 Ysbytyd yw'r cyfletig cyffredinol, a ddigon i gael Siw Llywodraeth Cymru yn y 21 yma i'r Gweithgaredd yng Nghymru yn 2022. Yr oeddennau'r berthynas yn gweithio ar gyfer busnes ym ym ymweld, ddifen nhw'n golygu ar gyfer y gweithgaredd ym ymwyfyr. Oeddennau'r berthynas ym ymweld ymweld ymweld ymweld ymweld ymwyfyr, oedd yn ymwyfyr ar gyfer hwnnw, ac mae unrhyw gweithgaredd yn ymwyfyr, wych boards a iddyntydd, i ymdrygiadau. Mae gennym ni wneseuodau ar y rhaglen o HLPD on altwch astu leead ticks y Gwldedereenol, yn cender� gwrsn i'r magnet. Gall gall伊dd nifer yr wych sil mwr oni'r byw o完ent writers mae noer Yr Mul invention a refused gall chefau hynny i gael rhywun yn fwyllennig i gael Pheam arrangement Clancy OBE, director of law reform, law society of Scotland, and Professor Alison Young, professor of public law at the University of Cambridge. I warm welcome to you all, and as always in the hybrid situation, I'll try to manage this, it's never as easy as whenever it's in the room, but we'll try our best to ensure that everybody gets a chance to come in. I wonder if I could open with a question around a recent report into the impact of Brexit and devolution, where the committee set out a view that the extent of UK ministers' new delegated powers in devolved areas amounts to a significant constitutional change. The retained EU law bill is another bill in the post-Brexit era, which converts significant powers on to ministers, including on UK ministers, potentially in devolved areas. I wonder if the panels had reflections on that and whether they thought that the bill was proportionate in its approach. I wonder if I could start with Dr Hancock's first. Thank you very much for inviting me here today. In terms of the changes, I suppose, to devolved competence and to the level of significant constitutional change brought about by the proposed bill, it appears to me that the bill, while in some ways it doesn't make significant changes to, I suppose, devolved competences. However, it does introduce the possibility or it does, I suppose, change in some ways the division of powers in the sense that it grants the UK Government ministers of the Crown powers over, I suppose, considerable retained EU law, which will include, of course, many statutory instruments, including Scottish statutory instruments, without any proposal for a consent mechanism in place. It also changes the protection in terms of a wider constitutional issue. It also changes the protection of fundamental rights in the UK in the sense that the general principles of EU law will no longer be part of retained EU law, and this introduces a further divergence in terms of fundamental rights protection across the UK in the sense that, of course, Northern Ireland still remains bound by the charter, although there are powers potentially to restate. I think that I'll leave my remarks there. I'm sorry, but I'll get a message from the clerk there. Can I possibly bring in Dr Hood next? I agree with what Dr Hancock said. The key parts of the issue are twofold. The first is one that Chris Maccorkan, who advised the committee, had already identified, which is the extent to which, in practice, the reality of that is that it allows UK ministers to move into the devolved space. The realities of the mechanism that is involved are that it does so in a way where consent from this Parliament will not necessarily be required. I think that that really is in practice. Those are the two key areas in which I can understand why the committee would want to consider this area, whether it does involve an incursion into the devolved competencies. From my perspective, the striking thing about the powers that are conferred on ministers of the Crown here is that they are, at least in part, powers to preserve, restate legislation that is within devolved competence. I find it surprising that there would thought to be any need for the UK Government to perform that role. To put it simply, if the Scottish Government doesn't care enough to use its own powers to restate or to save legislation that is in devolved area, why would the UK Government want to step in? The inclusion of powers for the UK Government in those areas is indicative of a habit that has been formed by the earlier Brexit legislation. In relation to the EU withdrawal act, one could at least see the argument that there were certain things that mechanically would need to happen in order to give effect to Brexit and that UK ministers might want power to ensure that those things happened even if the devolved authorities were not keen to exercise their own powers. I don't see any equivalent need in this bill, I don't see any mechanical necessity for the UK Government to be able to step in to do something within devolved areas if the Scottish Government or the other devolved authorities have declined to do so. To some extent, I think that the Brexit legislation, the stuff to give effect to Brexit as a mechanical issue rather than whatever one's philosophical conception of Brexit, if this is completing Brexit or otherwise, we're no longer in mechanical territory where there are certain things that are unavoidable and that somebody has to do. If you take the sunset provision as your starting point, I don't see what the objection would be to saying that if the legislation in question is within devolved competence that only the Scottish Government should have the power to decide whether that stays, whether it's restated, whether it's modified. That's my concern that the core Brexit legislation, you might say, was sui generis. It was in a category of its own and so extraordinary times and all that, but it now seems to be becoming a little bit of a habit and being repeated in areas where you can't really make that same case. Unfortunately, we have technical gremlins and I believe that our witnesses online can't hear our discussion. I hope that they will be able to bring them in very shortly. I apologise to them for that situation. I want to move to questions from the committee and I'll go first to Mr Cameron. Thank you, convener. Can I refer to my register of interests as a member of the Faculty of Advocates? Did you just pick up on that last point from Mr Livingston? Obviously, there's the ability of the Scottish Government to, quote, keep pace with EU law and it's a stated policy of the Scottish Government to align with EU law and therefore there is an ability for the Scottish Government to do so in the 2021 continuity act. I'm interested in that relationship between the Scottish Government's ability already to align and the potential under this bill for the Scottish Government and others to restate retained EU law. I just wonder if you've got any further observations on that. Is that for me specifically? For all the witnesses. If the bill goes through in terms of the Scottish Government's powers, the Scottish Government's powers to restate and probably more importantly to just save the legislation from repeal to begin with would certainly mean that the Scottish Government would have the ability to stop any retained EU law that is within devolved confidence from being sunsetted. That then creates issues of legal certainty, which we may come on to depending on the mechanics of how that worked. But whether you look at the powers within this bill or the powers in the continuity act, which obviously is a very broad secondary legislation power, I think that between the two of those, the Scottish Government would have very wide powers to preserve if that's the right word, retained EU law. That connects to my previous point, which is that given that the Scottish Government has all those powers, there isn't necessarily or I don't necessarily see a case having been made for the UK Government to have the powers to do the same things. I think that all I would add to that are two possible issues in terms of keeping pace. One is an issue that was flagged in the written briefing from the faculty, which is the fact that within the bill there is talk about not increasing the regulatory burden and the inability for certain if something is being replaced or alternative provision being made, the inability to increase the regulatory burden, so you'd have to consider how that might interact with a desired keep pace. The other thing is something out with the four corners of this, but it obviously is the Internal Market Act and whether the Internal Market Act would put a break on keeping pace just in terms of some of the mechanisms there, but that's not something within the four corners of this bill. Dr Hancock, if you want to add to that. I don't have much to add. I suppose that it means that there is at this point potentially a proliferation of secondary legislative powers of differing scope and potentially differing potential for scrutiny, so I suppose that the procedure which is adopted and the method which is used will be something that the Scottish Parliament will want to consider. Thank you for those answers. Can I move on to another point, which is to ask the panel about what is the alternative here? Is the alternative here to simply leave retained new law on the statute book in force and for slowly over time UK Government, Scottish Government, Welsh Government to pick off what they want to remove and leave what they want to remain? Is that realistically the alternative? I'll start with Dr Hood. Thank you very much. Yes, I think that that is. I think that that's well put and that allows because already the position was the idea that at the end of the transition period that certain legislation would immediately be removed from the various legal systems which plainly could not work out with us being an EU member, that the UK being an EU member. Some of that, as I say, has already been identified and removed and likewise some, perhaps not particularly significant amendment but a degree of amendment and modification was required to make certain things work within a different scope, so that has taken place. What that therefore left was exactly what you described, the ability to have a sector by sector or area by area topic by topic review of what was there and either because of a sexual review or even just because something came to be a priority or came to be an issue of focus for either this Parliament or the Parliament in Westminster, then it could at that stage be changed or altered as the case may be, but absolutely I think that that is and it just allows some things to be changed when it appears appropriate or by way of a sexual review of various areas, but I agree, I think that that is the alternative. Can I just check in? Can our witnesses online hear us? I believe they are back online and if they could bring in, if they want to address the first question as well, they could. Absolutely, I don't know if Mr Clancy wants to start with either that point or my first question, which was around the tension between keeping pace and the bill. Thank you very much indeed, Mr Cameron, for that interesting question. Of course, I could draw your attention to the comments of Tobias Locke, which are in the paper before the committee today. I would not depart from anything that Dr Locke would see here in terms of the way in which the continuity act powers run in parallel with the provisions of the rural bill and that the Scottish Government could in years to come enact legislation that would keep pace with EU law, even though it may have been sunsetted or otherwise dealt with under the current bill. I think that that probably would cover off my comment on that point. If I can just locate the question that you asked in the screen. No, I don't have your second question on the screen. Could you repeat it, please, Mr Cameron? My second question was about the alternative. Is the alternative to this, in just speaking very general terms, is the alternative to this just to leave retained EU law on the statute book and in time for any Government to pick off what it chooses to remove and just leave in place that which it would prefer to remain? Is that the obvious alternative? It is the obvious alternative. In fact, it fits with the plan. Insofar as there was a plan, as we saw in the white paper, which the then Prime Minister Theresa May explained what the plan was to convert the Aqee into UK law at the moment and repeal the European Communities Act 1972 and then proceed to have the same rules. I will quote here from the passage in legislating for the UK's withdrawal from the European Union command paper, the same rules and laws will apply on the day after exit as on the day before. It will then be for democratically elected representatives in the UK that I think that that's meant to comprise the UK Parliament, the Scottish Parliament, the then Welsh Assembly, now the Senate and the Northern Ireland Assembly to decide on any changes to that law after full scrutiny and proper debate. If one would allow me the opportunity to say that the then Prime Minister had it in mind that there would be full scrutiny and debate and unfortunately aspects of this bill will not permit that full scrutiny or debate in terms of the time limits and deadlines that are scattered throughout the bill and also in terms of the parliamentary procedures that are going to be adopted in terms of looking at any regulations made under the bill, which are generally speaking of a negative legislative element rather than an affirmative one. I have nothing further to add on your second question. I agree that there is this possibility but you have to read this against the backdrop of other provisions like the UK Internal Market Act which will place a limitation in practice of how extensively you will be able to buy and implement EU law going forward. With regard to your further question about the other alternative, I agree that the main alternative would be to take a sector by sector approach. I think that that has the advantage of preserving legal certainty. It also has the advantage of enhancing democratic scrutiny because there will be more time to go away and investigate and scrutinise through primary legislation, not just secondary legislation, so that you can involve legislators more effectively in scrutinising the new rules. It also has the advantage of enabling further consultation processes and enabling different legislators and Governments to approach those who are influenced by those rules at the moment. You can talk to them about which rules you want to stay and which rules should change going forward. That will give a much better way of thinking about how far you want to mirror EU provisions or potentially change EU provisions going forward. The other possible alternative that I can think of as a kind of midway point would be to do something that would be a little bit more staggered—to take your sector by sector approach but to set deadlines. If you were going to have some kind of sunset provision to be much clearer about which provisions of EU law were going to be sunsetted in this way, one of the problems of this particular piece of legislation is that, although it might be easy in some sense to identify retained EU law enacted under section 2 of the European Communities Act 1972, because you would be able to search that, it is much harder to necessarily be able to recognise every single piece of secondary legislation that was intended to implement any new obligation, which was enacted through another piece of parent legislation. We already saw on Tuesday, for example, information about further pieces that have been identified—I think that it was 1,400 pieces more than was on the EU dashboard—and that just points out how difficult it can be to spot everything. The other possible midway point would be to say that we have done a search—those are the ones that we have found, those are the ones that will be sunsetted in a certain time limit within longer time periods to scrutinise. It is the only other possible midway I can think of, but that would involve a lot of rolling pieces or rolling provisions to find and set deadlines, which is far more complicated than the alternative that you have proposed, which is the much more preferable alternative in terms of democratic scrutiny and legal certainty. For any of you, I will begin with Mr Livingston. Aside from all the democratic questions that trouble many of us in this committee about what is involved in this bill and the tabula raza, it seems to want to create. If any of you have any observations that start with Mr Livingston, it is about the sheer scale of what the UK Government appears to be proposing here. It is difficult for us to get an idea of what kind of amount of civil service time might be involved in trying to recreate the laws that are sunsetted or whether the Scottish Parliament chooses to go along with it or not. Given that they have just discovered another 1,400 laws that they have forgotten about, I wonder if I could begin with Mr Livingston and I see Dr Hood not interested in answering that one as well, so perhaps I will begin with you, Mr Livingston. I guess that I can most usefully answer that from a practitioner's perspective in terms of advising clients on what the law is. You referred to it as the tabula raza approach, but I refer to it as where the onus is here and the onus is on proactive steps to be taken in order to preserve legislation rather than proactive steps being taken to repeal it or, as Alison Young suggests, identify particular pieces of legislation for sunsetting. A greater use of sunset clauses might be a good idea in legislation that would encourage more post-legislative scrutiny and taking stock and deciding whether legislation still works is still required. However, doing it this way is very difficult because, as Alison Young said, you cannot necessarily know with absolute certainty what is within that category of things that are being repealed. From a practitioner's perspective, the one thing that I would add to that is that the Scottish Government's request of the UK Government is to exclude from the scope of the sunset clause legislation that is within devolved competence. Leaving aside any democratic issues from a practitioner's perspective, that would be an enormous headache to have to start with identifying whether something is within the category of law to which the sunset provision applied and then ask yourself the second question whether it is in the subcategory of things that are within devolved competence, which is similarly not always an easy question. That would create quite a lot of doubt from a legal certainty perspective as to whether a given piece of legislation was still in effect or not. Dr Hood, I do not know if you can answer the broader questions. Why would any country volunteer to go down this legislative route? I think that this is November 2022. Obviously, the headline time is set for the end of 2023. I would echo the Law Society's written submission that the end of 2023 is quite a vague term, and I found it perhaps a surprising term to be used in legislation, which is often a certain precision that is involved. However, leaving that more technical point aside, we are talking about just over a year now. Given the amount of legislation on the dashboard and, as has already been noted, the amount of additional legislation that has recently been identified, it just has to be said that this is an absolutely massive piece of work to go through, because of the nature of the sunset that things have to be, as Mr Livingstone pointed out, one would have to take active steps to try and preserve. It is a massive piece of work to try and go through all of those pieces of legislation and identify what has to be preserved and then how that is to be done in terms of restating or replacing whatever it might be. There are a number of dangers with that. There are dangers in terms of whether the civil service and the various parliamentary committees and plenary sessions can cope with the amount of work involved, as well as dealing with other work streams, which are of importance. There are issues about whether legislation that was put in place to replace or restate is rushed, whether unintended consequences thereby result or uncertain to, because things have had to be put in place very quickly without, again, as has been indicated, stakeholder involvement, giving guidance on how things work, or there is just not enough time for sense-checking and testing that draftsmen and civil servants would normally wish to do and that the Parliament would normally wish to do. The other big risk, because it is a sunset, is that things would be overlooked and you end up with plainly put gaps in the law where something passes out and it is not realised, and then that causes uncertainty, cost and at worst could cause injustice for people who are then affected by something that has dropped off the statute book that nobody appreciated in the rush to try and deal with such a massive project that no-one realised it would drop away. I don't know if others are willing to come in on any of those points. I'll only reiterate what's already been said about the huge volume of statutory instruments and retained direct EU law, but I also think that there's a deeper point than just simply keeping track of all the various pieces of legislation. One of the points that I made in my written submission was that I don't think that section 4 of the dashboard, for instance, is particularly comprehensive in terms of the rights that might be lost, but there's also just a point that the bill in its sunsetting also sunsets a number of interpretative principles and also proposes to abolish not only general principles of EU law, but also the supremacy of EU law. When we're thinking about the task facing the civil service and the devolved administrations, there's also this need to identify where domestic law, where law has been interpreted in a particular way, where there have been particular conflicts perhaps resolved in a certain way, so I think it goes beyond this mere task of identification, which we've already heard is incredibly difficult, to also potentially unforeseen changes due to changes in interpretation, say, that may not have been preserved, and also the fact that there is now this power to restate or to replace, which may lead to different restatements or differing replacements across all formations of the UK in a way in which it's quite hard to see, I suppose, how this will interact with what's already been agreed or proposed in terms of common frameworks and in terms of the Internal Market Act. I just think that we need to think about how it goes beyond simply keeping track of all the different pieces of retained EU law. Professor Young? Can you hear me now? I think that the only other thing I would add is that each of the departments, I presume, within Westminster, so each of the different ministerial departments, will be trying to take stock of their particular area, and it won't necessarily always be clear which ministerial department has responsibility for which pieces of these delegated legislation that have been identified in the dashboard or that have been identified later on. Not only have you got the problem of identifying, working out whether you're going to restate it, trying to find the time to go away and find them and decide what to do, you might end up with all sorts of possible clashes between departments, which means that things might fall through the gap because one department thinks that it belongs to another department, or it might end up with potential departments having to negotiate which one is looking at different areas. I think that this is a huge task, and it's going to be very difficult to do in a short period of time without extra resources and scrutiny. The problem is that, because of the sunset clause, if you haven't discovered it and decided what to do with it to retain it, it will just disappear, and this is going to lead to huge problems and legal certainty. I don't know if Mr Clancy is willing to come in on that. Surely. Yes, indeed I am. I agree with all the comments that have been made so far by the other people on the panel. I offer just a couple of observations. The blanket nature of the sunset provision in clause 1 is unjustified in the way in which I have seen sunset provisions pretty specific in other pieces of legislation, but that does not identify the legislation other than in the limited way of stating that it is all the EU-derived subordinate legislation and retained direct EU legislation to be revoked at the end of 2023. Of course, what one would ideally want to see is a schedule with a list of those items of legislation so that people would exactly know what was going to be revoked. There is no such list. Sorry to say that the dashboard promises a lot but delivers not exactly what one would have hoped for. Apart from the rather confusing way in which the dashboard describes that it applies to law prepared and implemented by the UK Parliament and the UK Government, it also says that, oh and by the way, there might be some devolved matters in there too just out of interest. I took a look at the ministry of justice section and, sure enough, there are pieces of legislation that are from the Scottish origin in terms of the continuity of the Rome conventions on contract and non-contractual obligations. However, you would have to know what you are looking for in order to find that. That is one of the difficulties that one is confronted with, which is that identification issue. That is going to be a big job. If it is 2,400 on the dashboard at the moment and then a further 1,400 to be added, the subordinate legislation or EU exit legislation in law applies from the devolved legislatures, that will mount up to approaching 5,000 pieces of legislation, probably slightly less but slightly more. Indeed, I am not sure that anyone who has done anakeric count will know that the extension of the sunset can only be done by ministers of the crown and that the devolved administrations do not have that power. That creates additional uncertainty because we are not sure that the minister of the crown would have the same sensitivities to devolved, retained EU law to put it in that phase, as it would have to all the other pieces of legislation that whitehall departments will be dealing with. I did a short analysis and with the help of clerks from the Delegated Powers and Law Reform Committee identified that there were 83 pieces of subordinate legislation that were dealt with under the protocol between the Scottish Government and the Parliament, but there were 86 pieces of EU exit legislation that may or may not all be retained EU law, which were passed by the Parliament, which relate only to devolved matters and were not requests to the UK to include a devolved provision in a UK instrument. I think that that clearly indicates that there are these elements and that rough rule of thumb takes us to 170-odd pieces of subordinate legislation, but that is clearly not necessarily a good way to do things, especially knowing my arithmetical skills not being the best. If there is time, convener, my other question is directed to Mr Livingston since he referred to some of those themes. The Hansard Society has indicated that the proposed legislation would in their words be an abdication of many of the UK Parliament's roles. I do not know what the word is, he would use if they are choosing to remove some of the role of this Parliament, presumably it is deposing that role rather than abdicating it. I am not sure how it works, but they have said that it has potentially serious implications to use those words for devolution. Can you give an indication of what the implications are for Scots law and the way that it develops? If it is developed increasingly by ministers who, to use Mr Clancy's words, may have a limited sensitivity to what Scots law is making? That goes back to the point about whether it is necessary for ministers of the Crown to have the powers to restate, amend and so on in relation to devolved matters. I am not sure that I can really improve on my previous answer, which is that I do not see the need for it. I do not get the impression that the powers are being conferred in anticipation of them being used by ministers of the Crown in devolved matters, which only reinforces my uncertainty about why they have that scope to begin with. I think that what we can talk about at the moment is the in-principle point, and I think that we have spoken about that. In terms of the in-practice point, we would really be speculating about whether those powers will actually be used. I would be very interested to know why the bill is written in the way that it is written and whether the powers are conferred in the way that they are conferred. Without knowing that, I am not sure. Others may feel better placed to speculate than me. Briefly, you are quite right to identify the fact that Scotland has a different legal system, and therefore there are a number of different aspects. There are aspects in terms of the direction that this Parliament wants to take, but there are also technical issues about Scots law continuing to work, as it were, and the way in which, if certain regulations or laws are passed at Westminster, how important it would be to ensure that there is sufficient technical input to ensure that that would work in the different context of the Scottish legal system. The only point that I want to cover, which is a broader point, is that, as you say, the Hansard society has raised concerns about a lack of scrutiny in the way that legislation could be passed at Westminster. Obviously, if those powers were used in the devolved space, that would have a concern for this Parliament. Obviously, if there is a concern about scrutiny in the way that the laws are being passed, that would be a concern for this Parliament, as to whether there has been sufficient input or scrutiny. I just realised that we should not be unfair to the Office of the Advocate General here. The UK Parliament and UK Government frequently make legislation that applies in Scotland and needs to interact with Scots law. Obviously, the Office of the Advocate General is there to ensure that it works for Scots law. As a technical matter, the ability is there to make sure that legislation fits with Scots law. It is not a minister of the crown, just sort of freelancing and assuming that Scots law is the same as in England and Wales, but that is not responsive to the accountability and scrutiny points. Just purely as a technical matter, I was probably a little bit unfair to the UK Government's Scots law capabilities previously. Mr Clancy wants to come in as well. Mr Clancy, I am not sure that we can hear you. There we are. My microphone has been unmuted. That's great. Thank you, convener. I think that setting it within the context of what we have in terms of its scrutiny, both at Westminster and in the Scottish Parliament, in the bill there is the limited period of time, which is now fast approaching only a year until the revoking takes place. From the point of view of the Scottish Government, which has already announced its programme for government with numerous bills already on their way through the Parliament and more to come in the course of next year, it will be challenging to deal with a significant amount of additional work, which has not been factored in at this point in time. It will also be challenging in Westminster, where there are a number of significant programme bills already going through, which were announced in the Queen's speech, including the bill, and which will then be making their way through on the basis of hitting the end of 2023. Thank you, Kirsty Hooke, for commenting on our paper. On the extension period to 17 June 2026, again in our paper, we make the point that that is not necessarily the most rational way to approach legislation is to simply pick a date, which is 10th anniversary of the EU referendum, and say that we will do all this work within that period of time, or we will defer lawmaking or make new law within that period of time. That is not a rational approach because it does not take account of consultation and all the other things that need to be done with a piece of legislation to make sure that it works, to make sure that it is clear, to make sure that it is effective and coherent. Of course, that is the point when legislator wars like yourselves and those counterparts in Westminster address a piece of legislation are looking to make sure that law works for the people, works for individuals and businesses, and there will be very little opportunity to consult properly and that individuals and businesses will find themselves perhaps in the dark at any one of those deadlines, which I hope the amendments that we are currently preparing at law society will be taken up when the bill passes through the UK Parliament. Those deadlines will be extended, perhaps five or 10 years hence, to make sure that that particular job is done in a proper way, rather than in the rush against those deadlines, which are not particularly structured taking into account all the needs to be done to make a piece of legislation. I was interested in how the status of retained EU case law might change as a result of this bill. I was quite struck by the points that were made in a number of the submissions, including faculty of advocates, about how retained case law, the status of it, may be diminished in some way. If it was judged that that case law may restrict the proper development of domestic law, I do not have in my mind what proper development of domestic law would actually be in the mind of ministers. I wonder if you could expand on that. If there are any particular examples that you could use to colour that scenario, that would be useful. If I could start with Dr Hood, that would be great. I will move on to others. There is the broader point that it would make a change to the way in which interpretation was handled. That comes back to a point that Dr Hancock has made. In terms of EU law, when the courts consider how pieces of legislation work, bear in mind that we are now thinking historically when the UK left the EU that broke the dynamic alignment. Therefore, you are looking at courts being asked to interpret what the law was at some point in the past prior to withdrawal. Some of the key tools have been potentially taken away from the court. At the time when the parties regulated their behaviour, when they sought legal advice, they would have taken those key tools into consideration as to what certain terms meant. Given that, for example, particular terms in EU legislation will have had certain meanings and that will have been sent down by courts at the time, it is difficult to ask courts to go back and to interpret and apply what the law was at a given time without using the tools that they would have expected to use at that time. On that point of detail, the bill says that certain things would have to be taken into account if a court is deciding whether to depart from the retained EU case law. That particular phrase, one of the factors, is the extent to which the retained EU case law restricts the proper development of domestic law. That seems to me potentially a very difficult factor, because what is meant by proper development is an unusual phrase to ask a court to try and work out what the proper development of law is. The courts are there to apply the law, they are there to interpret the law and apply it to the actings and behaviours of parties. Of course, to some extent, as the court does that, it might develop the law as a body of law, in the sense that it sheds light on perhaps something that was unclear that someone's particular case allows the court to shed light on how the law is properly understood and properly interpreted. To ask the court to work out how domestic law should properly develop and whether something is restricting it, it is perhaps a phrase or a device that would not be one that the courts would have a lot of experience or familiarity with. I do not know whether the thinking behind it is the idea that, in some way, a piece of EU legislation and a particular case law that interpreted EU legislation was appropriate to a period of EU membership but was not appropriate outwith that context. The terminology of that is one that could potentially pose difficulties for the courts to do that, given that they are there to make laws for this Parliament and for the other parliaments in the UK. The courts are there just simply to interpret, to apply, to shed light and to allow the body of law to develop in the important work that they do. Does it effectively invite courts to second-guess the direction of policy and the direction of political decisions around environmental legislation and go back to the habitats directive? There is obviously a vast amount of case law that has come on the back of that consideration of public interest tests and other aspects. Does it require courts then to look at what might be coming on the statute books and where things are going or is the temptation always going to be to look back at the 50 years of progress and say, well, that is part of the proper development? The difficulty is that, as written, does it extend that invitation to the courts? Obviously, if a party is then appearing before the courts, what arguments would be put before it? As it is phrased, it seems to me that it could have both of those invitations, whether simply a backward look or a forward look. The idea of proper development in itself could perhaps be said to be a loaded term, and that comes back to your point. Is it asking courts to second-guess direction or trajectory? What if a party says to the court, well, that may be the trajectory, but I do not think that that is the proper direction that the law should take. Indeed, it strikes me that it potentially opens up those invitations and then puts the court in a position of trying to give effect to that, which is asked to give effect to that factor, but to try and balance the court's normal role within our society and within our system with the way that that is put. I suppose there is a wider context here with, for example, levelling up bill, the potential removal of environmental assessment procedures and that sort of side of things as a shift in policy. Dr Hancox, did you want to— Your first question, Mark. Yes, I was just going to move to Dr Hancox to see if you wanted to come in on that, particularly for moving to others. Yes, thank you. I suppose one of the things that the bill does is to essentially—I think it is trying to make it easier for domestic courts to depart or it is trying to suggest that domestic courts do depart. One of the points that the Government raises in its explanatory notes to the bill is that it is building upon some of the factors that were mentioned in this case of tune in against warner. In that case, a considerable emphasis was given to legal certainty and to the fact that a court would not depart lightly, I suppose, from retained EU case law, given the risks to legal certainty. One of the factors that courts are supposed to take into account is the fact that decisions of foreign courts might or otherwise not be binding. That was raised in tune in, but it was in relation to the fact that comparative law or comparative arguments were made to the court, where there were very separate legislative regimes, different case law, whereas it is not that the European Court of Justice was not treated as a foreign court, but it was a foreign court interpreting a very similar body of law in which had considerable expertise, also that it was interpreting standards that were enmeshed in international standards beyond the EU framework. In terms of the extent—or in terms of this point about the extent to which retained EU law may be impacting upon the proper development of UK law, in tune in again policy arguments were made relating to this point, and the court refused to depart from retained EU case law. I think that when this power has been used in the past, it's been when there's been considerable injustice potentially caused through long-standing case law, whereas when we're talking about the interpretation of retained EU law, we're talking about a lot of the interpretation, I suppose, of considerable legislation. So it's hard to see that this power will be used that frequently by domestic courts, although I suppose they will have to take very seriously the fact that these criteria will be listed. Professor Young. Thank you. I think I would reiterate the points that have already been made, and I agree that the concern is the use of proper. It seems to push this too far towards policy arguments, and that's particularly when you put it in the context of the provisions that come early in that particular section. You're looking at beforehand elements of how it might have been determined, the circumstances might have changed, or the fact that when they're in Europe means that there will be differences in how we want to interpret provisions. It's very odd to see the proper development of domestic law, and I've been trying to understand what it might be other than an element of a policy choice of what you think the law might be required to develop. The only thing that I can think of is this idea that when you are looking at retained EU case law, so case law interpreting provisions of EU law, then obviously the Court of Justice of the European Union does have the context of we need to have harmonisation. We need a uniform provision across the European Union, and obviously, once you're no longer in that particular scenario, you don't necessarily have to have uniformity. However, I don't understand how you can delineate clearly when the Court of Justice has chosen a provision because it wants uniformity, and when it's because they think that this is the best way of interpreting that piece of legislation, and then once they do that, they achieve uniformity. It's also very difficult, not just in practice, but it's also problematic to then be able to say that we, just because we don't have to have uniformity, that means that it wouldn't be a proper development if we were to go away and retain this. There can be other good reasons for continuing to interpret the provision because of legal certainty and because this is a good interpretation. The new I can try and think of giving you examples is if you look at provisions like the working time regulations, which implement the working time directive, you have to determine what would be classed as work in certain scenarios. You might be thinking about, if you have, for example, workers who are on call, does this count as work because they're on call or does this not count work because they could be somewhere else waiting for the call to come in to count as their working hours? I'm just not sure how you could then look at that and say, when I look at a previous interpretation of an individual being on call as being within their working hours, whether I change that because I think it's not proper development because we want to develop in a different way. I can't say it's anything other than a policy choice of deciding I don't want this person to be counted as working hours or counted as working hours. It's very hard for me to then sort of delineate that as anything other than a policy choice when it comes to proper development. That gets even more concerning because it's not just the parties that can raise this and say, we think that this would restrict the proper development so that we want to change the interpretation. The law officers can intervene and make a reference up if they think that a decision was taken incorrectly, which again will open up invitations to the court to potentially make policy choices. I'm very suspicious of the idea of a proper development in its context. I don't understand what it can mean other than policy choices. That's a useful example of the working-time directive, perhaps something that we've all taken for granted. Can I ask Mr Clancy, or Mr Livingston, if they want to come in on this as well? Surely, by all means, as I just find the section in the bill, I endorse what's been said already. I think that there is a significant issue about the way in which we're going to be proceeding to deal with retained EU case law in the future. The provision highlights that by, essentially, taking away some discretion from the court, you'll notice there in clause 7.3, which concerns new subsection 5, that the higher court concern must have regard to, not may have regard to but must have regard to, so that an obligation is being placed on the court to have regard to those other factors. Those factors mean that the fact that decisions of a foreign court are not binding—is that a fact or is it an opinion of law—is certainly the case that the decisions of foreign courts are not binding unless there are special arrangements made because it's understood that such decisions of such courts are persuasive. The comparative law arguments that one would put forward to make that so would be that you would not be proposing to the court that they are bound in any way by the decision of a court outside the United Kingdom or a court outside even the jurisdiction of Scotland, but that the decision there would be persuasive, perhaps, if it was dealing with the same point and the same interpretation of the same provision of the law. However, the court is now going to have to take into or have regard to this factor. Then, changes of circumstances that are relevant to the retained EU case law, well, they wouldn't be anyway have regard to such changes of circumstances. Any court would be listening to the representatives presenting the case in front of it and would then also be aware of changes in circumstances, one of which maybe would draw from the European Union. Lastly, the discussion around the importance of the word proper in the development of domestic law. From whose standpoint is proper to be interpreted, if it is from the point of view of the court, there may be no proper development of domestic law at all. It implies that there is some policy objective that needs to be attained. I suspect that the proper element here is inserted in the bill because the ministers involved have an objective about the interpretation of the law that probably relates to the underlying philosophy of the bill, which is to make sure that European Union retained law is not going to apply in the future and that we will have so-called domestic closing commas law, which would apply instead. Just very briefly, I do not really dissent from anything that has been said, but just observed from a practitioner's perspective, one should not underestimate the small C conservatism of the courts. I am not sure that this provision will result in many of any cases coming out differently than it would have in any event. When you are dealing with something as vague as the proper development of domestic law, I think that the courts will often take the view that it is vague enough that they do not really need to do anything with it, because they cannot clearly be accused of failing to take account of it. It is not exactly a defensive legislation to say that I do not think that it is likely to have much of an effect so that you do not need to worry about it, but, as a matter of practice, it is unlikely to be decisive in very many cases. Little conscious of time if a cat could be succinct in answers going forward, unfortunately I have a couple of agenda items to cover before having to leave the chamber. I am going to bring in Ms Boyack. I very much appreciate all the written evidence that you have supplied in advance. It feels unprecedented, because you are all very measured witnesses. The background that you have all got gives weight to the comments that you have given, which are worrying about legal certainty, risks, unattended consequences, lack of scrutiny, Government capacity or lack of capacity. I will go to Michael Clancy first, because, in your submission right at the start in your general comments, you said that there is no reason why retained EU law cannot be considered a sustainable concept. On the other hand, it would be equally possible, following a thorough review in relevant amendments, that incorporation to domestic law in the four UK jurisdictions could be completed. Do you want to say a little bit more on that, because thus far it has been that this will be a disaster? Is there something about what would be a more positive approach that would enable a degree of scrutiny and accountability for not just parliamentarians but people that we represent? Can you kick off with that, Mr Clancy? I will try my best. Thank you very much indeed for the compliments that you paid to the briefing, Ms Boyack. The concept of retained EU law was the only place to go once the referendum had decided that the UK was leaving the European Union, unless one wanted a fee for all, where there would be no certainty in the law and no clarity. Retained EU law, as a concept, had to be the one that was adopted in previous evidence. I have highlighted that, when similar scientific changes have happened constitutionally in colonial experience and colonies becoming independent, there is frequently a provision in that independence legislation, which says that the existing law, as at a particular date, normally English law, in our experience, was continued after independence until such time as it has changed by the newly independent legislature. Following that kind of model was quite correct, because it ensured that there was certainty about what the law was, and because underlying principles such as the supremacy of EU law were maintained, then there was guidance as to how that would be interpreted, and other principles such as proportionality and equal treatment were also being kept. Those provisions made sure that there was relatively good understanding of what the law would be after we left the European Union. To do it any other way would produce the opposite result. It would lack clarity, lack certainty and have an adverse impact on individuals and businesses. Colleagues on the panel have stated throughout this morning's evidence that the changes that we are seeing in the bill are reintroducing elements of lack of certainty and lack of clarity and the potential for adverse impact on businesses and individuals in Scotland and the wider UK. Thank you very much. Could I go to Kirsty Hoot, Dr Hoot about that issue? It is six years on since the vote, and suddenly in a year all of this legislation is to be wrapped up, and it is going to be incredibly hard for us to scrutinise it. What would your advice be to the Scottish Parliament in terms of how we make sure that we do not miss out on really vital legislation that is going to change people's lives here? I think that you are absolutely right to identify that key issue about changing people's lives, because of course that is the important thing to remember, is that legislation is not a symbol, and the internal legislation is there to facilitate and intervene in the lives and work of people and businesses across the country. It is there to serve a purpose and to allow things to work. As far as individuals and businesses are concerned, they do not really have much of an interest other than the interests that any of us might have in how historically pieces of rulemaking came to be. What they are interested in knowing when it comes to arranging their affairs is what is the law. The thing here is that, as has been indicated, the 2018 act took the normal stance that would happen when there are significant times of constitutional change, which is to keep the body of law in place to allow continuity and certainty in the way that people go about their daily lives and their business. That can then be changed going forward in the appropriate way, with consultation, scrutiny and so on. That system is already in place. To try and bring everything forward in this way and put a very tight deadline on a massive piece of work and do it in such a way that, if something is overlooked or missed, that has very real consequences for people. It does involve a great deal of work for civil servants and parliamentarians, and it brings with it risk. It seems to me and other bodies and commentators that have commented whether they are here or in terms of the Westminster evidence-giving context. A lot of that question may be with Mr Livison, because you talked about risk uncertainty. What kind of risk assessment should we be doing as parliamentarians to try and identify elements of legislation that might be most vulnerable in this process? In terms of what the Scottish Parliament should be doing in terms of scrutiny and accountability, I think that that would follow on from the question of what the Scottish Government would do in the event that the bill is passed. As I mentioned, the powers in the bill could be used by the Scottish Government simply to save everything that would otherwise be sunsetted, more or less, certainly in terms of the secondary legislation, in which case there isn't so much for the Scottish Parliament to scrutinise. As I said before, from a certainty and a risk perspective, ideally things would be saved by reference to a list of, here are the items of legislation that are being saved, but if necessary, I think that they could be saved by reference to legislation as a category, so everything that would be within devolved competence, essentially everything over which the bill confers powers on the Scottish ministers. In terms of parliamentary scrutiny, I think that that is the preliminary question how much would there be to scrutinise. The UK Parliament will have a much more difficult time because clearly the UK Government's intention is not to save everything, but if the Scottish Government wants to essentially act as if the bill had never happened, then the powers are available not to do that in its entirety, but certainly to take away much of the workload that it would cause. Dr Hancock, you gave us a really interesting set of thoughts about this in terms of what we should be thinking about. Do you have any comments on this in terms of what we should be doing? Should this legislation go through as is? I suppose that one point that I would make is that to me there are many issues, but I suppose that there is one point about just the sunsetting, and then there is also the point about the saving, I suppose, or the powers to restate. I know that one of the concerns or the policy concerns behind the bill is that there are currently not the adequate powers to amend retained EU law. That goes back to the earlier question about interactions between the continuity act and this new bill. In my opinion, the use of the sunset clause adds further complications potentially on to the fact that there are then quite wide powers to amend retained EU law. I wonder if there would be a way around sunsetting either by listing all the provisions or by some form of downgrading of the status of retained EU law without necessarily this cliff edge that we again find ourselves in. I think that it is also one point at which I think has already been raised about this bill is that it is not just about even if we do talk about the powers to save EU law as it is, there is a deregulatory element to this bill, as Dr Hood has mentioned, in terms of this regulatory burden, which can include things such as will the cost be increased? All those various concerns make it quite an unsatisfactory way of trying to ensure legal certainty and high standards and prevent, as has been said, injustices and changes in the law that are not intended. Professor Young, do you have any comments to wrap up on this in terms of what we should be doing to attempt to mitigate the impact of this potentially very damaging legislation? I need very briefly that it is a case of also having to keep track of decisions to decide to restate or decide not to bother to restate, and so therefore it collapses. It is not just the element of scrutinising any pieces of legislation that comes through, but thinking of ways of scrutinising those decisions to either restate or not. Thank you very much, it is helpful. Again, just to emphasise in time our final question from Ms Binto. Thank you for all the documents and information that you have provided with us. I would like to question a bit more about the practical impact that this is going to have on the normal person walking in the street. I note as well what Dr Hancock said about the deregularity agenda and how that may impact on the way in which we live our lives. There was also a comment in the law society about the definition of burden and how that may impact on a race to the bottom, which I think was raised in the chamber of Westminster as well. A few things, really the practical impacts, the examples that I thought Professor Young's example of the working time directive was a very strong one. I just wonder if there are other ones that we can focus into practicalities of the impact of the proposed bill. I do not know who wants to take that first. To me, a clear example is article 157 of the TFU, which is the right to equal pay for equal work and work of equal value between men and women. That is only saved. It is not fully replicated, I suppose, in the current Equality Act. There has been quite recent case law, so there is a big case involving Tesco, in which article 157 is still very much used by litigants and by applicants. As well, it is able to be relied upon against employers. I think that this is just one area in which this is something that, if not saved, will be fully sunsetted but will also have to be saved in terms of all the case law of the court of justice will need to somehow be replicated in terms of how it is restated or replaced in some ways. That is just one example that I will give. Thank you very much. I think that the thing about the EU legislation and taking that in its widest sense, as Dr Hancock said, in terms of the temperature of context and so on, it is important to realise that the impact of the EU over the whole period of our membership is woven into so many pieces of our law. Those can be things that appear to be big statements of principle but also things of really quite intense technical detail. We are talking across, it is difficult probably to imagine a sector or area of the law where there hasn't been an impact of some kind and therefore in terms of although it may not perhaps always be obvious to people within their daily lives or within their daily business, there are so many areas where that is affected and therefore change within these various sectors therefore does have the potential to impact on people really across the board. In terms of the deregulatory, yes, it is difficult to add too much to what the Hansard society has said in terms of the way in which burden, which was said already here this morning, is defined as having the potential to mean that protections enjoyed by businesses and by individuals could be downgraded but there would be difficulties conversely in enhancing protection and that would obviously be something businesses and individuals would be. I think that there is somewhere that testing of cosmetics on animals is brought into this all the EU legislation as well so that that may have a negative impact if that is lost. Mr Livingston, have you got it? I find it slightly difficult to talk about concrete examples, which is not to dodge the question but it is more to illustrate a key point about the bill, which is that we don't actually know what would go and what would be saved but because the starting premise is that something goes unless it is saved, at that point you are then speculating, which goes to that scrutiny and accountability element in that because it is being done this way one can really only talk in hypotheticals and when it comes to the point of decision about what goes and what is saved there is limited ability to discuss it there. You could talk forever about what might be included but until you know how the bill is to be used you cannot really have the proper discussion which illustrates one of the difficulties with the bill. Thank you for that. I'm just thinking of known unknowns, unknown unknowns etc etc. Mr Clancy. It is the unknown elements and of course looking at the provisions in respect to sunset, we know that a minister of the Crown can extend the sunset under section 1 but Scottish ministers, Welsh ministers and Northern Ireland executive cannot and they can't make any extension there so that we don't know what might be extended by a minister of the Crown. I take the point that Charles Livingston made about the excellent work that the Office of the Advocate General does in making sure that ministers of the Crown are aware of the Scottish implications in the legislation that they deal with but under section or clause 3 of the bill the sunset for retained EU rights powers and liabilities is subject to no particular extension provisions at all and indeed they are repealed at the end of 2023 so there is a group of rights and powers in there which are not enumerated in any kind of a way other than by reference back to section 4 of the European Union withdrawal act and so therefore that is likely to have some impact on individuals as well as the general listing of EU-derived subordinate legislation and retained direct EU legislation. Like Charles, I don't have a list. I suppose that there ought to be a list but there's no sign that that's happening. On the burden's point, the point that we were making in relation to the definition of burden is that the provisions in clause 15 relating to burdens are different from those in the Legislative and Regulatory Format of 2006 in that there needs to be some kind of determinative consistency particularly as there doesn't seem to be any kind of cross amendment of the existing legislation. Very briefly, Mr Golden, and please if you can be succinct to the answer it would be very helpful. I was just to briefly explore some comments from Dr Hood and Professor Young around the internal market act and if we start with Professor Young. I'm just interested given that a Scottish Government policy to align with newly introduced EU law although it hasn't been enacted yet. We could see a situation whereby there's a possibility for divergence between certain parts of the UK and if that happens that divergence is at odds with the principles of the internal market act. How would you see this play out and what could be done by the UK and Scottish Government and other devolved administrations to pre-empt this and or resolve any issues that may arise? Thank you. I'll try and be brief. My concern would be in particular with regard to EU measures that deal with products safety requirements. Is there anything that does with things like safety of supplies or things like gas supply or safety of components that can go into goods? Obviously if they lapse, although there is the ability in Scotland to then go away and enact measures to retain those, they can then start triggering the fact that although they can be retained in Scotland, the effect through the internal market bill would be if they're not being retained in other parts of the UK, then those goods that aren't as safe or lawful and should also be able to be sold in Scotland, so it can undermine the effect of wanting to track in those ways, which I think could be very problematic. In terms of what you can do, I think it's a case of drawing your best to liais across the different devolved Governments and to think about how much further you can push on the common frameworks to make sure that there is commonality going forward to protect those particular measures and maybe there can be mechanisms between the devolved Governments and Legislature as well as with regard to Westminster about which of these provisions you would like to use your powers to retain in order to try and get some form of commonality across the UK. I think that all I would really add to that is that one of the points that was flagged at the time when the internal market act was going through and when it was in the bill stage is that on the face of it it appeared to allow less divergence for Scotland within the UK than divergence had been possible when the UK was an EU member state and we had a broader grouping. That obviously raises an issue for this Parliament and for the other devolved legislatures about how far policy choices voted on by elected members within the legislatures can be given effect to and how far the internal market act cuts across those policy choices starting from the proposition that where you have different devolved legislatures there must be within the system a respect for the different legislatures within their different competent areas to give effect to the policy choices that they are that they have elected members vote upon. Can I just come in very briefly on a technical point so I think that the grandfathering provision within the internal market act will be key in terms of its relationship with the current bill. Anything that was in existence prior to the internal market act is unaffected by the internal market act. I think that if provisions are prevented from sunsetting, if they are saved under the bill, I think that the grandfathering would unquestionably still apply to them. If they are only restated, I think that it probably still applies to them. If they are modified, then you get into more difficult territory. I think that grandfathering provision is a key thing to keep in mind when discussing that issue. Thanks, that's very interesting. Don't think anyone else wants to come in. I think we'll have to try to close there. I thank all our witnesses for their attendance and indeed for the briefings prior to this session but I'm going to now move into private session.