 Good morning, and welcome to the ninth meeting of the Constitution, Europe, External Affairs and Culture Committee. We have received apologies this morning from Maurice Golden MSP and Mark Ruskell MSP. At 11am today, we will pause for a short act of remembrance, which will take place throughout the Scottish Parliament. At this time, we will observe a two-minute silence. The first agenda item is our inquiry into the UK internal market. The aim of the inquiry is to consider the implications of the UK internal market for Scotland, including how devolution will work going forward. On this topic, we will hear from Alison Douglas, chief executive of Alcohol Focus Scotland, David Thomson, chief executive of Food and Drink Federation and Barry Tolan, advocacy manager for Scottish Environment Link. I welcome you all to the meeting and thank you for your submissions prior to the meeting. I will move straight to questions. I can remind members if they have wished to direct a question to a particular member of the panel if they could see at the start. We are constrained by time this morning, and I ask witnesses and my fellow committee members to be succinct and where possible. If I could maybe open the questions this morning with something from all of the submissions that you gave us that highlights the risks of the UK internal market and that Governments may be more hesitant to look at innovative policies to tackle particular issues, by way of example, perhaps the deposit return scheme. That would be in order to avoid competitive disadvantage in Scottish businesses. The risks are that a lower regulatory standard might remain in order to retain a competitive internal market in the UK. I wondered what your thoughts were and how we could avoid that happening. If I could go to Barry Tolan first, please. Hi. I thank you to the committee for the invitation to appear today. As you mentioned, the Canadian Air Scotland environment link has taken an interest in this issue because of the potential effect that it could have on environmental standards in Scotland. We outlined in our submission that it is particularly important that we have strong common frameworks developed between the four Governments involved. I suppose that a lot of what I was saying today is speculative. We do not have any case law as such. We do not quite know yet how the internal market will operate and practice. However, we are really clear about that. We need to see strong common frameworks. It is something that, over the past year or so, we have not received much in the way of public update about the development of those. We see that common frameworks could provide a baseline of common minimum standards—in our case, particularly for the environment that all four nations of the UK could agree to. That would help to clarify some of the uncertainty that I think there is at the moment. I thank you for inviting us, convener. I represent the food and drink industry, and I guess there are a couple of things on that. First, it is vitally important for Scotland's food and drink industry that we have a clear opportunity to access markets across the United Kingdom. To some extent, the internal market act provides us with that. However, you are right to point out that there are many different ways in which the internal market act interacts with both legislation. How that works and the implications for businesses are really unclear points. As we highlighted in our submission, something like the deposit return system is one that we can already point out—numerous complexities. Those are the kind of things that businesses will worry about in terms of how they comply with legislation in different parts of the UK. Thanks for the opportunity to meet the committee this morning. It is clear that, over the last decade and more, Scotland has taken a much more progressive approach to improving public health than the UK Government has. At the moment, we have had for a decade in Scotland very comprehensive alcohol strategy and commitments to make further progress, for example, on alcohol marketing. There is an absence of a strategy on alcohol at UK level. In that context, the legislation has the real risk of significantly constraining Scotland's opportunity to make further progress on what continues to be a profoundly damaging public health problem. Those concerns are echoed by colleagues on smoking, Ash Scotland and the Beastly Action Scotland. I think that Barry is right that, in practice, the common frameworks are the key opportunity for us to try and manage and limit the impacts of the legislation. Nevertheless, we feel that it is severely curtailing the Parliament's opportunity to make progress on all three of the world health organisations' best buys for public health. They are increasing the price, controlling the availability and restricting the marketing of those products. I will move to questions from the committee and I will go to Mr Cameron first. Thank you, convener, and good morning to the panel. Thank you all for your written submissions. I think that we all accept that we are at a very early stage in this process and a lot of what is involved is finding our feet and seeing how this legislation and common frameworks plays out. That said, can I focus on the mutual recognition principle and ask you if you are able, notwithstanding a bit of uncertainty, to give any concrete examples of products—and I am particularly focusing on alcohol products and food and drink in general—and products that you are concerned about in terms of having to adhere to one set of regulatory standards from one part of the UK and not in Scotland, as they were? Is there anything in particular that you are worried about? I think that all alcoholic products are of concern because, as they stand, there are fewer labelling requirements required on a bottle of vodka or a can of beer than there are for any other food and drink and that is an anomaly that is a hangover, if you like, from the EU context where the alcoholic products were accepted from the labelling requirements on all other food and drink. That is just completely nonsensical. Why would you require more information on a bottle of water or a can of milk than you would on alcoholic products that are, by their nature, carcinogenic and cause a range of health arms? That was an anomaly that we had very much hoped could be addressed. That would have been an opportunity with the UK leaving the EU that we could make progress on that. However, as things stand, we understand that the UK Government is planning to consult on a limited range of measures on alcohol labelling, but it would go far short of what we would hope and expect to be on alcoholic products, including health warnings, for example. I do not know if Mr Thomson wants to come in here. Yes, if I could, thank you. Actually, there is nothing to answer your question directly. There is nothing that we are concerned about on mutual recognition at the moment. The key question is, as legislation diverges within different parts of the UK, and in particular with the Scottish Government's commitment to continue EU regulation and the UK Government, we really need to see what their stance is on that as we go forward. If it becomes more of a divergence in regulation, it is not about higher or lower standards, it is just in different regulation, then there is a likelihood that, if that became an issue where it would not allow goods to be placed on the market, for example, in England, that would be of significant concern to the Scottish food industry, and vice versa, of course. Thank you. I do not know if Vary Tollin wants to come in here on mutual recognition. I think that one of the products that we would want to highlight from the environment sector is peat compost used in horticulture. It is something that the environmental NGOs have been campaigning for a long time for a ban on the use of peat compost. We need that to protect our peatlands, which are vital to the carbon store and the sink, and it is crucial to our efforts to reduce Scotland's climate emissions. I think that there are proposals in the programme for government to consult on a ban on peat compost in Scotland, but that is something where, say, if peat compost was allowed from suppliers in other parts of the UK that it could become difficult in practice to limit its use in Scotland, given the principle of mutual recognition. That is something that we have highlighted as a concern. On peat in particular, I am interested in this issue. Am I right in saying that the UK Government has also committed to a ban from 2024? Is that your understanding? Yes. I think that we just would like to see action taken as soon as we can. Welcome to the panel. Thanks very much for the evidence that you have given us in advance. It has been really interesting working our way through it. Can I follow up the questions that Donald was just asking about different impacts across the UK? First of all, come to Vary Tollun. Just to follow up that issue about peat discussion is really at the forefront given that we are in the middle of COP26 or towards the end of COP26 now. That issue about your submission says that the UK Internal Market Act could pose challenges for Scotland's ambition to implement the ban on the sale of peat for horticulture in this parliamentary session. You have just said that you think that this may or may not be the case, but can I ask what interaction you have had with both the Scottish and the UK Governments about that particular policy issue and to what extent have you been able to talk to parliamentarians in both parliaments as well to even start that conversation? That is something that we have noted as an issue, in terms of engaging with the UK Government. That is something that we work with partners across the UK on, particularly the greener UK network based in London. It is not an issue that we have had direct correspondence with the Scottish Government about, but it is certainly something that is on our radar that we would be concerned of any potential chilling effect that the legislation could pose. I think that the Scottish Government has intended to consult on this issue this year, so that is something that we would raise our concerns in that forum. Can you give us examples of other environmental challenges? You have talked about EU standards that we are trying to ramp up environmental standards. Can you give us examples of other kinds of products where we have a position in Scotland where we are trying to meet environmental standards, which could be for nature reasons or it could be for net zero reasons, where the UK Internal Market Act could cut right across that? What are the things that you are particularly concerned about? I think that the deposit return scheme has already been mentioned, but it would also affect any efforts to limit the use of single-use plastic items, so perhaps something like takeaway containers for food and drinks or anything that falls under that bracket of disposable plastics. We have seen Scotland already take a step ahead on banning plastic cotton buds. It is actions like that where we would be concerned that there could be a limiting effect given the UK market regulation. We have some other concerns that are probably not directly products, but there are areas where Scotland has gone above and beyond to protect, for example, certain wildlife species such as Red Squirrel. I might come back to that later, but Scotland and the UK were able to give extra protections to Red Squirrels, but not necessarily in other EU countries. We have concerns that perhaps going above and beyond in examples like that might be limited. That is probably more relevant to the non-discrimination principle, so I might expand on that later. Okay, thanks. To pick up, but to move sideways, can I ask both the other representatives, Alison Douglas and David Thompson, about the challenge that you have both highlighted in terms of alcohol issues and the sale of products? There is a very striking statistic in the evidence about alcohol specific death rates, which is 68 per cent higher for men and 78 per cent higher for women in Scotland, compared with England and Wales. It is a big issue about responsible alcohol drinking. I ask both of you about the discussions that you have had with both Governments, because there are certain products that are made in Scotland that are part of our core economy, but there is also something about responsible drinking. It is that discussion about getting the balance right. I would be interested in hearing, maybe first from David Thompson, about, again, what discussions you have had with both Governments on the basis that this public health is a devolved issue and what engagement you have had with both Governments about that issue, because there is a debate in Scotland, but quite a strong ambition to address this issue? I am going to have to take the fifth on that. We are a food and drink federation, but we do not actually represent alcoholic drinks at all. If it is helpful, I can talk about public health more widely and, in particular, obesity regulation. If that would help, I will pass over to Alison. I apologise on that. I was misreading the evidence. Please come in, Mr Thompson. I think that that is all relevant to where we are going. Okay. That is fine. We have a very small number of alcohol cases, but not actually in Scotland at the moment, so we have not really been engaged in that dialogue. On wider public health and nutrition angle, we know that there are bans on advertising being proposed and implemented in England, and the Scottish Government had its own previous regulation put forward, then postponed because of Covid, but we know that that is intended to come back, but it is mentioned in the programme for government this year. We have dialogue with both the UK Government and the Scottish Government, Food Standards Scotland and the Food Standards Agency, about that and a whole range of different things. I have already given evidence on a number of common frameworks as well. It is clear that the civil servants themselves are still trying to work through what the implications are, and they are very keen to make sure that there is not, as you said at the very start convener, a disadvantage for Scottish businesses when selling into Arama. Apologies for any confusion. Sorry, that is probably my fault. I think that I was looking at the comments that you have made about deposit return scheme, and I was putting both of you as witnesses together on the issue of drinks and making assumptions there about what kinds of drinks. Could I get a comment from Alison Douglas about that point that I made at the start as well about different policies and different parts of the UK and the tensions for implementation? Yes, absolutely. I think that the whole of the UK has a significant alcohol problem. Scotland, as you say, is a bit more acute than England and Wales. However, the Welsh Assembly Government has also considered that minimum unit price is an appropriate and proportionate response to the scale of the alcohol problem that it is facing. The Northern Ireland Assembly is also actively looking at minimum unit pricing. That is a very clear example of where Scotland, because of the chronic and acute nature of our problem with alcohol, led the way on minimum unit pricing. That was in part a creative response to the fact that we did not have other economic levers such as alcohol duty at our disposal, but it ended up that, in scrutinising and identifying that mechanism, what the Scottish Government realised was that the policy had a more targeted effect on the people who suffered the greatest harm from alcohol. That is an example of where the flexibility to bring forward a different policy in Scotland has been a significant advantage. We have seen that policy deliver a reduction in consumption of 3.5 per cent in the first year of operation, a 10 per cent reduction in alcohol-specific deaths. It would be a profound loss if we are unable to improve that policy. The Scottish Government has talked about potential problems about rating minimum unit price because of the internal market act. We all know that price on its own is not going to turn the tide of alcohol harm and that we need to do other things. The Scottish Government is committed to consulting on alcohol marketing, for example, as part of the next year. That is very much something that we would support and that we would hope that the Scottish Parliament could make significant progress on because of the clear evidence that, particularly when it comes to children and young people, that influence is when they start to drink, how much they drink and whether, in later lives, they go on to develop an alcohol problem. I would like to follow on in that vein of questioning. As you have just said, Alison, that devolution has given nations-specific organisations an easier link into the decision making process and policy-shaping, specific to the needs of each of our nations. I am interested to hear from all of you as to how you think that legislation will impact on your ability to do that. I am interested in how you described at one point in your submission a race to the bottom, so, if you could expand on that, too, please. For the race to the bottom, what we are concerned about is that, given that the market access principles set this new common baseline, that if one part of the UK was to decide to lower its standards and currently we do not have, there is nothing to prevent that from happening, that it would perhaps put other nations in a position where they feel they also have to lower their standards in order to maintain a competitive disadvantage. I think that I was saying earlier that that is why we might come to it later on, but common frameworks, we would see as being a mechanism which could provide a common baseline across the UK, particularly in our case, environmental standards, in which there are minimum standards agreed to. That would be a kind of backstop preventing this race to the bottom. It is something that we are concerned about. It could be, for example—I mentioned red squirrels in answer to Ms Boyack's question earlier—if, for example, some protections on particular species were perhaps to be lowered to allow for development or other activities could take place, it could cause issues in other parts of the UK. With regard to how you think you will be able to influence specific policies that Scotland and its differences require? Yes. In terms of influencing, I think that that makes it all much more difficult. It adds a layer of complexity on to everything. We would certainly still look to raise issues with MSPs in the Parliament and with the Scottish Government where we feel the internal market is perhaps causing problems or if there are technical issues that need to be overcome, but I think for us at the moment it is unclear exactly how that engagement will happen to stakeholders. We would like to see more clarity from the Governments about how any disputes will be resolved in practice at the moment. That is not clear. I think that we have one experience in Scotland of the use of litigation to deter and delay the implementation of progressive public health measures, which was conspicuously in relation to minimum unit price, which raised a five-year delay in the policy. In our view, because of inflation during that period and since we have seen the erosion of the impact of that policy in practice, internationally it is well established that the use of litigation is a common tool for industry trying to protect their interests, but not more than that it is the fear of litigation or the risk of exposing yourself to litigation that can cause the chilling effect that we have talked about. There is a huge opportunity cost for an administration in defending a case. While we were going through that five-year process with the various courts, there was action that we would have liked to have seen to complement minimum unit price action around marketing, labelling, controlling the availability of alcohol, all of which simply had to be put on hold because of that on-going legal process. I think that we really should not underestimate the effect of that, and as I said, the Scottish Government has talked about potential risks around minimum unit price. Despite the fact that minimum unit price was explicitly raised during the passage of the bill in Westminster and the UK Government saying that it would not apply to minimum unit price, that still seems to be a moot question, both among academics and with the Scottish Government. That is a real concern. Also, people have raised the issue about the common frameworks and the transparency and the ability of civil society organisations, voluntary sector to scrutinise and input into that process. That would be a major concern for us. Clearly, we have limited capacity. We operate in Scotland most of what we are trying to influence is here in Scotland. Like Environment Link, we would be collaborating with colleagues at the UK level to try to influence the UK Government, but that is an overhead for us. That is beyond what we can do in practice. All of that limits our ability to be part of the process and part of the decision that we can make. How do you think that your organisation will have to shift to be able to contribute to policy that is being questioned from a UK-wide perspective? I am in the lucky position, as compared to Barry and Alison. The FDF Scotland is part of the FDF at the UK level. We have the ability to advocate for the industry at the UK level. We also have a sister organisation, FDF Cymru. In Wales, we can do that as well. We work very closely with our colleagues at the Northern Ireland Food and Drink Association, of which our submission is part of. We have the ability to advocate for the industry in different settings. It is not really going to change what we are going to do, because the Scottish Government is still going to set standards and approaches that will be different than Wales and England and in Northern Ireland. For us, I do not see that changing an enormous amount. It depends, I think, on what the reaction is by the Governments across the UK on how they work together on common frameworks, which they have done on labelling, which they are going to do, but they are working together on extended producer responsibility and a range of things, or whether they want to plough their own furrow, which is currently what is happening on promotions on public health and promotion restrictions. We think that we are still going to have to be alive in all those different arenas, and we think that there will still be different outcomes. Thank you, David. I have just one supplementary question to you. Vary, in her evidence, talked about the race to the bottom. Do you have any concerns that Scotland's high-quality food and drink may get caught up in something similar? In food and drink, there is no evidence of a race to the bottom at all. In fact, it is probably a race to higher standards. Is the opportunity even? It is really important to understand, from a food and drink perspective, whether that is a supermarket or a food supplier. They put in place incredibly high standards, and businesses match those. Certainly, there is no appetite from consumers across the UK from lower standards at all. I can understand where people are raising those concerns, but in terms of food and drink, I do not see that and there is certainly no evidence of that to date. I have a question for Ms Douglas. In your written evidence, you say very directly that the act undermines the ability of devolved legislatures to legislate to protect public health. I am interested in what you say there, and I think that there will be a lot of people in the devolved legislatures who would share that concern. Can I ask if you could maybe just elaborate for those who maybe do not know what the act is or what it does, why you have that concern in terms of how you feel it might restrict future legislation? You will forgive me, because I am not a lawyer. My understanding of how things operate or how they will operate in the future is not a legal one, but I have talked to lawyers about it. My understanding is that it may not proscribe the Scottish Parliament from legislating, but it would be severely limited in the practical effect of that legislation. The net effect of that is to significantly undermine the intended impact of the legislation. If the Scottish Parliament legislated, for example, on alcohol labelling, because that would not apply to any products that originated from any other part of the UK or any other products that were imported through in other parts of the UK, the only organisations to which it would apply would be Scottish-based organisations. I do not have figures on what proportion of the total sales that would impact, but it will be a small percentage. It is about the kind of deterrent effect of why you would legislate if the only products to which it would apply would be a very narrow set of products. Therefore, you would not be able to have the policy effect, and all that you would be doing would be disadvantaged Scottish-based companies. From that point of view, it curtailes the ability of the Scottish Parliament to make meaningful change and progress on protecting public health and, indeed, the environment, et cetera. You have mentioned some of the potential areas of new legislation around alcohol that it could affect. I do not want to try to ask you to speak for other areas of organisations that represent health. Do you feel that there are other areas in areas of public health where the same concerns are being or might be expressed? Absolutely. Ms Minto's question was about our ability to participate in and put the case in Scotland and at UK level for progress on public health. Our colleagues in Ash Scotland and the Beastie Action Scotland share our concerns, but all of us are struggling to understand the potential impacts and to participate in the process. That is also true in relation to the common frameworks, which are really opaque at the moment, but there are three different common frameworks that would apply to labelling, for example. That is extremely challenging as a third sector organisation to engage with. I noted in the material that the committee has before it that there are estimates of the number of common frameworks that range from 21 to 33. We do not even have accurate information on how many there are, what stage they are at. Last UK Government information came out in May of this year, so presumably things have changed significantly since then, but we do not know. So absolutely our concerns are shared by other parts of the public health third sector. I was also interested in something that you said about how you felt, if I do not put words in your mouth, that if the changes implied the need to try to influence action at Westminster more than you would have to do at present, did you say that that would present a resource issue or a challenge or that that would be more difficult to do than it is to try to influence all of it? Absolutely. I think that in terms of lobbying, clearly private sector organisations have considerably greater resources than the third sector has. We have neither, as things stand, the expertise nor the capacity to significantly engage at Westminster. I think that similar concerns were expressed 300 years ago when they were written on the side of the Parliament about the need to reach the length of London. I wonder if Varey would be able to comment briefly on something that the Croft and Federation said in their written evidence where they talked about how they did not feel, although they accept the need for an organised market. That must be designed and agreed by all four UK Administrations, not imposed by one. Varey, you touched on some of those issues, but do you feel that either legislatures or organisations such as your own have been involved in the design of the proposals around the single market? I would agree with a lot of what Alison has just said, that we are also limited with capacity and our expertise to engage with the UK Government. I would say that it is difficult for us to be part of those conversations to influence. We have done what we can and responded to consultations when the opportunity has been presented, but it is much more difficult. We would certainly want to see common frameworks that are agreed collaboratively with all four Governments across the UK. That is the best way to ensure that they can be effective if they are agreed jointly. That is what the intention has been set out for them to be agreed jointly. Alison said that it is pretty opaque at the moment for us about what is taking place. We would very much like to see more information coming forth from both the UK and the Scottish Governments about what has been taking place over recent months on the development of common frameworks. Just a quick supplementary to David Thomson. It is just a question about you talked about different standards and different parts of the UK impacting negatively on producers. I wanted to just go towards the end of your submission where you have talked about if one UK nation increased or lowered product standards in its own jurisdiction. There might be areas in which enhanced protection might, in principle, be desired. Do you want to say what you meant by that? Our job is to make sure that we are working in foreign on behalf of the food industry, which wants high standards and it wants those standards not to be undermined. Philosophically, there might be a situation in which one part of the UK legislates in a way that the food and drink industry thinks is detrimental to our business model and reputation across the whole of the UK, not just in... In those cases, you might easily make the argument that undermines the progress and the good reputation of our great food and drink industry. In that situation, you might say, well, actually, is there something that we can do to provide that protection to the rest of the rest of the UK's food industry, whether that's in England, Scotland, Wales or Northern Ireland? What would that mean? What do you mean by enhanced protection? Well, I think that it would mean that in a way that perhaps the Internal Market Act or the common framework, in particular the Internal Market Act, don't allow it, it would mean that there might be things that we would make the argument that we might want the car out of the Internal Market Act because of the one legislature undermining the standards that we're... Okay. To draw the parallel, you've also talked about a trade without the UK. For example, there have been concerns raised about potentially new UK trade deals with other parts of the world that would have lower environmental standards. How would that impact on UK products? You've talked about worries about standards changing within the UK, but what about imports from the rest of the world that potentially were lower? What about the impact on products being produced here? Are you concerned about that? Yes, absolutely. That's widely held across the food and drink industry. There's a significant concern at the moment because the UK hasn't yet put in place the import controls and restrictions in the trade and co-operation agreement, so that's one element of concern. In some ways, that helps because we can import packaging and raw materials that we need to produce food here, but in the other side, UK products that are produced here are already not competing on an even playing field with imported products. That's part one. Part two is if a trade deal is done with a country that has lower standards and that impacts on domestic production, then if that can be imported into any part of the UK and then passed across the whole of the UK, then yes, there is a specific concern that might, for example, undermine the high production standards that we have in Scotland and in other parts of the UK. I want to, if I could ask a supplementary question. It's mainly for Alison Douglas. We've talked a lot about new innovations that we might want to introduce post-Brexit and under the new common frameworks. However, you also mentioned that you would consent about the erosion of impact of some of the existing innovations. If we take minimum unit pricing, as an example, the previous Kenneth Armstrong, who was the adviser to the previous committee, highlighted in a briefing paper that the modification of that, such as changing the price to make it in line with inflation, will not be dealt with under the EU laws as were and the legislation as was. It will now come into the new frameworks. Do you feel that that could open up further litigation against the policy? We could end up with policies such as minute year in pricing, some of the smoking legislation in those areas going backwards from the position that we have now. Absolutely. That's a very real fear that we have under the internal market act. If existing legislation is substantially amended, it could fall within the scope of the act. There's no definition of what substantially amended means. It could indeed mean uprating minimum unit pricing. Obviously, the policy becomes less effective over time as inflation erodes its impact. When the policy was first introduced, or indeed when it was first agreed by the Parliament, I think I'm right in saying that 64 per cent of all alcohol sold in Scotland by the time of implementation, so because of that five-year delay, that had reduced to 50 per cent. If we look at the comparator for England Wales today, it would be 34 per cent. You can see that the scope and impact of the policy has profoundly changed since 2012. We are very much pressing for the Scottish Government to review the price, as it has undertaken to do, within two years. That hasn't happened due to Covid, but we are saying that, in order to make good inflation and to increase the impact now that we know that the policy has positive benefits without any significant unintended consequences, we should be looking to increase the impact, save more lives and decrease the minimum price to 65 pence per unit. We just don't know and we have this uncertainty over whether the Scottish Parliament could deliver that because of the internal market act. I don't think that there are any further questions from the committee this morning. I thank you all, Mr Douglas, Ms Thomson, Mr Thomson and Ms Rowland, for your contributions this morning. I will now suspend briefly while we change over the witness panel. Welcome back. Our second panel today will also give evidence in the UK internal market. The committee will hear from Michael Clancy, director of law reform, the Law Society of Scotland and Jess Sargent, senior researcher at the Institute for Government. I welcome you both to the meeting and, again, we are going to move straight to questions from our committee this morning. I can open with a general question about the impact of the UK internal market agreeing to UK common frameworks on the Scottish Government's commitment to align with EU law. Can I start with Ms Sargent on that? Absolutely. Obviously, common frameworks were originally designed without the UK internal market act that came later. There is a question as to what implications that will have for their progress in being agreed so far. It looks like that is not an impediment, although there is outstanding disagreement on exactly how the common frameworks will treat the UK internal market act. In terms of how that interacts with the Scottish Government's plan to keep pace with EU law, one of the challenges will be if the UK Government takes action to take advantage, as it would argue of its post-Brexit freedoms, to take action to make businesses more competitive compared to EU regulation. If the Scottish Government keeps pace with EU law in some of these areas, it will only be Scottish producers that are required to comply with the new requirements. Any goods imported particularly from England, if we think about whether the UK Government is acting for England only, will not have to continue to comply with the Scottish Government's regulations that are replicating EU law, which could put them at a competitive advantage, and therefore Scottish producers are at a competitive disadvantage. Of course, common frameworks, although they were thought about before the UK internal market act came into effect or perhaps even was a glint in the draft person's eye, where at the basis of common frameworks was the concept of the internal market. In October 2017, when the Joint Ministerial Committee agreed the principles for common frameworks, one was to establish them where they are necessary in order to enable the functioning of the UK internal market while acknowledging policy divergence. I think that they have been generally considered to be a success in terms of intergovernmental working between the UK and the devolved administrations. That is perhaps shown by the recent report, which was issued by the UK Government on progress in terms of common frameworks, just on 9 November. It was indicated there that up to 32 common frameworks had been agreed and that there were essentially three that were outstanding in terms of things such as the carbon capture and one or two others. That aspect of common frameworks is part of the concept of the UK internal market, and, as such, is being operated in quite a responsible and respectful way by the various parties to those common frameworks. It is also significant that a large number of common frameworks have been brought together without any hint of legislation, but simply on the basis of agreement between the Governments. That, I think, we could all agree, is a good sign. The impact on continuity, we indicated in our paper, which we submitted to the committee in advance of this session, that EU law is proceeding no matter what. As you saw there in the table, which my colleague Adam Marks produced, there are 1,356 basic adopted acts that have taken place over the course of last year and 734 amendments to existing legislation. There is an enormous amount of EU law that is being made whilst we are not considering them. You will have seen also, because I know that I still have to finalise the comments that we are going to make on the Scottish Government's statement, policy in connection with the continuity act, that, at the moment, the Scottish Government has not taken any action to align with EU law. How does that fit with the UK internal market act? Well, we do not know, because nothing has happened to trigger those provisions, but we do know that amendments to existing legislation will be captured by the two principles of mutual recognition and non-discrimination. When considering alignment with EU law, the Scottish Government will have to take into account very carefully the extent to which any changes that will be made will be captured by the UK internal market act. I think that that is probably enough to give any Scottish Minister a moment to think about what they want to align with and how they do that. A previous panel was from alcohol focused Scotland's food and drink federation and Scottish environment link. One of the concerns that they raised in their submissions was about dispute resolution. Within the context of the frameworks that dispute resolution, it is clear to businesses how that will take place in the future or where the challenges are likely to be against the common frameworks or the legislation itself. Will you be able to comment on that at the moment? I will go to Mr Clancy first. What an interesting question. If we are thinking about dispute resolution processes within the context of intergovernmental relations, the existing memorandum of understanding between the UK Government and the devolved Administrations is quite difficult to see how that would satisfy very many people on the outside. A dispute has to be first of all considered by civil servants. Civil servants take to ministers the idea to resolve the dispute, but ultimately it is a political decision by ministers as to whether or not the dispute is resolved. That tells us something about the problems of the current structure. However, as you know, convener, the co-process of intergovernmental relations has been under review and new provisions are still being finalised. There are moves towards greater formality in connection with intergovernmental disputes. We need to wait until those are properly finalised and published before we can make an assessment of them, but it will have to require elements of trust, which do not apparently seem to be present at the moment in this connection, and elements of independence, which I think all Administrations concerned are well aware of the types of views that we have expressed. Lord Dunlop made some comments about that in his report, which he did at the instance of David Cameron when he was Prime Minister. That report has not landed with the current UK Government in the way in which it perhaps had been hoped at an earlier stage. We need to see exactly what the final shape is, and that is a matter for the Governments to begin with. Absolutely. As Michael said, there are two elements to this. There is the political element, and one of the challenges about dispute resolution is that we have not deemed a lot of the common framework. We do not know what the dispute resolution is. We also know that, in the ones that we have seen, the final stage is escalation to the overarching intergovernmental mechanism. That is currently through things like the Joint Ministerial Council. We know that the four Governments are working together on this review. We have seen the progress report on that, which suggests that there will be this improved dispute resolution procedure, but because that still does not have agreement, that has not been implemented. There are questions at the political level. For individual businesses, particularly when it comes to how the UK Internal Market Act will be applied, there is still a lot of uncertainty. Rather than preventing regulations that contravene the terms of the UK Internal Market Act from getting on the statute books, it says that those regulations will not be applied to businesses that they should not be applied to. For example, if the Scottish Government passed a law banning chlorinated chicken, but it was permitted in England, the law would still say that chlorinated chicken is banned, but if something was imported from England, then it just would not be applied to that product. There is a question of who is responsible for determining whether or not these regulations should be applied and to which products. It might be as low a level as local councils and their food standards teams who may have to make these fairly politically contentious decisions that might have significant implications for businesses. It is not clear how those businesses might be able to challenge decisions that they believe are made wrongly, whether they will end up in court or whether there will be some sort of other process. We will not really know how that works until it is tested, but I think that there is still a lot that is quite unclear. I am going to move to questions from the committee. Mr Clancy, you have given a picture of how perhaps the considerations that have to go through the minds of a minister or others in the Parliament before legislating are more complicated than they were when the Parliament was first established. Of course, one of the other considerations in all this is Northern Ireland and the Northern Ireland protocol. If either of you, in fact, can say a bit more about the considerations that come into play there when Scotland acts? I am unmuted, so therefore it is me. The Northern Ireland protocol is in a bit of a flux at the moment, as we have seen, as the negotiations between the UK and the EU continue to try to refine—I think that the word renegotiate is probably prohibited—refine the terms of its application. What one can see in terms of the law relating to the Northern Ireland protocol is that there is quite a bit of law in the internal market act relating to it. Part 5 of the act deals with the protocol. Section 46 of that act requires an appropriate authority, which includes ministers of Crown and Scottish ministers and the other devoted administrations, to have special regard for the need to maintain Northern Ireland's integral place in the UK internal market. That place is, of course, to be within the customs territory of the United Kingdom and to facilitate the flow of goods in Great Britain and Northern Ireland. This is mirrored in the Northern Ireland protocol, which, in article 6, also seeks to protect the UK internal market. Section 47 of the act guarantees unfettered access to the UK internal market from Northern Ireland goods, subject to the somewhat minor NIGB checks that are found in the protocol. On goods transferring from Great Britain to Northern Ireland, however, the principle of unfettered access is slightly modified. The market access principle would apply subject to the extensive restrictions and processes in the protocol. However, we have to wait to see what the outcome of the discussions are between the UK and the EU and their 90 changes that will be made. I do not know if that is enough at the moment, Mr Allan, but you will be able to say if you want some more. No, I think that that is very helpful. I was just going to suggest the scene. I cannot seem to hear the session any more, but I am assuming that that is my cue to come in. The Northern Ireland protocol, as Michael was saying, and the UK internal market act have asymmetric effects. While Northern Ireland produced goods, provided that they are considered qualifying goods, can be sold in Scotland without meeting any additional regulatory requirements and without the need for any checks and paperwork. Currently, as it stands, as the protocol is written, and as Michael said, there are still some discussions going on about the exact nature of how that will work in future, but currently Scottish goods to be sold on the Northern Ireland market will have to both comply with EU law and also be subject to certain checks and paperwork. One of the things that Scottish ministers will need to bear in mind in the future is the potential for divergence between Scotland and Northern Ireland and the effects that that might have on the UK internal market. Essentially, it means that going forward, if Scottish producers want to be able to sell in both the Scottish market and the Northern Ireland market, they will need to comply with both the EU regime and the Scottish regime. At the moment, that is not a particular problem because the law is quite closely aligned. As we know, the powers that the Scottish ministers have taken in the continuity bill means that it is likely that there will be continued alignment. Therefore, those problems are likely to be mitigated on the Scotland Ni dimension. I am concerned about what it might mean for goods going from England, for example, to Northern Ireland, where there might be more divergence, but it is certainly something that Scottish ministers will need to bear in mind. If the costs of trying to comply with these two different regulatory regimes become too high, we might see producers in Great Britain pulling out of Northern Ireland, which is likely to exacerbate some of the problems that we have already seen around trade flow through the UK internal market. Thank you for your excellent submissions in front of us today. It has been very helpful. Can I kick off by asking Michael Clancy a bit of comment from you about the question that we asked about scrutiny, transparency and accountability challenges and how we as a parliamentary committee engage in that? You have explained just the sheer number of potential changes that may take place in terms of legislative change. Can I ask you about the issue of the capacity of third sector or business organisations to give their views on what the process is? It came up in the last session that it is really difficult for third sector organisations to be able to cope with the sheer scale of change that may be taking place, but it is an issue for us as parliamentarians because the way that the Parliament is structured is to enable us to get views from third sector organisations and the issue of timing. Are there things that you think could be done to improve scrutiny of how we take evidence, given the time constraints and just the sheer complexity of what would be your top issues? Is it inter-parliamentary work or inter-government work? Are those issues that you would be top of your agenda? Thank you very much for that question, Ms Boryack. I suppose that the problem is that UK internal market act is a UK act and it is embedded in the legislation that could be impacted across the UK by virtue of changes to legislation because the act is predicated on market access from any part of the UK to any other part of the UK for goods and services. This is a very broad vista of change. As we said in our submission, the Parliament would have to consider the resources that would be necessary to devote scrutiny to the legislation that could come from the UK Parliament, from the Senate, from the Northern Ireland Assembly and legislation that is homegrown in Scotland. That could also be exacerbated if individuals or businesses take full action in connection with any legislation that is affected by the act and the decisions of courts, which could be any court in the UK. It might be in the position to begin the process of interpreting the act and interpreting the way that legislation is going. That is the first question. How does the Parliament deal with this large vista of legislation? Almost every committee in the Parliament might be engaged in having to deal with issues that are actually part of the internal market act question. Therefore, it is not simply the committee that we are putting around the table at the moment, but also the delegated powers and law reform committee, the economy and fair market qualities, human rights and civil justice, finance and public administration. Other committees in the Parliament could find internal market acts issues in their inbox at any time in the future. Therefore, looking at resources of the Parliament overall to begin to think about dealing with these matters is something that is very important. Also, it is a question that has to be addressed to the Scottish Government as to what resources they are actually putting into this full process and what do they intend to do? What is the plan in terms of dealing with matters when, for example, a regulation is changed in Wales, which has an impact on some food aspect in Scotland, perhaps something relating to hill farming or agricultural produce in Scotland that we hold dear? How that then begins to affect the economic, social and legal framework around that kind of matter. In the legacy report, of course, you all have that as part of your bedtime reading every night, I'm sure. The overall approach to the scrutiny of policy development in those areas that were previously within EU competence is a significant factor. The extent to which the Government can provide the Parliament and its committees with regular updates on developments in EU law, and that takes us back to that other inquiry that you have embarked upon about the Scottish presence in Europe and how the Scottish Parliament and Scottish Government become aware of and can act on information and intelligence that they receive from Europe. The appropriate and proportionate level of scrutiny for the operation of the future relationship with the EU. Those are all significant matters. You ask about joint parliamentary working. That is obviously something that would be clearly helpful for the Parliament to embark upon. I recollect in prior to Brexit, Lord MacFall's parliamentary forum, which was welcomed by all the Parliament's involved. Under the TCA, of course, it is due to be a UK parliamentary delegation to the joint EU UK parliamentary forum. I think that it is unfortunate that the devolved legislatures are not included in that, and I reference the letter that was sent recently on this matter. That does not prevent us from thinking about re-engineering something domestically, which would enable all the legislatures to get the best information on a not-to-date basis. The same applies in the intra-governmental sphere, but we will really discuss some of the issues around that. That is very useful. I am particularly interested in the parliamentary and the joint ministerial work. There is obviously attention about transparency in terms of how Governments are talking together. There has not been a JMC for three years now, but it has not been replaced by something else. That is clearly something to think about. Thank you for your evidence on that. I ask Jess Sargent about the comment that she made and the Food and Drink Association made about local officials being able to interact on this issue, about food standards, for example. It is something that you raised in your previous answer, about local authorities at council level being able to come up with decisions on food standards. Can you say a little bit more about that? Food and Drink Association regarded it as disruptive, so it is possible at a local level, even though decisions are being made at a UK governmental level, about food and drink standards. You mentioned chlorinated chicken. Is that technically possible? We have been assuming that that might not be. I think that one of the challenges with the UK Internal Market Act is just how many actors are involved. It requires not just discussions between the UK Government and the involved administrations, but UK Government and local councils. There is also a role for the courts in some of the areas where there are disputes over the interpretation of the application of the act. It is not clear to me that there is necessarily anyone in the centre, particularly to the UK Government, who is thinking about all these various aspects and trying to tie them together. I think that that is a real challenge for making sure that you have all the people who are affected by this in one room and that you are able to consult them all when all these various decisions are made. You can have lots of different processes put in place, for example, for the UK Government to talk to their local government, the Scottish Government to talk to their local government and the Scottish Government to talk to each other, but it is not really clear exactly how they all join up, essentially. I just wanted to pick up on some of the points you made about inter-parliamentary working and JNC structure, because it is something that we highlighted in a report we published in June on the UK Internal Market Act. I think that one of the key things about inter-governmental working is that, because the different governments are negotiating with each other, they have less attitudes to negotiate with their own legislatures or with civil society groups and things like that. I think that the best way to try and address that is for all the legislatures and civil society groups to try and put pressure on that inter-governmental agreement, on that process to put pressure on their respective governments, and I think that that is the best chance of actually getting change there. As you say, the JNC committee structure still has not been replaced. There were some proposals set out to establish more inter-ministerial groups, which would be ministers from different departments coming together to discuss issues relevant to their policy area. I think that some of those are starting to be implemented, even though that formal IGR review has not been concluded. One of the things that we recommend that could be really helpful is establishing committee chair levels between all of the four different parliaments to scrutinise that inter-ministerial group. I think that that is one of the suggestions. I might also mention the precedent set there by the Inter-Prioral or Brexit, which I think could also be a very interesting thing to explore and something that we recommend. I think that one of the main barriers to that at the moment is the lack of interest, really, in the UK internal market and common frameworks, particularly amongst MPs in the House of Commons. There is some work on it in the House of Lords, so I think that there is a question there about political appetite, but it is something that I certainly think will be very important and there should be more thinking on it. I think that that is something that would be really interesting to pick up. Thank you, convener, and good morning to our panellists and thank you for your submissions. Can I stick with inter-governmental relations? It strikes me that this is absolutely fundamental. My question is, hopefully, a simple one, but what do each of you see should be the key elements of a new inter-governmental system? I think that you have mentioned trust and formality, but I would like to get a basic synopsis from you of what you think we need. If I could start with Michael Clancy. Thank you very much indeed. The issue, of course, is that we are working with currently an inter-governmental system that was designed through the memorandum of understanding and the various evolution guidance notes many years ago. Like all of these things that needs revision and that process has been going on, it has not yet completed, but it is in the process of being modernised. It will only work if all the parties agree and it will only work in practice if the parties can create an atmosphere of trust which does not appear on the face of it to be present at the moment, except in that single or signal exception of common frameworks where there seems to be very good inter-governmental working, especially at official level, but also at the ministerial level when it comes to minister. Trust is one thing. Clarity about what the structure is is another. Towards the end of the question, which Ms Boyack asked there and her reflections, she mentioned about confidentiality. Confidentiality is one of those features which limits the transparency of the arrangements. I reference in our paper the revised UK Government Central Collection webpage, which includes the issues about joint review of inter-governmental relations that was published in March of this year. In that paper, inter-governmental relations are, as we are told in paragraph 7, best facilitated by the effect of sharing of information and respecting confidentiality of the content of the discussions. Of course, the tension that is created between confidentiality of the discussions and transparency of the decision making process is a difficult circle to square. That is part of the problem because the communicates from the joint ministerial committees are, by and large, not very communicative. We might be just a list of the people there and the broad topic that was discussed, but not all and some which delve into technical matters in relation to phytosanitary issues or agriculture matters or something like that can be quite detailed. I think that if we were able to get to the point where there was much more light shone on these discussions, then that transparency would assist some of the trust building and mean that all of us on the outside would be able to judge what exactly any problems might be within the room. Perhaps we would be able to make representations about that. At a minimum, it is important that inter-ministerial machinery is functional. At this point, it is not fully functional. That is the priority, to create a new system that works. Covid showed the problems that could be created when you do not have those ready-made machinery to go to that works. Initially, we saw a reliance on UK Government forums and meetings through Cobra and the inter-ministerial groups. The main thing that we really need in the reform structure is machinery that facilitates engagement that reflects the devolution settlement, that is where the four Governments are coming together to discuss matters that are devolved and which they have equal powers over and in some senses the UK Government speaks only for England, that way in which these forums are constructed reflects that. I think some of what we have seen in the progress report on the inter-governmental review does reflect that. We have seen things like a rotating chair, a shared sector period. I think we are actually getting quite a lot closer to something that is more superb on devolution settlements. There are still some disagreements as to what happens in areas where matters are reserved and are legitimately in that support for the UK Government. I think that it is really important that there is still very good communication with the devolved Administrations in those areas, particularly where it has implications for their devolved areas, but you might want a slightly different arrangement there. I think that the priority at this stage is to conclude the IGR review and then put these mechanisms in place to make sure that there is good inter-governmental working. I think various matters that we have discussed today, both in this session and in the session before, really highlight the importance of making sure that there is good inter-governmental working. At the end of the day, common frameworks do not cover all policy areas. Even if they are working well, there are many other policy areas in which we need good inter-governmental co-ordination, and we need structures that take that. Can I ask Jess Sargent a question about something that she said at the very start of this session to a question from the convener, when I think you said that the UK Internal Market Act was not an impediment to the development of common frameworks. Clearly, we are in the early years of the UK Internal Market Act, but can you just expand on what you meant by that, please? Absolutely. I think that, when the UK Internal Market Act was first introduced, there was a question as to how that would play into some of the politics and whether that could essentially halt progress on agreeing common frameworks. I think that we have seen that that has not happened. We are still waiting for the final frameworks, but we are hearing that there is good progress being made on them and we are going to get to that point. Now, there is still a question as to how it interacts with common frameworks. I have argued in the paper that we have published in June that common frameworks should be the primary mechanism through which discussions of divergence happen, the UK Internal Market Act. We have to accept the reality that that is now on the statute books, but that is some sort of backstop in the events that we cannot reach agreement through common frameworks and through into governmental agreement, because I think that that is really important. The other thing to mention is also the amendment that was made to the UK Internal Market Act and the House of Lords, which allows new exclusions to be added to the market access principles on the basis of an agreement in common frameworks. This could allow all Governments to agree that, in some circumstances, divergence is completely acceptable and absolutely fine, and we do not need the UK Internal Market Act, we do not need the market access principles to apply. We highlighted that that is a potential source of disagreement, if you do not have a shared understanding of when and how that power should be used. We recommended that there should be a very clear process put in place to make sure that any proposals for new exclusions are considered on the basis of their merit, on the economic impacts, on the policy benefits that they could bring. As I understand it, there are ongoing discussions between the poor Governments to find and agree that sort of process, so I think that that is a really positive development. Thank you. I was very struck by the passage in the Institute for Government report that dealt with the issue of policy divergence and I think very fairly said that it has its pros and cons. Policy divergence has allowed parts of the United Kingdom to pursue entirely different policies around public health—you mentioned smoking, for example—but, on the other hand, it can also lead to trade barriers and the lack of competitiveness among other parts of the UK. I suppose that my question is how do we strike the right balance here? Do you think that the system of common frameworks, which I think is where you end up, is the right way of doing this? I think that that is the question, really. I think that there is an argument that the UK Internal Market Act as it is written with very few exclusions for things like environmental objectives or public health does not quite strike the right balance here. I think that it is something that we should be continually monitoring and thinking about and assessing. We know that the Office for the Internal Market is going to assess the economic impact of future regulation divergence and the operation of the common frameworks and the UK Internal Market Act itself. However, it is not clear who is going to assess the policy impact and I think that that is really important here. I think that committees, like yourselves, have a really important role to play to collect evidence from various groups and sources to understand what policy impact this is having. Obviously, the four Governments will also conduct their own assessment. The answer, to some extent, is common frameworks, because a lot of this will have to be done on a case-by-case basis now. We will have to see how it is working if it is clear that there is a certain area of public health legislation, such as alcohol regulation, that is continually coming up against the problem of not being able to be effective because of the UK Internal Market Act. I think that there might be a really strong case to include an exclusion there. I think that common frameworks are good mechanisms to continue these discussions about the interaction of common frameworks in the UK Internal Market Act. As I said before, they do not cover all areas covered by the UK Internal Market Act, so there are going to need to be discussions—under-in-to-governmental discussions—out of those. However, I think that this is very much a living beast. I think that all four Governments and particularly the UK Government should be open to tweaking things, to changing things, to letting them develop, as we get more and more evidence about how this is actually working in practice. I hope that my question asks for a wee bit more in that line. You will have listened to some of the evidence that we got from the previous panel specifically around alcohol minimum unit pricing. One of the submissions from Alcohol Focus Scotland commented directly that UKEMA might prevent the Scottish Government from fulfilling its legal obligation of putting health before profit. I was wondering if you could comment slightly further on that. Also, you touched on the environment there as well, so I would be interested to know what your thoughts and comments on lower regulatory standards in order to remain competitive within the internal market bill. Absolutely. One of the things that I learned throughout the course of my research on the UK Internal Market Act on our report is that it is very difficult to distinguish how it will apply in slightly more hypothetical cases. There are certainly risks here, particularly around the single-use plastics, given earlier. That is one of the most clear cut examples, because it clearly bans something in Scotland that could continue to be sold if it was coming from elsewhere. Other cases are not as straightforward. There is a question about minimum alcohol pricing, and it seems to come under the non-discrimination principle, which not only has several caveats in which you have to improve both anadverse market effect and that it is not a way of pursuing a legitimate aim. At the end of the day, all that requires is that regulation is not discriminatory. It is not quite as harsh in its application as mutual recognition. We do not really know exactly how cases will play out until they really are tested. It is right to raise these concerns. Perhaps it sounds a bit like a broken record, but I think that the best way to address them is to kind of intergovernmental work, particularly in the environmental space. We do know that all four Governments have a commitment to raising intergovernmental standards, and that actually a lot could be done if they all agreed to jointly raise standards. There is an example that I was looking at recently about adding folic acid to bread. That was initially proposed by the Scottish Government. They were particularly interested in doing that. They asked the food standard of Scotland to give an assessment of it. Their assessment was that this would be not a very effective policy if implemented on a Scotland-only basis and recommended that something UK-wide should be considered. The Scottish and Welsh Governments wrote to the UK Government not saying that this process is all easy. There was obviously a lot of discussion and a lot of back and forth, but at the end of the day they were allowed to agree things on a UK-wide basis. Even despite the political challenges of working on Governments and different strikes, particularly in the environmental space, we know that the most effective policies have to be implemented on a wider scale. That is the reason for Copping Glasgow this week. It is an area in which I hope that good intergovernmental working could mitigate some of the risks that have been identified about the potential aspect of the UK Internal Market Act, but it is something that, as I said in my previous answer, we should keep an eye on. If we are seeing that the UK Internal Market Act, because intergovernmental working is not happening as we might like, is a regular impediment for the devolved Administrations implementing ambitious environmental or public health policies, then the UK Government should seriously consider adding an exclusion to prevent that effect. I agree that it is quite difficult at the moment to construct scenarios that are anything other than speculative. In our paper, we highlighted the one that Professor Nicola McEwen had identified in one of her centre on constitutional change blogs about the Scottish Parliament passed a law to prevent obesity, and such a law might require producers to reduce the sugar content of food or drink or have bolder labelling on recommended daily intakes. What the market access rules essentially state, both the mutual recognition and the non-discrimination rules, is that a law passed by the Scottish Parliament is not necessarily unlawful. In fact, it does not touch on the validity of that law at all. It is a perfectly valid law. The issue is when there is an importation into Scotland of a product that does not comply with that law but complies with the law at its point of origin. The problem is that that act of importation from another part of the UK or from something that has been imported into another part of the UK is when the issue will become real. That creates all those questions that have been circulating around the table this morning from the very beginning in the earlier session. What are the implications of two perfectly valid products complying with the law that applies to them being in circulation in the market in Scotland? That is something that reaches into the economics of the issues of competition. We have heard or talked about the race to the bottom in terms of standards as well. There might be, in fact, I am sure there is, because it is something that many of our food and drink producers—not just exclusively then, but let us take that as an example—move on very highly on the high standards to which Scottish produce is produced. That, of itself, is a reason to buy the product in the phase of cheaper, but inferiorly standard products from elsewhere. Therefore, it is not to take a picture, but until we have that real example, it would be a lot more speculative than I would like. My apologies, Mr Clancy. You wanted to come in on a previous point that Mr Cameron had been asking. Do you want to do that now, please? Unfortunately, convener, I think that the moment has passed. Mr Cameron has got some more questions, so maybe not. I will bring Donald's hand back. I was going to ask you about the Sewell convention, which you mentioned in the Law Society submission. It is fair to say that this has come under a lot of strain in recent years. We have seen the UK Government legislating without consent and we have seen the Scottish Government refusing consent, if I can put that as neutrally as possible. You said in your submission that no inference should be drawn that the Sewell convention has been diluted. Can I just ask you to expand on the convention as a tool or as a method of inter-governmental, inter-parliamentary working and what you see its future being? The Sewell convention, rather than the legislative consent convention, has not developed too much on one person who has been involved in it. It has quite a long pedigree. It was used in Northern Ireland during the time of the Northern Ireland Parliament from 1921 until 1971. It featured in colonial administration and a recent case in inverted commas related to the Parliament of Southern Rhodesia in 1963, the case of Madzin Bambuto v. Ladinal Burke. It is something that is a pedigree and what it says as you know, but let's put it on the record, because it is declared in section 28 of the Scotland Act 1998 that the UK Parliament will not legislate on devolved matters without the consent of the Scottish Parliament, not normally legislate. Normally is the issue that has occurred most frequently over the past few years, and looking at the legislation that has been passed without the consent of the Scottish Parliament or at times the Welsh Assembly or the Senate Committee now, we have, of course, the important Brexit legislation and also the UK Internal Market Act. Can we view those as instances where normality is suspended because of their importance to the UK as a political entity? I suppose that what we were trying to assert in that statement about the importance of the legislative consent convention not being diluted is that it still applies and it is declared in statute. There is case law, which interprets it. The Miller one case was one such case where the Supreme Court was able to say that there aren't any legal consequences of not complying with the convention, but there may be political consequences. That is what being a convention essentially means. There might be political consequences, parliamentary consequences, but there is no legal consequence to not complying with the convention. I think that it is about that kind of recognition that it still applies. It still applies to lots of legislation that goes through the UK Parliament and which affects matters that are within the devolved sphere in Scotland and which are quite normal in the discussions between the Government's prior to introduction and in the way in which they pass, but the UK national issues such as the Brexit legislation and the UK encounter market act are obviously ones that would attract the not normally provision and be the basis upon which the UK Government would be pristine to enact legislation and then to put it into force. I think that that is where we are getting to is that in the ordinary course of events the convention works still, but there will be exceptions to the ordinary course of events, and, hopefully, those will not be too many in the future. Having been present when the convention was declared in July 1998, I was in the opposition advisers box in the House of Lords when Lord Sewell stepped up to the dispatch box to make it known that this was how we were going to deal with the issue. I can tell you that, for most of its existence, the Scotland Act and the other devolution legislation has existed perfectly happily on the basis of the convention, and it is only in those particularly contentious matters that it has not functioned the way that people expected it to. It is a question to Michael Clancy about the references that you make in your submission to the domestic advisory groups and the civil society forum. This was not something that I had been aware of before, but I note that there was an advert in the middle of October for inviting people to put forward their interests if they wanted to be a member of that. Can you say a little bit more about that? That was not something that I was aware of before, but it is clearly an attempt to try and broaden out involvement by third sector organisations, by trade unions, to enable them to have some sort of say in this process, but it is not something that has had a lot of public awareness, I think that it is fair to say. You have talked about an annual meeting that would not actually be appropriate, but it needs to be a bit more regular. Can you say something about the potential opportunities that come from this and to what extent it has got a relevance in Scotland? Is this primarily UK-established? The advert says that it will rotate between all four nations of the United Kingdom. It is not something that I was aware of before, but it is something that is just under the radar for us and will be significant. I am genuinely surprised. I thought that you read the TCA, the trade and co-operation agreement, from cover to cover all the time, Ms Black. I am really surprised at that. It is one of those provisions that only anoracts up until now have had something to say about. Before you accuse me of being anorak, I will clearly admit to having come across this before. The trade and co-operation agreement contains the number of institutional structures that try to make it, from its lofty position, regulating the relationship between the UK and the EU something more concrete for the people who will actually be affected by the processes and decisions made by, for example, the partnership council and others. One of those features is the parliamentary assembly relationship, which we have spoken about earlier. Then there are the ones that drill down to the more local aspects. We welcomed the participation of civil society provisions in article 12 of the TCA and in article 13, which talks about domestic advisory groups and in article 14, which talks about the civil society forum, which reflects the suggestion that the law society has made with regard to the architectural structure of the withdrawal agreement in 2018. Article 12 says that the parties that are the UK and the EU shall consult civil society on the implementation of the TCA and supplementing agreements. That is one on atomic energy and one or two other things. In particular, through the interaction of the two types of groups, the domestic advisory and the civil society forum. Article 13 tells us that each party should consult newly created or existing domestic advisory groups or groups comprising a representation of independent civil society organisation on issues covered in the TCA. In particular, the focus was on non-governmental organisations, businesses and employers organisations as well as trade unions and those who are active in economic sustainable development, social human rights, environmental and other matters. A very broad sweep of civic society and, in much the same way as in the early days of the Parliament, there was a Scottish civic society forum. I think that this is an attempt to make sure that there is more than the governmental voice at the table. It is something that we have suggested that we agree with and that we support the idea that there should be such a forum and that the domestic advisory groups should be ones that are established and function well. We talked about the idea that there should be room for people representing the legal professions in the UK to be a party to this because of the issues arising out of the TCA and the maintenance of the rule of law and the administration of justice. We think that those are key to the functioning of the TCA. We also thought that the kind of bodies that are involved in this should be broad-based, not just include what some people might refer to as the usual suspects, but should be centred on the communities that, ultimately, the treaty should be able to serve. I am quite keen that that is part of our scrutiny going forward, to the extent to which that group operates and is relevant to us. I have a few final questions that I am afraid are not quite finished. We have a specific role in this committee, but other subject committees of the Parliament will also have the ability to scrutinise in certain areas. From the discussion that we have had about the Interparliamentary Forum on Brexit, I think that we have dropped the trip Brexit from that, but we will meet on 10 December. It was an informal arrangement that came about from different legislatures just to work together. I am wondering if you feel that there needs to be a more formal position for those kind of fora at the moment, like the Interparliamentary Forum, and whether or not you think that guidance on transparency, guidance on scrutiny, set-levis select committees across different areas, needs to be more formalised going forward. I will go to Mr Clancy first. The TCA, convener, ensures that there is formality between the European Parliament and the national legislature, which is the UK Parliament. If it is good enough for the TCA to create such an institutional structure for parliamentary interchange, we have to ask for something similar, because the devolved legislatures are not included in that. As soon as we saw the TCA and as soon as we made representations to Parliament in terms of the European Union future relationship bill way back between 26 December last year and 29 December in advance of the debates that were taking place in Parliament just before the end of the year. Having something that brings the devolved legislatures together and the UK Parliament is a way of informing those members of the UK Parliament who are going to be sitting at the table with their EU counterparts on this interparliamentary group. I know that the EU has identified its 30 members already, and the process for identifying the membership from the UK Parliament is working its way through at the moment. Now is the time, the auspicious time, for the devolved legislatures and those people in the UK Parliament who want to progress such an idea to get together and be able to transmit ideas from their constituents to the UK members of the intra-parliamentary group on the TCA so that we all manage to have some kind of a voice at that time. Obviously, there is a Government relationship there, but there is also the relationship of the parliaments. Do you think that the PPA structure had been confirmed in the UK? Is it still possible that there might be delegates on the PPA that include people from the devolved legislatures at this stage? No, I do not think so, convener, because the TCA is quite specific about the nature of the UK EU parliamentary group. It does not include devolved legislatures. I think that the phrase used—I do not have it in front of me—is the national parliament or the parties. I would be surprised if there is room to include devolved legislature members at this point. I do not think that that works with the TCA, but it does work for the legislatures to discuss among themselves and with the UK Parliament a way in which there can be another stratum here that can bring together the law of legislatures on the UK Parliament in a way that informs the views of the UK Parliament members of the group. I will bring in the Sgt, if she wants to comment on those. I am very pleased to hear that the inter-parliaments forum no longer on Brexit, but the inter-parliaments forum no less is using the next month. That is a really great development. In terms of the question that you made about formalising structures, I think that there are obvious benefits to it in that it means that the discussions are not reliant on political interests from certain members that might at any point change or everway, and they can ensure that that happens consistently and systematically. I think that the one concern that I would have is about participation from all the parties in the Northern Ireland Assembly. By formalising structures, I think that there is a risk that that could become a bit more difficult. I think that that is easier in an informal structure. I hope that it is something that would not be insurmountable, but it might need to be treated sensitively. Perhaps there could be further discussions on that. I have a very quick question on the frameworks, because you said that they have developed and are being delivered. We will not really understand the working until further down the line, but does it concern you that what we are hearing from other areas from the economy, from Civic Scotland, is that they do not feel that they have been included in that and that they do not feel that there is transparency in how those have come about? Whose responsibility is it to inform the wider Civic society in the UK about the frameworks and what impact they will have? I will go to Ms Ardent first of them to Mr Glancy. Yeah, absolutely. I think that it is incredibly hard to try and scrutinise common frameworks when you do not know what they look like. I think that the nature of what they have ended up is slightly different to perhaps what particular lots of society's groups were expecting at the beginning. I think that this is in part a factor of the fact that these at times have been quite political discussions. I think that one of the big barriers to reaching agreement and publishing the frameworks recently has been some of the sensitivities around the Northern Ireland protocol, and I think that that has meant that groups that perhaps could have been included have been shut out of the process because of those sensitivities. Obviously, we are waiting for the process to be published, but that will not be tested until you have an instance of policy divergence to test it. I think that that is the point at which civil society's views will be most relevant, and I think that where the civil society groups will be most of value in order to put their views to the four Governments. I think that it is important that they are able to feed into the process when these discussions are still on going and not when a decision has been made at the end, because once a decision has been made, it is very unlikely that the four Governments are going to want to go back and reopen that. I think that there is a question of how that fits with the scrutiny process, particularly in the relevant of old legislatures, because I think that that is a really good way for civil society groups to be able to feed in. I think that there is a question of what the trigger mechanism is for that scrutiny, because, like I say, if it comes at the end once a policy is all tied up in a bow and an intergovernmental agreement is reached, then I think that there is a little chance that that will make a huge amount of difference. We know that some of the brainworks have review processes in-built, so it is possible that that could be a point at which there is a bit more transparency about what is being discussed. Therefore, you could take evidence from various interested groups, but I think that that is still a bit of an open question in an area that needs a lot more development. Okay, Mr Clancy, do you want to comment on that? Yeah, if I could just, I am sure that transparency over the negotiation of brainworks is yet another issue of a bit of difficulty because some of those things are extremely technical indeed. When the original list of 111 points was issued by the Cabinet Office a few years ago now, I undertook a piece of work to try to get my head round what that meant. We produced paper on the 111 points, tracking them through their European legal origins primarily, to where we were at the point at which they were listed in the 111 list. That, of course, then became 150, and I think that at its height it was 163 items which, or areas of the law, were subject to this process. I am sorry, I am going to have to go to a two-minute silence. I do have another question, so if you could stay with us, we will be posing for a two-minute silence. I ask the member to stand if they are able to thank everyone for observing our Remembrance Day. Mr Clancy, can I return to you? I know that China is precious, so I will be quick. I think that the important thing is that all of these areas had a basis in European law, which had gone through the relevant processes in whichever legislature had been responsible for implementing them. We know what the baseline is for many of the, indeed, for all of the common frameworks arrangements. What we do not know is how the common frameworks ethos, in terms of the conditions that I mentioned at the start of the meeting that we decided on on 17 October, all apply to them. What we can say is that as they progress through their process and the report that was issued on 9 November is an example of the element of transparency that has brought to this, they get scrutiny in the legislatures. I can point to the hazardous substances planning framework, which was finalised and implemented in the last reporting period, which had scrutiny in all four legislatures. I think that it is a point at which it can want to effect this common framework. Probably it would have to be something very dramatic to effect the common framework if someone came up and said that they need representations to the appropriate committee dealing with it. That framework is flawed in some kind of a way. We have to, I suppose, be quite dramatic, something that all the others who are considered to be missed in what are very technical areas, such as the law relating to radioactive substances, certain aspects of company law, agricultural support, etc. I think that there ought to be an opportunity for civic society, those who have a particular interest in the common framework, to make representations. That probably is, in its most proper form, the Parliament in Scotland, because it is the Parliament that probably implemented the original EU regulation, which made the basis for the common framework necessary in the first place. My final question is about hypothetical. Much of what we have talked about today has been hypothetical. In an ideal world, the frameworks will work perfectly, and there will never be a need for executive power to be exercised by the Westminster Government. My understanding of the Scottish Parliament committees is that we are, under the Scotland Act in power, to scrutinise the Scottish Government. However, how can that scrutiny take place if there is an executive power at Westminster used in a devolved area? How would we, as a Parliament and a number of committees, look at that? Whether that might mean a change to something such as the devolution guidance along the lines, and just if I could get your comments on that. I will go to Ms Argent first and then to Mr Clancy. Thank you. There is a question. I presume that you are referring to the powers in the UK internal market act itself for the Secretary of State. Is that right? I think that there is a question as to how they are scrutinised by the devolved legislatures. They could change the terms of the act quite significantly. I think that there is likely circumstances in which the use would be to add new exclusions, which would hopefully be to create and make the act more permissive, rather than make it more restrictive, but there is a possibility that they could be used to make it more restrictive. The power for the Scottish Minister to be—the UK Government has to seek consent of the devolved ministers, but if that is not forthcoming within a month, they can just proceed anyway. There is a risk that it could be used in a way that was perhaps improper. I think that there is certainly a question as to how that relates back to the Scottish Parliament. I think that you are right. I think that there is a unresolved issue as to how and whether something like the stool convention should apply to secondary legislation. We saw a good mechanism to allow that through the EU withdrawal act, but it might be that, going forward, we see things more frequently. Rather than just considering things on a case-by-case act-by-act basis, perhaps a broader convention that applies to secondary legislation as well as primary legislation would be most appropriate. Obviously, there are opportunities for the committee to do informal scrutiny, even if it is not required by any specific process. For example, if it looks like this power has been used to take evidence from certainly the Scottish Minister on their position on that power being used, and potentially also the UK minister. Obviously, there is nothing that the Scottish Parliament can do to compel a UK minister to appear before it, but we have seen increasingly UK ministers appear before the Scottish Parliament. I think that that is something that we recommended. Now the lines of responsibility and accountability have been blurred slightly, because actions taken by the UK Government will have implications for the exercise of devolved powers. I think that that is something that should happen more regularly, and perhaps there needs to be a commitment here for the UK Government ministers to be ready to appear before Scottish Parliament committees in the Northern Ireland Assembly to justify when and why they have used those powers. As Jess Sargent mentioned, the provisions of the UK internal market act where the victory of state can seek the consent of the devolved administrations, devolved parliots, when making certain exclusions from the market access principles on section 10 or services exclusions under section 18. There is a process there for waiting for that consent, and it is not forthcoming proceeding to make the order in any event. That, of course, is not the equivalent of a legislative consent motion for subordinate legislation. Under the devolution guidance notes, it is quite clear that the legislative consent convention does not apply to subordinate legislation, it only applies to primary legislation, and that is an important feature that has been there since the very beginning of devolution and the creation of the Parliament. How does that work, then, in terms of any future changes? A revision of the devolution guidance notes is part of that issue, which revolves around the intergovernmental process, which we have been talking about periodically this morning. I have not heard anyone say that this would be an issue that is on the table. Therefore, how does one affect UK ministerial action or Scottish ministerial action in terms of making regulations? One hopes that the relevant minister would consult on the making of some subordinate legislation that you might be concerned about. It is one of the sort of standard amendments that we promote when dealing with bills in the UK Parliament is that ministers should consult with appropriate persons before making regulation. The fashion that we have seen in terms of coronavirus legislation for made affirmative regulations to be produced is something that cuts across any kind of debate or discussion in these sort of instances. We have seen, and I am sure that you will be aware of, instances in which regulations have been made on 11 November at 5 pm, precisely, without there being any significant debate in Parliament, and it is a sensitive, take it or leave it situation. Take it, there is no leaving it, it becomes the law. Therefore, this then begins to be a bigger issue about the whole nature of delegated legislation, the resources that are applied to scrutinise that legislation. I am sure that if you went and asked the members of the delegated powers and law reform committee, if they are satisfied on the whole with the nature of consultation on delegated legislation, etc., they would probably have a number of criticisms about that, and it is the scene in Westminster. The Hansard Society has recently published further thoughts on making delegated powers more habyl to scrutiny. In just the other day, it published a report on that, something that I might recommend to the committee indeed. It is on my reading list for later this week. It is important for us to understand that this is not a problem related to the internal market act. It is symptomatic of a wider issue about the scrutiny of ministerial lawmaking power, the power that the Parliament lends to ministers in the acts that it passed. I thank you both for your attendance at committee this morning. I will now close the public part of today's proceedings. Thank you very much. Thank you very much indeed. Bye-bye.