 Yn gael i'r 12 ydau'r ysgolwyr, ym Sorom Turell, ddweud i fyfnwyr i Gwyrdd ac Llywodraeth Cymru, byddwn i'n gweithio i ddweud i'r cyfreithio ddau ddarلw. Ac i ddweud i ddweud i gydagiaethau cymilynau eucholig, gallwch chi mwyaf ddim yn cael ei gwneud bod yn ddwyharddau? Mae gweithio ni'n cyflei nhw gyda Jackson carlaw. Yn ystod gweithio ei bydd ym 1 yma yn raddiannol i gynnwys yma o gwaith i'r yw'r Felly, y cwestiynau cysylltion yn efo iddiadau agorfaethol 50 ac i fel y DU, ac mae'n ddaf i ddim yn eu cyfrifoedd gan y mae'r gweithio i fynd i'r ysgolwyr. O'r profiad yn Ymgyrch yn ysgolwyr, i'r profiad yn ymgyrch yn ysgolwyr i Abardin, i'r dyfodol yn ymgyrch yn ysgolwyr yn ysgolwyr yn ysgolwyr, i'r profiad yn ysgolwyr yn ysgolwyr at the University of Edinburgh, and I'd like to invite Professor Keating to make an opening statement. Professor Keating. As I said, I bring apologies from Nicola McEwen, who is not able to come today. I think that you had some notice of that, she's had a slight accident. As you know, there's a lot of argument at the moment about the withdrawal bill and about what's going to happen to competencies that are currently both devolved to Scotland and European eyes. We're not going to talk about that. We're going to talk about something upon which there is agreement amongst Governments, that is that there should be frameworks of some sort to deal with those matters that are currently regulated at European level, but will come back to the UK level after Brexit. There's been discussion around the joint ministerial committees about this. There's been quite a lot of convergence between the two sides on what frameworks might look like, but there are still some big questions to be answered here, and we've got some big questions about how both sides are going about frameworks, what frameworks are, what we mean by frameworks, and how they might be negotiated, what they might contain, and how they might be implemented or enforced. The notion of frameworks doesn't exist in the UK devolution settlement. It exists in many countries. A framework law is where you have a law setting down general principles and then the devolved or federated governments can fill in the details. These exist in Spain, in Italy. They used to exist in Germany, but they were abolished a few years ago, in a kind of ghostly form. This is how the EU works. The EU policy making is about setting down general principles over most areas, leaving states and sub-state governments the ability to fill in the details. It's really important if we're introducing that principle into the UK that we should realise that this is a novelty, that it implies a change in the devolution settlement, and it's got to be thought through very carefully. What we have in the UK is a fairly clear division of competences between the devolved level and the UK level. There are some overlaps, but there is no hierarchy of laws, that is, there's no area in which you have both UK laws and devolved laws, and the UK law takes primacy. That is the principle of the framework law and that is how the European Union works. There's also work to be done on how European frameworks might be brought into the British devolution settlement, if that is what we're going to do. EU laws are proposed by the European Commission. They are adopted by the Council of the European Union, used to be the Council of Ministers, in various ways by qualified majority voting, sometimes by unanimity, but they're negotiated intergovernmentally and they require the consent of a sufficient number of member states. They're then directly applicable, they're subject to the principle of subsidiarity and proportionality, that is, things should be done at the lowest level possible and only proportionally, that is, Europe should act only insofar as it's necessary, not including where it's not necessary on national or sub-state competences. Now, there's been no discussion of that in the argument about frameworks here, and then the framework laws of the European Union are enforceable by the Court of Justice of the European Union, they do take a legal form. We're told that some of these new frameworks will be legislative, some of them will be concordant, some of them will be a memorandum of understanding. We don't really know how these are going to work, except the UK Government so far has suggested that certain things should be subject to legislative frameworks and other things should be subjected to more informal arrangements. Now, as to the form of frameworks, in our paper we say there are two ways you could go about doing this. One is what happens in the EU single market, and the term single market or internal market has also been introduced into the United Kingdom coming from Europe. But in the case of the EU single market, what are laid down are not detailed provisions normally, but general principles about market competition, for example. Competition is the most important one, free movement and so on, and from that are derived specific rulings of the European Commission and decisions of the Council of Ministers, but very often it's the European Commission that will take up these ideas, apply them and then, if necessary, they go to the European Court of Justice. This means that issues come up in all sorts of unexpected ways. My favourite example of that is from here, it's minimum pricing of alcohol, which has just come in after about five years, where it was tangled up in the European courts and the domestic courts. That was a public health issue, but somebody said it's a single market issue, and so it became a single market issue. The other way is to list individual competencies, start from the bottom up and try and go through the statute book and work out which pieces of legislation may overlap between UK, devolved and European levels. That is the way that the Governments have gone about this process, they've gone through these deep dives, they've come up with long lists of competencies. The risk there is that the list might be too broad or it might be too narrow. There are things that might be unanticipated that might come up because of single market considerations or because of foreign trade agreements. We're a bit critical about the way they've gone about this. Instead of saying what do we mean by the internal market, what might foreign agreements, international agreements, apply and then working from there, they started at the other end and looked at individual competencies, which is just not the way that the European Union works and it's not the way in which you might think of a single market as operating. Finally, there's the question of how these frameworks are negotiated, whether it is necessary to reserve competencies even temporarily to do this or whether it can be done while leaving the competencies where they are. That is the current argument between the UK Government and the Scottish Government, but insofar as they're negotiable, they're being negotiated and there does seem to be a willingness on both sides here to try and get things done by agreement, then how will that be done? Will there be a horizontal negotiation, that is something like the Welsh Government has suggested, a UK councillor ministers to replace the European councillor ministers in which they have the status of equality, including somebody speaking from England for England? Or will it be a more hierarchical process in which the UK Government introduces frameworks in which the UK Government speaks for both England and the United Kingdom? That's an important. Whether that takes a legal form is really a secondary question that we can think about in due course. The main thing is to establish that there would be a negotiation among equals rather than a top-down process. Then finally, in the paper, we look at three policy areas, just illustrations of this dynamic and these problems. That's the basic principle. Stephen can talk about some of the legal aspects of this and we can talk about some of the policy areas later on if that's what you want to discuss. Thank you very much for that and thank you for your paper, which I certainly read very closely and found very interesting. In one aspect of your paper, you mentioned that the Scottish and Welsh Governments have argued that they make policy within EU frameworks rather than just implementing them. Could you give us more details and perhaps even examples of how you can make policy within the EU frameworks that differ from other countries and how they implement the frameworks? Yes. Generally speaking, in the UK, the flexibility that's allowed to member states is handed down to the devolved level in respect of their own competences. The only other place where that really works in that way is Belgium, so it's really quite exceptional because in Spain they have this hierarchy of laws as well. If it's a Scottish responsibility, Scotland will have that responsibility for making the policy. I've got some examples in agriculture where Scotland has made decisions that are quite different from those of England and Wales and Northern Ireland are quite different again. Within agricultural policy, there's as much variation within the United Kingdom as there is among the EU 28 member states. For example, what used to be called modulation is moving from direct support to farmers into rural policy. There's quite a bit of difference there. Direct payments. Scottish farmers have some production-linked payments. The various tests for an active farmer is implied more stringently in Scotland. There's a cap on the amount of support that can be received by any farmer in Scotland. Michael Gove, when he was deffra minister, said that, after Brexit, we'll be able to cap the direct payments to farmers. We can already do that in Scotland, Wales does that and Northern Ireland does that. Those are quite important variations. Similarly, it's possible because of the devolution settlement to mix and match the various instruments in detail to develop a rural policy for Scotland that is distinctly Scottish. Whereas if the frameworks were too constraining and particularly if the frameworks were about individual bits and pieces of policy, then Scotland might not be able to assemble all those policy instruments that it needs to have a genuine agriculture and rural policy because it needn't necessarily know where all the competencies lie. I was struck by what you mentioned in your opening statement where you said that there is a danger that, by proceeding according to the list that the UK Government seemed to prefer, the coverage of issues is both too wide and also too narrow and not providing for unanticipated implications of UK or international trade agreements. Are you able to elaborate on that? Yes. We don't know what international trade agreements are going to contain. These days, international trade agreements are much more than trade in the narrow old sense. They very often have provisions about levels of permittable support, state aides, environmental standards, labour standards, all kinds of things to make sure that trading conditions are genuinely fair and appropriate. When we get into agricultural trade, because very few trade agreements do include agriculture, but the UK Government says that it wants agriculture in a trade deal with the EU and with third countries, then there's an awful lot of regulatory alignment involved, a lot to make sure that support systems, subsidy systems and regulations are aligned so that goods can flow freely. We don't really know what those are going to be because we don't know what the trade agreements are going to be or what kind of things that might be put into those. If we simply say that frameworks are related to an existing bundle of competencies that are shared by the EU and the UK and the devolved Governments, that might not be the right list for future trade agreements that might have other kinds of things within them. At the moment, there is a provision for UK ministers to instruct Scottish ministers to give effect to international obligations, which might cover that. Again, it would mean that the UK Government was giving instructions to devolve Governments to use that clause, which it's not used so far. Ultimately, the UK Government has the right to overrule the devolve and simply pass its own legislation, but again, that's not consistent with the spirit of devolution, as we've known it. Is it a supplementary, Richard? Yes, in relation to Michael Cuting's first response, thank you, convener. Can I pick you up on your example of agricultural policy? My experience as nine years as cabinet secretary attending European negotiations is that Scotland was often rescued by the European Union, where there have been policy diversions between the Scottish Government and the UK Government, but because of the decisions that were taken in Brussels, often the UK did not get their way and therefore we were able to do our policy divergence, issues such as the privatisation of fish quota and over different agricultural regimes as well. My question is how do we have a situation where devolution and the current proposals in the UK Government are compatible with the motivation of the frameworks that are maintaining an internal UK market? I am actually concerned and worried that the UK Government will put a kaibosh in all Scottish decision making over issues where they have a different view by saying that it interferes with the UK single market. Well, we do not have a mechanism for resolving that kind of problem there, which is one of the points that we are making in the paper. Within the EU there are mechanisms for resolving those kinds of things. We have a very weak system of intergovernmental policy making within the UK in which the UK level has the last word and we are stressing that maybe unsatisfactory because it does not correspond to the way that the EU works for reasons that you just mentioned. There is also a difference in understandings of frameworks between those and this is more or less the position of the Welsh Government, who are quite happy with the idea of joint policy making, UK-wide policies, as long as they are negotiated. Whereas the Scottish Government has tended to put more emphasis on their scope for making policies differently. I do not want to exaggerate that difference, but there is a difference of emphasis there. However, as far as we go down the road of joint policy making, then it would be very important that that is generally joint policy making and not simply the UK Government laying down the line. There needs to be something put in place there to make sure that those frameworks, in other words, are done by consent with the devolved levels and not simply imposed. I have a question following on from that might be, are there examples where within the UK, as it is currently arranged, we have made shared policy with the UK Government? The relationship that Scotland has with the EU laws and the flexibility that we have, is there an example of something that operates just within the UK where we have reached agreement that would be a future? One of the big issues is that the structure of the Scotland act caters really for parallel development of policy, so matters are either reserved or devolved. There is not an awful lot in terms of shared policy and shared competences. The way that the law operates is that when it comes to those agreements, there is a big distinction between the negotiation and the implementation. Typically, the whole negotiation area has been dealt with through the umbrella of the EU, so if you take justice and home affairs, for example, there has actually been quite a lot of shared policy approach between the UK and Scottish levels, which has generally been to opt out of the big shengen arrangements but to opt in selectively on particular issues in terms of police co-operation and criminal enforcement co-operation. That is one area where it comes to the negotiation level and that is operated under the umbrella of the EU. One issue will be whether that continues and whether the frameworks facilitate that kind of co-operation. The second issue is the implementation issue and that seems to be something of a sticking point because, as Michael Allude said, the Scotland act provides a power for the UK Government to enforce implementation if there is a sense that the devolved Administrations are not complying with international agreements. That has not been used and it is clearly not something that would be deeply politically problematic. That is something that the frameworks will have to account for to dispute resolution and how those things will be agreed. However, there are areas that are more consensual—justice and home affairs is one—but clearly there are areas that Michael has touched on that could be deeply contentious. I was going to ask about dispute resolution. You gave the example of Wales, which has suggested a council of ministers of equal standing of government, so where England fits in there is a question that has not really been answered. Has there been any other proposals from the Scottish Government or the UK Government or has anybody else put forward suggestions about how that might look, how the inter-government relations will look after we leave the EU? Michael could answer that, too, but the framework issue is part of a bigger debate about inter-governmental relations after Brexit, and largely we are focusing on the renegotiation of arrangements with EU partners or third-party states. However, there is a much bigger issue here about inter-governmental relations. Many recommendations have been put forward over the years for a more formalisation or at least for a clearer structure, for more transparency and so on. There has not really been much progress on that largely because everyone is now so focused on the granular issues of Brexit, but clearly that has to be built into the debate. One final question. When you describe the different models that other European countries operate under, which you used the term umbrella—that is the term that I was thinking of—that made it in simple language for me to understand that you have a primary government and underneath that sit regional governments and they can make their own policies within it, that is not a model that sits with our devolution settlement. The other option would be, which we are operating on at the moment, where you divide the competencies and you have equal partners. Are there other European countries that work on that model? Would we be unique in going forward with that? Do you think that we could ever—because it seems that the umbrella model is acceptable within other European countries, it does not appear that that would be a solution that would satisfy within the UK? Well, the framework laws exist in Spain and in Italy, where the central government sets out to broad parameters within which the devolved governments can make policy. For example, they are allowed to make something like 40 per cent of the educational curriculum and the state government is 60 per cent. I cannot remember the exact figure. That has become extremely contentious. It really is very, very difficult to work with. There is endless litigation in the constitutional courts of Italy and Spain out of that. It is not an example that anybody in Spain or Italy would recommend for exporting to us. The German model has traditionally been not to divide competencies between the two levels but to have the federal level setting out the broad frameworks and the lender effectively implementing policies. The lender has not done an awful lot of legislation. That has been changing a little bit because, again, that was seen as being too complicated. In the devolution settlement that we have, it tends to be the other model. That is, there is a fairly clear distinction of the competencies of the two levels. It is not completely clear. There are overlaps, of course. There always are. However, if we are going to move away from that, inevitably, we are going to move a little bit away from that because of this question about UK single market, UK internal market, replacing the European market. Many things that are currently subject to EU law will now become subject to international treaties. They move into that category. A lot of things to do with the agricultural regulation, environmental law and so on. Then we really need to think about the implications of that and which of those models we are going to go for. We are not making any recommendations, but we should at least be thinking about where we are heading. Stephen says that this has been overwhelmed by the urgency of Brexit and the dangers that we have made to stumble into a solution that does change our constitutional understandings without having given it proper thought. Now that we have the transition period, we have the UK Government's promise that the re-reservation of competencies will be subject to a sunset clause, two plus five years, so effectively up to seven years. That might give us time to think about those things. If the competencies are going to be reserved temporarily before they come back again, it would be important to think more carefully about exactly how that fits into our devolution settlements. Taking into account the lessons from Spain, Italy and Germany, where they have had to change things because they found that their own system has not worked terribly well. Thank you very much, Stuart McMillan. Thank you, convener. Good morning. The issue of intergovernmental relations has been raised on numerous occasions in this Parliament, particularly in the last session of Parliament. You look at the situation regarding the GMC process and how unequal that process actually is. It is never made outside of London. In terms of ministers and cabinet secretaries attend, it is usually very heavily weighted by UK Government ministers. The letters are sent regularly. We will get the letters here from Michael Russell, indicating that no agenda has been provided. In terms of going forward with some type of process, surely there has to be a fundamental element of respect in any type of framework that is going to be devised. You said yourself a moment ago, Professor Keating, that the potential is that we could just stumble upon some type of solution in the future. I think that that would be extremely worrying and concerning for many people in the country. Michael Russell talks about the framework of IGR in general, but there is one legal point that I would like to come back to, which frames the debate to some extent, which is that the competences of the Scottish Parliament and of the other devolved arrangements are not being removed here. That gives the devolved administrations quite a lot of weight. When it comes to the implementation of policy, because those competences are still firmly embedded in the devolution acts, there is scope for the devolved legislatures to implement policy and to continue to implement policy in differential ways, provided it falls in devolved areas. It is very much in the interests of the UK Government to arrive at processes of IGR that are agreeable to the devolved administrations. We often think that devolved administrations here are quite powerless and frustrated by the way things are working. In fact, in this new environment, when so many powers are now coming back in areas that, de facto, are going to have to be shared in the subject of frameworks, the capacity of the devolved parliaments to make law in those areas is quite significant. It is fundamentally in the interests of the UK Government to start to take more seriously a process towards some form of formalisation, transparency, firmer commitment to agreement in the IGR process than prevails. I think that there is quite a lot of weight that devolved parliaments have to make clear that this is now a firm expectation. Yes, I think that that is right. The problem with intergovernmental relations here has not been so much about notions of respect or trust, because these are abstract ideas that have got to be built from somewhere. I think that there is a lack of institutional underpinning, there is a lack of clarification about what happens in the last resort. The last resort is always that the UK Government cannot get its way. If we know that that is the case, then that changes the whole dynamic of negotiations. The UK Government can go in there knowing that there will be a political cost to pay. It may cause a political row, but ultimately it can get its own way. I do not know of any other system of intergovernmental relations in the world where that is so comprehensively true. In a federal system, the federated units would have their own competencies that belong to them that simply cannot be overridden, so that the federal Government, if it wants to negotiate, has to get the agreement. In such systems, that provides an incentive to co-operation. It does not necessarily produce deadlock. Knowing that you have to have an agreement, you work very hard at getting that agreement, and that goes throughout the entire system. Another problem has been not so much that the UK Government wants to engage in a power grab of devolved competencies, because I really do not think that it is interested in that. It is that the UK Government tends to neglect the devolved level, partly because it is legislating for England at the UK at the same time, and partly because in the departments in Whitehall, they sometimes lost their connections with the devolved. They do not understand the issues. They constantly have to be reminded. Those are two critical factors. Once again, they are connected because it was necessary to always get the consent for the devolved things that overlap between the two levels. The UK level would have to put more investment into thinking about what is happening in the devolved territories, what their distinct concerns are, and to anticipate those kinds of conflicts, so that they would not occur. I am not in favour of proliferating into governmental committees all over the place. That is not the answer. The answer is to identify clearly where the competencies lie and then have a procedure whereby, if there is a deadlock, you can get in agreement. On that, the environmental aspect and environmental frameworks have been suggested that the majority of frameworks in the policy area are likely to be non-legislative. On that, how do you think that there is any level of parliamentary scrutiny and the role of the parliaments if they are to be non-legislative? One of my other roles is that I serve as legal adviser to the Constitution Committee in the Lords. There was a detailed report on IGR that would merit close attention again, which put forward a lot of practical recommendations for how things could be improved. One of the big areas that the report looked at is parliamentary scrutiny. It is clear that that is a very underworked area. That is going to be very important. The issue in the new frameworks, one of the huge issues, is going to be parliamentary scrutiny, both in the process of negotiation, particularly where that negotiation might involve other countries. At the moment, the Scottish Parliament and the UK Parliament have a role because of established mechanisms for European treaty scrutiny. That will no longer apply. The Parliament will have to think very carefully about how it builds in scrutiny of negotiations with regard to frameworks, particularly when they involve other states. There will also be a very important role for Parliament to scrutinise the actual implementation. A question will not simply be parliamentary scrutiny of the intergovernmental discussions, but whether the Parliament has the resources to properly scrutinise so many of those new agreements, particularly when they might result in secondary legislation. Parliament needs to think about how it will resource that and what committees it might need. Whether a dedicated committee to look specifically at those frameworks will be appropriate. The Delegated Powers and Law Reform Committee needs the discussions that we are having in that committee regarding the secondary legislation that you are aware of, but it is about the anticipation of more than 300 pieces of all the secondary legislation, notwithstanding any future primary legislation that needs to come. In terms of the frameworks, that is a different beast. As you say, that is probably a non-legislative issue. That is why, when it comes to framing new IGR arrangements, transparency is going to be absolutely a crucial element in terms of the agenda setting and how much information is released, because Parliament can only scrutinise what it knows about. I agree with what the minister said. It is vitally important. That is an issue that has been around a long time, but the more of those frameworks we have, the more acute that issue is going to come. Before I ask my substantive questions, I really just wanted to ask a supplementary to Stuart McMillan's previous question that Michael Keating responded to. It was really just about that, I suppose, what seems like a lack of understanding in the Whitehall departments that you mentioned about devolution and how that operates. I suppose that I feel like almost at the moment we are perhaps in a catch-22 with that, because if there is not that understanding there at the moment, I do not see what is going to fundamentally change or make that, or how we then make those Government departments understand and actually take cognisance of the issues here, especially if, like you say, there is always that fallback position that they can essentially do what they like anyway, unlike the situations in other countries. So it is really just how do you think we can possibly hope to change that situation and change that understanding so that we can actually have meaningful progress in these areas? In 1976, until 1979, I taught a course for Whitehall civil servants in devolution, because we thought it was going to happen. It was that important that all the incoming high flyers had to go through it. That did not happen in the 1990s, 20 years later. That is just important. That has got to be embedded in the training of civil servants. That is sensitivity. There is also the question of turnover in Whitehall. There is a high turnover of officials. Officials, then, establish relationships with the devolves. They get to know people. Relationships tend to be good at the ground level, but then somebody else moves in. That needs to be built in more clearly into the system. Similarly, at a ministerial level, ministers, similarly in Whitehall, are very often insensitive, too, in the sense that they are unaware of the devolved implications of these things. They have got to learn more about that. It is difficult, of course, because we have got such an asymmetrical system here—85 per cent of the population and 85 per cent of the MPs from England. That is, I think, beginning to change. It is beginning to change partly because of what is happening within England itself. We have got city mares now. We have got the question of London. We have got territorial politicians of some weight, and these things really do matter. However, there is nothing that you can do about that institutionally. It takes a change of mentality, a change of understanding. Every time one of these crises arises over the withdrawal bill or something like that, that again sensitises people in London to the importance of this issue. However, it is always going to be difficult, and it is something that has got to be worked on. There are a couple of possible practical suggestions. One is to focus on the civil servants themselves, and there have been suggestions about improving training. I think that the UK Government has at least notionally begun processes of better devolution training for civil servants. Another option is, of course, greater transfer between the different administrations, but then that hits practical hurdles such as housing costs in London and so on. I think that another way to do it is to impose obligations on government, because if you impose obligations on government, that focuses on civil servants. For example, if there are to be new concordats that are prepared in relation to those frameworks, one suggestion would be to require their frequent renewal and revision, because this is going to be such a fluid area. For example, any new concordats ought to be reviewed on an annual basis. That would require civil servants to keep on top of what is happening and how well the concordats are working. Another thing that could be built into new agreements would be an obligation on the part of the Prime Minister, possibly First Ministers, to report to Parliament formally in every session or after each GMC meeting in relation to those frameworks, with a full account of what has taken place and what progress it has made from the previous one. Not only would that be good for Parliament itself to hear directly from Government in that respect, it would force civil servants to be on top of those issues. Those are some of the things that I think people should be thinking about as we move to try and formalise some of the framework scrutiny. One thing to add, too, is that there is inter-parliamentary co-operation. There is a lot of talk about that. The devolved in the Westminster Parliament should be able to inter-relate to each other. There will be all sorts of suggestions about joint investigations. I was with the Public Administration Committee on Monday in the city chambers and they said, well, wouldn't it be nice if we could meet in the Scottish Parliament? Everybody said, yes, everybody. Everybody said that. It surprised people that that didn't happen more often. That would also improve the scrutiny function as well and sensitise Westminster MPs to what's going on at the devolved level. I think that I just, I suppose, remain concerned that some of the bigger things that you talk about there about the change of mentality is needed. Obviously, that is going to take, I feel like that's not a quick thing to do and that is something that obviously would take quite a long time to embed. Just to move on to some other questions, I was really just around the funding elements and I thought that that was a really interesting element in your paper, particularly in relation to agriculture, where you talked about how only 17 per cent of the land in England is in areas of natural constraint, which was formally less favoured, compared with 70 per cent in Northern Ireland, 81 per cent in Wales and 85 per cent in Scotland. Also, when you say that it's estimated that between 50 and 60 per cent of farm income in the UK as a whole comes from cap payments, in Northern Ireland, Wales and Scotland it is 87, 80 and 75 per cent respectively. So it's really just in terms of if you could further elaborate that exactly how important that is to Scotland and how you see those funding arrangements working post Brexit in relation to the Barnett formula as well. If it went along according to the Barnett formula, how would we see that impact in Scotland? I haven't seen any further details as far as I'm aware about the UK-wide share prosperity fund as well. I don't know if there has been any further detail published on that that you know about that would be worth us hearing about it as well. Yeah, we don't know very much about what's going to happen here. The UK government has issued a paper, a discussion paper on agriculture for England, which proposes that direct payments for farmers will be phased out altogether. Now that would have huge implications if that were applied in Scotland because of the figures you just cited. We're much more serious in Scotland and Wales and Northern Ireland than it would in England. We don't know whether, under a framework, Scotland would be permitted to keep those direct payments or not. That would be a very contentious issue. It might be argued that that would be unfair to farmers in England if Scottish farmers got those direct payments or you might say, well, it doesn't really matter, it's not that important. We just don't know. The DEFRA white paper carefully avoids making UK-wide commitments because that's for another stage, but we know where they're heading and it wasn't very surprising that that white paper said we're heading in that direction. So there are implications then for funding regimes around the UK, different parts of the UK. As for how these are going to be funded at present, the direct payments for farmers are funded from the European Union and the rural development payments are jointly funded by the Scottish Government in this case and by the European Union. Following Brexit, that money comes back to the UK, where a net contributor, this money, comes back again. How would that then be distributed? One possibility is that this could be incorporated in the frameworks. If you have an agricultural framework, there will be a funding mechanism to match that. So the framework would be enforced almost by funding. I suspect that that's not going to happen. I don't think that DEFRA would be interested in doing that. Another would be to say, well, what they do at the moment, de facto, which is give Scotland, well, give each of the nations the share they got last time around. That's what they did last time with the agricultural funding. They squared it with European regulations and then you can do what you like with it. A slightly different version of that is to barnitise it. That would mean that it would go into the block funding, not the agricultural fund, the block fund, so that rural policy would have to compete with education, health and all the other things, which farmers would not be happy about because it might be difficult to contain their share in that kind of competition. It would also mean that their share under barnit, their base share, is pretty much guaranteed because it's only the margin every time there's a funding round, the margin shifts according to population, so you keep your base funding. That would be a pretty good deal for Scotland and Wales. Many people don't think that. They think that barnit means that it only gets 8.5%. It doesn't. It means that you keep the existing funding. But as agricultural spending fell in England, and it will do, then Scottish spending would also fall. That's probably the best deal that Scotland could get, because at least there wouldn't be drastic changes. As for the prosperity fund, we know very little about that, but it may be that that would be operated on the same basis as the existing cohesion funds from the European Union. That is, they are selectively distributed according to a formula that has some need indicators within it, a little bit of political fiddling around with that, and then matching funding along with that. The UK would say, well, you can get so much if you follow these guidelines and if you match funding. That, of course, would be something of a centralising measure, as the cohesion funds are, because Scotland would then have to follow those guidelines and put its own money where that was as well. It's a little bit like the city deals, which were rolled out to the devolved nations just a couple of years ago, and it requires Scottish Government and local governments and other bodies to put in match funding. That might be considered to be distorting of our own priorities here, because the UK Government says that you'll get more money if you put your own money that way. It's also incredibly complicated, as the cohesion programmes are really complicated. You might ask, is that not a very cumbersome and complicated and expensive way to spend rather small amounts of money? So, if we do think that, the alternative, well, just put those into the Barnett formula as well. That would be another way of doing it. But the idea of the UK prosperity fund is the former model, and the UK Government might want to do this, because it likes to be seen to be spending money in the devolved territories and to be getting credit for it. That's a lot of what city deals are about. The UK Government is raising its profile here, so there might be political incentives to do that. However, the more of the initiatives that you get, the more complicated it becomes, and the more the administrative costs increase. It may just be simple to say, well, put all that into the block grant and let the devolved governments go about it the way they like. But it seems that, with the prosperity fund, at least that's not going to happen. I'm running out of time, so I'm going to have to move on, Ross Greer. Thanks, convener. The nature that the frameworks have been mentioned at a number of times now, and Michael Ew mentioned in your opening remarks that some will obviously take a legislative format and some will not. I'm still somewhat unclear as to the rationale that the UK Government has taken in deciding what requires a legislative framework and what does not. What's your understanding of their rationale, how they've categorised here? It's not entirely clear to me either, and I don't think that it's anything settled on that. I think that that will be something that's going to have to be worked through, and a real practical issue is parliamentary time. What we're looking at at the moment, certainly at Westminster, is a huge backlog in legislation. A lot of bills are going to have to go through bills that we haven't yet envisaged and are going to have to be brought forward in terms of the withdrawal and implementation agreement, things that have not been foreseen. I think that a lot of it is really going to come down to practical matters of parliamentary time, and I think that my expectation is that a lot of that would be done by secondary legislation, possibly a lot more than is presently envisaged. To turn to the issue of consent, which has been the political highlight of this saga and where there's been the most significant area of clash. Is there precedent elsewhere in Europe, as has been highlighted, that there's clear precedent elsewhere of different levels of government being able to essentially overrule each other, depending on the constitutional framework of different nations? Is there a precedent for the kind of language that's included and that's now proposed for the UK withdrawal bill in terms of the outright rejection of consent being considered as a consent decision? I understand entirely that there's precedent elsewhere of being able to different levels of government or parliament being able to overrule each other. Is there precedent for that kind of language being embedded into the legislation? The civil convention has worked so far pretty well because it's not been invoked very often and there's a degree of ambiguity about it. What would happen if legislative consent were not given? That's a way of squaring the circle of parliamentary supremacy with recognising devolution. It was the best they could do at the time. It was bedding down and then it was put into legislation in the Scotland Act of 2016 and the Wales Act of 2017 and maybe Stephen can comment on this legal aspect. It seemed to me odd to write into legislation a convention and then say it's not legislative anymore effectively. It's a strange way of using law, either something's legal or it's not legal, but you can understand the political logic of it. The UK Government and Parliament are making a statement. Before that, a time to bed in, we got Brexit, which I think put more weight on that convention that was ever intended to bear and before it had really bedded in. Now with this latest amendment to the withdrawal bill, the UK Government has is retreated a long way. It's accepted the principle of legislative consent even for statutory instruments, so it has not violated the existing understanding. It's just exposed a weakness in the existing understanding that was already there and then the clause that you're referring to where it says A, B and C all amount to consent was just drawing attention to it in what was probably a very unhelpful way. All that ambiguity has disappeared because they've said for the first time they've said explicitly no legislative consent will allow it to go ahead. From a political point of view, I thought it was clarifying, laying down things that previously had been political understandings and have worked as political understandings. Maybe you've got some comment on the legal aspect. Yes, it is a curious thing. It brings up the whole idea of what a convention is. Essentially, we have law on the one hand that is binding and political practice, which is nothing more than political practice. A convention exists in the middle in a grey area. What we've discovered in the Miller case with regard to triggering article 50 was that the Supreme Court said that the civil convention is simply a political principle. I don't think that that's correct. It's a bit more than that. It is a practice that is repeatedly observed and it's observed because people consider it to be binding. I think that what we would have to begin to ask ourselves in light of that proposal and where, if the withdrawal bill goes through without consent, if we then find regulations repeatedly being made—regulations don't technically come under the civil convention but given a general commitment to consent, if they're repeatedly made without consent—what we'd have to ask is whether there is still a civil convention because a convention is something that is considered to be binding and which is repeatedly observed. If we find that it's no longer considered to be binding and is not repeatedly observed, I think that the issue really is, can we still talk about a civil convention? Can I come back in on the issue of the environment in your paper where you talk about in particular, there are relatively few environmental areas which are considered to require legislative frameworks, but those include waste packaging and product regulations and the implementation of the EU emissions trading scheme. It's not yet clear whether the UK intends to leave the ETS or what would replace it. To go back to the waste packaging and product regulations, I mean, just to kind of get this down to practical things that people actually care about and affect them. One thing that Scotland did was bring in the plastic bag charge a year ahead—well, several years ahead, I believe—to the rest of the UK, and we're currently looking at issues around bottle deposit schemes. Is that the kind of thing? If we decided to go in a different direction in those areas, is that the kind of area where we could be constrained from doing what we did in the past because of frameworks? It would depend on how detailed the framework was, but it would only be at the framework that would be binding, in a sense. In other words, the Scottish Government and the Scottish Parliament would only fuel themselves constrained if they accepted the terms of an informal framework. The competence of the Parliament remains, and this is a point that I tried to make earlier, that in fact those devolved powers are still there. Until the Scotland Act has changed, it's still within the competence of the Scottish Parliament to continue to legislate in areas that are devolved areas. Yes, you put down a piece, which is Nicolaus's part of the paper, so we probably can't get into the details of that particular one. Stephen has exposed the question of what non-legislative frameworks really mean, how binding they are. I wouldn't have thought, in a practical sense, that particular example would be a problem. That doesn't occur to me, that sort of thing. The frameworks would go into that level of detail, but insofar as they did, then, once again, we're back to the question of what is the framework, how is it invosible? One thing is, when you made your opening remarks, you mentioned that Germany, the federal system in Germany, had had frameworks and that they had stopped using them, I think that you phrased with it that they basically weren't into abeyns, but could you say more about why that happened? Yes, there was a reform of the federal system, which was trying to disentangle competencies to some degree, so as to get greater transparency and accountability into the system, to get rid of this very complicated and time-consuming and expensive way of joint policy making and to decentralise more power down to the lender level. That's always very difficult in Germany because you do it and then things go back to this intergovernmental complicated system. That was the logic of it. Reform didn't result in any dramatic changes in the constitution, but they did get rid of the joint task frameworks and most of the framework laws. I'm just trying to recall the detail of this, but in practice, there's a lot of joint policy making still going on. In education policy, for example, instead of having this jointly made federal education policy with the lender participating and the bund is wrapped, which is a second chamber of parliament representing the lender being involved, they got rid of that, but then the lender ministers just got together and amongst themselves engaged in a lot of horizontal co-operation. They're still joint policy making, but without the federal government involved, less hierarchical, more horizontal than vertical. They moved from one model to another. I think that we could learn from that because that model whereby the lender can get together and co-operate is an interesting one. It might be a way of dealing with frameworks without the element of hierarchy that people are a little bit suspicious about in this case. I thank you very much for coming to give evidence today. I just wondered how much flexibility there's going to have to be with policy making to meet some of the requirements or the expectations of, for example, the Food and Drink Federation, the National Farmers Union of Scotland, where they want regulatory consistency within the common framework such as food labelling or animal welfare and traceability and pesticide regulation. Do you think that we'll be in a position where the Government puts those needs first or they stick to their guns and keep their own, I suppose, unique policies within the devolved administrations? I've talked to a lot of people around the area of agriculture and I find a general agreement amongst governments, the farmers, everybody that they don't want regulatory divergence within the United Kingdom nor do they want international divergence to a great degree and they don't want divergence generally from the European regulation. They talk about individual regulations that they don't like, but the principle is clearly in their interest because then they can trade more widely. So if there's divergence, it's certainly not going to be for its own sake and I think a lot of this will almost look after itself since if the farmers are saying we don't want separate regulations, governments are saying we don't want separate regulations, then where are regulatory divergence going to come from? This would suggest that there's a willingness to have some kind of harmonisation. That's the question of what mechanisms we have to make sure that that really happens and things that don't fall out of the picture because nobody sort of them and you end up creating anomalies that nobody really intended in the first place. My final comment would be that we're talking to some extent about frameworks as though we're almost anticipating Brexit in quite a hard form as though this is going to take place in a vacuum between the UK and the devolved. If you look at things like the trade bill that anticipates the immediate re-engagement of the UK into third-party agreements, for example, and if you considered Michael's last comment, I think that we ought to need to envisage a scenario where there will be a continued convergence of policy in a lot of those areas, post-Brexit, and on that basis that even the scope for divergence within the UK will then be strictly circumscribed by the fact that, in many ways, the UK could still be tied very closely, even informally, to European standards. I don't think that we should take our eye off the idea that continued European convergence, including the UK, may well still be a scenario after Brexit. The argument that we would go for regulatory divergence in a radical way was part of the Brexit argument. It seems to have disappeared, but the idea that we could just deregulate because of a realisation that regulations have broad support. Also, whatever deals we make with the EU or other countries, we will have that element of regulatory convergence embedded in them. How long do you envisage this time frame to be developing the common frameworks and agreeing on them? Do you see a situation where those common frameworks will not be agreed upon? The bill anticipates quite a lengthy period. Something else that we need to factor in is that there is going to be a transition period now, almost certainly from Brexit until the end of 21 or 20. That in itself will give a lot of breathing space, but the withdrawal bill seems to be anticipating even a longer period. Let's not forget that the powers are sunsetted, so things will have to be done within a certain period of time, but I would imagine that it's going to be a four to five-year period. The other factor is that frameworks would have to be updated continually because of changing conditions, changing technology, changing risks of foreign trade agreements. Some mechanisms would have to be put in to make sure that they stay up to date. Thank you very much. I thank both our witnesses for coming to give evidence today, and we'll now suspend and go into private session.