 I welcome members to the seventh meeting in 2018 of the Delegated Powers and Law Reform Committee. I welcome Michael Russell, Minister for UK Negotiations on Scotland Place in Europe and his officials to the meeting to give evidence on the UK withdrawal from the European Union legal continuity, Scotland Bill. Before that evidence session begins as one piece of business, the committee must decide first. That is the decision on taking business in private. It is proposed that the committee takes item 6 and 7 in private. Item 6 is consideration of the Delegated Powers memorandum in relation to the Prescription Scotland Bill. Item 7 is consideration of the evidence that we are about to hear from the minister and his officials. Does the committee agree to take these items in private? We will move on to agenda item 2, which is consideration of the UK withdrawal from the European Union legal continuity, Scotland Bill. Our role in scrutinising this bill is to consider the delegated powers in the bill. As I have said before, we have before us Michael Russell, welcome minister. Thank you. He is supported by Gerald Byrne, team leader, constitution and UK relations division, Graham Fisher, head of branch 1. Is there a branch 2? Yes, there is. Constitutional and civil law division and Luke McBratney policy officer constitution and UK relations division. We will open the evidence session and invite members to ask questions. Alison Harris will go first. My concerns about this bill boil down to the lack of scrutiny that this committee and other committees are able to apply. I am sure that you would appreciate and agree with me that a three-week timetable does not allow for proper scrutiny. Scrutiny is what is required by committees to allow Parliament to just basically correctly and properly function. Ultimately, that is being denied to Parliament with this bill. Is there any way that we could have more time with this bill? I would respectfully disagree in terms of scrutiny. It is not the ideal situation for this piece of legislation, but this piece of legislation relies heavily on the UK bill. There are some differences, but there is a great deal of similarity too, and no doubt we will come on to that. I hope that we have improved the UK bill in the way that the committee sought in terms of the evidence that I gave last October and your helpful report on the UK bill. The concepts and some of the detail of the bill should be familiar to members of this committee and members of the Parliament. It is not of our making that we are in this position. We have endeavoured and continued to endeavour to reach an agreement with the UK Government on the issues that are outstanding on the UK bill, but that has not yet proved possible. Therefore, it is sensible for ourselves and the Welsh Government, and the two of us have been working in lockstep on this, to put in place a backstop provision in case we do not get that agreement. If we get that agreement, this bill, clause 37 of this bill, for example, allows us, even if the bill is passed, to suspend the whole or parts of the bill. If the UK Government is inclined to be reasonable to respect the devolved settlement, then we will not be in a position where this bill will continue. If we are not in that position, then we will give the bill every opportunity to be scrutinised. I look at my diary over the next three weeks. It seems that the committees of the Parliament will be doing little but scrutinise this bill, and I welcome that, as will the chamber. That will be very useful and important activity. Perhaps, instead of simply talking about the lack of scrutiny, it will be useful that we got down and scrutinised it. Thank you for your response. I hear everything that you are saying. The UK bill that you are referring to, this committee has been scrutinising that bill for quite some considerable time, a lot longer than three weeks. I respectfully disagree with you. My question is nothing to do with politics and everything to do with this committee and scrutiny, and I do not see how you can fail to disagree with my view and others' view that three weeks is simply not long enough to scrutinise something of this importance and magnitude. With the greatest respect, you have just said that this committee has been scrutinising the UK bill for a very considerable period of time. There are very strong similarities. Indeed, there are some identical parts between the two bills. You have, in that sense, a head start by your own admission, but I do think that we are not in the position that we would like to be. To put it bluntly and as non-politically as I can, I think that the UK Government bears a responsibility for that. I continue to wish to negotiate. Indeed, when I am not talking about this bill here this week, I will be talking about it in London this week, along with the Welsh and the UK Governments. Perhaps we should go on and continue to scrutinise it. There is a choice to be made. You may not wish to scrutinise it in those circumstances, but if you do wish to scrutinise it, I am at your disposal. Sorry, minister. You do not need to tell us what our job is. We know what our job is. We are here to scrutinise, but members are free to ask whatever they wish. Please do not tell us what our job is. Mrs Harris, do you have anything else? To be perfectly frank, I really think that you launched into a speech quite frankly and totally ignored what my question was. I need to bring you back to the scrutiny role. Now, while we have been scrutinising the UK bill for quite some time, and yes, there are undoubtedly similarities, Fact Remain minister, in the Scottish Parliament this bill in three weeks does not allow us in this committee or other committees enough time to scrutinise. That is my point and I do not appreciate the patronising response that we can compare. I disagree with the point. I am not trying to patronise you. I disagree with the point. It is a point that was made by your colleagues last week. It is not the ideal situation, but it is the situation that we are in. It is not the situation that the Scottish Government is making. It is the situation of the making of the UK Government because it has not yet agreed on clause 11. The Welsh Government is in exactly the same position and we have brought the bills to the Parliament and we are ready to have them scrutinised. I am simply making that point. We are ready to have the bills scrutinised. I am very happy to appear before this committee now. Again, should that be required? I have made myself absolutely available to all the committees of the Parliament and to the chamber and the bill and the information is there. We will be also adding to that information in any way that we possibly can. I am trying to be as helpful as I possibly can. I am not saying that you are not being helpful, but what I am saying is that you are agreeing with me that, although everything is not of our making, three weeks is not long enough. I am making the point that this committee has already and parts of the Parliament have already scrutinised the UK bill, which is very similar. I am making the point that we are where we are and we need to go ahead with this. I could make a wider point about Brexit, but out of deference to the convener who does not wish me to do so, I will not make it at this time. My question was on scrutiny to be fair, so thank you, convener. Probably exhausted that one. Mr Finlay, do you have anything? I think that any reasonable person would say that this level of scrutiny over such an important piece of legislation is not the way that things should be done. I think that it would be childish for anyone to suggest that it is. There is a fundamental issue that we have to get to the bottom of, and that is to establish whether this whole process has substance or whether it is a depressing one fight between two Governments for political reasons. Therefore, I have asked twice, once in a parliamentary question and once in a debate, for the 25 areas of dispute to be published. Will you publish them, minister? With respect to three Governments, because the Welsh Government is in the same position. I raised this again with my colleague, Mark Drakeford, last night. It is my wish to publish them. I will raise it tomorrow at the committee and I hope that all three parties will agree to publish them, and that is what I want to do. I cannot publish them ex-cathedra, but it is my wish and intention to publish them, and I want to publish them, so you are aware. Although I would make one point, Mr Finlay, about them, which I think is quite crucial. This is not only about the 25 items that are left. It is about the principle that underpins those 25 items, and this has been referred to by the Welsh Government as well as by ourselves, which is a principle of imposition of action rather than agreement to action. The 25 items are of great importance on their own, but the principle is also of great importance. I wish to publish them. I think that the Welsh Government wishes to publish them now. We would want to get them published, and I will do my best. Oppinus from publishing them? I do not believe that I can publish them without the agreement of all three parties. That might make the negotiating system situation worse, but I will be requesting that. I want to do it, and I would hope to be able to do it as soon as possible after Thursday and certainly before stage 2. You are fully aware of that. The Welsh Government has agreed that they want to see them published? I believe that that is the case, yes, that they wish to see them published. Could you, after this session, go and lift a phone to your UK counterpart and say what you agreed to publish? We could have them published this afternoon. There is already discussion among civil servants taking place. There is an agreement. My civil servants have asked for it to be raised on Thursday, and it will be raised on Thursday. That is a meeting at which it has to be raised formally, but I am willing to do so. I cannot give you more than that, but to say that I am willing to do so. If you had agreement between the three ministers representing the respective Governments, you could publish this afternoon. I do not think that we could, because I do not think that we agreed the nature of publication, how we are going to publish it, but I want to publish it. I made that commitment to you last week. I have now raised it with the Welsh Government. I want to get it done, and I would like to do it. I hope that you agree that this is absolutely fundamental in people understanding whether we are going down a route for perfectly legitimate purposes, or whether we are being led for political reasons. I believe that the identity of purpose between ourselves and the Welsh Government would indicate that this is at least something that is shared between the Labour Party in Wales and ourselves as an SNP Government. Can I stop you for a minute? I do not believe that it is to do with politics, as you have indicated, to do with substance. Minister, I hope that you will agree that not everything we do is for a narrow party political reason. We have a role as parliamentarians. I wish that more people would understand that. We have a role as parliamentarians to scrutinise this irrespective of our party position, and that is the reason why I think that this should be published. Whatever the political make-up of each Government act for me at this point is irrelevant. The quicker, the better. I wonder if I could ask Mr Fischer if you are the lawyer for the day. I wonder if you could tell me the legal reason as to why we have to go through the emergency process. There is a legal reason as well as other reasons why it would be significant if the UK bill was enacted before the continuity bill. Part of the reason is because the UK bill would amend the devolution settlement and would prevent the Scottish Parliament from changing the EU withdrawal bill. Would that only happen on Brexit day? No, the UK bill would amend the devolution settlement before Brexit day. Is that the clause 11 element of it? It is not directly. There is a technical reason as well as clause 11 itself. It is buried in the detail of schedule 3 to the EU withdrawal bill, but it would amend schedule 4 to the Scotland Act. That is the first that we have heard of. That is part and parcel of the restriction switch that the UK bill would put into the devolution settlement. Exactly. I therefore make a request to the minister that you publish the legal reason as to why this is a necessity so that we can test that legal argument. That is the first that I have heard, the legal argument. I have heard political argument, and I understand the political argument, but we have never heard the legal reason as to why you have to get to the finishing line before the other side, if you like. It would be good to have that. As I understand it, the legal argument that I understand is now on the record of this committee. I am happy to see that fleshed out. I will endeavour to write to the member with fleshing that out so that he understands that that is the legal reason. I wonder then... Who mays the convener. I will pass it on. I think that that should go to all members. It will be open. It is not just relevant to this committee. I think that this is of such importance that it would be very helpful to Parliament to hear the legal reasons and to flesh that out so that it is perfectly understood. Those are complex matters that people have the right to have the information at their finger. Mr Finlay, you are right to raise it. When I receive the letter, I will make all members aware of that letter. It is important to put on the record that, as well as the principled or legal reasons for wanting to see the timetable that the Scottish Government has proposed, there are also real practical issues for wanting that timetable. Both the requirement to enable changes to be made to the EU withdrawal bill if necessary, but also, and possibly most pressing of all, because the Government will need to, on any scenario, whether we are relying on the EU withdrawal bill or the continuity bill or some combination of both, the Government will have to start the practical work of preparing for EU withdrawal soon. The UK Government is also wanting its bill passed by May so that that practical, necessary preparation can take place shortly after that. We couldn't commit this Parliament to any timetable that involved less time for preparation than the UK Parliament was getting. Anything else, Mr Finlay, at this point? No, that's fine. Okay. Just a point from me before we get into the substantive scrutiny of the bill. How close are you, do you think, to getting agreement with the UK Government on this? I made it clear, convener, at the weekend that I felt agreement was contingent upon a very simple change that the UK Government needed to make, which is in respecting the principles of devolution to make sure that the Scottish Parliament agreed to both the subjects that were in any frameworks and the governance of those frameworks. Presently, there is no mechanism being discussed for agreement, so if we move to agreement, then agreement will be found if we don't, and I think it's difficult to do so. Are you confident that that agreement can be reached? No, I'm neither. I don't have confidence either way that discussions are continuing. These have been going on since last July. They've been detailed. We've made progress on a whole range of issues when we're glad about that, but we haven't made progress on that issue. There is a meeting of the JMC-EN on Thursday and there is a meeting of the JMC plenary on next Wednesday. Those are both opportunities for agreement to be reached. So far, there is no agreement and there is nothing that I have seen that shows that the UK Government is moving. On the other hand, we are still talking and that is always positive. That's good. Potentially by next week you could have an agreement and this bill that we're here to discuss could be dropped. Yes, and we've made it clear that we will come to the chamber in those circumstances, report on the agreement and the chamber will have the opportunity to say what should happen. But we are doing this, as I'm indicating, because we need a backstop in place. There can't be a cliff edge and we cannot agree to the process, some of the detail that the UK Government is putting forward. Okay. Right. My very brief supplementary. Just on the back of the publication of this bill last week, has there been an increasing number of discussions between your civil servants and the UK civil servants? I don't think you've got it increasing. There's a pretty constant discussion. In any case, there has been for many weeks. There has been, for example, what was called a deep dive process, a process that has been going on looking at the subjects and working out how those subjects might be subject to frameworks or to other actions. That process has been going on for a considerable period of time. That was instituted as a result of progress made last year between the October meeting of the GMC and the December meeting of the GMC, and then instituted and picked up during that period of time. Okay. Okay, minister. We've got a series of pre-prepared questions. Some of them are quite technical. Some members may just actually read them out. So I'm going to start looking at section 7 of the bill, which is challenges to the validity of retained or devolved EU law paragraphs 20 to 25 of the DPM. Section 7-1 of the bill prevents the challenge to retained EU law after exit day on the ground that the EU instrument was, quote, invalid before that date. Section 7-2B and 4 of the bill allow ministers to make regulations to disapply that rule for particular situations. So can you explain what sort of situations might need to be dealt with by such regulations? I can, but I think I would like Luke McBrackney to start to deal with some of the legal detail. You will understand that we are going to share this task on the legal detail and we will all chip in as we can to help the committee if that is acceptable. Perhaps Luke would like to do so. At present, the situation is that domestic courts have no power to disapply any EU instrument on the grounds of validity. Only the court of justice can. It will clearly be necessary in situations where the validity or otherwise of an instrument might prejudice an individual's rights or interests in some way to be able to provide for that after withdrawal. I would imagine that the situations that we are considering disapplying the rule in section 7-in would be broadly similar to the situations that currently exist, as respects the court of justice's power, to disapply instruments as invalid. Our intention would be to co-ordinate our use of the power with the UK Government's parallel and corresponding power in paragraph 1 of schedule 1 of the EU withdrawal bell. I would be happy to write to the committee very urgently in the next day or two with more detail about that particular possible use of the power. That would be useful. Given that we have a stage 1 debate tomorrow, I will not do that later today. I shall write to the committee later today. Thank you. Introducing a right of challenge in the way that section 7 could create significant outcomes in the courts, has any consideration been given to the regulations being subject to an enhanced affirmative procedure to allow the Parliament an opportunity to review the regulations before they are formally laid for scrutiny? On all of those issues, we are happy to consider that as a positive step forward. Should that be helpful? I mean, I'm not going to go to the wall for any of the issues in terms of an affirmative or enhanced affirmative procedure. I think we've made it clear, for example, where we find ourselves on the issues that the committee raised the last time with me, that on almost all of them, we've made the changes that the committee suggested. The UK bill was defective, and we've actually made those positive changes. I'll make that general commitment. The conditions for enhanced affirmative procedure are laid out in the bill very clearly. If there is a suggestion that we add to those conditions, I think that that's something that we would look at very carefully indeed. I think that we would require to do it in that way, rather than on a case-by-case basis, because I think that we do need to have a template against which to judge which would be enhanced affirmative, which would be affirmative, and therefore what is left to be negative. But if there was a case to be made for adding to those criteria, the three criteria that we already have, then we'd be happy to look at it. I think that we'd look for a suggestion about what that criteria would be. Okay, that's very useful. Mrs Harris, I think that you've got the next question. Section 11 contains a wide power on the Scottish ministers to correct failures of the retained devolve EU law to operate effectively and also to correct deficiencies in the law. The committee has already considered evidence in connection with similar powers in the European withdrawal bill. In its report on that bill, the committee concluded, and I'll quote, "...the powers should only be available where ministers can show that it is necessary to make a change to the statute book, even if they cannot show that the particular alternative chosen is itself necessary." It would appear that the same principle is applying for this bill, but what reassurance minister can you give this committee that the powers in section 11 can only be used to make changes which are no more than necessary to make the law work efficiently on exit? We have done exactly what the committee has suggested, and we found ourselves that the UK bill, we thought, was defective in this regard. So we have changed this to a test of necessity, and that is what now exists in the legislation. That test of necessity is a pretty strong test for any minister to meet, and we quite clearly believe that that is the right thing to have done. Once that test of necessity has been met, then it does become a choice of appropriate policy solutions. But the test of necessity you made the point, we thought it was correct, and we have put it within the bill. Just before you move on, we did make that point, but when we took evidence on this, we also made the point that even if you apply the test of necessity, that in itself is a judgment call. So you could regard something as necessary, and I wouldn't. The bill sets out the conditions for the minister to be satisfied with the test of necessity. The minister has to be satisfied that it is necessary for a particular purpose set out in the bill, and that is to make provision for the purpose of preventing, remedying or mitigating a failure or other deficiency on their section 11. So it is a textured test rather than just an exercise of pure judgment by the minister. Somebody pointed out to me yesterday in considering this paragraph that the words preventing and failure are strong words in legislation, as you will know as a committee. So that test is pretty severe and, of course, there will be and inevitably will be a judgment. The nature of that judgment is contextualised by the legislation itself. I was just going to go on to ask how can you explain about a failure in the operation of retained devolved EU law? How is that going to be identified as necessary? The legislation therefore defines prevention and has the word failure within it. I think that the real issue that you need to examine here is the ways in which European law presently apply and how it should apply. For example, there are, if you look at agricultural matters and agricultural support, there are structures that will clearly require to be changed because they cannot operate. But then within the regulations for those structures, there may be things that those structures are meant to do, which they cannot do because they do not exist in which no longer is the situation. In all those circumstances, that is the type of thing that this is designed to meet and we would look at the way in which things operate. Those are exceptional circumstances. I do not have to remind you of that. Those are circumstances that I do not think we will ever see again. So as we look at these, we will have to be able to say how would we have a working and functioning system after the day itself and if it is not going to be a working and functioning system if it is going to fail because the legislation is not there. That is a circumstance in which we have to move, sometimes to move rapidly, but to move with greater scrutiny than was previously the case under the UK bill. Okay. If we start to look at section 113B to be more specific, can you explain the purpose of the power in section 113B to allow ministers to further describe the deficiencies in retained devolved EU law? That power is not really limited by being necessary in the view of the Scottish ministers. So why would that be? The new power in section 113B reflects a concession made by the UK Government during the Commons in the EU withdrawal bill, which is that the list of types of deficiencies in section 11 subsection 2, which used to be non-exhaustive, it was only indicative of the sort of things that might have been deficiencies, is now exhaustive. So if something does not fall within the classes of deficiency enumerated in section 11 subsection 2, it's not a deficiency. However, the entire basis of the exercise that we are conducting with us and the UK Government, the Welsh Government, the civil servants in Northern Ireland is predicated on a substantial amount of uncertainty about exactly what a deficiency might involve. When the UK Government made that concession, it took this power so that if during that exercise it becomes clear that there is something that requires to be addressed in retained EU law, something that will stop functioning, that needs to be added to that list, it can be. It is in that sense a sort of reserve or backstop power. Because the use of that power would involve the effective supplementing of primary legislation, of expanding an existing provision to make delegated legislation, we consider it appropriate that it should be subject to the affirmative procedure. OK, thank you. I could just stress the three steps that we have taken to address the issues that were raised with us, first of all. First of all, we have applied a test of necessity, which is obviously extremely important. Secondly, we have put in additional limits on the powers that we think are appropriate. Thirdly, there is an enhanced role for the Scottish Parliament in the regulations. I think that those are all important steps, which again contextualise what we are trying to do and make sure that there is an improvement on the situation that existed. OK. OK. Mr Finlay. Section 13, power to make provision correspond to EU law after exit date. That is a very significant power. The delegated powers memorandum describes the power as giving ministers the ability to ensure that where appropriate the role of law in Scotland keeps pace with post withdrawal developments in the EU. Why is such a power necessary in a bill that deals with the continuity of powers upon the withdrawal of the UK from the EU? I think that we have to go back to what the expectations of the UK bill were. There were expectations that the UK bill would contain this so that there were circumstances in which any administration could say, for example, in environmental regulation, we want to make sure that this continues to match environmental regulation because we don't want this to weaken in any way or because it's important to us, for example, in food safety, that we don't want to risk exporting or sales. When we first saw the bill, we were, I think, very surprised that this was not part of the bill. We did believe that that was an ideological decision to prevent this taking place. We felt from the beginning that this should be available as an option and as an option to ministers with parliamentary scrutiny and parliamentary approval and also as a sunset adoption. This is what's in here. We've introduced this power as a Welsh bill in order to allow ministers the flexibility so to do in areas of importance. The environmental charities, for example, have been very strong in saying that they want to see a continuation and a keeping pace and they're worried about it in areas such as human rights, for example. There's a fear of falling behind and, of course, that's been part of the declaration that the third sector signed some weeks ago. We're giving the opportunity for this to take place in this section. It is scrutinised. The section puts scrutiny strongly, scrutiny within us. It doesn't keep us in the EU, which was one of the arguments that was used against this when the UK bill was originally published. It's being taken for practical reasons that are helpful to a variety of sectors. It will be up to ministers to bring forward their proposals. It will be up to Parliament to accept or otherwise those proposals. Why does it need to be in this bill? Because I don't know anywhere else that we could put it. Where else could we put it? Could it not come back in a separate piece of legislation so that we have full scrutiny over this? This is a very wide range in power. It's a power that's subject to scrutiny. It is a power that is clear. It is a power that many people have called for. It is a power that will be useful to a vast range of organisations which want to see these things take place. This is an appropriate place for it to be there. We had expected it to be there and it wasn't in the UK bill. We are remedying that defect as we, for example, on the Charter of Fundamental Rights are remedying what we think is a mistake by the UK. That's why it's in here. You would concede that it gives very significant powers to ministers to bring in law through delegated powers that doesn't have the level of scrutiny that other pieces of legislation have. No, I wouldn't concede that with respect. I would say that it allows the continuation of the present situation in key areas, which is what many people wish to see. We think that this is a useful thing to do. If the committee thinks that it's too broad, it will wish to say so. If it wishes to see greater scrutiny of this process, I'm sure it will wish to say so and we would consider that. Do you list these key areas anywhere? No, but any of the areas in which we presently operate under EU law would be covered by it. All areas of EU law? Well, the areas of EU law in which we are involved, a number of those. Clearly we couldn't do so because we changed the structures. For example, you couldn't do so in agricultural support if there was no equivalent mechanism. But you could do so in environmental protection, for example, on the Habitats Directive. Before I ask anything, do you carry on? No, it's fine. You've got another point to make on that before I continue. I just want clarity because there will be people watching this session. Are you saying that, essentially, after we leave the EU, you would want Scotland to basically take on board EU laws after that as they change? If there were areas in which that was deemed to be appropriate, for example in food standards, 98 per cent of our food standards legislation comes from the EU, many people believe it would be appropriate if there were changes in European law in that area. That would be a thing that ministers could bring to the Scottish Parliament and say we would like to do so. It would be to the Scottish Parliament to say yes or no. We also believe because it is a power that needs to be kept under review that it should be time limited and the Parliament should be able to scrutinise that. What level of scrutiny would Parliament get? Let's say a piece of EU law that you quite like the look of. Bring that to Parliament. What level of scrutiny would you say yes or no? It would be within the context of the existing legal structure to update that existing legal structure. What we are proposing at the moment is to have the subject to the same level of scrutiny as the fixing powers. That could be super-affirmative, but the enhanced regulatory means of scrutinising it. Obviously, if the committee wishes to see greater scrutiny or has concerns, it would want to say so. Things like EU law and food safety in many people's views should be continued because it is vitally important to our process of exporting. Mr Finlay? The 13.8 is about extending the period in which the 13.1 regulation has been made to last for five years after exit day, but there is provision for that to extend even further within 13.8. Could you comment on that? One moment. Sorry, Mr Finlay, your point was... The powers in 13.1 last for five years after exit day in accordance with 13.7 of the bill. Section 13.8 allows ministers to make regulations which extend that five-year period further. Is that just an open further? By a period of up to five years and any period of extension and a subsection by a further period of five years. So it is a five-yearly cycle. So does that mean by 10 years? I mean five years followed by another five years, followed by another five years if the Parliament so says. Or no extension because the Parliament says no? So a planar role is a parliamentary not a party role, given that I voted remain. Someone could be reading that section and say so they want powers to implement EU law that they like for five years but that can continue for as long as they want. So ineffectively you can understand why some people would possibly look at this and say this is just looking to frustrate the whole process. No, I can understand that but that's not what is in the bill. What the bill is saying is there may be areas in which this is useful and extremely important and in those circumstances ministers can make a recommendation on that and if that happens then that is reviewed every five years and it will cease to happen after five years if that is the view of Parliament or it will continue to happen for another five years. If that is not arbitrary it seems to be a reasonable length of time but for example the bill would be capable of mending for that to three years or seven years it would depend on what members wanted to do. You could actually reword that and say that you have the powers for however long subject to Parliament ending those powers. No, there is a cut-off point and they would require to be a renewal which presumably would be subject to intensive parliamentary scrutiny but the question is how long should that period be? Okay, that's fine. Okay, Stuart. Thank you. Minister, section 14 specifies that regulations under sections 11, 12 and 13 containing provisions of the sort which are listed in section 14, 2 must be subject to the affirmative procedure and how did you come to this decision that only those matters in section 14, 2 should be subject to the affirmative procedure? As I indicated earlier to the convener we applied a set of criteria. Now it is the question of whether those criteria are adequate or which to be added to I suppose that is germane here. The enhanced procedure is used and we are recommending is used when an instrument establishes a new Scottish public authority, gives a function to a new Scottish public authority or removes a current EU function without replacing it. Those are clear and very serious issues and I think that we would all accept those are first level issues. The affirmative procedure would then apply if we give a current EU function to an existing Scottish public authority if we impose a fee or a charge for carrying out a function to create or widen the scope of a criminal offence or to create or amend power to legislate. That's the second level. If neither of those sets of tests apply then everything else in power is subject to the negative procedure. Those are the criteria we've applied that are laid out clearly. The question is and absolutely open for debate whether those lists should be changed or enhanced in any way. The section 14.5 has the effect of making the regulations containing particular provisions subject to the enhanced affirmative provision. Can you explain the reasons for that particular type of regulation being subject to the enhanced affirmative procedure? I mean your comments earlier regarding the affirmative and enhanced provisions were very helpful but the delegate of powers memorandum paragraph 41 says that any regulations providing for any function of an EU entity to be exercised by an existing Scottish public authority are subject to the affirmative procedure. Can you explain how that has achieved under section 14.2 of the bill? Yes, I can by reference again to what I've just said. The issue of the public authorities is what you're raising. The enhanced procedure applies to new authorities and functions given to new authorities. The affirmative procedure gives current functions to existing authorities and also deals with other matters. Those are the distinctions we're applying in terms of the public authorities. One level is in terms of new authorities and new functions. The other one is in terms of existing authorities and existing functions. Those are absolutely subject to discussion and debate and may well be that other views would apply. We've also extended the period from the 40 days that is normally in the circumstances. That gives a higher level of scrutiny as well. The Government's delegated powers memorandum points to the choice of procedures for the various powers in sections 11, 12 and 13. How do you minister and envisage that that choice has been decided? Why is there no role for Parliament in considering if the appropriate level of scrutiny has been chosen? There is a definition of necessity, so once we move from necessity in terms of appropriate level the appropriate level is defined in the circumstances in which I've given. There is a context for all those decisions. None of those decisions are being made without a context being given for them in the bill. The effect of section 14, 7 and 8 of the bill is that there has been a choice by ministers to comply with the enhanced procedure. That does not prevent regulations being laid before the Parliament and also approved. Why is it appropriate for the bill to include provision that ministers may proceed to lay regulations that do not comply with the procedures as approved by the Parliament? Those provisions are the equivalents of the provisions that apply for the affirmative procedure generally and any failures of the instrument to meet the ambitions of the affirmative procedure. In that situation the obligation on the Scottish Minister's right to presiding officer with an explanation and those provisions simply echo that for the additional requirements imposed under enhanced affirmative procedure. We would never intend to lay an instrument without the ambition to meet the procedural requirements of the enhanced affirmative procedure. Can I just make an additional point that this committee asked for instruments to be accompanied by explanatory statements? The EU withdrawal bill in the UK has been amended in such a way and the continuity bill provides for those in the Scottish Parliament. Those statements, just to be clear what they would do, and again I think this adds the Belt and Braces explanation, the statement would include the fact that the Scottish ministers do not consider it to be no more than appropriate. In other words, it is not any more to recognise any provision of equalities legislation if so what that effect is, that the Scottish ministers have had regard to their duties under equalities legislation, there is a report on any consultation and there is an explanation of the instrument, reasons for making it a pre withdrawal law being modified by it and its effect on retained EU law. That is a pretty comprehensive set of pieces of information that would apply and would be given. Thank you. So I move on now to section 19 of the bill, which is the power to provide for fees and charges. You will recall that in our report on the European Union withdrawal bill we expressed concern about the capacity of ministers to impose taxation measures in regulations under schedule 4 of that bill. We also raised concern about the potential for sub-delegation and the scrutiny procedure attached to regulations under schedule 4 of the bill. Those concerns appear not to have been responded to in section 19 of this bill, so can you explain why you have retained the approach taken in the EU withdrawal bill? I think we are happy to listen to this again. The view that we have taken up until now, the consistent view that we have taken, is that the affirmative procedure is appropriate when there is a new fee, in fact the superaffirmative procedure is necessary, when there is a new fee or charge, but thereafter that is simply a repetition. In terms of the scrutiny of this we accept absolutely that the first time that this is applied there should be such scrutiny, on the other matters I have to say that we are very open to having this discussion and to seeing whether there is more what we can do. We think what is in here is appropriate but it may well be that the committee still wishes to see further action taken in which case we will very much listen to that. Fees and charges seem a bit abstract but there are for example in the European Union depending on what, and this is all dependent on what trade agreements are reached there could be a wide-ranging system of fees and charges presently Salmonella testing attacks fees and charges but there could be fees and charges for shellfish exportation, that is a real live situation. Consignments of live animals from third countries at border inspection posts may apply more fees and charges. There is a range of things in here and if these are to be applicable to new regulation which will require at the first stage to be scrutinised, I think thereafter we would expect it to be more likely simply to be applied. At present the scrutiny arrangement for these fees and charges powers echoes both the arrangement in the UK bill which this committee made recommendations about and the arrangements for existing powers under the European Communities Act and the Finance Act but as the minister said it is something that we will reflect on before stages 1, 2 and 3. Stage 1 is tomorrow so we may want to be looking at it for stage 2 which is next week. Would that be a matter of this committee coming up with a suggestion? We are very open to that suggestion and happy to discuss it. With urgency of course I do accept with the greatest respect I am also aware of the timetable that is pressing upon us so in those circumstances of course. Right. I am going to ask about exit day which is section 28. The bill allows Scottish ministers to set an exit day by regulations. That day is relevant for a number of other provisions in the bill. It does not provide any limits on the date that can be fixed. Now surely exit day wherever you come from politically exit day is the day that the UK leaves the EU. Why don't we just say that in the bill? Well this has caused huge debate at Westminster. The first phase of that debate was everybody saying let's just put this date on the face of the bill so eventually the date was put on the face of the bill. Now there is a huge wave saying hang on a minute that day might have to change there might be circumstances in which it needs to change. So we have taken the agnostic position on this. There is no possibility in this bill that it does anything other than mirrors what the exit day is as set by the UK Government. There is no other function for this it can't be used for any other function. We would accept that unless something very dramatic happens and many of us are I hoping but unless something very dramatic happens the UK will leave the EU at 11pm on 29 March 2019. It is not yet set and absolutely cast in stone and until it is done it would seem sensible just to have the ability to put this in at a later time. I honestly wouldn't again go to the wall for it but given the debate has raged backwards and forwards at Westminster it is quite wise just to watch other people holding the jackets and to say we will just wait and see what happens here rather than get involved in this debate. It is a matter of fact that exit day is the day the UK leaves so let me just read the wording of the bill. In this act exit day means such day as the Scottish ministers made by regulations a point. The power under subsection 1 to a point a day includes a power to a time on that day. Where the Scottish ministers appoint a time as well as a day as exit day and then it goes on from that. Basically it's giving Scottish ministers the power to decide when exit day is but factually exit day and time is when the UK leaves. It's not a matter for you to why don't we just say in the bill that exit day is the same as when the UK leaves. I'm happy to consider that as an amendment that we can look at bringing but there's no intention in this of doing anything other than saying this is a decision for the UK we're not getting involved in this decision and we're not deciding on it differently ourselves. It's a rather bizarre way to see that. I don't think it's bizarre at all I think it is the way in which it has been said if there's another way to say it look again I'm no good at the wall for it. Right so that could be another amendment for next week. Could be. Right so we'll just clear that up shall we in the in the bill. There will need in any scenario to be an ability to alter the date of exit day and how that applies under the regime that the UK and European Council under article 50 can adjust the time and date of exit day so we need to be able at least in principle to contemplate that happening. Mr Finlay. Understanding that the premise behind the bill was to try and create some certainty. Certainty and continuity. Here. A phrase like that and it does not create certainty in fact it does the complete opposite. It is absolutely clear and I've said it in response to a question from you last week I'm saying it again here that the exit day will be the day on which the UK leaves if it leaves and that is likely to be 11pm on 29 March 2019. To the minister brings an amendment ASAP on that and just that will resolve this and it will save. I will take this away and look for a suitable amendment. Good. Right. Stuart McMillan. Thank you. It's section 31 minister regarding the scrutiny of regulations and urgent cases. The section provides that the urgent procedure has to be used in limited circumstances of the powers listed in subsection 1. Can you minister explain when those powers might be used and how a decision to use the urgent procedure might actually be reached? Well, it is something that is required and is required in much legislation. It's adjusting case provision. You don't want to find yourself in a circumstance where you can do nothing at all. I made the commitment before and I will make it again here. It could and would only be used if absolutely necessary. Given the scale and pace of EU withdrawal should it become necessary we would have to use it. There are safeguards around it. There are things that we need to do in all these circumstances and I suspect that we would be roundly criticised for endeavouring that it has to be there as a backstop again. That is quite a consistent phraseology that is utilised in most legislations. Is that correct? That particular formulation is identical to the one in the EU withdrawal bill. I believe that it was a recommendation of the committee that the two Governments consider whether an urgent or made affirmative procedure should be available in the Scottish Parliament. We have reflected on that and we accept entirely the UK Government's reasons for seeking itself to take that urgent procedure. We are unusually in a programme of pretty substantial subordinate legislation up against a very hard and fast deadline, as Mr Finlay points out. The 29th of March 2019 is coming and is at present the date in which the UK will leave the EU in those circumstances and, given the on-going uncertainty about the scenario in which the UK is going to leave the EU, we anticipate that there may be a requirement for instruments to be made under the urgent procedure. However, the minister has given the commitment that these would only be made in exceptional circumstances. Can I ask Mr Grantham? Just to add to that, you also have seen that the Secretary of State for Scotland wrote to the Scottish Government on a procedure on whether we wanted that to be extended to Scotland in the UK withdrawal bill. If any agreement is reached on that bill and the minister's response, which was copied to this committee, did reflect your recommendation and our view that yes, that probably was an idea because of all these circumstances that Lucas set out on the need for speed and flexibility and robustness, which is what we've really been looking for throughout the provisions in both our bill and a few of our criticisms of the UK withdrawal bill have been based on the fact that there are gaps in the Scottish ministers' powers unlike those of the UK ministers and we can see a need for those to be mirrored precisely to allow for the flexibility that we were describing particularly on clause 17 in section 32. So there is a parallel process going on here between what we've done in this bill and improvements we are seeking to the UK bill in the event that we reach agreement on that bill. Okay. That's helpful, thank you. Section 37 had dealt with that in his earlier comments. He dealt with that quite comprehensively. Okay. That simply honours the commitment that we have made that should we be able to reach agreement even after this bill has passed, section 37 is a sort of auto-destruct button. Yeah. So it's contingent upon reaching an agreement and nothing else. That would be the most likely circumstances in which it would operate. Right. I made a commitment last week during the process of the bill that we could still withdraw it up until stage 1 as that happens to me tomorrow. That's pretty sure that's not going to happen. But thereafter we will obviously have to bring if we require to motion to the chamber. After that there would be regulations which would be subject to affirmative procedure. Okay. Alison Harris. Thank you. The county has heard previously from stakeholders in connection with the European Union withdrawal bill about the need for early engagement on consultation drafts of regulations to be made under the bill. Those concerns obviously apply here as well. So to address these concerns can you minister explain what steps the government will take to ensure early engagement on legislation which might be brought forward under this bill? Sorry. I was going to ask if there is any scope for more legislation to be brought forward under the affirmative procedure. The superaffirmative procedure has a substantial stakeholder consultation in it and we will make sure that that is observed to the letter. We would want to make sure each step on all regulations there was full engagement from stakeholders. There are vast areas in Scottish life and sectors in which business and the economy where people are very worried indeed about the implications of Brexit. I spend a lot of my time talking to them and trying to understand those concerns and trying to reassure them. As we move into a process where action, legislative action is being taken, I think there will be an element of reassurance just that legislative action is being taken but we will want to make sure that action is the right action and it engages properly up until now. Is there scope for more legislation to be brought forward under the affirmative procedure? Sorry. To be brought forward under the affirmative procedure? I really am not sure about that at the present moment. In which areas would you think? It's just generally... There will be a considerable amount of legislation that we've indicated throughout this process and whatever happens whether we get an agreement with the UK and that bill moves forward or whether this bill moves forward in parallel with the UK bill, then that really is a start of a major process. Some of that is contingent upon the timetable that the UK Government sets if it manages to achieve a transition period and the acquis continues to apply, then the period during which those changes would be required may be extended. It depends on the definition of when you leave to go back to the leaving date and what happens when you leave and what does apply, but assuming that the acquis continues to apply and the legislation continues to apply, then the period of time for those changes to come through is the period of time of transition, so that's likely to be December 2020, though there seems to be some talking that that would be longer. If that is the case, then obviously it gives us a bit more time to bring that volume of legislation through so just on that point we've raised it before I seem to recall we asked you about this when you were last here about the preparations for the potential volume of statutory instruments. Very considerable preparations have taken place across Government. There are estimates and there are only estimates of the numbers and the estimate might be around 300 items which is the total of a year's SSIs coming through for this alone now clearly. That's a considerable number. We anticipate where that to be the case and quite clearly we would do it in a methodical and careful way. It could be of course over that three-year period, let us assume the sake of argument that whatever happens royal ascent to these bills takes place at some stage in the late spring, so we are then talking from a period April-May through and until the end of 2020 which would give you 19 and 20 to do it with an additional half years or two and a half years for that process. You would have to prioritise them. A great deal of work has been done in Government on working out the areas that we are concerned with and we will continue in that way. As far as resourcing is concerned the UK Government has allocated resources as you know for Brexit and we would expect to be able to draw down a share of that to allow us to do so. Do members have any further questions? I wonder if I could ask a final point in relation to the whole process. What we are finding is obviously that 40 years of economic and political convergence integration whatever you want to call it with the EU is hugely problematic to unravel. I wonder if that provides any lessons for others or those like yourself who would seek to unravel 300 years of political, economic and social integration with the rest of the UK. I'm happy to answer, if you wish me to answer. I might roll that one out Mr Finlay, it was a little bit mischievous. I would seem to say preparation and thoughtfulness in either of which the UK You never let us down. I think that exhausts our questions. You've agreed to write to us on a couple of matters and you've helpfully agreed to a couple of amendments so we'll presumably hear from you on that or we can suggest them. It's up to you. We will endeavour to come back to you on those today. On the issue of the date to take that on board and we'll get on with it. On the other issue of amendment, let me consider it in the next half hour or so and we'll come back to you very promptly and I'm grateful to the committee for their time. OK, thank you. I've made a commitment to Mr Finlay and to the committee and I will write to you when we have the agreement which I hope to have from the UK Government. OK, thank you very much and we'll suspend briefly. We'll move on to a gender item 3. Consideration of an instrument subject to the Affirmative Procedure No points have been raised by our advisers on the Scottish landfill tax standard rate and lower rate order 2018 SSI 2018-87 Is the committee content with this instrument? OK Gender item 4 Consideration of instruments subject to negative procedure The National Health Service General Medical Services Contract Scotland Regulations SSI 66 2018 Our legal advisers have identified a number of errors in the instrument relating to ground I defective drafting as well as on the general ground as there are other drafting errors The following errors have been identified in relation to ground I paragraph 33 of schedule 6 which provides for a modification of the quote's NHS dispute resolution procedure The first occurrence of sub-paragraph E should be head C of the list in proceeding sub-paragraph 19 The second occurrence of sub-paragraph E should be on a separate line as it intended to be the paragraph 333E The duties of the person nominated to work with the data protection officer in terms of paragraph 72 of schedule 6 should refer to matters set out under paragraph 67B and C rather than paragraph 67B only paragraph 893A and B of schedule 6 are intended to obligate the parties to attempt informal resolution and to bar them from beginning the formal NHS dispute resolution procedure until the less formal local dispute resolution process is attempted As the health board which is a party to the contract is defined as quotes the second health board the references in paragraph 893A and B should be to the second health board rather than the first health board paragraph 191 of schedule 6 which relates to the imposition ought to refer to all heads of paragraph 192 and there are missing paragraph references at the end of paragraph 105 of schedule 6 termination of contract by the health board which should refer to paragraphs 101 to 107 The other errors identified by advisers in relation to the general reporting ground will be set out in the committee's report Does the committee wish to draw regulations to the attention of the Parliament on ground I in respect of defective drafting and on the general ground The national health service primary medical services section 17C agreements Scotland regulations 2018 SSI 2018 67 Our advisers have identified an error in the instrument relating to ground I defective drafting as well as other drafting errors under the general ground Does the committee wish to draw the regulations to the attention of the Parliament on ground I as the provision in schedule 2 paragraph 263A appears to be defectively drafted across reference to paragraph 281 of schedule 2 is included but the reference should be to paragraph 261 or 2 and on the general ground as there are other drafting errors in the instrument Does the committee wish to welcome the Scottish Government's commitment to lay amending regulations in early course and we agree to the previous question Does the committee wish to indicate that the Scottish Government's quality control procedures ought to have avoided the high number of errors that appear in these instruments by the time they were made and laid before the Parliament No points have been raised by our advisers on SSI 2018-74-77 Is the committee content with these instruments Gender item 5 consideration of instruments not subject to any parliamentary procedure No points have been raised by our advisers on SSI 2018-187 and SSI 2018-73 Is the committee content with these instruments I'll now move the meeting into private session