 Good morning and welcome to the 19th meeting of the European and External Relations Committee in 2015 and our last meeting of 2015. Could I remind everyone to switch their mobile phones or digital devices on to airplane mode? Thank you very much. We are going straight into agenda item 1, which is continuation of our inquiry on EU reform and the EU referendum and its implications for Scotland. This morning we have a round table with us. We have a number of eminent people who are hopefully going to give us some detailed analysis of their thoughts and feelings of the implications for Scotland. I would like to thank you all for coming along this morning and thank you for any written or other evidence that you have provided for us. We have very gratefully received that. I am delighted to have with us this morning our adviser Shona. Professor Catherine Bernard is with us on the video conference. We have to be a bit mindful that we have someone on video conference. What we will do first is to go around the room and people can introduce themselves. A very short description of what your background is. I am Christina McKelvie. I am the MSP for Hamilton Larkhall and Stonehouse and the convener of the committee. Good morning. I am the vice-communal. My name is Hans LeMallic and I represent the Glasgow regional list. My name is Adam Lassofsky. I am a professor of European Union Law at the University of Westminster in London. I am Willie Coffey, MSP Cymru, Cymarach and Irvine Valley. David Edward, Edinburgh University and former judge of the European Court. Roderick Campbell, MSP for North East 5. Michael Clancy, director of the Law Reform and Law Society of Scotland. Adam Ingram, MSP for Carrick, Cymru and Doon Valley. Tobias Lough, I am a lecturer in the law at the University of Edinburgh. Anne McTaggart, MSP for Glasgow. I am Cormac Alley, also of the University of Edinburgh. Jamie McGrigor, MSP Islands and Islands. Catherine, do you want to introduce yourself on videoconference? Yes, just to say. Catherine Barnard, Trinity College of Cambridge. Thank you for accommodating me in this way. We are delighted to have you. We always attempt to have as many voices as we can. If those are either in the room or out with the room, we are delighted to have you here. We will just be mindful to come back to you when we go to the round table. I am going to open with a bit of a general question. The way we try to operate a round table is if you channel things through me, if you give me an order, a wave or whatever and let me know if you want. Catherine, if you can give us a wee wave and let us know if there is a particular topic that you want to get in on, then we will attempt to make sure that everybody gets to say their peace this morning because we are very interested to hear it. We have an opening question straight away from Jamie McGeiger. Thank you, convener. On the question of reform and renegotiation, this morning I heard Herman von Rompuy on the radio saying that he was optimistic in some ways but that if the treaties needed changing his words where we have a problem, witnesses would like to comment on that. I definitely think that we do have a problem. It is going to be a time consuming, be quite difficult to persuade the other 27 member states to go ahead with the treaty revision. As we know, I think that the EU has been suffering for a while from treaty revision fatigue and such a treaty change would potentially require, for instance, a referendum in Ireland or other countries. It will be time consuming. We have to also bear in mind that we have elections coming in France and in Germany. That will not be a good idea to have around that time a treaty revision. I would say that to have a treaty change within the timescale envisaged by Mr Cameron is impossible. Catherine, do you want to come in there? I also heard Mr Van Rompuy this morning on the Today programme. I think that maybe what he was alluding to is the fact that David Cameron has asked that there be a four-year moratorium on in-work benefits. That probably would require a treaty amendment because it would be restricting the free movement rights of those migrating under article 45 of the treaty. The requirement to be resident for four years in a country prior to claiming in-work benefits, so things like tax credits, for example, would be indirectly discriminatory on the grounds of nationality. Although indirect discrimination can be objectively justified, you have to have some connection with the state to which you have gone to and from which you would like to claim some benefits, most people agree that the four-year requirement is disproportionate. That's why there would need to be a treaty amendment to make it clear that such discrimination is permitted by the treaty, which is the highest legal norm. Given a treaty amendment would require unanimous agreement of all the member states, it's very unlikely that a Polish government or a Romanian government would agree to such a reform anyway. That's the number of the problem. Dr Locke, did you want to come in there? Just to add that I agree that a treaty amendment before 2017 is unrealistic in terms of timing, but of course David Cameron in his letter said he wanted binding assurances, something of that kind. We could envisage an agreement between the member states that they will agree to treaty revision or an amendment of that kind in the future. I think maybe a precedent is the Irish protocol that was given to the Irish after it rejected the Lisbon treaty for the first time and there are some assurances that were given to the Irish people. It then passed and then that was weaved into the treaties a couple of years later. Adam Ingram? I wonder what possibility there was in terms of working around this particular issue. If the UK Government decided to reform in-work benefits in the UK so that this notion doesn't become discriminatory, is that a possibility? Is that something that could be achievable? Catherine, have you got some opinion on that? I had wondered when the controversial reforms of tax credits were being proposed that this might actually have been done partly for other political reasons, but it might have had the ancillary benefit from the UK Government's perspective of addressing the problem that we have come up against. Now, since the tax credit reforms were abandoned, therefore we're still back in the same situation. Part of the problem that the United Kingdom finds itself in is that unlike some member states, our system is based on presence in the country and need, financial needs, so whether your income is set at a certain level. For other systems, their system is much more based on accretion of contributions and therefore it's much more closely tied with length of residence, but for us because we just look at income levels and you get the benefit if you're on a particular income level, therefore that's what creates the risk of discrimination because if you say British nationals get it when their income level is at x but migrants don't get it for four years, then the risk is at a minimum indirect discrimination and even possibly direct discrimination and in the case of direct discrimination there's not even the possibility of objectively justifying what's going on, so part of the problem goes to the very nature of our benefit system. Dr McAmill, you're nodding away there, I'm just wondering if you could share your thoughts. I mean the main principle of me, you laws, I understand it is discrimination, I mean you can within parameters do what you like provided you don't discriminate on grounds of nationality, so if you wanted to lure for your own citizens in conjunction with EU citizens, then that would generally be acceptable under you. I have a difficult question as to what extent the UK Prime Minister would want to change the rules of engagement, as it were, in terms of how he's seeking to achieve the objective that he's reaching out for here, but it seems very unlikely from the reaction that we've had from other European countries that this is something that they'd be willing to concede, really be up to the UK to move towards more a contributory system, as Professor Barnard said, for any prospect of movement from other European countries. Would you agree with that? Yeah, I mean that I'm not kind of an expert on the politics of it, so I wouldn't like to particularly comment on that. Michael, I wonder if the Law Society has done any analysis on or scenario planning on some of this? Not until two minutes ago. But as I was thinking there, if one were to try to equalise the in-work benefits or social housing or things like that in the UK with those in EU member states, that would present enormous domestic difficulties, I suspect. Certainly, it would not be achievable as we stand today at any time before 2017. Legislation would be required and we all know the process of legislation and the policy formulation, the consultation getting that legislation through Parliament. I don't think that equiperation would be a starter. Well, we're obviously getting devolution of some welfare powers now and that adds another layer of complication almost to all of this. Where would you see the tensions between UK law and Scots law and how this place legislates for social security and whether an LCM would be needed in that process? Well, of course, the Scotland bill that is passing through the House of Lords at the moment still has to pass through the House of Lords and any amendments there be approved by the House of Lords. I think that one is looking at that bill if it achieves what everyone expects royal consent before the end of March. Then we've got the Scottish elections in May and then implementation of the Scotland Act 2016 would then take, well, you tell me how long it would take for implementing regulations to be put in place by the UK Parliament, which allows the Scottish Parliament to actually get the grips with dealing with this. I think that it would take some time and, again, 2017 is on the horizon before you know it. Even if there were to be a distinct Scottish welfare system within the terms of the benefits that are being devolved, that of itself would probably not be in operation until 2018-19. Professor Lazaus, do you want to come in there? I think that we need to remember the letter that the Prime Minister sent to Donald Tusk. It's not only about the in-work benefits. There's more to it. There's the opt-out from the ever closer union, the guarantees for the city. That kind of stuff would require a protocol to the treaties. Going back to the point about the intergovernmental, the potential revision of the treaties in the governmental conference, I think that there are two options here. The first one that the government should push for is a small treaty revision where you have an intergovernmental conference with a fixed mandate. That's the only thing that the intergovernmental conference would deal with. That would be a special protocol for the United Kingdom. I think that that's doable, although I fully agree with the other speakers that the timescale is out of question. We will not get it in 2017. The other much worse option, in my opinion, in far less realistic, is a fully-fletched big-scale treaty revision. Then we have a risk that every single member state will start to throw in something to the mix. Then we have a very long painful intergovernmental conference with a very long summit ending at five in the morning and everyone being half-dead. Two years of ratification dramas, constitutional challenges in several member states, et cetera. To wrap it up, I think that the only option if we go for a treaty revision is a small treaty revision, and the Prime Minister will have to persuade other member states that that's going to be a very quick intergovernmental conference that will open in the morning close in the afternoon so that there's a ready deal when they sit down to do it. Ever the optimist. Jamie, you wanted to come back on your point. I have a very small point, but just that the move to ever closer union is that considered to be a move towards a European welfare system, which might be seen as a way to as one solution towards the migration problem. Ah, Professor Sir David. Well, two points, I think. First of all, on the question of treaty revision, if you're merely talking about a treaty revision which says nothing in the treaties commits the United Kingdom to such and such, there is the precedent of what's called the Danish compromise. The run-up to the end of the Maastricht treaty when the heads of state and government met in Edinburgh at the end of 1972, a Danish referendum had rejected the Maastricht treaty, but it was too late to amend the treaty as it then stood. At the Edinburgh summit, there was an agreement called the Edinburgh agreement, which was a decision of the heads of state and government, which, and it began, heads of state and government meeting within the European Council concerning certain problems raised by Denmark on the treaty have agreed on the following decision. And then it said, as regards citizenship, Denmark is not committed to this, and that was registered with the United Nations as an international agreement. It was later incorporated into the Lisbon treaty as protocol number 22 quotes on the position of Denmark. So there is a route which you could use, but I don't think for this benefits issue, but it could be used to say, for example, that nothing in the treaty commits a member state to any greater measure of European political integration than they consent to, some words of that sort. As regards Mr McGregor's question, I think that we should distinguish ever closer union and the migration problem. The ever closer union issue concerns a theory which has been there from the very beginning that there was some form of ratchet effect, that the process of European integration would inevitably go forward and that that's what ever closer union meant. The French word is anglenage in English, ratchet effect, and I think what Mr Cameron is seeking there is an assurance that that is not inevitable for us, and I think that that could be done by a Danish style compromise. I think that realistically the treaty revision question, as Tobias has said, is going to be some sort of political declaration with a view to the next major revision whenever it is that this will somehow be part and parcel of the next major revision because of all the reasons the Pandora's box of opening up a treaty revision. The ever closer union, as Professor Edwards has pointed out, it is in the eye of the beholder what exactly it means if you look at it in the treaties. It's kind of like a rhetorical statement that you see in many preambler entrances to big things. I think that the safest thing that we can say about it is that it is an illusion to political integration as opposed to purely economic or a pure free trade area that the aspiration to some level of political integration, I think. That's probably the most concrete thing that we can read into it. Beyond that it's very difficult to say what precisely its implications are. In terms of the migration question or even the social welfare, the European welfare system, it has never, to my knowledge, prevented a state from opting out of parts of integration and it has never served to trump any opt-outs or guarantees that have been secured by countries. It doesn't operate in that kind of hardware, at least it hasn't to date. Catherine, do you want to come back in there? I just want to say, on the ever closer union point, what's not been said so far is that it does say ever closer union among the peoples of Europe, not among the states of Europe. And so a little more literal reading would suggest that there's some sort of communal objective of working together, but not ever deeper integration between the states. It has been cited on a number of occasions by the Court of Justice to buttress arguments most recently in the case where the Court of Justice rejected the EU's accession to the European Convention on Human Rights. But most commentators, I think, take the view that it's not a deal breaker in the sense of it's not such a key principle of EU law that it's impossible to derogate from. Nondiscrimination, by contrast, is a key principle of EU law from which no derogation is easily possible, apart from the ones already provided in the treaty. And so for that reason, I think a deal on ever closer union possibly through some form of post dated check which says that at the next treaty amendment there will be some special deal for the United Kingdom on that or that ever closer union doesn't mean ever deeper integration of it, something of that sort. That's quite possible. I don't think that's the real stumbling block in the negotiations. Michael Clancy, do you want to come back then, Adam? Yes, convener. Thanks. It's very interesting to see this discussion developed as to what Mr Cameron means in his letter and the page five in the third last paragraph. I hope that this letter can provide a clear basis for reaching an agreement that would, of course, need to be legally binding and irreversible and where necessary have force in the treaties. That takes it to a certain level of expectation on the part of the Prime Minister. I just get the sense that he's going to be disappointed. As Sir David has said, you can have some kind of agreement that is then recognised, but if you're talking about something that is legally binding and irreversible, that, I don't think, sounds a little bit more serious than yes, this is a post-it note to do something in the later treaty. I'd like to switch tack, if that's possible, convener, when we're talking about treaty revisions. I'd like to ask about a withdrawal treaty or agreement. How easy is that going to be accomplished? What's involved in taking oneself out of the European Union? Would that withdrawal treaty or agreement have to be concluded just with EC officials or will it have to be agreed with other member states as well? To begin with, article 50 of the treaty on the European Union only says that such an agreement will be between the European Union and a departing country. Now, if we put together a list of dossiers that should be covered in the withdrawal agreement, that is terms of withdrawal and future relations between the withdrawing country and the European Union, we see that a lot of the dossiers will cover matters where the competences are shared between the EU and the member states. My position is that that would have to be a mixed agreement, so with the European Union and its member states on the one side and a departing country on the other. Now, going back to article 50, it says that the withdrawal agreement deals with conditions of withdrawal and takes account of future relations between the EU and the departing country. I think that there are two ways to read this provision, one that withdrawal agreement will provide some sort of bridging agreement until a proper fully fleshed association agreement is concluded and the other option which I very much prefer is that the withdrawal agreement should provide the terms of withdrawal and very comprehensive regime for future relations. The first option would certainly lead to a great deal of legal uncertainty, and I think that that is unacceptable. If we go for the second option, terms of withdrawal and fully fleshed future regime, I think that we are talking about a number of years. From the procedural point of view, first EU will have to have a negotiation mandate, guidelines will come from the European Council, the question is how detailed they will be, so to what extent the European Commission and the Council will be involved in designing the negotiation mandate for the European Union, then a little bit like accession negotiations, this will have to be divided into different chapters where those dossiers will be separately negotiated. If it is a mixed agreement, it will have to be concluded by there will be two decisions of the Council on the EU side. Legality of both can be challenged at the Court of Justice under article 263, we have to take that into account, and then a very long ratification process, which takes usually two to three years, if we look at the most recent association agreements with Georgia, with Ukraine and with Moldova. It is going to be a very long and painful process, that is my educated or uneducated guess. Professor Sildewid, I remember you having something to say during the discussions in the Scottish referendum on article 50 in Greenland and the way that process went, and I wonder if you could share some of that wisdom with us today. Article 50 says that the negotiations will complete within two years unless there is agreement to continue the negotiations. So there is a rather odd situation that you could have negotiations going on, let's assume that they were going rather badly for the UK, and the UK could simply say, we are not prepared to agree to any further continuation, that's it. Then you have a very bizarre situation in which the withdrawal takes place, and because two years is up, but you haven't fully determined the future relationship, and that's something for which article 50 does not cope. I think there's another problem that the more enthusiastic Brexiteers say, well, we wouldn't use article 50 at all, we would simply repeal the 1972 act, and with one bound we would be free. I've had that repeatedly from John Redwood, on the other hand a minister of state in the House of Lords has expressly said that the UK Government would use article 50, so that's an uncertainty. I can't remember what the other aspect was you were wanting to—Oh, Greenland. Greenland. I think what we do know about all previous negotiations is that they take a long time, but whether two years was what was put into the Lisbon Treaty, and I suppose with good will it could be concluded, but then you've got to assume that the other member states would be prepared to go some way towards accommodating a future British relationship, which I suspect they might not if we say, right, we want to withdraw, and remember that article 50 provides no provision for having second thoughts. Once you've given notice, that's it, you're on the train, and if Britain has said to the others, right, we want to leave, then I'm not by any means certain that the others would be enthusiastic about making generous concessions to the UK, so you could have a deadlock. I believe that some member states are saying they'll be flexible but not at all costs, so that's interesting phrase to use. Dr Locke, you wanted to come in at that point. I've got a few minor points to make. First of all, in terms of procedure or how difficult it would be politically to agree on something, one dark horse in the equation is probably the European Parliament, which has to agree to the withdrawal agreement, and it is much more difficult to predict where the European Parliament is going to go. It tends to be more integrationist than member states' Governments that are represented in the council. In the council, we only need a qualified majority, but if we have a mixed agreement, which I think Professor Lazowski has convincingly argued for, then all member states have to agree to it. The qualified majority that would make the agreement a lot easier normally will in practice become unanimity, so everybody will have to agree. If there is an acrimonious divorce, so after two years we say we can't agree, sort this, we go. Then of course for the UK the big question will be what relationship will it have not only with the EU but with the world, because we'd probably be restricted to WTO rules when it comes to trade, which means most favoured nation, so we get the best customs tariff that the EU offers, but that's about it, and we have to pay customs duties. Of course, there is dispute settlement under the WTO, but it's not as effective as the one under the EU, so you don't have, as an individual, you can't go to courts and claim WTO rights or anything like that, and of course you mustn't forget that the withdrawal process not only requires negotiations between the EU and the withdrawing country and all the member states, but also there are third countries that have relations with the EU, trade relations, they have agreements with the EU and its member states, which would need to be in the interest of the UK renegotiated as bilateral agreements, so there's a host of other things that need to be negotiated as well. Dr McCamilley, do you want to come in then? Briefly, to answer the original question, you can obviously withdraw without renegotiating your future relationship. Article 50 is clear on that, so if the UK, it depends on the politics of it, but if the UK wanted to withdraw, it could do and put on the back burner what precise relationship they would wish to do that. It's not prudent, and it's certainly politically not prudent to do so, but it's certainly possible. Of course there's the EU side, but then there's the domestic side after withdrawal, which would require a lot of legislative change in terms of DEU-ifying British law, which is embedded in many, many statutory provisions. I would envisage that that would probably take place under our longer term. I think there'd be a parallel implementation of EU law, notwithstanding the fact that the UK wasn't legally required to do it. It would probably comply with EU law for a considerable period before it started taking that. I don't think that amending the European Communities Act would do. We'd need a new relations with the EU act, stipulating the details of what the future relationship would be. Quite a number of things if I'm allowed to start with the European Communities Act. I fully agree. Now the point is also that in order to DEU the legal orders of the United Kingdom, we would need to do a proper screening of everything to see where actually directives were implemented. It will be easier with framework decisions, but it will be quite complicated actually with regulations. In textbooks we see that yes, regulations are directly applicable, member states cannot copy them, but what member states frequently have to do is to adopt domestic provisions, which fill in the gaps left by the EU legislator, or make the regulations operational. Now if we repeal European Communities Act and we stop regulations from being directly applicable, we have a lot of obsolete legislation, which makes very little sense. A good example of the legislation on the European Company is a combination of a regulation, directive and domestic law. The regulation on compensation for flight delays and cancellations. Yes, you have a self-contained regime in the regulation, but you have domestic provisions, which fill the gaps and so on and so forth. We would have to do what actually candidate countries have to do, which is to screen the entire legislation to see where exactly EU law is. In many areas of law, we would need to recreate the legislation, because if we repeal or get rid of all directives, for instance in the employment law area, then we have huge gaps in the legislation. That will take years and will require an army of people, not to mention that it is going to be quite expensive. The second point, if I am allowed to make, is about the two years deadline in article 50. I think that that is my interpretation of article 50, I may be wrong of course. It is there to discipline the member states and the withdrawing country. It is in the interests of both sides and all sides possible to negotiate a proper withdrawal agreement, because a unilateral withdrawal will be a legal economic calamity. I absolutely agree with Dr Locke that WTO rules are not enough, not to mention that some agreements falling under the WTO umbrella were concluded by the member states and the EU together, so that will make it very complicated. Also with external relations, I absolutely agree with what Dr Locke said. The United Kingdom will lose all agreements that the European Union has with third countries, and that will not be subject to withdrawal negotiations, because those are the negotiations with those third countries. We are losing 40 plus free trade agreements, for example. The procedural question, which is, I think, quite tricky here, is when to renegotiate them. Do we do that when we leave the European Union, and that means that we have a huge gap in legal terms after the withdrawal, or do we start renegotiating when we are negotiating withdrawal, but then there is no guarantee that we will actually withdraw at the end of the day? I understand that article 50 itself, in literal interpretation of it, says that once you give notice, you are basically going with the pace of the puffin towards the withdrawal, but I think that in political terms it can be stopped. You may imagine change of government, and the new government is saying, oh sorry, we made a mistake, we will keep it as it is, particularly apologetic. And then the third countries will probably say, well why are you then trying to negotiate with us now if there is no guarantee that you will actually withdraw from the European Union? And we have a lot to lose because we need to remember that those agreements were negotiated by the European Union after all a huge trade bloc in the wealth, so negotiating position is completely different than a country that left the European Union all together. Now we are a bit confused on where we are with article 50 or John Redwood approach as to whether or not there is a middle way. You were talking about the member state just choosing to withdraw and not negotiating. Is that in any way possible? Does anyone also think that a withdrawal treaty would be anything other than a mixed agreement? Are there three options or are there only two options here? My comment is just to suggest that article 50 does allow you to effect withdrawal without renegotiation because of the two-year time period, so you can withdraw. It is not a case of saying that you just walk away without any problems. The John Redwood suggestion, obviously under the domestic constitutional position Parliament could withdraw the European Communities Act if it wanted to. It would not necessarily effect withdrawal in the way that I think many people would wish. It would also leave the United Kingdom exposed to a whole host of actions against it under international law because it owes international obligations to EU member states, in some cases even to the EU. All of those could be taken—it is a little bit like the human rights position—the international position would not be affected by a domestic measure withdrawing the European Communities Act. The UK would still be exposed to all the international obligations, including the EU treaties themselves. Although it would be more difficult for litigants in Britain to take those actions before domestic courts because they would be deprived of that right with the repeal of the European Communities Act. Professor Barnard, do you want to give us some of your thoughts on that? I wanted to say something about the practicalities of the EU-fying UK law. There are some very practical points. First of all, the EU is and will remain our principal trading partner because of the geographic proximity of the EU. Therefore, any of our goods which have to be sold into the EU, any of our services which are going to be provided into the EU will have to comply with the EU technical standards. Therefore, simply repealing in one-fail swoop, all of EU rules would promptly make it extremely difficult for our traders to trade. They will have to comply with those rules and it would be sensible to keep those rules in some form on the statute book so traders know with what they're having to comply. In other areas which are distinctly EU rules, for example social policy, take the case of equality legislation. Although we've long had equality legislation in the United Kingdom, most notably in the field of sex and race discrimination and in respect of equal pay, that predated our membership of the EU. The EU directives of 2000 extended the protection to sexual orientation, disability, age, religion and belief. There is a question, does the UK really want to go back in time and repeal the Equality Act 2010 to deny protection to those particular groups? Now, okay, it would be possible to remove the protection and then have a British version of the Equality Act, but the time and energy involved in disentangling EU provisions, a lot of which have actually been inspired by elements of British law anyway, would seem to be an extraordinary waste of time and energy for everyone involved. But that does raise quite a nice legal question. If we were to leave and we still kept the Equality Act 2010 and other pieces of legislation on our statute book, even though we're no longer in the EU, to what extent would we be bound by the decisions of the European Court of Justice when interpreting the directives upon which legislation was first based? At the moment, those decisions have presidential value, the British courts are obliged to follow those decisions. I think in fact what will happen is that they'll end up having persuasive value rather than presidential value and there'll certainly be a lot of attention paid to what the Court of Justice is doing. And certainly, my experience working in EEA countries, particularly Norway, although they're in a slightly different position yet again, what is striking is that in Norwegian law schools, they don't really teach the EEA agreement as such, they teach EU law as if it was their own law and they look at what the Court of Justice says much more than perhaps what the Eftercourt might be saying, which is the relevant court for the EEA agreement. And so although strictly speaking, if we leave, we will be no longer obliged to look at what the EU is doing, in practice I think we'll be very much still bound at least at the legal practical level. Michael Clancy? Well of course there are two sides to this coin, article 50 paragraph 3 talks off that the treaties shall cease to apply to the state in question. So that's one thing to bear in mind and that if you let the two years run, then you're in a position where you don't really need to repeal anything because the treaties don't apply any more. But I can see why John Redwood MP might be a desirous of having an appeal of the 1972 act because that's totemic, that's part of the political vision which he and others who want the UK out of the EU have in mind. So I was really interested in what Professor Barnard had to say there about keeping the corpus of EU law vibrant for the period post exit. And it reminded me of an interesting book which I read once upon a time called Responsible Government in the Dominions and you can tell by its title how long ago it was that I read it. But one of the interesting features of post colonial law was that the acts of parliament giving independence to former colonies invariably had something which would say along the lines of the law of England or the law of Great Britain at a certain date continued to apply in that colony. You could see that that would create the basic law on which then future divergence could build. And one could see very easily that this could be a mechanism which those who want not to have to cram a survey of EU law in UK law into a concertinered time frame which would make it just a skim. But it would be very attractive to say that the law relating to equalities, the law relating to intellectual property or indeed the existing directives which have been implemented and the existing regulations which apply will continue to apply until such time as we get round to dealing with them in a more structured and thoughtful way. So that's one of my reflections on that. Okay, Tobias Lock. Well I think coming back to Mr Campbell's question I think you always need to distinguish the domestic law position and the EU law position. I mean they're different and they're connected but they're different. So if we simply repeal the ECA in 1972 that wouldn't of course change anything about the membership of the EU as such. So the UK would still need to hand in its notice and at least wait for two years and then membership would end. Would it be possible to conclude a withdrawal agreement as a non-mixed agreement? Well it depends on what is included in the withdrawal agreement. If you concluded a withdrawal agreement that was fairly nude in terms of content which basically says well from the say 1st of January 2019 the UK shall cease to be a member of the European Union. Full stop happy to agree that that's fine that can be agreed under the procedure laid down in article 50 so it's not a mixed agreement. Between the EU and the United Kingdom you need approval of the European Parliament and qualified majority vote in the council. So future relations will probably require a mixed agreement. If you look at free trade agreements between the EU and third countries like with Korea they've all been agreed as mixed agreements for various reasons often political because the member states want to have their say in these and I think the member states will want to have a say in the future relations with the EU. A problem with simply repealing the European Communities Act is of course also that we've got article 24 if I'm not mistaken which gives the legal basis for implementing a whole lot of EU secondary legislation by way of statutory instrument. If you repeal that arguably the hook in primary legislation for these implementing statutory instruments would be gone and they would no longer be applicable to tomorrow. Now that would be a super effective way of purging UK law of EU law influence but you would be leaving a lot on lot of legal gaps in the law. I mean think about environmental law an awful lot of environmental law is influenced by EU law environmental impact assessments all of these things and also as Professor Barnett has mentioned the equality act is a prime example which could be where a huge political discussion would ensue if that were to be up for repeal for instance I mean if you think of the parallel with the human rights act at the moment it's not that easy and if you I did a control F search of the equality act for European and directives and there are 22 hits so there are 10 for directives and 12 for Europeans so even if you just wanted to make it look more British in that sense you'd still have to change it so it's a huge job in other words. First of all what we haven't mentioned yet is that departure from the European Union would also lead to departure from the European economic area unless the United Kingdom becomes an after country because membership in the EEA is open only to EU member states where it's compulsory and it's optional for the after country so we would have to negotiate that too. Now when it comes to mixed agreement or not that would of course depend on the contents as Professor Barnett mentioned businesses in the UK of course will still want to export good services to to the European Union now that means that we would like to keep chunk of the internal market we would like to participate in the internal market or common market that was mentioned back in the 70s when the UK became a member state now the European Union pursues a policy more for more vis-à-vis for instance E&P countries we have example of the European economic area we have example of Switzerland the rule of thumb is the more integrated you want to be the more you have to comply with when it comes to the European economic area you have lists of EU legislation that Norway Iceland Leichtenstein have to apply with Switzerland is with fewer agreements that Switzerland has is the same story now when it comes to the european economic area is basically a very simple dynamic system norway iceland leichtenstein have to accept whatever EU adopts in the areas covered by the EEA without participation in the decision making process now what i would then expect from withdrawal agreement would be lists of legislation that UK would be bound by after the after the exit to guarantee access to the internal market even if we look at the association agreements with Ukraine Georgia and Moldova they have lists of our key they have to comply with within five to ten years time plus in case of Georgia for instance we're talking about 300 legal acts over 300 legal acts that they have to comply with so i would expect something like this to also be in the withdrawal agreement and thus there would have to be i think a mixed a mixed agreement then if it comes to worse and for instance there's a political decision to make it an EU UK agreement that could be challenged under article 2 1 8 paragraph 11 of the treaty in european unions that court would be asked for an opinion if actually the EU can conclude such an agreement and Dr Locke mentioned the european parliament that will be a good candidate to submit such a request i believe now going back also to the point of interpretation now here there are two sides of the story now if we look at the european economic area agreement for instance the courts have an obligation to interpret in the light of jurisprudence of the court of european union the jurisprudence predating the EEA but in practice as Professor Bernard mentioned they actually do it anyhow they take into account jurisprudence of the of the court of justice after court has a role to play here but there's one more thing that i would like to draw the committee's attention to now whether it's a mixed agreement or not it will be concluded by the european union by means of a decision on well first on signing then on on conclusion of an agreement if we look at most recent practice with trade agreements but especially with the association agreements with georgia uh ukraine and moldiva those decisions contain a trap they contain provisions saying that these agreements cannot produce direct effect in the member states in national courts so that would mean that british businesses for instance who would be willing to challenge legality of certain measures based for instance based on the association agreement will be trying to invoke the withdrawal association agreement in the future they would be deprived of such right so we have to be very careful during the negotiations and also what happens when the EU signs with the agreement mind you those are unilateral EU decisions so this is not subject to to negotiations unless we have a guarantee in the withdrawal agreement that it can produce direct effect and measures based based on it thank you thank you for that professor so david do things on article 50 it is perfectly true that article 50 says what it says but it's always possible politically to find another solution on the other hand remember that there are two there's an internal aspect to this as well we have to assume that all this has been put in train because the british people have voted to leave and therefore i'm not clear that you could in internal british politics simply say well actually it's not working out the way we thought so we're not going any further with this without another referendum to say hang on a minute we think we were wrong in deciding to leave so there is an internal problem but there's also an external problem in relations with the others because if we put them to this test of going through the article 50 procedure and one year of 18 months 20 one months later we say hang on a minute we don't really like the way this is going i would suspect they will say all right we'll put an end to this but there are no more british opt out we will give you nothing other than the treaty that's what you're opting back into and i think that is a they're pretty fed up i think already with always wanting a special position for britain and i think that that might be the crunch point the other thing about keeping eulaw live remember that the provisions of the treaty imply reciprocity it's all very well for us to say well we will keep this alive but you've got to remember that in a great deal of these relationships the others have got to keep it alive too and as one person said to me if if from another member state if you if we will do everything possible to keep you in but if you wish to go we will give you nothing and i'm not sure that that will not be the attitude of a great many other member states michael clancy thank you um i i i i think so david has put his finger on it as he so often does in terms of article 52 of course the withdrawal agreement has to be made taking account of the framework for the future relationship with the union you know so there's an anticipation that there's going to be a some kind of relationship with the EU and when one considers the the fact that after withdrawal exist the then EU members would have to amend the treaties to take out references to the UK and things like that this is going to be a process which is going to affect the european union other members for some time to come and when i was thinking also about the implications of repeal of the european communities act there would also have to be amendments to the scotland act to the other devolved legislation affecting wales and northern island and that relationship which we have with the EU and particularly with the court which Professor Barnard mentioned about decisions of the ECJ being persuasive in the future of course that would be one feature but as we to borrow a phase in verticom is keep alive EU law as at let's say 31st december 2018 or something like that and it's alive in the sense that a fly from the Jurassic period is alive in aspect you know from in amber whereas the EU will be vibrant and alive and will be continuing to make law so there will be a continuous divergence between any law that we keep and EU law that be continuous divergence between our case law on it and ECJ and other member states case law so these are these are factors which we've got to bear in mind in all of this Dr McCamley just a brief note i mean i was going to make this point in relation to previous comments about the transitional provisions act so all the EU law in force in the UK of this date shall remain in force until such time has to help with that and this is it is a simpler way of dealing with things rather than doing an inventory and repealing all the laws however it's only a bit simpler i think because you would still have to stipulate within those transitional provisions act the role of EU institutions particularly the European court of justice its interpretation of all the law that you have in force in your own country you'd have to make some decision on what impact is going to have but also excuse me other institutions as well such as the European commission which has a role in monitoring and gets involved in all sorts of different regulatory aspects of the implementation application of EU law you'd have to make a decision on what role the commission would have in in the enforcement of that law in the UK notwithstanding the fact that the UK was no longer a part of the EU so it is a bit simpler but i think only just thank you very much convener and good morning to all of you this morning i'm i'm listening to the evidence and i'm i'm beginning to realise how complicated this really is and how serious it is i think i want to emphasise the fact serious how serious this is for us in the UK and of course Scotland as well so notwithstanding the differences of opinion between the scots and other parts of the UK in terms of membership to the European Union i think what is very clear is if we were to opt out it has very severe specifications in terms of legislation in terms of taxation in terms of movement of trade and industry as well as peoples across not only Europe but internationally because the European Union will also have agreements with people out with the European Union which had us tied in as a member of the European Union and if you ever no longer members of that union then we will no longer be tied in with those agreements as well so it's not as straightforward as it seems what i've gathered so far but what i was wondering was whether there was a possibility of trying to accommodate David Cameron by having a temporary measure of an agreement in terms of what he's seeking rather than a full fledged agreement in terms of changing policy as you mentioned briefly about Denmark that they had a temporary agreement if we were offered that would that be an option in terms of negotiations which would possibly allow a full revisit at a later date it would get David Cameron out of a hole the UK government out of a hole as well because it would mean that we are not pushing against the wall which could collapse on us maybe somebody could offer an opinion on that I think the answer is that as professor Barnard and others have said there's no way in which the member states can offer a temporary derogation from the fixed rules of the treaty you cannot opt out of that nor does any grouping of the heads of state and government have the power to deal with the migration issue which of course in some ways is the most acute political issue they can't they can't have a temporary derogation from the application of the rules of the treaty the Danish compromise system does offer a possibility of legally binding because the Danish the Edinburgh agreement was registered as an international agreement with the United Nations so that that can go some distance it can possibly provide a solution to the ever closer union issue perhaps not necessarily all the other aspects that have been grouped together in David Cameron's letter under the heading of sovereignty it could provide a solution it it's certainly possible without treaty change to deal with the competitiveness issue and the economic governance issue which are the other three heads but really the question then becomes a matter of internal politics if that's all he comes back with is that going to be sufficient to win the to have a persuade people to stay in i think this is then it becomes an issue of internal politics so i there are ways around it except on the four year refusal of benefits but there are or there are ways of accommodating David Cameron but whether that is enough in internal politics is entirely another matter okay correct thank you um i i i know that you've given me a very diplomatic response and with some clarity as well and i appreciate that um but i'm looking at it from the point of view that we have put ourselves in the position where there's this very strong possibility that we may not succeed and the danger then is that in in the light of us not succeeding in what we're trying to achieve we may well find ourselves going down a slippery road not wanting to go down so we will be totally um without steering without without brakes going down this this this this mountain and it'll just snowball because everything else that is connected with our membership is going to be attached with that and as we roll down the cell we will unfortunately take ourselves out of a lot of other issues which are maybe not strictly related to the european union but are connected because of a membership of the european union and that's the fear that i have that there's a lot more to lose than just simply coming out of the european union and i'm i'm just hoping against hope that we can you could maybe help us find possible scenarios or solutions teatup and sea to be examples of those other things yep you was like an answer please let me give you an industry answer i suspect that the internal politics are such that whatever comes back out of these four issues is not going to be enough for the real hardline brexit ears and um it is conceivable that david cambrans position as prime minister could be at risk if he doesn't come back with something might i think the difficulty we're all pointing to is there are certain things in his letter he cannot come back with and whether to come back with some kind of formula i mean it's yes he can come back with a danish compromise on ever closer union and so on but is that sexy enough to appeal to the electorate we have achieved an agreement registered with the united nations on the issue of ever closer union has that got electoral traction i'm not sure i think that the one thing that has electoral traction is the one thing he can't get it's lost would you agree with me that the the european union membership has been extremely beneficial to the united kingdom not only just in trade but also in stability in europe and we would risk losing that well can i just quote something which was said at a conference in edinburgh or a speech in edinburgh given by the director of europeal who is a british policeman and when asked are there other organisations like europeal and europeal is seriously involved in the tracking of terrorism and so on and uncovering plots on the dark net and this the director of europeal said the question was put are there other equivalent organisations in other parts of the world and his answer was yes there are there is a southeast asia paul is a south america paul and so on but none of them have the strength we have because we have the institutional infrastructure for our system we have an institutional structure which can give us political direction and he said i don't mind what the politics are as long as i have clear political direction and that is what makes us the strongest organisation of that sort i think with the world in its present state to be part of that is more important than any discussion of migration or ever closer union or anything else but the world is in danger of collapsing in frames and we are faffing about about ever closer union give us a rest oh thanks convener um really can i ask it's a question about the constitutional process um for leaving the EU and the negotiation of the UK settlement um what steps and thank you professor bernard i think you've gave part of the answer to this you gave an example of norway um but what steps would it be necessary to bring to an end the impact of the EU law in scotland and thereafter would the legislation legislative consent of the scotish parliament be required dr mckamlee um can i just make two brief comments to the previous question as well if that's okay i hope i hope that your fear is feeding to the discussions prior to the referendum because we do need a robust public debate about this and i think i would hope that those kinds of fears are clearly heard um just on the point about whether it's something symbolic matters i mean i can offer a small anecdote and you know there's a string beyond my legal expertise but in ireland with our referendums the fact that something was brought back did make a difference because the big allegation was we're voting again in a referendum on the same thing and that really resonated i think with the electorate and when they had something to say no listen we have a guarantee mostly symbolic as it was i think that did have traction and i think you know we shouldn't underestimate that that could have traction with the electorate when there is something tangible to point to that something has been even if it is primarily symbolic as it was generally in the Irish case or it restates the status quo that you know the EU had never a competence in certain areas i wouldn't underestimate that um the impact of the EU in the law um briefly the main provision here is of course the european communities act 1972 it's the portal through which EU law to primarily there are other provisions as well but this is the main catchall provision that would need to be repealed i think that would be the biggest move affecting withdrawal from the EU would be repeal of the european communities act no longer a statute statutes books dcj no longer has any jurisdiction uh discords do not need to make preliminary references um EU law has no binding automatic effect in in in in in british law and so on and so forth the question of whether it requires a legislative consent motion um as you'll see from my analysis i think it probably does uh on several in several different ways um the most obvious one i think it's a complex issue of course we've had these discussions whether the convention governing legislative consent motions include modifying the powers of the parliament not just legislating on powers that are already devolved um i think we're moving to a position where it's generally accepted that modifying the powers either up or down of the parliament would require a motion and on those grounds obviously if you repeal the european communities act one of the biggest restrictions on the parliament is that they cannot legislate in violation of EU law if you remove that incumbrance where EU law is no longer applicable you're massively expanding the powers of the Scottish parliament in the sense that it can legislate on or it can freely legislate on matters of EU law within its competences obviously there are other provisions too i think that trigger an lcm but for me that's probably the most obvious one i'm a reflection of what was discussed before and also to to to points made by mr malik but i think the problem is that what is happening in brusles today it's from the point of view of netted kingdom is a fairly and only political exercise the demands that david cambran has put to the european council and in the letter to the president of european council apart from the um well the article 45 potential revision of article 45 are really of minor in great scheme of things of minor importance and i i do agree with sir david that that probably will not be sexy enough to the to the backbenchers in the commons and to some of the voters and it sort of is reflected in today's cartoon in daily telegraph where there's someone looking what we know who from this space station looking at the world and says well from this distance those con EU concessions look very very tiny and it's true but my problem is there are two things that i would like to draw attention to first of all in the public discourse we are talking about our relations with the union as if we were already out we're not talking about our position as a country in the european union and the second thing the government spent a lot of money time and effort putting the balance of competence review which has been swapped under the carpet perfectly because it said the balance is just fine with few minor bits and pieces so that's that's my worry that the the dramatic picture that you've drawn is it's unnecessary as as david said there are bigger problems to to deal with i'm really interested in this idea about the impact of the sewell convention and and what to and what it actually means and i was i was in the opposition advisers box in the house of lords in 1998 when lord sewell got up to say those immortal words about how we would expect a convention to be established that westminster would not normally legislate with regard to devolved matters in scotland without the consent of the scotish parliament and as you know the scotland bill currently going through parliament has a provision in it clause 2 which seeks to implement what the smith commission was talking about in terms of putting the sewell convention on a statutory footing whatever that means and so what we get in the scotland bill is effectively that quotation from lord sewell being put in statutory form in in this bill i'm not convinced that there's a debate about the the second leg of devolution guidance note 10 devolution guidance note 10 tells us that if i can find the thing it's it's not only legislation which is in the devolved arena which engages the sewell convention but if it also alters the legislative competence of the parliament or the executive competence of scotish ministers and that's the basis on which civil servants and government have proceeded for quite some time going back to any amendments to the scotland act which involve changes to the competence of the parliament or the competence of ministers and that's what's missing from the scotland bill provision is a provision which takes on board the second leg of devolution guidance note 10 the consequence of that is that the convention is not really being legislated for part of the convention is being put into a statute that is true but it's simply the quotation from lord sewell it's not being expressed in any deeper statutory formulation and that means that that time i don't know what the courts would say when they come to interpret this because of course it includes the word not normally legislate so would a situation where the UK had exited the European Union and there was legislation which needed to be dealt with which was abnormal would that then engage the convention would we see litigation on the meaning of normal and the meaning of the new normal and the meaning of abnormal and it's very instructive if you want to go away and look at it the debate which was held in the house of lords last week in first day of committee the exchanges between the advocate general and lord hope of craig head my recommend that everybody read that it's a a masterpiece of debate and we all could learn quite a lot from reading that but that's my concern is that the scotland bill is not fully implementing the sole convention not taking it into a statutory framework and even so because the competence of the parliament would be affected and the competence of ministers would be affected and those other areas which you mark out in your paper dr mckamlee these are these are big issues for how if this would affect the Scottish parliament and scots law in the future yeah willy coffee i was just hoping to briefly drag people back from the exit door back to the the franchise itself we didn't get a chance to open with that we rushed to the exit door kind of probably too quick how do you guests feel that there's a likelihood of a challenge to to this to the franchise because as we know certain citizens are not being permitted to vote in this referendum and curiously citizens from Malta Cyprus in Ireland can but UK citizens that have also moved away and exercised their right under free movement within European Union principles for 15 years or more can't vote either so do you think that that's likely to be the subject of a challenge and do you think it might be successfully challenged we've got a very interesting paper from Edwin O'Neill who who explores this in some detail and we have a very pertinent example in this parliament we have a French national who made Scotland his home and is now an elected member of this parliament who won't have a vote in an EU referendum so we have a very clear example of a legislator in this place not having the ability to have a comment on the legislation of of the UK so thoughts feelings to bias lock yeah maybe i think we need to distinguish the two groups of people first of all so there are British citizens who've lived abroad for more than 15 years and they're disenfranchised and then we've got EU citizens living here who are neither Irish Cypriot nor Baltese who have no vote because they don't as far as those living Brits living abroad are concerned i think there's a precedent from the English and Welsh Court of Appeal that says that at least EU law applies in theory because they have moved in order to exercise their free movement rights and somebody brought a challenge with regard to another election uh saying um arguing that well the the fact that they would lose their franchise after 15 their right to vote after 15 years um would would be a deterrent of exercising free movement rights now that's quite a the and the court of appeal said well yes i mean EU law applies but this is there's no infringement because it's too far and too distant uh a deterrent uh if at all it can't have made any difference to him um so that's the first uh group of people so depending on whether a court here in Scotland would agree with that or maybe the court of justice if a reference was made on that question um we might get a different outcome i'm not 100 convinced that this will be successful because there are precedents from the european court of human rights that suggest that you can after a long period of time deprive people not living in the country nationals not living in the country from their right to vote as far as i know the an interesting question is of course whether the unequal treatment between different types of EU nationals would be a violation of the principle of non-discrimination in the EU treaties i mean they've all moved here so they've exercised their free movement rights no problem and i think i would argue that the determination of who can vote is a very much goes to the very heart of sovereignty of a country so there's probably no no problem with excluding foreigners as such from the franchise but randomly seemingly randomly picking a few who can and others who can't might be a bit dodgy in terms of proportionality because why why should Cypriots, Maltese and Irish be allowed to vote when French aren't there's no clear reason for that no substantive reason that's just my take on this professor Bernard i know that that your time is limited in the room that you're in and you have to vacate it soon so i was wanting to give you the opportunity to come back in any sort of a points that you felt you wanted to brush up and then we can come back to to the point on the franchise that's immensely kind i just wanted to make a couple of points in respect of the early discussion one in respect of your colleagues concern about the implications of withdrawal obviously it's a political question but on the legal side which we can talk more comfortably about it will be a gargantuan exercise that will tie the civil service both Whitehall and also the devolved administration up in knots for years to come it will paralyze the operation of the day-to-day government because so much of time will be devoted to trying to unpicking these very complicated issues and so the implications just for governance and government day-to-day government are absolutely horrendous and this is something which i don't think has come out in the public debate so far the public debate is focused on a bit on the easy hits which would be yes we can repeal the european communities act but that is absolutely a drop in the ocean in comparison to the logistics that will follow on from from that my second point that we haven't just touched upon yet is the position of those two million or so EU nationals who are already living in the united kingdom and the two million or so british people who are living in other member states and what we haven't touched upon is of course if there was withdrawal they would no longer be EU citizens and thus no longer enjoy the rights laid down by the treaties of free movement residents equal treatment and this will have serious implications for those who have for example second homes or indeed first homes in spain or france because the protection they enjoy at the moment is laid down by EU law now that raises the question about to what extent can their rights be protected either under the domestic law of the states in which they're living they will of course still enjoy the rights under the european convention on human rights which does require equal treatment and the other protections that the convention gives and also as your legal advisor has very helpfully pointed out in her own paper there is some protection under the vienna convention for acquired rights and i think the point she makes about that are extremely helpful that once rights have been accumulated it is difficult under international law to divest them but the practical reality is how do you actually go about enforcing those rights the one of the most accessible and comprehensible important features of EU law is that i can go to my local court in cambridge or your local court in edinburgh to get my EU rights enforced if they become international law rights and the system doesn't allow for enforcement of international law rights within the local courts although we might be able to say these people have got acquired rights if those rights are in fringe what can they do about them at the moment they enjoy the very simple but effective prediction of direct effect and remedies in the national systems all of that will disappear and so we are making life much more difficult for the two million or so british people living abroad and likewise for the two million or so EU migrants living here thank you very much first of all if it's if it's sure to to leave whenever you want to don't don't worry about having to take your leave if you have to i know that there'll be an anxious phd student pacing about outside in the corridor looking for use in the rooms if you have to go don't don't worry about that if you do but that thank you for your evidence this morning anyway professor loski i would like to add to what professor banard has said i think that's the main reason why we should have a withdrawal agreement a comprehensive agreement dealing with terms of withdrawal and future relations in one go and one of the conditions for the united kingdom and i believe also for the member states will be to have free movement of persons and the rights the quiet rights regulated properly in that agreement so there are no such problems after the the withdrawal and we of course have practice to rely on we have that's part of the ea agreement the ea countries are bound by directive 2004 38 we have a free movement of persons agreement with switzerland which is in deep trouble for different reasons and which relies on our old legislation not directive 2004 38 but at least there's something to to rely on in terms of the of the franchise i fully share the points points made by dr lock i will add one thing because there was an english judgment that was mentioned i will add two judgments of the court of justice which deal with the use citizenship article 21 which it's far fetched but could be sort of use mutates mutants here there were two judgments in similar cases one was dutch and then there was a polish case where a EU citizens exercise their fundamental rights to move and reside in another country and they were deprived for that reason of the right to have a special benefit for victims of war in the netherlands and and in poland and the court of justice said that they were basically punished for using their fundamental right to move and reside freely and therefore domestic provisions which were within the domestic competence not EU competence were in breach of article 21 of the tfu it would amount to legal acrobatics to apply it to the franchise issue but there is certainly something to to rely on and going back to EU citizens living in the united kingdom as the committee probably is aware quite a number of those tried to become british citizens in order to have the right to reside of course in the united kingdom but also to have the right to vote and i would like to draw attention to a statutory instrument which was approved end of october with a very short vacatio legis which now requires EU citizens to present permanent residence card before they actually apply for naturalisation EU citizens do not need those cards because they all need declaratory they confirm the rights that they have the end result is that the EU citizens if the referendum is in mid 2016 will not be able to get british citizenship because the usual turnaround to the home office i believe is about six to seven months to get permanent residence cards and then six to seven months to go through the naturalisation process thank you thank you very much professor david did you want to come back in yet but the potential argument on discrimination the reason why the the reason for giving irish citizens the right to vote is the longstanding carryover of the relations between britain and ireland cyprus and mortar they are not they are given a right to vote because of a continuation of the commonwealth right to vote i'm not sure that the court of justice would be prepared to say that because you give the right to vote to these people for longstanding historical reasons that does not constitute discrimination against the rest so i think my hunch is that it wouldn't it wouldn't succeed that i think the court of justice would be very reluctant to get involved in the the details of national electoral law in that way because many member states have special provisions about their electoral law as a result of history i want to just go back a little while to some of the comments being made about the impact on scotland and particularly just dealing with the situation where we might have renegotiated and perhaps david camera comes back with a renegotiation on the ever closer union point which then moves on towards a kind of a danish style agreement would that require a legislative consent member motion of this parliament you in your paper talk about change to the objects of the european of the euu dr comac and i just wondered what said david in particular thought of that argument if you read the i don't think that um if david Cameron came back with a declaration of heads of state and government couched in terms which were capable of being registered with the united nations as an international agreement i cannot see that that that declaration of heads of state and government requires legislative consent motion or indeed the consent of any parliament any national parliament it is simply a declaration of heads and state and government doctor mckamlee do you want to come back on that but with with a proviso on it on what does david camera mean by the role of national parliaments oh i'll take the first question first i mean this um this is a bit of a speculative argument i think but when i was writing this i was trying to explore all the possible angles that could be covered or all the possible arguments that come out of this um it would depend on whether you understand the power that i refer to to have regard to the objects of the euu when implementing euu law, whether that can be considered as just an obligation or whether it empowers ministers in a certain way that they have a power to to to have regard to the objects of the euu. If it's a power then there is an argument that could be made that a change to those objects could be reducing the power of ministers and therefore requiring an lcm but then we would need to argue also i mean this is why it's so speculative whether the ever closer union is what is meant by the objects of the euu or the ideal and ever closer union includes the uh or can be brought within that rubric in the scotland act and and there are a number of counter arguments that position that i understand but i think it's certainly something that we need to think about and if nothing else it just highlights the complexity of the scottish situation uh with regard to this question um the role of parliaments is is less my expertise um other than to to really reiterate what was in the the excellent briefing paper by by shanna uh dr scott which talks about the procedures that are already there and the ways in which you know eul is not going to be held hostage by a coalition of it wouldn't work if if you had a coalition of parliaments saying well you know we object to this and we we're going to try and stop it it's simply i don't think it would work if we assume that there won't actually be anything on the table in terms of kind of migrant access to benefits so welfare um what role is there any likely role for an lcm for this parliament i cool would you know that one off the top of my head i would say there isn't but it would depend on what the agreement's actually said okay we want to bring forward for some more evidence um professor so david yep just one point on that i think we have to distinguish between in in david cambrans letter between the issue of ever closer union and what has been described as the red card giving a red card to national parliaments in the protocol dealing with uh what has been called the yellow card on subsidiarity there is a not an obligate well it's not clear whether it's an obligation but there's provision for national parliaments when thinking of operating the yellow card of procedure to consult with regional parliaments having legislative powers a for sure i would say if there is a red card procedure then there would be an obligation to consult um and conceivably conceivably not a lcm but some kind of consent from the scottish and welsh in northern ireland parliaments you have to remember i think in this context that in some member states the executive does not so to speak control the parliament the parliament is a totally separate institution and i think that the british argument about the red card overlooks the possibility that the government of the member state in council agrees to something and the parliament which is a totally separate institution then says well we don't agree with it and you have this red card procedure has um although it looks perfectly simple and just a development of the yellow card procedure it has the most appalling uh implications not particularly for us but for other member states where the government could find itself completely stymied by its own parliament jimmy McCregor well i had two questions one on rights and one on derogations um but the first on rights i mean in professor douglas scott's paper she does say that um the these rights and obligations exist between member states but with regard to nationals and companies of those states and then she says the european court of justice stated as long ago as 1963 in the van genden lou's case that such rates are parts of an individual's legal heritage um so my question i suppose is which if any acquired rights would be retained under EU law and how would that affect individual citizens professor davidia sorry i think the the answer is that what they are talking about in the in that judgment is rights deriving directly from the treaty what is called the uh what is called direct effect of treaty provisions and know so that the rights derived directly from the treaty the rights of many of the right aspects of the right of free movement are derived directly from the treaty they depend not on any EU legislation or any national legislation they derive directly from the treaty they are justiciable before the courts so no amount of UK legislation or repeal of UK legislation can deprive people of the rights that they've derived directly from the treaty so you any withdrawal has to find a way not simply of dealing with EU legislation but of extracting the UK and its nationals and the nationals of all the other member states many uh iberdrola uh in scotland uh or in britain all all these people and companies and institutions have rights you've got to find some way of disconnecting them specify any of those rights okay they they began with the rights the right um not to have duties increased the discriminatory discriminatory taxation for example is a right derived directly not to be subjected to discriminatory taxation is a right derived directly from the treaty there are it's the rights of free free movement of goods many aspects of free movement of persons services establishment the right to set up an office to set up a company and the and remember that british company law is more is easier to comply with than the company law of some other member states you have examples of people in other member states incorporating themselves as british companies they are affected and certain aspects of free movement of capital though not many okay can i ask my your second question all right so this is a more general question going back a bit when you mentioned derogation and i was just this is a general question i mean in terms of treaty change why is it that for example the the fishing industry has survived since the the start of the the the the EU on derogation which is which is sort of every 10 or 20 years these have to be re-established but they allow for relative stability relative stability and subsidiarity in the north sea and and and these are based on derogations why can't you have derogations in the things that the prime minister is asking for rather than treaty change that's my point i mean i may be a naive question but not at all but i think that the fisheries the common fisheries policy is established by by EU legislation and with certain certain aspects for example the right of citizens of other EU nationals of other EU states to buy british registered fishing boats for example and therefore get in on the quota that is that is a matter partly of direct effect and partly of legislation the problem the one problem that is that there is a serious problem about about derogation is this issue of giving EU nationals exercising their right of free movement to come and work in the United Kingdom to deny them benefits which are given to british nationals in the same situation that is direct discrimination well then but it's in the same way Spanish vessels are not allowed into north sea in lots of cases no but that that's part of a negotiated system of fisheries within the scope of the treaty but the treaty itself says equal access to a common resource and and what what the fishing industry works on is a derogation from that that's the point i'm making yes but i don't that is not the same as because the rules of the fisheries are laid down in legislation you're not you're not talking it you're not you're not it's apples and oranges okay it's a different it's a different aspect of EU law i mean others here can give you much more detail about this than i can but we're not talking about the same thing it's a question of hierarchy of sources basically you cannot derogate from non-discrimination clause in secondary legislation to such an extent it will have to be as professor bonart mentioned revision of article 45 of the treaty now with fisheries policies largely regulated in the regulations which are acts adopted by the council council and parliament etc so it's easy to do those those kinds of opt-outs derogations whatever we call them but going back to your earlier question about rights if i may i think we need to clearly distinguish here the rights of british citizens in the united kingdom when the uk leaves and the rights of british citizens in the EU member states when the united kingdom leaves now starting with the latter that will largely depend on what will be provided in the withdrawal agreement again i'm going back to my opening statement or one of the first things that i said that the withdrawal agreement will have to regulate comprehensively terms of withdrawal and future relations so for instance if withdrawal agreement provides for application of free movement of persons rules and secondary legislation to uk citizens in the european union and they will not be affected so much by the by the withdrawal now in terms of the rights of uk citizens in the united kingdom itself it will vary depending on the type of legal act depending on a particular right that citizens have for instance if we repeal european communities act we're no longer bound by consumer protection directives but that will it will change a little bit but the uk citizens will still have rights which are under consumer protection legislation which gives effects to those directives what we will have then we will basically have a legal transplant we will have a legal act which is based on external source which we are no longer bound by it will be different with regulations a good example is the regulation which i mentioned earlier on regulation on compensation for flight cancellations and denied boarding flight cancellations and delays this is a regulation so if a flight i don't know from edinburgh to to paris is cancelled you're entitled to to compensation and the airline has an obligation to look after you provide you with hotel refreshments etc now if we repeal the european communities act and we do not put anything in place of that regulation you're deprived of any rights completely i'm pretty sure that ryanair will be thrilled but not uk citizens okay professor lock doctor lock sorry you maybe just on the on the rights issue i don't have much expertise in fishing i'm afraid the situation we could imagine is that we've got a german pensioners moved to the highlands and they're living out there live there and the uk leaves the eu at the moment they can do that under the citizens rights directive if they have sufficient resources to support themselves and if they have health insurance imagine the uk leaves the eu 1st of january 2020 they will become and there's there's no provision in the withdrawal agreement how to deal with these people the question will be are they allowed to stay as a matter of acquired rights rights that they had once and they no longer would have if they were to move after withdrawal and an argument could be made that this could be so under eu law i'm not sure that international law provides for such a comprehensive protection of these kinds of movement rights it provides for protection of property rights but not so much for movement rights as far as i understand it but then the second question even if we have that right under eu law as kind of an acquired right how do you enforce it after withdrawal if you no longer have access to the court of justice so you imagine this person then challenges a removal order from uk from the uk border agency or whoever would issue that went to the high court with a judicial review and they said look i've got an acquired right under new law would the high court have to respect that as a matter of uk law if the european communities act had been repealed for instance where's the basis for that is there a basis at common law perhaps there are lots of questions so it goes to show that as professor lasowski has said this needs to be dealt with in a withdrawal agreement but lots of questions and obviously lots of work from lawyers brilliant brilliant doctor mcamley i'm going to give you the final word for this morning oh that's that's a big application um i think yeah the question about acquired rights is an important one and the um what i think is clear is a british constitutional position would be there be no direct effect of these international rights because there is no general direct effect of international law rights in british courts um we have a lot of precedent for this with regard to other international agreements they kind of persuasive value the dict of international courts kind of persuasive value but you certainly couldn't argue in court the way you can now with you rights that's certainly the good barring some law that allows you to do that in the transitional provisions um the fisheries question is really interesting i don't know very much about this but i i'm not sure a derogation is what's at stake here um you know the common fisheries policy like the common agriculture policy is there's a framework in the treaties to have one and then it's renegotiated on whatever period of year's basis um so i assume that what you're referring to is some agreement that has been reached but that is cyclical so then it will be renegotiated and re-agreed well it seems to be flexibility that exists within within the within the treaty to allow different things for different in the sense that it's a policy so the treaty would set up there must be a common fisheries policy right and it'll stipulate that this is general rules but lack this common resource that's what it says yeah but there would be parameters to that so forms of discrimination would probably be precluded for example unless their indirect discrimination provided they were justified on legitimate grounds and so on if you wanted a sort of a derogation by analogy in terms of what i think in the broader sense then that would require i think a core treaty change that there's some opt out or protocol or something like that which i don't think is the case with fisheries because it couldn't because it would did the basic constitutional norms of the treaty about non-discrimination and so on apply throughout unless an opt out precludes it okay we have quickly have ran out of all the time that we had a lot to to to do this justice this morning and thank you so much for all of your contributions of all being extremely valuable extremely interesting and extremely informative if you know you leave committee and you think i should have said this or i should have given that piece of information please don't hesitate to get back in touch with us we'll be continuing on with this inquiry probably up until dissolution they're there about so we've got a bit of time to to think about this but thank you all very very much for coming along this morning and we really appreciate your your time with us and i'm going to suspend briefly to allow us just to have a bit of a comfort break and leave our witnesses to leave thank you welcome back to the european and external relations committee and we resume at agenda item two which is the brussel's bulletin so if colleagues have any comments questions or clarifications on the brussel's bulletin nothing on no rod no billy panzala adam jimmy not today so will we ensure that the brussel's bulletin goes to the relevant committees yep thank you very much agenda item three is a paper that we have with letters back from the relevant government ministers and europe on the refugee crisis any comments or questions on on that any comments on the responses i can't say i'm particularly impressed with the response we got from the european union rep whoever whoever that is on the issue of rescue the rescue mission in the mediterranean there's a there's a paragraph in there that's a bit waffly in my view while the rescue mission as we know continues apace it's good to see you suppose in the sense that there's an increasing number of member states navies assisting with the rescue mission in the mediterranean was which goes on but i remember the concerns we expressed here a huge concern that around table meeting we had about how well coordinated this is so i would still say i'll be a bit disappointed to think with the response from the EU about how coordinated this whole rescue effort actually is about welcoming the apparent increase in the number of navies that seem to be participating in the mission in the mediterranean i think i think is a very pertinent and actually topical question to rise from the letter i know there's been discussions the past few days about having some sort of a form of a coastguard type of service functioning my concern about that is is that about putting up barriers rather than searching rescue and supporting people so i think it's it's the topic of discussion now at the commission the european council the european council over the next few days so i think you're absolutely correct to highlight that and i think we should ask for an update on that particular topic in light of the discussions at the council in the next few days yeah yeah happy with that adam yeah it's a point i was going to make this notion of some sort of EU border police or security operation that seems to be emerging over the last two or three days i think we need to get some clarity about what is being proposed yeah and how it relates to the issues that we raised with them we can bring a bit of a briefing back to the committee on that but my concern is about the use of some of the language that's been used over the past few days and this is about you know prevention and borders and barriers and there's an issue for me there that people then end up you know building up behind those barriers and how do we how do we support that situation conflating the security issues particularly with regards to the paris outrage and the refugee crisis so we need to sort of tease out the elements the separate elements from that yeah i agree any other comments and jamie no no so happy to chase up on the EU commission response is there anything else on the other two responses from the UK Government the Scottish Government should we ask for on-going updates yeah yeah okay that concludes our business in public today for for the committee and we resume again in the new the new year but before we close a committee to go into private session i just want to wish you all formally a very merry christmas and a very happy and peaceful new year and we'll see you all in the new year and i now suspend to go into private session thank you