 Foclswch. Welcome to the 18th meeting in 2017 of the Finance and Constitución Committee. As normal, please put your mobile phones on silent. The first item or agenda is to take evidence on the applicability of legislative consent in respect of Brexit from Professor Allan Page of the University of Dundee, Professor Steven Tierney of the University of Edinburgh. I warmly welcome both witnesses to the meeting. dysgu eich gweithio ffordd sydd eich gweithio i'r ddechrau i'r ddechrau. Rwy'n edrych i ddylogi o'r cwestiynau o'r gwaith. Adam Tomkins, yn gweithgabarol, er mwyn i'n ei amser yn dewis cyd-doDI. I want to ask you about the SEAL convention and about the extent to which you have a tool. You think that the SEAL convention applies to the making of secondary legislation, and whether you can provide any authority legal, political or constitutional, and others will ask you about what those words mean for what you think the answer to that question might be. My short answer would be to the effect that it doesn't apply. Since you specifically asked for authority for that proposition, I would say that, as I have said in my written submission, it is a rule that is pretty clearly set out, has been set out unambiguously ever since devolution began, and there has been absolutely no mention of it or its application in relation to subordinate secondary legislation. To which I might add a point that I actually made in my paper that the Scottish Government and its submission to the Smith commission argued for the extension of the convention to secondary legislation in all areas, which might be taken as an acknowledgement of the fact that it doesn't apply. If I was to go further and take the example that has been of most concern to me, that is to say the exercise of concurrent powers and the transposition of EU obligations, whereas the Scottish Parliament's consent has never been sought in relation to that. Worse, I would say that the Scottish Parliament remains singularly uninformed or ill-informed about the extent to which that is happening. I regard it as an area where the convention just simply doesn't apply, which is not to say that it shouldn't, but at the moment I think it doesn't. I agree with that. The accepted understanding is that the convention does not apply to secondary legislation. Obviously, in the context that we are looking at, the great repeal bill does raise considerable issues and a real lacuna in terms of how the powers that will be accorded to the executive under the great repeal bill play out and what level of consent will be sought or could be sought from the devolved legislatures. Can I move on to the question of whether the stool convention should apply to secondary legislation? Jennings in the 1930s said that when we are trying to understand the scope of a convention and the stool convention is a constitutional convention, which is to say a binding rule of constitutional behaviour that is not judicially enforceable, when we look to see what the scope of a constitutional convention is, we should look to see what the purpose of the convention is. Is there a good reason for it? What is the purpose of limiting the application of the stool convention to primary legislation and not extending it to delegated legislation? I think that the short answer is that that was the context in which it was first thought about. The question of its application to secondary legislation was never thought about, never addressed, but, as you hint in your question, if you think about it in terms of principle or underlying principle or purpose, namely that the consent of the devolved legislatures should be obtained to changes that bear upon its responsibilities then, I would have said that it is unarguable that the convention should apply to changes regardless of the form, if you like, in which they are made, whether they are made by primary or by secondary legislation. This is a gap, as I see it, and a gap that, as Stephen has just said, will become not only more apparent but more pressing in the context of Brexit. I agree that the purpose of the one that I imagined of the stool not being applied is largely a practical one. There is much more secondary legislation than primary legislation, and it would become, in practical terms, extremely difficult for consent to be sought every time a piece of secondary legislation has to be made. Secondly, secondary legislation tends to be on less important, more technical matters. Again, it would be possibly taking a sledgehammer to crack a nut to seek formal consent every time there was some minor technical matter that required to be made by the executive. I am delighted to hear Jennings quoted in the Parliament, but the fundamental point is that this is a constitutional issue of principle and conventions are rules, and those rules are there to help to regulate behaviour. We have a constitution, we have constitutional rules largely to regulate the executive. Insofar as this convention operates to regulate the executive, in the context that we are now looking at, we are talking about secondary legislation that will be made in great volume and concerned with matters that are not simply technical, that will be concerned with major substantive issues in the repeal of a vast body of European legislation on areas covering things from workers' rights to environmental issues and so on. It would seem to me that if we look behind the technicality of Sule not applying to secondary legislation, we are left with the gap of principle that Alan is alluding to, whereby there is a possibility that the devolved legislatures may not be involved in making very fundamental decisions about the removal of very important areas of law. I have a supplementary comment on what I said, unless this is the subject of your question, but the question then becomes one of, granted that this is a gap, how do you fill it? What I was going to say to my earlier answer in relation to that, I think that you do not fill it by extending the Sule convention to secondary legislation. There are other ways in which you can tackle that question by consultation, consent requirements, which I think would be far more apt. I think that others want to ask about that and I will not jump in on that, but the final question that I wanted to ask about this was given that you have identified a gap. Is there any way in your view, given the judgment of the Supreme Court in Miller, that that gap could be challenged or filled through judicial action, or has the judgment in Miller completely ruled all aspects of the justiciability of Sule at out? My immediate reaction is that it is dead. It is dead so far as adjudication is concerned, and that is not the way forward. The court said clearly that the policing of its scope and operation is not within the constitutional remit of the courts. That seems entirely categorical to me. The courts were not prepared to get involved in enforcing Sule. They were not even prepared to get involved, as, for example, the Canadian courts have, in defining the terms of the convention or the extent of the convention, never mind enforcing it. It seems to me that the courts will not touch this. Thank you, convener. Can I ask you what you would fill that gap with in terms of consultation consent requirements? Well, we are talking about secondary law making powers, which will, in this particular context, be conferred in some cases on UK ministers, in some cases on Scottish ministers. In some cases, we are not certain about this, so we will not know until we see the legislation on both. There will be concurrent powers that could be exercised by either. My concern is with the powers exercised by UK ministers either exclusively by UK ministers or concurrently with Scottish ministers in relation to not just devolved matters but reserved matters. What I would see the gap being filled by, or what I would propose in relation to that, is that there will be requirements of consultation with the Scottish ministers or, in some cases, obtaining the consent of the Scottish ministers to the exercise of those powers in the devolved areas and, in some cases, in the reserved areas, which I think would have the singular merit of providing the element of bite, which is currently missing from our inter-governmental arrangements, whereby so much depends on goodwill obligations, which are in binding and honour only and which can, either by accident or by design, be forgotten about if, on the other hand, you are faced with a statutory requirement that says that the Scottish ministers must be consulted or their consent must be obtained, then you are talking about a completely different set of arrangements, a much more compelling set of arrangements, and that is what I would therefore propose. It seems to me that there are informal avenues or more formal avenues and the informal avenue would be through inter-governmental relations and ways in which consent or agreement is sought through the sorts of channels that already exist. However, it is also possible that absent the application of sole, the great repeal bill could make provision or other legislation could make provision that would refer to the need for formal consent of both parliaments or all the devolved parliaments and the UK Parliament for the making of legislation that crossed the boundaries between reserved and devolved matters. There are provisions in the Scotland Act 1998 that already provide for that kind of joint consent, so that is some more formal mechanisms and those could be used. The practical difficulty is that we are talking about a vast body of legislation that is going to be, we are talking about possibly 12,000 pieces of legislation that has been transposed from Europe into UK law and a balance will have to be reached between arriving at the consent and agreement of the devolved territories and just getting this job done because the Brexit job is going to be a massive one, and that is really what the balance is going to lie. Can I ask a further question? If I understand correctly, both of you think that the sole convention should apply in this situation, but that it doesn't. We are kind of agreed that there is a gap and that that gap should possibly be filled by either informal or informal requirements to consult and seek permission from the devolved parliament. Is that what you are saying? No. Not quite, not by informal requirements. I am all in favour of informal requirements and people doing the right thing. What I am worried about is when they forget about what they have undertaken to do. That is why I want the degree of formality introduced and that then takes you back to the deputy convener's question about the role of the courts. Then the courts would have a role in relation to have the statutory requirements being observed or have they not, which from the point of view of the departments, and I am talking now about Whitehall departments making this legislation. I think that it is important to recall that we will be talking about a massively decentralised subordinate lawmaking process. It is at that level that you want people to be conscious of the need that this is not just a matter for London and you actually need to talk to other people about it. What you are saying is that there is something already in the Scotland Act 1990. Yes, there are models to cover that, but you said that possibly it needs to be covered in the great repeal bill itself. What would happen is that the great repeal bill will provide the powers for the UK executive and there will almost certainly be allusion to the executives of the devolved legislatures, but certainly of the UK executive to make delegated powers to repeal a lot of EU law. The issue is should it also make reference to the fact that when those delegated powers are used in areas that step into devolved areas, should at that point those powers, when they are used to repeal EU law, should at that point an allusion be made to Scotland Act schedule 7, and say that when we are making delegated legislation in relation to powers that cross reserved and devolved boundaries, at that point, here are the mechanisms in the Scotland Act that we will use or some analogy to those powers. For example, joint consent of both legislatures would be needed to make delegated legislation in areas that step significantly into devolved areas. Okay, and whilst I understand your point about volume, you did also make the point that this probably sets a precedent in terms of some of the, although there's a huge volume, some of it will be actually significant and not simply technical. Does that require some sort of exceptional mechanism? Sorry, I'm not a lawyer. No, you're right. The thing about European law is that we joined the EU over 40 years ago and this vast body of law comes out of Brussels. The only practical way in which that law has been brought into UK law has been through delegated legislation. That doesn't mean that law is not important, it's just been a practical way of bringing it in through the European Communities Act. So we have a whole swathe of law that has been brought in through delegated legislation and which will be removed by delegated legislation. From an outside point of view, you might think that maybe it's not terribly significant, but we know the substance of that law often is terribly significant. So we ought not to be caught up by the form of the law. The fact that delegated powers will be used to remove this should not disguise us from the fact that often we are talking about very, very important areas of law that would in any other context be given full parliamentary treatment. Get into that wee bit more in terms of the schedule 7 of the Scotland Act 1998, which Professor Page references in his very last paragraph, as a possible mechanism. What would the UK Government require to do to enact that sort of activity and how long would it take to achieve that? Obviously, if we are on the brink of the Queen's speech this afternoon and that gap exists, what would the UK Government practically require to do to fill that gap and how long could it take? There would need to do very little. It would just simply be that you would say that the exercise of this power could be the consent of the Scottish ministers and require the approval of depends what parliamentary procedures govern the exercise of the powers and all your seeking, and there will be provisions governing that in the legislation. What you're seeking to do is ensure that those extend to Scotland and it would be the work of five minutes for a draught or to amend it. There are different mechanisms with it. In the paper that I've submitted, it's a paper that I've been working on with Mark Elliott from Cambridge and what we've been looking at are a distinction perhaps between, in terms of designation, when the delegated powers are going to be used, it may be possible for the Government to designate, well, this is simply a technical matter, this is a piece of secondary legislation that will simply remove the word European Union from this area of law because that's no longer going to apply. That's the sort of thing that either wouldn't require the consent or could be done, for example, by negative resolution procedure and it could be covered fairly quickly. The other category would be for the Government to designate or to make a statement to the effect that this piece of delegated legislation is going to cover a substantive area of law. If it also designated that that substantive area of law stepped into devolved areas, that would be where perhaps type A from schedule 7 could be used, which would require affirmative consent of the devolved parliaments concerned. The practical problem that the chair is alluding to is that those kinds of processes can take a very long time. We saw that section 30 order and there is, as I say, this real struggle between what seems to be a fairly ideal system and what could become a very, very complicated long process of trying to make each piece of delegated legislation that would require consent around the UK that could take a very, very, very long time. I don't have an answer to that conundrum. The process of actually getting the consent might take a long time, but the process of enacting the process to achieve that shouldn't be the problem. In the great repeal bill that wouldn't be difficult, but the danger is to put that in the bill, one would have to think what one was doing in terms of what the implications would be. That would mean at least 12,000 pieces of legislation that we're talking about. Mary, sorry. All I was going to do is count just a point of clarity. Could we say UK Government and Scottish Government, so I don't need to track? Sorry. I know which Government you're talking about. Right. Mordo. Thank you, convener. A slightly different point, but a related one. Professor Turnie, in paragraph 8 of your paper, you make reference to the Supreme Court judgment in the Miller case, concluding that there's nothing to stop the UK Parliament passing the great repeal bill without consent from the Scottish Parliament. In your final sentence, you say, the existence of the Sewell convention, however, suggests that, while it can do so legally, it is questionable whether or not it can do so constitutionally. Now, it's a long time since I sat in constitutional law lectures, but maybe you could explain in more detail the difference between these two concepts. Certainly. We clearly have law on the one hand, and if you break the law, the courts will enforce that law and say that you can't do it, and that happens to the Government all the time in judicial review. We have political constraints. The Government knows that it's unwise to do certain things, or they'll lose elections. The Supreme Court tended, in its judgment, to treat those as the only two binaries that exist in our system. You either do something that's unlawful or you do something that's politically ill-advised. It called the Sewell convention a political constraint on the activity of the UK Parliament. To a constitutional lawyer, there is a third category in the middle, which is conventions, which is, as Professor Tomkins said, a rule that controls behaviour but which is not enforceable by the courts. It can be quite hard to understand, but there are rules that political actors stick by because they are rules that are bound by them and they are self-conscious that they are bound by those, even though they won't be enforced by the courts. If you violate those constitutional conventions, the courts won't do anything, but my argument is not simply my argument, but that you would be acting unconstitutionally. It might not be illegal, but it's more than simply politically ill-advised. You're doing something that is unconstitutional. In our system, we have a distinction between constitutionality and legality, but you can still act unconstitutionally without acting illegally. Who would determine if you were acting unconstitutionally? Of course, can't you. You, political actors. It is a political constraint, but what politicians who oppose what's happening can say that if a minister does something clearly unacceptable and refuses to resign, politicians react to that by saying that it is completely unacceptable under the doctrine of ministerial responsibility. You were responsible for that department. You were extremely slack. You must go. There's a constitutional convention to that effect. I can't take you to court. The court won't remove the minister, but this is more than simply doing something ill-advised. You have violated a convention of our constitution that you are responsible for your behaviour. It's not an easy line to draw, and it is, in a sense, all about impression and about the reaction of the political environment, but there is a distinction. You could just say that the convention is part of our constitutional arrangements. It applies in this particular case. If you choose to ignore it, you are acting unconstitutionally. As to the consequences of that, while Stephen said that, these are ultimately political, but nevertheless the argument that you are acting unconstitutionally is, I think, very well grounded. The convention has been there since day 1, 1999. It's been sedulously observed. I'm not aware of any circumstances in which it's been ignored, or in the one case, if my memory serves me correctly, in which it was forgotten about, the legislation was immediately corrected to take account of it. It's in with the constitutional breaks, such as they are of our constitution. Thank you. What would happen in a case where legislative consent was unreasonably withheld by the Scottish Parliament? Well, I see that the unreasonably withheld by the Scottish Parliament. I think that we understand it as reasonably, but the point that I'm trying to make is let's say the politics overrides the constitution and the Scottish Parliament were to decide it's going to make a political point by withholding legislative consent. What happens then? Definitely clear what happens then. The UK Parliament can go ahead and legislate, and that's the end of the matter. I wouldn't approach it in such confrontational terms. I would take a more step-by-step approach to it. I'm not talking about the threat of withholding consent as in the background, but what you're saying is that this is all very interesting, but we'd like to see the following things in other words, approaching it not just as a... That's why I talked about a Brexit legislative programme rather than the Great Repeal Bill that focuses understandably on the Great Repeal Bill, but the bits that are going to be of real interest to the Scottish Parliament will come at a later stage. It would be, in my view, perfectly reasonable for the Parliament to say, well, this is all very interesting, but we need to see the full package before we can come to a properly informed view on the question of consent or not rather than, you know, it's our ball and we're taking it home. Yes, so it may be unconstitutional for a UK Government not to seek the consent of the Scottish Parliament, but it wouldn't be unconstitutional for the Scottish Parliament reasonably or unreasonably to withhold that consent. Just so, and I realise that we're dancing on the head of a pin of it here, but those could become important issues, Patrick. Yes, just to expand on that, I mean, if the word consent is meaningful in this context, rather than simply a rubber stamp, it has to be a choice by the Scottish Parliament to agree to something. So surely in this situation where the Scottish Parliament has taken a view that politically it objects to a course of action which the UK Government acknowledges requires legislative consent, it's the UK Government that would then be acting in this kind of grey unconstitutional way where they to legislate for something that the Scottish Parliament had not agreed to give consent for, that the constitutional course of action for them in that situation is to revise their plans and come forward with something that will gain the consent of the Scottish Parliament. And the question is what sort of revisions you're looking for. I suppose for me, you're suggesting an alternative menu of options beyond the Sewell Convention that might be drawn from. For me, surely there's a question about does the UK Parliament or Government have the authority to pick from that menu as it sees fit, or does the Scottish Parliament at least have the right to consent or not consent to the choice from that menu? What you're looking for is an agreement. It's as simple as that. An agreement willingly entered into? I don't see an agreement as being unachievable around the sorts of things that we're talking about which are basically procedural constraints saying the devolved legislature matters. The exercise of these powers in relation to Scotland is a serious business. We need to know what's being proposed. We need to be consulted. In some cases, depending on how serious it is, we may need to consent. You're not talking about that in relation to the Great Repeal Bill itself. You're talking about all the stuff that will come down the line that Stephen was talking about. The details of agriculture, fisheries, the environment, whatever you want to talk about. These are the areas where you want to be certain that the Scottish Government and Parliament's voice is being heard, where it matters to Scotland. One of the things about the Sewell Convention is that, as Alan has said, it's actually worked very well. You know that a convention exists if it's the repeat pattern of behaviour. Although it's not a law, people abide by it because they feel they're bound by it. Until it becomes a problem. But the two things can happen to a convention. One is that a convention can simply be found not to exist any longer. If political actors simply pay no heed to it time after time after time, we can simply say descriptively the convention no longer exists. A second thing that can happen to a convention is that it's how we understand the limits of it change. The nature of the Sewell Convention is that Westminster will not normally legislate with regard to devolve matters without consent. That word normally has never really been filled out. If it were perceived that devolved legislatures were routinely putting unreasonable objections to legislation, the UK might decide that, when we perceive that there are unreasonable objections, we're no longer going to wait for Sewell consent. We could say that the Sewell Convention has changed and that normally one exception to normal would be unreasonable consent. That all depends upon behaviour over periods of time. We, as observers, would look and say, well, the convention now means this, the convention now means that. This is actually a huge test case for Sewell. We're now going to see just what the limits are, when it applies, when it doesn't apply. Technically, it doesn't apply to delegated legislation. We're now going to see if the principles underpinning it are now going to apply to delegated legislation. Of course, it's not written down and no one's ever written it into a law, well apart from the Scotland Act where it's referred to. But it's not given force of law. I mean, it's what is recognised in the Scotland Act. We're going to have to wait in practice to see how Brexit will let us fill in what Sewell means. A point of clarity, Professor Page, if you would just move from that point. You said at paragraph 14 of your submission that it is clear—and you've made this point very clearly this morning—that the Scottish Parliament cannot, by withholding its consent, prevent the great repeal bill or any other bill in the Brexit legislative programme from becoming law. But I was just slightly confused by paragraph 2 of your paper. The final paragraph you say, the question of the Scottish Parliament's consent to the legislative consequences of Brexit has thus only been delayed. I was just a bit unclear on what you meant by it being delayed, because to me it rather suggests the question could be asked again and the answer may change. Well, what I think I was referring to in paragraph 2 was, as I said at the beginning of that paragraph, much of the reaction to the Supreme Court's judgment has been along the lines, this is not worth the paper that's written on—referring to section 28 of the Scotland Act. And what I've tried to do is go behind that and say, well, actually, there's a lot more to it than that dismissive reaction. Hence, it's still a live issue, it hasn't been disposed of by Miller, and it remains to be determined. That's what I meant by delayed, not settled, so Miller didn't get rid of the Supreme. I'm referring actually here to the chair of the Scottish Affairs Select Committee and the commons who said to me in a question that not worth the vellum it is written on, and to which I replied, well, that's a sort of smart alec comment that I think you would associate with a professor, which is why I talked about the paper that's written on rather than the vellum. I understand. Thanks for the clarity. Thank you. Thanks very much in here, and I'll do my best to warm away through this. Professor Keating last week in his paper said, you know, if Westminster was to ignore Sewell and legislate in devolved fields, this Parliament could in turn legislate to nullify. Westminster Law is leading to this endless game of legislation and counter legislation, and he said, this could only be ended by a specific reservation of the contested competence, but according to the larger interpretation of Sewell, such a reservation altering the powers of the devolved body itself would still require the consent of those legislators themselves. Do you agree with that? Does that mean that? I'm not quite sure I'm following what Professor Keating said to you last week on how it happened around that, but if at the end of the day you were talking about reservations, that is to say altering schedule 5 to the Scotland Act, altering the legislator competence of the Scottish Parliament then unambiguously, that would require the consent of the Scottish Parliament under the Sewell convention unless it's done by an order under the Scotland Act, in which case you would require the consent of the Scottish Parliament. So ultimately, if we could down this road of ping-pong and reverse over. That is a starter at all. I think the point that I tried to make in the paper is that we can get bogged down on what it means and the extent of it, but the crucial issue here is that regardless of what one thinks of the merits of Brexit, the actual process of bringing Brexit about is going to be an absolute headache to try and repeal all this law. The last thing that the United Scotland and the United Kingdom needs is a war of attrition in the middle of that, where the two legislators are doing exactly the sort of thing that you describe. And I think it's very dangerous if we take our eye off the ball by getting bogged down in Sewell and ignore the fact that the really crucial issue here is intergovernmental relations. And as I put at the end of my paper, inter-parliamentary relations, so that there is a joined up way of thinking about these issues. Because when the great bill does take effect, the competences of the Scottish Parliament as I think you're alluding to will not change. The Scottish Parliament will have competence in those areas that are returning. After the Scotland Act 2016, there are many new areas that clearly trade, where there are shared powers and a whole swath of new areas. On top of that, you're going to have European competences. If one wanted to be obstructive, it would be very possible for more than one legislature to be passing laws in exactly the same area to the intense detriment of the emergence of any kind of single market within the UK. I think that this is an issue that really calls for mature political agreement. I don't know how that would be reached, but the nightmare scenario that you're describing is a very real one and could happen in the absence of a mature approach to intergovernmental relations. You mentioned the scale of the legislative challenge that we're facing. Is it likely that there will need to be some sort of sifting process potentially involving both or all Governments of the UK to prioritise the level of scrutiny that will be required? There has to be some sort of mechanism that allows that. Do you have any suggestions on how we could go about that successfully? Stephen mentioned in his paper, Inter-Parliamentary Relations, which we did in this particular context raise or highlight the possibility of joint scrutiny between this Parliament and the Westminster Parliament, possibly with the other devolved parliaments. My understanding is that that's happened between the Welsh Assembly and Westminster, although there have been joint meetings, but it's never happened between this Parliament and Westminster. I suppose what I'm saying is that the parliaments need to, in terms of scrutiny, put the parliaments need to get their acts together in terms of how best to go about that and how to do it most effectively. I wouldn't rule out. I could see considerable merit and co-operation in that enterprise. The initial step would be to provide for designation of any piece of delegated legislation. We already have that. We already have these kind of statements of the effect of human rights or the statements to the effect that they don't involve devolved matters and so on. Any power that's going to be used under the great repeal bill, any piece of delegated legislation that's put forward, could be designated as either technical or substantive, and it could also be designated as reserved or potentially devolved or covering the boundary. At that point, I think that resources at executive and parliamentary level are now so stretched that it makes sense to find mechanisms whereby some of that is passed on to committees here to determine where the devolved component comes in and to try and divide up the sifting process to see which areas are devolved, which areas are not. And then to try and reach agreement about how these provisions should be repealed or, in many ways, most likely continued because a lot of this law will not actually be removed, it will simply be domesticated, because a lot of it is law that we won't necessarily want to remove from the statute books. I think that the Wales UK example is that they have had to co-operate closely, given the nature of Welsh devolution, which was always much more closely connected to Westminster than Scottish devolution. I think that that could be an interesting precedent and lessons could be drawn there for how the Scottish Parliament could start to talk with Westminster committees about dividing up the scrutiny role. Ash, I apologise, I strayed into an area that you were interested in, so forgive me, I just realised I had done that. You did. My question is in part covered, but just to pick up on what you were saying there, you are asserting that not just as a way of preventing duplication that the committees in the Scottish Parliament or the Welsh Parliament in the UK would maybe work together, but you are also making the point that this would be quite vital in constraining the expansion and executive power. That is the way you put it in your paper. Can you explain what you mean by that? Yes. Obviously, we are concentrating on the substance of Brexit. We are leaving the European Union. It is a very dramatic process, and it has created huge tensions in the territorial constitution. It is inevitable that people have maybe taken their eye off the ball in regard to how that has been done and the way in which it has been done, and arguably can only be done, is by handing massive powers to the executive, any effect to make law, massive powers to the executive to change primary legislation by way of delegated legislation, which is called Henry VIII powers. That is a concern for any legislature. It is a concern for Westminster. The House of Lords Constitution Committee, I advise that committee, is always commenting on the danger of Henry VIII powers, so is the Delegated Powers Committee in the Lords, and committees in this Parliament are also concerned with Henry VIII powers. We have to be aware that it is not simply the UK Government that is going to get those vast powers. The devolved executives inevitably will have to embark on this process, too. There is a job for parliamentarians, regardless of their view of Brexit or their view of the balance of power between Westminster and Holyrood, to keep their eye on the ball that their first duty as parliamentarians, or one of their first duties as parliamentarians, is to call the executive wherever it may be to account and make sure that whatever powers they have are subject to proper scrutiny. Do you have anything to add to that, Professor Page? No, I would agree entirely with what Stephen has just said, but going back to what was being said earlier about the possibilities of co-operation, I am reminded just sitting here that there is actually a model, you know, I think it is called the subsidiarity protocol to the Lisbon treaty whereby, you know, this is where the EU, of course we are now talking about the opposite, but the EU legislates in areas where the member states think they should legislate. You know, it is contrary to what is called the principle of subsidiarity, and there is provision there for parliamentary scrutiny. Parliament, in that context, is being understood as the national parliament, that is to say the Westminster parliament, but the arrangements, as I recall them, include provision for the devolved legislatures to tell the relevant UK Parliament committee when they have a particular issue in relation to a proposal. You would be talking about something analogous to that whereby the relevant Westminster committee, which was scrutinising the exercise of these powers, was informed about anxieties of concerns that the devolved legislatures might have in relation to their exercise in relation to their particular competences. You know, there are models that one could easily build on for that purpose. Can I try to unfix some of the issues around that? It links to Willie and Ash's question, because the repatriation of powers issue from the EU may or may not form part of the Great Repeal Bill, but we do not know yet. However, if the white paper thrust was to be followed through that was presented before the election around pan-UK frameworks, et cetera, and if they were to be engaged as part of the Great Repeal Bill, do you think that in those circumstances that that would engage so? Obviously, if there is going to be some pan-UK arrangement, you cannot just leave the powers to come back to the Scottish Parliament, otherwise you would have no way of exercising that pan-UK framework, so would so be engaged in those circumstances? Yeah, this is why I stress the programme rather than the Great Repeal Bill, because I do not see the Great Repeal Bill doing these things. I see it so far as the devolved legislatures are concerned as being about relieving them of the obligation to comply with the EU law, insofar as that ceases to be an obligation at the end of this process, and giving them the powers that we have been talking about. However, when you get into the talking about frameworks and so on, what you are talking about is a substantive policy area such as agriculture, and the way in which the Great Repeal Bill White Paper chose to put it was to say that I think it is paragraph 4.4. We will treat this as basically a fresh start. We will convert the existing EU frameworks into UK frameworks using UK legislation, and then we will talk about how the powers should be distributed after that. The focal point of that will be schedule 5, what is reserved and what is reserved, and the adjustment to that, all those powers. I see that as not being an issue for the Great Repeal Bill politically, I think that that is just taking on too much. I see that as the focus of the intensive discussions about things like common frameworks and areas such as agriculture, and the adjustment of the reserved devolved boundary taking place in that specific context rather than being done in the Great Repeal Bill. At some stage, it may require legislation to amend to Scotland. Exactly, and that will require so consent. It is not a one-off question, it is a question that is going to recur throughout this process. You take Willie's question then, but Scottish ministers could decide to legislate in that area themselves. I am not saying that they are going to, but it is possible. Therefore, in that circumstance, who would adjudicate and who would have the primacy in that particular area? This question came up a very long time ago, and the answer is whoever legislated last. There is no answer. Short of removing the competence from the Scottish Parliament, it certainly no longer has power to legislate in that area. In theory, it could go on forever, but I genuinely do not see that as a starter at all. I think that it is important that we do not get too bogged down in Seoul. I think that Alan is absolutely right, and there is a perceptive point that he makes in his paper that we could be looking at 10 or 15 bills. There are different numbers, so we could well be, and by Seoul, obviously, if it is primary legislation and it affects devolved matters, Seoul can sit. The danger if we get too bogged down in Seoul and say that Seoul applies if it is primary legislation, it does not apply if it is secondary, and the UK Government thinks that we will try to do everything through secondary legislation, which creates A, an accountability gap, and B is simply going to antagonise the territorial dimension. We need to put the technical limits of Seoul to one side and talk about the spirit of Seoul. The spirit of Seoul is the fact that we have a territorial constitution, and the point of having a territorial constitution is to try and govern the state by consent. People who look at other systems that are federal systems talk about countries that have competitive federalism or co-operative federalism and are ways in which you can manage those two routes, to try and create a system that is much more co-operative rather than very competitive. Competitive would be the example that Mr Coffey is putting forward where he who laughs loudest and you just keep antagonising. In a situation where we are trying to extricate ourselves from this massive body of law, which is complicated enough, to get into that sort of pathology of competition between two or four legislatures would be utterly disastrous. I think that the spirit of Seoul is calling for a mature approach among political actors to arrive at mechanisms to avoid this. If we are going to have those bills, they have to come forward on the basis of clear agreement about how that is going to impact on devolution, how the market in that area is going to work afterwards. It is fundamentally a task for IGR prior to the legislative process. I know that I keep coming back to this point, but as a lawyer I think that it is very dangerous to get bogged down in the technicalities of who has the power to do this and who does not. We need to see the bigger picture, which is that you may well have the power to do this and to legislate over each other's heads in political terms that this would be an utter disaster. That comes into the area that you were interested in, Liam, in inter-government relations in general. No, so I got my question earlier and I was also going to ask Professor Tierney about the inter-parliamentary relations. You are quite happy with that. Any other questions? I'm just sitting and taking notes and trying to get my head on all of this. It comes back to that issue around not being a lawyer. It comes back to this issue about the legal and the political, and then you've got the constitutional that's in the middle. You're saying that if as long as everybody's nice to each other, that's fine, and we get that, obviously. You get into specific, sure that you can deal with specifics as they happen, but the fundamental issue here, or the point of contention here, isn't specifically going to be about we want to legislate to do this in, let's say, agriculture, because that's probably one of the ones that's going to be an issue. The UK wants to legislate to do something and the Scottish Government wants to legislate to do something else and we can sit there and reach a compromise. That's not, as I understand, really going to be the issue. This is going to be the understanding of who's going to have the power to legislate. That's where we'll first hit the first problem, because the devolution settlement is obviously quite clear about what's reserved and what isn't. The Scottish Government take the view, perhaps, that the UK Government is encroaching on that territory. In that context, which is more abstract, we want to change a specific law on something to do with agriculture. It's much harder to reach our consensus because you don't have something that you need to codify that, and by virtue of where we are, that would require a change to the Scotland Act, I think, in terms of what's devolved and what isn't. What you're saying is that, because the courts aren't involved in this because of Miller, the backstop on this is the court of public opinion, which means that this stuff is going to play out in that political sphere and that ultimately is where any disputes, if you like, would get resolved. Is that correct understanding of it? To my mind, I've said that the conventions are not enforceable by the court, that's clear, but it seems to me, and Alan may have a different view, the great repeal bill in itself is not going to change the competence of the Scottish Parliament, so the matters that are still devolved to the Scottish Parliament will continue to be devolved there. Where the UK Government to use powers under the great repeal bill to make regulations which it was felt were clearly in devolved areas, that could well be challengeable in the court, and we don't know how the court, because the powers of the Scottish Parliament are defensible in the courts, and then we would, would the great repeal bill have been sufficiently clear in its intention to give the UK Government power that stepped into devolved areas? That could become a very complicated issue, because you can't simply imply and repeal the powers of the Scottish Parliament. All I was going to say is that you talked about the court of public opinion, but it's actually worth sticking with your agriculture example and thinking about, well, what does that mean? What it means in practical terms is that at the moment the UK leaves the European Union, we will need an agricultural policy to replace the common agricultural policy, and if I was a farmer I would suddenly want to know what that policy was going to look like. That's a practical question, and in UK terms we are talking, or I assume we are talking about a policy that could possibly be drawn up by Westminster with the agreement of the devolved legislatures or done separately, but one that secures that the common frameworks that were raised in questions earlier, but for the rest left the devolved administrations to go their own way, or to tailor that UK-wide policy to their own circumstances. It's worth remembering that under the common agricultural policy the devolved administrations have very little discretion to tailor that policy, so the decisions are all taken in Brussels. You're talking about getting to that post-EU agricultural policy in the same way as you'll be talking about getting to a post-EU fisheries policy or environmental policy or whatever, and that's where the practical decisions are all taken. So the solution to that is going to come, but the resolution of that will come at the point where everybody is sat round the table and trying to figure out what this agricultural policy looks like. Exactly. So the great repeal bill is the sort of prelude that we're clearly a long, long way from that. No, no, that will happen very quickly, but what... I'll put it another way, not much progress has been made towards that at this stage. Well, I'm surprised by how little... In terms, I don't think we know what the UK Government's policy is even on it. I'm surprised by how little progress appears to have been made or how little discussion there has been about what is going to come next. All we know is that it will be the subject of intensive discussions. Okay, thank you. Patrick. Yes, thank you. Forgive me, I sort of got the feeling that I might have skipped a track there, and Professor Tierney's last answer said that the repeal bill itself doesn't alter devolved competence, but Professor Page's written submission says that it does. I thought we'd already got to the point where there was acceptance that repealing the European Communities Act affects devolved competence, and therefore the issue of legislative consent is on the table. I thought. Yes, I think it is. Yeah, there was very little disagreement from Professor Page after Professor Tierney's answer there. I think what it does, the great repeal bill, will remove the area of EU law that at the moment circumscribes what this Parliament can do, so this Parliament is stopped from legislating in a whole bunch of areas because of the EU, and the Scotland Act says that you can't legislate contrary to that. That's suddenly all going to disappear, so suddenly the Scottish Parliament will be able to legislate in all those areas. We don't really know what the great repeal bill will say about the Scottish Parliament's role, but my sense is that it's not going to say very much in which case the competence that's written out in the Scotland Acts themselves will not be removed, will not be officially changed. There will be a bigger area of law in which the Scottish Parliament can use those powers. It's not directly changed, but indirectly it's profoundly changed. Yes. By definition, it will no longer be constrained by the restriction on legislating contrary to EU law. It will be given additional powers, but if you go back to my earlier analogy of a play of which the great repeal bill is Act 1, it will change the Scottish Parliament's competence in the way that has just been described by Professor Tierney, but it will be a sort of minimal change, if you like, and then there will be a whole series of other changes in discreet policy areas such as agriculture, fishery and so on, which will be a matter for discussion and possibly agreement between the various parties involved and the subject or subsequent legislation part of this programme. So it's not a one-off question, it's a question, as I said earlier, that will recur time and time again, both on the great repeal bill and on the other pieces of legislation that will follow. Well, we're going to find out pretty soon what the great repeal bill has or does not have. I think we're going to have to, depending on what the context of that bill has and whether the myriad of other legislation that will flow from it will have to come back and talk to some more certainty, because there's a bit of speculation going on at the moment, because we can't be absolutely sure. In that context, I would like to thank our witnesses for coming along today. I think it's been a very useful scene-setter for us. I'll certainly make our attention to the great repeal bill this afternoon, the Queen's Speech, much more focused to see what's in it. So thank you very much. I suspend this meeting now until 11.30, and thank you very much. The second item on today's agenda is to consider a Scottish statutory instrument relating to the land and buildings transaction tax additional dwelling supplement. Before we come to the motion seeking our approval, a GED item 3 will take evidence on the order. We're joined for this item by the Cabinet Secretary for Finance and Constitution, and Scottish Government officials Johnston Clare from the legal directorate and Ewan Cameron Nielsen, who is from the Fiscal Responsibility Division. I welcome our witnesses to the meeting and invite the cabinet secretary to make an opening statement, please. Thank you, convener, and I'll aim to keep my opening remarks brief. An additional dwelling supplement liability arises where a buyer purchases an additional dwelling in Scotland, and at the end of the effective date of that transaction, when mortgage funds are cleared and keys are handed over, the buyer owns two or more dwellings and is not replacing their main dwelling. Replacing in the context of the additional dwelling supplement legislation means selling the previous main residence and buying a new main residence. For the purposes of the additional dwelling supplement legislation, the Scottish Government's policy is that a couple, and by which I mean a married couple, cohabitants and civil partners, is treated as one economic unit. This is to address the risk of properties being moved between individuals for the purpose of tax avoidance. It is also the Scottish Government's policy intention that, where the additional dwelling supplement is paid, it can be reclaimed when a main dwelling is being replaced and the sale of the former main dwelling occurs within 80 months of the purchase of what becomes the current main dwelling. As the additional dwelling supplement has become embedded, it became clear that in practice the legislation has not been working as intended in relation to couples. Demonstrating that the Scottish Government is listening to taxpayers, the order before the committee this morning amends the legislation to address this for cases going forward, and it does so in two respects. First, the order amends the current legislation to provide relief from additional dwelling, second homes tax, where couples jointly buy a dwelling house, but the dwelling house being replaced is owned by only one of them. The second legislative amendment provides for the scenario where the transaction for disposal of the former main dwelling, owned by one of the couple, is concluded after the transaction for the joint acquisition of the new main dwelling. In short, the amendment will allow for a repayment of tax paid to the couple if the disposal happens within 80 months of the joint purchase of the new main dwelling. I am happy to take any questions that members may have. I know that Murdo Fraser has some questions. Thank you, cabinet secretary. You all know, because we have corresponded about it, I have constituents who are affected. I am sure that there are other members in the chamber who have similarly brought concerns to you. I warmly welcome the fact that this instrument is being brought forward. I thank you for doing that. I know that my constituents will be pleased to see the unintended consequence of the legislation being addressed. I wonder if you have any sense of how many individuals or family units in Scotland will have been affected by this in the period since the additional dwelling supplement was introduced. It is very difficult to quantify. In fact, I cannot quantify because the way that tax returns are completed in LBTT does not ask for the specific information that answers that question. I do not know, but there is no evidence. There is nothing to suggest that it is a large number of people who quantify large. However, what we will be able to do is to revenue Scotland will work subject to the committee in the Parliament approving the order to engage with people to make them aware of that. The next point, which relates to Mr Fraser's constituents, is that it does not resolve it retrospectively. That will require a further legislative mechanism that I am exploring. If that is successful, it would allow revenue Scotland to engage with all those that I have paid to tax. That should capture anyone who is affected by the issue. Thank you. I will come on to the question of the retrospective remedy, because I appreciate that this instrument will not solve that particular problem. My constituents have already had to pay that money. I wonder if, while you are looking for a legislative vehicle to try to deal with the retrospective issue, is it at all possible to issue guidance to revenue Scotland to advise them on how to address the issue where you have people caught in the retrospective trap, pending legislation being brought forward or is that something that is not able to be done? Retrospectively, going forward, revenue Scotland will apply what Parliament approves. It will have to continue to apply to the strict letter of the law that is currently in place. However, if the law is changed, it would apply that and look to resolve that in light of any legislation that might be passed. I should point out—and it is absolutely not for me to advise the solicitors on how to do their job, but they can give appropriate, relevant advice at the point of advising their clients. I am sure that many have done so. Okay. Do you want to expand on what you mean by that? Not particularly. I would not want to advise people on how to engage in any form of tax avoidance, but let's just say that different solicitors may have given different advice as to how to approach the subject. What we are doing is delivering on essentially the policy intent that I have outlined. Thanks very much. The policy intention of the Government is still to treat couples in one way and people who perhaps have a joint mortgage because it is the only way that they can afford to buy a property to live in as their main residence. If they are not a couple, they are treated in different ways, am I right in saying that there is no intention to look at that kind of situation and to address something that might be becoming a more common arrangement? It is true to say that I am looking at a very specific mechanism to address what has been identified and not that wider point, so it is looking at couples as one economic unit for the reason that it has been given. What is the reason for treating as an economic unit only couples and not, for example, two or more friends who have a joint mortgage together because that is the affordable way for them to meet their housing needs? I have not had that raised with me previously. I have not given that full consideration. This is about a couple as an economic unit about minimising tax avoidance and ensuring that degree of fairness. I am happy to hear more evidence from Mr Harvie, but I am very clear that this is a very specific anomaly coming from the interpretation of the legislation that I want to address in light of the communication that I have received. So the Government might be open to looking at that in the future? I do not want to trigger a much wider debate on what I am trying to resolve here. I want to be very clear and very focused on the remedy that I am proposing today and returning to the issue to address it retrospectively. If Mr Harvie wants to raise that issue with me, I will happily engage, but this is very specific about the issue that has been raised with us. It is raised by the Law Society and a number of MSPs, but I am happy to respond very swiftly to the correspondence that I have received to resolve this. I will have a further discussion with Mr Harvie if that is helpful. Just a point of clarity, if you would please. This is about a policy intention that, for whatever reason, was not actioned correctly, so there is a group of people out there who have paid tax in good faith but should not have. Presumably, assuming that this goes through, a considerable amount of resource needs to be devoted to identifying those people and making sure that they are refunded the tax that they should not have paid. Is that correct? Yes. Revenue Scotland will undertake that work, yes. And that will presumably be given a due level of importance to make sure that people who have overpaid inadvertently are recompensed. That is correct. No other questions? In which case we now move to agenda item 3, which is consideration of the motion on the order. I invite the cabinet secretary to move motion S5M-05994 that the Finance and Constitution Committee recommends that the land and buildings transaction tax bracket additional amount second homes main residence relief bracket, bracket Scotland bracket order 2017 draft be approved. The question is that motion S5M-05994 be agreed to. Are we all agreed? The committee has agreed. The cabinet secretary will publish a short report to the Parliament setting out our decision on that order. That is the last piece of business on our agenda for today. Next meeting will be the last meeting of the committee before the summer recess and will be taking evidence from the minister for negotiations in Scotland's place in Europe on issues to do with Brexit. I now close this meeting of the committee. Thank you very much.