 Good morning. A very warm welcome to the 23rd meeting of the constitution Europe external affairs and culture committee in 2022. Our first agenda item is the decision in taking business in private. Are members content to take agenda item 3 in private? Yes. Thank you. Our second agenda item is to take evidence on the legislative consent memorandum for the Northern Ireland protocol bill. We have two evidence sessions on the LCM this morning, and I first welcome to the committee Dr Ruth Fox, director for the Hansard Society, Sir Jonathan Jones KC, senior consultant, linked letters LLP, Dr Oliver Garner, research fellow Bingham Centre for the rule of law, and hopefully she may not be able to join us online. We may be joined by Professor Catherine Barnard, deputy director of the UK in changing Europe. We may also be joined for a short time by our committee's advisor, Professor Katie Hayward. I would like to begin this morning with an opening question to the panel. In our recent report on the impact of Brexit on devolution, the committee shared its view that the extent of UK ministers' new delegated powers in devolved areas amounts to significant constitutional change. Given that the bill does not confirm any powers directly on Scottish ministers and that there would be no requirement to obtain consent from the Scottish Parliament or Government before the delegated powers proposed in the bill are exercised by UK ministers, what are your views on the impact that this could have on the way that devolution operates and, in particular, on the Scottish Parliament's scrutiny rules? I agree that it presents a significant constitutional problem. The nature of the bill and the powers in it are so broad that it grants considerable powers to UK ministers across a broad range of areas in respect of the protocol. In addition to the question about ministers being able to legislate in respect of areas of devolved combatants, it also undermines the role of the Parliament because, unlike in other bills that you would expect, you would normally see provisions for the scrutiny of exercise of powers and that those are not contained on the face of the bill in this case. I agree with that critique. In my view, the bill is a very bad piece of legislation, really for two fundamental reasons. The first that I realise is not necessarily your focus at the moment, but it is just worth reflecting on the widely held view, including by me. The bill is a clear breach of the UK's international law obligations under the withdrawal agreement and the protocol. I and others are on record as saying that we find the Government's explanation to the bill. That is to say that it is justified by reasons of necessity, by reason of a grave and imminent threat to the UK's essential interests. I find that completely unpersuasive, but there is a serious problem of the bill in terms of its incompatibility with international law. The second fundamental problem is the one that you have touched on and that Dr Fox has mentioned, which is the nature of the powers that the bill confers on UK ministers, which are extremely wide. That is not a problem that is confined to the bill, and the hands-on society of much others is very much on this case. It is a tendency of the UK Government to introduce legislation that confers very wide powers on ministers with limited opportunity, even for the UK Parliament, to scrutinise their exercise. That is a serious problem, but the bill is a very strong example of that. It confers wide powers on UK ministers with, as I said, a limited opportunity, even for the Westminster Parliament, to scrutinise their exercise. Of course, the powers are themselves powers to take action contrary to the protocol. Linking the two points that I have made is an extraordinary thing about the bill. It empowers ministers to do things that are incompatible with the UK's international law obligations. The nature of the power in that respect is very strange, and I would say objectionable. As you well recognise, the bill directly confers no powers on any of the devolved administrations. It empowers UK ministers to do so. Again, we have a very strong layer of delegation or sub-delegation where UK ministers can decide in their discretion that some aspects of those powers are sub-delegated to say Scottish ministers. However, we have no way of knowing whether that will happen. There is no opportunity for the Scottish Government or the Scottish Parliament to certainly have a legal opportunity for them to influence that decision. There is no obligation under the bill to consult. It follows, as you say, that there is very little scope for scrutiny of the exercise of those powers to make a decision whether or not to delegate them. I agree again with my fellow witnesses on the point that those are extremely wide powers in terms of scope and also about the international law compliance issues. This is part of the living sense for the rule of law's main engagement on this bill. There were three points that I would make in terms of the specific question about the impact and the effect for the devolution settlement. It is worth pointing out, as outlined in the legislative consent memorandum, paragraph 41 and 42, that the Northern Ireland protocol does affect interests of Scotland that is outlined well in the memorandum. Of course, that leads to questions of the democratic principle on the fact that those who have affected interests should be involved in decision making. Although those powers are broad in terms of allowing UK Government ministers to define what could be excluded provision and therefore what the UK would no longer implement from the Northern Ireland protocol, in terms of why the devolution settlement in relation to Scotland and the UK, this is a rather narrow context. It relates to the Northern Ireland protocol, which is about regulating matters on the island of Ireland. The important point is that the UK is claiming that this is an emergency situation. Although I would say that this is symptomatic of a wider trend in terms of the UK Government creating extended delegated powers, I would say that in this situation, in this particular bill, those powers in themselves, I do not believe, would affect the devolution settlement because of the fact that they are limited to a claimed situation of emergency. Professor Barnard is with us now. I am not sure that she heard the first question. Do you want to make a comment at this point? That is not good enough connection at this stage to be able to go forward at the moment. Perhaps I could look at that, but I will go to questions generally from the panel. I would give Mr Cameron first of all. Thank you convener. Good morning to the panel. I refer to my register of interests as a member of the Faculty of Advocates. It is important to note that politics here is moving very quickly, both in Northern Ireland and in the UK. We know that negotiations have been renewed between the UK Government and the EU. The new Prime Minister has said that he prefers a negotiated solution to the dispute over the protocol. The general feeling that a pragmatic approach may render the legislation redundant. I focus on the areas in the bill that suggest pragmatic solutions to the various issues, such as the red and green lane issues, the dual regulatory regime and the governance arrangements. Do the panel feel that there are areas of pragmatic compromise in the bill that are useful in setting aside the concerns that are important about the legalities and the issues of delegated powers? I turn first to Sir Jonathan. Well, I am not a politician. It should be said that I am a lawyer rather than a politician, although I followed the politics of this issue reasonably closely, as you can imagine. I start with the basic point. I know that you are trying to step aside from the legality, but the reason why negotiation is to be preferred as an approach is both because that is how you amend international treaties. You signed up for binding international treaties, which is what that is, and you discovered that, in some way, it is not working as you expected, then the thing to do is to try to negotiate changes to it rather than unilaterally to legislate, to override it or walk away from it. That is the nature of treaties, particularly one entered into by the UK so recently as this. To legislate in the way that the Government is proposing, it is inevitably being seen as a hostile act by the EU, the other party, to the agreement. Again, although I am not a politician, my assessment would be that to proceed with this course is not going to solve the problem. To the extent that there is a problem, accepting from the moment that there is a problem with the way that the protocol is operating, legislating in this unilateral way is not a way to settle or solve the problem on the country. It will, as I say, be seen as a hostile act by the EU. It will inevitably, in my view, damage relations with the EU. It is liable to provoke retaliatory action and, at worst, to trade war and so on. For both the reason of principle and for those practical reasons, I hope that the new Government and new leadership will take a different approach. So far, as far as I can see, that has not included any commitment to withdrawing the bill, we will have to see whether the bill is withdrawn or at least paused. I hope that it is. It is quite difficult to see how the Government, on the one hand, can say that it wants a negotiated settlement or that it wants to talk, which is the right thing to do both in principle and in practice, while at the same time actively pursuing a bill that, as I keep saying, overrides the UK's international obligations and, I think, will be very damaging to those relationships. As to particular areas, I do not claim to be expert in what the specific areas of negotiation are likely to be, which ones are likely to be successful. The bill itself is quite opaque as to what options the Government wants to pursue, and that, again, is part of the problem with a bill that confers very wide powers. There is no certainty as to exactly what the Government will want to do with it. My own view is that, if the real issue is around trade and freedom of trade and the level of checks at the border and so on, those are the areas that should be pursued, rather than, for example, questions of governance. I have heard questions of governance as a complete red herring facting. There may well be politicians who would dislike the fact, for example, that the European Court has been given supervisory role over aspects of the protocol, but that was the deal that was struck. The idea that that is now a serious impediment to trade or a serious cause of disruption to the Northern Ireland economy or a cause of disruption is completely implausible. I would not be pursuing those aspects at all, because I do not think that they are the source of the problem. The source of the problem is essentially the nature of the flow of trade and the level of checks between GB and Northern Ireland, and I suggest that those are the areas that negotiations should focus on. I cannot comment on the technicalities of the protocol and the issues around what the Government wants to achieve or what it wants to achieve in changing aspects of that. However, the fundamental problem is that legislation is proceeding policy formulation when the normal cause of events would be the other way around. It is doing so on the basis of claiming on grounds of speed and flexibility and the need to act quickly. It needs the breadth of these powers, but it is not acting quickly, as we have seen. The bill has now been around for several months, and it has acted far more quickly with regard to other legislation. The energy process bill, for example, went through all its stages in the House of Commons in a day, so, if it needed to act quickly, once policy was formulated, it could do so. As Jonathan said, the problem is that the nature of the powers, the breadth of them, the lack of detail means that you can read the entirety of the bill and have absolutely no real idea of what it is that the Government intends to do to how to use them. It is simply framework powers that will confer on ministers extraordinary discretion to essentially rip up aspects of the protocol as they wish, outwith little oversight by the UK Parliament. I think that I'd echo something that Jonathan said about how any compromise proposed any solutions could hypothetically be perfect solutions to this problem that's really vexed the EU and the UK really ever since negotiations started. For the point that I'd make is, so long as the promulgation creation of new measures and new proposals does not comply with the rules of the game that both the UK and the EU agreed to, then, in effect, these policies or proposals simply do not pass the entry requirements in order for them to be regarded as sufficiently pragmatic compromises by the EU. I think that what's crucial here is that there's a lot said about the EU being a community of law and a non-legal process, but it's a broader rule of law point. It's just about complying with the rules of the game that one has not only agreed to but created. That's the case with the mobile protocol and that's the case particularly with mechanisms like article 16, which is a mechanism for appropriate safe government measures that the UK Government has not decided to trigger at this point. I would argue on that point that this is why the Bingham Centre in our report in July on committee stage of the bill supports amendments that would create what we call an international treaty compliance trigger. This would establish a prior condition whereby the clauses in the bill that creates excluded provision and create powers to extend that could only come into force if either they were implementing a future agreement between the EU and the UK on the protocol or they were implementing article 16 measures appropriate safeguard measures. To go back to your original question, it's really a political question and an economic question of whether the solutions proposed are good compromises. The legal question, the key legal point is the means by which they're delivered must comply with the rules of the game and I think until we're at that point that they're complied with the rules of the game we can't even go on to consider whether they're appropriate solutions or not and the EU I believe simply will not engage. Thank you for that. I mean I hear that and as a lawyer and a politician I acknowledge those points but for instance the Northern Ireland Chamber, Stuart Anderson of the Northern Ireland Chamber representing Northern Ireland businesses has said that some of the proposals in the bill, the practical proposals, will help consumer facing businesses and ultimately this is a practical political problem that requires to be solved and I'm just wondering if you have any comments on those practical proposals as potential areas of compromise that could help solve this problem? You may have nothing further to add Dr Garner. I do have something to add because I believe in my professional capacity comment on the proposals themselves. What I can say is again article 16 provides means by which the EU and the UK could actually discuss these proposals within the auspices of safeguard mechanisms because annex seven outlines that if article 16 is triggered then that starts discussions in the joint committee with a view to finding a commonly acceptable solution so I would just say I know it's not exactly an answer to the question you're asking but I would say there are platforms within the protocol that will allow the UK to make its base in the joint committee rather than it being done in this very antagonistic way. Can I finally turn to Professor Barnard who I think is joining us by audio. Professor Barnard, can you hear us? We can't hear you at the moment. That's unfortunate. I think we need to move on. I've got a supplementary question. Can you hear me? We can hear you now, yes. Yeah, thank you. I'd just like to make three points. The first point is it's unlikely that the Government will pull the bill, not least because of regulation 19 of the bill, which enables them to implement any new agreement with the EU via a statutory instrument and not by an active Parliament. So they want to hang on to clause 19. In respect to the specific question about what could be done to make this work better, the reality is what could really be done to make this work better is for the UK to sign up to a veterinary agreement with the EU and even veterinary and SPS agreement. That looks unlikely at the moment. We fall back on the red green lanes. The EU is exploring that. The problem about the red green lane is that the big supermarkets will benefit from the green lane, but much smaller businesses will all have to go through the red lane, so that doesn't help that much with the constitutional effacing roles. I'm really sorry, Professor Barnard. It's breaking up at this end. We're just not able to pick up enough of your contribution. I'm very sorry about that, but I'm going to move on to a supplementary from Al Sir Alan. I think that we may still be on the third point there, but I'm not sure. Okay, thank you very much, convener. I noticed that you referred Sir Jonathan to I was going to say the excuse, so let me put it more neutrally, that the reason that the UK Government has given for proposing to breach international law, without putting words in your mind, is that it cited the grave threat or the emergency situation or something like that. Much as public life in the UK at the moment feels like an on-going emergency, I wonder what the threshold is in terms of precedent if any for such an extraordinary act is to propose to legislate to breach international law and whether you find the reasons on offer convincing. I think that it will be fairly obvious that I don't find them convincing. I think that I'm in good company in taking that boot when they're getting feedbacks, so I'll keep going. I like many others from this assertion that there is a situation of necessity that amounts to grave and imminent peril to the UK's essential interests, as I've described elsewhere, is hopeless, frankly. There are some precedents, but what you deduce from the precedents is that this is a very high hurdle. The idea that a public national agreement can depart from it just because it changed its mind or because it's causing some inconvenience is not enough. There has to be this very high level of disruption and peril through the national interest. I think that the Government's arguments were weak, and they were completely unpersuasive when they were advanced in June. However, since then, as we've heard, this bill has been sitting around. We've had leadership contests and a summer adjournment, and nothing has been done to pursue those options. You would have thought, as Dr Fox said, that if the situation really were as urgent as the test of necessity implies, the legislation would have been ran through. The Government would have been taking truly urgent action to tackle the emergency that it says exists, but it hasn't done that. It may be that there are some adverse effects flowing from the protocol, but they would continue to flow since June. The idea that this is a situation of necessity and a situation of graving and imminent peril is even less plausible now than it was when the Government first advanced that argument. Can I bring in Professor Katie Heward, who is our adviser? I don't know why she was still with us. Apologies to my deputy convener, who I told her, said less. Katie, do you want to come in and contribute? Apologies. I'm just going to leave my students waiting. Just to answer the deputy convener's question on the practicalities, very succinctly, the green red channel proposal in the bill is simply, at the moment, it's a statement of ambition. The details of how that would operate would need to be put into force through secondary legislation. At that moment, the green red channel idea that we know is being discussed with the EU, because it's very similar to an EU proposal that was put forward earlier this year with respect to express lanes. The difficulties of that are, as you'd expect, in the detail, so, as Catherine briefly mentioned, who would be eligible for the green lane. A fundamental issue is that businesses wanting to have the option of trading not just into NI but also into the single market would tend to prefer then to use the red lane, because they want to maintain that sense of integrity, that there be no doubt about what they're bringing in could potentially go south. It becomes very complicated very quickly. Also, it is true that you would need to have risk-based and intelligence-based checks, even on some goods coming through the green lane. The UK officials dealing with that recognise that as well. On the dual regulatory regime, the fundamental benefits of that dual regulatory regime, if it was to operate in Northern Ireland, would be for GB businesses rather than NI businesses. It would essentially mean that they wouldn't have to meet EU standards coming into Northern Ireland. Of course, NI businesses at the moment already benefit from free access to the single market and to the UK internal market. A consequence of the dual regulatory regime is that anything circulating in Northern Ireland could be of GB standard or of EU standard. That makes it very complicated to verify that your goods meet EU standards crossing the Irish border. You are right back to that question of do you need checks and controls on the Irish border, given that non-EU standard goods would be in free circulation in Northern Ireland. Just another point on that, which is often missed, if we do have the dual regulatory regime operating in Northern Ireland, we would still need to align to EU rules. That challenge of alignment, which we know is very acute, would still remain, if, for the most part, NI businesses and others choose to align to EU standards, so that dynamic alignment challenge remains. Just on the governance question, that is not really a practical question. The bill that we lose the jurisdiction of the European Court of Justice is gone as a consequence of this bill immediately. That is very much a matter principle for the EU, and the witnesses will be much more expert in that than I am. However, just to note that the EU has been absolutely clear that the consequence of that is that Northern Ireland uses access to the single market without the jurisdiction of the court of justice. Also, things that are not often recognised are such things as the operation of the single lectures. The new market depends on the jurisdiction of the court of justice as well. There would be consequences, so that point is not really a practical one, but the other issues are extremely complicated, as you would expect. There is a lot that is not clear from this bill, because so much of it would come through the second deal legislation. I think that Dr Garner wants to come in on the question. Yes, thank you. I was just putting in the chat that my intervention would be in response to Alasdalen's question about the Government's attempt to rely on the doctrine of necessity. This is found in article 25 of the draft articles on responsibility of states for internationally wrongful acts. In June, in the Bingham Centre's first report on the bill, we outlined a legal argument for why we believe that the conditions found in article 25 or a grave and imminent threat are not fulfilled. The point that I would like to make is important in terms of strategy here is that there is an irony in a sense, because I mentioned article 16 on the Northern Ireland protocol about appropriate safeguard measures. The conditions that I would argue for adoption of measures under article 16 could be regarded as a lower threshold than article 25, because there is basically the creation of a permission to adopt those measures in the event of conditions being fulfilled or serious economic, societal or environmental difficulties that are liable to persist or an alternative condition of diversion of trade. Now, you mentioned in your question about precedence. Of course, this is unprecedented, because there has never been—well, there was a partial attempt to trigger article 16 around the time of the coronavirus pandemic by the European Commission, but that was reversed. I think that the point that I want to make is that these conditions are far more appropriate to this situation that the UK is claiming in terms of emergency, in terms of difficulties. This is a tailored condition within what is the next specialist of article 16. Legally, I would argue that it was more appropriate to try and rely upon article 16, but even in terms of political strategy or negotiating strategy, it would be easier for the UK to make the case, or the UK Government, I should say, to make the case that those article 16 conditions are fulfilled rather than in very strict, high-freshel conditions on necessity in article 25 of the draft articles on instantly wrongful conduct. My question has changed slightly from having read the paperwork in advance and then listened to the questions and answers. Partly triggered by our deputy convener talking about the need for pragmatism. My concerns about this legislation is about accountability through this legislation in terms of knowing what we are voting for, given the huge powers it gives to the Government, both at a UK and a Scottish level, and the difficulty for us working out what they might be and testing that. My initial question was going to be about uncertainty and damage to relations with the EU, but on one level, the fact that things have changed since this piece of legislation was introduced makes it even harder because the uncertainty is greater, because it feels to me like we don't actually know what we're voting for. In terms of parliamentary precedent, given the huge scope of this legislation, is this something that, as parliamentarians, we should be supporting? Given that we're being asked to vote for something before we know what the negotiations are, we don't know the context of what's going to be in the negotiations and we're effectively asked to support a bill that could be anything without us being able to actually scrutinise it. The precedent for that, both at a UK and Scottish level, I would be interested in feedback from the panel on. Maybe, if I could start with Jonathan Jones, if you would like to come in on that precedent and uncertainty issue, is this bad legislation in terms of accountability? I think that it is. You summarised the point very well. The point about the uncertainty is exactly the one that we've already touched on, that the scope of the powers is so wide. One can have no certainty about how or whether or when they will be exercised and therefore what the legal effect will be at the end of this process. Although, as we said, we know the intention is to do things that override or contradict the protocol and that's a problem in itself, but we don't know which things. That is a problem. It's a problem in terms of the scrutiny that parliamentarians are not being given an opportunity to properly to scrutinise the policy, the actual decisions that are made. As I said, that's true both of the Westminster Parliament and even more so of the devolved Parliament. In terms of accountability, how can Parliament be accountable for decisions and actions over which they've had no opportunity to comment at all in any meaningful way? Does it set a precedent? Unfortunately, there are already other precedents that we've seen in the past few years. Obviously, there are plenty of examples of Governments taking powers in legislation to make secondary legislation and sometimes those are very wide and sometimes they are criticised. Sometimes, for example, they include powers to amend primary legislation, so-called Henry VIII powers, and there's been plenty of comment about that over the years. I think that the problem has got worse in recent years, partly because of Covid. We may not want to go down that alley, but for all sorts of reasons, some good, not so good, Covid pandemic saw the Government taking and exercising very, very wide powers with very little scrutiny. Another current example, which I know that Dr Fox is very focused on, is the so-called Brexit freedoms bill, the EU-retained law bill, currently before the Westminster Parliament. Again, there are all sorts of objections to that bill, but one of them is the fact that it confers very wide powers on ministers, in that case, potentially both UK and Evolve ministers, to make decisions about which aspects of former EU law are retained or binned or changed across the whole policy area, covered by EU law during the period of our membership, which, of course, is very wide. Those powers are also very, very wide and are being hotly debated in Parliament. There are other precedents, but this is a particularly bad one, so I agree with your critique. I ask Dr Fox the same question. Are those concerns that we should be having here about certainty and lack of accountability? Absolutely. I think that the bill as framed undermines the principles of parliamentary democracy, because you are being asked to confer powers on ministers without really having any detail about how they will propose to use them. Again, the Government could, if it wished, and it seems to me that it is a decision that it could choose to make but has chosen not to do. It could choose, having reached a negotiated agreement, it could then choose to legislate quickly to achieve the objectives that it requires in respect of any agreement's outcome. It has chosen not to do that, but to claim some of the broadest powers that we have seen. The Delegated Powers Committee in the House of Laws, which is an influential committee that looks at bills coming before it in each parliamentary session, has described it as that it represents a starker transfer of power from Parliament to the executive as we have seen throughout the Brexit process. We have described powers as incredible threats, because, essentially, discretion is conferred on ministers in 10 out of 26 clauses to make provision that ministers deem appropriate in connection with whatever it is that they are wishing to do in respect of the particular clauses, whether that is movement of goods or regulation of goods, customs and so on. The problem with that is that it is a quite low threshold and a subjective threshold, appropriate rather than necessary, for example. What does not just appropriate mean but in connection with, to put it boldly, how connective does need to be in order to fall within the purview of the powers? It could be a fairly tenuous connection because the drafting would permit a fairly tenuous connection. The third element is that the scrutiny procedure, the process that the Government proposes to be adopted in relation to the powers, is what they call rather oddly a dual procedure. Effectively, they are talking about the application of the negative and affirmative procedure to all the powers. What they propose is that all the powers should be subject to the negative procedure, so that that is not, does not require active parliamentary approval, it would require a member of Parliament at Westminster to object to the statutory instrument and to win a vote to prevent its continuing in law, unless the power is amends an act of Parliament or makes retrospective provision. That is quite a narrow interpretation of what active parliamentary approval should cover. Your affirmative procedure should certainly cover those areas, but it normally would cover a much broader area of what it is that the Government is trying to do with its regulations. It does not include any of the kinds of constraints that we saw in the Brexit bills to constrain those kinds of dual powers, such as a sifting process. If the Government wants to bring forward an instrument under the negative procedure, a committee in Parliament in both houses at Westminster can look at that instrument and decide whether it should be upgraded to the affirmative scrutiny procedure, so that at least you have the protection of knowing that if the Government is doing something more substantive that warrants parliamentary debate, it can do so. There is no prelaying consultation, no requirements on reporting. It is just a blanket, it will be the negative procedure unless, under the two conditions that I have outlined, the regulation falls under one of those headings. Then there is the extraordinary clause, the clause 22, which in effect turns all the regulation-making powers in the bill, potentially to Henry VIII provisions, which is pretty extraordinary, and would in effect function in such a way that the powers would enable ministers to amend, repeal or otherwise alter, the effects of acts of Parliament by regulations, including the bill once it has achieved royal assent. It is a pretty extraordinary combination of powers and procedure. Thank you for that. I ask Professor Barnard, would you have similar concerns about transparency and accountability in the proposed legislation? I had to leave because of the connection issues. In that case, I ask exactly the same question to Dr Oliver Garner. You said that you did not see it as being unprecedented in terms of devolved settlement, but the evidence and looking at our delegated powers and law reform committee, the concerns about knowing what you are voting for and the lack of scrutiny both at the UK and the Scottish Parliament level, do you agree that that is something that we should be exploring and being concerned about? I should clarify, so my answer to the first question was the point was that I do not see that the powers in this bill itself could pose a threat to the devolved settlement in this specific context. In fact, in so far as a Scottish interest is being affected, that is a very specific problem, but in terms of the assessments itself, it is good to make that clarification. However, I echo what has been said by my other witnesses. In my intervention, I thought that it might be useful to provide two more examples. Dr Fox presented an example of clause 22, Henry VIII's conversion power. It might be useful to be aware of clause 18, the power there, and clause 20. Starting with clause 18, I think that it might be worth reading the debate on what is there in the legislation, because it states that the Minister of the Crown may engage in conduct in relation to any matter dealt with in the Northern Ireland protocol where that conduct is not otherwise authorized by this act if the Minister of the Crown considers it appropriate to do so in connection with one or more of the purposes of the act. I am just outlining that as an illustration of what Bruce said about subjective thresholds. That is incredibly subjective in terms of the minister's consideration of it being appropriate and being the only condition. However, what struck me is how broad the actions that can be authorised are. In relation to any matter dealt with in the Northern Ireland protocol, even the use of the term conduct is very broad. Any matter is, of course, necessarily broad, so I think that I would highlight that. It is worth being aware of that. If the power is authorised, what would this allow the minister to do in relation to its conduct of relations with the EU? The second power that I want to highlight relates to clause 20 on the role of the European Court, the Court of Justice of the European Union, in courts and tribunal proceedings. The reason that I highlight this is in response to your specific question about certainty. For me, this is an issue of legal certainty because you are just walking through the clause. Paragraph 2 of clause 20 outlines that a court of tribunals—a UK court—is not bound by any principles laid down or any decisions made on or after the day on which this section comes into force by the Court of Justice of the European Union. Crucially, it also states that domestic courts cannot refer any matter to the European courts. That has been discussed in terms of the clauses being breached if they commit a force of article 12 of the Northern Ireland protocol, which outlines the jurisdiction of the Court of Justice. On your specific point about powers, clause 3 states that a minister of the Crown may, by regulations, make any provision that the minister considers appropriate in connection with subsection 2. The reason that this is a real problem for the rule of law principle of legal certainty is the fact that these are fundamental matters of courts knowing what law they have to apply, courts knowing what powers they have to determine legal questions. If a minister has the potential to make any provision on this, I think that that is a real problem in terms of us having a stability within the legal system and knowing that things will not change simply through the publication of a regulation from one day to the next. That brings in your point about how important accountability is and how important Parliament's scrutiny of these powers is. I hope that its use was just outlined to just two of the powers of the many that Ruth Lamont mentioned, just to see how extensive this could be. That has been really helpful. I thank the witnesses for their concern about any conductor, any provision and our capacity to interrogate that. It comes across very clearly, because I thank all the witnesses for their answers to my questions. Thank you, Ms Boyack. Can I bring in Mr Ruskell, please, who is joining us online? Can I ask about the implications of a breach of international law? It has already been mentioned about worsening relations with the EU, potentially a trade war. What other implications could there be? If I go back to Jonathan Jones for that one, please. The main legal risks are one, proceedings by the EU under the withdrawal agreement. Such proceedings have already been commenced before. It remains to be seen whether the UK, if relations are broken down as badly as that, the UK would even seriously engage in those proceedings, because if the UK has sought to unilaterally alter the governance arrangements, including the discrepancy of the role of the European Court, we are in a kind of reality in the wonderland world, where the UK is saying that we are deciding what the rules of the game are, and we are also deciding what the remedies are and what the procedure is when the rules are broken. I am quite convinced that the EU will not have any of that, and therefore the risk is that it brings proceedings and then goodness knows what would happen to those with the UK engaged with them, or it simply says that we have changed the rules and we do not even, as it were, do not recognise the legitimacy of the procedure. You are in a kind of legal mess at that point. The other channel that the EU might very well pursue is that of retaliatory action, up to including a trade war, and that might take all sorts of forms. It has to be proportionate, but, again, since we do not know what action the UK Government might be taking under the protocol under the bill, it cannot be clear what the level of retaliation might be, but that would be the other practical effect that the EU might legitimately take in response to what it would see undoubtedly as a breach by the UK. Those are the legal routes. It all adds up, of course, to a massive worsening of relations in practice, including trading relations between the UK and the EU, which is why I said earlier that having a neater solution that the UK Government might come up with might satisfy the different interests and constituencies in Northern Ireland. That is hard enough, but the UK Government can come up with a solution that satisfies the UK's, including Northern Ireland's, interests. However, if it does not comply with the agreement and has the effect of triggering the reaction by the EU, it is not a solution. It is not an end-stage. It does not settle anything. All it does is provoke a legal and trade war or stand-off or worsening relations. You have that combination of legal and diplomatic and trading consequences. I cannot see how any of it ends well. I see that Dr Garner would like to come in on that as well. Thank you very much. I think that the question is something that EU lawyers and EU constitutional lawyers are really aware of the potential for how, as Jonathan was saying, legally messy that could become. That is precisely because of the fact that this bill is seeking to exclude the jurisdiction of the Court of Justice, which is a special jurisdiction under article 12 of the Northern Ireland protocol, which is relevant for the fact that there is a very special regime created for Northern Ireland through the protocol. It is about maintaining the fact that it is a facto place of Northern Ireland within the EU internal market. Therefore, if EU law is enforced, there is the point that you need the means to enforce it. That is the reason why the Court of Justice has a special jurisdiction. However, if domestic legislation is seeking to exclude that jurisdiction, we end up in a very difficult situation. Jonathan alluded to the fact that this could trigger the general dispute resolution procedure. In case of interest, that is under articles 167 to 181 of the withdrawal agreement. However, as Jonathan said, we have a real question mark, which is a major issue for the rule of law about whether the UK Government would engage in good faith if such dispute resolution procedures were brought by the European Union. I have to be careful because we are in the realms of speculation, or at least looking a long way down the road, but I can imagine that one potential outcome is that you have a situation where the European Union could seek to bring proceedings against the United Kingdom before international tribunals in terms of compliance with international treaty law. That is something that would really be very unprecedented. One could argue that it even challenges the set of perception of the European Union's legal order as an autonomous legal order. I would make one final point at the risk of being slightly theoretical, but HLA Hart wrote the concept of law. It was a very influential book on the theory of law and how legal systems operate, in his opinion. He was a scholar at the University of Oxford. One of the key secondary rules that allow legal systems to operate is rules of adjudication. That is about knowing. Individuals know that, if there is a dispute over the rules, they know which body has the authority to resolve those disputes. We have that throughout society, we have referees and football matches. The real law problem is that the way in which the UK Government is seeking to exclude jurisdiction is creating uncertainty over who has the authority to resolve disputes. That is a real problem for legal stability and legal certainty. Thanks very much. I don't know if Dr Fox would like to come in on this. From the parliamentary angle, it has been a long-standing convention that if a Government wants to make an international agreement that changes UK law, that will be done by statute by an act of Parliament. This bill is a vehicle to get there but to enable ministers to do it by regulations. It seems to me that we will be undermining our understanding of being a parliamentary democracy if ministers can take that approach. Contentious policy issues with all the kinds of implications in terms of our reputation, diplomatic, political and economic that the other two panellists have spoken about, that should be a matter put to Parliament in primary legislation to be debated and the centre to or not. I see that Jonathan Jones wants to come in briefly. I also had another question about international precedent here. It feels like we are in quite a unique situation here but have there been other administrations around the world who have sought a similar level of executive power over their parliaments in recent years. Jonathan Jones, can I bring you back in, please? Yes. I may let others talk about precedent. I am not aware of any conformal precedent. I am not really aware of a precedent in the UK of this combination of, I would say, a flagrant breach of international law coupled with the very wide powers of ministers to decide what they want to do about it. The other part that I was going to make, which maybe is a bit obvious, is that, first of all, the UK signed up to this deal a very long ago and it included, for example, the adjudication provisions that we have been talking about, including the role of the European court. I agree that it is obvious why the EU would insist that the court has a role in the interests of its own legal order and given the application of various EU rules to aspects of the withdrawal agreement. However, the UK agreed to that. Secondly, all of that was embodied in an act of the UK Parliament in the EU withdrawal agreement act. In truth, there is limited time for scrutiny at that point, but, nonetheless, Parliament was given the opportunity to look at this deal, did so, and said that it was to have effect in UK law. Parliament, to that extent, has had a go at looking at this agreement and has accepted that it should be ratified and that it should be given effect in domestic law. That is what the bill is operating on. It is operating on a settled international law agreement that Parliament has endorsed and which, of course, at the time was expressed to be a great deal not so very long ago. It is pretty difficult to point to a precedent quite as vagrant as that, I would say. Dr Oliver or Dr Fox would wish to come in on that point. On that point about international precedence, or talking about this, I think that it is very important to advise caution, because every single different legal system, every constitutional system is quite unique in itself. Of course, we can make things, but it is always important to be very aware of the context on the ground. I should disclose that another position that I have is a research fellow at the Central European University Democracy Institute, which is still based in Budapest in Hungary, despite the university itself moving to Vienna because of conflict with the Government. I would make a point that, in Hungary itself—this is true of other member states as well—we have seen constitutional state of emergencies declared in relation to recent crises. Looking at a report here from July 2022, the Hungarian Government declared a state of emergency over the energy crisis. Of course, that is to do with the geopolitical situation. The reason I mentioned this is that your question was about the dominance of the executive over Parliament. The crucial point that I want to make is that you will have systems where a state of emergency is written into the constitution that might create limited powers for the Government to take action that might not involve the Parliament in the same way as it would in normal situations. Of course, because that is written into the constitution, ultimately, one can check whether the state of emergency has been claimed by that Government does fulfil those conditions. In the United Kingdom, we do not have a written constitution provision on the state of emergency. I would say that we almost have something that I described at the time of the internal market bill in 2020 as an almost creation of the facto state of emergency in quite a piecemeal way through all of these different skeleton bills. I do not know if that is helpful for your question, but I think that it is something that is about the perspective of the UK. Thank you. Dr Fox, any final comments or hand back to the convener? No, I can't add anything to what the other two said. Okay, thank you very much. Back to you, convener. Thank you. Ms Minto, do you want to comment? Thank you, convener. I am really returning to the question that the convener started, this discussion on the impact on the Scottish Parliament and its ability to scrutinise the legislation. I was interested, Dr Garner. You commented on—I hope that I am not misquoting you—that it does not comply to the rules of the game between the UK and the EU. I am interested in your thoughts and views on how the legislation impacts on the rules of the game, perhaps, between the UK Parliament and the devolved Governments across the islands. Thank you very much for your question. I should probably clarify that my claim that it is built with the rules of the game that the UK not only agreed to with the EU but helped to create is a very narrowly defined claim in relation to emergency situations under the Northern Ireland protocol. Actually, there are two points to be made. The first is, of course, if one agrees to something in an international agreement and then decides to go to their domestic law and say, well, actually, we don't think that we should be doing this. We want to create domestic law in order to no longer implement these obligations. That, in a sense, is not playing by the rules of the game and one needs the justification for why one is doing that. That brings in the secondary point of not playing by basically the rules of the situation for dealing with problems within the game, which is found in article 16 of the Northern Ireland protocol. Again, the UK Government decided not to engage. That was about my claim about playing by the rules of the game. When it comes to the rules of the game that have been established in devolution legislation, I should clarify that I am not an expert in this matter. My expertise is in European Union law and UK public law insofar as it relates to European Union law. However, from what I have seen other scholars writing about, there definitely seems to be a situation in which one could say now that this is important because it is a difference between rules and conventions. Of course, the conventions that have arisen, the conventions that are enshrined in legislation, as we saw discussed in the first Miller case, there does seem to be a movement away from that. Of course, that will have an impact for those who are affected as you are, as members of the Scottish Parliament. Thank you. We have had long debates over the meaning of conventions in this committee. I was also struck by Dr Fox's comments about parliamentary scrutiny, and I appreciate that you are looking at it from a Westminster perspective. However, I would be interested if there are any comments that you can make on how the Scottish Parliament, as MSPs sitting here, will have an opportunity to scrutinise the legislation and to think about timings and recognising the different procedures within both parliaments. Like my colleague Sarah Boyack, I am highlighting the letter from our designated powers and law reform committee that specifically looked at and questioned the UK Government about that. Yes. I mean, Jarthan referenced this sort of earlier, that we are seeing in this bill something that we are seeing coming through in other bills. I mean, I was talking about this just a few days ago in the context of the retained EU law bill. The problem in which the legislation at Westminster coming from the Government is silent about what should happen when UK ministers intend to legislate by statutory instrument in areas of thought competence, and the lack of clarity about not just consent but even the lower threshold of consultation. This bill arguably goes further, because, in effect, what is proposed is a legislative sub-delegation. In effect, renting power to be exercised by the devolved Government would be via a sub-delegated power in effect to make tertiary legislation. That is something that, certainly at Westminster, the House of Law's Delegated Powers Committee has argued particularly strongly about and refers to it in terms of the sky's nature of some of this legislation. It has legal force, but the way in which it can be scrutinised is extremely difficult. Fundamentally, it breaks the important length between those who are empowered to make the law and the accountability to Parliament, whether it is at Westminster or whether it is in Scotland. Problem is, I refer to the specifics of the bill, that it does not set out on the face of the bill even if it is Scottish ministers who are going to make statutory instruments. It does not specify what the scrutiny procedures would be in respect of the Scottish Parliament, which is normally what we would see. One of the problems with the nature of what could happen in terms of an agreement is how quickly the instruments that are required will then be brought forward and how they will then be scrutinised. On the basis that they will, by and large, be subject to the negative scrutiny procedure, you will only have the ability to object to it and try not to hear a debate. It does not require active parliamentary approval, except that of the two cases that I referred to earlier, unless it amends the act of Parliament or makes retrospective provision. Overall, it is just utterly inadequate, albeit knowing that, even if it had the higher levels of scrutiny, procedures for those Westminster and Edinburgh as well are not as good as they could and should be to ensure that you can do the oversight that you need to do for your constituents. Professor Jonathan Jones, do you have any comments to make? Very little to add, to draw on Dr Garner's comment about the distinction between rules and conventions. That only gets you so far, given that ultimately the Westminster Parliament is sovereign. If it wants to run out of the bill, in the end it can, and the courts will do their best to give effect to it. The rules, if there were rules, would have been changed. In substance, it transgresses in all the ways that we have talked about. I started by saying that it transgresses internationally. It also transgresses what you would normally regard as acceptable levels of scrutiny, legal certainty and accountability. Whether you regard that as breaking the rules or not, I definitely think that it is a problem. I will keep it to a brief couple of questions in that case. I know that we are turning to a theme here, but specifically about the relation between UK ministers and the Parliament that could and will emerge from the bill. I know a bit about Henry VIII's powers and the implications for the Parliament. Of course, Henry VIII never had the opportunity to legislate in Scotland. Nonetheless, the combination of Henry VIII's powers and other things in the bill together with other things that have been alluded to here today, which is the decline of the Sewell convention. I wonder how the effect of that combination of things is. I know that, Sir Jonathan, you mentioned a range of unfortunate precedents or words to that effect. How does the combination of the bill and the fact that, arguably, at least there is a decline in the ability of this Parliament to rely on the Sewell convention? Again, I agree with the analysis. It is difficult to add much more to it. I think that there is a problem in both of those respects. It is for you and the Scottish Parliament in a way to decide what you think about that, how big a problem it is and what politically can be done to change it. Dr Fox and I and others have had many long conversations about the systemic trend that we are seeing around the Government taking ever-wider powers with ever-less parliamentary scrutiny. That is partly a kind of cultural issue. That is the way in which the Government approaches Governments. It is partly about the role of individual parliamentarians and how they see their role and how, if at all, they assert themselves, for example, through select committees. It is difficult to come up with—I agree with the analysis that there is a problem of scrutiny, which extends both to the Westminster Department and, I would say, to the devolved Parliament—how you solve it against the background of solving Westminster's department, which has its own view—let's put it no higher than that—of the various conventions and modes of governance that might have applied in the past and, at the moment at any rate, a Government with a strong majority in that Parliament that we assume will be able to get such legislation through. You were telling EU law bills how to have a bit of a battering, but you have assumed that it will get through the Commons in Westminster. So finding a solution to any of that, other than talking about it, is much more difficult. I wonder if we could put the same question to Dr Fox. Again, what the cumulative impact of this bill is when taking together with other developments changes to our understanding of the Sewell Convention? It is extremely worrying. We cannot exclude the possibility that we are going to end up, if not on this bill or on some other bill, in a point of constitutional crisis. As Jonathan has said, what we are seeing emerging out of Wipall is a series of bills that are pulling on the question of who should be making the law in areas of devolved competence. That is not going to change unless the Government in London has a change of heart and takes a different attitudinal and cultural approach. It is difficult to see, in that context, at least of the foreseeable future how that will be resolved or alleviated. I cannot offer any sort of short-term prospects in terms of a solution, but one thing that we have been looking at is the fact that, particularly at Westminster, there is, I think, a lack of understanding among many MPs of the devolved settlement and the respective roles of the devolved institution to the Whitehall and Westminster. There have been some initial inter-parliamentary discussions, which I think have been helpful, but I have been a member of a group formed through the study of Parliament group, a group of academics and co-arts and so on, that look at procedural issues. One of the things that we are looking at is whether it would be possible to propose something like an inter-parliamentary model that could help improve relationships and consultation and contacts. I do not profess that that would resolve the very serious issues in respect of these legislative problems, but that it might help to address some of the ingrained lack of knowledge and cultural and attitudinal problems that we see at Westminster that are quite difficult. I am conscious of time, but I wonder if I could finish with a question. Really, to speak to the wider public and for an understanding, because we have heard quite concerning things. I think you said that it was extremely worrying in your last contribution, Dr Fox, and I think I said earlier on that potentially it does not end well. We all already know that that has stifled certain areas of the TCA in terms of access to horizon funding as an example of justice co-operation and an impact on Scottish areas in agri foods and exports. The emergency on my mind and many of my colleagues at the moment is the cost of living crisis, but just how serious would it be for both reputation of the UK and for the economy if that escalates into a further area of contention or indeed a trade war with the EU? If it could be a succinct answer, you may not want to answer the question. I appreciate that too, but if I could go perhaps first to Dr Gardner. Thank you. I will try to be as succinct as possible. I think the risk is particularly from the legal perspective, of course, that law regulates society, economy, etc. I think that there is that risk if things escalate and escalate between the EU and the UK to the point where parts of the trade and co-operation agreement may well be suspended. There is provision for this. That could be serious because the issue is then will be in a situation where I said about the de facto state of emergency that will create that similar state to what we've found ourselves in around the time when the TCA was being completed. I think that artists on both parties should look to avoid insofar as possible and, of course, because of the effects that that would have in terms of certainty in regulation of the society and economic issue treatment. Thank you very much. Dr Fox, do you wish to come in? Yeah, given my role, I can't really comment. Clearly there was a citizen, I don't think, a trade war and an undermining of our international reputation is particularly helpful. I would have thought that the Government has more than enough problems on its plate that it doesn't need to matter to them with this or indeed a border constitutional crisis either. Finally, Sir Jonathan. Thank you. I'm not an economist, but, again, from the point of view of a lawyer and, as Dr Fox said, a citizen, it can only be damaging to the UK's relationship with the EU and to our international reputation as a ruler of the law nation. The practical consequences can only be bad if there is retaliation in the trade war. I'm not in a position to comment on how bad, because we don't know what shape that would take. We have now, substantially, a new Government in Westminster. I hope that some of the more positive, considerate, reshutment signs turn out to be true and that we get more into negotiation than the confrontation that the bill represents. Thank you very much. I thank you all for your contributions this morning. We're sorry again about Professor Bernard, but she has indicated that she will write in with any comments on the questions if she wishes to add to her submission to the committee this morning. Thank you very much. I'm going to just spend briefly to allow the next witnesses to come on board. For our second panel this morning, as part of our consideration for the legislative consent memorandum on the Northern Ireland protocol bill, I welcome Angus Robertson MSP, cabinet secretary for the constitution of external affairs and culture, who is joined by Frank Strang, deputy director of EU relations at the Scottish Government, Chris Nicholson, solicitor, Scottish Government legal directorate. I warm welcome and, cabinet secretary, I invite you to make an opening statement. Thank you very much, convener, and a very good morning colleagues on the committee. We're here today to discuss the Scottish Government's legislative consent memorandum in relation to the UK Government's Northern Ireland protocol bill. The committee is very well aware of all the reasons why I and colleagues have serious misgivings about this bill, but let me begin by acknowledging the fact that talks between the United Kingdom and the European Union on the protocol have resumed in recent weeks the first substantive structured talks since the early part of 2022, and that there appears to be a shift in tone. I was certainly striking to hear the Northern Ireland minister and the former ERG chair, Steve Baker MP, publicly apologised to Ireland and the European Union for behaviour during Brexit negotiations, which had not inspired trust. It's my sincere hope that the UK Government will seize this moment to re-engage in good faith with our European partners, build a more positive momentum and to seek sustainable shared solutions. However, two important things must happen to make that possible. Firstly, the chaos in gulfing Westminster needs to be brought to an end, and secondly, the UK Government must end its irresponsible threats to override the protocol unilaterally and withdraw the bill without delay. As the committee will be aware shortly after the bill's introduction in June, the Scottish Parliament held a debate and passed a motion condemning the bill as fundamentally unacceptable. Not a single member of the Scottish Parliament voted against that. Since then, the legislation has passed through the House of Commons unamended and is now progressing through the House of Lords. The bill has been met with deep concern by legal experts and our allies around the world, and yet not a single Conservative member of Parliament voted against it. The UK Government has acknowledged that the bill engages the legislative consent process and has sought the consent of the Scottish Parliament. As a memorandum sets out, the Scottish Government does not recommend consent for the bill for reasons of its potential illegality and its impact on Scottish interests. On the question of legality, the bill will make the UK domestic law incompatible with its international obligations under the protocol. To do so may put the UK in breach of international law. While that is a question ultimately for the courts, domestic or international, many prominent legal commentators—and you have heard from some this morning—as well as European leaders have already challenged the UK Government's legal position robustly. The bill also threatens profound consequences for Scotland. Its heightened tensions in a dispute that has already badly damaged UK-EU relations installed all progress in the trade and co-operation agreement with direct implications for Scottish priorities, including horizon Europe association, energy trading and re-establishing market access for key exports. As a memorandum sets out, if this bill becomes law, the consequences of the escalation could be economically disastrous for people in Scotland. It could lead to tariffs being imposed and even to the trade and co-operation agreement being suspended. The UK Government is willing to risk a trade war in the middle of a cost-of-living crisis after all the ideologically driven economic chaos that is already inflicted upon us all is unconscionable. For these reasons, the Scottish Government cannot recommend consent for this bill. On my last trip to Brussels, I met with the UK ambassador to the EU, as well as European partners, and emphasised that a negotiated solution is in everybody's interests. It is important to maintain constructive relations, and that is what the Scottish Government will continue to seek to do. Indeed, that is why I wrote to the foreign secretary, James cleverly, on 30 September, requesting urgent bilateral and four nations meetings on UK-EU relations. Mr cleverly has responded this week, committing to a four nations meeting before the TCA partnership council next meets. However, no date has been fixed, and in general there has been a frustrating lack of ministerial level engagement in this space. I hope that this introduction has been helpful and I welcome any questions. Thank you very much, cabinet secretary. I wonder if I could open just on those points about four nations co-operation. We have heard today that there may well be some progress in Northern Ireland and we wait to see what happens there. I just wondered what discussions have you had with your Welsh counterparts regarding that, and are they on the same page as the Scottish Government in terms of the opinion of this bill, and its potential impacts on the devolved settlements in both areas? When I have discussed the issue with other colleagues in Wales, it is one of the areas of great concern that we share because of the direct implications of what is happening as a result of this very confrontational course by the UK Government. It is no way to run international relations, and it is no way to deal with an important trading partner in Ireland and the wider European Union in general. What is happening in relation specifically to Henry VIII powers is the ability of the UK Government to pass legislation that then allows it to make subsequent legislative changes that are not subject to parliamentary scrutiny and oversight at Westminster, let alone here in the Scottish Parliament and potentially in devolved areas should concern us at all. The last part of which—this is a concern in Wales as it is in Scotland—is that, when we as parliaments and Governments say that we have a profound problem with a piece of legislation, and we use the mechanisms in place to underline that, up until now and repeatedly, we have seen the UK Government override that. So, yes, the concerns are shared. I would hope that there is understanding across this committee, given the position that no MSP objected to the concerns that were involved in the motion that passed through the Scottish Parliament, that we are of one mind, hopefully, both as a Parliament and as a Government, in saying to the UK Government that it really, really does need to think again about this. Not only is it of profound importance to Northern Ireland, but it also really matters to devolution and intergovernmental relations in the UK. Of course, it really matters that we do not escalate things with the European Union such that we face a potential trade war to nobody's interests. Thank you very much, cabinet secretary. I want to move to questions from the committee and invite Mr Cameron first, please. Good morning, cabinet secretary. I'm very glad to hear the outset of your comments that you acknowledged a change of tone, because I think that that is true. I think that there is a change of tone, and I think that the new Prime Minister will adopt a more pragmatic approach. I'm just going to ask the same question of you as I asked the panel earlier, which is that the Northern Ireland protocol, and we debated that in June, but the bill does contain various pragmatic proposals—the red, green lane, the dual regulatory regime, etc. I just wondered from the Scottish Government's perspective, do you see any mileage in those as being viable solutions to the very naughty problems that I think exist? Okay, well there's the direct question, but there's also the implied suggestion there that there should be, with a change of tone, perhaps also a change of approach more generally that might be able to secure an agreed solution between the United Kingdom and the European Union, and if that is the thinking in Downing Street, I would very much welcome that, but I think Donald Cameron would agree with me a change in tone. These are very technical questions, but just to underline his point and agree with him in the conversations that I had that I alluded to in my opening statement, both from the UK and European partners, there was a clear acknowledgement that there is a potential for what is described in the jargon as a potential landing zone for an agreement, all of which underlines the point to me that if that is the preferred trajectory, then that is indeed where we should be looking, rather than passing legislation, which, as we know, is deeply troubling for a number of reasons, and especially given where things are in Northern Ireland and the sensitivities around that, I think everybody understands that there hasn't been an executive formed in Northern Ireland that, unless there is progress this week, that there will be elections again in Northern Ireland. I think it's worth putting on record, if it hasn't been put on record thus far today, that, in the last Northern Irish elections, a majority of members were elected in support of the arrangements, as opposed to opposition. However, it seems to me that what we need now is more than just a change in tone, we need a change in substance, and we need to break the log jam in all of that, which is why I think proceeding with a confrontational course of action with the legislation that the UK Government is proposing and the Scottish Parliament has, across the parties, voted for and certainly not voted against that they withdraw the bill and that they make progress on a diplomatic and a technical level to reach a solution that I would hope is in everybody's benefit. Change of tone, yes. Let's see a change in substance as well. Are there technical areas—sorry, Donald Cameron was asking—are there areas within which one could see room for technical solutions? I think, well, yes is the answer, and that's been signalled by commissioner Sefcovitch and proposals have been made by the European Union side. It would be really good to see those from the United Kingdom side. However, it is certainly not going to be helped by legislation that legal observers with much greater legal training than I am. I am sure that Donald Cameron knows many of them as an advocate. I believe that it is in breach of international law, so that's very serious if that is the case, yet another reason why they shouldn't be proceeding with it. We have had some very concerning evidence from witnesses this morning about the way that the bill undermines parliamentary accountability, leads to instabilities and uncertainty that you referred to in your opening comments. Can you say a bit more about the discussions that you have had with other devolved nations in terms of pushing back on the legislation? You have highlighted the challenge in Northern Ireland but with the Welsh Government. Can you say a bit about, in principle, the use of secondary legislation rather than primary legislation using the Henry VIII powers, which make it impossible for us to conduct scrutiny on what you may be doing as a Government, given the concerns that our own devolved regulatory committee highlighted, as we have seen at the UK level in the House of Commons and the House of Lords? Indeed. What is happening with the so-called Henry VIII powers is being described by the Hansard society as being breathtaking in their scope. For those who are unaware of what Henry VIII powers are, it is important that we do not hide behind terminology that sounds fluffy and historic and archaic, but what does it actually mean? It is exactly as Sarah Boyack suggests. It is effectively taking away the power of Parliament to have oversight and scrutiny, but at the same time it also drives a coach and horses through the devolution settlement because it confers on the UK Government powers to legislate in areas that it so chooses. We, as Parliamentarians, are elected in this Parliament to hold the Scottish Government to account and, myself as the Scottish Government Minister to be answerable to you as a committee and as a Parliament more generally. It is the end of that. I would be saying to you in future evidence sessions that you really need to speak to UK Government ministers who are legislating in this area. The work that has been done in particular in the House of Lords, and I am a critic of the House of Lords, is an unelected institution, but there are obviously a great many members of the House of Lords with great minds and legal experience. Their European committees in particular have an incredibly high standing. I know that as somebody who sat on the European scrutiny committee of the House of Commons for a decade. If one looks at what has been said by the House of Lords committees in respect to the point that Sarah Boyack raises, it should make alarm bells ring everywhere. I do not know whether this is in the record, convener, but I think that it is worth making sure that it is that the chair of the House of Commons Justice Select Committee, Sir Robert Neill, observed somewhat colourfully that, I quote, there are Henry VIII powers and Henry VIII powers, and this is Henry VIII, the six wives Cardinal Wolsey and Thomas Cromwell, all thrown together. That is amusing in making the point that we are talking about something that is very significant, but let's understand what the significance of it is. Again, to pray and aid the House of Lords, their delegated powers and regulatory reform committee made the following assessment in June. I quote from the Northern Ireland protocol bill is a skeleton bill that confers on ministers a licence to legislate in the widest possible terms. The bill represents a stark transfer of power from Parliament to the executive. We are talking about the UK Parliament, the UK executive. As we have seen throughout the Brexit process, the bill is unprecedented in its cavalier treatment of Parliament, the EU and the Government's international obligations. To which one could add that, of course, as a result of using that power, it totally undermines and subverts the devolution settlement. So we should be very concerned about all of this. Another reason why we should not be giving it legislative consent to proceed. I thank you, Frank Strang. Just to mention Welsh colleagues and Northern Ireland colleagues, just to say how closely at official level we are working with our colleagues. Obviously, I feel for our Northern Ireland colleagues without an executive for a ministerial steer is harder, but how closely we are working with the Welsh. In particular, the impact on the assemblies in general. You do not need to have a view on the ultimate destination of the assemblies, but you can have a view on the impact on the current assemblies as they are. The cumulative effect of this plus the retained EU law plus internal market at various one after the other, which has got us at official level, is very concerned, so we are very closely engaging with the Welsh. It is probably worth putting on record that I will be at a tender take apart and inter-parliamentary forum, which will be meeting on Friday, which has also raised concerns with regard to these issues. I will bring Ms Bilya back in. I thank both of you for giving us those comments. I think that there has been a huge level of objection. My own colleague, David Lammey, said that the bill gave ministers unaccountable powers or gifts ministers unaccountable powers. I think that the points made by the cabinet secretary are important for all of us to reflect on. The challenge, I am guessing, will be how the Scottish Government responds in terms of our parliamentary accountability, given that, at this stage, you do not know what it is that you would be expected to bring forward and what timescales are. I think that it is very helpful having this exchange today. As an aside to Henry VIII, we have to make sure that we are Catherine Parr who survived him. I was coming to work today and I was thinking about the whole thing, about the tone in the substance that you have referenced earlier. I was interested to read a quote from the Northern Ireland Secretary of State, Chris Heaton-Harris, who is quoted today saying that people in Northern Ireland deserve locally elected decision makers and an executive who can respond to issues facing people, families and communities across Northern Ireland at this challenging time. We are clear that people deserve an accountable, devolved Government. I was thinking that that is a good change in tone, but I am wondering how the substance of this bill, the Scottish Government has highlighted the breadth of powers that it confers on the UK Government, including devolved areas. I am interested to delve a bit more into your comments about tone and substance, cabinet secretary. Notwithstanding political differences, there is a new Prime Minister and a new cabinet, or a new old cabinet. I think that we have to, in the hope that one might take the reset situation that we might find ourselves in, we have seen new turns on major economic policy, thank goodness, from the short-lived trust premiership. We have seen new turns on fracking in England and who knows, maybe we might see the opportunity for some rethinking in relation to Northern Ireland. I think that Chris Heaton-Harris, who I know, I have known for a long time from when he was in the European Parliament and then he was at Westminster when I was there. I really hope that he will take the opportunity to try and find ways to get beyond the on-pass. I acknowledge that it is not simple for a Government that has frankly dug itself into a hole because of the internal contradictions of its position. We all remember the former Prime Minister Boris Johnson saying one thing to business in Northern Ireland, telling everybody that the Brexit arrangements were fully baked, or whatever it was. Half baked is probably more opposite in all of that. One thing was being said to one key interest group at the same time as something else was being said to it, and you cannot reconcile those positions. There is an inherent internal contradiction in the UK Government's position, but it should not be in anybody's interests that Government, whether at a devolved level or a UK level, is frankly prepared to breach international law in clear sight. That is what we are hearing from legal experts would be the case. Indeed, I think that it was Brandon Lewis as a Northern Ireland sector who, from the dispatch box, seemed to suggest that breaking international law in his words in a sort of limited way was somehow okay. It is not okay. I know that we are talking about areas because, yes, it impacts on devolved decision-making powers in Scotland. It impacts on areas of devolved policy. It will impact on Scotland, not least because it is we who will be having to build border infrastructure in Scotland as a result of all of that, and we have little clarity yet in relation to the full scope of all of that. We have a big direct interest in this in Scotland, but we have a wider interest. Northern Ireland is one of our closest neighbours. We are literally kissing kin. For all of those people of all political traditions who worked so hard to try to find a hard-won solution to end the troubles in Northern Ireland, to see that endangered is something that should concern us all. Having said that, but then being reflective on our collective position as a Parliament, we have debated this. We have taken a view. Not a single MSP—no member of this committee—has objected to that position, with a motion that described things as being fundamentally unacceptable for the UK Government to unilaterally supply key parts of the EU-UK withdrawal agreement. I could go on, but we are agreed. There is no disagreement. We believe this to be fundamentally unacceptable. So what is within our power in relation to legislation is that we do not give it legislative consent and that we do, and I very much welcome Sarah Boyack's reference to David Lammy, but also her underscoring how important this is. I think it behoves all of us and all of our parties to have a united front on this and to say with one loud and clear voice, there are a lot of issues at stake here, all of which matter, some of them more directly to us, but in general terms as supporters, as we all are, of peace and reconciliation in Northern Ireland. We cannot allow this to head in the direction of a worsening relations between the UK and the European Union, the potential for a trade conflict, but then also there's the running roughshod over the democratically elected majority view of parliamentarians in Northern Ireland, who want the arrangements to carry on and are not in favour of the UK Government's approach. You mentioned, cabinet secretary, in your opening comments about some of the implications of the impasse at the moment, particularly on horizon and on energy trading as well. Can you just expand on those two issues, what are the current implications for Scotland? Well, in general terms, and perhaps some of my colleagues want to come in on some of the specific reflections on this at an official level, is because of the confrontational approach of the UK Government, it has undermined relations between the UK and the EU to the point that there is not a, broadly speaking, fully constructive working relationship between the UK and the European Union. One of the consequences of trying to help the UK to understand that this course of action is damaging is that a whole series of other things are not proceeding in terms of normalised or improved relations in a post-Brexit environment, and that is not a good thing. There is a chilling effect on European institutions, and that is not a good thing. There is not the bandwidth nor the willingness to have a fully, mutually respectful relationship when the European Union looks at the UK and observes that this is a partner that agrees something one year and then walks away from it the next or the year after. Why would one try and seek other forms of agreement if you do not even know if the UK is going to stick with that? Is that profoundly problematic? That is not a place that any rational sensible actor wants to be, so I would encourage in this short period of opportunity for the UK Government to think about pressing reset buttons, that they press a reset button on this, because it has to be in everybody's interest that we support peace and reconciliation in Northern Ireland, that we support the solution that has been found that effectively allows Northern Ireland to remain within the European single market, and that manageable border arrangements and proportionate border arrangements can be found in relation to Northern Ireland and Great Britain. I mean, there is a big long list that we could have, and the point here is the overriding, overarching, chilling effect, and it surprises us every now and again. We want to engage with European partners about lots of things, and they say, well, actually, I haven't seen it written down, but we're not supposed to be engaging with you because of Northern Ireland protocol. Did you imagine that it affects lots of our activity because you're part of the United Kingdom, and that's what the arrangement is? So, it could be a long list. Those two are mentioned because they're important to us. They're also urgent. I think that's important. When we were confronted with Brexit, we thought, at least there are some things we can put out the fire here, and one would be Horizon Europe. It's a bleeding obviously in both our interests, so no one's going to stand in the way of something which is going to be about university collaboration, obviously, and think of our universities how important they are to European collaboration. Surely, people come knocking at the door, and this would be easy. And it's urgent because collaboration, when it's lost, is lost. You can rebuild it. It's really hard. And then the energy trading is just, we're at a critical moment in this stuff, so it's like we're going to be in at the time. So, we sometimes forget the chilling effect of Northern Ireland protocol on everything else in our relationships with Europe. It's a longer list. We're going to see it. Are you finished, Mr Ruskell, with questions? Yeah. Yeah. Thank you very much. Thank you, Mr Strang, as well. Could I invite Dr Allan, please? Thank you, convener. Thank you, cabinet secretary, for being here again. We've heard a lot this morning, as I'm sure you will have heard, if you're listening in, about the issues that these matters create about the rule of law. Experts have told us their view on that, from a legal point of view, but from the point of view of other European countries where the rule of law and constitutions and so forth are taken seriously, what does this situation do for the UK's reputation amongst European countries in that respect? Well, I think that the reputational damage is profound. It is one of the common narratives, is it not one that one hears people internationally talking about the UK, the one that hears about mothers of parliaments and rules of law and all of that as being positive attributes of the United Kingdom, and that is being called into question. And not called into question just, and I say just, an inverted commas by our colleagues across the European Union. This is also the position of the United States of America, one of our most important trading partners. We haven't gone into this yet, but the idea that there's going to be a trade agreement between the UK and the United States in this context is unimaginable. It's just not going to happen, and they've said so in terms. So this is a very broadly damaging issue. Yes, absolutely right, Dr Allen, in terms of reputation. I would also say that there's another aspect to this that may develop in time, which I reflect on the fact that we had an election in Northern Ireland where people voted for something to happen, just as people voted in last year's Scottish Parliament election for something to happen. Now we're having another potential election in Northern Ireland, and we're it to be the case that yet again a majority of parliamentarians in Northern Ireland are elected with the view that they are in favour of the arrangements, and they're not in favour of this, the approach of the UK government, and that should be disregarded again. I mean at what point, how much more of this is going to take for this to be noticed internationally? I don't think a lot, because what we are seeing is a UK government disregarding election results in Northern Ireland, disregarding election results in Scotland, and they are potentially about to do so again in Northern Ireland. So it has a reputational problem in terms of the United Kingdom being prepared to, you know, diso-ply is the way that I think they like to put it. Imagine that as your defence in a court of law, I've decided to unilaterally diso-ply the law as it affects me. Please rule in my favour. I mean it's ludicrous. What it is, it's a unilateral breaking of international undertakings where there are other routes to remedy. There are ways in which the United Kingdom could act in line with international agreements to try and solve the problems that they believe to be in need of resolution. So I agree that the reputational issue in terms of international law, but I think there is also a parallel issue of a United Kingdom government disregarding democracy, which I also think will undermine reputationally in the months to come. We've heard, as I mentioned, from a number of experts of Jonathan Jones' case, from the Bingham Centre for the Rule of Law, and others from the Hansard Society, all expressing concern about UK ministers being allowed through the proposed legislation to step firmly into devolved areas and to radically change the relationship with this Parliament. I think that the Hansard Society described that as a constitutional crisis, is it? Yes, it is. Yes, it is. And we should all, as parliamentarians here, be concerned about that. So what are we talking about here? We're talking about a government elsewhere with a majority elected elsewhere, disregarding a devolved settlement agreed by people here, with a Parliament elected here and a Government responsible to parliamentarians here. I mean, how much more problematic does that need to be for those who don't see it as such to set their own alarm bells ringing? It is a profoundly challenging situation and, as has been pointed out, it is not the only legislative measure that we, as parliamentarians, have been confronted with in recent times, from the Single Market Act, to the recent attempts to deal with EU legislation. Those are all profoundly problematic from a democratic and a legitimacy point of view, and it has the potential to hollow out the democratic system of government that we have. Surely no democrat can be happy with that as a situation. I would call on all MSPs of all parties to follow the logic of their position, which is in not opposing a clearly stated motion of this Parliament, describing it as being fundamentally unacceptable to use all avenues to get the UK Government to reconsider its position. As part of the evidence that we have just heard, there was an implication that perhaps there is a lack of understanding at Westminster of devolved powers and how our parliaments work, and perhaps this even goes into a cultural and attitudinal problem at Westminster as well. I am interested, given that you have sat in both parliaments, cabinet secretary, if you have any thoughts on that. I would also like to move forward to the reasons that the Scottish Government laid out and its concerns about the future impact on Scottish interests in the event of further escalation of the possible dispute between the UK Government and the EU that the bill has provoked. You have talked a bit about trade measures, but the Scottish Government also laid out the EU withdrawal of data protection adequacy and financial services equivalents, which could have a major impact on the Scottish economy. I would like to hear your thoughts and perhaps on that as well. Two parts of the question were mentioned. On the attitudinal problems, that was confirmed to me when I gave evidence to a UK parliamentary committee that was taking evidence here in the Scottish Parliament, where, in speaking with UK MP colleagues, some of whom had held ministerial office, they were absolutely upfront about the fact that, for them at the time, that they had little to no interest in taking on board needs, interests, concerns and expectations from devolved Governments or parliaments elsewhere in the UK. That is an attitudinal problem. No, I have to say, as I have, I think I probably have said in evidence to this committee, I can give evidence to the contrary for that. Given the example before of an excellent working relationship that I had with Chloe Smith when she was in the Cabinet Office in relation to and the framework arrangements around devolution, so it's perfectly possible if UK Government colleagues wish to be constructive that they can be. Up until now, my experience as a minister has involved not meeting ministerial opposite numbers, requests not being answered, requests being answered but being turned down the whole time. Maybe at some point we should just publish a master list of all of this so that one can see the full context of all of that. Occasionally in the chamber I hear that there's an argument of equivalence in the difficulties of intergovernmental relations on these islands. I can assure Ms Minto on the committee that is absolutely not the case. I don't think I've ever turned down a meeting with a UK Government opposite number, but I can point to opposite numbers that I've never even met while we were in office, let alone had a phone call from. There is a massive attitudinal problem, but the difficulty is out of sight, out of mind, but that doesn't mean that it is not without consequence and that that is where we are. On the concerns that were raised in particular on trade measures about data protection and about financial equivalence, we are meeting in Edinburgh the heart of the Scottish financial services industry. We are not talking about an esoteric subject here. We are talking about a course of action by the UK Government, which is deleterious to significant parts of the Scottish economy. Again, another reason why, if the alarm bells are not ringing yet with some colleagues, it really must, because it is not in our interests to see these important areas endangered, which is why I take the opportunity that Donald Cameron asked right at the start in relation to a change of tone. Is there a change of tone? Yes, there has been. Is there a change in substance? No, not yet. Let's take the opportunity to say, please, can we see that? That would be a good thing. Who knows? It might lead to a resetting of this challenging area. I have a couple of final questions, cabinet secretary. A lot of our evidence and the concerns raised by the Hansard society today were around the Sule convention and how it has operated. In a time when almost everything is changing, if we are dependent on the traditional conventions that we have, how do we move forward and ensure that it is not just about who is there or the willingness of the Prime Minister and the Government? Is there something that we can do to improve the constitutional arrangements? From the evidence that we have seen, the Sule convention appears to be politely under strain. The best way to deal with constitutional certainty or uncertainty around things like that is to have a constitution. That would be a good start. That is what most normal countries do, and I would be in favour of Scotland having a written constitution. We are not dependent on conventions, so the Sule convention is very much observed in the breach and increasingly so. We are supposed to have an agreement by the UK Government that, if the Scottish Parliament takes a view that in those areas there is devolved responsibility, that the UK Government should not legislate, that is what the Sule convention is. That is being increasingly interpreted in a different way by the UK Government to say simply that, as long as one has consulted on consent, that satisfies the convention. That is, frankly, weasily. It is a breach of the way in which a devolution has operated. Maybe I should bring a graph with me to illustrate the number of times the Sule convention is being breached. Again, it is a sign that things are not working as they should in terms of intergovernmental relations. If the UK Government took relations with Scotland, Wales and Northern Ireland as seriously as they should, it would not be doing that. I go back to Donald Cameron's invitation to welcome change in tones. It is a good thing that the new Prime Minister rang the First Minister of Scotland and Wales, something that his short-lived predecessor was unwilling to do. Think about that for a second. The Prime Minister of the United Kingdom did not and did not think it worthy of calling the heads of government in Scotland and Wales. It is unbelievable. Now, at least as a Prime Minister who realises that that is not a sustainable position, but one has to move again beyond tone and sending signals. One has to deal on practical terms, and in this case in legal terms, because we are dealing with something that is going through the British Parliament, something that I think I am right in saying is that all Conservative members of Parliament voted in favour of, which is not what happened here. We are having different things happening in different parliaments, but what we do know is that the motion was passed across the Parliament. It was not objected to by any MSP or any party, and the overwhelming majority of Scottish members of Parliament at Westminster voted against the proceedings of the legislation. It is not an esoteric point. It is extremely important, not just for Northern Ireland, but also for Scotland, for our devolved settlement and for the form of democracy and government full stop. Do we think that it should be for our Parliament to pass laws, to hold our Government to account, or are we happy to see those powers taken away from this place and to exercise in another, i.e. by the UK Government, in a form that makes them unanswerable even to the UK Parliament? I have a final question. The parliamentary partnership assembly was a morning in which the UK Government announced the bill, which did not set that partnership off in the best of terms to say the least. We are meeting the next couple of weeks. At that inaugural meeting, it was absolutely a view of Sefcovic and the European contributors at that point, that the TCA was working, and that had been demonstrated by the negotiations on medicines. Do you share that opinion, and do you just think that this bill can be withdrawn and that we can move forward to negotiate on the areas that are highlighted by Mr Cameron, where there is a will? The objective evidence about the workings of the TCA are there for anybody to see in terms of what is happening with the Northern Irish economy when viewed against the other nations and regions of the UK. On a practical level, yes, it is working absolutely. Are there ways in which that can be amended by agreement? Both sides have suggested that that is indeed the case. That is the way in which the challenge should be approached, but the big picture is that the TCA is actually working. It is because of a vocal minority that the UK Government is pursuing the confrontational course of action that it is in relation to the Northern Ireland protocol. I would appeal even at this late stage for the UK Government to press the pause button to reset and to improve relations with our European partners. We do not need a trade war in the middle of a cost of living crisis, and we certainly do not need anything that imperils peace in Northern Ireland. Lastly, and as importantly, we do not need to see or do not want to see our democratic institutions hollowed out so that UK Government ministers can govern by fiat. That is not governance that I, as I understand it, nor would I hope any member of the Scottish Parliament. Thank you. That exhausts the questions from the question this morning. Thank you very much, cabinet secretary and your officials, for your attendance this morning.