 Good morning and welcome to the 24th meeting in 2017 of the Finance and Constitution Committee. I usually tell members to switch their mobile phones off. I think that I'm going to now extend that invitation to our invited guests and very warm welcome to everyone here this morning. But the first item on our agenda is to decide whether to take item 3 in private. Are the members of the committee agreed? Yes. We are agreed. Our next item is to take evidence on the EU withdrawal will in a round-table format, and we're joined for this discussion by Simon Collins, who's the Executive Officer of the Scottish Fisherman Federation, Kate Houghton, the Planning Policy and Practice Officer of the Royal Training Planning Institute, Isabel Mercer, who's the Policy Officer at RSPB Scotland, Robin Parker, the Public Affairs Manager at WWF Scotland, Dr Serfyn Pazars-Vidal, the Hero of Brussels Office of COSLA, Professor Colin Reid, Professor of Environment and Law at the University of Dundee, Claire Slipper, who is the Political Affairs Manager at NFU Scotland, and Daphne Velastari, who is the Advocacy Manager at the Scottish Environment Link. That's a lot of names. Welcome to one and all. I can suggest that when you first open up your first contribution, those who are here for the first time, just give us your name at the beginning, just for record purposes. I can't see all the nameplates from where I'm sitting, so that will help me too. The round tables will be structured around five themes, which I intend to do about 20 minutes for each theme. We'll invite internal participants to initiate the discussion on each theme by outlining their views on it, and then we'll do that in turn with all of the themes. Now, inevitably, it's going to be part of a free-flowing discussion. One theme may well lead into another, and we're going to be flexible about this. I realise that's the case, and we'll try to manage it as best as we can. However, if you can just catch the eye either myself or the clerks, if you want to contribute, please feel free to do so, but I'm just going to try and let it flow, rather than if we can do it that way, rather than me guiding it the whole way, that would be incredibly helpful. The first theme for discussion is current arrangements in the European Union, and I invite Daphne Velastari of the Scottish Environment Link to provide an overview of her views on this topic. Daphne, over to you. Good morning. Thank you very much for having us today. While this is a rather big topic, I thought that I would look at it at least from the environmental sort of protection side and the legislation that pertains to that, and perhaps others can speak to points from their sectors. I think that as far as Scottish Environment Link members are concerned, the EU has been the key mechanism through which we have had environmental protection legislation in Scotland and across the UK. The figure that is usually quoted is that about 80 per cent of the environmental protections that we enjoy today are because of EU-derived law. There is a clear need and a clear ask on behalf of our members to retain those protections as we move forward in terms of the UK's exit from the EU. There is also a clear need to convert faithfully through the withdrawal bill, those pieces of EU legislation, and give them the status of primary law, which means that they cannot be amended by a secondary legislation going forward. This is a huge task in terms of ensuring that our environmental laws are converted into domestic law. Of course, we have some directives that are already incorporated in Scotland's law, but there are also regulations, council decisions. It is really a complex matrix of legislation that we have today in Scotland and across the UK, so it is not a very easy task. I understand that the Scottish Government at the moment is looking at which pieces of EU legislation will be affected by the UK's exit from the EU, and I think that DEFRA has already issued some numbers in terms of pieces of legislation that will be affected. They estimate that about 150 pieces of EU legislation will be affected and that we will need about 100 statutory instruments to ensure that we have a correct statute book, so those numbers can help to inform discussions in Scotland as well. The other aspect to highlight in terms of how EU environmental law works today is that we have some clear guiding principles enshrined in the treaties. The treaties clearly say that we should be working towards a more sustainable world, towards sustainable development, and that legislation, as far as environment but also public health and safety, should be based on some key international principles of environmental law, which are the precautionary principle, polluter pays and so on. Those principles are found quite commonly in international conventions. You can look at the Rio summit or you can look at climate change, but what the EU treaties provide is essentially create a legal requirement for those principles to be taken into account when we develop legislation at the EU level, so it's very important for us that those principles are preserved as we go forward. The other aspect of EU law is that different EU bodies in coordination with functions that are actually taken forward at the domestic level have enabled for a robust sort of implementation and enforcement of EU laws. Obviously, there have been times where different governments or other actors have not been fully implementing EU laws. At the EU level, we have the relevant functions to ensure that the commission can monitor when this is not happening or be alerted when this is not happening and take appropriate action when needed. This is a process that allows for much wider concerns to be raised compared to what we have in Scottish and UK law with a judicial review. We feel that there will be a governance gap as we move forward and that this is something that we would need to look into. The last point to make is that there has been a lot of discussion in Scotland and across the UK about the importance of maintaining our international ambitions and continuing being part of international agreements. That is absolutely very welcome, but what it is very important to highlight is that the way that we have actually implemented our international commitments as the UK is primarily via a membership of the EU, so this has been very true for Scotland of course. The negotiating position of the UK as a whole has been developed at the EU level and it is through EU mechanisms that we have been able to implement those international obligations. Assuming that the commitment of the UK Government and the Scottish Government continues to apply, which we are sure is true, in terms of maintaining international ambitions, we would have to replicate some domestic mechanisms to ensure that this continues in the future. I am just going to get the ball rolling. Can I just ask a question on one of the aspects that you raised? I am keen to try to get some practical examples of some of the things that you say as part of the evidence, so we can build that into our report when it comes. You mentioned the issue of general principles of international law. I noticed Robin Parker from the evidence provided by RSPB that you say, as part of that evidence that you provided to us, that the bill does not provide sufficient clarity that those principles were converted alongside other EU law. This is critical because environmental legislation, including any jointly agreed frameworks between the UK Government and the devolved Administrations, is applied and developed correctly in the future. Can we go to words of the world on that? Sorry, it is a world, not Robin. Apologies. Why did I think you were RSPB, Robin? Sorry, it is a world. Apologies. Would you like to take that one on? Could you repeat the actual question again? It says in some of the evidence you provided, and no wonder you're asking me to do it again, given that I didn't address it to the right person in the first place. The general principle is international law. There's a bit of your evidence that says that the bill does not provide sufficient clarity that those principles were converted alongside other EU law. This is critical to ensuring environmental legislation, including any jointly agreed frameworks between the UK Government and devolved Administrations, is applied and developed correctly in the future. Does one of you get to expand on that and give us some examples of what you actually mean by that? That would be helpful. I think that there are a few key points about the principles, one being the interpretation of retained EU law, because at the moment those principles that are articulated in the EU treaties play a key role in the interpretation of European legislation, and that should continue once that law has been brought over. The second point is about the creation of future environmental legislation in the UK. At present, all legislation that is created is based on those founding principles, and we would expect that that would continue for any future environmental legislation that was created within the UK and any of the UK countries. That would include creation of any new common frameworks across the UK should have those founding principles at our heart. To give a bit of context, one of the principles that Daphne mentioned was the precautionary principle, so an example where that has been utilised in EU legislation was in the banning of neonicotinoids, which are harmful pesticides that affect bees. They were basically banned on the basis of the precautionary principle because it was not proven that there was no risk to the bees. At that time, there was no conclusive evidence that it was affecting colony populations. However, the use of neonicotinoids was outlawed on the basis that there was no conclusive proof that they did prove harm. That is one example of where those principles have been used to bring environmental protections. Would you think that the bill needs to be improved to give it the clarity that is being sought? At the moment, our position is that there just is not clarity about whether and how those principles are exactly going to be brought over. We have had advice that it may be that where those principles have been interpreted in CJU case law, they would be brought over. However, it is just not clear at the moment. Robin, you do want to contribute this thing. Isabel, you are about to get in first. Just to add, it is because these environmental principles are in the treaties rather than in the body of EU law. The withdrawal bill is very clear about how directives, existing laws and EU laws are all brought over, but it does not bring the EU treaties over. Obviously, there are lots of parts of the EU treaties that would not make sense to bring into domestic law, but, as Isabel has outlined very well, those environmental principles in particular are very closely ingrained. They are a part of the environmental legislation, all that environmental legislation that we have been operating here in Scotland needs those principles because they are an integral part, so they need to be brought over as one. However, it is simply because they come from a different place in the treaties that the withdrawal bill has not sucked them over. We would have obviously no problem with retaining principles that are clearly expressed in whatever is retained or rolled over from the EU, but you will become no surprise that we are less enamoured of EU law generally on the fisheries side. There are two parts to it, if I can explain, maybe from the fisheries point of view, what the current arrangement is. The EU has two roles. One is that it acts as what is termed a coastal state, so it negotiates quota on behalf of member states, including ourselves. That is one part, of course, which will disappear. The other part is the management part. Underneath this great mass of EU legislation, we have principles to which we can all agree, but an enormous mass of inertia and even regulations that made sense and invented is extremely difficult through co-management to change those things. We are looking for a far more flexible management system, so whatever is transferred across and whatever is retained after exit is very important that, while we respect the principles, we do not get bogged down in the kind of inertia and cumbersome mechanisms that we had in the past. It is interesting how often we are told about the common fisheries policy and how successful it has been in saving fish stocks. I find it remarkable that the only place where it seems to have worked is Scottish waters. It certainly has not worked anywhere else, which makes you think, is there something that we have been doing differently in Scotland as opposed to the rest of the EU? Yes, there are things that we have been doing differently, totally aside from the EU or outwith the EU, and we continue to do that. We have a great success in a number of stocks already that we all know about. We are looking for a far more reactive management system, so it is very important when we transfer principles across that we do not get too excited about the massive detail. It really has not produced the kind of reactive system that a dynamic ecosystem needs. I think that you were looking also at how can we practically address this issue of principles. I think that Colin made the point about when we go into the details, and of course there are plans for reviewing some pieces of EU legislation, but it is very good to hear that you would be generally in principle agreeing with the principles. To your point about how do we convert that, I think that as part of a wider UK alliance of the NGOs, we are proposing specific amendments to the withdrawal bill. These would place a duty on public bodies to bear in mind those principles. Just as Robin was saying, obviously there is no intention as you exit the EU to bring all the EU treaties in, but there needs to be some acknowledgement and reference to those principles if we are to make policy in the right way going forward. Just a compliment on the self-impathos from Kosla. Specifically on international obligations and general outcomes, rather than just general principles. I think that we have a pessimistic early indicator that might be a bit challenging to do that in terms of the current culture in settling in Westminster, but also perhaps here in Scotland. I am specifically referring to the sustainable development goals, which are very, very wide international outcomes in terms of environmental sustainability that go well beyond the EU as well and that the UK has signed and the Scottish Government, the First Minister, has committed to implementing Scotland, but compared to many other countries in Europe and other parts of the world, this has not yet started really, whereas in other countries in many, much advance. So it is just an early indication that while we will like to have general, abide into general principles as the UK being a global pattern for stability, there is going to be likely a cultural resistance to get into much sort of commitments on that level. As you know as well, we have concerns about the fact that the UK has not ratified in any way in Scotland or in the UK as a whole the charter for local government, which is a treaty that the UK has agreed to. That is an early indication, but I hope that it has just been too pessimistic. Thank you. I also want to contribute on that issue of international law at this stage. Any other members want to ask a question or make a point? Patrick, I can see you. I suppose that there is a comparison with other attempts to place principles into law that constrain the actions of Governments. The most obvious example would be that we have a long-standing principle on the Sewell convention that the UK Government will not legislate in devolved areas without the devolved Parliament's consent. We can see how much the attempt to place that on to a statutory basis is worth now. There is a real question about, in the absence of a written constitution, that would constrain what Governments are allowed to do and how they may legislate in future. There is a real question about whether there is any way in which we can place a constraint on ministers to apply those kind of environmental principles to the future development of law. I am wondering if anyone can find an example in the UK context of a successful way of constraining ministerial actions or future legislation, except for international treaties. What you say about constraining might still be a value in enshrining the principles, in some extent, as it means that there are relevant considerations that the Government ministers cannot think about, that they cannot alter their economic goals to take account of environmental or other purposes. If they are there as something that has to be taken account of, at least they can get on to the table and the ministers have to listen to them, which is not the same as a constraint but may still be achieving something. If the purpose of the EU withdrawal bill is to bring across EU law as it currently works in Scotland and the UK and bring it across into domestic legislation, why those capital P environmental principles are really important to bring across with those amendments that have been proposed and incidentally do not have yet any Scottish MPs supporting those amendments. What do we know? There are not any Scottish MPs here, obviously, but maybe they are some listening, they get on board, that would be great. The other thing that I was going to add was that as they function at the moment they do not just have an applicability on ministers, there are things that can be referred to in legal cases. I am afraid that I do not have an example from Scotland with me, but we can maybe come back to the committee with some further examples. However, there is an example here that the greener UK, the body that we have been working on at Westminster on this, had from Northern Ireland an incident where in Loch Nay you had a company illegally taking sound out of the lock. What happened was that the environmental minister in the Northern Ireland administration issued an enforcement notice to tell the companies to stop. What happened was that friends of the earth said that because they did not order an immediate halt to the activities, while it could be further investigated whether that was how it had an impact on the habitats in the lock, that the minister had failed to use the precautionary principle. That was what they argued in court and it was on the basis of that precautionary principle that the court reached its judgment in saying that there should have been a halt to the activities while further investigation was taken. That is just to say that at the moment those environmental principles with a capital P have a force beyond just simply informing other law and so on. They can be referred to in a legal setting. If what we are trying to do at the first instance is simply bring them across, keep things working as they are, which is what I understand the principle of the EU withdrawal bill to be. We need to do as much of that salvaging as possible and then later on we can have that conversation that Simon started about whether it is the right thing that should work for Scotland in that way, whether we can improve upon it, whether we can develop it in different ways. The purpose of the EU withdrawal bill should be to keep things as far as possible as they are. Those principles, you are right to say, are drawn from provisions in the treaty, but they are given life, as you have just illustrated, not by the treaty but by court decisions or decisions by regulators. Isn't it already contained within the withdrawal bill that the general principles of community law, as they used to be called, have been given life in court decisions, either of the Court of Justice in Luxembourg or of any court or tribunal in any of the legal jurisdictions of the United Kingdom, will continue to have force in the legal systems of the United Kingdom after exit day? So, isn't this a problem that has already been solved in the bill? Right. This is the case for existing ECJ rulings. There will be recourse to that and where the ECJ rulings to specific cases and specific existing laws, where there is reference to the principles there. That would be the case. The point that we are trying to make is that that specific ruling would apply to a specific piece of legislation in a rather narrowly defined way, as it should for that specific legal case. The principles, as they are enshrined today in EU treaties, mean that they are broadly applicable. In the future, should a crisis arise, should there be a new policy decision to be made, you would still need to have recourse to these principles. The ECJ rulings in and of themselves would not allow for that, because they are much more limited in scope. For example, to give something that is quite different, do you remember the Norwegian volcano that erupted? I will not even attempt to pronounce the name of it, but it was on the basis of the precautionary principle that the flights were halted. Icelandic, yes, sorry, correct. It was obviously something that impacted the entire of the EU with the flights. There was a lot of backlash at that time saying, why did you do this? It was overly precautionary. In the end, it turned out that this was the right decision, because it would have severely affected flights coming in. This is just an instance of where there was— That decision could not be taken for UK airports or UK airlines, because there is some provision of the withdrawal bill that means that the UK regulators would no longer be able to take that decision. I think that what I am saying is that there was a much more direct course of action there, because of the fact that the principles were enshrined in EU treaties. I think that what we would like is the same sort of confidence and certainty moving forward across the UK. I would like to put this on to something that you also raised in your opening remarks, Stephanie, about the policy framework that exists within the European Union. I noticed that it was one of the strong themes that came from the evidence, from all sides, about that we have currently got a policy making framework within the European Union. Some concerns were being expressed by the evidence presented to us that there may be a risk of that process and how it has evolved, and some of the certainty that comes from it and the regulation that comes out being lost. Others see that there is an advantage to be able to change policy in the future, so I would like to understand a bit more about that. I do not want to pick up on that particular element before I leave the theme. Simon? Yes, for us, we certainly do not want a legal vacuum, nobody does. For that reason, the withdrawal bill for us is that we accept the reasons of time. We see where Dexu and Defra are coming from in the UK about the need for this as a necessary first step. We would entirely agree with that. The question for us is what happens afterwards. As a fishing industry, we have always been keen on devolution. The closer management is to where the people are fishing to the fishing grounds, the more likely it is to work, and the more likely it is, we will be able to meet the objectives that are set higher up, if you like, the principles over which we would not disagree. The question then is how do we ensure that that devolution of powers passes smoothly after or through the withdrawal bill? Of course, that is something that we are going to come on to in a minute. As I have mentioned before, there are two parts to the EU competence that concern us here in fisheries right now. One is that the EU acting as a coastal state and negotiating on a behalf comes to the UK. That is a natural place for it, and we are very happy with that. As long as there is an arrangement within the devolved administration to make sure that the UK does speak for everybody, the devolved fisheries management, we are very keen on it. If the withdrawal bill itself does not pass those powers through quickly enough, which is our concern, we would like to see some mechanism to make sure that it happens. We suggest that there might be an amendment if there is some other mechanism whereby brighter brains and ours can figure it out to achieve the same aim. It is the outcome that we are interested in, not the particular point of legal scruple, if you want. We would like to get the devolution of powers through it. We see that the withdrawal bill is probably the necessary first step. We accept that, but it is only the first step. Simon is taking us naturally into the next bit of the process anyway, as part of that bit. If people want to touch on that issue, but also the policy framework that currently exists, because, certainly, there is a theme that came through to me, that there is a fear that some of that could be lost in terms of decision making. As anybody, I think that RSPB reflects on that as well, Isabel. Do you want to say anything about it? We naturally have fears that there may be gaps in environmental protection as a result of the legislation being brought over. I can go over some of the key concerns that we have with the actual bill in a minute, when I give an introduction to that. A headline point to make would be highlighting some of the benefits that that EU framework has provided for environmental protections. For instance, if you are thinking about the birds and habitats directive and the protections that that gives to priority species and habitats in the UK and across the EU, one of the reasons why we think it is so key that that is brought over in its entirety is not only the protections that it provides for the environment, but also the regulatory stability that that has provided for businesses and developers. The refit of the birds and habitats directive that was carried out by the European Commission last year clearly showed strong evidence about those benefits that have been provided in terms of a level playing field and limiting competitive deregulation across the EU. We believe that it is imperative that that will continue to operate in the same way even once we are outside of the European Union. Why won't it? I am struggling to understand the regulatory stability. Why wouldn't it still be there? That is where I might start if it is okay to go into it. We have three main concerns with the bill as currently drafted. Some of them have already been touched upon by Daphne, so I will not go into them in a lot of detail. The first one is the issue of environmental principles, which has already been discussed. The second one is the governance gap issue, which is quite key when it comes to this stability. This is about the effectiveness of implementation of environmental legislation and ensuring enforcement and compliance. This has to do with the key role—again, Daphne has already touched on this, but I will go into a bit more detail—the key role that EU bodies and institutions have played in the enforcement compliance, but also things such as monitoring and reporting requirements when it comes to environmental legislation. Mechanisms that are currently provided by the Commission and the Court of Justice do not currently exist in a domestic context in exactly the same way as they do in the European context. We are concerned that with the loss of those oversight and accountability mechanisms, even if the entire body of EU environmental legislation is brought over as it is, it will not operate as effectively as it does at present. That is one of the key things that we are really interested in looking at solutions to that issue. We do not feel that the bill at present currently provides for all those functions to be replicated in a domestic context. Our final point comes to the scope and scrutiny of powers conferred in the bill, and that is something that will be discussed quite a bit today. However, to touch upon it, we do feel that the scope of the powers is extremely broad and has been brought up by many different stakeholders across many different sectors. There will be an insufficient level of parliamentary scrutiny on some of the regulations that are going to be created under the bill. We are concerned that, as a result, there is the potential that the bill could lead to what we would consider being non-technical changes, as opposed to technical changes being made as substantive policy changes. We do feel that the powers that are conferred in the bill at the moment do give the scope for ministers to make more substantive policy changes without the correct level of parliamentary scrutiny. Alexander Stewart You mentioned gaps in the bill, but there have also been gaps in EU legislation, particularly in the soils directive that has never happened. What thought have you been given to the frameworks and moving forward, how those frameworks would work for future opportunities like soil? I think that the starting point for us, our immediate priority, is ensuring that the frameworks that currently exist under the EU arrangements are carried over. At some future date, we can look at how to improve those frameworks. The immediate priority is ensuring that there is no weakening in current protections. That has been our focus, and that is our starting point. If you are starting to think about areas in which we might need common frameworks across the UK in the future regarding environment, there is so much uncertainty regarding our future relationship with the European Union and what frameworks might be included in a deal that we do not feel that, at this time, it is really worth while looking into specific areas. We would be more interested in looking at the process of how those frameworks are developed across the UK countries in a way that is going to be agreed fairly and jointly between all four countries, so that they are not being imposed. We feel that that would lead to more smoothly functioning legislation that is going to be complied with better. That is where we are coming from on those issues. The issues that you raised were potentially less oversight and enforcement. I want to try to get some practical examples of that stuff. The suggestion was that the structures that may exist in the UK in the future will not be the same as the structures that exist in the EU. Can you give us, as well, if you can, or somebody else a bit more detail of a practical example about where that might look like? Some examples where we feel that EU oversight is being particularly integral in ensuring environmental protection, one, for instance, would be something like there has been a lot of burning of blanket bog across special areas of conservation in England. This has been occurring with the knowledge of the UK authorities, but what should have happened is that there should have been an appropriate assessment carried out because of the framework that is given by the Habitat Directive. There should have been an appropriate assessment carried out for the burning on those areas, and it hasn't been. What has now happened is that the European Commission is taking action to ensure that the UK authorities do take appropriate action and so, in that instance, what the European Commission is providing is a kind of free forum for citizens and organisations to bring a complaint about how a member state is implementing environmental legislation within their country and we don't feel at the moment that such forum exists within the domestic arrangements. I don't know if somebody else wants to add some more examples. Can I ask the follow-up question on that? I mean, this is incredibly helpful and it's exactly the kind of level of detail that I think we need to try to try and understand. If you're right that the bill as currently drafted opens up a regulatory gap, something which is currently regulated at EU level isn't being transposed into the domestic legal arrangements of the United Kingdom, what kind of remedy do you propose to that? What kind of amendment to the bill do you think would be necessary in order to plug that gap that you've identified? There are specific amendments that have been drafted by Green UK and Laid. I don't have those amendments with me, but I can ensure that we get them to the committee. Let's go on the call for an SPB. The act, of course, we've made it necessary to have an act to basically reverse the European Community Act, which is what this is about. The problem is that the UK is not what it was in 1973. Therefore, the bill in its simplicity or is in a very general substance, but in formal, it's very simple. It doesn't provide sufficient guarantees about how you actually can develop UK-wide frameworks, domestic UK frameworks and international obligations. I mean, some members just say, why not? It can well be that the current bill, as it stands, might work well. If everybody is reading it the same way and there is like a same understanding of what it means across the UK, clearly that's something that is increasingly not the case in the UK as it currently stands. This, for you or you matters intergovernmental coordination, there has been a lot of informal arrangements and has been, in some cases, very squished in respect from the UK level to the different provisions of the Welfare Administration and different policies, but there's always been informal and has been based on the basic principle that, in the case of Scotland, it's very clear what Scotland exclusive competencies is. It's actually rather unique in all the 60 plus Welfare Administrations in Europe that have such clarity. Therefore, there was a trust that could be built and a culture of intergovernmental relations. It is questionable that the current climate exists at the moment that we can just assume this implicitly in the view of the lack of legal detail that provides at the moment will continue. I just mentioned a number of examples of gaps, regulation and enforcement gaps. I'm just coming back to not environmental issue, but competition issues state aid. It is not clear to us, for instance, whether the state aid guidelines, which tells what a public authority can give a subsidy or not, is covered within the scope of the bill. Maybe we are wrong, but we don't see that there because, for starters, it's not illegally binding a second piece of second relation. Most of the guidance of the European Commission, which is at the moment the regulator and enforcers at the UI level on state aid issues, is some sort of political guidance, if you want. It's not clear the extent of what the current state aid bodies will actually be incorporated through the bill. In terms of enforcement bodies, we believe that the UK has changed because of the pollution, but also perhaps now we need to consider whether Westminster as a whole needs to change as a result of these changes. We cannot just assume that we can have UK bodies, for instance, on competition, and if we have that as a UK Government body, we can have UK-wide bodies, and the question is how to build this framework, because we cannot be in a position that one level of government can be both jury and party on an issue, for instance, competition policy or state aid. Simon, do you want to contribute at this stage, before we move on to the next? Just a quick comment. You asked earlier about specific examples or concrete examples of how things work and what you might do. A number of us, and certainly in fisheries, have the very unhappy experience of going to the commission often to ask for improvements in fisheries policy at a very technical level, and having the extremely frustrating experience to have unelected officials in their lovely building in Brussels saying that this cannot be done with an immediate and significant impact on Scottish businesses. We are going back to our friends in the European Parliament and say, can you question this individual and get them to either them or even their superiors to justify the decision that you have made? The answer is no, sadly, Simon, we cannot. This comes from not just Scottish MEPs but other friends that we have in other countries. No, it is a continual frustration. We cannot question that individual about that decision, indeed, or about a whole range of decisions. That, at least, so just putting in perspective—I am not an apologist for the bill or I didn't draft it—but surely in the UK and in Scotland you are in a better position than that, that if you so wish, Scottish Ministers, Scottish Civil Service, you can ask them, and they should have to come. I am sure that that exists already, and we don't have that now. Robert, I am just very briefly going back to Ann Tomkins' question about improvements to the bill. One particular thing is that the withdrawal bill currently says that it gives powers to ministers—again, not 100 per cent clear whether it is UK ministers or UK and Scottish ministers and etc. It is power to assign functions that are to do with governance of scrutiny, enforcement and so on, to existing public bodies and so on. A very simple change that could be made would be requiring ministers to do that and to remove the power that exists within the withdrawal bill that is introduced, which allows them to abolish some of those current requirements. If the bill is about providing continuity, then requiring those changes to be made is really important. The second thing that I was going to say is that it is not that there is an immediate issue in terms of improving the bill, but there is a longer term question of how we can develop better things for the future and does it require new bodies to be created from scratch and so on. I think that another practical example— Sir, you wouldn't expect to see that in this bill? No, not in this bill. I think that this bill is about—I think that, as I understand it, the amendment simply says that ministers must find people to do that in the minute. I think that there has also been a suggestion around a sunset clause, around allowing only that kind of interim arrangements for a certain period of years, and then requiring ministers to, after that, have found a long-term solution for those kinds of things. I will give a practical example in terms of how one of the roles that the commission has been able to do in terms of the UK and Scotland has been to act as a prod before things get fully into the legal process. So, the commission was able to sort of rattle the sabre, as it were, for example, around the implementation of clean air directives in the UK, and that pushed the UK Government towards bringing out new clean air plans. I think that it has been part of that backdrop of the commission being that we need to look closer at clean air. It has also been one of the pressures that has pushed the Scottish Government, similarly, towards rising up the agenda, rising up the political agenda, and providing greater attention within parliaments to the issue. That is helpful to get these examples. Does any member want to say any more about the policy framework before we move on to repatriation of powers areas? Just because you mentioned specific examples, I think that we have touched quite a bit on the judicial aspect and the legal aspect. Of course, when we are talking about enforcement and monitoring, there are the more mundane tasks of collecting data and publishing the data. Of course, there are questions raised there whether due consideration has been given to whether or not the UK, as a whole, would like to continue to be a member of things such as the European Environmental Agency or the European Chemicals Agency, which collects a lot of data that a lot of British industry has invested in pulling together. I think that that is something that also needs to be potentially looked at. Of course, the final outcome will really depend on how the Brexit negotiations go and what is the future arrangement between the EU and the UK, because that might be part of the final negotiating agreement. As Robin correctly pointed out, we want to see a duty on ministers to assign those important functions to domestic bodies or to look into the possibility of creating new bodies where existing bodies cannot actually perform those functions within the bill, but there is also a firm commitment from the Governments of the UK that that will be looked at. Particularly, the legal and infringement aspect that the EU currently performs cannot be replicated either through the UK or the domestic Scottish legal system because of the limits of judicial review. Give me a practical example of a new body that might be required to be created in the UK or Scotland as a result of leaving the European Union. I cannot understand it. You could potentially consider a variety of bodies depending on what functions you would like to assign to them. You could consider expanding the role of the GNCC in collecting and collating and publishing data. You could consider the development of environmental courts in Scotland or similar bodies across the UK. You could have an environmental commissioner or ombudsman that would take up complaints by citizens, business stakeholders regarding the implementation of EU retained law. There is a whole host of options. At the moment, it is much more helpful to look at functions that different bodies could perform so that we can be as effective as possible in assessing which existing bodies across the UK but also in Scotland could perform those roles and whether there are any gaps. That would not be necessarily dealt with in the legislation that is currently in front of us, the EU withdrawal bill. That could be a part of the discussion that follows that process. The Environment Act, which will come through Westminster as well, will do so. Of course, there is a discussion about the UK Environment Act. We would like to see a firm commitment as part of the withdrawal bill. The existing functions and the bodies will preserve those duties but also commitments for the future but robust commitments. Patrick Stewart Just by briefly picking up on one aspect of that, which, as you say, would not be included in the EU withdrawal bill but is an issue that arises as a result of it. You talked about the potential for a specialist environmental court in Scotland. My view is that there has been a case for that for quite some time, even aside from the European Union context that we are in now. However, the Scottish Government has not so far been persuaded of that. Would it be fair to say—and I wonder if anyone would disagree—that even if the Scottish Government is not yet persuaded of the case for that, it would be premature to rule it out until they know the reality of what are the environmental functions that are going to be the responsibility of Scotland in a devolved context and what pressure that places on Scotland in terms of decision making? I do not think that it is a surprise to anyone in this committee that Scottish Environment Link members have supported the creation of environmental courts in Scotland exactly because we have been failing to fully implement a lot of the Arhus Convention requirements and we feel that environmental courts or tribunals would be a way of addressing that. We did feel that in the context of the UK's exit from the EU there was even a more important or even more stronger case for environmental courts to address issues of access to justice. We were, of course, disappointed at the decision of the Scottish Government, but I would like to read their decision in a slightly more optimistic vein. Perhaps I hope that in the future, given that we have identified this governance gap, they will reopen the door to examining environmental courts or tribunals because it is an important part of the solution. The discussion is a mode of optimism. I could do with some. I want to move on, Robin, to repatriation areas, otherwise I will not manage to cover all the themes that we have. And Claire Slipper from the NFU said that she was happy to contribute to the beginning of the discussion. Claire, over to you. Absolutely. Thank you for having me. Claire Slipper from NFU Scotland. Repatriation of powers. First of all, I come from the starting point that NFU Scotland is obviously very much alive to the political and constitutional tensions that are existing in this debate. Our position is not necessarily framed from an expert constitutional legal perspective, rather we come from the end of the telescope while we are speaking on behalf of our members and what they feel they need to survive and prosper after Brexit. But what is important to establish obviously as a starting principle is that agriculture has been in the domain of the Scottish Parliament and Scottish Government since 1999. Generally, that has worked very well for our members. They wish to see no rollback on that. Essentially, it has allowed decisions that impact their businesses to be made closer to the businesses that they implement, so it is important to establish that as a starting point. So from discussion with NFU Scotland members, their starting point, their primary concern isn't exactly where the powers will sit after we leave the EU. It is more about ensuring who can get the best deal for them to allow their businesses to prosper. What a good deal for them will be is frictionless and barrier free trade with the EU. Secondly, access to a skilled and competent workforce for seasonal and permanent posts to work on-farm and off-farm is very important. Thirdly, this is where the key arguments over Repatriation of powers come in. They want a new agricultural policy in Scotland that allows us to effectively target policy and money towards action rather than inertia until they allow their businesses to grow. That is just a bit of context setting. In terms of the repatriation of powers, I think that the point was raised earlier that clearly the constitutional backdrop of the UK has changed a lot since we joined the EU in the 1970s. For us, we can see no clear-cut way of defining where specific directives in EU policies can be cut and pasted into Scots or UK law after we leave, but what we do know is that obviously the day that we leave the EU will also be leaving the common agricultural policy, the CAP. Since 1999, the Scottish Government has had powers to implement the CAP. When we leave the EU, it will be up to the UK Government and the devolved legislatures to decide and devise how we can support agriculture in the longer term. Although those powers have just been over-implementation, there is a widely held view, and I believe that that was supported by the Scottish Constitutional Convention in 1995, that due to issues such as agriculture not being specifically reserved within schedule 5 of the Scotland act, the Scottish Government should retain the ability to frame policy in those areas such as agriculture. However, it does appear that the EU withdrawal bill turns that on its head slightly and assumes that those powers are not absolute across the subject matter, so that is where we are running into some difficulty. However, what we believe is likely to happen and what we hope does happen is that the Scottish Government retains the ability to manage payment schemes if indeed we go down the road of having a future payment scheme to support agriculture and implement agreed schemes, policies and regulations in a manner that is very similar to what we have done for the past 20 odd years under the CEP. We need those management and implementation powers to be used in a way that will be subject to certain constraints, which will probably be set at a UK level. In terms of what those constraints are, those will be the overarching areas of policy that cut across borders and make sense to do on a framework basis in a manner very similar to the way that it has been done under the EU. The areas of regulation that maintain the UK single market are things like animal welfare issues, pesticides regulation, chemicals regulation and things like that, where it will make no sense to have four differing and separate schemes of regulation. However, what we see is vitally important is that anything that is managed on a framework basis such as this and those issues that are left within the main state of the devolved nations are commonly agreed. I put emphasis on that. We have been very clear from the outset that any move to drop down a policy framework that is a deferic-centric view of the world on to Scotland will not be acceptable. There has got to be consensus and that approach would not work for Scotland, it would not work for Wales, Northern Ireland or indeed England. Why is there emphasis on it being commonly agreed? For us, it is vital that there is flexibility for the devolved nations to use more or less of different policy tools in manners that fit the differing agricultural systems across the UK. Here in Scotland, 85 per cent of our land is defined as less favoured area. In England, the opposite is true. 15 per cent of England is defined as less favoured area, so it is vital that we retain powers to support our less favoured areas and use elements of coupled support. Things like protected geographical indications such as the Scottish beef label are also extremely important for us here in Scotland. Likewise, for other parts of the UK, there will be other issues that are more important to them and less important to us. However, how do we ensure that it is commonly agreed? That is the sticking point for us that is really important. The arguments that seem to be on-going over the repatriation of powers suggest to us that UK and devolved ministers need to get a lot better at collective decision making. We need to try and find some resolution to that pretty urgently, I would suggest. I am not sure how it could be done, perhaps through a beefed up joint ministerial committee or an emulated council of ministers, like it is currently done in the EU, or better dispute resolution mechanism, but something of that sort needs to be devised quickly. The issue is not just about policy making powers, but about issues over funding, which perhaps we might touch on in discussion. For us, the issue is not really as clean cut as saying that the powers will be lifted and cut and pasted either into UK or Scottish decision making powers. For us, the emphasis is on collective decision making and ensuring that Scotland has the powers that it needs to devise a policy that is suited to Scotland in a manner that still allows us to maintain the integrity of the UK single market, because that is very important for trade as well. I will leave it there for now. That is very helpful with the introduction of the repatriation of powers that we are in just now. I am keen to try to allow Colin Reid from the University of Dundee in the next section to talk about common frameworks. I realise that there is a close similarity between the two issues. I will keep it at the moment to how the bill is structured in terms of repatriation of powers for this bit of discussion that we can get into the framework stuff later. Murdo, do you want to— Yes, thanks. I mean, I thought clear that that was very helpful in terms of illustrating a very practical sign of some of the issues. Two brief questions, if I can. You gave some examples of things that you thought or NFUS thought should be decided at a UK level as opposed to a devolved level. Does NFUS have a finely detailed proposal now, as it was exactly at which level every single piece of legislation should sit? You touched on that in what you said, but, ultimately, how do we arrive at a settled view on how worthy things should sit? What is the mechanism for getting to a point where we can agree to this? To take the first question first, we are in the process of putting together a very detailed policy proposal. We are going out on the road starting next week to consult with our members about what the die-in-the-ditch issues are over policy and what they feel we need to build into a new agricultural policy after Brexit. The examples that I gave will not change. I think that it makes sense. We have consensus with our colleagues elsewhere in the UK in terms of the farming unions that it makes sense to maintain very high standards on issues such as animal welfare and public health. Indeed, that slightly goes back to the previous area of discussion. Those areas are likely to be fairly equivalent to what we do under the EU anyway, because we have very high standards in those areas and we have no desire to roll them back. That is purely from a technical or logistical point of view. It makes no sense for us to split off into four and devise four different ways of doing it and then try to find commonality. Instead, we want there to be joint decision making over how we emulate that into UK law. It feels like the easiest way to do it. In terms of your second question about how we get to that point of joint decision making, I am not a constitutional expert and I do not believe that there is anything written into law at the moment that would allow that mechanism to take place. Clearly, we have the joint ministerial committee structure at the moment. If you read and believe the press reports, it does not seem as though we have been getting very good outcomes from that or a lot of progress coming out of those discussions that have taken place, but perhaps there has been a bit of break in the deadlock over the past couple of weeks. For us, it was a shame that it was not on the face of the withdrawal bill about how things like frameworks would be dealt with upon leaving the EU, because issues such as the CEP are so massive and so vast. It is 40 per cent of the EU spend every year on the CEP. You would have thought that an issue like that would have been referenced on the face of the bill, but it has not been so. That is just the detail that we need to work through. Kate Houghton from the Royal Town Planning Institute in Scotland. Just to start off for context, I should say that the RTPI does not take a position on where devolved powers should sit. We are entirely neutral on that. Our priority is working with our members who work as town planners throughout the United Kingdom in the public, private and third sectors to make sure that that system works the best way that it possibly can. However, it was worth jumping in here just because I think that the planning system provides a really neat example, which I am sure is replicated elsewhere in policy, of why we need to make sure that there is more clarity in the bill about where devolved powers and repatriated powers are going to end up. The planning system itself is entirely domestic law, and it predates the United Kingdom's membership of what is now the EU. That continues to be the case. It is an entirely devolved issue as well and within the competency of the Scottish Parliament and Government. However, the town and country planning system exists in a context, and it is linked to other areas of process and legislation. A useful one to highlight is environmental impact assessment and environmental regulations. What has evolved since those regulations, since that impact assessment has been introduced, is that it has a twin track system, where environmental impact assessment happens as part of the planning process, but it is obviously governed by the European directive, transposed into domestic law. What has happened in terms of domestic law—sorry, go back to domestic law—in terms of planning in the last 20 years, especially, is that in Scotland the system has really started to diverge from the English system. It gives us a really nice example of how constitutionally the nations have changed over the past decades. In Scotland, it is still founded in the same principles, but it is quite a different planning process to what it has in England, for example. What is really worth highlighting here is that when those powers are repatriated, regarding environmental impact assessment, that is perhaps an opportunity, but something to be cautious with thinking about how we decide how that process will be integrated with the planning process. It will still have to happen, and I certainly hope that it still will. I do not want to get into frameworks because I know that we are going to address that next. While we support a common framework across the UK, it will be important to think about how the planning process works and how a new environmental impact assessment process will interact with that. Can I just ask the focus that we are going round the table? Just to be clear, we are there on this clause 11 issue that everyone is focusing on in terms of from—a lot of the evidence covered it, a lot of the evidence said that they thought that the bill went too far, because that is really the knob of this discussion at the end of the day, and we will get into the framework. I do not really want to whether what you have just said, Kate, if you want to reflect on clause 11 and whether you think that it is satisfactory, it should be amended, it should be dropped, whatever. I think that what I would say is that looking at the outcomes that we want to get to in terms of making sure that process is working effectively, we need to think a little bit more carefully, and I think that there needs to be a little bit more clarity about whether the issues being discussed are technical or non-technical. Simon, you want to address that when you make your point as well? Yes. It is really starting really from where Murdo started with, on this question of dividing, devolved and non-devolved powers. We would start with the same position that, helpfully, David Mundell said yesterday—it is presumption of devolution that we would buy into that. We are looking for an outcome. As far as clause 11 is concerned, what we need to do is to get to as far as the fishing industry is concerned, in terms of day-to-day management, we need devolved powers back to Scotland. That is absolutely clear. That is the only way that we can see to have proper reactive management, as we would call it. Whether that means, as we suggest in our submission, the obvious way to do that, even if we accept that clause 11 is required to be like that just for time reasons or legal reasons or any other reasons that you want or share the massive work that has to be done, even if we accept that that has to happen on day 1 of Brexit, we turn a reason why on day 2 or week 2 or whatever it is that Scotland couldn't resume the ability to exercise that presumption of devolution as soon as possible afterwards. If someone can devise away a constitutional lawyer much better than us to achieve that same aim without having to amend the bill so much, the better. However, we really focus on the outcome, and the outcome is devolved management in Scottish waters. That is a lot of assignment, isn't it? It will require—and if statutes are made, statutes are made, and no-one at this stage has any certainty if that statute was to pass, about when those powers would come to the Scottish Parliament. Yes, and that is a problem for us. We would like that to know whether it is in the statute, as you suggest, or if there is some other way, it is the outcome that we have focused on. Right. I am going to ask others around the table to comment on that as well, Robin, and I will come back to you clear. I am afraid that you are not going to draw me into taking it aside one way or the other on the clause. I will try to get some more from my report, if we can rate. I will do two things and say that WS starting point, and this predates the withdrawal bill, was—I do not see how to say this without getting into common framework stuff—we wanted to see common frameworks because there are environmental issues, there are pollution issues, there are animal issues, there are cross-borders, they do not reflect those borders and so on. However, our starting point, our position was that we wanted to see that done with respect to the devolution agreement as it stands, because that has always been the way that we have approached constitutional issues, is just to say, this is up to that, but the starting point is this is what the devolution arrangement is as it currently stands, sort of thing. The other thing I was going to offer was an example of where, in a way, we have built a common framework across the UK in the marine protection area, which is a mixture between devolved things, reserved things and so on. There is devolved and reserved happening within that marine protection area. What happened was that the different administrations of the UK worked together to create a shared UK Marine Act. It set some shared common goals, a really important one around trying to achieve good environmental status for the waters around the UK, but then there was the freedom, if that is the right word, for each of the flexibility is the right word, for each of the different devolved administrations. So, the example here, the Scottish Government could develop that marine act, could develop its own marine planning framework, all those sort of things. I just wanted to ask a little extra question to Simon about the fisheries federation position. It is very clear that fisheries management needs to be devolved and devolved very quickly to the Scottish Parliament. It is a little less clear about quota and negotiation and, as you say, acting as a coastal state. You said that you understand why that might need to be a UK power, but then you go on to say that it would be, you think that where the fishing is mostly caught in Scottish waters, it should be Scottish ministers who lead on that. Do you want to tell us a little bit more about that, please? If I may, yes. Thanks, Marie. Yes. What we're looking at in whether it's day-to-day management or negotiating as a coastal state is what we're looking for, the thing that makes most sense to our members, that has the biggest likelihood to get what they need. For them, the UK as a coastal state has the negotiating power, which would give it a win for Scotland, that's how they see it. The catch is, of course, if you like, that we have to make sure that Scottish interests as a predominant fishing nation, if you like, within the UK, that those priorities that we have as Scotland for our fisheries, the stocks where we have a dominant interest, that that is translated into the UK's position. Similarly, though, it's not just a one-way street, we would expect. The English, the Welsh and Northern Irish fisheries, where they have a particular interest, there are species in the channel that we're not interested in, for example, where they would have the right, as it were, to have the predominant say in the frame in the UK's position as a coastal state on those things. We don't see it necessarily, or it shouldn't be, antagonistic because there's enough separation, I think, and there's enough of a bias towards Scotland and most of the important stocks to make that self-evident. I don't think it needs to be in legislation. I think there should be scope for sensible adults in a room together to say, if you like, a memorandum of understanding—that could be one way of doing it—that the Scottish interest in framing the UK's position is understood and the UK takes that forward. For our members, that's the best guarantee, they think, using the whole might of you, if you like, of the UK's waters to get the best result for them, and that's how they see it. Servant, if we can stick to the repatriation of powers issue at this stage, I'm keen that I try to protect Colin Spacey a bit or in common frameworks because we're already straight into a fair bit and I've probably totally failed already, but we'll keep going. Serfan. Thank you. Serfan Paeddon from Coesla. Very briefly on the issue of repatriation and apportionment rather than just common frameworks. Clearly, we agree that there should be UK-wide policies and bodies and enforcement in issues that have transboundary nature the same way that there are EU law on things that are by definition transboundary. The problem is how to do the apportionment or responsibility between the Scottish level and the UK level, given all these powers that are coming back, because that's naturally completely changed the dynamics of the evolution in the UK. It is interesting that the bill itself is very, very open, gives us options. Actually, if you want to try to make a sense of the bill, it's much better to actually refer to the explanatory memoranda, as well as the February, March, White Paper and, in particular, the 16th of October Joim Ysdil committee communicate on issues because there they send a number of principles how this relation could move forward and when that discussion should take forward. Problem is that it's all very generally implicit and that's much less of a clear and stable relation that when you see now in the EU treaties, in the EU treaties you've got something called the principle of subsidiarity that says the principle of shared responsibility should be a portion between different levels of government. You have the principle of proportionality, which, of course, is not affording to the UK anyway, but that is very, very clearly framed and the EU has to operate on that. If you look at, for instance, the 16th of October communique, you really see that those two principles implicit, but considering that we have very different approaches, increasingly different diverging approaches in the UK, that perhaps might not be enough and would be much comforting that those principles were framed in a very presale legal terms in the bill itself, to give a level playing feeling, a kind of a sense of reassurance to everybody in the place. I'm going to veer into a small international example of presale actuality, which is the Catalan crisis. No, no, no, it's very simple. I mean, that issue has many dimensions, but one dimension that's perhaps not understood here is that a lot of the problem is that at a different level of government they share all the powers between the central and the regional government and because they don't manage to actually agree most of the time, they end up going to, apart from political discussions that we see, a bonfire of the equivalent of UK Supreme Court, a positive conflict of competencies. At the moment, the UK Supreme Court has almost nothing, no heard the cases in terms of evolution, in terms of this distribution of competencies. It's a risk that unless there's clear guarantees in the bill, we might end up in that situation where we get a lot of litigation going to UK Supreme Court. Thank you. Clear? Thank you. And then I'm going to move on to three months. Just a really quick point just on your question regarding clause 11. This isn't the view of NFV Scotland, it's just something that occurred to me reading through it, but essentially clause 11, it means that the Scottish Parliament will be able to modify or confirm power by a subordinate legislation to modify obtained EU law, and this is what's been characterised as a land grab. An alternative view that occurred to me was that this simply would stop the devolved administrations from legislating incompatibly with the EU on areas such as agricultural frameworks, for example, which would be retaining the status quo if we were to stay within the EU anyway. That's not the view of NFV US, it's just something that occurred to me. Something that is within the explanatory notes of the bill, I understand, is that there seems to be kind of warm words, I suppose, from the UK Government, that they'll work closely with devolved administrations in areas such as repatriation of powers released by orders in council procedure, which is, again, not something that I am familiar with, but what I think we perhaps could do a little bit more examination into is why that then can't be put on to the face of the bill, perhaps by the talk of a sunset clause earlier, a similar procedure, a date by which those issues need to be worked through in order to give clarity, because that's what industry needs. We'll move on to framework issues now, Colin. If you don't mind, Colin Reid from the University of Dundee. Thank you. As we've discussed and shown already, whatever decision is taken on repatriation, wherever the boundaries are drawn between devolved, reserved, retained EU matters, there's going to have to be collaboration, and that collaboration is going to extend upwards to the international level, below the national to the local government mechanism. The current devolved arrangements have lots of examples of bilateral co-operation between the devolved administrations and London. They're not very strong at all on arrangements for bringing all four of the administrations together. When you look at the communique from the joint ministerial council a couple of weeks ago, it identifies a number of ways in which things could be done together in the future. It talks about common goals, minimum or maximum standards, harmonisation, limits on action and mutual recognition. It has to be recognised that each of those might require a different structure, or a different form of organisation. The way the extent to which you change things to achieve this can vary greatly. One option would be to complete rewriting of the constitution on to a federal model, where you have an English Parliament and an English Government that deals with things separately. It may simply require a different way of working in Westminster, recognising that it has to pass two sorts of legislation, one sort of higher level legislation that is like an EU directive that deals with the UK as a whole, and then separately more detailed legislation for responsibilities in England. You then have to think about, well, if we're going to have common frameworks, who's going to—an number of questions arise. First of all, who is going to develop the policy, the standards, the goals, the framework? There are a range of options. It could be joint working between Governments, but that will require genuine willingness to co-operate, which the last few years suggest is not always going to be the case. One body has the power but does it by consultation with other bodies. You could give power to specialist groups such as the Joint Nature Conservation Committee, who would do a lot of the discussion and a lot of the hard work in doing things together, but then pass on recommendations to the legally-authorised legislators and so on, or maybe we need to create new bodies to fulfil functions. We have some bodies that stand on specialist areas or more generally that link together the different, the devolved and UK administrations. Whatever happens in relation to forming the policy, you then have to think who has the power to legislate. Somebody has to have the power to legislate. Is that going to be strictly divided between the different administrations, or is there going to be a wide area of shared competence at present when you're acting under the European Communities Act, either London or Edinburgh, Cardiff Belfast? Can legislate are we going to be happy to have large areas of shared competence, and if so, who's going to decide what's done under, what's done where, what are the control mechanisms going to be on that? If we're going to have UK-wide frameworks, how is compliance with them going to be enforced? At present, if a member state doesn't meet the requirements of EU law, the commission can take action, individuals can take action. What would happen if there's an agreed framework at the UK level, but the Welsh Northern Ireland Scottish English Government doesn't actually do it, implement it properly, implement it fully? What are the consequences of that? Who's going to scrutinise what happens at any of the general policy-making level? If we're going to have new bodies that are devising the general framework, what's their accountability going to be to whom? Are the parliaments going to work separately? Should the parliaments be thinking about new ways of coming together, joint commissions of the different parliaments, to fulfil all these functions? An awful lot of questions, I'm sorry. Not many answers. The answers are complicated by further things such as cost, who's going to be paying for whatever structures are put in, capacity and expertise, how often do we need to have separate bodies dealing with things, and complicated by the asymmetrical nature of British evolution. In the EU it's easy, you've got EU and the member states and all the member states are in the same position within the UK on all sorts of, from the outside often seem like fairly esoteric issues, but I'm sure that as soon as you start dealing with them, we're actually very major ones. There are differences between the precise powers of the Scottish Welsh and Northern Ireland administrations. So sorry, lots of questions, rather than answers. I think that these questions are being asked by lots and lots of people when you've explained it pretty well, I think. We could get into trying to design the system here today, that's not going to get us very far, I don't think. Well, whether it's some sort of council of ministers in the future or whatever it might be. So I guess the best thing we could probably do in this bit of discussion is to try to agree what the principles would be that we need to establish, to create whatever these frameworks might look like, whether it's a... There was 114 areas outlined, or potential areas, where they need to agree. I think it's now becoming clear that there's going to be a hierarchical approach to that, there'll be some sort of frameworks which will be required at a national level, some will require a member understanding, some of them may only require an exchange of letters, lots of mechanisms we can use to deal with these. But I guess the key question for me and I hope we can address today is, and what basis should they be taking forward, though? Is that by consultation or is it by agreement? I think that's the... I'm sure there'll be others who want to add other thoughts into the process, but that's where my head is at the moment. I agree with what's been said. There are obviously clearly very complex questions and I've raised some of them in my remarks, but I think it's not consultation or agreement, I think it's both. I'm afraid I don't have the answer by which structure you would ensure that, but I think that there needs to be a bit more good will on both sides, perhaps, to try and escape some of the politics around it and actually look at where we want to be and then what things need to be dealt with in the hierarchy to get there. If we're to be leaving the EU on 29 March 2019, then that is a pretty solid timeline by which I would hope that we would have a bit more clarity on some of these areas, but for now it seems like we are a bit of a stalemate. I don't... Thanks, Camila. I think there's a view and I think this is reflected in what Colin just said, which I found very helpful, thank you. I think there is a view emerging, but before we kind of just accept that it's emerging, I would just like to test it. There's a view emerging that the solution to the disagreement between the two Governments about clause 11 is a solution that relies on common frameworks. We know what the position of the UK Government is because the position of the UK Government is reflected in the bill. We know what the position of the Scottish Government is because the position of the Scottish Government is reflected in their legislative consent memorandum and in the proposed amendments that they've put forward. If I've misunderstood you, Colin, please say so, but it seems that you think and indeed a lot of people think that the solution to this disagreement between the Governments about clause 11 lies in common frameworks so that there will need to be some recognition in the withdrawal bill that some of these common frameworks, some of them might just be exchangers of letters, but some of these common frameworks might require to be enshrined or at least recognised in legislation in a manner that constrains the legislative competence or the devolved competence of administrations. Is that broadly your view? Yes, I think so. The differences between the two Governments represent fundamentally different starting points. They're not going to abandon those quickly. If you look at the bill as essentially a transitional measure, a way of getting things done quickly, the question is where are we going to be in however many years' time? If my suspicion without being deeply involved is that if the devolved administrations had greater confidence that their position, their freedom, their powers were definitely going to be recognised in the future, then the fact that the way towards that involves giving more power to London may not be as big a problem. Would it be your view then that clause 11, as it currently stands, would work if it was subject to a sunset clause? I think that if not just a sunset clause, but there was greater agreement and confidence on where it was going, I think that sunset clauses by themselves are potentially dangerous because you just hit a problem on this. When you ride towards a sunset and haven't got everything done, you hit a problem. We're trying to deal with legislation, as you know. How do you write that trust or that hope into legislation? I think that's the fundamental problem on all these structural issues. Any structure can work if there's goodwill, however ill-designed it is. Any structure, however beautifully designed, won't work if there's no goodwill to make it work. Are there any of our guests here who think that the idea that you can solve this problem through common frameworks isn't going to work? Is there any dissent from that view? No, there isn't. Thank you. I'm not sure that's the case, but we'll test it. If you want to reflect on that, what you're going to say anyway, Robin, then please feel free. I know Kate wanted in as well. I'm not sure if I quite understand the question from Mr Tomkins, but maybe you'll get an answer in what I say, hopefully. Our starting point predates the withdrawal bill, was that common frameworks are a desire of outcome because there are issues that spread across our borders that fish don't know which exclusive economic zone they're in, which territory of waters they're in, that sort of thing. We were also quite clear that, and this was partly about a starting point of wanting to respect the existing devolution settlement, was that they needed to be commonly agreed, but the other benefit of those common frameworks being commonly agreed by the different administrations within the UK is that, when you have that buy-in and that involvement in creating those common frameworks, you're going to have a greater desire to make them work and a greater desire to effectively implement them. They're going to be things that also give you better flexibility to reflect, whether it's different geography or whether it's different politics, different desires within each administration. Another thing that we're really keen on when it comes to the common frameworks that we want to end up with, for example, is that they do, by their nature, allow on an element of flexibility. For example, we're quite keen that they end up being things that are floors rather than ceilings, so that if there's one of the nations of the UK that wants to go further and create higher environmental standards, there's that ability to make that decision to go further and to go higher and so on. The key thing is that we want to see common frameworks be arrived at at the end point, we want to see them be commonly agreed where they spread into devolved matters. I think that one of the questions that Professor Reid asked, or what I took from it, is that there's different ways that you can reach that conclusion. There's different paths to that conclusion. Kate? You asked, if you thought frameworks needed to happen through consultation or by agreement, and it was just to, I think, agree with Claire on the point that I think it's both. To go back to the devolved issues again in relation to this, economic development and spatial development policy are devolved issues and therefore there are different policies on both sides of the border. Therefore, you're going to have to have a two-way conversation about how you meet in the middle of those policies in order to create your common framework. I think that, just to give an example as well, I know you're looking for them. I think that these issues often obviously become crystallised out of the physical border. Obviously, the Scottish English border, there are travel to work areas that cross it, there are function economic areas that cross it. Those activities aren't restricted by the existence of that border and I know that the local authorities along that border therefore work together very closely in practical terms. I think that that's just an example of how a common framework would behave in terms of guiding the actions and the decisions of those local authorities. Seraphine, I'm sure, would probably be able to add more detail on that point. I'll get to Seraphine, but Patrick wanted to say something as well. Thank you. Just a very brief point about the language that we're using to describe these things. I think that Adam asked a very important and clear question, with one exception, that the term common frameworks can mean different things. If we talk about commonly agreed frameworks, yes, there might be times when that's achieved by the exchange of letters between two Governments or more than two, and there might be times when it's done by legislation, where it requires legislation, but that in itself has two possibilities. One is that each Parliament or legislative body in its own jurisdiction passes its own legislation to achieve that commonality, and the other is that the UK Government imposes legislation regardless of the decision-making authority of another body. To me, it means agreed in common, but perhaps we need to be more explicit about that and talk about commonly agreed frameworks or imposed UK frameworks, because they're profoundly different in terms of the questions about authority and democratic accountability. Very quickly, in relation to what's just been said, there's a third option, which is commonly agreed, and it's agreed that it will be legislated from by London using any reserved powers. That itself blows a hold through the argument about devolved democratic accountability, because common frameworks are separately legislated in an agreed way, and if at some future time that agreement no longer exists, it's down to each participant in that agreement to decide whether they want to put up with it or change it. However, if it's legislated at UK level, then that authority to change the agreement in future has also been ceded. That's a question of whether it's ceded forever or just ceded for the particular, as a one-off convenient function. Colin, can I just on that specific point before I come to Daphne? Sorry, Daphne. Does that two-way conversation that we're talking about here, that consultation or agreement, whatever it might be, does that need to be written into the bill at clause 7, I think it would be, do you think, in your view? It would certainly strengthen the arguments for co-operation to have something more firmly in there. Prior to all this debate coming up, we had the situation where the UK Parliament and UK Government were able to legislate on European community matters for Scotland as well. Whereas we got the sole convention in relation to primary legislation, to the best of my knowledge, there was no formal process for the Scottish Parliament getting involved when it was agreed that delegated legislation to implement EU measures in Scotland were actually going to be made on a GB or a UK basis in London rather than in Scotland. I find it a bit strange that it's right that there should be a big concern, but there's been a gap that's been there since the beginning of the arrangements, with the wide powers for the UK Government to make law in EU matters. To agree with Colin on his remarks regarding frameworks, I think that there's a few points from a Scottish Environment link point of view. What we would like to see is the right process put in place for agreeing on what UK frameworks are and how they are agreed. At the moment, there is a marked lack of debate on those issues. I think that it's indicative that, in the joint communique that was issued last week, that I think that, as Sarah Finch mentioned earlier, there were a lot of good principles in terms of where UK frameworks can apply, but nothing about stakeholder engagement, transparent and inclusive process. Obviously, if we want to have a real dialogue about how this can work effectively, we need to include as many stakeholders as we can and need to take those used into account. That's one important point. The second point is that we've been talking almost exclusively about UK frameworks. I think that that doesn't necessarily acknowledge the fact that the specific problems that Northern Ireland will have in terms of its borders with the Republic of Ireland, from an environmental point of view, are considered a distinct ecological unit. You could imagine some of those UK frameworks being wider frameworks that involve the Republic of Ireland in some ways. That's perhaps a slightly separate topic. Then you also mentioned clause 7. I think that that's perhaps where we have had some specific concerns with respect to, in fact, clauses 7, 8 and 9, which reference deficiencies in EU law and how it would operate in post Brexit in a post-Brexit environment and technical changes. I think that it's very important to limit those delegated powers to ensure that they actually do what they're intended to do. At the moment, they are framed in a very general and open-ended way, which means that we might have substantive changes that we don't necessarily want and are not within the line of the bill. A couple of technical stuff in the next bit of discussion. I'm just flagging it. That gives me a good link in, though, to Serifyn, because that's where we're going next. Serifyn, as you introduced this next bit around the withdrawal bill and the technicality issue, can you maybe give us what you—I don't know if you saw the general principles that flew—that came out of the GMC last week that was already being flagged up by Daphne. If you'd like to reflect on what you think of these as you meet your contribution now, that would be helpful. Just for the flow of the conversation, the colleague has just mentioned enforcement models and new common frameworks. If you see our submission, as a result of the exchange that we have with our counterparts in other countries, we have identified a number of common frameworks that could be learned or serve as inspiration for the UK and the Welsh administrations from Italy, from Germany, Netherlands, Sweden, Finland. Even the committed regions can, finally enough, be a good practice here. This is a rather important issue because we are basically the great repeal bill effectively changing the constitution of the UK because of the powers being repatriated. It's something rather not technical and serious and beyond political. There are—they should be, in our view in the repeal bill, a number—they should be already a number of specific provision of how common frameworks will be developed and perhaps reflection on possible models. That would not just include the devolved administration, but also, for Grimifine Bridge, on that local government as well as one of the three tiers of government of the UK. At the moment, that's not being certainly part of the discussion. In addition, other than a number of bilateral discussions we might have had with the different governments and with the European Commission, we met Mr Bernier last Monday. For instance, I'll give you an example of a possible framework. In 2011, the UK government, the UK Parliament approved the Localism Act. The Localism Act sets a number of provisions where, if a local authority is going to be liable to pay EU fines for environmental infringements, for instance, how the apportionment or responsibility will be made. Originally, it was a bit like the repeal, the withdrawal bill. The UK minister wanted to take the decision on his own, and what we managed to negotiate is a system called the European Policy Statement 2012 of the Localism Act 2011, where there is a more iterative way of resolving these disputes. In the end, the UK government will have the last word, but allows local government to actually try to understand and agree with the government where the responsibility lies. We see that sort of principles, which are already being agreed in this EPS of UK legislation, could actually be a good base for the wider governance issue of the UK. Something that will include as well, I believe, the Scottish Parliament, we haven't talked yet about the Scottish Parliament. Given the changes that the evolution has had operating the UK as a whole, and the changes that are going to come because of the withdrawal bill, it should be perhaps a consideration whether, for instance, UK members of the Scottish Parliament and Assembly members participate in joint policy making in London. We have made a number of recommendations, just suggestions, perhaps expanding the House of Lords, creating a special chamber. I mean, there's a number of mechanisms. At the moment, the only mechanisms we are aware of for inter-parliamentary co-operation is only your law, but precisely the early warning system, where the different European committees of the four parliaments agree something in a informal consultation mechanism called the UK Forum. Well, clearly, that's something that is not sufficient for given the amount of changes going to come. But if I draw from, again, in terms of the role of the Scottish Parliament on the issue of how it could scrutinise better the withdrawal bill and subsequent acts, I'd like to draw the example of the European EU law as well, the parliamentary scrutiny provisions of the delegated and implementing acts. These are secondary pieces of legislation of EU law in which the European Parliament and the MEPs have effectively a veto. So, suspensif vetoes, they have a month to respond to whatever the commission has done as an implementing act, but if they refuse, that piece of law is not included. It will not be bad to consider the role of the Scottish Parliament and the other devolff assemblies to try to consider those issues. Just to conclude, in terms of just a number of other technical issues not being touched upon. When you're just concluding, one of the things that came through in the evidence was that quite a number of the participants here today had concerns about the withdrawal bill regarding the powers for ministers to make secondary legislation and the scrutiny issue. Now, in the last 10 minutes that we've got left, we need to address that issue, otherwise we're going to have nothing on the record. So, could you just deal with that now, Serifyn, in your closing remarks, and then I'll go to a wider audience? Absolutely. I mean, in a way, what I just referred on the scrutiny provisions that MEPs have at the moment on secondary legislation could be a good template that could be actually applied and introduced in the bill, and that will give MSPs a wider say on whatever actions ministers or MPs in London doing in regards to issues of shared competence. There are a number of other issues that, as the chair mentioned, as technical issues. We would like to see more clarity on reporting obligations. This is outlined broadly, aligned in the bill, but it should be more clear. Issues of reciprocity, I mean, what happens with waste ship legislation? I mean, there are pieces of you legislation that require both the EU and the UK to work, and that's particularly important for local government. Will the UK report to a number of large goals like the EU energy package that is being currently discussed at the European level? There is also mentioned the issue of structural funds. It's not clear whether that rules will actually be included into the bill, and they will have an effect of how monies are spent in the future. Finally, just a small reference to say, if the Scottish and Welsh Government managed to persuade the UK government that their amendments of the bill whereby Welsh and Scottish ministers will not just be required to consult, but giving assents will be perhaps a de facto big constitutional change in the UK that we haven't seen in the last 40 years. The issue of the secondary legislation that Seraphon picked up there in terms of the scrutiny process—I know that some organisations made comment on that, so now is your chance to put something on the record. As I indicated earlier, we are quite concerned at the moment that the powers in the bill essentially mean that it will not be constrained to the purpose of faithful conversion of EU legislation. In particular, I'm worried about the fact that it's not clearly defined what constitutes a technical or a non-technical change. The word deficiencies is not sufficiently limited, so there's an illustrative list of what might constitute a deficiency, but it's not limited. It's not clear whether there might be other examples that are not included. Again, that could lead to more substantive policy changes being carried out through those delegated powers. Something that has been floated—we're very pleased to see that Minister Michael Russell yesterday mentioned that they're considering the sift and scrutinised mechanism that's also been proposed down at Westminster—that's something that Greener UK fully supports as a mechanism, so perhaps a time-limited parliamentary committee that could sift through some of the statutory instruments in order to identify which ones might necessitate an increased level of parliamentary scrutiny where they might be considered a non-technical change. That's a brief overview. That's quite clear as well, thank you. Any other people who want to pick up on that issue? No members, clear? I'd completely back up what you've said there. I think that there needs to be a strengthened role for the Parliament here, because that's clearly a major concern. It seems as though the parliamentary committee structure has been somewhat bypassed in some of the drafting of the legislation. We would agree with recommendations that have been put forward for either a strengthened role of committees to decide where scrutiny of statutory legislation takes place or, indeed, for a parliamentary committee structure to look at those statutory instruments just to give them better scrutiny. I have a very quick observation. In all this discussion, it is interesting that we are trying to go towards a much better system than we have already. I think that it would be helpful if the committee bore that in mind, that for many areas of policy, certainly fishing, we are coming from a very bad area indeed. I am not talking specifically about secondary instruments, but about a whole range of discretionary powers that are being exercised currently without any checks, balance or questioning at all. Anything that can do better than that is certainly a great deal better than where we are at the moment. Kate, do you want to reflect on any of that at the end here? What Isabel said, those are jointly held positions. We have also requested that the delegated powers that are confirmed on ministers across the UK are time limited to the two years and that any further changes from that point onwards to EU retained law needs to be made through primary legislation, so that would be something important. On that time limiting period, if we are talking about a two-year transition period during which we are maintaining the state of school, what happens during that transition period? It is a big uncertainty. At the end of that, it is only at that stage that we may need to make some of the adjustments. We could be talking about a four-year period if it is two years of the state of school and then two years of transition. We, as a committee, will be trying to draw a report together before the end of the year and certainly an interim report on our position on the legislative consent motion and a general report on the bill. The contributions that you made today will help us in that hugely. I am very grateful to everyone for coming along today and we are now moving to private session.