 Good morning, and welcome to the third meeting of 2018 of the Environment, Climate Change and Land Reform Committee. Before we move to the first item on the agenda, I wish to remind everyone present to switch off electronic devices, as those may affect the broadcasting system. The first item on the agenda is for the committee to consider whether to take items 4 and 5 in private. Are we all agreed? We are agreed. The first item on the agenda is to take evidence from two panels on the environmental implications for Scotland of the UK weaving the EU. The first panel, I want to welcome back Professor Colin Reid from the University of Dundee, Professor Gavin Little, Professor of Environmental and Public Law and Dr Annalisa Savarecia, lecturer of environmental law at the University of Stirling. Good morning. As you can imagine, we have a series of questions, so we will get straight into those, if that is okay. Can I ask where you believe the UK and Scottish Governments currently are in the process of developing the necessary common frameworks to cover environmental issues post Brexit, and what do you believe needs to happen in the coming year? It is very hard to say where we are. What we are faced with is essentially unfinished business from the devolution settlements from the 1990s that, because there were the EU frameworks in place, we never really thought hard about how we operate to get on a UK basis between the four different administrations. We haven't really sorted out how we deal with the fact that the UK Governments are both the UK departments in terms of international but also the English departments internally. Because of the constraints posed created by the EU frameworks, we have never had to think hard about how we control divergence fragmentation within the UK. So, we have almost sort of got two different dimensions going on just now. One is the short term need to get sorted out environmental and other sectoral frameworks. The other is actually big, long term constitutional issues because whatever happens in the next few years, we are trying to put down arrangements that in 10, 15, 20 years time when Governments may be very different, something that will work for that stage, where we are in terms of the private discussions between the Governments, those of us outside don't know. We had hoped that the debates on the EU withdrawal bill would have given us some thinking of ways forward, but with that, with the amendments delayed until the Lord stage, we're at a loss. I'm at a loss, I shouldn't speak from my colleagues because they're much better informed than I am. I don't think so in that context. Yes, I agree very much with what Professor Reed has said. On the one hand, what we're doing here is reacting, I suppose, in a fairly ad hoc way to what's happening in the Brexit context, but what we're also having to deal with is a pretty important and significant development of the devolution settlement on the hoof, as it were. In that context, the joint communique of the JMC in October is a good starting point, but we shouldn't underestimate the nature and scale of what lies ahead of us because we are, in a sense, engaged in a pretty significant bit of heavy lifting in terms of actual constitutional reform. I second entirely what the colleagues just said and not to repeat the very valid points that they made. I would just like to add that it's important to distinguish between the urgent questions that need to be tackled as soon as possible because there are uncertainties as to what the transition period will entail for this specific subject area. There are urgent decisions that need to be taken ahead of March 2019 regarding the EUTS, regarding the fluorinated gases and the number of issues that are being flagged by a number of colleagues across the country. The longer, medium longer-term decisions are exactly who will be doing what and how. Given the scale of the task at hand, both in the short term and the longer term, how concerned are you about how much work has to be done in a relatively short space of time? I think that it would be appropriate to be concerned, but a great deal depends on the political will and the determination of the four Governments of the UK—or, I suppose, three at the moment because Northern Ireland is without a devolved Government—to roll up their sleeves and do the work that needs to be done, which will be significant in terms of making organisational arrangements but also in terms of developing the degree of political trust and consensus that is going to be necessary to build sustainable and robust constitutional structures. Kate Forbes, you touched on a few issues already. What would you identify as the most critical environmental areas or issues where Scotland should be particularly concerned about ensuring a co-ordinated approach to environmental policy between Scotland and the rest of the UK if you were to sort of create your list of priorities? I mean, I think it's very important to get extremely clear the message that different areas are governed and regulated in different ways today. This is a result of an overlap between international, EU and domestic law measures. Now, every single area needs to be looked at carefully in its own merits because even within the same subject area there are areas that will need to be tackled urgently with Brexit and other areas where issues can pretty much continue as they are. I do not know if you read the evidence that was submitted to the UK Parliament in relation to an inquiry on fluorinated gases and the regulation in the UK post-Brexit. There we had two different EU instruments that were implemented in different ways. One could continue, as usual, with some concerns relating to proper implementation of EU law, but nevertheless the governance apparatus and regulations were there, the other wasn't. It's exactly that exercise that needs to take place. It's really a very large exercise. I know the Scottish Government is in the process of doing this, and I know Geoffrey is in the process of doing this, but it's very hard to tell that here's the list because the list doesn't exist yet. It's being produced and there is clearly a great degree of urgency in producing that list and knowing what to do. I think just to follow that up, there's different scales of urgency in that for some things there's an immediate technical need to put something in place to replace any EU element that's going to be disappearing, but that doesn't necessarily have any particular policy substantive content, whereas there are other areas where politically, socially, economically it's important to have either a united policy or scope for divergence where that's beneficial. As has been said, every area needs to be looked at individually and indeed within each area there may be some points where you do need a common framework for commercial economic interests, but that can operate within a wider policy. I mean, as one example, if you take something like packaging waste, the recycling rate in the different parts of the UK, the target recycling rate could be quite different, but for commercial reasons you might want to have the same rules on the making of packaging, what different, what combination materials you can have in that. So even just in that one little area you may be talking about different frameworks and then you get to the questions, well, who should decide what the common standards are, et cetera, et cetera. Richard Lyle. Yes, good morning. So much to do about Brexit, so little time to do it in. So do the panel have any views on how many common frameworks covering environmental policy areas require to be sorted, revised, updated, improved, established? Yes, thank you. If I may, I believe the decision on frameworks is both political and technical, so various two elements playing out there. So there may be a number of areas where you receive advice in relation to, as we said already, UTS, where needed gases, chemicals, but in the end of the day it's done to politicians to make those political decisions as to how to address this topic. So it's very hard for us to provide an informed guess. For sure there are many areas that need to be addressed. The issue is how you decide to address these issues and that's largely a political decision. I work into this from a very early stage and I'm sure you have views of your own and it would be interesting to tease those out. I welcome the evidence you've given but I'm sure you can go beyond that and outline for us what you think. In that context, when we're talking about frameworks, we have to think quite clearly about what we mean by frameworks. If, for example, we're talking about frameworks in the context of governance structures as opposed to environmental subject areas, you get a slightly different perspective depending on how you approach that issue. If we look at common frameworks in terms of governance structures, in my sense at any rate, the most obvious way of organising common frameworks would be in the context of a statutorily-based system that draws on the basic features of the design that we have already within the European Union for its decision-taking processes. In terms of common framework areas, different subject areas could be divided into perhaps subunits or councils according to ex-officio ministerial remits, rather like the situation that we have at the moment with the European Council of Ministers. You could, for example, have a fisheries and agriculture council, an environment and climate change council and so on, but that's just one suggestion. There are many different ways in which those frameworks could be established. I think that Dr Savarasi is correct to say that fundamentally this is a matter of political organisation. That depends on what you mean by a common framework. Is it a common end result, which you could be achieved by having each administration having complete authority over matter but doing parallel things to begin with, which might well be immediately carrying over the EU rules, or are you talking about there being a common framework that binds the different administrations into the future that they have agreed that together they are going to do that into the future or just for the time being, we're all doing the same thing, and that comes back to the structural issues, I'm afraid. So basically under the situation, we're going to wait for the EU, the EU court, all the different other organisations. Do we really need to have our own or set up a organisation for hundreds of years where we've added in different types of laws last 40 years? Do we need to bother? Do we really need to get uptight? I voted to remain, by the way, but really do we need to get uptight about this? We don't necessarily need to get uptight about it, but we do need to make proper provision to deal with those areas. The reasons for that are in many ways quite plain, because what we're talking about is an area where retained EU law will intersect with the devolved jurisdictions and competencies, and if those areas are to be dealt with appropriately in a structured way, they do require to be structures and processes in place in order to do that. Although I'm personally certainly not in favour of gold plating or setting up grand institutions or anything of that nature, I think that it's useful to think in terms of what the EU currently does in terms of the basic function of those institutions and organisations, and then think to ourselves, well, how can we replicate that within a scaled-down, narrowed-down UK context so that we have effective decision-taking and effective policy-making in those areas? Otherwise, there is the real risk that it could either be ineffective—just not very thorough—in terms of doing the job that it needs to do, and some of the areas—although they're not necessarily particularly controversial—are as issues quite complex, and they will require quite a lot of work to be done to get into the guts of the different subjects and to really understand it and produce good quality policy and good quality law. Some of it, though, may well be the sort of subject matter that, unless it's dealt with within the context of an established structure, could quite easily result in cross-border constitutional politics, which may be appropriate in one context, but from an environmental perspective might deflect away from consideration of what are the environmental issues. For those reasons, and given the weight that obviously attends anything to do with the constitution and the nature of the devolution settlement, I think that we need to have properly constituted statutory structures and processes. If I may ask a brief point, there is also, I believe, a need to be uptight about some things which are really urgent, as I already mentioned. To go back to the example of fluorinated gases, there is an HFC registry that is being managed by the EU presently, allocates quotas to businesses directly within the EU. It will not service the UK in all likelihood after March 2019, so what do you do? This was the concern that was raised by businesses at the hearing before the UK Parliament in December. What do we do? We have spent money to comply with these regulations. In the end of the day, if we are not compliant, we will never be able to export to the EU market again. At the same time, we could become a dump yard for cheap, substandard Chinese products that don't comply with these rules at home. There are a number of issues that need to be tackled urgently, and there is a need to be uptight about those, I would say. I go back to the point that Professor Reid gave, where he talked about common standards and the example that he gave was packaging the plastics. Is it a starting point that the four nations should, at this point, have the same standards in place if we are being compliant with the EU regulation? Therefore, we are not starting with a blank sheet of paper that the four nations should be in that position right now. Those examples, if you accept the starting point, are the current EU regulations. I suppose that the concern that many people have is that we start to see pressure coming on in some of the nations to relax some of the standards and regulations that they are. Is that your starting point, the EU current regulations? We should all be the same, as it was. The starting point is the same, but you could have pressure both ways. One administration wanting higher standards causes trouble for industries, manufacturers and retailers that are wanting to sell across the UK. Or you could have the other way, one administration in favour of deregulation wanting to reduce costs on industry and so on and having lower standards at the other parts so that the UK does not accept that that may happen in two years' time, five years' time, 10, 20 years' time. What is going to happen when those differences do arise? How are we going to say in these matters that all bits of the UK have to be the same, or are we going to say that we need to agree that, or is each part going to be able to go their own way? It is trying to work out a structure for dealing with that. In a sense, we are in a good place to begin, because we are all beginning at the same point rather than trying to come together from different places to agree, but we should try and take advantage of that capital at present that we are in the same place to work out what is going to happen when things get harder in the future. Given the pressures that are on government and so many areas that we Brexit, would it be a realistic view for Governments to be able to agree the status quo and put it in place for a period of time so perhaps the pressure is not as great to try and deal with everything because it is clearly the case that we are not going to be able to? Would that be a realistic proposition to say that in many areas we simply agree the status quo until there is the time to work through these? I think that that is fine. There is a question about if EU issues change to be changed with them during the standstill period, but whether the different elements would agree to that without certainty as to what the future arrangements are going to be, again, that comes back. I am afraid that it is a political decision. The word that you used earlier, trust. Donald Cameron. Professor Little, I think that you have answered my question already, but I just observed that the EU itself provides a model for how this could be done in so far as you have the commission as an enforcement agency of the ECJs, a judicator, you have a number of member states with different priorities. I suppose that my question is how much would you take from that model and if you could take quite a lot from it, do you sense this being as difficult as some might have us believe? Well, I suppose that the amount that one would have to take from the EU model if you were going to to a light on it, I suppose depends to quite a considerable extent on the nature of the Brexit that actually emerges, because if we have a situation where the UK perhaps in terms of a future trade agreement with the EU agrees to comply with much EU environmental law, then yes, there will need to be structures and processes, but they will be focused primarily, much as they are at the moment in some respects, on implementation of EU provisions. But if we are in a situation where there is the so-called hard Brexit and we are not required to be compliant with EU law, then I think that we do have to think about, as I said, I would not be in favour of gold plating some sort of constitutional arrangement, but we do need to have basic mechanisms that ensure first of all effective executive action by government and we need to have a secretariat that can support that, that is independent of the different administrations. There needs to be some sort of adjudicatory mechanism and there needs also to be proper oversight and scrutiny by the different legislatures. As to whether or not that is difficult, I think that again it comes down to this issue of political trust and political consensus. I think that if political trust and consensus can be established across the different governments and parliaments, it shouldn't necessarily be that difficult. I mean it's not to say that it wouldn't be a fairly substantial piece of work, but I don't think that it would be too difficult. The question is, is the trust there? Can consensus be built? Good morning to all. I've got a specific question. I'm not sure where to put it, so I'm going to ask it now. In terms of the emissions trading scheme, which obviously is EU-wide, like all of them, do you have a specific view and a view on how that might be taken forward and how it would interface with the EU? There is a number of things to be said about emission trading schemes and the first is that you don't necessarily need to have one if you don't want one anymore. The emission trading scheme of the European Union has received its shadow criticism over the years, and some of them can be really supported. So there is a first political decision for you to make. Do you want to continue the emission trading after Brexit or not? If you decide to do that, there could be an EU-wide scheme that would probably be the more rational thing to do, but Scotland could have its own emission trading scheme. It's not unheard of. It can happen. As you may have also heard, the EU is in talks with California presently on ways to join its emission trading scheme with that of the European Union, so it was unheard of until recently that subnational entities joined up with the emission trading scheme, but it's not anymore. Now, we don't know where those negotiations will go, but, in principle, Scotland could, at the technical level, do that. The issue is, does it have the constitutional powers to do this? This is another question that goes back to the issues of the evolution that we discussed earlier, and I guess we are in uncharted waters this year. It's one of the many things that the Administrations would have to discuss if Scotland was adamant to continue the emission trading on its own, and the rest of the UK decided not to bother anymore. Do you see a different way forward, like some form of carbon tax that's different to a trading scheme, or does it need to be recognised what contribution to our emissions is? Yes, I completely agree. There needs to be something. If you don't do emission trading anymore, what do you do instead? Because we're talking about a policy tool that tackles presently the largest emitters, the most polluting industries, therefore, there needs to be something. This is one of those areas where we need to be uptight, because as of March 2019, there needs to be absolute certainty as to what will happen to these polluters. So, either you continue with emission trading, try to continue with the status quo for a period of time, and ideally up to 2020, when the present commitment period finishes, and then decide what to do after then. But if you don't do that, a carbon tax will be the obvious replacement, and of course it needs to be engineered in a way that does the same job if not a better job than emission trading in terms of putting the incentives in the right place for these polluters to continue reducing variations, adopting best available technologies and so on. Okay. Let's move us on and look at the principles of the common frameworks that we're talking about at Mark Ruskell. Yeah, thanks. I wondered what your views were on the common principles that have been established through the early GMC communique, and whether you feel those are adequate. Do you have any concerns about what's in there? Is there anything missing? I think that it's a good starting point. It's very much a pragmatic approach, and I think that as things develop, one would hope to see the inclusion of a more principle-based way of thinking. Perhaps, for example, in the context of the creation of what I called in my paper, a governing statute to regulate the system. In that context, it would be possible to start to introduce broad statements of principle or statements of intent in terms of how the different administrations and parliaments propose that the common framework should operate. Ideas such as subsidiarity, precautionary principle and so on, could perhaps be included in that sort of context. I may expand on that point. I believe that in the specific subject area, of course, there are a number of principles that we know as principles of environmental law that come from various different sources, national, EU law, international law, and it's important to realise that they will just not go away with Brexit, but those embedded in EU law may. So it's very important that we look at those EU environmental law principles that we want to carry forward with Brexit, and the Scottish Government has expressed a clear opinion in this connection. The issue is to understand what they mean exactly by that, and the principle of subsidiarity is a very good example, because this is a principle of EU constitutional law. It's not a principle of EU environmental law, so what would be its fate after Brexit, we don't know. I think the way you would look for the polluter-pace principle to be involved in that as well. Yes, and perhaps the polluter-pace principle is a good example. It's important that any of these environmental principles are set against an ambition of a high level of environmental protection, because polluter-pace can, in some circumstances, become well if the polluter is willing to pay, they can put out as much as they want. So it only operates as a principle within the guiding objective of maintaining or achieving a high level of environmental protection. Particular area, and that's trade. We're aware that for the UK Government to establish and re-establish the kind of trading arrangements that we have at the moment within the EU, we're going to need to negotiate potentially up to 36 trade deals with other trading blocks around the world. Do you see particular principles in terms of the way that trade deals are negotiated that need to be reflected within these underlying principles on the common frameworks around trade? I would cite the recent CETA EU trade deal, where it does appear that, at least at the Canadian end, there was quite strong involvement from provincial governments in the eventual position of the Canadian government in that deal. There does seem to be an element there of involvement of devolved administrations and federal governments. The internal workings of the Canadian constitutional arrangement, but in terms of the trade agreements, you are seeing, happily now, in these agreements some references to environmental objectives, environmental principles, making sure that you can't deregulate to undercut environmental standards and so on. So you'd be looking for some such broad principles, broad objectives to be in any trade agreement. It's also worth pointing out that the provisions that are now in the treaty in the functioning of the European Union—articles 191 to 193—were inserted into EU treaty law by the single European Act 1986. The environmental title in that was, of course, largely the creation of the UK government at the time. What we now consider to be key EU principles that were, to a considerable extent, derived from UK policy thinking? I don't believe that many civil society organisations have already pointed out this issue that you raised here. The fact that future trade deals may become a vehicle to open up the UK market to lower standards in terms of environmental protection is as far as products are concerned. That's definitely a concern that I would share, and that's definitely something that needs to be kept on the horizon, for sure. That's, again, a matter of political mandate in the context of those negotiations that are yet to come. How do you believe that a common framework should operate around trade across the UK? How should it involve devolved administrations and citizens' movements and others? I mean, this is one of those interesting opportunities, at least from an academic point of view, to do some comparative constitutional work and see how other federal or regional states deal with this specific matter. We know we have interesting examples, both within and outside the EU. Canada is one of them. Belgium is another. So there is clearly a need there to look at what are the examples that do exist and how the UK may take heed from these examples. Yes, I mean, you've got a spectrum from the traditional UK position, which would be that the central government decides everything and has a completely free hand to do that towards something like the Belgian example, the obvious one, where the different provinces have very strong, say, almost a veto on what's happening. We have to decide where we want to sit on that spectrum. What is the level of involvement by the devolved administrations that is desirable, acceptable and so on? Separately to that, there's the issue of stakeholders' public participation in policy is using the standard mechanism of executive accountability to Parliament adequate to achieve the level of input that we think there should be. It's important just to always keep in the back of one's mind that what we're talking about here are common frameworks that are established to deal with the areas where retained EU law intersects with devolved competence, not more general aspects of trade. John Scott Thank you very much. Can I begin by declaring an interest of someone like it to be affected by the outcomes of all of these discussions as a landowner? Two, can I thank you very much for the preparation of these detailed and elegant papers? I'm much appreciated. I want to ask you about the development of the common frameworks, if I may. What challenges does Scotland in particular face in developing, agreeing and implementing common frameworks? Have we the capacity to do it, for example, given that we haven't had the responsibility in Scotland for doing this, given, as you said earlier, Professor Reid, that this is something that was done by the European Union historically and before that by the UK Administrations and DEFRA? Have we the capacity, for example, and I'll ask you other questions? I think that it varies from sector to sector that in some areas Scotland has a strong base, has the expertise to do it in other areas. We have been, I suspect, fairly reliant on what's happening elsewhere. To the extent that there are standards in areas that haven't been important for the Scottish economy, Scottish industry, and so, understandably, we probably have taken more of a back seat. Initially, if you're talking about just rolling over EU standards, that's not a problem because you can then plan and look ahead to what's going on. If you're going to have joint working within the UK, you can share expertise, either people, groups working together, expert groups working together, or a day factor arrangement, okay? You look after that. You take the lead on this subject, we'll take the lead on this. To the extent that things are rolled over, it may not be an immediate issue, but I think it needs a lot of thought on what's going to happen in the future, where are we going to have to develop our own strategies or work with others to develop them. If I may just add a quick point on that. I think it's important to realise also the capacity building is taking place in London, as well as within the old administrations. Unfortunately, the situation is such that there is a number of governance arrangements that were managed directly by Brussels, and presently, this means that there is an urgent need to do capacity building across the board, not just here. In that context, I think that now is probably the time to start thinking about how a UK-wide secretariat that's independent of the different administrations might usefully operate in the areas in which it might usefully operate. You spoke earlier of political trust, and for self-evident reason at the very least of avoiding duplication of effort, it would be valuable. Is there an obvious and an ordered structure, if you like, that immediately occurs to you as to how, either at a Scottish level, we might develop our capacity for this further work, where divergence is inevitable over time, even if we start from a common position? Is there an obvious structure or framework that you might see that would spring out at you that you could write down for us, either at a UK level or a Scottish level? I'm afraid that there isn't a simple answer to that. I think that a lot depends on working on the basis of the often very good working relationships that there are at the technical, at the front-line level, that there are expert groups that work together, that there are organisations that draw together the different bodies that are across the UK on environmental matters. At the technical level, we are just dealing with that, co-operation is very good, and you can build on those, but the structures for those are different in different areas. Sometimes it is based on some statutory provisions, some statutory arrangements, sometimes it's just ad hoc arrangements, sometimes it's an offshoot of presently European arrangements. So, again, I'm afraid that it's a question of looking at each individual sector and seeing what's already there, what's working well, how far up the policy level that can get before you actually need to take political decisions. Are you optimistic that the political will either exist or will develop for that type of framework to be put in place at a political level to allow the specific detail to be argued out when co-operation already exists? I suspect that, as a matter of primatism and practicality, leaving the experts to get on with as much as everybody is happy with is going to be the way forward, but there will come crunch points and they become part of what we've talked about, this wider constitutional structural issue, because I suspect that the different administrations don't want to give a hostage to fortune, don't want to concede something in one area, even though it may make short-term sense if that scene is creating a precedent for what might happen in the future in more controversial areas. Thank you. Following on from this, we have a session with stakeholders, but I want to touch on their role in this briefly. Have you identified any concerns, or hold any concerns, around a potential scenario where external stakeholders might be concerned that the position that the Scottish Government might want to take around standards within frameworks and try to circumvent the devolution process by going direct to the UK Government to encourage an approach that sees unanimity at a level playing field across the UK? Is that something that you've considered? You are here as well as in many other areas in uncharted waters, so you know that civil society organisations have raised strongly the point about concerns on the enforcement of environmental law post Brexit, and this is an issue that affects all administrations, clearly not only the UK administration now. What will you have after Brexit on this specific point? We really don't know. There's going to be a consultation on this issue. It's going to be, I assume, a very lively consultation because very strong ideas have already been developed in this connection, and Professor Reid has already contributed to this debate. I think that the issue is really one of, again, making the most of a constitutional opportunity that you have here to actually engage in a dialogue as to where the power should lie, who should exercise what powers and when. I think that if you're an interest group, whether it's for higher or lower standards, you're going to apply the pressure to get the decision you want at whatever level that is. It may be at international level, it may be UK level, it may be the devolved level, so you're going to try to manipulate, you're going to argue for the power, the key power to rest at the level where you think you're going to get the best out of it. But it's another factor in this whole issue of developing trust and taking this process forward. Thank you for that. Richard Lyle. I find this very interesting. Can I suggest that everyone's back on the table? I'm right in saying that every year law, passed in the last 40 years, stays online until it's individually dismantled, replaced or agreed with different sections of the UK that we are going to amend it. Am I right in saying that? That's the current situation in the withdrawal bill, subject to the fact that not everything can be carried over. Some of them are going to have to be changed, amended, enhanced, added to in order to simply make them work. Do you think that with the greatest respect to lawyers, we'll have some lawyers going about and saying, we're not in the EU now, so that law doesn't account your honour? We can go back to the law that was passed in 1948. The way the withdrawal bill is currently drafted, that will not be possible, although there are some great areas about how far some of the case law from the Court of Justice of the European Union will continue to have influence. So there may be scope for arguing that although the Court of Justice of the European Union said this actually now, we should take a different line. Thank you very much. Professor Reid, you've been suggested that it's essential for successful operation of the economy and the market for meaningful and meaningful protection and environment to have a co-ordinated approach across the UK. Now some of that governance compliance may come down to the joint ministerial committee to decide on, but specifically what role do you see the Scottish Parliament rather than the Scottish Government having any development and scrutiny of those common frameworks? That comes back to, in a sense, the structural issue. You can have, if the common frameworks are going to be agreed, simply executive-executive, then the role of the Scottish Parliament is going to be to monitor, to hold accountable the Scottish executive for what they are contributing to the discussions. If the common frameworks are a matter for discussion consultation, but ultimately the UK Government decides, then it's very hard to see how the Scottish Parliament is going to have a role in that. If the frameworks are going to have to be agreed between the executives, then the question is, well, how does the Scottish Parliament hold the executive to account either beforehand its negotiating position, what it's going to say in the negotiations, or do you do it afterwards? Do you hold them to account afterwards and say, well, look, this is the agreement that's emerged, this is a common framework that's emerged, we think you were wrong, we want to hold you accountable, and then what happens after that? Can you actually undo the framework or do the different assemblies, parliaments, get together and say that the framework has to be approved by each of the parliaments, each of the assemblies, which maximises the democratic accountability, but obviously complicates matters. As the next stages, you get issues like the Belgium and the Canadian trade thing, where the different assemblies for perhaps, for short term, different political reasons don't agree to something that holds up, something that's been agreed to. There's an argument between efficiency and accountability. Given your work and your experience in this, if you're a crystal ball, what are your expectations? What do you expect to happen? How is the role going to work out for the Scottish Parliament? Can all the committee address that? I find it very hard to predict, because for the past however many years, the extent to which the parliaments have controlled what happens at the EU level has been very limited at present, even in terms of implementing EU measures. If the Scottish Executive agrees that the UK Government is going to legislate, for example on a matter that combines devolved and reserved competence, the Scottish Parliament doesn't really have much say in controlling or holding accountable that decision, doesn't have any say in the delegated legislation that may be made through Westminster. It's a question of, are we simply trying to replicate that fairly hands-off position that the Scottish Parliament has had, or is this being taken as an opportunity to actually increase the level of control accountability for what the executive does in this area? I would actually agree with that assessment. I think it's incredibly hard to predict what's going to happen, especially in relation to the bigger constitutional questions that are on the table, which are an opportunity really to settle bigger issues that go well beyond the remit of this subject area. I think the outcome of that constitutional conversation will affect the sea of risk committee on any other like committee across the UK on the issue of how environmental governance is done after Brexit. Without repeating the same points, I agree very much with that. I think that the Parliament has the opportunity to take the initiative because it's such a fluid situation. The Scottish Parliament has the opportunity to take the initiative on developing how those structures might operate, because it is pretty much a blank canvas at the moment. It's a political vacuum. John Scott, I'm not understanding what you've just said, Dr Severs. The bigger constitutional issues may or may not yet be resolved, but there's got to be a pragmatic approach next year, March next year. Do you have any views on the appropriate mechanisms for agreeing and monitoring common frameworks? From day one, we need to have something in place from day one. What should it be? Clearly presently, you will have to rely on existing mechanisms. There is so much to be addressed that I don't imagine you will have a quick fix solution to this, but definitely being engaged in the conversation initiated by Michael Gove in the context of Traffra is going to be important. Even if Scotland maintains its own schemes for enforcement, as it should because it's a separate legal system after all, the issue is what can be drawn from that conversation that is useful for Scotland in understanding what mechanisms can be put in place, given the fact that presently there is an enforcement machinery that will no longer operate after Brexit. Henry, do you want to come in on that, or are you? Is that covered your position? What battlefield is chosen by the different parties, by the different actors? You could choose a high-profile environmental issue as the one that is seen as being the evil London imposing its power on us, or as being the shiny example of how all the administrations can work together and friend and harmony going forward. There are lots of different battlegrounds. That's a sort of conflict, a battle that may arise, either whichever side of the argument you're on, and the environment offers lots of opportunities for that. Or everybody could just think, oh goodness, we've got to just keep the show on the road, and despite the higher-level political issues, just get on with making practical things work. Your latter point is probably the pragmatic approach that just lets us keep it going as we can from a hand-to-mouth basis, and we'll deal with the constitution as and when. Therefore, just since you're in front of us, could you put on the record your views on the likely number of pieces of secondary legislations, given that that's your field of expertise? Is there any update on that? I have absolutely no idea, because it partly depends on how you divide things up. There are pieces of statutory legislation that are two pages long, and there are ones that are almost a thousand pages long, so depending on how you divide it up, things can be very different. I think collectively we should have acquired an interest in that. Am I living in the Scottish Parliament? I think he's working on a basis of something like maybe a thousand or just one statutory instruments coming up the road. Have you a view on that? I've thought that's not unreasonable estimates, because there will be a lot of minor changes. You could try to do a lot by very general sort of deeming phrases that apply across the board, but that makes the statute book very hard to operate. On the question of enforcement, what mechanism, if there is a UK-wide common framework, what mechanism of enforcement do you think should exist? My own feeling is that there needs to be a statutory scheme that, among other things, makes provision for enforcement. One could see a situation where there could be means of imposing fines through political mechanisms backed up, if need be, at the end of the day by a judgment of the UK Supreme Court. Could I return to the question of principles? As a matter of law, how would you enshrine in Scots law, for example, general principles of EU law, be they subsidiarity or be they environmental principles such as the precautionary principle, the pollutapase and other such? My own view is that there will need to be some sort of governing statute. That governing statute would probably be the most appropriate place to include general principles of that sort. That would provide them, first of all, with a high degree of legal authority, but would also I think be emblematic of the fact, assuming that this legislation was passed by the UK Parliament and also consent granted to it by the devolved legislatures. It would be emblematic of a political consensus around those principles. Do any other members of the panel have a view on that? Both those issues, the enforcement mechanism depends partly on the status of the frameworks. If they are just political frameworks, you wouldn't necessarily want to go around the road of finding and so on. The question is how are you going to hold the different administrations? How are you going to make sure they comply if you impose fines? Where does the money go? Where is it coming from? Is it just circulating in the public sector? There are issues over that. In terms of the role of principles, they need to appear somewhere in legislation if they are going to have an effect. The question is, in what form are they simply things that you have to have regard to? Do you have to expressly show how they are taken into account? Reporting mechanisms such as play a wide and important role in the climate change legislation can be one way of keeping that of making sure that things are monitored, people are complying, they are reporting, if it is public, if it is to the Parliament, you then use the standard political accountability mechanisms rather than creating a whole separate architecture for that, but it all comes back to what is the status, what is the role of the frameworks? Is there enough trust for them to be political agreements or do we want to have formal, legally enforceable matters that create complications and create obstacles for the future when you want to change things? I am trying to pin down an example of an issue that might arise. Say one of the devolved administrations took a different view on, for example, a herbicide, the environmental impact of a herbicide on crops. That somehow fell out with the common frameworks. Could you play that scenario out in your mind? How would we work that out? Under the current situation, if it is a matter of where the UK Government has the power to decide the competence to deal with it, it would simply make the rule, and it is a rule for the UK. If it is a completely devolved matter without a common framework, each administration could do its own thing, so you have the inconsistency, which would cause problems for agriculture, the retail, the food sector and so on. If you have a common framework, the question is, are the administrations actually bound by that? If they are bound by it, is it simply a political agreement? If one administration goes off on its own, there are political consequences, you do not talk to them, it affects other negotiations or are they legally bound to do that? Is the binding legal obligation such that it invalidates the law that the devolved administration has made in the same way as legislation by the Scottish Parliament, the Scottish Executive, that breaches EU law simply is invalid? Or is it a different sort of obligation that somehow they have got to account for what they have done some way? There is a delay in making the law, they have got to go through some extra process or whatever. There are lots of different ways you can do it because a legal obligation could bite in different ways. Which brings us back to the question, are the principles enforceable or not, as a matter of domestic law, and are the constitutional arrangements enforceable or not? These are decisions that are yet to be made. From the EU, are you aware of any international examples of enforcement systems that work quite effectively and might be a good model for the UK to adopt? Not an easy question, I accept. The enforcement of environmental law is a next question not only for the UK, not only within the EU across the board, unfortunately. It is important to stay realistic about this and understand that this is a common challenge that is not only facing you presently. The very contingent situation you are faced with here is that you have a mechanism now that works, could be better, and the issue is to exploit this opportunity too, if you can, make it even better. Now, best practices do exist in various sectors. For example, you look at fisheries. If you are talking about fisheries, you want to look at Norway because Norway has been regarded as a fast mover and as a best example of how to manage your fisheries. However, it depends on the subject area and it is very hard to tell what is the best for everything. I am afraid. Can we drill down a little bit more into the enforcement issue? Could I ask you for your own views on whether there is a place for any enforcement within the devolved administration? It obviously depends on what is going to happen with the frameworks and everything. If so, what would that body be? If it was UK-wide, what body would you see as the most valuable and useful enforcement body? I do not want to imply by this that enforcement is sort of be all and end all. However, if you look at air pollution, we have just done an inquiry on that, for example. Again, this week, there are more concerns about air pollution and we do need to use the old cliche, arm stick, as well as carrot. I think that it is very important and I would like to get more views. I think that one of the things that can usefully be taken from the EU model is the role that the European Commission has in enforcement. If we were to be able to establish us for the common framework areas, a UK-wide secretary that is independent of the different administrations has a statutory duty to uphold and enforce the different provisions in place in those areas. That would be reasonably effective, in all likelihood, and appropriate. However, I think that there also has to be scope for court-based adjudication. I think that there needs to be an independent body that has its funding and staffing guaranteed. If you are thinking about how it is going to be informed, reporting obligations can be very important as a way of making sure that executives keep thinking about their obligations. The ability to receive complaints, not necessarily an obligation to deal with every complaint, but receiving complaints as a form of information of what is happening, is the ability to take issues to the various executives. A lot of the work that the European Commission does just now, the few cases that get to the court are the visible ones, but the number of cases that informally speak to the various member state Governments to say that there seems to be an issue here. It is just that bit of pressure that making Government realise that it has got to fulfil its obligations. Where there are clear legal obligations, you need to have clear legal remedies, but it is this big area of just making Government realise that, hold on, you are not quite doing what you have said, there is a huge area there that will be a big gap with the commission going. The simple fact that you know somebody is looking over your shoulder just makes all the difference. On top of the matter of policing, there is also, of course, the matter of adjudication. I am sure that you have heard Professor McCrory from UCL has for many years advocated for the establishment of an environmental court. Now, do you want an environmental court in Scotland or not? I would say that there is mixed evidence in support of establishing such courts, but it is important to realise that environmental questions, as you know, can be very technical and specific, so having a specialised court has its advantages doubtlessly because we have specialised judges that are only looking at environmental matters. The concern with that is that it is a separate court system, if you like, that may develop case law in jurisprudence that is not necessarily plugged in the holistic system or case law and death as a reason for some concerns in some places. Do you have any opportunity for that to function or a similar body to function on a UK-wide basis? Or would that go to the Supreme Court or it is just views, really, to try and begin to understand where we are? In terms of where matters end up, you have got to think what sort of dispute it is. The Supreme Court is not the place to be deciding the merits of environmental decision standard setting. If you are talking about multifaceted political choices between different administrations, courts are probably not the best for that. What you are wanting is some form of negotiation, arbitration and a clear decision making process for the common framework. Is it all for parties how to agree what happens of all four? Do not agree? Do you have qualified majority voting in some sort? How on earth does that work when you've got such a disparity between the size of the different units and so on? I'm afraid it is all tied together with the nature of the framework. Is the framework one of recommendations that operate at a political level or are you actually creating formal legal obligations, formal legal rules, which each administration has to comply with? Indeed, and that's the sense of it. My question is about supplementing Claudia Beamish's question. It's when we have agreed frameworks and then there's a breach of an agreed framework. Who then adjudicates over that and, given that the Supreme Court you've already said you don't think would be the appropriate place for that to happen, would you be essentially talking about establishing a new court to deal with the post-Brexit Britain and the complications that might flow from that? Where would that sit? Presumably that would sit at a UK level if need be to adjudicate between devolved administrations. I think that it depends what sort of disputes we're talking about if the common framework takes the form of very detailed legal-like rules, then a court can deal with it. If what you're talking about the disagreement is that the various administrations simply can't agree with it, or there's a broad statement of policy and three of the administrations think that the other one is going off the rails, that sort of dispute is definitely not for a court. The more formal, the more precise, the closer it comes to a court. When you're talking about administrations disagreeing between themselves, the chances of there being a superior body to adjudicate seems unlikely. Well, I would add because of the present constitutional arrangements and the legislation that goes with it. In other systems, federal states or regional states, there are specific constitutional arrangements that are enshrined in constitutional laws that can be enforced because they are enforceable by courts. So if there is a dispute between administrations, there is a tribunal where these administrative disputes are taken. Clearly you are not in this position presently in the UK, therefore it's hard to configure this scenario. But in the future, with the necessary political will, you could establish these laws and these courts that do provide this kind of adjudication. If you want. With one or two notable exceptions in this committee where lay people, we couldn't see the problems. I were all long in defining the problems, but it's solutions that we're looking for from you, the constitutional law experts. So solutions would be great for the receive. If you're imagining a situation where there are disputes, as Professor Reid has said, if you have disputes that really crystallise around legal rules and legal issues, then, in my view, a body like the Supreme Court ultimately would be the appropriate and effective decision taker. If you're talking about essentially political disputes between administrations, then I don't think a court would be the appropriate place to try and resolve those. The way to resolve it would be through a pre-agreed voting system, essentially. Clearly, that raises particular difficulties in the context of common frameworks because England, in terms of population, dominates the UK. However, that said, it should not be impossible to develop systems of weighted voting that acknowledge England's position, but also the position of the different devolved administrations. There may also be scope in some areas. That's why I think it is important for the system to work that there needs to be a governing statute establishing those sort of parameters in general terms. There may be some areas where it's agreed that, for example, if something is to happen, there needs to be unanimous agreement. However, those are all political issues that are for politicians to try and grapple with. To go back to that point, the importance of developing a statutory basis is exactly that of providing a clear legal basis for the size of power so that everybody knows who is doing what. If there is a dispute over who is doing what, then there is a clear statutory basis to look at. This goes back to the point I made previously. In my own state of Italy, there is constitutional arrangements, specific laws that provide what the regions do, what the central Italian state does. If there is a dispute, this issue can be brought before administrative courts, and it goes both ways. The central administration can say that Lombardy has acted beyond its constitutional powers and so on, but clearly you don't have this mechanism in the UK presently as a matter of course. This is what I was pointing to. Thank you. The final point, I think, is to Mark Ruskell's. Just going back to trade again, I just wondered where you saw the potential for investor state dispute mechanisms sitting alongside the court arrangements that we might end up with in the UK. How would that interface with a replacement for the ECGA or the Supreme Court? That raises a whole separate issue about the desirability and the role of investor arbitration and so on. What you are talking about there is a very different legal relationship between the two states from the European Union, which you have a much more collective decision making and general rules being made. If you are talking about just the terms of a one-off treaty between the two parties and the role, possibly, of individual investors, to certain things, you are coming back to the wider issue about where does control lie, how far are international agreements going to override the devolution arrangements and so on. I am afraid that it is another area that is not one for an easy answer and an easy solution. I am sorry. Once again, thank you very much for your time this morning. That has been very useful. Certainly, in preparing my evidence, I was very conscious that I wasn't providing solutions. We are all struggling that there are some fundamental big political constitutional decisions to be taken. We can work out the consequences of those, but whether frameworks, agreements, their constitutional arrangements between the different parts of the country, how they are going to work—there are certain big issues about that. Is it going to be political? Is it going to be legal? What are the arrangements going to be? Those are not matters that technicians or lawyers can answer. They have got to be resolved at the higher level. Yes, you can do a lot of pragmatic low-level stuff in the time being, but at some stage, those big questions are going to have to be faced. That said, if anything comes to mind, do you feel free to write to us? Thank you very much for your time again. I am going to suspend briefly for five minutes to allow the panels to change. Welcome back to this meeting of the Environment, Climate Change and Land Reform Committee. We will now take evidence from a panel on stakeholders on the environment implications for Scotland of the UK leaving the EU. I would like to welcome Johnny Hall from NFUS, Isabel Mercer from the RSPB, Andrew Midgway from the Scottish Land and Estates, Robin Parker from WWF Scotland and Daphne Volestari from the Scottish Environment Link. Welcome to you all. Can I ask you where you understand the UK and Scottish Governments to be in developing the common frameworks to cover environmental issues post Brexit? What needs to happen over the coming months? What input, if any, stakeholders are having to that process? I am happy to kick off with that. Certainly, there was a bit of a vacuum to say the least for a considerable period of time, but my understanding speaking to both Westminster and Edinburgh is that the so-called deep dive has now commenced because there has been agreement on a number of principles that would allow the establishment of common frameworks. Importantly, among those principles would be the preservation of the internal UK market, the ability for the UK to negotiate future trade deals, ensuring the UK's commitments to international obligations and the management of common resources. On those principles alone, I understand that now there has been a significant number of meetings of civil servants across the devolws that have started to look at, certainly from our perspective, future agricultural policy, but also an awful lot of the environmental regulation that is currently driven largely by Europe, which has then transposed into UK and Scots law. That is now happening. How long that deep dive will last remains to be seen. I think that it will have to come up for error at least a few times. Where that will then lead in terms of what remains UK level, in terms of commonly agreed framework and what is then allowed to be devolved, remains an unknown quantity, but the sooner we get to that point, the better. Certainly, from our perspective, on all such matters, we have seen an absolute need, including on all manner of environmental legislation and regulation, for commonly agreed frameworks across the UK, but Scotland having the ability to deliver measures that would enable the delivery of that. Andrew Midgill. Thank you, convener, and good morning, everyone. Our understanding is very similar to Johnny's in terms of the extent to which the negotiations have undertaken in terms of the deep dive and the exploration of the issues. The only thing that I would add to it is that my understanding is that the focus of the content of those discussions is on the governance, and it is on how might those arrangements or common frameworks be established between the different constituent parts of the UK rather than the content of the framework. It is thinking about how things work, and if you can sort out how they work, then the other things can be flowed in later. That seems entirely appropriate. The only thing that I would notice is that the UK Government seems to be further ahead on the content, so what I have in mind is thinking about the future of agriculture and rural development policy. We hear very strong messages from the UK Government and the direction of travel that they would like to see policy develop, and at the moment we are assuming that they mean for England. There is work going on in Scotland in those areas in terms of the Scottish Government has appointed its agricultural champions and rural advisers, so that is on-going, but it looks like the UK Government is further ahead. That is a bit of a worry in terms of the ability of the UK Government to corner the conversations that would then subsequently follow. In terms of what opportunity is there for you guys as stakeholders to be engaging in that process at this stage? Is there any? Sorry, I do not want to... I do not want to, but so far I think that there has been more opportunity for engagement than perhaps has appeared to be the case looking from the outside in, but it does need to be worked hard at. You have to knock on doors and make yourself almost awkward, if that is the right expression, annoying. There has not been a genuine willingness from either the Scottish Government or the UK Government to embrace an awful lot of what stakeholders have got to offer into this process, but by our very presences organisations we are here to lobby and try to influence, and that is what I think we are doing, and I think that our inroads are being made. Thank you, convener. I suppose that we are aware similarly of the deep dives. I do not think that we are perhaps as close to the content of those. In terms of common frameworks and opportunities for engagement, we are struggling perhaps because of the nature of the intergovernmental processes that we have in place at the moment. With respect to the joint ministerial committee, we feel that this could be very much improved in terms of transparency and stakeholder engagement. We were discussing with a previous panel before about the recent statements that they have been making about the principles that should guide common frameworks. I think that one of the key principles that was missing is stakeholder engagement. How do we initiate the dialogue about the structures that we will need in the future? That would be something that we would like to see amended, clarified and improved. What are the particular environmental areas that you are concerned about maintaining a co-ordinated approach to environmental policy between Scotland and the rest of the UK, and what are the risks if that does not happen? I recognise that there could be a list as long as your arm, when you are talking about that. What are your main concerns when it comes to the importance of developing a co-ordinated approach with the rest of the UK, and what are the risks that you would identify? I think that it is towards the length of your arm and the end of things. I think that there are a lot of things that need to be part of the common frameworks discussion. I do not want to suggest that that means that there needs to be lots of common frameworks, because, as the previous panel said, you can put lots of issues under one heading or you can have lots of headings and put just one issue under each heading or whatever. Also, to add two other facts to this, you have a very large proportion of Scottish environmental law has some sort of basis in EU law. The figure that you usually get to put on this is about 80 per cent. Another little fact useful to this discussion is that of the 111 areas that the UK Government identified where there is an intersection between EU competence and the devolution settlement, the largest number of those falling in the DEFRA responsibility. That does map over entirely to your committee's responsibilities. There are things in the base area and things in the Department for Transport area that you might be interested in that are part of your responsibility. That points to what there was being a lot. Why is that? It is because a lot of environmental issues are, by their very nature, transboundary issues. They are issues that ignore political boundaries, ignore issues and boundaries that we impose as people. There are also a lot of things that are common resources that we need to manage jointly. You could start putting some very basic principles on what areas need to have joint oversight, and they would be things like where there are transboundary issues, where they need to be jointly managed. You could go on in that way. What is also important to highlight is that you can have different ways of working together. Obviously, the joint ministerial committee has acknowledged the need to work together to manage shared resources. Already, we have different ways of working together across the UK. That is an important element that we should not lose sight of. It is not as if, because we were members of the EU, there was no discussion between the Scottish Government and the UK Government. In our evidence, we put forward a number of examples where there is existing co-ordination working together with all the Governments of the UK. That varies from the very technical, so the work of the JNCC in terms of identifying different species or sites that ought to be protected to the political when it comes to the marine environment, where all the UK Governments came together, had a political statement and then that was reflected in different pieces of legislation in their own domestic law. That is an important element to take into account as well. What we probably need to do is to deliberate on what kind of mechanisms we would need per policy issue or area, which is easier said than done perhaps. Our biggest focus has been around the common agricultural policy. We came out fairly early on after the vote to leave the EU to say that we thought that there was a need for a common framework around food, farming and environment. I recognise that it is not as clear-cut as environmental legislation and that it is a large area that includes a funding mechanism. It is a complicated area and it does not necessarily entirely overlap with the committee, although the committee has a definite interest in it. The reason that we are so focused on it is because the nature of the common agricultural policy, as it stands at the moment, actually has a huge influence on the management of the land, which has a huge influence on the delivery of a range of things that the Scottish Parliament, the Scottish Government, are interested in, specifically around climate change, environmental management and so on. The money that is paid through the common agricultural policy at the moment is a big lever to help deliver those environmental objectives. We came out and said that we thought that there should be a common framework. The risks that we thought there were and the reason that we took that line was that, first of all, it was around the market. If one constituent part of the UK did something radically different to the other parts, would that create problems internally within the UK? We have to acknowledge that there is already divergence. The Scottish Government is entirely right to highlight that, but there is a question mark of how much divergence is acceptable before it becomes a problem. We do not necessarily have a clear view of that. The same sort of arguments apply to thinking about trade relationships when we think about negotiating international trade deals if one part of the UK is doing something entirely different to the rest. Does that create a problem? The third element, and the reason why we thought that the framework would be required in the risk that is associated with it, was around funding. At the moment, we get the proportion of funds around 17 per cent, but we are worried that if we did not have a framework, the funding would be delivered to Scotland through the block grant and that could potentially lead to a reduction in funding that might be available for the land management that we want to see deliver those wider environmental benefits. We have to acknowledge in all this that there are lots of ifs, because the Scottish Government could decide, even with a lower budget, to apportion more to land management if it chose to do so. We just took a more cautious view that maybe the pragmatic approach is to go for a framework to try and safeguard all those things, so it was a cautious approach that we took. More broadly than that, you get into things like the water framework directive, the nitrates directive and so on, where there are activities that could be done in different ways. Sorry, I should clarify. The water framework directive is delivered in different ways at the moment and we have to acknowledge again that there is divergence of implementation of a broad set of policy objectives, but we can live with that. The question then becomes how much divergence is acceptable. The way in which we envisage a common framework is that it provides the envelope, it provides the outer limits that stop there being too much divergence for it to become a problem. I think that another really important point to note that frames the entire conversation about common frameworks is that we must not forget about what future regulatory alignment might be necessary based on the future EU-UK relationship. What areas where we need to develop common frameworks will be hugely circumscribed by the content of the withdrawal agreement and any future trade deal that might appear. However, it is important to build on some of the comments that my colleague Robin made earlier and examine what are the current arrangements that we have and why there has been such strong governance by the EU in environmental legislation. That is because, again, we come back to the point of nature itself being inherently transboundary. Because of that, it has been recognised that a common co-ordinated approach is extremely effective to protect, for instance, habitats and species that cross borders across the UK and the other EU countries. Minimum environmental standards are needed to prevent unfair regulatory competition and erase the bottom on environmental standards. That is very important because those reasons will continue to apply to intra-UK co-operation post-Brexit. It is because of those reasons that there will be a continued need in many policy areas for common frameworks. We have not come up with necessarily a list of the specific priorities where we believe that those areas will definitely need to be agreed. However, we do have some areas where there is a clear need of others. For instance, species and habitats conservation is one of those areas, so site designation and selection criteria, monitoring criteria and protection of transboundary protected areas such as the upper Solway, Firth and Marshes, which cross the English and Scottish border. Those are all clear areas where there will be a continued need for co-operation. As my colleague next to me already touched on water quality, that will be another key area, so river and district catchment management. Marine life is a clear example. Things such as fish stocks, seabirds, whales, porpoces and small cetaceans cross huge vast areas. There will be a clear continued need for co-operation in those areas. I want to go on to the whole issue of co-operation in common frameworks. I echo an awful lot of what Andrew Midgley mentioned. Our priorities are very much in line with the Scottish Government's own priorities in terms of the big three of environmental challenges in terms of land use and land management are climate change, water quality and biodiversity. Rather than shying away from that and seeking to erode or amend or adjust a whole raft of legislation that comes through the birds directive, habitats directive, nitrous directive, water framework directive, we rather see this as a new opportunity to utilise agricultural land management to try and deliver more by way of solution. Andrew Midgley mentioned solutions in the previous panel rather than trying to undermine or change that sort of legislation. Partly because of the internal market issues that Andrew talked about, but equally our ability to trade, our continuing need to trade with the rest of Europe and further afield, will be built on I think more than ever before a transparent and clear ability to deliver on environmental requirements as well as things like animal health and welfare issues, which is the point that Isabel made. I think that the two or three sensitive areas for us at the moment when you do start to look at how things might work in a UK context are clearly around things like pesticides, which was mentioned briefly from a question in the previous panel, that if you started to distort internal UK agricultural trade in that sense, if you were allowed to use certain plant protection products in one part of the UK but not in Scotland for example, that would be a big issue. I think that this is a very vex question of biotechnology and gene editing and things like that, which we can't sort of brush under the carpet because clearly there are doubt-viging views across the UK as well. That is something that we will all have to wrestle with at some point and have a proper and clear open debate about the pros and cons of that and there are many on all sides. The one point that I would finish on rather is a very small example of how under the CAP we have had a diverging approach to things like greening under pillar one of the common agricultural policy whereby it's very particular but nitrogen fixing crops is one of the greening components that individual farmers in Scotland, England, Wales and Northern Ireland could do but the conditions attached in Scotland has meant that actually Scottish farmers have rejected that as an option because of the very stringent requirements placed on the management of those nitrogen fixing crops and that has led to a perverse response instead of us producing more protein crops and so on. We've shied away from that as a consequence because it's no longer a worthwhile activity for farmers in Scotland to do. Therefore, the whole mention of sticks and carrots becomes a really quite an important aspect of all this as well. Okay, thank you. Briefly, Robin Parker. That's what I said earlier and I maybe didn't listen carefully enough to the exact wording of the question but I think it's for all those reasons that common framework that I talked about earlier that common frameworks are very desirable and whether they can be made to happen or necessary or that sort of thing will very much come down to how you see the devolution settlement as it currently stands and the outcome of the withdrawal bill in terms of the maintain framework sort of thing. I think that our starting point for all of this is what's best for the environment and I think that there is one very good environmental reason why it's very important that what we end up with are shared frameworks that are commonly agreed by the different governments of the UK and that's because inevitably if governments have signed up to what the content of those frameworks are they'll be much more invested and bought into delivering those effectively so that the environmental outcomes will be be better delivered because there's a commitment to effective implementation of what's in the common framework. Richard Lyle. I listened intently to what Andrew Isbell and Jonathan were saying and basically that was a long, the same question. I'm not going to ask the question, I asked academics before and I want to get into the point that each of your organisations has relied, discussed and pressured the EU over the last number of years. I'm sure you're all concerned about what's happening in regards to Brexit and the comments about farming, comments about land management, comments about what's happening in your organisation, Isbell. What are your views and are you having discussions with your similar organisations in Northern Ireland, sorry Wales, about how many common frameworks covering environmental policy areas may be required? Andrew, you mentioned numerous, Jonathan, you started to go down a long list also and as I will forward. What work are you now doing to present all your concerns or all the things that you want to see in those common frameworks to the Scottish Government? I'm happy to kick off on that one. We work very closely with our colleagues in the NFU England in Wales, the Ulster Farmers Union and equally with colleagues south of the border in Ireland, the Irish Farms Association as well. As well as working with farming unions across Europe, we still have a Brussels office, so we are still very much taking a co-ordinated approach when we are looking at EU legislation currently, but going forward beyond Brexit, we are very mindful of what sort of regulatory framework and environment agriculture and food production will find itself in in the future. Rather than shying away from that and saying that we need to start to dismantle some of that in any way, I think that pretty much the whole cut-and-paste exercise of the withdrawal bill is the right sort of starting point for us. As I said earlier, I may have said I can't remember, the last thing that we want to do is UK agriculture or Scottish agriculture is have that race to the bottom, which Isabel referred to. We want to maintain those environmental standards, arguably elevate them. Not only that, we see the future direction of CAP and CAP type support as being driven largely, as Michael Gove said at the Oxford Farming Conference, about public funding for public benefit, public good. We don't view that as being a one or the other that you support agricultural businesses to produce food on the one hand or you support land management in the round to deliver environmental benefits. Those two things, if we're smart about it, can actually be brought together. I think that that's a view very much shed by other farming unions across the United Kingdom. Let's get smarter at how we farm, but at the same time let's get smarter at how we then also provide for water quality, climate change, biodiversity and so on. For too longer to the CAP, because of the very nature of those two pillars of the CAP, there's been a big gap between the two that has said that basically we'll support farm incomes over here and I'll let farms become a bit more efficient and invest and so on. On the other hand, we'll pay farmers to do agri-environment management and so on. Really, we need to bring those two things together. What's good for the bottom line of the agricultural business in terms of things like nutrient use and so on is also good for water quality and climate change. Driving efficiencies into agriculture is a way forward rather than worrying about what legislative sticks are required. We need a legislative backstop on a number of fronts without question and we can arguably raise that up in some situations, but I don't think that we're getting too hung up about that. We're more inclined to think, well, how do we encourage better practice, best available technology use and so on, to drive an industry that is the bedrock of the food and drink sector in Scotland but is also responsible for 70 per cent of land used in Scotland? In the dialogue with other farming unions, is there a respect from them for the fact that 17 per cent of the funding should continue to come to Scottish agriculture and is there a respect for the fact that Scottish agriculture is unique in its nature with west-fabred areas? I think that on the second one there is a complete understanding across other parts of the UK that Scotland is significantly different from the rest of the UK, and we've always said that any agricultural policy going forward that works particularly well for Cambridgeshire is a disaster for Scotland. If that's a one-size-fits-all across the UK, deferocentric is the expression that I keep using, well, that's unacceptable. However, we do get support and recognition for that. None of our union colleagues across the UK are saying, no, we need a common approach to the delivery of agricultural policy and schemes and mechanisms and so on, quite the reverse. Michael Gove is now saying that, and we're getting those signals out of deferol all the time. On your very political point of my ad of convergence funding and so on, I think that, without question, there is a disagreement between ourselves and the other farming unions on this, because clearly, even if the Treasury continued to fund agriculture in the UK and rural development in the UK to the same extent as we currently enjoy from the CAP, and if there was any move towards Scotland gaining any greater share than it currently does, then that means that somebody else loses out. I venture to say that our colleagues in Northern Ireland are particularly vociferous about this, because they would be the fundamental area to lose out. Having said that, Michael Gove has committed to figuring that there will be a full review of the whole convergence issue and the allocation of funding across the United Kingdom. Whilst we're less inclined to be worried about what's happening in the immediate past and now, we think that that's critical in terms of setting a baseline for funding allocations from whether it be 2019, 2021 or whenever onwards, so that is a vitally important piece of work. However, as Andrew Gove pointed out, any sort of barnatised approach would be disastrous as well, so I think that we need to tread carefully in that review process, but nevertheless, it's very much welcome. Robin Parker It's going back to Mr Lam's question in terms of how we work with our colleagues across other parts of the UK. On Brexit, the answer is a lot. Is there any number of telephone calls and co-ordination meetings and following what they're up to in Westminster and the like going on? We've come to very identified similar major concerns, similar priorities for issues in the first place in terms of what are the things, the environmental things that are threatened by Brexit? I think that those things are quite the same anywhere in the UK, the basic principles. We do have to do a lot of work to remind our colleagues in London that the way that devolution settlement works in the UK and remind them that there is a great deal of things that are relevant to Brexit that are devolved to the Scottish Parliament and so on. Anyone who's worked with anyone in England, there isn't a good understanding of devolution there. We've all got a job to do in terms of explaining that and hammering home that message constantly. The other thing that I was going to say was that this goes back also to the first question about where we are and the difficulty and the challenge that we face with working with our UK colleagues is that there isn't a clear process for developing common frameworks, for deciding if common frameworks are needed and for us to feed into. If you draw the contrast with how WWF is maybe a good way of thinking about it, where WWF is an organisation that exists in many European countries, so where there's a common framework getting developed for the whole of the EU, there's a very clear transparent process and we know what the next steps and what the next phases are. Organisations like us and we can tell members to the public when is the key moment to lobby your national government, when's the key moment to lobby the European Parliament, when's the key moment that my counterpart lobbyists in Brussels need to be in Henry on the door of the commissioner. We don't have any equivalent to that in the current situation. There isn't a process going forward, so we can have nice meetings, my colleagues will get called in and have a nice meeting with DEFRA, state out all their concerns, we can have a nice meeting with Scottish Government, state what our priorities are and that sort of thing, but it's very hard for us to see how those things are then going to get developed into a common framework and, perhaps most importantly, when conflicts inevitably arise, and that's the challenge, it worked well and there's examples from the past that when things have worked well. A really good example that I may refer to again in evidence is the development of a marine policy statement for the whole of the UK, where all ministers came together, agreed a common approach to marine planning, you then had separate marine acts take place in different parts of the UK, but the challenge would be on topics where there's disagreement and how do those things get resolved, how can we as stakeholders influence those processes, how can you as parliamentarians and your counterpart scrutinise those processes, there are answers to that at the moment. Just to build on some of those points, so you asked about working with UK colleagues on whether we had a list of areas and number of areas where we think there will be needed to be common frameworks developed. We don't have a definitive list. We work very closely with colleagues in all the UK countries, again, to identify common areas of concern about the implications of Brexit and about discussions that we've had with our respective Governments. What we've focused on, because there are so many uncertainties that I mentioned earlier about political and legal uncertainties about where we might need to develop common frameworks, we've instead focused on a list of principles that we think could guide the development of those frameworks, and that's something that we've been working on doing collaboratively across our UK organisations. For instance, something that we were pleased to see in the JMC Communique was this issue of flexibility. A policy framework, yes, to guide, but allowing flexibility to tailor individual implementation legislation and policy to the context, to be that political, environmental and cultural to each country within the UK is, we believe, really key. As Robin mentioned earlier, we think that those common frameworks should be jointly developed and agreed by all four nations and subject to sufficient scrutiny by the relevant legislators when appropriate and, as Daphne mentioned, be subject to appropriate stakeholder consultation. Those are all things that we think are really key to ensuring that common frameworks will have the best outcome for environmental protections. Finally, another one would be creating shared governance arrangements to ensure that any governance gaps that might emerge as a result of losing the oversight and accountability of some EU institutions such as the Court of Justice or the European Commission are jointly tackled effectively between all four Governments. Let's explore the principles for the common frameworks. Mark Ruskell? Yes, I think that Isabel has already touched on some of those, but I wonder if we could get views from across the panel. Isabel mentioned the JMC Communique. What are your views on that Communique? Are there gaps in there? Are there areas that concern you? If you could just explain what those areas are. As I mentioned before, there are a couple of things that we have already touched upon. One is the fact that there is no reference to stakeholder engagement, and that is quite critical. We have not done any such exercise in the past in the UK or in Scotland, so we need to make sure that we take views into account in a thorough, consistent and transparent manner. Unfortunately, the JMC process, which seems to be the main vehicle through which those discussions are happening on an intergovernmental basis, lacks the necessary transparency. It doesn't, as far as we understand, involve any sort of parliamentary oversight or scrutiny, and as such, engaging is not very easy. It's not very easy to engage when you don't know when the meetings are happening or you don't know what the meetings are going to be about, so essentially we find ourselves in the receiving end once there is a decision that is being made, and therefore we play a catch-up game that is not ideal. You may know, for example, that there has been consideration of a complaint to the Arhos committee for the withdrawal bill because it is considered that it potentially is amending environmental legislation. As such, public engagement should have been taken into account, which of course didn't happen. Of course, this is an ongoing process, but if we believe in good governance, we need to have a proper public engagement process in place. The other aspect that we wanted to raise is that it's very great that there is recognition from all sides that we need to commonly manage jointly common resources, but I think that that shouldn't restrict us so much in that any UK frameworks or common frameworks, also with the Republic of Ireland, foreseeably, should set some minimum targets that we want everybody to be compliant with, but that should allow the different administrations to go above and beyond those. This is something that is currently possible under the EU framework, so as long as any Scottish Government initiative doesn't go against EU rules, we are more than welcome to go ahead with that. That is a provision that we would want to maintain in addition to the relevant flexibility for the types of frameworks that we would be looking at. I would like to go back to the issue of trade, which is covered in the JMC communique. As Professor Little said in the last session, there is a question there about to what extent environmental legislation intersects with trade negotiations and discussions. Can I start the panel by asking you to what extent do you believe that environmental and animal health and welfare regulations will be on the table when it comes to trade deals or whether it will be off the table? Let's start with Johnnie. It is very difficult to predict, but, in our opinion, it needs to be absolutely on the table as part of the trade negotiations, because as an agricultural economy in particular and our food and drink sector, the whole issue of provenance, and an awful lot of that is driven by our environmental standards and our environmental management as well as the animal health and welfare issues, becomes almost our unique selling point. We are not going to be operating, I do not think, or able to operate in any sort of market for agricultural and food products where it is about stacking it high, selling it low. That is not where we want to be. We want to retain our standards. We want to be able to arguably improve on those standards so that they are very clear ultimately to the consumer. What is the story behind the products that we grow and rear within Scotland? From the outset, we have had major concerns that any open free trade agreement that is about sucking in effectively cheap imports of food from other parts of the world, which do not operate at the same environmental standards as we currently do, is that so-called race to the bottom, and that is not where we want to be. Whilst you might import food, you are exporting your own responsibility for environmental management. It is quite simple, and that is not a place that certainly Scottish agriculture wants to be. I think that the point that you make and the point that was made by the previous panel is absolutely right. The environmental issues have to be embedded into trade negotiations. It cannot just be about pound shillings and pens and trade flows and balance of payments and so on. It is about the non-financials behind some of those issues as well. It is about the standards to which we produce and the reputation of what we produce. So, just to be clear, you believe that it should be part of the negotiation, but we should have a negotiating stance that leads to increasing and better quality. Yes. Or do you believe that it should be off the table? No, I think that it should be on the table, part of that negotiation, built around the fact that if we are producing and operating to high animal health and welfare standards as environmental standards and that when we go into any trade negotiation, that should be as much a part of the negotiation as looking at the trade flows and the balance sheet of those trade flows in terms of the financials. It is important. If we are to retain and preserve, arguably certainly Scottish Agriculture's USP, is that we are not a stack at high, sell at low agricultural economy that is all around driving down costs, regardless of the impacts on the environment. In terms of the CETA EU trade deal and the current trade deals that are being worked up or gathered with Israel and Korea, how involved has the NFUS been in that? Negligible. In terms of having an influence on that process, we are endeavouring to make as many inroads as we can to the Liam Foxes of the world and some of the statements that he has come out with in recent times. We want clarity and certainty on what the UK Government's position is on some of these issues. Just through the check, can I just take views from the rest of the panel as well about whether you see environmental regulations as being tradable? Are they in this deal or are they wrapped up with deals that are coming forward or not? From an environmental NGO point of view, I would say that we don't want our environmental protections, animal welfare protections, to be compromised by any new trade deals. We feel that if there is going to be a very close trading relationship with the EU, we should be considering the fact that the EU will want guarantees about those same issues, environmental protections and animal health. That will probably limit the extent to which there could be a potential for complete deregulation. The other aspect to take into account is that there has been a trade bill laid in Westminster. As far as we are understanding at the moment, we have not confirmed whether or not that will require any sort of LCM. The assumption is no, because it is considered a reserved issue, but there is a concern among the wider environmental and geo-community about the amount of SIs that this bill includes as well. The relative freedom that it allows ministers without any parliamentary scrutiny to continue with trade deals or re-enact existing ones post Brexit. The other aspect that I would like to highlight, and we are not trade experts, but we are delving into the issue, is that what are the constitutional capacity at the moment of devolved Governments to be involved in this issue and what will be the procedural, the process through which they would be engaged. Again, we come back to the issue of the intergovernmental relations and the mechanisms set up to address those. The Welsh Government has come up with some ideas about how devolved Administrations, Parliaments and Governments could be involved in issues that are in principle reserved but impact on devolved issues. Those would merit some consideration. The other aspect that I would like to highlight is that I have talked a lot about the JMC process. I just want to highlight that the limitations of that process have been highlighted in different committees, not only in the Scottish Parliament but also in Westminster. That is a key institutional issue that we need to address to have the best frameworks in place for the future. To add shortly a couple of things, the first thing to add is to provide another example. Fisheries is another very obvious example. From our point of view, environmental considerations should absolutely be part of the discussion. There is absolutely a threat that environmental issues could be, in theoretically, traded away. The desire is very similar to what Andrew Hull said. We want to see where Scottish seafood can be on the international markets as a very high sustainability product. That will be the selling point. The direction would have to be to push up environmental standards here in Scotland and the UK as part of a seafood trading thing. You can look at, for example, at how environmental issues have been positively pushed as part of trade arrangements and so on. An often overlooked part of the common fisheries policy has been about the global dimension. For example, in the EU and particularly in the UK, we have a huge amount of tunas. There has been work that has gone on in the EU to push up environmental standards globally around those issues. How do those things continue? The other thing that I will come to is that it is also hard to see how environmental issues will not be part of the trade debate. It is very hard to see. The difficult question to think about is where is the intersection between trade and devolution going to be? What is the role of this place? For example, even if you are in the Canada-style trade agreement, the examples that you have already referred to, you would definitely want—if you are the Canadians—to reassurance that any environmental standards that get agreed to as part of that trade agreement and the trade agreement as things currently stand would be made by the UK Government. You would want assurances that those environmental commitments would be delivered on both in England by the UK Government but also in Scotland by the Scottish Government. It creates fundamental questions for the nature of the UK. My understanding of the trade bill that Daphne highlighted is that it will require a legislative consent motion and the current thinking of the Scottish Government is not to grant that. To some extent, for the same reasons as with the withdrawal bill. The trade bill is something that will require this place to think about and require more thought from committees and so on in the Parliament. The Parliament has a couple of areas that it wants to explore. Thank you, convener. I should declare an interest as I have been a member of the NFU. Johnny, the NFU submitted that they thought that a strengthened GMC or an emulated council of ministers could provide better dispute resolution and so on. With that in mind, does that suggest that Scottish interests are best served through the GMC or do you have other suggestions on how the Scottish interests could be best represented? String into some sense that it varies there a wee bit. As things currently stand, I suspect that the GMC approach is what is available. Without anything suddenly lurching away from that, I cannot see any change from that being the case for the foreseeable future. I think that it is about working with what we have got. Certainly that would be our approach in any of this. None of us know how this will pan out in the longer term but the existing structures that we will have to work with. I certainly see going forward the need for, as we are going through the transition beyond 2019 to 2021 or wherever that might be and beyond, that there will be a need for some sort of constitutional governance body to oversee issues of divergence or disagreement across the UK, which is separate maybe from the political process. I am not enough of an expert on those things but clearly as we currently operate under the CAP within Europe, we have a European Commission, we have a European justice system, we have several degrees of audit, too many I think, but they are sort of independent from the political process in many senses. There is a degree of ensuring that member states abide by their obligations and also implement and spend taxpayer funding in the right way and there is an audit trail and so on. There is a question as to how we operate future agricultural policies, future environmental requirements and making sure that there is a consistent approach across the UK. I would not see any problem with that at all. I think that it is an absolute necessity if only for transparency and certainty for the taxpayer interests as much as anything else or society's interests as a whole. How that is constituted is way beyond my pay grade, I am afraid. Just to ask the same question to the rest of the panel but also to reflect on your answer on how the Scottish Parliament would play a role in the scrutiny thereafter. How do you foresee that the Scottish Parliament would be involved? I would support what Johnnie ended in saying in that I suspect that there is a need for a new entity, a body or more than a committee. If I start from my core interests at the moment around the common agricultural policy, what works at the moment? You have the European Commission which effectively sets out through the wider processes in Brussels. You have the commission allocating funding well with the council ministers. The allocation of funding is the establishment of the structures through which any framework works. Under the common agricultural policy, you have the establishment of direct payments regulation. You have the rural development regulation. Under one, something has to be done broadly in line in every member state and in others. There is a greater degree of implementation where you can design your own rural development programmes or down at the region level. Then it is policed. If you do not do what you are meant to do, the commission can come in and look at the degree to which you are adhering to the things that you said you would do. Under the GMC, the GMC can go so far down that route in setting out a broad direction of travel and agreement among the member states, but they immediately get into issues in terms of the waiting that is given to the voices and determining the way forward. You get into questions around policing. Who does that? It cannot be a committee in that way. Does DEFRA do that? If DEFRA does that, that would seem to be a bigger problem because they are also representing England. There is a set of issues there. That leads you down the route of a new entity that is created for the purpose of overseeing the creation and the management of different frameworks. This links with all the other questions about how many and how they might work because there is a practical pragmatic element that we need to take into account. We cannot create so many of these things that each will need their own institution, so it has to be something that is doable. There may be things that can be doable within the member states that do not need to be given to that body, but all that has to be what is happening. We have not created a very clear model yet, but I think that we are in the realms of a separate body. I think that if I'm just not correct on your question, you are alluding really to the governance gaps that we have identified. Some of the functions that we would be losing from withdrawing from the EU would be particularly some of the functions of monitoring, reporting carried out by different EU agencies. The role of the commission in coming in if there is a complaint that a member state or other actor is not implementing the legislation correctly, EU legislation is corrected, and then at the end of that spectrum intervention by the ECJ. Those are a number of functions that we call at least among the environmental and geo is the governance gaps that are emanating. The solution to those partly depends on what will be the final deal with the EU. There is discussion at the moment on going with the commission in the European Parliament, and some are hinting at the fact that the EU may require the UK as a whole to comply with a number of environmental pieces of legislation as part of the deal. We know already from the very beginnings that the EU would require some sort of mechanism to verify that the UK is living up to its own end of the deal. That's the one thing. The second thing for me is the extent and development of the common frameworks. If these are jointly agreed, respecting the devolution settlement, as we would argue, should be the case, you would expect perhaps a number of bodies in the different countries that could deal with those issues, or a joint body that looks at it from a UK for country point of view. There are different models that you could envisage. The first thing would be that some of the functions that are currently carried out by EU bodies, such as the monitoring reporting, could be easily done by agencies such as CEPA, SNH or Equivalent, JNCC or across the UK. The most salient point here is how do we replicate the roles of the commission and the ECJ, because that's the main bit, that supranational bit, that holds everyone equally into account. That's the bit that we would be missing out on. That's why there's been a lot of discussion about whether or not having one UK-wide, but truly UK-wide body would make most sense, so that, let's say, we are in the position where the Scottish Government has been very active on a specific issue, such as waste management going way beyond, but for some reason or other parts of the UK are lagging behind and not respecting those established frameworks. That mechanism would allow the Scottish Government to challenge other Governments and say, well, you're not playing according to the established rules, you need to elevate your ambition. That would be a great asset of the supranational element that we are going to be missing out on. We could replicate it in that sense. We could do that in different ways. Before we mentioned environmental courts, you could have environmental courts set up in Scotland where, let's say, a UK-wide ombudsman or other commission or regulator could refer cases. You could foreseeably have these positions also referred to the Scottish Parliament depending on the issue or the approach that needs to be taken. I think that what we need to be doing at the moment is examining the potential for different solutions. I think that the Scottish Government is looking into doing that. It has set up different subgroups that are looking into that and deliberations are on-going, with a view to producing some report towards the middle of March. It is equally important to take into account what is happening at the UK level with the Secretary of State, having committed to also addressing the governance gap. It will be important that, if we jointly feel that a UK joint supranational type of body is the preferable option for better environmental outcomes, it would be important that any process that is taken by any of the Governments fully involves the others as equal partners rather than seeking to add them at the end of the process. You can tag along if you want, but it has to be jointly developed. It is potentially a really big issue if you create a separate body that operates at a level that is above the devolved power, not necessarily at the UK Government level, you create a potential vacuum of scrutiny. The things that come to mind would come down to how the powers that were used to create the body and the establishment in that process of legislation, presumably with legislative consent—a UK legislation with legislative consent—to enable the Scottish Parliament to scrutinise that body and establish that right at the very beginning so that we do not allow that vacuum, so that this committee can then do its job. I think that we have established that there are two different issues being discussed here. One of them is the need for new and improved intergovernmental working arrangements to develop those common frameworks and agree them. That is where we would definitely call for a new and improved version of the JMC or some sort of council of ministers with increased stakeholder consultations, scrutiny and transparency. I think that there is a clear need for that, as everyone has agreed. On the point of new governance arrangements to tackle post-Brexit governance gaps, as my colleague Daphne has already discussed in some detail, I think that it is quite important to reiterate that this governance gap is very much a spectrum with monitoring and reporting a softer end and enforcement and compliance and ensuring implementation at the other. Because of that complicated nature of the spectrum, it is very unlikely that one solution would tackle all the aspects of the governance gap. That means that, even if, to say, some sort of UK-wide regulatory environmental body was created, it is unlikely that that would be sufficient to tackle the governance gap as a whole. It is highly likely that, in addition to that UK body, if it were created, there would also need to be country-specific solutions in Scotland and the other countries, such as perhaps an environmental court specific to Scotland or an environment commissioner specific to Scotland, as Daphne has already discussed. From an environmental perspective purely, there would be some advantages to a UK-wide body, so particularly looking at pooling of resources and expertise. The environment is an area where data, collation and management are extremely important and can be extremely costly monitoring and reporting can be extremely costly, particularly, for instance, in the marine environment, so there could be some advantages to pooling the expertise in those areas. Do you think that, if we got this right, there is a potential to reduce the instances of the likes of NGOs going to judicial review in these areas? Not that you would necessarily remove that option, but do you think that if we got this pinned down, it could have that advantage, both for the NGO and for the process of government? We think that it would definitely be key to any kind of new body that was created, whether that is the overall UK body or individual solutions in each country. A key part of that should be a mechanism to ensure that civil society can take complaints or issues to that body, for instance, if they believe that there has been a breach of any environment act in that country. I believe that that mechanism could, yes, potentially… The judicial review process can be expensive and very time consuming. Exactly. That would get around the issue of our who's convention implementation in Scotland and ensure that there is a mechanism that is accessible to all and that is not prohibitively expensive. That is wrong, Parker. Can I have one thing? In many senses, land managers in particular are in a transaction process with the taxpayer, which is relatively easy to audit in the fact that farms, crofters and others get paid for certain land management. It is about the inputs and outputs to that. Where we have always struggled is about the outcomes that are associated with those actions and the difference between outputs and outcomes is going to be critical. If we spend X amount on agri-environment schemes in terms of trying to improve our biodiversity, we might measure financially how much we have spent and how many hectares have been involved in some agreements or whatever. We are very poor at saying that we have delivered X or Y or Z for the environment in terms of biodiversity, water quality and so on. That remains a real challenge area, but it is arguably an opportunity here. You think of special protection areas and SACs under the birds directive, habitats directive, the status of our waters under the water framework directive and SNH and SIPA have a clear role to play. However, we know that we have still got challenges on a lot of our designated sites for reaching favourable status and so on or favourable condition of what the right expression is. We will always be pretty good at doing the obvious accounting, but I think that the real challenge for arguably all the institutions in Scotland is to develop processes that actually say, well, have we delivered what we set out to achieve, which is a different question. I offer three points building on other things. The first one on your question convener about JR and, again, you can learn a little bit from the exact—we are in a way trying to replicate some of the roles of the commission. You have seen in what the commission has done, often just the commission's start in that process has been enough to kick-focup the bum, the example of clean air, for example. It started without having to go to the whole legal process, even though that is something that the commission has been able to do. I appreciate Isabel's tidying of the conversation. The first question here is really about what do we do in the—we are developing a common framework. There is a dispute, what do we do, sort of thing. Obviously, in that process, some sort of way of greasing the wheels of toward agreement would be beneficial because we do feel that, in many cases, if something can be agreed, that is going to be beneficial for the environment. The obvious thing that happens if there is a dispute is that you fall back on the devolution settlement and whoever has got the powers to do that thing, that is where things get implemented. Generally, we feel that is not in many areas where it is a common issue, an environmental issue, that is not the ideal thing. The last point, I think that Daphne set out the case very strongly for why there is potentially a need for a common governance body to feel this governance gap that we have highlighted. As Isabel said, maybe in some areas, maybe in other areas, maybe more than one solution, that sort of thing. I think that going back to Finlay Carson's point, there is potentially a really important role for the Parliament's plural in that who owns—if that governance body or that governance body, who is responsible for that? Who is that child of sort of thing? If that becomes a child of one Government sort of thing, then that does not level the playing field. There is a risk that it comes in through to that Government. The better option is that it belongs to the Parliament and that is going to end in better governance solutions. That is a really challenging point to get to. You have to give some credit on this issue to Michael Gove. He has responded very quickly to our concern that we have raised that there is a governance gap here, but what that is in danger of starting a process of is that they are going to move to consultation quite quickly. The question, I think, back into your core, if you share our concern and share our conclusion that a governance solution is beneficial, is very little precedent. You are going to have to work quite hard to work with other parts of the UK to create a different governance solution that is created in a different way. Just to think again of where examples can be learned from, the only example that we really have of a parliamentary-type commissioner role is in things like the children's commissioner model, but that is where their commissioners that belong only to one Parliament are not shared across the Parliament. Donald Cameron. Thank you, convener. Can I refer to my register of interests as a landowner and a farmer and as a member of SLE? I have one specific question, one general question. The specific question is to Johnnie Hall, and it is on the back of something that Andrew Midgley said in respect of future agricultural support, where it was suggested by Mr Midgley that the UK Government is cornering a market, and you yourself have referred to Michael Gove's Oxford speech. Do you believe that the Scottish Government is behind the curve in setting out its views on agricultural support, say, post 2022? I think that it is, but I'll give you for understandable reasons. I would agree with Andrew entirely that deaf people are setting the running, but they're in a position that they've been in the driving seat as UK Government ministers, if you like, to do that. It's allowed, certainly, deaf for thinking to be initiated and to start to creep out, which we haven't seen particularly from Scottish Government in terms of, yes, there's been the agricultural champions and the National Council of Rural Advisers and so on, but that's been very high-level, high-principled notions of where does Scottish agriculture want to be in the future, what does it need to deliver beyond food production alone and so on. We are lagging behind in terms of, well, what is it in terms of specific measures and mechanisms that might actually get us to whatever that vision might be, and that's the level at which deaf forer aren't concluding yet, but at least they've started that sort of phase of work. They are looking at various options relating to how funding can be better allocated to active land managers and farmers, looking more at productivity and innovation measures at the same time as tackling some big environmental challenges as well. They are looking at the whole notion of limiting support payments to agricultural businesses in different ways and how you might recycle that funding and so on. That is, I think, quite constructive thinking. It's really preparing for a new approach beyond the life of the CAP or beyond our time with the CAP, and that chimes more closely with our thinking and what we've been saying about this than some of the messages that have come out of Scottish Government. I think that Scottish Government's themes and principles are right, but they haven't backed them yet in thinking, well, how do we actually start to achieve some of those things? So there's been a lot of about vision and longer term of objectives and so on, but it hasn't translated yet into thinking, well, if we're starting at point A in 2018 or 2017, then how do we get ourselves to point B by 2021? How do we get ourselves to point C by 2024 and so on? I think that that's the real thinking that has to happen now, otherwise we'll get left behind. Can I move on to common frameworks? I appreciate that we've covered a lot of ground on this already, and time is short. If it's briefly as you could, please, could each of the panel outline their headline challenges that Scotland faces in agreeing and implementing common frameworks? How would you sum up? Headlines, please. You've flummoxed them. The memorandum of understanding agreed that the JMC provides, you know, no one could disagree with what's in it, but it's kind of what happens next. What's the process for happening next? To me, that's the biggest challenge, so it's a moving target, what do we feed into? I would echo those thoughts. I would also perhaps flag that perhaps one of the things that we haven't talked about enough today is the role of the Republic of Ireland. Obviously, it's very important for Northern Ireland to have some sort of same standards and so on with the whole island of Ireland, which is also important for environmental issues. When we're talking about frameworks, we also need to realise that a lot of those will not necessarily be UK or Great Britain only. It might be UK, it might be all the British isles, it could even concern some Nordic countries if you're talking about marine, so I think we need to incorporate that type of flexibility in our reflections going forward. I would actually pick up on something that Robin said. I think we're all kind of moving through this together, and so seeing a long way ahead and to the big challenges of implementing is maybe slightly too far ahead, so what I'm looking at at the moment is from the community that came out from the JMC about the definitions of principles, it essentially sets out that common frameworks will be established where they are necessary in order to prevent various things. The debate that needs to be had is what counts as necessary, and I don't think we necessarily know where the thresholds are in some of the topics that we're talking about, which would make something, oh it's okay, we don't need to worry about one in this area, or we're probably likely to go past the threshold and we are going to need one. So what I have in mind is we have a divergence of policy in farming at the moment, the way it's implemented across the UK, and so we can live with divergence, and we implement farm support in different ways, but where would we diverge to such a great extent that it would become a problem? I don't think we necessarily have clarity on where those thresholds are. The same would apply with environmental issues, is that we implement environmental legislation differently. If we think about the water framework directive, landscape designations come to mind, there are various ways that are implemented slightly different ways. So divergence isn't itself necessarily a problem that needs to be solved for a framework, but how do we know when we will diverge too far that it will be a requirement, and I'm not sure we have done the work to work out where that threshold is? I think that building on all the comments that have already been made, we'd probably see one of the biggest stumbling blocks as the inadequacies of the current intergovernmental working arrangements, and the need for new, more transparent, more consultative arrangements that can actually make binding decisions on this is necessary to move forward. I think that the JMC communique from October was very positive in setting some principles, however we were quite concerned about the second communique that came out in December that said that common frameworks were going to be agreed in a minority of areas and it did not establish which areas those might be and whether environment would be included in those. I think that, convener, you touched on it in your opening remarks about the very different agricultural landscape that we have in Scotland, and speaking with a personal interest in hill farming, I think that one area of major concern that I have is the latent, if you like, environmental management of extensive farming systems that we have in Scotland, although there will be an awful lot of focus on intensive land management, looking at some very specific issues across the UK. I think that there's always a danger that the benefits of and future benefits that we can derive both socially and environmentally, as well as economically, from looking after our hills and uplands could be one area where Scotland will need to bat pretty hard going forward because it's not the same issue in other parts of the United Kingdom. I assume that we're way with the support of the NFUS. Absolutely. Thank you. Briefly, Finlay Carson. I feel that there's a consensus that the Scottish Government is somewhere behind the wheel and they're playing catch-up. Would it not be a better scenario where the Scottish Government actually worked closer with the NGOs to find the perfect model to deliver environmental or agricultural policy in Scotland and then use that to ensure that the UK framework fits it, rather than waiting to see what the UK framework is and potentially compromising what the ideal model is in Scotland? It's almost chicken in the egg, but are we getting it in the right order? Should we not be formulating what our ideal model is and using that to inform how the UK framework should be built up? I think that one observation that I would make is that you very quickly said agricultural or environmental policy. I think that we all need to get in the habit of saying that those two things are not mutually exclusive. I think that that's where the Scottish Government could take a lead by developing policy with a whole range of stakeholders and actually saying that we've got a lot of common interest here. If we get this right, we can start to set the agenda. It will certainly be reflective of Scotland's wider needs, but arguably it can then take its place within the UK context as well. I think that, yes, there are initiatives and thinking going on, but, as I said earlier in response to the question from this side, that needs to be taken up and not shalled together. We need something tangible to come up pretty quickly. There's a lot of posturing going on clearly, but that's not getting us to where we need to be. I think that most of the comments that have been made so far about where the UK Government is leading have been in the context of talking about the agriculture environment intersection. I'm not an expert, but I don't know much about agriculture. My UK colleagues also thought that Mr Gove's speech had many welcome elements to it in terms of what he said about agriculture. For purely for the sake of balance, to point out two reasons—well, three reasons why I think that where the Scottish Government is either leading or why I think that there's an impasse just in general. Firstly, I think that an area where the Scottish Government has been quite strong is talking about the environmental principles with a capital P, and that's an area where I think that they've led the UK Government. So, the Scottish Government, Rosanna Cunningham, has been very clear that she's very committed to the environmental principles with a capital P. She wants to see them continue in Scotland. In contrast, the UK Government has pointed out that the withdrawal bill doesn't sort of copy and paste the environmental principles because they're in the treaties in the same way that the withdrawal bill copies and pastes everything else. We're effectively losing the status of the principles as they currently stand. The ideal solution is that we get those environmental principles into that withdrawal bill by the time it goes through. Finally, the more that Scottish interests can say that, that's a red line, but the alternative is that we do this unilaterally and we legislate for the environmental principles in some way on our own in Scotland. However, the most desirable solution that we do is that it happens everywhere. I suppose that the other issue is that the Scottish Government has been saying that the solution here is to membership of the single market or closer to the single market. On the factual basis, if we followed a Norway model, whether you think that's a likely model to happen or not, but if we were to follow the Norway model in terms of our relationship with the EU, we'd have to follow almost all environmental regulation legislation that's developed in the EU. CFP and capatory are slightly differently, but even in the fisheries policy area, Norway follows and actually decides to exceed most fisheries regulation legislation, that sort of thing, in terms of the kind of environmental element to them. The very last note that's escaped me, don't worry. Okay, thank you for that. Just to wrap this up, Claudia Beamish. Thank you, convener. I'd like to turn our minds back very briefly, please, to any real sort of top-line comments on enforcement arrangements, which I appreciate are difficult, because we're not really at all clear what the common framework arrangements will be, but if there are any initial comments that the committee can make, the panel can make, particularly on monitoring arrangements, prosecuting rights and court structures, any comments at all, and if you've already said something just in terms of time, we've noted it, but if anyone wants to comment further, please. We would favour the introduction of environmental courts in Scotland as one of the ways to address the governance gap and provide perhaps the necessary motivation for people to keep to the law. On the monitoring and reporting side, there can be a variety of solutions. Already, and it's important to highlight, we do have UK-wide coordination on some aspects of monitoring and reporting when it's important for scientific and practical purposes, so that the functions of the JNCC. What we probably need to do is assess the types of functions that we will be missing out from leaving the EU, assess which ones we want to maintain in Scotland and across the UK, and then come at an agreement of what would be most practical, better for the environment, and make sense from a wider impact assessment point of view. Presumably, Johnnie Haul and Andrew Midgley, you'd want to see that environment court work more timeously than the land court, which you would both have experience of. I would prefer not to see it have to work very often. This is a very serious point in that our agencies, SNH and SEPA, particularly SEPA, have adopted a very different role, certainly with farmers and land managers over the last three, four, five years. I think that it's been very effective and very positive. It's not been about enforcement and the rule book when there's been breaches and compliance issues, but more about education and advice, so we're taking farmers and land managers out of that confused, non-compliance state rather than criminal state and getting them into that better place, and therefore they're delivering on a whole raft of environmental requirements. I see any legal system as being required, but it should be there as a last resort. The focus and attention should be on good advice and effective strategies to allow remedies to be put in place before we actually start to take people through a court system, which doesn't benefit the environment. Let's try to educate and seek out good practice and best practice, and that's how we should start to gear our environmental measures within future agricultural policy and so on. Just to clarify, I don't think there's any disagreement there, of course. Courts would be the last resort, and what we're talking about is a different accountability bodies that would allow greater awareness of regulatory responsibilities before you resort to that. Indeed, the EU system does exactly that. I think that this is the kind of aspect that we'd want to replicate, but just to highlight that, at the moment, Scotland is not compliant with the Arhys convention in terms of the limitations that it imposes on judicial review, so environmental courts are a solution to an existing issue, but we'll also go some way to helping at the governance aspect, as well as the governance gap. Isabel Mercer. Daphne just touched on it, but linking that to your earlier point about judicial review, an environmental court or environmental commission, one of the key elements is that it would offer merits-based reviews and access to independent expert environmental judges and specialists, which would be key. One final question from John Scott. Thank you, and I declare your interest as a member of NFUS. Can I just ask if anyone can speculate? One of the themes that's developed here is that the Scottish Government needs to come forward with its own plan because we're lagging behind. We have our own unique landscapes, our unique environment, our unique agriculture, and our unique needs. Others have come forward with a plan. NFUS has a plan, Scottish land and estates have a plan, others have plans. Can anyone tell us what they think that the logjam is with the Scottish Government and why they're not coming forward with a plan in the close discussions that you've had with Scottish Government officials, apparently, all of you? Robin Parker. I think that another thing that is causing the impasse and it's the elephant in the room, and I can't believe it, I'm the first person to mention it, but it's the withdrawal bill, and why I think it's understandable that that has created an impasse is because what it says about the development of common frameworks I think is quite important. I'm trying to explain that comment. The issue with how I've heard, I think, as ministers coming to the finance committee and UK Government ministers coming to the finance committee have said with the withdrawal bill that some of the thinking behind it in terms of you take those EU common frameworks effectively, and as I kind of understood it in the way they were describing it, you kind of carral them at the UK level, and they maintain UK competencies until a common framework is developed and agreed between the different Governments and stuff, and then you work out what lies in each place, which sounds fine as long as that's a happy process where everyone agrees and stuff. I think that the legitimate concern is what happens if things aren't agreed and then that thing is carraled away at UK level, whereas if the alternative, where this Parliament seems to be headed, is that the common frameworks go back to the devolved level, and then we work together to create common frameworks to build them up in that way. The regrettable thing here is that that is inevitably—I think the issue is that different people have been able to put forward their vision and their perspective and argue their case sort of thing. That's not the problem, that's not the thing that's missing. The problem is the coming together and negotiating and developing those together. It's in the previous session. I think it's not exactly trust that I'm picking on, I think it's the developing together. The issue is how we manage our shared resources together, so you've got your starting point, different visions, but where does that end up with, because there are differences in those visions? The process and the itty bitty of working out and having disagreements and stuff is important. What I think I'm saying is that the withdrawal bill has stopped that process from really starting in earnest because we're back at fundamental constitutional issues. The urge is that those need to be figured out so that we can get into the meet all of us—stakeholders, parliamentarians, Governments—of negotiating the meet. I think that some of the academics explicitly mentioned the issues with clause 11 in their submissions. Perhaps what we can look forward to is once relevant amendments are submitted in the House of Lords in terms of how we resolve the differences of opinion between Scottish Government and Scottish Parliament as well and the UK Government. I think that once perhaps that issue is resolved, we'll be able to move forward in a much more constructive manner. Where the powers line, all of that, do flavour and colour any discussions that we're having on UK frameworks or common frameworks and the relevant governance bodies. It's not just the Scottish Government that's got concerns, but the Welsh as well. Andrew Midge, did you want to come in briefly? It's just to touch on the issue about the relationships between Governments that have interplay on the way, on the extent to which the Scottish Government has gone forward. It brings up the word that you raised there, which is trust. I get the sense that the Scottish Government hears some of the pronouncements from Westminster and then has to spend a huge amount of time trying to work out what it actually means and then work behind the scenes to get the detail that would enable them to formulate a position. While the Scottish Government isn't necessarily, you know, it doesn't look and appear to be as far ahead in its thinking, there are things that sort of sort of mitigate some of that. There is some sort of reticence to develop the thinking until we know more about the shape of where things might be going and again there's a degree of logic to that, but it's not necessarily stopping defer and the worry is that they're going to shape that conversation if we're not at that table. Can I thank all of you for your time this morning, I think that's been an incredibly useful contribution. We're going to move on to the next item in the agenda. I'm going to suspend briefly to allow the panel to leave. Thank you. Welcome back. We now move to agenda item 3, which is subordinate legislation. Specifically, the electricity works environmental impact assessment Scotland amendment regulations 2017, SSI 2017 forward slash 451. Further details on this negative instrument can be found in paper 3. I ask members if they wish to make any comments on this instrument. Mark Ruskell. Yes, thanks convener. I wouldn't want to significantly delay the statutory instrument passing through Parliament, but I do believe that there are a number of questions and a degree of clarity that's required about this change, particularly in terms of how a significant adverse effect is dealt with in the environmental assessment process. I understand that the minister has indicated his intention to answer questions from the committee and to come before this committee, so I would look to you to see what options there are for us to get more clarity as to what the statutory instrument is intended for, how the process actually works and what we're actually talking about in relation to changes to offshore wind farm consents that may be considered under this simplified regulatory process that's being proposed. Anyone else? Richard Lyle? Yes, I noticed that it's actually four large-scale offshore wind farm projects that have received consent in 2014. October faced serious delays due to the judicial review. Paul Wheelhouse said in his letter that he wants to make it clear that he regrets in the set to the breach of 28-day rule, which ordinarily gives time for the committee to consider the instrument. He acknowledges this far from my ideal. Maybe it's a case that, as my colleagues suggest, Mark Ruskell, we asked the minister along to have a discussion at some point, but I support the instrument. It's worth saying for the record that the minister proactively wrote to the committee to make that offer if he wanted to avail ourselves of the opportunity. Finlay Carson, do you want to say something? No? Claudia Beamish? I would support what Mark Ruskell has said. I think that, in the interests of sustainable development in our marine environment, it would be helpful if the minister could come before the committee, as he has indeed offered, because it's an issue of the balance and appropriateness of environmental protection and the analysis of that, coupled with our climate change targets and how we take those forward in terms of offshore wind. I think that it's a very important issue, and there is public interest in this, so I think that it would be helpful for the minister to come before us. I don't want to delay any instrument there. The sense that I get from the committees that we want to write to the minister and invite him to come along and answer the valid questions that are being raised here today, but that we don't wish to make any recommendations in relation to the instrument at this stage. Is that the case? We agree on that. Thank you for that. At the next meeting of the committee on 30 January, we would expect to consider oral evidence from the Scottish Association for Marine Science on its report on the environmental impact of salmon farming. As agreed earlier, we'll now move into private session. I ask that the public gallery be clear as the public part of the meeting is closed.