 Good morning, and welcome to the seventh meeting of the Equalities and Human Rights Committee. Can I ask if anyone has a mobile device to have it switched on flight mode and on silent place? We have apologises this morning from David Torrance, who is unwell and won't be joining us, and Alex will be joining us as soon as he can. Moving on to agenda item one is our inquiry this morning on the departure of the UK from the EU and the implications for equalities and human rights. We have a panel with us this morning who are Lynn Welsh, who is the head of legal in Scotland, equality and human rights commission, and Judith Robison, who is the chair of the Scottish human rights commission. Welcome and good morning. Thank you for coming along to the committee, and thank you so much for some of the written evidence that you have already provided and the support that you have given to some of the committee members in understanding the whole rights agenda. We appreciate all your support, but we particularly appreciate you coming along to speak to us this morning on this very particular issue, which is about the implications of the human rights and rights-based policy should Scotland leave the UK leave the EU. I am just going to go with a very broad opening question and ask you both if you can give us some insight into the implications on the rights agenda and on the Human Rights Act and other international obligations should the UK leave the EU. Before turning to the implications of the legal protections of human rights, it is worth reflecting on some of the broader human rights concerns around Brexit. The first of those concerns from our perspective is the impact on poverty and the adequate standard of living that has happened and will happen in the short to medium term. For example, we can speculate Brexit is likely to have an almost immediate impact on people's rights to an adequate standard of living enshrined in international covenant and economic social cultural rights. The following pound, at least in the short to medium term, will mean that there are real rises in the cost of living, especially in relation to food and fuel. The UK relies heavily on food imports, 30 per cent of its food, and the price of food will rise as sterling falls and remains low for a prolonged period. Food insecurity is already on the increase, but you can see that through the increased reliance on food banks. The proportion of people living in fuel poverty remains well above acceptable levels. That is not likely to improve in the current post-Brexit economic climate. It is worth making that point about that this is not something for the longer term, this is something that is going to happen now and will happen in the short term. In the longer term, we must be wary that the Brexit circumstances of economic uncertainty lead to a levelling down of workers' rights in the name of economic competitiveness. Unions have already expressed their concern about that. On the flip side of that, a positive human rights record and progressive protection should be seen as a means of attracting inward investment and supporting people in supporting the economy, as opposed to a drive to the bottom, a race to the bottom in terms of workers' rights as a way of making our country more attractive, having removed ourselves from the EU. How long do we want to go on for this bit? I can give you quite a reasonable introduction. If I cover the basis, you can come back to me on some of the key points. In relation specifically to the implications of Brexit in terms of legal protections, the commission is concerned that human rights, protecting fairness, justice and dignity, stand to be eroded as a result of the UK's changing relationship with Europe. The Charter of Fundamental Rights became legally binding on EU institutions and our national governments with the entry into force of the Treaty of Lisbon in 2009. It is directly applicable in domestic law of the UK by virtue of the European Communities Act and in Scotland by virtue of sections 29 and 57 of the Scotland Act. The Charter reaffirms the rights, freedoms and principles that are already recognised in EU law. It does not create any new rights, and it is divided into a number of sections. However, as the Charter of Fundamental Rights only applies where an EU member state acts within the scope of EU law, once the UK has formally left the EU, the Charter will cease to be binding on the UK and have effect in domestic law. The current Charter, as it sits, provides a range of protections. It does not give us particularly new rights, but it provides those protections in relation to EU law, and when we lose those protections, we will no longer be there. I can detail some of the protections if you like. The information is out there in the public domain. The Charter also contains rights and freedoms beyond those protected by the European Convention on Human Rights. Right protection of personal data, arts and scientific research shall be free of constraint, and academic freedom shall be respected. The right to a fair trial is not restricted to civil rights and obligations and criminal charges. There is a range of rights that go beyond the terms of the European Convention. From our perspective, the potential loss is threefold. It would mean a reduction in human rights protections—basically the loss of Charter protections in the scope of EU law and where it goes beyond that into privacy, data protection and a fair hearing. Furthermore, an EU exit may represent the loss of potential for the further fuller protection of social rights or principles contained in the Charter. That is what potentially could happen in the future. If we are no longer in the EU, the progressive changes that would be made in the context of EU progress would no longer be something that the UK would be accessing. That loss of potential progression would be gone. Finally, the Charter has been a value not only in its provision of substantive social rights but in the contribution that it makes to the interpretation of a range of rights. Its provision is what they call a consolidating instrument, something that brings together rights and articulates and strengthens the scope of human rights. The other dynamic that is important to outline is the increased vulnerability of the European Convention on human rights. As you will know, the European Convention on human rights is not an instrument of the EU, but an instrument of the Council of Europe. Therefore, it is directly not under threat as a result of us leaving the EU. However, it is worth considering that the impact of the loss of the Charter and withdrawal from the EU is that the European Convention becomes increasingly vulnerable to UK withdrawal. As a deterrent to holding on to the convention, EU membership is removed and the mitigating protections provided by the Charter of Fundamental Rights are removed. Basically, the Charter itself exists. Apparently, there is some dispute as to whether or not membership of the EU technically requires states to be a signatory to the European Convention. At a level, it does not matter. The expectation is that the EU demands a high standard of human rights protections within its member states. Any attempt by the UK Government to remove itself from the European Convention or to stand back from aspects of the European Convention would be at the very least distinctly frowned upon by the EU, and that would be something that it would be called to account for. When we leave the EU, that will no longer be the case. While there is no direct vulnerability to the European Convention of Human Rights as we are all leaving the EU, there is a holding to account process that the EU provides on the UK in relation to its general expectations of the standards that countries are expected to meet will be withdrawn. That means that the ability of an administration in Westminster to stand back from some of the aspects of the European Convention is actually strengthened. That is of a significant concern, particularly given the context of the public debate around the European Convention and standing back from aspects of it. In summary, in terms of the actual implications on rights—I will stop there and ask questions on that or take that further—principle risk is the current impact on the most vulnerable and marginalised economic uncertainty and the new trading environments that are leading to an erosion of rights, the loss of legal protections that the charter provides and the risk to the European Convention on Human Rights and the kind of backstop that Europe provides in that context. That would be our three key points in relation to the potential risks. Thanks very much, Judith Llynde. Do you want to? I will maybe concentrate a bit more on the equality side, just to complement what Judith Llynde is saying about human rights. Obviously, a lot of our equality rights in Britain came from the EU in the first place. A lot of them did. Although they are now enshrined in the Equality Act 2010, most of them. When Brexit occurs, that act still remains in place, so there would not be an immediate diminishing necessarily of discrimination. Excuse me, rights that are contained within the Equality Act 2010. Although who knows going beyond that what might happen because the underpinning EU requirements that mean that the Equality Act 2010 is as it is would be removed and so it could be chipped away at as we go forward, which obviously is a commission that we wouldn't be wanting to see, but there are also, I suppose, rights that aren't put into the Equality Act that comes directly from the EU, and those would drop away at an earlier stage. Although the UK Government has obviously said that the great repeal bill will hold those until they are given further consideration, which is certainly something that we would support. So they will hold the regulation that would disappear when the EU act is removed in Britain and allow all of that regulation to be considered properly and over a period of time rather than it all is dropping off a cliff at the time that we break it. We would want to see the UK Government doing a full equality and human rights impact assessment of any suggestion that any of that law be removed as we go forward. The Equality Act itself goes, in fact, beyond EU regulation in many areas, for example goods and services protection and disability and sexual orientation, which isn't directly required by EU regs. There is some concern that those areas might be chipped away at more quickly, or that issues, for example, reducing the amount of money that you could get if you are successful in discrimination claim, which isn't allowed under EU law, but when that goes, would be something that could be removed or reduced fairly quickly. What we, as a commission, hope to do, and perhaps I know others, academics and others, to start to try and map out ourselves where those areas are that might be under attack as we go forward, or indeed where there may be opportunities if there are any from coming away from EU regulation. There have been suggestions, for example, that we could extend stuff like positive action, which at the moment is stopped where it becomes positive discrimination under EU law. There might be more opportunity to extend that slightly further, or the removal of procurement rules may allow an opportunity to look at building better equality in human rights considerations into procurement to try and look at it in a positive aspect as well as the negative. I suppose that, like Judith, our concern is that we lose a charter of fundamental rights, which is not only a human rights protection but also an equality and anti-discrimination protection that is involved with it. It has the benefit, for example, that the non-discrimination part of the charter does not need to attach to another right when you are making a claim in the way that the ECHR does. You have to have a right to family life claim that you can then attach an anti-discrimination claim to, whereas if you use the charter, you do not need to do that. You can just go at it for non-discrimination. We would lose that right as soon as we leave Brexit and the charter falls. I suppose that what we are also concerned about is the lack of continuing court decisions. A lot of the decisions that have been made in the European Court of Justice have been very influential in expanding and improving our equality legislation. We are looking at trans-status sexual orientation being a part of sex discrimination, looking at insurance payments and the difference in sex between the current insurance for men and women. Various and many court decisions have improved our legislation and that no longer will be there. The rulings of the ECG will not have the same kind of effect as they had previously. We have concerns that people may start to try to relitigate equality legislation if it is no longer being looked at through the lens of European regulation, which at the moment it needs to be and the decisions of the ECG. Will people start opening up stuff like equal pay again to such a right? We do not need to consider it in light of what the EU thinks. In fact, we see our British legislation as a concern instead. There are wider pieces of legislation from the EU that are in the pipeline that we may not see particularly as anti-discrimination legislation. There is a large accessibility European Accessibility Act just as an example that is in the pipeline from Europe, which opens up the requirement to have accessibility in relation to things like ticketing machines in ATMs, televisions, phones. An area that disabled people are constantly fighting to improve in this act would, once it gets through, that you have brought in huge benefits for disabled people, but it is unlikely that that is going to come through before we leave and therefore we lose that on-going influential legislation as well. That covers our general concerns, I think, around Brexit. A timing for this morning, I will go to open questions to colleagues. Thank you, convener, and thank you very much to Lyn and Judith for your presentations. I wonder if I have a couple of questions to start with Judith, but Lyn, feel free to jump in if you want. I suppose that the key one round is potential risk, because none of us actually know what is going to happen in the next two years, three years. I suppose that is going to be the caveat. My first question is, if this Parliament or Westminster wants to re-legislate in regard to things that are present within European law, there would be nothing to stop that happening. The things that you have talked about, that might go, that might go, or that might go. Presumably, over the next two to three years, if there is a will within this Parliament or Westminster that is appropriate to legislate on that, that could happen. Why do not you think that that will happen? I think that you are absolutely right, and we warmly welcome any statements and tents that would absolutely generate that. In fact, the bit that I was going to go on to next is what can Scotland do in relation to that? What can the Parliament do? Not only is there nothing to stop the Parliament, but we would be recommending that you proactively put steps in place to ensure that in terms of mitigating steps. To look at, within the competence of the Parliament, what areas you could build in protections that would have been lost, but might be more progressively put in place protections that currently do not exist. That would extend into aspects of law, such as incorporation of economic, social, cultural rights, where the Parliament is extremely well placed to bring into Scottish law the ability for citizens to have recourse to redress in relation to those rights and potentially take world-leading progress to do that. To be honest, you can do that now. You do not need to wait for Brexit in order to make that happen. That is something that you have within your gift. Westminster, again, you are absolutely right. There is a great repeal act. To some degree, depending on what it looks like—no guarantees, but it is intended to do just that—the unfortunate circumstance is that it does not provide. Once that has happened and we have left the EU, we can make progress, but there is distinct concern that, for a whole range of reasons—a key one for me is that we need to have independent trade negotiations providing a context in the UK where we see the need to undermine things such as workers' rights, health and safety protections and a whole range of protections that do not come from the EU—we have them within domestic law—in order for us to apparently create that competitiveness that those things are removed or diminished or are gradually undermined. Clearly, there is no guarantee and we could go further, but there are real risks. I suppose that the second question is coming up. Perhaps Lynne use the word chipped away a number of times in her presentation. Why do you think that things might get chipped away and, ultimately, is not it a positive thing that this Parliament, our courts, can make the decisions that reflect what the Scottish people and British people want? Again, I am not quite sure why things necessarily need to be chipped away. That would have to be because there is a political will for that to happen. Are you sensing that coming? It just felt slightly negative in your presentation, if I am honest. I wonder if you would like to comment back on that. That is probably true. It was probably more negative than it perhaps should have been. In our job as a regulator, we get concerned when there are changes as substantial as this. We know that there will be likely a loss going forward if we do not remain within the EU regulatory framework. Even if we keep the legislation that we have now, it would take a great will of both Parliaments to try and progress changes that are made in Europe here. It is quite possible to do that, you are right. It is something that the commission going forward would very much want to look at and to keep people abreast of changes in Europe. Your right regulation and legislation could be made here. The couple of areas that I might have commented on, for example, the reduction in the amount of awards available in discrimination, we have looked at simply because the present Government had previously considered removing or reducing that and then realised that they could not. I suppose that was simply that, oh, we know that we have looked at that already and had a view on it. If that view continues, that may be an issue once the EU regulation that stops that falls. However, as I said, we hope that there are positive opportunities also that could come out of the EU. We are trying to see what those might be and, like Judith, how much of that could be done here in Scotland. Obviously, equality of opportunity is generally, mostly, but not entirely reserved, so it is perhaps more difficult in discrimination. However, there are a number of areas—public sector duty is an obvious example, but there are also areas around equality in housing, taxi regulation, education, where the Scottish Parliament has used its own rights not to create discrimination law, but equal opportunities legislation. It would be good if the Parliament were able to consider further how those could be extended and how the new devolution of equal opportunities that came in in Scotland this year could also be used to advance equal opportunities in Scotland. One of the things, in order to realise some of those protections and both your presentations, you are saying that there is work that could be done here. Have you done any work on the scale of that and the implications for it? How long it would take to—in what specific areas we should target in Scotland but at a UK level, in order to ensure that some of those protections remain in place? My commission's short answer is that we are starting to—it is a huge piece of work. It is huge. I would think so, yes. If you want to think about it, it would be. We have already started and we are anyway looking at what the equal opportunities devolution may look like and what the Scottish Parliament could possibly do around that. It is not the clearest piece of legislation in the world, but now that we want to look much wider and consider what devolved rights are supposed to come back from the EU, because not all of that will go to Westminster Government. Some of it will come here and how much human rights and equality areas that could involve—it will take quite a bit of work to do, I think, but it is a piece of work that we will be doing across Britain and particularly in Scotland. I suppose that there are very early opportunities, due to what I was talking about—poverty. The socioeconomic duty, obviously, has now been devolved or the right to trigger it in Scotland, has now been devolved. I think that the present Government has indicated that it would intend to do that relatively quickly. Now, that is not a panacea for the problems that may or may not arise from leaving Europe, but it would certainly be a good step forward that this Parliament Government could take quickly. Thank you. I wonder if you would like to perhaps expand on the issue of employment law and workers' rights, because there is a huge amount of stuff that has come out of Europe in relation to protection of workers. There are two strands to the question. One is the on-going implications of the move towards leaving Europe, because in some areas there is a lot of resistance to the protections that have come out of Europe for workers. I wonder if you have any concerns over almost a chipping away before we get to a point where we will leave Europe in some sectors of workers' protections. Obviously, after we leave Europe, we are at risk of losing the protections and the employment legislation that comes from Europe, but is there a way, post Brexit, that we could almost peg ourselves to what is happening in Europe? Chipping away before we leave Brexit, I think that the answer is no. It should not happen, because the EU floor, if you like, will still be there, and so those cannot be removed. The great repeal bill in the UK Government has committed itself to take all of the fixed time working and part time working, all of those regulations that might otherwise fall away and keep them. We do not expect a diminishing in those, hopefully ever, but certainly not for a period of time. It is worth adding that we will—again, this is one of the big unknowns—what our actual trade relationship with Europe looks like. The European Communities Trade Relationship demands some expectations around human rights, aspects of workers' rights. It may be that, in terms of a trade relationship with Europe, some of those, although it may not be something that we are actively—I am not saying that we are going to wipe away our employment legislation—please do not misunderstand that. Although it may not be something that is protected by Europe, in terms of our relationship and our negotiated agreement with Europe, that might be aspects that we could both advocate for, look at and hold on to. Who we are having those relationships with will also have impact on how those trade negotiations are negotiated and what the substance of them are. I think that it is both to be welcomed and actively encouraged that we make human rights, workers' rights, a key part of those negotiations that we are not just either left off the ticket but are actually part of the consideration. If they are not, then the risks increase over time. I think that that is an important aspect to be holding in our thoughts. I suppose that a concern of mine is that if we wait to believe—I suppose a fear that it is too late because we are already starting to slip—part of those negotiations is that there is a job for Europe to do as well, so that when they are negotiating with us, it is up to them to say, if you want this, this is what we expect of you. Is there two sides to the coin? That is exactly right. I think the word—in all of our trade negotiations and setting up the economic area, for example, there is a requirement that you meet the employment rights generally if you want to trade, so it is very likely, I would guess, that those will be on the table from Europe anyway. Again, it very much depends on what kind of Brexit we have, the extent to which workers' rights would be affected. You rightly spoke about the fact that this Parliament is already empowered to go further in the human rights agenda should it so wish, particularly with the incorporation of various international treaties into the Scottish law, to give our citizenry access to justice, but yet that is obviously up to political will to do so. On political will, I wonder if the panel can give us their reflections on the fact that there is a certain element to which various administrations, both at Holyrood and Westminster, have hidden behind European rulings on unpalysable human rights decisions. So, for example, I am thinking on things like prisoner voting. I wonder now, with that being withdrawn—and, as we know, prison, that kind of thing was used by the leave campaign to further their cause—with that sort of pressure or the reality of that being withdrawn from Europe, what do you think will happen and is that now a subject of political will where we will have to take tough decisions and grown-up decisions, but we are empowered to do that? Do you see any barriers to us taking those decisions going forward? Quite a multifaceted question. Fundamentally, there is a job to do to understand the human rights implications of any of this, but also to promote to the population that human rights are for everybody. Even prisoners have human rights. The catarisation of unpalysable rights is something that the Parliament particularly could play a particular role in making, as you say, mature and responsible. Those are the fact that we, as a civilised society, would like to engage all our citizens in the universal application of those rights, as is enshrined in the treaties that we are signed up to. That is an important aspect of the whole terms of the debate. In fact, the terms of the debate are something again that the Parliament could play a significant role in improving and holding both themselves responsible for that process and others, responsible for ensuring that the terms of the debate do not characterise decisions made around human rights, where they are genuinely holding our Governments and our decisions to account for the rights of individuals in all sorts of settings. That is really important. That is my statement in relation to that fundamentally. Some of the specifics are that there is real potential. In fact, what is interesting about the public debate around Brexit is the degree to which people's rights are being brought into sharp relief and focus, partly because of the risks that are attached to it. That creates an opportunity, political space and the space that the Parliament can move into to say that we are going to take some progressive action here. We are going to act to ensure that the backstops protection that Europe provides are not just going to be maintained but to be added to and developed and built on. That message is potentially really positive. It is a positive one to our citizens and a broader articulation of what the human rights agenda really means, that we all have in relation to almost all aspects of our life and that the Parliament is going to be committed to ensuring that. It is a really important message, not just a message, but a delivery. Thank you. For the record, I do not find prisoner voting unpalatable at all. It is absolutely something that we need to recognise as a fundamental human right. Reflecting on your answer, I welcome it. The challenge that is before us now is to rise to that space or to grow into that space. We have to take these adult decisions for ourselves as we cannot rely on a European Court handing down rulings that we have to follow and say that we do not like it or whatever when it is not palatable. However, that is the challenge. Until this point, this Parliament has failed that challenge, particularly around incorporation of other rights treaties, particularly in my own sphere of interest. I declare an interest as a former convener of the Scottish Alliance for Children's Rights that children do not have access to justice when their rights are impinged because we do not have incorporation of the UNCRC. Thank you for your response and I think that you articulate very well the challenge before this Parliament. To add something else to that, because I think that there is an important aspect that the Parliament can also take into consideration, as well as holding Government to account for this. I fully do not place all the responsibility on the Parliament, although I have a big share of it. It is about the potential opening of a gap between the rights that the EU goes on to provide to its members and the potential that, if we do not monitor that, our rights will either go backwards or do not progress. That is an important aspect of what the Scottish Government and the Parliament can do, is to monitor that, make commitments to maintain the rights that we have and effectively either peg it to it, be explicit about that or take that action as legislation goes forward within the EU. That is no small task, and the scale of that is huge. The issue for me is that the resources applied to that process and to maintaining that process within Scotland could be significant. I will add quickly. Leaving Europe or the EU does not mean that we leave the European Convention of Human Rights and the European Court of Human Rights. They are quite separate. I do not think that all the public perception sees the difference between the two. The European Convention would still be there and be directly applicable. We, as a commission, are very in favour of international treaties being incorporated properly into law both here and down south, and especially where we may lose some rights through leaving Europe. Introducing those treaties may well fill some of that gap in discrimination law as well as in human rights law. There is an opportunity, I guess, if there is always an opportunity in Scotland that we can legislate in this way when we wish. We also, as a commission, are suggesting that if the Bill of Rights, the change to the human rights act or a new Bill of Rights, comes on to the table in the near future, that is an opportunity to look at how you can take some of the fundamental rights of the EU charter and attach it to British human rights law. It is not always that we see the concerns around a Bill of Rights or a change to the human rights act that there are opportunities there to use that to expand and extend human rights in Scotland. Thank you very much, convener, and good morning. I was going to come to that very point there. The UK Government has made it pretty clear that it wants to abolish the human rights act and replace it with this unknown Bill of Rights, whatever that may be. I hope that we guard against the notion that, instead of a sense of chipping away, we can replace things when we like at some future date. At least some of us think that it is pretty naive to think that the UK is suddenly going to replace everything with something equally as good or better. I think that you have articulated some of the worries and fears that are justly being made. In terms of Scotland's part in that process, our Parliament is required to act when it passes bills that comply with those aspects and obligations. How do you see that panning out if we lose the human rights act and when Scotland is in a position where A wishes to retain it and is obliged to legislate to retain that in this Parliament? That presently requires the Scottish Parliament to legislate in line with human rights and in line with EU law. Both of those will have to be removed at some point, I guess. If we leave the EU or if we do away with the human rights act, it would be for the Parliament here to take a view on what happens in relation to that. Obviously, the human rights act itself is a reserved enactment and therefore not one for the Scottish Parliament, but anything that follows that since human rights is devolved, anything that follows that is absolutely in the hands of the Parliament. If you would not want to see the contents of the human rights act or if you would want to go beyond that, that is perfectly open to this Parliament to do. That is clearly a constitutional issue. We would still be bound by the terms of the European convention. At the moment, there is no attempt or apparent threat—although it has been mentioned previously by Theresa May that that is something that she thinks we should be potentially withdrawing from. That seems to have been put on hold. We are still bound by the terms of the European convention. The vagaries of the constitutional law, as it would progress, would be interesting. My expectation would be that any Bill of Rights that would be brought forward would potentially be the thing that might replace that within the Scotland act. I know that there are views within the Scottish Parliament and Government as to the repeal of the human rights act. Certainly, from a Scottish human rights commission perspective, we would oppose a repeal of the human rights act. We think that it provides strong and good protections in a whole range of areas, and there is no need to repeal it. Any further progressive that we might want to make in relation to the delivery of people's rights can be done through additional legislation. The Government can do that, and that can happen at Westminster. To be clear, we are very clear that there is no need to repeal the human rights act and we would oppose it. Notwithstanding what the Scottish Parliament could do, the constitutional issues that it raises, my understanding is that one of the constitutional issues is indeed one of the big factors in preventing the repeal of the human rights act, which clearly is, from my perspective, a positive thing. You talked about legislation that might be coming along from Europe that we would lose. Therefore, we would miss out on when the UK leaves the European Union and you talked about some anti-discrimination measures and so on. You mentioned things like ticketing machines, phones, TVs and so on, which would especially be assistance to disabled people. For me, it is unthinkable that the UK would not want to comply with that, even from a trading perspective. If it wishes to remain and retain any kind of trading relationship with the European Union, as I am sure it will try to negotiate, it would be utterly ridiculous for it to not observe—in fact, it would even be obliged to observe—that kind of legislation when it comes through. Norway will be in a similar position if it wants to retain its trading association with the European Union. The sense that the UK can walk away and take all its power back and ignore everything that is happening in the European Union is a mirage and it will have to comply in my view. Do you have a view in that aspect of how the trading negotiation between the UK and the European Union will pan out? To be honest, it depends on the question at the moment that it is quite difficult to answer that. When I give the example, I give it because if we had stayed in the EU, it would automatically become, in its entirety, part of what would have to be transposed into the UK law. Since that will not happen, how it comes in, if it comes in, the extent it comes in, will all entirely depend on your right on the relationship that we have with the EU going forward. It is likely that there is a strong trade relationship that, yes, it would be required in some ways to comply, but it is just such a huge, it depends. I know that that is unhelpful, but at the moment, that is the position that I think is the position. I mean the same would apply to the rights of European Union citizens should they remain in the UK in terms of their rights and workers rights and so on. It would be hard for me, convener, to think that the European Union would be happy to enter into any kind of trade relationship with the UK where its own citizens to lose or their rights to be affected or diminished whilst remaining in the UK. Is that something that you think might be uppermost on the table for negotiation in the next few years? I do not know, is the short and truthful answer. I mean we have certainly called on the UK Government to clarify its take on how EU citizens presently in Britain should, what might happen to them. I know that the Scottish Government, again, has been strong in welcoming and making its view clear of the additionality that our EU brethren bring to the country, but I honestly do not know what the UK Government is likely to do in relation to their relationship with the EU as we go forward. It will, again, depend on what kind of Brexit relationship we end up with. Judith MacDonald I mean, for me, this and many other issues are back to fundamental principles. That is a situation that needs to be monitored and we need to be alert to. It is like our people's rights being eroded. If so, what are we going to do about that? I suppose that it is not so much for me the likelihood that it is what is the actual reality. Where is the terms of the debate? What is on the table? We are not clearly party to that, but also if that comes out of it, then that is something that we have to be aware of and look for progress, not regression. That is the fundamental principle that we are looking for. I think that we have to ensure that we continue to condemn and to stop the kind of hate crime issues that were seen not so much in Scotland at all, but certainly in England and Wales, the sudden rush of abuse and hate crime that seemed to have bubbled up just after Brexit. We all, again, must work hard to ensure that that does not take hold in any kind of way and that people, while in Britain, are treated properly and respectfully. Andy Wightman The sort of negotiations for Brexit for Scotland are going to play a part with the UK Government. Is there an opportunity that the Scotland Bill can be changed so that more stuff is devolved to the Scottish Parliament through the negotiation process of the sort of I can't meet and agree with the both parliaments want? Is there an opportunity that more can be devolved from the human rights to Scotland, and I actually changed the Scotland Bill and add to it? I mean, human rights are devolved. I'm talking about when we're talking about the sort of the charter and things like that. If we're saying that when we leave the EU, we sort of leave the charter, is that something that we could then say that we would take that on in Scotland? The last time when the last Scotland Act round, there were calls by various organisations to devolve employment law and discrimination equality law, as well as I think the SCUC had called for that, as had others. It wasn't something then that was on the table, I don't think, in the last Scotland Bill, but that is always open to negotiation, I guess, between the two parliaments. I suppose that if you're opening up the terms of the Scotland Act, because the relationship to the human rights legislation, to the human rights act and the EU law has to be done, I suppose that there is potential to look at other areas where you might want to further increase devolved powers, that's fairly entirely within the gift of political will, but yes, that potential is there. A couple of other things I would want to ask you, but we have just some breaking news that the UK has lost its court fight on article 50 and it would need to go to Parliament apparently, so that's just breaking news, we don't know the details of that yet, so that puts a different complexion on the whole. This thing is a moving feast that changes by the hour, obviously, but if we quickly get back to the business of committee, because we're quickly running out of time for this session, we want to get on to the next session, there's one thing that really struck me recently is the number of projects and policy forums and actual practical help that's given to people to realise some of their rights, whether it's if you've got a disability and it's access to the job market or supporting a device for benefits, whether you're a young person and you've got some challenges in your life and the support that you get from that, a lot of that all comes from structural funds and EU structural funds in that sense, so in realising the rights of many people who would maybe be protected characteristic groups or marginalised groups, how do you see that moving forward, because in a lot of cases the law is great and we can all access the law should we want to, but for many people that's beyond their ability and a lot of the organisations that I know and the groups that I know have worked directly in very practical ways to realise people's rights would maybe be under threat and how would you see that undermining maybe the progress that we have made? That's an absolute right to highlight that and I think that's a really important aspect of the immediate implications and the longer term implications of the way Europe has dispersed its funds and has attempted through that means to redistribute wealth, so that's effectively what it's doing and so that aspect of, that redistributive aspect will be to some degree lost now from the perspective of the EU, we have clearly the capacity to mitigate that. We can put in place steps to say we will mitigate that, we will replace funding of the UK Government has said that it's going to do aspects of that I think until 2020. That's important, that's an important consideration beyond 2020, that's only three and a half years away. The full realisation of people's rights in Scotland and in the rest of Britain I think is going to take longer than that and so I think commitment from the Scottish Government Scottish to mitigate the long term impacts of that loss would be welcomed. I also think that they need to be understood and mapped and I don't think that the full implications, the data around what the withdrawal of EU funding from communities around Scotland, the impact of that will be on people's rights is understood. In fact I was at a session a couple of weeks ago where Cambridge academic was asking for an audit, a human rights audit on the impact of withdrawal and I think that's a really interesting proposition and important to actually understand okay how is this impacting on people's rights and really to that's an absolute aspect of it. It's a real worry I think. We've ran out of time for your panel this morning and we're really sorry that we're constrained by time because I think we could talk in much greater detail about all of this but I'm sure we'll be working together going forward and can I thank you for your attendance at committee this morning and your support. Thank you very much to understand this. I'm going to briefly suspend in order to allow our witnesses to change over so if you want a really quick cuppa grab it now. Good morning and welcome back to the Equality and Human Rights Committee. We are moving on with our agenda item this morning about the implications on rights and human rights from a UK exit from the EU and we're starting with our second panel of this morning and with us this morning we have Dr Tobias Locke who's a senior lecturer in EU law and human rights and Dr Cormac Macaulay, senior lecturer in law both from the University of Edinburgh and both interested in human rights. With him this morning we have Professor Muriel Robinson who is a lecturer in law of the University of Glasgow with a specific interest in equalities and Professor Nicole Busby, Professor of Law at the University of Strathplied again, our equalities specialist this morning. I thank you all for coming along to committee this morning. I know that you managed to sit through the first session this morning so you've got a fair idea where we're going to go with our question and I'll open again with the same question opened with earlier was maybe if you could all give us briefly your thoughts on the implications of a UK exit from the EU on the rights-based agenda that we have here and can I maybe start at this end to buy some work over. Okay, thank you. Well just maybe to recap what we've got at the moment in UK and in Scottish law we've got the human rights act that incorporates the European convention on human rights and that of course has nothing to do with the EU and therefore will have there will be no implications of Brexit or no immediate implications that Brexit will have in that area so the human rights act will continue to be in place. Let's leave aside the British Bill of Rights discussion for a moment but we've also got EU based rights protections on the one hand we've got the equality act 2010 that is largely based on EU directives the equality act is an act of parliament of the Westminster parliament and Brexit won't immediately affected either because unless it is of course expressly repealed or expressly amended by the Westminster parliament according to the procedures that they have to go through. The bit of EU law that is critical I think is the Charter of Fundamental Rights. The Charter of Fundamental Rights is part of the treaties of the EU and of course if the treaties cease to be binding on the UK with withdrawal from the EU the Charter will cease to be binding on the UK and the only reason the Charter is applicable within the UK legal order is the European Communities Act 1972 if the European Communities Act 1972 is repealed which is the whole point of the Brexit exercise I would say. The Charter will lose its binding nature in UK law unless of course the great repeal bill or some other act of parliament keeps it alive for the time being so that's the situation we have in a nutshell. One thing that's important about the Charter is of course that it is not universally applicable it only applies in Scotland and in the UK where we are implementing EU law and that happens in two broad scenarios one is where a public authority is acting on the basis of of EU law say a public authority requires somebody applying for planning permission to carry out an environmental impact assessment something like that something based on an EU directive or where the and the other situation is where a public authority derogates from EU free movement provisions for instance if we've got an EU citizen living here and they commit a crime and they're then asked to leave the country they're being expelled in that scenario we not only have to take into account EU free movement law and the limitations on expulsion of EU citizens but also the Charter and you know the right to family life as it's guaranteed by the Charter and it can then be eventually decided by the court of justice of the EU there's one other aspect maybe of the Charter that I should mention is that the remedies we have in under the Charter are different to the remedies we have under the human rights act if you go to court and you say well my human right to say a fair trial has been infringed because an act of parliament of the Westminster parliament doesn't allow me to bring to claim something to make a claim in court the best you can get out of the proceedings is a declaration of incompatibility I mean you still lose your case okay in the court but the court can make a declaration of incompatibility which can then lead to a quicker amendment of the act in order to make it human rights compatible but there is no guarantee that that will ever happen and prisoner voting is a case in point I mean you know there's been a declaration of incompatibility a case in the European Court of Human Rights that the act of parliament is still there it still doesn't allow prisoners the vote and it's against the human rights act arguably with the Charter it would be different if you're in the scope of the Charter if you're acting within the scope of EU law as a public authority you have the duty to ignore an act of parliament where it contravenes the Charter and equally if a court reviews the the compatibility of an act of parliament with a Charter right it has to set aside the act of parliament for that for that for those proceedings that's what in EU law we call Disapply it's not invalidations doesn't lead to invalidation it leads to a disapplication of the act of parliament and the claimant wins the case so that's the key difference between the Charter that's why the Charter has some practical value even in light of the human rights act and that's that will be gone with Brexit presumably. Okay, Dr Colin Mac. Thank you chairperson thanks for the invitation to be here. I should say as a constitutional lawyer I'm quite excited by this judgment which is just we've just heard of 10 minutes ago. I can imagine. Just as a preliminary point I think a good argument could be made that a legislative consent motion will be required from this Parliament in order for Westminster to be allowed to pass legislation to trigger article 50 so it's something I think it'll probably take all the business of this Parliament in the future. Moving on to the specific questions we're asked to address today I just want to make two brief points. The first is for me the most significant significant impact of Brexit from a human rights point of view is the question of withdrawal from the European Convention of Human Rights. When this question was touted in the last three, four years talking about a British Bill of Rights potential withdrawal one of the major stumbling blocks that was put forward was as EU member states this will create problems for us as an EU member state because of the way the European Convention is kind of woven in to EU law and the expectations of EU member states to respect human rights. With Brexit I think that rather large obstacle to withdrawal from the ECHR itself has been removed so I think that Brexit makes ECHR withdrawal easier, it facilitates ECHR withdrawal and it will make it potentially more likely in the future. I was standing the fact that the current government has stated clearly that that is not its intention. The legal obstacles to ECHR withdrawal have been made easier after Brexit and I think that's an important point that's worth emphasising. Secondly with the implications specifically for Scotland it's interesting when you look at the reserve provisions of the Scotland Act that some of the major areas that EU law has a strong fundamental rights protection are reserve matters. So if we look at things like data protection which the EU law protects quite significantly that is a reserve matter. Also consumer protection equal opportunities employment and industrial relations and this is very significant because obviously what happens at Westminster so will have a quite a profound impact on Scotland and it's something that the Scottish Parliament itself couldn't legislate upon. So when we're looking at this question I think we have to look at what is the likelihood that Westminster would implement parallel protections because obviously it is within the competence of the Westminster Parliament post Brexit to provide parallel cover so to cover the gaps that EU law created by Brexit in terms of fundamental rights protection in certain areas but we have to think about in response to one of the questions earlier what's the likelihood that that would happen. I think with this current government I would say it's highly unlikely. The current Prime Minister when she was Home Secretary obviously had a lot of problems with the European Convention of Rights and the European Court of Human Rights. The previous government and the current government wants to repeal the human rights act with the British Bill of Rights and the Prime Minister herself in her bid for well prior to becoming Prime Minister did make an open speech that the UK should withdraw from the European Convention of Human Rights. So I think we have to look at this in terms of political likelihood and certainly with the current government I find that parallel protections would be extremely unlikely after Brexit. Thank you and thanks very much for the invitation to be here today. I agree with the points that have been made already and also listening to Judith and Lynn's earlier comments. I'll just build on a couple of those. The protection of social standards or the maintenance of protections around social standards I think are particularly concerning. The loss of the non-regression principle which is built into European law which means that current standards or current protections we can't go below those we can only build on those or maintain them. The loss of that potentially could have devastating effects for workers' rights. Law is not a static thing. It's not something that just stays still. It's constantly developing and I think the worry about the levelling down of employment rights is a particular concern. If in the case of a hard Brexit those protections are withdrawn and we see perhaps threats or vulnerabilities to human rights protections in the way that have been outlined coming into play, the need to compete globally without those protections, without the EU protections, without the non-regression principle I think could be very concerning. Not just in terms of the sorts of equality rights that we see under the equality directives themselves but also in other areas of workers' rights. The EU has been particularly active in protecting, for example, rights in transfer of undertakings through the acquired rights directive. Working time legislation as well depends largely on European provisions which are still being subject as is the TUPI legislation, the transfer of undertakings, still subject to decisions by courts in the national context and the European Court of Justice itself. You lose that potentially and if we lose the developments that might happen through the case law I think that we stand to lose a lot. European case law, the case law of the courts of justice of the EU has given us lots of progress in certain areas around equalities, around employment rights. Notable progress there relates to the rights of transsexual people, protection of employment rights for transsexuals, the development of associative discrimination. I think that there are still things in the pipeline and potential that we do not yet know about and that would worry me a lot. I think that the interplay is very complex but very important and it is where a lot of the progress actually happens around workers' rights and the protection and development, further development of workers' rights. For me that would be a major concern. I agree that, as has been said, the vast majority of EU rights are implemented into British law through the Equality Act 2010 and that is an act of Parliament. As Tobias has said, Brexit will not have any immediate effect on that, especially when we have heard that the great repeal bill will bring across all of the European laws so that, given that it is an act of Parliament and not secondary legislation, it should be less vulnerable to any immediate changes. It has to be said that equality rights will be vulnerable when they are given in Britain. We do not have a constitutional guarantee to equality and therefore it will depend on the political complexion of any government of the day as to what they subsequently do with the Equality Act 2010 rights. A lot of those are now entrenched and there would be a very broad degree of political consensus regarding those rights but, for some, there is perhaps less political consensus about the appropriateness of legislating perhaps age discrimination is an example of that. However, I think that where equality rights might be seen to impact on economic competitiveness, then those rights might be particularly vulnerable depending on the complexion of the Government who is making the decisions about equality rights going forward. I am thinking that they are particularly equal pay and, possibly, some pregnancy maternity rights and protections. Having said that, it occurs to me that it might, to a certain extent, present some opportunities. This Parliament has obviously been given slightly more powers in relation to equal opportunities, so some further powers devolved through the 2016 Scotland Act, which will no longer be constrained by the requirements or, perhaps, limitations in some cases of European law. I am thinking particularly of gender quotas and I know that that was something that this Parliament has a particular interest in going forward. There are some constraints on what the Parliament can do by the limitations of European Union law. There might be an opportunity there without those constraints to go perhaps further if that is what the Scottish Parliament wishes to do. Okay, that is a lot of interesting aspects that we have to all of this. We concentrated this morning on wider issues. I wanted to do a whole minute on one issue, particularly the rights of EU citizens currently in the UK, whether they are here for work, for study or the decisions that Scotland and the UK is their home. Where you feel some of the pressures will come on that, the backdrop to the whole Brexit campaign created a very poisonous atmosphere—I do not use that word that often, but I think that it is a very poisonous atmosphere in the aspects of those who have chosen their UK as their place to be. Whether you have any thoughts on that and whether, if there is any way in this place that we can protect that—I know that that is very limited—I know that I am already answering my own question in that aspect. We need the thinkers of this land to think about ways that we can ensure that we protect people from that horrible atmosphere and maintain their place where they have chosen to live and stay in study. The rights of EU citizens currently in the UK are largely derived from the EU treaties. As an EU citizen, people have the right to come here to live and work and study under EU free movement law. If they are wealthy enough, they can come here and do nothing as well, provided they have health insurance of some sort. If people have stayed here for five years or more by the time EU withdrawal happens, they can apply for permanent residency under the Citizenship Directive. If they get a permanent residence card, it will be difficult to expel them from this country even after Brexit, I would say. The ones who are most in danger, if you want, are those who will not have stayed here for five years. They came here in good faith, you could say, certainly if they came here before the referendum, in the exercise of their rights. There is no certainty as to what will happen to them at all in law, I would say. Maybe my colleagues will disagree. During the referendum campaign, some arguments were made that there was such a thing as acquired rights under international law and that they would be protected. I think that argument is wrong. What was quoted was the Vienna Convention of 1969 on the Law of Treaties. It speaks of acquired rights, but acquired rights of the parties to the treaties, which are states. We are not concerned with that. We are concerned with individual subjective rights. I wouldn't call them human rights, but individual rights. Something will need to be agreed in the Brexit agreement, in the withdrawal agreement, about how these people who are affected, and it will be UK citizens living in the EU as well. There are almost as many, I think, how these people's continued right to stay will be protected. That is one thing. I don't think that will be a huge political problem to agree as it's reciprocal. An important question then is, of course, at the moment EU citizens living here have a right to be treated equally, not to be discriminated against on the basis of their nationality. It's not something that is protected per se in the equality act. We can see this with various rules concerning non-EU citizens. They are treated worse than nationals, for instance, in some respect. Let's just quote university fees. They have to pay more in order to study at our lovely institutions. Will these rights continue? At least for those who have already lived here in the past, who have had these acquired rights, if you want to call them that, will they continue to have that status of not being immune from discrimination, or will that be possible in the future? Will we be able to require them to carry an ID card when national don't have to carry such a thing? All of those questions have to be resolved, as well as the actual status of those people, that they are right to stay. It's just a follow-up question to the question that you raised, convener, and the question that my colleague Willie Coffey started on in the earlier session. In the earlier session, I asked about employment law and workers' rights. All of the panel members in their opening comments have answered the question that I posed previously about what would be at risk in relation to workers' rights. However, it leads to a further question that follows on from the discussion that we have just had. For EU citizens who live here after Brexit, what recourse to law would they have? Would they be bound by UK law, or would they be bound by EU legislation? If they were in a dispute with an employer or if they had any human rights issues, could they still say that they want to go to the European Court of Human Rights, or that they want to respect the EU legislation that is an EU citizen that I am entitled to be treated by? Where would that be? Just on the point of EU citizens, immigration is a reserved matter, so it's not something that Scottish Parliament would have a lot of power over. It very much depends on the Brexit agreement, of course. It depends on the political mood at Westminster. In terms of just the question post-Brexit and EU citizens' rights—again, it depends on what is agreed—it will have, presumably, the same protections depending on their immigration status as UK citizens in a general sense, in a human rights sense and so on. Of course, EU law won't apply, so they couldn't argue EU points or try to claim EU rights in domestic courts. Until such time as the UK withdraws from the European Convention of Human Rights, they would still have recourse to the European Court of Human Rights. Also, if the Human Rights Act survives or the British Bill of Rights, we assume that that would apply to everyone currently resident in the UK, so that that wouldn't depend on immigration status. Unless the British Bill of Rights does make a distinction on immigration status and the enjoyment of rights, which some people have titled, but I think that would probably not make it into a final draft of the British Bill of Rights because it goes against the whole ethos of fundamental rights being fundamental universal and so on. We live in interesting times and, as we've seen just in the course of this session, this very strange tale has taken yet another turn with the High Court ruling that the Government cannot automatically enforce article 50 without a vote in Parliament. In that context and knowing that there are many unknowns out there, could the panel give us what they believe at the extent of the parameters of these questions in terms of what is the absolute worst case scenario, what is the horror show that keeps you awake at night as the result of this and what is the best case scenario, what should we aim for in terms of success in making this work and making sure that our rights are seamless in a post Brexit Scotland that our EU nationals are protected, that our own rights keep step with the EU. Can you set out those two parameters? The question of this judgment, I think, the most significant aspect of the judgment, I think, in terms of those scenarios, is that now Parliament has to give provided the Government does not appeal and provided that the Supreme Court does not decide against the High Court, because that, of course, could still happen. The Parliament can now set conditions on triggering article 50. It is within the gift of Parliament to do that. I think that that is really significant because, whereas there is some consensus around Brexit, it seems that it has to happen in some sense. There is not consensus about what it should look like. The Westminster Parliament, through this legislation now, can attach conditions to triggering article 50, including giving the Government a mandate for negotiation, which is really significant. It could put in things like single market, it could put in things like fundamental rights protection, it could put in all sorts of things. I think that the best case scenario is something Norwegian-style after EEA. I think that the worst case scenario is a hard Brexit for all the reasons that you are reading about in the media from day to day. That is all that I would have to say about that more political question. Professor Busby, I can see you nodding your head. I agree exactly with the points just made there. I think that we have presented the worst case scenario because we are looking at this through the eyes of those who are used to the status quo. Personally, I would argue for retaining the status quo for the reasons that we have given. I think that when we are talking about this, and certainly in my earlier comments around workers' rights, I am looking at the worst case, which is the hard Brexit, which is that we lose all those protections. There are lots of things in between that and retention of the status quo. Norway is one option. Norway, the Norwegian model, would preserve many of the protections that we have spoken about. There is not a customs union in Norway, so it is different from what we currently have. Around equalities, workers' rights and other protections, I think that it looks favourable. However, for me, the best case scenario—probably unlikely to happen—is to retain all the protections that we currently have. Really, just that, if we were to retain the equality act as it stands, that is very good protections. It goes beyond European minimum requirements in relation to equality. As a starting point, we are at the very least able to retain the equality act. Obviously, the type of Brexit, as discussed, will influence the extent to which we continue to see the equality act and the equality act developing and improving along the lines of the positive changes that happen at the European level, which, largely speaking, have been good for equality. Maybe, in terms of worst case scenario—well, the worst case scenario for rights would be that all of those rights would be repealed. We would repeal the Human Rights Act, get out of the European Convention and we would be back to 1950, in effect, in terms of rights protection. I mean that, because Britain joined the ECHR in 1951, I think it entered into force in 1955 or something. We would be there probably before most of us, if not all of us, were born. That would be the worst case scenario. The best case scenario certainly would be something along the lines that previous speakers have outlined. I think that there is one issue that maybe is worth thinking about, and that is to think about certain rights in terms of reciprocity and non-reciprocity. A lot of the rights that concern this committee, the UK, Westminster and Hollywood, to a lesser extent, can replicate. It is not a problem. You can have human rights standards that are good unilaterally without being bound by EU law. It is not a problem. You reach limits when it comes to the citizenship rights, because they are very much dependent on reciprocity. Of course you could say, well, all EU citizens are welcome, even if other EU member states do not grant our citizens the same kind of protections, but that is an unlikely thing to happen. I think it is always worth in the Brexit discussion, in the discussion about the great repeal bill and what types of EU rules we would like to retain or not to think about them in terms of reciprocity and non-reciprocity. If they are non-reciprocal, it is no problem retaining them. You do not do any harm to the legal order. In fact, you are just freezing it to a certain extent. If they are reciprocal, it might be difficult to retain them unilaterally, because they might not make much sense if you just retain them unilaterally. I am interested in where EU citizens fall in if they are in this country after Brexit. Do we not just become similar to those who are from South America, America and other parts of the world? Why would they suddenly become legally a different type of individual? I may have picked you up wrong on that, but I was not quite sure exactly what you were saying. I was interested in the different bits of paper that you produced for us, and thank you very much for that. It took me back to my sad study in law. I was sadly the first student who had to study European law to be able to become a solicitor, so I have a slightly way of European law. However, I am interested in your comments, Dr Locke, in your opening paragraph 8 of your paper. Brexit would lead to the weakening of the legal human rights framework in the UK, which I thought was a very bold statement to make. It clearly goes back to my previous question to the first panel. Surely, we can implement all of this, either at Westminster or all at Westminster. Why does that statement have to be true? You have talked about the worst case scenario, going back to the 1950s, but I do not see any political will within the mainstream political parties to do that. It seems to me an interesting statement to start your paper with. Why do you think that it is such a negative thing? Jeremy, your first question is that directed to somebody— Anyone? Do you want to talk to anybody? Okay, Dr Locke, do you want to— Okay. With the EU citizens question, at the moment, if you are American, South American or whatever—a non-EU citizen and a non-British citizen—you cannot come here and work without a visa, for instance. You need to go through the immigration procedures. You cannot bring your spouse here if you do not earn enough money and so on. You are in a worse position than EU citizens are at the moment. That is what I meant. You do not have a right to be treated equally—that is one instance of not being treated equally, in that sense, with nationals. As regards the weakening of the human rights framework, what I mean by this is that—and it is good that you are linking it with the previous question— is that, at the moment, the human rights framework, in the absence of Brexit, is immune to reform to a certain extent. Without leaving the EU, Britain cannot get rid of the charter easily. Of course, it could repeal the European Communities Act, but that would be contrary to all sorts of legal obligations. It is there, and it is pretty much entrenched in the legal order. If Brexit happens, it will disappear. It will open up human rights in general to further reaching reform. At the moment, if you have got the charter that replicates the ECHR and adds a good few other rights, you may well ask, what is the point in reforming the Human Rights Act and introducing a British Bill of Rights that will make it express that certain serious criminals can always be expelled without having to take into account the right to private and family life, which seems to be one of the ideas that is being floated at the moment. If, at least for EU citizens, that would not apply in the EU context. It would only ever be a half-hearted reform. You are asking, can we not replicate this, of course? We are being politicians, parliamentarians, of course that is possible. It will, of course, lead, and that is important to realise. EU law in the UK legal order has led to a strengthening of courts, generally speaking, I think. I do not know if anyone disagrees. You can, as an individual, you can go to court, you can get those remedies like a disapplication of an act of parliament, which you would not normally get under the common law, you cannot get it because of the supremacy of parliament. You could, of course, argue, let us take this power back and bring it back to parliament where it properly belongs. That is not a wrong argument in any respect. However, I think that the main question those advocating this have to ask themselves, and they have to answer it, is whether parliaments are, in practice, able to really balance those rights properly, make legislation that is fair on those who are in a minority who do not even have a chance to ever be in a majority in parliament, where the whole idea of the opposition opposing and then getting into power because they were such a good opposition does not work because they are disadvantaged, they do not have the vote because they are foreign and so on and so on. I am just putting that out. I am not making a judgment that that is a wrong argument but I think that those conditions need to be fulfilled. I come back to your mat. On the other side of that coin, is it right for unelected judges to have more power than a sovereign parliament? On the other side of the argument, I suppose, this Parliament and Westminster Parliament, over a number of years, have seen things that perhaps they do not want to do being superseded by judges who have made decisions that have gone against perhaps where the political will is at that time. I suppose that the debate isn't it. Is it the court that shows that, at Parliament, that should make those final big decisions? That is the philosophical debate that is behind it. If you want more power for Parliament, I think that that is not because I am the biggest fan of judges or anything, but I think that parliaments have to be capable of performing the function properly then. That is the committees sitting in one here and so on and so on. Just on the point about parallel protections, of course it is within the gift of the Westminster Parliament to re-legislate the entire charter of fundamental rights of the European Union if it wanted to do so. I would also argue that the Scottish Parliament could produce a Scottish Bill of Rights because I argue that human rights are a devolved matter. The human rights act is not, but human rights as a competence is. Scotland could do parallel within its competence, so that is certainly the case. We have to look at the political likelihood of that. I would suggest that the current British Government doesn't seem particularly likely to do that, given its hostility to the Human Rights Act and the fact that the Prime Minister has spoken out against the European Convention and, in fact, endorsed withdrawal. Hypothetically, of course, it is possible to parallel protection, but politically it is quite unlikely. On the point of unelected judges overruling, this is a common and much misinterpreted issue, as far as I am concerned. It is also something that I do a lot of research in. When we talk about democracy, we have to think about the fact that at Westminster, only one of the three branches of Parliament is actually elected. We have to think about that when we talk about democracy, if that is the justification of parliamentary sovereignty. In some ways, given the current make-up, the courts look a little bit like the House of Lords. They can influence the legislation and make recommendations about it, but they can't strike it down. That is pretty much the same power that the House of Lords has in legislating under Parliament. I would say that it is a little simplistic to say that it is about democracies and about courts versus Parliament. It is much more complex than that. We need to understand particularly at Westminster that only one of the three branches of Parliament is actually elected, so we have to bear that in mind. The courts can look a little bit like an accountability chamber in the same way that the House of Lords can. Secondly, of course, it depends on your point of view of democracy. You have to define your terms. What do you mean by democracy? For example, some would suggest that having courts patrol a right to vote is crucial for democracy, including perhaps prisoners. The interpretation of what we mean by democracy and the role that courts can play in facilitating democracy and vindicating democracy in terms of ensuring that everybody has a franchise and that people are not arbitrarily deprived of their right to vote. Courts can have a pro-democratic view to play there, too. I understand the point being made, but we need to understand what is at stake when we talk about that. Does our other two panel members want to contribute at this point? Very responsibly. Just one thing to add to what has been said already. I agree completely with the points that Cormac has made about the importance of independent judiciary, particularly in relation to international law, which is the job of the European Court of Human Rights. Just one other thing about the possibility of replication of the rights that currently exist under the convention and also under EU provisions. The complexities cannot be underestimated of trying to do that. I think that it would be a huge job. There was some interesting research just out this week from the UK in a Changing Europe, which is a project funded by the Economic and Social Research Council, which says that the complexities of trying to even negotiate out and then to replicate would be completely overwhelming and would take up so many years of Parliament's time in Westminster and possibly in the devolved Parliaments. It just seems like an impossible task to try and do that. I think that that needs to be borne in mind as well, how complicated the system is and how much work that would entail. I would certainly agree with that. One of the difficulties with this point about replication or the great repeal bill bringing overall EU law is the status particularly of the decisions of the Court of Justice of the European Union. We have some decisions of the court that have not yet made their way into amendments to the Equality Act. What is the status of those judgments, for example, pre-Brexit? Then we have the issue of post-Brexit of what the extent of which the decisions of the European Court of Justice continue to be relevant in interpreting the laws that have been brought over. Another factor is when perhaps the British courts reinterpreting the laws, one of the principles that they would take into account is the intention of Parliament. If it was the intention of Parliament to legislate to implement EU law, then EU law is still relevant to that interpretation. Those are some examples of the kinds of complexities that we are going to see going forward in the situation of just bringing over all of the—just depends what that is and what that actually means. I suppose that is for the detail of the bill itself. Thank you very much, Willie Coffey. Thank you very much, convener. Dr McKillie, you said in your remarks that legislative consent motion would be required in the Scottish Parliament, presumably the unpicked court, when legislative compliance throughout the convention and so on, and hearing the laws and the acts that we pass. Could you expand a wee bit on that and explain why you think that and could I possibly ask your colleagues to give a view as well, please? Are you referring to the judgment that we just—my comments about the judgment that just came out this morning? No, you said that an LCM would be required in the Scottish Parliament. Yes. Right. I mean, I've just read a summary of the judgment, so this is kind of a little bit off the cuff. The reasoning would be like this. The court from my brief scan of the summary that I've just managed to get on my phone said that the exercise of prerogative powers was in the executive power would have an effect ultimately of changing legislation, and for that reason it can't—the act of exercise in prerogative to trigger article 50 would go against the European Communities Act and under the constitutional status, statutes trump the exercise of the prerogative so that you can't use a prerogative to undermine or bypass a statute. That's the constitutional position. Given that the court—my interpretation of the courts reading this effect space so that the article 50 act to trigger article 50 would be undermining the ECA, that means that you would need a piece of legislation to change or amend the European Communities Act and give the Government the power to trigger article 50. That's how I understand the question. Given that EU law is sewn into this Scotland act, as you all know too well, a change in the effect of EU law in Scotland would require an amendment of the Scotland act, for which, of course, we know that a legislative consent motion would be required. That's a very broad, nutshell type of argument, but that's how the argument would flow. It's a bit more complicated than that, but does that answer your— It does help, yes. I wonder if it's too much to ask other colleagues to offer a view on that. Dr Locke. Can I maybe just say something about a legislative consent motion for the great repeal bill, because that might be required as well, because if a great repeal bill says, well, all EU law that's currently in place will just stay in place, well, there's an awful lot of Scottish statutory instruments that bring EU law into Scottish law, mainly in the environmental sector, but also this—well, CAP, obviously, agriculture. That, of course, would mean that Westminster would be legislating with regard to devolved powers, and that would trigger a legislative consent motion, I believe, if that's what the great repeal bill is supposed to do. Now, I think that the great repeal bill is potentially dangerous, because—and that is where the Scottish Parliament has to be careful as to whether it will consent to it or not—if it gives so-called Henry VIII powers to the government to amend legislation in the future. So, what it might do is say, okay, we're going to freeze all of EU law that's currently in the UK legal order, including in Scotland, Wales, Northern Ireland, no matter what. That's going to stay on the statute, but we're going to give powers to the executive to amend or repeal that EU law if they see it fit. And I would be a massive transfer of legislative—what are legislative powers—onto the executive. And I think that is—first of all, it flies in the face of taking back control for Parliament, one issue, but secondly, it's really problematic in democratic terms. Is it time to ask Professor Wasbyn Robinson's question? I don't really have anything to add to what's been said, and I haven't looked at the judgment on my phone or anywhere else yet, so I would be less confident and maybe more cautious. So I don't really think there's anything I want to add. And the only thing I would add is to agree very much with Dr Locke about the Henry VIII-type powers. Statutory power that just says the government is entitled to change or amend legislation. Okay, thanks for the clarification. Sorry, Professor Robinson. And so, yes, there'd be a real concern in—I mean, as I mentioned, so the Equality Act is an act of Parliament and not an act of secondary legislation, this would make—give, as I understand it, power to government to amend both secondary and primary legislation in relation to certain areas, although other colleagues were probably better informed about that than I am, but that would be a real cause for concern, I think, and, as has been discussed, issues around democracy would be a concern there. Okay, thank you. More questions than answers in that respect. Is there any other questions from our panel this morning? colleagues? No? No? Can I thank you so much? Again, we could talk, I think, for hours on some of this stuff, and, as we say, it seems to change by the day. But can we thank you so much for your written evidence that you gave to committee and your evidence that you've given this morning? You've certainly given us some food for thought and maybe some actions to take in seeking clarification on certain points, so we really appreciate your time at committee this morning. Thank you so much. I'm going to suspend committee now to go into private to consider evidence from this morning, and we'll suspend committee now.