 Welcome to the Environment, Climate Change and Land Reform Committee's 13th meeting of 2019, before we move to our first item on the agenda. Can I remind everyone to switch off their mobile phones or put them on silent as they may affect the broadcasting system? The first item on the agenda is for the committee to take evidence on the carbon accounting scheme Scotland amendment regulations 2019. This morning, I am delighted to welcome Dr Tom Russell, the legislation team leader of decarbonisation division of the Scottish Government. Good morning to you and Andrew Mortimer, the statistician of the Office of the Chief Economic Advisor. Good morning to you both. I believe that there is an opening statement. Am I correct? I had advised that effect, but I am very happy to speak very briefly to come up with the purpose of the SSI, if that would be helpful to the committee. This is one in a fairly long sequence. Members of the committee will remember the previous situations, I am sure, whether fondly or not. I will leave to them to decide. Of statutory instruments that are related to reporting on the annual targets under the Climate Change Scotland 2009 act. All of the emissions reduction targets under the 2009 act are based on emissions that have been adjusted to account for the operation of the EU emissions trading scheme or trading system in Scotland. Because that adjustment forms part of the statutory reporting requirements on the targets, the calculation rules by which the adjustment is performed in each year need to be set in legislation. That happens through the carbon accounting scheme Scotland regulations. The original set of regulations, which were legislated in 2010, shortly after the act itself, contained provisions to undertake the adjustment calculations for the annual target years 2010-2012, which corresponded to phase 2 of the operation of the EU emissions trading system. During phase 3 of the emissions trading system, which is all the annual target years from 2013 onwards to date, sets of amendment regulations have been required to be introduced on an annual basis to introduce a new set of calculation rules for each year's adjustment calculation. The reason why those annual SSIs have been needed is because of the availability of data for the EU trading system itself. That data is only available year to year, so we couldn't pre-empt it in advance and set out all the rules for future years, which would have probably been preferable otherwise. One other point I'll highlight—I'm sure that the committee is well aware of this—is that a lot of the dates here can be quite confusing in that everything is effectively happening two years after the event. The reason for that is simply to do with the timescale for the availability of emissions data itself. For example, the next set of emissions statistics, which will be published in June of this year—we expect to be published in June of this year—will cover emissions during the calendar year 2017. It simply takes that long for that data to be available and be published. The accounting rules in the present SSI that the committee is considering relate to emissions during the calendar year 2017. In essence, the purpose of the SSI is to allow for full statutory reporting on the 2017 annual target under the 2009 act once those statistics become available later in the year. I hope that that is helpful. It is. Stuart Stevenson, have you had a question? Yes, just to try and get a handle on what is going on here, can I just ask if we know how many participants there are in Scotland in the ETS? Even approximately, because I saw the body language. Broadly speaking, it is certainly no more than 100, and it may be substantially less than that. Have we any sense, or even if you could give us a description in broad terms of who participates so that we can understand a little bit more in a highly technical area about what is going on? I am very happy to do the best I can with that now. In terms of the exact number of participants that something will have to write back to the committee, I am very happy to do that. The ETS operation in Scotland covers both what is termed fixed installations, so I think that this is what your question is primarily relating to. My best understanding is that about 100 is indeed the right first order approximation, but we will write back with the exact current figure. These are large installations emitting significant quantities of greenhouse gases, so prime examples would be large industrial facilities, power stations, although obviously there are no longer significant coal-fired power stations in Scotland at least. If you wanted to think about it in terms of, for example, the sectors in the climate change plan, what we are talking about is primarily heavy industry and parts of the power sector within that breakdown. Also covered by the EU emissions trading system is aviation within destinations within the EU, so aviation operators who operate those flights also report under the trading system. That is what I thought. Taking us on from there, what effect does it have on the operation of these large industries? I am sure that my colleague across the panel will be interested in relation to Grangemouth, which I am quite confident is one of the hundreds or so. There is a lot of aviation going on. Does that mean that there are cash outflows as they have to buy credits for those businesses? Are there other businesses in Scotland that are net contributors and providing credits that could be bought? Who are the parties to the trades that are going on? In broad terms, I am not looking for absolute detail. As I understand that, the thrust of this question is to do with the functional operation of the EU emissions trading system, which I should say by way of a significant disclaimer is not actually my policy area. I am very happy to ask colleagues to provide more details with an explanation about those things. I might ask Andrew to come in here a second just in terms of the issue of auction and free allowances. Perhaps we can do that first and then I will come back to the SSI itself. Approximately 12 times a year there is an auction run and the data can be picked up on the intercontinental exchange, which routes the auction of UK emission allowances under the EU ETS. That is essentially one part. There is also another part, which is called the national implementation measures, which is essentially where industries at significant risk of carbon leakage to outside the EU are essentially given a free allowance as well. Then there is one other part of it, which is called the new entrance reserve. That is essentially drawn upon, as in when a new business or industry comes into being, that would qualify for a free allocation of allowances, but at the time of its set-up it does not have one because it has no historical reference data. My final question, which might be the most important one, is roughly, again, because I am not expecting exactitude, of our total emissions. What percentage of our total emissions is covered by what this SSI is trying to do? Bluntly, if it is a tiny little to the right of the decimal point, then our concerns will be comparatively modest, but if, on the other hand, it is 10 or 15 per cent, we might be more interested and it would be helpful to know. It is definitely more of that latter magnitude. Again, I would have to confirm on the exact percentage figure, but it is around about 25 per cent of Scotland's total emissions are traded under the EUETS at the present time. I would emphasise that, just in terms of the immediate SSI, this is doing nothing as regards the underground operation of the emissions trading scheme. It is simply reflecting the operation of that when it comes to the calculation of emissions for the reporting on climate targets. Thank you, convener, and good morning. It is a short, probably very straightforward answer for you, but just to clarify, in view of the fact that we have the new climate change bill coming—well, it is before us. As you know, the stage 1 report has already happened. Am I right in thinking that there won't be any changes because what will happen in relation to this annually—unless, of course, there are amendments, but that this will just simply flow from the 2009 act as it stands? Is that correct, or are there any implications? I think I have understood the question correctly, but please tell me if not. The need for the current SSI stems from the fact that the bill's provisions are not yet agreed much less in force. Until such a time as the bill has commenced in whatever form parliament eventually agrees, the 2009 act of requirements remain in legal force, and that is what drives the need to do this SSI. This SSI flows solely from the 2009 act of requirements as part of it. In terms of what the bill will mean for this going forwards, if the relevant parts of the bill were to be agreed in the form in which they stand, future climate targets will be set and reported against on the basis of actual emissions from all parts of the economy. That will have a range of consequences, but one of them is that SSIs of this type will no longer be needed. That's what I wasn't sure about. That's helpful. Can I just clarify? When we're talking about net emissions, we're taking into account sequestration. Yes, this is an area of absolutely notorious complexity and even within Governments, I assure you. The term net is very problematically used in slightly different ways by different parties. The way in which we use it is the same way in which you're using it, convener, which is to refer to emissions sources minus emissions sinks. In that regard, absolutely nothing changes through this SSI, through the bill, through anything that's being discussed at the present time. For example, in some of their previous advice, the Committee on Climate Change has sometimes used the word net in the same way that I've used the term adjusted in my opening remarks to refer to emissions net of the operation of the emissions trading scheme, for example. Our preferred terminology, but obviously there's matters of preference here, is to refer to that as the distinction between adjusted emissions and actual emissions. By actual emissions in my previous answer, what I was intending to refer to there is the actual levels of emissions from heavy industry in the power sector, rather than a pro-rated share of EU-wide emissions, which is what's done under the adjustment calculation. John Scott, you had a question. Yes, mine was probably relatively modest and uncomplicated. I just wanted to know about the aviation activities and the aviation cap and have those caps been exceeded or undershot or whatever since I haven't read a paper that is referred to at the bottom of our note that it says that a paper setting out how the aviation cap and the fixed insulation cap have been determined and has been published. I'm afraid that I haven't seen that. Could you just tell us how that has turned out? Absolutely. I'll defer to Andrew on the way in which the different components of the cap are calculated. In terms of the initial part of your question, the out-term performance comparisons to the cap. I don't have those figures in front of me, but I'm very happy to write back to the committee with those. All that information is available through the official statistics bulletins that get published each year. I think that Andrew is going to answer further on to that point. Mr Mortimer, you go. Yes. The manner in which the aviation cap is calculated is, as with all those calculations, consistent with EU level practice and UK level practice, so it essentially falls from that, so it's a consistent calculation. It's essentially based upon the share of Scotland's share of EU aviation emissions between a 2004 to 2006 reference period. In line with the EU target, which is to reduce aviation emissions by 95 per cent in phase 3 as compared to the 2010 aviation emissions, we simply carry that into Scotland and replicate that approach. My understanding from the aviation industry is that they're on track to meet those targets. Is that correct? I don't have that information to hand. I can write back if you wish. I just thought that it might be useful to just try to close this off. I'll give you my description of what the ETS is and see if that is reasonable. The ETS system, I understand to be a system whereby the allowances that heavy industry are given, which relate to what it is presumed that their emissions will be, if they underachieve, there is a value in those allowances because they can sell them to somebody who has not got sufficient allowances to cover, so thereby creating an incentive for those who have allowances to not emit as much as their allowances permit because there's an economic value in selling them to someone else, but also to create a disincentive to those who emit more than allowances because they will have to pay out money for that. Is that a fair description of what the whole thing is about? It's about trading those allowances. Again, with the caveat that it's not my immediate policy of expertise, that, to me, sounds like a very reasonable description of a cap and trade scheme such as the ETS. Final question from Mark Ruskell. Can you ask about how radiative forcing is taken into account in relation to aviation and whether the science is changing on that? That does fall outside the scope of the present SSI, but I'm happy to do my best at explaining how that fits into the wider legislative framework. Section 16 of the 2009 act incorporates emissions from—well, a fair share of the emissions from international aviation into the scope of Scotland's targets. The committee will be aware that Scotland was the first country to do that. We've now been joined by Wales late last year in doing so. To the best of my knowledge, I think that Scotland and Wales remain the only countries to include international as well as domestic aviation emissions within their domestic target frameworks. Section 16 of the 2009 act required that, through an entirely separate piece of secondary legislation, which I think was passed in 2010 or 2012—again, I can confirm—a set of rules was set up for determining a Scottish share of international aviation activity. As part of that, as you refer to, there is this term, which in section 16 itself refers to the aviation multiplier, but then in the SSI it's called radiative forcing factors. To the best of my understanding, it's the same thing, which is a specific term applied to those emissions to reflect the additional effects of non-CO2 emissions being emitted at altitude. There was a requirement in the 2009 act for ministers to seek advice from the Committee on Climate Change on what the appropriate level of that term would be. The CCC advised on that in believe—it will be whichever year the SSI was legislated—I believe in 2011, and they advised that the most appropriate level based on scientific understanding at that time for the term was one, which is what's in statute. I'm certainly not an expert in terms of where international scientific understanding about this has got to. I'm aware that specific studies have been published suggesting values other than one, whether there's a consensus around an alternate value. I'm not aware. Like I say, under section 16 of the 2009 act, there is a power for ministers to bring forward a further set of regulations that amend those rules. They can obviously, if they were to seek further advice from the CCC in terms of any aspects of that before doing so. In essence, the SSI is about how it's calculated what the carbon units—whether they're accredited or debited—from the net emissions. That's a very narrow focus of the SSI. The SSI relates solely to the EU-BTS adjustment calculation for 2017. It's just to make the observation, which I hope is helpful, that the UK climate change committee when asked for advice on the radiative forcing multiplier were at that time unable to find robust evidence that would suggest it be anything other than one. That was the advice that I received. I want to thank you for your time this morning and for giving such helpful evidence to us. We're going to be considering the instruments part of our next agenda item. We're going to have a brief suspension to allow you to get on with the rest of your day. Thank you very much. The second item in the agenda is to consider the following negative instruments, the first one being the carbon accounting scheme Scotland amendment regulations 2019 and the Locker and Marine Conservation Order 2019. Do we have any comments on the first instrument that we've just been discussing? Are we agreed that we don't want to make any recommendations on the instrument? Are there any comments on the second instrument, Stuart Stevenson? I just welcome the permanence that is now given to the protection of the features in Loch Karen. I think that the interesting thing in the papers that before us show the very, very small economic impact that this will actually have with the suggestion that in terms of employment, it is less than 0.1 of a person. I think that this is an excellent example of Parliament and Government working together on an important environmental issue. The very swift action as well, I would say. Angus MacDonald. Okay. I'm certainly pleased to see this action being taken to allow the recovery of the flame shell beds and to maintain the Loch Karen mail beds in a favourable condition. I have to say that it's ironic that this action has been taken as a result of the damage to the Loch Karen flame shell beds just over two years ago, and a week perhaps. This should send a strong message to fishermen with mobile gear that they have to be extremely careful about which areas they target in the future and that the Scottish Government is watching. Mark Ruskell. I would agree with Mr MacDonald that it does send a strong message. However, we know that there are those who are not listening. The reason that this came about is because there was an illegal dredge of this area. It was discovered by amateur divers, so I would have questions around what kind of enforcement measures the Scottish Government intends to put in place in relation to this MPA. Writing to the Government to seek clarification on that would be very useful. In particular, the role of electronic vessel monitoring. Clearly, there are times when fishing boats may pass over this MPA. There's often debate about what activities are then taking place. Are they actually legally dredging or not? I do think that electronic vessel monitoring, as agreed by this Parliament, could provide a strong role in that regard in terms of enforcement. I think that getting some clarity from the Government about their wider measures of enforcement in relation to MPAs, but specifically in relation to this MPA, where there's been a desecration that's taken place in the past and cannot happen again. Members being agreement that we write to the Government to seek clarification on what monitoring is going to happen and what enforcement there are around this MPA. I would like to identify with the comments of the previous members who have spoken as well and respect the Scottish Government for the very quick action at the beginning, which has now been built on to make this permanent. Building on what Mark Ruskell has said, I would like, when we write to the Government about enforcement, if the committee is agreeable to ask whether the fines are heavy enough in relation to this and in relation to infringements and what actually happens in terms of the cost of damage because I have a concern about that as well. How has that side of it dealt with? Also, there are a couple of other points that I'd like to make. One is that in relation to MPAs, I was interested to see in the partial Bria, as it was called, that it says that the contribution of MPAs to an ecologically coherent MPA network means that each one is greater than the sum of the parts. I want to highlight that because I think it is very important in terms of how we go forward to protect our marine environment. I also have another question, which would be helpful if we could write, with the agreement with the committee to the Scottish Government about it, which is that in the 2010 Marine Act, it does say not only about protecting and conserving and recovering, but also enhancing the marine environment. I think that that is an aspect that I would like to know to what degree that is being addressed because I do not see it in the instrument. Finally, I just observe, and I do not know that we necessarily want to write about this, but for the record in the Bria. I quote, it says, It is assumed that where fishing activity is impacted upon, it ceases altogether as opposed to being relocated elsewhere. In reality, some activity is likely to be displaced rather than entirely lost. My interest in that is that the Bria is being assessed on the basis of it, as I understand it, being entirely lost rather than displaced. I think that that is not necessarily a good way forward. However, I respect what Stuart Stevenson was saying about how the economic impact is extremely small in this case. As a matter of principle, perhaps the assessment of not entirely lost and likely to be displaced could perhaps be looked out for the future. Okay, but not necessarily something that we want to cover in the letter as such, or do you want that? Well, I would appreciate it if we could. It leads forward to a point of looking at future cost benefit analysis assessment, rather than I am not concerned for this particular point, but to highlight that general point along with the other points that have been made by numbers. So, are the committee in agreement to be writing a letter covering all the points that have been made today? And we do not want to make any other recommendations in relation to this instrument. Right, thank you. We are going to suspend briefly. The third item on the agenda is to take evidence on the potential impact of an EU exit on the environment. This morning, I am delighted to welcome Professor Colin Reid, who is a Professor of Environmental Law at the University of Dundee. Good morning to you, Professor Reid. I understand that you would like to make a short opening statement before we ask you some questions around this topic. It was suggested that it might be helpful just to summarise a few points. The whole issue about common frameworks when we are moving away from the common frameworks of the EU into a different situation is one that they ask both political and technical legal aspects. Regardless of the merits, there are a number of fundamental questions that have to be asked when you are thinking about common frameworks. The first question is what sort of framework, if any, is needed to deal with a particular point? What are the advantages and disadvantages of doing things independently, separately, as opposed to doing things collaboratively? That is, to a large extent, a political question that affects economics, business, morals, technical issues and scientific issues. You go to decide do we need any framework and, if so, what sort, a legal one, simply an agreement or maybe none at all? If you are going to have a framework, you then go to ask who is going to determine the content of the framework. Is it something that is going to be agreed by all the members of it or is somebody going to have the final decision making power? Once you have decided that there is going to be a framework, it may need to be implemented through legislation. Regardless of who has created the framework, some of the implementing legislation may have to be done at the different devolved levels. The EU frameworks are often put into law by the individual countries' jurisdictions, as opposed to being legislated centrally. All this process of creating the frameworks should be subject to some sort of scrutiny, public scrutiny, parliamentary scrutiny, who is going to be making the decisions if decisions are being made by Governments in agreement? How are they accountable for what they do in making the agreements? You then finally have to ask about what happens about compliance, enforcement and monitoring. How do we make sure that if a group of jurisdictions have agreed that there should be a common framework, how do we make sure that they are sticking to it, what happens if they do not? There are fundamental questions that have to be answered as fundamental design challenges in determining common frameworks quite apart from the need for them. I will ask you a question about the devolution settlement. You said in your submission that the Brexit process has revealed weaknesses in the devolution settlement in relation to arrangements for collaboration and dispute resolution between the Administrations in the UK. Can you elaborate on that further? The devolution settlement was designed at a time when the UK was a member of the UK. There has always been a concern that, as soon as you start devolving power, you have the risk of fragmentation, different administrations going off in completely different directions that cause all sorts of trouble for business, trade, the environment, all sorts of things. To some extent, in some areas, that was dealt with by having the category of reserved powers, the areas where it was thought there needed to be a simple single UK vision view on things that were put in the category of reserved powers. For a lot of other things, which, if you were starting from in a different context, you'd be thinking, well, do we need to think about this? Do we need to have arrangements for making sure that the different countries in the UK work together? There was no need to think about that because the EU provided a common pattern, a common framework. That was, in some ways, very helpful because it allowed the different nations of the UK to diverge, to some extent, to experiment, to go their own way, to reflect their own preferences and priorities. However, you had the, I was going to say, backstop—that's probably not the word to you so far—you had the guarantee that things were not going to go too far. They were going to be operating within the same broad envelope provided by the EU. With that envelope disappearing, there's now the potential for the different countries within the UK to go off at radically different ways without any coherence, without any collaboration, without any co-ordination up politically. They obviously may not want to do that, but theoretically they could go off in completely different directions. There isn't really a way of preventing that, a forum for discussing that. Although the joint ministerial council was designed and was intended to provide that, all the evidence is that it hasn't really been effective in that way, so something has to change. Rather than power resting with devolved Governments in certain areas, such as the environment, we could be subject to a situation in which that power really rests with the UK, which is not what the evolution was designed to achieve. At present, the devolution settlement provided for reserved and devolved powers, the fallback position was always the supremacy of the UK Parliament. If there was something that hadn't been thought about, if there was something where it was absolutely essential for there to be one view across the whole UK, the fallback was that the UK Parliament had its ultimate residual supremacy. That fallback has probably got the potential to be quite substantial. Given the weaknesses of other ways of working, it may become the necessary. Stuart Stevenson It is precisely this constitutional supremacy that you address in paragraph 2 of your very helpful note, Professor, that I wanted to just pick up on. There are, of course, under the 1998 act, et al, provision for cross-border activities with co-decision making. A couple of examples that I, in my experience, have come were canals, for example, under the old arrangements that they have been superseded, where I, for myself as a minister, have to provide authority for the British waterways board to sell land in Birmingham, because the rules were that all the parties, Scottish ministers and UK ministers, had to agree. In other words, I decided veto. The other one, which again happened, is in the membership of the UK Climate Change Committee, where it requires unanimity for all appointments from all four jurisdictions as equals in the decision making process. Indeed, there was an example, and I do not want to go into the detail, because it affects individuals, where there was a disagreement, and the process worked well to resolve that disagreement, and we got someone appointed to whom we could all agree on. I wonder to what extent there will be other examples of which I am not aware, where the UK Parliament has surrendered that supremacy. My question is, is it your view that, in legal constitutional terms, that surrender of his supremacy is a provisional one that can be undone, and therein lies the danger when you have the current ministerial, cross-ministerial workings, which I think I have heard no defence from any quarter suggesting have been working well? You have put your finger on what is a key issue that it is, ultimately, the power rests with the UK Parliament, and it can create these structures for joint working, decide the limits of them, it can also redefine them in future, either expanding them when things are going well or restricting them. Before I go to Mark Ruskell, where does the continuity bill sit in all of this, because a continuity bill is designed to effectively prevent the situation that we have just described? Yes, but to the extent that it was trying to limit the power that Westminster had, it was deemed to be struck down. Those are the bits that the Supreme Court said. It cannot work, because, ultimately, Parliament could repeal the Scotland Act, or completely redefine it. The ultimate constitutional fall back at present is that. Mark Ruskell. I am just moving to a different topic. You mentioned in your paper about the transparency of decision making in Europe and some of the frameworks that we have already, so the co-decision making between the European Commission and the European Parliament and the involvement of stakeholders within that process and the potential lack of transparency with the joint ministerial committee. I was wondering if you could point to an example from the European context of where that transparency has resulted in substantially better laws. I find it hard to think of an example offhand. I think that the whole nature of decision making in Europe has both strengths and weaknesses. The fact that it is often a very long, slow process is clearly a problem in terms of responding to changing situations, changing circumstances and so on, but one of the advantages of that time is that people know what is happening. There are chances, opportunities to use the various mechanisms nationally and EU level to lobby to get ideas for people to change their views. The danger is that the way the joint ministerial committee has been working so far, it has not been particularly transparent, people have not known what it has been discussing, what it agrees, what decisions are going to be taken and if we move from a situation where frameworks were decided in this slow but more open process, we may have more efficient government but at the cost of accountability and transparency. Are there particular areas of EU policy where you feel that the involvement of stakeholders has made a substantial change to the outcome of that policy? Depending on who you are speaking to, some people would say that the policy has been shaped unduly by industrial stakeholders for their interests. Other people would say that, for example, that the nature organisations have had a significant say in the shaping of legislation that some people say obstructs business, so I think that you could get different views from different people. But ultimately it is a political decision about which stakeholders to... I think that the important point is that there should be an opportunity for everybody to have some input into the process. Thank you, convener, and good morning to you. I too found the paper very helpful on what I found very complex issues. I found the section on air quality very interesting in relation to what you say Professor Reid about the minimum standards. If I understand it correctly, administrations could choose to do more. Stop me if I am not making sense, please, but as I understand it in relation to the EU, there is at present that arrangement. I found it particularly interesting what you highlighted. If I could just quote it and if you could perhaps say a little more about it, the mutual recognition of a document certifying that omission standards are being met rather than each jurisdiction requiring its own distinct certification. If I understand it correctly, you then go on to say to paraphrase the only difference is in the outcome from a similar process rather than a wholly different process would therefore be necessary. I found that interesting and something I hadn't thought of before, so I wonder if you could say anything more about that and how that came about. Yes, I mean this is based just on sort of starting the black street rather than reflecting. Yes, absolutely, no, I should have prefaced it with that, yes. But my, the example I was thinking about, if you go to the scandal over the car emissions, the diesel testing and so on, that you may for good reasons different countries may want to set different standards, how many parts per million can be emitted, but from the point of view of the industry, everybody understanding it, access to the testing equipment and so on. If there is the same testing protocol with the same equipment being used, the same way of measuring things, that actually creates a degree of coherence that everybody can work with, even though different countries could then decide to set the threshold at a different level. I think that that is possibly for all concerned much less disruptive. You can have quite big differences in the standard you set, but if your process for getting there, the monitoring, the equipment and so on, is the same, that is possible less disruptive than much smaller substantive differences, but actually requiring you to go through different procedures, have different documents, have different processes, equipment testing on the way through. It is a question of trying to work out, well, where can we, even though we may have different ambitions, we may want to achieve different things, where can we and the processes reach agreement to make life easy for everybody so that you have comparable data across time, comparable data across geography, officials, administrations can understand what is going on, those dealing, those producers and traders know the score, know the system, they know they may have to do different things in different countries, but the system is the same. Thank you, that's helpful. Could I take you beyond that and ask you if you have any observations about the possible new arrangements for enforcement and then taking you even further on to arrangements for a possible prosecution and the independence of any watchdog? I wonder if you've got any comments on any of those issues. I think that the whole issue of the watchdogs, and we know a separate consultation on that and absolutely independence, expertise, adequate resources are fundamental to that working. When we think about air quality, it's a classic example of an environmental problem that's got to be looked at at lots of different layers and lots of different dimensions because you need to have the overall strategy, you now need to have more particular local measures and they can affect the design and construction of emitting equipment, they can affect their use in particular places at particular times. What's important for those I think is that you have clear and definite rules and having national differences where there's no need for them I think complicates matters where there is a sort of general scientific technical consensus on certain matters about testing and so on. That allows you then to concentrate on what each nation actually wants, where you're setting the standards and to focus on that. In view of, I appreciate what you're saying about separate consultation on courts and those issues, but is it possible for you to help us with our thinking at all by making any comment? I don't want to put you on the spot. I'm going back to the office to start writing my possibly quite lengthy response to the consultation. The criteria of expertise, independence, resources are the crucial one. There can be merits in linking the enforcement and monitoring to existing frameworks. In Scotland, there are also merits of having completely separate bodies which is a line that's being followed. In England, Wales has got the interest because it's starting in a very different position. It's got a quite different foundation that it may or may not choose to build on. I'm speaking at a conference on Thursday in that the UK Environmental Law Association is holding and one of the key issues there is going to be to discuss which of these options do people think is the best. Mark Russel's short question. On the back of that, the air quality issue has obviously been foremost in the public's minds and the role of European Court of Justice has been important in terms of driving government action. How would you see the proposed office of environmental protection that was proposed by Westminster as providing a similar role? Do you think that that could be effective in terms of really challenging where government plans are seen as failing to meet the air quality targets that are required of it or not? The great advantage of the current position is that the European Commission sits outside the national frameworks but has some real levers, some real power in terms of calling Government to account. When you get rid of that level outside the one country, clearly you're weakening the potential. It becomes a question of how effective, vigorous and respected any watchdog becomes. Is it going to be tied into parliamentary procedures, which are then going to be truly effective in calling Government to account? Is it going to have the regard from the public, from other stakeholders, so that its views are taken seriously? Or is Government simply going to be able to brush it aside? That's largely a culture issue going forward. It's very hard to say now in designing something whether it's going to be a success or not because you have lots of examples over the years of different bodies being set up and some are respected, their views are followed, others aren't, over time, attitudes changed. The Royal Commission on Environmental Pollution, for example, was at one stage a very highly respected, strong body but then, after a time, it was simply abolished. Fogol Jones strikes me that 29 March has been and gone and we're talking about a concept rather than actual plans. There's a huge, big question mark for people who have to operate in the spheres of manufacturers of particular plastics, for example, knowing how far do you get a sense that things are coming together? On the wider issue of governance and enforcement and so on, I think that there was some surprise that the current consultation is still so open-ended given how close we are to Brexit today or possibly even past and the absence of anything to do with interim arrangements to do with that. In terms of the common frameworks, there's been this vast slew of legislation going through which I don't know if anybody's been able to follow and see what's happening. I think that there is an assumption that, certainly for the time being, the status quo will follow. Nobody's rushing to change things immediately, partly because of the uncertainty of the withdrawal agreement whether we're going to be tied into the status quo for a certain period. I know that civil servants at UK, Scottish and other levels have been working incredibly hard trying to get through a power of work to do this, but they themselves will admit that there are going to be gaps and things that they've got wrong. It is an unprecedented situation to try to change things and to try to do it in the face of such political uncertainty, as in not knowing when the date is going to be and what the position immediately after that is going to be. I find it absolutely astonishing that I got to the stage where my slides were accompanied by my lectures where I didn't just have a particular date on them but were saying, as of lunchtime, on such and such a date that this is the position. Was that an early lunch or a late lunch? Can I just take you back to common frameworks on how they might be established? Your paper offers so many variables, if you like, in terms of the solutions. One of the points that you make is that the European Union Withdrawal Act 2018 is essentially the real starting point. Can you tell us where, in your view, which of the many options you propose as possible options, how we should proceed from here? It's like a SWAT analysis. You're long in an analysis and you're long on options, but if you could give us some indication on what you would actually say, we as a Parliament should be pursuing, that may be a different thing from what the Government should be pursuing, but I expect you on both ideas if you would like to. I think that the ideal is to have truly agreed common frameworks, joint working, between the Governments where things do not move forward without the agreement of all four administrations. That, in turn, then leaves the question about how does the Parliament keep an eye on what the Governments are doing. That requires either the Parliament somehow to come together to provide some scrutiny of what's happening at the joint UK level or each Parliament to have its own mechanisms for making sure that before the Government agrees to something, there's been some input and afterwards it can call it to account. I think that heading for properly agreed common frameworks is the answer. It may be that, in practical terms, dividing up responsibility for particular areas between the different administrations might make sense. Some fishing matters might be led by Scotland, other matters led by other administrations, but what comes together the way forward should be agreed by all the administrations. I suppose that that is the real sticking point, because if three out of the four administrations can agree but the four are not, then how should that matter ultimately be resolved? That's where the talking about a new structure requires something about dispute resolution, where there is a process for negotiation, arbitration or whatever. Ultimately, there is a difficult political question, which is complicated in the UK context by the very disparate sizes of the different nations in many areas where you've got a number of units coming together. You don't have such a great disparity in size because at present England, in terms of population economy and so on, is just so much bigger than all the others, that the de facto power may sit there. It's very hard to say the political arguments, the balance. It's not going to be a contest between equals. Quite, and quite apart from the political arguments, there's also the functions of geography and latitude and different environments in which each of the four countries operate in. Once again, you come back to this huge number of variables, and that's also added into the mix of the difficulty in deciding the best way to proceed and not unreasonably. I'm afraid it just is a complex issue. That's why in the longer term, getting a proper settlement of how the different administrations are going to work, some sort of framework seems the best way forward. Revising, revitalising the joint ministerial committee council and getting that to work with greater transparency, with clearer means of dispute resolution, which have the trust of the different administrations rather than the cabinet office playing such a key role. Would you be optimistic that if the difficulties of getting Brexit organised that have been manifest at Westminster were ultimately, or to be resolved in the short to medium term, that there would be sufficient goodwill all round to make the joint ministerial committee work better and more efficiently given the energy that is being expended elsewhere currently? There is potential, but I wouldn't be too optimistic, I think, because of some of the conflicts that have been and because everybody's just been so busy. There's still this rush to get things done and to resettle things. There will be, for the next two, three, five, seven years, the rush to get the relationship with the EU and with all the trade partners up and running. There's going to be still so much going on and there's been so much backlog of other work that's been had to be abandoned while Brexit's dominated everything, that the appetite for reflecting on a difficult issue such as the arrangements in the UK Government, the appetite for that, I fear, isn't going to be there. Can I just ask—you're talking about the JMC being revitalised and all countries of the UK having equal status in terms of decisions that have been made around common frameworks. Would you also apply that to decisions that have been made around trade agreements? I would have thought that one of the areas of real contention is the fact that the international affairs, including trade agreements, are currently completely in the hands of the UK Government in the same way as it was only the UK that, technically, the EU dealt with for international trade, it's the same. All the arguments that there were about the role of the devolved administrations in the UK's negotiation position in the EU are going to recur and, in fact, become ever more serious because the EU decision-making process, whereas there were opportunities for the devolved administrations to feed in one way or another directly through the UK and elsewhere, when it comes to international agreements, there's less obvious how the Scottish, Welsh, Northern Ireland voice is going to be hard when the UK is discussing with China, the USA and so on. A lot of the standards that we applied might be dependent on what kind of trade agreements are made with countries across the world. Trade agreements can't cut across the power of the individual administrations to do things, and the agricultural bill that's going through Westminster just now is very explicit about giving the UK ministers the power to make regulations to deal with world trade organisations issues, which cuts across devolved responsibilities. John, do you want to ask any more questions? No. Stuart. We've been talking about joint ministerial committee. Now, in asking what I'm about to ask, I have a simpler solution, of course, which I've been campaigning for all my life. But why don't we have joint parliamentary committees if there are joint ministerial committees? I think that all the administrations would feel matters of this kind of joint working should not simply be a matter for governments. I think that that's an excellent idea that has been mentioned various times, that if you're going to have joint workings between administrations, why not have joint commissions or whatever between the various parliaments to exercise scrutiny of them? I mean, it's worth saying that I'm aware at least of one instance, and I'm pretty sure it's not the only one, of joint meetings between parliaments. One of the committees that I was on once had a joint meeting with an Australian Parliament committee. It was interesting that the two official reports co-ordinated so that it produced nearly the same result in the two parliaments. However, the other thing broadly, which touches on the same subject where you've talked about watchdogs, one of the things that seem to stand above Parliament is the courts. The courts can hold the Parliament and the Government to account. Should therefore we not simply be talking about watchdogs but the courts system that will have the ability to hold governments to account as well, whether at UK or Scottish, Welsh or whatever level, because we're not hearing very much about that. The courts certainly have a major role to play in terms of the common frameworks. Obviously, their job is to enforce, make sure that the law is being applied, so that means that they can only do as far as the law says. The tradition, the convention in the UK Scotland has been that the law tends to be empowering rather than setting out particular outcomes, certain things to be achieved. It would be something of a change to have the courts involved in more nitty gritty detailed issues. This is particularly an issue in the environmental area. Something that's going to be significant as the EU law becomes domestic law. The EU law much more requires particular outcomes to be achieved. You have to achieve a certain level of water quality. You have to protect your European nature sites unless there are certain very narrow derogations. It's not altogether clear how those fit into our judicial system. If you take, for example, bailing water, the bailing water is meant to meet certain standards. If it doesn't, who has the power to go to court to ask for that? When do you do it if you're talking about standards on something like recycling standards and so on? Do you wait until the due date and you have failed to meet it or can you take action before it when it looks as if you're on the way to meeting it? Then if you take things like the bailing water standards, the failure to meet the bailing water standard will be the result of a combination of several factors. What remedy can the court actually produce? It can tell the Government that you've got it wrong. You've not been doing it right. But should they actually be saying how, what further steps have to be taken, how do you do the follow-up if you're looking at other areas where air pollution, for example, there are so many different factors feeding into that. Do you simply legislate for the final quality or do you try to legislate in more detail below that so that you can then have more enforcement, but that then deprives you of your flexibility? It means that everything's getting very thick stuff, rigid and so on, and can then become very legalistic. So I'm sorry that I can't come with easy answers, but there aren't any. There is a concern that a lot of the statutory instruments that we've been working through that effectively set up the rules for a no-deal Brexit could become the permanent basis for retained law beyond the transition period going forward. What's your view on that threat or opportunity, I guess, for some people may see it as an opportunity? It's almost inevitable that what's been done in a hurry to keep things going is going to continue for a long time. There's just so much going on that nobody's going to be able to revisit it. A lot of the statutory instruments that they do inevitably is to get rid of the additional EU layer, the oversight layer, the need to check things and need to report things, and that is one of the big losses with coming out to the EU that there isn't this reporting monitoring outside the UK authorities, which is going to be done, which is why the idea of some sort of internal governance watchdog to fulfil that rule separate from government, I think, is important. In terms of the next few years, as I said, I think that the sorting out of the arrangements for our relations with the EU and beyond is going to be the dominant factor that people aren't going to be able to think, do we want to do this differently better because they won't know how much freedom of action they're going to have if we're going to remain in alignment with the EU, then that's what has to happen. If we are going to be influenced by potential trade agreements, then what's necessary for those will dominate it. I think that the chance for genuine original creative reflection on where are we, what do we think is the best for us and our needs, whether that is just as Scotland or the UK, I think are going to be limited for the next while, if only because everybody's exhausted. I want to ask you about your response that the Scottish Government have made a commitment not to create divergent policy as a result of these frameworks. How do you think that that might restrict parliaments potentially? That seems to be a statement that's almost tying them to something. It's a trade-off that you either have freedom to do your own thing or you get the benefits of working with other people and within the EU structure, in some areas they were required absolute uniformity on rules, others they set broader objectives that each nation, each jurisdiction could reach its own way towards doing that. So what do you mean by the alignment with what? Is it the detailed alignment with all the particular rules or is it just with the broad standard, the broad objective? I guess that's a question for our cabinet secretary, it's when they come in afterwards. John Scott. What are the attendant risks of that obligation? Were the aspirations of Scotland and the Scottish Government that commitment? What might be the cost? There may be things where Scotland would want to go further on particular issues where it gets held back by other members. It's a UK example rather than a Scottish one but it was often said that in the EU animal welfare was something where the UK would have wanted to go further but was being held back by the other members at the time when some other areas, if you go back 20 years on things like water quality, Britain was being pushed into higher, more rigid standards compared to the rest of Europe and it's had a trade-off on all those things. So it would be a question of identifying what areas does Scotland in the UK want to do something different, want to have higher, better, more demanding standards and are we being held back by the desire to keep in step with others? The Scottish Government has also made a commitment to keep its standards in line with EU standards development going forward. Has that commitment also been made by the UK Government? Not in as many words. It has a commitment to looking after the environment but the 25-year plan that was produced isn't phrased in terms of keeping in line with the EU. Of course, that's also assuming that keeping in line with the EU is actually the best thing for the environment. Before the EU referendum was held, I was at a conference where there was a fascinating discussion that you could put forward a completely different argument for leaving the EU, which is that the EU hasn't done enough to protect the environment that it's the global capitalist, etc. Industrial is dominated. It's the bad thing and that being in the EU was actually stopping countries going off on completely radical, new, sustainable opportunities. Whereas the way the debate happened before the referendum here, it looked as if deregulation from London was going to be the dominant theme and that staying in the EU was the way of providing some protection for the environment. It's been fascinating the way that debate, those perceptions have changed. That's a question about how the UK Government who knows what the view is going to be of the next minister, the next Government, five, ten, twenty years from now. I'm sorry to come back to that question again but environmental terms are in a broader sense. What do you see as the attendant risks to Scottish aspirations? If any of that commitment made not to radically diverge from the UK position? I think that the risk is that you lose the flexibility to do things dramatic. If we were Scotland, the zero waste economy idea was to be taken really seriously, that might mean imposing restrictions, imposing limits on the use of the sale of certain goods, products and so on, which might not be possible if you are trying to keep in line with a wider framework. We are about to receive Scottish Government and ourselves to receive the advice from the committee on climate change. We are eagerly anticipating what they are about to say in terms of targets and potential pathways to achieving reductions in emissions. The Scottish Government has said that it will take their advice and implement that. The UK Government hasn't so far. My question is how would meeting our ambitions around, for example, climate change be affected if we cannot have divergent positions on how to achieve that? We are not going to meet our targets if we cannot diverge if there is not a commitment across the whole of the UK. The energy of climate change is an issue that does not only move the air but even matters like the energy industry, because some of that is reserved. You do not have the potential. If you believe that our emissions trading system is going to be an effective role, the bigger the pool you are trading in, the easier it is, you have to trade off the costs. If we are going to—there are several very radical things you could do that would make impacts on our greenhouse gas emissions, but they would be very disruptive for trade and for the economy. Do we want to do that? Quite a bit. It is a full-art point on this part of the discussion. You highlighted in your paper the deposit return scheme that we are working to adopt in Scotland. I think that I am right in saying that you described that there was scope for commonality. Is that different to what each administration says, Scotland and England, having exactly the same? Is there scope also for having different schemes? I think that there are scope for differences. It is a question of trying to think where are the differences that matter and where can we do things the same with accounts. If every nation developed a completely separate system that dealt with different sets of products in a different way with different labels and so on, that is very disruptive for industry, for people going. It is very unlikely that, with people moving around the country, people are going to get confused and jealous. You are going to have poor compliance with it. It may be that if you have certain things the same, even though the schemes may be a bit different in terms of what the scale of the reward is, exactly what products can be put into it, but if they are using the same classification system, the same labelling system and so on, it is a lot easier for people to know what is going on, even though there are differences at the end. One of the lessons of the EU was that a lot of the regulation on environmental matters was driven not by environmentalists but by industries who wanted to have the level playing field common standards to know what they had to do in all the different countries, rather than having to cope with each country completely separately. I think that there are advantages to be had in trying to have the processes and the systems similar, even though you may want to have different ambitions for the end result. Mark Ruskell, do you want to ask another question? It is kind of related but slightly different. It is about the environmental principles and about how they are being applied in different jurisdictions or at least planned to be applied in different jurisdictions across the UK and whether that could lead to some divergence. I am aware that there are different terms about whether laws should be based on environmental principles or whether they should just have due regard. Could that lead to divergence or not? I think that it could lead to some divergence. It depends how different the phrasing is in the different countries and how different the lists of principles are. I think that one thing that would help if all the countries agreed to or had adopted a duty to have regard or at least to work towards a high level of environmental protection if there was an objective in each country that set a high level of environmental protection as a goal to be worked towards. I think that that helps to bring together any lesser differences between the duties. However, it would be quite possible that, if some countries had to have regard to a particular, say, the polluter pays principle and another country, the duty was to act in accordance with the polluter pays principle. You could see that a common framework on producer responsibility for waste and so on being legally challenged in one country on the basis that it does not achieve enough to achieve polluter pays, whereas in other countries, if the duty was just to have regard, while the fact that the Government had thought about it as part of their planning, part of the policy making, would be enough to satisfy the legal requirement in another jurisdiction, they could be getting into trouble if they could not show that they had not just thought about it but had done something that was working towards implementing it. We are rapidly running out of time, but I want to give you an opportunity, I guess, to, if there is anything that you think that we should also be considering as we question our cabinet secretaries, but we also question the UK cabinet secretaries who have, you know, the ones that are going to be involved in the creation of these common frameworks. I think that it is the issue of how the frameworks are created and implemented, that the latest document, the April 2019 document of frameworks, talks an awful lot about informal agreements, memoraband of understanding and so on, which, in some ways, are fine because they are flexible, easy to work at, but it does raise issues about transparency and accountability, that you need to make sure that the mechanisms that are being used do enable people to find out what is going on, to have input into them and, for Governments, to be held properly to account. Okay, thank you very much for your time this morning, that's been very helpful, thank you. We'll suspend briefly. Considering our consideration of the potential impact of an EU exit on the environment, I'm delighted to welcome our panel who has just joined us, Rosanna Cunningham, the Cabinet Secretary for Environment, Climate Change and Land Reform, and Michael Russell, the Cabinet Secretary for Government, Business and Constitutional Relations. The Cabinet Secretary for Environment, Climate Change and Land Reform is accompanied this morning by Catriona Carmichael, the Deputy Director of Environment and Land Use Strategy. Don McGillveray, Deputy Director of Environmental Quality and Circular Economy, and Joe Glass, the head of the UK Frameworks Unit of the Scottish Government. Good morning to you all. We've just had a very interesting discussion with Professor Colin Reid, largely focusing on common frameworks and I guess devolution in the effectiveness of the devolved Governments and being able to subset their own policy in the light of proposed common frameworks. I'd like to ask both the cabinet secretaries if you've a view on whether the devolution settlement is secure in the light of common frameworks and the potential for taking power away from the devolved Governments. Michael Russell, if you want to go first. Well, convener, that was and is at the heart of the negotiations that we've been engaged in through the joint ministerial committee process. The Scottish Government's view has been very clear that we are not going to be part of a process that undermines the devolution settlement or takes powers away from the devolved Administrations. Equally, we have argued that the Brexit process essentially is too heavy for the devolution settlement to bear. While it's very clear what I want and the Scottish Government wants in terms of independence, on that journey we are more than willing to work with those who want to make some changes for the benefit of the people of all these islands because the current constitutional settlement no longer works. We can see a dramatic example of that in the legislative consent process, but there are many other illustrations. I gave a lecture to the Institute for Government about a month ago, which lays out in some more detail how we think things should change. Broadly, the relationship should be put on the statutory footing. There should be a legislative underpinning in the way in which we relate one to another. The example for that lies in the EU 27. If you have seen their solidarity, their work and their trust for each other, trust in the EU is because it is underpinned by the ability to enforce regulations. It is a law-based, rules-based structure. Indeed, the Tishach said that very memorably at a British Irish Council I was at that trust is not simply about saying, you know, we like you, we think you're good and we want to get on with you, trust is about saying we're going to work together and here is a framework that can enforce that. Now, there's no such thing in devolution, regrettably, and there needs to be. The difficulty with that is that devolution is built on a construct of parliaments dancing round. Our Parliament, the Welsh Parliament and the Royal National Assembly dancing round as concept of the sovereignty of the Westminster Parliament. Now, moded concept, one might argue, almost a medieval concept, but it's important to recognise in devolution that that is the problem. If you have a sovereign Parliament which can overrule the other parliaments, then it is very difficult, in fact impossible, to work on the basis of equality, which is what we should be doing. It's also important to recognise, however, that there is no hierarchy of governments in devolution. There is only a hierarchy of parliaments, so governments have particular powers given to them which they can operate and those parliaments can operate them. It is only, the UK Government can only overrule the Scottish Government by going to the UK Parliament and using the UK Parliament so to do. I'm happy to go into, perhaps after the cabinet secretary has contributed, I'm happy to go into how this relates to frameworks and how it relates to the agreement on the frameworks, which I know has been an issue of concern to you, because it is in that context that we work and we've worked on the assumption that we will not accept the undermining of the devolution settlement, but we will accept that working together provided that is voluntary. I guess that, asking Roseanna Cunningham from our portfolio perspective, if there is a divergence in policy around your portfolio, how the common frameworks might work? Well, at the moment, we need to remember that there are no frameworks in place, so those are simply proposed frameworks. There are four legislative frameworks being proposed for this portfolio interest. That's chemicals, waste—and it's about producing responsibility and waste management—also on depleting substances and fluorinated greenhouse gases, and the EU emissions trading system. There are five proposed non-legislative frameworks in the ECCLR portfolio, which the committee may—I presume that you are aware of those as well. All of those discussions are still discussions that are being had at an official level of officials. They are not as yet coming to ministers for sign-off, although we continue to raise the issues around them at the DEFRA devolved administration meetings. As it happens, I was at the DEFRA DA meeting yesterday in Cardiff, when some of the issues around the proposed common frameworks were being discussed, not at the level of the individual proposed frameworks, but still at the level of how we manage the process. Mike has referred to our part and parcel of why we are not going to be giving any carte blanche to anything that looks like it will erode the policy responsibility that we have in Scotland. Indeed, Wales is pretty much in the same place as we are on these, but it is a tricky issue. I personally would find it helpful if, frankly, some of the voices out in the wider network of people involved in all of this would stand up for the devolved settlement and our devolved policy responsibility, perhaps do so publicly and certainly do so in a stronger way, because there is a danger, as Mike has alluded to, that the presumption of the parliamentary sovereignty at Westminster will simply start to overwrite anything that we do. Of course, the environment is an area in which policy is virtually all-devolved, and it is an issue that we have to keep reminding them of at these devolved administration meetings. That leads on to talking about stakeholders and their participation in the process and what leverage they can leverage influence. I know that the concern about that lies partly in the wording of the quarterly reports that the UK Government issues on frameworks. In particular, the paragraph that says, on the basis of continuing joint progress and collaboration and joint frameworks, which ensures that the statute book is ready for exit day, UK Government has again concluded that it does not need to bring forward any section 12 regulations at this juncture. In addition, the Scottish and Welsh Governments have reconfirmed their commitment not to create divergent policy in ways that would cut across future frameworks where it has been agreed that they are necessary or where discussions continue, and that is the important thing. This is a voluntary action where we sit down and agree that a framework—and those frameworks do not exist, will not exist unless there was an exit at the end of an implementation period, and they would be entered into voluntarily. If you enter into the framework voluntarily or working on a framework, clearly you will have agreed that stage that you will try to coordinate policy. However, if you do not enter into a framework or if you say that this framework allows for divergent policy, which is perfectly possible, then in those circumstances there is no question about it. There is nothing in that that limits the power of any of the contributing bodies. In fact, having divergent policy in frameworks may become a very real issue if you look at the situation in Northern Ireland. If Northern Ireland is in full regulatory alignment with the rest of Ireland, if that is full regulatory alignment with the EU, then you might have a situation with Northern Ireland in a framework where it is doing something that the rest of the framework is not. It is immensely complicated and, forgive me for saying this, part of the extraordinary idiocy of Brexit. However, in no sense have we agreed nor would we agree to have things imposed on us and we have made it explicit that, if section 12 is used to try and impose things on us, we withdraw from that discussion at that moment. Part of the discussion yesterday in Cardiff was precisely around, and we have to continue to have this discussion, that even a common framework does not mean that every partner in that framework is going to be doing exactly the same thing. It means that there is a discussion and an agreement about how things might be worked through, but it does not require everybody to be doing the same thing. That is a continuing conversation that needs to be continually brought to the forefront of the discussion, because there is a kind of sliding into what you might regard as a kind of normal Westminster think space. It strikes me that, if any of the devolved Governments have a disagreement with what the UK decided to do, that that is not really going to be taken into account. I mean, you mentioned, I suppose, one of the things that the EU is good at, as all member states have to agree on things, and there is a mechanism there, but there is no mechanism in the GMC for that. No report into the GMC structure from the very beginning of devolution, and we have had this, of course, since the beginning of devolution, has come to any other conclusion, but the fact that it does not work and does not fit for purpose, including House of Commons reports, House of Lords reports, academic studies, the GMC structure does not work. We have been trying to make it work again with the new GMCEN, but it has not worked. None of those structures will work until there is, and even if there is an equity, I think that there is a better way of doing it, but there has to be an equitable relationship between the members, and you cannot have that if you have a sovereign Parliament. By definition, you cannot have that. You also cannot have it if the UK Government believes that it can overrule and that there is, in some way, it is at the top of a hierarchy of Governments. You have also got a situation, and I think that Westminster MPs have heard this discussed by Westminster committees. You have also got a situation in which, regrettably, the knowledge of devolution is very poor in the UK Government and in the civil service. It is not a direct criticism. It has always been the case since devolution that has not really been thought about. David Cameron talked about devolving and forgetting, and that is what has happened. Trying to bring home to UK ministers the reality of devolution is also quite a hard job. That is why I look so old. I cannot possibly comment. Mark Ruskell. Roseanna, how do you talk about the need to get more support, presumably from stakeholders, to protect Scotland's powers and responsibilities under the devolution settlement? I wonder whether that is easier to do if you have a clear vision for how you are going to use those powers, i.e. through an environment strategy or an agriculture strategy. Obviously, there is a continuing conversation around the environment strategy, which we have been working on. I was not really thinking about it in those terms. I was thinking about one of the difficulties being that I do not lay this at the door of the Scottish-based ENGOs particularly. The difficulty is that, if you like, that metropolitan mindset permeates even the London-based ENGOs, which I suspect are not particularly conscious of or understanding of the extent of devolution. When the convener talks about the difficulties in some parts of the civil service, who have not really absorbed those things, it is not just the civil service that is in that space. Therefore, I think that there is some work to be done to ensure that understanding of what in an office in London might look like a simplistic solution to an issue, but it is a solution that has been arrived at by forgetting that this is an area of policy that is almost wholly devolved. Do you have an example? Do you have an example? Are you thinking of deposit return or other? No, I was not actually thinking about deposit return. I do not want to be drawn on individual things. One of the debates that we are having—I am sure that the committee will come on to it—is the issue about the kind of governance that might be brought into play once we are put into a post-Brexit scenario. The automatic presumption at some levels is that that governance should just be a UK governance, but not thinking through the implications for situations where there are very different policy decisions being made in different parts of the UK, in a sense just rushing to. In a context where some of the issues that Mike is talking about are important, because normally, when we think about that, it will not be seen as, for example, a four nation group where each has equal standing. It will be regarded as one where one Government has that hierarchical issue that locks in. Those are issues that concern us and have to concern us, because it can impact on the policy-making ability of this Parliament, but not just the policy-making ability of this Parliament, but the accountability of this Parliament. What you do not want is me and other ministers sitting here and saying, well, you know what, actually, there is not much point in asking us about this, because that was a decision taken elsewhere. There are issues of accountability as well. That is one of the things that is being lost in some of the discussions that are being had. It is not just civil servants who are not understanding that underneath the surface. There are wider groups out there as well. We have had conversations to try and remind folk, but it is easy to forget if you are just thinking in a very straightforward metropolitan mindset. I will give Mr Russell a very direct example of a difficulty that exists. It is not in a sector, but it is illustrative, because it is current today. The visa requirement for students has been set by the UK at three years. Scotland has four-year degrees. I raised that with David Lidington very early on in the once—an announcement that was made without consulting us, but I raised it immediately with David Lidington. I think that the First Minister raised it at JMC Plenary. We were absolutely sure that that would be taken account of. What did we hear yesterday that students will have to apply for a different type of visa for their last year? Can you imagine being a student trying to go through the process of higher education and also focused on whether or not you would get a visa for your fourth year, because it is not the simplest thing in the world? That is an example of how something could be dealt with very quickly and sensibly, but it has not been dealt with quickly and sensibly. It has bogged down in the Westminster system of saying, if Scotland is an exception, it will just have to live with it. We had papers released during the process of preparation for the Government White paper on Brexit, which had forgotten that Scotland had a separate legal system. It has only been enshrined in law since 1707 by the act of union, but it has forgotten. That is not an individual criticism. It is a system's failure, and it is a system's failure that a lot of work has gone into trying to rectify. You do eventually get to Occam's razor. The simplest solution is the best, and that is to have a relation of equity based on two sovereign states. Breath, as I asked, is before I hand over to my colleague John Scott, because I think that I know what the answer might be. What is the relationship between the Scottish Government and the UK Government when it comes to looking at future trade deals? Obviously, some of those trade deals have already been done, and they have implications for this portfolio. If the UK Government's negotiation position takes precedent, what will be the potential implications for common frameworks? It is not just common frameworks. We published a paper last August on a modern trade relationship and the way in which trade deals should be negotiated in future. Taking into account that the UK is very old-fashioned, of course, it has not negotiated a trade deal itself for a very long time because it has been part of the EU. The world has changed. Environmental considerations, for example, are at the heart of many trading relationships and should be. Should human rights considerations be at the heart of it? We suggested a way of moving forward that would involve the devolved administrations, particularly in areas that involve competence, but not solely in areas that involve competence, because there are other issues that attach. Regrettably, the UK seems to have taken to heart the wrong lesson from the CETA treaty. There are two lessons that you can draw from the CETA treaty, one of which is that, if you involve everybody who is likely to be affected, as if Canadian provinces were all involved in a negotiation, you can get to a treaty that can be implemented. Some of those issues will deal with devolved competencies. They have to be negotiated by those who are responsible for those. Again, there is no hierarchy of government. The lesson that the UK Government has taken from it is that it must cut out the devolved administrations, because they have taken the Belgian situation and the refusal of one of the parliaments to ratify as quickly as they wanted to have it ratified. We believe that there has to be an entirely different arrangement for trade. The trade bill has changed as it has gone through parliament. It is not finished yet, but some key things have not changed. For example, on the Trade Remedies Authority, there is to be no representation from Scotland or Wales. Many of the positions that we are talking about today have been taken in common with the Welsh Government. I am in a position that there should be a Welsh and Scottish representation, or at least knowledge of Welsh and Scottish circumstances, not going to happen. It is going to be entirely by merit. Clearly, there is not enough merit in Scotland and Wales to allow a place on the committee. We have to change trade deals largely because, in agriculture particularly, there will be a very strong push to diminish standards, animal welfare standards, environmental standards and other standards, and we should not allow that to happen. At JMC level, has there been any discussion about the trade deals that, for example, have already been showcased by Liam Fox? Liam Fox keeps telling us how wonderfully well he has done in all his trade deals, but all that has happened so far is that a few of the existing deals with the EU have been rolled over to apply to the UK when it leaves. Not very many at all, and some, of course, have been put off because the UK has not left. Some have also been impossible to come to because the party dealing with it has said, I want to change this, I want a bit of advantage here and a bit of advantage there. There is a real fear that, when the UK comes to this, it will neither be equipped nor experienced enough to undertake this. It will also seek to negotiate on behalf of, well, ignoring the devolved Administrations and responsibilities and it will inevitably lower standards because it is desperate to have these deals. This is highly undesirable. Of course, in addition, no matter how many of these deals are, they cannot make up for the deals that we already have. That is a tragic situation. We are going into a set of relationships that will make us poorer and have worse trading relationships. I do not know why anybody should volunteer for that. One of the problems is that they are sticking to an orthodoxy that says that international trade agreements are absolutely a reserved matter, not a devolved matter, notwithstanding the impact that there is likely to be on devolved policy areas. That part of the equation is being left out of the conversation because there is a sticking to the orthodoxy of international trade agreements being a matter for Westminster and a reserved government. A trade agreement that might have profound implications for the devolution settlement for policies in the devolved Administrations is effectively being treated as if it does not involve the devolved Administrations. It is an extraordinary position and is a point of real challenge for all the devolved Administrations. At the moment, it is Wales and Scotland, but I would hazard a guess that, should the Administration of Northern Ireland be re-established, that in a number of areas, they will be in exactly the same position. They cannot not be in the same position because there will be issues and challenges directly for them. That is going to be one of the real challenges as we move forward. At the moment, I guess that there is not really an answer. We should note, of course, that, although international relations are reserved, the implementation of international agreements is not reserved. There is a role for the devolved Administrations in those matters that was confirmed by the Supreme Court. I welcome the commitment by the Scottish and Welsh Governments not to pursue policy divergence where we agree framework on necessary or while discussions are on-going. That is a very good starting point. Perhaps that model, given what you were talking about a moment ago in terms of trade negotiations, might be built on voluntary, if not agreement, trade deals, but at least an understanding of what the UK Government is endeavouring to do. However, the specific question that I want to ask is, what will the impact be on the Scottish Government's legislative agenda of that voluntary arrangement going forward from here, given how unclear the whole situation is? I am not sure that I understand that. In terms of your programmes for government in the future, only if there was a commitment to legislation in any of the frameworks, would there be a legislative impact on the legislative programme? In terms of the policy position, if there were changes in policy, the responsible ministers from the Government would be accountable to the committees and to the Parliament for discussing that policy and moving it forward. There might be a secondary legislation, but I think that it is unlikely. The question is scrutiny. How would we scrutinise framework arrangements that we have entered into that were non-legislative? I think that the way to do that would be through the committee structures of the Parliament and through a protocol that we are discussing and considering with the Parliament, just as we had a protocol for secondary legislation, which was required by Brexit, and I am grateful to the committees who were very cooperative in that. Just as we had a protocol for that, I think that it is a protocol for scrutinising the frameworks. Should they exist in the end, we are talking about a situation that is hypothetical at the present moment. We are moving towards having those frameworks, but they would not exist until after an implementation period and they would exist for a limited period of time, as the legislation says. However, I do not think that, where there is legislation that rises out of frameworks, those have turned out to be the hardest things to resolve. Agriculture and fisheries are examples where trying to tie everything down in legislative terms is very difficult to do. Non-legislative frameworks that rest upon memorandum of understanding or other issues like that are easier to do. Legislative frameworks underpinned by legislation will always in the end have disputes. For example, as you of course know, given your experience, there is a dispute about whether or not state aides are covered in devolved or reserved competence. That is a problem within the agriculture bill at Westminster, because both the Welsh Government and the Scottish Government have said that state aides are not a reserved matter. The Westminster Government says that they are a reserved matter, but it will not answer letters explaining why that is. Much in the manner of somebody who does not want to open the electricity bill because they do not want to see what is in it, the UK Government will not look at the letter as we are sending them, saying, tell us, explain to us how that is reserved because it does not appear to be anywhere in schedule 5. And so perhaps we are turning to something that is easier and maybe our cabinet secretary, Roseanna Cunning would like to answer this question. Can you provide any further detail on common frameworks under the portfolio that you have in terms of chemicals, waste and producer responsibility, ozone, depleting substances and F gases? I know that you have already mentioned them and the EU emissions trading scheme. How are those being prioritised in your programme of work? Well, as I indicated earlier, those are still being conducted at the level of meetings with officials. Those common frameworks do not exist. They are frameworks that are being continually discussed. I am going to ask on, which is probably most involved in the official discussions that are taking place. The one that I will say something about is the one that impacts on the EU emissions trading scheme, because that is still being conducted. We have still got quite a lot of minister-to-minister conversations. We are having regular telephone conferences now with Claire Perry about that. That does have some problematic issues. Again, I go back to the issue of accountability and scrutiny. On the basis of a no-deal Brexit, what is going to happen is a carbon tax that will be brought in on an interim basis. We keep having to get on the record that that must be only seen as an interim response to deal with a no-deal scenario, because, obviously, the far better response is a proper emissions trading scheme, because a carbon tax is out with, I guess, even Claire Perry's purview at that point, moves into the Treasury. My abiding concern is that, once they have done it, they might not want to undo it. There is an example of a situation that is still on-going. Officials are talking, but ministers are talking at the moment about that one. I will ask Don to come in on the other three that are still under discussion between officials. The waste one is the easiest one to get out of the way. That is still very much at the scoping stage between officials. The producer responsibility schemes have operated at a UK level for some time, and we are still at the stage of deciding whether we need a legislative framework on waste and producer responsibility, or whether the current arrangements that have operated for a number of years can just roll forward as they have. The waste one is at a very early scoping stage. We are really trying to decide whether anything has changed as a result of Brexit that would mean that we need a legislative framework. The chemicals one is a bit further on. There is definitely a sense of something having changed as a result of Brexit in the chemicals world, and the relationship between the Governments having changed and there being quite possibly a need for a legislative framework to underpin the future relationship between the Governments. We have had a number of workshops, probably three or four workshops now, to start to define what the objectives of a framework would be, what the content of it would be. We have had the first meeting of a governance group that brings the officials together in a forum to try and make decisions around these things, but we have not yet reached the stage of having a draft that is ready to go to ministers for consideration. That is probably still a little bit away. Apart from anything else, it is quite hard to put together a draft to go to ministers until you know specifically the scenario that you are dealing with. That is obviously one of the constraints at the moment. The next question is about secondary legislation to some extent. What is the Scottish Government's view about the UK Government's statement that EU exit statutory instruments may provide the basis for interim or longer-term framework arrangements? What is your view on the level of parliamentary scrutiny given to the EU exit statutory instruments if they will provide the basis for interim or longer-term framework arrangements? It seems to me that it is likely, given the evidence that we have just heard from Professor Reid, that there is nothing so permanent as a temporary measure. That is a concern that I have obviously flagged up this morning about some of the temporary measures that have been the interim solutions that may just slide into very long interim solutions. We have been consenting on the basis that those are arrangements that were needed in a no-deal scenario, and that is how it is all being predicated. Obviously, the way that the scrutiny has been achieved was agreed between the Scottish Government and the Scottish Parliament, and in discussions with Westminster about how we were going to manage this entire process. It did allow for—I know that the committee has had to work quite hard—but it did allow for some detailed consideration. It may be the case that the SI solutions are ones that we might think are appropriate for going forward, but we do not predicate them on that basis. They would have to be looked at one by one almost as to whether or not that was an appropriate thing. There might be some of that whole SI programme where the solutions were pretty technical, where there was not much alternative, in which case that is just where we are going to be. I have already referred to a situation with the missions trading, where my concern is that the interim solution might indeed become a permanent solution. I am very much hoping that that is not the way that Clare Perry approaches it when it appears. Where we have been with the SI is where we had to be in preparation for no deal. We now have to look again at some of those solutions and decide whether or not they are fit for longer-term purpose or whether or not they really are only interim solutions that will need to be put away when we are into a much longer-term scenario. I do not know whether Mike Scott has a bigger issue. What was covered by the phasing of the frameworks themselves? Phase 1 was the starting process. It took quite a while to get both the fundamental principles right and to make sure that there was proof of concept for the programme. Phase 2 was detailed policy development. Phase 3, which is where they are beginning to move into now—not all of them have got there—includes stakeholder engagement. As Duncan referred to, phase 4 is when the final agreement goes to ministers for approval. At that stage, ministers will not be approving arrangements that are ad-hoc and temporary and designed only to suit one partner. If there is a temporary and ad-hoc arrangement in place as a result of SSIs that have come through a no-deal process and Rosanna Cintale wrote about that, they will not stand if there are new arrangements to be put in in phase 4, otherwise there will not be an agreement. Phase 5 is post-implementation arrangements after the end of an implementation period. Who knows when that will be? We are not going to consent to long-term arrangements in areas where the framework is coming into place unless we are satisfied that they are suitable for our purposes. Interim arrangements will be just that. It is in the judgment of the individual portfolio cabinet secretaries as part of government whether or not they consent to these and how they consent to them, but, certainly from the GMCEN perspective, we would expect to have an overview of those too and to make sure that they were acceptable to people. My final question in this area is, can the cabinet secretary provide an update on discussions with the UK Government in terms of UK legislation that impacts on devolved policy areas? Can I go first since I just came back off the Cardiff meeting yesterday, which this was an actual discussion, so I can update you? We have no timetables for the Agriculture Bill, Fisheries Bill or the Environment Bill. There are no timetables, so we simply do not know what is happening there. There are still discussions being had about certain aspects of the Fisheries Bill. Some of the devolved, reserved discussions were resolved, but we still do not have a timetable for it. There are still some devolved, reserved discussions going on with the Agriculture Bill, and there are still a considerable number of those discussions going forward in the Environment Bill, which is probably further behind the Agriculture Bill and Fisheries Bill. We are really on any further forward with any of the three of those, and they are obviously all pretty central to what we are doing. In a nutshell, those would probably delay your own legislative programme potential. No, we are not taking that view. We are taking a view that we will press ahead with the things that we consider need to be done and the timescale on which we will need to do them. Undoubtedly, some of this does have an impact. All of this does have a bit of an impact, but we are not planning on slowing anything up unless there is no alternative for us. Can I correct your record? I am mistaking John McGilvery for a constituent of mine called Duncan McGilvery, so my apologies to both of them if either of them would be offended. I do not necessarily want to go any further, but there is a legislative black hole at Westminster at the present moment. There is nothing happening. Nothing is moving forward, but our view is that, in those circumstances, we need to be as well prepared as we can be, but it is very uncertain as to what will take place next. I should also point out that there will be no legislative consent recommended by the Scottish Government to any of that legislation until the Sewell issue is resolved. We have made proposals to resolve it on several occasions, but that also disappeared into the black hole without even a photograph of it. On current information and current understanding, we would insist that there had to be an LCM for the environment bill unless there are changes made. Right, I think that we should move on. We have been discussing in Parliament for months and months, and we are again today what happens in the case of a no-deal exit. How prepared are we in the case of a no-deal exit? When it is an exit, there is not a no-deal exit. I do not think that we have overprepared for a no-deal, so we remain prepared for a deal, but the deal that is being offered by the Prime Minister is, and I have said this before, virtually as bad as a no-deal and requires a great deal of preparation for it. I mean, we do not wish this type of outcome. We proposed at the very start that there should be an in Scotland's place in Europe in December 2016. We proposed a solution in terms of remaining within the single market and the customs union. At that stage, I should remind members that it had not been ruled out by the Prime Minister. She then ruled it out the following January, I think, in the mansion house speech. Since then, we have continued to argue for that as a rational outcome, but we are now beyond that because the chaos is indescribable and the time taken for that would be considerable. We believe very strongly now that the right approach to take is to halt this, revoke and have a referendum if necessary, but, certainly, to stop doing it revocation would be our best option at the present moment. We will continue to argue that. However, if there is a departure from the EU, deeply as I would regret that, we will be ready and prepared to do what we can to mitigate the undoubted considerable damage and ready and prepared to re-enter the EU as an independent Scotland as soon as we can. Therefore, the only activity that will happen at Halloween that we can be certain about is that some people will be duking for apples. Yes, it is important to note the timescale. People have sort of lost track of that given that there was a sense of relief that at least there wasn't a no deal. The agreement says that if there is the ratification and passage of the withdrawal implementation bill, then the UK would leave in the first of the months following. I think that most commentators would believe that a six-week period would be necessary for the implementation bill, which rules out the first of June in my view now. I think that the European elections are almost inevitably going to take place. I can't see them not taking place now, unless there is a Pocl. This UK Government could Pocl it, but we'll see what happens. The first of July is quite difficult in terms of that timescale. 1 August might be possible if they could do that, but I would have thought that any Government would be looking at this and thinking of people's holidays would be a bit nervous about implementing such arrangements in the middle of the English holiday period, and then we've only got September and October. This isn't a long period of time, and there seems to be little prospect at the present moment of a ratification, whether the ratification can come about as a result of the withdrawal implementation bill going into the House of Commons, which is an unconventional method of ratification, but is talked about is another matter. However, there has been no visible progress during the months of April. We are now about to go into May, and there is also no visible progress. The First Minister said that we are scaling down our no-deal planning. What, therefore, in relation to exit is the Scottish Government doing if it is not on no-deal planning, or is it now being redirecting its efforts to other legislative and policy development priorities? The Resilience Committee has not met for the last few weeks, as we have met weekly before then. It is recalibrating the various options, and it is discussing with individual ministers, and we will discuss, as a committee and with Cabinet, about the next steps. Rosanna, on the detail of this portfolio, can tell you what she's doing, but that's the cross-government position. We have continued to work in respect of no-deal on some of the key areas that I think were raised at previous Cabinet sessions, clearly from our perspective, such as chemicals, waste and water. The EU-ETS issue was very much the four key areas that impacted on us. Some of that work will still be germane to a deal. Some of it will still be useful and helpful. However, if there is a deal, I am not entirely sure what that deal will look like, or what the timescale for that deal will be, but there will be a transition period on the back of that deal. If you like the anxiety about no-deal, it is that no-deal would have meant no transition, that you would have just gone off the cliff edge. With a deal, whatever it might or might not look like, we will have a transition period, which will presumably give us some ability to make adjustments that hadn't already been made. However, some of the no-deal preparation is relevant to the uncertainty of any deal happening as well. I think that we probably wouldn't want to characterise everything that's been done as no-deal prep has been wasted time. It won't have been. A lot of it will be helping us in that longer period if there is a deal. However, the biggest problem with all of this is the uncertainty, right? We have a real issue because nobody really knows what's happening. The water industry had made sure that it had stocks in terms of what it needed to make sure that water was being purified and all the rest of it. What is our next crunch point? Everybody is having to think forward in that way. That is something that will permeate not just the areas of the portfolio that are impacted but across all portfolios. Cabinet Secretary, you specifically mentioned chemicals, the waste sector and water among your previous responses. In particular, when we had the Chemical Industries Association before us as a committee, they highlighted some of the particular concerns that small or medium-sized companies have in relation to chemicals and the uncertainties that surround what preparations they can and should be making. How is the Government seeking to support small and medium-sized enterprises in particular? It isn't simply about Government being prepared, it's about the wider economy from there. There is work being done. We have set up a prepare for Brexit website, which most of you ought to be aware of, which is hosted by Scottish Enterprise. That provides information and advice for businesses who are able to access that advice but also access online self-assessment toolkits, which will give them a sense of where they are currently at. Book on to learning events, apply for grants. We have tried to put in place that level of ability to interact. One of the difficulties is reaching some of the very small enterprises who, nevertheless, may still have very much outward focusing business. That will be a continuing conversation that we will be trying to have with them. Reaching them can be challenging. Although those who are most exposed to that outward importing issue will have self-identified in that space and are most likely to be accessing the information that we are providing for them. That is for private businesses. As I indicated in my earlier answer, we are continuing to work closely with SEPA, SNH, in relation to waste and chemicals. All that is still work that is on-going. We have not stopped doing that. The removal of the imminent cliff edge from 29 March and 12 April allows for a little breathing space, but we are very conscious that there is a potential cliff edge in 31 October, so we continue to have that engagement. And finally, given that an awful lot of resources in government have gone into Brexit planning, have you had sufficient financial and other support from elsewhere to resource this, or is this something that is likely to impact other programmes? I think that you'd be surprised if I said that we had had. No, we haven't. There is an reckoning and an accounting being done of precisely what we think we have spent. It is right across the public sector, local authorities, of course. Public bodies, as Rosanna has indicated, a range of organisations have been involved. Private sector bodies have been involved, too. Of course, we will be seeking to have some recompense to us. We have operated on the principle that there should be no detriment to the public finances as a result of Brexit. Scotland did not vote for it, and it shouldn't happen, but that is not a principle that has yet been accepted by the UK Government, but we will continue to argue for support. I turn to the reach chemicals regulations, which we will consider again later on in this committee meeting. My understanding is that the regulations have been through two revisions, once to extend the transitional arrangements twice to deal with some of the concerns that industry was raising about supply chain. Are you confident now that the statutory instrument is fit for purpose? I am not sure that I would use the word confident about anything in the Brexit landscape. As best we can understand it, as far as we are aware, all outstanding issues have been addressed. As far as we can really understand it, there were amending SIs after feedback from industry stakeholders along the lines that you were talking about, and they were made to ensure continuity of the supply chain. While the word confidence, I think, would be overstating it, this is an area where, as best we can understand, the issues have been addressed. Now, it is also an area where, and I will attest to this, I have kept asking questions, because I am conscious that there has been some concerns around the IT system that was being put in place and whether it was going to be fit for purpose, etc. I am trying to keep on top, particularly of this one, because it is one of those areas where I don't think people understand the extent to which it underpins so much of the economy. Confidence? No. To the best of our understanding, yes. Don, I do not know whether you want to add anything to that. I think that you have expressed it very well. There are fresh issues that keep emerging with the proposed regulations. One issue that emerged last week in Westminster was the potential for increased animal testing, if there is a need to duplicate the testing arrangements in the UK regulations in addition to the testing that has already taken place with the European Reach system. Last week, 12 MPs cross-party group wrote to Theresa Coffey asking the UK Government to absolutely rule out the requirement for increased animal testing and duplication of the test. What is the Scottish Government's position on that? Is that something that you are concerned about? Have you made any representation to UK ministers on that? In truth, that is the first I have heard of that. I am trying to have a conversation with Don here to establish whether or not he has had any of this surface with him. It is one of the problems that we have that often things surface almost unofficially and informally. While I can keep a track of everything that surfaces on Twitter, sometimes things do not appear on Twitter. Don, if you think that you might know something about this. I was not aware of the activity at Westminster last week, but I think that I am aware of the background to the issue, which is transitioning from the EU database to the UK database. The UK companies or the agents of overseas companies will have to provide information into that database. That information is sometimes held by other people. It is commercial information. They will have to negotiate access to that information. They may have to pay for access to that information. I think that where the NGOs are coming from is what happens if they cannot access that information, would they have to go and retest and would that mean more animal testing now? My belief is that the supply chain will sort that out and that there will be a negotiation, that there will be access possibly at a price, that this is largely a money issue probably or an access and a commercial issue that will need to work itself through. Certainly my strong belief and objective is that it should not end up in a place where you have to have additional animal testing to overcome that issue. Communicated those thoughts to the relevant minister at Westminster? Certainly at official level, they are well aware of our position on that, that we would be very concerned if where we ended up here was with additional unnecessary animal testing. Given that this has been a surprise this morning, it would be useful perhaps to get a bit more reflection on what actions you can take as a Government to raise these concerns, because I understand that it is an issue around the confidentiality requirements around data, but surely it is the role of Government to lead on that as well rather than just let the market decide. It is symptomatic of what is surfacing all over the place, which are, if you like, the unknown unknowns and are now beginning to be known. Those are the things that would have been very difficult to have anticipated any earlier than when they surfaced. That is going to happen, I suspect, more and more and more. Yes, it is not a criticism under our standards. Last question about reach was a little bit more fundamental. It is about the shift from a system that, at the moment, is very open—a decision making between European Commission, European Parliament, stakeholder expert groups involving academics and industry, and ENGOs and others, working together—a very open European system—to now have very much a closed system with no stakeholder involvement at all. I am wondering what the Government's position on this. You are wanting us to support the Reach amendment, but we had CEPR in last week. CEPR indicated that, if they were directed to, they would perhaps be able to involve stakeholders more in discussions around the development of these chemical regulations. I see a real loss here. I see us losing something that is very much an intrinsic part of European decision making. How do we work around this? How do we not lose that architecture of expert advice and support? One of the challenges in this particular area was the almost impossibility of replicating at a Scottish level, in the time that was available, the appropriate regulatory system that you would have had to have in place. Therefore, we were confronted really with this as one of those areas where we had little option but to try to have the conversations at the UK level. We are absolutely of the view that any UK chemicals regime should be based on strong science but should also be transparent. This will be one of the continuing areas, I suspect, where there will be a disjunct between how we see the way things should go forward and how they may go forward. I do not think that it is ideal. You would hardly expect me to say nothing other than that if it had been possible, I would have said that we should just do our own system. However, as far as we could assess it, it would have been an absolute impossibility to have done so on the basis of what was then understood to be the no-deal timetable. Therefore, we are where we are. Is there a danger that this becomes a permanent way of working now that we lose that expert groups? We are back to the conversation that we had earlier. Of course, there is always a danger that some of these interim arrangements become absolutely permanent. That is something that we have to be really conscious of. What could SIPA do? Could SIPA run a shadow expert group in Scotland involving industry, involving stakeholders? I have not discussed it with SIPA, so I am not going to commit SIPA to anything that, at the moment, I would not necessarily know that they were in truth resourced to be able to do and are capable of doing so. It is not a conversation that I have had with SIPA, so if they raise the committee with you, we will make sure that we talk to SIPA about what space it is and that it can be in. Don, I do not know if there is anything that you want to add. Obviously, the other question that arises here is what stakeholder engagement structures are going to be at the UK level within the UK system. There are some features of the current chemicals regime at UK level that do involve stakeholders. For example, I am aware that there is a chemical stakeholder forum that involves stakeholders and chemicals policy at UK level, or certainly there has been in the past. I guess the question is, how will that relate to the specific regulatory regime here? What was the function of these EU committees? My understanding is that they were advisory committees, and I think that there might be a difference of opinion between UK Government that saw them as a way of brokering advice across the 27 EU member states, whereas some of the NGOs saw them as more of a way of engaging stakeholders. That is where the crunch has come. I think that there is a need to resolve that and try to come to a common understanding of what was the function of those committees and how best to involve stakeholders in the process going forward. Can I make one point? Clearly, I know very little of this in terms of expertise, and that is to the right of me. I just want to make the point that the argument of mitigation was that I would love to be able to mitigate every bit of damage that Brexit will cause. It is impossible. Brexit is not a good idea. It will cause damage in whatever iteration it has, soft or hard, and the resources to mitigate Brexit are simply not available to us in our current state. That is simply not possible to do. The keeping pace powers that we had in the continuity bill would have allowed us to move forward, and in discussion with your own party and the other parties, we have agreed a way in which we would like to bring those back. I think that the limitations on them that the continuity bill eventually had will probably dissolve a bit, because we want to do more of that, but it would be the wrong assumption to make that in every detail, in every part of our national life, we could mitigate or shadow or change what is happening with Brexit. Regrettably, we cannot. To get out of Brexit, we really just have to either make sure that it does not happen or get out of the UK. There is also an issue with the fact that reach took many years to develop, and we do not have. Angus MacDonald has a quick question on that theme before we move on to Claudia. Thanks, convener. Just staying with reach briefly, the committee has looked since last week at the situation regarding Switzerland and reach. Now we know that Switzerland is a member of EFTA, but not a member of the EEA, and it is not a member of EU reach. It could not come to an agreement with EU regarding the stipulations. Switzerland did investigate being part of reach, but there were three conditions that the EU set that were not acceptable to it. One, accepting the supervision of the European Court of Justice, or presumably the EFTA court, which the EEA countries use, adopting all reach decisions on chemicals without a vote in the process, and adopting the other EU regulations that work with reach to protect human health and the environment. We can assume that the UK would be presented with the same conditions if it wanted to stay in reach outside the EU and the EEA. Looking ahead, should we find ourselves in the EEA or EFTA, presumably you would encourage the UK Government to remain in reach rather than proceed with reach UK, which may or may not be fit for purpose? I take the same view on all of these as I have taken with the EU ETS. We would be far better just staying in the scheme rather than having to set up some kind of ersatz version of a scheme that has been working well. I would say the same with reach and any other similar scheme, but it goes back to the fundamental point that, frankly, we have got what is best fit for purpose and we appear to be leaving it. Whatever we design is not going to be as good as. Remember, those are all things that are being designed around no deal. Indeed, whatever the relationship post Brexit that we have, we should be doing our best to come to the best deal possible that will keep us within the ambit of what is already there. However, it does seem an extraordinary position that we would be in to get ourselves out and then have to effectively negotiate in theory back in again. This is a question for both cabinet secretaries. We have already touched on some of the environmental governance and principles issues, but not so much on enforcement arrangements. The first broad question is that, as we know, the Scottish Government is committed to maintaining environmental principles as per the continuity bill, which my colleague Mark Ruskell and I were involved in with amendment 39, even despite the court decision. We are wondering, and Mark Ruskell will come in on further questions. If there is comment on any timeframes for legislation and the scope of proposals here in Scotland. Yes, I wrote to the Presiding Officer some weeks ago, almost three or four weeks ago, as a result of discussions that had taken place between the parties. This is not ex-cathedra from the Scottish Government. We had a discussion about how we would take the bits of the bill forward that were deemed to be possible to take forward. There were broadly two avenues that you could follow. You could go through a reconsideration stage of a bill that has never been done before in this Parliament, because it has never been a bill that has been challenged for its competence. That would have been quite a narrow way forward. Those standing orders were written in 1999, essentially at the outset of the Parliament, and they would only have allowed us to take the exact terms of each item and do it again. Things had moved on. Brexit is, if nothing, a constantly changing scene. What we agreed as a group was that we would try and bring forward those things, but we might want to add to them and build on them and develop them. You could broadly take three sets of items. There are one item that the Supreme Court decided was out of scope, and that clearly would fall. It is a very minor item, and it is the same as an item that exists in the Welsh Bill. There are a range of items that were in scope in that bill, but were ruled out of scope by subsequent UK legislation. One must regard that as a sleight of hand, a legislative sleight of hand in the UK Government, and we need to look at those again and to see what we can do with them and how we can rephrase or repackage them if we can. Thirdly, there are a range of items, and those environmental governance are one of them, but there was also the keeping pace power and one or two other items, which we would like to bring back, either as a standalone bill, and we have committed ourselves to a standalone bill for some of those, or within other legislation, if that legislation was the relevant way to do it. Presently, we are working up the ideas into what that legislation would look like. We will, of course, continue to consult with the other parties. We did that for as much as we could during the continuity bill, and I do remember the discussions that we had about amendment 39. I do admire you for remembering the number of the amendment. I am afraid that it has all just gone into my mind now, but we will consult about that and we will see what we can bring back. Now, the detail of what we do with environmental governance will be entirely up to Roseanna and her team, but the vehicle may well be that bill, but we will continue to develop it. Basically, what we did was to take on the purpose and intent of those parts of the continuity bill and behaviours, if they had already been put into legislation, because we were doing a consultation that was meant to happen within six months of the royal assent of that bill. We have just gone on ahead and that is what we are doing, and that is, of course, a very current conversation. We will inform what would potentially or what could go into the bill. At this stage, I cannot say exactly what that would look like. Could I ask both or either of you in terms of governance again? The UK Government has done work towards setting up the European Union in advance of knowing what the exit scenario is. Is there work here to set up a complementary body? We are waiting to see the outcome of consultation as to what is considered to be appropriate here. The body that Westminster is setting up was something that they consulted upon. They approached their consultation in a different manner, so they decided an outcome and then consulted on it. That was the one that we got at about four o'clock the day before they were going to publish a consultation, and both Wales and Scotland just asked them to remove the references to Wales and Scotland in that. That is why it is the way it is just now. Neither Wales nor Scotland are approaching this from the point of view of having discussions about participation in that body. Wales, interestingly enough, has consulted in the same way that we have consulted, rather than making a decision and then consulting on that. I am not convinced that the European Union is going to work out just quite as well as Michael Gove may have thought. Before the questions on enforcement and that side of things and possible court arrangements, is there any comment on the concerns about, if we did, going to no deal or indeed the transition in terms of governance gaps? Will I say is there any? Of course there is, but can you make a comment? There will be some things that we can move to quite quickly. The lack of clarity, the chaos that is on going just now makes it extremely difficult. We are just going to work through our processes. We are looking at what some interim measures might look like in terms of a no deal, because there are some existing mechanisms already available to the extent to which people might understand them is less certain. We are having a look at some proportionate interim measures in the event of a no deal, but we are not designing an interim big bang because that is not how we are approaching the way of looking at this. I was just going to move us on to looking at the UK environment bill and just where the cabinet secretary could outline your top-level concerns about the way that the bill is being drafted. We do not really have it all. There were draft clauses published in the run-up to Christmas, which was to allow the consultation about the EOP, but there are other additional things in the bill, most of which we do not regard as impacting on us. However, there are some references to reserved matters, although they are not really defined. That is one of the struggles that we are having with them. I said earlier that if they continue to not move on this, an LCM would be required for us, but it would not really be on the specific things. My understanding is that the intention with that bill is to formally legislate for the EOP, but also to do some other things that might be getting ladled into it. Deposit return is one thing. I am looking at Katrina just to see that if I am right. However, because it is not actually about devolved policymaking, other than the references that have given us some concern, they are not about specific policies, if I am right. The UK Government will be creating a wider environment bill, so far the only aspects of that that have been published are the provisions in relation to environmental principles and governance. We hear about things that might go into it, but we do not know what they might be. As I said, some of the drafting is already giving us a little bit of a cause for concern on that devolved reserved issue, but we are not really getting much traction yet. However, to be honest, I think that the work on it has just stalled completely. I do not think that there is really much. Yesterday, there was no real sense that I got that we could expect an environment bill in Westminster any time soon. Officials, of course, have these conversations with their counterparts very often, so sometimes they do know a little bit more than we do. There are on-going discussions at official level about some of the wider aspects of the bill, which we understand will encompass areas around producer responsibility, some measures around water quality potentially, and we are currently working to establish the full scope of the bill as the UK Government understands it. I am also going to have Michael Gove in front of the committee in a week of Tuesday's time. I was going to ask briefly about executively devolved functions in relation to offshore wind industry, which is hugely important for decarbonising and promoting a green new deal. Could it be that OEP might step in if there was an offshore wind farm and say, hang on, this is our remit? We have had a complaint, we are investigating this. I am sorry, but I do not know the answer to that. It is one of the things that we will be trying to establish. One of the reasons we are being wary about the way that it is drafted just now is for us to understand exactly what they think. One of the bits of phrysology and the briefing that I have got—I do not have it in front of me—is that we have yet to establish to establish areas of reserved environmental policy, and yet they are trying to insist that there might be some areas of reserved environmental policy. They will not establish in concrete terms what it is that they have in their minds. Very short question from Claudia Beamish. In relation to enforcement arrangements, I will be brief, but is there any comment that either of you can make about any intention to legislate or bring forward an independent watchdog with powers parallel to those of the EU in Scotland, or could you just update us as to that complex issue? I am sorry, I am not entirely clear what you mean. The answer to that probably is no. In terms of an independent watchdog, would you be— Environmental policy. Yes, for environmental policy. Sorry, that is what— I am being too brief. Could you share any thinking with us about how that is progressing? We have taken a lot of evidence in relation to whether it should be— There is an on-going consultation and that would emerge during the consultation. At this point, we are not preparing for any such thing. You mean something equivalent to the European Court of Justice. The European Court of Justice is meant to replace the European Court of Justice. Yes, but I am asking if there is an interest in something that is Scotland specific, if there are any thoughts on that at all. The consultation is where the discussion around that should take place. Angus MacDonald Thank you, convener. I am conscious that time is wearing on. So, if I could turn to EU funding and support structures, last week we had some discussion regarding horizon 2020 and the forthcoming horizon Europe. And to help with the context, the committee on its visit to Brussels some time ago met with the Norwegian directorate or delegation and will-earned at Norway has been particularly successful in tapping into horizon 2020. Can you update the committee on what the Scottish Government is doing to clarify the situation regarding potential loss of EU sources of funding? What are the current funding guarantees and what is the Government prioritising in terms of securing post-EU exit funding? What we are trying to do is try to keep raising it. It was one of the items on the agenda for the meeting yesterday, so it is an active conversation that we continue to press the UK Government to actually fulfil the commitment that it made, which was in absolutely direct and unambiguous terms that it would replace all of the EU funding. As yet, we have got absolutely no certainty around that. Now, if I was to be fair to my colleagues in DEFRA, they probably are looking for the exact same solution. The difficulty is that this is all being driven by the Treasury, and I think that there may be some frustrations even at the level of the various departments in Westminster, because I am pretty sure that they want an answer to this, too. We have absolutely no clarification, but we continue to raise it. As I said, it was actually part of yesterday's agenda, and therefore I am able to update you with I am sorry, but there is no movement on this other than that we continue to raise it. To raise it with ministers who themselves, I think, would like some clarity, because they are having to deal with those same issues in England. I daresay that they have stakeholders who are every bit as unhappy as ours and the Welsh are, as well. I will be making this afternoon with a body in Scotland that will undoubtedly raise with me as everybody does the issue of replacement funds. You can approach this in three ways. I want to approach it in three ways with you. The first is to say that there are some funds, such as Horizon 2020 and Erasmus Plus, whether we know that the UK Government has done a value for money exercise in their own terms, not in anybody else's terms, and come to some conclusions. Those conclusions are not finalised yet, but, for example, we understand that a Horizon 2020 continued membership is like the policy choice of the UK, and they will have to pay into it, whereas in Erasmus Plus, they do not think that it provides value for money. We entirely reject that, but that is where they are, and we can hope that that will change. The second one is that there is a shadow structure of funding. You have the shared prosperity fund, which has been allegedly established. There is no information about how it will operate. There is meant to be a consultation from James Brokenshire's department about how it operates. It has not started yet. You can find bits of information if you say that that used to be funded or will be funded by the regional fund. If that is being folded into the shared prosperity fund, presumably it will be part of it, but you have no knowledge of whether that will be the case. The third way to answer that is, I have to say pretty much in the manner that I was responding to Mark Ruskell earlier on. You cannot manage or administer your way out of this complete burach. It is impossible to do so. The question from Claudia Beamish about establishing an environmental watchdog, you cannot just replicate the good things that come out of the European system, the things that have made huge progress, and say that we will just put that in. First of all, it would not work, and secondly, you do not have the money to do it, and we have no idea what the money will look like. We cannot do that with a funding issue regrettably. I mean that I have a very long time ago, a decade ago, I was an environment minister. I was involved in setting up and administering the SRDP system. We moved at one stage from one system to another system. We knew that we were moving. We knew that that would happen. It still took about six to nine months. I know that Mr Scott remembers us, because he was asking questions about it. Six to nine months before the money started to flow after it stopped flowing in the original scheme, this is of a much, much larger scale, and we have no idea because it is hard to exaggerate the complete implosion of the UK Government on these matters, on the whole matter of Brexit. There is, to all intents and purposes, no functioning government in Whitehall. There is a Government that is focused entirely upon Brexit and the chaos of Brexit, so those questions, which are not only legitimate for this committee, are essential for every third sector body, for all bodies in the environmental sector, for every business, for the whole of society. There are no answers to that. It is distinctly possible that the UK could leave the EU anytime soon. It is an act of gross irresponsibility, which is having huge damage. I wish that we could mitigate it in the way that it is being suggested, but it cannot be done. Felly, on the shared prosperity fund, is it fair to say then that the Scottish Government had no opportunity to input into the development of the proposal? No, no, no. As far as we can assess, I would have to say that it is a phrase and there really is nothing else at the moment behind it. It appeared in a Conservative Party manifesto in 2017. There is apparently a consultation. There are bits and pieces on websites, but what it is going to be, where it is going to operate, how it is going to operate, the constant spin on it is that it will be administered from London. It will be a central fund. The secondary spin is that it will give power to the Secretary of State for Scotland and to the Welsh Secretary of State for Wales, and it will be administered through them in a sort of one-in-the-eye for the devolved Administrations. That is the level of consultation on something that is absolutely vital. Okay, on what analysis has the Scottish Government undertaken of the importance of participation in the various EU-level bodies that support environmental policy and implementation such as the European Environment Agency? We haven't really done an analysis because right from the outset in our view we need to stay with them. We need to stay involved. It was another issue that was raised yesterday directly at the DEFRADA meeting and supported by my Welsh counterpart Leslie Griffiths. From my perspective, I consider continued participation in the European Environment Agency as absolutely vital for Scotland. Of course, that is an organisation that is set up for participation of the state, so there would be a question whether or not a devolved Administration would be able to separately have any relationship, but we are urging, and I, yesterday, urged the UK Government to consider effectively signing on. I am not quite sure what the phraseology is. There is a capacity to sign up as a third party state to the European Environment Agency, and, in my view, it is an absolute given that the UK should do it. I raised questions with officials about whether or not there was any possibility that Scotland as a devolved Administration could do it, even if the UK did not. I am not certain about that, but I am strongly of the view. Particularly if we are to keep up with developments at the EU level. One of the issues is how to make sure that you are networked into all of that as it begins to develop. Committing yourself to keeping up with what happens in the EU is one thing, although it becomes difficult if you find out about it via a press release when something has already been decided, when you know that there has probably been a number of years of careful consideration given to that before it gets to that point. We need to be involved in as many of those organisations as we possibly can be to ensure that we continue to be part of those conversations. I press the UK Government, as I have done on the EU ETS, that the most sensible thing to do is to stay in. We are rapidly running out of time. Do you have one final question? I do, yes. Last week we heard how important EU funding from structural funds but also from the European Investment Bank is for the circular economy. How can the Scottish Government ensure that investment in the circular economy is maintained? Are you considering how it could be prioritised in the new Scottish National Investment Bank? I cannot make such financial commitments. I can say to you that the new bank is intended to take a mission-based approach to investment. There will be a strategic direction and a set of medium-term outcomes that are ministerially driven. I know that officials are already engaging with the bank about the potential for investment in innovation and infrastructure around the circular economy as being an absolutely vital part of Scotland's economic development. The First Minister has indicated publicly that a key mission for the new bank will be to support the transition to a carbon-neutral society, which one would presume has to have beneath that the whole circular economy idea. You will appreciate that I am not the minister who is going to be taking forward the investment bank. For exquisite detail, you are probably best to ask Derek Mackay. We have run out of time. We have gone over time, in fact. I want to thank everyone for their evidence this morning. We will suspend very briefly. The fourth item on the agenda is to consider a proposal by the Scottish Government to consent to the UK Government legislating using the powers under the act in relation to the following UK statutory instrument proposals. They are the environment legislative functions from directives EU exit regulations 2019 and the reach amendment EU exit number two regulations 2019. Are there any comments in relation to either of those instruments from members? Thank you, convener. Just in relation to the EU regulations, one that you have highlighted, I think that I have gained some comfort, if I understand it rightly, from the fact that there are obligations on the UK Government to come to Scottish ministers in relation to the marine environment, where there are ensure water issues and where there are any issues that affect us as a developed administration. I find some comfort from that approach. Mark McDonald. Thank you, convener. I think that the evidence session that we just had with the current secretaries was useful, but it does not reassure me in relation to the reach regulations that are being proposed. I mean, those regulations effectively dismantle that whole architecture of European policymaking. It removes the role of stakeholders, those civic movements that are protecting the environment, industry, academics, experts in formulating policy. I think that that is a huge loss. I did not hear at this stage, from the cabinet secretary, a commitment to try and replicate that in some way. You are never going to be able to completely replicate it, but I think that after the evidence that we had from SIPA last week, there is an appetite on behalf of SIPA to engage with experts, and at least the very least to feed that in to the process that will now be governed by the HSEs. So, I am concerned about the status of this reach amendment that is coming forward. I mean, it has been revised twice already. It is not competent in my view. There are new issues that are coming up the whole time, including the issue of animal testing, which was raised today, and it can seem to be an error that the Government has been unaware of. I understand the reasons why, because this is a situation that continues to unfold with unintended consequences from week to week. Right now, I would not want to be committing any support to this amendment. I do not think that it is fit for purpose. Sorry, it is regulation. I do not think that it is fit for purpose. Are there any other comments on this, Stuart? Given that it has been laid by the UK Government, our position is almost irrelevant. More fundamentally, I just wish to note—there is no more that can be done—that sending it on 28 March for implementation on 29 April 12 is simply an unacceptable way to proceed. Any other points on this? I think that we are all agreed that the lack of scrutiny time for these things has been a real problem throughout this entire process, as we have been preparing for a no-deal, no more so than this particular one. It looks, if I am right, that we will have to go out to vote on this. We will take the environment S.I. first, then. Taking the environment legislative functions from directives, EU exit regulations, does the committee agree to the Scottish Government's consent that the UK Government legislates on that notification? I am taking the reach amendment, EU exit regulations 2019, or the committee in agreement with the Scottish Government's consent that the UK Government legislates on this notification? No. We are going to go to a vote. Those in agreement, given the Scottish Government consent, the UK Government legislates on this notification, raise your hands, and those who disagree, are you abstaining? Yes. Those in agreement, raise your hands again. Marks disagrees with it, and Angus is abstaining. I am not sure what I am doing, to be honest. I share concerns, so I am going to abstain. The result of that has passed three votes. That concludes the committee's business and public today. It is the next meeting on 7 May. The committee will be taking evidence on tax and fiscal measures to inform its work in relation to the Scottish Government's budget. We will now move into private session and ask that the public gallery be cleared as the public part of this meeting is now closed.