 Good evening and welcome to the ninth meeting in 2018 of the Finance and Constitution Committee. Can I just make sure that all members who are in attendance or officials who are here make sure that their phones are in a process that won't interfere? The only business on our agenda today is to undertake a scrutiny of the UK withdrawal from the European Union legal continuity Scotland bill at stage 2. I welcome the minister for UK negotiations on Scotland's place in Europe, Mike Russell, at MSP, and his official to the meeting. I also welcome non-members of the Finance and Constitution Committee to the committee. Members will be aware that we have a substantial amount of amendments and number of groupings to consider this evening, and while I don't intend at this stage to have timings for speeches, I am mindful of the need to ensure that sufficient times are allowed for consideration of all the amendments, including the later groups. Members and the minister are therefore asked to keep contributions as concise as possible. I am, however, aware of the demands on members, the ministers and particularly on the need for a duty of care to parliamentary staff and the Government officials and therefore proposed that we aim to finish this session around about 10 o'clock, but I will go beyond this time if it is judged that that time is required. Members will also be aware that the Parliament has agreed to extend the deadline for consideration of stage 2, so that, if needed, we will have the opportunity to continue stage 2 proceedings tomorrow morning. The clerks have issued our revised agenda, and we will meet tomorrow morning at 8 am. This will be the only item on the agenda, and we will consider the scheduled legislation after our meeting on 21 March. This all means that we have at least eight hours at our disposal to consider amendments. As a final point, members should not put their ID cards into the console—I have seen someone already doing that, and I know that it is a habit that you will want to continue doing—or press your request-to-speak button. Instead, the microphones will become active in the normal way that they would do at committee. In other words, members should behave in the same way as if this was a committee meeting. I have now moved to stage 2 of the UK withdrawal from the European Union legal continuity, Scotland Bill, and in doing so, a call amendment 58, in the name of Liam Kerr, has shown in the groupings. To attend today, convener, my three amendments in this group are entirely a function of the need for clarity. It is imperative throughout this bill that this bill expresses precisely what it is for, what it intends and how it intends to go about it. The concept of legal certainty is not something that I merely promote but one of the fundamental principles of European Union law, according to the European Court of Justice. The law must be certain, it must be clear and it must be precise, and the implications of each law must be foreseeable. Legislation must be worded so that it is clearly understandable by those who are subject to it. It is with this guiding principle in mind that I put forward those amendments, and indeed all of the amendments that I shall speak to throughout the session. Amendment 58 requires that, at section 1, page 1, line 7, the word perspective is deleted. I put this because this clarifies that the UK is withdrawing from the EU, not that the withdrawal is prospective. This is important. This is about being specific right at the top of the bill. We need to recognise that the UK is leaving the EU and that clause needs to make that explicit. There is good legal reason for that. Insofar as the bill will only have effect once we leave the EU. To have us its very first clause, countenancing any doubt cannot be acceptable. Let me be clear. The word perspective, countenance is doubt. It does not mean not happened yet but will do so, but rather, according to the Oxford English Dictionary, it means likely to happen at a future date. That is not the same, and the word perspective should be deleted. I move to amendment 60, which again goes towards clarity of expression. As drafted, the clause speaks in hypotheticals. My view is that it should be clear. Is a provision made under this act in force before the relevant date? Presumably, the draftsman will countenance that at the time. It is far preferable, surely, to simply talk in absolutes where an absolute truth exists. Either a provision under this act or a provision made under it is incompatible with EU law or it is not. My amendment seeks to make that clear. My amendment 65 follows the same logic. I do not understand—what is worse, I do not think that those who are subject to it will understand why the caveat is necessary. Anything either is or is not within the legislative competence of the Scottish Parliament. That is the test against which it should be judged. I do not consider it helpful to set up a hypothetical whereby someone must hypothesise whether or not, if contained in a particular place, it is legislatively competent. If we take this bill as an example, there is a question mark over whether or not it is legislatively competent. If the Scottish Parliament passes that, then this becomes an act of the Scottish Parliament. Anything that could be hypothesised to be contained within it or made under it would now become part of devolved legislative competence, even though, ultimately, the act devolved legislative competence could be challenged. It therefore requires clarity and the amendment achieved that. I move amendment 58 in my name. I have two amendments in group 59 and 64, and I will talk to them in turn. Amendment 59 seeks to insert in section 1, page 1, line 11, in effect a declaratory statement that any decisions by the Supreme Court that any or all provision of this act is outside the legislative competence of the Scottish Parliament must be complied with. This amendment to me is largely self-explanatory and simply seeks to provide clarity in relation to the role of the Supreme Court. As members will be aware, the Presiding Officer of this Parliament has expressed his opinion that this bill does not fall within this Parliament's competence. That is a view that is disputed by the Lord Advocate acting on behalf of Scottish ministers. It is therefore possible, indeed it may be likely that this dispute will end up in the Supreme Court who will have responsibility for ruling on this matter. What my amendment does is make clear beyond any doubt. Should the Supreme Court rule that this act is outwith the competence of this Parliament, then that ruling must be complied with. That applies to the act as a whole or, indeed, to any part of it that is so affected by a ruling of the Supreme Court. While some might argue that this is stating the obvious, nevertheless I think that it is important that there is on the face of the bill an acceptance of any decision made by the Supreme Court so that there are no subsequent disputes, either legal or political, over the question of the legality of the legislation. I so move amendment 59 in my name. I will move amendment 64. Amendment 64 is really there to try and bring some clarity to the operation of the bill. I would follow a similar line of argument to the one that Liam Kerr has just put forward about how the bill is drafted. As drafted section 1, section 3 of the bill states that the relevant time in relation to any provision of the act or any provision made under it—in other words, the date on which any provision of the act will come into effect—will be the date on which the EU law on question cease to have effect in Scots law as a consequence of EU withdrawal. That seems to me an unnecessarily complex way of addressing what is a fairly simple issue. The European Union withdrawal bill at Westminster provides the date on which we are leaving the EU is 29 March 2019 at 11 pm. It is therefore clear that it is at that point that EU law will cease to have effect across the UK, including in Scotland. That, therefore, is the date that should be referred to in section 1, subsection 3. It may be that another date will be agreed, for example, because of transitional arrangements that might be put in place. In that case, there is provision within the EU withdrawal bill for a minister to amend the date of 29 March 2019. That right of amendment is reflected in my own amendment 64. Not to agree that amendment does potentially create some uncertainty as to the date on which provisions in the act before us will come into effect. My view is that it is simpler and more accurate to tie the effective date in the bill to the EU withdrawal bill to ensure that there is complementarity between the two bills. That is the reason behind that amendment 64. At this stage, it is not necessary for other members other than the lead member. In this case, I am keen to move. I will ask you when to move other amendments. That goes the same for the rest of the members. However, I now go to Alexander Burnett to speak to amendments 61 and other amendments in the group. Thank you, convener, and I submit following amendments in my name. Amendment 61, which replaces the words relevant time with the word exit day, is similar to identical to amendment 62 and amendment 63, which requires a correction following those two. The effects of those three amendments are to clarify that the bill will apply from the exit day. As drafted, the bill has a slightly curious structure for defining when its provisions will begin, and subsection 2 says that the bill will not have any effect until the relevant time, but then subsection 3 defines the relevant time as whenever a provision of the bill is no longer compatible with EU law as a consequence of EU withdrawal. As written, there is therefore somewhat of an ambiguity. No longer being incompatible with EU law as a consequence of leaving the EU is not quite the same thing as leaving the EU. In theory, those could be two separate times. We could leave the EU, but leaving EU law as a consequence of leaving might be pegged to a different date. In other words, at the moment, the moment at which the bill kicks in is not the exit day. Instead, we are left with a vaguer definition of the moment at which it ceases to be incompatible with EU law. That sounds theoretical, but there is a much tighter definition elsewhere, for example in section 2. The UK's withdrawal bill in the equivalent sections is significantly tighter by linking all of its provisions to exit day. As a reason for that, it is far clearer. Therefore, my amendment seeks that, for clarity, the bill should be clear that its provisions begin on exit day. Amendment 61 and 62 would clarify that up front. Amendment 63 is to remove the subsection 3, which would then become redundant. The next amendment in my name in this group is amendment 203. The intent of that is to bring the defined exit date as March 2019, when the UK leaves the EU. The current section 28 provides a definition of exit day, but it is well open to interpretation, only saying that exit day is whenever the Scottish ministers say so. That is completely divorced from any legal, political or constitutional reality and there is no case for it whatsoever. Because the entire act follows from this definition, if it is not changed, any number of questions could follow. Could ministers define the exit day after the UK has actually left? Could ministers define it differently to that in the rest of the UK? I hope that the minister will address those in his conclusions. That amendment will bring into line the definition used in this bill, with that used in the European EU withdrawal bill. As a consequence of this amendment, I then support Donald Cameron's amendment to delete section 28 in its entirety. My final amendment in this group is amendment 229, which looks to insert a number of lines that the Scottish ministers must, by regulations, repeal any provision of this act, which is incompatible with the EU Withdrawal Act 2018, or the Scotland Act 1998. That also has consequences in amendment 230, found in section 37, page 24, line 29, where it leaves out subsection 1 and inserts subsection 1 and 1A. The intent of those amendments is to place a duty on ministers to repeal any part of his act, which is incompatible with either the EU Withdrawal Bill or the Scotland Act 1998. The ultimate arbiter of what is compatible between acts is the courts, and that is the only mechanism for deciding on conflicts. Any court action is both time-consuming and expensive. When what we would do is directly put into this bill, a process for establishing what happens if this bill conflicts with the existing legislation. In particular, the EU Withdrawal Bill, because we still consider it the right mechanism to prepare the Scott statute book for exit and the SNP still claims that they want to deal to do so surely, they support that too. Especially for Scotland Act, which defines this Parliament and its rights, that amendment would therefore ensure that ministers repeal any part of this act, which is incompatible with those two acts. Gordon Lindhurst to speak to amendment 66 and other amendments in the group. Thank you, convener. First of all, may I refer to my register of interest entry as a practising advocate. Turning to the amendments in my name in this grouping being amendments 66, 67, 72 and 74, which I now move. Those relate to the position of this bill of the Scottish Parliament to the Scotland Act 1998, an act of the UK Parliament. The 1998 act, of course, established and set up this Scottish Parliament and prescribed its powers. In particular, section 29 of that act sets out the legislative competence. I need not go into detail of that section, of course, save to mention subsection 1, which provides that any act of the Scottish Parliament outside its legislative competence, and I quote, is not law. If I might deal briefly with amendment 66, the purpose of this amendment is not to alter the meaning of the particular subsection that it relates to, but rather simply to modify the wording to make it entirely clear by express definition rather than by reference. I move on now to the further three amendments, 67, 72 and 74. What I would say is that those must be read in the context of the whole bill before this committee. If amendment 68, by my colleague Adam Tomkins, were to be accepted in section 1 of the bill left out altogether, that would deal with the issue that was raised by section 1 addressed by my amendment 67. However, in the event of section 1 being passed as part of the act, it is vital that its grand title, purpose and effect of this act should be clearly set in the legal context that it finds itself in, namely the Scotland Act 1998. My amendment 67 makes clear that the bill under consideration is to be read and given effect subject to the 1998 act. Only if so read and given effect to, could the bill ever be within the competence of the Scottish Parliament although I make no concession that even then it would be. The whole of section 29 of the 1998 act, not just the provisions about EU law apply to this bill and it is important by way of explanation in this context to note the limited extent of the Lord Advocate statement on the competency of this bill, dealing as it has with very limited issues of EU law. I quote the Lord Advocate in his answer to a parliamentary question. The legislative competence of any bill is determined by applying the relevant legal tests. The principal question in relation to the competence of the bill arises under section 29 2D of the Scotland Act 1998, namely whether the bill is incompatible with EU law. As the Lord Advocate said in his view, the principal question, so even in that he was not saying that is the only question. I am sure that the Lord Advocate would concede this if his comments were to be widened out to cover all relevant options. That is the whole of section 29 of the 1998 act and not just that specific part, 29 2D. Indeed, there are many other sections of the act that are relevant in the context of this bill. The perspective, nature of the bill, the presiding officer's comments on it and its failure to meet the test for legislative competence will be familiar to the committee. Indeed, my colleague Liam Kerr has touched on the need for law to be precise, clear and certain, but I would add to his comment that that is a requirement not just in EU law but also human rights law, something that the Scottish Parliament will still continue to be subject to after, as before, UK withdrawal from the EU. The way the bill is drafted and coupled with the other provisions, there is a whiff of anarchy and lawlessness about it. Indeed, as drafted, the bill may be considered questionable on an objective reading when measured against the standard of the rule of law itself, and it is of course the rule of law which underpins our civilisation. My amendment 67 would deal both with the undesirable reality and also any appearance of that, as would, in particular, the amendment 214, in the name of my colleague Adam Tompkins, to leave out section 33. In closing on this amendment, I would associate myself in particular with the other amendments of like nature in the group being 78, 80, 82, 88, 97, 104, 105, 112, 114, 133, 161, 162 and 163, and I do not need to go into those. Briefly, my final amendments in the group being 72 and 74, likewise, seek to remove any shadow of a doubt that the provisions of the bill operate and are intended to operate in the legal framework in which we operate as a civilised society under the rule of law. I thank the member Adam Tompkins to speak to amendment 68 and other amendments in the group. Colleagues, I associate myself with the remarks of Gordon Lintos a few minutes ago that there is a whiff of anarchy and lawlessness around the provision that we are debating at the moment. It is incompatible with the rule of law, which is one of the fundamental building blocks on which the United Kingdom constitution is based, including the devolution settlement, and it should, for that reason, if no other be repealed or deleted from the bill. Convener, I have 13 amendments in this group, and I propose, if it is all right with you, to debate them in three subgroups rather than to go through all 13 separately in the interest of time. I want to consider first amendment 68 and then amendment 214 and then together amendment 215 to 25. Amendment 68 seeks to omit section 1 from the bill. We have heard in a series of, I think, quite powerful and very well put together speeches already this evening from members a whole list of reasons why section 1 of the bill is not fit for purpose. There are two approaches that one could take to that. One could go through it line by line and seek to delete individual words, such as Liam Kerr's amendment that would delete the word perspective and others, or one could take a more holistic view and say that the section as a whole is not fit for purpose, and that is the view that I took when considering amendment 68. Section 1 is called purpose and effect of this act. The problem with section 1 is that it does not accurately capture either the purpose or the effect of this act. The true purpose of this act is if not to obstruct Brexit, then at least to make the course of Brexit manifestly more complicated and difficult. That is the purpose of this legislation and it is not reflected in section 1. The effect of this act is to create unnecessary legal complexity, to create unnecessary legal confusion, to complicate the statute book and to make the operation of the statute book manifestly more complex post Brexit than it is now. Section 1 should be removed from the bill because it fails accurately to record either the true purpose or the true effect of the legislation that we are considering this evening. Paragraph 5 of the explanatory notes that the bill, convener, says that the legislation is to ensure certainty, stability and predictability for the people who live and work in Scotland. The true purpose and effect of the legislation is the very opposite of that. The legislation will ensure uncertainty, instability and unpredictability for the people who live and work in Scotland. In the policy memorandum, I'm also accompanying the publication of this bill a fortnight ago. At paragraph 4, for example, we have a quotation from the Scottish Government's comments about legislative consent with regard to the withdrawal bill, which says that the Scottish Government accepts that proper, responsible preparations should be made for withdrawal, including preserving a functioning legal system. I welcome those comments of the Scottish Government and I agree with them, but this bill does no such thing. In fact, this bill does the opposite. This bill does not provide for responsible preparations. It provides for irresponsible whatever the opposite of preparations is. It does not preserve a functioning legal system. It goes out of its way to make the legal system more difficult to function after Brexit than it is now. At paragraph 7 of the policy memorandum accompanying this bill, the Scottish Government talks about maintaining a functioning system of devolved laws and ensuring that laws operate effectively. I agree that we need to maintain a functioning system of devolved laws, and I agree that we should ensure, so far as we are able to, that laws operate effectively once the United Kingdom has left the European Union, but this bill won't do that. This bill will do the opposite of that. This bill will sow the seeds of confusion and complexity. For that reason, if we are to have a provision at the beginning of the bill that seeks to record the bill's purpose and effect, it should do so accurately and not inaccurately. The policy memorandum does say that there are some things in the policy memorandum that I do agree with. The policy memorandum does say, at paragraph 12, that the Scottish Government has always accepted that there are advantages to being able to prepare for UK withdrawal across the UK's legal jurisdictions using a single statute. I agree with that. The whole of the Conservative Party agrees with that, and that is why we think that this bill is unnecessary and why section 1 of it should be removed. That is what I wanted to say, convener, about amendment 68, which is the first amendment in my name in this group. Moving to amendment 214, which seeks to remove from this bill section 33, the concerns there are rather different. This is an issue that goes directly to the question of legislative competence. We know that the Presiding Officer has given an opinion that the bill is outwith legislative competence because, in his opinion, it violates the requirement in section 29 subsection 2d of the Scotland act that this Parliament may not legislate incompatibly with EU law. However, there are also, in addition to that point—I should say also for the record that we know that there are two views about that and that Lord Advocate and the Scottish Government have taken a different view about the compatibility of this legislation with EU law. I do not mean this evening to rehearse, at least not on this occasion, to rehearse that argument at the moment. However, there are also other constraints on our legislative competence, including that we may not legislate on reserved matters, which are provided for in schedule 5 to the Scotland Act 1998, and including, of course, that we may not modify certain protected enactments, which are listed in schedule 4 to the Scotland Act. Included in those protected enactments, which we may not legislate to modify, is the Scotland Act 1998. There are, of course, some exceptions to that. There are some provisions of the Scotland Act 1998, which we do have the legislative competence to modify, but we do not have the legislative competence to modify either section 29 or section 57. Section 33 of the bill provides that section 29 and section 57 are to be amended. Those are provisions that are manifestly outwith legislative competence. That was a matter that members may know was debated in the chamber this afternoon. The minister, in response to the point that I put to him about this, cited to me paragraph 7 of schedule 4 to the Scotland Act 1998, which, in his view, means that section 33 is within legislative competence and not outwith legislative competence, because paragraph 7 provides that this schedule—that is to say, schedule 4 to the Scotland Act 1998—does not prevent an act of the Scottish Parliament repealing any spent enactment. That exception does not apply to section 33 for two reasons. The first reason is that we are not talking here about an enactment, we are talking here about provisions. The second reason is that the provisions, that is to say, section 29 and section 57 of the Scotland Act will not be spent. That is a core point that goes to the heart of the issue on which the Scottish Government rests their case for the continuity bill. The Scottish Government rests its case for the continuity bill on the assumption that section 29 and subsection 2d of the Scotland Act will empty itself of all content—it will empty itself of all meaning once the United Kingdom leaves the European Union—that it will no longer mean anything in language or in law to say that this Parliament may not enact legislation that is incompatible with EU law. I am sure that it is an honest mistake, but I think that the mistake that the Scottish Government has made is to assume that that is correct and that it follows that any enactment that refers to EU law and the legislative competence of this Parliament will be spent on exit day. I think that that is a wildly optimistic reading of the word spent and is an issue that the courts, if this matter ever did come before, would take a very different view on. My view is very clearly and unambiguously that section 33 of the legislation is outwith competence, not for the reasons that I identified in the statement of the Presiding Officer, but for other reasons. That is to say that section 33 of the legislation is incompatible with schedule 4 to the Scotland Act 1998. The final subgroup of amendments that I wanted to speak to in this grouping convener amendments, which are all in my name, are various paragraphs of schedule 1 to the bill, which again fall foul of the same requirement. That is to say that the requirement in schedule 4 to the Scotland Act 1998 that this Parliament may not legislate to modify certain provisions of the Scotland Act 1998. Paragraph 2 of schedule 4 to the Scotland Act lists the various provisions of the Scotland Act that this Parliament may modify by way of exception to the general rule that we may not have made of modify any provision of the Scotland Act. I am in my amendments seeking to save all of the provisions listed in schedule 1 to this bill, which fall within that list of exceptions. Paragraph 4, 5, 7, 8, 9, 11, 12, 13, 14, 15 and 16 of schedule 1 to the bill do not fall within that list of accepted provisions and are therefore provisions of the Scotland Act 1998, which this Parliament clearly has no legislative competence to amend. They are therefore all incompetent. In my name, the Scottish Government may not see it this way, but in my view, those amendments are seeking to help the Scottish Government by making the legislation incompatible with the restrictions on legislative competence with which any Parliament respecting the rule of law, which Gordon Lindhurst spoke about so eloquently a few moments ago, must surely respect. Jamie Greene to speak to amendment 73 and other amendments in the group. Thank you, convener. I start by placing on record my thanks to the parliamentary staff who are attending this evening and all those who have assisted in getting to the stage in the very tight timescales. To place on record my considerable concern over the manner in which we are debating a considerable amount of amendments to such an important piece of legislation, which has long-reaching and far-reaching constitutional effect. If I may start by turning to the section in my amendment 73, 204 and 231 and any other in this group, amendment 33 is in relation to section 3 and seems a very minor wording change of if to only if, but this amendment is about adding clarity to the incorporation of devolved direct EU legislation itself, a new term perhaps to us. The current phrasing describes direct EU legislation as devolved if it were contained within an act of the Scottish Parliament, within the legislative competence of the Scottish Parliament, but this phrasing allows for ambiguous reading of what could be categorised under it with the word if alone. In order to avoid any legal misinterpretation, I propose to insert the words and only if that specifies that the function and implementation of devolved retained EU law as contained within a Scottish act of Parliament does fall within the competence of the Scottish Parliament as outlined in the Scotland Act 1998 and the devolution settlement as agreed. Moving on to amendment 204, this is in relation to section 28. I propose to leave out subsection 1 of that. This is in relation to the meaning of exit day. Now indeed, there should be a definitive point where the UK is no longer a part of the European Union, but by transitive properties this should mean that there is only one date at which Scotland also is no longer a member of the European Union. That date is not for Scottish ministers to decide nor should it be open to any ambiguity. The date at which our exit is defined should be in keeping with the day that the European Union legislates and the UK Government legislates and agrees to. This subsection and its aims in its current language may indeed differentiate a date when Scottish ministers perceive Scotland to leave the European Union, if at all, compared to that of the other parts of the UK. The definition of exit date should be removed in place of Alexander Burnett's amendment, which I support, which ties Scotland's departure from the EU with the rest of the UK, as accepted by the EU, which, as it currently stands, is defined as 29 March 2019 at 11 pm. That may seem a small point, but we are seeking to tidy up the language in this bill, and indeed I hope that members will agree that this is a sensible tidy. Moving on to amendment 231, this is in relation to section 37. This act or provisions of this act must be repealed if deemed unlawful by a relevant court. I think that this is a very important point in this bill. It is indeed related to the wording of Murdo Fraser's amendment 59. We are all aware that there is discussion around the legal competence of the bill. The Presiding Officer, as has been said previously, does not believe that we have the remit to do this. Therefore, I propose that it should a relevant court decide that this bill itself is outside the competencies of this Parliament or is in any way illegal in its entirety or parts thereof. I think that it is entirely uncontroversial and indeed quite sensible to suggest that this bill, this bill be repealed or at least parts of it, which are deemed unlawful. I would like to think that this Parliament would repeal any law that has been deemed unlawful, but for the interests of certainty, I believe that it is best that we make sure that we do not keep legislation on the statute book, which a court has deemed unlawful. If I could briefly turn to some of the comments made by my colleague Adam Tomkins, specifically amendment 68, I echo his comments on the removal of section 1. My experience in this place of legislation is that historically in the few bills that we have passed, ministers have sought to avoid including some purpose and effect at the great detail that is in this bill. I would like to point to my experiences in the rural economy and connectivity bill around the committee, around the islands bill, which we argued quite strongly for purpose to be added to the bill. The purpose was to be added for two things, to set expectations amongst those outside of this place as to what we are seeking to achieve by the piece of legislation, but also to provide clarity on the purpose of the law. The inference, specifically in section 11b, is that one of the primary purposes of the bill is to ensure the effective operation of Scots law upon and after UK withdrawal. The inference is that Brexit somehow poses a risk to the ability of Scots law to continue effectively after withdrawal. Nowhere in the policy memorandum does it indicate what risks there are to Scots law after withdrawal. Indeed, there are none clearly defined and nor in any of the debates or discussions has anyone been able to explain what those risks are. I would be very interested to hear from the minister if he could address that, which is why I support strongly Adam Tomkins's amendment. Finally, amendment 214 in this grouping is specifically the removal of section 33. I think that any references around change to the Scotland Act to me are concerning. Taking into account that there are different views as to why this section may not be competent, the Presiding Officers and indeed my learned colleague Adam Tomkins, I am mindful to strongly agree with the removal of that section. Those are all my comments in that grouping. I thank the member Jackson Carlaw to speak to amendment 78 and other members' amendments in the group. I thank you, convener. I am resisting the temptation given our surroundings to refer to you as Presiding Officer, but that may just be a premature mistake in my part. Who can tell? My amendments, of course, are tabled in the spirit of a champagne glass of constructive reflection for the minister to dwell upon, and I know he will be seeking to embrace them in that spirit. I know that the committee will also regret the fact that I am not unlike Professor Tomkins a professor of law, so my exposition may be slightly less erudite in the delivery of my motions. Prospectively, to use a word favoured by the minister, I might end up being slightly briefer, we will see. Amendments number 78, 80 and 82, convener, the effect of those would be to ensure that the devolved rights that exist as a consequence of the 1972 European Communities Act are secured into Scots law in a way that also respects the Devolution Settlement and the Scotland Act. Section 4 sets out what will be secured, saved after exit day and devolved rights, liabilities, restrictions and so forth. That amendment makes it clear that all of those rights are subject to the Scotland Act of 1998. The reason for that is simple, that the way that the bill has been brought forward is a challenge to the assumptions and conventions underpinning devolution. It was brought forward despite an opinion from the Presiding Officer for the First Time Ever, as referred to by Professor Tomkins and other colleagues. In it contains many provisions that store up questions of what is devolved or potentially not devolved. That amendment would make it clear that, on this specific matter of devolved rights, recognised in Scots law by virtue of that 1972 European Communities Act that those are all subject to the 1998 Scotland Act. Amendments 112 and 114 are not wholly dissimilar. Those amendments make it clear that the definition of devolved retained law is in line with the Scotland Act. Colleagues will note that section 10 sets out how devolved retained law is to be interpreted. Subsection 8 defines devolved jurisdiction further and states that it is the jurisdiction in relation to matters that are within the legislative competence of the Scottish Parliament. Subsection 9 sets out what devolved case law means. In both those cases, the committee and the minister and the Government should be far more specific. The amendments 112 and 114 would make it clear that they are defining the legislative competence of the Scottish Parliament as outlined in the 1998 act and nothing else beyond that. As I said, they are tabled in a spirit of constructive reflection for the minister. I can see he, like anybody following those provisions, live elsewhere appears riveted by the prospect. So far been the shortest discussion so far, Jackson. Support because of that, convener, but we'll see. Donald Cameron to speak to amendment 88 and other amendments in the group. Thank you, convener. I also like Jamie Greene placement record my thanks to you and your committee, as well as the legislation team for the Herculean efforts in getting to where we are tonight. I have three subgroups, and if I could speak to amendments 88 and 97 first of all, which are amendments to section 5. Section 5, of course, being the section that deals with general principles of EU law, and what my amendments seek to do is to explicitly refer to legislative competence of the Parliament as set out in the Scotland act. For the very real reason that we have already seen severe difficulties with the concept of legislative competence, as we all know, given the fact that the Presiding Officer on the one hand has taken a view that this bill itself is without outwith competence and a Lord Advocate has taken a different view. Therefore, it would be my suggestion, convener, that, given those difficulties, it is highly important that we put explicitly on the face of this bill the concept of legislative competence. It is a vital principle that sits at the heart of the devolution settlement, and we ignore it at our peril. As members will well know, the Scotland Act 1998, which established this Parliament, set out the concept in section 29, and I don't intend to waste time by going through it, but it is useful to make one observation on something that Adam Tompkins said, which is the issue around modifying certain enactments set out in schedule 4, which appears in section 33 of the continuity bill. With the greatest respect to the Government, I think that they have a very serious problem here in relation to competence. I don't think that get-out for these being spent enactments will work for them. Section 33 of the bill is entitled, Repeal of Spent References, and I think that there is much to be said for the points that Adam Tompkins makes there. Leaving that aside, convener, the reasons for my amendments 88 and 97 is that ultimately no area of this bill should attempt to supersede the Scotland Act and the concept of legislative competence, and it is for that reason in relation to the general principles of EU law that I would think are imperative that we include references to legislative competence, so that is absolutely explicit on the face of the bill. If I could turn to amendments 143, 161, 162 and 163, those amendments are to section 12 and section 13, and effectively they seek to enshrine a different element of the Scotland Act 1998. That is what I previously referred to as the delicate balance that that legislation creates between reserved and devolved matters, and it is for that reason that I have suggested amendments which makes explicit matters that are reserved under schedule 5 of the Scotland Act. That is amendment 143, and then in 161 again makes explicit the relation of devolved and reserved matters, likewise 162, which refers to reserved matters, and likewise 163, which refers to matters not devolved to the Scottish Parliament. It is my observation, convener, that it is again imperative that those points are made explicit and sit on the face of the bill. Lastly, convener, I have suggested amendment 205, which refers to the exit day provision in section 28, and the reason for that amendment is that if the committee agrees to the amendment of Alexander Burnett, which is to tie the phrase exit day to the meaning that appears in the UK bill, then section 28 becomes obsolete, and the entire section can be deleted. Alexander Burnett gave several reasons for that, but it would be my submission that if the UK Government can determine exit day, then that is the date that should be used, and it would be a recipe for chaos if we had two exit days or that there was some ability to define a different exit day. For that reason, I would suggest that my amendment 205 be accepted by the committee. I thank the member, Maurice Golden, to speak to amendment 104 and other amendments in the group. In the interests of time, I will speak to both my amendments 104 and 105 together, because the arguments for accepting those amendments by the committee are able to be combined in order to ideally accept them. In section 6, the principle of the supremacy of EU law, page 5, line 10, adds in, as provided for in the Scotland Act 1998, and I will come on shortly why that extra line is distinctly important. 105, which is in section 7, challenges to the validity of retained devolved EU law, which is on page 5, line 17, seeks to insert where regulations are, one, within the legal competence of the Scottish Parliament, and two, exerciseable by the Scottish ministers within devolved competence in accordance with the Scotland Act 1998. I believe that those two amendments should be accepted by the committee based on two main arguments. The first is the critical importance of the Scotland Act, and I will go on to explain that. Secondly, is the issue of timings with respect to the purpose and the effect of the bill. I will be making those arguments not as a result of my own legal competence, which is unfortunately, in this occasion, limited to international law and the supranational jurisdiction, but I would urge the committee to listen and read not only the law but those experts in reading the law as well. In terms of the critical importance of the Scotland Act, as we will all be aware, the UK Supreme Court has made it clear that section 29 of the 1998 Scotland Act, which lays out the principle of legislative competence, is at the heart of the scheme of devolution to which the act gives effect. In other words, it goes to the very core of the devolution settlement that founded this Parliament, and I believe that we cannot allow a bill to pass which trespasses on such a vital element of Scottish devolution. I will not do the full quote in the interests of time, but Tobias Locke, who is the senior lecturer at the University of Edinburgh Law School, told the Scottish Parliament's Culture, Tourism, Europe and External Relations Committee that, in contrast, section 29 of the Scotland Act 1998 limits the powers of this Parliament. The question of combatability with EU law is one that must be asked in relation to legislation that is introduced in the Scottish Parliament but does not have to be asked in relation to legislation that is introduced in the Westminster Parliament. That is the end of the quote. However, what that demonstrates is the fundamental importance of section 29, the fundamental importance of legislative competence to the bill that we are considering today. I hope that the committee is convinced that the Scotland Act is critical to ensure that the bill is acting in accordance with current legal and legislative competence. The second area on the issues of timings is important in terms of the amendments that I have specifically highlighted and clarifies should it need to be clarified in the future any challenge to the competence of this bill. As we are aware, the Presiding Officer, as well as legal experts have suggested several reasons why the bill could be contrary to the Scotland Act 1998. Two of the foremost individuals with respect to the bill wrote for the UK Constitutional Law Association, Christopher McOrkindale, who is a lecturer in law at the University of Strathclyde, and Aileen McHard, who is a professor of public law at the University of Strathclyde. They have analysed the Presiding Officer's legal argument in the interests of time, I will abridge their views, but it essentially says that the late effect of this bill is irrelevant to its legal validity and undermines the core argument regarding this bill. Their point is also supported by the Supreme Court in the famous 2012 case of imperial tobacco Ltd vs the Lawd Advocate. Again, I will abridge their views on that. It acknowledged that the exercise to be undertaken was in essence no different from that which was applicable in the case of any other United Kingdom statute. Therefore, the description of the act as a constitutional statute cannot be taken in itself to be a guide to its interpretation. The statute must be interpreted like any other statute. Therefore, with respect to those amendments, we have to ensure that the bill is in the competence and is acting within the framework of the Scotland Act 1998. Those amendments would ensure that that attempt at legislation does not contravene the Scotland Act, and I urge the committee to support those amendments. James Kelly to speak to amendment 55 and other members in the group. Thank you, convener. I seek to move amendment 55 in the name of my colleague Neil Findlay. It relates to exit day. In relation to section 28, the definition of exit day seeks, perhaps for unintended consequence, to place the power for defining exit day in the hands of Scottish ministers. It does not seem a logical or correct thing to do in the sense that the power for defining exit day relies at the UK level when the UK leaves the EU. Therefore, we seek to take that reference out and make it clear that the date should be when the UK leaves the EU. We have not set it to a specific date seeking to give some flexibility around that, and we do so on the basis that there may well be, we would hope to see, transitional arrangements in place post the date that has originally been set up. Transitional arrangements would obviously give the advantage of access to the Single Market and Customs Union before any leave date. I believe that this amendment avoids any confusion and is a sensible way forward. I would also like to indicate support for amendments 58 and 60 in Liam Kerr's name. As Liam Kerr said, I think that he brings some clarity to the legislation. However, I want to oppose all the other amendments in the group because I do not believe that they are necessary and add anything to the sum of the legislation. Does any other member of the committee wish to speak in this grouping? Thank you very much, convener. I thank the members for their various efforts. I do not intend to talk about those that seem to me to be wrecking amendments or coming from a mischievous motivation, but I think that there are some that deserve some brief comments. In particular, we have just suggested that some, I think what Mr Golden called, abridged quotes from committee witnesses. I think that I might suggest that some of them may feel that they have been quoted heavily out of context. However, the committee has access to the full written submissions, as well as the full oral evidence that we have heard. Can we just please let the member continue in silence, please? Thank you, convener. I think that members of the committee have access to the full written and oral evidence from those witnesses. A couple of brief other points. I think that some of the proposals on the issue of competence and murder phrasers' suggestion of an additional line referring to decisions of the Supreme Court seem to me to raise some possible unintended consequences. In particular, it seems to me that the murder phrasers amendment would risk creating a separate status for decisions of the Supreme Court in relation to different categories of Scottish legislation. I am not sure if that is the intention, but it seems to me that if that amendment has any actual purchase, if it has any actual meaning, that would be its meaning. It seems to me more likely that it has no actual effect and is therefore not needed. In relation to Liam Kerr's objection to the word prospective, it is very clearly the case that the UK Government is fully committed to its current reckless and destructive course of action, but that does not require any of the rest of us, whether in this Parliament or those that we represent, to abandon hope that rational thought will resume. I think that the suggestion that that would be removed from the face of the bill is a matter of political posturing rather than anything else. Finally, convener. I will wind up in a moment. Please continue, Mr Marvie. Finally, convener, in relation to the suggestion that there is a whiff of anarchy about this. There are no such things as pointed word there at committee, Mr Tomkins. My final comment, convener, is that in relation to the suggestion that there is a whiff of anarchy about this situation, I will simply reflect on the fact that there are more toxic orders about the political landscape of this country at present, and I am not troubled by this one. There was no points of order. I wanted Patrick to finish that point, but there are points of clarification, and I understand that you want to raise a point of clarification. Thank you, convener. What is the position with regard to whether we may intervene on each other's speeches in these debates, including whether we may intervene on the minister's speech? That this is not a meeting of the Parliament and it is normal. This is a meeting of the committee, so I am going through a normal committee process. Those who have spoken and had amendments, like Liam Kerr, will have a chance to wind up, but there are no interventions in a committee process at this stage. Ash Dennell. Thank you, convener. Although there may be some constructive amendments here this evening, amendment 68 is not one of them. Clearly, section 1 of the bill is important in setting the overall purpose and context and the intended effect of the bill. Taking it out is simply an attempt to wreck the bill, and this is not a constructive amendment. Thank you, convener, and thank you members of the committee. This is clearly going to be a long evening, but I am grateful to every member who is here, and I am in a sense pleased to be here, and I make that point. I hope that this will prove a constructive evening's work, and I say the outset that is the approach that I will be taking for the Scottish Government. I pay a particular thanks, convener, to the work of the committee staff and the Parliament staff. This has been a taxing time. Those who have sat through the last hour, because we have been going for an hour now, would be surprised if they were to see a caption that said that there was a whiff of anarchy and lawlessness about the process in which we are engaged. Still less that what we are trying to do is incompatible with the rule of law. I just want to repeat, convener, my point that I have made several times in the chamber. We should endeavour to have accurate language that helps us to go forward, rather than language that makes things difficult or more awkward. I also endorse the point that Patrick Harvie has made regarding quoting evidence in a way that I certainly did not recognise the burden of the evidence on the individual spoken, and no doubt they will wish to reflect on that. Can I perhaps say that I think that the bill can be improved? During this evening, there will be many opportunities to improve the bill. I will be looking for opportunities to improve the bill, and I will consider all suggestions seriously. But whilst I have said and have said clearly from the start that we want to see agreement reached over the EU withdrawal bill, the UK bill, we are realistic. We might ultimately have to rely on the bill for our preparations. We are realistic, too, about the complexity and the importance of those preparations. We and the Scottish Parliament must get them right. Continuity of law on EU exit is essential if we are to rescue anything at all from the chaos of Brexit. Let me therefore turn to the amendments that were addressed by the definition of the bill of exit day. At both the dedicated powers and the constitution committees, members expressed their concerns about the potential use of that power in section 28, and I committed to addressing those concerns. I should be clear about the Scottish Government's position, because I think that there have been misapprehensions, to say the least, about our reasons for seeking that power. We have never claimed that either the Scottish Parliament or the Scottish Government would be able to influence or affect in law the date on which the UK leaves the EU. Would that that be so, but that is a reserved matter? A reserved matter with the most profound, devolved consequences, but a reserved matter nonetheless. We cannot, alas, prevent Brexit by this bill, and we cannot delay Brexit by this bill. We have never claimed that a different day for Brexit could apply in law in Scotland compared with the rest of the UK, despite a number of speakers making that point. The power for Scottish ministers to a point for the purpose of the bill an exit day could only ever be exercised with reference to the purpose of the bill, which is to deal with EU withdrawal. The date of Brexit, as things stand, is not yet set in stone. The UK Government accepts that, which is why it has taken a power in its own EU withdrawal bill, to alter it to reflect any agreement that might be reached between the UK Government and the European Council about a different time or date of withdrawal. That flexibility is required. The Scottish Government therefore cannot accept Alexander Burnett, Murdo Fraser or Donald Cameron's amendments in his regard, which would tie us to a definition contained in an act that has not passed to UK Parliament, which has already been a subject of repeated amendment. That would be renouncing this Parliament's ability to legislate for itself rather than asserting that power. That act has to work within its own terms. Similarly, Jamie Greene's amendment would remove the ability to set exit day at all without replacing it. It is not clear to the Scottish Government why he has removed subsection 1 and left and placed subsections 2 and 3, which rely on subsections 1. It is therefore technically deficient. However, we are happy to accept Neil Findlay's amendment 55 in this regard. I am sorry that Mr Findlay is not here to hear that. He would be as surprised as Mr Kelly looks at this stage. It preserves unnecessary flexibility. It makes it clear to the members concerned that exit day will mean the actual day of exit whenever that might take place. My officials are considering whether there is any adjustment needed to the wording of this amendment to make sure that it properly reflects the legal arrangements for the UK's perspective withdrawal from the EU, to make sure that it would operate clearly and effectively across the various provisions of the bill that depend on the term. If any such further minor adjustments are required to this provision, I commit to discussing these with Mr Findlay and Mr Kelly and other members in advance and lodging the appropriate amendments at stage 3. The rest of the group of amendments relates to the questions of the legislative competence of the bill. This is clearly an important issue for the Parliament to consider, so I welcome the opportunity that those amendments provide to further discuss some of the factors that the Government believes make the bill within competence. I therefore propose to start with Adam Tomkins' proposal in amendment 68 to remove section 1 from the bill entirely. Let me say at the outset that we do not consider that the competence of the bill is dependent on section 1. As a Lord Advocate has set out, the competence of the bill will be assessed according to its overall purpose and the relevant legal context. I will not repeat the Lord Advocate's reasons for concluding that the bill is within the competence of the Parliament, including crucially that it is not incompatible with EU law. However, we do think that section 1 of the bill is important in setting the overall purpose and context and the intended effect of the bill that will guide the courts in interpreting its effect. Liam Kerr seeks to remove the word perspective from the provision that says that the purpose of the bill is to make provision in connection with the perspective withdrawal of the United Kingdom from the EU. The word perspective simply acknowledges the overall context of the bill, which is that we require to make preparations for continuity of law prior to withdrawal rather than when withdrawal has happened. I therefore think that the word perspective is right here in the description of the purpose of the bill. The definition in the online edition of the OED certainly is characterised by looking into the future, forward looking, anticipatory, having foresight or regard for the future. We think that the word perspective is accurate in this regard. On Liam Kerr's other amendments, number 60 seeks to amend section 1.2, so it refers to any provision of the bill that is incompatible with EU rather than the wording now is a provision that would be incompatible if it were in effect before the relevant time. Our view is that no provision of the bill is incompatible with EU law. The conditional language is correct in acknowledging the risk of incompatibility if the provisions were in effect before the relevant time. That is why their effect is postponed to the relevant time so that they could never be incompatible. On amendment 65, a number of provisions throughout the bill contain provisions that are intended explicitly to confine the operation of the bill's provisions to Scots law on devolved matters, although that would have been implicit anyway under the Scotland Act. The words which amendment 65 seeks to remove in this one instance are intended simply to reflect the fact that not all of the devolved Scots law that we are dealing with is contained in an act of the Scottish Parliament. Some of it may be in Westminster Act or subordinate legislation, and some in rules of law. However, it is correct to say that wherever that law is devolved, it should be judged by reference to whether it could have been included in an act of this Parliament. That is why we have those words. Gordon Lindhurst's amendment 66 to the definition of EU law has exactly the same effect as the current wording in the bill. EU law is defined with reference to section 1269 of the Scotland Act. The current wording already does that, and I do not see how its suggestion with respect improves it. Murdo Fraser's amendment seeks to ensure that the Scottish Government complies with any decision of the Supreme Court that the act is outside competence. Alexander Burnett's amendment seeks to require Scottish ministers to repeal any provision of the act that is incompatible with the UK bill or the Scotland Act. Jamie Greene has a similar amendment that requires repeal of the act. We have discussed the competence issue at length. The Scottish Government is confident that the bill is within the legislative competence of the Scottish Parliament. However, in the effect that it was referred to the Supreme Court and found to be unlawful, which we believe is an unlikely effect, the Scotland Act is a clear only effect of this. Section 29 says that it is not law, so we could not repeal it because it would not be law anyway, and I would recommend that the member is proposing this to look at what the section says. There is no need to put in statute a provision that requires ministers to comply with the law or to repeal legislation that is found not to be lawful. The other amendments have been put forward in certain provisions throughout the bill to specify that its effect has to be read with reference to the Scotland Act. Those are also unnecessary. All of the legislation that is put through the Scottish Parliament must be read with reference to the Scotland Act. The Scotland Act itself tells us what is and is not within competence. That is how the question should be answered. We could not support littering the statute book with duplication or irrelevant provisions of this nature. Finally, Adam Tom can seek to remove the consequential amendments to the Scotland Act in section 33 in schedule 1, which remove spent references in EU law. Those amendments are included because, while the majority of the provisions repealed are enactments protected from modification by paragraph 4 of schedule 4 of the Scotland Act, the repeals do not, and I have made this point earlier today, do not fall foul of section 292C, because paragraph 7 1b of schedule 4 expressly allows the repeal of spent enactments, and those provisions will all become spent following EU exit. He may not agree with this, but that is the legal position as we see it. The bill does not need to make those amendments because it will have no effect following EU exit, but it is responsible superintendents of the statute book to do so. This is a tidying up exercise. I therefore encourage members to resist amendments 58 to 68, 72 to 74, 78, 80, 82, 88, 97, 104, 105, 112, 114, 143, 161, 162, 163, 203 and 204, 214 to 225 and 229 to 231. I encourage members to vote for Neil Findlay's amendment 55. In winding up my amendments 58, 60 and 65, I say simply this. Clarity, certainty, understandability must be our guiding principle. I don't seek with these amendments anything other than that clarity. Maurice Golden said that it was unfortunate that he only had grounding in international law. I would argue that if we start from a premise that says that law should be understandable by those governed by it and if those lawyers amongst us who have had it drilled into us for years, that we must always dispense with legalese, obfuscation, confusion, we must seek to achieve clarity. Maurice Golden should not be embarrassed to only have international law. I turn very briefly to the specific amendment 58. Patrick Harvie talked about perspective. I am delighted to hear that Patrick Harvie accepts exactly my point. In his view, that word seeks to accept, seeks to import the uncertainty that I seek to remove. There is not uncertainty about whether the UK will leave the European Union, whether we like it or not. There is to be a withdrawal. As Mr Russell rightly says, we must have accurate language going forward. He is right. Mr Russell then went on to talk about my amendment 60. He talked about postponing things to the relevant time in order that they never become incompatible in the first place. I assume that he is correct, but it is utterly confusing. That is exactly my point. We have to clear this sort of thing up. My amendments do not prejudice the meaning of the bill, far from it. They clarify, they improve it. That is why I continue to move them. I thank the member. I did not want to interrupt proceedings when we were in the middle of a discussion. Further to the point raised by Adam Tomkins, I asked just to clarify why I took that ruling so that everyone is completely aware of what the situation is. The debate on a group is the only opportunity that members have to comment on any of the amendments in the group. The guidance on public bills, which is an aid memoir to the standing orders, states that members should therefore ensure that a speech relates to all the amendments in the group on which they wish to comment. While the calling of speakers in a debate is at the discretion of the convener, members should generally assume that they will be called only once in each debate. I hope that that makes that position clear. We will now move on to the voting process for that group. The question is that amendment 58 be agreed or we all agreed. Okay, there will be a division. All those in favour, please raise their hand. All those against, please raise their hand. All those abstaining, please raise their hand. The result of the vote is five votes, four, six votes against. There were zero extensions. The amendment is therefore not agreed. A call amendment 59, in the name of Murdo Fraser, already debated with amendment 58. Murdo Fraser, to move or not move. Okay, moved. Thank you. The question is that amendment 59 be agreed to or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. All those abstaining, please raise their hand. The result of the vote is three votes for eight against. There are zero abstentions, and therefore the amendment is not agreed. A call amendment 60, in the name of Liam Kerr, already debated with amendment 58. Now, I remind members that if amendment 60 is agreed, I cannot call amendment 61 because of a preemption. Liam Kerr, to move or not move. Moved. Thank you. The question is that amendment 60 are agreed to or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. All those abstaining, please raise their hand. The result of the vote is five votes for six against. There are zero abstentions. The amendment is therefore not agreed. The call amendment 61, in the name of Alexander Burnett, already debated with amendment 58. Alexander Burnett, to move or not move. At the move. The question is therefore is that amendment 61 be agreed or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. All those abstaining, please raise your hand. The result of the vote is three votes for eight against. There are zero abstentions, therefore the amendment is not agreed. A call amendment 62, in the name of Alexander Burnett, already debated with amendment 58. Alexander Burnett, to move or not move. The question is that amendment 62 be agreed or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. All those abstaining, please raise their hand. The result of the vote is three votes for eight against and zero abstentions. Amendment 62 is therefore not agreed. A call amendment 63, in the name of Alexander Burnett, already debated with amendment 58. I remind members that if amendment 63 is agreed to, I cannot call amendment 64 on preemption. Alexander Burnett, to move or not move. The question is that amendment 63 be agreed or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. All those abstaining, please raise their hand. The result of the vote is three votes for eight against. There are zero abstentions, the amendment is therefore not agreed. A call amendment 64, in the name of Murdo Fraser, already debated with amendment 58. Murdo Fraser, to move or not move. The question is that amendment 64 be agreed or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. All those abstaining, please raise their hand. The result of the vote is three votes for eight against. There are zero abstentions, the amendment is therefore not agreed. A call amendment 65, in the name of Liam Kerr, already debated with amendment 68. Sorry, 58. Liam Kerr, to move or not move. The question is that amendment 65 be agreed to or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. All those abstaining, please raise their hand. The result of the vote is three votes for eight against. There are zero abstentions, and amendment 65 is therefore not agreed. A call amendment 66, in the name of Gordon Lindhurst, already debated with amendment 58. Gordon Lindhurst, to move or not move. Thank you. The question is that amendment 66 be agreed or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. All those abstaining, please raise their hand. The result of the vote is three votes for eight against zero abstentions, and that means that amendment 66 be agreed or we all agreed. A call amendment 67, in the name of Gordon Lindhurst, already debated with amendment 58. Gordon Lindhurst, to move or not move. The question is that amendment 67 be agreed or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. All those abstaining, please raise their hand. The result of the vote is therefore three votes for eight against zero abstentions, and amendment 67 is therefore not agreed. Amendment 68, in the name of Adam Tomkins, already debated with amendment 58. Adam Tomkins, to move or not move. Thank you. The question is that amendment 68 be agreed or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. All those abstaining, please raise their hand. The result of the vote on amendment 68 is that there were three votes for eight against zero abstentions, and amendment 68 is therefore not agreed to. Therefore, call amendment 69, in the name of Neil Bibby, grouped with amendments 70, 75, 79, 81 and 83. Neil Bibby, to move amendment 69 and to speak to all amendments in the group. Thank you, convener. Firstly, can I echo what others have said and put in record my thanks to all the Parliament and committee staff, as well as our own MSP and party staff, who have been involved in this process and supported us in this process. Of the amendments in this group, I wish to move amendment 69 and speak to amendment 70 and 79 in my name and refer to the other amendments in this group. As we know, this bill is complex and far-reaching. It is therefore important that the content of the bill is tested and we are necessary to clarify that. That is what I hope to achieve with those amendments, which, as members may be aware, were proposed by the Law Society of Scotland. Clarity amendments 69 and 70 are probing amendments at this stage. The purpose of those amendments is to clarify the meaning of the word past that is used in section 2 of the bill. The definition of devolved EU-derived domestic legislation in section 2 appears to include any enactment that has effect immediately before exit day, but it is not clear that the definition extends to a bill passed by the Scottish Parliament, which has yet to receive royal assent. Nor is it clear that an enactment enforced before exit day, but which applies afterwards, is included, or that an enactment yet to be commenced, is included. I would therefore invite the minister to clarify whether the relevant section should apply to enactments that have passed or to enactments that have passed and commenced. I would invite the minister to explain whether the Government believes that there is a case for an amendment. Amendment 79 is also a probing amendment seeking to clarify the enforcement of rights referred to in section 1. It is subject to section 7. Section 7 is the section of the bill dealing with the challenges to the validity of retained EU law. Again, I invite the minister in his contribution to address those points and explain that issue. I note the Conservative amendments in this group clearly across the chamber, members recognise the need for greater clarity in this bill. However, we all have to be satisfied that that is the intentional effect of the Conservative amendments 75, 81 and 83. We also must be satisfied that amendments 75, 81 and 83 are necessary. We will consider what Alexander Burnett and Liam Kerr have to say on amendments 75, 81 and 83. Finally, convener, I reiterate that the Labour amendments in my name in this group are constructive probing amendments a way of either seeking or providing clarity on how that is to the Scottish Government. I will allow members to give those amendments full consideration. I move amendment 69. Alexander Burnett, to speak to amendments 75 and other amendments in the group. Thank you, convener, and I will be submitting amendment 75. My name is found in section 3, page 3, line 9, where, after notified, it is to be inserting in writing. The effect of this amendment is to ensure that where the bill wants to save the EU law by what is in place immediately before exit day, it only covers decisions that are made to people in writing rather than as drafted, which is that they are simply informed. Across the public sector, we have different definitions of what being informed is. There are some aspects of public contracting or companies, where the publication in an official journal, such as the OJU or the Gazette, is enough of a Government to have formed whether it is what is happening to them. But elsewhere and in this bill, we have more specific provision, in particular around consultation and regulations, which ensures that ministers take certain actions to inform Parliament or the subjects of law what is going on. Some of that is oral, particularly where the Parliament is involved. This amendment seeks to clarify exactly what is being saved from EU law. As drafted, devolved direct EU legislation that is operative immediately before exit day is saved after exit day, and 4b spells out what that means for people named in decisions. It says that the law is saved if it has been notified to that person before the exit day. But again, this is too vague. Notified could mean almost anything, and in theory there might be situations where someone has been notified informally of a decision before exit day. After exit day, the legitimacy of that decision is clearly going to be called into question, and this amendment simply seeks to end that ambiguity. It would mean that any person or organisation specified in a decision is only subject to that after exit day if they had been notified in writing before exit day. Emilia Kerr, to speak to amendment 81 and other members in the group. Thank you, convener. Amendment 81 asks that we leave out from any to jurisdiction in line 35 and insert a quarter tribunal administered by the Scottish courts and tribunal service. Again, this is simply about clarity and ability to understand. It is presumably not beyond the ability of a draftsman to set out clearly what is any court or tribunal in the UK exercising devolved jurisdiction. That is an objective category, but as drafted it is complicated and difficult to isolate. Furthermore, subsection 5 seeks to define devolved jurisdiction, i.e. what is the specific court or tribunal would be exercising as a matter within the legislative competence of the Scottish Parliament. However, as the bill's process is demonstrating, the question of legislative competence is not a fixed one. It is not a fixed absolute, and that means that the cross-reference at section 4 3b, phrased as an absolute, is not an absolute. Accordingly, in order to be clear about which body must be the judge of that to which section 4 subsection 1 applies, I have introduced amendment 81 to introduce objectivity in amendment 83. Amendment 83 is also about clarity. Section 4 1 sets out various things that are recognised immediately prior to exit day and are expressed to apply and be followed post exit day. Again, that is quantifiable. Either something applies post exit day or it does not. It is not appropriate that there is such a degree of ambiguity that any litigator, pursuer, defender or such like must troll through at no doubt great cost to themselves or the taxpayer reams of legislation and or case law to establish whether it applies or not. And no doubt if it were appropriate the other side, the opposition would contend for a different interpretation. If it is identifiable, identify it. Just while we are there, if you look at section 4 1b, which demands that to be applicable post act, those provisions are immediately before exit day enforced, allowed and followed. A question is begged there that whether that is a conjunctive construction, i.e. they are enforced, slight tangent, but what if a provision has never been litigated to be enforced? Is it enforced and allowed, in which case allowed by whom, what is allowed, and followed, begging the question what if a decision was a one-off and the ratio decedent I never used again, or is it a disjunctive phrase? The use of the and suggests the former, but which is it? Amendment 83 simply seeks to remove the ambiguity and the room for doubt. If section 4 subsection 1 wants provisions to continue, let's have them identified. If section 4 1 is argued to be sufficiently clear to identify an exhaustive list, let's have that exhaustive list. Members may wish to note that my authority for this amendment derives from the law society briefing note, which asks specifically that ministers explain exactly what the rights in section 4 relate to. I move amendment 81 in my name. Do other members of the committee wish to contribute in this grouping? I have no indication. I therefore ask the minister. Thank you, convener. I thank members for their amendments here. I am conscious of the point that Neil Bibby made that his amendments are probing amendments and they have been suggested by the law society. I want to be clear in the answers that I gave to Neil Bibby and I will endeavour to do so. On Neil Bibby's amendments, I am happy to confirm that the effect of the bill is to save EU-derived domestic legislation whether the legislation is in force or not on exit day. As long as it has been enacted and falls within the categories described in subsection 2, it is saved with whatever effect it has at the point of exit day. The bill takes the same approach on this as the UK bill, the identical approach. This is appropriate because EU-derived domestic legislation has been enacted or made by the domestic authorities having gone through a domestic scrutiny process. In contrast, section 3 of the bill, which incorporates direct EU legislation, only brings that legislation into domestic legal system if it is actually enforced. I know that that is a complex set of issues, but there is a difference there. In relation to the acts of the Scottish Parliament, the bill already defines what is meant by past in section 27.2. It means that, when the bill is enacted by receiving royal assent, that, thus making the position clear, it does apply. It is the act of royal assent. Alexander Burnett's amendment raises a question of when an EU decision that is directed to a particular person would be brought into domestic law. The bill provides that this is only when the decision is notified to the person to whom it is addressed. Why is that? Because a drafting is the same as the equivalent position in the UK bill. The bills reflect EU law, which provides that such decisions only take effect when notified. The notification specified consists of the sending of a registered letter with acknowledgement, making Alexander Burnett's amendment unnecessary as it already dealt with. On the old bill that is amendment 79, I note that the amendment is really trying to probe how effective the remedies will be under the bill given the terms of section 7. Section 4 is already subject to section 7. The answer to that is that the rights of action that section 7 prevents will generally not be appropriate after EU exit, because at present only the court of justice can declare an EU instrument to be invalid. I set out more detail on that in my letter to the Delegated Powers Committee last week. However, the remedies that we are bringing forward are still effective, as individuals will be able to take action against Scottish ministers and public authorities for action that they take, while acting within the scope of retained EU law. I was not entirely clear what lay behind amendment 81. Liam has given some indication, but it appears as a result of his drafting of the amendment to provide that only rights that would be saved would be those recognised by courts that are administered by the Scottish courts and tribunal service. That does not take account of the role of the Supreme Court in the Scottish legal system, which is the reason why section 4 refers to any court of tribunal in the United Kingdom exercising devolved jurisdiction. In essence, Liam Kerr's amendment makes this less clear. In amendment 83, it would not be appropriate for the saving of legal rights executor to be dependent on whether they appear in a list published by ministers. It is a question of law and the continuity of law. Once again, section 4 takes the same approach as the UK bill. We have stressed that because we are trying to ensure that those bills do not diverge too far so that they are complementary. I recognise the general uncertainty about exactly what rights, powers and liabilities are saved under the bill, but that is the feature of the exercise that the UK Government is engaged in having to transplant a whole legal system. Ultimately, it will be a matter for the courts to determine what the rights and powers were at exit day, as it is presently a matter for them to determine what they are now. That is inherent in the exercise of providing for continuity of law. It is how both the UK and the Scottish bills operate. That is the reality of where we are. I hope that I have provided some clarity in terms of the probing amendments. I think that there is clarity in terms of what past means. There is clarity on the differences that apply between section 3 and subsection 2 of the bill. I hope that we have made it clear the way about what section 79 is addressed, and there is further information on that in my letter to the DPLRC. In those circumstances, I would hope that Neil Bibby would be satisfied with those explanations and would not move his amendments to a division. I hope that the other members would recognise and, particularly in care, that the proposals that he is making make this more complex and less easy to understand. I want to wind up Neil Bibby. As I said earlier, my amendments 69, 70 and 79 in this group are probing amendments, which the Law Society of Scotland has encouraged the Parliament to consider. The minister's response to those amendments is now a matter of record and will take the opportunity to consider the minister's remarks this evening and consider whether sufficient clarity has been provided in advance of stage 3. In closing, I share the view of the minister that amendment 75 from Alexander Burnett is not necessary. I am also share some concerns about the potential unintended consequences of Liam Kerr's amendments at this stage, but for now I will not do not seek to move to a division on the amendments in my name and will seek to withdraw those. In which case, I need to ask whether any other member present objects to the amendment being withdrawn. I call amendment 70 in the name of Neil Bibby, who is already debated with amendment 69. Neil Bibby to move or not move? Not moved. I call amendment 61 in the name of Adam Tomkins, who is grouped with other amendments as shown in the groupings. Adam Tomkins to move amendment 71 and to speak to all other amendments in the groupings. Thank you, convener, and apologies if I called you, Presiding Officer, earlier on. It was an inadvertent promotion on my part and one that I am not permitted yet to make. There are 12 amendments in this group, all of them from members of the Scottish Conservative Party and 12 of 10 of them in my name. Collectively, the amendments in this group seek to make the legislation subject to the European Union withdrawal bill currently, as we all know, going through the House of Lords having already been passed by the House of Commons. In every case with regard to each of the 10 amendments in my name, convener, my amendment seeks to do this with regard to a provision that the Scottish Government's own explanatory note accompanying the bill says is a provision that corresponds, that is the word that is used in the explanatory notes, corresponds with the provision of the European Union withdrawal bill. The purpose and I hope the effect of my amendments, convener, is to ensure that that correspondence is watertight. The minister, Mr Russell, has said partly in defence of the indefensible way in which this Parliament has been invited to scrutinise this legislation, has said that a great deal of work has gone into ensuring that the bills complement each other, as to say the continuity bill on the one hand and the withdrawal bill on the other, so that there is a workable solution, his words, not mine, unquote. On 27 February, in the chamber, Mr Russell said that in drafting the bill we have had to mirror the European Union withdrawal bill as closely as possible to make them fit together. I am taking Mr Russell at his word in this instance, and I am accepting that there is a desire on the part of the Government to mirror the provisions of the EU withdrawal bill. I am accepting that there is a desire on the part of the Government to make sure that the withdrawal bill and the continuity bill work as closely as possible. I am accepting that there is goodwill on the part of the Scottish Government to make these two pieces of legislation fit together as closely as possible. I am accepting that there is a desire on the part of the Scottish Government to ensure that the bills complement each other, so that there is a workable solution to the undoubted problem of fixing the statute book, both reserved and devolved, so that it cohears and hangs together and makes sense after exit day. The force of each of my amendments in this group, convener, is designed to help the Government to achieve what the Government has said, both in its explanatory notes and in evidence to the committee and in this chamber, has said its policy ambitions. Let me just explain what each of those amendments individually does. Amendment 71 is an amendment to section 2 of the bill. Section 2 of the bill provides for saving in Scots law of devolved EU-derived domestic legislation, which is a mouthful, but it is not my mouthful. This is a provision of the bill that corresponds with Clause 2 of the withdrawal bill. My amendment 71 would seek to ensure that the operation of section 2 of the continuity bill is subject to the EU withdrawal bill, so that there is full and complete correspondence between the two, which is the Government's stated policy ambition. Amendment 77 is an amendment in like terms to section 3 of the bill. Section 3 of the bill provides for the incorporation of devolved direct EU legislation. It corresponds with Clause 3 of the withdrawal bill. My amendment 77 seeks to ensure that the operation of section 3 of the continuity bill is subject to the European Union withdrawal bill, so that there is full and complete correspondence between the two pieces of legislation, which is what the Government says its policy intention is. Likewise, amendment 84 can be not, which is an amendment in identical terms to section 4 of the bill. Section 4 of the bill is concerned with the saving for devolved rights under section 2 1 of the 1972 European Communities Act. It corresponds with Clause 4 of the European Union withdrawal bill, and my amendment seeks to ensure that the operation of section 4 of the continuity bill is to be read and given effect subject to the EU withdrawal bill, so that there is again full and complete correspondence. It is all designed to try and make this bill more workable than it would otherwise be. Amendment 106 in my name convener is an amendment to section 7 of the bill. Section 7 of the bill provides for future legal challenges to the validity of retained devolved EU law, and it corresponds with schedule 1 paragraph 1 of the EU withdrawal bill. My amendment seeks to ensure that the operation of section 7 should be read and given effect subject to schedule 1 paragraph 1 of the European Union withdrawal bill in order to give effect to the Government's stated policy ambition of ensuring that the two pieces of legislation correspond exactly with one another. Amendments 132 and 133, which I can deal with together, convener are amendments to section 11 of the bill. Section 11 of the bill corresponds with Clause 7 of the withdrawal bill and provides for a whole suite of ministerial powers, which we shall discuss in substance later on, enabling Scottish ministers to deal with deficiencies in the statute book arising from UK withdrawal. This, of course, is the provision of the bill that corresponds with Clause 7 of the European Union withdrawal bill. Again, my amendments 132 and 133 to section 11 seek to ensure both that section 11 itself and that any future regulations made under it are read and given effect subject to the European Union withdrawal act, as it soon will be, and to any competent regulations made by UK ministers under that legislation. Likewise, convener, amendments 146 and 147, also in my name, are amendments to section 12 of the continuity bill. Section 12 of the continuity bill finds its corresponding clause in the withdrawal bill at Clause 8 of that bill, and it is the power of Scottish ministers to comply with international obligations. Particularly important, it seems to me that, given that international obligations and international relations are reserved to the UK Parliament, any provision in that legislation to give effect to the power of Scottish ministers to comply with international obligations is subject to and read compatibly with the equivalent power in Clause 8 of the withdrawal bill. That is what amendments 146 and 147 in my name seek to do. Amendment 201, which is the last but one amendment in my name in this group, is an amendment convener to section 19 of the bill. Section 19 concerns the power to provide for fees and charges. It is the equivalent in this bill of schedule 4 paragraph 1 of the European Union withdrawal bill, and again, it seeks to ensure that there is no incompatibility between the two by sewing them up together. In case that is not enough, Presiding Officer, convener, and in case there is a provision of this bill that I have inadvertently overlooked in my desire to help the Government to ensure that it is a legislation that is passed compatibly and not incompatibly with the European Union withdrawal bill, I have in addition proposed the addition of a new section, which is amendment 226, which is the last amendment that I have in this group, which would provide that this act and any regulations made under it are to be read and given effect subject to the European Union withdrawal act 2018 and any regulations made under that act. You might describe this as a belt and braces approach. It might be that the Minister would accept amendment 226, in which case we could consider whether we needed to press amendments 71, 77, 84, 106, 132, 133, 146, 147 and 201, but I make no commitment in that regard. Convener, the final thing I want to say in support of the amendments in my name in this group is that the is again to quote from the Government's policy memorandum, which is in some respects a very helpful document. Paragraph 12 of that memorandum says that the scale of the task that is required to ensure a functioning statute book means that Governments across the UK need to work closely together to ensure effective withdrawal arrangements that reflect the interests of all. Again, I find myself in agreement with the Scottish Government in that sentence, and the amendments that are in my name in this group seek to ensure that that is in fact done in law as well as just claimed as a matter of political rhetoric. Thank you. Jackson Cowell ought to speak to amendment 76 in other amendments in the group, and I hope that you can keep up your good record. Thank you, convener. I am doing my best to remain optimistic and cheerful. I keep looking to the Minister, hoping that he will crack a smile on that savage visage at some point during the proceedings as he absorbs all the good advice that is being received. I can potentially accept that as an issue amendment, but in the limited circumstance in which it might apply, it is nonetheless one of worth considering and of importance. The effect of it is to ensure that if the UK and Parliament allows non-English case law to be part of the interpretation of EU law and English law, then Scots law will do too. Section 3 sets out how devolved law will be saved into Scots law. Section 5 then notes that that applies to law only in the form of the English language version of that legislation and that it does not apply for any legislation where there is no English language version. That clearly covers the vast majority of EU law, as clearly all primary and secondary law and all directives up to exit day will have been published in English. However, other languages are sometimes used for the interpretation of EU law. The European Court of Justice is the ultimate arbiter of what EU norms are, but the ECJ does not, as a matter of course, compare languages to see what meaning they might suggest in interpreting law and in creating case law. Different languages can furnish different interpretations. I have been caught out by that myself on a number of occasions and that is not reflected in the bill as it stands. Even if the occasions are relatively rare, as I said at the outset, it is important that as we save into Scots law existing EU law, this bill makes some provision for that flexibility. That is why the EU withdrawal bill has in its current drafting a phrase added into the equivalent section to this, which is that this all does not affect the use of other language versions of that legislation for the purposes of interpreting it. The simplest way of making similar provision here is to simply say that this bill will match any provision made by the UK Parliament. For the simple reason that if it makes sense for both Scots and English law to take the English language version of EU law to save, it makes sense to have the same ground rules on interpretation. In respect of the other amendments in the group, I listened with care to the contribution made by Adam Tomkins in support of them, all of which seemed to me very erudite and convincing. I know that I am happy to add my support to his very profound contribution in that regard. I am absolutely delighted by that. Graham Simpson, to speak to amendment 113 and other members in the group. Amendments. Thanks very much, convener. I do not think that I could be quite as cheery as Jackson Carlaw, but I want to do our best. Ever. Yes. That is true. Yes. Convener, the intent of this amendment is that this would make sure that the bill reflects the final agreement between the UK and the EU. Section 10 is about the interpretation of retained devolved law, sets out what applies and what no longer applies. Courts are no longer bound by EU law. They are no longer able to send cases to the European Court, but they can have regard to anything done by the EU or at an EU level. It also sets out how this will be decided in accordance with devolved case law and quotes having regard to the limits of EU competencies as just before exit day. So there's a principle for what's retained and a mechanism for judging it too. Now, we know a lot about what both the UK and EU want. We've seen successive phases of negotiations starting to give some clarity on what the future relationship will be, but there's still questions, still matters to agree. That's only to be expected when the negotiations still have to run their course. The bill, as drafted, takes no account of that. The consequences could be quite serious. Say as a hypothetical example that the negotiations agree a transition period, and in that transition period there's an agreement on which EU rules the UK follows and which we don't. There would presumably have to be some agreement on how that is policed too. That in turn would affect what body of EU law was respected or how it was interpreted and whether a court or tribunal cannot factor in EU decisions. If we look at the text of the December agreement, there's a good example of a reserved matter, but with clear importance for devolved courts. It quotes, "...the agreement establishes rights for citizens following on from those established in union law. During the UK's membership of the European Union, the CGEU is the ultimate arbiter of the interpretation of union law. In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CGEU after the specified date. The agreement should also establish a mechanism enabling UK courts or tribunals to decide having had due regard to whether relevant case law exists to ask the CGEU questions of interpretation of those rights where they consider that CGEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it. The mechanism should be available for UK courts or tribunals for litigation, brought within eight years from the date of application of the citizens' rights, quite a long quote and not much punctuation." The point is, and the reason for the amendment, at this stage in the negotiations, there's a lot we don't know about how we're going to interpret retained EU law. That's a completely natural consequence of negotiations, but the bill tries to pre-empt that, so we need to be cautious. The amendment would counter that by making sure that this section is subject to the negotiations. Any other members of the committee wish to contribute at this stage? Briefly, convener, I just want to indicate that I wish to oppose all the amendments in this group. The thrust of most of the amendments seek to give undue legal effect to the EU withdrawal bill. As Mr Tomkins pointed out, it's right that the continuity bill mirrors the appropriate parts of the EU withdrawal bill. However, I'm not convinced about the arguments that he makes in terms of giving legal effect to that. We've reached a political position where there's been a breakdown and it's clear that there wouldn't be support for legislative consent for the EU withdrawal bill, so it wouldn't be correct to give legal effect to parts of that bill, and I'm not convinced by those arguments. I'll also be opposing the amendments in this group. Rather than make a comment on each of them individually, I just wanted to reflect on the broad thrust of Adam Tomkins's argument that this group is about the need for compatibility between the Scottish and UK legislation and, indeed, his reference to the quote about the value of having Governments work closely together on this process. In relation to those comments, it's worthwhile simply putting on the record for those members who may not be aware that the Secretary of State for Scotland has decided to leave it until we're in the midst of this stage 2 process. In fact, just about half an hour ago, to bother sending to the Presiding Officer, to the committee conveners and to the party leaders in this Parliament the text of his amendments and a letter setting out the reason for that. I think that it's worth reflecting on that context. That's the context in which we're seeing the degree of interest there is from the UK Government in achieving compatibility with devolution or in achieving a respectful working together throughout this whole Brexit crisis. I have to say that there is no doubt that those amendments largely cut across the bill and its intention by making it subject to provisions of the UK bill. That would, as Mr Kelly and Mr Harvey have indicated, defeat the object of the bill, which is to ensure that we have standalone provision to deal with devolved law in the event that the Parliament is unable to give legislative consent to the relevant parts of the UK bill. It makes no sense to tie the bill to the provisions of the UK bill in this way. Mr Harvey has indicated, of course, that the issue of compatibility is addressed by ensuring that the two bills can do the same thing in their different spheres, sometimes in the same way. That is an entirely different idea from what Professor Tomkins' amendments would do. They make the continuity bill subject to the EU withdrawal bill. Even if we were to accept at face value Mr Tomkins' earnest and he claims helpful ambition, his amendments as tabled here wouldn't achieve compatibility in any greater way than we presently do. They would, however, achieve subservience. It will be a matter for the UK Government and the Parliament to make appropriate amendments to its bill to reflect the outcome of the legislative consent process. It remains our preference to deal with the exercise of ensuring continuity of the statute book in the UK bill. We are working to achieve agreement with the UK and Welsh Governments to allow that and to enable this Parliament to agree that the bill is no longer necessary. Let me deal briefly with Jackson Carlaw's amendment. Mr Carlaw, I'm afraid, has not read the bill in enough detail. Section 3.5, the last line, does what the amendment claims it wants to do. I read the words, but paragraph A does not affect the use of other language versions of that legislation for the purpose of interpreting it. To pass Jackson Carlaw's amendment would simply be adding again what the bill does. Graham Simpson's amendment makes interpretation provision in the bill subject to the terms of the withdrawal agreement. We've, of course, been pressing for EU citizens to have certainty in relation to their position. The agreement reached in phase 1 of the negotiations in relation to their rights was long overdue. We do not have the same aversion to a continuing role for the European Court as the UK Government, which has held up agreement on the matter. The bill is intended to deal with the immediate issues around continuity of law. There will be, because the United Kingdom Government has said so, a separate UK bill to implement the withdrawal agreement when that is achieved. Mr Simpson is wrong to claim that it is within the gist of the Scottish Government to enable references in the Scottish courts to be made to the European courts after exit day. However, as the Advocate General for Scotland indicated when the House of Lords debated similar amendments last week, those are matters to be dealt with as part of the implementation of the withdrawal agreement. We accept provision to be made in that bill in accordance with the Scotland Act to enable us to implement the withdrawal agreement in devolved areas, including further legislative consent as required. Let's hope that when we consider that withdrawal agreement and transition bill, we do not end up going through the same process as we have with the withdrawal bill, because we need to have respect for proper processes and the devolution settlement. I hope that the committee will reject those amendments that neither meet the stated intention of the proposers nor do they do anything to assist the continuity bill to operate effectively. I thank all the members who have spoken in this debate on an important group of amendments. I want to respond in terms to two of the more extraordinary comments that the minister just made. The first being that the amendments in this group in any way cut across the continuity bill. They don't cut across the continuity bill, they support the continuity bill, they help to make the continuity bill more likely to be upheld in courts, and any future legal challenge then is currently the case as the bill is badly drafted. What they do, what they avowardly do, the amendments in this group convener, is to cut across the claims made for this bill in paragraph 20 of the Scottish Government's policy memorandum. Paragraph 20 of the Scottish Government's policy memorandum says that, as drafted, this bill will add to the complexity of the post-exit position and will present serious logistical challenges. The amendments in this group are designed to reduce the complexity that this bill adds to the post-exit position and dilute the serious logistical challenges that the bill has been designed to present. As for subservience, what an extraordinary thing for the minister such an ardent remainder to have said? Of course, the read and give effect formulation that is used in the majority of the amendments in this group in my name is lifted directly from section 2 subsection 4 of the European Communities Act 1972, which is the minister may recall, provides that even acts of the sovereign United Kingdom Parliament must be read and give an effect subject to the obligations of EU membership. So, if subservience is what we are talking about, then what we have here is an ardent remainder just claiming that the United Kingdom is subservient to the European Union as the law of this country currently states. The idea that we should have legal provisions that require legislation to be read and give an effect subject to other legislation is not subservience, it is legal continuity minister, it is legal certainty minister and it is compatible with the British constitution and with the rule of law. Thank you. The question is that amendment 71 be agreed to. Are we all agreed? There will be a division. All those in favour please raise their hand. All those against please raise their hand. The result of amendment 71 is three votes for eight against. The amendment is therefore not agreed. The question is that section 2 be agreed. Are we all agreed? This is a procedural issue. As far as this is concerned, when it reaches a section, the opposition is noted when you are in this process, but there can be no actual vote on it. Therefore, I call amendment 72 in the name of Gordon Lindhurst, who is already debated with amendment 58. Gordon Lindhurst, to move or not move. The question is that amendment 72 be agreed to. Are we all agreed? There will be a division. All those in favour please raise their hand. All those against please raise their hand. The result of the vote on amendment 72 is votes for three against eight. The amendment is therefore not agreed. I call amendment 73 in the name of Jamie Greene, who is already debated with amendment 58. Jamie Greene, to move or not move. The question is that amendment 73 be agreed. Are we all agreed? There will be a division. All those in favour please raise their hand. All those against please raise their hand. The result of amendment 73 is three votes for eight against. The amendment is therefore not agreed. I call amendment 74 in the name of Gordon Lindhurst, who is already debated with amendment 58. Gordon Lindhurst, to move or not move. Thank you. The question is that amendment 74 be agreed. Are we all agreed? There will be a division. All those in favour please raise their hand. All those against please raise their hand. The result of amendment 74 is three votes for eight against. The amendment is therefore not agreed. I call amendment 75 in the name of Alexander Burnett, who is already debated with amendment 69. Alexander Burnett, to move. The question is that amendment 75 be agreed. Are we all agreed? There will be a division. All those in favour please raise their hand. All those against please raise their hand. The result of amendment 75 is three votes for eight against. The amendment is therefore not agreed. I call amendment 76 in the name of Jackson Carlaw, who is already debated with amendment 71. Jackson Carlaw, to move or not move. Thank you. The question is that amendment 76 be agreed. Are we all agreed? There will be a division. All those in favour please raise their hand. All those against please raise their hand. I call amendment 77 in the name of Adam Tomkins, who is already debated with amendment 71. Adam Tomkins, to move or not move. The question is that amendment 77 be agreed. Are we all agreed? There will be a division. All those in favour please raise their hand. I could forget that. All those against please raise their hand. The result of amendment 77, three votes for eight against. The amendment is not agreed. The question is that section three be agreed. Are we all agreed? That is noted. The opposition is noted. I call amendment 78 in the name of Jackson Carlaw, who is already debated with amendment 58. Jackson Carlaw, to move or not move. Thank you. The question is that amendment 78 be agreed. Are we all agreed? There will be a division. All those in favour please raise their hand. All those against please raise their hand. The result of amendment 78, three votes for eight against. The amendment is therefore not agreed. I call amendment 79 in the name of Neil Bibby, who is already debated with amendment 69. I call amendment 88 in the name of Jackson Carlaw, who is already debated with amendment 58. Jackson Carlaw, to move or not move. The question is that amendment 80 be agreed. Are we all agreed? There will be a division. All those in favour please raise their hand. All those against please raise their hand. The result of the vote on amendment 80 is three for eight against. The amendment is therefore not agreed. I call amendment 81 in the name of Liam Kerr, who is already debated with amendment 69. Liam Kerr, to move or not move. Convener, before I answer, I might simply ask, am I able to make a winding up statement? No. Okay, on that then, I think that the minister has provided some interesting food for thought on which basis not moved. I call amendment 82 then in the name of Jackson Carlaw, who is already debated with amendment 58. Jackson Carlaw, to move or not move. The question is that amendment 82 be agreed to. Are we all agreed? There will be a division. All those in favour please raise their hand. All those against please raise their hand. The result of amendment 82 is three for eight against. The amendment is therefore not agreed. I therefore call amendment 83 in the name of Liam Kerr, who is already debated with amendment 69. Liam Kerr, to move or not move. The question is that amendment 83 be agreed to. Are we all agreed? There will be a division. All those in favour please raise their hand. All those against please raise their hand. On amendment 83, there were three votes for eight against. The amendment is therefore not agreed. I call amendment 84 in the name of Adam Tomkins, who is already debated with amendment 71, and Tomkins, to move or not move. The question is that amendment 84 be agreed to. Are we all agreed? There will be a division. All those in favour please raise their hand. All those against please raise their hand. The result of the vote on amendment 84 is three for and eight against. The question is that sections four be agreed. Are we all agreed? Your opposition is noted, but there is no division. At this juncture, I think that we shall have 10 minutes of a suspension. Thank you very much. I call amendment 85 in the name of Adam Tomkins, a group with amendments shown in the groupings. Members will note from the groupings that there are a number of pre-emptions in this group, and I will remind members of a pre-emption when I call the relevant amendment. Adam Tomkins, to move amendment 85 and to speak to all our amendments in the group. Thank you, convener. The group that we now move to is a group that is concerned largely with section 5 of the bill, which makes provision for the continuing effect in Scots law after exit day of both the general principles of EU law and the charter of fundamental rights. Each of these matters is dealt with differently in the continuity bill, from the way in which the UK Government proposes to deal with the matters under the withdrawal bill at Westminster. The force of the amendments in my name, convener, seeks to divorce the bill's treatment of general principles on the one hand, from its treatment of the charter on the other. That is because the general principles of EU law, and that is a term of art that is understood very widely and very clearly by EU lawyers, although it has generated significant confusion, I think, by people who are not schooled in EU law. However, the general principles of EU law are a concept. They are a source of law in EU. They are unwritten, uncodified principles of EU law that are enforced by the European Court of Justice and which have an equivalent legal effect in the EU legal order to provisions of the treaties. The general principles of EU law are a concept. The charter of fundamental rights, on the other hand, is a legal instrument. It is a document. In our view, it is much cleaner and neater to make separate provision in the bill for the general principles on the one hand and the charter of fundamental rights on the other. The withdrawal bill does this. The withdrawal bill treats the general principles in one way and the charter in another. It is an innovation in this bill to merge the two together, to blend the two together. We think that that is untidy and incoherent for the reason that I have just outlined, namely that the general principles are a concept. The charter is an instrument to the document. We see no reason, convener, why the legal position with regard to general principles in devolved Scots law after exit day should be any different from the legal position with regard to reserved law or UK law after exit day. The force of my amendments with regard to the general principles, that is to say amendments 85, 89, 91 in this group, is to amend the continuity bill so that it reflects what the withdrawal bill already says the legal position of the general principles in domestic law will be. I understand that there is a policy difference between the UK Government and the Scottish Government on this score. I understand that the force of my amendments reverses the policy of the Scottish Government, but that is because I disagree respectfully with the policy of the Scottish Government about what the position should be of general principles or the legal position should be with regard to the general principles of EU law in Scots law after exit day. Where I agree with the Scottish Government is with the treatment of the charter. In addition to the three amendments that I have just named, amendment 85, 89 and 91, which deal with the general principles, I also have an amendment in this group 98, which would provide that the charter fundamental rights continues to have the same legal authority in Scots law on and after exit day as it had on the day before exit day. We are free as a Parliament convener to legislate on human rights in a manner that is different from the way in which the United Kingdom legislates on human rights. We are not free to modify the human rights act, that is a protected instrument under schedule 4 to the Scotland Act, which is a provision of the Scotland Act. We have already had cause to debate this evening, but we are free to legislate for additional human rights protections that will pertain in Scotland and in Scots law in addition to those that are already provided for in the human rights act. We do see the force of the argument that there is good reason to maintain the position of the charter fundamental rights in Scots law after Brexit day. My amendment 98 would introduce a new section into the bill, severing the treatment of fundamental rights from the treatment of general principles and ensuring that section 5 on general principles is compatible with the withdrawal bill. The new section on the charter fundamental rights maintains the position in Scots law and the legal authority in Scots law of the charter fundamental rights on and after exit day as it has now. We think that that is the right balance for this section or indeed these sections to adopt, and that is the force of the amendments in my name in this group. Thank you. Traction car law to speak to amendment 86 and other amendments in the group. Thank you, convener, and having listened again to what my colleague Adam Tomkins has said, my amendment here builds on that in the sense that it clarifies which general principles of EU law are saved into domestic legislation. Section 5 sets out that the general principles of EU law and the charter fundamental rights are saved into Scots law after exit day. General principles are, I understand, a widely accepted meaning. There are specific set of principles that are indicated by this phrase, but it does not actually spell out what those general principles are. Later on, in subsection 4, there is a right to change those principles by or under this act or by any other provision of Scots law from time to time. As the Law Society of Scotland said, we believe that it would be helpful if the Government could identify what general principles it considers are retained in Scots law. Therefore, I understand some debate over how the charter of fundamental rights fits into the general principles of EU law, with the charter sometimes being seen as written law and the general principles as unwritten law. However, as this amendment does not change the wording of the rest of the subsection, that should not be an issue here. The amendment would tidy up the legislation and make the principle specific. The phrasing of the amendment does exactly that and makes it clear that Scots law includes the principles of severity, that national parnants can do better than or equal to the European Union, equality before the law, proportionality to regulate and limit the powers of EU institutions, must be within the certain limits necessary to achieve the goal and legal certainty. The amendment seeks to offer further clarity and give a concise definition of the principles that we are saving into domestic legislation. Thank you. Liam Kerr to speak to amendment 87 in other amendments in the group. Thank you, convener. Amendment 87 seeks to remove yet more ambiguity by deleting section 51b. Section 51 seeks to ensure that the general principles of EU law and the charter are part of Scots law after exit day. The qualifications that they put on that are that, first of all, they have effect in EU law immediately before exit day, which presumably is answerable one way or the other. Then, the general principles, which, as Jackson Carlaw has just said, are unclear at present, which are being retained, relate to anything to which section 2, 3 or 4 applies. The question then becomes, firstly, what does relate mean? How strong an association does an association have to be to relate? We are talking about porting an entire principle of EU law into our body of law, and we are doing it based on a subjective term, like whether or not it relates. I have just looked up the Oxford English Dictionary. Relate is about whether it is causally connected. Do we prefer this definition, or the lesser have reference to, or perhaps the midway concern? There is a difficulty with something relating, but then we are asking it to relate to sections 2 to 4, which in turn do not define anything particularly clearly and state this is what I refer to, but rather themselves are full of ambiguities, caveats and cross references. Where there is ambiguity, there is uncertainty, litigation and cost. It is therefore my view that the prudent draft person would simply state the intent that the general principles of EU law and the charter are a part of Scott's law after exit day if they were effective immediately before exit day. That is what I understand the intent of this legislation to be, so let's say it. Thank you. Dean Lockhart, to speak to amendment 90 and other amendments in the group. Thank you, convener. I have tabled amendment 90 in order to address what may be an oversight in the application and the operation of section 5 of the bill, which, as we have heard, deals with the circumstances in which the general principles of EU law and the charter of fundamental rights will continue to have effect in Scott's law after the exit day. Section 5 subsection 2 relates to a right of action continuing and provides that to the extent that there is a right of action in Scott's law immediately before exit day, based on a failure to comply with the general principles of EU law or the charter. There is, on and after exit day, an equivalent right, based on a failure to comply with retained devolved general principles of EU law or the charter. Amendment 90 seeks to extend that principle and ensure that any pre-existing defences available in Scott's law as a result of general principles of EU law or the charter remain available after the exit day. If we provide for that in the draft legislation in respect of a right of action, it is important to extend that to defences staying and remaining part of Scott's law after the exit day. Let me, if I can, provide one example, an important example, to provide some details of the defences that would apply to so that they would continue to exist in Scott's law after the exit day. For example, article 48 of the EU charter of fundamental rights deals with the presumption of innocence and the right of defence. That article provides that everyone who has been charged shall be presumed innocent until proven guilty according to law. Respect for the rights of the defence of anyone who has been charged shall be guaranteed under the charter. Article 47 of the charter relates to providing everyone with a fair and public hearing, and that legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. So, convener, just some examples of where extending the general principles and the charter where applicable after the exit day will be important, and the bill under section 5, subsection 2, retains pre-existing rights of action, and my amendment 90 would extend this so that the defences and the other rights that I have mentioned would have the similar effect to subsection 5, 2 of the draft bill, and I therefore move amendment 90 in my name. Okay. Jamie Greene to speak to amendment 92 and other amendments in the group. Thank you, convener. This section is an important section. It holds prominence to me, as I said, on the Equalities and Human Rights Committee, and we were one of the committees that took evidence on the specific part of the bill, and I hope that that will help to inform the finance committee in their voting and amendments. I would like to speak to my amendment 92 and 95, and perhaps comment on some of the other pertinent ones that were discussed previously, and also coming up in the future. I would like to add my shared support with Adam Tomkins' comments on the approach to the divergence and separation of the general principles of the charter and the charter itself. My understanding and about his superior legal knowledge is that there is no current framework within the United Kingdom that deems a divergence from the general principles of the charter as unlawful. Our current framework was adopted and came into effect as a result of the 2007 Lisbon treaty, which included an opt-out for two member states, namely the United Kingdom and the Republic of Poland. The treaty was ratified by the UK Parliament in 2008. It is important because the protocol in article 1, subsection 1 of the treaty of the function of the European Union, which is in effect a modern day version of the treaty of Rome, states, and I would like to quote from it. The charter does not extend the ability of the court of justice of the EU or any court or tribunal of Poland and or the United Kingdom to find that the laws, regulations or administrative provisions, practices or actions of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. Subsection 2 reaffirms that the charter does not create legislation in the UK unless our domestic legal systems account for it. I think that that is a key point in this because my amendment 902 refers to the section 5, page 4, line 15 seeks to remove the second line there as a result of that. Now, the reason for that is Dr Tobias Lock in his evidence to our committee, and it is worth pointing out that we only had one evidence session and only one witness in that committee. I do not want to be accused of misquoting or paraphrasing, so for that reason I will read out his quote, not the entire speech but a quote relevant to this. The charter also offers slightly different remedies from those under domestic law. The charter I refer to, the charter of fundamental rights. The charter comes with the primary CVU law and in an extreme case it can be used to lead to the disapplication or non-application of an act of the Westminster Parliament, which is a remedy that does not exist under domestic UK law. The best that someone can get under the Human Rights Act 1998 is a declaration of incompatibility, which does not have any immediate legal effect on a case. Dr Lock did note that it could be problematic if the two Governments had parallel approaches to this. That being said, Adam Tomkin seeks to address this in his amendment and I support that. On my amendment, the bill aims to bring across existing devolved retained powers to Scotland, but under our current framework we could not bring over the general principles of the chapter that do not apply as per the Lisbon treaty. My assumption is that should the Scottish Government wish to formally and legally apply the general principles of the chapter in Scotland, it should be dealt with via the methodology as outlined by Adam Tomkins. If I could turn out amendment 95, which is pertain to section 5 of the bill, and this asks the minister to come to Parliament within six months of the day of royal assent of this bill and make a statement setting out the general principles of EU law that he considers are part of Scott's law by virtue of subsection 1. I would like to explain two points to this. One is the timing on this and the second, the rationale. The timing is important because if the minister is asked and invited, as this part of the bill asks him to do, to come to Parliament within six months of the passing of this bill, it is very likely that this will take place before exit day, albeit there is perhaps disagreement on the definition of exit day. We can assume that he will have to do that before exit day. That is important because, as Adam Tomkins mentioned, general principles of EU law is an ambiguous term in many ways. It is a concept. When we are looking at how we decide which of the 40 years of EU membership and law we want to transpose into Scott's law in our domestic legal system, for the purpose of this bill it seems that there is a need to use a phrase that has a wider meaning. My worry is that we run a risk of allowing for quite a wide spanning and unintended consequential interpretation of what are the general principles of EU law and which EU laws we seek to transpose. The Scottish Government needs to define beyond reasonable doubt what can and cannot be extrapolated from EU law and brought into Scott's law. My amendment will put a legal duty on the Scottish Government to outline within six months of the passing of this bill what they consider to be EU law in the form of a ministerial statement where they could take questions from MSPs or whichever process the Parliament deems fit for the minister to decide and present those principles. I hope that that is helpful because it takes no power away from the Scottish minister, but it helps him in coming to Parliament to answer some of the many questions that will undoubtedly be raised by members within the six months after this bill passes but before exit day. It also allows MSPs to hold the minister to account on which of the retained devolved EU law its Government wishes to bring forward and more importantly how those principles will be impacted through any further EU legislation or treaty ratification that occurs after exit from the EU as they also wish to do in this bill. The minister will note that I am not trying to change his approach to this. I am merely asking that the legislation be allowed proper scrutiny. Adam Tomkin seeks to decouple the general principles of EU law and the charter and add my support to that. The purpose also would be to, in the brevity of time, I will move on to some of the other amendments. In this section, I will be very brief then. I would like to share my support with amendments 85 and 86. On 85 specifically, in my view, it should not be the Scottish minister's prerogative to decide those factors. I think that there is a very grey air between devolved and reserved matters in this. The symmetry between UK Government and the Scottish Government is very important. Finally, on amendment 199 from Neil Bibby, I have no doubt that there is much well intention behind this amendment, but I am concerned around the wording of it. There are a list of five areas that he wishes to make provision for that in effect stop the Scottish Parliament remove or weaken any rights. Those include employment, law equality, health and safety, etc. In his amendment, he says that these are protections that arrive from devolved retained EU law. Is it entirely clear that each of the elements in the subsection are devolved retained law or are any of them reserved matters? For that reason, I have concerns around the wording of that amendment. I hope that finance committee members will look carefully at that additional wording to make sure that there is no unintended consequences and that it will give the Scottish Parliament the ability to change matters that are entirely incompetent with this Parliament. Claudia Beamish to speak to amendment 1 and other amendments in the group. Thank you, convener. I will speak to amendments 1 and 2. As introduced, the continuity bill retains general principles of EU law on the basis of the European Court of Justice rulings. However, it does not, in my understanding, explicitly reference the status of EU environmental principles. I welcome the minister's sympathy to those principles, as stated to the committee previously. The committee and others present well know the significant role that the EU law has played in influencing our domestic environmental law. There is certainly concern that those principles should be preserved. I believe that my amendments 1 and 2 are robust amendments. Others are relevant and others are those of colleagues of Tavish Scott on Public Duties and Mark Ruskell MSPs' amendments in the next group, and Labour will be supporting those. I appreciate that in the next group, but I am unable to speak in that. My amendment 1 clarifies that all the existing principles of EU law will be retained within Scots law, whether they originate in case law of the European Court, but also importantly in EU treaties direct EU legislation or directives. Amendment 2 makes clear that the key environmental law principles in article 191 of the treaty are retained. The cabinet secretary will of course be aware that the SNP Westminster counterparts supported amendments that sought to replicate the functions of EU environmental principles in the context of the EU withdrawal bill in the commons. My amendment seeks to ensure alignment here in Scotland, preserving the positive influence that the EU has had. There seems to be no comprehensive list of general EU principles. The cabinet secretary will be aware that some of those principles, such as the precautionary principle, are already considered to be general principles of EU law. That is in the charter of fundamental rights. Can the cabinet secretary clarify which EU case law is relevant here? I think that that would be helpful, but other principles, such as preventative action, are not guaranteed in the same way by the existing case judgments. I do not think that it is enough to have those in the explanatory notes, as highlighted this morning in my own committee, the Eichler committee. I understand that the Scottish Government argues that the guiding principles only guide EU policy and legislation, not that of member states. However, I would argue that, as at least 80 per cent of our own environmental law has been guided by those important principles, that any definition of continuity—I stress that word, which is the name of the bill—should mean that those continue to have a guiding role in Scots law. Thank you. Colin Smyth, to speak to amendment 3 and other amendments in the group. Thank you very much, convener. Amendment 3, in my name, aims to ensure that the principle of animal sentience is retained as part of the continuity bill, complementing amendment 1 and 2 from my colleague, Claudio Bumish. Animal sentience recognises that animals are aware of their own feelings and emotions, and that policies should be developed to respect that. Evidence for animal sentience has been available for over 60 years, and a topic now has over 2,000 studies to its name. Those studies outline the economic, social and environmental benefits of treating animals as sentient beings. I do not believe that existing legislation in Scotland does enshrine the principle of animal sentience. There is no explicit reference in the Animal Health and the Welfare Scotland Act 2006, and it only mentions this at section 48, which refers to physical and mental suffering. There is also no mention in the explanatory notes for the 2006 act, and that act applies to those individuals who are responsible for protected animals in Scotland, whereas the current article 13 of the treaty on the functioning of the EU applies to government policy. The 2006 act also does not cover, for example, free-living wild animals or animals used in scientific procedures, even though those animals in those categories are demonstrably sentient. It is well established that the protection of animals as sentient beings is a matter of considerable public concern, as we saw with the public outcry following the rejection of the initial amendment on article 13, tabled at Westminster. I therefore argue that there is a strong case in public support for recognising sentience and the requirement to have regard to animal welfare. Thank you. Graham Simpson to speak to amendment 94 and other amendments in the group. Thanks, convener. This one is a probing amendment. It is designed to test the assumptions under pinning section 5, based on evidence taken in the bill in the comparison with the EU withdrawal bill. There are three parts to it. First is an understanding of the charter. The UK Government says that it did not include the charter because it only applies to EU law, so it is implicit in all EU law and because it only reaffirmed existing rights and principles of EU case law did not create any new rights and therefore need not be explicitly mentioned in the EU withdrawal bill. It only applies to EU law and did not apply to every circumstance. At the moment, we therefore already have a split as to what law the charter applies to, and this bill would be adding a third, which is devolved law. Tobias Locke, who was a witness to this committee last week, covered that in his evidence. I do not intend to quote him out of deference to yourself, convener, because you were there. You all heard the quotes. The second point is around exactly what is kept or not. Subsection 3 says that a general principle only counts if it was in case law before exit day. Subsection 4 says that retained general principles and the charter can be modified from time to time. The principles are frozen at the moment of exit unless we decide not to, and presumably with that the right to action changes. It presumably follows from subsection 1 to 2, but it is not explicit. Finally, the EU withdrawal bill has in its schedule that there is no right to action after exit day and that a court or tribunal may not quash any law on the basis that it is incompatible with the general principles of EU law. I understand that it is to do with the design of the EUWB and which EU law it saves and where. The bill clearly states the opposite. The amendment as drafted would bring the two back into line, but it is aimed at teasing out the minister's position on all of this so that we can understand it. While completely respecting the Government's wish to save EU law here and retain the general principles and charter, all of this prompts a number of questions that the minister may wish to address later. First, does he recognise the depiction of legal complexity that witnesses gave with different abilities to pursue cases in different jurisdictions of the UK? If so, has he made any assessment of whether this would leave the Scottish Government more liable for claims than the UK Government and have a perverse incentive to pursue cases in Scotland or even sudden extra liabilities? Has this specific interaction been part of his discussions with the UK Government? What are the areas of EU law that this section saves that explain the difference with the withdrawal bill? Can he confirm that the right to action would change in line with any modifications to the general principles? If so, would he think that this should be made explicit? Donald Cameron, to speak to amendment 96 and other amendments in the group. Proposed amendment 96 is really the mirror image of Jackson Carlaw's proposed amendment, which he has spoken to earlier. The amendment is suggested in order to clarify which general principles are to be included in the bill. It is to address the point made by the Law Society of Scotland who identified the issue and suggested that it would be helpful if the Government could identify what general principles it considers are attained in Scots law. Given that there are several legal principles at stake, I would submit that the Law Society's point is a good one and that it is important that it is duly clarified in the bill. It is vitally important, in fact, that we have a specific and unequivocal list of general principles to be included and that the principles outlined are identical to the ones that Jackson Carlaw has spoken to earlier. I do not intend to go through each of them, but I would suggest to the committee that it is important that they are outlined explicitly in the bill. Just a couple of brief comments about the others before I come on to my own amendments. In relation to Adam Tonkin's amendments, I am not entirely persuaded of the general approach that he is taking. I wonder if the minister in contributing to this debate and I am assuming that I am only guessing at the stage that he will be resisting the amendments from Adam Tonkin's here. I wonder if the minister would look at amendment 98 and tell us if the others from Adam Tonkin's are rejected by the committee, would amendment 98, on its own, be harmful? Would it add something in the form of words that says that the Charter of Fundamental Rights continues to have the same legal authority? If that is something additional without the other parts of the cluster of amendments having been taken away, would there be a problem in relation to that from the Scottish Government's perspective? I would be interested in the minister's comments on that. I am grateful for the opportunity to touch on the amendments that have been lodged from Claudia Beamish, Colin Smyth and others in relation to the environmental principles, the principle of animal welfare incentives and the wider principles of EU law. There has been some discussion at committee in relation to that and the question of to what extent those need to be set out in some degree of detail. I think that the minister, in giving evidence to the committee, has previously seemed well not quite convinced yet but somewhat open minded to giving some movement on that. We do have a number of, I think, very helpful and constructive approaches that are coming from different political parties, from Labour members that I have mentioned but also from Green and Liberal Democrat colleagues. I think that the positive suggestions about ways in which some of those principles should be set out are very helpful suggestions for the amendments to the bill. If the Government is going to resist all of those, I think that there needs to be a clear expectation on the minister to give some specific commitments about how he intends to address the questions that those amendments raise. Finally, in relation to the amendments that I have lodged, 1, 2, 7 and 1, 40, and in relation to Neil Bibby's amendments, I think that those touch on issues that have some similarities, not complete unity of purpose but some clear similarities. I will again be interested in the Government's response to those. I have framed mine in relation to amendments that were debated in relation to the European Union withdrawal bill. I would highlight amendment 25 in particular to that bill, which was debated on 12 December last year, which again restricted the ability of regulations to remove or reduce protections currently conferred on individuals, groups or the natural environment to prevent any person from continuing to exercise or write that they currently exercise. That amendment also inhibited regulations from amending, repealing or revoking the Equality Act 2010 of subordinate legislation made under that act. As I understand it, some of those equality issues were dealt with separately to that amendment. That amendment fell, but it was supported by Labour members. It was supported by my colleague Caroline Lucas and SNP members in the House of Commons. That is why I decided to take that form of words. It is clearly an approach that the SNP, Greens and Labour, managed to agree, was a useful contribution to the UK bill. I hope that it will be seen by all those political parties and perhaps even others as a useful contribution to the bill. Thank you, convener. I wish to speak to amendment 141 and 199 in my name and support of amendments from Claudia Beamish and Colin Smyth. The purpose of those amendments is to protect those EU-derived rights that fall within devolved competency. The minister is on record as stating that the continuity bill will, if passed, retain EU-derived law and give both the Scottish Government and the Scottish Parliament the powers needed to keep those laws operating. That is an objective Labour share with the minister. However, we are also clear that there must be checks and balances throughout the process. Section 11, page 9 of the bill, largely deals with the restrictions that will be placed on Scottish ministers in relation to their regulation making powers. Regulations made under subsection 1, for example, may not impose or increase taxation, make retrospective provision or create a relevant criminal offence. They may not modify the Scotland Act, the Equality Act or remove any protection relating to the independence of the judiciary. Amendment 128 makes clear that regulations made under subsection 1 may not remove or weaken any right or protection from devolved retained EU law relating to employment rights, equalities rights, health and safety, consumer standards or environmental standards and protections. Those are important rights and standards that must be protected. Through amendment 141, I am seeking to apply those same proportionate constraints on regulation making powers in relation to the compliance with international obligations in section 12. Amendment 199 adds a new part to the bill after section 17, which makes clear that regulations must not be used to remove or weaken protections or EU-derived rights. My amendments are not the only amendments that aim to ensure EU-derived rights and protections are safeguarded. In particular, as has been mentioned, amendment 98 in the name of Adam Tomkins, which he has made important points on, specifies that charter of fundamental rights continue to have the same legal authority in Scots law on and after exit date as it does before. Patrick Harvie's amendments 127 and 140 seek to safeguard protections for individuals, groups and the natural environment. Those are welcome amendments. However, I believe that my amendments are the most comprehensive way of ensuring that the Scottish ministers cannot dilute EU-derived rights and protections. I also want to indicate my support for the amendments from Caudiabemish and Colin Smyth. Amendments 1 and 2 ensure that, for the purposes of the bill, environmental principles enshrined in the treaty on the function of the European Union are retained in Scots law. Those environmental protections receive support for all opposition parties in the UK Parliament and I hope that we will have the support of the Scottish Government today. Amendment 3 retains the principle of animal sentience and is complementary to amendments 1 and 2. The amendments in this group from myself, Caudiabemish and Colin Smyth protect workers, consumers and the environment that the amendments protect the rights and protections of the people that we represent and I hope that members of the committee will support the amendments in my name. Thank you. Any other members of the committee who wants to make a contribution? Ivan McKee Thank you. I just want to comment on amendments 1, 2, 7 and 140. It also refers to 1, 2, 8 and 141. I can understand where the movers of these amendments are coming from, but I would be concerned that, if you look through what is written in the bill that clearly states that the powers can only be used for the deficiency and lays out the criteria for the deficiency and where it is relevant in section 11 and subsection 2. If there is no deficiency, then the power does not exist. When you look at what the amendments would do, they would put in place tests that would make the powers very difficult to use, set the bar too low and potentially makes the risks making the powers unusable, which defeats the whole purpose of it. That would be my concern, but I would be interested to hear what the minister has got to say in reflection on that. Thank you, convener. Just a very brief comment in relation to 1, 2, 8. I listened with great interest in Neil Bibby's arguments in moving it. The difficulty that I have reading 1, 2, 8 is that all the powers that it refers to are currently reserved powers, and therefore it is difficult to see how Scottish ministers have the capacity, even if they wanted to, to do any of the things that are referred to in this particular amendment. I am sorry, Mr Bibby, but I do not think that it has the opportunity to wind up on this particular amendment, which is quite unfortunate. Maybe we are relying on the minister to try to enlighten us on that particular point. We will rely on the minister right now. This is a complex section that deals with a range of different issues, some of which then spill over into the next section of the bill, and particularly amendments from Tavish Scott and Mark Ruskell. Some of what I say in this will be relevant to the next section, so, if you could bear with me, I'd be grateful. In terms of Patrick Harvie's specific question about section 98, and he has divined my intention correctly, I will not be encouraging support for it. As far as we are concerned, that adds to the complexity, because that is already in the bill, in exactly the same effect at 5.1, and it omits the remedy. That is a vital issue in here of what the Conservative amendments are, in my view, attempting to do. Amendments 86, 95 and 96 are directed at requiring the bill or Scottish ministers to specify what the general principles of EU law are. We consider those to include subsidiarity, proportionality, legal certainty, legitimate expectation, non-retroactivity, fundamental rights, equal treatment, abuse of law, good administration and the precautionary principle. The purpose of the bill is to convert EU law as it stands at the point of exit and ensure continuity of the position as it exists on exit day. We do not think that it would be appropriate to prejudge the position in relation to what general principles have been recognised at the point of exit. That would be a matter for the courts to determine, in a particular case, based on their assessment of European case law. The explanatory note said that some of the main general principles that the Scottish Government understands are currently part of EU law. We can commit, of course, to adjusting the explanatory notes to set this out more fully without being exhaustive given that the general principles could continue to develop prior to exit day. Amendments 85, 89, 90, 91, 92, 93, 94, 98 are a whole series of amendments that are trying to bring this bill in line with the approach in the UK bill in relation to the general principles of EU law and the charter. However, they do that by removing the provisions that incorporate the general principles under charter and by removing the remedies associated with incorporation. Just to make a special mention of day and cause of the carers amendment 87, we should all be confident that the word relates to that word and is effective. It is clear, well-used, legislative phrase, and it means that the scope of section 5 is limited. I do not think that there is any dubiety. I have to say that each time I hear an amendment from the UK that seeks to clarify, I think that what they do is make it more confusing regrettably. The general principles of EU law and the charter have rights of action associated with them, and it would be wrong to remove those rights, which is in effect what the Tory amendments are seeking to do. I therefore encourage members to resist all those amendments, which are directed at removing the charter and individual rights and remedies from our law. Amendments 1 to 3 would have the effect of extending the definition of what is meant to be a general principle of EU law, which would change the current legal effect of the law that we are seeking to bring into the domestic system. The general principles of EU law are those that have been recognised by the court of justice. Significantly, the general principles can be used as a basis for legal action, and unlike the UK bill, the bill preserves and continues those rights through section 5. There are other principles that are set out in the treaties, direct EU legislation and EU directives, including those specific principles that are mentioned in amendments 2 and 3 in relation to environmental and animal welfare. They are important, but they are not intended to create legal rights in the same way as the general principles that have been recognised by the European courts. Any EU environmental or animal legislation that is brought into domestic law through the bill will have been informed by all of the EU's environmental and animal welfare principles. We are continuing to consider how best to enshrine our commitment to the EU environmental and animal welfare principles in the light of the UK's Government decision to exit the EU. What I need to address is whether we can take further steps to do that in the light of what I have said and what I said at the committee this morning. I have thought very carefully about it. I want to define what we are already doing, what we can do in this bill and what we can commit to going forward. That will be of relevance to the items to be raised in the next session as well. Once I have done so, I want to address some of the points that Patrick Harvie and Neil Bibby have raised, which are similar to those points but in different areas. What the bill already does, as I tried to clarify this morning, is this. I am happy to amend explanatory notes to the bill to clarify this. The precautionary principle is a general principle of EU law and will therefore be covered by the provision in section 5 that the general principles will continue to be part of Scots law. Under section 5, the Charter of Fundamental Rights will be similarly incorporated, including, and this is crucial, article 37, which provides that a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the union and ensured in accordance with the principles of sustainable development. That will be incorporated. Then what more can this bill do? At present, the environmental principles are used to inform EU policy development and legislation on environmental matters. As such, all EU legislation will be rolled over through this continuity bill and become part of retained devolved EU law, which will already have been informed by those principles. Similarly, where we are taking powers in this bill to correct deficiencies or to keep pace with EU legislation, we will be making necessary changes to legislation to law that has already been informed by those principles. However, to make sure that we are clearly and committed on the face of the bill to considering the environmental principles when seeking to make such changes, I will commit today to working with members to bring forward amendments at stage 3 that require us to consider the EU environmental principles and the principles of animal sentience when exercising the powers under section 11, 12 and 13 of this bill. Then what more can we do in the future? The EU environmental principles currently guide the union in developing policy in the environment and, by extension, guide environmental legislation in Scotland. That connection for future policy development would, of course, be lost when the UK exit the EU. We need to carefully consider how we take forward this Government's clear intention that those principles will continue to set at the heart of Scotland's approach to environmental policy in the future, regardless of our future relationship with the EU. That will likely require changes to our current law. That cannot be done in this bill. However—and I have now had discussion with the Cabinet Secretary for Environment, Climate Change and Land Reform—I can confirm that we will work with others to bring forward amendments at stage 3 that commit us to consult on the proposals on how best to ensure that the environmental principles continue to inform future policy and law in Scotland. That is clear commitments that I am making, and I hope that they are clearly understood. On the wider point that is raised by those amendments, given that the purpose of the bill is to convert EU law as it stands at the point of exit and to ensure continuity of the position as it exists on exit day, it would not be appropriate to use the bill to change the definition of what is understood as constituting a general principle of EU law. Amendments 127 and 140 from Patrick Harvie would supplement the list of things that the powers cannot be used to do. They would prevent them from removing or reducing protections that are currently conferred on individuals and groups. They would protect rights that are currently exercisable. They would prevent them from being able to increase burdens on individuals and businesses. They are all laudable aims, but they could move us into the realm of doing what I have suggested would be very difficult to do to use the bill to change the definition of what is understood as constituting a general principle of EU law. What I need to do is to apply the same commitment that I have made in terms of the issues of environmental and animal sentiments to this issue, too. It applies to Neil Bibby's amendments as well. I cannot use the bill to make substantial policy changes going forward, but I can, I hope, find ways to make the commitments that Patrick Harvie and Neil Bibby want in a way that is consistent with the bill, but it also does not put us in. This is a point that Murdo Fraser raised. I am sure that he did so helpfully, but we should bear in mind that that has been raised by Tory member who puts the bill into reserved areas. We have to be very careful that we do not find ourselves in that position. What I am saying is that I understand the motivation for those. I understand the desire to move into that. I can make commitments specifically on the environmental issues, and I can also make commitments specifically to find a way to ensure that the purpose of the amendments that are made by both Patrick Harvie and Neil Bibby are dealt with at stage 3 to work with the members to do so. However, those particular amendments would create circumstances in which the bill would be in difficulty as a result of them. That would mean that I would encourage members to vote against amendments 85 to 87, 89 to 93, 94 to 96 and 98. I encourage members not to move amendments 1 to 3, 1 to 7, 1 to 8, 1 to 40, 1 to 41 and 1 to 99 on the basis of the commitments that I make. I can return to those commitments when we come to the similar provisions in the next section, but I have made them clear now for the avoidance of doubt. Adam Tomkins has been a lengthy and full debate on what is an important set of amendments to a very important provision in the bill. We are talking about general principles of EU law and fundamental rights. I want to make five brief points summarising what I think are the most salient aspects of this debate. First, the reason why the withdrawal bill and the amendments in my name to this bill seek to end the role of general principles in domestic law or in Scots law is because the general principles of EU law are created and generated, expanded, defined and developed by the European Court of Justice. One of the significant reasons for voting to leave the European Union is a dissatisfaction across the political spectrum with the uncontrolled and uncontrollable expansive jurisprudence of the European Court of Justice. That is why I say on the one hand look at the general principles in one way and on the other look at the charter and the other. The charter is a legal document that the European Court of Justice can and does interpret but it cannot rewrite it, whereas the general principles of EU law can be rewritten and are rewritten by the European Court of Justice on an almost weekly basis. There is a good reason of jurisprudence, it seems to me, as to why we would want to be skeptical of and want to limit the role of the general principles in our legal system post-Brexit. That is the first point that I want to make. The second point that I want to make is that having different rules with regard to the role of the general principles in Scots law from the rules that we would have under the withdrawal bill if it is enacted in its current form in the rest of the UK would simply make our administrative law unnecessarily complex. There is no good reason for doing it. There is no positive to be gained, it seems to me, and there are negatives to be risked. There is no reason why we need to make Scots administrative law more complex in terms of its relationship with administrative law south of the border and to have the continuing role of proportionality, for example, which we will accept as a general principle of EU law, to have the doctrine of proportionality playing a role in Scots law going forward, which it is not playing in English law, would simply make the administrative laws of the legal systems of the United Kingdom more complex and unnecessarily complex. No good reason has been put forward by any member, or indeed by the minister speaking in this debate, as to why that should happen, and in my view it shouldn't happen. The third point that I want to make is that I fully endorse the amendment in the name of my colleague Jackson Carlaw, which is reflected in the evidence that the finance committee heard last week from the Law Society of Scotland seeking a definition of the general principles of EU law in the bill if my amendments are unsuccessful. However, I would add the note of caution. Even if we define in the bill what we think the general principles are, and even if we say that they are subsidiarity, equality, proportionality and legal certainty, there is still very significant legal uncertainty about what those terms mean. Is subsidiarity, for example, to be understood as a general principle that says that power should be exercised in Scotland at the lowest possible level? Does it, for example, apply to the relationship between local authorities and this Parliament, or between local authorities and Scottish ministers? Or is it a principle that applies only between a member state of the European Union and EU law, which is how subsidiarity has been understood by the European Court of Justice? Even if we were to identify on the face of the bill subsidiarity as a general principle of EU law that we wanted to continue in Scott's law, we would need, I think, at stage 3 to bring forward further amendments to seek to clarify exactly what we meant by subsidiarity. The fourth point that I want to make convener is one that I made in the chamber in one of our earliest debates on this bill, and I am disappointed, I have to say, that the minister was unable to respond to that point on that occasion, and he has overlooked it in his remarks this evening. That is that there is a straightforward and manifest conflict between section 5, as it is currently drafted, and section 8. Section 8 seeks to end the role in Scott's law after exit day of the rule in Frankivitch. Frankivitch is the name of a case in which the European Court of Justice created a doctrine of state liability. That doctrine of state liability is avowedly based on a general principle of EU law, namely effective judicial protection and legal effectiveness. If we have on the one hand the continuing applicability, including causes of action, in section 5 1 and section 5 2 of the bill, but on the other hand we have a clear rule that says that Frankivitch has no role to play in Scott's law going forward, then there is a clear incoherence and inconsistency in the legislation that would have to be teased out, tested and ruled upon in the end by the courts. The final point that I want to make, convener, is just to note, and those remarks are addressed to Mr Harvey, to note my rather grave concern that the minister seems to think that the precautionary principle, which I know Mr Harvey wants to safeguard in Scott's law, is a general principle of EU law. I noted that the minister did not cite any legal authority in favour of that proposition and I have to tell Mr Harvey that I know of no legal authority in support of that proposition. I may have overlooked it. It may be that there is some recent decision of the Luxembourg court that says that the precautionary principle is now a general principle of EU law, but I have to say that I doubt it. I doubt it for the other simple reason that the precautionary principle is not a general principle. It is a principle that applies particularly in the context of scientific and environmental regulation. The whole point of the general principles of EU law is that they apply right across the spectrum of EU law, and that is why they are called general principles. If the minister thinks, or if the minister has been advised, that the precautionary principle, which is a specific element of European environmental law, is somehow captured by section 5, I would not rely on Mr Harvey without wanting to dig quite a long way down into it to understand whether it is really the case. At this stage, I would point out that, if amendment 85 is agreed to, I cannot call amendments 86, 87 and 88 because of preemption. The question is that amendment 85 be agreed to a Rolly grade. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. The result on amendment 85 is three votes for, eight against, the amendment is not agreed to. Amendment 86, in the name of Jackson Carlaw or Liddyd Bathwood, amendment 85, Jackson Carlaw to move or not move. The question is that amendment 86 be agreed to a Rolly grade. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 86, there are three votes for, eight against, the amendment is not agreed to. Amendment 87, in the name of Liam Kerr or a debate with amendment 85, Liam Kerr to move or not move. The question is that amendment 87 be agreed to a Rolly grade. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 87, there were three votes for, eight against, the amendment is therefore not agreed to. Amendment 88, in the name of Donald Cameron or a debate with amendment 58, Donald Cameron to move or not move. The question is that amendment 88 be agreed to a Rolly grade. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 88, there were three votes for, eight against, the amendment is therefore not agreed to. Amendment 89, in the name of Adam Tomkins, or a debate with amendment 85, Adam Tomkins to move or not move. The question is that amendment 89 be agreed to, a Rolly grade. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 89, there were three votes for, eight against, the amendment is therefore not agreed to. Amendment 90, in the name of Dean Lockhart, or a debate with amendment 85, Dean Lockhart to move or not move. The question is that amendment 90 be agreed to, a Rolly grade. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. Result of the vote on amendment 93, 34, eight against, the amendment is therefore not agreed. I call amendment 91, in the name of Adam Tomkins, or a debate with amendment 85. Are amendment members that amendment 91 is agreed to, I cannot call amendment 92 because of preemption. Adam Tomkins to move or not move. The question is that amendment 91 be agreed to, a Rolly grade. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 91, there were three votes for, eight against, the amendment is therefore not agreed to. I call amendment 92, in the name of Jamie Greene, or a debate with amendment 85, Jamie Greene to move or not move. Thank you. The question is that amendment 92 be agreed to, a Rolly grade. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 92, three votes for, eight against, the amendment is therefore not agreed with. Amendment 93, in the name of Adam Tomkins, or a debate with amendment 85. Are amendment members that amendment 93 is agreed to, I cannot call amendments 1, 2, 3, 94, 95, 96 and 97 because of preemption. Adam Tomkins to move or not move. The question is that amendment 93 be agreed to, a Rolly grade. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 93, there were three votes for, eight against, the amendment is therefore not agreed to. Number one, in the name of Claudia Blemish, or a debate with amendment 85, Claudia Blemish to move or not move. In view of the cabinet secretary's remarks in relation to stage 3, not moved. Amendment 2, in the name of Claudia Blemish, or a debate with amendment 85, Claudia Blemish to move or not move. Not moved for same reasons. The question is that amendment, no, sorry, you are right. Amendment 3, in the name of Colin Smyth, or a debate with amendment 85, Colin Smyth to move or not move. In light of the cabinet secretary's comments, not moved. Amendment 94, in the name of Graham Simpson, or a debate with amendment 85, Graham Simpson to move or not move. The question is that amendment 94 be agreed to, a Rolly grade. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. Amendment 94, in the name of Jamie Greene, or a debate with amendment 85, not moved. In the absence of the minister making any reference to it and is summing up, I will not move this amendment. Amendment 96, in the name of Donald Cameron, or a debate with amendment 85, not moved. The question is that amendment 96 be agreed to, a Rolly grade. There will be a division. All those in favour, please raise their hand. Sorry, forgive me. Time for a wee drink of water. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 96, I am glad to say that only three votes for a hand. Eight votes against amendment is therefore not agreed to. I call it 97, in the name of Donald Cameron, or a debate with amendment 58, Donald Cameron to move or not move. The question is that amendment 97 be agreed to, a Rolly grade. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 97, three for eight against amendment is therefore not agreed to. The question is that section 5 be agreed to, a Rolly grade. Your opposition is noted. I call amendment 4, in the name of Tavish Scott, a group with amendments 5, 6, 20 and 21. Tavish Scott to move amendment 4 and speak to all other amendments in the group. Thank you, convener. Can I see how well you are doing in trying circumstances? Just a word for Mr Tompkins, when Mr Tompkins said in his final wind-up that he was going to move, he had five points to make. What he didn't understand is that, like me, the convener was struggling to think, I'm not going to make BBC One at nine o'clock to watch Shetland tonight, and you really need to bear in mind these things when judging how many points to make in a wind-up speech. That's before and after a phrase of tweets accordingly. In moving amendment 4, if I may convene, this places an obligation on Scottish public authorities to apply the environmental principles set out in the amendment and when carrying out their duties and functions have regard to a number of environmental considerations. Whilst not limiting the area of a court's consideration, it also provides a specific provision that allows Scottish courts to make declarations of incompatibility. Whenever a provision of primary or secondary legislation is incompatible with the environmental principles that the minister mentioned earlier, the bill is drafted does not explicitly retain EU environment and animal welfare principles, even though it does retain the charter of a fundamental rights, which again was referred to earlier in terms of environmental protection. I am sure that other members are grateful to Scottish environment link for setting out the argument to the committee last week in written evidence and indeed in briefings to members. The minister did send a letter to the Environment Committee setting out the Scottish Government's view on how the principles can be dealt with. He led some evidence a moment or two ago on this and I looked to what more he wishes to say in respect of both my amendments and indeed Mark Ruskell's amendments in due course, but I hope that he recognises that amendment 4 provides a useful backstop that the committee might want to include at this stage 2. In reference to amendments 5 and 6 in Mark Ruskell's name, they both make it explicit that the environmental animal welfare principles in articles 11, 13 and 191 of the treaty on the functioning of the EU are translated into Scots law. Perhaps, convener, amendment 4 does that in a unified way in respect of all those articles and in that principle on that basis. I am happy to move amendment 4 in my name. Mark Ruskell, to speak to amendment 5 and other amendments in the group. Thank you, convener. Yes, I am happy to speak to the four amendments in my name in this group. That is the amendments on the principles of animal sentience, number 5, environmental principles, number 6, 20, which attempts to clarify who will exercise functions and powers in relation to environmental regulation and 21, which attempts to create a requirement for consultation on what could be an emerging governance gap. I will not repeat all the arguments that I made six or seven hours ago in this chamber in relation to those amendments, but I would like to reflect briefly on some of the points that were raised by the minister about 10 hours ago in the Environment Committee this morning. I acknowledge the point that I think the minister made on several occasions that the principles that we are talking about and debating here tonight have effectively been saved into current legislation and will indeed be rolled over through this continuity bill, but I think that we need to reflect on why that is the case. These principles guide policy development. They create good laws. In relation to animal sentience, there is a requirement, not just on the European Union, but indeed on member states, to have full regard to welfare requirements when formulating and implementing policy. Those principles are not just about where we have come from and where we are now in terms of our policy. It is also about where we are going. I heard what the minister said in relation to a stage 3 amendment and about how, perhaps, those guiding principles can be applied going forward. I would like to see, minister, those principles applied, particularly in relation to how we are going to keep pace with European Union laws in the future. The other point that I think the minister made this morning is that, of course, this bill is about saving European Union laws. It is not about introducing new definitions. I agree with that. Tempting as it would have been to have brought forward a new version of animal sentience, a new improved version of the article 13 provisions of the Lisbon Treaty, I recognise that this is not the place to do that, but it is about saving what we have, the important principles that we have, the important principles that have been guiding our policy development now for many, many years. Turning to other amendments in the group and those already discussed in relation to these principles, I think the main difference with my amendments is that I am attempting to supply the case law requirement here. I think there is some uncertainty about whether these principles have been fully and adequately tested in EU case law. If the minister can assure me that all of these principles have been tested in EU case law, and I note the comments made by Mr Tomkins in the last session, I would be interested to know that. If there are references for those case laws, then let us prove whether these principles have been tested to destruction in EU case law. In relation to my other two amendments, amendment 21 identifies the fact that we could be heading for an EU governance gap here, particularly in relation to the provisions of the ECJ. I know that the UK Government is sensibly consulting on this governance gap and has offered to extend this consultation to Scotland. I would be interested to hear what the minister's views are on that. It may make the provision of an amendment to this bill unnecessary if he was to accept that offer to consult. Finally, in relation to amendment 20, which attempts to create a list of who is going to carry out the functions and what those functions will be, I am looking for clarity from the minister. It seems like a very obvious thing to do. It could even be wrapped up in the governance gap consultation as to which are the appropriate bodies that can take on these functions effectively. We obviously need to sort this out ahead of withdrawal. If there is a commitment there, I will consider whether to press this amendment further to require it or, indeed, to withdraw it if I get a rational response to that. That, indeed, will be happening. Thank you, convener. Scottish Labour is minded to support those amendments in the name of Tavish Scott and Mark Ruskell. They are similar to those amendments from Claudia Beamish and Colin Smyth in the previous grouping. Mark Ruskell's amendments make it clear that the environmental and animal welfare principles from the treaty on the functioning of the European Union will be translated into Scots law. The amendments in this group from Mark Ruskell and Tavish Scott as a whole set out practical ways of ensuring that environmental safeguards remain in place and that deficiencies arising from withdrawal are addressed through consultation. I am therefore happy to support the amendments in the group, if they are placed. Once again, I am grateful to members for ensuring that we have a range of options to consider and a range of amendments in this critically important area. Like Mark Ruskell, I would like to commend the briefing from the Scottish Environment Link, which has said that, if the bill is to deliver on providing for continuity of law, including environmental protections in EU law, as stated in the bill's policy statement, EU environmental and animal welfare principles need to be explicitly referenced in its provisions. They later say that the bill falls short of translating those commitments into legislation. I think that it is pretty clear to most people who have been part of the movement towards higher environmental standards not just in those islands but throughout Europe. It has been clear that the European Union has been a critically important driver of that process. I think that that is true across the political spectrum. Obviously, my own party colleagues in green parties throughout the EU have made a contribution to that, but it has been the case right across the political spectrum. The European Union and its institutions and its body of law have been critically important in raising those standards. I think that most of us understand that the Brexit ultras that are currently in control of the UK Government are the self-same people who have spent years writing articles and making speeches about how much they look forward to a bonfire of the regulations and the idea that some sort of wild west free market agenda will be imposed instead of the strong environmental protections that we have achieved. The same goes, I think, for the social protections that have also been achieved in the European Union. Again, I commend those who have brought those amendments. I want to hear something very positive from the minister about what he intends to do. I would like to see those amendments pass, but if he wants to persuade the committee to do something different than that, he needs to have a very clear proposal about what it is that is going to be different on the face of this bill that will achieve the objectives that are being set out. Finally, in relation to amendment 21 specifically, I think that the expectation that the Government should consult on what has clearly been identified as a governance gap is a perfectly reasonable suggestion. If the amendment was to pass and the minister came back at stage 3 and said, look, two months is too short a timescale, we would like to tweak that one. I suspect that the supporters of that amendment would be perfectly reasonable and willing to reasonably discuss what that timescale should be, but the commitment to have that consultation, I think that there is a very clear case for that to be on the face of the bill, as well as the other issues that have been raised in this group. No other member has indicated a wish to speak, so I will go into the minister. Thank you, convener. I thank Claudia Beamish and Colin Smyth for not moving their amendments. I want to make the same assurances to Tavish Scott and to Mark Ruskell as I made to them, and perhaps I will add some more because there are some other issues that are being considered here. I want to deal with one of two specific issues and then go on to a more general issue. Mark Ruskell asked about the issue of case laws. I think that it is a dangerous thing to disapply case law in these circumstances. However, we need to be clear about what that case law is, and I will certainly look at, for example, the use of the explanatory notes to provide additional information on case law and to find other ways so to do. I have to say that, in terms of the applicability to public bodies, I am very happy to look at that as an extension to what we are discussing. Finally, on the issue of governance, I, as I understand it, next Tuesday, the cabinet secretary of environment climate change and land reform will be going to the committee that is looking at the issues in which Mr Ruskell sets to talk about this very specific issue, and I will be there with her. I know that she will want to consult on the issues of governance because it is absolutely right that that happens. If she can wait until that takes place and she is planning to bring those things forward, then that will be what takes place. I have an assurance that there will be those issues. Let me now address the issues that Patrick Harvie raises before going into specific commitments. I am, as Patrick Harvie knows, a former environment minister. I am sceptical, as he is sceptical, about what he calls the Brexit Ultra. I am not convinced that, for example, the current secretary of state for the environment and rural affairs in the UK Government is a born-again—well, not even pale—green. I am absolutely certain that the wish to deregulate, which he has, will apply to social protections as well. I have dealt with that individual more than once over the past few years, and I stand by what I say. Indeed, I have debated those issues with him. I am absolutely determined that we should not have those matters weakened, and I need to find a way so to do. Patrick Harvie asked me to convince him that I could find a way, and I want to repeat the assurances that I have made and to expand upon them. However, let me do it in exactly the same way that I did in the previous item—what this bill already does. I clarified this to the Environment, Climate Change and Land Reform Committee this morning. We will amend the explanatory notes to this bill to clarify, and I have to say that the precautionary principle is the general principle of EU law. There is clearly a difference of opinion between myself and Professor Tomkins. That is not something that is unusual even this evening. That is not something that is unusual, but we will do that. It will be covered by the provision in section 5 that the general principles will continue to be part of Scots law. Under section 5, the Charter of Fundamental Rights will be similarly incorporated, and I quote again article 37, which provides that a high level of environmental protection and the improvement of the quality environment must be integrated into the policies of the union and ensured in accordance with the principles of sustainable development. That is what the bill does. Secondly, what more can we do? At present, the environmental principles are used to inform EU policy development and legislation. As such, all EU legislation will be rolled over through this bill and become part of retained and devolved EU law, and they will already be informed by those principles. Similarly, when we are taking powers to correct deficiencies or to keep pace, we are making necessary changes to the law that has already been informed by those principles. However, and I make this key point in terms of a commitment, to make sure that we are clearly committed to considering the principles on the face of the bill, which it was asked for, I will work with members to bring forward amendments at stage 3 that require us to consider the EU environmental principles and animal sentiments when exercising the powers under section 11, 12 and 13. I will include in that, because of Mr Russell's amendment 20, the issue of local authorities and public bodies, and I think that that would also tackle something that Mr Scott had raised. We will look at that issue, and we will make a commitment to do so on the face of the bill. What do we do next? Well, as I said earlier, the environmental principles currently guide the union in developing policy by extension guide environmental legislation. We stand to lose that because of one of the many things that we will lose through this process of Brexit. We need to see how we take it forward in terms of governance, certainly, and in terms of consulting on how those principles go forward to ensure that they inform future policy and laws. We do not miss that. The Cabinet Secretary for the Environment, Climate Change and Land Reform will confirm, as I am confirming, that that consultation will take place. We will include that on the face of the bill, and certainly in this discussion over the next week, I would want to ensure that we also include the issue of environmental governance on this. Nobody is avoiding the issue of environmental governance, but we quite clearly need to get ourselves to the position where we can do that. I have indicated what the bill can do, what it is doing, what more it can do, and what we can commit to for the future. Let me finally address the issue of keeping pace powers. That will become an issue for further discussion here. I know that there is a desire to limit those powers to increase scrutiny, and I am going to support the limitation. However, I am not going to support the idea of dispensing those powers. As I indicated to the committee this morning, there are areas in which that becomes exceptionally valuable. I used a number of people in this chamber who will understand that. I know Mr Scott will, because he is familiar with aquaculture. There are issues, for example, about the list of fish diseases. That is something that he has required to have updated because it has applied across Europe and is updated by European legislation. Unless we were able to apply the keeping pace powers to a simple matter like that, we would find ourselves in a situation in which we did not have the ability to move forward as quickly as we should do and in a determined way that we should do. I used examples this morning of animal health and invasive species. There are a variety of areas where practical application of the principles in the work that we do as MSPs requires us to use as keeping pace powers. Because environmental law is such a very large part of what we deal with, and because it is an area that I do believe will be under threat from the UK Government, then having those keeping pace powers will be absolutely essential to exercising them in some way. Convener, I have indicated where we are and what our commitments are. I commit myself to the work that we require to do to bring those stage 3 amendments next week and to work with the members who are concerned for it. I hope that that is sufficient to reassure members that we have a genuine intent to do so, but we need to get this right. I hear what the minister says on keeping pace and the powers. That is indeed a debate for later on this evening. I think that all he has just said in relation to the weight of environmental legislation and regulation that flows from Europe reinforces the point of making sure that however, Parliament chooses to allow ministers to keep pace is subject to the most exacting of scrutiny. For the very reasons that he has given, I think that you can make up that argument from my side of that debate as well as the minister's. The only other two points, I absolutely hear what he says in relation to the commitments that he has made about committee next Tuesday and indeed about working with members across Parliament on the right kind of amendments to give effect to what we have all sought to achieve this evening. That, from my perspective, is a sensible and progressive approach to this issue. I would therefore finish with this point that, if there cannot be agreement, I beg Lee to give notice that I would seek to reintroduce the amendment that I have today at stage 3. However, I take his point that there is a lot to be gained by working with members, but I may also say that there are some more external organisations that have very strong views on that as well in terms of achieving the right kind of amendment to shape up this bill in the right way to achieve the effect that we all want. I absolutely wish to withdraw amendment 4. In which case, can I ask if any other member present objects to the amendment being withdrawn? I am objecting to amendment 5. In the name of Mark Ruskell, I am already debating amendment 4, Mark Ruskell, to move or not move. In the name of Mark Ruskell, I am already debating amendment 4, to move or not move. In the name of Adam Tomkins, I am already debating amendment 85, Adam Tomkins, to move or not move. The question is that amendment 88 be agreed to. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 98, there were five votes, four, six against the amendment is therefore not agreed to. I call amendment 99 in the name of Liam Kerr, a group with amendments 100, 101, 102 and 103. Liam Kerr, to move amendment 99 and to speak to all amendments in the group. Thank you, convener. Yes, I move amendment 99 in my name and move all in the group. My amendment 99 reverts to the principles that I elucidated at the outset. The law must be certain, clear and precise, and the implications of each law must be foreseeable. Legislation must be worded so that it is clearly understandable by those who are subject to it, and therefore my amendment proposes to leave out the words devolved enactment or rule of law and instead insert law made by the Scottish Parliament. There is, in my view, a fundamental problem as drafted in as much as in relation to retained EU law, it is difficult to interpret to what law the principle applies. Notwithstanding the ambiguity over the interplay between this section and any retained EU law, clarity will be immeasurably improved by removing the words devolved enactment or rule of law and simply inserting law made by the Scottish Parliament. Such that the section reads, the principle of the supremacy of EU law does not apply to any law made by the Scottish Parliament passed or made on or after exit day. Clear, concise, comprehensive. That clarity is also required in section 61 at line 38. Whilst I appreciate that Mr Russell has struggled to keep up with the force of my argument thus far, he will no doubt be pleased to note that this one is based on an argument raised by the Law Society. As drafted, the principle of the supremacy of EU law continues to apply to any devolved enactment or rules of law passed or made before exit day. An act in this place is passed when it is approved at the end of stage 3. There is then a holding period of normally four weeks before it can be submitted by the presiding officer for royal assent, during which of course it may be referred to the Supreme Court and the European Court. It is only upon receipt of royal assent that it becomes enacted. In other words, it only categorically becomes active at the point of enactment. Prior to that, it is, let us say, open to challenge. Thus, as presently drafted, this section could apply to a rule of law that has been passed but not enacted and thus could be challenged. There is also a further issue. Insofar as, as drafted, the bill at section 2 1 talks of certain domestic legislation as it has effect in law before exit day will continue to do so. Section 6 1, by using passed or made, apparently dispenses with the requirement for the rule of law to be enforce or operative, i.e. in effect. Given that section 6 1 and what follows relates directly to section 2, among others, insofar as it accepts some things from that which section 2 saves, all sections ought properly to mirror each other in the enactment status of that which they seek to govern. Certainty is therefore obtained by the use of enacted rather than passed or made, and I urge the committee to vote in favour of the amendment. My argument for amendment 102 is identical to that set-out for amendment 99. Certainty, clarity and precision, to say nothing of comprehensibility, require nothing less than that the amendment be made. To my mind, this is a simple amendment. Clarity is immeasurably improved by removing the words devolved enactment, or rule of law, and simply inserting law made by the Scottish Parliament. Such that the section would read disapplication or quashing of any law made by the Scottish Parliament passed or made or enacted, depending of parliaments with me on amendment 100, before exit day. Finally, in relation to amendment 103, my point in leaving out the words passed or made and inserting enacted per amendment 100 stands. An act in this place is passed when it is approved at the end of stage 3. It does not come into effect until the passing of royal assent, i.e. enactment. Clarity therefore requires the word enacted to be inserted. Certainty is therefore obtained by the use of enacted rather than passed or made, and I urge the committee to vote in favour of the amendment. The only amendment that I have in this group is 101. It is there to address one of the concerns of the law society that raised concerns over the approach that is taken in this subsection. The law society states that this line has no obvious intended effect, or at least was unclear, and what they ask is whether it is merely a declaratory subsection or if it simply paves the way for the retention of the principle in subsection 2. Essentially, convener, my amendment questions the purpose of subsection 1 and it would be my observation that it is a declaratory provision. It simply states something, it does not have any legal effect, and if that is correct, I would submit that we must therefore say that. For that reason, my amendment says expressly that subsection 1 is only a declaratory provision. I wish to oppose all the amendments in this group. There seems to be a legal difference of opinion. I listened carefully to Liam Kerr's argument, bearing in mind that he has an element of legal expertise. However— In order to give some full praise, I respect Mr Kerr's legal expertise. However, he did not convince me in the arguments that he made. I was not convinced that the arguments that he made would have any added legal or practical effect. Therefore, I oppose those amendments along with the amendment of Donald Cameron. One of the core requirements of EU membership is the principle of supremacy of EU law. In the event of any conflict with domestic law, domestic law must give way. Section 6 reflects the same approach as the UK bill in not applying this principle after EU exit. Similar to the UK bill, section 6 is intended to make clear that the principle of supremacy will not apply to any domestic law that is passed or made on or after exit day. While the principle of supremacy will end for new laws after exit day, it is considered necessary to make it clear that it has no impact on the way in which existing laws work. The bill therefore sets out that in relation to any pre-exit domestic law, the principle of supremacy will continue to apply, so far as relevant, to the relationship to retained EU law. Remaining silent within the bill or taking a different approach would, I believe, risk changing the law and creating uncertainty as to its meaning and effect. Liam Kerr's amendment seeks to remove from the scope of the provision rules of law, for example, common law devolved Westminster acts and subordinate legislation, leaving just laws made by the Scottish Parliament, by which he means acts of this Parliament. I am not clear why he has proposed this. This is more confusion. The principle of the supremacy of EU law applies to all those things, as well as enactments. Donald Cameron's amendment seeks to provide that the removal of the principle of the supremacy of EU law is declaratory only. I am also not clear why he has put down those amendments. The principle of the supremacy of EU law is a significant legal principle that is currently part of our legal system. On leaving the EU, despite previous suggestions of the contrary, it is for this Parliament to determine how it is to be retained and applied for devolved areas. It might be argued that, once we leave the EU, it will be sufficiently clear that the principle cannot apply to any future domestic law. However, that cannot be assumed. Similar to the UK Government, we consider that it is necessary to make the provision clear in the bill. Section 6.1 has substantive legal effect rather than being declaratory. Donald Cameron's amendments would have the opposite effect in casting doubt on the position. Finally, I might observe with a rise smile, which means that, according to Jackson Carlaw—at least, I have a smile—that, having been accused of actions incompatible to the rule of law, I note that the Bingham centres report on the matter, which said of the equivalent UK provisions. The objectives of clause 5.1.3, namely to give retained EU law priority over pre-exit but not post-exit domestic law, is not merely a sensible one. It is required by the rule of law. I therefore ask members to vote against amendments 99, 100, 101, 102 and 103. Liam Kerr to wind up. Thank you, convener. I have proposed a number of amendments today, designed to add clarity, reduce uncertainty and ensure applicability. My amendments 99 and 102, I believe, has drafted. The bill is unclear. Why would we say devolved enactments or rule of law when clarity about it can be given by a simple replacement, in my view, of law made by the Scottish Parliament? That clause is fundamental. The minister brought that forward. It is titled Principle of the Supremacy of EU Law. That is one of the key clauses to get right, so my view is that we should get it right. However, in that regard, I do concede that the minister makes a fair point in as much as perhaps my amendment has not gone as far as it needs to. I am sure that he concedes that my points are of value equally. On that regard, I think that there is more to be done with this amendment, and so I shall not press this at this stage. However, in relation to amendments 100 and 103, this is a technical point, but I think that it is a very valid one. We must use words that have meaning. If we use words that could have meaning or ascribe to them a meaning where another is absolutely appropriate or necessary, that must be folly. There is a reality here. Past or made means one thing, enacted means another, very clearly. Those amendments also tie back to section 2 and others. If something different is intended, which would seem very odd, then that must be very clearly stated. If the same intent is required in all sections, then the same word should be used. If members have any disquiet about my analysis, and I note with sadness that I failed to convince James Kelly, perhaps he will be more convinced by my reference to the Law Society, the briefing note page 8, paragraphs 2 and 3, which makes exactly this point. I therefore commend amendments 100 and 103 to the committee. I shall not press 99 and 102. I commend amendment 101 in the name of Donald Cameron to the committee, because it is important to note that it is his view that the section is merely declaratory, and therefore that must be stated. I can confirm with him care that he wishes to withdraw amendment 99. If that does not make a material difference to my ability to press 100 and 102— No, no, it does not change that at all. Grant, in that case, I shall not— In which case, I need to ask whether any other member present objects to the amendment being withdrawn. No one else is objected there. Therefore, I call amendment 100 in the name of Liam Kerr, or a debate with amendment 99, Liam Kerr to move or not move. The question is that amendment 99 be agreed—sorry—100 be agreed or we all agreed. In which case there will be a division? All those in favour, please raise their hand. On amendment 100, there were three votes for, eight against, the amendment is therefore not agreed to. I call amendment 101 in the name of Donald Cameron, or a debate with amendment 99. Donald Cameron to move or not move. Thank you. The question is that amendment 101 be agreed to, or we all agreed. There will be a division. All those in favour, please raise your hand. All those against, please raise your hand. On amendment 101, there were three votes for, eight against, the amendment is therefore not agreed to. I call amendment 102 in the name of Liam Kerr, or a debate with amendment 99, Liam Kerr to move or not move. I call amendment 103 in the name of Liam Kerr, or a debate with amendment 99, Liam Kerr to move or not move. The question is that amendment 103 be agreed to, or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise your hand. On amendment 103, there were three votes for, eight against, the amendment is therefore not agreed to. I call amendment 104 in the name of Maurice Golden, or a debate with amendment 58, Maurice Golden to move or not move. The question is that amendment 104 be agreed to, or we all agreed. There will be a division. All those in favour, please raise your hand. All those against, please raise your hand. On amendment 104, there were three votes for, eight against, that means that amendment is not agreed to. The question is that section 6 be agreed to, or we all agreed. Your opposition has noted. I call amendment 105 in the name of Maurice Golden, or a debate with amendment 58, Maurice Golden to move or not move. The question is that amendment 105 be agreed to, or we all agreed. There will be a division. All those in favour, please raise your hand. All those against, please raise your hand. On amendment 105, there were three votes for, eight against, that means that amendment is not agreed to. I call amendment 106 in the name of Adam Tompkins, or a debate with amendment 71. Adam Tompkins to move or not move. The question is that amendment 106 be agreed to, or we all agreed. There will be a division. All those in favour, please raise your hand. All those against, please raise your hand. On amendment 106, there were three votes for, eight against, that means that amendment is not agreed to. At this stage, before we move on to the next grouping, I want to suspend for five minutes. We will have a five-minute break, and then I intend to finish this meeting after consideration of the grouping entitled Grounds for exercise of various regulation powers. Colleagues, hello. We begin again. After discussion with the clerks, what we are going to do, because I have to have in mind the duty of care to staff here, is not just about us. Therefore, I am going to take the next three groupings, and I will finish up with the one beginning interpretation of retained devolved EU law. The next grouping will take us well past 11 o'clock, and probably close to midnight, if I was to do that. It would be fair to do that. It could be an early indication of where we are. In which case, I call amendment 107, in the name of Maurice Golden, grouped with amendments 108 and 109. Maurice Golden, to move amendment 107 and speak to all amendments in the group. Many thanks, convener. With respect to 107, this is in section 7, page 5, line 24. My amendment states that, as soon as it is practically possible after the end of each quarter of the year, the Scottish ministers are to A. lay before the Scottish Parliament and B. make publicly available by such means as they consider appropriate. A report on the number of challenges made to the validity of retained devolved EU law under this section. The rationale behind that is that it would require ministers to report regularly on how many challenges to the validity of retained devolved law there have been. Section 7 sets out the right to challenge what is or isn't retained in Scots law after exit day. It puts down caveats on that from the European Court, saying that, before exit day, an instrument is no longer valid to ministers. However, it also says in subsection 2A that challenges are not valid if they are of a kind described or provided for in regulations made by the Scottish ministers. That, in turn, is subject to subsections 4 and 5, which state that regulations can ensure that a challenge that would have been against the EU are against a Scottish public authority and that the regulations must be subject to affirmative procedure. Mike Russell's amendments, adding in a new section after section 9, go further and add the need for consultation before regulations are made. There is some provision for scrutiny of those regulations, and that is welcome, but there is still clearly scope for new regulations to be made with broad understanding of what is going on. The law society said, and just to clarify, after Patrick Harvie's rather ill-advised comments earlier with respect to my quote, that I will read out the full quote. He also said that the committee papers received written submissions in relation to all those quotes, and while that may be the case, I did quote from a committee report, I reported from a legal journal, and I also reported a quote from the Supreme Court. I very much doubt, although I am not party to the papers that the committee may have received, that the Supreme Court has submitted written evidence to the committee, although I am sure that the Supreme Court holds the committee in high esteem. Nevertheless, the law society said that, to the extent that the devolved rights or principles of EU law, which are saved in sections 4 and 5, fall within the retained devolved law. The savings appears to have limited effect because of section 7.1, which provides that there is no right in Scots law on or after exit day to challenge any retained devolved EU law on the basis that, immediately before exit day, an EU instrument was invalid. We note that regulations under section 7.2b will describe the types of challenges that will be permitted to the validity of the retained devolved EU law. It would be helpful where Scottish ministers to detail the potential content of such regulations. Therefore, this amendment would help to achieve that by requiring quarterly publication of the number of challenges that have been made. It would be a simple step that helps us to understand that impact that saved law is having. I urge the committee to look at the law to put its politics aside and, for once, to begin to help to improve the bill for the good of Scotland and the good of the Scottish Parliament. Minister, I have to speak to amendment 108 and other amendments in the group. Thank you, convener. The amendments 108 and 109, in my name, respond to a request from the Delegated Powers and Law Reform Committee on a point that was raised initially by their convener, Graham Simpson. They would convert the scrutiny procedure for the regulations under section 7.2b, allowing domestic court challenges to EU instruments on validity grounds after exit day to an enhanced 60-day scrutiny procedure following consultation like that used in other cases in the bill. We would accept that this is sensible, as the regulations might create significant outcomes in the courts. However, I thank Maurice Golden for his amendment. I would encourage him not to press it, or I would invite the committee not to support it. I have to say that those items will be a matter of public record. To create a further requirement for reporting on a public record appears to be unduly onerous. I am sure that ministers will keep the Parliament informed about uses of powers, the committee can scrutinise uses of powers and what we are saying in terms of the additional scrutiny procedure adds an extra dimension. The requirement is therefore redundant. I wish to indicate support for Maurice Golden's amendment 107. I think that that makes sense in terms of transparency in relation to challenges being reported at every quarter. I know what the minister said about the information that would be made public, but the fact that it is specified in the legislation just gives us that assurance that it will be delivered. I also want to support amendments 108 and 109. In the name of the minister, the layout and the important aspects in relation to new regulations coming forward, particularly in relation to consultation. Obviously, a concern around some of the regulation powers has been provided by the lack of consultation. The minister clearly has taken steps to address some concerns. Support all the amendments in this group. Thank you, convener. Very briefly, I would like to say that this amendment is all about transparency, it is all about improving scrutiny and, ultimately, it is an improvement that will help the validity of retained devolved EU law under this particular section. Thank you very much. The question is that amendment 107 be agreed to. We all agreed. In that case, there will be a division. All those in favour, please raise their hand. All those against, please raise their hand. Amendment 107, number 546, against amendment 107, is therefore not agreed to. The question is that section 7 be agreed to or will be agreed to. Your opposition is noted. I call amendment 7, in the name of Tavish Scott, on a group of its own. Tavish Scott, to move and to speak to amendment 7. Thank you, convener. I enter this area of Frankovitch with some trepidation. If you are a very junior counsel at Adam Tomkin here, even more junior than Donald Cameron actually does in these moments. However, Frankovitch is an instrument for driving ever-better standards of governance and output by the public sector. It dates from 1991 and has been extended over the last 25 years to cover states, public authorities, agencies, local government and, recently, the private sector. It says that if any of those bodies have been in breach of European Union law and an individual or corporate body has suffered thereby, they have the remedy that the courts are able to impose damages proportionate to the losses suffered from poor governance. Without it, people are left with judicial review, which is expensive, lengthy and does not provide damages. That is a piece of what has been coined people's law, designed to give ordinary people the chance to obtain redress. It has been part of the Scottish legal landscape for 25 years. By virtue of our place in the European Union, we should take the opportunity to retain it, to retain what we can of it, running into the future continuously and as part of the bill. On that basis, I seek to move amendment 7. Scottish Labour and I support the amendment on the Frankovitch ruling, which has been proposed by Tavish Scott with the support of my colleague Mary Fee. The amendment would ensure that the right in Scots law to damages in accordance with the rule when Frankovitch continues on or after exit day under EU law, since the Frankovitch ruling member states have been obliged to make good loss and damage caused to individuals by breaches of community law for which they can be held responsible. We have been clear that leaving the EU must not mean any dilution of people's rights, including the rights of workers and small businesses and others protected by that ruling. Our concern is that without specific provisions around Frankovitch, an important strand of legal protection could be lost for that reason. We will support the amendment in the name of Tavish Scott so that Frankovitch can be absorbed into Scots law. Thank you, convener, just briefly to say that I am certainly open to this amendment and I will listen with care to what the minister has to say. If the minister is not able to convince the committee to reject this amendment but still wishes to discuss further tweaks or changes at stage 3, I think that all those, including those who support the amendment, should be willing to listen to that. At the moment, I am open to supporting the amendment and I will listen to what the minister has to say. The Scottish Conservatives will not be supporting this amendment for two reasons. One, because there is no reason for the continuity bill to differ from the withdrawal bill on the point of Frankovitch. Secondly, more importantly, because the legal issue of damages against public authorities, including the state and the Government, is an issue that has changed very significantly in our legal systems in the United Kingdom over the course of the last 20 or more years since the Frankovitch decision, not just because of Frankovitch but because of changes in the common law in both Scotland and in London Wales and also because of the impact of the Human Rights Act, which increases the availability of damages against public authorities, including the Government. The reality is that irrespective of what the legislation or any other enactment says about the on-going status of the specific rule in Frankovitch, public authorities are finding themselves increasingly liable in damages for a variety of reasons under a variety of causes of action. That common law development will continue after Brexit, as it has continued during the 46 years of the UK's membership of the European Union irrespective of what this or any other legislation says about the specifics of Frankovitch. That is the core of the issue. The Convener, that is a difficult choice to make. I want to explain carefully why the Government is not recommending support for this, because I understand the desire of many members to ensure as little change as possible in the rights of individuals after Brexit, which I did not seek and do not want, so I have sympathy with that position. The Scottish Government recognises the importance of the principle in Frankovitch, which allows damages to be claimed against the state for failures in implementing EU law. That is why the bill ensures that the important principle is retained when the right to claim damages arises before exit day. The bill does not take the approach of requiring a claim to actually have been raised in the courts before exit day. I am sure that members will appreciate that that would be a significant loss to claimants of their rights, which have accrued before exit. The EU withdrawal bill, as Mr Tomkins indicated, takes a different approach to those rights, which have accrued before exit day. Under that bill, those accrued rights would be lost at that point if a claim had not actually been raised in the courts. I would be interested to note in the House of Lords last week that the advocate general recognised that that was a problematic approach and indicated that they may have to consider allowing Frankovitch damages for claims that have accrued before exit day, the provision that we are making. Mr Scott's amendment goes further by continuing the right to claim damages after exit day. In other words, Frankovitch damages could apply whether the right to claim damages arose before or after exit day. In general, we have sought to carry over all of existing EU law, including the charter and general principles of law and the associated remedies. We have taken a view that the existing right to Frankovitch damages is inextricably linked to EU membership and the obligations of the UK as a member state of the EU. The purpose of Frankovitch damages is to provide a remedy to those who are disadvantaged by the failure in the part of a member state to properly implement EU law and, to some extent, to make an example of member states who fail in their obligations. Although it is for national courts to apply their criteria, the court of justice of the EU has a central role to play in providing national courts with guidelines and indications for the application of the criteria. After exit day, the UK will cease to be a member state of the EU. I regret that, but that will be the case if we reach exit day. Given that Frankovitch damages are inextricably linked to membership of the EU and the implementation of EU law, it is very difficult to see what this rule would mean and how it would be able to work in an effective way in relation to retained EU law. There will be no jurisdiction for the ECJ. There will be no supervision of implementation and there will be no ability to make an example of the state. I reiterate that, unlike in the UK bill, any person will be able to raise such an action for failures of the Scottish ministers in this regard in implementation prior to exit day. I cannot support this for the reasons that I have given, although, of course, I have sympathy with any of the people who object to the changes that are taking place. I wish that they were not, but it is very difficult to see how that could operate, given the terms and conditions of its operation. Very briefly, convener, if I may, I am struggling to slightly understand the argument that ministers wish to continue to have powers to take forward EU regulations once the UK leaves the European Union, to continue to take powers in respect of those regulations and laws that the EU continues to pass and yet not continue to have the Frankovitch process in place. That does not seem to me to be a consistent approach. In that context, I do not really see why this amendment could possibly be resisted. I understand some of the other arguments that are made, but it seems to me that a system that has been in place for 25 years, both in terms of judicial rule and the convention in the Scottish law, specifically benefits ordinary workers and businesses who have been wronged and do not have the big money to take on large public agencies is not one that we should throw away lightly. On that basis, particularly on that first point, which I generally struggle with in terms of the minister's arguments, I would like to press this amendment. In that case, the question is that amendment 7 be agreed to. We all agreed. In that case, there will be a division. All those in favour, please raise their hand. All those against, please raise the hand. Amendment 7, in that case, votes 4 against the amendment. Is it therefore not agreed? The question now is that section 8 be agreed to. We all agreed. Your opposition is noted. The question is that section 9 be agreed to. Are we all agreed? Your opposition is noted. Call amendment 108, in the name of the minister who is already debated with amendment 107. The minister to move formally. The question is that amendment 108 be agreed to. Are we all agreed? Call amendment 109, in the name of the minister who is already debated with amendment 107, to formally move. The question is that amendment 109 be agreed to. Are we all agreed? Call amendment 8, in the name of Tavish Scott, to move amendment 110, 111. If amendment 8 is agreed, I cannot call amendments 110, 111 because of preemption. Tavish Scott, to move amendment 8 and speak to all amendments in the group. Thank you, convener. Amendment 8 toughens up the may have regard to in the bill and provides a more serious test and gives clearer guidance for retained European union law. The amendment proposes that courts and tribunals must have regard to future European judgments. Scottish courts, of course, retain the right to assess the significance of such judgments, that is 2A. 2B requires courts and tribunals to have regard to any withdrawal agreement signed. The example given in the House of Lords, which seems to be something that I read more often than not these days by Lord Panick, proposed a similar change to the UK legislation concerned regulation on medicinal products. If the withdrawal agreement between the UK and the EU has said that there will be close regulatory alignment between the EU and the UK, as many of us hoped there would be, the court or tribunal in Scotland would be encouraged by this clause to pay close attention to the determined meaning of the EU regulation. 2C provides that it is perfectly acceptable for a court or tribunal having been guided to consider EU judgments in 2A to decide that none has significant relevance to the matter before it, and I hope that, on that basis and in that spirit, the committee would consider this particular amendment. Thank you, convener. You'll be pleased to know that I can be very brief on this. Section 10 of the bill, which we are now on, corresponds with clause 6 of the EU withdrawal bill. There is no reason for there to be any difference between the two pieces of legislation in respect to the issue that section 10 subsection 2 deals with. Section 10 subsection 2 currently provides that a court or tribunal exercising devolved jurisdiction may have regard to anything done on or after exit day by the European Court, another EU entity or the EU. My amendments would change that provision so that it would instead read as follows. A court or tribunal exercising devolved jurisdiction need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU, but it may do so if it considers it appropriate to do so. That is what is provided for already in clause 6 of the EU withdrawal bill and the interests of consistency between them in the interests of legal certainty and the interests of ensuring that those provisions really do correspond with one another rather than just the Government claiming, wrongly, that they correspond with one another. Those are the reasons for the amendments in my name. Any other member wishing to speak on this? James Kelly. Yes, just briefly, support the amendment 8 in the name of Tavish Scott. Obviously, it is important to be able to accurately interpret retained EU law and in terms of Tavish Scott's amendment, it enhances the guidance and it provides greater clarity. Do not support the amendments 110 and 111 in relation to Adam Tomkins. I hear what he says about making it consistent with the EU withdrawal bill. However, I am just not convinced that the amendments that he is putting in actually make any difference. I am quite happy with the bill as amended. Thank you. I see merit in Tavish Scott's amendment 8. In relation to the suggestion that we change may to need not but may if appropriate, I am not convinced that simply saying that this is what the UK bill does is a strong argument. It seems to me that if I were to try to interpret that, it would almost beg some sort of criteria. It almost requires some kind of criteria to determine what would make such a thing appropriate. I think that the bill, as it stands, is clearer and I would take some persuading to accept the change in Adam Tomkins amendments. There is no other committee member who said that he wants to speak, minister. Thank you, convener. Let me deal with Adam Tomkins amendments first of all. The amendment 10.2, instead of providing that domestic courts and tribunals may have regard to the decisions of the European Court or other EU entities or the EU, provides that they need not have regard to anything done by the European Court or the EU entities or the EU but may do so if it is appropriate to do so. This would align the provision exactly with the relevant subsection of the EU withdrawal bill. That is a theme that is developing this evening. Those amendments don't alter the substance of the provision. We consider that the drafting of section 10.2 of the bill is more straightforward, clearly emphasises in the outset the positive attention that the domestic courts can have regard to future EU judgment. It's very odd to provide in the negative something need not have regard to something, so I urge the committee to reject those. Tavish Scott's amendment puts me in more of a quandary for two reasons. The first of which is that I think on a general principle to require courts to do things tends to be a difficulty for the courts themselves. They like to have discretion. In addition, the drafting has one or two issues in it with which I would have to take exception. For example, the phrase should be retained devolved EU law rather than retained EU law. I don't want that but to rule it out absolutely at this stage. If Mr Scott will agree to discuss it with me and with officials between now and stage three, I think that we could find a way to toughening what the situation is without necessarily removing every discretion from the court. We would also be able to phrase it in a way that would fit within the bill itself. I'm not unsympathetic to making this happen and to toughening the provision, but I think that we need to do it in a way that works for the bill. I accept the minister's offer to look closely at this as to give effect to what we're trying to achieve here. On that principle and on the basis of a ministerial offer, I will not move the amendment. I need to ask if any other member objects to this particular amendment being withdrawn. I have nobody else to object to that. In that case, I call amendment 110, in the name of Adam Tomkins, who is already debated with amendment 8. Adam Tomkins, do you want to move or not move? The question is whether amendment 110 should be agreed to or all agreed. There will be a division. All those in favour, please raise their hand. Amendment 110, in the name of Jackson Carlaw, is already debated with amendment 58. Jackson Carlaw, do you want to move or not move? I've stuck it out this long, convener, so I will move. He didn't know what to put him off my stride again, that's what it was. The question is that amendment 112 be agreed or all agreed. There will be a division. Those in favour, please raise their hand. Those against, please raise their hand. On amendment 112, there were three, four, eight against the amendment that is therefore not agreed to. I call amendment 113, in the name of Graham Simpson, who is already debated with amendment 71. Graham Simpson, do you want to move or not move? The question is whether amendment 113 be agreed or all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 113, there were three, four, eight against the amendment that is therefore disagreed. I call amendment 114, in the name of Jackson Carlaw, who is already debated with amendment 58. Jackson Carlaw, do you want to move or not move? Move. The question is that amendment 114 be agreed or all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 114, there were three, four, eight against the amendment that is therefore not agreed. The question is that section 10 be agreed or all agreed. Your opposition is noted. That brings the committee consideration of the bill to a close. This evening, we will commence again in the morning in the chamber at 8 am. I thank all members and the minister for their participation this evening, and particularly thank the staff for bearing with us.