 Good morning and welcome to the 28th meeting of the constitution of Europe external affairs and culture committee in 2022. Our first agenda item is a decision in taking business in private. Are members content to take agenda item three in private? Yes. Thank you. Our second agenda item is to continue our evidence session on the legislative consent memorandum of the retained EU law, revocation and reform bill. This morning we are joined by Isabel Mercer, senior policy officer of ISPB Scotland, David McKay, Head of Policy Scotland Soil Association, Professor Colin Reid, UK Environmental Law Association, Lloyd Austin, Governance Group convener of the Scottish Environment Link, David Bowles, chair, trade and animal welfare coalition, and David McKenzie, chair of the Society of Chief Officers of Trading Standards in Scotland. A warm welcome to you all and apologies for, as you can tell, not in best form today with the cold. We have three general themes to cover this morning, which we hope to stick to, but as those things go with around table, it can be a bit more free-flowing, so please just indicate to myself or to the clerks if you want to come in in a particular question and hopefully we'll have enough time to cover everything this morning. So I'd like to start with an opening question around just if you could provide not in too much detail because thank you as well for all the written submissions, but just an overview of your own impact assessment of the bill and particularly in relation to regulatory environment in which they operate and the potential impact of relevant standards and protections in devolved areas and how that will affect impact on trade and business. So if I could maybe go round the table from left to right and bring in first Professor Reid. All right, good morning. Thank you for the invitation to be here today. I think it's obvious to everybody that this bill will have a huge effect if it comes into force, that so much of our regulatory law in so many areas is dependent on EU measures, and to add to that you have the uncertainty about what's actually going to be affected, partly because we don't know what the UK Government is going to want to maintain, continue and keep going, partly because of the complexity of the actual legislation that when you look at the regulatory framework within Scotland you have delegated legislation that was made under the powers of both the European Communities Act and domestic legislation, so trying to work out which bits are going to be affected or not is itself a problem. In the environmental area which I work in so much of our law over the last 40 years has been shaped by EU law and it's a hugely complicated integrated patchwork of domestic legislation, EU legislation, the two have worked together up until the past summer, there are still measures being made in London that rely on the retained law and new law working together and that's all going to go. The timescale is incredibly short for trying to sort out what was going to happen, it's completely against the decision that was taken when Brexit was decided on that the only sensible way was to have continuity and then at leisure as and when needed review different areas, decide what's the right for Britain in the new world and picking up from the written submissions I think just perhaps the one thing that's perhaps underplayed in all of those is the impact of losing the certainty of European case law that the case, the court decisions from the European court are so important in making certain frameworks, laws, works or even if the text of the legislation stayed the same the fact that the interpretations could not necessarily would but could change as a whole extra layer of uncertainty. So I think uncertainty is the big message in capital letters that if we knew exactly what was going to be affected, if we knew the policy direction that was going to be taken on various things it would help but we don't even know that. Thank you, Ms Metter. Yeah, morning everyone and I'd just like to say thanks for the opportunity to come and provide evidence today. So as set out in our written submission RSPB Scotland is deeply concerned about this bill which has major implications for a whole range of environmental laws and protections for nature in Scotland as well as many of the other areas that have been spoken about to the committee already. So we see this bill as creating a legislative cliff edge for thousands of laws including key laws protecting nature and I guess I'd like to kick off my remarks today by just stating that RSPB's position is we think that the approach in the bill is so unworkable and undeliverable in the timescale set out in the bill that we would actually like to see the UK government withdraw this bill and come forward with a different more consultative more sensible approach to reviewing and amending and improving environmental laws. So I think it's important just to state that as has been spoken about often by Greenie UK which is a coalition of environmental organisations that are engaging strongly with the spill at the Westminster level. We are not opposed to improving and reviewing and updating environmental laws but it's just that as Colin was setting out just now the approach in the bill presents such a high level of risk and uncertainty particularly given the sunset provisions and the deadline provided there that we feel that a new approach to looking at rule is needed at this stage. So I'll finish there for now but we can come back to further detail throughout the session. Thank you Mr Bulls. Thank you very much chairman and thank you for inviting me up. I was fortunate if that's the right word to give evidence to the bill committee in Westminster and the RSPCA was very clear alongside Greenie UK and wildlife link that our best option is to scrap the bill if not pause it if not look at what the deadlines are because that is a huge cliff edge if you're looking for certainty from the UK government I'm afraid you won't get it and I think there are there are two major issues that the Scottish government should be really looking at. The first is what is devolved and what is not devolved so the RSPCA and talk have gone through the 44 different pieces of legislation and in our submission we have written down what we think is devolved. I'm not a lawyer that is my subjective opinion and you will not get any guidance from the UK government on that and the difficulty for the Scottish government obviously is that the deadline is next December so you only have 13 months to do this and then your right to to to have retained EU law will disappear and the UK government will act for you. They were very clear in bill committee last last week that they will not change that deadline but they will act for the Scottish government and I think that is a very dangerous precedent not just for animal welfare legislation but for devolution itself and they are trampling all over the Sewell convention. Finally just to give you a few examples of where I think this could this could really interact not just with animal welfare legislation but to be honest with the trading corporation agreement with the EU there are pieces of legislation in there for instance will the UK government retain the beef hormone ban which they've said that they've set in law well it may not be set in law if it falls under this sunset deadline and obviously the EU has a ban on importation of beef with hormones and if the UK government is doing trade agreements with the USA, Mexico or both of whom and Canada both of whom have beef hormone in production that is going to rip up the TCA. Another issue which is possibly more relevant to Scotland is the ban on battery the battery eggs situation. I was involved in bringing that ban in at the EU level in 1999 that deadline went into 2012 so we've had 10 years of having a ban on the baron battery cage that ban was bought in because of public demand but we could again see that slip because the UK government is so intent on doing something which is so political in this which is changing the sovereignty of the EU legislation and that really worries us. Thank you chair. Thanks for inviting me along today to speak. I'm here to speak for trading standards which is the general regulator if you like in terms of fairness and safety in buying and selling but a local authority functions so over 30 teams across Scotland and my organisation Scots tries to bring that together, co-ordinate and support and try and have a sort of coherent approach to the work which I think we're able to do quite well. I mean like others today and at previous sessions our main fear in this is the sunset clause we would say that it risks the loss of vital protections and there just simply is nowhere near enough time to go through everything between now and next December and we would point from our position you know on the ground in our local communities doing our daily work we would emphasise that there's a real threat here to those local communities to consumers but also to reputable businesses who are also set to lose from this potentially it seems to us. I think we the whole concept and process as again as other colleagues have said it seems problematical to us you know it seems to me that for example we could get significant changes to law here which without any kind of real impact of assessment or scrutiny of any kind but I'm probably going to leave those sorts of issues to other people today I think what I can do today is bring maybe a flavour of the variety and the widespread impact of this you know in our local communities in terms of the range of topic areas that are covered very briefly in the devolve sphere it's mostly the sort of interrelated issues of animal feed and animal health and welfare particularly in terms of the sort of farm to fork process so we're talking about the keeping of animals in holdings we're talking about transportation we're talking about slaughter that sort of thing and safety and fairness quality issues in terms of animal feed and so on so a great big interrelated series of laws there which our guys are you know work on daily in in in our local areas at one or two other areas animal disease control partly one or two areas around human health one or two areas around environmental protection as well but I think that while I appreciate we need to concentrate today on devolved matters for obvious reasons I think it's important for me at some point to make the point about most trading standards laws reserved and a lot of the really fundamental impacts that this will have in in our localities in Scotland is from the potential loss of some of those reserved laws so we're talking about I mean you'll see it in our written submission you know weights and measures general sort of fair trading online buying rights intellectual property which is a really important thing for protecting our businesses as well as our consumers you know just everything that under under underpins the consumer world certainly but beyond that into industrial areas as well very very widespread potential impact of this if the sunset you know with the sunset clause coming so soon and I want final point for now um I wanted to just bring out something that I think that professor reed touched on here and it's the the interrelatedness of all of us um you know while there are a minority of the things we do are devolved although some very important things but a minority of things they're impacted upon by the non by the reserved stuff and also by the non retained EU stuff so all this all this law works together and a very quick example a single use vapes um these things I don't know these things caught us by surprise in the last year or so some real problems with these products they're some of them are unsafe they're certainly not suitable for children but they've been sold to children a lot of work going on by our guys up and down the country on this and we're using reserved laws we're using devolved laws we're using retained EU law we're using non retained EU law to be effective in that space you know and that's a really important point to make and the actually sorry one final point as others have said we're not against change here we're absolutely not against change and that there are some retained EU laws that we absolutely think could be improved and we'll participate in that but 12 13 months is not long enough to go through whatever however many thousand pieces of legislation is okay thank you i am mr awesome oh sorry mr mccarry sorry thank you and thanks to the committee for the opportunity to come and put forward the views of soil association today to provide a wee bit of context for my opening remarks it's worth pointing out that soil association is a membership charity we were founded in 1946 and among the founding principles we're all about the production of good nutritious food for all which we produced with care for the natural world now that mission is as true today as it was more than 75 years ago and in the intervening decades we have worked with others to campaign for more sustainable methods of food production and that has included where appropriate legislation regulation for example we helped develop the first standards for organic production which are underpinned in law but was EU law and has now been taken over as as retained EU law so we absolutely share the concerns of the others who have already given evidence today particularly the environmental organization so i won't repeat what has been said so far but the one thing i would emphasise is that we have no objection to a sensible process of examining of updating or improving existing law we just don't think that this bill delivers that as it has currently drafted in our evidence submission we've gone in and pulled out specific examples and there are many hundreds of examples that we could point to and we've grouped these around pesticides animal welfare organic production as i mentioned GMOs and consumer protection and to take just one example for a moment around organic production we're in contact with with DEFRA on a regular basis and our understanding is that 200 of the 576 pieces of legislation that have already been identified and important to note that's potentially not all of them are being looked at by DEFRA's organic unit so despite assurances that we have had from DEFRA that the organic regulation itself will be maintained we remain very concerned about the implications in terms of resource and capacity for looking at such an enormous volume of legislation in a relatively short period of time but also it's not just about the the organic regulation there are all sorts of where it turns horizontal regulations that cross cut and are referred to within the organic regulation and these cover a whole range of areas including water quality animal welfare payments for sustainable systems as an example so it's important to remember when we start thinking about pulling on individual threads there are all sorts of other areas which are interconnected but i'll i'll leave it at that for now and obviously i can have continued discussion thank you finally minister hosted sorry thank you convener and thank you again for like the other witnesses for the opportunity to talk to you today. Scottish environment link is a forum for scotland's voluntary environment movement we have over 40 member bodies and the governance group which i'm the convener of tends to focus on on the roles of public institutions and legislation and environmental law in in addressing environmental issues and and therefore that group of NGOs has been the one that has has commented on and sought to influence the the Brexit process as well as other kind of institutional and governance matters and so that's why this bill falls within our remit within in the link process and like the other speakers we are very concerned about this bill we think it's it's it's very high risk to our environmental standards because we think it's it's in a sense deregulatory by design but it's not deregulatory in a thought out manner it's deregulatory in an indiscriminate manner if i might put it that way in as much as everything is lost unless it's retained rather than the other way around and that is a very big risk and it's particularly contradictory to the Scottish Government's policy of keeping pace with environmental standards and therefore we're concerned that there's a potential there for that to be that commitment to be undermined and i think i would endorse what everybody else has said about the uncertainty and the complexity of of the of the challenge that would face the UK Government and the Scottish Government and the Welsh and Northern Ireland Governments in in dealing with the the various reviews that they'd need to do in the timescale mentioned i mean the secretary of state said yesterday in the House of Lords that DEFRA the Environment Department of the UK Government has identified over a thousand pieces of environmental legislation that they would need to review now we know that their estimates if you look at the UK Government's dashboard are incomplete they don't assess which are reserved in which are devolved and and just the other week they discovered another tranche of a thousand across all government not just the environment so there's clearly a lot of uncertainty and complexity in this area and and therefore the scale of the task and the resources that would need to be devoted to that task are immense and devoting those resources to that task would be a total distraction from um both government's priorities to address the environment and the climate crisis in the way that they're they're trying to um i think i would end on two points first of all highlighting the interconnectedness that everybody else has commented on both with uh reserved environmental law with um other aspects of UK legislation um and also um i would finish by saying that like others we're not um opposed to the sensible process of review and improvement um and uh you know i think when there have been reviews of environmental law like uh the EU led fitness checks uh or indeed UK and Scottish Government reviews those processes are constructive involve stakeholders etc and and reach sensible conclusions and that's the way to go forward in terms of of reviewing and making revisions rather than a sort of blanket revocation and a panic process by which you determine which you keep on which you don't thank you thank you very much i want to open for questions from members members may direct questions to specific people but please if you do want to come in on a topic just indicate and we'll try and include everybody and i'll invite miss boyack first thank you very much convener um can i thank the witnesses for all the written evidence we've had in front of us today which has been really helpful um i want to explore some of the issues there um in the last couple of weeks we've heard about lack of clarity and certainty complexity um with what happens with the cliff edge here in terms of legislation and impacts on producers and businesses and everybody mentions environment but can we get some examples i think you talked to david mckenzie about the impact on communities i was thinking of maybe going first off to rspb to isabel just give us examples in your um submission you've talked about habitats directive air quality water quality others have talked about chemicals can you say how that will actually impact on us what legislation is potentially at risk here yeah no yeah absolutely so i think um there's probably two key issues i'd want to raise here and actually some context start off is just to remind all of us that we already know we're in a nature and climate emergency and that this is a really critical juncture for nature and so it's actually deeply frustrating um that we're talking about kind of fighting for keeping some of our existing effective protections when we should actually be looking to build on those at the moment and restore nature at scale um so i think in terms of the impacts of this on Scotland's ability to do that and deliver on its welcome ambitions to restore nature there's two key things so one as has already been mentioned is some of the resource implications the knock on impact that that will have upon the planned legislative timetable for key pieces of legislation such as the natural environment bill which is due to come forward at the end of 2023 or the beginning of 2024 which is going to contain crucial nature recovery targets basically to be the equivalent of Scotland's net zero targets but for nature so the resource implications and the capacity and the knock on implications that will have a huge as has been mentioned but then in terms of some of the specific areas of regulation we're concerned about so when it comes to protections for wildlife as you mentioned the habitats regulations are some of our are basically our best wildlife protections so these are regulations that protect our best wildlife sites and also vulnerable species and include environmental assessment of plans and projects that could potentially affect those important wildlife sites and just to give the committee a bit of a flavour of some of the complexity here in Scotland there's actually three habitats regulations that apply so we have the conservation of natural habitats regulations 1994 as amended so these are devolved Scottish regulations that cover the terrestrial environment in Scotland but then secondly there's the conservation of habitats and species regulations 2017 those are UK regulations and they do actually apply in Scotland under some circumstances because for energy consents for energy generating stations over 50 megawatts those UK regulations apply in looking at potential impacts on wildlife sites on land and then thirdly we have the offshore what are known of the offshore habitats regulations which look at the potential impact of marine activities plans and projects on important wildlife sites in the marine area so that gives the committee a flavour of the fact that even if the Scottish Government chose to basically restate the Scottish habitats regulations and move those over onto the statute books as a simulated law which is what we assume would happen given the Scottish Government's welcome commitments to maintain or exceed EU environmental standards there would still be a potential gap there if the UK Government didn't choose to restate the UK habitats regulations so that's just one of the areas where we're particularly concerned about some of the impacts here. Okay thank you and we heard from the salt association you had concerns can you say a bit more about kind of water quality and pesticides what impact that actually has if we lease some of this regulatory or legal environment. Yes thank you as we said in our our written submission around pesticides so many of the most fundamental laws and pesticides are derived from the EU so for example the maximum residue levels which establish the maximum concentration of pesticide residues that can be permitted in food and that applies both to animal and human consumption and obviously those are vital to ensuring food safety. We also have rules such as the plant protection products regulations so that's setting out requirements for the safe use storage and handling of pesticides that incidentally also includes a requirement for the UK Government to produce a national action plan on pesticides which is aimed at achieving a sustainable use but I think it's worth pointing out as well that organisations like ourselves are quite often asking governments to go further and many of the regulations that we have in our view don't actually go far enough so as an example the Scottish Government is currently consulting on a new agriculture bill and within that we are making within our response we're making the argument for an enhanced regulatory baseline we are making the case for targets to be included within the bill for reductions in pesticide usage and we are unsure at this stage and unclear as to as to what this means for the environmental ambitions of the Scottish or Welsh governments and I think others have made this point already and perhaps Professor Reid might be able to elaborate on this I think he did in a recent blog that we cited in our evidence but does this in fact create a regulatory ceiling for the devolved administration so that's another concern that we have and to pull out one other example around GMOs so if you go through the UK Government dashboard and obviously others already made the point that it is incomplete so it's difficult to form a clear view but you know immediately you can see there are a number of pieces of legislation that relate to GMOs and again these are mostly EU derived and some of the regulations for example regulation 1830 provides a framework for traceability for products that consist of our contained genetically modified organisms as well as food or feed that's being produced from GMOs so we're very concerned about that because the traceability is absolutely vital and that applies in cases where products may have to be withdrawn we need to know what's out there and what's in the chain and also for the monitoring of the potential impacts or effects of these products and animals and the environment so that also applies to the labelling so accurate labelling is important and which allows consumers to exercise freedom of choice so there are all sorts of issues here and obviously those are just two examples around pesticides and GMOs but that would be at risk if some of this legislation was removed Thanks I was wondering Lloyd Austin if you wanted to come in I'm already getting lots of issues about water quality not being enforced but we take for granted water quality and air quality are there issues there that this legislation puts at risk? I had mentioned a few issues I mean I agree everything with what Isabel mentioned about the habitats regulations and what David said about pesticides and so on but other other well-known EU retained law the effect the environment would include the implementation of the water framework directive which you mentioned which is about water quality and water resource management obviously bathing waters quality is related to it what were previously EU standards the marine strategy framework directive is another one that's implemented through regulations in Scotland and in the EU and in the UK the whole system of environmental impact assessments and strategic impact assessments are obviously originated as and are now retained EU law though all of those examples are implemented by a mixture of primary legislation and secondary legislation and whilst the primary legislation might not be affected all of the the secondary legislation particularly that derives that was implemented under the 72 European Communities Act would be affected but there is an element of retained EU law that is is also described in the EU withdrawal act 2018 as saved EU rights powers liabilities obligations restrictions remedies and procedures and that's a a catch all provision that relates to EU law that had direct effect in the UK on on withdrawal day and that captures the provisions of the EU treaties that have been recognised as having direct effect in case law if you see what I mean and from our point of view one of the key aspects of that is the EU environmental principles now in in the UK and in Scotland those EU environmental principles have been put into domestic legislation the environment act in the UK and the continuity act in Scotland and yet those provisions have not yet been brought into force they're not that neither the UK government or the Scottish government have have finalised the policy statements about their implementation and they've neither published the final version nor of the that version being approved by respective parliaments and so we don't know how those principles are going to apply now and so in effect revoking the direct effect of the principles as part of retained EU law in the absence of a proper arrangement for for implementing the principles is a clear fedge in itself and of course the application of those principles to the way in which all of the other measures the habitats the water the the marine etc regulations work that is another impact that we have which is an indirect one and the trouble is that some of those kind of safety you rights provisions are not you know if you were to if both the UK and the Scottish governments were to cut and paste some of the regulations into new regulations whilst we've said that's going to be an onerous task it is possible to do but you can't cut and paste those retained case law rights if that makes sense or the interpretation that is the interpretation that's available of retained EU law in bits of case law so that's a that that will be a a void that we can't avoid if you see what I mean thanks and professor reed do you want to come in in this point because your evidence is really quite powerful about the sheer scale of the legislation just on environment alone yeah and what i was going to do was pick up some of the complexities from the examples that have already been given because in relation to water the controlled activities regulations which provide the detailed framework they were made under the water environment and water services scotland act and under the european communities act so presumably any bits of that those regulations which were made only under the authority of the european communities act will disappear those that were made under the the woos act will survive so somebody at some stage is going to have to go through the entire set of regulations and work out well was this provision authorised by both by one only what happens and what happens as a consequence of that we've talked about environmental impact assessment environmental impact assessment at the project level is in delegated legislation so it would be affected by the sunset strategic environmental assessment because the scottish parliament cited to legislate separately and that it will survive because it's in primary legislation in scotland but not in the rest of the UK environmental information as another area that will go but that is a requirement under the office convention that the UK is a party too it's a requirement under the train cooperation agreement between the UK and the EU so you've got that extra layer all the international sides to think about as well as the internal and devolved so I'm afraid it if some of us seem a bit vague about the implications of this it's because of the sheer scale of trying to work out and to work out these different layers something in terms of what is the intended process by which law would be actually retained we've talked about the scale of it but just to say what does it actually mean in terms of this legislation to save a piece of legislation what is the process for that as currently construed by this bill it would appear that it's available for the relevant authority whether the UK government or the Scottish ministers could make regulations that would say this is going to you know these measures are going to survive so presumably it would be possible for the Scottish ministers to have a one page order with a 50 page schedule that listed absolutely everything but the problem is that because of the things that would be going at the reserve level things that would be going in the rest of the UK that would produce a complete you know trying to keep everything that the Scottish government has the power to keep would create as big a mess almost as the getting rid of everything because the things are so interconnected and don't work together and because we've been told the dashboard isn't up to date i mean in terms of a legal perspective what's your comment on that i totally believe everybody who says the dashboard is not up to date and whatever and this issue about measures made under joint jointly under the european communities act and domestic legislation i haven't heard you know i've had a couple of discussions with people in there in the same position as me thinking there might be a problem here but nobody's got a clear answer thank you was the only comment is on the ground if you're actually implementing all of this what's the reality check for this well yeah i mean in terms of the environment i suppose in terms of the sort of environmental sphere um we have less involvement than than all the other colleagues here today in terms of most of what we do is about physical safety and about fear fairness and so on but there are some elements of environmental law that we do enforce locally which i think make an additional point here which i was going to make today so might as well make it now and you know there's some specifics on there i mean there's one i put in the submission about volatile compounds in paints you know a very obscure set of regulations which but nevertheless have an important environmental protection in there you know and now that's not something unlike the other stuff i've been talking about that's not the sort of thing my colleagues deal with from day to day but when you know evidence comes to light that somebody's in breach of these and is there for a harmingly environment and getting an unfair competitive advantage over their their competitors um the provisions are there and our guys will do something about that and and deal with that um so the and my point about this is you know we're talking about you know the water directive and big stuff like that of course that's what we should be focusing on but all these other bits and pieces of law and these slightly obscure specific detailed pieces of law my fear is that they just get ignored and they get lost almost by accident when the sunset clause comes in i don't know what the answer is but you know my appeal is for the UK government Scottish government whoever's involved in this to do everything they can to not forget about um the full list here that's very helpful thank you very much thanks convener perhaps start with professor reid um in your submission you highlight the UK government's previously expressed a desire to drive improved environmental outcomes and has taken powers to achieve this through the environment act 2021 which were expressly intended to build upon retained environmental law in the context of the retained EU law bill i wonder what changes you could suggest or whether there are other legal mechanisms that could be employed to attain that desired impact i think that as as people have said the issue is that to try to reform improve a complex area of law there needs to be a sort of proper review of it and it's interesting that in relation to financial services the treasuries managed to get that in a separate bill and it's not going to be affected by the measures here the financial services area is going to be reviewed thoroughly at its own timescale with a complete complete measures so the difficulty is that by producing this very blunt instrument to create the cliff edge at the same time as there's other bits of legislation pointing off in different directions the levelling up bill at Westminster has proposals for environmental uh environmental impact assessment and how that's meant to fit together you know how the timescale of that by the time the environmental information the environmental impact assessment rules were changed under that measure the sunset might have cut cut in so it's not quite clear what's going so i think the problem for outside observers is that it's just not clear what the UK government is thinking you have some elements that point towards the policy clearly of greater environmental protection some things that are being done to pursue that but at the same time you've got things like this that seem to cut across it without a clear guidance with a clear sense of how the dramatic powers to to save or preserve laws are going to be going to be exercise and very little time for stakeholders the devolved administrations and so on to make sense of what's going on thank you would any the rest the panel like to come in yes is about yeah thanks i just wanted to come in on this question of kind of improving environmental law i i think understandably a lot of attention on this bill has been on the sunsetting provisions but i just wanted to highlight some of the other problematic clauses in the bill from an environmental perspective so clause 15 states that when replacing retained EU law ministers so that would be UK or devolved ministers must must not increase the regulatory burden and that is then defined as a financial cost administrative inconvenience and an obstacle to trade innovation efficiency productivity or profitability so our reading of this is that it means if for example Scottish ministers wanted to use the powers in the bill to actually improve and strengthen environmental regulations they may actually be unable to do that they would potentially only be able to restate or amend regulations so that they remain at the same standard or lower and that's why we feel that the kind of overall direction of the bill is kind of deregulatory in nature and so i just wanted to raise that particular point about clause 15 yeah i mean i would suggest that burden and standard perhaps can't be completely equated but uh david yeah thank you so um so just to look at the impact on animal welfare as i mentioned there are 44 different pieces of animal welfare law um 18 of those are on farm animals and just to give some examples of of what could fall away i mentioned the the barren battery hen ban but we also had the south stall ban we have the ban on the veal crates um with uh with the use of animals in research laboratories um all of that is under EU law um what people tend to forget is probably about 80 percent of animal welfare legislation is inherited from the EU the first the first law was passed in 74 a year after we joined um and in the subsequent 47 years of our membership another 43 pieces of legislation were passed so so is there's a real concern there um in terms of if if this is allowed to to slip away another example um yes companion animals don't have that many EU derived laws but how we take our pets abroad on holiday is an EU derived law and if that slips away then can can people take their dogs away on holiday or um the importation of of puppies coming in from from europe which is obviously something that the Scottish government is looking at at the moment um does does that also does that look legislation immediately fall um so so there are lots of challenges with this one of the interesting things is that this this bill um had its genesis under the johnson government when when the bill was originally written under the johnson government there was a deadline of 2028 in that that was taken out under the trust government and and put in on 2023 so there is no reason why the government can't say let's go back to the original deadline 2028 seems to us to be much more sensible and as others have said it provides the continuity to look at all of this legislation in detail there are obviously there are parts that it can be improved let's look at those see what can be improved and have a sensible long range discussion about how to do this rather than rush it thank you thanks that's very helpful mr austin what's going on thank you i just wanted to um build on professor reed's comment but in response to mr golden's question about the environment act because it does seem to me that across the uk government's various acts and and proposed bills there appears to be a bit of an incoherence in as much as there is good measures in the environment act but that appears to be contradicted or made incoherent by proposals in other legislation and that the other legislation other proposed legislation either passed or or going through west minster appears to have um linkages between them that are not clear so the other ones i would mention would be the uk internal market act and the the the challenges in relation to to what extent do different environmental regulations in different places either affect or not affect the the market principles in that in that act but i would particularly highlight the point that professor reed made about the levelling up bill and the proposal in there for environmental outcome reports they're called i think which enables ministers uk ministers in that case to effectively amend the environmental assessment regulations and create a new form of environmental assessment now that process may or may not be positive for the environment and be consistent with the environment act ambitions but it appears that the proposals in the levelling up bill could be completely undermined if those environmental assessment regulations that one bill is seeking to improve are removed by the impact of the the sunset clause in the retained EU bill so we have two bills at west minster and i did give evidence to to the the Scottish parliament on the legislative consent memorandum on the levelling up bill um we have two bills at west minster that appear to be incoherent or or contradict each other if you see what i mean and both and and and taken together they appear to contradict the ambitions of the environment act so the interrelatedness between all the proposals seems to create an added level of complexity that makes it even more unmanagable Professor Reid just on that specific point about contradictory legislation from a legal perspective which part would have supremacy and who would decide well the the the way of resolving it is to either extend the environmental assessment regulations until you know for the to the full deadline which would give time for the other bill measures state place or to continue them on the basis that that was only going to be a temporary continuation and going through but that requires that to have been thought about and to be done quickly and given everything that's happening and everything that has to be done i think at this stage there's no certainty that that sensible legal route would be identified and done in time thank you thank you please start please type a very quickly and a point that mr balls had made about the sunset clause and whilst we absolutely agree that um 20 28 cut off would be preferable to a 20-23 or even a 20-26 I think it risks looking over a fundamental point that this clause shouldn't be there Felly, we have yet to hear any convincing argument for why there should be an arbitrary deadline at a cliff edge, if you like, at all. Thank you. I wanted to pick up a point that Professor Reid raised at the beginning, and I think it would be good to get other reflections as well, about EU case law and the status of that case law, which has been building up over many, many decades. I think that there is a phrase in the bill that says that EU case law shouldn't restrict the proper development of domestic law. I think that, as a committee, we've been struggling to understand what proper development actually constitutes. I wondered if Professor Reid could offer some thoughts on that, and then if there are others who've got concerns or questions about how they think this may play out in terms of habitats regulations or other EU case law, that would be useful. Professor Reid. I think my answer to that is that you are not alone in struggling to work out what is meant by the proper development of domestic law. There are a few areas where not so much in the environment, where there has been a build-up, there was a body of domestic law, which the EU is working on a slightly different approach, slightly different ideas, so the interpretation is that there was a conflict and you could see restoration to the more domestic flow, but in many areas, when the environment is one of them, the domestic law and the EU law have been so intertwined for so long that it's very hard to see what that means, it doesn't have any particular meaning. There are some areas where, in areas of employment law and so on, where EU concepts didn't exactly match the traditional UK way of thinking about things where it might have more sense, but I certainly don't know, and nobody I know I've spoken to has a clear idea of what the proper development of domestic law means. I'd firstly like to say that I'm relieved to hear from Professor Reid that there's a lot of confusion about this particular clause, and I think it just further highlights, as he said, the huge uncertainty and complexity around this and the kind of interplay between different pieces of regulation, legislation, case law, but just coming back to one particular example around the habitats regulations, there is a huge body of case law and European guidance that's been absolutely critical in the kind of effective interpretation and application of the birds and habitats directive, and subsequently the habitats regulations in the UK and Scotland, which has been absolutely fundamental for ensuring that some of our most important wildlife sites and species are properly protected from plans and projects that could potentially affect them. Again, it just highlights the huge uncertainty about what are the implications for some of these areas. At this stage, we just don't really fully understand what the implications would be. Do others want to come in on this, David? Yeah, just from our perspective, the sort of consumer protection, trading laws and that, like environment, very much intertwined with EU case law over many, many years now. Given the approach of the EU to design consumer protection laws in a sort of principles-based way rather than a list of specific provisions, clearly what goes with that is that we like that because it allows reasonable and fair interpretation to fit a very wide range of circumstances, but we are dependent to a significant degree in some areas on a case law to further define what those things mean in specific situations. The Germans do a lot of heavy lifting on that in terms of the cases that come through. I am completely confused as to where we are with the future on that, I really am. It's going to make interpretation much more difficult for us. What I do know is that, clearly, there is going to be the potential for a sudden serious downgrading of the influence of that body of interpretation on what we do, and that causes problems. That really does it. That causes problems for businesses, too, because they have to have certainty as to what those things mean. When they are designing their next year's work plan and the year after, they need that. It's not just that consumers are affected, but businesses, too. Anybody else want to come in on that? I was partly interested in the interrelationship with the environmental principles as well, because Lloyd Austin said that the environmental principles are not yet embedded. They have been stated, but they are not yet embedded. Do the principles run through case law as well, if we save the precautionary principle? Is that embedded in case law, but not embedded enough in legislation to ensure that that would remain? As Isabel Mercer said, the implementation and interpretation of a lot of EU law is very reliant on past EU cases. As Isabel mentioned, there is an habitat directive, but the same applies to the water framework directive and bathing waters directive, and environmental assessment directives as well, which have seen many cases go to the European Court. Therefore, those cases that are determined at the European Court influence the way in which the public authorities in all the member states implement their various domestic interpretations of those directives. The key thing is that when the European Court has been determining those cases, they do so, as was mentioned earlier, on a principles-based way. Therefore, the principles that are in the treaty often inform the way in which the court reaches its decision, and it is set out in the way in which the case is reported, etc. That is what I have described as the third area of retained EU law. The withdrawal act specifies three categories of retained EU law. EU derived domestic legislation, direct EU legislation, and saved EU rights. The case law forms part of the saved EU rights, and those are the aspects that will be very difficult to cut and paste into new regulations. I think that that means that even if you save all of the regulations, either in the way that Colin Reid described earlier, or by doing hundreds of new regulations, which you would need to do at both UK and Scottish level because of the interconnectedness, those kind of interpretations that are available through case law disappear. You cannot cut and paste those into new legislation. In terms of the environmental principles, I think that this bill, the retained EU law bill, gives another question about what should be in the policy statement from the Scottish Government and the equivalent one from the UK Government as to whether or not aspects of the implementation of those principles in the past should be included in that policy statement, which might be one reason why the policy statements haven't appeared. That's a question which I don't know the answer to, but I think it does underline the importance of those saved EU rights and case law, as you're saying. Under the Continuity Act, the principles only apply to public authorities in making policy. They don't apply to the courts. The reservation in the Continuity Act doesn't actually help the courts. Some of you will have studied it. Some of you will have seen it in more stages going through, but I think that it's just the effect of public authorities in making policy. I don't think any of us have... We can check. We can check the complexity and the difficulties that... Okay, but the main point is that they're no longer part of the key that we haven't adopted, so their effect might be in a treaty of Lisbon or whatever, but we're no longer part of that and we're not in that context anymore, so where they get put is important. Okay, that was me. Thank you. Thank you. I'll move to Mr Cameron. Thank you, convener. I'd like to ask about regulatory divergence, which I think we all appreciate that this bill has to be read in conjunction with the Scottish Government's stated policy of aligning with EU law. Last week, we heard from some witnesses, principally those in the farming, agricultural and fishery space, that there were potentially opportunities presented in the ability to diverge. I hear very clearly what people have said about wanting to align with environmental law in the EU, but are there any areas that people here believe that it would be beneficial for Scotland just to do its own thing? I heard people talk about not being resistant to change. I just wondered if there were any areas that people thought Scotland could go its own way. Mr Pools? Yes, thank you, Mr Cameron. Lloyd mentioned this earlier on that there is real complexity here between how the rule bill works with not just the trade and corporation agreement, but also the common frameworks agreement and the internal markets act. To be honest, nobody understands how all of those interplay. The common frameworks agreement has a specific agreement on animal welfare, but it is done essentially by consensus, and if I'm being brutally honest, it's never really been tested when different governments have different opinions on it. The internal markets act is essentially a UK Government's act that tells the Scottish Government what they need to do with the free movement of produce within Great Britain, and that is a problem as well. I mentioned earlier on about beef hormones, so, for instance, where the UK Government has reserved powers, like on trade, if they do trade agreements with Canada, Mexico, both of whom have cattle which are injected with hormones, which is illegal in the EU, obviously, and is illegal in the UK under EU legislation that's been transposed, but if the UK Government does a trade agreement with those, allowing that in, and under the rule bill the beef hormone legislation drops, that is a big problem, not just for animal welfare, but also from the free movement of beef within Great Britain and also for the exports of beef to the EU, because the first thing the EU would be doing is how can you audit this trail and how can you ensure us that no beef is coming into the EU, which is illegal, i.e. it's been treated with hormones, and you can't do that, so I think there are huge complexities here which the UK Government has not yet grappled with, which is essentially around what is the interplay with the common frameworks, with the internal markets act and the real bill, and yes, obviously there are areas, as other witnesses have said, where we want Scotland to go further, we want Scotland to improve their agriculture under the agriculture bill, and there are huge opportunities to do that, but I think you have to be mindful of how this interplays with the TCA and also how it interplays with those other pieces of legislation. I'm grateful for that because actually one of the criticisms that is made of the UK internal market act is that it doesn't allow regulatory divergence, and I suppose what I'm interested to explore is, are there areas where divergence from EU law or divergence from UK law could be beneficial for Scotland's interests? Mr Osteff. First of all, on the UK internal market act, we would make that criticism that it does prevent regulatory divergence if that were a good idea, and the one example that did happen was the Scottish Government's proposal in relation to single-use plastics. They actually had to kind of apply to the UK Government for an exemption under the UK Internal Markets Act, which was granted, which was good, but I think that the UK Internal Market Act would be improved if that sort of process wasn't necessary. I think in relation to your comment about keeping pace. I mean, we're very much welcome the Scottish Government's approach to seeking to align with or to maintain or exceed EU environmental standards. I think that's a good ambition, but it's an ambition that needs to be delivered, because there are examples of not taking place, and you mentioned fisheries stakeholders, and I can see why they welcome this not keeping pace that is being currently proposed in relation to discards. So, currently the EU law on discards applies, and it appears the Scottish Government want to not keep pace with that provision and to allow greater discards, and so therefore that's an example of whether the Scottish Government isn't keeping pace where we think it should. I think in terms of divergence and being different, I mean, one aspect that is possible is, of course, EU law in environment field was always a flaw. It was never a ceiling. Member states were always able to be better, and the Scottish Government Executive at the time chose to do that with strategic environmental assessment, for instance. So, the Environmental Assessment Scotland Act was, in many ways, it was primary legislation rather than under the European Communities Act regulations, because the Scottish Government at the time, with the support of others in the Parliament, chose to go further so that the SEAs are now required on Government strategies, as well as on the narrow definition of plans that was in the directive. So, that's one area where you can diverge by being better. Another area where I think you could diverge by being better is in the field of agriculture. So, for instance, in organic agriculture or in supporting environmentally friendly farmers and crofters. The Scottish Government could do a lot better than the CAP used to do, and the consultation on the agriculture bill that's ongoing is enabling that conversation to happen. So, for instance, I think that that is an area where supporting what we call nature-friendly farmers and crofters to remain being nature-friendly or to contribute to the restoration of nature is somewhere where the Scottish Government could be different to the EU or different to the rest of the UK to the benefit of Scotland's environment. Thank you. Does anyone else want to come in on that? David, yes? Just one small example, labelling. So, there is one piece of retained EU law on labelling, which has obviously on eggs, has been in place since 2004, has had an enormous impact on improving egg production in Scotland and also giving consumers the information they need to make the choices when they go into their supermarket. Now, there is an opportunity for Scotland to expand that into labelling on other products—pigs, chickens, other farm products. The EU is not yet moving on labelling. The UK Government has said that they are minded to do it. It is a reserved issue and it's a perfect opportunity for Scotland to showcase their food and give the consumers the information they need and help their farmers. Thank you. Yes, David. I think that we generally, speaking, would agree that we see the opportunities for improving existing legislation rather than going in the other direction. One point that I would make is that Mr Bowles talked about the trade and co-operation agreement. Within that comes the end of next year. There needs to be a review and an agreement on equivalence. I made points earlier about regulations on organic production. At the moment, the UK is operating on the previous EU regulation. There is now a new regulation within the EU, which has been adopted in Northern Ireland as a result of the Northern Ireland protocol, but not in the rest of the UK yet. Now, there are various things that are happening at the moment, not least the gene editing, the precision breeding bill going through Parliament, where we are concerned that it will potentially be quite difficult to come to an agreement on equivalence with the EU at that point if the UK has diverged. So I think that we just need to be mindful of how this interacts with some of these other agreements that are in place. I have one specific question for Professor Reid, which I was very taken with your description in your evidence about the fact that, in Scotland—I think that you have touched on this this morning too—there is some primary legislation that is not called by the bill, whereas in England, because it is made under regulation, it is. You give the example of the strategic environmental assessment and the water framework directive. I just wondered if there were any other examples where that sort of strange tension exists. I am sure there are. I have not done the database, the full survey, to see what there is. The position was that, before the Scottish Parliament existed on many aspects, Scottish-only legislation had not been updated as quickly, as frequently as that for England and Wales. So when we had to make changes to comply with the EU law, often it made sense to do wider changes, so things that could be done as small changes in England and Wales required more change. The opportunity was taken by the Scottish Parliament to make proper, wider considerations such as on the water framework materials. However, I suspect that this is one of the problems. One of the tasks that has to be done is to try to identify exactly where these differences are. A final complication in all of this is that, because we have had the European Communities Act, it has been the go-to. People have just used that because they knew that there was power to do stuff under that. In many cases, there probably was existing domestic legislation that did most of it that could give the authority, but because the other European Communities Act, why bother searching and, if necessary, tweaking the primary legislation to give the power to do exactly what you wanted and whether there are record accounts of exactly the thinking behind the legislative process 30 or 40 years ago. I do not know. Just one other thing, even Maurice Golden touched on this kind of difference between burden and standards, and I just wanted from a legal perspective, do you have any observation on that? Only that the test in the bill is very vague, you know, what one person's administrative inconvenience is a phrase. I can't remember exactly what it is, it's included in exactly what that means and the administrative inconvenience to whom, because any process that the Government has to operate, you could say, is an administrative inconvenience for businesses equally, any form, anything, reporting, has to be, it is going to be a burden of some sort. Thank you, thank you, convener, sorry, I should have referred to my register of interests as a member of the Faculty of Advocates, thank you. Thank you, can I bring in Dr Howan, please? Thank you, convener. My question is posed mainly for those of you working on devolved areas, but others feel free to join in. A couple of you have touched on how this bill would impact on the wider nature of devolution and how that in turn would impact on you. A couple of references made, I think, by Colin Reed and David Bowles, on how it might impact, how it might relate to other pieces of legislation, thinking of the UK Internal Market Act and also the declining meaning of the Sule Convention, which is something that this committee has looked at. I'm keen to open up a discussion about the wider impact on the devolution settlement, if such a thing now exists. I can kick off. The honest answer is that it could have huge ramifications on devolution, and particularly on what Scotland is allowed or permitted to do. The UK Government, frankly, does not have a clear idea on which pieces of the real bill are devolved and which are not, and that's why I've said the same message to the Welsh Government, who obviously are like the Scottish Government and are minded to do an LCM that recommends rejection of the bill. I've said to them that the best way is for each of the devolved Governments to do their own impact assessment and work out what is devolved at the minute. If in doubt say it's devolved and see how the UK Government reacts, I think that that is the best way of doing it, and to go back to the Professor's suggestion, which you may well be in that position coming forward, to have a very simple bill with a huge long schedule, just stick as many of the 2500 pieces of legislation under it and see how the UK Government reacts, because frankly, if you leave it up to the UK Government, A, you've got a deadline which happens in 13 months' time, and secondly, then you are handing over your power to the UK Government to make your decisions for you, and I don't think that's a good position to be in. Anyone else want to come in? I think in relation to devolution, I think we, throughout the conversation this morning, we've talked about there being some things that are reserved and some things that are devolved, and so there are responsibilities to do the review and revisions and retained what they wish on both UK Ministers and Scottish Ministers. Now UK Ministers do have the option under section 2 of the bill to extend the sunset so that the really awful cliff edge at the end of next year is a slightly better cliff edge of June 2026, but in relation to devolved things, that option isn't available to Scottish Ministers, so that seems to be an odd anomaly. We're of the view, as we've others, that the uncertainty and unmanagibility and risks and everything else associated with the bill are so great that you can't really make it better and we would support it being withdrawn or parked and a sensible proactive way of reviewing law taken place, but one thing that would make it less bad in relation to devolution without reaching the place where it's acceptable to make it less bad would be to extend the clause to power about extension of the sunset to Scottish Ministers and Welsh Ministers, of course, and Northern Ireland Ministers, so that in relation to devolved matters they could apply an extension in order to allow them greater time. I would also suggest that, if you're going to make it less bad, the deadline should be far longer than 26. David Bell's mentioned 28, but you could pick a 2030 or 2035 or 2045 or any date you like the longer the better to give you the proper amount of time to do a sensible review and involve consultation and do the detailed analysis of all the interrelatedness and complexities that Professor Reid has described. I would agree with everything that Mr Austin just said, although I have to say that I agree with Mr Mackay's comments earlier that there shouldn't be the cliff-edge provision in the bill at all, but I agree that if we're going to be looking at making this bill less bad, then a minimum extending the powers to extend the sunset provision to devolved ministers as well would be absolutely critical to make sure that there aren't those immediate significant capacity and resourcing implications here in Scotland. I also just want to highlight the fact that the UK Government's own independent better regulation watchdog, the regulatory policy committee, found that the impact assessment of the bill was not fit for purpose and redrated it due to the inadequate analysis of the impacts of the bill on business innovation, trade, but also implications for the devolved administration. That's quite telling about the level of uncertainty and risk that we're talking about here. I would underscore again the comments that have already been made around the fact that the dashboard is incomplete and it doesn't highlight which pieces of regulation are devolved and which pieces of regulation are reserved. That is going to be a huge undertaking. As Mr Austin highlighted earlier, DEFRA is now potentially identified over 1,000 pieces of legislation that fall within that portfolio. We have no idea how many environmental regulations in Scotland are going to be affected by that. Sometimes identifying which regulations are reserved and devolved is really complicated. I just wanted to highlight one other example. I don't think that it's been mentioned so far yet, which is around invasive alien species. As the committee may be aware, invasive non-native species is one of the top five drivers of biodiversity loss globally. It's a major issue. It's something where preventing the spread is absolutely critical because later on the cost of tackling once they're established is absolutely enormous. However, my understanding—and Professor Reid might shed some more light—is that the regulations for INS are a mixture of reserved and devolved. It's going to be really difficult to make sure that we've identified and captured all the regulations and ensure that there aren't any gaps left over in that critical area. We're resolutely apolitical, so I won't stray into the debate, but devolved devolution. However, in a technical sense, as I said, we fear the negative effect that sunset clothes could potentially have. I concur with a lot of the comments that have just been made by colleagues. One thing that I would add to it is the point about, as I understand it, that the potential extension of the sunset clothes is on a case-by-case basis, rather than on any kind of blanket or topic basis. That, to me, creates a real danger, like in some of the points that I said earlier, that some of the maybe less well-known stuff may be even more likely to get overlooked, perhaps. Some of that stuff is just as important as the stuff that's better known and so on and so forth. I don't know what the answer is to that, but that strikes me as a real concern. I wanted to make one more point in response to Dr Allan's question. I think that this has been flagged earlier in the session around UK common frameworks. We submitted evidence recently on UK common frameworks and, in particular, the framework around organic production. We had a number of questions and issues with the way in which that had been set up, but, in speaking generally, we thought that it was at least an agreed structure and process. We have, for example, a four nations working group, which is the decision making body involving UK Government and the devolved Administrations to consider any policy or regulatory divergence when it comes to organic and what the implications of that might be. There is also an expert group on organic production, which acts in an advisory role. There is a dispute mechanism, and the framework acknowledges that there will be disputes. In fact, it acknowledges that there was not yet agreement on what was reserved and what was devolved. However, putting those shortcomings aside, at least there is an agreed system for trying to deal with some of those issues and respecting the role and responsibilities of the devolved Administrations. Again, we do not see that in the bill, and that may be a starting point perhaps to look at some of those issues. I bring in Ms Mintow. This has been a really informative discussion. Thank you again for all the written evidence. I would like to turn to the practical impacts of the bill. It was really interesting, David McKenzie. I hope that I do not misquote you. You talked about EU legislation being a principled creation of that. David Mackay and David Bowles have both talked about your experiences of being involved in the creation of EU legislation. I am interested, from a practical perspective, in how you see the bill changing that ability to feed in to legislation and therefore impacting on the scrutiny that the Scottish Parliament can do. We have talked a lot about the executive's making decisions, but how we, as the Scottish Parliament and you, as organisations, will be able to feed in practically to this legislation. David, I do not know if you want to start. Yes, thank you. I can start on that. I guess that the first point to make is absolutely that we see it as essential for stakeholder, relevant stakeholder organisations to be able to contribute and to hold the Government to account and to analyse those issues. To go back to the example of the common frameworks, this was one of the points that we made in our evidence where there actually was not an adequate provision for that level of stakeholder engagement under the previous system at EU level. There was something called a civil dialogue group, which allowed organisations to have a say. We made the case that there should be representation from the industry, from the organic sector, within the four nations working group itself, which was effectively comprised of civil servants as far as we could see. We would be very concerned if there was in any way through this process that some of that stakeholder engagement was lost. I think that you said that there was about over 40 acts that had been brought in from environmental over 47 years, animal welfare, my apologies, over 47 years. Clearly, to undo that in such a short period of time, as you have said, we could lose a lot of what we have gained. Absolutely, and just to work here on what David Mackay has just said, some of these pieces of legislation, like the battery hens ban, lasted three years from publication until final agreement in the European Parliament and by the council of ministers, and rightly so, because that allowed for expert opinion, allowed for consultation and allowed for improvement to the piece of legislation. What we have now is the possible scrapping of all that within literally months. I think it is instructive that, yes, the Scottish Government were invited and gave evidence to the Bill Committee in Westminster, but the Welsh Government didn't and weren't. I am not even clear as to how much the real Bill has been discussed at the common frameworks portfolio. I don't believe that it has really been necessarily discussed that much, and if you are going to do good legislation, let's be clear that the Scottish Parliament as the UK Parliament and the Welsh Senneth are in it to do good legislation, which achieves an objective and lasts for a long time. If you are doing that, the only way to do it is by getting the evidence, as you are doing today, looking at the facts and then, yes, sometimes making balances and making difficult decisions, but you are basing it on evidence. This Bill does the exact opposite, because it applies the principle of everything goes under the sunset clause, it is doing the exact opposite of looking at that evidence and applying those factual principles. I would absolutely agree with everything that Mr Bowles just said. Just to add a quick comment to that, I suppose that we've talked quite a lot about the capacity and resource constraints that would be put upon the Scottish Government and the Scottish Parliament in delivering this, but those resource and capacity constraints also apply to other stakeholders who want to engage in the process and ensure that any laws that are replacing or being amended are strong and implementable and are not going to have unintended adverse consequences. For organisations such as the RSPB, Scottish Environment, Lincoln and many other environmental NGOs, for example, our core focus at the moment is ensuring that Scotland has an appropriate and ambitious response to the nature and climate emergency. That will involve improving a lot of our existing laws and protections, like ensuring that the natural environment bill that is going to be brought forward in a year's time is really ambitious and can really make sure that we deliver ecosystem restoration at scale across Scotland, but all of that is going to become really difficult if our organisations are going to be distracted by ensuring that existing effective protections don't fall off the statute book. Mr Austin. Thank you. I was going to, I agree with everything David Bolton, as Isabel Merse said, but building on that, I think one of the things that gives us concern of this bill is partly due to the lack of time, but partly due to the kind of indiscriminate nature of it. This leads to undue kind of resource pressure on Governments, both the UK Government, Scottish Government, Welsh and Northern Irish Governments, to review and make a decision about how to go forward. But even if they managed to achieve that, would that be done with any engagement? Would they have time to do that with any engagement with relevant stakeholders? Obviously, the environmental NGOs would be wanting to be involved in the environmental issues, but we would equally agree that other stakeholders should be involved, whether those be farmers, golfers, fishermen, businesses, et cetera, et cetera. Trying to do such an engagement process in such a limited amount of time will almost be impossible, but then if they wish to retain or in exact forms or amend and have a revised version, the relevant Government will have to lay statutory instruments under this bill to do those retentions or amendments, and that, if there are hundreds or thousands of them, which seems likely, will be a new pressure on the Parliament, which will be distracting from things that you and the Scottish Government want to do in any case. I think that, as a consequence of the lack of time and the indiscriminate nature of it, the resource pressures on the Government, on the Parliament and on the stakeholders will be immense. Ensuring that it reaches a sensible conclusion is going to be a real challenge. The risk of trying to do something simple and or something being missed is immense. That's the main reason why we would want to see the bill dropped and the review done the other way round so that, as a Government wishes to, on individual areas, they have a sensible process to do the review and bring forward a proposal to change retained EU law, although it's got the word EU in it. It's now a UK and or devolved law, and we can change it as we want, but we're changing it, should be done through the normal process of engagement consultation and, as David said, evidence. Thank you. Thank you, convener. Thank you. Mr Askell. I'm struggling to think through how all this law can be retained in a fast-tracked way. Is there a competent way to fast-track the retention of this law? I think David Bowles was saying earlier on that you could put it all in an appendix to the law, and you just have thousands and thousands of laws. Is there a danger that, if something was fast-tracked in that way, that might be seen as inadequate and could be legally challenged as well because there hadn't been proper impact assessments done on every single one of the thousands of laws? I'm just trying to understand what the complexities might be, and if there genuinely is a simple way, should ministers wish to retain that law? There's always a danger with fast-tracking that it hasn't been properly thought through, and there aren't the proper checks, scrutiny and so on. What would assume that preserving the status quo by keeping the current retained law going is the least likely to get you into trouble, but the problem is that keeping the bits of retained law that the Scottish Parliament has the power to do—the Scottish Government has the power to do—you may not identify everything correctly. Secondly, keeping those bits, they won't necessarily work because of the connections with all sorts of other bits of reserved matters and other bits of domestic law. I must admit that I quite like the idea of the Scottish Parliament passing a simple bill, trying to keep everything and then throw the challenge to the UK Government and Parliament to say, right, tell us what we can't do, but that would obviously end up in the courts on quite a long way through, but it might be a more interesting way of dealing with things, but interest isn't necessarily a good thing in real life. The UK Government, and I think that we got consensus from our last panel last week, was that if reversing it to be the default position is to keep and the review is required, we would be a much more sensible position. That was the position taken at the time of the withdrawal act, that everything was rolled over in the absolute expectation that in the years to come, as and when necessary, areas of law would be reviewed and placed where divergence was a good thing, we would do that. That's what's happening in relation to financial services. It's been set aside as an area that's subject to its own comprehensive review. Isn't it ironic that under the withdrawal act, we took just over two and a half years to pull all those pieces of legislation across? Essentially, what we were doing was just changing the word commission and writing in UK Government or Scottish Parliament or whatever, but even then, mistakes were made. Some pieces of legislation went back two or three times before they got it right, and that was in two and a half years. The UK Government is asking you to do this within 13 months. Can I maybe ask what the dangers are for enforcement then? David, you might have been the person who's looking to interpret and enforce more than others around the table today. What are the dangers? Can you give us an example of a practical problem? Sure. As one of your other contributors made it a previous session, the problem is that if something is getting replaced, if it's a false victim to the sunset clause, it's being replaced by nothing. That means that even the stuff that we think could be improved is being replaced by nothing, which is worse than what we've got at the moment. While some of the law that we enforce, we don't have to enforce particularly actively because there's a general consensus amongst most of that industry that they can—as soon as you take those regulations away, businesses are quite rightly going to think, well, maybe I can get a competitive advantage here by slightly changing what I do. It might be, I mentioned things like weights and measures and product safety. Some of these really tight safety standards that have been produced over decades of scientific experience and practical experience may seem a little onerous in some ways. Let's not do that one, but that needs proper consideration. If we're going to review a standard or a regulation, as everyone said, it needs to be discussed properly and we need to look at all the pros and cons and take the opportunities to change it in a measured way over a period of time. What we're involved in is fundamental to the daily lives of communities, as I keep saying, buying, selling goods and services. As soon as you take those regulations away, certainly some of the less well-minded businesses of which we have a few, not many, but a few in Scotland will take advantage of that. Even good reputable businesses, quite rightly, have shareholders to think about that. We could be heading to a situation where consumers and reputable businesses are less well protected in a very clear way, it seems to me. Thinking of organic food production, organic farming or crofting, one of the strengths of organic as a brand and why consumers have that confidence and assurance in it is that there's a very robust scheme of inspection and there needs to be compliance with standards and those standards are underpinned by law. We mentioned earlier in the session what some of those laws are. If you didn't have that legal basis, we have a standalone subsidiary soil association certification, which is one of six control bodies in the UK. There wouldn't be any legal basis in which to enforce that compliance with the standards. Technically, you could argue that you could have a private system whereby the rules would adhere to on that basis. I'm an organic licencee and there are many reasons why people decide to farm organically. One of them is that robustness, strength and organic farming is often viewed as a gold standard. If you remove that legislative underpinning, I would fear that that would be lost and that impacts not just on producers but on consumers as well. I think that one of the difficulties here is the level of uncertainty and lack of clarity. Depending on what happens, a number of environmental laws are enforced by a range of bodies, whether that be the police by local authorities, whether it be Scottish Environment Protection Agency or Nature Scott. There's a range of public bodies that are responsible for enforcement. Obviously, if a piece of law is clearly revoked or repealed and they know that's the case, they're not going to try and enforce it. But if they don't know what the situation is as to whether or not it has been retained under this provision or not, what are they going to do? Even if it's the government's intention to retain something. When I say UK government or Scottish government, the level of uncertainty about what laws exist come January 24 or don't exist will have a real chilling effect on those bodies. They won't really know whether the law exists or not. I think that will actually be a situation where they become really nervous about whether they should undertake any enforcement action or not. And there'll be an awful lot of administrative checks having to be undertaken in order to work out whether or not there's some enforcement action they can take before taking it. And that will create a situation where the few businesses who may be trying to get away with something will feel more empowered to try and get away with it. Just to follow on that point, because one of the points made in the RSPB evidence which I'd quite like to just explore is the whole issue of uncertainty and the fact that in different pieces of UK legislation ministers have actually said they've given reassurances about devolution settlements, but it's just how we actually, it's a chilling effect that's just being talked about, how you actually have any certainty on that and it's going to come to usable because the issue of the labelling up, sorry, levelling up legislation in the environmental act there's been reassurances given but if it's just words where's the legal impact of that given the uncertainty here and people not being prepared to push the envelope if they're worried about the legal status? Yeah I mean I think it just comes back to all the points that have been made today about the level of uncertainty and risk involved in this sunsetting provision and as you said there's been various reassurances made but I think until we saw a different approach being brought forward to this piece of legislation we wouldn't be able to be reassured that these potential huge issues relating to gaps in environmental law are going to take place so I think it's just that we need to have the reassurance of a change in approach to this bill so that that sunset provision and that date of either 2023 or 26 is changed. Professor Reid did on a view on the comment on that it's really unusual to have a piece of legislation in front of you with other bits of legislation being used as well don't worry about this legislation these bits of legislation might help and we don't actually have the detail of those bits of legislation either is that unprecedented or? It's unusual to have government policies going off in so many different directions at the same time and being reflected in in built the the leveling up bill that needed the change there to environmental impact assessment compared to this and in a sense going back earlier because a lot of the some of the many of the provisions in the withdrawal act are duplicating other measures that already exist in sexual legislation and so on but you've got this on top and now we've got this on top of that and this on top of that and trying to keep track of the different level of different dimensions it's really hard and because there isn't a overlapping provisions aren't necessarily powers aren't necessarily a problem but they are a problem if they're being used by different people in different ways and at present there doesn't seem to be a clear single policy still clear single direction that a leg gives anybody confidence to say what's likely to be happening in the next six 12 months. Thanks I mean that's really helpful that's very much at the law society of Scotland said when we had a discussion about this a couple of weeks ago thank you very much. Mr Cameron. Yeah just on the practicalities the committee keeps hearing evidence about the scale of the task before agencies, businesses, sexes etc and can I just ask you what engagement the Scottish Government has had with you and is there anything the Scottish Government could be doing in relation to helping with this endeavour? I don't know if anyone has any interaction with the Scottish Government about this. Yes Isabel. Thank you yeah I mean probably just a brief point just to say we've had some initial discussions with Scottish Government officials about the bill and kind of road sense check are kind of initial assessment of the bill and some of the issues for Scotland but again I would just kind of reiterate a lot of the comments we've already made throughout this session that I think really we're looking for the UK Government to revisit the overall approach to the bill and that again the dashboard needs to be updated comprehensively so that it we have clarity that we've identified the whole range of rule and that there's clarity over which rule is reserved and which is devolved and I think until those kind of fundamental questions have been answered it's quite difficult to determine exactly what action is needed here in Scotland. Yes, from our point of view we've had a very brief discussions with the Scottish Government but not an awful lot and I suppose that reflects and we are speaking to the Scottish Government about a wide range of things because we do so many different bits and pieces of work. I think broadly our position is that we would like to see the devolved stuff that affects what we do largely retained and then let's have a conversation about it in light of what we've said today. So we're feeding a lot of our interaction with the UK Government through colleagues in England and Wales on this particularly with a focus on trying to retain the things that need to be retained but also on a positive basis with the stuff that can be improved because there's some real stuff there within the reserved body of law that affects us that we think can be improved in quite a clear way. So that's I suppose where I'm sorry and just finally this point that keeps coming up about interrelatedness I really stress how important that is for the practicalities of what we do so even if Scottish Government does everything we think it should do or Parliament does everything it should do it's going to be affected by what happens in England and Westminster so any communication that can be made between Scotland and England on the basis of that we would welcome. I appreciate that and I suppose my question is the bill gives the Scottish Government the ability to restate EU laws as we all know and I just, Lloyd you want to come in? Yes I mean I've had very little contact with the Scottish Government about this. I obviously am aware of the legislative consent memorandum and so forth but we have had some brief discussions with officials which are obviously informal in nature at the moment but I think the, I mean I don't think they stated this but the impression I received was a significant degree of concern about the scale of the task and I think not only the scale but the uncertainty in terms of you know they were telling us of their concerns about the dashboard being incomplete as well as we were telling us then our concerns about the dashboard being complete and the lack of clarity on the dashboard which are reserved and which are devolved and so forth but I would say there's a sort of a fundamental kind of concern here as the Scottish Government has a number of very good environmental ambitions and things ambitions in relation to things that affect the environment in terms of the agriculture bill that's forthcoming the natural environment bill that Isabel referred to earlier the climate change plan etc etc and I think that the biggest concern is that in order to do a review and even a restating of all of the legislation in 12 months which it will be in a couple of weeks time would distract the number of officials who are doing all those good things and are trying to get forward to those positive ambitions and that you know often they will effectively need to put all that on hold in order to do a restatement and that just seems to me to be not the right way to address a climate and nature emergency. Thank you. I just wanted to add a brief comment to what I said earlier and I agree with what Mr Austin said something we haven't actually mentioned is that specifically in relation to this bill the Scottish Government has made a number of public comments both in writing and in the chamber about the fact that they plan to maintain or exceed EU environmental standards and so I just wanted to say that that is hugely welcome and we are assuming that what that means is they plan to as Mr Austin was outlining restate the majority of rule and move that over onto Scotland statute because it's a simulated law but I think just coming back to that point about uncertainty that doesn't address all of our concerns because as I was outlining with the example about the habitats regulations unless both the UK and the Scottish habitats regulations were restated then there potentially would still be quite a large gap that could cause harm to some of Scotland's most important species and habitats. I know it will be of little comfort but the RSPCA and Greener UK have had very little contact with the UK Government on this bill who are obviously leading on it. We haven't met with the bill team of the UK Government which is almost unprecedented on any piece of legislation we work with. As you know during the committee stages which finished this week the Government didn't take any amendments and indeed seem to be oblivious and deaf to any concerns on the timetable, on the impact on business, on the impact of animal welfare and environmental legislation. Yes, the RSPCA and the SSPCA stand by to help the Scottish Government with anything they need particularly on what we believe is devolved and non-devolved and some options but really the ball lies in the UK Government's court and at the moment they are not talking to people. You've had no contact with the Scottish Government? No, but obviously RSPCA works in England and Wales so I wouldn't expect to but I'm very happy to talk to the Scottish Government and look through the evidence and the recommendations that we've given. I could possibly find it. I never want to say the final question in this committee because it quite often isn't but we talked a lot about the resource issues in terms of the Government capacity and civil service being distracted. Have any of you done an impact on your own organisations and how much cost and time has happened to be diverted to working on rule given that many of the organisations that you represent as bodies will be charitable in some media? I can kick off and I think Isabel mentioned this earlier on. This is a huge distraction to the work that we're already doing. The RSPCA is working on probably 10 different bills within the Senneth and Westminster at the moment to improve animal welfare and obviously we are now directing our resources to try and defend the 44 different retained pieces of animal welfare legislation which have been brought over from the EU. I think it's instructive that there are only as far as we're aware three civil servants working within DEFRA on the 570 environmental and animal welfare pieces of legislation which now may be over a thousand because they've seemed to have discovered some more and I think that's a real concern and I know that the Welsh Government is also really concerned about resources because you know don't forget like the Scottish Government they have an agriculture bill going through which is the biggest change to agriculture since 1947 and they rightly so should be concentrating on improving the standards in agriculture and not being distracted by this. In terms of the RSPCA yes of course this has been a distraction we've had to put resources to looking at this and try to work out what the legal ramifications are what is devolved what is non-devolved and that is taking a lot of time which frankly as others have said we should be focused on improving not trying to retain what we've got at the moment. To agree with everything that Mr Bowles has just said the soil association is a small charity we have limited resource and we have already been discussing how best we can manage this process internally and that will require us to set aside time and staff time and resource over the probably the duration of next year at least and that then does distract us from what we consider to be our priorities and you know in Scotland that's about working with Scottish Government through the agriculture bill trying to make the case for a transition to agroecological and nature friendly farming it's about pushing for more action you know we mentioned earlier targets around the reduction usage of pesticides we want to see a big drop in the use of artificial fertilizer on a farm we want to see more people farming organically there are all sorts of priorities that our organization has and this bill we would not consider to be a priority but now it has to be so over the coming months we will definitely be committing more resource to that as you know as has already been said the UK government and the Scottish and Welsh Governments as well. Yes well from Scottish Link's point of view we're an umbrella organization or forum for over 40 environmental NGOs which range in size from very large to very small link has a small secretariat but both in link itself and in all of our member bodies we would prefer that charitable resource to be devoted to working with Scottish Government and Scottish Parliament on a good agriculture bill on the natural environment bill on the grass management management bill on implementing the climate change plans successfully etc etc yet we are having to devote resources I mean even a number of us being here today is a resource for our organizations on this bill which is in our view unnecessary and underlines the fact that we think that the bill is unnecessary and is the wrong way round to address any issues that there are and you know we would very much think that the best way forward would be to to withdraw the bill and to do reviews on a sort of topic by topic basis in a logical way in which reviews have been done in the past and which was the intent and the withdrawal act of 2018 which was only a short number of years ago. Did you want to come in? I know you mentioned it earlier Mr Mercer but yeah. Yeah I totally agree with all the comments that have just been made and I don't want to repeat too many of the things I said earlier but the constraints on RSPB staff time are also considerable we have staff working on this at our UK headquarters as well as in each of the devolved countries and that is quite substantial and I suppose just to add that a lot of the legislation that Mr Austin was just outlining that I mentioned earlier so the natural environment bill the agriculture bill legislation on grouse moors we've also got the new Scottish biodiversity strategy which is currently in development and plans to deliver on the target to protect at least 30 per cent of Scotland's land for 2030. These are the things that we would like to be dedicating our time and resource to influencing and making sure that they can be as much of a success as possible for Scotland but I'd also highlight that all of those processes are actually opportunities to improve and strengthen existing regulations and laws where the Scottish Government and the Scottish Parliament see fit to do that through those processes so again I'd just highlight we're not adverse to improving and strengthening the laws that we have but we just don't feel that this process is going to deliver that. Mr Mackenzie. Yeah at risk of repeating what others have said but just specifically from my point of view and our organisation we're a voluntary organisation we've all got day jobs you know so this is a massive massive distraction and really challenging to to even identify all the piece of legislation that are relevant in terms of the wide remit of things that we do and we'd rather be you know and there's a lot going on in our world just now as well. A lot of really good interaction with the Scottish Government and the Parliament about fireworks new fireworks legislation that's all going to fully come in this year all the cost of living crisis stuff and all of a sudden some of the very basic work we do in terms of measuring things and counting things and pricing things for example has suddenly become important people are complaining about these things now because they're both are struggling financially and there's the perception that they will continue to struggle financially so there's an awful lot for us to be thinking about Brexit related things you know in terms of you know there's a lot of work for us there in terms of a lot of a lot more products coming into the country now are deemed to be imports and as far as they previously weren't so there's a different regime on the people who are doing that importation and we need to be tackling that stuff and it's that this is a distraction as others have said but you know at the same time this is happening you know it's real so we need to deal with it you know so we would certainly hope we're available to contribute to the on-going conversation absolutely. Thank you I'm looking to see as any questions from committee members and thank you to all our witnesses this morning again and thank you for written submissions as well it's been very important to have recommendations on this and I wish you well the rest of your day and on that note I'm going to move into private session.