 I welcome to the 7th meeting of the Equality and Human Rights Committee. Can I make the usual request that electronic devices be switched on to silent and off the desk? Agenda item 1 is a decision on taking business in private. My request to the committee is to consider taking agenda item 3 in private. Are we agreed? Yes. Agenda item 2 is the UK withdrawal from the European Union legal continuity. Available in Scotland Bill, scrutiny. With us this morning is Tobias Lock. You will know that last week the Scottish government introduced the EU continuity bill to Parliament and that Parliament has agree to have to the bill as an emergency bill. Yesterday the bill completed stage i one of its consideration in the chamber. Stage two amendments to the bill will be Brandon will be considered by the finance and Constitution Committee next week and MSP should note the deadline. For that, it is 2pm tomorrow Friday 9 March. Sechfen 5 amendment seithio gan y cyffredineth o gyda'r llifffodus ei eu chatr ymddian�au am twfyniadau cerddur yn Ffaut-Lawg, ac efallai roedd eich cyfrifyddau sy'n ydym ni fod yw, lle mae'r gyrraedd y byd gan hynny. Gwetheb, mae'r eu cyffredinydd yn gyd yn g Harmoniau'r Sreifedd fydd yn cael ei gwirio'r cyffredineth o beth ar liedd yn yr adwyd i eich cyfrifyddau i'r cyffredinydd a chynghwch â gweld cyffredinedd, ac mae'n iawn honno fydd yr iawn, ac ymyddai'ch cyffredineddhychwan â'r byd i gyfroedd o'r Cymru i gael ei ddeithas am hyn sy'n fanaf i gael eu cyfroedd i fynd i gael ei gael ei gael eu cyfroedd o bobl yn gael y Dyn droi gyfroeddюol a ddaredd o gael ei gael eu cyfroedd o'r cyfroedd o'r cyfroedd a ddaredd o'r cyfroedd o'r cyfroedd o bobl i gael eu gael e'n gael ei cwnod ar y logo cymyniad yr unrhyw nid oedd teimlo ydym i gael ei ddeithas i gael eu cynhyrchu i'r cymryd mewn baith ddod cynnynig oeddu Cymru i perioedd y parbu panion ac yn gyfleoedd cyfrifesol gyda i lefineisio'r susi fod y cyfrifesol. Fyddwn i ddweud ddaeth gyrfaithus o'r prysol o'r prysol sy'n amgylchegol aglubith? The very first session of the topic in 2016 we heard from Tobias Locke, of the University of Edinburgh on the implication of Brexit. We are very happy to have Tobias back at committee today, but I know your time is very tight this morning because you are going from this committee committee to the EU culture tourism Europe and external relations committee. We are very grateful that you could fit some time in today's testimony. Next week, we will hear from Minister Mike Russell and we should direct some of the political questions, but this morning, Tobias, I'm delighted to have you. We are hoping that you will have a brief open-end statement. Yes, thank you. Thank you for inviting me today. I just thought I would briefly run i ddim yn ei wneud o'r cymryd ar y cyfroedd gyda'r cyllid y bydd y ddweud o'r eurwyr ffwrdd ddryg yn amddangos ac yn cyfryd y gwirioneddur ar y bydd y bydd y bydd y bydd yn ei gweithio'r cymryd gyrsgol yn eirwyr. Ond, mae'r cyfryd yn ei wneud yn ei wneud o'r cyfryd o'r cyfryd o'r cyfryd, ac yn ei wneud a'r cyfryd o'r cyfryd o'r cyfryd, ond ond mae'n ei wneud o'r cyfryd o'r cyfryd, ond ond union law. Felly, mae'n ddweud yw'r eu actau, eu legisl Bund yw'r llyfr yw'r llyfr i'r bêisysfydd a ychydig sydd yn cael ei ddweud yn fawr am gyfodol i'r llyfr ffordd yn Llyfrgell i'r llyfr, ac ydw'r llyfr yn llyfrol i'r llyfr yn Llyfrgell yw'r llyfr, ac mae'n ddweud yn sgolwll i'r llyfr i'r llyfr i'r llyfr i'r llyfr i'r llyfr i'r llyfr i'r llyfr i'r llyfr i'r llyfr. Mae'r ll memeshau yn dyfodol yn ôl i fynd i'r llesaf ar y llesafiaeth... ... rydych chi gyrddion yn y llesafiaeth yno yn rhyfiau gymryd �fai... ... ar y llesafiaeth a'r Leyddio Iem Won i'r dros, oherwydd wrth y llesafiaeth... ... rhedeg yn unrhyw o credu ar y llesafiaeth... ... gallwn i tan iawn o feithio cyflwyllus eu defnyddio... ... i fynd i'r llesafiaeth yna, yn y llesafiaeth yno... ... yn unrhyw nhw'r llesafiaeth, yn unrhyw nhw'r llesafiaeth, yna'u amser... Felly mae'r prosesau yn cael ei gynnig o'r cyd-dwylliant. Felly mae'r reitio'r gael amser a'r Articles 47 o'r gael amser, sy'n gael amser o'r gael amser o'r gael amser o'r Gael amser yma. Mae'n gwybod am y botwch. Mae'r gael mae'r gael o'r gael o'r gael o'r gael o'r gael o'r gael, a'r cyd-dwylliant yn y dymestig lawr. Mae'r gael o'r gael o'r primasiynau i ew lawr, ac mae'n ychydig i'r cerd o'r cyd-dwylliant to lead to the disapplication, a non-application of an act of the Westminster Parliament, which is a remedy that doesn't exist under a domestic UK law at all. The best you can get under the Human Rights Act is a declaration of incompatibility, which doesn't have any immediate legal effects on the case. The EU withdrawal bill—of course, in the Scottish context, we've got section 29 of the Scotland act, which does not allow this Parliament to act in a way that is a'r llwyddonau hyn yn cael ei ddweud yr effeithio i'r ddadeu gallu Llywodraeth. Felly, dydyn nhw'r ddigon o ffath o Llywodraeth, ac mae'n dywed o ffath o hwnnw yng ngwylliant ac mae'r llwyddonau hyn yn ei ddweud. Aeth yw'r wyfyrd byddoch i'r llwyddon nhw, mae'r wyfyrd yn gallu ddweud y llwyddonau a fydd yn cyfweliad ei ddweud erioed, Yn seat yw, mae oherwydd mae'r cigion vessel gennwys mawrун, mawrЗдurd ar gyfer Gwyrdyllöll. Mae'r dashboard o'r cygaing ar enaw ni'n hawl yma. Mypow am Навr Rodd thaw hi weithiwch rhwngiddor cyllid yn drhydfart yn 2009, am y gynedd y Gwyrdd y mawr yw pen poację, erion eraill o Gwyrdd yma yn bydd o gyfan gyllid Cwrt of Justice, largely to the same effect as charter rights. So the EU withdrawal bill incorporates those, but it doesn't incorporate the charter, which is slightly problematic because at first we don't know whether the charter and the general principles are identical. They probably aren't. I think the charter develops fundamental rights a little bit, at least. And secondly, it leads to a degree of legal uncertainty if you're relying on unwritten rights rather than written ones if you have them available. Another thing that the EU withdrawal bill does is it excludes the possibility to challenge EU law, EU legislation that has been retained on the basis of the charter or on the basis of fundamental rights. So it can't, as soon as you could have a situation where you've got an EU regulation after that is enforced now, it is transformed into domestic law by virtue of the EU withdrawal bill. After that, the European Court of Justice comes along and says, well, actually this was not valid because something was incompatible with charter rights. It would still be unchallangable in the UK legal order. And the EU withdrawal bill does this as a general rule, so these can't be challenged. But what's more important is actually that the EU withdrawal bill expressly says there cannot be a cause of action, a right of action on the basis of the general principles of EU law that is on the basis of any EU fundamental rights. So their role is now confined or will be confined to helping with the interpretation of EU regulations, EU directives that have been made part of domestic law by virtue of the EU withdrawal bill, this kind of retained EU law. So it's a much narrower role for these fundamental rights. Now the continuity bill takes a different approach in many of these cases. I mean, obviously it expressly incorporates the charter and it also says that the charter can give a right of action, which is important because that makes a material difference. He can go to court and say, look, I believe Scottish authority was acting within the scope of EU law here, was implementing what is retained EU law here and in doing so they violated my fundamental rights under the charter and you've got a case, whereas under the EU withdrawal bill this would not be possible. This approach would not work. You'd have to find some other hook, say the human rights act or something else in order to go ahead. I think that that's where I'll leave it for now if that is okay. Thank you very much. Some very technical aspects in there, but we hope that we can interrogate some of them as we go on this morning. I'm going to kick off with Jamie Greene. Thank you, convener, and good morning, device. Thank you for that opening statement. It's very helpful. It's, as you say, hugely technical and legal matters. Your expertise is appreciated. I do get an impression from the comments that you made. My reading of the way that you present that information is that your tone as such is not overly positive about the UK's EU withdrawal bill. Do you have a view on whether you think it is adequate in terms of protecting equalities in human rights in the UK in any part of it? Well, I think the EU withdrawal bill could do better by doing two things. I think it should ideally incorporate the chart to simply to create a greater degree of legal certainty. Otherwise, we will see endless... I mean, it's good news for lawyers, of course, legal uncertainty, but for the rest of the population, it's probably not so good. We will see endless argument in court as to whether a specific right was accepted as a general principle of EU law at the time of exit day, which is the crucial point in time under the EU withdrawal bill or not. It's not that easy to do that because obviously the Court of Justice of the EU has stopped referring to the general principles of EU law when the charter came in because they had a written document. So, there is a legal certainty point more than anything else. Of course, excluding the right of action means that in certain situations people who would have a remedy now won't have one in the future. That is a political choice. I mean, there is no obligation, and I don't think there will be an obligation under any agreement with the EU to continue to guarantee those rights, but it's just from a human rights perspective it's not optimal. Okay. I appreciate that answer. So, in that respect, given that the EU withdrawal bill is unlikely to change in its policy, if the Scottish continuity bill was to pass and adopt the charter fundamental rights, could we see a situation where the EU withdrawal bill in Westminster passes without the adoption of the charter and the Scottish bill passes with the adoption of the charter? Where would that leave us in terms of the constitutional situation with regards to having two parallel legal systems in a single member state or sovereign state whereby one is adopting the charter and the other is not? What sort of conflict might that arise? Well, I mean, it is, of course, a possibility. As the two bills currently stand, as they were introduced, if they are adopted as they are, that will be the consequence. The problem is, I think—and that is a problem probably with the continuity bill as a bill as such—it just adds another layer of complexity to the whole post-Brexit legal landscape. So, what I mean by this is, if we look at human rights, what we will have here in Scotland, from a Scottish perspective, we will have the Human Rights Act that will continue to exist as it does. We will have general principles of EU law as incorporated by the EU withdrawal bill. Those general principles will be applicable to whatever is our reserved matters, broadly speaking. But these general principles, first of all, we don't know exactly what their content is. We have quite a good guess. We can make a good guess, but we don't know exactly what their content is. And secondly, they don't give a right of action. And then we will have, as far as devolved or retained in brackets devolved EU law is concerned under the continuity bill, we will have the charter, as well as the general principles, and they can give a right of action. And the problem is, of course, that individual cases, real-life scenarios, don't align themselves with the division of competences between the Scottish Parliament and the Westminster Parliament. So, you could have a situation where you've got an individual who's got a human rights problem, and part of his or her claim is based on reserved law. Part of her claim is based on devolved law, and so the case will actually split. So, you might get a decision by a court that says, well, as far as this part of the claim is concerned, we can't give you a remedy as far as that part of the claim is concerned because it was a reserved matter, something to do with housing, perhaps, or whatever. We can apply the charter, and we can also give you a grant you a right of action. So, that is already happening in the UK legal order simply because the charter does not apply in every type of circumstance. It only applies when the Member State is implementing EU law. So, we've already got that situation in theory, and there are places where that has happened, but here we would be adding a third layer, so to speak, and that just makes it more complex. Understood. Thank you. Is there any precedence of any other non-EU countries adopting the EU charter? Not that I'm aware of, no. So, when the UK leaves the European Union and if Scotland passes the spell in two weeks' time, it will be a non-EU member state, but it will have incorporated the EU charter fundamental rights into its domestic law. Will that be the case? It will have incorporated the charter in so far as retained EU law is concerned. I suppose that the idea is that this body of retained EU law will be shrinking over time because you will have new measures in environmental matters, you will have new measures in agricultural matters, and so on, and so on, and they will no longer be retained EU law, and so the charter won't apply to them. So, whatever is changed, whatever will have been repealed, will be outwith the scope of the charter. So, the charter will preside over a shrinking body of law, but of course, as you know with the way parliaments and politics work, even in 20 or 30 years' time, there will still be some measures that will be part of that category of law, and the charter would still apply to them. Now, whether there will be a charter case is a completely different matter, because most of these matters are rather technical. They don't raise human rights issues, but it could happen. Just to pick up on your point there, that is on the assumption that this Parliament repeals or indeed introduces domestic law, which would then supersede those EU laws. That is an unknown, because those would be decisions made by the Parliament in the future years. Exactly. Obviously, this Parliament could decide to just sit still and not change anything. That is true. Do you see any difficulties arising from the intention of the continuity bill coming into force in Scotland in relation to the fact that there will be two parallel systems in terms of, for example, right of action? Or will it create any legal uncertainties or, indeed, any other additional problems that you think might arise? Part of our probing today is to look at all aspects, both the positive and the potential negative. I wonder if you had any views on that that you could share with us. There will be an issue if the EU withdrawal bill, the Westminster bill, extends to devolved matters as well. If the Westminster bill were amended to say it doesn't apply to Scotland or something like that to take out whatever bits the continuity bill covers, at least you can create better legal uncertainties than if you have two bills claiming to be regulating the same or two acts claiming to be regulating the same aspects, in which case there will be a degree of legal uncertainty, I think. I have some other questions for Angavitch, but we'll have to come back to it later. Gail, do you want to come in and be a quick supplementary? Yeah, I just wanted to ask, good morning. Jamie Greene asked about countries that are not in the EU, adopted in the European Charter. What about countries that are in EFTA? The EFTA and the EIA agreement do not contain a human rights charter. It is simply for historic reasons because they predate even early attempts at putting together a charter. So, they don't have it and they protect fundamental rights in accordance with their own systems, so they haven't incorporated the charter. I mean, one thing I should perhaps add on that if that is of interest to the committee. Of course, we've got the other European system, the ECHR system, and there is a tendency that the European Court of Human Rights will look at the charter for inspiration, if you will, simply because the charter, where it mirrors the convention, has been a little bit updated. So, as I mentioned that the right to an effective remedy before in article 6 of the convention, it is confined to private law disputes and criminal matters, so it doesn't cover purely administrative issues. And article 47 of the charter gets rid of this anomaly, if you want. Similar, another example would be that the convention doesn't protect the right to conscientious objection. It's an historic issue, of course, because it was adopted in 1950 or drafted in the early 50s, whereas the charter recognises that expressly. So, it is a slightly more updated understanding of convention rights, and the European Court of Human Rights has, in the past, said whenever it adopted a relatively progressive interpretation of the convention, or let's look at the charter, look at what they think is the proper reading of this provision in order to move the law forward. So, in that sense, indirectly there are countries outside the EU that are covered by certain aspects of the charter, but it's very indirectly, simply through an interpretation of the European Convention on Human Rights in light of the charter. And if, when we leave the EU, if the UK was to bring forward its own bill of human rights, do you think it would mirror the charter, or are there any aspects that should be updated? I could imagine that it will mirror or it will update certain aspects of the convention, of civil and political rights. I am not sure whether the UK would adopt a chapter on socio-economic rights, for instance, as the charter has. It might have stronger protections than the charter in procedural rights, but that is just guessing. I appreciate that, thank you. I'm going to bring Mary in now, because I know that Mary's got a different area to focus on, but it's still focused on rights, and then I'll come back to Jamie on Fragavitch. Is that okay, Mary? Thank you, convener, and good morning, Tobias. I wanted to just follow on from the question that Gail has just asked you about the UK Government introducing its own bill of rights, if you like. If the continuity bill passes in this Parliament in a couple of weeks time, and we sign up to the charter, and after Brexit, the UK introduces a bill of rights, where does that leave us? That's a good question. Bill of rights for the whole of the UK would probably cover both the devolved authorities and devolved parliaments and the UK level. I would assume that the Scotland Act would be amended to the bit on the human rights act would be replaced by whatever, say, UK Bill of Rights or whatever it would be called. Would this make a difference to the continuity bill? Well, not immediately, of course. The charter, as I said before, will only apply to those bits of EU law that have been retained. It wouldn't wreck this bill, in other words. The only thing it might add is an additional layer of rights that would have to be complied with were Scottish ministers to amend bits of retained EU law. Were the Scottish Parliament to decide if it wanted to change bits of retained EU law? In that sense, there might be an overlap, but I don't think that there would be an actual problem here. Okay, that's helpful. The other issue that I wanted to ask you about was employment legislation, because much of our employment legislation has come from Europe. If the continuity bill passes, the current employment legislation that comes from Europe will be part of our law in Scotland? I'm not so sure about that, because the continuity bill only saves those bits of EU law that would be devolved, or that the Scottish Parliament would have competence to legislate on were it not for section 29. I think that most employment legislation would not be covered because it's reserved. If, after our withdrawal from Brexit, I appreciate the spice paper that we have and the research that has been done that says that any changes to employment law are likely to be slow and incremental, but if there was any slippage in employment law, if the UK Government decided to do something that would fundamentally change a right and a protection that we currently have, in Scotland, could we do anything to protect those rights to stop them being taken away? As far as I can tell, no, under the current devolution settlement, I would be at with the competence of the Scottish Parliament. No one in Scotland would have any right of challenge then, no? Well, if it were done by ministers, it could bring a judicial review, because all the powers under the EU withdrawal bill—because they're secondary legislation, they're open to challenge—but if it was done by an act of the Westminster Parliament, there wouldn't be much that anyone could do about it. Jamie, do you want to come back in? Yes, thank you very much. It's a fascinating subject. Just on picking you up on a comment that you just made, Tobias, you said that it would be outwith the competence of the devolution settlement for this Parliament to stop the reduction or withdrawal of any human rights that the UK Government introduced in any future bills. Is that what you said, just to clarify? Well, when it comes to employment rights, the Scottish Parliament would not be able to reintroduce rights that are now—let's just take a concrete example—the right to annual leave under the working time regulations 1998 falls within—is a reserved matter. And if the UK Government said—and it's also retained EU law or will be retained EU law under the EU withdrawal bill—so the UK Government might say, look, we'd like to loosen this right or make it subject to additional qualifications and introduce legislation to that effect, then the Scottish Government could not—at the Scottish Parliament could not introduce legislation to counter that. That's what I mean. Okay, that's very helpful. Thank you. And that leads me on nicely to my next question in the act, in part 2 of the act, specifically sections 2 and 3. It talks about a number of terms around types of legislation. It uses the terms—there are four different terms used on this page. It's page 2 of the bill. It's helpful. Devolved EU-derived domestic legislation is the first one. EU-derived domestic legislation is the second. Devolved direct EU legislation is the third and direct EU legislation is the fourth. Do you have any understanding or could help the committee understand the difference between those four terms, because I'm struggling? Okay, I can try. So section 2 addresses EU-derived domestic legislation, which is basically—it's the same terminology as is used in the EU withdrawal bill. So sections 2, 3 and 4 are largely copy-and-paste exercises. The only difference in the end is that there's a devolved, as an adjective, put in front, simply to make clear that this relates to devolved matters only. So what EU-derived domestic legislation is supposed to mean in section 2 is that there are mainly EU directives that have been implemented. Under its UK practice under the European Communities Act 1972, usually when an EU directive comes down, a member state has a couple of months to change its law in order to make it compliant. The UK has adopted the approach that all of this is done by ministers by way of secondary legislation. The basis for that is in the European Communities Act. There are tons of statutory instruments in both Scottish statutory instruments and Westminster ones that have implemented EU directives. There are the working time regulations that I've just mentioned. There is the environmental impact assessment regulations, Brackard Scotland, because that's a devolved matter, and so on and so on. There are thousands of them. The reason why we need section 2 after Brexit is because the European Communities Act will be repealed by the EU withdrawal bill. The European Communities Act is the hook in legislation from which all of these statutory instruments are hanging. If the hook is cut off, they will disappear, legally speaking. We need a new hook. That new hook is section 2 of the EU withdrawal bill. For our purposes here, for devolved statutory instruments, it will be section 2 of the continuity bill. The section 2 in the Scottish continuity bill, how does that differ from the UK's EU withdrawal bill? Or is it just copy-paste? It doesn't differ greatly. The only difference is that, at the end, for the purposes of this section, EU-derived domestic legislation is devolved if and to the extent that it makes provision that it is in the legislative competence of the Scottish Parliament. It's an aspect of section 2 of the EU withdrawal, but it's the devolved bit. That word devolved is the key here, because it specifically relates to the approach that this bill takes. Who defines what is devolved and what is not? Is that just in relevance to the Scotland Act, or are there other definitions of how you decide what is devolved or what is not? If you look at this definition, it seems to make an implied reference to the competence of the Scottish Parliament. The test that we would have to conduct with each and every instrument is if this were adopted now from scratch, would it be within the competence of the Scottish Parliament to do so or not, ignoring the limitations arising from EU law? In that sense, the way to define whether something is devolved or reserved is whether it would fall within the legislative competence of the Scottish Parliament in whichever way that competence is generally assured. I want to just clear something up. Schedule 5 of the Scotland Act, which lists reserved powers, the normal way of determining whether something's reserved or devolved is if it's not on the reserved powers list, is therefore devolved. Is that your interpretation? I just wanted to make sure. Jamie. It's a very short section in the bill, which is in part 2 section 8. There are two clauses there. I just wondered if you could walk us through those two short sentences around what Frankiewicz means in relation to this Scottish continuity bill. You can also find what is here in section 8.1. You can find in the EU withdrawal bill, I believe, in Schedule 1. It says that there is no right in Scots law on or after exit date to damages in accordance with the rule in Frankiewicz. That is cryptic if you don't know what the rule in Frankiewicz is. The European Court of Justice introduced a new remedy into EU law in the early 1990s. That is a remedy to state liability. The state has to pay damages if the member state has violated or breached EU law and if that then caused somebody a loss. The test is a sufficiently serious breach. It's quite a high hurdle. It's very difficult to show in any event the clause 8 says that after Brexit there shall be no claim under this rule. It differs slightly from the approach in the EU withdrawal bill because it says here that Frankiewicz damages can still be claimed in relation to any action that the crew before Brexit date, whereas the EU withdrawal bill won't admit any more of those actions after exit day. There's a slight difference. Generally speaking, right to state liability, which belongs to the law of delect, broadly speaking, is a private law remedy, will no longer be available after Brexit. The key difference here is that in both bills, after exit day, there is no right to damages in Scott's law. That exists in both bills, but where the bill differs is that if the action took place before exit day, there is still potential liability after exit day, whereas that does not exist in the UK withdrawal bill. Is that correct? That's right, yeah. I understand that. What does 8-2 say in relation to transition periods? I think that this is perhaps where it's less obvious what happens after exit day, but during a transition period, because exit day is defined also in those bills. Yes. The bill gives powers to Scottish ministers to define exit day because we still don't know what that's actually going to be. This makes reference to section 32. Section 32 is quite a broad power for ministers to make regulations which they consider appropriate for the purposes of in connection with or for giving full effect to this act or any provision made under it. It's an extremely broad power to amend, including a right to amend the act itself, which is also found in the EU withdrawal bill. I suppose the main purpose of this is to allow ministers to react to political developments between the passage of the act and what happens in the UK-Scottish relationship in order to make the act work so that it doesn't have to go back to the Parliament. Even though I believe that if the act itself is amended, there will be an affirmative procedure here, so the Parliament will have something to say. If there is a so-called transition period or an interim period, which occurs after exit day for a defined period as agreed between the UK and the EU, would there be any right to damages in Scots law during that transition period? I think that that's what's unclear. Yes, but— When would that liability end? Okay, so there are two things here. The first is I don't think this bill makes provision for the transitional period at all. I think it is the intention at the Westminster level certainly to introduce a separate bill to provide for that, because it'll simply be—or first of all, we don't know what the exact ramifications are—so that there will probably be a separate bill dealing with the transition period, and the way this bill will work is probably either it will not enter into force, exit day will be defined to mean sometime after transition, or when transition ends, or it will only partly be enacted, because during transition, all these powers given to ministers to amend the law can't be used. It would be contrary to what the transition agreement is probably going to say. That also means that during transition, all the remedies that we currently have under EU law will continue, as they are now. So clause 8 will probably only properly kick in after transition, is what I'm trying to say. Thank you. I want to get in more about your time. Mary, you wanted to come in on the very tiny supplementary question that Jamie asked about Frankovitch. We need to be really clear that the inclusion of Frankovitch in this bill and in the EU bill, the bar is set so high in Frankovitch that it would be highly unlikely that this would have any impact on anyone living in the UK. There will probably be a handful of people that might lose out. Frankovitch but most of them won't be individuals but it will be big companies. So from what I can tell, I mean I did a little bit of a study on case law since Frankovitch and the success rate is very low because you have to show not only that there's been a sufficiently serious breach of EU law, which is very, I mean it's not just any breach of EU law but it has to be serious, it has to be an obvious breach and so on and so on and that doesn't happen that often. And then you have to show that whatever right there is in a provision is aimed at you as an applicant and then you have to show a loss and all of these three elements combined are relatively difficult to show. So there have been cases, yes, in most cases I believe the winners were corporations and you know, so I don't think it would be a human rights catastrophe if Frankovitch went at the same time. I don't fully understand why it's been excluded either. I mean I don't see an objective reason why the damages remedy should not continue to be present in Scott's law for those cases where a public authority breaches rights under EU law in the future. Okay, that's helpful because that's something we can explore further. Thank you. Okay, a quick question for myself. I've got a final question from Alex because I know we need to get to the other committee. It's my understanding that losing the charter creates significant gaps in human rights law because it goes further than the human rights act does. We don't have any sort of direct equivalence in some parts of UK human rights law and you'll understand that the equalities aspects of human rights law and human rights law as it applies to devolved matters is devolved to this place but the actual legislation is reserved to the other place. I wonder if it's your feeling, because some of those things include the right to non-discriminatory practice and the protection of children and human trafficking and all of those things that we have discrete law in Scotland on. I wonder if it's your view that those gaps, if we don't enshrine the charter in Scotland's law then there will be huge gaps there and those rights that people currently have and enjoy would be lost. Is that your thoughts? Well I think the charter would create a gap. That is true. I mean there are certain rights that we don't find in the human rights act. We have an express reference to children's rights and I know there is a separate effort here in Scotland to incorporate the UN children's rights convention but that we don't have otherwise where there would be, there is a potential gap which hasn't quite, we don't really know yet how the European Court of Justice will interpret all those social rights that are in the charter. With equality rights it's a bit more difficult to say, I mean there is no general principle of equality under the human rights act of course but we have the equality act 2010 which is based on EU directives and which goes beyond EU directives as well but of course it's outside the hands of this parliament to do anything about the equality act 2010. But at the same time I should stress that the charter only applies where we're implementing EU law so and that limits its effects quite dramatically because if you're talking about really human rights sensitive issues for this parliament like you know housing these kinds of issues the NHS the charter simply doesn't apply because it's nothing to do with EU law. Okay okay thank you Alex. Thank you convener and firstly apologies for my late arrival and thank you for coming today to buy it. You've given us a very comprehensive view as to the impact of sections two and five in respect of reading across EU law into Scots law and indeed the enshrining principles of the Charter of Fundamental Rights. I wonder if you're in a position to give us a view on section 13 which is what happens after Scotland and the UK leave the EU in respect of keeping pace so that by regulations Scottish ministers can over a period of 15 years by extension can adopt EU changes in EU law and indeed potentially changes to the charter into Scots law by regulation without being caused to parliament. My concern about this is that we will lose the scrutiny that primary legislation can afford down with it things like the child rights impact assessment, the equalities impact assessment and in effect it removes that tier and I'm not suggesting for a minute that what the EU would do would be counter to those but there may be a divergence of a view as to where our moral compass lies. As a nation do you have a view to do you think that 13 should be changed to give Parliament more scrutiny of that? Well I mean the first thing to notice of course that section 13 does not have an equivalent in the EU withdrawal bill so there's no provision made at the UK level for ministers to keep step with EU law in that manner. Now in a way of course section 13 mirrors what we have at the moment in the European Communities Act 1972 where ministers are given powers to implement EU directives and keep the UK legal system in step. Of course in the future there will no longer be a legal obligation to do so that's why I've got section 2 of the European Communities Act. Here we would have this as a voluntary measure and it seems to be if I read it correctly in the discretion of the minister to decide whether they want to adopt a piece of EU legislation or not. So that is one thing I mean scrutiny is indeed an issue here but it is a difficult I mean it's of course a difficult balance to to strike if you if the intention is to do this on a regular basis then this Parliament might be swamped with bills that you know change tiny technical details on in the field of agriculture and should probably spend its time better. At the same time there is because there's a lot of discretion also on part of the ministers to omit bits of the EU legislation there is of course a potential for little democratic scrutiny of of these of these measures and that might be something the Parliament may want to rethink perhaps or tighten the tighten the requirements a little bit more. Thank you that chance is what I'm thinking. Is there any quick final points? No. We know that you're keen to get off to the other committee device we're very grateful for your time this morning it's always very helpful and allowing us to understand what that all means and that's very important in the scrutiny of the work going forward. We hope to hear from you again soon but thank you. Thank you very much. Now going to move into suspension to move into private session.