 Morning, and welcome to the seventh meeting in 2018 of the Culture, Tourism, Europe and External Relations Committee. I'd like to remind members to turn off their mobile phones and members of the public to turn off their mobile phones, and any members using electronic devices to access committee papers should please ensure that they are turned to silent. Our first item of business today is a decision on taking agenda item 4 in private, our members agreed. Our second item of business Felly, mae'n dweud y cwestiynau ar y cyfnodau 15 o'r gwaith a'r eich gwaith o'r ddych chi'n ddechrau yn cael ei ddweud. Rwy'n credu i'n ddweud y cyfnodau i'r ddweud. Rwy'n credu i'n credu pethau yng Ng. Pachorn, y ddweudfodd ddechrau, ysgolwyr ysgolwyr o'r ddweud o'r ddweud, ysgolwyr, dr Gratcia Marendurann, ddechrau ysgolwyr Lestuillol y Lle分九 Llyr manuscripts, ac yn defnyddio Llywodraeth ochonegol Seniolettorau i I would also like to remind members and witnesses that time is short and we have a lot of ground cover, so if questions and answers could be as brief as possible, that would be very helpful. There's a great deal of ground to cover, and I'd perhaps like to start, maybe approach it chronologically and look at the proposed transition period first. The EU council guidelines on transition proposed that the UK continue to participate in the customs union and the single market. Is the UK likely to get agreement from the EU and third countries to continue participating in the EU's own free trade agreements with those third countries, because my understanding and this is brought out in other evidence sessions of other committees, that some of the third countries may object to continuing the relationship with the UK, because the UK is no longer a legal party to the treaty that they've signed with the EU, and I wondered what your opinion was on that concern. I'm not a lawyer, so I don't know entirely how the legal aspects of that would work. I've read and heard people talk about other countries wanting to try and improve the conditions that they have under free trade agreements. In other words, they would see it as an opportunity to gain more from the UK because of this. I don't necessarily see it that way. I think that this is about countries trying to preserve the trading rights that they have at the moment in the context of the UK separating from the EU. Providing both sides to understand that and are willing to negotiate in good faith, I would have thought that it is possible to do that. The real question is how quickly and whether it can be done within two years. That depends on the number of things. There's a lot of work that will be involved in taking over these free trade agreements and rolling them over grandfathering, whatever you want to call it. There's a lot of work there, and it depends on the resources and how stretched the UK and other countries are in the negotiations. That would be my... I guess that my question was not so much about the grandfathering, which is an important area to explore as well, but what happens within the transition period? My understanding was that while the UK would be bound during the transition period, the third countries would not necessarily be bound during the transition period. They would have to give their agreement, yes, I would think so. The legal answer to that, so politically they might object, but the legal answer to that, in my opinion, is that it will depend from agreement to agreement. Most recent EU FTAs, such as CETA, for instance, with Canada, the territorial application of that agreement is to any territory where the EU treaties apply. In so far as the EU treaties will continue to apply during the transition period to the UK, legally speaking, these FTAs will also apply, because the UK will continue to be a territory in which the EU treaties apply. So you have to look at agreement, pair agreement, but most of the recent agreements, including Canada, which is obviously one of the most important ones for the UK, given the current trade flows, they apply not only to the EU and its member states, but also any other territory where the EU treaties apply. That will be the case of the UK during the transition period. I think during the transition period there is legally no problem. These agreements will continue to apply. The question is whether during this short transition period of two years or less than two years, the UK will first have the capacity to renegotiate these agreements in practical terms, but also the legal capacity, because of what I've just said, that the EU treaties continue to apply. This means the UK will still be bound by the EU common commercial policy, which is a new exclusive competence, as we know. If you look at the commission draft withdrawal agreement from February 2018, it is a bit ambiguous whether the UK, given the common commercial policy, is an exclusive competence of the European Union, so only the European Union has the power to negotiate agreements, will have the capacity to negotiate agreements during this two years period. It will definitely not have the capacity to conclude any agreements, because this is an area of exclusive competence, but whether it will have the capacity to negotiate, I think this is something that needs to be clarified a little bit further, because in the current draft withdrawal agreement, although it's only article 124, it is a bit ambiguous. It says the UK cannot conclude any new international trade agreements during this period unless it is authorised to do so by the European Union, because this is an area of exclusive competence. So it is the question of whether physically it is possible within two years, given the short time, but also legally, whether they will have the capacity to negotiate and conclude something in an area which will continue to be an area of exclusive competence of the European Union during these two years. It has been reported in the press this morning that that agreement has been secured and will be part of the outcome of discussions taking place next week. The draft withdrawal agreement? The United Kingdom has secured permission to undertake negotiations in relation to new trade agreements during the transition period. That's being reported this morning? That's what has been reported, but the draft withdrawal agreement does not say that, and I think that that will be a point worth clarifying in the actual agreement. If one reach article 124 of that draft withdrawal agreement and it says the UK will not be able to become bound by any new agreement, bound does not mean that it cannot negotiate it, but it can definitely not conclude it during these two-year periods unless it is empowered to do so by the European Union, because that is an area of exclusive competence. Only the EU has the competence to negotiate and conclude international agreements in the field of trade. I think that article is worth clarifying. Not only that it is reported, but that it is actually in the agreement. That will be part of the negotiation. It is being reported that, as the outcome of the negotiation, the transition arrangement that is properly agreed, it seems to have been progressed in relation to that. The text that I have seen does not say that so clearly. On taking things forward, I wanted to ask about the tariff rate quotas. In October, the EU and the UK proposed that the future EUs, excluding the UK and the UK's TRQs, would be calculated by apportioning the EU's existing commitments. We know that a number of countries have written to the WTO expressing concern about that. I wonder if you could say something a little bit about that and how that is likely to be resolved, if at all? Thank you for the invitation to speak today. As you know, several members, including the US and Canada, raised some concerns about the proposed method that the EU and the UK have proposed to split up their tariff rate quotas. I think that from this we can gather three points. The first is that they are unhappy with the current method, which is a technical matter. Second, it was quite clear that there was a concern about losing what they view as the full value of the TRQ as a larger point. They also made it clear that this was not going to be possible through technical rectification. This will have to be approved by old WTO members. It is a clear signal from WTO members that there is a line in the sand, that a technical option is no longer on the table, and this will be open to membership approval. I think that that introduces several issues that need to be taken into account. A, what the new method will be, and how WTO members will be consulted along the way as they want input into this process. It is also the broader question of, will just splitting up the existing TRQs be sufficient, or will the UK or the EU both have to offer something in addition to get WTO member agreement? I think that it has turned out to be a lot more complicated than was originally assumed. Thank you very much. My final question relates to when Grazia and Matthias were here before, it is quite a long time, so it must be well over a year since she gave evidence to the committee. I recall at that time that we were talking about the UK's letter to the car industry, suggesting that they would be okay in future trade deals. More recently, we have had the Prime Minister in her mansion house speech talking about what has been described as a pick-and-mix approach to regulations, the ladop sum regulations and not others, for different sectors. I just wondered if you were able to share anything with us on what your views are on that particular speech and the idea that recognition and mutual recognition could be picked and mixed. I think there is a little bit of a misunderstanding in the way that mutual recognition is normally put in this debate. The fact that you don't engage in mutual recognition does not mean you will not have to comply with the regulations. You will have to comply with the regulations anyway. There is no way of exporting to the European Union free of EU regulation. This is just a paradigm that doesn't exist. If you want to export to the European Union agricultural products, you have to comply with the relevant product standards. If you want to export cards, you will have to comply with the relevant standards. Mutual recognition simply means that your regulation will be automatically be considered compatible with theirs. That's what it means. Whether it makes sense to pick and choose, whether you have an understanding of mutual recognition in certain sectors as opposed to others, this is feasible, legally speaking. Whether it makes sense, I'm not sure, because the fact is not that if you have no mutual recognition, you will not have to comply with your regulation. You will always have to comply. Any country that exports to the EU has to comply with whatever regulation is in place for the products concern or the services concern. Mutual recognition just means that this process is made easier because your own regulations will be automatically recognised as compatible with the EU ones in the same way they are now in the internal market. Is it possible to pick and choose whether it makes sense? I'm not sure, because mutual recognition just facilitates the process of having to comply in any event. I'll pass on to Claire Baker now. Thank you, convener. I wanted to ask some questions around establishing the UK's position at the WTO, which will need to be a renegotiated position. As we're interested in where you think WTO members might push for concessions from the UK, where the particular areas might be, there have been some questions raised around the cap payments in the future of those under renegotiated terms, so I was just interested in where the pressure points might be in those discussions. I think that TRQs are the biggest problem for technical reasons. It's not necessarily, as I said before, it's not necessarily a question of countries seeking concessions, but trying to protect what they consider to be the value of access, as Matthias said just now. With tariff quotas, you have a quota at the moment, say 100,000 tonnes of whatever product, and you can export that to anywhere in the EU. If you split the UK and the EU 27, then the fluidity, the freedom to be able to export to the whole, to any part, to choose whether this year you're going to export to Germany or next year export to the UK, you lose that. That's what their objection is about tariff quotas. It's about how they can preserve what they consider to be the commercial value of the access to those tariff quotas. There is also a very technical issue that's come up that nobody thought about. Conceptually, it's simple. You have 100,000 tonnes quota of something, you say 30 per cent of that goes to the UK, 70 per cent of that goes to the EU, you split it that way. That's the common approach of the UK and the EU. It turns out that there's no reliable data for that, because the tariff quotas are defined at a very detailed level in terms of how the products are defined, but the consumption data, which is how you know how much of that product has ended up in the UK, or how much of that product has ended up in the EU, is much broader. Taking, say, a figure for a broad category like beef, and then trying to say, well, for a particular type of beef, high-quality beef or whatever it is, saying that that is the same ratio, it's still 30, 70, there is a problem with that. Delegates told me that the UK and the EU actually suggested to them, to people like New Zealand or Australia, if your industry has got better figures than ours, we'd like to hear them. This has taken months for the UK just to come up with, and the EU to come up with figures for that. For the subsidies, we're only talking about what are called trade distorting subsidies. Those are directly related to prices and production. The EU currently, the whole of the EU currently only uses around 8 per cent of its entitlement, so the actual trade distorting type of subsidy within the entitlement is quite small, so there's a lot of room for manoeuvre. I personally don't see that this is going to be a problem in the WTO of dividing how much of that should be the UK's entitlement, how much of that should be the EU's entitlement, because you've got over 90 per cent of unused entitlement, which is a huge room for manoeuvre. If that does become a problem, it suggests that there is quite a lot of ill will in the negotiations, which, hopefully, people will devoid. The other area where there will need to be decisions on how to deal with the UK's commitments and services is fairly straightforward. I would have thought that it's time consuming. A lot of things that we say are straightforward are actually time consuming, because there's a lot of detail, but it ought to be fairly easy to identify what the commitments of the UK are extracted from those of the EU. Finally, there's also Government procurement, where there are also commitments in the WTO. The issue there is that, unlike the other areas of work in the WTO where the UK also signed on as the UK as well as the EU, the Government procurement agreement was only signed by the EU, so there's going to have to be some legal way of dealing with that, so that the UK can have its own commitment separate from the EU. That's probably my lack of knowledge, but if you maybe, in the next part of the reply, explain when you talk about the 8 per cent being used and over 90 per cent left in flexibility, why there's such a large amount that's—is it not a common—it's just to have a better understanding of why it's such a small proportion of what could be available. The other question that might be linked to that is around state aid. When discussions around leaving the EU are had, often it's argued that the trade deals that we have are too restrictive. Within the Parliament, we've discussed the restrictions that state aids give us. We've talked about film studios or about our industry base, where if we were able to have Government intervention that could be positive, but an argument is always made that state aid restricts us from doing so. Does the situation—is there any room for manoeuvre here—suggest that under WTO membership there would still be restrictions around state aid? Would they be to the same extent or are they likely to be more flexible? As I understand it, the European Union changed the type of support that it was giving to agriculture, what in the WTO is called domestic support, from coupled payments—payments that are directly related to production and prices—to decoupled payments that are fixed and not related to how much the farmer produces in each year. There were a number of reasons for that, partly to do with the budget, partly because the EU was anticipating an outcome in the WTO agriculture negotiations that have reduced countries' entitlements. That didn't happen, but the EU has gone ahead and done that anyway. That's the reason why the EU is only using around 8 per cent of its entitlement for domestic support. I'm not an expert on state aid, but as far as the WTO is concerned, I think the restrictions are mainly to do with whether the state aid has an impact on exports. If it's aid in general, the WTO would be silent on that. Just to clarify that, on state aid, EU rules are far more restrictive than WTO ones for two reasons, just very simple. First of all, there is a general prohibition on state aid. In general, you cannot unless you are authorised by the Commission to do so. That's the basic rule in the EU. In the WTO, you're not generally prohibited from providing state aid or subsidies, as they call them there. Only subsidies that affect exports, that are contingent on exports, only certain types of subsidies are prohibited, but there is no general prohibition. In particular, you don't have to be authorised to provide the other subsidies by anyone. You provide them, and if any of the member thinks there is a problem, they challenge you. You don't have to seek a priori authorisation from any entity in the WTO, so they are far more flexible, in terms of the lack of general prohibition, but also the monetary supervision of state aid. I'll just add a couple of quick points. This came back to the original question about the types of concession, so I think things to keep in mind here also relate to what Peter was saying about. It also depends on the kind of signals that the UK is going to put out about what it's likely to offer, and what it's likely, for example, to set its tariffs at post-EU. Will it keep the same tariffs that it currently has as the EU, or will it lower them slightly? All this is going to change how other members perceive whether the value of their existing arrangements are being diminished or not. I think that this issue of diminishment of what exists on the table is really how other countries are looking at it, and that will be largely defined by the future UK-EU relationship, which we don't know what that looks like yet, so there is a lot of uncertainty. I think on the agreement of government procurement might be interest for the members here to recognise that in the schedules, for example, for subnational, many, for example, many Scottish institutions are listed there as open to the agreement, so it might be a worthwhile exercise for members and their staff to look at which specific Scottish institutions, for example, Scottish Enterprise, are currently in agreement with other types of institutions that they might want to add in a revised or scheduled future for the UK when it joins individually. I think that those are the issues to consider here at a Scottish level. The European Parliament passed an interesting resolution yesterday on the terms of a future UK-EU trade relationship, particularly in relation to tax, and I will make sure that I get them right. The resolution made clear that any future trade deal must be dependent on UK adherence to EU standards on taxation, including anti-money laundering legislation, exchange of information, anti-tax avoidance measures and must address the situation of its overseas territories. That is a combination of the UK must continue adhering to rules that we currently adhere to as an EU member state but also proposals for changes that we would have to make from the status quo. Is that relatively normal for the EU to make such demands when it is negotiating trade deals? What impact do you think that that will have on the negotiation of the future relationship? It is not my area of expertise, so I defer to colleagues. As you say, that is something to be expected from the EU. The EU will be concerned in the future trade relationship about what they call a race to the bottom, not only in terms of taxation but also in terms of social legislation or environmental legislation where the third country will lower standards in order to obtain unfair from their perspective. It is unfair or not, it is open to discussion. Competitive advantage. This has been a concern with all the countries with which it has concluded a free trade agreement and it will be with the UK as well. These demands are not only in terms of taxation but also social standards and environmental standards. The fact that the UK will have to adhere to certain minimum standards and not lower them in order to obtain an advantage in trade or attract foreign direct investment are closest that the EU will surely demand from the UK because it has been already demanding it from other countries such as Canada or Korea with which it has concluded free trade agreements. Even though it trades less with these countries than it currently trades with the UK, the UK remains one of the EU main trading partners as well. The more economically independent the higher the EU demands are going to be in terms of keeping the level playing field just as it is now, if you want, in terms of regulation. Obviously the UK's overseas tax haven territories are relatively unique and come from our particular history. Are there any comparable relationships between the EU and any other third countries where those third countries have their own overseas territories with similar tax haven reputations? It would be realistic to assume that in the event of this trade deal being negotiated it would be dependent on the status of our current overseas territories in relation to tax changing quite significantly to bring them in line. My understanding is that at the moment these territories have been able to continue operating in the way they have because the UK is in the EU member state but they are not part of the EU. The UK being a third country in an agreement with the EU would mean that the territories would have to come in line as well. I don't think we have a comparable situation because all the overseas territories would be overseas of the other member states so we wouldn't really not with a third country with which the EU has currently a free trade agreement, a non-member. I can't think of any example right now, sorry, of a comparable situation. The only comparable situations I can think of is of other member states but that obviously doesn't help. I would just like to raise the issue of timescales and capacity for those negotiations, which you might have some views on, because it strikes me that in the context of what you have said about the two-year transition and concluding deals after that and at the same time you have to negotiate with the EU as well about the continuing relationship with the EU and never mind the rest of the trade agreements with the rest of the world, can you give me your views on does the UK Government have the capacity for all this and how long do you think it may take because presumably big countries like the US it could potentially take years? It has taken years for the European Union to negotiate all these agreements as an entity that has enabled capacity for the last, I mean commercial policy became an exclusive competence of the union already in the 70s, which means the EU has about 40 years of experience in negotiating EU trade agreements on behalf of an ever-growing trading bloc, which gives it also a lot of bargaining power vis-a-vis third countries. Whether the UK can achieve all this in two years, I have doubts also because as I think we've been saying every other negotiation very much depends on what is negotiated with the EU. All the other third countries whether it is for their bilateral free trade agreements, what they will expect or want to change or not will very much depend on what the UK and the EU actually negotiate because their terms of trade will affect the terms of trade of everyone else. These assuming the UK leaves the custom union, if the UK stays in the custom union then there is no problem, things will stay as they are, but that's no longer an option it seems, so assuming they leave the custom union what they negotiate will impact everyone else. Both bilaterally the free trade agreements as well as the negotiations in the WTO over the tariff rate quotas because as Matias was saying this is no longer a technical change, this requires the involvement of the other WTO members as is being recognised by the UK and the EU in this joint letter, that at least these tariff rate quotas will require negotiations in the WTO or active engagement as they call it, and the question I think here is besides how you've redistributed between them is that obviously these tariff quotas at the moment they work in a way that they do not include exports from the EU to the UK and vice versa, they do not include intra EU trade of agricultural products, so exports to the EU to the UK and exports of the UK to the EU are currently excluded from the tariff rate quotas, these tariff rate quotas are only towards third countries, US but those that have raised the objections mainly, what will happen post Brexit, will the EU also have access to these, I mean imagine we agree on a formula on how to divide them, 50% to UK, 50% to EU just to make things easier, 50-50, will the EU also have access to these 50% because the EU now becomes a third country in the WTO and vice versa, will the UK have access to the 50% in the EU shadow, I think this is one of their concerns, so that is the problem that I think is A, the time is limited, the capacity is also limited because the EU has been doing all this on behalf not only of the UK but of every other member for the last 40 years, but is also the fact that every other negotiation depends on what the EU and the UK agree first, so yeah, it's challenging. I'll just add, so I think this capacity issue, I think it cuts in two ways, I think both there is this issue of bargaining capacity, to what extent can the UK develop capacity to bargain, revise current agreements and negotiate new ones, and the second is the sort of implementation burden that comes along with taking over a lot of the current practices and regulatory work that the EU commission does, so I think it's, I think the amount of resources that need to be pumped in are quite substantial just to operate a baseline of capacity, whether the UK can pursue a highly ambitious agenda in the short term, I think isn't probably very realistic only because of the learning curve and that you have to get people in to learn the job and that cannot be done in two years as Peter was saying, it takes them three, four months to get some figures on tariff, right quotas, that gives you a sense of the scale of speed of things work, so two years seems pretty optimistic. Even less than two years from March 2019, 31 December 2020, that's not even two years. I would agree, I think that the experience of watching negotiations is that something unexpected always comes up that delays things. Just one short supplementary, the expertise that the UK has from negotiations may be limited to UK citizens who work for the European Commission, who therefore have got experience of negotiating as part of working for the European Commission. During the transition period, will they be obliged to continue to work for the EU or will the UK Government be able to call them back to be part of the UK's negotiating team, otherwise I can't see how the UK can have a negotiating team? There is something about that on the withdrawal agreement, what will be the status of current officials of the European Union or the Parliament or so on UK officials. I haven't read them in detail, so I want, but there is an attempt to regulate that there, but one should also not forget that some of the UK nationalities have applied for the nationality of other member states and obtained it. I used to be a EU trade negotiator, so some of my former UK colleagues have applied for Belgium or it's not very difficult in a way. It's pretty much an individual choice, whether they want to come back or not, because if they don't want to come back, I think it's not really possible to force them because they can still apply during the transition period for the nationality of Belgium or Luxembourg. I mean, they've been resident there for many years already if they've been working for the commission and simply say, well, I'm Belgium now, I stay here as a Belgium. You see what I mean? So, forcing them back, I think it's difficult, but I agree with you. A lot of the EU capacity are very good, great UK trade negotiators and lawyers currently negotiating for the EU or defending the EU and the WTO. Last week, the permanent secretary of the Department of International Trade, Antonia Romio, and her number two, Crawford Faulkner, were asked this question about the capacity in the Public Affairs Committee of the House of Commons. They gave fairly detailed answers and what Crawford Faulkner actually said about what is needed for negotiations is quite interesting to hear, so I would suggest that it's also worth looking at. The bottom line was that they felt that they had enough people and they were training them well enough and Crawford Faulkner's own experience would help with that, as far as the Department of International Trade is concerned. Thank you very much, Rachel Hamilton. Actually, sorry to go on about tariff rate quotas, but it's an interesting subject because clearly it's going to affect agriculture around the world. Wouldn't the UK be able to benefit from some of the third country trade deals that are currently in discussion or have happened with the EU in terms of agriculture? Surely it's just a political point, it's a protectionism point from each country, but there's two points here. We can either replicate or replace those trade deals with third countries that the EU currently has or should we just, do you believe, in terms of agriculture do what Norway's done and take that out of trade negotiations and then separately negotiate free trade agreements outwith of Europe, if you see what I mean? Again, purely legally speaking, the tariff rate quotas that you are currently committed to provide in the WTO, you cannot really take them out. I mean, that's bound in the schedule. The question is how much, which share are you going to take from the EU? And I agree with Matthias in that sense, this is no longer something the EU and the UK can agree bilaterally because that's not only a technical change that affects all the countries, so they will have to engage into negotiations with at least these countries that are currently benefiting with the tariff rate quotas. So that I don't think can be taken out completely, the ones that you are committed in the WTO. The free trade agreements concessions, that can be withdrawn completely because that is something that would be subject to negotiations. Of course, you can say closing your market might make sense for you, but if you do so, this also means the third country will close your market, their market, sorry, for UK exports, whether it is in agriculture or other sectors, whether overall it makes sense, that's not an assessment I can make. Trade negotiations go both ways. If I take something away from you, then the other countries will want to rebalance concessions somewhere else, whether it is in agriculture, if you are exporting a lot of agriculture products to them, or whether it is in another sector. So the balance of concessions in free trade agreements will be reopened for negotiations. You can put more in or take something out, but that allows the third country to do exactly the same. The more you demand, the more they will demand, and vice versa. Can I elaborate on what Gracia said? I think that we have to distinguish between two activities. One activity is preserving the legal status quo, and that's what's happening with the schedules of commitments in the WTO, including the TRQs. What has emerged is that the concept of status quo is actually a little bit more complicated than it sounded because it's not just a question necessarily of splitting up existing quantities, but also we now have this notion of the value of market access and the commercial value. So that should be a fairly simple, comparatively simple exercise, at least in the sense that it need not become too political. The other part of it is whether you actually want to change that status quo. When Gracia said, you can't take tariff quotas out of the WTO, that's true in one sense, in the sense that the quota which gives a low tariff, you can't remove that because that is a commitment. You can take tariff quotas out of the WTO by saying that low tariff will apply across the board without limits. That's possible, but you can do that through commitments in the WTO, or you can do that unilaterally. Even if you've got a tariff quota of 100,000 tonnes duty-free, you can say, well, we just unilaterally expand that, and you will not be violating your WTO commitments because you are less protectionist than you were. In the WTO, you can always be less protectionist than the commitment that you made in the WTO. There are other questions. You mentioned Norway. Norway may have taken agriculture out of the relationship with the EU in some respects. Norway and Switzerland, if you look at OECD figures, are the two most protectionist countries in the world or in agriculture? Is that a good model to follow necessarily? How much power will the UK have to negotiate these trade agreements outside the EU after the transition period? Full power, full autonomy. On the balance when you were describing the negotiation process, as a negotiator outside the bloc, how much power will the UK have to get a good deal from the different countries? In my view, although I might be wrong, clearly less than now. If we look at the concessions that are made in those free trade agreements, and imagine that we want to reopen everything for renegotiation, we don't want to leave them as they are, we want to reopen them. Those concessions from a third country perspective, they were not negotiated with the UK market. They were negotiated with a market where if you exported anything to the UK and it crossed the United Kingdom border, it had access automatically to a market of 27 countries. That value is lost now. Now it's just the UK market. So the value of those concessions, any concession in those shadows, has tremendously changed from a third country perspective. Because now if I'm exporting my bananas from Ecuador to the UK, I no longer can automatically access the whole of the EU market. So from a third country perspective, this has changed and I think you can expect them to demand to review these concessions accordingly, because those concessions were made to the UK under the assumption that anything exported to the UK will have automatic access to the European Union. Now if the UK leaves the custom union, as it seems they will, this is lost. That's a lost also from a third country perspective. Thank you Stuart McMillan. Thank you convener and good morning panel. Peter, a few moments ago you said that in terms of the wider political context that something will happen then it will have a change. In terms of the wider trade negotiations and trading operations post Brexit, how important is the wider geopolitical situation in terms of the UK's position in trying to negotiate trade agreements? How long have you got? Perhaps the most difficult thing to look at at the moment is the possibility of a UK-US free trade agreement. Can anybody tell what US trade policy is at the moment and what they would negotiate with the UK? It's just very, very complicated, we don't know. I would add a little bit to what Gracie has said just now with the question about the power of the UK to negotiate with other people. It is complicated but I would agree with people who have said that the UK's power to negotiate with other countries as a member of the EU is greater than as the UK on its own. If you look at a country like India it wants to export to 28 countries and it's going to give priority to negotiating with 28 countries or if it becomes 27. Rather than one unless there's a particular product that is particularly interested in selling to the UK market. That's a generalisation, there will be differences in product areas and in countries and so on but Matthias may have an opinion on this. I would have thought that Canada would be more interested in a good deal with the EU, with CETA rather than a Canada-UK deal. I think the thing I can add to this is I agree with all the previous comments and I think the pickle the UK has put itself in is that it has publicly said it wants to negotiate many agreements as quickly as possible. Very few countries do that because they know you want to sequence these out, you want to spread these out over time, you can only handle so many agreements. I think the fact that the UK has put itself in a position where it says we are willing to take deals as quickly as possible, put some in a situation where they will also just have less bargain leverage because the political imperative is much greater on the UK end to negotiate these agreements than for other countries. In terms of the broader geopolitical issues in addition to the unknown US trade policy in its direction at the moment, our question is about the future of the WTO, the future of TPP now that it seems to be back on. There is a lot of movement, some which suggests in some areas free trade integration is picking up again in other areas, things might be reversed. It is a very unstable time in the global trading environment and the geopolitical environment and the UK is partly contributing to that instability which I think is also important to remember. The UK has introduced instability into the global market through Brexit and that will have consequences down the road that are unforeseen but might change how other countries view the relationship with the UK and also the speed at which they may want to enter an agreement with the UK. I just wanted to add a comment sometimes because of these expressions of ground fathering or rolling over or so on that I have at least a sense that the feeling is being created that the UK has to retain all these 40 or 50 or free trade agreements that the EU currently has with our countries. Well, it doesn't have to, it doesn't have to. After the transition period it can come out of them and the UK will trade with these countries on WTO terms. Well, you'll tell me, well, WTO terms are obviously worse than the ones that you have in a free trade agreement. You conclude in a free trade agreement precisely to go better than the WTO. That's correct, but given all the challenges that we are discussing in terms of capacity, is it really wise in less than two years to try to renegotiate 50 free trade agreements? Given also if you look, I mean I'm not an economist, but if you look at the UK trade flows with the rest of the world that we have in this briefing document that we were given that was prepared by the committee, other than with the European Union, what are your trade flows with the rest of the world and those would really make sense for you to renegotiate quickly the agreement with Canada when your trade flows now are less than 1.6% of your exports to renegotiate that quickly in two years and get a bad deal for 1% of your exports. I think that needs to be thought. The idea, I mean, there is no obligation for the UK to retain these 50 free trade agreements in place after the transition period. During the transition period, yes, because you will continue to apply the, but I think during the transition period the UK should take that time given the limited capacity and the limited time to rethink which of these free trade agreements are worth retaining. Or whether maybe for 1% or less of your trade with these third countries you better off trading in the WTO for the time being and then want with more time and capacity perhaps engage in a free trade agreement negotiations. That's just a suggestion. There is no obligation to roll over. Liz, do you have any comments? I don't have anything on the technical side, but to link it to the trade bill, which I obviously will have to go through a process of legislative consent here, that would be, speaking on behalf of global justice now and as part of the Trade Justice Scotland coalition, that would be one of the reasons why we are suggesting that the trade bill needs to be amended to include some levels of parliamentary scrutiny because the UK Government is saying that it's not included in the bill at the moment because their belief is that those trade third party deals will be cut and pasted and there's no need therefore for parliamentary scrutiny, but certainly listening to the evidence that was given to the public, the Trade Bill Committee down in Westminster and what I've heard here as well, it sounds to me that that's not a correct assumption and that there certainly will be at least some of those deals that will get opened up for renegotiation and therefore we think it's very important that Parliament in Westminster, but additionally up here has a say because of the differences in the different parts of the UK and the potential impacts, which I could say a little bit more about, but I don't know if someone was going to ask a question about that. Because Sean was going to ask you about that, so move on to that. That ties in perfectly because Liz, I was wanting to come to you next actually just to tease out some more from the Trade Justice Scotland coalition evidence because I attended an event in Parliament, I think it was either last month or a wee while ago anyway, where we'd discussed some of the issues with the trade bill in particular. So it was really just to get your thoughts on some of the free trade agreements that we're part of at the moment, where you think the problems in those have been and you talk in the evidence about the fact that there is a clear democratic deficit and how we best go about trying to resolve that through the current trade bill at the moment. I'm not able to give you detail on specific trade deals that we're party to as part of the EU at the moment, because what we've been looking at is this kind of, if you like, a sort of new generation of bigger trade deals between the TTIP being the classic example and then CETA and the, I guess, through those, the encouragement into public policy space that we've seen, they're moving away from the tariff and quotas into, away from the customs barrier, if you like, and the mechanisms and the way that the mechanisms in those trade deals are potentially going to be used like the investor state dispute settlement mechanism or even the investor court system to sue governments for loss of profit through public policy decision making and the chilling effect, for example, that has. So we have a whole range of worries around that and that's what's influencing our view that it's absolutely vital that parliamentarians have a say on getting it in this current trade bill so that if it's needed, if parliamentary scrutiny is needed on the transfer of those trade deals that the UK continues, that it's currently part of us being part of the EU, but also to set a precedent for future trade deals and, of course, because of what we saw with TTIP, we are particularly concerned about a possible trade deal in the future with the US. So there was another bit to your question that I'm sorry I didn't notice it down, but I don't know why. No, that's fine. Ideally, what do you think we need to see come out of future agreements and I'd like to tease out a bit more about what you mentioned there about the wider impact on other public policy areas as a result of some of those agreements that may not have been considered so much at the moment as part of the current trade bill. So do you mean where we've seen public policy have to change as a result of— Yeah, so the wider impact of some of these agreements, yeah, and where you've seen that change in other areas. So there are many examples around the world where Governments have had to put on ice, maybe, if you like, the public policy measures. So just in the news again yesterday was the example of Philip Morris having sued the Australian Government, which they didn't win, but that case took I don't know six, seven years maybe or so, and the estimates are that it cost the Australian Government just the legal costs 50 million dollars, although that's not a certain figure. But what happened there was that they also did have a chilling effect on plain packaging of cigarettes that other countries around the world were thinking about those policies. New Zealand in particular is the example that's given and they were holding on waiting. So there's huge costs potentially to Governments through that system and there's direct effects on public policy space. If we wanted to look at an example that's transferable perhaps to the interaction between a national and subnational Government, you could look at the Lone Pine case where the Lone Pine is suing the Canadian Government for a decision to put a moratorium on fracking that the Quebec Government took. Through a PQ, relating that back here, which again all these things I'm saying is to back up the evidence that we think that parliamentary scrutiny is really important and for Scotland to have the Scottish Parliament to have some say over future trade deals in a PQ that was asked actually well over a year ago now about what would happen in the case of the UK Government being sued under a trade deal for policy differences between Scotland and the devolved Administrations and the UK. The answer to that was that the claim would be brought against the UK for a difference in policy under ISDS. If the UK were to lose a claim, the UK Government would be fighting it. If they lost it under an ISDS for something that relates to an act of a devolved Administration, the memo of understanding between the UK and the devolved Administrations would apply, and that provides that the devolved Administration would be responsible for the payment of the legal costs and awards made by the tribunal to the extent that they arise from the failure of the devolved Administration to implement or enforce an obligation. Where we said in our evidence that Scotland is inextricably linked to these trade deals, there are potential impacts on policy here and the ability of the Scottish Government or the Scottish Parliament to take its own decisions in the interests of public health in Scotland or the environment in Scotland. There are financial consequences if the UK Government were to be sued under a trade agreement for differences for something that the Scottish Parliament had enacted. At the moment, the trade deal has no provision at all for parliamentary scrutiny for MPs nor for the devolved Administrations either, so there is an amendment that has been put down to try and rectify that. We think that that is really important and that is why we were suggesting that the Scottish Parliament should withhold its consent on that basis until or unless the bill is amended to allow more parliamentary scrutiny. Matthias, you have experience in negotiating in Canada, where obviously the regional government is very involved. I do not know if you want to pick up on any of the points that was money made there in the Canadian context. I think that we have seen over the last 20 years that as trade agreements have moved beyond the border, as Liz was saying, they are no longer about tariffs, but they are largely about national regulation because the general push has been to have global convergence, the broader steam effect of trade agreements. In the Canadian context, that became clear that trade agreements were having an impact on health, energy, environment, labour, policy and so on. To many areas that were in the Canadian context, provincial areas of jurisdiction, there has been a process of overtime increasing participation of the provinces in both development of trade policy. In the CETA case, it was quite exceptional in the sense that provincial governments were part of the negotiating teams to a certain extent to the negotiations. They were not there for the final deals, but they were part of the process along the way largely because the provincial governments had the expertise in the particular areas. In the Canadian context, there has always been a very strong federal-provincial consultation process to ensure that the provinces have real-time input as things are happening in the negotiations. That has worked quite well in the Canadian context to have a pan-Canadian approach, but also political buy-in at all levels for any deal. That has been viewed as important. I will know in the Canadian context that it is very ad hoc, so it is not formalised through any proper institutional mechanism, but it is a practice that has been adopted. Depending on the trade deal or the government and power, either that relationship becomes stronger and more inclusive and other times less so. There are maybe some lessons for the devolved governments about the kind of mechanisms that can be put in place to ensure that information flows both ways as opposed to just being told after the fact. I believe that the UK is quite unusual in not having the ratification process for CETA as a member state. There is very little input at all from MPs on that. We do not feel like we are asking for anything radical. There are many examples of other countries, such as Denmark, Belgium and the US. There are many examples of countries where there is much greater interaction and a much more safe for different levels of government. Clarify something that Liz said not to take away from your argument. I agree with you about scrutiny and about ISDS, but the dampening effect of the challenge on plain packaging may be the case in smaller countries, but in New Zealand's case, as I understand it, what New Zealand was actually waiting for was an outcome in the WTO dispute settlement on that, which is not ISDS, it is Government to Government. Thank you for that clarification, Ross Greer. Much has already been covered. Just one small additional point. Public procurement is an area that has increasingly become part of trade negotiations. It is also one of the remaining significant areas of disagreement between the Scottish and UK Governments on our withdrawal bill and issues of devolved powers and re-reservation. Does anyone have an example of what is the objective sought when public procurement is brought into trade negotiations and have there been any particular examples of where trade deals negotiated have resulted in a significant shift in how public procurement is operated? It is not my specific or expertise, but if you look at the agreement on Government procurement at the WTO in the renewed version in 2012, there is a really good example of how you can see the specific sectors that countries have opened up. If, as I mentioned before, you can look EU member by EU member, including the UK, if you look at the schedule, you can see which bodies have been listed as open to Government procurement bidding from Members of the Agreement. What is important about the Government procurement agreement at the WTO is that Government is a threshold for the size of the contract for which it becomes open to Members. There is a threshold, and then they list specific sectors in quite a lot of detail. The general thrust is to open up Government procurement to international competition. If you look more specifically at the EU schedules, you will get a better sense of the profile of English bodies, Welsh bodies and Scottish bodies that are currently part of the agreement. It does not fully answer your question, but I think that that is important. Absolutely. That was useful. Am I right in saying that that was one of the specific concerns around TTIP, which was opening up internationally tendering processes for health services in the UK? Yes. And other public services in the University of Tertiary Education and potentially water. Is it possible to negotiate a carve-out for those? Yes, which is normally what the EU does. I mean, it is again not my area of expertise, I do not deal, but the EU will normally exclude what it defines as public services from its current free trade agreements, which was another division with the United States during the negotiations. The negative listing seems to us to be a less secure way of doing it, particularly if things change in the future, because you are locked into that. There is important distinction there, I think, aren't there, in things that concern us with that? I suppose that the question then is that the EU, as a large and powerful trading bloc, is able to negotiate those kind of opt-outs. Would the UK be able to, if it was in the negotiations with the US, have the clout to make the level of exclusions that perhaps we would want to see? It would have a price. That would be a trade-off. Obviously, there are differences between, for example, the NHS up here and down in England, but is it to be the UK Government doing that negotiating for those trade deals? At the moment, with no Scottish input, we are suggesting that there should be a Scottish Government representative on negotiating teams. At the moment, that is not being suggested. If I could just go back to an area that perhaps we should have covered earlier, it is on the whole issue around rules of origin. Obviously, the UK would have to apply rules of origin if it wants preferential access to EU markets. I wondered whether you would be able to say anything about the challenges of gearing up for rules of origin after the transition period. Is it achievable? I will say something in English. Legally speaking, rules of origin are a wholeful area of trade law. I never teach it in my courses, because it is highly technical and complex to understand. That requires quite a bit of effort there, from a legal perspective, to renegotiate. The problem is, all this assuming the UK leaves the custom union. In the custom union, there are no rules of origin. Products come from the EU. It does not matter how they have been assembled, whether there are inputs from Spain, Italy and so on in a product that is exported from the UK. They come from the EU. That is the origin, the EU market. If the UK leaves the custom union, that will have to change. There will have to be products that come originating the UK. The question that comes there is, at the moment, in terms of rule of origin, we have full accumulation at regional level within the EU market. As I said, it does not matter where the inputs come from. This is EU good. Will you be able to maintain that with the European Union, this full accumulation that we currently have in an FDA? A free trade agreement will need to have rules of origins. Will you be able to maintain that full accumulation? That does not matter where your inputs come from. It will be a good originating in the UK. Will the EU require, as it requires from countries in other FDAs, that a minimum percentage comes from the UK for it to be a UK good that can export to the EU on the terms agreed in that FDA? That is the challenge, the legal challenge, that negotiation. There is also a practical challenge is that right now to export to the EU, you do not have to prove any origin. You just export. This is an EU good. Even if assuming you can meet the requirements of rule of origins that are negotiated in this FDA, the amount, if there is any criteria you need to meet or whether the EU will just allow you to fully accumulate on a regional basis, but you need to prove to the custom authorities of any of the 27 remaining EU member states that you actually meet this criteria. That is also time consuming. It is not only time consuming to negotiate the rules of origin, but it is also time consuming to then prove that you meet the criteria and the rules of origins, whatever those rules of origins are in the free trade agreement. That is obviously a challenge that will be the current situation, because in the current situation, there are no rules of origin. The question will affect in terms of the exporters themselves. The financial burden of taking this on is quite high for exporters. There is both the process of training and teaching firms how to fill out the form, essentially, to put it nicely. The cost of doing that is quite expensive for businesses, so it will have knock-on effects on the competitiveness of exporters. It is worth saying also that there is another aspect that is that the push will come from business. I tried to look at Scottish industries to see where Scottish industries might be interested in rules of origin. It is quite clear in the UK as a whole that the car industry has already started pushing for diagonal accumulation, which I am not going to go into. It is explained in the documents. Shortbread? Do they use butter from Ireland? If they do, then rules of origin for shortbread might become important if shortbread is going to be exported to Korea, for example. The push will come from there. The government might find itself sandwiched between other countries who might have a view on what kind of rules of origin there should be, but also it is a domestic industry that is saying that we need that. Sorry to delay. It is just a carry-on from that question, which is around rules of origin. What about geographical indicators that the EU has and Scotland does take advantage of? How will that change or do you see that change? I was going to add a quick comment in that in my closing. GIs are also a very complex area of WTO law. We do have some general rules in the WTO and the Trips Agreement on geographical indications, which will apply to the UK relations with third countries and will continue to apply when it leaves the European Union. The question here is that the EU has been quite aggressive to put it nicely in its policy on geographical indications in free trade agreements. It has required third countries to go beyond the current commitments in the WTO, which are slightly more flexible for foodstuff than they are for wine and spirits, but in any event the WTO rule basically is that you have to recognise these geographical indications, but you have a number of exceptions. In its free trade negotiations, the EU has been trying to limit the capacity of countries to use those exceptions. Canada knows that well for Gorgonzola, Parmesan and other types of what they consider are generic names, but the EU does not consider that they are generic names, especially for cheeses and foodstuff. That has been really their thing. I think that the UK can expect that the EU will try to do the same in a free trade agreement that they will ask for the UK to continue to protect EU geographical indicators as they are doing it now on an automatic basis. What will the UK's ability be to protect our own products when it comes to a future trade agreement? I think that this is a video EU that shouldn't be a challenge because the EU is very much into protecting geographical indications. The challenge will be third countries because this is an area where the EU has had relative difficulties convincing third countries to go beyond the trips agreement in the FTAs. With Canada, for instance, Canada wasn't too happy on certain terms that they consider generic with the US. That was the same for FTA cheeses and other geographical indicators that the EU was pushing for, in particular for foodstuff, as they say. It's less so for wines and spirits, such as scots, whisky and so on, but for agriculture foodstuff, that's really important. I don't think that in the bilateral negotiations this will be that much of an issue because the EU will ask for the UK to continue doing what it's been doing until now, and the UK will have its own geographical indications protected in the EU. The problem will be the extent to which the UK can persuade third countries because that's an area where the EU itself has had difficulties pushing its own agenda completely. Thank you very much. I'm afraid that we have to end there because our next witnesses is due in one minute's time. I thank our panel of witnesses today for coming to give evidence to us and we'll have a brief suspension to change their panel of witnesses. Thank you very much. Thank you. Our third item of business today is an evidence session with the Minister for UK Negotiations on Scotland's Place in Europe on the UK withdrawal from the European Union Legal Continuity Scotland Bill. The Parliament agreed to designate the Finance and Constitution Committee as the lead committee and the Culture, Tourism, Europe and External Relations Committee as a secondary commission in consideration of the bill. I would like to welcome the minister and his officials, Michael Russell, Luke McBrattney, policy officer, constitution and UK policy, and Ian Davidson, head of constitution and UK relations. Before I move to the detail of the bill, minister, I know that you were rather tied up here and you were not able to attend the plenary with the First Minister yesterday, but I wondered if you were in a position to update us on what happened there and indeed in anything that you can share with us in terms of your meeting at the GMCEN previously? Of course, happy to do so. Yes, I had intended to support the First Minister at the Downing Street meeting yesterday, but I was otherwise engaged in this place. The Welsh First Minister and our own First Minister all expressed the same sentiment at the meeting of endeavouring to secure an agreement between the three nations involved on the issues that are still outstanding on the bill. It is also fair to say that the First Minister of Scotland and the First Minister of Wales were very clear what would be required to secure that agreement. In particular, the issue of consent coming from those legislatures to any proposals in the UK Government to establish frameworks. That is the issue that has bedevilled us for the entire process of discussion. A great deal of work has been done on frameworks, and you will have seen the list of 111 that I issued yesterday and a list of 153 that the UK Government produced last Thursday. I hope that this is taken in the best bit in a way that was not helpful to building trust, to issue a new list of that nature without consultation and, indeed, without even giving it to the ministers. I think that it is a wrong thing to do. We have done a lot of work. If there is an intention by the UK Government to seek the consent of the legislatures on any items in that last group of 24 or 25, and if there is a procedure agreed for adding any items, should they be required to be added—that has been an issue for the UK Government—then agreement can be found. If there is no willingness to do that, then agreement can't be found, and that is where we find ourselves. That was also the issue at the GMCEN last week. GMCEN, which took place at the Mark Drakeford's proposal from Wales, was that there was a trilateral of David Livingston and himself to see if we could break the log jam. Mr Livingston chose to make that into a full meeting of the GMCEN, which I think was not helpful in the sense that I think that informal discussion might have the chance of producing a result sometimes when formal discussion doesn't. That, having been said, we had the meeting, we rehearsed our positions, the Scottish and Welsh Governments brought to table some new ideas, including the idea of a written agreement, which would make it clear that consent would not unreasonably be withheld. That was added to, I have to say, by a UK minister who thought that the proposal shouldn't be unreasonably made, which seems quite a nice and neat balance. But we have not had a formal response to that as yet, and those discussions will continue. I understand that David Livingston renewed his commitment at the GMCEN, at the GMCP, to continue to have discussions and said that he would be willing to come to Edinburgh or Cardiff if that was necessary. I hope that we will have those discussions. I know that there are a number of members who want to ask the minister about this specific area before moving on to the detail of the bill. Jackson, did you want to come in there? I mean, in essence, I think that it is this issue that determines whether or not the Scottish Government wishes to proceed with the continuity bill, ultimately, here in Scotland. The agreement around the issue of consent is what would facilitate an agreement, which I assume is the condition if agreed, which would unlock the necessity for the bill to proceed. I think that it was the first minister who was the first politician, if I can put it so directly, who, in an answer at First Minister's questions, identified this as being the nub of the argument. Discussions were taking place, there were rumours here, there and everywhere as to what it might be that the final hint was, but I think that it was the First Minister who kind of crystallised it in this word of consent. I realise that discussions are on-going, so I do not want to in any sense prejudice them at all. However, insofar as all parties in this Parliament have understood the concern that the Scottish Government has about consultation as opposed to consent, does the Scottish Government understand, even if it does not support, the concern that the UK Government has had about the word consent as opposed to consult? Potentially, because I have never been quite clear if the Scottish Government does, I understand the issue that underpins it, but do they understand that the reservation exists? I may be optimistic that that is the case just in what has been said about consent unreasonably withheld or requests unreasonably made, because it seems to finesse around the same point. I have heard it said that, obviously, and the rhetoric has been given the history of everything that has gone on, it is difficult for the Scottish Government to trust the Westminster Government, but at the same time it has rather been saying that we would like the Westminster Government to trust us in that we would not unreasonably withhold consent. I am trying to understand, and I think that Alex Neil in the chamber then said, that is there not a process around which a discussion can be had that finesses those two positions into one that is resolvable? That is what I am trying to understand, is something happening to try and facilitate that. I am sorry if that was quite long, but I hope that I am trying to get to the heart of this. You do get to the heart of it. Let me start by saying that I would be happy and, indeed, many fine minds in the civil service on both sides of the border have been devoted to this issue of finessing the issue. By finesse we do not mean fudge and there cannot be a fudge of this issue. We do understand and I have understood for a very considerable period of time the concerns that the UK Government has. They were concerns that surprised us and they are concerns that I think if I can roll this all the way back to the first discussion that I had with David Davis about the detail of this bill in the start of July last year. A lack of knowledge, and I do not say that critically, I just say a lack of knowledge of the devolution settlement, and particularly the fact that they do have a power to stop things happening or to reverse decisions in this place that exists within the Scolndag. They are in the end sovereign. Do not say that with any happiness, that is not what I want to happen, but that is the reality. If the issue is, as I believe it is, that they are afraid that we will behave in an irrational manner as far as they can see it, or in a manner contrary to what they believe to be the United Kingdom's interests, if I put it more positively, then they want the ability to stop us doing so. They have that power. The Scolndag gives them that power. So why would they want another power so to do? I think that it took a long time for that issue to be understood in London, that that existed. Mr Carlaw and I pay tribute to him and others have worked very hard to get an understanding going. I am sure that they have not asking to confirm this. I am sure that he has found, too, a lack of detailed knowledge of devolution in some places within the UK Government and its officials. Once we got through that, then the issue did become how we gave them the reassurance. Equally, we had to be clear in our mind what would work for us and what would not work for us. We have been pretty methodical about this in terms of making sure that we applied tests to where we were. We tend to work like that. We did that at the start of this process when we were discussing, I think, with Damian Green, what the principles would be that would underpin the process of setting up frameworks. We were very keen to have a rational, criteria-driven approach, which Damian Green agreed and which we got the principles established because Damian understood that. What we have applied here are four tests to what is taking place and what may come out of it. I am happy to put them on the record because I do not think that it does any harm to do so. The first test was that the scope of any power and the circumstances in which it would be used must be agreed as must the exercise of the power. That is very clear, and that respects the devolved settlement. Secondly, any constraint must apply equally to all of the Administrations. Thirdly, any power of constraint in orders made under the bill should, as is generally the case with powers under the withdrawal bill, expire automatically after a defined period—sunsetting, in other words. Finally, the devolved legislators should exercise at least the same degree of scrutiny over orders in the frameworks that flow from them as the UK Parliament. Those are clear tests. All of the unlocking of those comes in the first test, because if you accept the first test, essentially the others flow from it. We could have a form of words that covers the other tests, but we cannot have a form of words that does anything with the first test. That is a binary. The existence of the backstop that they wish is the obstacle to getting that first test passed. As we contend that there is a backstop because it exists in the Scotland Act, we do not think that we need that unnecessary additional backstop, which is derailing the process. That is a debate. Yes, that will depend on trust. How do you reassure people of what you are trying to do? There is not a Trojan horse in this. The answer in the independence referendum was to have a written agreement, which was there. It was about a range of things, but it allowed things to go forward. If we were to have the first test accepted and passed, we should enshrine that in some sort of written agreement, which is visible, public, there, and which says nobody is going to do proposed things that are unreasonable and nobody is going to withhold consent unreasonably. I think that is still a way forward, but they have to accept, first of all, that they can meet these tests and will meet these tests. That is the issue that House of Lords will have to confront too. It is quite clear that the House of Lords will first consider these items next Monday, in terms of its consideration. There will be no resolution, because there is no expectation of a vote. There has not yet been a vote at the committee stage in the House of Lords on this. That is not normally what the Lords do, but when this returns at report stage, which will be after Easter, there will be presumably a vote on the amendment that has been tabled by the UK Government, which does not meet those tests. That is important to say. Any other amendments that are there? I am very grateful for all of that. Of course, the distinction in relation to the Scottish independence type discussions that were taken would have been between Scotland and the rest of the United Kingdom. Within the frameworks, we are talking about three devolved administrations and Westminster. In a sense, the Scottish Government has got just as much of a vested interest in the not unreasonably held or not unreasonably asked question, because any one of the devolved administrations, in a matter affecting the framework of the UK, which could be just as important to any trading organisation or economic respective factor in Scotland, would not want to find it was being prejudiced by a dispute over agreement within the framework, which the origin of which was absolutely nothing to do with the issue in hand whatsoever, but was motivated by something completely differently. Is it not multiplicity of the four parties to the framework that just means that there has to be a mechanism by which one can ensure that the process can proceed across the territories of all four, i.e. the United Kingdom, and not just the bilateral kind of arrangement that maybe you were referring to before? No, I want to be clear about that. Any agreement would be an agreement that would be an agreement between three parties, certainly. An agreement with Northern Ireland is very different from Visage, because there is no administration and no Parliament there. I do not think that there is an agreement that the civil service could enter into. In a sense, the UK Government might be agreeing with itself in Northern Ireland, given where things are just now. For the moment? For the moment. The present moment, that would be a multilateral space, but I do want to just challenge a little on the issue of trade. This is clearly about trade in the mind of the UK Government. I think there are wider issues, but this is about trade. This is a normal part of a trading relationship with a range of countries. If you are going to do a trade treaty with Canada, for example, and the Prime Minister keeps holding up the Canadian Treaty as an example, you do it on the basis that it is a federation, admittedly, but you do it on the basis that the powers of the provinces where they relate to items within that treaty require the agreement of the provinces. That is a part of the constitutional settlement, and therefore you take it as red. That is how you negotiate. That applies, for example, in Belgium, even in its relationship with the EU. There are rights that are given, and which are exercised responsibly. You can, of course, have exceptions. The Canadian Treaty is the position of one of the Belgian parliaments, and this is a given example. As a point that I made to David Lidington last week, and I will make it again here, you need to have the principle established, and then you can legislate for the exceptions. In this circumstance, if you accept the principle that there has to be consent, then you legislate for the circumstances when they arise of difficulties that exist. What has happened to the UK Government with great respect? They have started with the difficulties and the exemptions, and they are trying then to derive a general principle from those. That is the wrong way to argue this. If we can agree the general principle, and I have made it clear what the tests are for that general principle, then the exemptions can be dealt with, and the difficulties can be dealt with, and you can allow for those difficulties in those circumstances. Richard Lochhead, you have indicated that you want to come in. Is it on the subject of negotiations? Yes, it is on the subject of negotiations of consent. I struggle with Jackson Carlaw's view that there is an easy bridging between the principles of consent and consultation, because there are two different fundamental principles. Can you give me an assurance that you will continue to pursue that we will only accept the principle of consent, and that it is part of the negotiations that will not be goodwill agreements or frameworks agreed to outwith the legislation that weakens that principle? I think that the First Minister has made it absolutely clear that she could not envisage coming to the Scottish Parliament and recommending the acceptance by the Scottish Parliament of an agreement with the UK Government that did not deal absolutely with this test, as I put it, and I repeat it. The scope of any power and the circumstances in which it would be used must be agreed as must the exercise of the power. That is the basic thing. Carlin Jones has said exactly the same. He could not see himself going to the Welsh Assembly in those circumstances, so yes. That is the basic issue at the heart of this. If that issue is resolved, then progress can be made. Of course, Mr Carlaw raised the question of the bill. I think that the bill is a bill that is perfectly operable. It has been improved by extensive scrutiny and will continue, no doubt, to be improved. Section 37 of the act was an agreed amendment to it last night. I think that it was the very last thing that we actually did last night on a motion, if I remember correctly, from Liam Kerr, an amendment from Liam Kerr. It says that the Scottish ministers made by regulations repeal this act, and we have taken out or any provision of this act. It is again binary. The back act exists or does not exist, and two regulations on the subsection 1 are subject to the affirmative procedure. There it is. This can be repealed. We can bring regulation for the chamber to approve on this act, and we have said that we will do so, providing the tests are met, consent is met. I give you the assurance that you were seeking. The presentation of the issue and the public discourse around it has tended to concentrate on the 25 areas that the UK Government says that discussion is needed for legislative frameworks. In your letter to MSPs, you emphasised that the EU withdrawal bill is currently drafted, allows the UK Government to constrain the powers of the Scottish Parliament in any devolved area, so that it can take any devolved power and put them into that basket, if you like. Do you think that there is an understanding that that is what the EU withdrawal bill is doing, and how hopeful are you that we will get agreement on that particular aspect of the withdrawal bill? It is any area of intersection. We are not yet at the stage where absolutely any devolved power can be removed, but it is right that the Scottish Government is always mindful of the threat to devolution. That is what we are there for. We may have other political objectives, but I have other political objectives with respect, so do you, convener? However, the reality is that the role and responsibility of the Scottish Government is to ensure that the devolved settlement is not undermined. We do not lose powers. We are talking about gaining more powers. In those circumstances, at present, what we are talking about is areas of EU intersection. However, anything on this list could move from the first category of saying that we are not really concerned about that to the final new category, which we believe is reserved. Now, that may sound silly, but lawyers can often—not that I am badmouthing lawyers—but lawyers can often argue any convincing case and might well do so. The problem that we have here is that this list is not agreed. The list that we thought we were getting close to agreeing has changed and without notification to us, which is a difficult thing to happen. There are some very important things in this list that would be subject to freezing or re-reservation or call it what you like. Agricultural support, which appeared in the December list, might have shrugged, but it is, and I quote from this, policies and regulations under the EU common agricultural policy covering pillar 1, income and market support, pillar 2, and cross-cutting issues, including cross-compliance finance and controls. I do not have to tell you and I certainly do not have to tell Richard Lochhead what that means. That is absolutely central. That is a whole centrepiece of agriculture in Scotland, and that is in here. Moreover, it gives the lie, I have to say, to the argument that those are items that are only held in Brussels, because the way in which the support is given and defined can be altered and is altered in Scotland. The example that I have used before is less favoured area payments, but there are other examples. Those are active things, but it is agriculture, animal welfare and chemical regulation. That is really, really important. If you have, as I have in my constituency an on-going argument about the use of neonicotinoids and the possible effect on private water supplies, I have constituents who will be immensely worried that that is moving from the Scottish Parliament and Government somewhere else. However, we look at other ones, food and feed safety and hygiene law. How important that is in terms of our food and drink industries, and it is in here. Environmental quality. You look at all that stuff and you think that this is really concerning. Mutual recognition of professional qualifications, which sounds dull, is exceptionally important in terms of the health service, as well as some other places. Public procurement. There was a whole debate about that in the chamber yesterday. Public procurement is worth a vast amount of money. Those are really serious issues that we require to defend in the interests of Scotland, but we could have an agreement on them, provided that issue of consent is recognised. Clearly, those common frameworks are really important. You said that one of your tests, the fourth test that you had, was to have some degree of discretionary over the common frameworks as does the UK Government. How are you scrutinising those common frameworks? How are you representing the views of Scottish businesses over things such as water quality and food labelling? It appears just now that the general public are believing that that is to be a paragraph, but do they understand what are the implications of some of those common frameworks? How are you translating that into your scrutiny? Let's separate out the test from that more general question. What I said in the test, and I repeat it, on point for the devolved legislatures, so that's all of us as the Parliament, should exercise at least the same degree of scrutiny over orders and the frameworks that flow from them as the UK Parliament. That's an issue of parliamentary democracy. What this is saying, and I'm sure after this stage 2 process, the bona fides in this, I'm still talking about we believe that the Parliament should have a role, if the UK Parliament is a role, Scottish Parliament and the Welsh Parliament should have a role. That's what I'm saying. On the issue of frameworks, I've indicated what I think the issues are. I don't think, in terms of food safety and food labelling, that removing the responsibility for that from the Scottish Parliament in a way that is not time limited and a way in which we have no control will be of benefit to the food and drink industries of Scotland. They also do not believe that that is the case. That is, in devolution, the principle of subsidiarity applies. What is the right place for these decisions to be made? Now, this is, you know an argument that goes a long, long way back. There was an exhibition outside the chamber, I think, two weeks ago of John P Macintosh, and of course the library is named after John P. I'm old enough to have served on John P Macintosh's rectorial committee at Edinburgh University. Being of John P Macintosh as a political scientist, as well as an active politician, wrote extensively on the issue of subsidiarity and why it was important. Subsidiarity drove the process of establishing this Parliament. That is a principle that underlines these, and people do understand it. If I go and talk to farmers in my constituency, as I've said, if I go and talk to people in my constituency concerned about neonicotinoids, and you say, you can come to me and we can talk about those issues, and I can make representations on those issues as you can, as a constituency MSP, as you now are. You can make those representations, but take this, take this route that the UK Government is taking and you can't. Those are frozen, those have gone away, and we don't know when we're getting them back, and we don't know what state they will be in when they get back. So the issue of agreement that's going to happen, participation by the legislatures, it's very important, as is the work together to make sure that these frameworks benefit all of us, and that's what's been going on, a way in which they will work together. The principles that I talked about with Damian Green and agreed were crucial to this. We got the principles set up, common frameworks will be established when they're necessary in order to, and there's a range of things. Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, your constituents, my constituents, to whom we are reporting on this issue. Frameworks will ensure recognition of the economic and social linkages between Northern Ireland and Ireland, and Northern Ireland will be the only part of the UK that shares a land frontier with the EU. They will also adhere to the Belfast agreement. That's in the principles, so we're also saying that we recognise the wider context of this, and we're all committed to getting it right. I'm interested in the scenarios that might be facing if the legislation has passed, which we're set to do next week. When we took evidence last week that we discussed with Professor Nicle McEwen, we saw options that were set out in the policy memorandum. I was particularly interested in a mid-away option. What happens if both the continuity bill and the EU withdrawal bill are passed and there's a suggestion that there could be qualified withholding of consent from the Scottish Parliament if the two bills would then, in some way, merge? If you could provide more detail on how that would work. I mean, this bill is being very carefully drafted, in my view, well drafted, and then improved further by scrutiny and amendment. So we have a bill that is capable of operating, and I made a commitment in the last statement that I made last night, at some hour or whenever we were doing it, that I'm not going to seek to overturn amendments to the bill made at stage 2, merely because I think I want to get my own way. I'll only bring back any changes to those if I believe the bill isn't operable. So I want to have a bill that is operable and functional. Now then there's a number of things that can happen. It could be that section 37 goes forward and we bring regulation to repeal the act because we have achieved the agreement with the UK Government. That means that we repeal this act and we pass a legislative consent motion. That has to be passed by the last amending stage of the bill, which is the report stage in the House of Lords, which will be after Easter at some stage. There's a slight vagueness about that because it is possible at the third reading stage to amend in the House of Lords, as I understand, but we are expectation that it will be the report stage of the bill. So that's one. Legislative consent motion is passed. The bill is not there. We've all done a great job. We've got a bill that works well, but we've accepted those circumstances. I think if that doesn't happen and there is no agreement on it, then we are into a situation where we have to operate this bill. Now this bill is operable and with goodwill, this bill could work with the United Kingdom Government. This bill has been drafted so to do. That's why we've followed very, very closely the United Kingdom bill. That's why the Welsh have taken the same approach. So we find ourselves in a situation where we operate this bill, the United Kingdom bill operates, and we can shorn, of course, of the parts to which we have not given consent. That is important. So the two bills operate together, and they operate in a way that we try to work together. So, for example, in the programme of secondary legislation, we try and cooperate on that, and that recognises the reality of the situation that we're in. I don't think that's difficult to do, but that's not our first choice. And our first choice remains to try and get an agreement with the UK. I just so understand how that process would work. So, if the two bills were passed, if we got to that stage, I agree that I would much rather see agreement between the two Governments, but if we're not in that situation and two bills are passed, for them both to be operable would need the agreement of the UK Government. Does one bill have precedence over that? Assumption that it's not the best use of language, but I think that the UK bill sums the Scottish Parliament bill. That would depend on what the UK chooses to do. That's essentially the final option. And then there's a number of options within that. I'm honestly not trying to complicate this anymore. I'd quite like to simplify it if I could, but you're then into a range of options. You've got the absolute extreme end of the option that this is challenged by the UK Government, either by the Attorney General or the Attorney General that would challenge it. It goes to the Supreme Court. There's another part of the branch diagram. The Supreme Court says it's entirely legitimate constitutional. It says it isn't constitutional. I'm absolutely confident it will say it's within the rights of this Parliament. So, to do, Mr Carlaw, by grinning seems to mean that he doesn't agree with me. That will not be a surprise to anybody who knows us or who knows his Parliament. So, we then have that situation. If the bill is within the competence of the Parliament, then it would be up to the UK Government to say, even that's a case, we don't want it. So, they can use their power under the Scotland Act and that's what takes place. Or they can choose to sit down and say, okay, we accept that, we accept that there won't be a legislative consent motion, which applies, of course, to parts of the bill. We'll take those parts of the bill out and we'll find a way to work together. That's perfectly possible to do. This bill is designed so to do. It can be done in that way. Be responsible of us to bring anything to this chamber that couldn't work in that way and that's where we are. But, you know, those are all decisions in the end that the UK Government has to make. It has to decide whether or not it wants an agreement on the basis that I've outlined. If it doesn't in the end can't move in that direction, then it would have to decide whether it challenges a bill or whether it can live with it and it can accept they won't get a legislative consent motion. Then, of course, it would be the view of the House of Lords. What would the House of Lords view be of there being no legislative consent motion but a desire of the UK Government to overrule a bill that is legitimately passed in this chamber? I don't want that to happen. The best solution to this is the solution that you and I agree on, which is to get an agreement with the UK Government. If that happens, section 37 of the act comes into… I make that commitment. I've made that commitment every day several times a day for the last few weeks and I make it again here. That's what happens. It was really just in relation to the European Commission's draft negotiating guidelines for the future relationship that was published and where it states that such an agreement cannot offer the same benefits as membership and cannot amount to participation in the single market or parts thereof. It was really just to get your view on those guidelines that were published. The guidelines are clear and they are not a surprise. I had discussions six months ago in Brussels where people were saying to me, if the UK Government's red lines are these, that is what the outcome will be because there's no way random. It's absolutely where the UK Government stands. That's what happens. We published in the spy2 paper, which I usually have a copy to wave around but I, for some reason, have left it other things that have been happening this week. We published at the start of that a diagram chart from the EU Commission that showed why that was the case. It showed the type of arrangements that they've come to with other people, EEA membership, special arrangements with the Ukraine, the special arrangements with Turkey, the Canadian Treaty. It indicated why the red lines were driving in that direction. The commission is making it absolutely clear that the existence of the red lines are the issues that predicate what outcome they would be. If those red lines change, then the possible outcome changes. You cannot, whether it is in membership of the EU or membership of a golf club, you cannot say, I'm intending to have all the benefits of membership, I'm intending to turn up here every morning, play 18 holes, go to the bar, have lunch, play another 18 holes, go to the bar in the evening, come to all the social events but I'm not paying any fee and I'm absolutely not going to abide by the rules so it doesn't matter what the draw is in terms of how you use it, whether the course is closed or open, I'm going to do it. You can't do that, it just isn't possible and simply you can't be a member of this club and actually not observe the rules. Now you know then we get the ludicrous spectacle of those people who believe that is possible, then blaming the EU for having its own rules and saying it is making a victim of those people who are actually simply saying look you don't want to be a member of the club, we regret that, we deeply regret that. But if that's your decision then there are consequences that flow and that's not victimising, that's not bullying, that's just saying what the legal situation is. Just another particular question and obviously there was a lot of press coverage last week about the reciprocal access to fishing waters and a lot of publicity around that and really looking for the Scottish Government's view on that provision within the guidelines and how do you think that that can progress from here? Well I noticed at the weekend there was an intervention on this from Ruth Davidson Michael Gove who were calling for the UK to leave the CFP on 29 March 2019 and from that moment or at least when the coastal status kicks in then everything would be as they had promised to fishermen in Scotland during the referendum and thereafter, promises of course that were also repeated by members of the Scottish Parliament in the north-east of Scotland and indeed in the chamber. The difficulty and problem with that is twofold. One is at the same time the UK Government is endeavouring to negotiate a continuation for a period of time at which requires observing the ackee, not cherry picking from the ackee but observing the ackee and there has never been any indication at any time that fishing would be exempted from that and indeed I asked David Davis that question directly at the JMCEN in October and then I have continued to ask that question and I have always had the same reply which is fishing will be included. So what was promised and what continues to be promised cannot be achieved so I understand why perhaps Michael Govan with Davidson are making a bit of a noise because they're about to be found out but the second issue here is the fact that the UK Kingdom Government has forum all the United Kingdom Governments have forum in taking Scottish assets such as fishing and trading it away for advantage to themselves and again I think that Mr Gove and Ms Davidson recognise that that's an action that's presently under way and they may be trying to stop it I don't know but the track record of this the UK Government is quite clear and that's where those things are going so those are problems and the third problem with that is where Michelle Barney and others have been on this very clearly when he was in Jutland two weeks ago talking to Danny Trisham and he made it clear something that's always been the case which is that access to waters and trade are inexplicably linked and indeed the UK Government has that because it knows for example that Iceland and Norway as members of the EA accept tariffs to which increase the cost of their fish exports and they do that because they wish to have exclusive access to and to negotiate their own waters so the idea which was very much put around during the referendum and thereafter particularly in the northeast that there is some magic squaring of this circle and that tariffs and access are not linked was well I'll be kind it was magical thinking some might call it simply being deceitful about this matter and that is the reality where we are now we don't want Scottish waters to be traded away we've always opposed that we've also always argued for local management we do not think that CFP has been successful and of course it hasn't and there needs to be a replacement for it but you know we are also opposed to people saying things that aren't true because eventually you'll get found out I just have one final question obviously just before you came in we had a panel looking at possibilities for future trading arrangements and obviously there are certain sectors and industries in Scotland where our exports sectors in particular there are of greater importance to us than they would be of the UK as a whole we took evidence from to the trade justice Scotland coalition in terms of the democratic deficit that exists in the moment in terms of the input that we have into the trade bill and on-going discussions around that are there just wonder what discussions are underway between the Scottish Government and the UK government at the moment as to how we ensure that the Scottish Parliament the Scottish government have a meaningful say in the especially in negotiations and discussions relating to trade moving forward there are two areas which are of importance there's one is to resolve the present difficulty over the withdrawal bill because quite clearly if that is removed then discussions and trust becomes easier to get but the second issue in here is that there is a commitment from the UK government to bring to the GMCEN a paper on the involvement of the devolved administrations in the negotiating process now I haven't we haven't seen that paper we don't know what will be in it but it's a point that Mark Drakeford and I have been raising for well over a year because it is germane to exactly the issue you're raising how this negotiation stance is developed on matters that pertain to devolved competencies we also try to make it understood that the issue of different circumstances apply give you an example out with the trade area and that is on migration Scotland is much more dependent upon EU migration than the rest of the UK that's clearly any evidence that we developed for the migration advisory committee which has been published in which has been debated in the chamber that needs to be understood when migration policy is being developed it's really been hard to get that understood I had a conversation with a relevant UK minister it seemed to me that in his mind he was equating the situation in Scotland with the situation of the construction industry which has a shortfall of workers and and they are saying we have a problem with migration I would point out to him it is perhaps something that needs to be understood in a different sense if you represent as I do a rural extreme rural constituency that is losing population and cannot renew its population we are to be blunt not breeding fast enough to renew our population you have to have migration otherwise you will continue to have depopulation which will continue to mean that services will diminish that's a reality and the only migration actually that works in this regard and has worked over the last period has been European migration because it's easy people can come and go and they do and some people stay a long time some will stay forever some people are there for a brief period of time so we need a solution that essentially mirrors freedom of movement and it's making sure that that is understood now that applies in a variety of other different it'll apply in trade it'll apply in the in a whole pattern of things and we need to get that across and then we need to make sure through our discussion the UK government through the frameworks because the frameworks mention this specifically that they need to recognise the relative impacts that exist and of course the work that the UK government itself has done on economic impact shows the severe impact that would take place in different parts of the United Kingdom I have a couple of supplementaries to marigodgen's questions first the paper you mentioned that you're preparing with Mark Drakeford can you indicate when that will be published we're not preparing that paper what I said was that the UK government are bringing us a paper on the issue of involvement in negotiations and obviously that will be a GMC paper so it will be within the confidential space of the GMC but the outcomes of that if there are any outcomes of that will obviously be a matter of reporting to this parliament now picture up drawn there thanks for clarifying that and the other issue was marigodgen raised the fact that we had had a trade panel of trade experts here before your own session and one of the things that was quite interesting at the end of that was Dr Gathia Durran who's a lecturer in economic law at UCL was asked about geographical indicators and her response was that the EU was very keen to protect its own geographical indicators and so therefore she didn't see a particular problem for the UK in terms of that particular negotiation with the EU but out with the EU when it came to other trade agreements she said that the rules were a lot less easy to enforce and given that geographical indicators is one of the areas that the UK government has said that it's keeping for itself I wondered what you thought the problems were in that regard well I think they're pretty severe you know I think it could be a useful European discussion but I think it'd be better to have a pan European system but given the antipathy to this except in the end when it seemed to be so necessary that even the United Kingdom government can't resist it if they are determined to have their own system the question arises what validity does that system have and recognition does that system have in an international sphere and is it something that can be traded away whiskey is a good example you know there's a clear definition of whiskey and particularly malt whiskey you know the United States have for a long time wanted to change that definition because they want to get into markets and be able to call things what they aren't and I think in those circumstances that might be a tough set of negotiations you know the naivety of those who believe that the United States sentiment would overrule its hard practical edge and that there would be no difficulty in having the most beneficial trading arrangement has been given a bit of a stunt in recent days when you look at what the trump administration's actions are I think it's going to be a tough business you know I mean there are people I noticed today that the process has started to try and get an indicator indicator for Scottish venison you know something that Scottish government has been involved in and deeply involved in I think it's highly likely that people will be able to ignore that if we're not part of the European system thank you very much to Stuart McMillan thank you good morning minister minister the stage 3 process for the continuity bill takes place next week and the EU withdrawal bulging through Westminster I think that's estimated to finish on about me can you explain to the committee why that there is that kind of difference in time is there a particular reason why you wanted the continuity bill to finish earlier yes I will do so briefly but I will also have copied to you I suspect you may have seen it but I'll copy to you a letter ascent to the we sent to the delegate powers committee at some stage in the last fortnight might the days to blend together which gives the legal reasons why we have to have this bill passed within the timescale we have and before the united kingdom bill gets royal ascent and there are legal reasons within the EU withdrawal bill but there's the you know there's the clear practicality of this we've spent a lot of time trying to get an agreement with the UK government you know I mean many many hours and days doing so we've been discussing and it's no secret because we've talked about it openly we've been discussing withdrawal continuity bills with the Welsh since last summer and having useful discussions as to whether this would be a route that we could follow but we've always felt you know and continue to feel that the UK agreement would be better but eventually with the clock ticking and the requirements for us to have this bill through and sent for royal ascent within the timescale of the united kingdoms bill and before it gets royal ascent meant that we were getting to the last moment that this could be done and we've held off as long as we could but in the end we could hold off no longer and we have exactly the same timetable as the Welsh Government and their bill I think will be at stage three on the the same day the our process of royal ascent is of course longer than the UK bill process we have a month's line time I think you could call it where during which the bill can be challenged legally by either the Lord Advocate or the Advocate General or the Attorney General so we have that before it can be given royal ascent so really there's between it the stage three process and royal ascent is about five weeks I think I'm right roughly five weeks whereas the United Kingdom bill can be given royal ascent within a day or so pretty quick yeah so in those circumstances we've got a bit of time in that process where we have to do things which they wouldn't have to do so we would expect it's not certain when the UK bill will pass the House of Lords report stage should be after Easter they're actually been running behind at the moment but they may catch up there's then their final reading and then they go into what is called ping pong if they have made changes to the bill the commons is asked not to accept the bill will go backwards and forwards so I think we are we are talking round about the third week in May for royal ascent for that bill providing they keep to timetable whereas we hope ours will have had ascent by that time certainly from the I'm on the delegate of powers on the lord from committee so I'm aware of the question on this before indeed one of the aspects of the certainly that has come up in that committee is the issue of secondary legislation as well as the other primary legislation that would then emanate from from the UK leaving the EU it's estimated that some 300 pieces of secondary legislation will actually be required to come through this this parliament I mean do you think that uh do you believe that the the parliament has got the has got the necessary staffing to actually deal with that in such a short space of time and this would be this would be a burden we would have no matter what took place you know if this process of leaving I oppose which I think is wasteful it's like black hole it's sucking in energy and initiative and money unnecessarily but it's a process unfortunately we're engaged in we didn't vote for but we're engaged in we will have to do these things so that you know so we are organising ourselves to do them 300 is an estimate it may be more I suspect it will turn up to be more we can work in collaboration with the UK government we intend to work in collaboration with the UK government no matter what happens in these circumstances but it's going to be a heavy burden there's also the cost of it you know the the chancellor has given an allocation of money that some money will come to Scotland you know that that allocation will have to be discussed but it may not be enough but we'll have to get on and do the job and you know people are committed to it I mean I have to say this has been a difficult interesting unusual couple of weeks but all the parties and all the officials engaged in this and all the parliamentary officials have risen tremendously to that challenge so there you know there will be challenges ahead but I'm confident they will rise to these that challenge how the discussion started in terms of how much of that resource I welcome to Scotland the resource yes that is a matter you must raise Mr Mackay rather than me but yes I understand that is the case discussions are also well underway in terms of preparation I don't know what either of you want to say anything about preparation Luke do you want to say about preparation I think this is quite closely linked to the point that miss baker made earlier which is the three scenarios that the bill is preparing for it's been the Scottish Government's consistent position since December 2016 when Scotland's place in Europe was published that the best scenario for discharging our responsibility to prepare our legislation for EU withdrawal was a single bill and a single scheme that would provide the maximum opportunities for co-ordination between the government the policy memorandum indicates the situations where we would hope to see that take place so where for example changes required were uncontroversial technical or the same or similar across the UK's jurisdictions they could be made at the UK wide level with the appropriate involvement of devolved institutions and that's what mr Russell was exploring with miss baker earlier was the opportunities even if the continuity bill does ultimately have to be operated for attempting to maintain as much as possible of that form of that sort of co-operation and that's been helpful my final question now just it's regarding the the actual withdrawal agreement legal text and the negotiating guidelines for the future relationship between the leaving and do you think that that will actually have an impact on the provisions on the continuity bill it's very able to say I mean you know that there is a linkage between everything in this process I suppose I suppose I would point to have I had to the issue of the frameworks and the operation of frameworks particularly in the Northern Irish situation you heard me what say that what the final principle was you know the Northern Irish situation requires to be resolved and it is difficult to see it being resolved without a degree of regulatory alignment north and south if Northern Ireland is then for example taking part in a framework say on agriculture in which there's regulatory alignment between Northern Ireland and Ireland therefore there is a the European system is operating in Northern Ireland how do we work with that in terms of a framework because clearly a framework implies regulatory alignment between the parties in the framework so do we then enter into regulatory alignment with the rest of the EU now I've raised this question it does tend to produce a bit of a sort of we're thinking about that reaction but you know there is an issue in that and if that applies to agricultural supply across the board in a variety of other places so there are there are linkages we are aware of those linkages there are linkages the question that Marie Gougeon raised in terms of the negotiating guidelines raise issues for us in terms of what the UK's red lines are and why we believe those are misplaced they also raise issues for us of the engagement of the devolved administrations and who are representing the devolved competencies within a process in which devolved competencies will be part of the negotiations so those are all linkages okay thank you I have a supplementary from Ross Greer thanks computer it's going back to marie Gougeon's point and just point of clarification on what you mentioned minister the UK government bringing forward a paper on devolved involvement in future trade negotiations is expectation that this paper if agreed would lead to amendments to the trade bill and if not is it still the scottish government's position that the bill itself would need amended can I clarify again I didn't say involvement in trade negotiations again said involvement in the negotiations which are the negotiations with the EU on the future status and all the issues and the the issue in the paper which the UK government is bringing forward is the issue which has been on the table for some considerable length of time how do the devolved administrations become engaged in that process to influence that process in the areas of devolved competence now we might also argue there are areas out with devolved competence in which we should also be engaged for example I've used example of migration but that's what the paper is about so that paper presumably will allow us to influence what happens in the negotiations if providing a paper is agreed in some way which will of course then influence what the outcomes are and how those outcomes are put into legislation so if we are aware of what is happening if we are influencing in a genuine way what is taking place and influencing the outcomes we should be presumably in a better position then to ensure that any legislation or action that flows including trade action is influenced by our view and the welch view and hopefully the northern eyes view thanks for that apologies for for misunderstanding just sticking with the trade bill for a moment still the scottish government's position that the parliament should not grant legislative consent to that it was quite clear with the UK withdrawal bill that we would result in the place we are now of an alternative bill being put forward by the scottish government what is the end game with the trade bill if it's not amended satisfactorily it depends upon the agreement on the EU withdrawal bill because the issue is substantially the same it is the issue of consent if the issue of consent is resolved that would be I think that applies not just to the trade bill which we have seen but to bills which we have not seen because they will presumably and this is presumably because we don't have this guarantee they will presumably have two things one is they will recognise the devolved competencies and recognise the need for consent and they will also recognise the need for an active process of legislative consent in this parliament so in other words Sewell will apply right so the reason I have been active in the trade bill is I am not the trade minister you know Keith Brown is responsible for that and you know he has he's taken that forward the issue I'm engaged in the trade bill is because it is the same issue as arises in the EU withdrawal bill and therefore we have to resolve that and I've always said about the EU withdrawal bill it is a gatekeeper bill if you get that one right then it opens the gate to getting the rest right if you get that one wrong or there's no agreement then you're going to have a continuing disagreement on every single piece of legislation I can't say I look forward to that thank you thank you and at that we're out of time can I thank the minister and his officials for coming to give evidence to us today we'll now have a brief suspension before we move into private session thank you