level. That requires mutual commitment to make a system of consent and negotiation work. I think that what we have seen over the past three or four years is the breakdown of that mutual commitment to proceed by consent. It is worth pointing out that, even in relation to the common frameworks process, the Scottish Government and the Welsh Government's preferred approach to the achievement of UK frameworks, because that is a negotiated procedure, even that is underpinned by the possibility of coercion. In the EU withdrawal act of 2018, it is possible for the UK Government to enact so-called freezing orders, which prevent the exercise of regulatory discretion by the Scottish Welsh and Northern Irish institutions. Those have not been used yet, but that background threat of coercion remains. It is a reminder that, in all that process, the UK Government, through its ability to enact legislation in the UK Parliament, has the upper hand, and that is just the inevitable feature of the current constitutional settlement. Does that not suggest that the UK Parliament is broken? I think that that is beyond the remit of this particular session. I appreciate that. Does Professor Keating have anything to add? To reveal something that we already knew about the UK constitution, and the lacunae and the derivation settlement of 20 years ago preserved the principle of parliamentary sovereignty, which is not quite the same thing. That integrity of Westminster to impose its will whenever it wants to. There has been a slippage that parliamentary sovereignty has become. Westminster can have the last word on everything, and that is good. When we were in the European Union, we had the idea of shared sovereignty. Sovereignty is shared amongst the member states of the European Union, and that was a principle that could apply within the UK. Brexit is all about restoring sovereignty at the centre, the sovereignty of Westminster or the unitary British people. Increasingly, since the referendum, we have seen Governments in London interpreting the UK constitution in a very unitary framework. Brexit is part of that. We decided that the British people decide or whatever the directive therefore everything follows. That has not introduced any formal constitutional change, but it has revealed the weaknesses of the devolution settlement and the ability, potentially, for UK Governments to revel. Sharing of power, sharing of sovereignty, back to an old-fashioned notion of Westminster supremacy. Thank you, convener. I have no further questions as the panel has described the current power and balance. Alex Rowley, please. Yeah, thanks, convener. Just a quick question, really more about the timing of this bill. I get that there are those who would argue that there is absolutely no need for this bill, but if we took a leap of faith and said that we need some kind of bill, given the uncertainties, the maybe's eye and the maybe's no approach to this bill, given that we have a white paper on the internal market but we don't make up what the legislation will actually look like and given that we really don't know where we're going to be in January next year in terms of having a deal with Europe, not having a deal with Europe. Is there a reason that you would have to bring forward if you believed that you needed this bill and you needed this legislation? Is there a good reason for doing it now, or is it legitimate to argue that we should actually wait and see what position we find ourselves in at the beginning of next year? If you believe that you need this power, it's sensible to be prepared. The minister's Scottish Government currently has powers under the EU withdrawal act to modify retained EU law, but that expressly says—or to correct deficiencies in retained EU law—that expressly says that deficiencies do not include failure to implement new developments in EU law. That power clearly doesn't extend to this keeping pace provision. Those powers to modify retained EU law will expire two years after implementation day. If you think that that is necessary, it is sensible to have it in place for when the implementation period ends, the European Communities Act will cease to be enforced, and certainly in relation to the other provisions of the bill in terms of environmental protection, the framework of EU enforcement will fall away. Professor Keaton, do you want to say anything before we move on? No, I agree with what I'm saying. Okay, thank you very much. Nobody else has indicated that I wish to contribute in this particular panel session, so I thank Professor Keaton and Professor McArg kindly for their evidence today. I'm very grateful for that. I'm now going to suspend for two to three minutes just to ensure that our next panel is in place and is ready for the next session. Thank you very much. Okay, I welcome now our second panel of witnesses to the meeting. First of all, Kenneth Campbell, QC, from the Faculty of Advocates, and Michael Clancy, who is the director of law reform at the Law Society of Scotland. I remind MSPs that they should direct their questions to a named witness. I don't know how much of the previous evidence both Kenneth and Michael were able to hear, but we were having a discussion about the appropriateness of the subordinates legislation for keeping pace power where it was adequate. I put my first question to Kenneth because, Kenneth, in your submission to the call for evidence on page 2, you said that, as far as the utilising statutory instruments are concerned, if I've got this right, the faculty considered that there was some force in the policy memorandum for following that direction. Given that the UK government, in policy areas such as fisheries, agriculture and environment, and the bills that they are proposing, will allow UK ministers to introduce statutory instruments in policy areas that were previously within the competence of the European Union. Those provisions are not remarkably similar to what are being proposed in the continuity bill at Holyrood, and they are quite wide-ranging. Kenneth, would you like to kick that off? I have not had the opportunity to look at the detail of the fisheries bill, but I am aware in general that there are powers of the kind that you describe. I imagine—although I am not privy to the UK Government's thinking about that—their rationale for taking powers of that kind is similar to the rationale that Scottish ministers have said underlies the form in which the powers are sought in the bill. One can see why that might be. As you suggested, convener, there is something in the rationale for taking powers by a subordinate legislation, in part because we really do not know a number of things about the areas in which those powers are going to be used. I heard part of the earlier session this morning, and I know that that is something that you discussed with the witnesses, and there may be questions for Michael Clancy and myself about that a little later this morning. Michael, would you like to reflect on that? Thank you, convener. I suppose that the point about whether UK ministers would adopt EU law in the fashion that is suggested under the bill before us would depend on the powers that are in the relevant legislation. For example, if a bill that operated in an area relating to EU law was a substantial corpus of EU law, that might not be the same in every instance of every piece of legislation that relates to EU withdrawal. For example, in the agriculture bill, the powers are pretty specified to those relating, for example, to direct payments or other such things. Of course, we have seen that the LCM goes through the Scottish Parliament relating to the red meat levy, and regulation-making powers are pretty limited. Sorry, Michael. Sorry to interrupt. We got you to red meat levy, and then it started to fall over a bit there. Could you start from there again? Apologies. Yes. I will cut to the chase. It would depend on the regulation-making powers in the parent legislation that would enable UK ministers to take a view as to whether or not they would be able to use EU law. That having been said, there is a point at which EU law and domestic legroom law might be very similar in their terms, and they arrive at that quite independently, or there could be, in a way, which would enable UK ministers here to be influenced, as indeed Scottish ministers might be influenced by developments in EU law, which they would think would be useful for the people of the UK and the people of Scotland, as the case requires. Of course, not only do we have those specific bills that are suggested in the areas of fisheries, agriculture and the environment, if I recall correctly, the EU withdrawal act itself had some statutory instrument powers that the UK Government gave themselves, which are pretty wide-ranging, where they could, if they chose, chose, much like the Scottish Government, saying that they could choose whether or not to implement similar EU law. The UK Government could do the same under some of the provisions on the EU withdrawal act. Well, remembering that it is maybe under the withdrawal act, but it is not under the European Communities Act, so it is not, in a sense, implementing EU law in the way in which it has been implemented in the past. It is implementing EU law as a matter of choice, rather than as a matter of obligation, and I think that is quite an important point to emphasise, and that then gives whichever Government chooses to pursue this path the opportunity to depart from the law which the EU is making at any one time, and to tailor it to the situation and particular problems or issues that the Government, whichever Government it is, is facing at the time. Okay, thanks. Of course, that is the same situation for the UK and for Scotland, because the Scottish Government is saying that they will choose whether or not they will bring forward implementation. I am just touching on those areas at the beginning in a general way, because I know what others will want to come in on some of the specifics. You will also be aware that the bill has been considered at the same time that consideration has been given to the trade bill and the UK Government white paper on the internal market. To what extent, therefore, is it likely that the power to keep pace with the EU law will be undermined by future restrictions on devolved competence by the UK Parliament or UK ministers? Do you want to pick up on that first, Kenneth, and I will come back to Michael? Yes, I think that this is an interesting and important issue. I suspect that we haven't seen what the shape of legislation to implement the internal market will be, though we have a trade bill currently before the UK Parliament. One can see some of the issues that you describe, convener. I suspect that there may not be formal provisions that, as it were, preclude exercises of powers of the kind that are here in the continuity bill. However, the practical effect of the interaction of the three pieces of legislation—that is to say, the continuity bill, the trade bill and whatever shape legislation takes to implement the internal market—may be in some sectors to limit the practical value of the powers that are sought in the continuity bill. It is difficult immediately to give an example of where that might happen, but it seems given what one can discern about the policy drivers that that is likely. Michael, do you want to start just so that people who are watching our proceedings are aware? We have cut the cameras to both Kenneth and yourself, Michael, to ensure that we can hopefully boost the signal via audio in case those who are watching wonder why we can no longer see it. Sorry to interrupt that, Michael, but it is not as important to get that said on you go. Thank you, convener. The constraints on the powers in the withdrawal from the European Union continuity bill are quite a number, actually, because it is not simply such constraints as may be within the trade bill, but within any trade agreements that are made in the future, there may be constraints on the power of the Scottish Government to act. There might all be issues around and about the internal market, as we heard in the first session, and whatever the internal market bill contains. Of course, there are the self-evident constraints of working within the competence of the Scottish Parliament and Scottish ministers. This is a bill that will require, I think, some careful navigation. It is one of the few bills that I have ever seen that sets out the objectives of the bill, the purpose and effect in section 42, which is specifically to make provision in connection with the withdrawal of the UK from the EU in consequence of the notification to withdrawal. As far as any provision of this act would, if it were in effect before the relevant time being compatible with the EU law, the provision is to have no effect until the relevant time, which is when the transition period finishes. That, I think, sets out the constraints within the bill, in addition to the technical ones that we might come to later, such as not making criminal offences, not exceeding the competence of the Parliament and such. I think that that is where I sit on the extent to which this is a wide bill or a narrow one. Thank you, Michael. I have intentionally asked wide-ranging questions at the beginning to allume my colleagues to come in with some more of the specifics. De Mordo, over to you. Thank you, convener. I have lots of questions around Parliament scrutiny, but I wonder if I could just start by asking a follow-up to the question that the convener asked about comparisons with equivalent UK legislation. Maybe I could ask Michael Clancy this in the first instance. Is there a distinction between what UK legislation is doing and what this bill is doing insofar as the UK legislation is focused on retained EU law? However, this is something different in quality. This is a keeping pace measure that will seek to import new EU laws into Scots law, and that means it is different in character. Is that fair? Yes, I think that that is a fair assessment, because the EU would draw that 2018 is precisely that. It is to remove the European Communities Act 1972 sections, which oblige compliance with EU law, and to establish the domesticated EU law, which we understand is retained EU law. That is the schematic of the withdrawal act of 2018, and that is different from the provisions of the bill, which, as you pointed out, are focused on ensuring that the Scottish Government has the option to adopt provisions corresponding to EU regulations, tertiary legislation or EU decisions, etc., as defined in section 1 of the bill. It is also quite interesting if I might also bring in at this point the reference to these elements, regulations, legislation, decision or directives, having effect in EU law after IP completion day, which is, of course, the 31st of December 2020. If one looks for the definition of EU law in the interpretation part, or part 1, in section 8, EU law does not appear there, but it does appear in section 42, which I expressed my delight at, where it refers back to the meaning given in the Scotland Act 1998 section 126 subsection 9. The definition is applicable only there for the purposes of section 42, not for part 1. That leaves the question as to what do the Government mean in section 1 when they say that, as these aspects of legislation have effect in EU law, and why do they not apply the definition in the Scotland Act to the provisions in part 1? I hope that we are all following that, colleagues. We may be able to ask the next question to yourself, Michael Clancy, to bring in Mr Campbell afterwards. I do not know whether you have caught the first session with the witnesses, but, essentially, I will ask the same question to you both by asking, which is around the levels of parliamentary scrutiny. You make the point in the Faculty of Advocates submission that those provisions will probably be in the rule taker, but not a rule maker. I think that we all accept that there are areas of retained EU law that will need minor amendment, modification, post-Brexit, and doing that by secondary legislation may well be appropriate, but the more contentious area is around the import new EU laws on which we have not been consulted or been involved in the making of to Scots law, and that is a different order. I suppose that my question therefore is, is it appropriate to do that latter job by secondary legislation, as is currently being proposed? If you have any on your view on that, how easy is it to draw a distinction between minor technical changes that might be done by regulation and more substantial policy changes that should be done, at least by, for example, a superaffirmative procedure, or perhaps by separate primary legislation? Maybe start with yourself, Michael Clancy. Thank you very much, Mr Fraser. I think that the bill is quite clear that Scottish ministers are being rather loaned the power to make this law by Parliament for a specified period of time, of course, which is in the bill of 10 years, with other accruals of five years up to their 10-year period in addition. I think that it is important that we recognise that Scottish ministers will be making the choice of which legislation to align with, but we will not know unless there is some additional provision as to which legislation Scottish ministers have decided not to align with. That is not given to Parliament to decide at all that it will be a ministerial decision. I think that that is the uncharted territory that this bill does not lay there and which one might want to explore at a future juncture with the appropriate people. Given the concept of scrutiny as being something that is dear to the Parliament's heart and an essential part of its function, I think that the bill may not satisfy the Parliament by its restraint to secondary legislation, whether by affirmative or by negative resolution procedure. The previous legislation, the legal continuity bill of 2018, should be adopted in this context, and that is that at a minimum superaffirmative subordinate procedure should be applied to these cases, where there is a substantial policy consideration in the EU regulation testary legislation or decision as the case may be. If there is an insubstantial application of the EU legislation then the case might be made for affirmative or for negative procedure. It is clear also that there is no indication of when Scottish ministers would use primary legislation and that is one of the options in keeping pace is to use a bill rather than regulations and the law society thinks that this should be an option which Scottish ministers are quite clear about being able to use and set out the circumstances and criteria which they would apply when seeking to do so. To take the last part of your question first, how easy it is to draw a distinction between a minor technical amendment and something more substantive. In terms of defining that on the face of the bill, I think that from a legal point of view that is quite difficult. Of course, it is the sort of thing that we might feel that we would recognise if we saw it, but that is rather different from defining it in a useful way in which it is going to assist both ministers in deciding the way in which they are going to introduce legislation and the Parliament in taking an appropriate view about scrutiny. That is the harsh practical reality about that. I suspect that many legislative instruments are likely to be relatively technical in the sense that they build on existing policy choices. That is the sense that I have of a proportion of the existing legislation implementing EU obligations. Other witnesses have rightly pointed to the more difficult class of cases where there is a new policy direction. I agree with what Michael Clancy said about the need for a more exacting form of scrutiny for those cases. The superaffirmative process that is not present in the bill at the moment, which was in the previous continuity bill, might be one model. The wording of section 1 of the current bill is permissive, so, in some circumstances, it would be open to Scottish ministers to introduce primary legislation that I suggest. The real issue is how could the criteria for that choice be defined. Here, the difficulty—I think that this is a genuine difficulty—is that I just don't think that that could be exhaustively done because of the range of policy competencies that the EU currently has and which, in the future, it might acquire. A question that immediately suggests itself would be, should the choice about the form of legislation be tied to existing policy—in other words, should one say, well, if a proposal is made to change an existing policy area, that requires a particular lack of legislation. That seems a rather blunt tool, and I suspect that that might give rise to unforeseen consequences. There is a real difficulty here. That said, the type of changes to the law that is envisaged by section 4-2 of the bill for which the affirmative procedure is to be invoked is, obviously, extremely important. That might be a starting place. One might think that some of those actually require something more than simply the affirmative procedure, but there would be room for argument that they should have the superaffirmative procedure. I think that that is probably all that I want to say about that one. John Mason, please. Thank you very much, convener, and thanks to the witnesses for what they have said so far. I am focusing on some of the points that the DPLR committee raised. In the first place, given the volume of EU law, do you think that it is possible for the Scottish Government to keep track of all that, given that we do not have to? It is partly a question of resources. I am sorry, I do not mind. Mr Keating, first point perhaps. Thank you very much indeed. I am glad to say that you did not say Professor Clancy. That was very confusing. It is certainly something that I will never attain. It is a very interesting question about monitoring EU law. As you will see from our submission, the Law Society of Scotland collaborates with the Law Society of England, Wales and Northern Ireland in maintaining an office in Brussels, where we employ six people. That is focused on horizon scanning, interaction with the European institutions, discussion with commission officials and others and arranging meetings for those of us who have something to say in the European arena. It is quite a big job and it is not a cheap job to do that. We cannot cover everything that the European institutions decide to look at. That is underscored by the type of work that solicitors do. We might have an idea of making sure that we are following EU family law developments or developments in relation to anti-money laundering, some aspects of criminal jurisdictional law and civil judicial cooperation. These are in the typical things that we have been looking at over the years, but it is only a small portion of the EU output. I am sure that the Scottish Government has been looking at this. It would be remiss of it, had it not been, in terms of every commission's work programme. The current commission work programme, which has of course been thrown off course by the coronavirus crisis, tells us that there are 44 work streams in the EU under this particular work programme, which will result in legislation in almost every one of those areas. I can send on a copy of the commission work programme for the committee's interests. It is very broad indeed. It takes account of things like cultural development, the green agenda, environmental matters and others like that. That is quite a job for the Scottish Government's office in Brussels to be looking at those kinds of things with a view to highlighting those that it would put to the Scottish Government as germain to be enacted into Scots law by the powers in this bill. There would have to be a lot of thought, a lot of resources and a lot of time devoted to that, both in Brussels and in Edinburgh. I appreciate that. Before I come to Mr Campbell, where does that leave the Parliament and the committee? The point was made already that we may not know what is going on in Europe, and are we totally reliant on the Scottish Government to tell us what it wants to copy, or should we also try to follow what is happening in Europe? It is difficult to do it exclusively from abroad, as it were. The UK Parliament maintains representation in Brussels, but the Scottish Parliament gave up its representation in Brussels quite some time ago. I remember maybe 10 years ago giving evidence to the European Affairs Committee in the Parliament alongside Ian Duncan, who was the Scottish Parliament's rep in Brussels, now Lord Duncan of Springs Bank. It shows you where you can go if you get a job doing that work for the Scottish Parliament. Unfortunately, the Parliament does not have that representation in Brussels any longer, but that may be something that, paradoxically, at a time when the UK has left the European Union, the Parliament may want to consider how it monitors legislative change in Europe and what resources it wants to devote to that. I was just going to point out that, as I said, the legislative agenda had been thrown off course by the coronavirus crisis, but nevertheless, since the start of this year, on coronavirus, the European Parliament has issued 32 regulations, 14 decisions, and one directive. That gives you an idea of, even in a time of stress, the amount of legislation that the institutions can produce. Okay, thank you very much. Mr Campbell, do you have the same kind of view of the quantitative legislation? Yes, broadly I do. Michael Clancy has identified, in part of his answer, a range of areas in which the law society takes an interest in detail, all of which are, of course, within the competence of the Scottish Parliament. There will be others, even if only half of the 42 work streams of the commission fall within devolved competence. That is still quite a large number of areas to monitor. I quite agree with Michael Clancy that experience shows that being on the ground in Brussels is the best way to develop early awareness of the direction of future legislation. Now, it is a matter for this committee and for others in the Parliament to decide whether the parliamentary representation is the best way to do it. There are, of course, pan-European networks of interest groups and stakeholders, the Scottish component of which the Parliament may already engage with. That might be a source of useful information about on-going developments in Brussels, but I suspect that Michael Clancy is right that it may be that there is no substitute for actually being there. Okay, thank you very much. If I could stay with you, Mr Campbell, we have talked to the convener already talked about some of the constraints that would be on Scottish ministers. I noticed in the evidence that was submitted from the faculty of advocates that you said that we cannot have reciprocal agreements. I just wanted to get your confirmation that that is the case. For example, with the arrest warrant or the health insurance card, is that definitely not possible for Scotland to have if the UK does not want it? That is our view, and that is because the EU enters into the reciprocal arrangements of that kind with third states, and Scotland is not in that position. However much they might wish to do that, there would be practical reasons why they could not. Okay, thank you very much. My final point for me, convener, is the whole question of how broad section 1 is. My impression from the evidence that you both submitted was that you are quite happy that it should be broad, and it cannot really be too specific, but I think that we have other people feeling that maybe it should be more specific. So can you give me just something on your thinking of that? I think that the choice about alignment or not is a policy choice. Once you take that decision, because of the breadth of existing policy competence, first of all on the part of the EU and then secondly on the part of the Parliament and the Scottish Government, the starting point is that a broadly defined power is necessary, because we cannot foresee the direction of policy within the EU, particularly as Scotland and the UK are no longer part of that policy process. Okay, thank you very much. Mr Clancy, if you can give you a view on that, and I think that he also wanted to say something about reciprocity, if I'm saying it correctly. Oh yes, I understand that, and I agree with what Kenneth Campbell said about reciprocity. However, I think that it's quite difficult in certain instances within devolved competence for Scotland to even contemplate reciprocity. Firstly, because Scotland is not a state and therefore the EU will deal with states and create reciprocal arrangements with states, but with elements of states, as it were. Secondly, some of the issues such as the European rest warrant are considered to be integral to the European Union and quite difficult to extend beyond the boundaries of the European Union. For example, in Germany and some other countries, there is a constitutional prohibition on extradition to such countries. I think that that's quite important for us to realise that reciprocity is not necessarily in the gift of the EU, because member states themselves may have their own requirements which prohibit that kind of agreement. On the point of the brids of section 1, yes, as I've said, it's based on section 2 of the European Communities Act 1972 and details all the various types of legislation which Scottish ministers may by regulations bring into Scots law, but there are constraints which lie outwith the terms of section 1. That imports the policy decisions that Scottish ministers may take in deciding which legislation to apply section 1 to. That's a political question on which the law society may not comment, and the other constraints that we will discuss in the previous session and earlier in this one. Thank you. Thank you, John. Alexander Burnett. Thank you, convener, and if I could address Michael Clancy first on my question. Importantly, you've said that this bill is very much about a choice, not an obligation, and in the previous session we heard many of the problems, drawbacks and alternatives with what's being proposed. On top of that, bodies such as NFU Scotland voiced a concern over the lack of process for consultation, particularly given the risk to trade from policy divergence. Can I go back to a more fundamental question of whether you think that this bill is necessary at all? Of course. That's really a question that you should raise to Scottish ministers. The other ones that say that the policy for bringing forward bills is not for the law society to comment upon the necessity or not of a bill. I think that our comments are focused on if the Parliament wants to legislate in this way, then there are certain things that have to be taken into account, and one of them is the lack of any kind of democratic trace in terms of Scotland or the wider UK or an involvement in the creation of future EU law. It's quite obvious that no elected person from Scotland or the wider UK will have voted on future EU law, and that is a significant issue when wanting to then enact that law in Scotland. That's why appropriate scrutiny, proper consultation and all the engagement that goes along with those concepts is important in making sure that when Scottish ministers bring forward proposals to legislate, as they might do, I understand that the people of Scotland and the Minterians and stakeholders broadly have the opportunity to make their views and to know about that legislation. As with the law society and the Faculty of Advocates in terms of not having a position about policy decisions that are at root, I agree with all that Michael Clancy went on to say about the operation of the legislative process, and I don't think that I want to add to anything that he has said about that. Thank you. I can understand why you wouldn't comment on the politics of it, but is there any actual necessity for it was my question? Well, having taken a policy choice to maintain alignment with the EU, then a process for doing that is necessary, and the bill is the means by which the Scottish Government seeks to do that. Thank you, convener, and good morning to the witnesses. I am aware that I might be about to ask you to again stray into areas that you wouldn't be comfortable with. However, I was discussing the potential interaction with or conflict with the UK proposals on the internal market, if legislation on that comes forward in the way that it is being proposed, or with potential future trade agreements, whether the Scottish Government's bill that we are talking about today is compatible with those other aspects of the context that we are working in. You might not be in a position to comment on the generalities of that, but the UK internal market proposals cover, as part of their scope, for example, issues around the regulation of professional qualifications, and potentially issues that would impact on the provision of legal services. Perhaps specific to those aspects, what issues or problems do you foresee arising if there is a conflict or mismatch or misalignment between the UK-wide system for recognising professional qualifications and a Scottish system that emphasises keeping pace with the EU? Would that have potential unpredictable consequences? If there was such a conflict, where should it be resolved? Which Government should be in a position to decide whether the public benefit of the approach that they wish to take outweighs any negative consequences in terms of a mismatch between the two systems? Can we come to Mr Campbell first of all and then ask him? Yes, thank you. Even confining it to specific areas, that is a very big question, a very important topic that you raised. The regulation of the professions is something that the faculty made observations about in a submission to the UK Government about in response to the internal market white paper, and I am happy to arrange for a copy of that to be sent to the committee if that would be of assistance. That would be helpful, yeah? Okay, because there are currently arrangements for recognition as between or cross qualification would be a better way of describing it as between the parts of the UK. There are provisions currently for recognition of professional qualifications from other member states in the EU, which have as their origin in EU legislation. The issue is a real one. It is not confined to the legal profession as I am sure that members of the committee are aware that there are a number of professions that are regulated and whose qualifications are cross-recognised in that way. The question then is there the possibility for conflict? We do not know the shape of the internal market legislation at the moment. The white paper published by the UK Government suggests a number of things about respect and equivalence, but quite the form in which that will be enacted in legislation remains to be seen. However, in principle, there is the possibility of conflict between legislative choices made under the continuity bill and under internal market legislation. How should those be resolved? I heard in the earlier session Professor Keating talking about intergovernmental relations and the weaknesses of processes that are sometimes evident. What I would say about that is that one would hope for there to be a clear and explicit process for resolution of the choice of who is going to legislate or how differences between regimes, one crafted by the UK Government and Parliament, and one crafted by the Scottish Government and Parliament, would be resolved. At an earlier stage, it had appeared as if the common frameworks were to be the tool for that. However, the relationship between the common frameworks and the internal market, as described in the white paper, seems to be not entirely clear. That is a matter that perhaps bears further scrutiny. That is all that I want to say about that. There is some masterful understatement going on here. One would hope for an arrangement that can resolve conflict, but, at the moment, would it not be fair to say that that is a pretty far-off hope? Are you asking that to me or to some of the witnesses, Patrick? Follow that up with Mr Campbell and then I will come to Mr Clancy. I think that all I can say in response to that, Mr Harvey, is that the white paper on the internal market is quite opaque on this issue. I think that it remains to be seen how that issue plays out. Okay. Mr Clancy might want to address the same issues and perhaps going beyond just professional qualifications into wider aspects about the provision of legal services, which the law society obviously has an interest in that topic. Is there the potential for conflict? How should those conflicts be resolved if they arise in terms of the market for legal services? It is a very interesting question, Mr Harvey, or a set of questions. I am not entirely sure that we have got long enough to explore them all sufficiently deeply. However, let us give it a shot. As Mr Campbell has indicated, there is provision in the law at the moment for intra-UK transfers. We have a set of qualified lawyers' assessments, which allow lawyers from all parts of the United Kingdom, such as Barristers or solicitors from England, Wales and Northern Ireland, to Channel Islands to be able to re-qualify into Scotland. That has been a very settled part of the law for some considerable period of time. In fact, I remember dealing with the Law Reform Miscellaneous Provisions Scotland Bill in 1990, which had provisions about intra-UK transfers. I am not sure the extent to which the proposed consultation on mutual recognition and international qualifications will apply to the legal profession. I think that that is still to be provided. The consultation has not been issued. There is a one paragraph reference to this in the paper on the internal market. Therefore, it is probably an opportunity to try to dip into that and see whether there is an issue that is germane to the question that you ask about conflict. There may be conflicts dependent upon what the internal market bill provides. We know that the UK Government wants to make sure that there is a market access provision, which is determined by the two principles of mutual recognition and non-discrimination. That will apply to goods and services. Services are currently governed by the services regulation, which is part of UK law. It is fully adopted into UK law. I think that the services aspect, no matter what services we are talking about, could be accountancy services, services of other descriptions or IT services. For example, there might be a popular pick in the days when people provide video screen services. All of the platforms that we use might become subject to that. Is there a potential for a conflict? That depends on what EU law determines, and it depends on whether Scottish ministers will decide seeing the EU law or what they will do in terms of implementation in terms of the continuity bill. That is the farthest I can go at the moment without entering into vast realms of speculation. I think that that is where it lies. I appreciate that we cannot speculate in detail about the specific divergencies that might arise if the Scottish Government keeps pace with the EU, the UK Government wants to diverge from it and there is a mismatch within the UK's internal market. However, in such a scenario, if it did arise, should it be the case that the Scottish Government is in a position to decide that the benefit that it is seeking to achieve by keeping pace with the EU is substantial enough and that the downside of a mismatch within the UK is minor enough and that it should proceed with that plan? Is there an argument in principle to say that it should not be able to do that and that the UK must have the power to overrule it? That question is one that a future Scottish minister could answer. I am not in that position to be able to say what a future Scottish minister would do. However, I am quite sure that conflicts already arise in the approach to which the Governments of the Four Nations decide to do in terms of their policy choices. Those conflicts have to be resolved. That is part of the intergovernmental review process, which we still have to see the publication of the findings of that and what it means for each of the four Governments within the islands. I think that that is certain to require some form of dispute resolution. Why do I say that? Because there is already some form of dispute resolution in the Concordat and memorandum of understanding between the UK Government's developed administrations, which sets out how certain forms of dispute can be resolved. Principally, those involve references to the civil servants to come up with a solution that will satisfy all the Governments. However, in the end, it becomes a political decision if that initial solution is not accepted by the Governments. It depends on politicians being able to make an agreement, resolve the question between them as to what happens. We have seen that in aspects of the common frameworks, where, as in the agriculture bill that we have talked about, there are provisions in that bill, where the Scottish Government has agreed through a legislative motion that has been passed by the Parliament to include provisions applicable to Scotland in the agriculture bill and has not yet agreed on other parts, which might be part of a future LCM. Clearly, there has been discussion between the Governments and they have reached a decision about those parts that they can live with and those parts that the Scottish Government cannot live with. It is a political process, and I firmly expect that that process will continue in the internal market discussions. I do not want to keep this particular thread going much longer, but it is an obvious question that has come to mind. To what extent UK ministers use secondary powers in the UK Brexit bill to diverse from EU law, including in devolved areas? Given that the SSI's tool does not apply, does that not give rise to even more potential areas of conflict? It emphasises the need for that dispute mechanism to be in place. Michael, you want to start off, and I am sorry to interrupt the process, but it is important to tease that out a bit more. If you can make your answers as snappy as you can, we are moving on a bit here. Cheers. Thank you, convener. I would like to consider the way in which you have phrased this question. I am not sure that the EU withdrawal act 2018 provides UK ministers with power to depart from EU law, but, certainly, EU law is at the UK, so it will be not an issue for UK ministers as a side. In terms of EU retained law, that is a dedicated law that is applicable to the UK and arrives from EU law. Then, of course, part of the entire project of enacting such legislation is to enable the UK Parliament and, in certain instances, the devolved legislatures to depart from retained EU law. How that will happen, and at what point, I am not sure, but one can imagine that divergence will occur in the not-too-distant future after the end of the transition period if satisfactory policies are identified by the relevant ministers. I think that I would probably want to take the question back, reflect a bit further and maybe write to you. Okay, thank you. Kenneth, do you have any quick response to that? Yes. Very briefly, Michael Crancy has described the operation of the EU withdrawal act and the intention underlying it. I agree with him that it is foreseeable that divergence from EU law will be the future direction. It is possible, probably likely, by amendment of what will become retained EU law. The important thing to say is that that is likely whether or not the powers in the bill that we are considering today exist. The broader effect of that is probably outwith the scope of our discussion today. That could involve statutory instruments in devolved areas that are not suitable and, therefore, we are back into the potential area of conflict. Michael says that he will reflect on that. Can I move on? Sorry, Dean O'Lacka. Thanks very much, convener. I would like to raise the same issues that I raised in the previous panel. The Environment, Climate Change and Climate Change Committee last week carried evidence that under the EU continuity bill it will be an open question on whether Scotland keeps pace with the EU, adopts similar standards to the rest of the UK or takes a completely different tack. Given the discretionary powers of the Scottish Government to keep pace with some but not all future EU laws, I would like to ask the panel whether there is a risk that Scotland could end up in some kind of regulatory no man's land where we are out of sync with both EU regulations and out of sync with regulations in the rest of the UK? Perhaps Michael Clancy could start with that question. Thank you. Thank you very much, Dean O'Lacka. I think that if one were to reflect on the current situation, it is perfectly possible for the Scottish Parliament to enact legislation that is different from that in any other part of the UK. We do not refer to that as being in any kind of a way anything other than a natural consequence of devolution. Therefore, in the future, if there is EU law on one side, UK law on another and the Scottish Parliament decides to maintain a different approach to policymaking and enact legislation that reflects that different approach to policymaking, then that would be a natural consequence of devolution and it would be a political and policy question for those who are scrutinising legislation at that time to argue the pros and cons resolution. I think that that is probably as far as I would go on answering your question. Can I follow up on that? The previous position under EU law was obviously there would not be any discretion on the part where European law applied. There would not be any discretion in terms of whether or not to follow that law. However, the EU continuity bill does introduce that element of discretion where the Scottish Government can pick and mix whichever future EU laws it follows or decides to follow. I guess that there is that incremental level of additional uncertainty that the continuity bill may introduce. It is certainly the case that Scottish ministers can make regulations corresponding to EU law, however that is defined. That does naturally potentially create a difference of approach from other Governments within the UK, but that is part of any political legal process. The politicians set out the objectives that they want to attain and how they want to attain them. It is up to Parliament to scrutinise those questions closely when they arise. Perhaps I could ask Mr Campbell for his contribution on some of those issues. Thank you, Mr Lockhart. I agree with what Michael Plancy described as the natural consequence of devolution in the sense that the Scottish Parliament has and can legislate in devolved areas in a way that is different from policy in the equivalent area elsewhere in the UK. The only other thing that I would add in the context specifically of that variance within the UK is that, thinking about an earlier part of our discussion, the internal market white paper that the UK Government is currently consulting on, the principles of mutual recognition and non-discrimination are said to be central there. Services products originating in Scotland in produced or provided in accordance with rules devised by the Scottish Parliament under this bill ought therefore to be recognised and able to be consumed elsewhere in the UK by application of those principles, assuming that they are thereafter enacted in legislation to give effect to the current thinking about a UK internal market. If there is a concern about disadvantage to Scottish providers of goods and services on the face of it, those principles in the internal market white paper, if they are enacted, would benefit the providers of those goods and services. I am conscious, colleagues, that we are now coming close to 11.45, and we must conclude by midday. I have still got Jackie Baillie, Angela Constance, so I am not sure how that really wants in, but Jackie Baillie. Thank you very much, convener, and I will try to be quick. My question is to Mr Campbell. Obviously, when we think about the interaction of the continuity bill with the UK Government's proposals for the internal market, do you think that the aims of the bill could, in practice, be undermined by litigation? Well, it is always unwise to try to forecast the outcome of litigation in which you are not involved as a lawyer. I have found, through many bitter years, that it is certainly possible that there will be litigation about the interaction of those two legislative structures, assuming that there is legislation about the internal market. Although it is possible to foresee that, I think that it is more difficult at this stage to foresee what components litigation might be about and therefore to be able to forecast in any way that is going to be helpful, an answer to your question is, would the aim of this legislation be undermined? I think that it is just not possible to predict that at this stage. You could see, I suspect, a set of circumstances where the Scottish courts might be encouraged, if you like, to diverge from existing EU case law at the same time that Scottish ministers are trying to maintain alignment. What do you think the implications of that would be? I think that you are alluding there to yet a further post Brexit development, which is the power of which UK ministers have to specify courts that can depart from existing case law and about which a consultation has recently closed. That consultation, without taking up the committee's time about that, is complex and challenging. It does not amount, in the faculty's view, to a directive to the courts to change the law, but it seeks to explore circumstances in which the courts could, in some cases, decide to depart from existing case law. It is permissive, rather than mandatory, in that sense. You are quite right that some people might then take that as an opportunity to encourage the courts to exercise such a power. It is difficult to foresee the context in which that might be done, not least because cases are decided against the background of the law, as it is. Unless the underlying law has changed and the underlying retained EU law as it would be, it is difficult to see how a court would be persuaded to depart from it in the absence of some compelling new factor. It might be that that compelling new factor could be the changed UK internal market. That is a possibility, but beyond that, it is difficult to forecast what that would look like. That takes you to Angela Constance. I have heard enough, convener. Okay. Is Alex still in the room? I will not hear anything back from Alex. Given that we are now at 11.50, we are almost there, I propose to conclude this meeting. In doing so, I thank Kenneth Campbell, QC and Michael Clancy for their evidence today, which is very helpful. That concludes the only item on the agenda today. I now close this meeting of the Finance and Constitution Committee. Thank you, colleagues. Thank you to those who gave evidence to us.