 Good morning, colleagues, and welcome to the 27th meeting in 2017 of the Finance and Constitution Committee. The only business on our agenda today is to take evidence as part of our consideration of the Scottish Government's LCM on the EU withdrawal bill. We are joined for this item today by Dr Kirsty Hughes, who is the director of the Scottish Centre on European Relations. Professor Allen Page, who is Professor of Public Law at the University of Dundee. Professor Rick Rawlings, who is Professor of Public Law at UCL. I warmly welcome our witnesses to the meeting this morning. We have received your very helpful briefings already. I know that all of my colleagues have had a good read of these, we have had a discussion before we kicked off the public session, and we are just going to go straight into questions on issues to do with clause 11. I think that Ash Denham is going to begin that questioning. Thank you, convener. Good morning, panel. I read with interest some of your submissions that you sent through. Obviously, we have been carrying out this inquiry for a number of weeks now. I don't know if you were able to catch the last session where we heard from Robin Walker from the UK Government and David Mundell. We heard quite a bit during that session about legal certainty. But I noticed, Professor Page, in your submission, you said that clause 11 is not so much about legal certainty as stripping the devolved administrations of the leverage that they would otherwise possess when it comes to the negotiation of common frameworks. Professor Rawlings, you said that removing clause 11 is needed to give a measure of constitutional security to the devolved Governments. Professor Page, you said that the effect of clause 11 has an effect on the intelligibility of the devolved settlements. I am wondering if each of you could explain a little bit further about what you meant by those comments. Yes, certainly. Can you just remind me of where you started? I caught a bit about intelligibility at the end, but... Yes, it was many about clause 11 not being about legal certainty. Yes, what I was trying to do there was work out the possible justification for clause 11, and I assume that it is about legal certainty ensuring that the position after the UK lease is the same as the position before. However, the point that I then went on to make was what that means in practical terms is that the UK or Scotland will be required to comply with retained EU law as opposed to EU law. My criticism or my comment is that that ignores the fact that the current obligation, the existing obligation, is rooted in the UK's membership of the EU. It is about ensuring that the UK does not fall foul of its obligations as a member state by dint of things done by the devolved administrations. Take the EU out of the equation, and that justification ceases to apply to have any rationale that falls away, leaving the suspicion that this is more about, as I said, stripping the devolved administrations of any influence that they might have when it comes to the negotiation of common frameworks. Then the point that I went on to make was that, quite apart from that, so that is a suspicion that is created, then you have the fear on the part of the devolved administrations that the UK Government or Westminster Whitehall departments will prefer to hang on to repatriated competences rather than pass them on to the devolved administrations, quite apart from which, and that was the point that I concluded with, that proceeding in that way will have substantial effects in terms of both the intelligibility of the settlement because we are substituting an obligation to comply with EU law, which people, for the most part, readily understand. We have been doing it ever since the devolution was in place. There is a common understanding as to what that involves. With this much less, with this much more amorphous and uncertain concept, we retained EU law. I quoted the late Professor Neil McCormack on the 1978 act, who said that intelligibility was a quality greatly to be prized in constitutional statutes. The 78 act certainly did not meet that test, and I think that that will be the case, too, with the Scotland act, as it is intended to be amended by clause 11. The operability point means that, by that I was simply referring to the fact that this is going to make it much more difficult for the devolved administrations to pursue any sort of meaningful policy in areas such as agriculture, which are devolved under the current settlement. Thank you. Good morning, colleagues. My angle of approach would be as follows, that, yes, you need elements of certainty, yes, you need elements of stability for the purposes of business, for the purposes of consumers and trade negotiations as well. The question is whether you need clause 11 to achieve that. My firm view is that clause 11 is a poor choice of approach to secure that. In my paper, I developed that argument and put forward several reasons why I think that that is so. In my view, clause 11 is unnecessarily heavy. As the committee moves inexorably to say that it cannot recommend legislative consent for this bill as it is currently formulated, I think that that will show that point. You will find a parallel process going on in the National Assembly for Wales, of that, I am sure. Clause 11 seems to me to be an unbalanced clause, especially when you set it. I mean, we focus on clause 11, don't we? But I think that we also have to reclause 11 first with clause 10, but then also with the powers that the UK Government will be taking on under clauses 7, 8 and 9. Once you reclause 11 in that context, I think that you see quite how unbalanced it is. I would also suggest that clause 11 ultimately is counterproductive. What we need here is, without being naive about political difference and the scope for political controversy and dispute, we need a modicum of trust and co-operation between the different Governments and the different Parliaments in the United Kingdom. To me, clause 11 is essentially a banner that says, we don't trust you, and I don't think that that's an appropriate place in which to start. Well, just to... Good morning, everybody, and thank you for inviting me. Just to add briefly, I think what was done in the withdrawal bill in terms of devolved competencies, particularly in clause 11, was, as one of my colleagues has just said, extremely crude. It was almost like a knee-jerk reading of the fact that, well, there were these powers at EU level, the UK Government represented the UK at EU level, so that's kind of straightforward just to bring it all back to London and not care about the devolved and constitutional implications. I think it's... It would, in any event, be an extraordinarily difficult constitutional challenge to find an appropriate solution to this, especially under time constraints, but for me it's extremely important to keep reminding ourselves of the wider context that the political and economic wider context is verging on the chaotic and the profoundly damaging. And so we're not just talking about constitutional changes and an appropriate devolution settlement in a static context. We're talking about an extraordinary upheaval, which I think whatever sort of Brexit we're facing is going to be damaging for Scotland, whether Scotland is in the UK or whether Scotland is independent. So I just think that broader context and otherwise I broadly agree with what my colleagues have said. Thank you. So without getting into what alternatives to clause 11 there might be, because I know some of my colleagues will want to ask you questions about those possibilities. If clause 11 was to go ahead, as it's currently drafted, could you just explain for us a little bit about what difficulties that would throw up, particularly possibly for parliamentary scrutiny or for government with those limitations that would be put on to the devolved Governments? Yes, certainly. I think that I've already alluded to them. Essentially what it will do is to make the business of working out what is within the legislative competence of this Parliament and also the executive competence of Scottish ministers a much more difficult task than it has been hitherto. As I said, those are relatively straightforward understanding about what the restrictions involved in the obligation to act compatibly with EU law involve. That will become a much more uncertain, difficult process when we're talking about retained EU law, which is a much more complex, difficult concept to grapple with and to understand. I think that going back to what I was saying about the quotation that I gave you from Professor Sir Neil McCormick, in technical terms, what you're doing is grafting a conferred powers model on to a reserved powers model. The reserved powers model, as you know, means that if it's not reserved, you can do it with a conferred powers model. On the other hand, you have to be looking to see what exactly it is that you can do. We're talking about it. This is where I think the whole thing is fundamentally mis-conceived. We're talking about going through 111 powers and working out which are reserved, which are devolved. Let's assume for the sake of argument that we reach a deal on which some we decide that some should be reserved, but they will be subject to exceptions and so on. At that point, you think that this is just not the right way to go about it. If I could just follow up on the last point that Professor Rowling has weighed about this being an unhelpful start, the way I would summarise it is to say that the premise on which the bill is based is, or the clauses 10 and 11 are based, of the devolved nations as a problem to be dealt with rather than, as part of the solution, delinquent children who, given half a chance, will seize the opportunity to make mischief and ought therefore to be prevented from doing so. I think that that's where the legislation starts and where the difficulties arise. I divide my answer into two sections. First, for the legal perspective, following up on what Professor Page was saying, there is difficulty clearly with this whole concept of what we mean by retained EU law. I think that a big point to make there is that retained EU law, although at first sight it may look as if it's a frozen concept, that we take a picture of it and there it is. If one looks carefully at the provisions of the bill, there is provision for Whitehall and Westminster to change what we mean by retained EU law, so it's a moving target. Certainly in Wales, and I would imagine in Scotland that I do my work in Wales, there is great concern in the Assembly about this because this clearly relates to competence and immediately the Government lawyers will then have to work out, well, is such-and-such with incompetence or is it not, when retained EU law may actually be shifting. Of course it calls into question the role of the presiding officer because the presiding officer will have to make rulings as to whether proposed measures are or are not with incompetence. Of course, we are dealing here with common frameworks in regulatory fields. Many of these common frameworks will be operating in commercial fields. As a lawyer, I'm well aware that where there is money, as there tends to be in the commercial field, there is litigation. It seems to me that this is a particular issue for the devolved administrations, which of course doesn't play the same way in Westminster because of parliamentary sovereignty. They don't have those issues of competence, which in the devolved administrations and in the devolved assemblies in parliaments we all have to experience. The other point that I would make about the release and what Alan has said about reserved and conferred powers, I think that colleagues will appreciate that there is a particular feeling about this in Wales, given that we have just achieved with the Wales Act, a move from a conferred powers model to a reserved powers model to now to be confronted with the idea that having got to a reserved powers model following in the footsteps of the Scottish Parliament to be confronted with an aggregate, which includes a conferred powers model, has a particular context to be saying in Wales. The other point that I wanted to make, in a sense I've already touched on it, I don't think that this is just a matter of law. I think that it's a sense of trust and collaboration and going forward in partnership. Yes, we can talk about issues of legislative consent, but I think that it goes more broadly than that. Let me put it this way, colleagues. It's very striking to me as an outsider that the very first question that this committee has got into is clause 11. It's wholly understandable that you have, but it's warping the conversation. We ought to be talking, it seems to me, about the substance. We ought to be talking about what these common frameworks, whatever they are, are actually going to look like and are actually going, what they're going to consist of, but we rightly understandably keep getting dragged back to clause 11. I think that's telling you a lot about why clause 11 is a poor choice of model. We'll obviously get into common frameworks shortly, but Dr Hughes, do you have anything to add? Yes, a couple of points. Firstly, it's obviously quite complicated what's going on in the sense of you're taking away the EU level, so you're collapsing it down to the UK, however you're doing that within or without the devolved structures. If you think in the way UK membership of the European Union has worked in terms of implementing directives, directives obviously have to meet, implement what has been agreed in Brussels, but there is also some flexibility in that in the past has led the UK to often be accused of goldplating its directive, so that when the sun or others might complain about Brussels interference, you'd be told, actually, you always go too far, you wouldn't have to do those extra bits, those aren't all, even though it comes from an EU directive that doesn't all come from Brussels. Of course, when EU laws came to the Holyrood, that option of exactly how to do it was here, and it's maybe a relatively small point in all these wider points, but how is that going to work? Even if something is agreed Westminster, you'll get then going to lose that ability, probably, to tweak it here, so I think that's one issue. On the substantive issues that Rick was talking about, I would put it slightly differently in the context of the withdrawal bill. There's a huge chicken and egg problem here overall in the withdrawal bill because the intention is said to bring EU law into UK law as retained law, but as a number of committee inquirers, the House of Lords in various guises has done reports of this have said, without knowing the regulatory structures, the agencies and so forth, a lot of that law, for instance, in the environmental area won't work or it won't work in the same area. So Westminster as well as Holyrood and the Welsh Assembly are being asked to take these decisions without knowing about the regulatory agencies, and Michael Gove talked a few days ago about a UK environmental agency, so there's a kind of incoherence and inconsistency going on here, which is not only about devolution but it certainly is about devolved powers, and it's part of the problem of trying to re-engineer your whole regulatory and policy system that is so deeply embedded, as you know Pascal Lamis called it, trying to unscramble an omlet. So I think that's extremely problematic and just one other thing to drop in here, though it's perhaps more general point. The EU 27 are watching closely what's happening with the withdrawal bill. They are very concerned about level playing fields. They are also aware of the fact that bringing retained law into the UK, without sorting out those regulatory questions and issues that are profound and detailed and will take a long time, is very worrying for them too. Willie Coffey, you wanted to go into alternatives to clause 11. Yeah, thanks, I just wondered if you could stick with clause 11 just for a wee while. Professor Rowlings, in looking at some of the alternatives that you've both offered to Professor Rowlings, you said that the sooner clause 11 is cast aside the better and you're going to say that it's akin to greater England unionism. That's a lovely phrase. Professor Page, you were talking about standstill provisions while the framework isn't being worked out. I wonder if you could both offer the committee your views on what alternatives may actually look like so that we could compare and contrast those, please. Yeah, certainly. I mean, I think I said at the beginning of my submission that reading the bill you had the sense of, you know, a piece of legislation which had been drafted without a proper understanding of devolution law or certainly was scant regard to the principles on which the devolution settlements are based. And what I had in mind in relation to clause 11 was the fact that if you look at the Scotland Act and if you look at schedule 5 and the list of reserve powers, then they do a lot of the job that clause 11 is supposed to be doing in the sense of they reserve things to the UK Government or to the Westminster Parliament, the rationale for which is that these are about the UK single market. So that concept is built into and secured by the devolution settlement and clause 11, therefore, it seems to me, has been drafted without a proper appreciation of the part that is already played by the existing settlement in securing integrity of the UK single market. I'm referring here to schedule 5, but also there are powers, powers of intervention, veto powers conferred on UK ministers in relation to both legislation passed by this Parliament section 35 and the executive action, including the making of subordinate legislation by the Scottish ministers under section 58, which means that if those powers were to belong or to be repatriated to Edinburgh rather than to London, there is very little effective scope for the making of mischief, which is how I referred to it earlier. That dimension has been completely ignored in the drafting of the legislation, allied to which I asked myself the question, well, what is it that you are trying to prevent here? Or what is the concern? The concern is, as I said in the paper that I did for the Culture, Tourism, Europe and External Relations Committee last year, last August, shortly after the referendum, the fear is that the four governments within the United Kingdom will ride off in separate directions and in so doing compromise the integrity of the single market. That acknowledges that we already have a single market in contrast to the EU, which is still trying to create one, and therefore it seems to be that all that we needed was to say, right, we're not going to do that. We'll have a standstill agreement whereby we will all agree not to introduce anything or do anything, which could involve the, and I'm now quoting the Prime Minister, I think, reasonably accurately, we will not, the guiding principle that they talked about in the white paper, we will not introduce anything, then we will not introduce new barriers to doing business or living within our union. Why don't we just simply agree to do that? That would then pave the way for the discussions that need to take place and the need is accepted as to where we're going to have common frameworks, what these are going to look like, what form they're going to take, how are they going to be revised and so on. I think that you can solve the problem without clause 11 and I'm completely persuaded of the disadvantageous consequences of clause 11, which we've already talked about, without having these disadvantageous consequences. So I would simply take, as my starting point, the existing settlement, acknowledge that it contains within it in-built protections of the UK single market that goes a long way in the direction that you need, and if you have any concerns over and above that, then you simply agree among yourselves, no, we're not going to do anything that would threaten its integrity, and we'll get on with this business of working out what common frameworks we will actually need as a result of the period withdrawal job done. Do you say a wee bit more about clause 58 in particular and how that might interrelate with potential trade deals in the future as well, because there is a mechanism available that effectively constrains, if I've got that right. For the record purposes, I think that it would be useful to hear from you a bit more about that specific bit. I think about clause 58 if I recall it accurately. What it says basically is that if the Secretary of State is of the view or is persuaded that action being taken by the Scottish Ministers would, I forget how exactly it's made, but would compromise or affect compliance with the UK's international obligations, then the Secretary of State may either prevent that action from being taken, conversely, where action is required, the Secretary of State may require that action to be taken, and where action has taken the form of subordinate legislation, then the Secretary of State can nullify it. I'm astonished. I'm astonished that there's been no reference to section 58 in any of course. That's why I'm sure we're getting this on the record, because it's quite an important power. Could you just clarify, Professor Page, that your view is that, as far as you know, that power has never been used, and indeed it's never been used in relation to any of the devolution settlements? I think that that is correct, yes. It's never been used in Wales? I'm not aware of the position in Wales, but certainly it hasn't been used in Scotland, and I think that if it had been used in Wales, I would have picked that up. The fact that it hasn't been used should not divert us from its significance or the potential, the knowledge that that power is there. I think that I want to make two points there. First, obviously the question from the convener was targeted on section 58, so we ought to have it on the record that there are parallel provisions across all the devolution settlements. It covers Scotland, Wales and Northern Ireland, although, interestingly, the committee may want to note the different wordings in the devolution statutes on that. I believe that the Scottish one is, if the Secretary of State has reasonable grounds, whereas in the Welsh one, I believe that it says, if the Secretary of State considers. I haven't got the statutes in front of me, but I believe that there's an interesting difference that the committee may want to note. The second point is that my understanding is that those powers haven't been used, but if we contextualise that a little bit, that is about preventing the breach of international obligations. As long as we've been inside the EU, that has had a more limited ambit. Once we're outside the EU, one sees immediately that those powers could become very significant powers. I echo what Professor Page has said. It seems to me that that's a crucial aspect that needs to be factored into this whole debate. I want to tease this a bit further, because that power might exist, but if I understand it correctly, under 583, the UK Government could effectively instruct the Scottish Government to introduce legislation. The problem is that what happens to the Parliament doesn't pass it. I think that I've made that point on my move. You can instruct the Government to introduce legislation, but that is not a guarantee that it will pass it. We're not going to get into that territory at all. The other point that I would make, just listening to Professor Rawlings, is talking about the difference between the Welsh and the Scottish settlements or the provisions. Yes, it is. If the Secretary of State has reasonable grounds to believe in it, it has to be a reason justification that opens up the possibility of judicial review, so it can't be just what the Secretary of State decides and gives an instruction. It has to be reasoned. I'm sorry, but I'll come back to that in a way. I just want to make sure that we had that on the record. Just a couple of comments. I wanted to slightly disagree with what Alan has said in terms of the UK's single market. I agree with him that the concerns were around that creating an integrity of a single market around the four countries and areas of the UK. He said that the EU's single market is still developing, which is clearly true. It's not complete, for instance, in services. It's trying to go further in digital. The large part of the UK single market is simply a part of the European Union single market. It doesn't exist separately from that in terms of the laws and the regulatory structures, the international trade deals and so forth. That is part of the complexity of Brexit. If you go further on top of that, if you went for a general statement like saying that we won't introduce new barriers, that could certainly cut across the Scottish Government's policy that has also been supported in this Parliament of arguing for Scotland to stay in the EU single market and in the UK, because that certainly would introduce at least some barriers, even though I'm aware that the First Minister has said that it would create. It could still continue in that model to have frictionless trade between Scotland and the rest of the UK. I'm opening up a wider set of issues, but I think that those are all relevant here. I think that we'll come on to some more of the trade issues later on. Sorry, I hope that I've not cut across any of your questions. No, not at all. Thanks, Bruce. Just back to the standstill agreement that you spoke about, Professor Page. It really is a bit trust, isn't it? Professor Rollins, you were talking about it. Basically, we don't trust you, so that provision is there. Could that standstill agreement stand alone without any legislative framework over the top of that? I mean, if it's about trust in everybody, trust one another in that reasonably then, it can stand alone, but does it need to itself be backed up by anything legislative over the top of it? The position being written into the EU withdrawal bill, I thought it would take the form of a concordat and understanding between the four administrations. We've got lots of experience of all these. I think that we always say that this is not intended to create legal obligations, so we're not talking about a legal obligation, but we are talking about an understanding which I would expect to be adhered to. If it wasn't, as I say, there is the option of intervention in the event that the Secretary of State has grounds to believe that action to be taken by. The point to bear in mind here is that you can't introduce new barriers by the back door as well, or surreptitiously. You are talking about legislation, either an act of the Scottish Parliament or subordinate legislation, so I think that the risk of that happening is very, very slight indeed. Professor Rowlands, your alternative suggestion was about adding or changing reservations in Scotland, Wales and Northern Ireland acts to reflect the agreed frameworks that you could train them themselves in statute. Could you just expand a wee bit on that? Surely. In a sense, it goes back to my original set of comments that let's try and move beyond Clause 11, as it were, or Park. Put Clause 11 over there for a bit. My big message to the committee would be, well, let's get on with it then. That isn't to say directed at the committee, it's directed at the Governments. I want to say that I'm very pleased with developments over the last month or so. It is great to see finally the JMC European Negotiations meeting and agreeing a set of principles on what common frameworks might look like and how they might be constructed. That is a great thing. I'm really pleased with that. I would be very much in favour of seeing the Prime Minister first of all speaking to the Welsh First Minister and then yesterday the Scottish First Minister precisely about those issues. That is exactly to me what should be happening. That said, I also want to place on the record that much valuable time has been lost. We are now at a stage where we have the list of 111 areas of intersection between the Scottish Devolution Settlement and incoming EU competencies, as it were. We have a list of 64 in Wales and we have another list in Northern Ireland, though that's not yet been published, I think. I'll be frank. That has taken what we, something like 15 months, 17 months—I lose track of how far we are on from the EU referendum. To be generous, that should have taken 17 weeks. We are a year behind where we should be, frankly. It just doesn't take that long to do the technical job of working out where the areas of intersection are, but we are where we are and clearly there is movement and that's good. We do that. We have to sit down and negotiations have to happen. I'm sure that Secretary of State Mandel has got this right when he says that the first thing that we do is that we look at the lists, what are the ones where we all agree that there has to be common frameworks, what are the ones where we all agree that we really don't need common frameworks, and then, of course, there will be the ones in the middle where we have a serious discussion. That's the next stage. It seems to me that as we go through that process, right, the natural thing to do is where we can get rid of clause 11 and we can say right, where we identify where we need common frameworks, we can be talking about reservations in the devolution statutes. That gets around the kind of problem that Alan was quite rightly flagging up about how you join up a conferred model and a reserved powers model. That seems to me to go with the grain of the devolution statutes. The big message here is get on with it. Parliamentary sovereignty. To me, coming back to clause 11, the exercise of parliamentary sovereignty in the bill is the wrong way round. It's being used up front. That's not how you need to go about this, it seems to me. Parliamentary sovereignty, I would argue to the UK Government and have, should in a sense here be the reserved power. That we have the discussions, as David Mundell has said, we do not have frameworks by imposition, we have frameworks by agreement. There may ultimately come a time, and naturally I've been pressed on this when I've given evidence in Westminster. There could conceivably be a case where the Administrations just cannot agree and the UK Government believes there is a fundamental union interest in play. At that point, it is conceivable that parliamentary sovereignty might have to be exercised and we would be into civil convention territory. Personally, I don't think that's going to happen for the kind of reasons of mutual interest of the different countries of the United Kingdom. However, if it did happen, one can conceive of parliamentary sovereignty as a reserved power in that situation at the end of the day to resolve matters. That's where I am. I just want to part clause 11 and I want to go through the process of the work. Maybe I'm an optimist in life, but I actually think that a lot of this can be sorted out when, when it looks at the list, I think that there would be widespread agreement around this committee room that some things really don't need common frameworks, some do, and then, of course, there will be a natural debate about some in the middle. Professor Rowling, that has been a very helpful exposition of your position in relation to common frameworks being the alternative that's required to clause 11. I know that other members want to come in later and look at the detail of common frameworks, but I just want to address the principle. Perhaps I could ask the other two witnesses if they would agree with you in terms of your general approach that the alternative to clause 11 is to have common frameworks and perhaps more importantly a mechanism for agreeing those common frameworks. Professor Page, I agree with what Professor Rowling said about the need to get on with it. I would answer that, get on with it and don't make a meal of it. 111 intersecting powers, the temptation must be, we'll go through this, and this is an invitation to rewrite the devolution settlement. Should this be reserved, or should this be devolved? I think that that would be an enormous diversification and a waste of effort. It shouldn't be a difficult business to work out where these common frameworks are needed. Just do it. I think that common frameworks can resolve some of this. I think that, as you say, the mechanisms for agreeing them are certainly not straightforward, as I think that the preceding discussion has illustrated. I also think that, and this is what I put in my written evidence, that if we were going down what has been called a soft Brexit route, I always put that in inverted commas because I don't think that there is any soft Brexit in all the impacts, as I said before, a negative. If we were in the European Economic Area and in the EU's customs union, not a combination that's happened before, you would still have common frameworks at European level, it would just be at EEA level no longer at EU level. Given that the UK Government has made it clear we're not going for a Norway model, and so it's heading for some sort of free trade deal, it says it doesn't want a Canada-style one, but I think that's what the EU 27 is clearly going to offer if the UK rejects the Norway one. Common frameworks work in the context of a hard Brexit, but if you want a soft Brexit, then I think that this discussion is at that point going down a rather different route. The idea that you solve these things in a way that are completely neutral to the form of Brexit, once you're talking about common frameworks, is clearly wrong. Can I ask a supplementary question on the back of what Professor Rawlings has said? This is a lawyer's question to lawyers. Given what you've said about the importance of common frameworks and the importance of holding parliamentary sovereignty in reserve, do you imagine that the common frameworks themselves will be statutory? Do you imagine that the common frameworks themselves will need to be recognised in statute? Is it your evidence to the committee that, once the common frameworks have been agreed, in respect to at least some of those common frameworks, there will need to be fresh reservations added to schedule 5 to the Scotland Act and, like reservations added to the relevant schedules of the Wales and Northern Island Acts? I just want to be absolutely clear about where you are in terms of the relationship between the common frameworks and statute law. First of all, we need to work out where they are needed and what they will consist of. Then, as you rightly pointed out, they need to be on a statutory basis. If they are on a statutory basis, is that going to be a pan-UK statutory basis or is it going to be on a mixed basis involving legislation by this Parliament and the other devolved legislatures and the UK Parliament? Also, very important, I would have said in what mechanisms will there be for changing those frameworks? How are they going to be managed? How are they going to be amended? As to whether or not they should appear by way of amendment or be reflected in amendments to, in Scotland's case, schedule 5, one of the points that I have been keen to stress throughout this whole process is that we are talking not just about an EU withdrawal bill but a Brexit legislative programme. It will involve other bills, one of which has already been published, and we will see others that are of direct concern and relevance to this Parliament, notably one on agriculture. Rather than putting all our eggs in the EU withdrawal bill by Huskett, we ought to look at the thing in the round and acknowledge, I would expect, that when we are actually talking about agriculture, we will have a much clearer understanding of where we need common frameworks. That might involve amendments to schedule 5, and I would expect those to be done on the basis of agreement. On the one hand, I would say, get on with it, but on the other hand, I would say, do not lose sight of the bigger framework, and some of those, not all of it. I do not want to say that the whole thing needs to be statutory, some of it may well be statutory and will ultimately be reflected in Scotland's case in amendments to schedule 5. That is helpful. Professor Rowling, do you agree with that? Yes, I do. If I may go back to your meeting last week when I was reading the evidence ahead of today's session, and I do not want to engage in semantics, but one thing I found myself disagreeing with the Secretary of State about was the way in which he classified different approaches. He talked about areas where you would not need frameworks. Then he talked about areas where you would need frameworks, and then he talked about areas where you might have concordats or memorandums of understanding. My approach is somewhat different from that, because I would see the idea of frameworks as, yes, sometimes involving reservations, sometimes involving statute law, but frameworks can also be softer than that. In other words, I would not start off by distinguishing frameworks from ideas of memorandums of understanding and concordats. In fact, when I have done a lot of work over the years on EU governance and EU administration, what one finds, when one looks at those sectors of the single market, is that you have creative mixes of what lawyers like to call hard formal law and soft concordat type law. I do not think that that is that soft, then. Coming back to your question, I do not think that it is either or. I think that there is quite a scope here for creative mixes. Before we move on, do you want to add in into that? Alexander, I think that I hope not to tread too much in the area that you are going to go into. Professors and doctors, good morning, if we could continue on the common frameworks. Just very briefly, we have heard in previous evidence views as to the number of frameworks or the areas of frameworks, whether it is agriculture, energy or environment. Just for completion's sake, could I get your views on that very briefly? I hope that you have been wanting to talk about nicely teared up, which is the substance of common frameworks. Professor Rawlings, would you like to start, maybe, since you? I think that it might be helpful to the committee. I do not know if the committee has done this. It is to compare the Scottish and the Welsh lists. I think that is actually quite an instructive thing to do. Immediately what you find when you do that is that if you are taking a Welsh perspective, we are in the multilateral game. Why do I say that? Because every single item on the Welsh list is in the Scottish list. Of course, because there are more powers devolved in Scotland than there are in Wales, that is where you get the extras. Then it is worth placing on record where those extras are. Those extras tend to be in two big areas. Again, you would anticipate them, but I think that it is worth emphasising. The first is around justice. Of course, in Wales we share a legal system with England and Wales. In a sense, we have our common framework with England, expressed already through a set of common frameworks expressed through the England and Wales justice system. There is a lot there that we do not have in Wales that you have in Scotland. Immediately that opens up the prospect of bilateral discussions between the Scottish Government and the UK Government that the Welsh would not be directly engaged in. The second area where you see difference and it is related is around data sharing, data protection. Again, those do not bite in Wales. I say that because I think that helps to contextualise immediately what we are talking about here with common frameworks. What are bilateral common frameworks perhaps? What are multilateral common frameworks? Of course, when the list for Northern Ireland is eventually published, that again will be worth studying. That may then open up the issue about UK common frameworks, GB common frameworks, because we know that some of the economic sectors, for example, with energy in Northern Ireland, are heavily integrated with the Republic. That is a really important starting place, if that is helpful. I think that just following on from those last remarks, it is clear that unless and until we know the sort of deal if we are going to have a deal with the EU 27, how do you design the common frameworks that we have had in the last week or so? The argument that Northern Ireland should remain in both the customs union and the single market will put it in a very different position in terms of frameworks than the rest of the UK at that point. That is also going to cut across all the most obvious areas, whether it is agriculture or environment and so forth, to refer to Michael Gove again and his suggestion that there is going to be a UK environment agency. That is already, in a sense, taking a decision or at least indicating the direction of travel for a decision, not only with respect to the devolved nations but also with respect to how any future EU 27 UK deal may work. I think that there is also obviously a timing question here. I am not sure that I am as optimistic as Alan about how easily you can resolve this and establish the common frameworks, but if we are going to have, say, a two-year transition, so we leave the EU at the end of March 2019 but we have a two-year transition, then the EU 27 are also being very clear that that transition should be, in some sense, a prolongation of the EU's acquis. Now exactly how that happens is not clear to me. You can do get temporary membership of the European Economic Area plus some other prolongation of the EU's customs union. That has never happened and we know, of course, that Turkey's customs union is only one for industrial goods. At what point does the withdrawal bill and the UK common frameworks anyway start? During that transition, you are still attempting to negotiate the final trade deal even though, if there is a deal next autumn, you will at least have an outline and a political declaration of what the desired future EU 27 UK setup is. You also then have a potential problem. What if you get to the end of that two-year transition and it cannot be prolonged? Do you have an intermediate period where you have a certain set of UK common frameworks but they change again another two or three years later when you finally do agree your Canada-style trade deal or whatever else it is? I think that all these levels are, to some extent, interdependent. It seems that this discussion is being had very much about UK, Scotland and UK-devolved nations. Given all the complexities, that is one way to have a first go at it, but it presumes that we know what is happening at the level above or what is going to happen. Professor Bech. Yes, thank you just to add a couple of points. Professor Rawlings invited us to compare the two lists and that was an exercise that he and I found ourselves engaged in to previous committee hearing. One of the things that I found instructive about comparing the Scottish and Welsh lists, which is probably worth bearing in mind when the committee comes to think about this further, is that the Welsh list is set out much more helpfully than the Scottish list. By that, I mean that it is set out by departments. It is if you are like a shopping list set out by the Whitehall department, whereas the Scottish list is possibly even in alphabetical order. It is just 111 powers with no indication of where they come from or who has highlighted them or flagged them as areas of devolved competence that intersect with e-responsibilities. The reason that I mentioned is because if you look at schedule 5 of the Scotland act, the names have changed and the nomenclature has changed over the years, but the section A, B and C is the shopping list of individual Whitehall departments and the things that they thought should be reserved, so it maps on to that. I think that that is an instructive way. There is an issue about, and I experienced this when I wrote that paper for the European External Relations Committee. At what level of generality do you pitch this in such a way to make it meaningful? I tried to pitch it in a way that I thought was meaningful. The great danger is that you end up descending into such a level of detail that ceases to be meaningful or it becomes so technical that you say, oh, I'll just have to leave this for a while so we can't exercise any meaningful degree of control over it. But in terms of substance, I'm just going through my list, the ones that I picked out, and I'll just give you them in no particular order, are financial assistance to industry, state aids. Then I picked out a whole series of powers to control the movement of food, animals, animal products, plants, plant products, animal feeding stuff, fertilisers and pesticides. These are all mentioned in schedule 5. Product standards, public procurement, animal health and welfare, food safety, food labelling, food composition, fishing and the environment. Sounds like a long list, but it's a lot shorter than 111. That's where I would expect the principal focus to be. It's very helpful, and it's the first time we've been hearing about the Welsh List and the Scottish List being compared to each other. Hearing of your wish to get on with it, have you actually done any work even beyond that? Of actually seeing what a draft framework in one of these areas would actually look like? It's just very brief. Right, so if I make two points about that. First, you will have seen that in the evidence that I presented to the committee. What I've tried to do is, in a sense, the next step beyond the JMC Communicay. The JMC Communicay has some very valuable high-order principles. What I've tried to do then is to create a practical list of questions which the policy makers, the officials, could usefully bear in mind when they are devising frameworks. In the sense to create a template, a set of policy tools, the kinds of things that you need to be considering when you are devising a framework. That was the next step that I tried to contribute. The further step, I think we're very much in accord here because this is where I think we should already be. It seems to me that the first thing to do was to create the list, as the Secretary of State has explained, and then to classify as the Secretary of State to suggest it. When we've got to working then with a category where there is general agreement that we do need common frameworks, it seems to me that the immediate next step is to draft some, to sit down, do some discussions and actually sketch them out. What I would like to have seen, and again I'm frank about this, I think we should have already done this, right? We should already have some draft frameworks out there. This doesn't seem to me to be an impossible demand. I go back to the making of the Wales Act 2017, where we were, in a sense, changing, as I said, from a conferred powers model to the reserve powers model. If you look at the original UK Government white paper, Powers for a Purpose, what they did was that first they listed areas where they thought they would need to be reservations, and then they actually gave some worked practical examples of what a detailed reservation might look like. I believe that it was on-road traffic and it was very carefully done. I think that's where we should be. I say that for a number of reasons. First, because, again, it seems to me that it would help to take the constitutional heat out of the situation, which I would regard as valuable. Second, from a parliamentary perspective, it seems to me that this Parliament and Westminster and the National Assembly, and of course the Northern Ireland Assembly, if it was sitting, by now, should have some of these drafts to be looking at, to be grounding the discussion. Certainly, if I may be so bold, if I was contributing to the report of this committee, which I understand is the first report anyway, it's going to be published before Christmas, I would be very much pushing for that. I would be saying, really, if we're going to have a discussion around the EU with job bill and all these common frameworks, we'd like to see what some of them look like. That's our job as parliamentarians to scrutinise. At another level again, and I think that you will agree immediately how important this is, stakeholders, we're talking here about common frameworks. We're talking, naturally, we focus on the relationships between Governments and relationships between Parliament, but ultimately, these common frameworks will have end users. Businesses, consumer groups, voluntary sector, citizens will all be operating on the basis of these common frameworks. It seems to me that the sooner that we have drafts out there, the sooner that we can have real participation and consultation from all the people who are likely to be affected. That's part of the democratic process. I'm disappointed about how I think we're behind the curve where we need to be. I would be really pushing to speed that up. Where I disagreed again with the Secretary of State was that last time, I think that he had a three-fold classification of the list, the idea of fixing the process, and then he said to the committee last week that we won't have time to be dealing with any content ahead of the European with job bill. I would really want to put that into question. I'm not—what Kirsty Hughes has said is clearly right—you won't be able to know everything because it partly depends on what we end up with, but there are some things. We ought to be able to get some of the substance out there, and we should certainly be able to get some of the substance out in draft for all the reasons that I've suggested. I wonder whether that's a lot of intergovernmental machinery going on there to get all that done. There's a lot of discussion, etc. What's the role for Parliament in all this, this Parliament, in terms of scrutinising that, or what should the role be? Is that to me? However, I'll just throw that in there as I thought. Clearly, there is a role for Parliament in scrutinising those. Not just for one Parliament, but for more than one Parliament, which raises the question of co-operation between them. Are you going to do this separately, independently, with one another, or are you going to take into account what's being done elsewhere, and if so, how are you going to do it? This is something that I've talked about to the Delegated Powers and Law Reform Committee, where Monica Lennon asked the very reasonable question, how are we, with a very small number of MSPs on this committee, how are we going to scrutinise all of this work? Part of my answer was, does this not make the case for inter-parliamentary co-operation? I was given to understand by one of the clerks that there are discussions on going, and I think that the deputy convener may have been participated in some of those discussions about that. I think that it's essential that the issue of parliamentary scrutiny is faced up to recognising the constraints in terms of resources and time that apply to each Parliament and therefore proceeds on the basis of our co-operative relationship between them. Just to help for the record purposes, there is already a forum on inter-parliamentary forum, which is the in-project part of a process that might well grow up, and most of the deputy convener himself has been involved in those discussions. Can I support what Professor Page has said most strongly there, and just to make this point to the committee. Again, you'll see where I'm coming from, given what I said about when you compare the Welsh and the Scottish lists. We're talking here about common frameworks. When we talk about common frameworks, that immediately gets you into multilateral arrangements around the United Kingdom. That to me suggests that we need good and effective multilateral forms of inter-governmental relations, but also good and effective multilateral forms of parliamentary relations. It seems to be that it must be sensible when one is scrutinising a common framework from the perspective of Scotland to have an appreciation of how this common framework is going to look like from Northern Ireland, Wales and England, if it's a common framework that we're all going to share. That seems to me to be the logic of the situation. Just a very briefly, I just think that on top of all that, there's a broader bandwidth problem in terms of the amount of scrutiny that's needed. As well as common frameworks, there's going to be new regulatory frameworks at UK level that used to be at EU level and that are going to have profound consequences across the UK. Obviously, a lot of that will be then for Westminster parliamentary scrutiny. In terms of both civil service time and political time and other forms of accountability, Brexit poses an extraordinary problem, and that's not the only reason for some of the certain inconsistencies through to chaos that we're seeing, but it's certainly one of them if you're trying to re-engineer your whole system in an extraordinary hiring. Alexander Stewart, do you have any more questions? Thanks, panel, for coming to talk to us this morning. The area that I wanted to go into in a wee bit more detail was round about the interplay between trade negotiations in the common frameworks. To some extent, we've talked to Dr Hughes about the timing, which sounds very variable. We don't know what common frameworks are going to be. We don't know when they're going to be in place, they need to be in place before March 19 or can they be developed through the transition period, obviously. That's unclear and also depending on the relationship with the EU, whether it's soft, hard or something in between. That will determine what those common frameworks look like, but I suppose that it's taken it beyond that. You can imagine a common framework as being something static. We'll figure out what it is and then we'll implement it and of course the reality is that we're going to be having negotiations with the EU-27 on that relationship, trade relationship but also with every other country in the world and every time we do a deal with Australia, Canada, Japan or whatever, there are going to be no entire barriers and there are regulatory issues in there that are going to impact potentially across all the common frameworks that are in place. I suppose that it's how the dynamic aspect of that is going to be managed on top of everything else that we've talked about, because clearly the UK Government, when it's negotiating, will want to let us say non-tariff regulations on whatever are X, therefore Japan, we can do a deal with you, but if part of that is tied up in the common framework and the devolved administrations, I've got some saying that, how do you see all that kind of coming together and how do the devolved administrations have an input into those negotiations as well? I think that I addressed that point in my paper where I took another point that I've been keen to stress from the outset that this is a much broader issue than simply a question of those EU competences that are devolved and on one view at least ought to fall to the Scottish Parliament. There is this much bigger question of all the other competences which will or have implications for Scotland, Wales and Northern Ireland, and foremost among those is the one that you highlighted, the negotiation and conclusion of trade agreements. You say rightly with the EU and also with all non-EU countries. What that highlights for me, as I said in my paper, is the need for a much more thoroughgoing system of inter-governmental relations, which encompasses that and ensures that the interests of the devolved nations are properly taken into account in the exercise of in the negotiation and conclusion of all those agreements. The truth is that we've got very limited experience of the action. In Scotland's case, it's quite bad. Scotland is simply forgotten about when Tony Blair did his deal with Gaddafi and forgot about the prisoner of transfer agreement prisons as a devolved responsibility on a criminal justice system as a devolved responsibility. We need to pick up and begin to address that whole new dimension of inter-governmental relations. The words are there on paper, as I think I indicated in my submission, but there's no machinery effective working to back it up. I can well imagine that there are interests in ensuring that there is no such machinery. The UK Government would prefer to get on with us undisturbed or unfettered by the claims of the devolved administrations, which is why I think that these need to be highlighted and highlighted now. I think that it's a very good and important question, and the question itself shows how difficult and big this is. Of course, if you think about the EU negotiating trade deals, the reason in the case of Canada that it ended up in the Walloon Parliament was because these are quite often mixed agreements and then they have to conform with constitutional arrangements of the member states as well. As Alan says, certainly, you know, are you just going to have something that says well okay, the UK Government just decides or Westminster just decides, or actually no, once we've set up these new structures and non-tariff barriers and regulatory structures, as you say, a structure to cross the devolved administrations and parliaments as well, then I think that you have a very big problem. For instance, we talk about a transition, but potentially a very short transition, but the EU 27 cannot speak for the third countries, the 60-odd third countries, that it has trade deals with, obviously, and as you know in the published trade bill, the UK Government is again just trying to say, well actually we don't need to bring all this to Parliament, just give us the powers that will go off and negotiate these on our own. I think that that's going to be difficult in some cases, it will be time consuming, the financial times, I can't remember the exact number, but I think they estimated that apart from those crucial trade agreements there are about over 700 international arrangements and treaties that also might need renegotiating or replacing in some sense, so I think both for the transition from where we are to any future deal, these issues are going to come up straight away, and that's why this question, even if it's going into other committees areas, but this question of how do you prolong the customs union? In what way could you do that, even for say two years, need some answer and would that be enough to at least for two years prolong those agreements with those 60 other countries, because otherwise you're going to get into that extremely quickly? Just one other comment on the time horizons here, as I understand it, the view in Brussels is that you cannot have a long transition, and the reason you can't have a long transition is you would start to get legal challenges to agreeing that under article 50, and that really if you're going to have a four or five year transition, excuse me, that starts to look almost like a quasi trade deal, and in that case it should be agreed under article 218 and other articles of the treaty. So it's not necessarily in the EU's gift, even if they were open to it, to have a long transition period. There's another wrinkle to that, which is, could you make it part of the article 50 agreement that there's a possibility to extend it? So you set it up as short, but you extend it, and the significance of this is obviously both whether you can decide this by majority in the European Council or by unanimity, and also whether it has to even go back to member states, parliaments and so forth. So I think this question of, you know, how does the split of non-tariff barriers between UK level and devolved level feed into trade negotiations is extremely important, very difficult to resolve, and not one just for the long term, it's one that needs to be resolved as we head perhaps towards a transition phase. Professor Ollid, as you're answering this question as well, can I just draw you to something that you said in your own paper, because you suggested a potential new machinery to start to deal with some of this around a GMC domestic single market. First, I've seen that suggestion, and obviously that would have an interplay with trade deals as well, but it still leaves in my mind, whether that architecture might be there, still leaves in my mind, if there's a dispute, how do we resolve it? Has that still just come back to the UK Government Parliament being sovereign at the end of the day, and they make the decision, because that seems to me to be the nub of this, as far as Scotland's concerned. I think that I suggested two bits of machinery in that paper. The first one, just a sentence, I mentioned the idea of a joint ministerial committee on international trade, and I didn't develop that, because that's been suggested by the Institute for Government, so I left that there. The one that I suggested was the idea of a joint ministerial committee for a domestic single market, as you say, and it picks up on the first part of the question, I think, that it's all very well establishing some common frameworks, but those common frameworks will be living instruments, regulatory challenges, change, technological innovation, et cetera, et cetera. It seems to me that I wanted to put a marker down that, yes, it's all very well having a revivified JMC European negotiations, but at some point the European negotiations will stop. I wanted to suggest that we would need on-going machinery in that area. If we are going to have elements of shared governance here, it will be a continuing process of negotiation and fine tuning, so I thought that it was very important to introduce the idea of having some form of standing machinery to achieve that. That's where I was coming for that, because it seems to me that we can do some common agreements, but things happen. We have to have machinery in place to deal with that. We then come to the vex question of how we resolve disputes. Naturally, with my Welsh perspective, I'm very aware that there is a very developed set of proposals from the Welsh Government in its paper titled Brexit and Evolution, where it goes into very great detail about voting rules on how you would decide disputes. I mean, my own view is that, attractive though that is, that just has no political traction in Whitehall and Westminster, that that is just too much of a jump for the UK Government to accept. My proposal was somewhat more modest, frankly, because I just don't think that the UK Government will take that kind of approach. How do you then, if there's a dispute, do you resolve it? Ultimately, that has to be done to the greatest extent possible through consensus and agreement. Ultimately, I'm driven back to the fact that it is a union, at least for the time being, and that ultimately the UK Parliament would have to take a view. We talked a lot about section 58, and clearly it talks about the UK Government's rights with regard to devolved Administrations with regard to international deals, but it doesn't say that it exists in international deals or new international deals. Is there a scenario whereby the UK Government wants to do a deal with somebody and it has to play the section 58 card in order to railroad that through? Well, no, it's talking about existing international obligations, section 58, but just to follow up on what Professor Rowling said, I mean, I said earlier all of those points to the need for a more thorough going system of intergovernmental relations. What I didn't add, but what I have in mind is that that will have to extend, in certain cases, to joint decision making. That is the nettle, which has to be grasped. You're not going to grasp it as a general principle for exactly the reason that Professor Rowling has indicated that the UK Government, I don't think, would wear that as a general proposition. However, when you get to the nitty-gritty of working out what these common frameworks are, I think that there will be questions of different levels of importance to the devolved administration, so some should certainly be, you know, we're not going to do this or we're not going to change it other than on the basis of agreement. So I would be looking to pre-empt the possibility of disputes arising by having, in relation to certain key issues, provision for joint decision making. That's the position that I expressed in my paper. Thanks very much. Good morning. I want to start with a follow-on question from Ivan's line of questioning about trade agreements. I think that Dr Hughes, your paper suggests very clearly that you anticipate something like the trade agreement with Canada, whether it's exactly like that or something else that the UK Government has in mind that hasn't told anyone about yet. We don't know, but we know that these things can be very controversial, as you indicated earlier, particularly in issues such as investor-state dispute resolution mechanisms. Generally, there's an argument that those kind of mechanisms transfer what should be democratically accountable power for governments to regulate and legislate toward unaccountable bodies like tribunals. Within the EU, that's not such a problem, because there is a level of European democracy to which those decisions are accountable. If the UK goes in this direction in some way, there's going to have to be something like an investor-state dispute mechanism. Is it possible for such a mechanism to respect the devolved competencies of Governments within the UK in relation to their legislative areas, the jurisdiction of Scottish courts and tribunals, and how much influence would the devolved authorities have over those kinds of mechanisms and the decisions that they can make? How can we hold those democratically accountable? My brief answer, if all you are thinking about it, is all issues to be addressed. You're absolutely right. I wouldn't pretend to sit here and have an answer to it, but the issues that you highlight are of the first importance and all not to be lost sight of in all of those. It's a huge question. The investor-state dispute settlement mechanisms have come under a huge amount of attention, scrutiny and criticism recently quite rightly. In my view, the Canada one was tweaked to take account of that to some degree. T-tip has gone on to the back burner or into the dustbin, depending on your view. However, it was clearly going to remain very sensitive there. On the other hand, if you were in a Norway-type situation, you'd have the Eftercourt. Probably my colleagues are better qualified than me to talk about how devolved courts and legislation relate to the Eftercourt, which I think is a rather important and interesting question. It's slightly to one side of your question but, to add it in, we're on the issue. We don't know what the Prime Minister means by deep and special, but not Canada and not Norway, but we can clearly guess that she very much hopes that there will be a trade deal that will give much more access to services than the Canada or South Korea ones do. That looks highly unlikely if you talk to people in the EU 27 or in Brussels. That obviously has very serious implications for Scottish exports. National Institute of Economics and Social Research has talked about greater than 60 per cent fall in services trade, in the case of a Canada-style trade agreement. The latest line out of Brussels is not only that they won't give the UK that, they're starting to say that they can't give it that because of MFN's most favoured nation clauses in the Canada and South Korea deals that would mean that if they did give it us, they'd have to offer it to those other countries as well. That's a bit to one side of the dispute settlement issue, but it's very important for these wider issues. I think that the regularity with which I've heard the phrase deep and special relationship suggests to me that it just means please don't hate us for doing this. It doesn't seem to have developed any more meaning than that so far. I'm interested to know whether any of the witnesses are aware of similar trade agreements to the range of possibilities that might exist, which either in relation to Canada or other countries recognize the ability of different levels of jurisdiction within a country. In Scotland, in relation to legislative authority, courts and tribunals, which are separate in Scotland, are there any pre-existing examples of trade agreements in which a country has managed to achieve that level of recognition of authority and democratic accountability being exercised at different levels? I don't know, but you can ask your question, and you should ask your question of the position of the devolved Administrations in relation to the EU and the EU's rules on standing, who can bring actions before the European Court of Justice. I'm having to dig deep into the recesses of my memory at this point that I may not be entirely reliable, but I think that it is the case that it is only the UK Government and not the devolved Administrations that can litigate before the European Court of Justice. If Scotland, for example, had an issue with something that was being done by the EU or by analogy under some, as yet to be concluded, international trade agreement, the question would be, could Scotland of its own motion pursue that concern issue through whatever dispute settle mechanism that has been established, or is it in the hands of the UK Government when it comes to that? That principle was not conceded, I think that I'm right in saying, and I'm conscious that you're in Professor Rowling's nodding his head in relation to the EU. Therefore, going back to what we were saying about all issues to be addressed, that is a critical one. I appreciate that point. The difference is that, of course, the EU does have a level of democratic accountability. Scotland has parliamentarians elected to represent us in the European Parliament. I mean, firstly, I would set a lot of store by the powers of the European Parliament. There's obviously multiple levels to your question, but as I already referred to, we saw in the EU-Canada trade deal that the Walloon Parliament hold that up. So certainly at that level of the stage of actually agreeing the thing, different constitutional agreement arrangements in the EU member states have come into play, so I can't see why that couldn't also operate for the UK if we chose to set it up in that way. How it then operates is subsequent to that in terms of powers of the Walloon Parliament in any disputes, that I don't know. On my side, I've thought of being on Julie Dismissive of the Scottish Parliament, the EU Parliament. The point that I was making is that we've got six MEPs in a Parliament of, I think, 751 MEPs. The point that I was, well, two points really. I mean, I think that the direction of the last two questions, if I may say so, is spot on, because it seems to me that the whole area of international trade and the relationship between international trade and devolution, this is going to be, you know, a controversy which is going to run and run and run. And you know, if I may say so, I think you're both absolutely right to focus on this aspect. The second point I wanted to make was that I think there's a very considerable distance to travel on this. I don't know if committee members have had a chance to look at the new Board of Trade, which established by the UK Government in the last month or so, and the briefing documents around that. And what you'll find is that that is a very top-down approach where the devolved administrations, far from being represented on the new UK Board of Trade, are treated very much as stakeholders along with lots of other stakeholders. Right? And so it seems to me that that's actually sort of quite a negative set of messages that the UK Government is sending out there, that, you know, personally, I'm sort of very disappointed in it. I also wanted to ask about Dr Hughes' paper in relation to— I'll come back to that one. Okay, I'll store that for a moment. Thank you. So we've obviously been dealing with the issue of international trade. More about mundane matters, but nevertheless important in the ministerial powers, because I just need to get some of that stuff on the record. I know that Emma wanted to have some questions around that. Thanks, convener. Good morning, everybody. In your paper, Professor Page, you talked about the ministers will gain far-reaching powers to legislate in the devolved areas, and powers that are said to be justified by the scale of the challenges represented by Brexit and the shortness of time that we have to negotiate. So I'm interested in the fact that you stated that this is a radical departure from the principles of which the devolution statement is based. Can you expand on that a wee bit, please? Yes, indeed. I mean, this is something which I looked at as scans when I first saw it, and in particular I looked at the scans at the proposition that not only should UK ministers have the freedom to legislate in the exercise of the powers to be conferred by clauses 7-9 across the devolved, as well as reserved areas, but that they should have this power subject only to a non-binding requirement of consultation with the Scottish ministers. No provision, no requirement for their consent, no provision for Scottish parliamentary scrutiny or approval of the regulations resulting from the exercise of those powers. I think that what may have been lost sight of or not sufficiently picked up, which is why I stress it in my submission, is, as you pointed out, how radical a departure this is from the existing devolution settlement, where, in contrast to the power of the Westminster Parliament, which as you know remains sovereign, can legislate for Scotland and the act specifically states that, there is no equivalent provision in relation to the power of UK ministers when it comes to the making of a subordinate legislation, it has only very limited powers, and the most significant one is that section 57.1, the power to implement EU obligations in the devolved areas. However, as a general rule, it has no such power. The power belongs to the Scottish ministers and that is for the perfectly understandable and correct reason because they are responsible in those areas. What we are proposing to do without, as I say, the question has been picked up, but it certainly deserves merits highlighting, is how radical a departure this is from the principles on which the devolved lawmaking system is based. We are giving UK ministers, I used to say to my students that EU membership, the European Communities Act, began with two blank checks, one blank check in favour of EU institutions to write laws, another blank check in favour of UK ministers to implement EU obligations. I have tempted to say that it will end with one blank check, being in favour of UK ministers to legislate across devolved as well as reserved areas. That is simply unacceptable. I did, as Professor Rawlings did, possibly not as closely, but I did look at what the Secretary of State said in evidence to this committee. There were a lot of warm words there, but I did not get any sense of movement on yes, we will conceive the principle of Scottish Ministerial Consent to the exercise of these parts. I think that that is absolutely fundamental, and that principle needs to be considered. The options for proceeding that you have alluded to in your paper, could you explain a wee bit more about that? We need Scottish Ministerial Consent as a precondition of either the exercise of powers by UK ministers in devolved areas, or if Scottish Ministerial Consent is withheld the exercise of those powers or the section to close 10 analogous powers by the Scottish ministers. I think that that is the first step. Now, I did not go into this in my paper, but I think that, for practical reasons, reasons of resources, as much as anything, the temptation will be to go with what the UK proposes. We will be seeing a lot of UK or GB-wide legislation in devolved areas when it comes to making sure that the statute book will function properly after we have left the EU. There have been statements—this was the first of my three options, UK ministers and Scottish ministers' grant consent. There have been a set of warm words and assurances from Scottish ministers—one minister in particular—that, yes, the Parliament will be informed about all of this. My point, which I made indirectly, I did not spell it out, is that those assurances tend to be easily given and equally easily forgotten about. I did do some work on the transposition of EU obligations and the circumstances in which the Scottish Government had relied on UK legislation and the transposition of those obligations. The Scottish Government was remarkably coy about this. I went to Brussels and I spoke to people there in a separate connection. I spoke to the Scottish Office of Scottish Government representatives and said, yes, we do it all the time. The only people who did not know about it was this Parliament, notwithstanding a commitment made by several administrations of different political complexions that the Parliament might be kept informed. It was a commitment that was just forgotten about, allowed to go by the by. I raised it with the European External Relations Committee, after which I think that it was picked up again, but for whatever reason it was forgotten about. If it is the case, as I suspect, that we are going to be relying heavily on UK subordinate legislation to tidy up the statute book to make sure that it operates properly, then this Parliament needs to know about it and needs to be certain that it is being told about it and that it is not just being allowed to go by the by. That would be my first step. Then you go into this question of, well, scrutiny of these UK or GB made regulations, what provision is there for input by this Parliament into that scrutiny, which takes us back to our question of inter-parliamentary co-operation? Are we just going to leave it to the UK Parliament to scrutinise this as best it can, or is there going to be provision for this Parliament to A know about it and voice any concerns that it might have about what is being done? Then the last of my three possibilities is where the Scottish ministers make the changes and then hits the job of the delegated powers and law reform committee to pick up the question of scrutiny. I am sorry that I have gone on a bit at length, but that was what I had in mind. I have similar concerns, as you would expect, of being expressed in Wales. I just place on the record a particular set of points. I am sure that the committee has already considered them, but I do think that it is worth putting them on the record again. This is what is called constitutional protection of the devolution statutes. If we look at clauses 7, 8 and 9, the UK ministerial powers are to deal with deficiencies, compliance with international obligations and implementing the withdrawal agreement. At the moment, those powers could be used to change the devolution statutes. In a way, if you like, it is a side step of the civil convention because you do not require legislative consent here because that civil convention is not engaged. Can I draw the committee's attention to clause 7, 6, in which amending and repealing the Northern Ireland Act is specifically exempt from that power to correct deficiencies? Rightly so, in my opinion, and that is explained in the explanatory notes on the basis that the 1998 act reflects the Belfast agreement, so that there are concerns about the peace process and international obligations in play. That is an excellent set of explanations. What it does not explain is why constitutional protection of that kind cannot also be extended to the Scottish settlement and to the Welsh settlement. It seems to me that it should be. Likewise with clause 8, the devolution statutes should be specifically exempted from that power to make regulations complying with international obligations. If you want to do that, it seems to me that you have to do that through legislation. Again, with clause 9, there is no protection for any of the three devolution settlements. Indeed, there is no protection for any of the devolution settlements under clause 8. I think that there is quite a big set of issues that I would invite the committee to address. They have been covered by the joint amendments. We now seem to have a new alliance between the Scottish Government and the Welsh Government for those purposes, and the amendments proposed by those two Governments specifically deal with that matter. It seems to me that the Scottish Government and the Welsh Government are entirely right in bringing forward that set of amendments to protect the devolution statutes. At a slightly wider issue now, I want to take no in-first of your mind, but I will come back to you. I just want to get your thoughts on article 50 and Lord Kerr, who drafted article 50 of the European Union Treaty, stated on Friday that article 50 need not be implemented as a letter from the UK Government only declares a notification of intention to withdraw from the European Union. I just wanted to get your brief thoughts on that, and do you agree with Lord Kerr? I do agree without elaborating on it. I was asked to write a piece for the conversation, not to decline, because so many things are going on at the moment, but it is a notice of an intention to withdraw. Subject to—I think that the point that is usually made is ultimately what article 50 means as a matter for the European Court of Justice, but I would assume that you can withdraw a notification, notwithstanding that you might—how shall I put it—hack a lot of people off if, having put them through all of this, you were then to turn around and say, actually, we've changed our mind. Yes, I think the question is—can you help Brexit? Yes, I think you can, but it's obviously a legal and a political question. As Alan Page has just said, potentially that could, as a legal question, if it was contested, end up at the European Court of Justice. There are disagreements as to whether you can unilaterally withdraw notification. The European Parliament, obviously, in its April resolution, said it should need agreement of the member states and the Parliament itself to do that. The European Commission has said something similar. It has said it not that much noted, I think, press release on the day of the article 50 notification. There is a huge breakdown of trust between the UK and the EU 27, and that damage to that relationship is getting worse almost on a daily basis. I find it very difficult at a political level to envisage the UK withdrawing that notification, staying in whatever was happening here in terms of would you have to have a second EU referendum or would you not. It's very hard to imagine the UK saying it's staying in in the teeth of political statements of opposition from the other EU 27. You'd have to see it as some great getting over this extraordinary hiatus, a great healing of political wounds and of us being welcome back. If the UK was still actually immensely divided in economic crisis, in political crisis, where do we get to this withdrawal of a notification as the government collapsed? Has there been an emergency general election? If we get a sort of second EU referendum where there's a 50.5% vote to remain, I think the EU 27 are going to be wary, and I think there's too much of a presumption that we will simply be welcome back with open arms. Now, as you know, some EU politicians have talked about, well, if the UK does come back, we want to renegotiate the rebate. That doesn't follow, certainly it doesn't follow legally. If we withdraw before March 2019, we still have a veto on budget issues, but it just tells you something about the political mood and about where next. I broadly agree with John Kerr, but the question is both a legal one and not just a matter, obviously, of legal opinion, and that's why it may eventually need to go to the ECJ, but it's primarily on top of that, it's a political one. Thank you, yes. I'm sticking with Dr Hughes because, again, it's picking up on something from your written submission. You make it very clear that the bell, as it stands, is clearly predicated on the assumption that the UK will be leaving the single market and the customs union, that so-called inverted commas, hard Brexit approach, and that in a parallel universe somewhere in which a different position was being taken and a UK Government wanted to stay in the single market, much simpler legislation would be required. It wouldn't be anything like the bill that we're looking at at the moment. Am I right in reading your paper that you seem to be going farther and saying that if the bill passes a change of position by the UK Government to stay in the single market, it would then be very problematic? Would it be possible? In terms of what you first said, my view is certainly that it could be much simpler. That old phrase, beloved of economists, is something necessary and sufficient. If you were going down a Norway-European economic area route, a lot of this might not be necessary, but your crunch question would nonetheless be sufficient to allow that. I asked my neighbour here, Professor Alan Page, this question two weeks ago and put his quote into the comment piece I wrote and referenced it in my written evidence. It's certainly defer to him on that, as to whether some of these concepts have retained EU law would be the same in that case. I mean, you obviously had Keir Starmer raise that in Westminster a couple of days ago in terms of the withdrawal bill in his view not being appropriate for a transition that involved the extension of the EU cycle because of the ECJ, but obviously in the after-case that is anyway slightly different. Just to suggest a scenario, the bill trundles on in the new year, a few concessions are made to the devolved government sufficient to win legislative consent, bad news starts leaking out of the negotiations, a series of companies start to say, we'll move out, we won't invest, jobs are being lost, three or four MPs are forced to resign on grounds of sexual harassment and thumping. Great majorities are one in those constituencies for explicitly pro-single market or anti-Brexit candidates and another dozen Tory backbenchers join the rebels and start saying we should stay in the single market. In those circumstances, you could have a clear unity between a House of Commons voter, a House of Lords voter, a Welsh Assembly voter and a Scottish Parliament voter saying Britain should apply to join the EEA. If that was the case and this bill has been passed, do we then have an equally massive job of correcting a set of legislative mistakes that have been made that aren't compatible with that new position? I think that Alan probably is better placed on so much of that than me. I personally think that the so-called soft Brexit, and I think that the sort of scenario that you are outlining could happen, is very hard to see it as sustainable. How long is the UK going to stay potentially in the single market and the customs union without any say in those rules before there are trade deals made and regulatory rules made that we have no democratic say over at all? I think that a dash to the EEA at some point is, depending on how this unfolds, whether it's early next year or perhaps if Westminster rejected the deal next autumn, if there is a deal, a dash to the EEA might turn out to be a short of halting Brexit. Maybe the two options you are facing, and so your question on the withdrawal bill, yes, it's certainly pertinent. Only rational things were to happen would be living a very different life at the moment. You're just giving us your dream and you're talking about rational. Does Professor Page want to add anything about how realistic a change of policy would be even if it was desired, even if it became possible? Do we have huge problems in implementing a change of policy if it was to happen, if this bill has passed? Yes. I think on pursuing your dream, the bill might be passed but never brought into force, but leaving that to one side. The point that I made in response to the question that I was asked by Kirsty was that in those circumstances retained EU law would take on a different meaning. It would not be retained in the sense retained as used in the current bill, that is to say, a body of law whose retention amendment revision repeal is a matter ultimately for the UK Parliament. It would be a body of law over which EU institutions, the EU legal system, would have a much greater degree of say than is envisaged under this bill. Does it become a new description of the status quo? It would become a new description of the status quo, but one that is fundamentally at odds with the idea of retained EU law as used in the current bill. You would be reverting to the status quo, as at the moment. I think that that would then involve rethinking the notion of retained EU law and the applicability or appropriateness of this particular piece of legislation. I think that it is right to assume that this bill was drafted, perhaps not physically drafted, but sketched ahead of the UK general election. If one looks at the bill and compares the bill with the second white paper that the UK Government published, on what we would need to do by way of legislation, which, if you recall, had that very short chapter four paragraphs on relationships with the devolved administrations. If you compare the bill with what is said in the white paper, which I think was published in April, the bill is very much what you would expect from the white paper. However, of course, we have had the UK general election in between, and we should say that perhaps the political assumptions on what the House of Commons might look like have been somewhat altered. I think that that is the first point, the political point. The second point that I would like to make is that something that really does not fit with the bill is the idea of a transition arrangement. Clause 1 talks about repeal of the 1972 act. Once you have repeal of the 1972 act, what is the basis for a transitional agreement of two years? I am not surprised to see it being mentioned that, if we were to go down the route of a transitional agreement, we would need fresh legislation. I think that the two points fit together, because my sense is that, certainly reading the legislating white paper ahead of the UK general election, the idea of a transition arrangement was not featuring very highly in UK Government thinking. My view was the same, but there is oral evidence, given by Stephen Laws, who is former First Parliamentary Council, to evidence given by him to exiting the European Union Committee of the House of Commons, where his answer to that question is that it is to be found in Clause 17. You could leave on 29 March, but, nevertheless, make transitory provisions that would accommodate the transitional or implementation agreement in the exercise of the powers of Clause 17. I have not read that closely yet, but there is an answer out there. In my view, that is an extraordinarily bold reading of Clause 17, which is essentially the clause that deals with transitional arrangements, consequential arrangements, and the usual kind of clause that one sees in so many statutes. Obviously, a figure of Sir Stephen Laws' authority must be taken extremely seriously, but I have to say that that is a very bold reading of Clause 17. We have yet to see precisely what the EU 27 guidelines will be on transition, but I think that Michel Barnier and others have already been clear enough in the public domain that they only see a transition that is a full extension of the AKI. The European Parliament has repeated that, of course, under all the appropriate supervisory and judicial mechanisms. I cannot see how that would fit with the withdrawal bill, but it is also very interesting that the message in Brussels is that they would expect that full extension of the AKI, but with the UK out-of-institutional decision-making structures. They are not talking about an extension of membership. I do not know, and I have asked and not yet got an answer in Brussels as to how they envisage that happening. I do not think that we know yet. Thank you very much. I think that you helped us this morning to flesh out some very important wider constitutional matters that go beyond the simple clause 11. That was the purpose of today, so it has been very helpful in that regard. It is complex, that is for sure, but it is also fascinating. Thank you very much for coming along and giving evidence to us today. I now close this session of the committee.