 Fyolwch yn gweithio'r ddawg y llun 김et perioedd yn 2018. The only item on our agenda this morning is to take evidence on the EU withdrawal bill from Michael Russell, the minister for European negotiations on Scotland's place in Europe. Mr Russell is accompanied today by officials from the Scottish Government, the Constitution policy team, General Byrn, the team leader and Luke McBrattny, the policy officer. I welcome our witnesses to the meeting. Members have received copies of the Scottish Government's supplementary legislative consent memorandum, which includes proposed amendments to the bill from both the Scottish and UK Governments, as well as a draft proposed intergovernmental agreement on the bill and the establishment of common frameworks and a Scottish Government overview of amendments that have been made to the bill at Westminster. Members should note that we will need to conclude our session by 11.30. Mike Russell has other commitments, which he needs to fulfil in his diary. I'm pretty sure we'll be finished by that time anyway, I hope, minister. Before we move to any questions, I wonder if you'd like to make an opening statement. I wasn't intending to. I'd be quite happy just to answer questions. In that case, I thought that you would. Just for the record, in that case, what's the Scottish Government's view of clause 2.4 of amendment 1, which defines the Scottish Parliament's consent? That's of the UK's most recent proposed amendments, which defines the Scottish Parliament's consent as a decision to agree motion consenting to the laying of a draft, and a decision not to agree motion consenting to the laying of a draft, and a decision to agree motion refusing to consent to the laying of a draft. In all accounts, it would seem that, in every case, consent is given. That is our view of the clause. I think that the kindest thing that you can say about it is that it is carelessly drafted, but it is a very unfortunate clause. The problem with the amendments in the name of Lord Cullinan is that they do not, in our view, take into the bill the commitments that are in the proposed intergovernmental memorandum. That, for example, that clause is nowhere referred to in the intergovernmental memorandum, the document that we are asked to sign. You must look at the package that has been brought forward by the UK Government to understand what is acceptable and what is not acceptable. I think that our position on that package is not only clear but principled, and I hope that we will be accepted, which is that it is possible to reach a deal, but the deal has to be reached on the basis of respect for the devolved settlement. I would like to get some of your views. I have seen some accusations in the media and elsewhere about suggestions that, in some way, the Scottish Government will want to have a veto as a result of the proposals that the Scottish Government and yourself put forward in response to the recent amendments that were laid by the UK Government. What would your view be of that accusation? I do not think that it is true or fair. I think that the reality—I think that this is really important, convener. I am glad to have the opportunity to address this. The issue at stake—the issue that later today I will be going to the GMC in White Hall—and I want to make this position clear before I go and when I am there. The issue at stake is changes to the devolved competencies. That is the issue at stake without the consent of the Scottish Parliament. Were we to come to a position where we could agree that it would be because either that proposal was withdrawn—the proposal in clause 11—or that the bill was amended in such a way that we reverted to what is the normal process in devolution in order to discuss and agree changes to competence? That is what it is about. It is not about a veto on any individual item, because once you have the frameworks agreed by means of a section 30 order, then thereafter the operation of the frameworks are governed in a different way. The operation of the frameworks will be governed by the normal processes, including the sewer process. I do not like the situation in which, in the end, Westminster is sovereign. I would prefer a different constitutional outcome, but that is not what I am either endeavouring to achieve in those negotiations or it is not something that we could achieve in those negotiations. What I am trying to do is to make sure that devolution is protected and the way in which devolution operates is not undermined by a proposal that would, uniquely, for the first time ever in devolution, give the right to UK ministers to use secondary legislation to alter the devolved competencies of the Scottish Parliament, the things for which we are responsible. That would be the first time that had ever happened, and it should not happen. I do not think that, on reflection, many people in Scotland would support that happening, and therefore it is not about vetoing individual decisions of frameworks. We can establish frameworks. I am sure that we can operate them. That is what the deep-dive process has been about to work that out. What that is about is making sure that the existing arrangements in devolution continue to operate so that the competencies are changed only with the consent of the Scottish Parliament. I know that all members here would like still to find that there has to be an agreement between the two Governments. That is quite clear between everyone who is just committed to say to yourself that you want to see that. Therefore, I wonder if you would confirm that, if clause 11 is removed from the bill, the Scottish Government would be happy to sign an amended intergovernment agreement in which it would provide a political commitment not to bring forward legislation in areas where common frameworks are likely to be needed, and that would essentially have the same effect as the clause 11 regulations. We have said that there are two options. That is one of them. A situation where clause 11 disappears. The other one is to amend the bill, to amend the amendments, so that we have a situation that reverts to the normal use of section 30 and section 63. That would be the normal thing that would happen. Those are the choices. They are both on the table, and if either of those were to be brought forward, they would happen. It may be later today that the second choice will be subject to amendments that have been laid by Lord Hope and Lord Mackay of Plashfairn. I do not know yet whether that will come to a vote in the House of Lords or not. They are tabled, but that would be a way forward. It would be a very helpful way forward, and it would be a way forward that would conclude this matter. I hope that you would accept that we all agreed around the table. Indeed, all five parties represented in this Parliament, including the Scottish Conservatives, agreed that the original clause 11 was not fit for purpose and that it needed to be, in the words of this committee, removed or replaced. Would you accept that it has been reversed by force of the amendments that were tabled last week in Lord Callanan's name, in the sense that the original clause 11 held all competences until UK ministers decided to, as it were, hand them back? That has been reversed. I am not sure that I would use the term reversed. I think that there has been progress in softening the edges of the issue. I do not think that it removes the basic difficulty. One of the ways that it does not do that, and you talk about all the competences, is that it is still open-ended. The process is such that any additional item could be introduced into this process, and we would not be in a position to consent to it. It is ago that the amendment and the intergovernmental agreement and the memorandum of understanding had to be understood together because they come as a package, and I very strongly agree with that. If you are serious about that and I hope that you are, that is not quite the case, as you just said, because there is a list in the accompanying political documents that sit alongside the memorandum of the areas in which that power is anticipated, that power will be used. It is not open-ended. There is an agreement between the Governments about the areas that we are talking about. There is a caveat in that list, and that has been featured in our discussions throughout the whole period. I understand why there is a caveat in it, but that caveat is an open-ended possibility of other items being brought in. It was expressed first of all in the GMC process as being just in case there were any items that had been overlooked. In reality, if we consent to a process that is a secondary legislation process of altering competence, that can be used for anything. There is no restraint upon the UK Government for so doing. It cannot be used for anything, because section 30A, subsection 1, which is in the relevant amendments, confines the exercise of this power only to legislation that seeks to modify retained EU law. It cannot be used for anything. It can only be used within the scope of retained EU law. In other words, it can only be used within the scope of powers that this Parliament does not currently have, because the exercise of those powers would be contrary to EU law, which would make it unlawful for us to exercise that power. It does not restrain it to the 24, as you have been indicating, but it is restricted to retained EU law. Is that correct? It retains it to the 111, and the 111 are very wide, because one of the difficulties in the proposed Welsh approach—this becomes very technical, I apologise for it—was a schedule to the bill, which was under discussion until comparatively recently—is the difficulty of unpicking what are headlines in the 111 and delving into them deeply enough to understand all their implications. If you look at the 24, in which we have done the deep dive, that has taken a very considerable period of time and has covered very wide-ranging areas. If you look at number one on the list, agricultural support, it is an enormously wide area. That definition brings in all the other ones up to 111. Indeed, even that is not exhaustive, because the UK Government retains to itself the right to say that there is, for example, 112, which we have overlooked, and that needs to be added to the list, too. It is, with respect, open-ended. In being open-ended, it allows the alteration of competences, as I say, by act of ministers, not by primary legislation. It is open-ended subject to the power only being available with regard to retained EU law. That is not negotiable. That is in black and white in the amendment. The whole bill is only concerned with retained EU law. It is very, very wide indeed, and I have indicated that each item you have to unpack. It is not as if it says that that is an item on its own, and it only refers to one thing. Those items are very wide-ranging. Moving on. As you know, despite our occasional disagreements, we have been trying to reach agreement on that issue. As you also know, we have supported the view of the Scottish and Welsh Governments that Brexit, including the European Union withdrawal bill, needs to be delivered compatibly with and not incompatibly with the fundamentals of our devolution settlement. Would you accept that the SEAL convention is one of the fundamentals of our devolution settlement? It is an absolutely essential part of our constitutional settlement, given that Westminster regards itself and is regarded in our settlement as soffin. Would you not also accept the force of the amendments in Lord Calamond's name? That is the difference between Lord Calamond's amendments now at report stage, compared with Lord Calamond's amendments earlier in a committee stage in the House of Lords. The force of Lord Calamond's current amendments at this stage is essentially to copy and paste the SEAL convention, which, as you have just said, is one of the essential fundamentals of our devolution settlement into the clause 11 process. So that SEAL says that the Westminster Parliament may not normally legislate on devolved matters without the consent of this Parliament. That is exactly what the revised clause 11 says, that a power will not normally be taken into the holding pattern that clause 11 represents without the consent of this Parliament. So it is a direct copying and pasting of one of the fundamentals of our devolution settlement in order to reverse the effect of the original clause 11, which was incompatible with devolution, to make it now compatible with devolution. That is why the Welsh have signed up to it. Is that not an accurate constitutional analysis of the force of the amendment? Where are the words not normally in Calamond's amendments? In section 30A subsection, it is what the consent decision provision is. It is what the consent decision provision is. Where are the words not normally in section 3 and 4? Because they are not there. Well, again, I go back to what you said at the beginning, minister. You said that this has to be understood alongside the memorandum of understanding and the intergovernmental agreement as a package, and those words are in that package. But this is the bit that becomes law. Indeed, but the steel convention— This is the bit that becomes law, and this bit does not have the words not normally. The steel convention is called the steel convention because it is a non-legal rule of constitutional behaviour. That is what constitutional conventions are. You won't find the steel convention in that section. But this is the bit that becomes law regrettably. So it is not a package anymore? It is not a package anymore. I have not said that, and I am happy to confirm it. It is a package, but this is the bit that becomes law. And this bit does not, in my view, cut and paste. In that way, the steel convention is essential. But the steel convention applies to the operation of the frameworks. In our view, it should not apply in these circumstances to the changes to legislative competence. Because changes to legislative competence are done by a section 30 order, or they can be done by primary legislation, yes. In that case, we are saying, and the amendments from Lord Hope indicate, the way in which that could happen. I understand that, but there is the fundamental disagreement, I think, between us minister with respect. This is not correctly understood as a change in legislative competence, because we are dealing only with modifications to retained EU law, and it is currently outwith our competence to make modifications to retained EU law, because we are not able, as a matter of law, to pass law, and you are not able, as a minister, to make regulations, which are contrary to EU law. So it is not a change to our competence. Well, the steel convention is, of course, in law, because it is in the 2016 act. As you know, you were involved with that act. The problem with that is then, in the Miller case, what we thought was perhaps a stronger intention of the UK Government to recognise that was weakened as a result of the UK Government's submissions in that case. I think that sewer is essential, and you have to look at devolution as a set of fragile compromises. Essentially, in a system in which there is Westminster sovereignty, which I do not agree with, I would much rather that that was not there, and I would like to change that, but in a system that has Westminster sovereignty, what the sewer convention is, is a way to guarantee some opportunities and rights whilst respecting Westminster sovereignty. Now I accept that that is the case. So it is very fragile. What the UK Government is trying to do is undermining and damaging the fragility of the devolution settlement by essentially introducing a concept of being able to change legislative competence of the parliaments without seeking the consent of the parliaments, and that is the spirit as well as a letter of soul, and that is where the problem is, and it would be far better if we, and I do accept that your party in Scotland has been supportive of trying to get this right, it would be far better then that we chose one of the two options that are on the table. We put on the table either with draw clause 11, which is where we were last July, and if only we had done it and persuaded people to do it then, it would have saved an awful lot of work over the last 10 months, or make sure that in the legislation we are recognising absolutely the way in which competence can be changed. That's what we should do. I've got one final question because the convener has been very indulgent for which many thanks, but my final question is this. Given what you've said about the importance of the package, but also the importance of words being on the face of statute, even at this 11th hour would the Scottish Government accept that the deal is done if the words not normally were written into the text of section 38? No, I've indicated how the deal can be done, and I've not been difficult in any way about that. I've indicated the way in which the deal can be done. Do you agree with the Scottish Government or bust? No, absolutely. Agree with devolution and accept the devolved settlement or remove the clause. That's where we are, and that is how the deal can be done. It doesn't move forward an inch an argument against devolution. We are going to protect that, because that's what we think is the right thing for the people of Scotland and their interests. That's how the deal can be done, and that's how I would like to do it. I could do it today. Sorry, I apologise. Willie, you were to do it in this area as well. I apologise. Yes, thanks. It's just in the same area. I really have this whole idea, the consent to amendments to the bill there. Could you clarify just for the ordinary person in the street minister what this actually means from my reading of it? A decision to agree a motion and a decision not to agree a motion is taken to be the same outcome? For the person in the street, it simply means that if everybody in the Scottish Parliament, every single one of the 129 members said no, we have to say thank you. That means you've agreed. That's what it means. In actual fact, it does mean that language doesn't mean what language should mean. You were very kind, I think, in your opening remarks about that, but surely that's the best example of something that you would expect to see in Monty Python's. Well, you and I have a certain vintage. We enjoyed Monty Python. I'm not sure I would laugh at this very much however. I think this is a pretty outrageous piece of drafting, and I do think it would have been sensible if UK ministers were really thinking about it to have looked at that. It's on page one after all. You don't need to even go page two and say, hang on a minute, that's not going to go down very well. Not only that, I think that advice has been given that maybe that wasn't helpful, but that's where we are. Can you just be absolutely straight with the people of the committee and the Scottish people? Are you asking for anything other than what we have at the moment in terms of the devolution? What we are saying is that all the devolution legislation has a backstop in it, which says several backstops in it, which says, in the end, Westminster's sovereign. In the end, Westminster can choose to do what it wants to do. For 19 years, we have been able to operate the system with its checks and balances, a fragile system that has allowed people to get on with their business and to do it as well as possible. All the parties in the Parliament have been involved in that. This is the first occasion on which there has been an attempt by the UK Government to alter the terms of that, not openly and above board, by coming in and saying, there is what we plan to do for the following reasons, but to do it and to continue to do it for a considerable period of time by secondary legislation. That is unacceptable. That was never envisaged. It has never been envisaged. It is not something that any Parliament could accept. If the amendments go through in your view, what does that do to the principles of devolution that was set up in 1999? It undermines them and damages devolution. My view is that that could lead to further damage being done, but the institution is important, but it is not as important as the people. In areas of great importance to the Scottish people, it damages what the Scottish Parliament can do for them. It damages the way in which we can serve people in Scotland, all of those areas and possibly many others, as I have indicated to Mr Tomkins. Ross Finney from the Food Agency was on the radio this morning, talking about the way in which he feels that this process will undermine the work that they are doing, for example, against obesity and the work that they are doing to protect food standards. That is really important. That is a direct effect upon the people of Scotland, because you actually have in here number 16 food compositional standards, 17 food labelling. You have a whole range of these issues. For the people of Scotland, this is not some game amongst politicians. This is real damage to the way that they lead their lives. I am sorry for calling you earlier prematurely. That is okay. The UK withdrawal bill, as it is currently sitting at the moment, does not respect the devolution settlement. The Scottish Government has then put forward two different options. We have touched on that slightly already. The first one is just removal of close 11, which the Scottish Government has consistently spoken about for quite some time now. The second one is a little bit more complicated. That is the one where it would be an acceptance of a power on Scottish ministers to restrict the competence of the Scottish Parliament. It would be subject to the Order and Council process, which would involve the expressed consent of the Parliament. The first option is a bit more self-explanatory, although you might want to explain how that works with the Scottish continuity bill that we have recently passed here. The second one is more of a halfway house option. Could you explain the Order and Council process and how that might work? I am quite sure that Mr Burnett is going to be much better explaining the Order and Council process than I am. In terms of the first one, let me make it clear that not having—I have landed him in it now—I am giving him a moment or two to prepare his answer. The first one is essentially we refer to the status quo, and we show respect for each other. I gave evidence to the Westminster Public Accounts Committee this week. In my evidence, I said that I did thinkly that the relationship of trust between the two Governments was at a very low ebb. It is expressed by the fact that the proposal is to legislatively constrain the Welsh and the Scottish Governments in Northern Ireland, but simply for the UK Government to enter into a voluntary agreement. There is no trust in the system that would give me any confidence in that. If you take that out, and you say that we are just going to work together, I think that that begins to restore trust, because then you have to work together. That has been a nature of devolution. The successful intergovernmental work has been based on the fact that you can sit down and talk to people, and that is what works. I think that the clause should go. That does not affect the continuity bill. You would then simply operate frameworks on a voluntary basis. We have said that we are willing to do so, and as a convener indicated at the start of this meeting, we are willing to sign an agreement on that, and to say that we will not unreasonably withhold agreement to things. We will find ways to work together on that. That is perfectly possible to do. The second one essentially simply reverts to what the normal system of devolution would be and is in terms of changes to legislative competence. You need such a system to be approved by both parliaments, and Gerald will say in a minute how it works, for positive and negative reasons. The negative reasons are that you would not want changes to devolve competence that did not come alongside resource, given the system that we operate in. If you had a system that operated that you could simply say that we are going to transfer all these powers to you but we are not giving any money, the Westminster might vote for that, but the Scottish Parliament would not vote for that. That is a good, balanced way in which you would operate. Perhaps Gerald could say a word about what an order in council actually is. The difference between regulation, order in council and order in contact council is formally made, as it says in the amendments by Her Majesty, by ordering council, that is the privy council. Her Majesty makes the order and the advice of the privy council. What the mechanism proposed here says is that advice cannot be given to Her Majesty unless the draft of the regulations has been laid and approved by both houses of Westminster and the Scottish Parliament. That is what is known as a type A procedure under the Scotland Act 1998. It is how section 30 and section 63 work at the moment. Section 30 is the procedure for adjusting legislative competence. 63 is the procedure for adjusting executive competence of ministers, both the administration and the legislature are protected in the way that the minister has just described. Just to make a point on the procedure, although it sounds a bit archaic, it is a non-trivial point that the ordering council procedure is used when both parliaments are involved in approving regulations rather than a UK minister formally making the regulations after approval here, because it recognises the interests of both parliaments in the order that is eventually made by Her Majesty and council. Can I point out too perhaps that the laid and approved is important? The word approved there means what it means in the dictionary. It is not subject to what the definition is, in the rather odd definition of a consent decision. It means that the Parliament has to say yes. Is there a simple majority? There is a simple majority in all three legislative houses. Sorry, I can just check one thing there, because that was quite interesting what Gerald Burn just said there about the section 30 order process, because those who designed the Scotland Act, when they sat down and thought about how devolved competencies could be changed, given their description of order, a section 30 order, I would obviously say that particular process in mind for any change to competency that came about. I did not appreciate that so much. Moreover, those who were setting this up were also in a position of understanding that this would be a Parliament of minorities. A majority would require, probably, and certainly in this Parliament, in all the parliaments that have had to save one, more than one party supporting it. Can I just make one other point on that, Cafina, which is that the Soul Convention, as it operates, also respects the procedures in sections 30 and 63, so that approval of this Parliament under the Soul Convention is required for changes to competence, as well as for acting in devolved areas by the Westminster Parliament. That is how it has been operated for 19 years. I was going to get my head round why the Scottish Government is so centrally focused on that. I want to pull up by asking about the amendment. There have been amendments laid in the House of Lords. I think that it was yesterday by Lord Hope and Mackay. You have said that, if they were accepted that the Scottish Government would recommend consent to the bill as a whole, do you think that there is any likelihood that there is a way to do that? I am not mystic, Meg. I cannot tell you what the House of Lords is going to do. It will be up to the House of Lords. There are conventions there, but not everything is put to a vote. Very often issues are raised in order to allow the Government to consider them. There is another amending stage.com, which is the third reading, but I am very grateful for the work of the whole range of members of the House of Lords of Dun, Lord Hope, Mackay of Clashfarn, David Steele, Jim Wallace, Daffod Wiggly, just to name a few of the peers who have discussed this on a regular basis. That discussion will continue, but it is up to the Lords to consider it. Lord Hope will have views on it. Lord Hope and Mackay are very distinguished lawyers, and they are approaching this in a legal way, but I think that it is the issue of how you allow the devolved settlement to continue to operate effectively that is at the centre of their minds. No Patrick, you were interested in the laws that I was going to bring in later, but I am going to bring in immediately after James Kelly now, since we have got into that area already. I suppose that the fundamental issue in all this is about dispute resolution. As I understand it, the Scottish Government's objection to the amendments that have been laid by the UK Government is that, whereas there is a disagreement between the Governments in terms of where retained EU law should be allocated, the arbiter in that dispute is essentially a House of Commons. The Scottish Government, with some understanding, is uncomfortable with that, and therefore you have put forward these two alternatives. In terms of the second alternative, which Mr Burns has just been discussing in relation to the order of the council and the use of a type A categorisation where consent is required by both parliaments? If there is a disagreement in terms of both parliaments, what is the dispute resolution there? There is not one in the sense that this is how you change devolved competence, and you would negotiate until you have an agreement to change devolved competence. The argument has often been put to say that there needs to be a resolution in that case. Somebody needs to win in this, so automatically it has to be the UK. That is true in devolution. At the end of the day, there is already the power for the UK Government to say in devolution, sorry, but we are going to do it our way. I do not like that. I think that is wrong, but that exists. The dispute resolution is built into the system, but so is the expectation that there will be meaningful discussion and negotiation, and that it will be done openly and above board by the parliaments. What we are talking about in terms of the system that is being talked about here is to be done by secondary legislation by ministers, and that is not the same thing. I understand what has been proposed in terms of trying to get the consent of both parliaments, but is there not a weakness in that if the Parliament is end up at loggerheads, there is no mechanism for resolving the dispute? With respect, there is. The UK Government can decide what it wants to do. That is also the weakness, and I agree that it is a weakness, that is also the weakness, for example, in the JMC dispute resolution procedure, where at the end of the day, if three out of the four countries involved in the JMC say that we do not like this, the UK Government is in the end the arbiter of the process. That is devolution, and I am not happy that that is the case. I think that other people are not happy with the case, but that is the case. There is a dispute resolution procedure, and it is as I have described it. You have repeatedly said throughout this that you are seeking to protect the devolution settlement. Can you give an assurance, as a situation develops, that that is your central aim, and you will not use the situation in order to try to trigger a second independence? In those negotiations, I have made it clear from the beginning that I am endeavouring to get an agreement, because my view is that that does two things. I think that that is very helpful, because I am able to point this out. First of all, it solves this issue of how we deal with the repatriation of powers, which is an important issue. I do not like Brexit, but I do not think that it is a good idea. I think that it will end in tears, but I have always said that this legal work needs to be done. That is the first thing, and that is what I am seeking to do. It has been a long ten months. I would be quite pleased if we were able to get that. The second thing that it does is that it lays the groundwork for further legislation that deals with the legalities of the EU exit and what follows thereafter. For example, in an agriculture bill, in a fishing bill and subsequent bills, it makes it easier for those things to happen in a way that we can concentrate on the political issues rather than on the technical issues. I am seeking, and I will give you that absolute assurance, to get a resolution on the basis of the devolved settlement. I do not like the devolved settlement, and I am absolutely clear that I would like to change it, but the process on which I am engaged is trying to make sure that the devolved settlement is not damaged by this process, and we come to a conclusion on those issues. You mentioned a few minutes ago that you referred to the new amendments that have been lodged in the House of Lords. I think that they may have been lodged on Monday. I only saw them on Tuesday, and I am not going to pretend to have had an extensive opportunity to fully understand them. I hope that the Government has. You tweeted yesterday, so I am very useful amendments that are now tabled in the House of Lords for the discussion of the EU withdrawal bill devolution clauses tomorrow. You were tweeting yesterday, so that is a discussion that will happen today. We do not obviously know what is going to happen in terms of whether they will be put to the vote, but it will at least be debated. You said that you are grateful to Lord Hope, Lord Macaiw Clashfair and David Steele, Jim Wallace and Daffod Wrigley for trying to help to resolve current difficulties. I wonder if you could just give the Government's reaction to the detail of those amendments without the Twitter character limit. Do not take that too far. There are two separate strands running in this. The amendments that the Scottish Government drafted were sent to the Lord Speaker by the First Minister at the weekend. They were in two sets. There is a set that allows Closet 11 to be removed. There is a set that creates the circumstances in which the section 30 and section 63 orders would apply. There is that second set that has been tabled by Lord Hope and Lord Macaiw. So, clear these amendments, we know they are very technical. I do accept that they are very technical, but essentially what they do is they do the second job. There is another set of amendments that are tabled in a variety of names. Wrigley is a supporter of some, which have different effects. They do not do the full job, I have to say, but they help to take this issue a bit further forward. For example, one of them that I think has Jim Wallace and David Steele's support—certainly Jim Wallace is sort and Daffod Wrigley's, I think that David Steele will be supporting it—is to do with nothing coming into effect until it has been accepted by the devolved parliaments. In other words, it would create a space for further negotiation until we were all happy with this, and then we would be asked to vote on it. Those are helpful. There are other amendments down a variety of amendments, but we do not have anybody in the House of Lords that is right and proper. We believe that is the thing that we should do. We have been, as we were with the Welsh Government on the last occasion with these, putting forward ideas and putting forward amendments because mending bills, as everybody in this room knows, are technical, and it is useful to get lawyers and others engaged in it. We have been helping with that and having a dialogue about it. It has been very helpful. I very much respect both Lord Hope and Lord Mackay. They are very distinguished lawyers. They understand things far better than I understand them, and they have approached it from a legal perspective, and they have been helpful. They are not approaching it from a political perspective, but they have been helpful. In short, within this group, there are some that would fully implement the second option that the Scottish Government has been proposing, and that you would be happy with. If those were passed, that would conclude the matter. If those were passed or if the UK Government accepted that it would do something similar or very similar, that would effectively resolve the impasse between the two Governments. Subject to the approval of the Parliament, yes. It would certainly allow me to recommend that. There are one or two others in this batch that I wonder if you could just react to, in particular one from Daffod Wigley about the joint ministerial committee idea, which suggests that that joint ministerial committee could take some actions when a majority of the Governments agreed to it. At the moment, that would be, I suppose, two out of three, which leaves open the possibility that not only would the Scottish Government have to accept a decision being imposed on it, but leaving aside the particular perspective of Scotland that, in theory, a majority Government might be capable of being told effectively to accept a position decided by two minority Governments. Would it be reasonable to assume that the Scottish Government isn't convinced that this is the right approach to shared decision making? I think that it's got interesting elements in it, and I'm not using that dismissively anyway. It's not a new idea. It was in the Welsh Government paper last August on these issues, and it has been refined a little. The element of the council of ministers was in an amendment from Lord Mackay at the second stage in the House of Lords. It's worth discussing. It would need to be worked through very carefully. Essentially, it works on a basis of pooling—not sovereignty is the wrong word—but pooling responsibility in order to operate. It formalises that. It doesn't deal with the issue of consent to change with legislative competence. I don't think that you could accept such a way of operating in terms of changing legislative competence. However, in terms of decision making within a group of ministers who were deciding details of a policy, it could be a way forward, but it would have to be well put together in terms of a rule book. Everybody would have to know how it would operate. I think that it would be the exception rather than the rule. For example, if you look at the issue of fisheries, there are good intergovernmental relationships that govern difficult issues that have arisen as part of the European common fisheries policy, which have operated without formalising it on that basis, because they operate on the basis that there is a shared interest in getting this right, and therefore people work on it. It is an idea that is worth discussing. I tell you what is really important here, and the Commons Public Accounts Committee's session was focusing on that, too. There needs to be a discussion of the relationships in these islands post Brexit. The Welsh have been very constructive and positive about starting that discussion and pushing it forward. We have not been quite as quick on it, but we are keen to take part in it. Parts of the House of Commons, where a Jenkins committee is focused on it, UK Government does not seem to want to talk about it yet. Of course, in Northern Ireland, there is a hiatus in the situation, so it might push us to have those conversations. I think that our experience, some of us were at the UK Parliament Committee on Monday as well, and I think that notwithstanding there are some very significant disagreements in this whole area, the willingness to engage in that dialogue is not one of them. I think that just finally I can clarify that you are saying that in relation to this particular amendment, there is the basis of a useful idea, but that is not its final form. No, and I do not think that Daffodd Wigley would say that it was its final form. The House of Lords raised a respectable and strong tradition of raising ideas and having debate. You can only get to speak normally if you put in an amendment. That also has an effect on it. You were interested in sunset closures. Just briefly, can I clarify before that the Scottish Government's preferred option would be that clause 11 is removed entirely? Is that your preferred option? No, there are two options. We have an equivalent support for both, which is either to remove clause 11 or to have these amendments. And have you considered any other options? Not at the moment, but if someone would come with a set of proposals that met our objective, which is to ensure that devolved companies can only be changed with the agreement of the Parliament, then, of course, we would consider it. However, that is the core issue. On the issue of sunset clause, I asked your statement last week about timeframes. You said that it was an issue of timeframe and consent. I know that there is an amendment in the House of Lords that would seek to limit the length of the sunset clause. A sunset clause is something that the Labour Party has called for, something that the Scottish and Welsh Governments have called for, and it is something that is proposed in the bill. I appreciate that you have a principled objection to the consent issue. I just wanted to ask you about the practicalities. It has been suggested that the UK Government would be unlikely to impose a framework, or to be a little point in the UK to impose a framework, in that sunset clause period, if the Scottish Government or the Welsh Government could then reject that at a later point. What would your response be to that suggestion and the practicalities of how it works? I think that you have to differentiate between the consent to the establishment of the frameworks and the operation of the frameworks. In terms of the consent of the establishment of the frameworks, then I think that it is perfectly feasible for imposition to take place, although the UK Government said that it will not impose. I think that that is a conundrum, which the committee may wish to ask David Mundell, who was very clear that it should not be imposed. That is the case. In terms of the operation of the frameworks, if the proposal is to be subject to SULE in terms of legislation and the normal process of intergovernmental activity, then I think that that can operate quite effectively. I do not think that the sunset clause really affects both. The issue of the sunset clause, in my view, is that seven years is a long time. If you have a change of competence to which you have not agreed, and you are bound by it for seven years, that is a very long time. The seven-year figure comes from the two years and the five years that are added together, so that at the very end of the existence of the first power, you are doing something that has a five-year life. It is a long period of time. That is my difficulty with it, but it is not my biggest difficulty with this bill. The biggest difficulty is the one that we are focused on. You were interested in the same area, I think. Thank you, convener. Good morning, everybody. You just mentioned the seven-year issue, and I am interested in exploring that so that people understand exactly what it means. Could you help to explain a wee bit about that? Is it reasonable to assume that the Scottish Parliament and the Scottish people on behalf of the Scottish people should agree that it is reasonable to transfer powers for seven years so that, technically, the UK Government can do whatever it wants for up to seven years? It would not be reasonable if that was what took place. I do not want that to take place. I make this distinction, and I think that it is a really important distinction between establishing the frameworks, that is changing the competence of the Parliament and the operation of the frameworks, which is an intergovernmental activity governed by the normal rules. You and I would like that system to be different. We would like a much more equitable system, but within the existing system, I think that one has to say that it cannot be agreed that there should be a unilateral change by secondary legislation by ffiat of ministers of devolved competence. That is not acceptable. However, if the Scottish Parliament accepts that these frameworks should exist, then it should—I cannot imagine that thereafter it would be difficult about saying as long as a normal process took place, then we would be able to operate them. It is that initial thing that is the real issue. If that is the thing that is done without consent, then the seven-year period becomes really intolerable because you are doing something that is being forced to do something to which you did not agree. Does that mean that it is reasonable that Westminster could then take control over GM crops or fracking or something like that? It is perfectly feasible as long as Mr Tomkins has pointed out, those are matters that lie within that list of 111. Now, as it happens, both of those I think probably do. Well, hydrocarbons was in it. Turn the list to 111. Well, let's clarify this because there's a bit of comment going back and forward. Can you describe to us what you understand? As part of that 111, were GM crops in it or were hydrocarbons? I think that GM crops are undoubtedly in terms of how they operate. In terms of hydrocarbons, I remember that they were somewhere on the list of 111. Can I—because this is not the central point—can we write to you about that point? Correct. I'll just get that clarified. Emma, is that your conclusion? Thanks. Ivan, did we still have some areas to go on the self— To kind of just tidy up on that, I think that we've kind of mentioned in passing, but it was roundabout the proposed intergovernmental agreement, and the concept that the UK Government would retain the power to restrict the competence of the Scottish Parliament, but we just give an undertaking that they wouldn't do likewise, and there's clear an imbalance there. I understand that the Scottish Government's proposal was that that should be balanced so that both would give that undertaking, but the Scottish Government, when the Parliament wouldn't be constrained by legislation, just want to talk through how you see that in terms of imbalance. It's one of the best of all possible worlds, which clearly we are not presently in, but we're eye-hopin. In that world, we would have a relationship based on trust, the two Governments. The UK Government would say to us, we hope that you don't do this, and we would say, we hope that you don't do that, and we'll sign a bit of paper, and neither of us is going to do that, and that's fine. What is being proposed, of course, is that there is a legislative restriction upon the devolved Administrations, all of them. The Northern Ireland one isn't presently in session, but all of them, but no legislative restriction on the UK. Now, this is allegedly because the UK is sovereign and cannot and will not be bound in that way, but that's a bit problematic because who knows who will be in government next month, next year, whatever. Entering into a voluntary restraint and then saying, well, actually, the circumstances have changed is perfectly feasible, and there's nothing that can be done about it. Whereas if you enter into a legislative constraint, you can be held to it. That doesn't seem to be sensible, and it doesn't follow the pattern of devolution. The more you think about this, the more I suspect people would say, why don't we just stick with the system that we've got because it's worked for 19 years and there's no reason why it shouldn't continue to work. That is the second set of amendments. That's the option where we accept that the section 30 process and the section 63 process are what has worked, and we operate that. I stress this again. This is about changes to legislative competence, changes to the powers of the Parliament. Thank you. Mordo, do you think that you would raise the Welsh Government? Yes, I'd ask a bit about the relationship between the Scottish Government's stance and that of the Welsh Government. The new minister worked very closely with your counterparts in Wales, Mark Drakeford. You've told us in the past that this is a quote for something that you told the committee last year. We are working very closely with Wales and we cannot envisage a situation in which Scotland would be content and Wales would not be or vice versa. You've talked about how you and your Welsh counterpart are worked in lockstep and that you are in exactly the same position. The clear that was the position up until about a week ago, it's not the position anymore. Why has the Welsh Government, in your view, now been able to find compromise with the UK Government and reached an agreement and you haven't? I think that we've found compromise in the sense that the discussion that we were having is very different from the discussion that we were having last July, but we've not reached trying an agreement. I'm tempted to say that you must ask Mark Drakeford that, not me, because it's clear that he's responsible. I will see him this afternoon. Indeed, I'll be in the Welsh Government offices this afternoon where we'll have our pre-meeting, as we sometimes do. We will discuss a range of issues that will come up in GMC, most of which we will agree on. I'm absolutely sure. On this central issue, there will be reasons and political reasons that he has not and the Welsh Government have decided not to continue in the same way as we have continued. I suspect that one of the issues is the context that Wales voted to leave and Scotland did not. That is a significant factor. The make-up of the Welsh Parliament is different, so there are many of those reasons. I said last week in my statement in chamber that I just want to repeat. I anticipate—both of us anticipate—containing to work closely together on all of those issues. We do have a disagreement on this issue, and that is a disagreement that we accept openly, and no doubt we will discuss openly. On most issues, we remain very much focused on the same problems in trying to resolve them. I'm certainly not going to fall out with Mark, and I anticipate that he's not going to fall out with me, no matter the provocation from whatever site. I wouldn't expect you to fall out with him, minister, but given everything that you've said up until now, you're working in lockstep, you're in exactly the same position, and you can't envisage a situation where you depart, the difference in tone and language is quite striking, isn't it? Looking at what Mark Drakeford said just last week, and I'll just quote a can from his statement, because it's quite important, he said that the original draft bill meant that powers already devolved would have been clawed back by the UK Government post Brexit, and only ministers in London would have had the right to decide if and when they were passed back to the devolved parliaments. That was totally unacceptable. I went against the will of the people of Wales who voted for devolution in two referendums. We are now in a different place. London has changed its position so that all powers and policy areas rest in Cardiff and Edinburgh, unless specified to be temporarily held by the UK Government. Those will be areas where we all agree common UK-wide rules are needed for the functioning of a UK internal market. London's willingness to listen to our concerns and enter serious negotiations has been welcomed. It sums up by saying that this is a deal that we can work with that is required to compromise on both sides. Our aim throughout these talks has been to protect devolution and make sure that laws and policy in areas that are currently devolved remain devolved and that we have achieved. That is very different from the position that you've outlined to us this morning, Minister. Given that you've got three parties here, the UK Government, the Welsh Government and the Scottish Government, two of those parties are now in agreement. With very warm words about compromises and agreement on both sides and willingness, surely the people left out of step are the Scottish Government. Is it not there for more about you playing politics than it is about trying to find a solution as the Welsh have done? Let me take all of that apart from the last two sentences, which are clearly designed to be politically provocative. I am not going to get engaged in those. I have said to Mr Kelly quite clearly that I am seeking a negotiated outcome. I will be seeking that today and I will go on seeking that. I am doing that on the basis of protecting devolution. I do not disguise, I disagree with Mark on that analysis. I will say that to him today, to his face and no doubt we will discuss that issue. I disagree with that analysis because I believe that the changes to legislative competence that are being proposed are contrary to the devolution settlement. We live in a country of asymmetric devolution. Wales has only recently, on 1 April, moved into the model of devolution in terms of reserved powers that we have. I think that there are significant differences in how we view devolution because of that history and how we have operated, but there are also significant political differences in the country in terms of nature of devolution and how it operates. Wales only got primary legislative powers. Is it two or three years ago? I am happy to check it out, but only two or three years ago. So there is a difference in devolution, there is a difference in political culture, there is a difference in the makeup of the Parliament and clearly a difference in analysis. I have friends with whom I have a difference of political analysis. It does happen. I can still work with those people. I still enjoy their company and I still think that we have got lots in common, but from time to time we have a different view. On this matter, which you have outlined so well, but primarily because you have quoted Mark Stone's words, we have a difference of view. Do you want to quote any more? I could happily spend the rest of the morning quoting more, but I think that I made the point and the minister has given his view clearly a different approach. Alexander? Thank you, convener, and I appreciate it. It may seem repetitive given your previous answer, but you have repetitively told the media, Parliament, MSPs, committees, including this one, of being in lockstep with Wales in exactly the same position. I will not quote the numerous incidences, but you have the JMC this afternoon. How do you think that changing your position is going to affect Scotland's standing, particularly around the agreement that is shown with the devolved Governments? Do you recognise that this has probably weakened the collective bargaining position of the devolved bodies by backtracking on your position? I do not understand changing position. I have not changed my position at all. The position we are in is perfectly consistent from the beginning. I am speaking as the Scottish Government representative on the JMC this afternoon, and I will make the points that I have made to you. I will also, as is my want, come to that meeting with solutions rather than just problems, and I will be at that meeting with two solutions that I believe could be implemented. I think that that is a strong position to be in, because I also think that, paradoxically, as I said in a television interview on Sunday, it was easier to solve than it was last week, because it is absolutely clear what will produce a solution. There is no dubiety about it. We are not beating about the bush. A solution is in hand and, indeed, it is on the order paper of the House of Lords. I think that that is a positive thing. Neil, you were interested in areas of general negotiation. Is that being covered or do you want to… No, I just… My colleague Neil Finlay raised the issue of cross-party working and perhaps the lack of a cross-party approach over recent weeks of the Delegated Powers and Law Reform Committee yesterday. Further to that, given that the Welsh have a deal that we still have a current stalemate between the Scottish Government and the UK Government, and if the Joint Ministerial Committee today does not provide a way forward, is it not time and would it not be the responsible thing for this Parliament to establish some sort of cross-party delegation or commission to find a way forward to negotiate a deal that works for Scotland, a deal that everyone can get behind in this part? Well, this is the responsibility of the Government to enter into negotiation with other Governments and then to bring the results of that to the Parliament. I accept Neil Finlay's point, which he made to me yesterday at the Delegated Powers Committee, that it would have been better to draw him and others in earlier last week, and I accept that. I am absolutely clear about that. I do not accept the point that was made to me by the Liberals that I should have announced the Welsh position to the chamber. That is not only something that I could not do, but I did not actually see the final letter from Wales until after I had spoken. In those circumstances, I do not agree with that. I did speak to Neil Finlay last night, and I spoke to Richard Leonard last night, and I spoke to Willie Rennie yesterday, and I am in regular contact with others. I have undertaken to make sure that there is regular information provided as we are in a very sensitive period at the moment. We will meet and discuss those things, and I am very open to them. At any time, if anybody wants to come and talk to me about it, or I go and talk to people, I have informal conversations with Mr Tomkins and others, and I think that that is useful to have. If there is a possibility of us taking this forward and people have good ideas and they are being provided with information, then I think that collectively we can apply our minds to it. There is a Government responsibility here, and I think that I must exercise that on behalf of the Scottish Government. Final question, minister. There is a GMC this afternoon. At this stage, can you tell us what might be discussed, what is going to happen? Is this the last throw of the dice, or is there some way to go yet in terms of negotiation? We know what the timetable is, because presuming that the House of Lords has its third stage on 16 May, and it may or may not, that would be the last amending stage. We have to have a legislative consent motion, so the timetable that we have set for, I think that you will report before then and have a debate in the chamber on the 15th, I think, is presently what is proposed. I will go on discussing, negotiating, having ideas and trying to talk about this right up into the wire, and possibly beyond, because I think that it needs to be resolved. The GMC today will consider, obviously, that this will be on the agenda, there will be other items on the agenda, and that is not the only thing that is being discussed, and I will report accordingly. The supplementary legislative consent memorandum that the Scottish Government published in the last few days talks about a range of issues, and one of the issues that it talks about is the possibility of there being some sort of, not very well defined yet, that is not a criticism, but some sort of partial consent to the withdrawal bill. If I have got this right, it seems that the understanding is that, in that event, bits of the withdrawal bill will sit alongside bits of the continuity bill, which I actually remember referred to earlier, which we passed in this Parliament by majority a few weeks ago. Has there been any legal analysis or indeed political analysis on behalf of the Scottish Government or undertaken by the Scottish Government about the logistical compatibility of those two pieces of legislation sitting alongside one another? If so, is there anything that the Government can share with the committee about that? I did refer to it extensively during the passage of the continuity bill. It is an area that we dealt with quite extensively during that. I think that the policy memorandum Gerald deals with it too. It deals with the policy memorandum in the best possible sense of the continuity bill paragraphs 12-20, set out various scenarios for the operation of the continuity bill alongside or in tandem with the withdrawal bill or not. We also discussed this with the Delegated Powers Law Reform Committee yesterday. There is an analysis set out in the public record. I do not know if you want to answer that question before I ask Luke to say a word on that. I think that the official report of the Delegated Powers Committee tomorrow would be helpful because we did go into some detail about the range of options and how they sat together. The purpose of getting the continuity bill and some elements of the withdrawal bill to work together was, and this was set out during the passage of the bill, to protect the ability in appropriate situations to continue to be able to make UK-wide fixes to deficiencies when they arose and where it was appropriate for a UK-wide fix to be made. The supplementary legislative memorandum sets out some options for achieving that, and the minister went into more detail about that yesterday at the Delegated Powers and Law Reform Committee. The essential core of the proposition is that a qualified consent would be given to clause 7 of the EU withdrawal bill, allowing fixes to be made in devolved areas. Obviously, as Professor Tomkins points out, that would require some work to be done. We have been quite straightforward, quite clear, that it would require work on behalf of the UK Government as well, but that is the intended operation of the two bills alongside each other. It would actually simplify the complex process of the burden of secondary legislation. The reason why I raise this is because, and I recall what was said in the policy memorandum, but the policy memorandum is now a rather historic artifact that relates to a bill pre-amendment and that analyses a withdrawal bill, which at that point had not been amended in the House of Lords. It would be useful if the minister would reflect on whether the Parliament could be better and more fully informed before 15 May, if that is indeed the date. On the question of the compatibility of the bills as they now are, or as they will be on that date, rather than as they were months ago, when the continuity bill was introduced, it is also the case that a number of incompatibilities between the continuity bill and the withdrawal bill, which were not identified in the policy memorandum, were identified by opposition MSPs during the passage of that bill through this place. It would be useful to record the fact that I indicated yesterday that there are elements of the continuity bill, for example, in the sifting procedure, where we believe there are better procedures, which we will still try to have here, no matter what takes place. However, I will reflect on that and see what we can do.