 Ieith agor honno, packaging, and welcome to the 20th meeting of the Culture, Tourism, Europe and External Relations Committee in 2017. I'd like to remind members and the public to turn off mobile phones and any members using electronic devices to access committee papers during the meeting should ensure that they are switched to silent. Apologies have been received from Stuart McMillan MSP and before we begin, members may notice that we have a large official delegation of Swedish visitors today. They are from local authorities in Sweden and we would like to welcome you to the Scottish Parliament. Our first item of business today is an evidence session on the article 50 withdrawal negotiations and the role of the European Court of Justice and options for dispute resolution post Brexit. I would like to welcome our witnesses, Professor Sir David Edward, Michael Clancy, director of law reform at the Law Society of Scotland, Laura Dunlop, QC, and Peter Sellar of the Faculty of Advocates. Welcome and thank you for attending today. I'd like to invite Sir David to make some opening remarks. Thank you, gentlemen. I have just a few points. The first is that the basic position paper on dispute resolution is not perhaps as revealing as an earlier one on providing a cross-border civil judicial cooperation framework because that contains what I think are two very important phrases. The first is the following principles should ensure orderly completion of ongoing cooperation so that citizens, consumers, families and businesses involved in a dispute continue to have a clear predictable legal framework for the resolution of that dispute. And second, legal certainty is maximised to the benefit of citizens and business by ensuring that their properly negotiated arrangements are respected. Now that seems to me to be an absolutely admirable statement of what we should be trying to achieve. The second point I would make is that in dealing with the other countries, you have to remember that, for example, in article 19 of the German Basic Law, it's provided should any person's rights be violated by public authority, he may have recourse to the courts. So as far as the Germans would be concerned, any dispute would need to be capable of judicial recourse. And the third point I'd make is this, that the paper enforcement and dispute resolution appears to envisage that we're talking about disputes between the UK on the one hand and the EU on the other hand. But in fact, EU law is not really about that at all, and certainly the jurisdiction of the ECJ is not about that at all. And let me give you one simple example from my experience when I was a judge. A lady of Spanish nationality came to Britain and studied picture conservation at Newcastle. She then went and had a job in the Louvre, I think, in Paris. And she then sought to be appointed to a position in the Prado in Madrid. And she was refused consideration for that position because she did not have a picture conservation qualification in Spain. Now, why did that qualification apply? Because the agreement between the Prado authorities and the Prado staff committee provided that you must have a Spanish qualification. So that was an agreement between the museum authorities and the staff association about the qualifications needed to have a job in the Prado. So there you have a situation in which you have a Spanish national concerned with wanting to be appointed to a job in Spain and refused it because, not because of a Spanish law, but because of an agreement between a state entity and its staff association. A great many of the cases that come before the ECJ from the national courts concerns situations like that or comparable to that. So one has to bear in mind that more than 50% of the case load of the court of justice is concerned with cases arising in the national courts of the member states about the rights of individuals. And that is not going to go away in the event of Brexit because, let me take examples, British companies will still want to be sending their employees to other European countries as directors, managers, sales representatives or technical staff. They will want to live in the country to which they are sent with their family to send their children to school and to have health care. Some of them will find themselves on the wrong side of local bureaucracy and some of them will separate and they will need to know which courts will grant a divorce, which will decide on the financial settlement, custody of children and problems of cross frontier access. That is what the jurisdiction of the ECJ is supposed is designed to solve for ordinary people in ordinary day-to-day situations. It's not just trade disputes and that I think is the most important point to understand in the whole of this discussion. Thank you very much, Sir David. Can I open by asking, perhaps on the particular point that you raised, Sir David, how will such disputes be resolved if the UK is not subject to the ECJ? How will such disputes be resolved if the UK is not subject to the European Court of Justice as the UK Government has indicated that it is a red line for it? Somebody will have to resolve it and the suggestion is that it would be solved by the British courts, but the British courts have to know what is the law that they are going to apply and that is why there is this reference procedure to the court of justice. The court of justice says this is how you interpret the law. Now it is true that under the after procedures the after court would decide issues arising in the after countries, but you have to remember that the EIA agreement includes within it a huge part of EU law. So it is not the same as a situation where the UK leaves the single market and customs union, which is the hypothesis that we have to imagine, and somehow the British courts will decide on situations arising in Britain. Correspondingly, if we are talking about a British person working in Germany, what is the law that the German courts will apply? Will they go to the European Court to have a ruling on what the law is, or will there be some other authority that will tell them? Those are questions of extreme complication that are simply not properly addressed at all in the UK position paper. I could ask the other members of the panel. As I said, the ECG is said to be a red line issue for the UK, but for the general public it is the complexities of this matter are little understood. Is it possible to explain in plain language for any non-lawyers who may be listening what the relationship is between the ECG and the single market and why the two are so inextricably linked? Well, one clear principle, I'll have a go and then others can join in. One, I suppose overarching principle is that there should be consistency. The function of the ECG is to ensure by giving opinions that the position that Sir David has sketched, as an example, would be resolved in the same way in different member states, so that you don't have huge diversity of solutions to people encountering essentially the same difficulties, but others will have other views. Roughly speaking, I agree as a question of the principle rule of the Court of Justice of the European Union is to ensure uniform application of all the laws, all the regulations, etc., which are adopted by the institutions in order to further the four freedoms, etc. The role is to ensure that uniform application across the 28 member states, and it is the guardian of that. I think that it is the interpretation and the application of that law, which is important, because many courts throughout the 28 might have different interpretations of the same point of law. The ECG is there to provide that certainty. Of course, certainty is one of the things in this process that we are all seeking for. Sir David mentioned that as one of the points that people would want to get out of the withdrawal process. It is something that the law society has highlighted since we began commenting on the referendum and when we put forward our proposals to the UK Government for inclusion in the negotiation that there should be certainty and stability and that rights of citizens should be respected. Professor Sir David Edward referred to the UK Government's position paper on dispute resolution and indicated that many questions are not being answered. I wonder if you would care to comment on the UK Government's position papers on those matters. I'll start off and then others might want to join in. I think that it's because the purpose of the UK position paper is not to provide answers, it's to provide options and that is a range of suite of potential choices that could be arrived at, but of course that could be arrived at is where the legal issues translate into political issues. If one looks at the latest edition of the joint technical note, which summarises the UK and EU positions at the end of the third round, you can see that there is significant difficulty in all of this. The red, yellow and green colour scheme is quite instructive if you hold it up and everyone can see it. You see green there and green is for the use of EU law concepts, but when it comes to whether the commission should monitor compliance or whether the UK should be prepared to consider the establishment of an independent monitoring arrangement, that's a red spot. Of course, the mysterious phraseology, which I think is interesting, is the role of the CJEU. It is said to be for discussion in the governance group and similarly for future CJEU case law to be taken into account, discussion in the governance group and the veil of lack of transparency, of obscurity falls on those two points. I don't underestimate how difficult this is for the negotiating parties. One of the things that's important is that, for example, in the year 2016, 25 references were made to the European Court by UK courts. Those are cases arising in the UK courts, which in one way or another raise an issue of EU law. It has to be recognised also that you don't always realise that there is an underlying question of EU law when a case starts. That's going to be one of the problems about the cut-off period because it's suggested, for example, that the ECJ will only have jurisdiction in cases that have already got there, but there are many cases in the womb of litigation that may eventually be seen to arise a question of EU law about an existing situation before Brexit occurs. That is a serious problem. I have a dispute with my employer about the application of the equality law, gender equality, racial equality or transfer of undertakings and so on. I have that dispute at the moment. It may not actually get to court until very nearly before March 2019. Is that dispute somehow to descend into limbo because it hasn't got to the European Court in time? This is a much more complex situation than the British Government appears to recognise in that particular position paper. As I say, that position paper seems to imply that all the disputes are going to be between the UK as a state and the EU, and they are not. I wanted to say about the pending cases point. That is particularly directed to the position paper to which you have referred. Pending cases are generally dealt with. It is a huge generalisation, but there is what I would call a mastermind principle. I have started, so I will finish. You do not change the way in which the case is going to be dealt with midway through. To take a much more local example, when, in Scotland, the financial jurisdiction, as between the sheriff court and the court of session, was changed in the 2014 act, practising lawyers would expect—and this is what is in the 2014 act—that the provision that is made is that new cases are governed by the new rules. What seems to be being canvassed in the position paper—and I am looking particularly at paragraph 11—is something much more like a fudge, I suppose, and something that seems to at least raise the possibility of a discretion. There may be cases in which considerable time and resources have been invested in CJEU proceedings. It may well be right that such cases continue to a CJEU decision. Practising lawyers would, I think, expect that any case that is in a court will finish in that court. That would be the norm, so introducing what this appears to be suggesting, introducing a set of criteria according to which a decision is made as to whether this case in this court is to be allowed to continue in this court or not, is a very complicated exercise. That is certainly something that struck me. The point that Sir David is making is a further point, which is that there will be disputes that have not yet become cases. There is a good argument for saying that those disputes should fall to be dealt with according to the law which everyone understood to be the governing law at the time when the dispute developed. The EU, in its position paper, is bidding for those cases to continue to go through the CJEU as well, and we, as practising lawyers, understand why that is so. However, there is a considerable gap between the two positions at the moment with the UK saying that we will define, and there would be an awful lot of definition required, what will fall to be treated as a pending case, and the European Union saying that disputes are the facts of which have arisen under a particular regime should still go through the court of justice. That is a big gap. It is not just theoretical, it is a practical issue. I am involved in three Frankivitch damages cases at the moment, which are in various phases. They are assisted, so they are stayed in a couple of them. However, it could be the case that whenever exit day is designated for us, and yes, we can assume that it is going to be March 2019, it could be sooner. If we haven't seized the court of the idea of sending a preliminary reference question to the court of justice, that remedy, that option, could be taken away if indeed we only alight in it after the fact, after exit day. The reality is that it is a realistic scenario. I will also pick up just one small point with regard to the position of the UK and the position of the EU on the red line of the CJU. It seems to me that one needs to make a distinction between where rights of citizens will be adjudicated and trade disputes, etc. There are other issues that arise under the withdrawal agreement. We have quite a clear and simple position from the European Union, which has its political tensions, but nevertheless it is quite a clear one, whereas from the UK side we are yet to have any sense of clarity other than the red line. Thank you very much. We have two supplementaries, one from Richard Lochhead and one from Marey Gougeon. Thank you. Good morning. It is also quite a complex issue and I just want to ask a relatively simple question. On the one hand, Theresa May has said that exiting the European Union will mean that the European Court of Justice will have no jurisdiction over the UK. On the other hand, there are negotiations and a debate around what the post-Brexit relationship should be in relation to the single market, with some arguments that there should be membership of the single market and some arguments that there should be access to the single market. Is it possible? Is it likely that the UK would be able to negotiate access to the single market as it wants? We would prefer membership if it wants access. At the same time as that, the European Court of Justice has no jurisdiction over the UK. My second question is, is the UK likely— What supplementary is normally one question, Mr Lochhead? Relating to that, is the UK likely—is the EU likely—to insist that the ECJ has on-going jurisdiction? The first point about that is that it is entirely wrong to think that the EU—the CGAU—has jurisdiction in the United Kingdom. It simply has jurisdiction to answer questions put to it by UK courts. That may say that the existing UK law has to be changed, but that is a quite different thing from saying that it has jurisdiction in the UK in the same way as the Supreme Court of the United Kingdom has jurisdiction in Scotland. That is the first point. Secondly, on the single market, to go back to layman's language, what we are talking about is the level playing field. If we want to play on the same playing fields as the other 27, as regards the single market, they can legitimately say, well, we want to play by the same rules and we want to have a single referee who is going to tell us what those rules are. It is a bizarre kind of dream wish that we can have play on the same playing fields on equal terms, but we have our own referee. It is just absurd. Mary Cushon? It was preparing for this meeting. You can see how complex—you had an idea that it was a very complex situation, but I think that hearing some of your examples and some of the points that you have raised, you realise exactly how much more complex this situation is. I really just wanted to ask—at a point raised by Laura Dunlop when you talked about the fact that there is quite a big gap there—do you think that it is going to be possible to bridge the gap between the two positions in the time that there is for the negotiations and get each of your responses to that? On that particular point, I admit that slightly dismayed by the suggestion in the UK paper that there is going to be a lot of definition going on. If you are going to start trying to agree complex definitions of what is or is not a pending case and putting in factors that you have to take into account, like how much time and expense has already been spent in the case and that sort of thing, that is going to take up a great deal of time. My suspicion and others may disagree is that the compromise position, as far as pending cases are concerned, is something around cases that are already with the registrar in Luxembourg. Something like that will be allowed to proceed. That would be a clear rule, and a casualty of that would be the sort of disputes that we were describing earlier, where the dispute is there but the litigation is not. Those would be clear rules, although the consequences of that are that you are denying the people involved in those disputes a resolution according to the legal framework that ordinarily would govern that dispute. To answer your question, it depends, probably is the answer to every question, but if we get sidetracked into a very convoluted drafting exercise of trying to define criteria for things that actually practising lawyers can all recognise, like pending cases, then there isn't enough time, I don't think. Just a short word, convener. The average case time in the ECJ is 15 months or thereabouts. It was probably quicker when you were in charge, David. But 15 months is what we have got at the moment. We have got something approaching just over 18 months. Therefore, you can see that if there were a reference today from a court, it might be able to be determined prior to the exit day as we imagine it, but we don't even yet know what the exit day is going to be and the bill could provide different exit days for different purposes. Therefore, it may be the case that there is a sliding scale in some form of transitional arrangement that could take us beyond 29 March to deal with cases that are commenced with the understanding of a certain set of legal parameters. The issue of pending cases is such that we have to remember that under the Human Rights Act, there is no right to an effective remedy, because article 13 of ECHR is supplied by the Human Rights Act, so even though you may have a good case in terms of EU law, you cannot effectively claim that the Human Rights Act could be paid in aid there, but let's say that your case in EU law relates to some aspect of property, such as intellectual property or something like that. If you are then deprived of your right of property because the Government has chosen a particular date for exit at which point CGEU access is denied, that puts the Government in a difficult position and a difficult position that can be taken in the national courts. Tavish Scott. If the Prime Minister does not announce a transition in her Florence speech next week, then I think everything that you have said is right, but what most would expect is that there will be a UK application for transition period, and therefore is it not the case that all these pending cases that you are describing today will actually flow into that transition period? We do not know how long that is going to be, but the Chancellor gave evidence to the Treasury Select Committee this week in which he argued quite clearly for a longer transition period. In those circumstances, Michael Clancy's point about 15 months goes on and on and on, so is it not more of an argument about how many more cases are initiated which could go to the European Court of Justice over the next 18 months before we formally leave on the 30th 29th of March 2019? Is that not the issue? And then how long the transition period is? But it depends, doesn't it, on what your transition agreement is. But I'm assuming it has to include the ECJ continuing to have jurisdiction in the way in which you just described. Yes, the ECJ doesn't have a British judge. Are British lawyers entitled to appear before the court? Is the United Kingdom what is called a privileged applicant enabled to appear in any case before the ECJ to argue the UK position? These things will have to be worked out and simply using a vague expression like transitional period, what you're really talking about is a kind of standstill, a continued standstill. Well what are we leaving if this standstill is in place? What does we are leaving the EU on March 2019? What does that expression actually mean? And I think one of the greatest difficulties about this discussion is the use of vague phraseology which needs to be tied down in very precise legal terms. And that takes a long time to negotiate. And remember that March 2019 is the last point, but you've still got to get round the Parliaments of 27 member states and the European Parliament before you even enter upon this. The other issue is, of course, that what examples can we bring to the table of long transitional periods where one court has left the jurisdiction of another or one country has left the jurisdiction of a court, rather. In the paper that we sent to both the UK Government and the task force 50, we explained that the situation in New Zealand, when New Zealand gave up its jurisdiction of having cases go to the judicial committee of the privy council, it did that in 2003. When I spoke to the previous registrar of the Supreme Court a couple of years ago, she estimated at that point that there could be as many as 40 cases still sculling around in New Zealand that might end up at the JCPC in London. That gives you an idea of how long a tale this could have, because 2003 to the present day is 14 years. If that is the case, that would test the political will of Michel Barnier and the political will of Theresa May and their successes. On that transitional point, one of the questions that has been put to this committee and to others is a transitional period that involves, as Sir David described, remaining within the single market and remaining within the customs union for a transitional period to be defined, but that possibility has certainly been tabled. What would be the implications of that in terms of case law and in terms of the management of case law? If the United Kingdom was to withdraw from the European Union from the political institutions in March 2019, but to remain within the single market for a further two or three years, would that then require the establishment of a new form of arbitration? Would it permit the jurisdiction of the after court or something like the after court, or would it require the status quo, as I think Sir David described it, of not leaving that jurisdiction during such a transitional period? To say to remain within the single market means being within the market playing according to the rules of that market as they are at the time. So does it mean that you are remaining within the single market on the basis of the rules as they existed at the moment when supposed exit occurs at the beginning of the transitional period, or are the rules to be the rules as they are developed in the course of the transitional period, and is the United Kingdom to have any say in the formulation of rules emerging during that period? Is it to be part of the legislative procedure? Is the court of justice to have jurisdiction? What is then to happen about cases which arise in the course of the transitional period? These are not hypothetical questions. If we are going to go down that road, we need to be very precise, and part of the difficulty is that the UK is presenting a wish list, but it is entirely forgetting that the others may have their own wish list or their own objections. As, for example, as I said, the Germans will object to any situation in which an individual does not have a right of recourse to a court. If I may and let Laura, what are the known knowns? The known known is that clause 1 of the European Union withdrawal bill says that the European Communities Act 1972 is repealed on exit day. Section 3 of that is the section in which it subordinates national courts to the CJAEU. If there is no national legal order in all of this, it becomes intensely difficult to then muse about what might be or what might have been if we are sitting at some time in the future. When one looks then at clause 6, it tells us that a court or tribunal, which I think is not actually defined in the bill, but there we are. That is another amendment that we will have to try. A court or tribunal is not bound by any of the principles laid down or cannot refer any matter to the European Court on or after exit day. In a sense, what is the agenda on a negotiation? Do we look at the bill as some kind of statement of this? Is this our set of cards on the table from the UK Government's perspective? Or is it the rather more ill-defined proposals in the proposal papers when we know that there is a gulf, a great gulf between the positions currently of the UK Government and the EU? Can I just say that it is initially attractive to see a transitional period as a very big part of the solution to some of these difficulties? I think that it is psychologically appealing to imagine a gradual slope so that the influence, say, of the European Court of Justice would decline slowly and gradually and would all be able to adjust. Without using emotive language about cliff edges and so on, I think that it is probably not possible to do even this part, which is dealing with the jurisdiction of the Court of Justice, without some step changes. There are going to have to be some situations in which you could do something yesterday and you cannot do it today. There are going to have to be dates like that. This is a very small part of all the many negotiations that have to take place, and there are many arrangements that have to be made. I am just going to make one point, which is that a transitional deal says to me that the deal that we will have to have negotiated by this time in one year will have a period over which we transition. If that is the scenario, then I do not really have anything else to add. On the other hand, if it is a transitional deal where we are basically saying that we want a lot more time to be able to get through these nitty-gritty details, then we will need the unanimous consent of all the other member states, as article 50 requires. Those are two different beasts, but as far as I understand transitional deal, it is that we have to have negotiated everything in that two-year time frame to allow European Parliament and perhaps national Parliaments to have their say as well. Then we have some sort of transition, which again is a little bit of a vague concept on perhaps someone's wish list, because I do not understand what it is. One possibility is that 30 March 2019 marks a political point of departure, a clear date, as Laura described it, where we cease to be members of the European Union, but it is conceivable that if the will was there and if the bill before the House of Commons was amended in the right way, that could be confined to a political separation at that point, and that the other points' processes of separation could follow over a two or three-year period, and that perhaps might be relevant to the point that you have just said. That is a political negotiation settlement at the end of the day, but of course going back to the question about staying in the single market and staying in the customs union, if the CJU comes down with a decision on a reclassification of a product that has flown in from the United States and lands in London or comes to Paris, well, are we beholden to that in that transitional period afterwards? The answer to that, in my opinion, is absolutely yes, we'd have to be, but we wouldn't have the political say over it, because we go back to the question about whether or not we would have the judge, the advocate general, etc. I'm sorry. Well, even before you get to that stage, let's assume that something like the BSE scare arises in the course of the transitional period, and regulations have to be made for the confinement of traffic of animals or something of that nature. These regulations have to be made tomorrow. Is the UK to be there? Is the UK expert? Are the UK experts to be part of the committee that decides what place does the UK have, not just in the judicial evolution of the single market, but in the political and administrative evolution of the single market? If you say, well, we're out politically, but in legally, what about these situations which can blow up quite quickly? That's why the second part of my initial question referred to the Eftacourt, because clearly the countries that are in the European economic area and not members of the European Union, like Norway, for example, are in a position where they have to apply the law, as defined in the European Union, but the supervision of that is in the hands of the Eftacourt rather than the ECJ, and they are not political members and have no political say in those decisions. In the background, extensive political involvement in the evolution of EU law, which they are then obliged to transpose into domestic law, but they are represented on many committees. They have a political input into the creation of EU law, which they are then going to have to apply themselves. That essentially was my question. Is that in any sense a model that the United Kingdom could apply? I would say certainly is a model, but you have to know what the model contains. If what you're saying is, well, we don't want to be ruled by Brussels anymore, well, are you saying that, well, we're outside this all together? Are we going to participate? In what way are we going to participate? Remember that after the EEA agreement is thought by, particularly in Norway, to be a rather unsatisfactory agreement from their point of view, and there are considerable difficulties in the process of transposition of EU law into Norwegian law. I don't know that that is an attractive example, but it's an example applying to Norway, Iceland and Liechtenstein, of which only Norway is in any sense a major player. I'm afraid we're going to have to move on in order to get other members' questions in. I'd like to move on to the trade agreement with Canada, but just briefly before that, what would happen in the event of their being no deal reached? Taking aside the serious economic consequences, what would the implications for disputes be if we get to Brexit day and there isn't a deal to be ratified but we have left? I'll begin and anyone who wants to chip in. The supranational relationship that we have with Europe will cease to apply, because article 50 says that you get to the end of the two years and if there is no agreement, the treaties cease to apply. Therefore, that supranational relationship is one of public international law. If it's public international law, there's a cascade of various arrangements, all of which would have to be done in a scurry and a hurry. Things such as the WTO arbitration arrangements or the law of the sea issues or other things in connection with all the various types of arrangements that you could imagine, as well as, apart from the trade elements, setting up bilateral agreements or multilateral agreements with EU member states to deal with things like family matters or something like that, signing up to the Logano convention would be one clear issue that would have to be dealt with, but all of that takes time, so there would be some difficult sleepless nights. However, as Sir David has pointed out in the past, there are instances where, if the heads of government manage to get round a table and agree something, they can then register that agreement, even though it is not a formally approved treaty, they can register that agreement with the UN and then try to hold it to it. That was employed after Maastricht in 1992 and also Denmark, yes. David Cameron also attempted to do exactly the same thing and did do the same thing in a substantive way when he negotiated the attempt to modify the treaties on their application to the UK before the referendum. It is very important to understand just what the WTO does and what it does not do. Under the WTO agreement, you have certain rules. You cannot apply a more favourable tariff to one country than to anybody else. The exception is a customs union. Assuming that we drop out the cliff edge, we go over the cliff edge, we are no longer in the customs union. Therefore, formally speaking, the EU has to apply to the United Kingdom the same rules as they apply to anybody else as regards tariffs. Tariffs customs procedures are important for the general trade in goods but most particularly for the passage of components crossing the frontier several times in the case of building motorcars, for example. Then there are very complicated rules of origin that apply, which are eliminated by the EU customs union. Then you are only talking about goods. In particular, you are not talking about services, which is the most important element in the UK economy. There is very little in the WTO agreements that are called trips and gats, which are about trade and services, but it is very limited. You suddenly have a situation in which there are no rules, except perhaps on a very limited area. I think that that is the most important thing to realise about the cliff edge scenario. On the WTO's side of things, when you are selling your goods and it gets stopped at the border, so from between Dover and Calais and it gets stopped for the X number of times and it is costing you a lot of money, what can you do about it as a company or as a person? Under WTO rules, not very much other than lobby your government as much as you can, raise it as a political point and hopefully they will take it through the dispute settlement process and you are on the outside of that as an individual. In terms of being able to assert your rights etc in a court, you do not really have that if the fallback is WTO rules, but that is the trade stuff. If we are talking about citizen rights as well and what happens to the citizens afterwards, from what I understand with the repeal bill in its current form, all the regulations, all the decisions, all the directives that are in place with regard to EU citizens rights here and EU citizens rights in the EU, they would be grandfathered through, so they would still be the rights in play and you can assert them in court, albeit just here, not before the European Court of Justice, whether they would change as a different matter. On a somewhat more positive note than falling off the cliff edge, I am wondering the comprehensive economic trade agreement with Canada, the mechanisms at Scotland. How comparable are they to what the UK Government seems to be seeking? It seems in some aspects of the rhetoric and some aspects of the position papers that CETA is comparable, the mechanisms that are included in CETA are somewhat comparable to what they are aiming for. Is that the case? It is true as far as trade is concerned, but you are saying nothing about the case, the citizens' rights, workers' rights. You are saying nothing about the situation of Mrs Bobadio who qualified in picture restoration in Britain and wanted to do picture restoration in the Prado. It says nothing about that and that is what the vast majority of the case law of the Court of Justice is about. It might be helpful to get on record the alternative arbitration mechanisms that there is talk of falling back on. It is not just with Canada. I believe that there is one to do with the association agreement that the EU has with Ukraine, for example. I do not think that those are widely understood, so I do not know again for the benefit of the non-lawyers if someone could just explain them. I have got some experience, not a great deal, of international investment arbitration. It is extremely time consuming and it is in general extremely slow. There are a lot of complaints about it and some countries have withdrawn from what is called the XID system for settlement of investment disputes. I would not recommend it if I were talking to an individual citizen. I would not recommend it as a means of settling their disputes. First of all, you have got to choose your arbitrators. They have got to have the backup. Many of the arbitrators in investment arbitration have their own offices and their own assistants. I do not know what they do. Let us think of the 25 cases that went from the UK courts to the court of justice. It is not a matter of convening an ad hoc arbitration tribunal. They have got to have backup. They have got to have staff. The FFTA court has three full-time judges and a permanent staff of 20. That does not include translators. If the president's principal assistant in the FFTA court said that the UK were to join, they would have to increase their permanent staff to 50. It is fanciful for me. I hope that I am not going to live to regret this, but we are wondering if we could have a shot at some kind of list that we could pass to you in answer to your question about what are the bespoke mechanisms that are out there. We are largely talking about trade disputes and disputes under trading agreements. If I am right about that, we could do a bit of research on that and try to produce some summary of what we have been able to identify. I do not know if that would assist. I am sure that members would find that helpful. Just before moving on to the next member's question, my understanding is that many of the arbitration panels of judges convene behind closed doors and that there is a lot less transparency than if something goes to a properly constituted court such as the ECJ? In the investment arbitrations, the parties that are normally a corporation and a Government, they can say whether they want any part of it to be revealed, but the proceedings before the award are in private and we get confidential. I think that we could spend an awful lot more time on that as well, but I did have some questions. It was about the withdrawal bill in particular. We have talked about some of the position papers. We have brought this up in the committee before as an issue where some of the positions that have been put forward relate to matters that are devolved to the Scottish Parliament. It would be interesting to get a legal perspective on if the negotiations are based on some of those position papers that relate to specifically devolved issues. What will happen to that should an agreement eventually be reached and if it is done on the basis of what is in those papers? What does that mean for Scotland? Oh, I am being nominated. You pose a very interesting question. As you know, international agreements, brackets including the EU, are reserved to the United Kingdom under schedule 5 paragraph 7 of the Scotland Act 1998. Therefore, formally, in terms of the agreement, the Scottish Parliament is outwith the competence of the Scottish Parliament and the Scottish Government to be part of that discussion. I think that this is where we may reflect on parts of the bill which talk about things that are outwith the competence of the Scottish Parliament and in particular what happens under clause 11. However, I do not know if we want to get into that particular thicket today because it is problematic at the very least. I think that there are a number of options which we have put forward. I hope that you have seen our memorandum of comments on the bill and those options apply to those provisions in section 11. In the final analysis, the issue of the politics comes into play and the role of inter-governmental relationships in that is a key one. The role of the JMC and the participation in the JMC is one where the Scottish Government can make its points most cogently. The question is how can we encourage the JMC to be the kind of organisation that everyone can stand back at and say that it is a functioning organisation? I know that there is an up-and-coming meeting of the JMC, so it will be for the UK ministers and Scottish ministers following that JMC to express their satisfaction with the process. One thing that you need to think about is the position of the Scottish legal system and the Scottish judicial system and the Scottish prosecution system in the mechanism of what are called JHA. The European arrest warrant, the enormous number of cross-border information systems, and what we have already touched upon are the various conventions and regulations about recognition and enforcement of judgments. That is directly Scottish competence. Scotland has an absolute right to know what is going on and to have its own say on it. You raised the question about the cross-border issues. Do you think that the withdrawal bill, as it stands at the moment, would give that Scotland has sufficient protection within that in terms of continuing to tackle cross-border crime? Would you see that as an attack on the Scottish legal system? No, it is because it is put together by people who do not know that these problems exist. As somebody described it, somebody described that as an undergraduate essay that would have failed. That is the UK position paper that you are referring to. On enforcement and dispute resolution. I will ask the question to Rachel Hamilton. It is a point that I am interested in about the position papers. Obviously, there is a lot of flesh to be put on the bones of the position papers. Do you think that that is deliberate because of the negotiating position that the UK Government is in and neither side wants to give too much away? From what I hear that part of the difficulty is that the people who are writing these position papers and the people who are negotiating do not want to hear from the experts. I know of a number of people who have offered help and been refused. There are of course the position papers and the partnership papers. The partnership papers, in some instances, are an attempt to disrupt the sequencing plan to take the current negotiations beyond the three issues with which they are supposed to be concerned and only concerned. In other words, to try to head, if possible, in the direction of what the position is to be about trade. I have seen some arguments that it is necessary to do that. For example, resolving the position about Northern Ireland would be assisted by knowing what some of the answers are on questions about the single market and the customs union. There are attempts going on to persuade the EU negotiators to enter into discussion of some issues that more properly belong in the next phase of negotiations once the first three primary issues have been resolved. One of the things that I think is striking as you are reading a lot of this material is that questions of dispute resolution really belong with the ultimate solution for trade. What is to happen about trade and provision of services and so on? Once we know that, dispute resolution may become easier to resolve, trying to do it at the moment, which is certainly the case in the partnership paper, there is an element of cart before horse about that. We have now come to the end of the session. It has been a fascinating session and there is probably much more ground that we could cover. I was about to ask Mr Clancy if there were any other points that you would wish to make and ground that you felt we hadn't covered. We've discussed a lot about the CGEU as we classically understand it in the terms of dealing with references and citizens' issues and trade matters. I wanted to draw attention to two specific points. One is the issue of the role of the CGEU in Euratum and the way in which the adherence of the CGEU in that treaty is effectively the reason for withdrawing from Euratum. That is problematic on a number of points, not only in terms of civil nuclear usage but medical nuclear medicine. The difficulties that are going to be created if we do not have a single market for the import and export of radioisotopes and things like that in terms of health, as well as the more strategic issues around civil nuclear matters. The second point is about the Unified Patent Court Agreement, which again is another treaty agreement that is amongst the EU member states for there to be such a body. Of course, the UK has a branch, a chamber of that court, which will be situated in London. I think that the Parliament is going to be asked to ratify the agreement. There may indeed be an order sculling around at the moment for the ratification of that agreement. Although it is in difficulties in Germany, I believe at the moment, the point is that it is not a court in terms of a court or tribunal under clause 6, because it is actually a separate international body. Again, the impact of CGEU in it means that it is effectively dobbled with a sign that says that we do not want this either. We have to be careful about simply identifying the initial CGEU. I think that the UK Government should be careful about identifying those initials and simply saying that that is something that we do not want under any circumstances. I think that we have got to be much more circumspect. I thank our witnesses for coming today and I shall briefly suspend the committee. I am going to private session.